Miles v. State

CHARLES E. MOYLAN, JR., Judge (retired, specially assigned). The subject of this appeal is the Writ of Audita Querela. The pro se appellant, Barry Miles, attempts to mount a belated attack on a fourteen-year-old narcotics conviction by resuscitating that ancient common law writ that, even in its lifetime, was an exclusively civil remedy and, even in that limited capacity, was characterized by the Court of Appeals one hundred fifty years ago as having, “both in England and in this country, ... fallen almost entirely into disuse.” Job v. Walker, 3 Md. 129, 132 (1852). In Maryland, indeed, it could not even qualify as falling into disuse, having never been used in the first place. “[W]e know of no instance in Maryland where it has ever been resorted to.” Id.

Nor has it “ever been [successfully] resorted to” in the one hundred forty-nine years since 1852. Measured from our birth as an independent state, therefore, the “fall into disuse” is now three times as irretrievably deep as it was in 1852. The Background On April 13, 1987, in the Circuit Court for Baltimore City, the appellant was found guilty, on his plea of guilty, of the possession of heroin with intent to distribute. Judge Edgar J. Silver gave him a two year suspended sentence with two years of supervised probation.

A violation of probation warrant was issued on September 22, 1987 and was quashed on February 11, 2000. ³⁸³ The appellant never filed any post-trial motions. He never appealed his conviction. He never filed a petition for Post Conviction Relief. He never challenged his conviction by way of federal habeas corpus.

The appellant is today neither in prison nor on probation in Maryland. The appellant is not even in Maryland. He is now residing in a Federal Correctional facility in Otisville, New York, where he is serving a federal prison sentence of 247 months. The appellant sought a transfer from Otisville, New York to the Federal Correctional Institution in Oxford, Wisconsin to take advantage of a two-year Associate Degree Program in Culinary Arts offered by the University of Wisconsin.

He discovered to his chagrin that his eligibility was barred by 21 United States Code, Sect. 862(a)(1)(C), which provides: (a) Drug traffickers. (1) Any individual who is convicted of any Federal or State offense consisting of the distribution of controlled substances shall— (C) upon a third or subsequent conviction for such an offense be permanently ineligible for all Federal benefits. Because of that collateral consequence, the appellant, in absentia, on July 27, 2000 filed in the Circuit Court for Baltimore City a petition for a Writ of Audita Querela to vacate his 1987 conviction by Judge Silver. On October 3, 2000, the petition for a Writ of Audita Querela was denied by Judge Albert J. Matricciani.

This appeal is from that denial. In affirming Judge Matricciani, we will not consider the merits of the appellant’s belated challenge to the voluntariness of his 1987 guilty plea nor will we consider the relative gravity of the collateral consequence now complained of. Our exclusive focus will be on the very existence of the Writ of Audita Querela as a modality for challenging a criminal conviction in Maryland in the year 2001. ³⁸⁴ A Shaky Foundation The only Maryland authority on which the appellant relies is Skok v. State, 124 Md.App. 226 , 721 A.2d 259 (1998),. reversed on other grounds by Skok v. State, 361 Md. 52 , 760 A.2d 647 (2000). In so relying, the appellant builds on sand.

The only discussion of Audita Querela in that opinion by the Court of Special Appeals is at 124 Md.App. at 230 -31 n. 5, 721 A.2d 259 . Significantly, nothing in that extended footnote reflects any legal conclusion whatsoever by the Court of Special Appeals. The footnote is nothing but a quotation from the appellant’s petition. The footnote, moreover, begins with the express disclaimer: “According to appellant’s petition for a writ of Audita Querela: ” Although that quotation, to be sure, cites some of the important landmarks in Maryland’s references over the years to Audita Querela, several of its key conclusions as to Maryland law are flatly wrong.

It cites Job v. Walker for the proposition that “The ancient common law Writ of Audita Querela exists [in] Maryland common law.” The actual conclusion of Job v. Walker, however, is that the writ probably no longer exists, if, indeed, it ever existed in Maryland. The quotation goes on to assert that “although the Writ of Audita Querela has fallen into disuse, it is still available.” The post-1852 Maryland case law, quite to the contrary, repeatedly states that the writ is no longer available, if, indeed, it ever was. The appellant builds on a shaky foundation. Notwithstanding that it contains a few good leads for further research, that quotation from Skok’s petition is no authority for anything.

What Is Audita Querela? Though sounding like a mellifluous name for a Byzantine courtesan, “Audita Querela” is actually Law Latin for “having heard the quarrel (or complaint).” Black’s Law Dictionary (7th ed.1999) defines it as: A writ available to a judgment debtor who seeks a rehearing of a matter on grounds of newly discovered evidence or newly existing legal defenses. ³⁸⁵ Job v. Walker in 1852 referred to the use of Audita Querela simply as an “ancient practice,” 3 Md. at 132 . L.B. Curzon, English Legal History 103 (2d ed.1979), however, attributes its introduction into equity practice to the reign of Edward III (1327-1377). Curzon explains that the Writ of Audita Querela “... was available to re-open a judgment in certain circumstances.

It was issued as a remedy to defendant where an important matter concerning his case had arisen since the judgment. Its issue was based on equitable, rather than common law principles.” Although reading Nineteenth Century judicial opinions plumbing the depths of common law pleading and procedure is an experience not unlike reading Beowulf in the original Old Saxon, certain salient characteristics do emerge from the otherwise incomprehensible muddle. The Writ of Audita Querela was exclusively a civil remedy. It was, moreover, a remedy available only in equity.

It was a post-final-judgment remedy; it did not challenge the validity of the original final judgment itself. It was in that regard that it was distinguished from the Writ of Coram Nobis, which did challenge the validity of the original judgment. 7A Corpus Juris Secondum, Audita Querela, Sect. 2, at 901 (1980) explains this critical difference: “Audita querela is distinguished from coram nobis in that coram nobis attacks the judgment itself, whereas audita querela may be directed against the enforcement, or further enforcement, of a judgment which when rendered was just and unimpeachable.” (Emphasis supplied). The Writ of Audita Querela sought to bar the enforcement or execution of an otherwise valid judgment because of some subsequent event that rendered the enforcement or further enforcement of the judgment inequitable. A simple example would be where the judgment had been paid or otherwise discharged but the payment or discharge was not reflected in the record.

Such a circumstance would render the further execution of the judgment self-evidently inequitable. ³⁸⁶ We are not alone in finding the subject, despite its antiquarian charm, a bit murky. In Klapprott v. United States, 335 U.S. 601, 614 , 69 S.Ct. 384 , 93 L.Ed. 266 (1949), the Supreme Court observed that “few courts ever have agreed as to what circumstances would justify relief under these old remedies” and referred to “the uncertain boundaries of these and other common law remedial tools.” Although the pre-Civil War languishing into desuetude of Audita Querela in Maryland obviously did not depend on the coup de grace administered to the writ by the amendment to Federal Rule of Civil Procedure 60(b) in 1948, the learned commentary on that 1948 amendment also sheds light on our confrontation with this ghost from auld lang syne. As amended in 1948, Rule 60(b) now provides in part that “writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review are abolished.” With refreshing candor, 11 Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure (2d ed.1995), Sect. 2867, p. 393, welcomed the abolition as a deliverance from obscurity: New except legal historians will understand clearly what it is that was abolished, but those who do understand are grateful far what was done. In its present form, 60(b) is a response to the plaintive cries of parties who have for centuries floundered, and often succumbed, among the snares and pitfalls of the ancillary common law and equitable remedies. [Quoting from Bankers Mortgage Co. v. United States, 423 F.2d 73, 77 (5th Cir.1970) ].

At common law and in equity there were a variety of procedural devices for seeking relief from a judgment but, as the Advisory Committee said in proposing the 1948 amendment, the precise relief obtained in a particular case by use of those remedies was “shrouded in ancient lore and mystery.” (Emphasis supplied). The authors explained, at 393, how Coram Nobis was an attack on the judgment itself. ³⁸⁷ “Coram nobis” was the name of an ancient common law writ of error applied for in a subsequent term of the court that gave judgment and sought to have the judgment revoked for errors of fact not apparent on the record. “Co-ram vobis” was, for present purposes, another name for the same writ.[ 1 ] Audita Querela, by contrast, was relief from the execution of a judgment because of some post-judgment development. “Audita querela” was a common law writ to afford relief to a judgment debtor against a judgment or execution because of some defense or discharge arising subsequent to the rendition of the judgment or the issue of the execution. Id. at 893-94. The authors finally pointed out that because Rule 60(b) applied only in civil cases, it necessarily had no effect on the continuing viability in the criminal courts of a writ such as Coram Nobis, which applied to criminal cases.

The other common law remedial writs, by contrast, apparently had no applicability to criminal cases. Rule 60(b) applies only in civil cases. The old writ of error coram nobis remains available in a criminal case as a means to challenge a conviction by one who has completed service of his sentence. But in civil cases, the five ancient devices listed in Rule 60(b) no longer are available and relief from a judgment only can be obtained by motion under the rule or by an independent action.

Id. at 394-95. Audita Querela in Maryland It is conceivable that a Writ of Audita Querela was the appropriate relief sought in 1718 in the case of Docura v. Henry, 4 H. & McH. 480 (1718), but the cryptic opinion of the Court of Appeals sheds no light on it. The full opinion of the Court recited simply: ³⁸⁸ JUDGMENT, that the plaintiff take nothing by his writ of audita querela. In Morgan’s Lessee v. Davis, 2 H. & McH. 9 , 15 (1781), Audita Querela was mentioned in dicta.

Beatty’s Adm’rs. v. Chapline, 2 H. & J. 7 (1806), did not even remotely deal with Audita Querela. Judge Gantt, one of four judges writing an opinion in the case, however, by way of passing dicta on an issue not before the Court, observed, “A writ of audita quere-la, or a bill of injunction, in ordinary cases, will remedy any inequity in the judgment itself, or in issuing or completing the execution.” Id. at 33 . Whatever the juridical lay of the land may have been in 1718 or in 1806, the Writ of Audita Querela was clearly over the hill by the time the Court of Appeals next mentioned it in Job v. Walker, 3 Md. 129 , in 1852. A judgment for $500 and costs had been entered against Job for a debt he owed to Walker.

Prior to its being executed, however, Job claimed credit against the judgment for $337 he had paid to Walker “with the express understanding that they were to be applied towards this judgment.” The Court of Appeals held that relief of the sort sought might be appropriate by way of a direct and simple motion to the court. It explained that the “ancient practice” would have been by a Writ of Audita Querela but that the common law formality of resorting to such a writ had fallen into disuse and had been displaced by the more informal practice of a direct motion to the court that had entered the judgment. The ancient practice in a case like the present, was by audita querela. Blackstone in his Commentaries, (3 vol., page 405,) says: “An audita querela is where a defendant, against whom a judgment is recovered, and who is therefore in danger of execution, or, perhaps, actually in execution, may be relieved upon good matter of discharge which has happened since the judgment, as if the defendant hath paid the debt to the plaintiff without procuring satisfaction to be entered on the record.” In latter years, this proceeding, both in England and in this country, has fallen almost ³⁸⁹ entirely into disuse.

Indeed we know of no instance in Maryland where it has ever been resorted to. In 1 Box. and Pul., 428, Chief Justice Eyre says: “I take it to be the modem practice, to interpose, in a summary way, in all cases where the party would be entitled to relief on an audita querela.” And in 4 Burr. 2287, it is asserted as a general rule, that the courts will not put the defendant to the trouble and expense of an audita querela, but will receive him in a summary way on motion. 3 Md. at 132 . Over the next forty-two years, the phrase “audita querela” was mentioned by the Court of Appeals on five occasions, each time only by way of the briefest of passing dicta in opinions dealing with some other form of relief and only in civil cases. On four of the five occasions, moreover, the dicta reconfirmed Audita Querela’s obituary notice.

Huston v. Ditto, 20 Md. 305, 331 (1863) (“The audita querela is said to be superseded in this State by motion.”); Seevers v. Clement, 28 Md. 426, 436 (1868); Starr v. Heckart, 32 Md. 267, 272 (1870) (“To a judgment ... rendered under such circumstances, a party would undoubtedly be entitled to relief, by an audita querela at common law, or by summary judgment according to the practice in this State.”); Gorsuch v. Thomas, 57 Md. 334, 339 (1882) (“Formerly such relief was obtained by audita querela, but in modem practice it is obtained in a more summary way by motion.”); Jones v. George, 80 Md. 294, 299 , 30 A. 635 (1894) (“The audita querela has been superseded in modern practice by motion to the Court.”). 1 John Prentiss Poe, Pleading and Practice (3d ed 1897), Sect. 115, at 104 n. 2, closed out the Nineteenth Century by noting, “Audita querela is now superseded by motion.” After the passing notice in Jones v. George in 1894, the Writ of Audita Querela lay quiescent for over one hundred years. Neither at the common law nor in Maryland, moreover, had it ever been remotely suggested that Audita Querela could ever be invoked in a criminal court. It was exclusively a writ brought in an equity court to bar the execution of a judgment that had been entered in a law court. Even on the civil side, ³⁹⁰ the writ, albeit sometimes referred to, had never actually been granted in Maryland, at least as far as appellate notice might reveal.

From 1852 onward, moreover, every Maryland notice of Audita Querela was simply to the effect that it was an “ancient common law practice” that had “fallen into disuse” and had been “superseded.” A Tale From the Crypt It was, therefore, from a long untended mausoleum that Audita Querela was eerily summoned back to life in Skok v. State, 124 Md.App. 226 , 721 A.2d 259 (1998). As it emerged from its century-long sleep, moreover, Audita Querela had somehow shaken loose its ancient chains of equity and of civil procedure as it appeared for the first time in Maryland history in a criminal court. The ghost there enjoyed a distinct advantage. In a strange new world where no one could remember what Audita Querela was, neither could anyone remember its limitations.

Its very unfamiliarity gave it potentially protean adaptability. A few out-of-context sentences from archaic opinions seemed to invest it with remarkable potency. The trial judge, however, denied all relief and Skok appealed. Neither the Court of Special Appeals in Skok v. State, 124 Md.App. 226 , 721 A.2d 259 , nor the Court of Appeals in Skok v. State, 361 Md. 52 , 760 A.2d 647 (2000), was ultimately called upon to rule on Audita Querela, for Skok abandoned on appeal any challenge to the denial of that writ.

Indeed, Skok’s primary reliance throughout both the trial and the appeals was on the Writ of Coram Nobis, with Audita Querela trailing behind as little more than an ancillary afterthought. Both appellate courts took notice of Audita Querela, however, by way of extended footnotes. The Court of Special Appeals footnote, 124 Md.App. at 230 -31 n. 5, 721 A.2d 259 , was, as previously noted, nothing more than a quotation from Skok’s original trial court petition for the writ. . The Court of Appeals footnote, by contrast, spoke for the ’Court, 361 Md. at 58 -59 n. 2, 760 A.2d 647 . ³⁹¹ That Court of Appeals footnote, by Judge Eldridge, was a very thorough collection of both early Maryland and modem federal references to Audita Querela.

The footnote concluded, however, that because Skok had abandoned his appeal on that issue, the Court of Appeals did not need to “express any opinion upon the matters discussed in the above-cited case.” Id. A Possible Metamorphosis In Federal Criminal Court The modem federal cases collected in that footnote do raise an intriguing question. Has the ancient equitable writ, a century and a half after its demise, been reincarnated? If so, has it, in the course of that reincarnation, been metamorphosed from a limited civil procedure into a vehicle for challenging criminal convictions?

The discernible tone of the footnote and the collective logic of the federal cases cited therein strongly indicate that the answer to that question should be a resounding “No.” Two federal district court cases, both from 1988, however, suffice at least to raise the question. The very existence of those cases, moreover, explains why this dusty relic from the crumbling pages of Blackstone’s Commentaries has found sudden favor with resourceful and inventive criminal defense attorneys and defendants. The twin culprits in this case of doctrinal grave robbing are United States v. Salgado, 692 F.Supp. 1265 (E.D.Wash.1988) and United States v. Ghebreziabher, 701 F.Supp. 115 (E.D.La. 1988). Both, on their facts, were hard cases and they show the tell-tale scars.

Salgado had been in the United States legally for 45 years and had been married to an American citizen for 41 years. For the last 25 years he had enjoyed an unblemished record when he was denied newly created rights under the Immigration Reform and Control Act, denied Social Security benefits, and faced with deportation because of a 24-year-old conviction for a minor criminal offense. Under Federal Rule of Civil ³⁹² Procedure 60(b)(6), Salgado sought to set aside that conviction because of these previously unforeseen collateral consequences. Because “the equities militate strongly in [his] favor,” 692 F.Supp. at 1266 , the United States Attorney’s Office did not oppose Salgado’s petition for relief.

Although recognizing a number of procedural impediments to granting the relief sought, the trial judge could not ignore the compelling factual circumstances: [T]he Court is left with the unmistakable impression that under the totality of the circumstances, it would be a gross injustice to allow this man, who has by all accounts been a model resident for forty-five years save for a single period of unlawful conduct, to effectively serve a life sentence, and for his family to be deprived of benefits from a fund he has paid into throughout his working life. Id. at 1268 . In groping for some way to provide relief, the judge was first compelled to forego any reliance on Coram Nobis. [T]he Court has a great deal of difficulty with the argument that Mr. Salgado’s attorney, or the sentencing judge, committed some error mandating vacation of judgment. For the same reasons, there are no new evidential materials or theories which would serve as a “defense” to the conviction.

Coram nobis is thus unavailable. Id. at 1269 . Audita Querela, by contrast, in part because of the court’s apparent unfamiliarity with it, showed more promise: Audita querela, however, a quaint term which has previously escaped either analysis or employment by this Court, does seem apropos under the facts of this case. Id.

(emphasis supplied). The judge then quoted a definition of “audita querela” that did not mention that it was a writ in equity to bar the execution of a civil judgment and, thus unconfined, concluded: “That definition appears sufficiently broad to encompass the scenario presented here.” Id. The court was obviously straining to reach a desired result. ³⁹³ The judge then faced the daunting task of showing that Audita Querela was a remedy available in the criminal court. He failed utterly to do so.

The attempt to do so was a glaring non-sequitur. The judge simply asserted that FRCP 60(b) did not prohibit the use of Audita Querela in the criminal court. Of course, it did not, but what follows from that? It did not prohibit the use of anything in the criminal court; it had nothing to do with the criminal court.

It did not, for instance, prohibit the use of Hammurabi’s Code or the Code Napoleon in the criminal court. That self-evidently does not imply that Hammurabi’s Code or the Code Napoleon are thereby permitted in the criminal court. That the forms of the common law actions have been eliminated from civil practice does not, ipso facto, imply that they are therefore permitted in criminal practice. The Salgado Court’s flawed logic was: “If a particular provision does not forbid something, the thing not so forbidden must, therefore, be permitted.” The court first quoted Rule 60(b): “writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.” Id. at 1268 .

The judge then made an unjustified equation of Audita Querela and Coram Nobis. He cited United States v. Morgan, 346 U.S. 502 , 74 S.Ct. 247 , 98 L.Ed. 248 (1954), for the proposition that, notwithstanding its elimination from civil practice, Coram Nobis is still a viable form of relief in criminal practice. Coram Nobis, however, was historically available in civil court and criminal court alike, whereas Audita Querela, by contrast, was only available in civil practice. The continuing vitality of Coram Nobis in criminal practice, therefore, establishes nothing with respect to Audita Querela, which never applied to criminal practice in the first place.

The Morgan case never mentioned Audita Querela or any of the other writs covered by Rule 60(b) other than Coram Nobis. Based only on United States v. Morgan, which held no such ³⁹⁴ thing, the Salgado court erroneously universalized as to all writs from the particular instance of Coram Nobis: It is abundantly clear that such writs were available at common law to test judgments entered in criminal actions. 692 F.Supp. at 1268 . Aware that its “supposition” rested on shaky grounds, the Salgado Court strained to find some support: Research discloses a grand total of one published decision in modem times which lends credence to that supposition, but in the absence of any contrary authority, one is enough. Id. at 1269 .

The case looked to was United States v. Kimberlin, 675 F.2d 866 (7th Cir.1982). The Kimberlin opinion, however, does not provide the support sought. It stated, to be sure: Rule 60(b) of the Federal Rules of Civil Procedure, in creating a procedure for relief from a final judgment in a federal civil case, expressly abolished the writ of audita querela, but we cannot conclude from this that the writ is unavailable in a federal criminal case. 675 F.2d at 869 . It went on to state that if Audita Querela were shown to have been available, like Coram Nobis, in the criminal court, it would continue to be available, unaffected by a change in the civil rules.

As to such availability, however, Kimberlin was very skeptical: [I]t is very doubtful that audita querela would be the means to fill [a gap in the system of post conviction remedies]. Our research has failed to discover any criminal case in which this writ has ever been asked for, let alone issued; it appears to be primarily a remedy of judgment debtors. See 11 Wright & Miller, Federal Practice and Procedure 235 (1973). Id.

(emphasis supplied). The Salgado Court’s conclusion is unabashedly result-oriented. If the Writ of Audita Querela is necessary to prevent an injustice, it must be available. The Court cannot subscribe to such a hardened approach.

Much to his credit, neither can the United States Attorney. ³⁹⁵ When, in the confines of this adversarial system, all counsel and the Court can unanimously agree on the equities, and on the right result, it is a fairly safe wager that justice would be served by reaching that result. 692 F.Supp. at 1271 (emphasis supplied). It is an argument from necessity. The use of the qualifying adverb “fairly” seems to betray some inner qualms. United States v. Ghebreziabher was not so much a second airow in the quiver as a vibration from the release of the first.

The petitioner sought by a Writ of Audita Querela to have one of three contemporaneous one-year-old guilty pleas vacated. He had originally entered pleas to three counts of accepting food stamps, of a total value of $220, when not authorized to do so. Because he had three convictions, instead of two, he was thereby not eligible for amnesty under the Immigration Reform and Control Act of 1986 and was facing deportation to Ethiopia. His plight, because of a relatively trivial offense, was as heart-rending as that in United States v. Salgado.

Mr. Ghebreziabher has been an industrious member of this community for almost ten years. He has four United States citizen children who will be deprived of his support if he should be deported. He has realized the American dream, owning his own home, and has reduced the mortgage on it from $58,500.00 to $33,000.00 in approximately 6 years. Except for these 3 incidents, he has no convictions.

His former employer, a subsidiary of a shipyard where he worked as a carpenter and joiner, thought well of him and found him to be hard-working. The political climate of Ethiopia is another consideration. The State Department has designated Ethiopia as a country of voluntary departure since 1982 due to its internal strife. Since the defendant had to escape from the country initially, the future for Mr. Ghebreziabher there appears to be foreboding.

It is also likely that his family will suffer tremendously should he be deported and removed from the home. 701 F.Supp. at 117 . With almost no legal analysis and citing only United States v. Salgado as authority, the district court vacated one of the ³⁹⁶ guilty pleas pursuant to the Writ of Audita Querela. The result was obviously an equitable one and the district court reasoned that its disposition “would serve the interests of justice and not in any way prejudice the United States.” Id. The unasked and unanswered question was: “Does the end justify the means?” The second and related question was: “Even if it does, is the appropriate label for such a latter-day, necessity-based, and open ended ‘means to an end’ the name of an ancient common law writ once available in equity court for a judgment debtor?” The case of United States v. Acholonu, 717 F.Supp. 709 (D.Nev.1989), one year later, actually cuts both ways.

It was also a case involving immigration difficulties because of an earlier criminal conviction. Acholonu had plead guilty nine years earlier to the felony of mail fraud. Although the petitioner “appear[ed] to have been a model citizen since his conviction,” had “obtained a master’s degree in metallurgical engineering and completed the course work towards a doctorate,” and was “now gainfully employed as a chemist,” 717 F.Supp. at 711 , he was ineligible for amnesty under the Immigration Reform and Control Act and would be barred from obtaining United States citizenship. Id. at 710 .

He petitioned for a Writ of Audita Querela to vacate his mail fraud conviction. On the exclusive authority of United States v. Salgado and United States v. Ghebreziabher, the court ruled, as an abstract proposition, that Audita Querela was available in criminal cases. In looking then more closely at Audita Querela than the earlier two cases had done, the court further ruled that stern collateral consequences are not themselves sufficient reason to invalidate a judgment of conviction.