John Nikoloff v. Neal Ziliak ( 2020 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 23, 2020*
Decided October 23, 2020
Before
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 20‐1626
JOHN NIKOLOFF, Appeal from the United States District
Plaintiff‐Appellant, Court for the Southern District of Indiana,
Indianapolis Division.
v. No. 1:18‐cv‐02273‐JRS‐DML
NEAL ZILIAK, James R. Sweeney II,
Defendant‐Appellee. Judge.
ORDER
John Nikoloff sued his criminal defense lawyer under 42 U.S.C. § 1983, alleging
that he pleaded guilty based on his lawyer’s bad advice. The district court dismissed his
suit on several grounds, among them that his lawyer was not a state actor under § 1983.
We agree and affirm.
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 20‐1626 Page 2
In 2014, Nikoloff was charged in Indiana state court with operating a vehicle
while intoxicated in a manner that endangered a person—a Class A misdemeanor.
See IND. CODE § 9‐30‐5‐2(b). After hiring Neal Ziliak to represent him, Nikoloff pleaded
guilty and was sentenced to work release and home confinement for one year.
In 2015, Nikoloff petitioned the Indiana state court to set aside his conviction
based on the absence of a factual basis for his plea and on Ziliak’s ineffective assistance.
The court agreed that his conviction could not stand because no testimony at his plea or
sentencing hearing suggested that he had endangered anyone, and it downgraded his
conviction from a Class A to a Class C misdemeanor—operating a vehicle while
intoxicated. See IND. CODE § 9‐30‐5‐2(a). The court, however, rejected Nikoloff’s
ineffective‐assistance claim, highlighting his explanation at sentencing that he
understood his rights as they had been advised to him by counsel.
Three years later, Nikoloff sued Ziliak in federal court for due process violations
in failing “while representing [him] to make sure he was charged with the right
charge.” Because of Ziliak’s oversights, Nikoloff alleged, he was sentenced and fined
excessively.
The district court granted Ziliak’s motion to dismiss the case. First, Ziliak was
not a state actor under § 1983. Second, collateral estoppel barred Nikoloff’s claim
because the Indiana post‐conviction proceedings considered and rejected his claim for
ineffective assistance of counsel. Third, his claim was time‐barred under Indiana’s
two‐year statute of limitations for personal‐injury claims because he knew the basis for
his claim no later than 2015 (when he filed his petition for post‐conviction relief)—more
than two years before he sued.
On appeal, Nikoloff challenges the conclusion that his attorney need be a state
actor to be liable under § 1983. But § 1983 reaches only those “who deprive[] an
individual of federally guaranteed rights ‘under color’ of state law,” Filarsky v. Delia,
566 U.S. 377, 383 (2012) (quoting § 1983), and a lawyer is not a state actor when he—like
Ziliak here—performs his traditional role as counsel to a defendant in a criminal case.
See Polk Cty. v. Dodson, 454 U.S. 312, 318, 325 (1981); Spiegel v. McClintic, 916 F.3d 611,
616 (7th Cir. 2019). In his reply brief, Nikoloff asserts for the first time that Ziliak
somehow acted “in concert” with the judge in his criminal case, a state actor. But
Nikoloff waived this argument by omitting it from his opening brief. See Carroll v.
Lynch, 698 F.3d 561, 568 (7th Cir. 2012). And in any event, his assertion is only a legal
conclusion, unsupported by allegations in his complaint. See Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009).
No. 20‐1626 Page 3
Because we affirm the district court’s judgment on this basis, we need not reach
its alternative bases for dismissal.
AFFIRMED