Nichol v. Falk ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 2, 2015
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Elisabeth A. Shumaker
Clerk of Court
CRAIG J. NICHOL,
Petitioner - Appellant,
v. No. 15-1076
(D.C. No. 1:13-CV-02152-MSK)
FRANCIS FALK; THE ATTORNEY (D. Colo.)
GENERAL OF THE STATE OF
COLORADO,
Respondents - Appellees.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before KELLY, BACHARACH, and MORITZ, Circuit Judges.
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Petitioner Craig J. Nichol, a state prisoner proceeding pro se, seeks a
certificate of appealability (COA) to appeal the district court’s denial of his
28 U.S.C. § 2254 petition for habeas relief. Exercising jurisdiction under 28 U.S.C.
§ 2253(a), we deny a COA and dismiss the appeal.
A jury convicted Nichol of offenses involving sexual assault on a child and
aggravated incest. The Colorado Court of Appeals affirmed his judgment of
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order is not binding precedent, except
under the doctrines of law of the case, res judicata, and collateral estoppel. It may be
cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
conviction on direct appeal, but remanded to the trial court for resentencing. The
trial court resentenced him to an indeterminate term of 48 years to life in prison. The
trial court denied Nichol’s subsequent motion for sentence reconsideration, which he
did not appeal, and his Colo. R. Crim. P. 35(c) motion for postconviction relief. The
Colorado Court of Appeals upheld the denial of the Rule 35(c) motion, and the
Colorado Supreme Court denied his petition for writ of certiorari. Nichol then filed
his § 2254 habeas petition, which the district court denied.1
We may grant a COA only if Nichol has made “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When determining whether
to grant a COA, we ask whether “reasonable jurists could debate whether . . . the
petition should have been resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed further.” Slack v. McDaniel,
529 U.S. 473, 483-84 (2000) (internal quotation marks omitted). We construe
Nichol’s pro se petition liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972)
(per curiam).
Nichol makes seven arguments: (1) his confession admitted at trial was
involuntary; (2) he was denied his confrontation rights when the victim was
permitted to testify via closed-circuit television; (3) Colorado’s Sex Offender
1
Nichol filed an untimely notice of appeal from the district court’s judgment.
The district court subsequently entered an order granting for good cause his motion
for extension of time to file his notice of appeal, which cured the jurisdictional
defect. See Fed. R. App. P. 4(a)(5); Hinton v. City of Elwood, 997 F.2d 774, 778
(10th Cir. 1993) (“Rule 4(a)(5) permits a district court’s approval of a timely motion
to extend to validate a prior notice of appeal.”).
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Lifetime Supervision Act is unconstitutional; (4) he was entitled to a new trial under
Brady v. Maryland, 373 U.S. 83 (1963); (5) he was entitled to a new trial because of
newly discovered evidence; (6) the trial judge and prosecutor were biased against
him; and (7) his trial attorney provided constitutionally ineffective assistance of
counsel. In a thorough and well-reasoned decision, the district court concluded that
Nichol wasn’t entitled to habeas relief on these issues, and that he failed to show his
entitlement to a COA.
After reviewing Nichol’s arguments, the record on appeal, the state-court
record, and the applicable law, we are persuaded that reasonable jurists wouldn’t
debate the correctness of the district court’s resolution of his claims. Therefore, for
substantially the reasons provided by the district court in its order of January 22,
2015, we deny Nichol’s request for a COA and dismiss the appeal. We grant his
request to proceed in forma pauperis.
Entered for the Court
Nancy L. Moritz
Circuit Judge
3