United States District Court, D. Maryland
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE
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. 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.
State Court Proceedings
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 ¶ 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.
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.
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).
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.
raised in this court
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
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
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.
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
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
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 ...