United States District Court, S.D. Mississippi, Southern Division
ORDER OF TRANSFER PURSUANT TO 28 U.S.C §
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.
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.  at 1. After reviewing the Amended Petition 
and Supplemental Brief  in conjunction with relevant legal
authority, the Court finds that the Amended Petition
constitutes an unauthorized successive petition.
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 armed-robbery charge,
and one term to run concurrent to the murder sentences, all
in the custody of the Mississippi Department of Corrections.
Am. Pet.  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.  at 5, 7, 8.
has previously filed a federal petition for habeas corpus
relief challenging the same convictions and sentences.
See Am. Pet.  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  on March 25, 1999, and entered a Final Judgment
 on June 2, 2000, which dismissed with prejudice the
habeas claim on both procedural and substantive grounds.
Nicolaou filed a Notice of Appeal  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).
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).
"Without such authorization, the otherwise-cognizant
district court has no jurisdiction to entertain a successive
Â§ 2254 petition." Garcia v. Quarterman, 573
F.3d 214, 219 (5th Cir. 2009).
Fifth Circuit defines "a 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.”).
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. In the interest of justice, pursuant to 28
U.S.C. § 1631, the Court finds that this matter should
be transferred to the 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).
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.
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.