Holloway v. State

²⁷⁵ Zarnoch, J. This is the second time appellant Lionel Holloway has asked for judicial relief from the collateral consequences of his previous guilty pleas; and this is the second time he has appealed to this Court. In the first appeal, he successfully challenged a procedural error, but was denied relief on the merits. On this occasion, he is again correct that the circuit court committed a procedural error, but we again deny him relief because his second action is barred by the law of the case. Holloway frames the following question for our review: Did the court below err in finding that Holloway waived his right to file a coram nobis petition?

The State essentially asks: Should the circuit court have denied Holloway’s second petition as barred by the law of the case? In our view, there is a significant underlying question that we must address: Can a party raise the defense of law of the case for the first time on appeal? 1 For the following reasons set forth below, we answer yes to all three questions and affirm the judgment of the circuit court. BACKGROUND On March 24, 2000, Holloway pleaded guilty in the Circuit Court for Baltimore City to two counts of possession with intent to distribute heroin. On April 17, 2000, the court sentenced Holloway to two concurrent twenty-year terms of imprisonment, with all but five years suspended, followed by three years of supervised probation.

On October 2, 2009, Holloway was convicted of possession of a firearm by a convicted felon in the United States District Court for the District of Maryland. Due to his prior state drug ²⁷⁶ convictions, Holloway was subjected to a mandatory minimum sentence of fifteen years on the firearm charge. On December 3, 2009, Holloway filed a petition for writ of error coram nobis (“First Petition”) in the circuit court, in an effort to vacate his underlying drug convictions. In his First Petition, Holloway argued that the trial court had committed error during his guilty plea, because it did not apprise him of the nature of his charges as required by Maryland Rule 4-242(c).

On August 17, 2010, the circuit court denied the First Petition on the basis that Holloway had waived his right to seek coram nobis by failing to file an application for leave to appeal. Additionally, the circuit court reasoned that the trial court had also complied with Rule 4-242(c) when it took his guilty plea. Holloway appealed the denial of the First Petition to this Court. In an unreported opinion, Holloway v. State, September Term 2010, No. 1765 (filed May 5, 2014), a panel of this Court acknowledged that the old rule was that “failure to file an application for leave to appeal barred a petitioner from coram nobis relief.” See Holmes v. State, 401 Md. 429 , 932 A.2d 698 (2007).

However, as a result of a change to the law in 2012, Section 8-401 of the Criminal Procedure Article now provides that “failure to seek an appeal in a criminal case may not be construed as a waiver of the right to file a petition for writ of error coram nobis.” Md. Code (2001, 2008 Repl. Vol., 2016 Supp.), Criminal Procedure Article (“CP”), § 8-401. Moreover, in Graves v. State, 215 Md.App. 339, 352 , 81 A.3d 516 (2013), we held that Section 8-401 should be applied retroactively. Accordingly, the panel held that Holloway’s failure to file an application for leave to appeal did not preclude him from filing a coram nobis petition.

Although the State conceded error in the trial court’s failure to apprise Holloway of the nature of the charges against him, the panel went on to examine the totality of the circumstances surrounding the plea colloquy as dictated under State v. Daughtry, 419 Md. 35, 71 , 18 A.3d 60 (2011), and observed the following: ²⁷⁷ To begin with, the nature of the charge in the present case is not complex. Possession with intent to distribute consists of two elements: possession of a controlled dangerous substance and the intent to distribute that substance. Md. Code, Crim. Law Art. (C.L.), § 5-602(2) (formerly Art. 27 § 286(a)(1)).

Moreover, the two elements of the offense are set forth in the very name of the offense. Turning to Holloway’s personal characteristics, we note that he was 26 years old at the time of his plea and had a high school education. He had been convicted of the same charge three years earlier and was on probation for that conviction at the time the instant offenses were committed. Thus, he presumably possessed the capacity to understand the nature of the charge of possession with intent to distribute heroin.

Finally, the factual basis proffered to support the guilty plea was extensive and detailed. The date, time, location, as well as detailed facts of each incident were recounted. Employing the totality of the circumstances analysis announced in Daughtry , we are not persuaded that Holloway lacked an understanding of the nature of the crimes to which he was pleading. The charge was a simple charge; its elements are contained within the very name of the offense.

At the time of the plea Holloway was 26 years old, a high school graduate, and had previously pleaded guilty to the same offense three years earlier; the factual basis proffered was extensive and detailed; and he was represented by counsel. (emphasis in original). Based on this reasoning, the panel affirmed Holloway’s convictions. 2 The Court of Appeals denied Holloway’s subsequent petition for writ of certiorari. Holloway v. State, 440 Md. 116 , 99 A.3d 780 (2014).

On September 15, 2014, Holloway filed a second petition for writ of error coram nobis (“Second Petition”). In his Second ²⁷⁸ Petition, Holloway again argued that the trial court failed to explain the nature of the charges, with the added allegation that the court also failed to advise him of the presumption of innocence. 3 On January 12, 2016, the circuit court denied the Second Petition on the grounds that Holloway had waived his right to seek coram nobis relief because he did not file an application for leave to appeal of a petition for post-conviction relief. On February 11, 2016, Holloway filed a timely notice of appeal. DISCUSSION I. Waiver The State concedes that the circuit court improperly relied upon Holmes v. State, 401 Md. 429 , 932 A.2d 698 (2007) in denying Holloway’s coram nobis petition.

Holmes stood for the proposition that the failure to file an application for leave to appeal barred a petitioner from coram nobis relief. Id. at 445-46 , 932 A.2d 698 . The Maryland General Assembly explicitly overruled Holmes when it passed CP § 8-401, which states that “[t]he failure to seek an appeal in a criminal case may not be construed as a waiver of the right to file a petition for writ of error coram nobis.” In fact, in Holloway’s first appeal, a panel of this Court held that CP § 8-401 applied retroactively and his right to file a coram nobis petition was not waived. Therefore, Holloway is correct that the circuit court denied his coram nobis petition on improper grounds.

II

The Law of the Case Doctrine The State, however, presents a different reason why Holloway’s coram nobis petition should have been denied. The State contends that, “because this Court went on in the First Opinion to consider the merits of Holloway’s claim, and denied ²⁷⁹ it, he is precluded under the law of the case doctrine from raising the substance of a coram nobis claim again.” The law of the case doctrine provides that, “once an appellate court rules upon a question presented on appeal, litigants and lower courts become bound by the ruling, which is considered to be the law of the ease.” Scott v. State, 379 Md. 170, 183 , 840 A.2d 715 (2004). Furthermore, “[n]ot only are lower courts bound by the law of the case, but decisions rendered by a prior appellate panel will generally govern the second appeal at the same appellate level as well, unless the previous decision is incorrect because it is out of keeping with controlling principles announced by a higher court and following the decision would result in manifest injustice.” Id. at 184 , 840 A.2d 715 (Internal quotation marks omitted). A. Raising Law of the Case for the first time on appeal The State is raising this law of the case defense for the first time on appeal. 4 Generally, appellate courts will not decide any issue that was not raised in and decided by the trial court.

See Md. Rule 8-131. Although we have found no Maryland case addressing the specific issue of whether the law of the case- doctrine can be invoked for the first time on appeal, it has been addressed by a number of other courts. However, there does not appear to be a consensus on this issue among appellate courts. The majority of state courts have held that the law of the case doctrine is an affirmative defense that cannot be raised for the first time on appeal.

See St. Edward Mercy Med. Ctr. v. Warnock, 2013 Ark. App. 518 , 429 S.W.3d 348, 355 (2013) (holding that “law of the case, like res judicata, is an affirma ²⁸⁰ tive defense and cannot be raised for the first time on appeal.”); see also In re Guardianship of Stalker, 953 N.E.2d 1094, 1101 (Ind. App. 2011); State v. King, 340 N.J.Super. 390 , 774 A.2d 629, 634-35 (2001); Sherman v. D.C., 653 A.2d 866 , 869 n. 2 (D.C. 1995).

We note that the state court decisions rely on the characterization of law of the case as an affirmative defense similar to res judicata. Affirmative defenses are considered waived if not raised in a party’s answer. See Md. Rule 2-323. Under the Maryland Rules, however, unlike res judicata, law of the case is not a specifically enumerated affirmative defense.

Md. Rule 2-323(g). Contrary to the state court decisions, federal courts have frequently held that law of the case can be considered for the first time on appeal. The Fifth Circuit noted that “[i]t is axiomatic that an issue not raised in the trial court will not be considered on appeal unless it involves a pure question of law, and our refusal to address it would result in a miscarriage of justice.” Pegues v. Morehouse Par. Sch.

Bd., 706 F.2d 735, 738 (5th Cir. 1983). The Court then held that, “[b]ecause the preclusive effect of the law of the case and res judicata doctrines presents a pure legal question, and being satisfied that no prejudice will accrue to the defendants, we exercise our discretion and address the question.” Id. (Internal citations omitted). The Eleventh Circuit has agreed that “while many procedural doctrines are waived if not timely raised, the law-of-the-case doctrine may be raised by the court sua sponte.” United States v. Anderson, 772 F.3d 662, 669 (11th Cir. 2014); see also Pope v. Sec’y, Florida Dep’t of Corrs., 752 F.3d 1254 , 1264 n. 3 (11th Cir. 2014).

Accordingly, even if the parties fail to raise law of the case as a defense, the court may still choose to apply it. The policy reasons behind such a rule have been articulated by the courts. “Courts have a compelling interest in continuity, finality, and efficiency both within cases and within the greater judicial system, and the