NICKOLAUS v. UNITED STATES OF AMERICA

Filing 3

Entry Discussing Motion for Relief Pursuant to 28 U.S.C. § 2255 - This action is dismissed for lack of jurisdiction. Judgment consistent with this Entry shall now issue. The clerk is directed to docket a copy of this Entry in the underlying criminal action, No. 1:12-cr-93-TWP-MJD-1. **SEE ORDER** Copy to Petitioner via U.S. Mail. Signed by Judge Tanya Walton Pratt on 8/9/2016.(JLS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

ANDREW NICKOLAUS,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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No. 1:16-cv-02035-TWP-DML

Entry Discussing Motion for Relief Pursuant to 28 U.S.C. § 2255
“Subject-matter jurisdiction is the first question in every case, and if the court concludes
that it lacks jurisdiction it must proceed no further.” State of Illinois v. City of Chicago, 137 F.3d
474, 478 (7th Cir. 1998). For the reasons explained below, Petitioner Andrew Nickolaus’ Motion
for Relief pursuant to 28 U.S.C. § 2255 fails this test and the action must therefore be dismissed.
Background
Nickolaus was convicted of Count 1: distribution and receiving child pornography and
Count 2: possession of child pornography in Case No. 1:12-cr-93-TWP-MJD. His convictions
were based on his plea of guilty pursuant to the terms of a plea agreement he had reached with the
United States. The court accepted Nickolaus’ plea, finding that it complied with the requisites of
Rule 11 of the Federal Rules of Criminal Procedure. In doing so, the court found that Nickolaus
was entering his plea of guilty knowingly and voluntarily and that he understood the consequences
of his plea. On March 7, 2013, Nickolaus was sentenced to concurrent terms of 210 months and
87 months imprisonment, concurrent. Among other provisions, the plea agreement provided that
Nickolaus waived his right to appeal his conviction and sentence and expressly agreed not to

contest, or seek to modify, his sentence or the manner in which it was determined in any collateral
attack, including, but not limited to, an action brought under 28 U.S.C. § 2255. Nickolaus’
judgment of conviction was entered on the clerk’s docket on March 13, 2013. The waiver was
contingent upon the court accepting the plea agreement under Rule 1(c)(1)(B) and sentencing
defendant to a term of imprisonment of 327 months or any lesser term. (Case No. 1:12-cr-93TWP-MJD, see Dkt. No. 337 at 7). Although no timely notice of appeal was filed, Nickolaus’
filing of December 16, 2013 was treated as a notice of appeal and was ultimately dismissed as
untimely.
Nickolaus previously filed a motion for relief pursuant to 28 U.S.C. § 2255. This prior
action was docketed as No. 1:15-cv-1514-TWP-DKL and was dismissed with prejudice in a
Judgment entered on the clerk’s docket on June 14, 2016.
Discussion
When there has already been a decision on the merits in a federal habeas action, to obtain
another round of federal collateral review a petitioner requires permission from the Court of
Appeals under 28 U.S.C. § 2244(b). See Potts v. United States, 210 F.3d 770, 770 (7th Cir. 2000).
The disposition of the prior § 2255 action in No. 1:15-cv-1514-TWP-DKL was an adjudication
“on the merits” for the purpose of triggering the requirements of 28 U.S.C. § 2244(b).
In enacting the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Congress
altered the method by which prisoners may obtain relief on a second or successive § 2255 motion.
Pursuant to the AEDPA:
No . . . district judge shall be required to entertain an application for a writ of habeas
corpus to inquire into the detention of a person pursuant to a judgment of a court of
the United States if it appears that the legality of such detention has been
determined by a judge or court of the United States on a prior application for a writ
of habeas corpus, except as provided in section 2255.

28 U.S.C. § 2244(a). Paragraph 8 of Section 2255 begins: “A second or successive motion must
be certified as provided in section 2244 by a panel of the appropriate court of appeals . . . .” The
“motion” to which this language refers must be the kind of motion described by § 2255 & 1--one
“claiming the right to be released upon the ground that the sentence was imposed in violation of
the Constitution or laws of the United States, or that the court was without jurisdiction to impose
such sentence, or that the sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.” Valona v. United States, 138 F.3d 693 (7th Cir. 1998).
This statute, § 2244(b)(3), “creates a ‘gatekeeping’ mechanism for the consideration of
second or successive [habeas] applications in the district court.” Felker v. Turpin, 518 U.S. 651,
657 (1996). This statute “’is an allocation of subject-matter jurisdiction to the court of appeals.’”
In re Page, 170 F.3d 659, 661 (7th Cir. 1999) (quoting Nunez v. United States, 96 F.3d 990, 991
(7th Cir. 1996)), opinion supplemented on denial of rehearing en banc, 179 F.3d 1024 (7th Cir.
1999). “’A district court must dismiss a second or successive petition . . . unless the court of appeals
has given approval for the filing.’”
With the prior § 2255 action having been adjudicated on the merits, and in the absence of
authorization for the present filing from the Court of Appeals, this action must now be summarily
dismissed for lack of jurisdiction pursuant to Rule 4 of the Rules Governing Section 2255
Proceedings in the United States District Court.
Conclusion
This action is dismissed for lack of jurisdiction. Judgment consistent with this Entry shall
now issue. The clerk is directed to docket a copy of this Entry in the underlying criminal action,
No. 1:12-cr-93-TWP-MJD-1.

Date: 8/9/2016

Distribution:
ANDREW NICKOLAUS
10457-028
ASHLAND FEDERAL CORRECTIONAL INSTITUTION
Inmate Mail/Parcels
P.O. BOX 6001
ASHLAND, KY 41105