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Don Nichols v. United States of America

August 3, 2011

DON NICHOLS
PETITIONER,
v.
UNITED STATES OF AMERICA, GREG BARTKOWSKI RESPONDENTS.



The opinion of the court was delivered by: Sheridan, U.S.D.J.

NOT FOR PUBLICATION CLOSED

MEMORANDUM AND ORDER

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 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.*fn1 The Tenth 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 time-barred.

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 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) (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, ...


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