Court Opinions: 10th Circuit Court of Appeals Opinion from Jan. 25

The 10th Circuit Court of Appeals

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.


Nicholls v. Hansen, et al.

In 2007, Timothy Nicholls was convicted of three counts of first-degree murder and arson, among other offenses. He was sentenced to three life terms without the possibility of parole.

Evidence at trial showed that Nicholls “burned down his house,” killing his three young children in the process, “to collect insurance,” according to the 10th Circuit Court of Appeals opinion. The prosecution contended that Nicholls committed arson and murder together with his wife, introducing proof that generally included “physical evidence and expert testimony that the fire had been set intentionally, testimony by a jailhouse witness that [Nicholls] admitted [to] key details (consistent with the physical evidence) of how the fire was set, and evidence of [Nicholls’s] own varied explanations for the fire that [was] internally contradictory and at odds with the physical evidence.” 

More specifically, the prosecution offered the following: testimony from Hiram Church, Nicholls’ cellmate, that he had confessed; evidence that Nicholls and his wife were in significant debt, had serious drug issues and had failing businesses; evidence that the Nichollses often set large fires in the front of their house; evidence that Nicholls’ wife exhibited unusual behavior at the crime scene, including a lack of concern for her children’s well-being; evidence that Nicholls’ wife didn’t attend the children’s funeral; Nicholls’ changing and inconsistent statements regarding the fire, which also didn’t fit with the evidence; and forensic evidence and testimony by an insurance company investigator and two city fire investigators establishing that they couldn’t find an innocent explanation for the fire and determining early on in their investigations that the likely cause of the fire was arson.

The Colorado Court of Appeals affirmed Nicholls’ conviction on direct appeal in Nicholls I. Both the Colorado Supreme Court and the U.S. Supreme Court denied Nicholls a writ of certiorari. Soon after, Nicholls filed a motion for sentence reconsideration with the trial court, which was subsequently denied but not appealed by Nicholls.

On November 17, 2011, Nicholls filed a pro se postconviction motion and supporting brief under Rule 35(c) of the Colorado Rules of Criminal Procedure, which was later supplemented by postconviction counsel. A state trial court denied that motion, and the Court of Appeals affirmed that decision in People v. Nicholls in an unpublished opinion. Five years later, on August 8, 2016, Nicholls filed a second pro se Rule 35(c) motion, which the state trial court also denied. The Court of Appeals affirmed again.

While Nicholls IV was pending, on January 3, 2017, Nicholls filed pro se his § 2254 petition with the district court, asserting his counsel provided constitutionally ineffective assistance by counsel’s purported failure to ask for a pretrial Shreck/Daubert hearing among other contentions. After Nicholls and the state filed their briefs, the district court partially rejected Nicholls’ petition. Particularly, the district court dismissed two of the claims as not cognizable on federal habeas review, and the first claim as procedurally defaulted — absent Nicholls’ showing of actual innocence of the substantive offense. The district court then ordered the government to file an answer that would fully address the merits of the first claim and the remaining claims not yet addressed.

After reviewing the additional briefing and state court records, the district court denied Nicholls’ request for an evidentiary hearing, his motion to appoint counsel and his § 2254 petition. The district court also denied a certificate of appealability.

Nicholls appealed to the 10th Circuit and asked for a COA. He claimed that the district court abused its discretion in denying him an evidentiary hearing on his actual-innocence gateway claim, and that, even if an evidentiary hearing wasn’t warranted, the court still abused its discretion in declining to appoint counsel to represent him. Lastly, Nicholls argued that the district court erred by denying his second and third claims — which he now describes, singularly, as a due-process claim — on the ground that it was not cognizable in federal habeas proceedings.

Exercising jurisdiction, the 10th Circuit denied the COA application and dismissed the matter, insofar as Nicholls’ appeal relates to the district court’s denial of his request for an evidentiary hearing and denial of two of his claims as non-cognizable in habeas proceedings. Concerning the district court’s order denying Nicholls’ motion for appointment of counsel, the court affirmed.

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