Does the Law of the Case Doctrine Make or Break the State’s Case? (Part 2)

May 3, 2017

In yesterday’s post, I began my discussion of the law of the case doctrine and how it relates to Adnan’s case. In its Reply Brief and Appendix of Cross-Appellee, the State cited language from the opinion of the Court of Appeals of Maryland in Fidelity-Baltimore Nat. Bank & Trust Co. v. John Hancock Mut. Life Ins. Co., 142 A.2d 796 (Md. 1958) regarding the doctrine:

Once this Court has ruled upon a question properly presented on an appeal, or, if the ruling be contrary to a question that could have been raised and argued in that appeal on the then state of the record, as aforesaid, such a ruling becomes the ‘law of the case’ and is binding on the litigants and courts alike, unless changed or modified after reargument, and neither the questions decided nor the ones that could have been raised and decided are available to be raised in a subsequent appeal. (emphasis added by Reply Brief).

In yesterday’s post, I focused on the non-italicized portion of this language for the easy conclusion that Judge Welch was not barred by the law of the case doctrine from reversing his prior order on the Asia/alibi issue. In today’s post, I will focus on the italicized portion of this language to address the more difficult question of whether Judge Welch was barred by the law of the case doctrine from considering the cell tower issue.

Let’s start with the basics. Maryland Rule of Criminal Procedure 7-106(a) and (b) provide that

(a) For the purposes of this title, an allegation of error is finally litigated when:

(1) an appellate court of the State decides on the merits of the allegation:

(i) on direct appeal; or

(ii) on any consideration of an application for leave to appeal filed under § 7-109 of this subtitle; or

(2) a court of original jurisdiction, after a full and fair hearing, decides on the merits of the allegation in a petition for a writ of habeas corpus or a writ of error coram nobis, unless the decision on the merits of the petition is clearly erroneous.

(b)

(1)

(i) Except as provided in subparagraph (ii) of this paragraph, an allegation of error is waived when a petitioner could have made but intelligently and knowingly failed to make the allegation:

1. before trial;

2. at trial;

3. on direct appeal, whether or not the petitioner took an appeal;

4. in an application for leave to appeal a conviction based on a guilty plea;

5. in a habeas corpus or coram nobis proceeding began by the petitioner;

6. in a prior petition under this subtitle; or

7. in any other proceeding that the petitioner began.

(ii)

1. Failure to make an allegation of error shall be excused if special circumstances exist.

2. The petitioner has the burden of proving that special circumstances exist.

(2) When a petitioner could have made an allegation of error at a proceeding set forth in paragraph (1)(i) of this subsection but did not make an allegation of error, there is a rebuttable presumption that the petitioner intelligently and knowingly failed to make the allegation.

Rule 7-106 contains the waiver provision in Maryland’s Uniform Postconviction Procedure Act. See Arrington v. State, 983 A.2d 1071, 1085 (Md. 2009) (“The UPPA also, in CP Section 7-106, established limits on what could be raised in a postconviction proceeding by introducing the doctrine of ‘waiver.'”).

The State of Maryland has noted on multiple occasions that Rule 7-106 and the law of the case doctrine cover the same ground. See, e.g., Brief of Appellant, State v. Winston, 2016 WL 6473179 (Md.App. 2016) (“In that application, the State argued that leave to appeal was warranted because Winston’s breach claim: (1) had been waived under Crim. Proc. § 7-106(b) and general principles of waiver (E. 165); (2) was procedurally barred under Crim. Proc. § 7-106(a) as having been finally litigated in Winston I (E. 166); (3) was, for the same reason, barred by principles of res judicata and law of the case.“); Motion to Dismiss and Brief and Appendix of Appellee, Kinard v. State, 2010 WL 2356263 (Md.App. 2010) (“This Court rejected Kinard’s claim of insufficient evidence in his direct appeal and that holding is now the law of the case. (Apx. 1-6). See Scott, 379 Md. at 183-84 *14 (decisions rendered by a prior appellate panel will generally govern the subsequent appeal at the same appellate level). Kinard’s allegation regarding the improper use of his co-defendant’s statement is waived because he did not raise it on direct appeal. Md. Code Ann., Crim. Pro., § 7-106 (b)(2) (2009).”) (emphases added).

This helps to explain why Judge Welch was not barred from reversing his prior order on the Asia/alibi claim under Rule 7-106 and/or the law of the case doctrine. Because the Court of Special Appeals granted Adnan leave to appeal this issue but then remanded the case back down to Judge Welch, that issue was never finally litigated. Conversely, if the Court of Special Appeals had denied Adnan leave to appeal, Judge Welch’s prior order would have become final under Maryland Rule of Criminal Procedure 7-109(b)(4). See Rule 7-109(b)(4) (“If the application for leave to appeal is denied, the order sought to be reviewed becomes final.”). Therefore, the issue would have been “finally litigated” under Maryland Rule of Criminal Procedure 7-106(a)(1)(ii), and Judge Welch would have been precluded from reversing his prior order under the law of the case doctrine. See Brief and Appendix of Appellee, Smith v. State, 2006 WL 6628777 (Md.App. 2006) (“In the June 23, 1992, memorandum and order by the Honorable David Ross, a copy of which is attached, Judge Ross ruled that this issue was litigated in Smith’s first post conviction petition, and that, considering that this Court denied Smith’s application for leave to appeal, this issue has been finally litigated. (Apx. 8). See Scott v. State, 379 Md. 170, 183-84 (2004) (generally, the “law of the case doctrine is one of appellate procedure”); accord Haskins v. State, ___ Md. App. ___, No. 1802, Sept. Term, 2005 (filed October 2, 2006) (slip op. at 8); see also Md. Code Ann., Crim. Pro., § 7-106(a).”).

This takes us to the cell tower claim in the Adnan Syed case. Essentially, the issue boils down to this: Does the law of the case doctrine apply the same for questions that could have been raised on appeal and questions that were raised on appeal? In other words, do the questions/claims in a first PCR petition have to be “finally litigated” before the law of the case doctrine precludes a defendant from bringing a question/claim that could have been, but was not, brought in the first PCR petition? Or, alternatively, in this scenario, does the law of the case doctrine attach (1) when the defendant files his first PCR petition; (2) after the PCR proceeding in circuit court; or (3) after the PCR judge issues his order?

Rule 7-106(b)(1)(i)(6) and Rule 7-106(b)(2) are unclear on this point. Rule 7-106(b)(1)(i)(6) might be read to say that the law of the case doctrine applies the moment a first PCR petition is filed. But, as I noted in this post, that’s clearly not true. Instead, in Poole v. State, 203 Md.App. 1 (Md.App. 2012), the Court of Special Appeals of Maryland found that a defendant is “freely allowed” to amend a timely PCR petition with claims that could have been raised in that original petition, even if the amendment comes after the ten year statute of limitations has expired.

On the other hand, a defendant could cite to Rule 7-106(b)(1)(i)(6) to claim that the law of the case doctrine never precludes a defendant from bringing new claims as part of a motion to reopen under Maryland Rule of Criminal Procedure 7-104. This makes a certain amount of sense because a successful motion under Rule 7-104 reopens a defendant’s initial PCR petition/proceeding, which could mean that there is no “prior petition” under Rule 7-106(b)(1)(i)(6).

As the State in Adnan’s case notes in its Reply Brief, however, the Court of Appeals of Maryland rejected this argument in Arrington v. State, 983 A.2d 1071 (Md. 2009). Here’s the court’s discussion of the issue:

At the time of his Motion to Reopen Postconviction Proceeding and for New Trial, Arrington had already filed a petition for postconviction relief based on ineffective assistance of counsel, a claim that was resolved against him in the first postconviction proceeding.

Arrington argues that this was not a “prior petition” under Subtitle 7:

The [postconviction court] erred because it misunderstood the difference between a second successive petition and a proceeding that is reopened. Once a postconviction petition is reopened, its status is that of the initial postconviction. In other words, it is as if the postconviction proceeding was never closed. Consequently, Arrington was entitled to raise any issue that could have been raised in the initial postconviction proceeding.

If one were to focus only on the word “reopen,” this argument would have some initial appeal because the word suggests a return to the original proceeding, during which the petitioner was free to present his contentions without the restraint of Section 7-106(b)(1)(ii)(6). But, even with this limited focus, equally appealing is the argument that a return to the original postconviction proceeding simply means that the petitioner has the right to assert the arguments he made there, plus present the new DNA evidence. When we consider the issue in the context of the overall statutory scheme regarding postconviction proceedings as set forth in the UPPA, the scales tip against Arrington’s position.

Of course, the State uses Arrington to claim that Rule 7-106 and the law of the case doctrine apply to Adnan’s motion to reopen, meaning that he can’t bring his cell tower claim. But there’s an important distinction between Adnan’s case and Arrington. Possibly two.

The first is that Arrington’s original PCR petition was “finally litigated.” Then, he brought his motion to reopen based on DNA testing. Therefore, it could be said that the conclusion in Arrington is unremarkable because it is clear that, under any interpretation of the law of the case doctrine, Rule 7-106 applies to claims that could have been brought in a prior PCR petition that was “finally litigated.”

By way of contrast, what makes Adnan’s case so unique is that his first PCR petition was not “finally litigated.” Instead, the Court of Special Appeals remanded the petition back to the circuit court before reaching the merits of that petition. So, this takes us back to the foundational question: Do the questions/claims in a first PCR petition have to be “finally litigated” before the law of the case doctrine precludes a defendant from bringing a question/claim that could have been, but were not., brought in the first PCR petition?

The answer seems to be yes. The key case here appears to be Schisler v. State, 938 A.2d 57 (Md.App. 2007), where the Court of Special Appeals of Maryland held that

the rule of John Hancock is that under the law of the case doctrine, litigants cannot raise new defenses once an appellate court has finally decided a case if these new defenses could have been raised based on the facts as they existed prior to the first appeal….

And there it is. The Court of Special Appeals of Maryland has held that the law of the case doctrine only prevents a defendant from raising new defenses/claim “once an appellate court has finally decided a case….” Therefore, because the Court of Special Appeals did not finally decide Adnan’s PCR petition before remanding the case back to the circuit court, the law of the case doctrine/Rule 7-106 does not preclude Adnan from bringing the new cell tower claim.

Of course, the court in Schisler cited to John Hancock, and the quote from that opinion that led this post seems to support this proposition as well. Take another look at the beginning of that quote: “Once this Court has ruled upon a question properly presented on an appeal, or, if the ruling be contrary to a question that could have been raised and argued in that appeal on the then state of the record…” (emphasis added). The beginning of this quote makes clear that the triggering mechanism for either part of the law of the case doctrine — the same issue part and the new issue part — is a ruling by the appellate court. But, in Adnan’s case, the Court of Special Appeals never made such a ruling; instead, it remanded back to the circuit court without making a ruling.

The second possible distinction between Adnan’s case and Arrington can be found in Section 7-102(b)(2) of the Maryland Code of Criminal Procedure, which states that

(b) A person may begin a proceeding under this title if:

(2) the alleged error has not been previously and finally litigated or waived in the proceeding resulting in the conviction or in any other proceeding that the person has taken to secure relief from the person’s conviction.

This takes us back to Poole, which held that the UPPA only applies to petitions that “begin a proceeding” and does “not apply to amendments.” In Trimble v. State, 849 A.2d 83 (Md. 2004), which I discussed yesterday, the Court of Appeals of Maryland found that the law of the case doctrine precluded a defendant’s new request for appointment of counsel to assist him in obtaining DNA testing, in part because “no matter was pending before the trial court when Trimble filed his motion for the appointment of counsel.” The same applied in Arrington. Arrington’s first PCR petition was “finally litigated” and dead at the time that he brought his new claim. Therefore, in each case, the defendant was seeking to “begin a proceeding.”

But this arguably wasn’t the case for Adnan. When Adnan filed his motion to reopen, there was a matter pending before the circuit court. The Court of Special Appeals had not “finally litigated” his first PCR petition and instead remanded the case so that Adnan could file his motion to reopen. Therefore, it’s tough to see how Adnan’s motion to reopen was “begin[ning] a proceeding.”

It’s even tougher to see how Adnan’s motion to reopen was “begin[ning] a proceeding” when both the State and the defense agree that Judge Welch’s discretion was restricted (to differing degrees) by the Court of Special Appeals’s remand order. How was the motion to reopen the beginning of a new proceeding as opposed to the continuation of an existing proceeding if Judge Welch’s discretion was limited by the remand order?

It’s even tougher to see how Adnan’s motion to reopen was “begin[ning] a proceeding” when we consider how Judge Welch handled Adnan’s motion for bail. Judge Welch denied that motion, concluding that he had to view it “in light of the instructions and directives set forth in the Remand,” which, inter alia, ordered that “after taking any action it deems appropriate the circuit court shall forthwith re-transmit the record to this Court for further proceedings.” Given this language, how can we construe Adnan’s motion to reopen as a motion “begin[ning] a proceeding” as opposed to a motion that continued a current proceeding.

That said, Maryland Rule of Criminal Procedure 7-104 does state that

The court may reopen a postconviction proceeding that was previously concluded if the court determines that the action is in the interests of justice.

Does this mean that a motion to reopen always “begin[s] a proceeding” “that was previously concluded”? And can Arrington really be distinguished from Adnan’s case, or should they be treated the same because they both involve motions to reopen?

It’s tough to say because there’s not really a Maryland case directly on point, and this aspect of the law of the case doctrine is a unique creature of Maryland law, so federal precedent can’t help us resolve the issue. See Holloway v. State, 2017 WL 1174883 (Md.App. 2017) (“At the same time, we recognize that there is a noticeable difference in the application of the law of the case doctrine in federal court and in Maryland. In Maryland, the law of the case doctrine applies to both questions that were decided and questions that could have been raised and decided…. Under federal law, “the law-of-the-case doctrine only applies to issues the court actually decided.”).

But even this language from Holloway implies that an appellate court needs to reach the merits of an appeal for the law of the case doctrine to preclude new claims. As I noted yesterday, the law of the case doctrine only applies to decisions by an appellate court; it doesn’t apply to decisions by a circuit court. Therefore, Holloway and other cases should be read to say that “the law of the case doctrine applies to…questions that could have been raised and decided [by the Court of Special Appeals of Maryland].” In Adnan’s case, at the time of his motion to reopen, his cell tower claim could have already been raised, but it couldn’t have already been decided by the Court of Special Appeals of Maryland, which determined that it had to remand his case on the Asia/alibi issue before reaching the merits of Adnan’s appeal(s). Therefore, I think that neither the law of the case doctrine nor Rule 7-106 should preclude Adnan from brining his cell tower claim. But I will admit that this issue is much less clear than some of the other issues in this case, and it’s tough to predict whether the Court of Special Appeals will apply this reasoning.

-CM