United States v. Nero
| Decision Date | 28 July 2021 |
| Docket Number | PJM,16-1977 PJM,94-53,Crim. 94-236,Civ. 16-197416-1976,94-54 |
| Parties | UNITED STATES OF AMERICA v. MALIK NERO, Defendant. |
| Court | U.S. District Court — District of Maryland |
UNDER SEAL
On December 16, 1994, Malik Nero was sentenced to 322 total months of imprisonment and three years of supervised release for his conviction on multiple counts, including robbery of postal employees, bank robbery, obstruction of interstate commerce, and use of a firearm during and in relation to a crime of violence. On June 8, 2016, Nero filed a motion to vacate his conviction under 18 U.S.C. § 924(c) for use of a firearm during and in relation to a crime of violence. In the intervening time before his motion became ripe, Nero completed his terms of imprisonment and supervised release. The Court now decides its jurisdiction over his motion to vacate and addresses the merits of the motion. Although it finds that Nero still has standing to pursue the motion, the Court will DENY the requested relief on the merits.
On September 16, 1994, Nero pleaded guilty (1) in case number 94-cr-53-PJM to three counts of armed robbery of postal employees, 18 U.S.C. § 2114; (2) in case number 94-cr-54-PJM to one count of armed robbery of a postal employee, 18 U.S.C. § 2114, and one count of using a firearm during and in relation to a crime of violence, 18 U.S.C. § 924(c); and (3) in case number 94-cr-236-PJM to one count of armed bank robbery, 18 U.S.C. § 2113(d) and one count of obstructing interstate commerce, 18 U.S.C § 1951. On December 16, 1994, the Court sentenced Nero to 262 months as to each count except the section 924(c) count, to run concurrently, and to a consecutive sentence of 60 months on the section 924(c) count, followed by a three-year term of supervised release. On December 20, 1994 Nero filed a notice of appeal of the district court's judgment, and on September 15, 1995, the Fourth Circuit affirmed his sentence. See United States v. Nero, 66 F.3d 317 (4th Cir. 1995) (mem.).
On June 8, 2016, while still incarcerated, Nero filed the present motion to vacate under 28 U.S.C. § 2255, challenging his section 924(c) conviction (count two) in case number 94-cr-54-PJM, which was based on the predicate offense of armed robbery of postal employees in violation of 18 U.S.C. § 2114. The motion was thereafter stayed pending resolution of relevant litigation in the Supreme Court. On May 30, 2020, Nero filed a supplemental motion to vacate, to which the Government filed an opposition on November 2, 2020, and Nero replied on November 8, 2020.
He was released from prison on May 5, 2017, and completed his three-year term of supervised release on September 18, 2019, during the pendency of his motion to vacate. On February 2, 2021, the Court issued a memorandum order noting that he was no longer in custody and directing the parties to file brief supplements addressing whether the motion to vacate is moot. The parties having done so, the Court will first address mootness and then the merits of the motion.
Because federal “judicial power depends upon the existence of a case or controversy, ” “federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them.” North Carolina v. Rice, 404 U.S. 244, 246 (1971) (quoting Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3 (1964)). “This case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate, ” such that “[t]he parties must continue to have a ‘personal stake in the outcome' of the lawsuit.” Spencer v. Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78 (1990)). To avoid mootness and maintain standing on a motion challenging a conviction, a federal defendant whose sentence has expired must demonstrate “some concrete and continuing injury other than the now-ended incarceration or parole-some ‘collateral consequence' of the conviction.” Id. That said, the courts generally presume such consequences, which can include, for example, difficulty obtaining certain occupations or a threat of deportation. See, e.g., Carafas v. LaVallee, 391 U.S. 234, 237-38 & n.8 (1968).
Although his incarceration and supervision have ended, Nero relies on three principal cases to argue that he suffers ongoing collateral consequences sufficient to show continued standing to pursue his motion. In Broughton v. North Carolina, the Fourth Circuit recognized that “unconditional release from . . . custody will not always moot a claim for habeas relief, for the collateral consequences of a criminal conviction may create ‘a substantial stake in the . . . conviction which survives satisfaction of the sentence.'” 717 F.2d 147, 148 (4th Cir. 1983) (quoting Carafas, 391 U.S. at 237). Moreover, the court acknowledged, “where the criminal conviction may result in an enhanced sentence should the petitioner later be convicted of another crime, her stake in habeas relief permits the court to exercise its judicial function long after she has been freed.” Id. at 149.
The Fourth Circuit reaffirmed this conclusion more recently in United States v. Adams, which considered a motion to vacate the defendant's conviction under 18 U.S.C. § 922(g), even though vacating that conviction would not result in a diminished sentence of incarceration. 814 F.3d 178 (4th Cir. 2016). The court observed that “[f]elony convictions carry a myriad of collateral consequences above and beyond time in prison, including the possibility that a future sentence will be enhanced based on the challenged conviction, the possibility of using the conviction for future impeachment, and societal stigma.” Id. at 181 n.1 (citing Guam v. Torre, 68 F.3d 1177, 1180 (9th Cir. 1995) .
Nero submits that these Fourth Circuit precedents are consistent with the Supreme Court's ruling in Evitts v. Lucey, where the Court affirmed the lower court's ruling in favor of a defendant challenging the dismissal of his appeal of the original judgment and conviction. 469 U.S. 387 (1985). The Court noted that the defendant had been “released from custody and his civil rights . . . restored” during the pendency of the case, but it concluded that the case was “not moot” because “some collateral consequences of his conviction remain[ed], including the possibility that the conviction would be used to impeach testimony he might give in a future proceeding and the possibility that it would be used to subject him to persistent felony offender prosecution if he should go to trial on any other felony charges in the future.” Id. at 391 n.4.
Nero argues that these precedents directly support his contention that he continues to face collateral consequences as a result of the challenged conviction. Specifically, his current section 924(c) conviction exposes him to a mandatory consecutive sentence of 25 years of imprisonment if he were to commit a future section 924(c) offense, as well as an increase in criminal history points and, potentially, in his overall sentence if he were to convict any federal offense in the future. See, e.g., Brooks v. N.C. Dep't of Correction, 984 F.Supp. 940, 947 (E.D. N.C. 1997) (, under Fourth Circuit law, federal habeas petition not moot despite completion of probationary term because defendant “faces the possibility, however slim, that a sentence for a subsequent misdemeanor conviction in North Carolina could be enhanced because of [the challenged] conviction”).
The Government, for its part, submits that Nero's motion to vacate should be dismissed as moot. It does not address any of the cases on which Nero relies but instead highlights inapposite language in Spencer v. Kemna, where the Supreme Court held that a defendant does not enjoy a presumption of collateral consequences when challenging a revocation of his parole. See 523 U.S. at 12. The Government emphasizes that, according to Spencer, a defendant who is incarcerated or on supervised release “always” has standing to challenge his conviction, but once a defendant's “sentence has expired, . . . some concrete and continuing injury other than the now-ended incarceration or parole . . . must exist if the suit is to be maintained.” Id. at 7.
Viewed in this narrow light, Spencer may appear to provide guidance that conflicts somewhat with Evitts on the question of mootness in circumstances such as the present case. However, the Government obscures relevant language in the same opinion that counsels against mootness here. Spencer acknowledged that the Supreme Court “ha[s] been willing to presume that a wrongful criminal conviction has continuing collateral consequences (or, what is effectively the same, to count collateral consequences that are remote and unlikely to occur).” 523 U.S. at 8. The Court did not apply this presumption of collateral consequences in Spencer explicitly because the defendant before it “d[id] not attack his convictions for felony stealing and burglary” but “assert[ed] only the wrongful termination of his parole status.” Id.
Here Nero is not challenging a termination of parole status; he is challenging an underlying count of conviction. Evitts and Adams-and, indeed, even Spencer-plainly dictate that Nero's motion is not moot. He continues to face collateral consequences as a result of his challenged section 924(c) conviction-namely, “the possibility that a future sentence will be enhanced based on the challenged conviction.” Adams, 814 F.3d at 181 n.1. The Court is satisfied that he has standing to pursue his motion to vacate...
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