United States District Court, D. Maryland
MEMORANDUM OPINION
Paula
Xinis United States District Judge
Respondents
seek dismissal of Petitioner's 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 are 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 will
be dismissed and a certificate of appealability will 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, Civil Action No.
DKC-16-852 (D. Md. 2016) (hereinafter “Nero
I”). Nero did not file an appeal of the dismissal.
Id. In the Court's prior Memorandum Opinion and
Order dismissing the petition in Civil Action No. DKC-16-852
(Nero I), the Court summarized Nero's underlying state
case as follows:
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
claims that the State of Maryland violated his Fourth, Fifth,
Sixth, Eighth, and Fourteenth Amendment rights under the
United States Constitution 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. Nero has already raised this allegation in Nero
I, and the court found 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.
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[1] 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 ...