Nero v. Warden, USP Allenwood et al
Filing
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MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 8/29/2016. (c/m 08/29/2016 jf3s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JAMES NERO
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Petitioner
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v
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WARDEN, USP ALLENWOOD, et al.
Respondents
Civil Action No. DKC-16-852
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*
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MEMORANDUM OPINION
Respondents filed an Answer to the above-captioned Petition for Writ of Habeas Corpus
(ECF No. 3) and Petitioner filed a Reply (ECF No. 4). The petition challenges Petitioner James
Nero’s conviction for armed robbery in the Circuit Court for Montgomery County, Maryland.
Although the petition was presented as one filed pursuant to 28 U.S.C. § 2241, it is appropriately
analyzed under 28 U.S.C. § 2254 because it concerns a state criminal conviction.1 Upon review
of the papers filed, the court finds no need for an evidentiary hearing. See Rule 8(a), Rules
Governing Section 2254 Cases in the United States District Courts and Local Rule 105.6 (D.
Md. 2016); see also Fisher v. Lee, 215 F. 3d 438, 455 (4th Cir. 2000) (petitioner not entitled to a
hearing under 28 U.S.C. § 2254(e)(2)).
For the reasons that follow, the petition must be
dismissed and a Certificate of Appealability shall not issue.
Background
Prior State Court Proceedings
On May 24, 2001, following a jury trial, Petitioner James Nero (“Nero”) was convicted in
the Circuit Court for Montgomery County of two counts of armed robbery, four counts of first
degree assault, four counts of use of a handgun in the commission of a felony or crime of
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The subject-matter of the pleading filed, rather than the label chosen, controls the governing standard of
law. See e.g., Calderon v. Thompson, 523 U.S. 538, 554 (1998).
violence, two counts of reckless endangerment, and one count of conspiracy to commit robbery.
ECF No. 3 at Ex 2, p. 2; ECF No. 1 at p. 3. On August 1, 2001, the court sentenced Nero to 100
years in prison. ECF No. 3 at Ex. 2, p. 2.
On May 7, 2002, Nero’s judgment of conviction was affirmed by the Maryland Court of
Special Appeals in an unreported opinion. Id. at p. 45. The mandate issued on June 6, 2002. Id.
at p. 46. Nero did not seek certiorari review in the Court of Appeals. The conviction became
final on June 21, 2002, when the time for seeking further review expired. See Md. Rule 8-302.
On September 6, 2001, Nero filed a motion for reconsideration of sentence. ECF No. 3 at
Ex. 1, p. 30 (state docket entries; docket entry #167). The motion, which was opposed by the
state (see id. at docket entry #168), was denied by the Circuit Court on October 5, 2001. Id. at p.
31 (docket entry #171).
Respondents correctly note that Nero has never filed a petition for post-conviction relief
in the state court. Nero did, however, file a request for production of documents on June 21,
2004, together with a motion to waive prepayment of costs. ECF No. 3 at Ex. 1, pp. 31 – 32
(docket entry # 176 and 177). On June 30, 2004, Judge Rupp of the Circuit Court denied Nero’s
motion. Id. at p. 32 (docket entry #178). On August 30, 2004, following the court’s denial, Nero
sent a letter to the court (id. at docket entry #179) and a response dated September 2, 2004 from
Judge Rupp, is noted on the docket. Id. (docket entry #180). The response indicates that, “this
will be treated as a letter to the court and the letter will not be entertained, defendant’s request
for production of documents was denied on June 30, 2004.” Id.
Claims raised in this court
Nero is a prisoner confined in the Federal Bureau of Prisons United States Penitentiary in
Allenwood, Pennsylvania. In the Petition for Writ of Habeas Corpus filed in this court, Nero
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asserts that “the jurisdiction of Maryland” violated his right to due process by denying his
request for a copy of the transcripts for his criminal trial so that he could raise a claim of
ineffective assistance of trial counsel in collateral proceedings. ECF No. 1 at p. 4. He asserts
that trial counsel was ineffective for failing to challenge the sufficiency of the evidence (id. at p.
6); committing so many “cumulative errors” (id. at pp. 6 – 7); failing to challenge the validity of
the indictment (id. at p. 7); failing to investigate and familiarize himself with the case (id.);
failing to investigate police reports and forensic reports (id.); failing to seek suppression of
evidence and uncorroborated testimony (id. at p. 8); failing to object to the testimony of a
detective regarding use and possession of firearms from another jurisdiction (id.); and failing to
challenge “sentencing enhancement for Armed Career Criminal and Career Criminal for
predicate offenses and prior convictions” (id.). Nero further asserts generally that had “counsel
been more adversarial in testing the prosecution’s case the outcome of [the trial] would have
been different” because the evidence against him was “circumstantial at best.” Id. at p. 10.
Nero also claims that during the “supposed testimony” of Mark Lee, he and his trial
counsel were dismissed from the court room. Id. He asserts that Lee “could have retained
exculpatory material relevant” to Nero’s case because Lee’s cooperation with the Montgomery
County Police is the reason Nero was investigated. Nero states that Lee offered testimony and
then recanted, but Nero never had the opportunity to challenge, refute, or correct the testimony
given by Lee. Id. at p. 11.
Standard of Review
When filing a federal habeas corpus application under 28 U.S.C. § 2254, a petitioner
must show that all of his claims have been presented to the state courts. 28 U.S.C. § 2254(b) and
(c); see also Preiser v. Rodriguez, 411 U.S. 475, 491 (1973). This exhaustion requirement is
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satisfied by seeking review of the claim in the highest state court with jurisdiction to consider it.
For a person convicted of a criminal offense in Maryland this may be accomplished either on
direct appeal or in post-conviction proceedings. Respondents do not assert that the claims raised
by Nero on direct appeal are unexhausted; indeed, Nero does not raise the claims asserted on
direct appeal. The operative state court proceedings at issue here is Nero’s failure to present his
claims to the state court in a petition for post-conviction relief.
To exhaust a claim through post-conviction proceedings, it must be raised in a petition
filed in the Circuit Court and in an application for leave to appeal to the Court of Special
Appeals. Md. Crim. Proc., Code Ann. § 7-109. If the Court of Special Appeals denies the
application, there is no further review available and the claim is exhausted. Md. Cts. & Jud.
Proc., Code Ann., § 12-202. However, if the application is granted but relief on the merits of the
claim is denied, the petitioner must file a petition for writ of certiorari to the Court of Appeals for
the claim to be considered exhausted for purposes of federal habeas relief. Williams v. State, 292
Md. 201, 210-11 (1981).
Under Maryland’s Post-Conviction Act, a petition for post-conviction must be filed
within 10 years of the date a criminal defendant is sentenced. Md. Crim. Proc., Code Ann. § 7103(b). In order to file a petition outside of those time constraints, “extraordinary cause” must
be established by the petitioner. Id. Nero’s conviction is more than ten years old, thus the
extraordinary cause standard would apply to any petition for post-conviction he attempts to file
now.
In addition to the exhaustion requirement, Petitions for Writ of Habeas Corpus filed
pursuant to 28 U.S.C. § 2254 are subject to a one-year statute of limitations. Under 28 U.S.C.
§ 2244(d).
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(1)
A one-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State
court. The limitation period shall run from the latest of(A)
(B)
the date on which the impediment to filing an application
created by State action in violation of the constitution or laws
of the United States is removed, if the applicant was prevented
from filing by such State action;
(C)
the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D)
(2)
the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of
due diligence.
the time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any
period of limitation under this subsection.
The one-year limitation is tolled while properly filed post-conviction proceedings are
pending and may otherwise be equitably tolled. 28 U.S.C. § 2244(d)(2); Harris v. Hutchinson,
209 F.3d 325, 328 (4th Cir.2000).
Analysis
Respondents assert that the claims raised by Nero are both unexhausted and time-barred.
ECF No. 3. In his reply, Nero argues that his petition is not time-barred because his efforts to
pursue state post-conviction remedies were thwarted by the state’s refusal to provide him with a
copy of his transcript.
ECF No. 4 at p. 2.
He urges this court to find “extraordinary
circumstances” with respect to his efforts over the past 10 to 15 years to obtain documents and
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states that he had to file suit “through the district court to get it.” Id. at pp. 2 – 3, see also ECF
No. 1-1 at p. 5.
Nero filed a diversity action in this court on April 22, 2010, asserting a claim under
Maryland’s Public Information Act. See Nero v. State of Maryland, Civil Action DKC-10-1024
(D. Md.). On May 7, 2010, the Office of the Attorney General Courts and Judicial Affairs
Division, filed correspondence with the court indicating that the documents Nero was seeking
would be provided to him at no expense. ECF No. 1-1 at p. 5. Nero indicates in his reply that he
prevailed in his 2010 claim against the State of Maryland. ECF No. 4 at p. 3.
Nero’s assertion that he was prevented from filing a post-conviction petition because of
obstacles created by the state, i.e., he could not obtain a copy of his trial transcripts, does not
excuse his failure to exhaust state remedies for the claims he raises in this court. The record here
demonstrates that, despite having obtained the transcript six years ago, Nero has not attempted to
present his claims of ineffective assistance of counsel to the state circuit court by way of postconviction proceedings. Whether Nero may now be permitted to file a state post-conviction
petition is a matter for the Circuit Court for Montgomery County to determine. This court may
not reach the merits of the claims asserted by Nero when the state court has not considered them.
The remaining issue regarding whether the instant petition is time-barred and whether Nero is
entitled to an equitable tolling of the statute of limitations are matters to be addressed after the
claims are exhausted in state court.
Accordingly, the Petition for Writ of Habeas Corpus shall be dismissed without prejudice
by separate Order which follows. When a district court dismisses a habeas petition solely on
procedural grounds, a certificate of appealability will not issue unless the petitioner can
demonstrate both “(1) ‘that jurists of reason would find it debatable whether the petition states a
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valid claim of the denial of a constitutional right’ and (2) ‘that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.’” Rouse v. Lee, 252 F.3d
676, 684 (4th Cir.2001) (quoting Slack v. Daniel, 529 U.S. 473, 484 (2000)). Nero has failed to
demonstrate that a debatable issue exists regarding the failure to exhaust state remedies, thus a
certificate of appealability shall not issue.
August 29, 2016
___________/s/_________________
DEBORAH K. CHASANOW
United States District Judge
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