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Nero v. Allenwood

United States District Court, D. Maryland

August 29, 2016

JAMES NERO Petitioner
WARDEN, USP ALLENWOOD, et al . Respondents



         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.


         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 ¶ 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 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 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 ...

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