United States District Court, D. Maryland
Xinis United States District Judge
January 9, 2019, Petitioner James Nero filed a pleading
entitled “Motion” seeking to reopen a previously
dismissed petition for writ of habeas corpus and citing 28
U.S.C. § 2241. ECF No. 1. This pleading is construed as
a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254 because it concerns Nero's conviction of
armed robbery and related offenses from the Circuit Court for
Montgomery County, Maryland. See ECF No. 1-1.
has filed similar actions in the past. See Nero v.
Warden, Civ. Action DKC-16-852 (D. Md. 2016); Nero
v. Oddo, Civ. Action PX-17-1263 (D. Md. 2017), see
also Nero v. State of Maryland, Civil Action DKC-10-1024
(D. Md. 2010) (diversity action raising claim under
Maryland's Public Information Act). The first petition
for habeas relief was dismissed without prejudice as
unexhausted. The second petition was dismissed as
time-barred. Nero did not appeal either dismissal.
this petition, Nero has submitted to this Court a letter
addressed to him from the Maryland Court of Special Appeals
dated December 17, 2018. ECF No. 1-1 at p. 1. The letter
references Nero's recently filed motion which had been
returned to him because no appeal was pending before the
Court of Special Appeals. Id. Nero also attaches
what appears to be the pleading referenced in the court's
letter, which seeks vacatur of his Montgomery County Circuit
Court conviction. Id. at pp. 2-9. Review of the
Montgomery County Circuit Court's electronic docket
reflects that the case has been inactive since 2004, and Nero
has yet to file in state court a petition for post-conviction
relief or otherwise collaterally attack his conviction.
See State of Maryland v. Nero, No. 89418C
(Mont. Co. Cir. Ct. 2000).
Accordingly, Nero seems to face the same impediments to
seeking federal habeas relief with respect to his Montgomery
County Circuit Court conviction. As this Court stated in its
February 20, 2018 Memorandum Opinion:
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
ten-year 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 in 2010I and has simply not acted with due
diligence to file a state post-conviction petition. 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 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
Along these lines, Nero's reliance on Clark v.
Clarke, 648 Fed.Appx. 333 (4th Cir. 2016) is misplaced.
In Clark, trial counsel had ad vised 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, averring 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 will be
dismissed as untimely.
Nero, Civ. Action PX-17-1263 at ECF No. 12, pp. 9-10
the Court can discern no change in Nero's state case
since this Court's last dismissal, the Court dismisses
this Petition for the same reasons previously articulated.
Additionally, the petition is successive and must be
dismissed because Nero had not obtained from the United
States Court of Appeals for the Fourth Circuit authorization
for filing a second or successive petition. See 28
U.S.C. § 2244(b)(3) (“Before a second or
successive application permitted by this section is filed in
the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the
district court to consider the application”). By
separate Order, the petition shall be dismissed.
as here, a district court dismisses a habeas petition on
procedural grounds, the Court will issue a certificate of
appealability if the petitioner demonstrates both “(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
the absence ...