                    REPORTED

    IN THE COURT OF SPECIAL APPEALS

                 OF MARYLAND

                      No. 2294

               September Term, 2012




             STATE OF MARYLAND

                          v.

         GEORGE CAMERON SEWARD




       Krauser, C.J.,
      *Matricciani,
       Moylan, Charles E., Jr.
             (Retired, Specially Assigned),

                                     JJ.




              Opinion by Krauser, C.J.


              Filed: October 28, 2014

*Albert J. Matricciani, Jr., J., participated in
the hearing of this case but retired prior to the
adoption and issuance of this opinion.
       In Douglas v. State, 423 Md. 156 (2011), the Court of Appeals recognized a right of

appeal, from the “denial” of a petition for writ of actual innocence, by the petitioner. But it

left open the question of whether the State has a corresponding and comparable right of

appeal from the “grant” of such a petition. That issue is now before us in this appeal.

       George Cameron Seward, appellee, was convicted, after a bench trial in the Circuit

Court for Baltimore County, of first-degree rape, first-degree sexual offense, assault with

intent to murder, and related lesser offenses. He thereafter noted an appeal, whereupon this

Court affirmed his judgments of conviction.

       Eleven years later he filed a petition for postconviction relief. When that petition was

denied, no further action was taken for more than another decade. Then, when more than

twenty-five years1 had passed since he was convicted of the aforementioned crimes, he filed

a petition for a writ of actual innocence. His petition was granted, and the circuit court

ordered that Seward be given a new trial.

       When the State appealed that decision, Seward responded with a motion to dismiss,

challenging the State’s right to appeal from the “grant” of an actual innocence petition.

Although we initially denied this motion, we granted Seward leave to renew it in his

appellate brief, which he has done.

       For the reasons that follow, we shall deny Seward’s motion to dismiss once again, as

we conclude that the State has a right to appeal from a decision granting a petition for writ of


       1
         In 1985, Seward was convicted; in 1986, his direct appeal was decided; in 1997, he
filed a postconviction petition, which was denied two years later, in 1999; and, in 2010, he
filed the petition for writ of actual innocence which resulted in this appeal.
actual innocence. Furthermore, because the court below applied the wrong standard of

review, in granting Seward’s petition, and because the record clearly shows that Seward failed

to act with due diligence in pursuing his actual innocence claim, as the correct standard

requires, we shall vacate the circuit court’s order and remand this case with instructions to

reinstate Seward’s convictions.

                                            Facts

       In the early afternoon of July 26, 1984, Phyllis D. was raped and robbed in her

Baltimore County home and then shot in the face by her attacker, while her newborn baby lay

in a crib in an adjoining room. Her assailant then stole her car and fled.

       When Seward was arrested several months later, by Baltimore County police, for an

unrelated offense, an officer at the police precinct noticed that Seward resembled a composite

drawing that had been made of Ms. D.’s assailant. A photographic array, which included

Seward’s photograph, was then prepared and presented to Ms. D. From that array, Ms. D.

identified Seward as the man who raped, robbed, and shot her and then two months later,

re-identified Seward in a line-up arranged by the police.

       Seward was thereafter charged, in a fourteen-count indictment, with first-degree rape,

first-degree sexual offense, assault with intent to murder, breaking and entering a dwelling

house, use of a handgun in the commission of a felony, robbery with a dangerous and deadly




                                              2
weapon, and other related offenses.2 At his bench trial, in March 1985, a number of witnesses

testified for both the State and the defense, but only two of those witnesses are relevant to

Seward’s present claim of actual innocence: Phyllis D., the victim; and Louise Stamathis, the

owner of a dog grooming shop where Seward worked.

       Ms. D. testified that she was at home at approximately 12:20 p.m. on July 26, 1984,

watching television. At that time, she was on maternity leave from her job, having just given

birth to her son, a few weeks earlier. Upon hearing a knock, she opened the front door of her

home. Standing there was a “black man.” He claimed that his car had broken down nearby

and asked her permission to use her telephone. After gaining entry and seemingly using her

phone, the man requested to use her bathroom. Inside the bathroom, he apparently put on

gloves, because, upon leaving the bathroom, he, wearing gloves, grabbed her. Then, pointing

a handgun at her, he raped her and forced her to fellate him.

       After repeatedly sexually assaulting Ms. D., he demanded her money and jewelry.

And, then, taking the keys to Ms. D.’s car, he left. As he departed, he turned and shot Ms. D.

in the face. Ultimately, police were summoned to Ms. D.’s home by a neighbor, who had

heard her ensuing cries for help.




       2
        Seward was also charged with: second-, third-, and fourth-degree sexual offense;
common law assault; breaking a dwelling house in the daytime with the intent to commit a
felony; common law robbery; and two counts of theft.

                                              3
       At trial, Ms. D. identified Seward as her assailant and confirmed that she had

previously identified him from a photographic array, several weeks after the assault, and two

months after that had picked him out of a line-up.

       Seward responded, after the State concluded its case, by calling to the stand, as part of

his “mistaken-identity” defense, his employer, Louise Stamathis. She testified that Seward

was working for her at the time of the rape, robbery, and shooting in question, but she could

not recall whether he had worked at her dog grooming shop on the day those crimes were

committed, that is, July 26, 1984. She further stated that, as she was now required to provide

her husband, who was suffering from multiple illnesses,3 with around-the-clock care, she was

unable to locate her payroll records and unable to verify whether Seward had worked in her

shop during the commission of these dreadful crimes. At the conclusion of her testimony, the

court instructed her to “[p]lease try to get those records and get in communication because

[she was] still under summons to the Court.” But more than a decade passed before she was

ever heard from again.

       At his trial, which began eight months after the assault, Seward had a goatee and a

mustache. Although Ms. Stamathis testified that he “always” had such facial hair, Ms. D. had

not noticed, at the time of the attack, whether her assailant had a goatee and was uncertain

whether he had a mustache.        Relying on this purported, and possibly manufactured




       3
        At the time of Seward’s trial, Mr. Stamathis suffered from both amyotrophic lateral
sclerosis (commonly known as ALS or “Lou Gehrig’s disease”) and Alzheimer’s disease.

                                               4
discrepancy (given the eight months that had elapsed between the crimes and Seward’s trial),

as well as the inconclusiveness of the forensic evidence gathered by police,4 Seward claimed

that this whole matter was a case of mistaken identity.

       At the conclusion of the trial, the court observed that Ms. D. “had some twenty to thirty

minutes, in broad daylight hours,” to observe the assailant and that she “was in close

proximity to him, face to face,” throughout that time.         Taking into consideration the

opportunity that Ms. D. had to fully and at length observe her attacker as well as the testimony

of police detectives that, when she identified Seward from a photographic array and then

picked him out of a line-up, she did so “immediate[ly] and positive[ly]” and “without

equivocation or reserve,” the court opined that Ms. D. was “absolutely and unequivocally

certain that” Seward was the man who “raped her, robbed her, and shot her.” Accordingly,

the court found Seward guilty of all charges.

       A motion for new trial followed, which “hinged on the contention that [the trial judge]

had relied upon an unreliable identification.” Seward v. State, No. 1337, Sept. Term 1985,

at 3 (filed May 28, 1986) (per curiam), cert. denied, 307 Md. 406 (1986). That motion was

denied, and Seward was sentenced to consecutive terms of life imprisonment for both



       4
        Police technicians recovered latent fingerprints, vacuum, and hair samples from the
crime scene as well as from Ms. D.’s car (which had been stolen by the rapist), and a vaginal
swab was also taken from her. None of the physical evidence, however, was ever linked to
Seward through forensic testing. It should be borne in mind, however, that forensic testing
did not include DNA sequencing or analysis, which was then merely in the
research-and-development stage and did not become available to police crime laboratories
until years later.

                                                5
first-degree rape and first-degree sexual offense; as well as additional sentences of thirty years

for assault with intent to murder; three years for breaking and entering a dwelling house;

twenty years for use of a handgun in the commission of a felony; and twenty years for robbery

with a dangerous and deadly weapon, all of which were to run consecutively to the first life

sentence.5 His convictions were later affirmed by this Court in an unreported opinion, Seward

v. State, No. 1337, Sept. Term 1985, and the mandate of this Court was received and filed in

the circuit court on July 1, 1986.

       Eleven years later, in 1997, Seward filed a petition for postconviction relief in the

Baltimore County circuit court, alleging ineffective assistance of counsel. He claimed that

his trial counsel had “failed to present available evidence,” namely, Ms. Stamathis’s payroll

records, “or to conduct reasonable investigation to uncover” such evidence, which, he

maintained, “would have tended to exculpate” him. At the hearing held on that petition, Ms.

Stamathis produced the handwritten payroll records that she had been unable to find during

Seward’s 1985 trial and testified that, based upon those records, Seward, on the day of the

crimes, had been working at her shop, which was approximately two miles from the crime

scene, and that it would have been “[i]mpossible” for him to have left her shop during the

relevant time period. She further testified that, if she had been issued a court order, at the time

of Seward’s trial, to search her records, she would “had to have done it” and that, if she had




       5
           The remaining convictions were merged.

                                                6
located her payroll records at that time, she “would have been willing” to offer the same

exculpatory testimony then as she was presently giving at Seward’s postconviction hearing.

       The circuit court denied Seward’s postconviction petition, finding that Seward’s trial

counsel had “acted reasonably in investigating Ms. Stamathis as an alibi witness and calling

her as a defense witness at trial” and that “[h]er failure to comply with the State’s, defense

counsel’s, and the Court’s request for records in no way constitute[d] ineffective assistance”

of counsel. Seward’s subsequent application for leave to appeal from that decision was

denied by this Court. Then, in 2008, Seward sought to have any remaining evidence from his

1985 rape case subjected to DNA analysis, but that evidence was no longer available.

       Two years later and a total of twenty-five years after his trial, Seward, in 2010, filed

a petition for a writ of actual innocence in the Circuit Court for Baltimore County. In that

petition, he alleged that Ms. Stamathis’s employment records, which he claimed constituted

newly discovered evidence, showed that he had worked at her dog grooming shop on the day

of the crimes and that, had this evidence been available and been presented at trial, “there is

a substantial possibility that the result of the trial may have been different,” and thus he

claimed that he was entitled to a new trial. The circuit court granted Seward’s petition and

ordered a new trial, whereupon the State filed a motion for reconsideration, a notice of appeal,

and a motion to stay proceedings in the circuit court pending the outcome of that appeal. The

circuit court denied both of the State’s motions and scheduled the case for a new trial.




                                               7
       Seward thereafter filed a motion in this Court to dismiss the appeal, contending that

it was not authorized by law. We denied that motion “with leave to seek that relief in” his

brief, which he has, and further ordered that proceedings in the circuit court be stayed pending

a resolution of the State’s appeal.

                                       Motion to Dismiss

       In his motion to dismiss this appeal, Seward claims that the State has no right of appeal

from the “grant” of a petition for writ of actual innocence by the circuit court, because

Criminal Procedure Article, § 8-301 (“CP”), does not expressly provide the State with such

a right. Nor is such a right implied, he reasons, given that the State’s right to appeal in

criminal cases is limited to only those grounds provided by statute. He further contends that

Douglas v. State, supra, 423 Md. 156, which recently established a right of appeal from the

“denial” of a petition for writ of actual innocence, does not apply here, because the “grant”

of an actual innocence petition, unlike its denial, does not constitute a final judgment, but,

only, the award of a new trial.

       As for Seward’s assertion that the State’s right to appeal in criminal cases is limited

to only those grounds expressly provided by statute and that there is no such statutory

provision applicable here, the State replies that a writ of actual innocence proceeding is “not

a part of [a] criminal case” but, rather, is a “separate, civil and collateral proceeding,” akin to

a postconviction or coram nobis inquiry and that, therefore, the strict limitations on the State’s

right to a criminal appeal, in Courts and Judicial Procedures Article, § 12-302(c) (“CJ”), do



                                                 8
not apply here. Then, turning to Seward’s assertion that the “grant” of an actual innocence

petition is not a final judgment, the State responds that the grant of such a petition (at least

under the circumstances here), like its denial, is, in fact, a final judgment, as it results in

setting aside the final judgment of a criminal case. And, because the circuit court’s grant of

Seward’s petition is a final judgment in what the State maintains is a civil, collateral action,

it is appealable, the State asserts, under CJ § 12-301, which, with exceptions not relevant here,

permits any party aggrieved by a circuit court judgment, in a civil action, to appeal that

judgment.

       We begin our consideration of Seward’s motion to dismiss with the observation that

the actual innocence statute, CP § 8-301, unlike either the Maryland Uniform Postconviction

Procedure Act, CP §§ 7-101 to 7-301, or the statute governing postconviction petitions for

DNA testing, CP § 8-201, is silent as to whether an appeal may be taken, by either side, from

an order of a circuit court disposing of a petition filed pursuant to it. Compare CP § 8-301

(absence of appeal provision)6 with CP § 7-109(a) (stating that a person aggrieved by an order



       6
           The actual innocence statute (§ 8-301 of the Criminal Procedure Article) provides:

                (a) A person charged by indictment or criminal information with
                a crime triable in circuit court and convicted of that crime may,
                at any time, file a petition for writ of actual innocence in the
                circuit court for the county in which the conviction was imposed
                if the person claims that there is newly discovered evidence that:
                        (1) creates a substantial or significant possibility that the
                result may have been different, as that standard has been
                judicially determined; and
                                                                                        (continued...)

                                                  9
6
    (...continued)
                  (2) could not have been discovered in time to move for
           a new trial under Maryland Rule 4-331.

          (b) A petition filed under this section shall:
                 (1) be in writing;
                 (2) state in detail the grounds on which the petition is
          based;
                 (3) describe the newly discovered evidence;
                 (4) contain or be accompanied by a request for hearing if
          a hearing is sought; and
                 (5) distinguish the newly discovered evidence claimed in
          the petition from any claims made in prior petitions.

          (c)     (1) A petitioner shall notify the State in writing of the
          filing of a petition under this section.
                  (2) The State may file a response to the petition within 90
          days after receipt of the notice required under this subsection or
          within the period of time that the court orders.

          (d)      (1) Before a hearing is held on a petition filed under this
          section, the victim or victim's representative shall be notified of
          the hearing as provided under § 11-104 or § 11-503 of this
          article.
                   (2) A victim or victim's representative has the right to
          attend a hearing on a petition filed under this section as provided
          under § 11-102 of this article.

          (e)     (1) Except as provided in paragraph (2) of this
          subsection, the court shall hold a hearing on a petition filed
          under this section if the petition satisfies the requirements of
          subsection (b) of this section and a hearing was requested.
                  (2) The court may dismiss a petition without a hearing if
          the court finds that the petition fails to assert grounds on which
          relief may be granted.


                                                                                 (continued...)

                                           10
disposing of a postconviction proceeding, “including the Attorney General and a State’s

Attorney,” may file an application for leave to appeal) and CP § 8-201(k)(6) (providing that

appeal to the Court of Appeals “may be taken from an order entered under” the DNA

postconviction statute).

       Nonetheless, in Douglas v. State, supra, 423 Md. 156, the Court of Appeals declared

that neither the absence of an appeal provision in the actual innocence statute, nor the action

taken by the General Assembly in adding and then deleting language from the actual

innocence statute (CP § 8-301) that would have granted a right of appeal,7 bars an appeal by

a petitioner from the denial of his or her actual innocence petition. In explaining why it

believed that the General Assembly ultimately redacted the provision granting such a right,


       6
           (...continued)
                  (f)    (1) In ruling on a petition filed under this section, the
                  court may set aside the verdict, resentence, grant a new trial, or
                  correct the sentence, as the court considers appropriate.
                         (2) The court shall state the reasons for its ruling on the
                  record.

                 (g) A petitioner in a proceeding under this section has the
                 burden of proof.

Md. Code (2002, 2008 Repl. Vol., 2010 Supp.), CP § 8-301.
       7
        The third reading of 2010 House Bill 128 provided, in proposed CP § 8-301(h)(1):
“Within 30 days after the court passes an order in accordance with this section, the State or
the petitioner may appeal the order to the Court of Special Appeals.” This language was
subsequently stricken when the bill was considered by the Senate Judicial Proceedings
Committee, and the bill as ultimately enacted did not include an appeal provision. Compare
2010 House Bill 128, Third Reading with 2010 House Bill 128, Enrolled Bill (available at
http://mgaleg.maryland.gov/webmga/frmMain.aspx?tab=subject3&ys=2010rs/billfile/hb0
128.htm) (last visited Oct. 10, 2014). See also 2010 Md. Laws, ch. 234, § 1, at 1606.

                                                  11
the Court opined that such a provision would have been “redundant and thus unnecessary,”

given that the final judgment provision of CJ § 12-3018 already grants such a right of appeal.

Id. at 173. In other words, the General Assembly intended that the actual innocence statute,

CP § 8-301, which does not expressly grant a right of appeal, be read in concert with

CJ § 12-301, which does, and thus there was no reason to place a right of appeal in the actual

innocence statute when that right already existed in CJ § 12-301.

       Because the Court of Appeals believed that, in recognizing a right of appeal from the

denial of an actual innocence petition, it was, in effect, implementing the intent of the General

Assembly, we now turn to the legislative history of the actual innocence statute to determine

the scope of that right as envisioned by that legislative body. In so doing, we find that the

2010 House Bill 128, which included the deleted “right of appeal” amendment, would have




       8
           CJ § 12-301 provides as follows:

                 Except as provided in § 12-302 of this subtitle, a party may
                 appeal from a final judgment entered in a civil or criminal case
                 by a circuit court. The right of appeal exists from a final
                 judgment entered by a court in the exercise of original, special,
                 limited, statutory jurisdiction, unless in a particular case the
                 right of appeal is expressly denied by law. In a criminal case,
                 the defendant may appeal even though imposition or execution
                 of sentence has been suspended. In a civil case, a plaintiff who
                 has accepted a remittitur may cross-appeal from the final
                 judgment.

Md. Code (1974, 2012 Repl. Vol.), CJ § 12-301.

                                                12
created a bilateral right of appeal from “an order [passed] in accordance with this section.”

See 2010 House Bill 128, Third Reading.9

       Because the Court of Appeals, in Douglas, was simply implementing what it deemed

to be the intent of the General Assembly (and presumably not just half of that intent), we are

impelled to conclude that a right of appeal, from a decision on an actual innocence petition,

must be a bilateral right of appeal. To conclude otherwise would, under the Court of Appeals’

reasoning, in effect, thwart the intent of that legislative body, a legally indefensible result. We

therefore hold that the State has the same right of appeal from the grant of a petition for a writ

of actual innocence that a petitioner has from the denial of such a petition. And, as indicated,

any other conclusion would, we believe, run afoul of the General Assembly’s intent, an intent

implemented by our highest court, in Douglas.

       That the General Assembly intended that any right of appeal from the disposition of

an actual innocence petition be a bilateral right leads inexorably to the conclusion that that

legislative body viewed an actual innocence proceeding as a collateral civil action, separate

from the underlying criminal case. Otherwise, clearly, it would not have considered granting

a bilateral right of appeal, as the State is, with few exceptions, barred by the Double Jeopardy

Clause from exercising such a right in a criminal case. And, consistent with that conclusion,

we note that the actual innocence statute, CP § 8-301, was placed in Title 8 of the Criminal



       9
        T he    bill file for 2010 H ouse B ill 128 is available at
http://mgaleg.maryland.gov/webmga/frmMain.aspx?tab=subject3&ys=2010rs/billfile/hb0
128.htm (last visited Oct. 10, 2014).

                                                13
Procedure Article, which is now designated as “Other Postconviction Review.” 2012 Md.

Laws, ch. 437, § 1, at 2947-48. That is significant because if an actual innocence proceeding

were a part of the underlying criminal case, then, presumably, the actual innocence statute

would have been placed in Title 6 of the Criminal Procedure Article, “Trial and Sentencing.”

       Moreover, the legislative history of the actual innocence statute, CP § 8-301, suggests

that the statute was promoted, by its sponsors, as a means to extend the relief afforded under

the Uniform Postconviction Procedure Act and the DNA postconviction statute—both of

which authorize actions which are of a collateral and civil nature—to postconviction claims

of factual innocence, where DNA evidence is not available or relevant.10



       10
         The year before enactment of the actual innocence statute, the General Assembly
enacted legislation that, among other things, provided for collection of DNA samples from
arrestees, as well as for various amendments to the DNA postconviction statute, CP § 8-201.
2008 Md. Laws, ch. 337 (enacting 2008 SB 211). An amendment to that legislation was
adopted, providing that

               the Office of the Public Defender and the Governor’s Office of
               Crime Control and Prevention jointly shall submit a report to the
               House Judiciary Committee and Senate Judicial Proceedings
               Committee on barriers to postconviction review of claims of
               factual innocence, and in particular, those based on DNA
               evidence.

Id., section 3, at 3254.

       The following January, that joint report was submitted to the legislative committees
and led to the enactment, that year, of the actual innocence statute. 2009 Md. Laws, ch. 744
(enacting 2009 SB 486). Although the Office of the Public Defender (“OPD”) and the
Governor’s Office of Crime Control and Prevention were, as reflected in that report, unable
to agree on recommendations to the legislature, it is significant that the OPD, which
                                                                                (continued...)

                                              14
       Furthermore, we have no reason to suspect that the General Assembly intended to

categorize actual innocence proceedings as criminal actions, when its legislative siblings—the

DNA and postconviction acts—were deemed, by the Court of Appeals, to be of a collateral

and civil nature. See Md. State Bar Ass’n, Inc. v. Kerr, 272 Md. 687, 689-90 (1974)

(observing that a postconviction proceeding is “an independent and collateral civil inquiry into

the validity of the conviction and sentence,” not “a part of the original criminal cause”); Blake

v. State, 395 Md. 213, 234 (2006) (noting that proceeding under DNA postconviction statute

is a “collateral attack on a criminal conviction”); Trimble v. State, 157 Md. App. 73, 78 (2004)

(stating that proceeding under DNA postconviction statute is “not part of the criminal

proceeding itself” and is “in fact considered to be civil in nature”) (quoting Pennsylvania v.




       10
          (...continued)
recommended passage of the then-proposed actual innocence statute, stated, in
Section III (A) of the joint report (“Barriers: Office of the Public Defender Litigation
Experience—Innocence Claims Without DNA Evidence”), that the “most significant barrier
to postconviction review of a claim of innocence is the simple fact that the appellate courts
of Maryland have excluded claims of innocence as a justiciable issue.” “REPORT: Barriers
to Postconviction Review of Claims of Factual Innocence, and in Particular, Those Based
on DNA Evidence,” at 7 (Jan. 15, 2009) (available at Md. Dep’t Legis. Servs., bill files for
2008 SB 211 and 2009 SB 486) (emphasis added). The OPD later asserted, in Section III(B)
of that same joint report (“Innocence Claims Based on Newly Discovered DNA Evidence”),
that the DNA postconviction statute, CP § 8-201, “has rarely benefited defendants in practice
due to a number of factors,” including the fact that DNA evidence is either not preserved or
has been destroyed. Id. at 9.

      In sum, the legislative materials suggest that the actual innocence statute was
conceived, by its proponents, as a means to extend the relief afforded under the DNA
postconviction statute to those for whom DNA evidence was unavailable.

                                               15
Finley, 481 U.S. 551, 557 (1987)). Consequently, because CJ § 12-302(c) does not apply to

civil actions, it does not bar the State’s appeal in this case.

       Finally, we reject Seward’s contention that the grant of his actual innocence petition

is not a final judgment, because the State may re-try him. As the Court of Appeals explained

in Ruby v. State, 353 Md. 100 (1999):

                       A collateral challenge, by its very nature, is a separate and
               distinct civil procedure by which a defendant may challenge his
               or her conviction, sentence, or imprisonment. Because collateral
               challenges are separate from the underlying judgment, the filing
               of such an action typically initiates an entirely new action in
               which the defendant sets forth his or her claims. If the defendant
               prevails in the civil court where he or she sought collateral relief,
               that court then issues the writ directing the criminal court
               pursuant to the terms of the writ.

Id. at 107 (citation omitted).

       Consistent with the foregoing description of a “collateral challenge,” if an actual

innocence petitioner prevails in a proceeding under CP § 8-301, the circuit court “then issues

the writ [of actual innocence] directing the criminal court pursuant to the terms of the writ,”

Ruby, 353 Md. at 107, directions which, in an action under the actual innocence statute,

CP § 8-301, may take one of four possible forms: “the court may set aside the verdict,

resentence, grant a new trial, or correct the sentence, as the court considers appropriate.”

CP § 8-301(f)(1).

       Because an action brought under CP § 8-301 is a collateral, civil proceeding, distinct

from the underlying criminal trial, it follows that a circuit court’s order, granting a petition



                                                16
brought under that statute and ordering relief as authorized in CP § 8-301(f)(1), is a final order

from which an appeal “is authorized by the broad language of the general appeals statute,”

CJ § 12-301. Skok v. State, 361 Md. 52, 65 (2000). We therefore deny Seward’s motion to

dismiss and proceed to the merits of the State’s appeal.

                                       Merits of Appeal

       The substance of this appeal is the State’s contention that the writ of actual innocence

court erred, both in ruling that Seward’s trial counsel had acted with due diligence in

discovering the purported “newly discovered evidence” at issue and in finding that that

evidence, as required by the actual innocence statute, CP § 8-301, created “a substantial or

significant possibility that the result” of his trial might “have been different.” Because we

conclude that the court below erred in finding due diligence, where none existed, and, because

due diligence is a threshold requirement for entitlement to a writ of actual innocence, we shall

reverse on that basis without addressing the State’s alternative contention, that the purported

“newly discovered evidence” adduced by Seward did not create “a substantial or significant

possibility that the result may have been different.”

       We begin our analysis of the due diligence issue by considering whether the actual

innocence court, in declaring itself “bound” by the postconviction court’s findings of fact and

conclusions of law as the “law of the case,” erred as a matter of law. We believe it did. And

that unfortunate holding led the actual innocence court to feel compelled to conclude that

Seward’s trial counsel had acted with due diligence, despite his failure to procure the payroll



                                               17
records of Seward’s erstwhile employer, Ms. Stamathis, records whose belated recovery

provided the grounds for his petition.

       Under the “law of the case” doctrine, “once an appellate court rules upon a question

presented on appeal, litigants and lower courts become bound by the ruling,” as the “law of

the case.” Scott v. State, 379 Md. 170, 183 (2004). But the “law of the case” doctrine does

not require the circuit court to bind itself to findings of fact made and conclusions of law set

forth by another judge of the same court, in a collateral proceeding, id. at 184-85, particularly

where, as here, there is a substantial difference in the standard of performance required of

defense counsel in the context of a claim of ineffective assistance of counsel at a

postconviction proceeding and the standard of performance demanded of trial counsel in

presenting a claim of newly discovered evidence at an actual innocence proceeding. As we

shall see, the court below, that is, the writ of actual innocence court, wrongly accepted as the

“law of the case” an earlier finding made by the postconviction court, that Seward’s counsel

had not rendered ineffective assistance of counsel, a finding which, as we noted, was made

under an entirely different standard of attorney performance.

       In a postconviction action alleging ineffective assistance of counsel, a defendant must

prove two elements: first, “that counsel’s performance was deficient,” that is, “that counsel

made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment”; and second, “that the deficient performance prejudiced




                                               18
the defense,” that is, “that counsel’s errors were so serious as to deprive the defendant of a fair

trial, a trial whose result is reliable.” Strickland v. Washington, 466 U.S. 668, 687 (1984).

       In a proceeding under the actual innocence statute, CP § 8-301, a petitioner must also

prove two elements, one of which is different from that required to prevail on a Strickland

claim: First,11 the actual innocence petitioner must show 12 that there is “newly discovered

evidence” that “could not have been discovered in time to move for a new trial under

Maryland Rule 4-331,” see CP § 8-301(a)(2), a requirement known as “due diligence”; and,

second, he must persuade the court that this newly discovered evidence “creates a substantial

or significant possibility that the result may have been different, as that standard has been

judicially determined.” CP § 8-301(a)(1). See also Yorke v. State, 315 Md. 578, 588 (1989)

(holding that newly discovered evidence warrants a new trial under Rule 4-331(c) when it




       11
          The actual innocence statute presents the elements in reverse order. Logically, a
reviewing court would first determine whether the evidence at issue is newly discovered, and
only if it qualifies as such would it reach the question whether it would have influenced the
verdict. But, because both elements are required, a reviewing court may, in the interest of
judicial economy, reject an actual innocence claim if it is clear from the record that either
element cannot be satisfied, without considering the other element. See Strickland v.
Washington, 466 U.S. 668, 697 (1984) (observing that “there is no reason for a court
deciding an ineffective assistance claim to approach the inquiry in the same order or even to
address both components of the inquiry if the defendant makes an insufficient showing on
one”).
       12
            See CP § 8-301(g) (petitioner has burden of proof).

                                                19
creates a “substantial or significant possibility” that “verdict of the trier of fact would have

been affected”).13

       As will become apparent, the key distinction here is between the “performance”

element of a Strickland claim and the “due diligence” element of an actual innocence claim.

To further understand “due diligence,” we must look to decisional law interpreting

Rule 4-331, the rule governing motions for new trial. See Keyes v. State, 215 Md. App. 660,

669 (2014). That rule states in part:14




       13
         The second element (“prejudice” in Strickland, “persuasiveness” in Yorke) is
essentially the same in both types of claim. Compare Strickland, 466 U.S. at 694 (“The
defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”) with
CP § 8-301(a)(1); see Bowers v. State, 320 Md. 416, 426-27 (1990) (explaining that Yorke
standard and Strickland prejudice standard are substantially the same).
       14
         The current version of Rule 4-331(a) is identical to the version in effect at the time
of Seward’s trial and direct appeal. Rule 4-331(c) has been amended a number of times since
then but, in relevant part, is substantially similar to the version then in effect. At the time of
Seward’s trial and direct appeal, Rule 4-331(c) provided:

               (c) Newly Discovered Evidence. The court may grant a new
               trial or other appropriate relief on the ground of newly
               discovered evidence which could not have been discovered by
               due diligence in time to move for a new trial pursuant to section
               (a) of this Rule:
                                             ***
                       (2) in the circuit courts, on motion filed within
                       one year after its imposition of sentence or its
                       receipt of a mandate issued by the Court of
                       Appeals or the Court of Special Appeals,
                       whichever is later.

                                                20
              (a) Within ten days of verdict. On motion of the defendant
              filed within ten days after a verdict, the court, in the interest of
              justice, may order a new trial.

                                             ***

              (c) Newly Discovered Evidence. The court may grant a new
              trial or other appropriate relief on the ground of newly discovered
              evidence which could not have been discovered by due diligence
              in time to move for a new trial pursuant to section (a) of this
              Rule:

                      (1) on motion filed within one year after the later
                      of (A) the date the court imposed sentence or (B)
                      the date the court received a mandate issued by the
                      final appellate court to consider a direct appeal
                      from the judgment or a belated appeal permitted as
                      post conviction relief[.]

                                             ***

       In Argyrou v. State, 349 Md. 587 (1998), the Court of Appeals stated that paragraph (c)

of that rule “provides for the grant of a new trial, or other appropriate relief, on the basis of

newly discovered evidence, but only if the prescribed requirements are met.” Id. at 600. “To

qualify as ‘newly discovered,’” explained the Court, the “evidence must not have been

discovered, or been discoverable by the exercise of due diligence, within ten days after the

jury has returned a verdict,” that is, within the time limit imposed by paragraph (a) of the same

rule. Id. at 600-01 (footnote omitted).

       Then, in explaining what constitutes “due diligence,” the Court stated that, “as used

in Maryland Rule 4-331(c), ‘due diligence’ contemplates that the defendant act reasonably and

in good faith to obtain the evidence, in light of the totality of the circumstances and the facts

                                               21
known to him or her.” Id. at 605. The Court analogized the “due diligence” required of a

defendant, in filing a motion for new trial, to the duty to investigate, imposed upon a civil

litigant, who files an action after the statute of limitations appears to have expired, but who

attempts to invoke the “discovery rule” to avoid that limitation, observing that “the statute of

limitations is activated based on actual knowledge, that is, express cognition, or awareness

implied from

               ‘knowledge of circumstances which ought to have put a person
               of ordinary prudence on inquiry (thus, charging the individual)
               with notice of all facts which such an investigation would in all
               probability have disclosed if it had been properly pursued. . . . In
               other words, a [person] cannot fail to investigate when the
               propriety of the investigation is naturally suggested by
               circumstances known to him; and if he neglects to make such
               inquiry, he will be held guilty of bad faith and must suffer from
               his neglect.’”

Id. at 603 (quoting Poffenberger v. Risser, 290 Md. 631, 636 (1981)).15

       In comparing the two standards, we observe that, under the Strickland “performance”

standard, trial counsel is presumed to have rendered “reasonable professional assistance” and

need not, as a general rule, pursue any particular strategy, trial tactic, or defense theory.

Harrington v. Richter, 562 U.S. __, 131 S. Ct. 770, 787-88 (2011); see id. at 789 (“Rare are

the situations in which the ‘wide latitude counsel must have in making tactical decisions’ will



       15
        The role played by “due diligence” in adjudicating claims of newly discovered
evidence cannot be overstated. In Love v. State, 95 Md. App. 420, cert. denied, 331 Md. 480
(1993), we held that even an otherwise meritorious motion for new trial, on the ground of
newly discovered evidence, was properly denied because the defendant failed to exercise due
diligence in pursuing such a motion. Id. at 423, 434-35.

                                               22
be limited to any one technique or approach.”) (quoting Strickland, 466 U.S. at 689). In

contrast, under the “due diligence” standard, there is no presumption that trial counsel has

acted diligently; rather, the burden is on the petitioner to show that his counsel acted with due

diligence. Argyrou, 349 Md. at 609. Moreover, to satisfy “due diligence,” trial counsel has

an affirmative obligation—to make a reasonable and good faith attempt to obtain the evidence

at issue. Id. at 605. In short, the mere fact that trial counsel was found not to have performed

deficiently under Strickland does not necessarily mean that he has also satisfied “due

diligence” under Argyrou.

       Turning now to the matter before us, we note that the actual innocence court found that

the payroll records, provided by Seward’s employer, Ms. Stamathis, created a “substantial

possibility that the result of the trial would have been different,” given that the “State’s case

was solely the testimony of a single eye-witness”; that there “was no forensic evidence

bolstering the identification” or tying Seward to the rape; that the victim “did not remember

her attacker having” either a mustache or a beard (though it was, according to the court below,

“undisputed” that, at the time of the crimes, Seward did have both a mustache and a beard);

that at least some of the latent fingerprints recovered from the crime scene were from an

“unknown” person; and that “the Defense, State, and [trial] Judge recognized the importance

of the employment records because all three requested that Ms. Stamathis return home and

search for the records and communicate if she found them.”




                                               23
       Although the State contends that the actual innocence court clearly erred in finding that

the purported “newly discovered evidence” created a “substantial possibility that the result of

the trial would have been different,” we shall assume, without deciding, that the “newly

discovered evidence” met this statutory requirement. That is because, as we shall explain, the

purported “newly discovered evidence” failed, in any event, to satisfy the second statutory

prong, namely, that it “could not have been discovered in time to move for a new trial under

Maryland Rule 4-331.” CP § 8-301(a)(2).

       In addressing this “due diligence” issue, the circuit court considered the findings of the

postconviction court. It summarized those findings as follows:

                     [Seward] urged the Post Conviction Judge to find that trial
              counsel was ineffective for failure to procure the employment
              records [from Ms. Stamathis] at trial. [The postconviction court]
              did not so find. In an opinion dated January 25, 1999, [the
              postconviction court] stated that trial counsel did everything he
              could to get the records to court. The witness disregarded the
              request of the State’s Attorney and the [trial judge] to look for
              them and return with the employment records.                  The
              [postconviction court] found that short of a Search Warrant,
              which [trial] counsel could not have procured, there was no way
              to obtain the records. For that reason, the [postconviction court]
              denied the Petition for Post Conviction [relief].

       The circuit court then, apparently unaware of the distinction between “due diligence”

(the standard under the actual innocence statute, CP § 8-301) and “incompetence under

prevailing professional norms” (the standard applicable to Seward’s postconviction claim of

ineffective assistance), and believing that it was “bound” by the postconviction court’s

findings, “conclude[d] that [trial] counsel could [not] have done anything else to obtain” the



                                               24
employment records from the witness, Ms. Stamathis. It therefore held that trial counsel had

acted with “‘due diligence’ to obtain the employment records.” 16

       The circuit court erred in so holding, employing the wrong standard, that is, whether

trial counsel had demonstrated “incompetence under ‘prevailing professional norms,’”

Richter, supra, 562 U.S. at __, 131 S. Ct. at 788 (quoting Strickland, 466 U.S. at 690), as it

adopted the postconviction court’s finding that Seward’s trial counsel had not performed

deficiently under Strickland and then held that this finding compelled, in turn, the conclusion

that trial counsel had also satisfied the “due diligence” required under Rule 4-331(c) and

CP § 8-301. As we have previously explained at some length, for trial counsel to pass the

Strickland test, his performance need only exceed the low bar of “incompetence under

prevailing professional norms,” whereas, for trial counsel to satisfy the “due diligence”



       16
         The court also “independently” found that trial counsel “was unaware of what” those
records would have shown and that it could “conceive of no mechanism whereby [trial
counsel] could have obtained the records within the ten days he had to file” a motion for new
trial under Rule 4-331(a). This purported “independent” finding was clearly erroneous, for
two reasons.

        First, it presumed that trial counsel had to have actual knowledge of what Ms.
Stamathis’s records would have disclosed, when due diligence charged him “with notice of
all facts which [a reasonable] investigation would in all probability have disclosed if it had
been properly pursued.” Argyrou, 349 Md. at 603 (quoting Poffenberger, supra, 290 Md.
at 636). Given Ms. Stamathis’s testimony at Seward’s trial, a “person of ordinary prudence”
would have undertaken such an investigation. Id. (quoting Poffenberger, 290 Md. at 636).

       And second, the actual innocence court itself recognized that there was a “mechanism
whereby [trial counsel] could have obtained the records within the ten days he had to file”
a motion for new trial under Rule 4-331(a),” namely a subpoena duces tecum, but he never
pursued that mechanism.

                                              25
demanded by Rule 4-331(c) and the actual innocence statute, CP § 8-301, his performance

must meet the different (and not entirely overlapping) standard of acting “reasonably and in

good faith to obtain the evidence, in light of the totality of the circumstances and the facts

known to him.” Argyrou, 349 Md. at 605.

       The decision whether to grant a petition for writ of actual innocence lies within the

discretion of the circuit court, see Douglas, supra, 423 Md at 188; Keyes, supra, 215 Md.

App. at 669-70 & n.6, but “an exercise of discretion based upon an error of law is an abuse

of [that] discretion” and usually requires reversal. Bass v. State, 206 Md. App. 1, 11 (2012)

(citation and quotation omitted). Given the imposition by the court below of the wrong

standard, we therefore shall reverse. Although, ordinarily, we remand so that the circuit court

can exercise its discretion under the correct legal standard, the facts were sufficiently

developed below that a remand for further proceedings is unwarranted.

       It is clear that Seward is not entitled to the relief he sought below, because the

allegedly “newly discovered evidence,” that is, the handwritten payroll records prepared by

Ms. Stamathis, were known, as a result of her testimony at Seward’s trial, to have existed

before and at the time of trial. Those records would have purportedly verified her subsequent

exculpatory testimony, at the postconviction and actual innocence proceedings, where she

asserted that it would have been “impossible” for Seward to have left work at the time the

crimes were committed. Although Seward insists that, at the time of trial, it was not known

whether Ms. Stamathis could have found those records, nor whether they would have been



                                              26
exculpatory, that degree of uncertainty does not excuse his trial counsel’s failure to make any

attempt to compel their production. Her trial testimony “put a person of ordinary prudence”

on inquiry notice that the records existed and were, as later confirmed, exculpatory. Argyrou,

supra, 349 Md. at 603 (quoting Poffenberger, supra, 290 Md. at 636).

       Seward’s trial counsel nonetheless made no effort during or even after trial to locate

the records in question nor did he seek a court order to compel their production by Ms.

Stamathis. In sum, trial counsel made no reasonable and good faith effort to procure Ms.

Stamathis’s payroll records. The records, therefore, do not qualify as “newly discovered

evidence.” Id. at 600-01 & n.9; Love v. State, 95 Md. App. 420, 430, cert. denied, 331 Md.

480 (1993).

       Nor do we agree with the assertion of the court below that the only option available to

trial counsel was a search warrant. There is no reason trial counsel could not have requested

a subpoena duces tecum17 requiring Ms. Stamathis to produce (or at least attempt to produce)

her payroll records. Moreover, as Ms. Stamathis acknowledged during the hearing held on

Seward’s postconviction petition (the transcript of which is part of the record in this case), if

she had received a court order, at the time of Seward’s trial, to search her records, she would

“had to have done it,” leading us to conclude that it would have been feasible to raise a claim

of newly discovered evidence in time to move for a new trial under Rule 4-331(a). If trial



       17
         Inexplicably, during one of the hearings held on Seward’s actual innocence petition,
the circuit court recognized that trial counsel could have taken this action but did not,
remarking, “[Defense counsel] could do a subpoena duces tecum, I suppose.”

                                               27
counsel had requested the court to issue a subpoena duces tecum, those records probably

would have been produced at trial or at least within the ten-day period, following trial, for

filing a motion for new trial under Rule 4-331(a).

       There is yet another reason Seward’s claim fails. Even if we were to assume that

Seward’s trial counsel, acting with due diligence, could not have procured Ms. Stamathis’s

payroll records in time to move for a new trial under Rule 4-331(a), it was still possible (under

that assumption) to file a motion for new trial on the ground of newly discovered evidence

under Rule 4-331(c). Trial counsel could have filed the latter motion at any time until one

year after the mandate of this Court was received in the Baltimore County circuit court upon

the conclusion of Seward’s direct appeal in 1986, or, in other words, until July 1, 1987. But

Seward’s trial counsel failed to do so. Moreover, Seward offers no explanation as to why he

did nothing to procure Ms. Stamathis’s payroll records until 1996, nine years after that

deadline. That failure is fatal to his claim. See Jackson v. State, 216 Md. App. 347, 365-66

(finding lack of due diligence where trial counsel had failed, at any time prior to one year after

mandate was issued in direct appeal, to investigate educational background of State’s expert

witness who subsequently was found to have perjured himself as to his credentials), cert.

denied, 438 Md. 740 (2014).

       Consequently, we hold that Seward’s trial counsel failed to exercise the “due

diligence” required under the actual innocence statute, CP § 8-301. Because Seward has

failed to present “newly discovered evidence” that “could not have been discovered in time



                                               28
to move for a new trial under Maryland Rule 4-331,” his petition for writ of actual innocence

must be denied.

                                          JUDGMENT OF THE CIRCUIT COURT FOR
                                          BALTIMORE COUNTY VACATED. CASE
                                          REMANDED WITH INSTRUCTIONS TO
                                          REINSTATE CONVICTIONS.     COSTS
                                          ASSESSED TO APPELLEE.




                                             29
