Allen Nicolaou v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2023-CP-01007-COA

ALLEN NICOLAOU APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 08/03/2023
TRIAL JUDGE: HON. CHRISTOPHER LOUIS SCHMIDT
COURT FROM WHICH APPEALED: HANCOCK COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: ALLEN NICOLAOU (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: VACATED AND RENDERED - 05/06/2025
MOTION FOR REHEARING FILED:

BEFORE CARLTON, P.J., McCARTY AND WEDDLE, JJ.

CARLTON, P.J., FOR THE COURT:

¶1. Allen Nicolaou was convicted and sentenced as a nonviolent habitual offender to life

imprisonment without parole eligibility after he murdered his cellmate while being held in

the Hancock County jail on other unrelated charges. Nicolaou v. State (Nicolaou I), 534 So.

2d 168, 169-70 (Miss. 1988). Nicolaou’s conviction and sentence were ultimately affirmed

on direct appeal. Nicolaou v. State (Nicolaou II), 612 So. 2d 1080, 1082 (Miss. 1992).

¶2. After having previously filed other motions for post-conviction relief (PCR) relating

to his sentence, among other issues, Nicolaou filed a PCR motion in the Hancock County

Circuit Court, again challenging his sentence. Nicolaou claimed that the State failed to prove

the prior convictions used to enhance his sentence were separately brought and arose out of
separate incidents at different times. See Miss. Code Ann. § 99-19-81 (Rev. 2020). The

circuit court denied Nicolaou’s PCR motion as successive. Because the circuit court lacked

jurisdiction to adjudicate Nicolaou’s motion, see Miss. Code Ann. § 99-39-7 (Rev. 2020),

we vacate the circuit court’s order and render judgment dismissing Nicolaou’s PCR motion

for lack of jurisdiction.

FACTS AND PROCEDURAL HISTORY

¶3. Nicolaou was being held in the Hancock County jail on October 27, 1984, when he

murdered his cellmate, Alan Poole. Nicolaou I, 534 So. 2d at 169. Nicolaou was in custody

after “plead[ing] guilty to two murders, armed robbery, and two kidnappings, for which he

had been sentenced to two terms of life imprisonment, 40 years on the armed robbery charge,

and 30 years on each kidnapping charge.” Id. at 170. With respect to Poole’s murder,

Nicolaou was indicted for capital murder and “as a habitual offender under [section]

99-19-81” based on these prior convictions. Id. at 169. Nicolaou was convicted and

sentenced as a nonviolent habitual offender to life imprisonment without parole eligibility.

Id. at 170.

¶4. Following that trial and conviction, Nicolaou appealed. He asserted, among other

assignments of error, that the circuit court erred by giving a supplemental jury instruction on

malice. Id. at 174. The Mississippi Supreme Court agreed, finding that the instruction was

“confusing” and constituted reversible error. Id. The supreme court reversed Nicolaou’s

conviction on this point and remanded for a new trial. Id.

¶5. Although the supreme court reversed and remanded on this issue, the supreme court

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also addressed Nicolaou’s contention that the habitual offender statute, section 99-19-81, did

not apply to his case because “all crimes for which he was previously convicted arose from

the same incident at the same time.” Id. at 173. The supreme court rejected this assertion.

Id. The supreme court found that although all the crimes occurred on the same day, “the two

murders and the kidnappings occurred at different times and different places, and clearly

were two separate ‘incidents.’ No error was committed in sentencing Nicolaou under

[section 99-19-81] to life without parole.” Id.

¶6. Following his second trial, a jury again convicted Nicolaou, and the trial court

sentenced him as a nonviolent habitual offender to life imprisonment without eligibility for

parole. Nicolaou II, 612 So. 2d at 1082. Nicolaou raised six assignments of error on appeal

in Nicolaou II, including his contention that “the crimes [he was] was convicted of on Oct.

22, 1984, do not constitute separate ‘incidents’ for the purposes of the habitual offender

statute.” Id. at 1083. The supreme court found that this issue was barred by the law-of-the-

case doctrine and collateral estoppel. Id. at 1085.

¶7. On October 27, 2014, Nicolaou sought leave from the Mississippi Supreme Court to

request post-conviction relief in the circuit court. Nicolaou again challenged his habitual

offender status. The supreme court denied Nicolaou’s application as a successive writ, as

follows:

In 1992, this Court affirmed Nicolaou’s murder conviction and life sentence.
Nicolaou v. State, 612 So. 2d 1080 ([Miss.] 1992). In 1993, this Court denied
Nicolaou’s first PCR because the issue presented was raised on direct appeal.
In his current PCR, Nicolaou raises issues related to the defense of temporary
insanity and his habitual offender status. The Court finds that the current
petition is barred as a successive writ. Miss. Code Ann. § 99-39-27(9).

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Order, Nicolaou v. State, No. 2014-M-01513 (Miss. Jan. 22, 2015).

¶8. In July 2022, Nicolaou filed a PCR motion in the Hancock County Circuit Court, once

again asserting, among other issues, that he had been wrongly sentenced under the habitual

offender statute. The circuit court denied Nicolaou’s PCR motion as successive, as follows:

The Court, having considered the motion, the record in all cause numbers, and
the applicable law, finds the motion is not well taken and should be denied as
a second successive writ. The issues raised by Nicolaou in his third Motion for
Post-Conviction Collateral Relief are essentially identical to those raised in his
first and second petitions that were denied by this Court and affirmed on
appeal.

¶9. Nicolaou appeals, asserting that section 99-19-81 was “not lawfully or properly

applied in accordance with the strict language of the statute.”

DISCUSSION

¶10. The Uniform Post-Conviction Collateral Relief Act (UPCCRA) provides that “the

motion under this article shall be filed as an original civil action in the trial court, except in

cases in which the petitioner’s conviction and sentence have been appealed to the Supreme

Court of Mississippi and there affirmed or the appeal dismissed.” Miss. Code Ann.

§ 99-39-7 (emphasis added). Under those circumstances, “the motion . . . shall not be filed

in the trial court until the motion shall have first been presented to . . . the Supreme Court of

Mississippi . . . and an order granted allowing the filing of such motion in the trial court.”

Id. (emphasis added).

¶11. “This procedure is not merely advisory, but jurisdictional.” Watson v. State, 295 So.

3d 542, 544 (¶4) (Miss. Ct. App. 2019) (quoting Chandler v. State, 190 So. 3d 509, 511 (¶6)

(Miss. Ct. App. 2016)). In short, “[i]f the prisoner does not obtain permission [from the

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supreme court] to file the [PCR] motion in the circuit court, the circuit court lacks authority

to adjudicate the motion.” Id. (citing Forkner v. State, 227 So. 3d 404, 405-06 (¶5) (Miss.

2017)).

¶12. In this case, Nicolaou’s conviction and sentence were affirmed on direct appeal,

Nicolaou II, 612 So. 2d at 1082, but Nicolaou failed to obtain permission from the supreme

court to seek post-conviction relief. For this reason, “the circuit court lacked jurisdiction to

adjudicate [Nicolaou’s] petition.” Watson, 295 So. 3d at 544 (¶5). Instead of denying

Nicolaou’s PCR motion as successive, “the circuit court should have dismissed for lack of

jurisdiction.” Id. Accordingly, we vacate the circuit court’s order and render judgment

dismissing Nicolaou’s PCR motion for lack of jurisdiction. Id.; see Forkner, 227 So. 3d at

406 (¶5).

¶13. VACATED AND RENDERED.

BARNES, C.J., WILSON, P.J., WESTBROOKS, McDONALD, LAWRENCE,
McCARTY, EMFINGER, WEDDLE AND ST. PÉ, JJ., CONCUR.

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