Creighton, 87 Md.App. at 746, 591 A.2d 561. Two years after this Court decided Creighton, the Court of Appeals, in Fairbanks v. State, 331 Md. 482, 629 A.2d 63 (1993), left open the possibility that laches would apply in post conviction proceedings. There, the petitioner was subject to enhanced penalties as a repeat offender.
We disagree with the State that even in the thirty years since McMannis was decided, this Court has consistently restricted post-conviction relief to those petitioners who remained in custody until full completion of litigation. For that proposition, the State cites Ruby v. State , 353 Md. 100, 106 n.4, 724 A.2d 673 (1999) ; Fairbanks v. State , 331 Md. 482, 492 n.3, 629 A.2d 63 (1993) ; and Randall Book Corp. v. State , 316 Md. 315, 321, 558 A.2d 715 (1989). Those cases do not assist the State's cause.
The Act does not provide a remedy, for example, when the defendant is not incarcerated or subject to parole or probation. See Fairbanks v. State, 331 Md. 482, 492 n.3, 629 A.2d 63, 68 n.3 (1993) ("Post-conviction and habeas corpus remedies are available only if the defendant is in custody or subject to conditions of parole or probation." (citing McMannis v. State, 311 Md. 534, 539-47, 536 A.2d 652, 654-58 (1988))).
The statute, the State asserts, unequivocably says that no appeals are permitted in coram nobis cases. [5] Appellant relies on language in Fairbanks v. State, 331 Md. 482, 629 A.2d 63 (1993), as being supportive of his right to proceed under coram nobis. That opinion, authored by Judge McAuliffe, involved sentencing under a recidivist statute.
It is true, as the State notes, that two years later this Court stated briefly in dicta that a collateral attack on a conviction “might be barred by laches,” without any reference to the Creighton decision. Fairbanks v. State, 331 Md. 482, 492 n. 3, 629 A.2d 63 (1993). That case involved a sentencing proceeding with enhanced penalties for repeat offenders.
It is true, as the State notes, that two years later this Court stated briefly in dicta that a collateral attack on a conviction "might be barred by laches," without any reference to the Creighton decision. Fairbanks v. State, 331 Md. 482, 492 n.3, 629 A.2d 63 (1993). That case involved a sentencing proceeding with enhanced penalties for repeat offenders.
Hahn, 618 N.W.2d at 535. ¶ 57 That defendants should be required to challenge convictions under established statutory procedures designed for that purpose, such as post conviction relief, rather than during a subsequent proceeding, was discussed extensively by the Maryland Court of Appeals in the pre- Custis case of Fairbanks v. State, 629 A.2d 63 (Md. 1993). The Fairbanks Court first observed that the "spectrum of [constitutional] challenges" to a prior conviction is "necessarily broad," including, "in addition to denial of right to counsel claims . . . denial of effective representation by counsel, denial of right to jury trial, coerced confession, double jeopardy, self incrimination, uninformed or involuntary guilty plea, lack of due process, and the like."
See, e.g., United States v. Clark, 203 F.3d 358, 363 (5th Cir. 2000) ("Custis announced only a prohibition on [collateral attacks] in the context of federal sentencing hearings. This Court has consistently sanctioned the use of [federal habeas corpus statute] to attack a federal sentence being currently served on the ground that it was enhanced on the basis of a constitutionally invalid prior conviction.") vacated by 532 U.S. 1005 (2001); United States v. Walker, 198 F.3d 811, 814 (11th Cir. 1999) (applying Custis ban to prior conviction challenge at sentencing, but allowing habeas corpus attack in separate post-conviction proceeding); United States v. LaValle, 175 F.3d 1106, 1108 (9th Cir. 1999) (same); United States v. Garcia, 42 F.3d 573, 581 (10th Cir. 1994) (same); Fairbanks v. State, 629 A.2d 63, 68 (Md. 1993) ("A defendant who is prevented [by our ruling] from challenging the constitutionality of a prior conviction . . . during a sentencing proceeding . . . may thereafter mount a collateral challenge by any means that remain available, including post-conviction procedures . . ."). We also are unpersuaded by defendants' argument that requiring a defendant to proceed in a forum other than the sentencing court "would be cumbersome and lavishly wasteful of resources."
The State contends that no appeal may be taken in a coram nobis case brought to challenge a conviction or sentence. The State relies upon a portion of the pertinent language in the Maryland Post Conviction Procedure Act, which it quotes out of context, and upon four opinions by this Court, namely Fairbanks v. State, 331 Md. 482, 629 A.2d 63 (1993); Gluckstern v. Sutton, 319 Md. 634, 574 A.2d 898, cert. denied, 498 U.S. 950, 111 S.Ct. 369, 112 L.Ed.2d 331 (1990); Valentine v. State, 305 Md. 108, 501 A.2d 847 (1985); and Brady v. State, 222 Md. 442, 160 A.2d 912 (1960). Neither the language of the Post Conviction Procedure Act nor the cited opinions support the State's position.
In determining what burden of proof to impose, we have surveyed the foreign jurisdictions reviewed by the U.S. Supreme Court and more recent holdings. See, e.g., State v. Payne, 504 S.E.2d 335, 338 (S.C.App. 1998); People v. Carpentier, 521 N.W.2d 195 (IV) (Mich. 1994); James v. Commonwealth, 446 S.E.2d 900, 904 (Va.App. 1994); State v. Shelton, supra, 621 So.2d at 779 (La. 1993); Fairbanks v. State, 629 A.2d 63 (Md. 1993); State v. Triptow, 770 P.2d 146, 149 (Utah 1989). We find most persuasive and consonant with Georgia law the "middle position," which "requires the defendant to produce evidence of invalidity once the fact of conviction is proved but then shifts the burden back to the prosecution once the defendant satisfies his burden of production.