NICHOLS v. UNITED STATES OF AMERICA
Filing
19
OPINION AND ORDER granting Granting 14 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Peter G. Sheridan on 8/4/2011. (eaj) Modified on 8/4/2011 (eaj).
NOT FOR PUBLICATION
CLOSED
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
DON NICHOLS
Civil Action No.: 10-3681
Petitioner,
v.
MEMORANDUM AND ORDER
UNITED STATES OF AMERICA,
GREG BARTKOWSKI
Respondents.
SHERIDAN, U.S.D.J.
This matter comes before the Court on Respondent United States of America’s (the
“Government”) motion to dismiss (the “Government’s Motion”) Petitioner Don Nichols’
(“Petitioner”) amended writ of habeas corpus (“Petitioner’s Amended Writ of Habeas Corpus”)
under Title 28 United States Code section 2241. Petitioner currently is in custody at the New Jersey
State Prison in Trenton, New Jersey. For the reasons set forth below, this Court grants the
Government’s Motion.
I
On March 9, 1995, Petitioner was charged with the malice murder of a fellow inmate in the
United States Penitentiary in Florence, Colorado. On May 23, 1995, Petitioner signed a plea
agreement with the Government (the “Plea Agreement”) pursuant to which Petitioner pled guilty and
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agreed to testify against a co-conspirator involved in the murder. In exchange, the Government
agreed to “strongly recommend” that Petitioner serve Petitioner’s prison sentence in a state
penitentiary, as opposed to a federal penitentiary. On October 27, 1995, the United States District
Court for the District of Colorado sentenced Petitioner to 420 months of incarceration, in addition
to the prison sentence that Petitioner was already serving for armed robbery. Petitioner alleges that
the Government breached the Plea Agreement more than one year after Petitioner and the
Government entered into the Plea Agreement.
November 2000, Section 2241 Writ of Habeas Corpus
In November 2000, Petitioner filed a section 2241 writ of habeas corpus in the United States
District for the District of Colorado. Petitioner contended that the Government breached the Plea
Agreement by failing to timely challenge his transfer to federal prison. In addition, Petitioner
maintained that Petitioner did not knowingly and voluntarily enter into the Plea Agreement and that
he received ineffective assistance of counsel with respect to the execution of the Plea Agreement.
The District of Colorado rejected Petitioner’s claims under section 2255 as time-barred.1 The Tenth
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A federal prisoner who seeks to challenge the validity of his conviction or the imposition of
his sentence must do so in “the court which imposed the sentence” under section 2255. See Funari
v. U.S. Parole Comm’n, 531 F.3d 241, 254 (3d Cir. 2008). Generally, a federal prisoner must use
section 2255 instead of seeking a writ of habeas corpus under section 2241. See United States v.
Brooks, 230 F.3d 643, 646 (3d Cir. 2000) (citing United States v. Hayman, 342 U.S. 205, 223
(1952)). If a Petitioner can show that a section 2255 petition is “inadequate or ineffective” however,
then he may file a writ of habeas corpus under section 2241. See 28 U.S.C. § 2255 (e) (“An
application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief
by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed
to apply for relief, by motion, to the court which sentenced him, or that such court has denied him
relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality
of his detention”). Additionally, pursuant to section 2255, a one year period of limitation applies to
a motion under this section which may run until “the date on which the facts supporting the claim
or claims presented could have been discovered through the exercise of due diligence.” See § 2255
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Circuit affirmed the District of Colorado’s decision.
April 2002, Section 2255 Petition to Vacate Sentence
In April 2002, Petitioner filed in the United States District Court for the District of Colorado
a section 2255 petition to withdraw the Plea Agreement. The District of Colorado dismissed this
petition as being successive. The Court construed Petitioner’s prior November 2000 motion as a
section 2255 petition (as it was re-labeled) as opposed to a writ of habeas corpus brought under
section 2241 (as Petitioner had initially labeled it). Petitioner was then transferred to a state prison
facility in Minnesota.
February 2003, Section 2241 Writ of Habeas Corpus
In February 2003, Petitioner filed in the United States District Court for the District of
Minnesota a petition for writ of habeas corpus under section 2241, in which Petitioner alleged that
the Government materially breached the Plea Agreement. As part of this petition for writ of habeas
corpus, Petitioner sought to withdraw the Plea Agreement. The District of Minnesota held that a writ
of habeas corpus brought under section 2241 was an improper means of challenging the Plea
Agreement and construed the section 2241 petition as a section 2255 petition. The District of
Minnesota additionally denied Petitioner’s section 2255 petition for being both successive and timebarred.
The United States Court of Appeals for the Eighth Circuit affirmed the District of
Minnesota’s decision. In particular, the Eighth Circuit affirmed that a section 2241 petition was not
(f)(4). Further, there are stringent requirements for filing a successive section 2255 writ; a court of
appeals must find that there is new and exonerating evidence or a “new rule of constitutional law.”
See § 2255 (h).
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the proper avenue for the relief Petitioner was seeking and the petition did not meet the requirements
for filing a successive section 2255 petition. The Eighth Circuit additionally rejected Petitioner’s
argument that Petitioner was barred from bringing a timely section 2255 petition because the
Government breached the Plea Agreement after section 2255's one year period of limitation had run.
The Eighth Circuit held that Petitioner could have raised that issue in the litigation taking place in
the District of Colorado, but Petitioner failed to do so. According to the Eighth Circuit, because
Petitioner could have raised – or did, in fact, raise these issues – in a prior section 2255 petition,
Petitioner was barred from raising such issues in a section 2241 petition.
Petitioner contends that no court has addressed whether the Plea Agreement was breached.
Petitioner therefore seeks to withdraw the Plea Agreement pursuant to section 2241.
II
The Government argues that Petitioner is collaterally estopped from seeking a rescission of
the Plea Agreement pursuant to section 2241. Collateral estoppel, or issue preclusion, prevents
parties from re-litigating issues if a court possessing jurisdiction has already delivered a final
judgment on the merits. See Witkowski v. Welch, 173 F.3d 192, 198-99 (3d Cir. 1999). Collateral
estoppel “reliev[es] parties of the cost and vexation of multiple lawsuits, conserv[es] judicial
resources, and, by preventing inconsistent decisions, [] encourag[es] reliance on adjudication.” Tice
v. Bristol-Myers Squibb Co., 325 Fed. Appx. 114, 118 (3d Cir. 2009) (quoting Allen v. McCurry,
449 U.S. 90, 94 (1980)). Collateral estoppel applies only where: “(1) the identical issue [2] was
previously adjudicated; [3] the issue was actually litigated; [4] the previous determination was
necessary to the decision; and [5] the party being precluded from relitigating the issue was fully
represented in the prior action.” Cospito v. Attorney Gen. of U.S., 539 F.3d 166, 171 (3d Cir. 2008)
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(citations omitted). For the reasons set forth below, this Court holds that collateral estoppel applies.
The Issues Are Identical
Petitioner previously brought a section 2241 petition before the United States District Court
for the District of Minnesota. See Nichols v. Symmes, 553 F.3d 647, 649 (8th Cir. 2009). In that
section 2241 petition, Petitioner sought the withdrawal of the Plea Agreement. Ibid. The Eighth
Circuit subsequently affirmed the district court’s decision. See ibid. Here, Petitioner is seeking the
same relief pursuant to the same statute that Petitioner presented to the District of Minnesota and
Eighth Circuit. In Petitioner’s appellate brief before the Eighth Circuit, it was specifically stated:
“On October 25, 2006, [Petitioner] filed the instant application, again claiming that the government
materially breached the Plea Agreement, and once again the Court is labeling [Petitioner’s] claim
as a [section] 2255 claim. [Petitioner] is not maintaining a collateral challenge to his conviction or
sentence. [Petitioner] is asking for a withdrawal of his guilty plea as a remedy.” Brief for
Petitioner-Appellant at 12, Nichols, 553 F.3d 647 (No. 08-1330) (emphasis added). Here, Petitioner
is seeking the same remedy under the same statute. In Petitioner’s Amended Writ of Habeas Corpus,
Petitioner again specifically and unequivocally states: “In the instant matter, exhaustion of
administrative remedies is not necessary to proceed on a [section] 2241 petition because pursuing
administrative remedies would be futile due to the fact that the administrator is not able to give
Petitioner the relief he seeks - rescinding the plea agreement.” Thus, these issues are clearly
identical.
Petitioner alleges that no court has addressed his claims relating to an alleged November 8,
2008 breach of the Plea Agreement. The Third Circuit has held that “[t]o produce absolution from
collateral estoppel on the ground of changed factual circumstances, the changes must be of a
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character and degree as might place before the court an issue different in some respect from the one
decided in the initial case.” Anspach ex rel. Anspach v. City of Philadelphia, 380 Fed.Appx. 180,
184 (3d Cir. 2010) (quoting EEOC v. Am. Airlines, 48 F.3d 164, 168 (5th Cir.1995)). Here,
Petitioner again alleges that the Government has breached the Plea Agreement by transferring
Petitioner to a federal prison. This does not change the ruling issued by the Eighth Circuit that it is
improper for Petitioner to bring a section 2241 petition to challenge the validity of and withdraw the
Plea Agreement. See Nichols, 553 F3d at 649. This issue was decided and precludes Petitioner from
bringing a section 2241 petition to withdraw the Plea Agreement before this Court.2 As the Eighth
Circuit noted, a section 2241 petition may be brought to compel the Government to perform on the
plea bargain, but section 2241 may not be invoked in order to withdraw a guilty plea, even one that
has been breached. See id.
There Was a Previous Adjudication
The Eighth Circuit held that a section 2241 petition was improper because Petitioner was
seeking withdrawal of the Plea Agreement. Nichols, 553 F.3d at 649-50. In fact, the Eighth Circuit
specifically held: “A claim attacking the validity of a guilty plea, and therefore the underlying
sentence, is properly entertained in a section 2255 petition before the sentencing court.” Id. at 649
(citing Hill v. Morrison, 349 F.3d 1089, 1091 (8th Cir.2003)). For this reason, the Court construed
Petitioner’s section 2241 petition as a section 2255 petition and affirmed that the District of
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Petitioner also asserts that a section 2255 petition is inadequate and ineffective such that
Petitioner may petition this Court under section 2241 and that the Government is wrong to claim
otherwise. Even if Petitioner is correct in this assertion, Petitioner is nonetheless collaterally
estopped from bringing the present petition to rescind the Plea Agreement pursuant to section 2241
due to an alleged breach.
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Minnesota properly parsed Petitioner’s language when the district court construed the claim as a
section 2255 petition. Id. at 650. The Court then concluded that Petitioner’s motion did not meet
the stringent requirements for filing a successive section 2255 petition and that the District of
Minnesota had properly refused to transfer what it read as a 2255 petition to the sentencing court.
Id.
The Issue Was Necessary to the Judgment
Without addressing and determining this key issue, the Eighth Circuit could not have
rendered a valid final judgment on the merits. This Court reaches this conclusion because Petitioner
brought the writ of habeas corpus under section 2241 specifically in order to request a rescission of
the Plea Agreement. Thus, without deciding if section 2241 was the proper avenue for seeking such
relief, the Eighth Circuit could not have reached a final judgment on the merits. Additionally,
determining this issue led the Eighth Circuit to construe the section 2241 petition as a section 2255
petition and therefore deny Petitioner’s motion. Id. at 649.
The Issue Was Actually Litigated
In Petitioner’s brief before the Eighth Circuit, Petitioner presented that the District of
Minnesota had jurisdiction to hear his section 2241 petition and that Petitioner was “asking for a
withdrawal of [the Plea Agreement] as a remedy.” Brief for Petitioner-Appellant at 12, id., (No.
08-1330). In response, the Government argued, among other things, that the claims were not
cognizable in a petition pursuant to section 2241. See Brief for Respondent-Appellee at 6, id., (No.
08-1330).3 In the Petitioner’s reply brief, Petitioner argued that Petitioner’s claim was cognizable
3
Petitioner’s reply brief submitted to the Eight Circuit contradicted his appellate brief and
included that Petitioner was not seeking to rescind the Plea Agreement. See Reply Brief for
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as a section 2241 petition, as opposed to being construed as a section 2255 petition, because the
alleged breach of the Plea Agreement related to the execution of Petitioner’s sentence. See Reply
Brief for Petitioner-Appellant at 1-2, id., (No. 08-1330). Thus, the issue was presented before the
Eighth Circuit, and both sides actually litigated it.
Petitioner Was Fully Represented in the Prior Action
Further, Petitioner was a party to the action in the District of Minnesota and the Eighth
Circuit, and there is no allegation that he was not properly represented. Thus, the Eighth Circuit’s
holding that a writ of habeas corpus brought under section 2241 is improper to challenge the validity
of the Plea Agreement collaterally estops Petitioner from seeking the same relief from this Court.
Petitioner’s Due Process Claims Are Also Dismissed
Petitioner argues that the Eighth Circuit operated under misconceptions and violated
Petitioner’s due process rights by not addressing certain arguments. This Court does not have
jurisdiction to review the Eighth Circuit’s alleged mistakes. The proper procedure for addressing
such issues is on appeal. See Carter v. All Dist. Fed. Judges, 415 Fed.Appx. 363, 365 (3d Cir. 2011)
(noting that the proper vehicle for challenging prior resolutions is to file an appeal in those cases).
What is significant is that the Eighth Circuit held that Petitioner could not bring a section 2241
petition in order to withdraw the Plea Agreement. See Nichols, 553 F.3d at 649.
Petitioner-Appellant at 1, Nichols, 553 F.3d 647 (No. 08-1330). Despite this, the Eighth Circuit
interpreted Petitioner to be requesting a rescission of the Plea Agreement. See Nichols, 553 F.3d at
649. Additionally, Petitioner did in fact argue and present this issue in Petitioner’s appellate brief
before the Eighth Circuit. See Brief for Petitioner-Appellant at 12, id., (No. 08-1330). Thus, for the
purposes of collateral estoppel, this issue was actually litigated.
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III
This Court has reviewed all submissions. For the reasons set forth in the above Memorandum,
IT IS on this 3rd day of August 2011
ORDERED that the Government’s Motion (Docket Entry 14) is granted.
s/Peter G. Sheridan
PETER G. SHERIDAN, U.S.D.J.
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