Griffin v. State

Wendell Griffin v. State of Maryland, No. 484, September Term 2018. Opinion by Beachley, J. CORAM NOBIS—SIGNIFICANT COLLATERAL CONSEQUENCES CORAM NOBIS—WAIVER Appellant was convicted of first-degree murder and a related weapons charge in 1982. In 2012, appellant filed a petition for post-conviction relief as well as a petition for writ of actual innocence, alleging that the State committed numerous Brady v. Maryland, 373 U.S. 83 (1963) violations in securing his convictions. At the hearing on these petitions, appellant and the State reached an agreement whereby appellant would receive a time- served sentence in exchange for dismissing his post-conviction and actual innocence claims.

Consequently, the court never ruled on appellant’s two petitions. In 2013, appellant filed a § 1983 action in the United States District Court for the District of Maryland against the Baltimore Police Department and three of its detectives. The District Court dismissed appellant’s claim, and the Fourth Circuit affirmed, holding that under Heck v. Humphrey, 512 U.S. 477 (1994), appellant could not pursue his § 1983 claim until he invalidated his State conviction. Appellant then attempted to vacate his convictions by filing a petition for coram nobis relief based on the alleged Brady violations.

The circuit court denied appellant’s petition, and appellant appealed. Held: Judgment affirmed. In order to successfully petition a court for coram nobis relief, a petitioner must demonstrate that he or she is suffering significant collateral consequences. Additionally, a petitioner must show that he or she did not previously waive the grounds that the petition relies upon.

Here, appellant’s inability to pursue a federal civil claim for unliquidated damages does not constitute a significant collateral consequence under coram nobis law. Additionally, appellant waived the grounds underlying his coram nobis petition because they were withdrawn in 2012 when he agreed to a modification of sentence in exchange for his dismissal of those claims. Circuit Court for Baltimore City Case Nos. 18120316; 18120317 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 484 September Term, 2018 WENDELL GRIFFIN v. STATE OF MARYLAND Wright, Beachley, Wilner, Alan M. (Senior Judge, Specially Assigned), JJ.

Opinion by Beachley, J. Filed: August 29, 2019 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2019-09-04 12:20-04:00 Suzanne C. Johnson, Clerk On October 25, 2016, appellant Wendell Griffin filed a Petition for Writ of Error Coram Nobis and Request for Hearing in the Circuit Court for Baltimore City, seeking to vacate his 1982 convictions for first-degree murder and openly carrying a deadly weapon. The circuit court held a hearing on appellant’s petition on November 15, 2017. In an opinion and order dated April 3, 2018, the circuit court denied appellant’s petition. Appellant timely appealed, and presents two issues for our review,1 which we have rephrased as follows: 1.

Does the inability to file a civil claim in federal court constitute a significant collateral consequence for purposes of coram nobis relief? 2. Did appellant waive his right to seek coram nobis relief? We hold that appellant’s inability to file a civil rights claim does not satisfy the “significant collateral consequences” element required for coram nobis relief. In the alternative, we hold that appellant waived the grounds underlying his coram nobis petition.

Accordingly, we affirm. FACTUAL AND PROCEDURAL BACKGROUND On March 8, 1982, a jury convicted appellant of the first-degree murder of James Wise, III, and of openly carrying a deadly weapon with intent to injure. Appellant received a life sentence for first-degree murder, and a consecutive sentence of three years for the 1 In his brief, appellant raised a third argument—that the coram nobis court erred in refusing to estop the State from asserting waiver and/or res judicata. At oral argument, appellant appeared to concede that this estoppel argument lacked merit.

In his opening brief, appellant treated the State and the police officers of the Baltimore Police Department as synonymous for purposes of his estoppel argument. In his reply brief, however, appellant candidly conceded: “The State, . . . has not been and will not be a party to [appellant’s] § 1983 proceedings[. . . .]” Accordingly, we decline to address this issue. weapon conviction. A panel of this Court affirmed appellant’s convictions in an unreported opinion, and the Court of Appeals denied appellant’s petition for certiorari. Several years later, in the 1990s, appellant unsuccessfully sought both Maryland state post-conviction relief in the Circuit Court for Baltimore City and federal habeas corpus relief in the United States District Court for the District of Maryland.2 On June 10, 2010, appellant filed a pro se petition seeking post-conviction DNA testing pursuant to Md. Code (2001, 2008 Repl.

Vol.), § 8-201 of the Criminal Procedure Article (“CP”).3 Pursuant to that filing, appellant, through counsel, requested documents from the Baltimore Police Department (“BPD”) regarding its investigation of appellant for the murder of Mr. Wise. As a result of that document request, in 2011 appellant learned that the BPD had withheld exculpatory evidence consisting of photo arrays, witness statements, and chain of custody documents. On February 2, 2012, appellant filed a motion for leave to reopen his post-conviction case, seeking post-conviction relief based on the newly discovered evidence. Four days later, he filed a petition for writ of actual innocence pursuant to CP § 8-301.4 Both petitions alleged that the State had committed numerous 2 The record does not reveal the bases for appellant’s post-conviction and habeas allegations. 3 The General Assembly has since amended this statute.

See Md. Code (2001, 2018 Repl. Vol.), § 8-201 of the Criminal Procedure Article (“CP”). Those amendments are not relevant to this appeal. 4 The General Assembly has also since amended this statute, but the amendments are not relevant to this appeal. 2 Brady5 violations. The parties appeared in the circuit court before Judge Gale E. Rasin on May 23, 2012, for a hearing on the two petitions.

Prior to the court ruling on the merits of the Brady violations, however, the parties reached an agreement whereby appellant would withdraw his claims in consideration for a time-served sentence. The State told the court, [T]he State is not convinced that there were, in fact, any Brady violations. And if the State were convinced the State ethically would be bound to concede to the granting of a new trial. The State does recognize that the Brady allegations are plausible enough that . . . after discussing the matters with both [appellant] through his attorney, the State and [appellant] have agreed to a -- the State will concede to a resentencing on this matter.

The State went on to explain that the matter had “been discussed” with “all levels of the State’s Attorney’s Office,” and that this particular course of action would “ensure that [appellant] for the rest of his life will remain convicted for the murder of James Wise.” (Emphasis added). Appellant’s counsel responded that appellant “maintain[ed] his actual innocence of these convictions but [had] agreed to this resolution in the interest of moving forward and obtaining his freedom.” (Emphasis added). As we shall explain below, these expressed considerations—the State’s intent that appellant remain convicted of James Wise’s murder for the rest of his life, and appellant’s decision to accept a commuted sentence rather than challenge the underlying convictions for Brady violations—play an important role in resolving this appeal. 5 Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution”). 3 On November 13, 2013, nearly eighteen months after he was released from prison, appellant filed a civil action in the United States District Court for the District of Maryland pursuant to 42 U.S.C. §§ 1983 and 1988(b) against the BPD and three BPD detectives. 6 The district court dismissed appellant’s complaint, ruling that it was barred pursuant to Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254 .

A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Id. at 486-87 (footnote omitted). As relevant here, Heck required appellant to have his convictions “declared invalid by a [Maryland] state tribunal” before proceeding with his § 1983 action. Appellant appealed the district court’s decision to the Fourth Circuit.

In Griffin v. Balt. Police Dept., 804 F.3d 692, 699 (4th Cir. 2015), the Fourth Circuit affirmed the dismissal of appellant’s claim. The Fourth Circuit noted that Maryland provides “many avenues of post-conviction relief[,]” listing as examples petitions for writ of error coram nobis and for writ of actual innocence, procedures which are in addition to direct appeals and collateral review. Id. at 698 .

Nevertheless, the Fourth Circuit cautioned that 6 42 U.S.C. § 1983 permits a civil cause of action against those who, under color of law, cause a citizen to be deprived of his or her constitutional rights. 42 U.S.C. § 1988 (b) allows such a plaintiff to also seek attorney’s fees. 4 “[appellant] may or may not qualify for any or all of [those] remedies; that is for Maryland to decide.” Id. Apparently heeding the Fourth Circuit’s suggestion, on October 25, 2016, appellant filed his petition for writ of error coram nobis, which is the subject of this current appeal. In the petition, appellant sought to vacate his convictions based on the same Brady violations he alleged in his 2012 petitions for post-conviction relief and for writ of actual innocence. As previously noted, the circuit court held a hearing on November 15, 2017.

In its memorandum opinion, the circuit court denied appellant’s petition, finding that he failed to establish that he was suffering significant collateral consequences, and that pursuant to the doctrine of res judicata, he waived his right to seek coram nobis relief. As stated above, appellant timely appealed. We shall provide additional facts as necessary. DISCUSSION The Court of Appeals has noted that “[t]he essential nature of the writ of coram nobis is that it is an ‘extraordinary remedy’ justified ‘only under circumstances compelling such action to achieve justice.’” Hyman v. State, 463 Md. 656, 671 (2019) (internal quotation marks omitted) (quoting State v. Smith, 443 Md. 572, 597 (2015)).

Explaining its purpose, the Court has stated that the writ of coram nobis is “available to raise fundamental errors in attempting to show that a criminal conviction was invalid under circumstances where no other remedy is presently available and where there were sound reasons for the failure to seek relief earlier.” Often, coram nobis relief is sought “years after the fact”: Very often in a criminal case, because of a relatively light sanction imposed or for some other reason, a defendant is willing to forego [sic] an appeal even if errors of a 5 constitutional or fundamental nature may have occurred. Then, when the defendant later learns of a substantial collateral consequence of the conviction, it may be too late to appeal, and, if the defendant is not incarcerated or on parole or probation, he or she will not be able to challenge the conviction by a petition for a writ of habeas corpus or a petition under the Post Conviction Procedure Act. Id. (citation omitted) (quoting Smith, 443 Md. at 598 ).

Although the Court of Appeals has described the writ of error coram nobis as “an ancient common law device,” Smith, 443 Md. at 623 , no Maryland court had articulated the standard of appellate review until State v. Rich, 454 Md. 448 (2017). There, for the first time, the Court of Appeals held, Because of the “extraordinary” nature of this remedy, [the Court of Appeals] deem[s] it appropriate for appellate courts to review the coram nobis court’s decision to grant or deny the petition for abuse of discretion. However, in determining whether the ultimate disposition of the coram nobis court constitutes an abuse of discretion, appellate courts should not disturb the coram nobis court’s factual findings unless they are clearly erroneous, while legal determinations shall be reviewed de novo. Id. at 470-71 .

Turning to the substantive requirements of the writ, a petitioner must satisfy five conditions before a court may grant relief: [1] “the grounds for challenging the criminal conviction must be of a constitutional, jurisdictional, or fundamental character”; [2] the petitioner has the burden to overcome the “presumption of regularity” in the criminal case; [3] “the coram nobis petitioner must be suffering or facing significant collateral consequences from the conviction”; [4] the issue must not be waived; and [5] there may be no other “statutory or common law remedy [ ] then available.” Hyman, 463 Md. at 672 (quoting Smith, 443 Md. at 599 ). 6 In this case, we shall hold that appellant failed to satisfy the third and fourth conditions for coram nobis relief: he is not suffering significant collateral consequences, and he has waived the grounds underlying the basis for the petition. We first explain that appellant’s inability to file his § 1983 claim does not constitute a significant collateral consequence. We shall then discuss how appellant waived the underlying grounds for his coram nobis petition when he abandoned his Brady violation claims in 2012 in exchange for a time-served sentence that afforded him an immediate release from prison. I. The Inability to Initiate a Civil Suit is Not a Significant Collateral Consequence Appellant first argues that his inability to pursue his claim in federal court constitutes a significant collateral consequence in the context of coram nobis relief.

Instead of citing to caselaw to support his position that the inability to file a civil suit constitutes a significant collateral consequence, appellant merely asserts that, “given the extraordinary procedural history of this case, this Court should find that [appellant] satisfies the significant collateral consequence test.” We forgive appellant’s failure to cite applicable Maryland caselaw. At oral argument, counsel for both appellant and the State agreed that they were aware of no case in the country—state or federal—holding that the inability to pursue a civil claim constitutes a “significant collateral consequence” in the coram nobis context. In Maryland, 7 appellate courts have only explicitly acknowledged that subsequent enhanced sentences 7 and deportation proceedings8 may constitute “significant collateral consequences.” Due to the dearth of authority in Maryland, we turn to the federal circuits for guidance. In Fleming v. United States, 146 F.3d 88 (2d Cir. 1998), the United States Court of Appeals for the Second Circuit was tasked with determining whether Fleming suffered “a continuing legal consequence of his conviction because he [was] ‘disabled from employment in a variety of financial jobs.’” Id. at 90 .9 Specifically, Fleming alleged that his criminal conviction prohibited him from obtaining a license as a securities broker.

Id. In rejecting Fleming’s argument, the Second Circuit provided two examples of “continuing legal consequences”: “where a prior conviction deprives a petitioner of his right to vote under state law, or serves as an ‘aggravating factor’ in sentencing for a subsequent 7 See, e.g., Jones v. State, 445 Md. 324, 330 (2015); Coleman v. State, 219 Md. App. 339, 347 (2014), cert. denied, 441 Md. 667 (2015); Graves v. State, 215 Md. App. 339, 345 (2013), cert. dismissed, 441 Md. 61 (2014); State v. Castellon-Gutierrez, 198 Md. App. 633, 637 (2011); Gross v. State, 186 Md. App. 320, 323 , cert. denied, 410 Md. 560 (2009); Abrams v. State, 176 Md. App. 600, 606 (2007); Parker v. State, 160 Md. App. 672 , 687- 88 (2005); Pitt v. State, 144 Md. App. 49, 52 , cert. denied, 369 Md. 660 (2002); State v. Hicks, 139 Md. App. 1, 5 (2001). 8 See, e.g., Smith, 443 Md. at 584-85 ; Miller v. State, 435 Md. 174, 179-80 (2013); Rivera v. State, 409 Md. 176, 193 (2009); Guardado v. State, 218 Md. App. 640, 642-43 (2014). 9 We note that the “continuing legal consequence,” element roughly corresponds to Maryland’s requirement of “significant collateral consequences.” See Fleming, 146 F.3d at 90 (“The requirement that the petitioner demonstrate continuing legal consequences from his conviction derives from the Supreme Court’s observation in [United States v. Morgan, 346 U.S. 502, 512-513 (1954)] that ‘[a]lthough the term has been served, the results of the conviction may persist. Subsequent convictions may carry heavier penalties, civil rights may be affected.’”). 8 offense[.]” Id. (citations omitted).

Contrasting these examples of continuing legal consequences, the court stated that “the mere ‘desire to be rid of the stigma’ of a conviction is not enough.” Id. (citing United States v. Nat’l Plastikwear Fashions, 368 F.2d 845, 846 (2d Cir. 1966)). Turning to Fleming’s case, the court noted that Fleming failed to present any evidence showing that he had sought and been denied licensure as a securities broker, that he had ever been previously employed in such a capacity, or that he could obtain such employment, but for his conviction. Id. at 91.

Noting that Fleming’s “claim [was] purely speculative,” the court affirmed the denial of his petition. Id. Although the Fleming court did not provide an elaborate explanation, we discern that, while abrogation of voter rights or a subsequent enhanced sentence will constitute a significant collateral consequence, speculative employment opportunities do not. Several cases from the Seventh Circuit provide further guidance on the issue of significant collateral consequences.

In United States v. Keane, 852 F.2d 199, 200 (7th Cir. 1988), cert. denied, 490 U.S. 1084 (1989), Keane sought coram nobis relief to vacate his conviction and receive reimbursement for a $27,000 criminal fine he paid following his conviction. Id. To support his coram nobis petition, Keane relied on the fact that thirteen years after his conviction, the United States Supreme Court in McNally v. United States, 483 U.S. 350 (1987)10 held that the mail fraud statute—the statute used to convict Keane— no longer criminally prohibited Keane’s conduct. Id. 10 Our survey of the relevant cases revealed that the McNally decision spawned a flurry of federal coram nobis litigation. 9 In affirming the denial of his petition, the Seventh Circuit first explained that a coram nobis petitioner “must demonstrate that the judgment of conviction produces lingering civil disabilities (collateral consequences).

He also must demonstrate that the error is the type of defect that would have justified relief during the term of imprisonment.” Id. at 203. The court noted that significant collateral consequences “include loss of the rights to vote, hold occupational licenses (including law licenses), and bear arms; criminal convictions also may lead to enhanced penalties for future offenses. These future effects may call for a fresh look at the conviction.” Id. The court contrasted these consequences with those that do not justify coram nobis relief: Criminal convictions sometimes produce financial penalties and diminish the reputation of the defendant, but these do not entail continuing legal effects of a judgment.

Civil judgments frequently have the same effects, which do not authorize indefinite relitigation. Many courts therefore have held that coram nobis may be employed if and only if the petitioner is suffering civil disabilities unique to criminal convictions. Id. Turning to Keane’s case, the court noted that “Keane was amerced $27,000, which gives him a stake sufficient to produce a ‘case or controversy,’ but the fine is no different from the award of damages in civil litigation.

It is a sunk cost rather than a continuing disability producing additional injury as time passes.” Id. at 204 (emphasis added). The court went on to state, We do not doubt that the return of a fine is permissible relief if a writ in the nature of coram nobis is otherwise justified. We hold only that the prospect of getting money back is not enough by itself to support belated 10 review. . . . Our conclusion that financial stakes