Nichol v. Falk

• Decision Date: 22 January 2015
• Docket Number: Civil Action No. 13-cv-002152-MSK
• Parties: CRAIG J. NICHOL, Applicant, v. FRANCIS FALK, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
• Court: U.S. District Court — District of Colorado

CRAIG J. NICHOL, Applicant, v. FRANCIS FALK, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

Civil Action No. 13-cv-002152-MSK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

January 22, 2015

Chief Judge Marcia S. Krieger

ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS

This matter is before the Court on the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 by a Person in State Custody (ECF No. 1) ("the Application") filed by Applicant Craig J. Nichol. Respondents have filed an Answer to Application for Writ of Habeas Corpus (ECF No. 25) ("the Answer") and Mr. Nichol has filed a traverse (ECF No. 27) ("the Traverse"). After reviewing the record, including the Application, the Answer, the Traverse, and the state court record, the Court FINDS and CONCLUDES that the Application should be denied and the case dismissed with prejudice.

I. BACKGROUND

Mr. Nichol is challenging the validity of his convictions and sentence in case number 05CR4051 in the District Court for the City and County of Denver, Colorado. The factual background of Mr. Nichol's crimes and convictions was summarized by the Colorado Court of Appeals in state court postconviction proceedings as follows:

Defendant was charged with crimes arising from twoseparate incidents in which he sexually assaulted his daughter, who was four or five years old at the time and who had previously been sexually assaulted by a different person. At trial, the prosecution presented the following evidence of defendant's guilt: (1) the video-recorded statements of the victim during a forensic interview; (2) the testimony of the person who conducted the forensic interview; (3) the victim's testimony by closed-circuit television; and (4) defendant's stationhouse interview where he admitted to certain aspects of the two incidents with his daughter, including having touched his daughter on her bottom while she was naked and also having touched her on her vagina while he was masturbating.

The jury convicted defendant of one count of sexual assault on a child, two counts of sexual assault on a child by one in a position of trust, two counts of aggravated incest, and one count of sexual assault on a child, pattern of abuse.

People v. Nichol, No. 11CA0947, slip op. at 1-2 (Colo. App. Aug. 2, 2012) (ECF No. 11-9 at 2-3). The judgment of conviction was affirmed on direct appeal but the case was remanded to the trial court for resentencing. See People v. Nichol, No. 06CA1682 (Colo. App. Sept. 10, 2009) (ECF No. 11-4). On April 27, 2010, the trial court resentenced Mr. Nichol to an indeterminate term of forty-eight years to life in prison. (See ECF No. 11-1 at 10.)

On August 2, 2010, Mr. Nichol filed in the trial court a postconviction motion to reconsider his sentence that was denied on August 24, 2010. (See id. at 9.)

On January 27, 2011, Mr. Nichol filed in the trial court a postconviction motion pursuant to Rule 35(c) of the Colorado Rules of Criminal Procedure. (See id.) On April 25, 2011, the trial court denied the Rule 35(c) motion. (See id.) On August 2, 2012, the Colorado Court of Appeals affirmed the trial court's order denying the postconviction Rule 35(c) motion. (See ECF No. 11-9.) On July 15, 2013, the Colorado Supreme Court denied Mr. Nichol's petition for writ of certiorari in the postconviction Rule 35(c) proceedings. (See ECF No. 11-11.)

Mr. Nichol filed the Application on August 12, 2013. He claims in the Application that: (1) his confession was involuntary; (2) the victim's testimony via closed-circuit television violated his right to confrontation; (3) Colorado's Sex Offender Lifetime Supervision Act is unconstitutional; (4) the trial court violated his right to due process by denying his motion for a new trial that was based on discovery violations; (5) newly discovered evidence entitles him to a new trial; (6) the trial judge and prosecutor were biased against him; (7) trial counsel was ineffective; (8) the evidence was insufficient to support his convictions; and (9) the victim's out-of-court identification of him was impermissibly suggestive. The Court previously entered an Order to Dismiss in Part (ECF No. 19) dismissing the fraud portion of claim four and claims eight and nine in their entirety as unexhausted and procedurally barred.

II. STANDARDS OF REVIEW

The Court must construe the Application and other papers filed by Mr. Nichol liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 (10^th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.

Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be issued with respect to any claim that was adjudicated on the merits in state court unless the state court adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). Mr. Nichol bears the burden of proof under § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).

A claim may be adjudicated on the merits in state court even in the absence of a statement of reasons by the state court for rejecting the claim. Harrington v. Richter, 131 S. Ct. 770, 784-85 (2011). In particular, "determining whether a state court's decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court's reasoning." Id. at 784. Thus, "[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 784-85. Even "[w]here a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Id. at 784. In other words, the Court "owe[s] deference to the state court's result, even if its reasoning is not expressly stated." Aycox v. Lytle, 196 F.3d 1174, 1177 (10^th Cir. 1999). Therefore, the Court "must uphold the state court's summary decision unless [the Court's] independent review of the record and pertinent federal law persuades [the Court] that its result contravenes or unreasonably applies clearly established federal law, or is based on an unreasonable determination of the facts in light of the evidence presented." Id. at 1178. "[T]his 'independent review' should be distinguished from a full de novo review of the petitioner's claims." Id.

The Court reviews claims of legal error and mixed questions of law and fact pursuant to 28 U.S.C. § 2254(d)(1). See Cook v. McKune, 323 F.3d 825, 830 (10^th Cir. 2003). The threshold question the Court must answer under § 2254(d)(1) is whether Mr. Nichol seeks to apply a ruleof law that was clearly established by the Supreme Court at the time his conviction became final. See Williams v. Taylor, 529 U.S. 362, 390 (2000). Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Id. at 412. Furthermore,

clearly established law consists of Supreme Court holdings in cases where the facts are at least closely-related or similar to the case sub judice. Although the legal rule at issue need not have had its genesis in the closely-related or similar factual context, the Supreme Court must have expressly extended the legal rule to that context.

House v. Hatch, 527 F.3d 1010, 1016 (10^th Cir. 2008). If there is no clearly established federal law, that is the end of the Court's inquiry pursuant to § 2254(d)(1). See id. at 1018.

If a clearly established rule of federal law is implicated, the Court must determine whether the state court's decision was contrary to or an unreasonable application of that clearly established rule of federal law. See Williams, 529 U.S. at 404-05.

A state-court decision is contrary to clearly established federal law if: (a) "the state court applies a rule that contradicts the governing law set forth in Supreme Court cases"; or (b) "the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from [that] precedent." Maynard [v. Boone], 468 F.3d [665,] 669 [(10^th Cir. 2006)] (internal quotation marks and brackets omitted) (quoting Williams, 529 U.S. at 405). "The word 'contrary' is commonly understood to mean 'diametrically different,' 'opposite in character or nature,' or 'mutually opposed.'" Williams, 529 U.S. at 405 (citation omitted).

A state court decision involves an unreasonable application of clearly established federal law when it identifies the correct governing legal rule from Supreme Court cases, but unreasonably applies it to the facts. Id. at 407-08.

House, 527 F.3d at 1018.

The Court's inquiry pursuant to the "unreasonable application" clause is an objective inquiry. See Williams, 529 U.S. at 409-10. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be unreasonable." Id. at 411. "[A] decision is 'objectively unreasonable' when most reasonable jurists exercising their independent judgment would conclude the state court misapplied Supreme Court law." Maynard, 468 F.3d at 671. Furthermore,

[E]valuating whether a rule application was unreasonable requires considering the

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