Nicholls v. Hansen

• Decision Date: 23 March 2020
• Docket Number: Civil Action No. 17-cv-00044-CMA
• Parties: TIMOTHY P. NICHOLLS, Applicant, v. MATTHEW HANSEN, Warden, and ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
• Court: U.S. District Court — District of Colorado

TIMOTHY P. NICHOLLS, Applicant, v. MATTHEW HANSEN, Warden, andATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

Civil Action No. 17-cv-00044-CMA

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

March 23, 2020

District Judge Christine M. Arguello

ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS

Christine M. Arguello, District Judge.

The matter before the Court is an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 filed pro se by Applicant on January 3, 2017. (ECF No. 1). The Court has determined it can resolve the Application without a hearing. See 28 U.S.C. § 2254(e)(2); Fed. R. Governing Section 2254 Cases 8(a). Therefore, Applicant's "Request for Court Ordered Evidentiary Hearing" (ECF No. 36) will be denied.

On October 9, 2019, Applicant filed a Motion to Appoint Pro Bono Counsel. (ECF No. 41). "There is no constitutional right to counsel beyond the direct appeal of a criminal conviction." Coronado v. Ward, 517 F.3d 1212, 1218 (10th Cir. 2008). Decisions regarding appointment of counsel in habeas corpus proceedings generally are "left to the court's discretion." Swazo v. Wyo. Dep't of Corr. State Penitentiary Warden, 23 F.3d 332, 333 (10th Cir. 1994). "However, there is a right to counsel in a habeas case when the district court determines that an evidentiary hearing is required." Id. In particular, Rule 8(c) of the Rules Governing Section 2254 Cases in the United States District Courts provides that "[i]f an evidentiary hearing is warranted, the judge must appoint an attorney to represent a petitioner who qualifies to have counsel appointed under 18 U.S.C. § 3006A." Furthermore, Rule 6(a) provides that, "[i]f necessary for effective discovery, the judge must appoint an attorney for a petitioner who qualifies to have counsel appointed under 18 U.S.C. § 3006A."

As the Court has determined an evidentiary hearing is not warranted in this action and no discovery has been requested or authorized, Applicant is not entitled to appointment of counsel and the Court exercises its discretion in considering the motion. The Court is not persuaded that appointment of counsel is necessary in the interests of justice. The factors to consider in deciding whether to appoint counsel generally include the merits of the claims, the nature of the factual issues raised, the litigant's ability to present his claims, and the complexity of the legal issues being raised. See Rucks v. Boergermann, 57 F.3d 978, 979 (10^th Cir. 1995). "The burden is upon the applicant to convince the court that there is sufficient merit to his claim to warrant the appointment of counsel." McCarthy v. Weinberg, 753 F.2d 836, 838 (10^th Cir. 1985). Although the state court record is extensive, it does not appear that the remaining habeas claims are particularly complex or that Applicant lacks the ability to argue the merits of those claims. Therefore, the Motion to Appoint Pro Bono Counsel (ECF No. 41) will be denied.

I. BACKGROUND

Mr. Nicholls is currently incarcerated at the Sterling Correctional Facility in Sterling, Colorado. He is challenging his conviction in El Paso County District Court case number 05CR3776. He has paid the filing fee. (ECF No. 7).

In 2007, Mr. Nicholls was convicted by a jury of multiple offenses, including three counts of first degree murder and various other counts, including arson. (ECF No. 13-1 at 5-6). He was sentenced to three life terms without the possibility of parole and various other sentences. (Id. & ECF No. 13-6 at 5).

The Colorado Court of Appeals summarized the relevant factual background of Applicant's criminal case as follows:

The trial evidence (the sufficiency of which is not challenged on appeal) showed defendant burned down his house - murdering his three young children in the process - to collect insurance. The prosecution's theory was that defendant committed those crimes together with his wife, who was tried separately and also convicted.

Defendant and his wife were experiencing serious financial and marital problems, and using serious drugs, prior to the fire. The prosecution's proof included (1) physical evidence and expert testimony that the fire had been set intentionally, (2) testimony by a jailhouse witness that defendant admitted key details (consistent with the physical evidence) of how the fire was set, and (3) evidence of defendant's own varied explanations for the fire that were internally contradictory and at odds with the physical evidence.

The fire occurred around 2:00 a.m. while defendant was home with his three sleeping children and his wife was out at a bar. Neighbors saw the fire and firefighters responded a short while later. Defendant, who escaped after having suffered painful but non-life-threatening burns, did not mention to a neighbor and a firefighter that his children remained inside the burning home.

Firefighters entering the home found the living room engulfed in flames. They found the couple's three-year-old daughter dead in the master bedroom and the eleven-year-old son dead in an upstairs hallway. They carried the couple's five-year-old daughter outside the home but she died within twenty-four hours.

Defendant's wife, intoxicated, arrived after the fire was extinguished. She claimed to have left burning candles inside the house that defendant must have forgotten to put out. She showed little concern for the children and did not attend their funeral.

Investigators later found cans of "Goof Off" - a highly flammable solvent - in the house and shrubs. The reactions of a trained fire detection dog revealed the presence of petroleum products throughout the living room. Forensic experts testified that the fire intentionally had been set at several places in that room.

Defendant and his wife submitted insurance claims for loss of their house and personal property. Defendant, as well as his wife, specifically inquired regarding "child-riders" to defendant's life insurance policy that would have covered the accidental death of a child. Defendant's wife was particularly incensed upon learning that the policy did not include such coverage.

A jailhouse witness testified that defendant admitted having acted with his wife to burn the house, kill the children, and collect the insurance proceeds. The witness recounted defendant's [sic] describing how his wife had sprayed the couch with Goof Off, how defendant then had his pajama-clad children sit on the couch, and how defendant later went downstairs and lit the living room on fire.

The prosecution presented evidence of defendant's varied explanations regarding his actions and the fire, and defendant also testified at trial. Defendant admitted having spoken to the jailhouse witness but claimed that he was "just kind of throwing scenarios out there" and that the witness had come up with the idea of accelerant having been sprayed all over the house. Defendantmaintained that the fire was the accidental result of his not having extinguished candles left burning earlier that night.

Physical and forensic evidence - which defendant's appellate brief describes as having "formed the heart of the prosecution's case" - corroborated the jailhouse witness's description of defendant's incriminating admissions and refuted defendant's other innocent explanations for the fire. Chemical analysis performed on the children's pajamas, defendant's jeans, and debris from the fire confirmed the presence of an accelerant. Investigators also discovered that the batteries had been removed from the smoke detectors. Forensic examination revealed no evidence supporting the claims of defendant and his wife that the fire resulted from burning candles. Nor did the forensic examinations reveal an electrical short circuit or any other accidental source of the fire.

People v. Nicholls, No. 07CA1248 (Colo. App. Jan. 14, 2010) (unpublished), (ECF No. 13-17 at 3-6) ("Nicholls I").

The trial judge described the lengthy proceedings:

The trial lasted seventeen days. Prior to the trial, the defense filed 43 pleadings and 15 pretrial hearings were held, to include hearings held after the commencement of trial outside the presence of the jury. The jury, during the trial, asked 147 questions of the witnesses. The jury deliberated for 5 days posing numerous questions to the court.

(ECF No. 13-6 at 4-5).

The Colorado Court of Appeals affirmed Applicant's conviction on direct appeal. (ECF No. 13-17). The Colorado Supreme Court denied his petition for writ of certiorari. (ECF No. 13-15). On January 24, 2011, the United States Supreme Court also denied Applicant's petition for writ of certiorari. (ECF No. 13-13).

On January 25, 2011, Mr. Nicholls filed a motion for reconsideration of his sentence with the trial court (ECF No. 13-1 at 43), which was denied on March 1, 2011 (Id. at 41). He did not appeal. (Id.).

Then, on October 20, 2011, Mr. Nicholls filed a motion seeking return of personal property (ECF No. 13-1 at 40), which was denied on November 2, 2011 (ECF No. 13-12). Applicant appealed and the Colorado Court of Appeals affirmed. People v. Nicholls, No. 11CA2581 (Colo. App. Jan. 31, 2013) (unpublished), (ECF No. 13-10) ("Nicholls II").

On November 17, 2011, Mr. Nicholls filed a pro se postconviction motion and supporting brief under Colo. Crim. P. 35(c) (ECF Nos. 13-8 and 13-9), which was later supplemented by appointed postconviction counsel (ECF No. 13-7). Following a three-day evidentiary hearing, the trial court denied the postconviction motion in a nineteen page written order. (ECF No. 13-6). The Colorado Court of Appeals affirmed the trial court's denial of the postconviction motion. People v. Nicholls, No. 14CA0972 (Colo. App. Dec. 24, 2015) (unpublished), (ECF No. 13-4) ("Nicholls III"). On August 1, 2016, the Colorado Supreme Court denied Applicant's petition for writ of certiorari. (ECF No. 13-2).

On August 8, 2016, Mr. Nicholls filed pro se a second postconviction motion under Colo. Crim. P. 35(c). (ECF No. 18-18). That motion was denied on October...