Edward Andre Bodeau v. State of Maryland, No. 1365, September Term 2019
Opinion by Kehoe, J.
PETITION FOR WRIT OF ERROR CORAM NOBIS — SCOPE
A petition for a writ of error coram nobis is an equitable action by which the petitioner can
challenge a conviction based on constitutional, jurisdictional, or fundamental grounds in
order to escape the collateral consequences of an allegedly wrongful conviction after
having discharged the sentence for that conviction.
CORAM NOBIS — LACHES
Because a coram nobis proceeding is equitable in nature, the doctrine of laches may be
asserted as a defense. If the court concludes that the petitioner has unreasonably delayed in
bringing the petition, and the delay has prejudiced the non-moving party, then the court
may deny relief. Because laches is an affirmative defense, the party asserting it must prove
both unreasonable delay and prejudice by a preponderance of the evidence.
CORAM NOBIS — LACHES — DELAY AND UNREASONABLE DELAY
Passage of time by itself does not constitute laches. A party asserting laches as a defense
must demonstrate that the delay was unreasonable. The first step in determining when delay
becomes unreasonable is to identify when the petitioner’s claim became ripe, that is, when
(i) the petitioner knew or should have known of the trial error, and (ii) a judicial remedy
existed to rectify the error.
CORAM NOBIS — CHALLENGE TO A CONVICTION BASED UPON AN
INSTRUCTION THAT THE JURY WAS THE JUDGE OF THE LAW AS WELL
AS THE FACTS
In Edward Bodeau’s 1979 trial on a charge of daytime burglary, the court told the jurors
that its instructions were “advisory” and “not binding.” Bodeau did not object to this
instruction. He filed an appeal and later a petition for post-conviction relief, both of which
were unsuccessful. In neither of these proceedings did he challenge the jury instructions.
In his coram nobis petition, Bodeau asserted that the jury as judge of the law instructions
rendered his conviction constitutionally invalid. In the context of this case, such a claim
became ripe only after: (1) the Court of Appeals held that, at least as to “bedrock
characteristics” of the American notion of a fair trial, such an instruction was
unconstitutional (Montgomery v. State,
292 Md. 84, 91 (1981); (2) the Court of Appeals
held that a coram nobis petition could address errors of law as well as errors of fact (Skok
v. State,
361 Md. 52, 67 (2000); and (3) the Court of Appeals held that such a claim could
be asserted in a coram nobis action even if there was no objection at trial (Unger v. State,
427 Md. 383, 391 (2012).
Bodeau’s claim became ripe at some time after the opinion of the Court of Appeals in
Unger was filed. The forty-odd years between the time of Bodeau’s conviction and the
filing of Unger was delay. In the context of the appellate arguments in this case, the
unreasonable delay calendar began to run at some point during the seven years that passed
after Unger was filed and before Bodeau filed his coram nobis petition.
CORAM NOBIS — LACHES — DELAY AND PREJUDICE
In the present case, the State demonstrated that its ability to retry Bodeau on the 1971
charges was prejudiced by the passage of time. But the State failed to show that any of this
prejudice occurred after the date that the Unger opinion was filed. Additionally, the State
failed to show that it had made any effort to locate its most important witness, a co-defendant who testified against Bodeau. The circuit court therefore erred when it denied
the petition on the basis of laches.
2
Circuit Court for Montgomery County
Case No. 11896C
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1365
September Term, 2019
____________________________________
EDWARD ANDRE BODEAU
v.
STATE OF MARYLAND
____________________________________
Kehoe,
Leahy,
Adkins, Sally D.
(Senior Judge, Specially Assigned),
JJ.
____________________________________
Opinion by Kehoe, J.
____________________________________
Filed: October 1, 2020
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2020-10-01 13:35-04:00
Suzanne C. Johnson, Clerk
Contents
Introduction
Background
Analysis
A. The State’s laches defense
1. The writ of error coram nobis
2. The laches defense
3. The standard of review
4. The challenged laches conclusions
a. Unreasonable delay
b. Prejudice to the State
5. Bodeau’s add-on arguments
B. Whether to reach the merits of Bodeau’s petition
C. The State’s add-on argument
Conclusion
Introduction
Almost five decades after his 1971 conviction for daytime burglary, appellant Edward
Bodeau sought to vacate the conviction by filing a petition for a writ of error coram nobis
in the Circuit Court for Montgomery County. He asserted that the daytime-burglary
conviction was constitutionally infirm, obtained after the trial court explained to the jury
that its instructions on applicable legal principles were “advisory only.” Bodeau also
alleged that even though he had long since served his sentence for the 1971 conviction, he
was suffering collateral consequences: The conviction had been used as a predicate offense
for the mandatory life-without-parole sentence that he has been serving since he was
convicted of armed robbery in 1989.
After a hearing, the circuit court denied Bodeau’s coram nobis petition. The court’s
decision was not based on the petition’s merits. Instead, the court ruled that coram nobis
relief was barred by the equitable doctrine of laches—that Bodeau had unreasonably
delayed in bringing his challenge to the advisory-only instructions, prejudicing the State’s
ability to reprosecute Bodeau for the daytime burglary should a new trial be awarded.
Bodeau’s appeal asks us to decide whether the circuit court erred in denying his coram
nobis petition on laches grounds. In concluding that the court did err, we add a footnote to
the “tortured history” of advisory-only instructions in Maryland. State v. Adams-Bey, 449
Md. 690, 695 (2016). We address the extent to which a petitioner in Bodeau’s situation can
be said to have unreasonably delayed in challenging his conviction before the Court of
Appeals held in Unger v. State,
427 Md. 383 (2012), that a failure to have objected to
advisory-only instructions in a pre-1981 criminal trial would not amount to a waiver of the
issue. We will hold that Bodeau’s failure to file a petition for a writ of error coram nobis
was not unreasonable until, at the earliest, Unger was filed. It was only then that the Court
of Appeals held that a failure to have objected to advisory-only instructions in a pre-1981
criminal trial did not amount to a waiver of the issue. This was critical for Bodeau because
his 1971 trial counsel had not objected to the advisory only instruction. We will reverse the
circuit court’s judgment and remand the case for further proceedings.
-2-
Background
Bodeau’s life sentence without parole
In August 1971, a Montgomery County jury tried Bodeau on charges of daytime
burglary and theft of property valued at $100 or more. At the time, daytime burglary (or
housebreaking) was considered a crime of violence in Maryland.1 Before sending the jury
to deliberate, the trial court told the jurors that, under Maryland’s constitution, they were
“the sole judges of the law” and that, accordingly, its instructions were “advisory only”
and “not binding.” The court then instructed the jury on several legal principles, including
the applicable burden of proof and the elements required to meet that burden for each of
the offenses charged. Bodeau did not object to any of these instructions.
The jury convicted Bodeau on both counts, and the court sentenced him to concurrent
seven-year terms of incarceration for each offense. Bodeau unsuccessfully appealed his
convictions to this Court, and the Court of Appeals denied his petition for a writ of
certiorari. Bodeau’s subsequent petition for post-conviction relief was also denied. None
1
Daytime burglary was considered a “crime of violence” at the time of Bodeau’s 1989
sentencing. See Md. Code (1957, repl. vol. 1992), art. 27, § 643B(b) (defining “crime of
violence” to include “daytime housebreaking”). In 1994, the General Assembly
declassified daytime burglary as a crime of violence, but this change applied only
prospectively to those sentenced after the statute was amended. See 1994 Md. Laws ch.
712 (amending § 643B by “deleting burglary and daytime housebreaking from the list of
offenses that constitute crimes of violence for the purpose of certain mandatory minimum
sentences,” but also noting that the change “shall apply prospectively only to defendants
who are sentenced after the effective date of this Act”).
-3-
of Bodeau’s contentions in either proceeding were based on the trial court’s advisory-only
instructions.
Eighteen years later, in November 1989, Bodeau faced another Montgomery County
jury. This time, he was convicted of armed robbery. The prosecution sought a sentence of
life imprisonment without the possibility of parole. This sentence was mandated by a four-
strikes statute, Md. Code (1957, repl. vol. 1992), art. 27, § 643B(b),2 which then provided:
Any person who has served three separate terms of confinement in a
correctional institution as a result of three separate convictions of any crime
of violence shall be sentenced, on being convicted a fourth time of a crime
of violence, to life imprisonment without the possibility of parole. Regardless
of any other law to the contrary, the provisions of this section are mandatory.
At the time of his 1989 sentencing, the State asserted that Bodeau had been convicted
of seven at least arguably predicate offenses for the purposes of § 643B(b).3 There were
2
The current version of the Maryland Code contains a substantially similar four-strikes
law. See Md. Code, § 14-101(b)(1) of the Criminal Law Article (“Except as provided in
subsection (f) of this section, on conviction for a fourth time of a crime of violence, a
person who has served three separate terms of confinement in a correctional facility as a
result of three separate convictions of any crime of violence shall be sentenced to life
imprisonment without the possibility of parole.”); id. § 14-101(b)(2) (“Notwithstanding
any other law, the provisions of this subsection are mandatory.”).
The current version of the statute also provides that, except for certain registered sex
offenders, a person given a mandatory life sentence for crimes of violence “may petition
for and be granted parole” if the person is at least sixty years old and has served at least
fifteen years of the life sentence imposed. Id. § 14-101(f).
3
His other convictions included two convictions for burglary (September 7, 1973, in
Fairfax County, Virginia); a conviction for breaking and entering (January 31, 1974, in
Alexandria, Virginia); a conviction for armed bank robbery (March 26, 1976, in the U.S.
District Court for the Eastern District of Virginia); a conviction for robbery (August 26,
1976, in Fairfax County, Virginia); and a conviction for armed robbery and use of a
handgun (December 15, 1976, in Montgomery County, Maryland).
-4-
two issues before the sentencing court, neither of which appears to have been fully
resolved. The first was the degree to which Bodeau’s federal and Virginia convictions
could be treated as predicate offenses in light of differences between the elements of the
offenses as established by the laws of those jurisdictions, and the elements of the offenses
that were then considered “crimes of violence” for purposes of Art. 27, § 643B(b). The
second was whether Bodeau had actually served separate terms of confinement for each
predicate conviction. Ultimately, the sentencing court concluded that there were at least
three predicate convictions (one being the 1971 daytime burglary conviction), and that
Bodeau had served separate terms for each of them. On this basis, Bodeau received a life
sentence without the possibility of parole.
Bodeau’s petition for a writ of error coram nobis
Almost thirty years into his life sentence, on January 25, 2019, Bodeau filed a petition
for a writ of error coram nobis in the Circuit Court for Montgomery County seeking to
invalidate his 1971 daytime-burglary conviction. Bodeau contended that the conviction
was constitutionally infirm because the trial judge had given the jury improper “advisory
only” instructions. See Stevenson v. State, 289 Md. 167, 180 (1980) (explaining that, under
Article 23 of the Maryland Declaration of Rights, the jury “is the final arbiter of disputes
as to the substantive law of the crime, as well as the legal effect of the evidence,” but that
“all other aspects of law . . . are beyond the jury’s pale, and that the judge’s comments on
these matters are binding upon that body”); Montgomery v. State,
292 Md. 84, 91 (1981)
(holding, in light of Stevenson, that the trial court erred in instructing the jury that its
instructions on the law were “advisory” and that the jury “could pay no attention” to them).
-5-
The instructional error, Bodeau contended, was structural and therefore not subject to
harmless-error analysis, State v. Waine, 444 Md. 692, 705 (2015); was preserved despite
his failure to object, Unger v. State,
427 Md. 383, 391 (2012); and, at least in the context
of post-conviction relief, was a “constitutional infirmity . . . of the sort that will always
invalidate the conviction,” State v. Adams-Bey,
449 Md. 690, 708 (2016) (cleaned up).
Bodeau claimed he was entitled to coram nobis relief because, despite having fully
served his sentence for the daytime-burglary conviction, he continued to suffer collateral
consequences. As noted above, the 1971 conviction was used by the State to justify the
mandatory life-without-parole sentence he received for his 1989 armed robbery conviction.
Without the 1971 conviction, Bodeau asserted, he would not have been subject to the four-
strikes statute at his 1989 sentencing for armed robbery and instead would have faced a
maximum punishment of twenty years in prison without the possibility of parole.
In its answer to Bodeau’s petition, the State did not contest the propriety of the
advisory-only instructions given at the 1971 daytime-burglary trial. Nevertheless, the State
argued three reasons why Bodeau’s coram nobis petition should be denied. First, said the
State, Bodeau would lose on the merits: He could not establish that he was “suddenly”
facing “significant collateral consequences” as a result of the 1971 conviction. His
enhanced life-without-parole sentence was a “foreseeable and predictable criminal
punishment.” Second, the State contended that even without the 1971 conviction for
daytime burglary, “the State would still be able to establish that other convictions could
serve as the predicate for the enhanced sentence.” Third, the State asserted that, even if
Bodeau could make out a prima facie case for coram nobis relief, relief was barred by the
-6-
equitable doctrine of laches. According to the State, Bodeau had unreasonably delayed in
bringing his challenge to the advisory-only instructions, and this delay had impeded the
State’s ability to reprosecute him for the daytime burglary charge should a new trial be
awarded.4
The circuit court held a two-day hearing on Bodeau’s petition in May 2019. The parties
elaborated on the arguments made in their filings, focusing principally on the laches
defense raised by the State. Just as they do in this appeal, the parties disputed when Bodeau
began to “delay” in asserting his rights (as early as 1971 or as late as 2012) and whether
that delay (as long as forty-eight years or as short as seven years) was “unreasonable.” The
parties also disputed the degree to which any unreasonable delay by Bodeau had prejudiced
the State’s ability to reprosecute him should a new trial be awarded.
Several facts relevant to the prejudice question were established at this hearing through
proffers by the State that were not challenged by Bodeau:
1. Two civilian witnesses were called at Bodeau’s daytime-burglary trial:
the homeowner–victim and a neighbor–witness. At the time of the May
2019 hearing, the homeowner–victim was ninety-four years old, still
living at the same address but with no memory of the events surrounding
the burglary. The neighbor–witness died in 2003.
2. Bodeau’s co-defendant testified against him at trial. The State did not
address the testifying co-defendant’s availability at the May 2019 hearing
before the circuit court.
4
In passing, the State made an additional argument in its answer. Because the court
file for Bodeau’s 1971 trial had been destroyed, the State said, Bodeau “could not meet his
burden of refuting the presumption of regularity attendant to his conviction much less of
establishing the error he claimed.” The State does not make this argument on appeal.
-7-
3. The detective who had handled the case and testified at Bodeau’s 1971
trial had retired and—at the time of the hearing—was living in Rehobeth
Beach, Delaware. The State’s attempts to reach the officer by email were
unsuccessful. The State had not subpoenaed the officer to see what he
recalled of the case.
4. The original court file for the case was destroyed in 2006. The records
were shredded according to standard records-retention protocol. The
docket entries from the case were still available to the State, however.
5. Neither the State’s Attorney’s office nor the investigating police
department still had a file on the case. All physical evidence that would
have been stored with these files was also unavailable. There was no
testimony or proffer as to when these records were rendered unavailable.
6. A transcript from the 1971 trial exists.5
On August 13, 2019, on the basis of the parties’ arguments and the facts established at
the hearing, the circuit court denied Bodeau’s coram nobis petition with a written opinion
and order. The court concluded that the relief Bodeau sought was barred by the doctrine of
laches:
First, [Bodeau] unnecessarily waited seven years from the Unger [v. State,
427 Md. 383 (2012),] decision to file his Petition for Writ of Error Coram
Nobis . . . . [T]his is an unreasonable delay. The fact that [Bodeau] would
5
The State observes on appeal—but, so far as we can tell, did not argue to the circuit
court—that the trial transcript is “copied sideways and practically illegible.” According to
the State’s brief, “it [would be] reasonable to infer that the chance of unearthing a legible
version of the transcript decreased with every passing year.” We believe that whether such
an inference is reasonable is initially a matter for the circuit court. With that said, we point
out that the State’s premise may not be correct.
Part of the transcript submitted to the circuit court at the coram nobis hearing was
copied sideways. But the record transmitted to us by the Circuit Court for Montgomery
County Clerk’s Office also contains what appears to be a full-sized photocopy of the
original typed transcript of Bodeau’s trial. It was certainly not photocopied sideways.
Whether either transcript could fairly be characterized as “practically illegible” is not
before us.
-8-
have been entitled to a new trial under Unger was made very clear in 2012
when the Court of Appeals handed down [its] ruling. [Bodeau] knew or
should have known that this ruling would have impacted his circumstances
when the Unger decision was published in 2012. Second, the State met [its]
preponderance of the evidence burden with compelling evidence that one of
its key witnesses in this prosecution is deceased and another is incapacitated.
Without these key witnesses, the State is most certainly put in a “less
favorable position” to reprosecute [Bodeau]. Third, just like in Jones [v.
State, 445 Md. 324 (2015),] the State would be unfairly prejudiced if they
would have to rely on the transcripts of the original trial to reprosecute
[Bodeau]. Lastly, the State provided evidence that both the original court and
state files for this case were destroyed years ago. This, too, would greatly
prejudice the State because important information that it relied on for trial
[is] no longer available for the State to reprosecute [Bodeau].
(Cleaned up.)
Bodeau timely appealed the denial of his coram nobis petition to this Court.
Analysis
A. The State’s laches defense
In his appeal, Bodeau contends that the circuit court erred in concluding that the
doctrine of laches barred his coram nobis petition. For several reasons, he says, the defense
does not apply under the facts of this case.
First, Bodeau maintains that any calculation of delay in filing for coram nobis relief
must begin after the Court of Appeals’ decision in Unger v. State, 427 Md. 383 (2012).
Until Unger was decided, Bodeau contends, any attempt by him to seek coram nobis relief
would have been futile because his failure to object to the advisory-only instructions at his
1971 trial would have amounted to a waiver of the issue. It was only after Unger was
decided, Bodeau argues, that his claim to coram nobis relief became “ripe.” Measured from
the time of the Unger decision, Bodeau says, his delay in seeking coram nobis relief could
-9-
not be considered “unreasonable.” Because the litigants involved in Unger and its progeny
were seeking post-conviction relief, Bodeau says he could have reasonably concluded that
those decisions would not have applied to his case, “even if he had read the Unger decision
on the day it came out.”6
Second, Bodeau argues that even assuming he delayed unreasonably in filing his coram
nobis petition, the State failed to establish that it was prejudiced by this delay. Although
the 2003 death of the neighbor–witness and the fading memory of the ninety-four-year-old
homeowner–victim would impede the State’s ability to retry Bodeau for the daytime
burglary, these events could not fairly be attributed to his unreasonable delay in seeking
coram nobis relief. The neighbor–witness died before Unger was decided, and the State
presented no evidence suggesting the homeowner–victim’s memory diminished between
2012 and the date Bodeau filed his coram nobis petition. The State also did not establish
the unavailability of two other critical witnesses: the co-defendant who testified against
Bodeau and the detective, since retired, who had handled the case. Even without these
witnesses, Bodeau argues, the State has trial transcripts that could be used as a substitute
for live witness testimony. Additionally, says Bodeau, the State “did not pinpoint what
‘important information’ was lost” when the original court and prosecution files for the case
were destroyed.
6
At oral argument, Bodeau’s counsel also asserted that it took the Office of the Public
Defender some time to identify potential coram nobis claimants who, after Unger, could
make unpreserved challenges to advisory-only instructions given at their jury trials. We
will not address the merits of this contention for the reasons explained in footnote 15 of
this opinion.
- 10 -
Third, as we understand his argument, Bodeau suggests that the circuit court’s
prejudice conclusions were erroneous because the State could not establish a “compelling
interest” in retrying him to ensure that his 1989 life-without-parole sentence for armed
robbery remained intact. Specifically, he says, the State “did not confirm that it would
try . . . Bodeau again if his 1971 convictions were reversed” and “did not argue why it still
had a compelling interest in keeping . . . Bodeau, who is 66 years old, behind bars for the
rest of his life.”
Finally, apart from his unreasonable-delay and prejudice arguments, Bodeau suggests
that “the merits of [his] coram nobis petition also strongly weigh against applying the
doctrine of laches.” He emphasizes that the instructional error alleged was structural—not
subject to harmless-error analysis—and “of the sort that will always invalidate the
conviction,” State v. Adams-Bey, 449 Md. 690, 708 (2016)—at least in post-conviction
proceedings. If Bodeau were still serving his sentence for daytime burglary, he would
undoubtedly be entitled to a new trial through post-conviction-relief proceedings. Fairness,
Bodeau maintains, requires that Bodeau receive the same relief in the coram nobis context.
For its part, the State argues that the circuit court correctly determined that laches
barred coram nobis relief. If it is assumed that the Court of Appeals’ decision in Unger
marks the beginning of Bodeau’s delay in challenging the advisory-only instructions, the
State contends, then that seven-year delay was unreasonable. This is because “Bodeau
advances no reason for the . . . delay, although even under his logic, the day Unger was
- 11 -
decided, he had incentive to make the claim he advances now.”7 The State says it was
prejudiced by this delay for most of the reasons noted by the circuit court but concedes that
“if the length of delay is measured from the 2012 Unger decision, the 2003 death of . . . a
witness to the burglary . . . should not be attributed to Bodeau for the purposes of
determining prejudice to the State.”
The State is not satisfied, however, that Bodeau’s delay in making his challenge to the
advisory-only instructions actually began with the 2012 decision in Unger. Instead, it
argues that the correct starting point for measuring delay was the Court of Appeals’
decision in Stevenson v. State, 289 Md. 167 (1980), for it was in that case, the State says,
the Court of Appeals first held that “instructions that did not clearly tell the jury that the
court’s instructions on the law were binding were inconsistent with Article 23 of the
Maryland Constitution.” If not in 1980, the State argues, then Bodeau’s delay began in
2000 when a federal appellate court held that an advisory-only instruction similar to the
instruction given at Bodeau’s 1971 trial violated constitutional due process. See Jenkins v.
Hutchinson,
221 F.3d 679 (4th Cir. 2000). According to the State, this put Bodeau “on
notice . . . of his potential cause of action to challenge the 1971 conviction.” A
determination that either of these cases marked the starting point for the calculation of
Bodeau’s delay “would shear Bodeau’s arguments concerning prejudice of force.” This is
because, the State notes, the neighbor–witness did not die until 2003, the court file for the
7
As we note below, it is the party asserting the laches defense who bears the burden
of proving, by a preponderance of the evidence, that the delay in making a claim was
unreasonable and that this unreasonable delay was prejudicial.
- 12 -
case was not destroyed until 2006, and it would be “reasonable to infer that [the
homeowner–victim’s] memory was better several decades ago than it is today.”
Finally, the State takes issue with Bodeau’s suggestion that, to establish prejudice, it
needed to show some “compelling interest” in reprosecuting him that would outweigh his
interest in challenging the concededly unconstitutional advisory-only instructions. “[I]n
evaluating the prejudice that may give rise to a successful defense of laches,” says the State,
“there simply needs to be a showing that the party asserting the defense . . . would be at a
disadvantage in correcting the alleged error.” The State argues that a laches defense does
not fail, rendering “old claims . . . actionable,” simply because a reprosecution “is not
worth the effort.” Whether the State actually plans to retry Bodeau, were his petition
granted, “should not enter into the calculus of prejudice.” Even if some balancing of
interests were required, the State asserts that it has a “strong interest in ensuring that
convictions are legitimate,” “an interest in enforcing its laws,” and “an interest in
maintaining finality of convictions that were valid when entered, at least when the State
can make the factual showing necessary for laches.”
Although we do not adopt wholesale the reasoning of either party, we agree with
Bodeau that the circuit court erred in concluding that the laches defense applied in this
case.
1. The writ of error coram nobis
A common-law writ of error coram nobis is an equitable action by which a petitioner
may escape the collateral consequences of an allegedly wrongful conviction after having
discharged the sentence for that conviction. Moguel v. State, 184 Md. App. 465, 471–72
- 13 -
(2009); Ruby v. State, 353 Md. 100, 106 (1999); see also Holmes v. State,
401 Md. 429,
475 (2007) (Raker, J., dissenting) (explaining that, like a habeas corpus proceeding or a
proceeding under Maryland’s Post Conviction Procedure Act, the writ is used to
collaterally challenge a criminal judgment of conviction). It is a “civil matter procedurally
independent of the underlying judgment being contested.” Ruby,
353 Md. at 107.8
As the Court of Appeals recently summarized the state of the law, a convicted
petitioner is entitled to coram nobis relief only if:
1. the petitioner challenges a conviction based on constitutional,
jurisdictional, or fundamental grounds, whether factual or legal;
2. the petitioner rebuts the presumption of regularity that attaches to the
criminal case;
3. the petitioner faces significant collateral consequences from the
conviction;
4. the issue as to the alleged error has not been waived or finally litigated in
a prior proceeding, absent intervening changes in the applicable law; and
5. the petitioner is not entitled to another statutory or common law remedy
(for example, the petitioner cannot be incarcerated in a State prison or on
parole or probation, as the petitioner likely could then petition for post-conviction relief).
Jones v. State, 445 Md. 324, 338 (2015) (cleaned up and formatting altered). Even when a
petitioner meets these prerequisites for coram nobis relief, a writ is appropriately issued
only if there are “circumstances compelling such action to achieve justice.” Coleman v.
State,
219 Md. App. 339, 353–54 (2014).
8
The procedural rules for writ of error coram nobis actions are set out in Md. Rules
15-1201 to -1207.
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The scope of the issues that could traditionally be raised in a coram nobis petition was
relatively narrow. The writ could be used to attack only convictions that resulted from
certain “errors of fact” not litigated at trial but nonetheless were “material to the validity
and regularity of the proceedings.” Skok v. State, 361 Md. 52, 67 (2000) (quoting Madison
v. State,
205 Md. 425, 432 (1954)). In 2000, the Court of Appeals expanded the scope of
coram nobis relief in Maryland to reach errors of law as well as errors of fact, provided the
legal errors are “of a constitutional or fundamental nature.” Id. at 77. This expansion came
with an important preservation caveat: The rules of “waiver and final litigation of an issue,”
applicable in actions brought under Maryland’s Post Conviction Procedure Act, constrain
the right to seek coram nobis relief. Skok,
361 Md. at 79.
Generally, the writ is “allowed without limitation of time.” Madison, 205 Md. at 432.
But because the ability to grant coram nobis relief “arises out of the court’s equity
jurisdiction,” Moguel,
184 Md. App. at 473, the time-conscious equitable defense of laches
applies to coram nobis petitions, Jones,
445 Md. at 343 (“[W]e unequivocally hold that the
doctrine of laches may, as an affirmative defense in a coram nobis action, bar an
individual’s ability to seek coram nobis relief.”); see also Moguel,
184 Md. App. at 471
(“We hold that the doctrine of laches is a defense to a petition for writ of error coram nobis
filed for the purpose of challenging a criminal conviction.”).
2. The laches defense
The doctrine of laches is an affirmative equitable defense against “stale” claims, “based
upon grounds of sound public policy by discouraging fusty demands for the peace of
society.” State Center, LLC v. Lexington Charles Ltd. Partnership, 438 Md. 451, 585
- 15 -
(2014) (quoting Ross v. State Board of Elections, 387 Md. 649 668 (2005)). Courts have
long required “conscience, good faith, and reasonable diligence” of those who appeal to
their equitable powers. Nelson v. Hagerstown Bank,
27 Md. 51, 64 (1867) (emphasis in
original) (quoting 2 Joseph Story, Commentaries on Equity Jurisprudence as Administered
in England and America 734 n.1 (Isaac Fletcher Redfield ed., 9th ed. 1866)). Courts sitting
in equity may refuse their aid in cases “where the party has slept upon his rights[] and
acquiesced for a great length of time.”
Id.
The laches defense applies where (1) an “unreasonable delay in the assertion of one
party’s rights” (2) “results in prejudice to the opposing party.” Jones v. State, 445 Md. 324,
339 (2015) (cleaned up); see also Petrella v. Metro-Goldwyn-Mayer, Inc.,
572 U.S. 663,
667 (2014) (describing laches as “unreasonable, prejudicial delay in commencing suit”
(emphasis added)). As laches is an affirmative defense, the party that asserts it must prove
the defense by a preponderance of the evidence.
Id. at 339 (citing Lopez v. State,
205 Md.
App. 141, 175 (2012)).
The applicability of the laches defense is not determined by reference to any “inflexible
rule.” State Center, 438 Md. at 590 (quoting Parker v. Board of Election Supervisors,
230
Md. 126, 130 (1962)). Instead, what amounts to laches—a term derived from “the old
French word for laxness or negligence,” Buxton v. Buxton,
363 Md. 634, 645 (2001)—
turns on the totality of the circumstances presented by each case. Jones,
445 Md. at 339.
“The passage of time, alone, does not constitute laches but is simply one of the many
circumstances from which a determination of what constitutes an unreasonable and
unjustifiable delay may be made.” Buxton,
363 Md. at 645 (cleaned up). More than a simple
- 16 -
accounting of the days, weeks, or years passed since the events giving rise to the action,
what matters to courts is the “reasonable diligence” (or lack thereof) demonstrated by the
petitioner against whom the defense has been raised. State Center, 438 Md. at 610 (quoting
Hall v. Clagett,
48 Md. 223, 243 (1878)). As the Supreme Court explained in Holmberg v.
Armbrecht,
327 U.S. 392 (1946), “laches is not, like limitation, a mere matter of time; but
principally a question of the inequity of permitting a claim to be enforced[.]”
Id. at 396
(cleaned up).
What amounts to prejudice sufficient to sustain a laches defense is more
straightforward: “anything that places [the party asserting the defense] in a less favorable
position.” Buxton, 363 Md. at 646 (emphasis added) (quoting Parker, 230 Md. at 130–31).
Although establishing “some prejudice,” Akin v. Evans,
221 Md. 125, 133 (1959), may not
be a particularly high hurdle for the party raising the defense, a showing of prejudice is still
an “essential element” of laches, Salisbury Beauty Schools v. State Board of
Cosmetologists,
268 Md. 32, 63 (1973). Without prejudice, even when the party seeking
relief has unreasonably delayed in asserting his or her rights, laches will not bar a purely
equitable action. Ademiluyi v. Egbuonu,
466 Md. 80, 124 (2019); see also Inlet Associates
v. Assateague House Condominium Ass’n,
313 Md. 413, 439 (1988) (“[M]ere delay in
bringing an action is not sufficient to constitute laches if the delay has not worked a
disadvantage to others.”).
- 17 -
3. The standard of review
A circuit court’s decision about whether the doctrine of laches bars a petition for coram
nobis relief is an evaluative determination9 involving the application of law to fact. Cf.
Anderson v. Great Bay Solar I, LLC, 243 Md. App. 557, 611 (2019) (“[T]he question of
whether laches has been established is a mixed question of fact and law.”). We review
without deference the court’s conclusions about whether a delay in petitioning for relief
was unreasonable and whether the unreasonable delay was prejudicial to the petitioner’s
opponent. See Jones,
445 Md. at 337 & n.12 (citing State Center, LLC v. Lexington Charles
Ltd. Partnership,
438 Md. 451, 585 (2014)). To the extent that the appellant challenges the
factual findings upon which these evaluative determinations are based, we review those
findings for clear error. Cunningham v. Feinberg,
441 Md. 310, 322 (2015) (“Appellate
courts accept and are bound by findings of fact in the lower court unless they are clearly
erroneous.” (cleaned up)). Whether the circuit court has applied the correct legal standard
in its laches analysis is a question of law subject to de novo review. State v. Robertson,
463
Md. 342, 351 (2019) (“Errors of law and purely legal questions are reviewed de
novo . . . .”).
9
We borrow this term from Randall H. Warner, All Mixed Up About Mixed Questions,
7 J. App. Prac. & Process 101, 119–21 (2005). The article provides a sort of taxonomy for
the various “mixed questions of law and fact” confronted, in the first instance, by judges
and juries, and reviewed with varying degrees of deference by appellate courts.
Id. at 101.
Warner describes “evaluative determinations” as “issues that—like negligence, probable
cause, and reasonable suspicion—require a decision-maker to exercise judgment.”
Id. at
120. “Almost any time an issue uses words like ‘reasonable’ or ‘fair,’ it calls for an
evaluative determination.”
Id.
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4. The challenged laches conclusions
To determine whether the circuit court correctly concluded that the doctrine of laches
barred Bodeau’s petition for a writ of error coram nobis, we must answer two questions:
Did the State prove, by a preponderance of the evidence, that Bodeau’s delay in petitioning
for coram nobis relief was unreasonable? If so, did the State prove, by a preponderance of
the evidence, that it was prejudiced by this unreasonable delay? See Liddy v. Lamone, 398
Md. 233, 244 (2007) (“[L]aches ‘applies when there is an unreasonable delay in the
assertion of one’s rights and that delay results in prejudice to the opposing party.’” (quoting
Frederick Road Ltd. P’ship v. Brown & Sturm,
360 Md. 76, 117 (2000)).
As we noted above, Bodeau contends that the court erred in accepting the State’s laches
defense because his delay in filing was not unreasonable and that, alternatively, the State
has not proved it was prejudiced by any unreasonable delay. We consider each issue in
turn.
a. Unreasonable delay
To determine whether a delay in seeking coram nobis relief is unreasonable, a court
must first decide when that delay began. It must then ask when, if ever, that delay became
unreasonable. Cf. Jones, 445 Md. at 344 (“In assessing whether the party unreasonably
delayed before filing, the court first ascertains the length of the delay, then decides whether
the delay was unreasonable. . . . Thus, a court’s first task is to determine when the delay
began.”).
Outside the context of coram nobis petitions, courts assessing delay often ask when a
particular claim—the claim against which the laches defense has been raised—accrued or
- 19 -
became “ripe.” See, e.g., State Center, LLC v. Lexington Charles Ltd. Partnership, 438
Md. 451, 590 (2014) (“In determining whether a delay is unreasonable, we must analyze
[first] when, if ever, the claim became ripe . . . .”); see also Lyons Partnership, L.P. v.
Morris Costumes, Inc.,
243 F.3d 789, 798 (4th Cir. 2001) (delay begins when “the cause
of action accrued”); Cornetta v. United States,
851 F.2d 1372, 1377–78 (Fed. Cir. 1988)
(delay is measured “from the date a cause of action first accrued”). “[T]he earliest time at
which [the plaintiff is] able to bring [his] claim” is when the delay clock begins to run.
State Center,
438 Md. at 590.
But in the coram nobis context, the clock may begin to run even before the petitioner
can file a facially valid petition for coram nobis relief. This is the lesson of the Court of
Appeals’ decision in Jones v. State, 445 Md. 324 (2015), a case critical to our analysis.
On September 14, 1999, Corey Jones pleaded guilty in the Circuit Court for Baltimore
City to one of the four drug-related offenses with which he had been charged. Id. at 330–
32. After a hearing, the circuit court accepted this plea, convicted Jones, and sentenced him
to six years of incarceration, with all but eighteen months suspended and with credit for
time served, followed by three years of supervised probation.
Id. at 332. Thirteen years
later, in a federal district court, Jones pleaded guilty to being a felon in possession of a
firearm under
18 U.S.C. § 922(g)(1). Id. at 333. Due in part to his 1999 conviction in the
Circuit Court for Baltimore City, Jones stood to receive a mandatory minimum sentence of
fifteen years’ incarceration under the federal Armed Career Criminal Act,
18 U.S.C.
§ 924(e)(1).
Id. Without the 1999 conviction, Jones would be subject to a maximum
sentence of only ten years of incarceration under
18 U.S.C. § 924(a)(2).
Id. For this reason,
- 20 -
on October 9, 2012, Jones filed a petition for a writ of error coram nobis seeking to
invalidate the 1999 conviction. Id.
In his petition, Jones contended that his 1999 guilty plea in the Circuit Court for
Baltimore City had been involuntary. Id. He claimed that “he had not been informed of the
elements of the offense or nature of the charge to which he pled guilty” and that the
transcript of the guilty-plea proceeding had “left unclear” which of the four charges he had
actually pleaded guilty to.
Id. Docket entries and certain statements made during the guilty-
plea proceeding suggested that Jones was pleading guilty to use of a minor for the purpose
of distributing heroin, but other statements made by Jones and his counsel suggested that
his guilty plea was for possession of heroin with the intent to distribute.
Id. at 330–32. In
response to Jones’s petition, the State contended that the doctrine of laches barred his
petition to invalidate the thirteen-year old conviction—a losing argument in the circuit
court but a winner in the Court of Special Appeals.
Id. at 334 (citing State v. Jones,
220
Md. App. 238, 242 (2014)).
In challenging this Court’s conclusion that laches barred his claim, Jones argued that
any relevant “delay” could not have begun before he was able to file a facially valid coram
nobis petition. Id. at 344. Measured from this moment, Jones’s delay in seeking coram
nobis relief was short-lived. When he filed his coram nobis petition on October 9, 2012,
only eleven weeks had passed since he first faced “significant collateral consequences”
from his 1999 conviction; it was not until July 23, 2012, that Jones pleaded guilty to being
a felon in possession of a firearm in federal court and, as a result, stood to receive an
enhanced sentence under
18 U.S.C. § 924(e)(1). Id. at 335. More significantly, Jones had
- 21 -
filed his petition only eight days after a change in state law made coram nobis a viable
mechanism for challenging his conviction; Jones had never applied for leave to appeal his
conviction, so before Md. Code, § 8-401 of the Criminal Procedure Article (“Crim.
Proc.”),10 became effective on October 1, 2012, Jones “may have been deemed to have
waived his right to file a coram nobis petition.” Id. at 334–35.
The Court of Appeals rejected Jones’s argument and held that “for the purposes of
determining whether the doctrine of laches bars coram nobis relief, delay begins when the
petitioner knew or should have known of the facts underlying the alleged error.” Id. at 329.
The Court acknowledged that delay may begin later, however, if the legal error alleged in
the petition is “based on a case that had not yet been decided or a statute that had not yet
been enacted” at the time the error was made. Id. at 356 (citing Telink, Inc. v. United States,
24 F.3d 42, 46 (9th Cir. 1994)).
Several significant considerations supported the Court’s decision to start the delay
clock when the alleged error first becomes clear rather than when a coram nobis claim first
may be brought. First, a coram nobis petition is premised on some error made at the trial
(or guilty-plea proceeding) that produced a criminal conviction. As that error becomes
10
Crim. Proc. § 8-401 provides: “The failure to seek an appeal in a criminal case may
not be construed as a waiver of the right to file a petition for writ of error coram nobis.”).
The statute superseded the Court of Appeals’ decision in Holmes v. State, 401 Md. 429,
431 (2007), in which the Court held that “a presumption that an individual waives his right
to file a petition for a writ of error coram nobis arises if the individual, after entering a
guilty plea and having been informed of his right to file an application for leave to appeal,
does not file an application for leave to appeal.” See Jones,
445 Md. at 335 & n.11.
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more remote in time, “memories . . . fade and evidence . . . disappears,” impairing “both
the State’s ability to defend against the allegation of error and the State’s ability to
reprosecute” the petitioner should a new trial be awarded. Id. at 345. Second, from the
moment the error is made until even after his release from confinement, parole, and
probation, a criminal defendant may have multiple opportunities to bring the alleged error
to the court’s attention. See
id. at 356–57 (noting the many ways that Jones could have
raised the alleged error before he was able to bring a facially valid petition for coram nobis
relief). The petitioner’s failure to seize earlier opportunities to raise the error—and any
apparent motivations for this inaction—may fairly be factored into conclusions about
whether the petitioner has unreasonably delayed in asserting his rights.
Id. at 346–47.
Ultimately, the Court explained, “what matters is when the petitioner raises the allegation
of error, not how the petitioner raises the allegation of error.”
Id. at 349 (emphasis in
original).
Applying the delay-calculation rule laid out in its analysis, the Court of Appeals
concluded that Jones’s delay in raising his alleged error and asserting his due-process rights
began at the moment he entered the allegedly involuntary guilty plea. This was some
thirteen years before he filed (or even could file) his petition for coram nobis relief.
In Bodeau’s case, the facts underlying the error alleged in his coram nobis petition
would have been known when the advisory-only instructions were given at his 1971
daytime-burglary trial. But, unlike in Jones, Bodeau’s allegation of error—that the court’s
advisory-only instructions violated his due-process rights—was based on a case that had
not yet been decided at the time the daytime-burglary jury was instructed. It wasn’t until
- 23 -
1981 that the Court of Appeals held that advisory-only instructions similar to those given
at Bodeau’s 1971 trial amounted to reversible error. See Montgomery v. State, 292 Md. 84,
91 (1981) (holding that the trial court erred in telling the jury that its instructions on the
law were “advisory” and that the jury “could pay no attention” to them).11 This means that
11
The year before it decided Montgomery, the Court of Appeals suggested in Stevenson
v. State, 289 Md. 167 (1980), that juries in criminal trials “should not be informed that all
of the court’s instructions are merely advisory” and instead “should be informed that the
judge’s charge with regard to . . . legal matter[s outside the ‘law of the crime’ and the ‘legal
effect of the evidence’ are] binding and may not be disregarded.”
Id. at 180 (emphasis
added). But this language must be read in light of the narrow issue apparently before the
Court in Stevenson: deciding “whether Article 23 [of the Maryland Declaration of Rights,]
which, as interpreted by [the] Court, requires that jury instructions on the law be advisory
only, is itself violative of the United States Constitution.”
Id. at 172–73. After concluding
that Article 23’s “Judges of Law” language empowered the jury to do nothing more than
“resolv[e] conflicting interpretations of the law of the crime and . . . decid[e] whether that
law should be applied in dubious factual situations,”
id. at 179 (cleaned up), the Court held
that Article 23 was not unconstitutional on its face. According to the Court’s opinion,
Article 23 passes constitutional muster because it does not impermissibly allocate lawjudging functions between judge and jury, and it doesn’t authorize juries to disregard
bedrock legal principles, like the presumption of innocence or the prohibition on drawing
inferences from a defendant’s silence.
Id. at 187–88.
As the Court of Appeals explained in State v. Adams-Bey, 449 Md. 690 (2016), it was
not until the following year, in Montgomery, that the Court actually “subscribed to [the
Stevenson] standard” and held for the first time that “the trial court erred in advising the
jury that all of the court’s instructions were advisory.”
Id. at 694–95 (emphasis in original).
As we note later in our analysis, the Court of Appeals, for decades, did not consider
itself to be making any new law in Stevenson or Montgomery. See State v. Adams, 406 Md.
240, 258–59 (2008) (explaining that “Stevenson did not announce a new rule” and instead
“purported to explain and continue the reasoning of prior decisions,” while “Montgomery
merely served as an example and application of Stevenson”). This view of the legal
significance of the decisions in Stevenson and Montgomery changed completely in Unger
v. State,
427 Md. 383, 411 (2012) (“[T]he Stevenson and Montgomery opinions set forth a
new interpretation of Article 23 and established a new state constitutional standard.”).
- 24 -
Bodeau’s delay in asserting his rights began in 1981, with the decision in Montgomery,
some thirty-eight years before Bodeau sought coram nobis relief.
Thirty-eight years is a long time. But the length of the delay in asserting one’s rights
is not the only factor to be considered in assessing the delay’s reasonableness. Cf. Spaw,
LCC v. City of Annapolis, 452 Md. 314, 360 (2017) (“Laches is an inequitable defense
asserting an inexcusable delay by the suitor in asserting its right without necessary
reference to duration.” (emphasis added)). Courts may also consider “the reason for the
delay, the incentive to challenge the prior conviction, and the basis for the coram nobis
petition.” Jones, 445 Md. at 356–57. Additionally, the failure to take advantage of earlier
opportunities to raise the issue might render delay unreasonable, if an incentive to do so
then existed or if inaction was purposeful. Id.; cf. Telink,
24 F.3d at 48 (holding that a
federal district court did not abuse its discretion in applying laches to bar a coram nobis
petition because the petitioners could have raised the error, once it was identified in case
law by the Supreme Court, in earlier proceedings for post-conviction relief).
Above all, it was this failure to seize earlier opportunities to raise the issue that
rendered the petitioner’s thirteen-year delay unreasonable in Jones. The Court noted that
an incentive to challenge his conviction existed from the moment the circuit accepted
Jones’s guilty plea and handed down his sentence; six years later, when the court sentenced
Jones to another three years’ incarceration for violating his probation order, that incentive
was renewed. Jones, 445 Md. at 357. And still, even with mechanisms available to raise
the error and challenge his conviction from the very beginning, Jones did nothing:
- 25 -
Jones failed to move to withdraw his guilty plea (which he had ten days to
do, see Md. Rule 4-242(h)), move for a new trial (which he had ten days to
do, see Md. Rule 4-331(a)), apply for leave to appeal (which he had thirty
days to do, see Md. Rule 8-204(b)(2)(A)), move to set aside an unjust or
improper verdict (which he had ninety days to do, see Md. Rule 4-
331(b)(1)(B)), or petition for post-conviction relief (which he had nine years
to do, see Crim. Proc. § 7-103(b)) . . . .
Id. at 356 (cleaned up). Jones waited until 2012 to challenge the 1999 conviction—only
after he had committed another crime and, as a consequence of the old conviction, stood to
receive an enhanced sentence. Id. at 357. Jones did not speak up sooner simply because he
had wanted to receive the benefit of a favorable plea agreement. Id. at 347.
The case before us is different from Jones. By the time the error in the advisory-only
instructions from Bodeau’s daytime-burglary trial became clear in 1981, Bodeau had fully
served his sentence for that conviction. Free from confinement, parole, and probation,
Bodeau had no incentive to raise the error. And even if an incentive had existed, Bodeau
had no apparent means by which to make his challenge. Unlike in Jones, the deadlines for
Bodeau to move for a new trial, to move to set aside the verdict, and to appeal his conviction
had long passed. And Bodeau could not petition for post-conviction relief either. See State
v. McMannis, 65 Md. App. 705, 708 (1986) (holding that once a person is “no longer in
prison, on parole, or on probation for a conviction,” he may not use post-conviction review
to challenge that conviction).
Coram nobis relief was also unavailable to Bodeau at the time—and would remain
unavailable for more than two decades, until a series of changes in Bodeau’s circumstances
and the applicable case law made a coram nobis petition a viable mechanism for raising
the issue. Bodeau’s first obstacle to obtaining coram nobis relief was the fact that he was
- 26 -
not suffering any significant collateral consequences from his 1971 conviction until at least
1989, when he was convicted of armed robbery and received a mandatory life-without-
parole sentence. This sentence was predicated, in part, on the 1971 daytime-burglary
conviction.12 It is not clear whether significant collateral consequences were a precondition
to obtaining coram nobis relief in Maryland before 2000. See Skok v. State, 361 Md. 52, 79
(2000) (citing no Maryland case for the proposition that “the coram nobis petitioner must
be suffering or facing significant collateral consequences from the conviction”). But
without any such consequence, Bodeau lacked any incentive to raise the error from his
1971 trial. We therefore cannot say that Bodeau’s delay in challenging the advisory-only
instructions was unreasonable before this point.
Bodeau’s second obstacle to obtaining coram nobis relief was the nature of the circuit
court’s alleged error in giving the advisory-only instruction. Even by 1989, when Bodeau
finally had an incentive to raise the error, the scope of coram nobis relief did not extend
beyond addressing “errors of fact” not litigated at trial but nonetheless “material to the
validity and regularity of the proceedings.” Skok, 361 Md. at 67 (quoting Madison v. State,
205 Md. 425, 432 (1954)). The error Bodeau would eventually allege—the improper
advisory-only instructions—was an error of law. The scope of coram nobis relief was
broadened in 2000 by the Court of Appeals’ decision in Skok v. State,
361 Md. 52. Adopting
12
As we note in Part B of our analysis, the State contests whether Bodeau’s mandatory
life-without-parole sentence is a significant collateral consequence of the 1971 conviction
because, the State says, there were additional qualifying convictions that would have
supported imposition of a mandatory life sentence under Maryland’s four-strikes law even
without the 1971 conviction.
- 27 -
the reasoning of the Supreme Court in United States v. Morgan, 346 U.S. 502 (1954), and
other state supreme courts, the Court held that coram nobis petitions could be used to
challenge “not only errors of fact that affect the validity or regularity of legal proceedings,
but also legal errors of a constitutional or fundamental proportion.” Skok,
361 Md. at 75
(quoting 3 Charles A. Wright, Federal Practice and Procedure § 592 (2d ed. 1982)). With
this expansion, the alleged instructional error from Bodeau’s 1971 trial was at least the type
of error that could be raised in a petition for coram nobis relief. But before this point,
Bodeau’s delay in raising the issue in a coram nobis proceeding could not have been
unreasonable.
The Court’s expansion of the writ in Skok was “subject to several important
qualifications,” id. at 78, one of which was the third obstacle preventing Bodeau from
obtaining coram nobis relief. According to the Court in Skok, “[b]asic principles of
waiver,” drawn from the body of law “applicable under the Maryland Post Conviction
Procedure Act,” would apply to the issues raised in a coram nobis petition. Id. at 79. Bodeau
had not objected to the advisory-only instructions at his trial, and he did not raise the issue
in any direct appeal following his conviction. This meant that, at least at the time Skok was
decided and for several years thereafter, any coram nobis petition filed by Bodeau would
have been flatly rejected on waiver grounds. See State v. Adams, 406 Md. 240 (2008)
(concluding that appellant had waived a post-conviction challenge to improper advisory-
only instructions by not objecting to the instructions at trial or raising the issue on direct
appeal); see also Walker v. State,
343 Md. 629, 645 (1996) (“[T]he failure to object to a
- 28 -
jury instruction ordinarily constitutes a waiver of any later claim that the instruction was
erroneous.”).
This third and final obstacle was overcome with the Court of Appeals’ tide-turning
decision in Unger v. State, 427 Md. 383 (2012). Overruling decades of case law, the Court
held that a failure to object to advisory-only instructions in criminal trials before Stevenson
v. State,
289 Md. 167 (1980), “w[ould] not constitute a waiver” of a challenge to those
instructions in a proceeding under Maryland’s Post Conviction Procedure Act. Unger,
427
Md. at 391.13 The same rule would apply in the coram nobis context, see Skok,
361 Md. at
79 (“[T]he same body of law concerning waiver and final litigation of an issue, which is
applicable under the Maryland Post Conviction Procedure Act, shall be applicable to a
coram nobis proceeding challenging a criminal conviction.” (cleaned up)), which meant
that Bodeau finally had a facially valid claim for coram nobis relief.14
13
The developments that led to the Court’s decision in Unger and the Court’s reasoning
therein are well explained in other opinions by this Court and the Court of Appeals. See,
e.g., State v. Adams-Bey, 449 Md. 690, 694–96 (2016); State v. Waine,
444 Md. 692, 695–
96 (2015); Unger, 427 Md. at 387–91, 411–18; Calhoun-El v. State,
231 Md. App. 285,
291–96 (2016). The details of this evolution are not important to our analysis. All that
matters is that Bodeau’s failure to have objected to the advisory-only instructions given at
his 1971 trial would have been an impediment to obtaining coram nobis relief until the
Court of Appeals decided Unger. See Waine,
444 Md. at 696 (“The Unger decision
effectively opened the door to postconviction relief for persons tried during the era of the
advisory only jury instruction—an opportunity that had been foreclosed by Stevenson,
Montgomery, and Adams.”)
14
At least arguably, it might have been reasonable for someone in Bodeau’s position
to delay bringing a coram nobis claim even after Unger was decided. In State v. Waine,
444 Md. 692 (2015), the Court of Appeals held that the giving of improper advisory-only
instructions amounted to “structural error not susceptible to harmless error analysis,”
- 29 -
In short, Bodeau’s delay in challenging the advisory-only instructions from his 1971
trial began in 1981 when the Court of Appeals made the error clear in Montgomery. That
delay was reasonable until at least 2012, when Bodeau was facing significant collateral
consequences from the 1971 conviction; when the scope of coram nobis had been expanded
to encompass legal errors like the circuit court’s allegedly improper advisory-only
instructions; and when, finally, under Unger, Bodeau’s failure to have objected to those
instructions at trial no longer precluded him from seeking coram nobis relief. Bodeau’s
delay in raising the issue before he had both an incentive and a viable mechanism to do so
should not be held against him. There is nothing equitable about penalizing a litigant who
chooses not to clutter the circuit court’s docket with a petition that is doomed to failure.
At some point thereafter, however, we think Bodeau’s delay became unreasonable.
Almost seven years passed between the Court’s decision in Unger and the time that Bodeau
filed his coram nobis petition. We know that Bodeau is not a lawyer; we do not assume
that he reads the opinions of our appellate courts the day they are published. But to avoid
a laches problem, coram nobis petitioners must show reasonable diligence in asserting their
rights. We do not think Bodeau satisfied this requirement by sitting on a facially valid claim
for coram nobis relief for seven years.
requiring the vacatur of a conviction in an action for post-conviction relief. Id. at 705.
Bodeau does not make this argument, and we will not address it.
- 30 -
Based on the record before us, we are not sure that we can fairly decide exactly when
Bodeau’s post-Unger delay in filing became unreasonable.15 In his case, however, we need
not decide how long was too long. For the reasons we outline in the next section of our
analysis, the State did not make a showing of prejudice sufficient to sustain its laches
defense, even if we assume that Bodeau’s unreasonable delay began the day Unger was
filed.
b. Prejudice to the State
As we explained above, prejudice is an “essential element” of a laches defense.
Salisbury Beauty Schools v. State Board of Cosmetologists, 268 Md. 32, 63 (1973). In the
context of a coram nobis petition, “prejudice involves not only the State’s ability to defend
against the coram nobis petition, but also the State’s ability to reprosecute.” Jones,
445 Md.
at 357. The State need not establish that reprosecution would be “impossible.”
Id. at 360.
Instead, the State must simply show that the petitioner’s unreasonable delay “places the
State in a less favorable position for purposes of reprosecuting the petitioner.”
Id. (cleaned
up).
15
At oral argument, counsel for Bodeau suggested that in deciding whether his delay
in filing was reasonable, we should consider that it took some time for the Office of the
Public Defender to identify clients, like Bodeau, with arguments made actionable as a result
of Unger. We decline to do so because the issue was not presented to the circuit court. (Nor
was it briefed.)
We are aware that public defenders bear heavy caseloads, and many of their cases
involve deadlines that may be more urgent and rigid than those for coram nobis relief. But
our decision must be based on the record before us and not what we know—or think we
know—about that agency’s workload and resources.
- 31 -
The State has identified several ways in which its ability to reprosecute Bodeau has
been hampered. A key eyewitness from Bodeau’s 1971 trial has died, and the homeowner–
victim, ninety-four years old at the time of the May 2019 hearing before the circuit court,
has no memory of the events surrounding the burglary. Cf. id. (“It is difficult to imagine
anything more prejudicial than the circumstance that the State’s only eyewitness can no
longer testify about what the eyewitness saw.”). A trial transcript exists, but this would be
a poor substitute for live witness testimony. Cf.
id. at 361 (“[T]he State would . . . be
prejudiced by being forced to rely on a document instead of testimony—which would have
constituted more compelling evidence.”). The original court file for the case has been
destroyed, and neither the State’s Attorney nor the police department who investigated the
burglary still has a file on the case. All physical evidence that would have been stored with
these files is also unavailable.16
But the State did not establish that it occupies this “less favorable position” as a result
of Bodeau’s unreasonable delay in asserting his rights. See Frederick Road, 360 Md. at
117 (“[L]aches . . . applies when . . . an unreasonable delay in the assertion of one’s
rights . . . results in prejudice to the opposing party.” (emphasis added)). As we said in the
previous section of our analysis, Bodeau’s delay in asserting his rights could not have been
16
At the hearing before the circuit court, the State also noted that it had not yet made
contact with the detective who investigated the case. The State told the circuit court nothing
about an attempt to contact Bodeau’s co-defendant, who also testified at Bodeau’s 1971
trial. From these facts, we cannot conclude that these witnesses would be unavailable at a
new trial, prejudicing the State. The status of these witnesses apparently did not factor into
the circuit court’s prejudice conclusions either.
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unreasonable until, at the earliest, the Court of Appeals decided Unger on May 24, 2012.
The neighbor–witness who testified at Bodeau’s 1971 trial died in 2003, and the original
court file for the case was destroyed in 2006. Both of these things occurred before Bodeau’s
unreasonable delay in asserting his rights began. The State put on no evidence as to when
its own case files or those of the investigating police department disappeared. For all we
know, these files would have been unavailable even if Bodeau had filed his claim the day
Unger was decided—or even a decade before. Nor did the State establish the unavailability
of two other critical witnesses: the co-defendant who testified against Bodeau and the now
retired Montgomery County Police detective who had handled the case. The State similarly
failed to put on any evidence to suggest that the ninety-four-year-old homeowner–victim
only recently lost his memory of the events surrounding the 1970 burglary. By 2012, the
homeowner–victim was already eighty-seven years old, and four decades had passed since
the crime was committed. It is generally acknowledged that memories fade over time, but
we cannot agree that this kind of inevitable incremental deterioration of evidence is enough
to satisfy the prejudice requirement for laches. Otherwise, the fact of delay itself would be
sufficient to establish prejudice. Something more is required.
Because the State has not established by a preponderance of the evidence that it has
been prejudiced by Bodeau’s unreasonable delay, its laches defense must fail. In reaching
this conclusion, we do not endorse Bodeau’s argument that the State, to establish prejudice,
would have to “pinpoint what ‘important information’ was lost” when the original court
and prosecution files for the case were destroyed. We do not see how prosecutors handling
a case from nearly fifty years ago would be able to “pinpoint” information now missing
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from a file that they, in all likelihood, have never seen before. Nor do we endorse Bodeau’s
argument that the State cannot establish prejudice without showing a “compelling interest”
in retrying him to ensure that his life-without-parole sentence remained intact. Bodeau
offers no legal authority to support this proposition, so we need not address it.
5. Bodeau’s add-on arguments
In addition to his arguments about unreasonable delay and prejudice, Bodeau suggests
in his briefs that “the merits of [his] coram nobis petition also strongly weigh against
applying the doctrine of laches.” He emphasizes that the instructional error alleged was
structural—not subject to harmless-error analysis—and “of the sort that will always
invalidate the conviction,” State v. Adams-Bey, 449 Md. 690, 708 (2016)—at least in post-
conviction proceedings. He notes that if he were still serving his sentence for daytime
burglary, he would undoubtedly be entitled to a new trial through post-conviction-relief
proceedings. Fairness, Bodeau maintains, requires that Bodeau receive the same relief in
the coram nobis context.
As we understand these arguments, Bodeau essentially maintains that when an alleged
error is especially egregious and could be addressed in proceedings for post-conviction
relief, the equitable defense of laches should not bar a petition for a writ of error coram
nobis. Bodeau does not offer any support for this fairness-based add-on to the conventional
two-pronged laches inquiry. Because it is not our job to find support for him, we will not
address this argument. See HNS Development, LLC v. People’s Counsel for Baltimore
County, 425 Md. 436, 459 (2012).
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B. Reaching the merits of Bodeau’s petition
Bodeau also argues that if we conclude that the State’s laches defense fails, then we
“may reach the merits of [his] coram nobis petition without remanding the case to the
circuit court for further consideration.” “Everything this Court needs to know to address
the merits is available in the record,” he says. That the circuit court gave an erroneous
advisory-only instruction is clear from the trial transcript, he argues. “Without a shadow of
a doubt, [that] instruction was improper under Stevenson, Montgomery, and Unger” and
“indisputably constituted structural error under Waine and Adams-Bey.” Bodeau says that
the State “did not even attempt to challenge” his petition on its merits before the circuit
court.
The State responds that “the legality of the [advisory-only] jury instruction is not the
only issue in determining whether the issuance of the writ would be warranted.” A remand
to the circuit court is necessary, the State says, “to determine whether Bodeau is suffering
significant collateral consequences from his [1971] conviction[] and whether granting the
extraordinary writ of error coram nobis will achieve justice.”
In his reply brief, Bodeau argues that there was no “genuine dispute” before the circuit
court as to whether Bodeau is suffering a significant collateral consequence from his 1971
conviction and that, accordingly, the State has “abandoned” any argument on that score. In
response to the State’s interests-of-justice argument, Bodeau argues, in effect, that the
circuit court would be all but required to reach the conclusion that issuing the writ would
be in the interests of justice in this case: “[I]f the giving of an ‘advisory only’ instruction
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constitutes structural error requiring reversal of convictions in the post-conviction context,
it is difficult to fathom why it would not demand reversal in the coram nobis context too.”
We agree with the State that the case should be remanded to the circuit court. To obtain
coram nobis relief, a petitioner must establish, among other things, that he “faces
significant collateral consequences from the [challenged] conviction.” Jones v. State, 445
Md. 324, 338 (2015) (cleaned up). An enhanced sentence predicated in part on the
challenged conviction may qualify as a significant collateral consequence. Parker v. State,
160 Md. App. 672, 687–88 (2005). But if the petitioner would have received the enhanced
sentence even without the challenged conviction, he may not be suffering a significant
collateral consequence. See
id. at 688.
In this case, there is clearly a factual dispute between the parties about whether Bodeau
would still have been eligible for a life-without-parole sentence in 1989 if he had not been
convicted of daytime-burglary in 1971. This factual dispute was generated by the State in
its answer to Bodeau’s petition, and it was not resolved before the circuit court. We decline
the invitation to engage in any exercise of appellate fact-finding; the circuit court is entitled
to take the first shot. See Hartford Fire Insurance Company v. Estate of Sanders, 232 Md.
App. 24, 39 (2017) (“Appellate courts do not make factual findings . . . .”).
Even in the absence of a factual dispute about whether Bodeau is suffering a significant
collateral consequence from his 1971 daytime-burglary conviction, it would still be
inappropriate for this Court to attempt to resolve the merits of the petition. As the Court of
Appeals has recently explained, “coram nobis relief is an extraordinary remedy that should
be allowed only under circumstances compelling such action to achieve justice.” State v.
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Rich, 454 Md. 448, 470 (2017) (cleaned up). Even when a petitioner satisfies the
preconditions to obtaining coram nobis relief, the decision whether to grant this
“extraordinary” remedy ultimately resides in the circuit court’s sound discretion. Franklin
v. State, ___ Md. ___, No. 57, 2019 Term, slip op. at 12,
2020 WL 4696779, at *6 (filed
August 13, 2020). It is the circuit court which decides, in the first instance, whether the
circumstances of the particular case compel the issuance of a writ of error coram nobis “to
achieve justice.” Our task is to review the circuit court’s exercise of this discretion for
abuse—not to exercise that discretion on the circuit court’s behalf.
C. The State’s add-on argument
Juxtaposed to its argument that this Court cannot appropriately resolve the merits of
Bodeau’s petition, the State contends that even if Bodeau would not have received an
enhanced sentence without the 1971 conviction for daytime burglary, he is ineligible for
coram nobis relief because he is not “suddenly” facing a significant collateral consequence.
We do not view this as a basis for remanding the case to the circuit court but rather as a
separate and independent basis by which to affirm the circuit court’s judgment—an
argument that Bodeau’s coram nobis petition could not succeed on its merits, rendering
remand unnecessary.
The State roots its argument in language from the Court of Appeals’ opinion in Skok
v. State, 361 Md. 52 (2000), in which the Court reasoned that “there should be a remedy
for a convicted person who is not incarcerated and not on parole or probation, who is
suddenly faced with a significant collateral consequence of his or her conviction, and who
can legitimately challenge the conviction on constitutional or fundamental grounds.”
Id. at
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78 (emphasis added). In our view, the State places an undue amount of weight on the word
“suddenly,” contending that to qualify for coram nobis relief, Bodeau must show that his
enhanced sentence was a “sudden and unexpected collateral consequence” of his 1971
conviction and that he cannot make this showing for two reasons.
First, the State says that because the possibility of a sentencing enhancement arose
from “criminal conduct fully within Bodeau’s control” and “should have been plain the
moment he committed the crime for which he was convicted in 1989,” he is not “suddenly”
facing a significant collateral consequence from an earlier conviction because the
consequence was a foreseeable result of later criminal conduct. Accepting this argument
would necessarily lead to the conclusion that anyone who has received an enhanced
sentence is ineligible for coram nobis relief because the possibility of sentence
enhancement is always “plain” the moment someone knowingly engages in criminal
conduct after receiving an earlier conviction. This conclusion is untenable. One of the
principal reasons why the Court of Appeals expanded the scope of coram nobis relief in
Skok was because “serious collateral consequences of criminal convictions ha[d] become
much more frequent in recent years,” due in part to “a proliferation of recidivist statutes
throughout the country.” 361 Md. at 77.
Second, the State says, Bodeau has been serving his life-without-parole sentence for
thirty years now; Bodeau isn’t “suddenly” facing a significant collateral consequence of
his 1971 conviction because the novelty of his life-without-parole sentence has long since
faded. This argument ignores the fact that a petitioner may suffer from the collateral
consequences of a conviction years before he has a viable mechanism to challenge that
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conviction. The circumstances of Bodeau’s case, explained in our laches analysis, make
this clear.
Simply put, the State has tried to read into Skok a requirement for coram nobis relief
not contemplated by our courts. A petitioner for coram nobis relief “suddenly” faces
significant collateral consequences simply because that consequence was not known to him
at the time of conviction. See id. at 77 (“Very often in a criminal case, because of a
relatively light sanction imposed or for some other reason, a defendant is willing to forego
an appeal even if errors of a 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.” (cleaned up)); see also
Peterson v. State,
467 Md. 713, 734 (2020) (explaining that a “collateral consequence” is
one that was “excluded from the court’s judgment” in the earlier criminal case and that was
“not a definite, practical consequence of the conviction” (cleaned up)); Vaughn v. State,
232 Md. App. 421 (2017) (“[W]e know of [no case] where any appellate court in this State
has held that a petitioner for coram nobis relief meets the ‘significant collateral
consequence’ requirement by pointing to a consequence of the guilty plea that the petitioner
knew about on the day he pled guilty.” (emphasis in original)).
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Conclusion
As historian David Blight has put it, “Context and timing are often all.” David W.
Blight, Frederick Douglass: Prophet of Freedom xv (2018). This is certainly so when a
party seeks to assert the equitable defense of laches to bar a petition for a writ of error
coram nobis. Bodeau’s decades-long delay in challenging the advisory-only instructions
from his 1971 trial was substantial. But, viewed in context, that delay became unreasonable
only after the Court of Appeals’ decision in Unger v. State, 427 Md. 383 (2012). Because
the State has not shown any prejudice arising after the point at which Bodeau’s delay
became unreasonable, the State’s laches defense must fail. The circuit court erred in
reaching a contrary conclusion. We will remand this case to the circuit court so that it can
address the merits of Bodeau’s coram nobis petition.
THE JUDGMENT OF THE CIRCUIT
COURT FOR MONTGOMERY COUNTY
IS REVERSED AND THIS CASE IS
REMANDED FOR PROCEEDINGS
CONSISTENT WITH THIS OPINION.
COSTS TO PAID BY MONTGOMERY
COUNTY.
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