Nicolaou v. State of Mississippi

Filing 10

ORDER EPPS SUCCESSIVE: Ordered that, Petitioner Allen Nicolaou's Amended Petition for habeas corpus relief is transferred to the USCA Fifth Circuit; and that, Clerk is directed to close this case pending the decision of the USCA Fifth Circuit. Signed by District Judge Halil S. Ozerden on 7/7/17. (RLW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
ALLEN NICOLAOU

PETITIONER

v.

CIVIL NO. 1:17-cv-152-HSO-JCG

STATE OF MISSISSIPPI

RESPONDENT

ORDER OF TRANSFER
PURSUANT TO 28 U.S.C § 1631
This matter comes before the Court, sua sponte, for consideration of the
transfer of this case. Petitioner Allen Nicolaou, an inmate of the East Mississippi
Correctional Facility, Meridian, Mississippi, brings this pro se Petition for habeas
corpus relief pursuant to 28 U.S.C. § 2254. See Am. Pet. [6] at 1. After reviewing
the Amended Petition [6] and Supplemental Brief [9] in conjunction with relevant
legal authority, the Court finds that the Amended Petition constitutes an
unauthorized successive petition.
Nicolaou challenges his convictions for two counts of murder, two counts of
kidnapping, and one count of armed robbery entered by the Circuit Court of
Hancock County, Mississippi, and his resulting sentences of two terms of life
imprisonment for the murder convictions, a 40-year sentence for the conviction of
armed robbery, to run consecutive with the life sentences, and two terms of 30 years
for the two kidnapping convictions, with one term to run consecutive to the armedrobbery charge, and one term to run concurrent to the murder sentences, all in the
custody of the Mississippi Department of Corrections. Am. Pet. [6] at 1; see also

Nicolaou v. State, 215 So. 3d 498, 500 (Miss. Ct. App. 2016). Nicolaou asserts the
following grounds for habeas relief:
GROUND ONE: Denial of due process by denial of competency hearing
subsequent to C[ourt]-ordered psy[chological] eval[uation] ([ ] & denial of
process, denying confront[ation] of witnesses)[.]
GROUND TWO: Suppression of evidence by denial of requisite competency
hearing to examine the evidence; & by denial of rights to present additional
witnesses.
GROUND THREE: Ineffective [a]ssistance of [c]ounsel[.]
Am. Pet. [6] at 5, 7, 8.
Nicolaou has previously filed a federal petition for habeas corpus relief
challenging the same convictions and sentences. See Am. Pet. [6] at 12; see also
Nicolaou v. State, No. 1:96-cv-150-WJG (S.D. Miss. Mar. 25, 1999). In Nicolaou,
No. 1:96-cv-150-WJG, the Court entered an Order [15] on March 25, 1999, and
entered a Final Judgment [34] on June 2, 2000, which dismissed with prejudice the
habeas claim on both procedural and substantive grounds. Nicolaou filed a Notice
of Appeal [35] on June 21, 2000, and the Fifth Circuit denied his application for a
Certificate of Probable Cause. See Nicolaou v. State, No. 00-60439 (5th Cir. Dec.
27, 2000).
A petitioner who files a second or successive motion for habeas relief must first
apply to the appropriate court of appeals for an order authorizing the district court
to consider the successive motion. 28 U.S.C. § 2244(b)(3)(A). AWithout such
authorization, the otherwise-cognizant district court has no jurisdiction to entertain
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a successive § 2254 petition.@ Garcia v. Quarterman, 573 F.3d 214, 219 (5th Cir.
2009).
The Fifth Circuit defines Aa second or successive petition as one that 1) raises a
claim challenging the petitioner=s conviction or sentence that was or could have
been raised in an earlier petition; or 2) otherwise constitutes an abuse of the writ.@
Id. at 220 (citing In re Cain, 137 F.3d 234, 235 (5th Cir. 1998)) (internal quotations
omitted). Nicolaou=s claims in this case relate to his mental competency,
suppression of evidence, and ineffective assistance of counsel, all of which could
have been raised in his earlier federal petition. Therefore, the Court finds the
instant Petition to be a successive petition within the meaning of 28 U.S.C.
' 2244(b)(3)(A). See Propes v. District Attorney Office, 445 F. App’x 766, 767 (5th
Cir. 2011) (“The instant § 2254 application alleged defects in Propes’s conviction
that occurred at trial or before he filed his first federal application . . .; therefore, his
current application is successive.”).
Nicolaou fails to submit any documentation demonstrating that he has
obtained the required authorization from the United States Court of Appeals for the
Fifth Circuit to file this successive Petition.1 In the interest of justice, pursuant to
28 U.S.C. ' 1631, the Court finds that this matter should be transferred to the

Because Petitioner has not demonstrated that the Fifth Circuit has authorized
him to file this habeas petition, the Court will not address Petitioner’s Motions [2, 7, 8]
concerning the filing fee for this civil action. In the event the Fifth Circuit authorizes
the filing of the instant habeas petition, this Court will then consider the Motions [2, 7,
8].
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1

United States Court of Appeals for the Fifth Circuit for a determination whether
this successive or second Petition should be permitted. See In re Epps, 127 F.3d
364 (5th Cir. 1997).
IT IS, THEREFORE, ORDERED AND ADJUDGED that, Petitioner Allen
Nicolaou=s Amended Petition for habeas corpus relief be, and the same hereby is,
TRANSFERRED to the United States Court of Appeals for the Fifth Circuit.
IT IS, FURTHER, ORDERED that, the Clerk of Court is directed to close
this case pending the decision of the United States Court of Appeals for the Fifth
Circuit.
SO ORDERED AND ADJUDGED, this the 7th day of July, 2017.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

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