Nero v. Oddo et al
Filing
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MEMORANDUM OPINION. Signed by Judge Paula Xinis on 1/22/2018. (c/m 01/23/2018 - 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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L. J. ODDO, et al.
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Respondents
Civil Action No. PX-17-1263
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***
MEMORANDUM
Respondents seek dismissal of the above-entitled petition for writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254 on the grounds that it raises claims that have not yet been
exhausted before the state courts and it is time-barred. ECF No. 6. Petitioner does not deny that
the claims are unexhausted, but asserts that the procedural defects in the petition should be
waived based on his claim of actual innocence. ECF No. 9. 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.
I.
Background
A.
Prior Proceedings
Petitioner James Nero filed a similar petition with this court which was dismissed without
prejudice for failure to exhaust state remedies. See Nero v. Warden, Civ. Action DKC-16-852
(D. Md. 2016) (hereinafter “Nero I”). Nero did not file an appeal of the dismissal. Id. In its
Memorandum Opinion and Order dismissing the petition, this court provided the following
description of the 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 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 postconviction 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.
Nero I at ECF No. 5, pp. 1 – 2.
With respect to the current petition, respondents note that Nero has not initiated any state
court proceedings since his last federal habeas petition was dismissed on August 29, 2016. ECF
No. 6 at p. 1, n. 1, see also Ex. 1 at p. 32 (state court docket entries indicating docket entry #180
as most recent court activity).
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B.
Claims in this court
Nero argues that the State of Maryland violated his Fourth, Fifth, Sixth, Eighth, and
Fourteenth Amendment rights when it withheld trial transcripts from him thereby prohibiting
him from collaterally attacking his conviction through post-conviction procedures. ECF No. 1 at
p. 4. The court notes that Nero raised this allegation in Nero I and this court observed that:
“[t]he 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 post-conviction proceedings.” Nero I at ECF No. 5, p. 6.1
Nero also asserts that trial counsel was ineffective when he failed to cross-examine the
“only uncorroborated testimony against petitioner” given by the cashier from the jewelry store.
ECF No. 1 at p. 5. The cashier’s testimony was tainted, argues Nero, because the cashier
initially testified that he was unsure whether the persons who robbed the store were male or
female, but then identified Nero. Id. Nero claims this testimony is “tainted” because no other
witness stated the same uncertainty, and trial counsel failed to impeach adequately the witness
“where exculpatory evidence existed.” Id.
Nero seems to raise a Brady2 claim related to the cashier’s testimony, referencing “[t]hese
two major exculpatory issues of Mark Lee and the only uncorroborated induced testimony” and
claiming the issue “should be resolved by convening a hearing.” Id. He concludes that the
suppression of exculpatory evidence or the knowing use of perjured testimony violates due
process, but provides no further details regarding the alleged Brady violation. Id. at p. 6.
1
The court noted that Nero had prevailed in a diversity action he filed in this court on April 22, 2010,
asserting a claim under Maryland’s Public Information Act. Nero I at ECF 5, p. 6. In correspondence filed in the
context of that case, the Office of the Attorney General’s Courts and Judicial Affairs division indicated that the
documents Nero was seeking, which related to his state criminal case, would be provided to him at no expense. See
id., see also Nero v. State of Maryland, Civ. Action DKC-10-1024 (D. Md.).
2
Brady v. Maryland, 373 U.S. 83, 87 (1963).
3
Nero also argues that his trial counsel was ineffective for: failing to challenge the
sufficiency of the evidence by failing to introduce exculpatory evidence at trial; committing so
many cumulative errors that the proceedings did not produce a fair result; failing to protect
Nero’s Fourth Amendment rights when the attorney failed to argue that the indictment was
defective because none of the information contained therein was supported by a statement under
oath and no probable cause hearing was conducted in open court; failing to familiarize himself
with the case and investigate the facts regarding the identification of Nero as one of the
perpetrators; failing to investigate police reports and forensic reports; failing to move to suppress
the state’s evidence for insufficiency of the evidence; failing to challenge the use of testimony
from a District of Columbia Detective regarding use and possession of firearms from another
jurisdiction; failing to insure the evidence proved guilt beyond a reasonable doubt; and failing to
challenge sentencing enhancement for Armed Career Criminal and Career Criminal where the
predicate offense was a conviction obtained by an Alford 3 plea. ECF No. 1 at pp. 5 – 9.
Nero further asserts that at trial “he and his counsel were dismissed during the supposed
testimony of Mark Lee and not allowed to hear his testimony or lack thereof to the jury.” ECF
No. 1 at p. 10. He states that “Lee offered testimony then recanted and petitioner never had the
opportunity to challenge, refute or correct any of the testimony used to investigate petitioner.”
Id. at p. 11. Nero claims that Lee “previously stated on record that he and another person
participated in the robberies Nero was accused of committing.” Id.
II.
Standard of Review
A.
Exhaustion and Procedural Default
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
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North Carolina v. Alford, 400 U.S. 25 (1970).
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(c); see also Preiser v. Rodriguez, 411 U.S. 475, 491 (1973). This exhaustion requirement is
satisfied by seeking review of the claim in the highest state court with jurisdiction to consider it.
For a person convicted of Maryland criminal offense, this may be accomplished either on direct
appeal or in post-conviction proceedings. Respondents argue that Nero’s claims are unexhausted
because he failed petition the state court for post-conviction relief prior to filing this action.
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 denies relief on the
merits, 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 post-conviction petition for relief must be filed
within 10 years of the date a criminal defendant is sentenced. Md. Crim. Proc., Code Ann. § 7103(b).
To file a petition outside of those time constraints, the petitioner must establish
“extraordinary cause” for the delay. Id. Nero’s conviction is more than ten years old, thus the
extraordinary cause standard would apply to any post-conviction petition that he attempts to file
now.4
Where a petitioner has failed to present a claim to the highest state court with jurisdiction
to hear it, whether it be by failing to raise the claim in post-conviction proceedings or on direct
4
Nero obtained his transcripts in 2010, but has not yet filed a petition for post-conviction relief. As this
court previously observed: “[t]he 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
post-conviction 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.” Nero I, at ECF 5, p. 6.
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appeal, or by failing to timely note an appeal, the procedural default doctrine applies. See
Coleman v. Thompson, 501 U.S. 722, 749-50 (1991) (failure to note timely appeal); Murray v.
Carrier, 477 U.S. 478, 489-91 (1986) (failure to raise claim on direct appeal); Murch v.
Mottram, 409 U.S. 41, 46 (1972) (failure to raise claim during post-conviction); Bradley v.
Davis, 551 F. Supp. 479, 481 (D. Md. 1982) (failure to seek leave to appeal denial of postconviction relief). A procedural default also may occur where a state court declines Ato consider
the merits [of a claim] on the basis of an adequate and independent state procedural rule.@ Yeatts
v. Angelone, 166 F.3d 255, 260 (4th Cir. 1999).
As the Fourth Circuit has explained:
If a state court clearly and expressly bases its dismissal of a habeas petitioner=s
claim on a state procedural rule, and that procedural rule provides an independent
and adequate ground for the dismissal, the habeas petitioner has procedurally
defaulted his federal habeas claim. See Coleman v. Thompson, 501 U.S. 722,
731-32 (1991). A procedural default also occurs when a habeas petitioner fails to
exhaust available state remedies and “the court to which the petitioner would be
required to present his claims in order to meet the exhaustion requirement would
now find the claims procedurally barred.” Id. at 735 n.1.
Breard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998).
If a procedural default has occurred, a federal court may not address the merits of a state
prisoner’s habeas claim unless the petitioner can show (1) both cause for the default and
prejudice that would result from failing to consider the claim on the merits, or (2) that failure to
consider the claim on the merits would result in a miscarriage of justice, i.e. the conviction of
one who is actually innocent.5 See Murray v. Carrier, 477 U.S. 478, 495-96 (1986); Breard,
5
Habeas petitioners may use an actual innocence claim to excuse the procedural default of a separate
constitutional claim upon which they request habeas relief. See Murray v. Carrier, 477 U.S. at 496. “[When] a
constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas
court may grant the writ even in the absence of a showing of cause for the procedural default.” Id.; see also Reid v.
True, 349 F.3d 788, 806 (4th Cir. 2003). A petitioner who claims actual innocence as a gateway to raising an
otherwise defaulted constitutional claim must demonstrate by a preponderance of the evidence that a reasonable
juror could not have convicted the petitioner in light of the new evidence. See Buckner v. Polk, 453 F.3d 195, 199200 (4th Cir. 2006).
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134 F.3d at 620. “Cause” consists of “some objective factor external to the defense [that]
impeded counsel’s efforts to raise the claim in state court at the appropriate time.” Id. (quoting
Murray, 477 U.S. at 488).
Even where a petitioner fails to show cause and prejudice for a
procedural default, a court must still consider whether it should reach the merits of a petitioner=s
claims in order to prevent a fundamental miscarriage of justice. See Schlup v. Delo, 513 U. S.
298, 314 (1995).
B.
Timeliness
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):
(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) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
(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) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
(2) 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.
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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).
C.
Actual Innocence
In McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), the Supreme Court instructed that a
federal habeas court faced with an actual innocence claim should not count unjustifiable delay as
an absolute bar to relief; the delay, however, is a factor in determining whether actual innocence
has been reliably established. Id. at 1935-36. The Court also cautioned that “tenable actualinnocence gateway claims are rare: ‘[A] petitioner does not meet the threshold requirement
unless he persuades the district court that, in light of the new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a reasonable doubt.’” Id. at 1928,
quoting Schlup, 513 U.S. at 329.
Importantly, Perkins did not create a new right to habeas review, nor did it change
existing law. Rather, Perkins clarified the “actual innocence” standard as a gateway to habeas
corpus review. “To be credible, a claim of actual innocence must be based on reliable evidence
not presented at trial.” Calderon v. Thompson, 523 U.S. 538, (1998) (internal quotation and
citation omitted). “Without any new evidence of innocence, even the existence of a concededly
meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice
that would allow a habeas court to reach the merits of a barred claim.” Schlup, 513 U.S. at 315–
17. New evidence includes “exculpatory scientific evidence, credible declarations of guilt by
another, trustworthy eyewitness accounts, and certain physical evidence.” Fairman v. Anderson,
188 F.3d 635, 644 (5th Cir.1999) (citation omitted). The new evidence must be evaluated with
any other admissible evidence of guilt, Wilson v. Greene, 155 F.3d 396, 404-05 (4th Cir.), appl.
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for stay and cert. denied sub. nom. Wilson v. Taylor, 525 U.S. 1012 (1998), and must
affirmatively demonstrate innocence. Phillips v. Ferguson, 182 F.3d 769, 774 (10th Cir. 1999).
To invoke the actual innocence exception to the procedural default doctrine or to AEDPA’s
statute of limitations, a defendant “must show that it is more likely than not that no reasonable
juror would have convicted him in light of the new evidence.” Schlup, 513 U.S. at 327.
III.
Analysis
Nero has never presented anything to the Circuit Court for Montgomery County asserting
his entitlement to post-conviction relief so it is impossible to discern whether Nero satisfies
Maryland’s demanding standard applicable to post-conviction petition filed outside of the tenyear limitation period. See Md. Crim. Proc., Code Ann. § 7-103(b) (requiring a showing of
“extraordinary cause” for untimely petition for post-conviction relief). Nor can Nero credibly
maintain that his struggle to obtain trial transcripts justifies this failure to mount any postconviction challenge. Nero obtained the transcripts 2010, had has simply not acted with due
diligence to file a post-conviction petition with the State court.6 Where, as here, a petitioner has
failed to exhaust a claim before the state courts, and any available procedure for state court
review still exists, the claim is not exhausted. See 28 U.S.C. § 2254(c); Gray v. Netherland, 518
U.S. at 161-66.
Nero’s claim of actual innocence, asserted to excuse the above-described deficiencies,
fares no better. This is because Nero “actual innocence” claim is no more than a thinly veiled
challenge to the sufficiency of the underlying criminal indictment (which he claims was not a
“true bill”) and to his conviction solely because his codefendant was acquitted of conspiracy.
ECF No. 9 at p. 1. The balance of his reply reiterates that the sentencing judge denied Nero
6
Nero’s apparent attempt to obtain review of his claims from the Maryland Court of Special Appeals by
improperly filing a pleading directly with that court does not change the analysis. See ECF 1-2 (March 9, 2017 letter
from Clerk of the Court of Special Appeals advising that the court would take no action on Nero’s “recent letter”).
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access to “needed court documents for 10 years and transcripts that he requested numerous
times” which foreclosed his opportunity to pursue his claims of ineffective assistance of counsel.
Id. at pp. 2 – 3. Nor does Nero’s actual innocence claim present new evidence or otherwise
affirmatively demonstrate his innocence.
Along these lines, Nero’s reliance on Clark v. Clarke, 648 F.App’x 333 (4th Cir. 2016) is
misplaced. In Clark, trial counsel had advised Clark to enter an Alford plea even though “a mass
of exculpatory evidence” demonstrated “that Clark was not guilty of the offenses charged.” Id.
at 334. Supporting his actual innocence claim, Clark “proffered post-conviction affidavits and
letters in which eyewitnesses, including one of the two victims, averred that Clark was not a
perpetrator of the shooting.” Id. Nero makes no similar showing. Accordingly, neither Nero’s
untimely filing of this petition, nor the failure to present any of the claims to the state courts for
consideration, is excused. Nero’s relief sought is denied and the petition dismissed as untimely.
Where, as here, a district court dismisses a habeas petition solely on procedural grounds,
a certificate of appealability will not issue unless the petitioner can demonstrate “(1) ‘that jurists
of reason would find it debatable whether the petition states a 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. McDaniel, 529 U.S. 473, 484 (2000)). Given Nero’s failure to articulate any
cause to excuse the untimeliness of this petition, no reasonable court would find dismissal
debatable.
A separate order follows.
1/22/18
/S/
Paula Xinis
United States District Judge
Date
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