Wendell Griffin v. State of Maryland, No. 484, September Term 2018. Opinion by
Beachley, J.

CORAM NOBIS—SIGNIFICANT COLLATERAL CONSEQUENCES

CORAM NOBIS—WAIVER

       Appellant was convicted of first-degree murder and a related weapons charge in
1982. In 2012, appellant filed a petition for post-conviction relief as well as a petition for
writ of actual innocence, alleging that the State committed numerous Brady v. Maryland,
373 U.S. 83 (1963) violations in securing his convictions. At the hearing on these petitions,
appellant and the State reached an agreement whereby appellant would receive a time-
served sentence in exchange for dismissing his post-conviction and actual innocence
claims. Consequently, the court never ruled on appellant’s two petitions.

       In 2013, appellant filed a § 1983 action in the United States District Court for the
District of Maryland against the Baltimore Police Department and three of its detectives.
The District Court dismissed appellant’s claim, and the Fourth Circuit affirmed, holding
that under Heck v. Humphrey, 512 U.S. 477 (1994), appellant could not pursue his § 1983
claim until he invalidated his State conviction.

       Appellant then attempted to vacate his convictions by filing a petition for coram
nobis relief based on the alleged Brady violations. The circuit court denied appellant’s
petition, and appellant appealed.

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

        Here, appellant’s inability to pursue a federal civil claim for unliquidated damages
does not constitute a significant collateral consequence under coram nobis law.
Additionally, appellant waived the grounds underlying his coram nobis petition because
they were withdrawn in 2012 when he agreed to a modification of sentence in exchange
for his dismissal of those claims.
Circuit Court for Baltimore City
Case Nos. 18120316; 18120317

                                                                                                REPORTED

                                                                                   IN THE COURT OF SPECIAL APPEALS

                                                                                             OF MARYLAND

                                                                                                  No. 484

                                                                                           September Term, 2018


                                                                                           WENDELL GRIFFIN

                                                                                                     v.

                                                                                         STATE OF MARYLAND


                                                                                      Wright,
                                                                                      Beachley,
                                                                                      Wilner, Alan M.
                                                                                        (Senior Judge, Specially Assigned),

                                                                                                     JJ.


                                                                                           Opinion by Beachley, J.


                                                                                      Filed: August 29, 2019




 Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.



                            2019-08-29 15:47-04:00




Suzanne C. Johnson, Clerk
       On October 25, 2016, appellant Wendell Griffin filed a Petition for Writ of Error

Coram Nobis and Request for Hearing in the Circuit Court for Baltimore City, seeking to

vacate his 1982 convictions for first-degree murder and openly carrying a deadly weapon.

The circuit court held a hearing on appellant’s petition on November 15, 2017. In an

opinion and order dated April 3, 2018, the circuit court denied appellant’s petition.

Appellant timely appealed, and presents two issues for our review,1 which we have

rephrased as follows:

   1. Does the inability to file a civil claim in federal court constitute a significant
      collateral consequence for purposes of coram nobis relief?

   2. Did appellant waive his right to seek coram nobis relief?

       We hold that appellant’s inability to file a civil rights claim does not satisfy the

“significant collateral consequences” element required for coram nobis relief. In the

alternative, we hold that appellant waived the grounds underlying his coram nobis petition.

Accordingly, we affirm.

                 FACTUAL AND PROCEDURAL BACKGROUND

       On March 8, 1982, a jury convicted appellant of the first-degree murder of James

Wise, III, and of openly carrying a deadly weapon with intent to injure. Appellant received

a life sentence for first-degree murder, and a consecutive sentence of three years for the


       1
         In his brief, appellant raised a third argument—that the coram nobis court erred in
refusing to estop the State from asserting waiver and/or res judicata. At oral argument,
appellant appeared to concede that this estoppel argument lacked merit. In his opening
brief, appellant treated the State and the police officers of the Baltimore Police Department
as synonymous for purposes of his estoppel argument. In his reply brief, however,
appellant candidly conceded: “The State, . . . has not been and will not be a party to
[appellant’s] § 1983 proceedings[. . . .]” Accordingly, we decline to address this issue.
weapon conviction. A panel of this Court affirmed appellant’s convictions in an unreported

opinion, and the Court of Appeals denied appellant’s petition for certiorari. Several years

later, in the 1990s, appellant unsuccessfully sought both Maryland state post-conviction

relief in the Circuit Court for Baltimore City and federal habeas corpus relief in the United

States District Court for the District of Maryland.2

       On June 10, 2010, appellant filed a pro se petition seeking post-conviction DNA

testing pursuant to Md. Code (2001, 2008 Repl. Vol.), § 8-201 of the Criminal Procedure

Article (“CP”).3 Pursuant to that filing, appellant, through counsel, requested documents

from the Baltimore Police Department (“BPD”) regarding its investigation of appellant for

the murder of Mr. Wise. As a result of that document request, in 2011 appellant learned

that the BPD had withheld exculpatory evidence consisting of photo arrays, witness

statements, and chain of custody documents. On February 2, 2012, appellant filed a motion

for leave to reopen his post-conviction case, seeking post-conviction relief based on the

newly discovered evidence. Four days later, he filed a petition for writ of actual innocence

pursuant to CP § 8-301.4 Both petitions alleged that the State had committed numerous




       2
         The record does not reveal the bases for appellant’s post-conviction and habeas
allegations.
       3
        The General Assembly has since amended this statute. See Md. Code (2001, 2018
Repl. Vol.), § 8-201 of the Criminal Procedure Article (“CP”). Those amendments are not
relevant to this appeal.
       4
         The General Assembly has also since amended this statute, but the amendments
are not relevant to this appeal.

                                             2
Brady5 violations.

       The parties appeared in the circuit court before Judge Gale E. Rasin on May 23,

2012, for a hearing on the two petitions. Prior to the court ruling on the merits of the Brady

violations, however, the parties reached an agreement whereby appellant would withdraw

his claims in consideration for a time-served sentence. The State told the court,

       [T]he State is not convinced that there were, in fact, any Brady violations.
       And if the State were convinced the State ethically would be bound to
       concede to the granting of a new trial. The State does recognize that the
       Brady allegations are plausible enough that . . . after discussing the matters
       with both [appellant] through his attorney, the State and [appellant] have
       agreed to a -- the State will concede to a resentencing on this matter.

The State went on to explain that the matter had “been discussed” with “all levels of the

State’s Attorney’s Office,” and that this particular course of action would “ensure that

[appellant] for the rest of his life will remain convicted for the murder of James Wise.”

(Emphasis added). Appellant’s counsel responded that appellant “maintain[ed] his actual

innocence of these convictions but [had] agreed to this resolution in the interest of moving

forward and obtaining his freedom.” (Emphasis added). As we shall explain below, these

expressed considerations—the State’s intent that appellant remain convicted of James

Wise’s murder for the rest of his life, and appellant’s decision to accept a commuted

sentence rather than challenge the underlying convictions for Brady violations—play an

important role in resolving this appeal.


       5
         Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that “suppression by the
prosecution of evidence favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution”).

                                              3
       On November 13, 2013, nearly eighteen months after he was released from prison,

appellant filed a civil action in the United States District Court for the District of Maryland

pursuant to 42 U.S.C. §§ 1983 and 1988(b) against the BPD and three BPD detectives. 6

The district court dismissed appellant’s complaint, ruling that it was barred pursuant to

Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held that,

       in order to recover damages for allegedly unconstitutional conviction or
       imprisonment, or for other harm caused by actions whose unlawfulness
       would render a conviction or sentence invalid, a § 1983 plaintiff must prove
       that the conviction or sentence has been reversed on direct appeal, expunged
       by executive order, declared invalid by a state tribunal authorized to make
       such determination, or called into question by a federal court’s issuance of a
       writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that
       relationship to a conviction or sentence that has not been so invalidated is not
       cognizable under § 1983.

Id. at 486-87 (footnote omitted). As relevant here, Heck required appellant to have his

convictions “declared invalid by a [Maryland] state tribunal” before proceeding with his §

1983 action.

       Appellant appealed the district court’s decision to the Fourth Circuit. In Griffin v.

Balt. Police Dept., 804 F.3d 692, 699 (4th Cir. 2015), the Fourth Circuit affirmed the

dismissal of appellant’s claim. The Fourth Circuit noted that Maryland provides “many

avenues of post-conviction relief[,]” listing as examples petitions for writ of error coram

nobis and for writ of actual innocence, procedures which are in addition to direct appeals

and collateral review.     Id. at 698.   Nevertheless, the Fourth Circuit cautioned that


       6
        42 U.S.C. § 1983 permits a civil cause of action against those who, under color of
law, cause a citizen to be deprived of his or her constitutional rights. 42 U.S.C. § 1988(b)
allows such a plaintiff to also seek attorney’s fees.

                                              4
“[appellant] may or may not qualify for any or all of [those] remedies; that is for Maryland

to decide.” Id.

       Apparently heeding the Fourth Circuit’s suggestion, on October 25, 2016, appellant

filed his petition for writ of error coram nobis, which is the subject of this current appeal.

In the petition, appellant sought to vacate his convictions based on the same Brady

violations he alleged in his 2012 petitions for post-conviction relief and for writ of actual

innocence. As previously noted, the circuit court held a hearing on November 15, 2017.

In its memorandum opinion, the circuit court denied appellant’s petition, finding that he

failed to establish that he was suffering significant collateral consequences, and that

pursuant to the doctrine of res judicata, he waived his right to seek coram nobis relief. As

stated above, appellant timely appealed. We shall provide additional facts as necessary.

                                       DISCUSSION

       The Court of Appeals has noted that “[t]he essential nature of the writ of coram

nobis is that it is an ‘extraordinary remedy’ justified ‘only under circumstances compelling

such action to achieve justice.’” Hyman v. State, 463 Md. 656, 671 (2019) (internal

quotation marks omitted) (quoting State v. Smith, 443 Md. 572, 597 (2015)). Explaining

its purpose, the Court has stated that the writ of coram nobis

       is “available to raise fundamental errors in attempting to show that a criminal
       conviction was invalid under circumstances where no other remedy is
       presently available and where there were sound reasons for the failure to seek
       relief earlier.” Often, coram nobis relief is sought “years after the fact”:

              Very often in a criminal case, because of a relatively light
              sanction imposed or for some other reason, a defendant is
              willing to forego [sic] an appeal even if errors of a


                                              5
                 constitutional or fundamental nature may have occurred. Then,
                 when the defendant later learns of a substantial collateral
                 consequence of the conviction, it may be too late to appeal,
                 and, if the defendant is not incarcerated or on parole or
                 probation, he or she will not be able to challenge the conviction
                 by a petition for a writ of habeas corpus or a petition under the
                 Post Conviction Procedure Act.

Id. (citation omitted) (quoting Smith, 443 Md. at 598).

       Although the Court of Appeals has described the writ of error coram nobis as “an

ancient common law device,” Smith, 443 Md. at 623, no Maryland court had articulated

the standard of appellate review until State v. Rich, 454 Md. 448 (2017). There, for the

first time, the Court of Appeals held,

       Because of the “extraordinary” nature of this remedy, [the Court of Appeals]
       deem[s] it appropriate for appellate courts to review the coram nobis court’s
       decision to grant or deny the petition for abuse of discretion. However, in
       determining whether the ultimate disposition of the coram nobis court
       constitutes an abuse of discretion, appellate courts should not disturb the
       coram nobis court’s factual findings unless they are clearly erroneous, while
       legal determinations shall be reviewed de novo.

Id. at 470-71.

       Turning to the substantive requirements of the writ, a petitioner must satisfy five

conditions before a court may grant relief:

       [1] “the grounds for challenging the criminal conviction must be of a
       constitutional, jurisdictional, or fundamental character”; [2] the petitioner
       has the burden to overcome the “presumption of regularity” in the criminal
       case; [3] “the coram nobis petitioner must be suffering or facing significant
       collateral consequences from the conviction”; [4] the issue must not be
       waived; and [5] there may be no other “statutory or common law remedy [ ]
       then available.”

Hyman, 463 Md. at 672 (quoting Smith, 443 Md. at 599).



                                                6
       In this case, we shall hold that appellant failed to satisfy the third and fourth

conditions for coram nobis relief: he is not suffering significant collateral consequences,

and he has waived the grounds underlying the basis for the petition. We first explain that

appellant’s inability to file his § 1983 claim does not constitute a significant collateral

consequence. We shall then discuss how appellant waived the underlying grounds for his

coram nobis petition when he abandoned his Brady violation claims in 2012 in exchange

for a time-served sentence that afforded him an immediate release from prison.

       I.      The Inability to Initiate a Civil Suit is Not a Significant Collateral
               Consequence

       Appellant first argues that his inability to pursue his claim in federal court

constitutes a significant collateral consequence in the context of coram nobis relief. Instead

of citing to caselaw to support his position that the inability to file a civil suit constitutes a

significant collateral consequence, appellant merely asserts that, “given the extraordinary

procedural history of this case, this Court should find that [appellant] satisfies the

significant collateral consequence test.”

       We forgive appellant’s failure to cite applicable Maryland caselaw.               At oral

argument, counsel for both appellant and the State agreed that they were aware of no case

in the country—state or federal—holding that the inability to pursue a civil claim

constitutes a “significant collateral consequence” in the coram nobis context. In Maryland,

appellate courts have only explicitly acknowledged that subsequent enhanced sentences 7


       7
        See, e.g., Jones v. State, 445 Md. 324, 330 (2015); Coleman v. State, 219 Md. App.
339, 347 (2014), cert. denied, 441 Md. 667 (2015); Graves v. State, 215 Md. App. 339,

                                                7
and deportation proceedings8 may constitute “significant collateral consequences.” Due to

the dearth of authority in Maryland, we turn to the federal circuits for guidance.

       In Fleming v. United States, 146 F.3d 88 (2d Cir. 1998), the United States Court of

Appeals for the Second Circuit was tasked with determining whether Fleming suffered “a

continuing legal consequence of his conviction because he [was] ‘disabled from

employment in a variety of financial jobs.’” Id. at 90.9 Specifically, Fleming alleged that

his criminal conviction prohibited him from obtaining a license as a securities broker. Id.

In rejecting Fleming’s argument, the Second Circuit provided two examples of “continuing

legal consequences”: “where a prior conviction deprives a petitioner of his right to vote

under state law, or serves as an ‘aggravating factor’ in sentencing for a subsequent

offense[.]”   Id. (citations omitted).   Contrasting these examples of continuing legal

consequences, the court stated that “the mere ‘desire to be rid of the stigma’ of a conviction



345 (2013), cert. dismissed, 441 Md. 61 (2014); State v. Castellon-Gutierrez, 198 Md. App.
633, 637 (2011); Gross v. State, 186 Md. App. 320, 323, cert. denied, 410 Md. 560 (2009);
Abrams v. State, 176 Md. App. 600, 606 (2007); Parker v. State, 160 Md. App. 672, 687-
88 (2005); Pitt v. State, 144 Md. App. 49, 52, cert. denied, 369 Md. 660 (2002); State v.
Hicks, 139 Md. App. 1, 5 (2001).
       8
        See, e.g., Smith, 443 Md. at 584-85; Miller v. State, 435 Md. 174, 179-80 (2013);
Rivera v. State, 409 Md. 176, 193 (2009); Guardado v. State, 218 Md. App. 640, 642-43
(2014).
       9
         We note that the “continuing legal consequence,” element roughly corresponds to
Maryland’s requirement of “significant collateral consequences.” See Fleming, 146 F.3d
at 90 (“The requirement that the petitioner demonstrate continuing legal consequences
from his conviction derives from the Supreme Court’s observation in [United States v.
Morgan, 346 U.S. 502, 512-513 (1954)] that ‘[a]lthough the term has been served, the
results of the conviction may persist. Subsequent convictions may carry heavier penalties,
civil rights may be affected.’”).

                                              8
is not enough.” Id. (citing United States v. Nat’l Plastikwear Fashions, 368 F.2d 845, 846

(2d Cir. 1966)). Turning to Fleming’s case, the court noted that Fleming failed to present

any evidence showing that he had sought and been denied licensure as a securities broker,

that he had ever been previously employed in such a capacity, or that he could obtain such

employment, but for his conviction. Id. at 91. Noting that Fleming’s “claim [was] purely

speculative,” the court affirmed the denial of his petition. Id. Although the Fleming court

did not provide an elaborate explanation, we discern that, while abrogation of voter rights

or a subsequent enhanced sentence will constitute a significant collateral consequence,

speculative employment opportunities do not.

       Several cases from the Seventh Circuit provide further guidance on the issue of

significant collateral consequences. In United States v. Keane, 852 F.2d 199, 200 (7th Cir.

1988), cert. denied, 490 U.S. 1084 (1989), Keane sought coram nobis relief to vacate his

conviction and receive reimbursement for a $27,000 criminal fine he paid following his

conviction. Id. To support his coram nobis petition, Keane relied on the fact that thirteen

years after his conviction, the United States Supreme Court in McNally v. United States,

483 U.S. 350 (1987)10 held that the mail fraud statute—the statute used to convict Keane—

no longer criminally prohibited Keane’s conduct. Id.

       In affirming the denial of his petition, the Seventh Circuit first explained that a

coram nobis petitioner “must demonstrate that the judgment of conviction produces




       10
          Our survey of the relevant cases revealed that the McNally decision spawned a
flurry of federal coram nobis litigation.

                                            9
lingering civil disabilities (collateral consequences). He also must demonstrate that the

error is the type of defect that would have justified relief during the term of imprisonment.”

Id. at 203.

       The court noted that significant collateral consequences “include loss of the rights

to vote, hold occupational licenses (including law licenses), and bear arms; criminal

convictions also may lead to enhanced penalties for future offenses. These future effects

may call for a fresh look at the conviction.” Id. The court contrasted these consequences

with those that do not justify coram nobis relief:

       Criminal convictions sometimes produce financial penalties and diminish the
       reputation of the defendant, but these do not entail continuing legal effects
       of a judgment. Civil judgments frequently have the same effects, which do
       not authorize indefinite relitigation. Many courts therefore have held that
       coram nobis may be employed if and only if the petitioner is suffering civil
       disabilities unique to criminal convictions.

Id.

       Turning to Keane’s case, the court noted that “Keane was amerced $27,000, which

gives him a stake sufficient to produce a ‘case or controversy,’ but the fine is no different

from the award of damages in civil litigation. It is a sunk cost rather than a continuing

disability producing additional injury as time passes.” Id. at 204 (emphasis added). The

court went on to state,

               We do not doubt that the return of a fine is permissible relief if a writ
       in the nature of coram nobis is otherwise justified. We hold only that the
       prospect of getting money back is not enough by itself to support belated
       review. . . . Our conclusion that financial stakes do not adequately distinguish
       this from a routine civil matter makes it unnecessary to explore limits on the
       restitution of criminal fines[. . . .]



                                              10
Id. (emphasis added).      In short, the court held that the mere prospect of obtaining

reimbursement of a criminal fine was insufficient to warrant coram nobis relief. Id.

       Another Seventh Circuit case, United States v. Bush, 888 F.2d 1145 (7th Cir. 1989),

is instructive. There, in another McNally case, Bush sought coram nobis relief because his

conviction under the mail fraud statute “prevented him from holding high-visibility public

relations jobs, which the government maintained [was] a reputational injury rather than a

civil disability.” Id. at 1148. The district court granted Bush’s petition, reasoning that the

inability to obtain a job comparable to the one held at the time of conviction constituted a

“‘civil disability’ sufficient to support issuance of the writ.” Id.

       On appeal, the Seventh Circuit reversed the district court, holding that the “inability

to obtain high-visibility PR work is not a ‘civil disability[.]’” Id. at 1149. Rather, the court

concluded that Bush’s alleged civil disability was merely reputational in nature, stating,

              Bush [was] under no legal disability of which a court may relieve him.
       Any obstacle in the path of his preferred career [was] of private origin.
       Although the conviction injure[d] his reputation, which in turn reduce[d] his
       prospects for high-profile employment, the facts would remain no matter
       what a court did.

Id. Following its reasoning in Keane that a significant collateral consequence must be

unique to a criminal conviction, the court additionally noted that “Unwillingness to hire

someone for mouth-watering jobs is not a legal disability ‘unique to criminal convictions.’”

Id. at 1150 (quoting Keane, 852 F.2d at 203).11 Accordingly, Bush’s inability to obtain a




       11
          The Seventh Circuit did note, however, that “Liberty of occupation receives
greater protection than the choice of a job within a profession.” Bush, 888 F.2d at 1150.

                                              11
coveted job did not constitute a significant collateral consequence. Id. at 1150.

       In United States v. Craig, 907 F.2d 653, 654, 657 (7th Cir. 1990), cert. denied, 500

U.S. 917 (1991), yet another McNally case, the Seventh Circuit again considered the scope

of “lingering civil disabilities” for multiple petitioners. Acknowledging the developing

coram nobis jurisprudence from Keane and Bush, the Seventh Circuit stated,

       Considering . . . systemic interests in finality, we have rejected coram nobis
       petitions except where there is a concrete threat that an erroneous
       conviction’s lingering disabilities will cause serious harm to the petitioner.
       Thus, the types of disabilities sufficient to justify coram nobis relief can be
       broken down into three elements. First, the disability must be causing a
       present harm; it is not enough to raise purely speculative harms or harms
       that occurred completely in the past. Second, the disability must arise out of
       the erroneous conviction. Third, the potential harm to the petitioner must be
       more than incidental.

Id. at 658 (emphasis added) (footnote omitted). As an example, the court cited the Supreme

Court’s opinion in United States v. Morgan, 346 U.S. 502, 503-04 (1954), where the

petitioner faced enhanced criminal sentencing as a result of a prior conviction. Craig, 907

F.2d at 658. The Seventh Circuit stated that “The three elements of a civil disability all

apply to a coram nobis petitioner serving an enhanced sentence because of an allegedly

erroneous conviction in another jurisdiction.” Id. The court then used this lens to review

the coram nobis petitions in Craig.

       The court initially noted that the “most compelling argument” was that one

petitioner sought the return of his license to practice law. Id. at 659. Acknowledging that




In other words, the right to work implicates greater collateral consequences than the mere
desire to obtain a specific job.

                                             12
Keane “suggested that ‘this sort of civil disability could support the issuance of the writ,’”

the court nevertheless rejected the argument because that petitioner had “not shown either

that his conviction [was] a direct cause of his disbarment or that he [had] a present desire

to apply for reinstatement to the bar.” Id. (quoting Keane, 852 F.2d at 203).

       Two other petitioners sought the writ because the vacation of their convictions

“would entitle them to receive legislators’ pension benefits taken from them upon

conviction.” Id. at 660. The Seventh Circuit rejected entitlement to pension benefits as a

significant collateral consequence. First, the court noted that the petitioners’ “removal

from the pension plan occurred entirely in the past. As . . . noted above, a writ of error

coram nobis is inappropriate where the civil disabilities do not threaten present harm.” Id.

Next, echoing Keane’s language regarding criminal fines, the court stated that “removal

from the pension plan is a sunk cost, much like a criminal fine.” Id. The court analogized

the loss of pension rights to recovery of a fine, concluding that “Just as the possibility of

recovering a fine [was] insufficient to justify issuance of the writ, so [was] the possibility

of recovering lost pension benefits.” Id. (citation omitted).

       The final case we cite from the Seventh Circuit is Howard v. United States, 962 F.2d

651, 652 (7th Cir. 1992). In this McNally case, following his convictions for fraud in 1985,

“Howard voluntarily relinquished his law license in Indiana . . . to avoid an adversarial

disciplinary hearing.” Id. When McNally decriminalized Howard’s actions, he sought

coram nobis relief, essentially alleging three civil disabilities: 1) loss of his law license; 2)

inability to possess a firearm; and 3) potential international travel restrictions. Id. at 653.



                                               13
       In addressing Howard’s claims, the court first noted that “the loss of the right to

hold occupational licenses, including law licenses, is the type of civil disability which could

support issuance of a writ of error coram nobis.” Id. at 654. Nevertheless, the court

observed that “Howard’s current inability to practice law did not arise from his conviction.

He voluntarily surrendered his license to practice law in Indiana sometime after his

conviction.” Id. Although Howard insisted that the loss of his license “was inevitable . . .

because a felony conviction in Indiana ‘virtually’ guarantees disbarment[,]” the court noted

that “disbarment is not automatic in such instances.” Id. Indeed, “None of the disciplinary

rules or cases cited by Howard support[ed] the contention that he would have been

automatically disbarred specifically on the basis of the crimes for which he was convicted.”

Id. Because the Indiana Supreme Court could have merely suspended Howard’s license

rather than disbar him, the link between his civil disability (the inability to practice law)

and his conviction was “more tenuous than in Craig.” Id. Additionally, the Seventh Circuit

held that, because there was no evidence in the record of the Indiana Supreme Court’s

decision on his application for reinstatement to the bar, Howard “failed to demonstrate that

his inability to practice law . . . caused him a serious present harm.” Id. The court

concluded that, “Because Howard’s inability to practice law did not arise from his

conviction and [was] not causing him a ‘present harm,’ coram nobis relief [was] not

justified.” Id. at 655.

        Turning to Howard’s inability to possess a firearm and his alleged travel

restrictions, the Seventh Circuit noted that “the loss of the right to bear arms could be the



                                              14
type of civil disability conferring coram nobis jurisdiction[,]” but summarily rejected this

argument because “Howard ha[d] presented no evidence that this disability [was] causing

him present harm.” Id. Regarding the travel restrictions, the court noted that Howard’s

concerns were speculative, and, in any event, “the loss of the right to travel to a foreign

country does not appear to be a civil disability of the type justifying the issuance of a writ

of error coram nobis.” Id. Accordingly, the court rejected these contentions.

       For full transparency, we note that the Ninth Circuit presumes that significant

collateral consequences always result from a criminal conviction. Unlike the other federal

circuits, the Ninth Circuit has “repeatedly reaffirmed the presumption that collateral

consequences flow from any criminal conviction, and the government carries the burden

of disproving this presumption.” United States v. Walgren, 885 F.2d 1417, 1421 (9th Cir.

1989) (internal quotation marks omitted) (quoting Hirabayashi v. United States, 828 F.2d

591, 606 (9th Cir. 1987)). In Hirabayashi, the Ninth Circuit stated that “[its] own coram

nobis decisions . . . consistently apply the . . . ‘no possibility of any collateral legal

consequences’ test.” 828 F.2d at 606. However, given that a Maryland petitioner bears the

burden of proof in a coram nobis proceeding, see Skok v. State, 361 Md. 52, 78 (2000), and

because the Court of Appeals has characterized coram nobis as an “extraordinary remedy”

justified “only under circumstances compelling such action to achieve justice,” Hyman,

463 Md. at 671, we doubt that Maryland would adopt the Ninth Circuit’s expansive




                                             15
approach.12

       We conclude that appellant’s inability to pursue a civil claim does not constitute a

significant collateral consequence sufficient to warrant coram nobis relief. In our view,

appellant’s § 1983 claim for damages is far less compelling than the request for

reimbursement of a criminal fine or the reinstatement of lost pension rights, both of which

have been rejected by federal courts. See Keane, 852 F.2d at 204; see also Craig, 907 F.2d

at 660. We agree with the Keane court’s observation that financial losses alone are

insufficient to justify coram nobis relief. Moreover, appellant’s federal civil claim for

unliquidated damages is far too speculative to warrant the “extraordinary remedy”

contemplated by coram nobis law. Hyman, 463 Md. at 471. Thus, we hold that appellant’s

inability to pursue a federal civil claim does not constitute a significant collateral

consequence under Maryland coram nobis law.




       12
          In United States v. Mandel, 862 F.2d 1067, 1071 (4th Cir. 1988), cert. denied,
491 U.S. 906 (1989), a McNally case, the Fourth Circuit employed a unique approach.
There, former Maryland governor Marvin Mandel and other petitioners successfully
petitioned for coram nobis relief in the United States District Court. Id. at 1068.
       On appeal, the Fourth Circuit did not contemplate whether the petitioners
sufficiently alleged significant collateral consequences. Instead, the court relied on the
notion that coram nobis was appropriate “in order to achieve justice[,]” noting that the
petitioners had “appealed their cases at each stage of the proceeding.” Id. at 1074-75.
       Although the Mandel case provides minimal guidance on the issue of collateral
consequences, in Bereano v. United States, 706 F.3d 568, 576 (4th Cir. 2013), the Fourth
Circuit acknowledged that disbarment from the practice of law constituted “substantial
adverse consequences” for purposes of coram nobis relief, a view that would be consistent
with the Seventh Circuit’s jurisprudence.


                                            16
       II.    Appellant Waived the Grounds Underlying his Coram Nobis Petition

       Assuming arguendo that appellant’s inability to file suit qualified as a significant

collateral consequence, we would still affirm the circuit court’s denial of his petition for

coram nobis because he waived his grounds for coram nobis relief as articulated by the

Court of Appeals in Hyman. We explain.

       In his 2012 petitions for post-conviction relief and for writ of actual innocence,

appellant alleged numerous Brady violations in seeking to vacate his convictions.

According to appellant’s brief, at the May 23, 2012 hearing on those petitions, “Judge

Rasin stated that the court was inclined to grant [appellant’s] request for post-conviction

relief and grant him a new trial unless the parties, [appellant] and the State, reached an

agreement.” The coram nobis court’s April 2018 order echoed this notion: “Judge Rasin

indicated the court’s inclination to grant post conviction relief and order a new trial for

[appellant].”13 Despite the fact that Judge Rasin appeared ready to rule in his favor and

grant him a new trial, appellant instead agreed to withdraw his two petitions in exchange

for a time-served sentence that assured his release. Four years later, in his petition for writ

of error coram nobis, appellant raised those same Brady violations. Because appellant

abandoned his Brady violation claims in 2012, he waived them for purposes of his coram

nobis petition.


       13
         Despite both the coram nobis court’s and appellant’s assertions that Judge Rasin
was inclined to grant appellant a new trial, we see no support for that contention in the May
23, 2012 transcript. In a footnote in its brief, the State offers that, “[a]lthough Judge Rasin
may have made such a statement off the record in one of the meetings in chambers to which
she alluded, she did not make such a statement on the record at the May 23, 2012 hearing.”

                                              17
       The Court of Appeals recently addressed the issue of waiver in the context of coram

nobis. Hyman, 463 Md. 656. There, in January 2001, Hyman pleaded guilty to a third-

degree sex offense. Id. at 659. Pursuant to the plea agreement, the court sentenced Hyman

to probation and required him to register as a child sex offender. Id. at 660-61. Notably,

“no mention was made on the record of the plea and sentencing proceeding of the duration

of that registration period.” Id. at 661. In both April 2001 and May 2002, Hyman’s sex

offender registration form incorrectly indicated that he was only required to register

annually for ten years. Id. In June 2003, however, for the first time, Hyman’s registration

form correctly informed him that he would need to register for life. Id. at 661-62.

       In 2004, Hyman was convicted in federal court on unrelated drug charges and

sentenced to seventy-eight months imprisonment. Id. at 662. While imprisoned, Hyman

learned of a drug abuse program with an early release incentive. Id. Hyman’s status as a

sex offender, however, precluded his eligibility for the program. Id. Consequently, in

2006, Hyman, through a “jailhouse lawyer,” filed a coram nobis petition. Id. In his 2006

petition, Hyman alleged that: “(1) he received ineffective assistance of counsel before and

during the plea and sentencing proceeding, and (2) his plea of guilty to third degree sexual

offense was involuntary.” Id. Significantly, Hyman “did not directly complain about the

duration of his sex offender registration period.” Id. The circuit court denied Hyman’s

petition and his appeals became moot when the federal prison released him earlier than

expected due to changes in the Federal Sentencing Guidelines. Id. at 662-63.




                                            18
       In 2016, following changes in Maryland law regarding his sex offender registration,

Hyman filed a second petition for coram nobis.14 Id. at 664-65. In his 2016 petition,

Hyman claimed that, “as the result of counsel’s failure to advise him of the length of his

[sex offender] registration period[,]” his plea was involuntary and he had received

ineffective assistance of counsel. Id. at 665.

       The Court of Appeals held that Hyman waived his coram nobis allegations

stemming from the length of his sex offender registration. In reaching this conclusion, the

Court began its analysis by explaining that “‘Basic principles of waiver’ apply to coram

nobis proceedings and ‘the same body of law concerning waiver and final litigation of an

issue’ applies to coram nobis proceedings as applies to the [Uniform Post-Conviction

Procedure Act].” Id. at 672. Borrowing from the waiver analysis in post-conviction law,

the Court stated,

               The [Uniform Post-Conviction Procedure Act] provides that except
       where “special circumstances” exist and their existence is proved by a
       petitioner, “an allegation of error is waived when a petitioner could have
       made but intelligently and knowingly failed to make the allegation . . . on
       direct appeal . . . ; in a habeas corpus or coram nobis proceeding began by
       the petitioner; . . . or [ ] in any other proceeding that the petitioner began.” CP
       § 7-106(b). In other words, an allegation is waived if it “had not been raised
       at trial or in a previously-filed appeal, application for leave to appeal, or
       post-conviction petition.” Smith, 443 Md. at 601.

Id. (emphasis added). The Court also noted that,

       Although there is a “rebuttable presumption that the petitioner intelligently
       and knowingly failed to make the allegation” at a prior proceeding, CP § 7-
       106(b)(2), such a failure is not knowing if it was the “failure of counsel or

       14
          Ironically, a 2010 amendment to the law reduced Hyman’s sex offender
registration duration from “lifetime” to only twenty-five years. Hyman, 463 Md. at 664.

                                               19
       an unknowing petitioner to raise an issue,” Smith, 443 Md. at 603,
       (quoting Curtis v. State, 284 Md. 132, 139, (1978)) (emphasis added). The
       “special circumstances” excuse “only becomes pertinent” where the
       presumption is not rebutted. Id. (quoting Curtis, 284 Md. at 139).

Id. at 672-73. Put simply, the Court held that a petitioner waives an issue when he or she

could have raised that same issue at a prior proceeding. Id. Although there is a rebuttable

presumption that a petitioner has intelligently and knowingly waived the issue, the

existence of “special circumstances” may still excuse an intelligent and knowing waiver.

Id. at 672-73.15

       The Court further qualified the standards for waiver, explaining that the “intelligent

and knowing standard applies only to waiver of ‘fundamental constitutional rights,”

whereas non-fundamental rights are “governed by case law or any pertinent statutes or

rules[.]” Id. at 673 (quoting Smith, 443 Md. at 605).

       Turning to Hyman’s case, the Court recognized that Hyman’s claims of ineffective

assistance of counsel and an involuntary guilty plea implicated fundamental constitutional

rights, requiring the Court to apply the “intelligent and knowing” standard. Id. at 673.

Despite this higher standard, the Court nevertheless concluded that Hyman waived his

claims. In reaching its conclusion, the Court observed that

              In his 2006 petition, [Hyman] did not fail to raise either ineffective
       assistance of counsel or involuntary plea; rather, he raised both claims. What
       [Hyman] failed to raise in his prior petition was the particular
       consequence—the duration of his sex offender registration period—that he




       15
         The Court did not further elaborate on these “special circumstances” and none are
alleged in appellant’s case.

                                             20
       raises now as the ground underlying his two claims, and the question is
       whether he could have in 2006.
              Undoubtedly, the answer is “yes.” [Hyman] knew by 2006, or
       reasonably should have known, that his registration period was [for life].
       Indeed, the sex offender registration form he signed in 2003 reflected lifetime
       registration.

Id. at 676. By the time Hyman filed his 2006 coram nobis petition, he knew that he was

required to register as a sex offender for the rest of his life. Because this “ground” for

coram nobis relief existed as early as 2003, Hyman’s failure to raise it in 2006 when he

alleged other ineffective assistance and involuntary plea arguments rendered that particular

ground waived. Id. at 676-77.

       Here, appellant expressly alleged the Brady violations in his 2012 petitions for post-

conviction relief and for writ of actual innocence. Not only did appellant know of the

potential Brady violations, he also knew that Judge Rasin was “inclined to grant” his

request for post-conviction relief. Instead of pursuing that relief—presumably a vacation

of his convictions—appellant voluntarily relinquished his post-conviction and actual

innocence claims in exchange for a time-served sentence. Four years later, in 2016,

appellant raised the same Brady violations in his coram nobis petition. In our view,

appellant’s case is governed by Hyman. Indeed, the circumstances here present a more

compelling example of waiver than those in Hyman.

       We hold that appellant’s decision in 2012 to withdraw his Brady claims in exchange




                                             21
for a time-served sentence constituted waiver under Hyman.16 Accordingly, appellant was

precluded from raising those same claims in his 2016 petition for coram nobis relief.

                                            JUDGMENT OF THE CIRCUIT COURT
                                            FOR BALTIMORE CITY AFFIRMED.
                                            COSTS TO BE PAID BY APPELLANT.




       16
          Although we have not discussed res judicata in our waiver discussion, we note
the similarities. “Res judicata (‘a thing adjudicated’) is ‘an affirmative defense [that] bar[s]
the same parties from litigating a second lawsuit on the same claim, or any other claim
arising from the same transaction or series of transactions that could have been—but was
not—raised in the first suit.’” Gonsalves v. Bingel, 194 Md. App. 695, 709 (2010) (quoting
Anne Arundel Cty. Bd. of Educ. v. Norville, 390 Md. 93, 106 (2005)) (internal quotation
marks omitted). We follow the Hyman Court’s lead in analyzing this case under principles
of waiver rather than principles of res judicata.

                                              22
