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Nero v. Oddo

United States District Court, D. Maryland

January 22, 2018

JAMES NERO Petitioner
L. J. ODDO, et al. Respondents


          Paula Xinis United States District Judge

         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 ¶ 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.

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).

         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 Brady[2] 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 ...

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