Nicholls v. Hansen

Appellate Case: 20-1159 Document: 010110636671 FILED Page: 1
Date Filed: 01/25/2022
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS January 25, 2022
Christopher M. Wolpert
TENTH CIRCUIT Clerk of Court

TIMOTHY P. NICHOLLS,

Petitioner - Appellant,

v. No. 20-1159
(D.C. No. 1:17-CV-00044-CMA)
JEFF LONG, Warden;* ATTORNEY (D. Colo.)
GENERAL OF THE STATE OF
COLORADO,

Respondents - Appellees.

ORDER DENYING CERTIFICATE OF APPEALABILITY **

Before HOLMES, BACHARACH, and MORITZ, Circuit Judges.

Represented by counsel, Timothy Nicholls requests a certificate of

appealability (“COA”) to appeal from the district court’s denial of his habeas

corpus petition filed pursuant to 28 U.S.C. § 2254—particularly the denial of his

request for an evidentiary hearing on his actual-innocence gateway claim, the

denial of his motion for appointment of counsel, and the denial of two of his

*
Pursuant to Fed. R. App. P. 43(c)(2), Jeff Long is substituted as
Respondent-Appellee for Matthew Hansen, the former warden in this action.
**
This Order is not binding precedent, except under the doctrines of law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.
Appellate Case: 20-1159 Document: 010110636671 Date Filed: 01/25/2022 Page: 2

habeas claims as non-cognizable in habeas proceedings. Exercising jurisdiction

under 28 U.S.C. § 1291, we deny the COA application and dismiss the matter,

insofar as Mr. Nicholls’s 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 Mr. Nicholls’s

motion for appointment of counsel, we affirm.1

I

In 2007, Mr. 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.

The pertinent evidence at trial showed that Mr. Nicholls “burned down his

house,” killing his three young children in the process, “to collect insurance.” R.,

Vol. II, at 728 (Dist. Ct. Order, dated Mar. 23, 2020) (quoting R., Vol. I, at 510

(People v. Nicholls, No. 07CA1248 (Colo. App. Jan. 14, 2010) (unpublished)

(Nicholls I))).

1
Mr. Nicholls “need not obtain a COA to appeal the district court’s
denial of [his] motion to appoint counsel.” United States v. Page, 636 F. App’x
447, 448 n.2 (10th Cir. 2016) (unpublished) (citing Harbison v. Bell, 556 U.S.
180, 183 (2009)); see also Harbison, 556 U.S. at 183 (holding that a COA is not
required to appeal from the denial of a motion to appoint counsel because 28
U.S.C. § 2253(c)(1)(A) only requires a COA for appeals from “final orders that
dispose of the merits of a habeas corpus proceeding” and “[a]n order that
merely . . . denies a motion for appointment of counsel . . . is not such an order”).

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The prosecution contended that Mr. Nicholls committed arson and murder

together with his wife, introducing proof that generally included “(1) physical

evidence and expert testimony that the fire had been set intentionally,

(2) testimony by a jailhouse witness that [Mr. Nicholls] admitted [to] key details

(consistent with the physical evidence) of how the fire was set, and (3) evidence

of [Mr. Nicholls’s] own varied explanations for the fire that were internally

contradictory and at odds with the physical evidence.” Id. (quoting Nicholls I, No.

07CA1248 at 1). More specifically, the prosecution offered the following:

testimony from Hiram Church, Mr. Nicholls’s cellmate, that he had confessed;

evidence that Mr. 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 Deborah Nicholls, Mr. Nicholls’s wife,

exhibited unusual behavior at the crime scene, including a lack of concern for her

children’s well-being; evidence that Deborah Nicholls did not attend the children’s

funeral; Mr. Nicholls’s changing and inconsistent statements regarding the fire

which also did not fit with the evidence;2 and forensic evidence and testimony by

2
The state trial court recounted that Mr. Nicholls “exhibited
extraordinary difficulty providing direct answers to most questions asked of him in
cross-examination.” R., Vol. I, at 377 (State Trial Court Order, dated Apr. 9,
2014). “In all of the statements made prior to trial and including his trial
testimony . . . he was markedly evasive.” Id. “To the extent a straight answer
could be secured, it was very often materially inconsistent with one of his
numerous prior statements.” Id.

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an insurance company investigator and two city fire investigators establishing that

they could not 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 (“CCA”) affirmed Mr. Nicholls’s conviction

on direct appeal in Nicholls I. Both the Colorado Supreme Court and the United

States Supreme Court denied Mr. Nicholls a writ of certiorari. Right after, Mr.

Nicholls filed a motion for sentence reconsideration with the trial court, which was

subsequently denied but not appealed by Mr. Nicholls.

On November 17, 2011, Mr. 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 CCA affirmed that decision in People v.

Nicholls, No. 14CA0972 (Colo. App. Dec. 24, 2015) (unpublished) (Nicholls III).3

See R., Vol. I, at 304–16 (Nicholls III). Five years later, on August 8, 2016, Mr.

Nicholls filed a second pro se Rule 35(c) motion, which the state trial court also

denied; the CCA affirmed in People v. Nicholls, No. 16CA1997 (Colo. App. Sept.

20, 2018) (unpublished) (Nicholls IV). See R., Vol. II, at 522–36 (Nicholls IV).

3
Before the CCA’s disposition of Nicholls III, Mr. Nicholls had filed a
motion seeking return of personal property, which was denied; the CCA affirmed
that decision in People v. Nicholls, No. 11CA2581 (Colo. App. Jan. 31, 2013)
(unpublished) (Nicholls II). Nicholls II is not relevant to our review of this
matter.

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While Nicholls IV was pending, on January 3, 2017, Mr. Nicholls filed pro

se his § 2254 petition with the district court, asserting: (1) that his counsel

provided constitutionally ineffective assistance by counsel’s purported failure to

ask for a pretrial Shreck/Daubert hearing;4 and that the Colorado state courts erred

by (2) relying on an unreasonable determination of the facts when they denied his

newly discovered evidence claim; (3) misapplying federal law when they denied

that same claim; (4) misapplying federal law when they denied his judge-shopping

claim; and (5) misapplying federal law in denying his claim that the trial court

wrongfully permitted the grand jury’s indictment to be amended. Mr. Nicholls

also asserted that he was (6) actually innocent of the charges. See R., Vol. I, at

7–33 (Pet. for Writ of Habeas Corpus, filed Jan. 3, 2017).

After Mr. Nicholls and the State filed their briefs, the district court partially

rejected Mr. Nicholls’s petition. Particularly, the district court dismissed claims

two and three as not cognizable on federal habeas review, and claim one as

procedurally defaulted—absent Mr. Nicholls’s 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 claims one, four, and five.

After reviewing the additional briefing and state-court records, the district

4
See generally People v. Shreck, 22 P.3d 68 (Colo. 2001); Daubert v.
Merrell Dow Pharm., 509 U.S. 579 (1993).

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court denied Mr. Nicholls’s request for an evidentiary hearing, his motion to

appoint counsel, and his § 2254 petition. The district court also denied a COA.

This appeal followed. Mr. Nicholls asks us to grant a COA. He claims 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 was not

warranted, the court still abused its discretion in declining to appoint counsel to

represent him. Lastly, Mr. Nicholls argues 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.

II

Mr. Nicholls must obtain a COA before we may review the merits of his

appeal (a) from the district court’s rejection of his request for an evidentiary

hearing on his actual-innocence gateway claim and (b) the court’s rejection of his

second and third claims as non-cognizable under federal habeas law. See 28

U.S.C. § 2253(c)(1)(A); Clark v. Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006)

(“A COA is a jurisdictional pre-requisite to our review.” (citing Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003))). We may grant a COA only if Mr. Nicholls

“has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2).

In its seminal decision, Slack v. McDaniel, the Supreme Court shed light on

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the showing required to satisfy this statutory standard:

Where a district court has rejected the constitutional claims on the
merits, the showing required to satisfy § 2253(c) is
straightforward: The petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.

529 U.S. 473, 484 (2000). Likewise,

when the district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying constitutional
claim, a COA should issue (and an appeal of the district court’s
order may be taken) if the prisoner shows, at least, that jurists of
reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right, and that jurists of
reason would find it debatable whether the district court was
correct in its procedural ruling.

Id. at 478.

Because the COA inquiry, as the Court has defined it, “is not coextensive

with a merits analysis,” the “only question” concerning a district court’s rejection

of purported constitutional claims “is whether the applicant has shown that ‘jurists

of reason could disagree with the district court’s resolution of his constitutional

claims or that jurists could conclude the issues presented are adequate to deserve

encouragement to proceed further.’” Buck v. Davis, --- U.S. ----, 137 S. Ct. 759,

773 (2017) (quoting Miller-El, 537 U.S. at 327). In fact, if a court of appeals

“first decid[es] the merits of an appeal, and then justif[ies] its denial of a COA

based on its adjudication of the actual merits, it is in essence deciding an appeal

without jurisdiction.” Id. (quoting Miller-El, 537 U.S. at 336–37).

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Applying this standard, we deny Mr. Nicholls a COA.5

A

1

Mr. Nicholls argues that he is actually innocent and that certain newly found

evidence is “more than sufficient to warrant an evidentiary hearing.” Aplt.’s

Opening Br. at 54. Specifically, Mr. Nicholls claims that “[r]ecent advances in the

science underlying fire investigations have exposed the unreliability” of the

prosecution’s experts—particularly Dr. John DeHaan, whom he describes as the

“prosecution’s most significant fire-science expert”—as well as the unreliability of

the “assumptions and methodology” that were used to find that the fire in Mr.

Nicholls’s home had been deliberately set. Id. at 47, 54. In particular, Mr.

Nicholls notes that Dr. DeHaan used faulty “negative corpus” methodology and

also “received significant criticism from the ethics committees of two major

professional associations for providing unreliable opinions based on hand

calculations similar to what he performed here.” Id. at 54.

5
Although Mr. Nicholls needs a COA before we can resolve two of the
three issues of his appeal, he largely frames his arguments as requests for merits
relief. We nevertheless consider his arguments with our eyes fixed on the task at
hand—determining whether he warrants a COA.

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Mr. Nicholls additionally avers that certain evidence that the prosecution

introduced was misleading, unreliable, and contrary to scientific advances in fire

investigation science: specifically, referring to a prosecution witness’s testimony,

indicating that a fire-accelerant detection dog had a 100% accuracy rate, the

admission of evidence about dog alerts—despite “no reliable laboratory

confirmation of the presence of ignitable liquid residue” in the crime scene—and

testimony regarding xylenes, a highly flammable chemical that could aid in

determining the location of accelerants in fire investigations. Id. at 54–55.

2

When a habeas claim is procedurally defaulted—as the district court found

to be true in the case of Mr. Nicholls’s ineffective-assistance claim (claim

one)—the federal habeas court may still address the merits of the claim if not

doing so “will result in a fundamental miscarriage of justice.” Coleman v.

Thompson, 501 U.S. 722, 750 (1991). A “fundamental miscarriage of justice,”

means that “a constitutional violation has probably resulted in the conviction of

one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 495–96 (1986).

“[T]he fundamental miscarriage of justice exception seeks to balance the societal

interests in finality, comity, and conservation of scarce judicial resources with the

individual interest in justice that arises in the extraordinary case.” Schlup v. Delo,

513 U.S. 298, 324 (1995).

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“[A]ctual innocence, if proved, serves as a gateway through which a

petitioner may pass,” to argue the merits of a procedurally defaulted habeas claim.

McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). In other words, when a

petitioner with a procedurally barred habeas claim “presents evidence of innocence

so strong that a court cannot have confidence in the outcome of the trial unless the

court is also satisfied that the trial was free of nonharmless constitutional error,

the petitioner should be allowed to pass through the gateway and argue the merits

of his underlying claims.” Schlup, 513 U.S. at 316. These Schlup claims are

rarely granted, in light of the demanding standard the Supreme Court has imposed.

See McQuiggin, 569 U.S. at 386; accord House v. Bell, 547 U.S. 518, 537–38

(2006).

To satisfy the rigorous Schlup standard, a claim of actual innocence must be

both “credible” and “compelling.” See House, 547 U.S. at 522, 537. For a Schlup

claim to be “compelling,” the petitioner must demonstrate that, “more likely than

not, in light of the new evidence, no reasonable juror would find him guilty

beyond a reasonable doubt—or to remove the double negative, that more likely

than not any reasonable juror would have reasonable doubt.” Id. at 538. For a

Schlup claim to be “credible,” the petitioner is required “to support his allegations

of constitutional error with new reliable evidence—whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical physical

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evidence—that was not presented at trial.” Schlup, 513 U.S. at 324.

“Because such evidence is obviously unavailable in the vast majority of

cases, claims of actual innocence are rarely successful.” Id. In light of these

standards, the Supreme Court instructs that a district court

must assess the probative force of the newly presented evidence
in connection with the evidence of guilt adduced at trial.
Obviously, the Court is not required to test the new evidence by
a standard appropriate for deciding a motion for summary
judgment. Instead, the court may consider how the timing of the
submission and the likely credibility of the affiants bear on the
probable reliability of that evidence.

Id. at 331–32 (citations omitted).

Despite these ample instructions, as one of our sister Circuits has concluded,

there is seemingly “[n]o controlling legal standard [that] exists regarding whether

the credibility assessment contemplated in Schlup requires an evidentiary hearing

and if so, under what circumstances.”6 Stewart v. Cate, 757 F.3d 929, 941 (9th

6
Because, in substance, a Schlup claim is not a habeas claim that seeks
merits relief, see Schlup, 513 U.S. at 315 (explaining that a Schlup “claim of
innocence is thus ‘not itself a constitutional claim, but instead a gateway through
which a habeas petitioner must pass to have’” the review of other constitutional
claims (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993))), the hurdles and
restrictions imposed by 28 U.S.C. § 2254(e)(2) are not applicable to a petitioner’s
request for an evidentiary hearing regarding a Schlup claim, see House, 547 U.S.
at 539 (noting that “a threshold for obtaining an evidentiary hearing on claims the
petitioner failed to develop in state court, § 2254(e)(2)[,]” is a “provision” that
does not relate to “the type of petition at issue here—a first federal habeas petition
seeking consideration of defaulted claims based on a showing of actual
innocence”); accord Teleguz v. Pearson, 689 F.3d 322, 331 n.6 (4th Cir. 2012)
(collecting cases to explain that “[o]ur sister circuits considering whether the

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Cir. 2014); accord Godine v. Montgomery, No. 16-CV-2534-ODW-KS, 2019 WL

982412, at *20 (C.D. Cal., Jan. 7, 2019); see also Arnold v. Dittmann, 901 F.3d

830, 842 (7th Cir. 2018) (stating, without explicitly pointing to a relevant legal

standard, that the petitioner “has a plausible claim of actual innocence entitling

him to an evidentiary hearing,” and remanding the case to the district court to hold

such a hearing (emphasis added)); cf. Teleguz v. Pearson, 689 F.3d 322, 331 (4th

Cir. 2012) (remanding the case to the district court to “address whether [the

petitioner] should be granted an evidentiary hearing,” without giving any further

instructions aside from directing the court to “consider the particular facts raised

by the petitioner in support of his actual innocence claim in determining whether

an evidentiary hearing is warranted”).

Mr. Nicholls himself does not provide caselaw specifically articulating the

legal standards to be used to determine whether an evidentiary hearing is

warranted for a Schlup claim. See Aplt.’s Opening Br. at 46–47. He effectively

suggests that the operative standard is the standard we have fashioned in the

context of addressing the merits of certain postconviction claims; that is, “an

evidentiary hearing is warranted where ‘the record . . . is inadequate to resolve the

issue,’ and [the] petitioner ‘presented considerable evidence supporting his

limitation on evidentiary hearings in § 2254(e)(2) applies to Schlup claims have
overwhelmingly found that it does not”).

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claims,’ or when a party ‘has alleged facts that, if true, would entitle him to

relief.’” Id. (first quoting United States v. Barrett, 797 F.3d 1207, 1224 (10th Cir.

2015); then quoting Wilson v. Sirmons, 536 F.3d 1064, 1096 (10th Cir. 2008)).

Somewhat similarly, in Stewart, the Ninth Circuit sought guidance regarding the

appropriate standard to apply in deciding whether to grant an evidentiary hearing

from the standards it had previously applied in other contexts in assessing

evidentiary-hearing requests. See Stewart, 757 F.3d at 941 (noting, after observing

the lack of a controlling legal standard, that “[g]enerally, in th[e] [Ninth] Circuit,

‘a habeas petitioner should receive an evidentiary hearing when he makes “a

good-faith allegation that would, if true, entitle him to equitable tolling.”’”

(quoting Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006))).

We need not definitively opine on this matter here. As we discuss further

infra, even under searching de novo review, the district court determined on the

existing record that Mr. Nicholls’s Schlup actual-innocence claim lacked merit.

And we conclude that reasonable jurists would not debate the correctness of this

determination. It logically follows that, irrespective of the reasonably conceivable

elements of the standard for an evidentiary hearing for a Schlup claim—including

the elements of the standard Mr. Nicholls identified—we discern no possibility

that reasonable jurists would conclude that the district court erred in denying Mr.

Nicholls an evidentiary hearing. That is to say, because reasonable jurists would

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not debate the district court’s resolution of the claim on the existing record, we

have no reason to believe that they would debate the court’s denial of an

evidentiary hearing regarding that claim.

3

Reflecting similar logic, the district court based its denial of an evidentiary

hearing on its conclusion—after a thorough analysis under de novo review—that

Mr. Nicholls’s actual-innocence gateway claim lacked merit.7 In particular, the

court concluded that Mr. Nicholls’s Schlup claim failed because Mr. Nicholls’s

purportedly “new evidence . . . does not affirmatively demonstrate his innocence.”

R., Vol. II, at 760.

7
Because the evidence Mr. Nicholls presented to the district court
largely had been previously considered by the state courts and had been the subject
of state-court factual findings, the State argued that the district court should defer
to the state courts’ factual findings pursuant to 28 U.S.C. § 2254(e)(1). See R.,
Vol. II, at 758. Unaware of any controlling Tenth Circuit precedent on this
subject, the district court declined to opine on whether deference to state-court
factual findings is due under § 2254(e)(1) when considering Schlup claims;
instead, it concluded that, even absent such deference—under searching de novo
review—Mr. Nicholls could not prevail. See id. at 758–59. We note that, since
the district court entered its order, we have held that the presumption of
correctness contemplated in § 2254(e)(1) does apply to actual-innocence gateway
claims. See Fontenot v. Crow, 4 F.4th 982, 1034 (10th Cir. 2021), petition for
cert. filed, No. 21-970 (S. Ct. Jan. 6, 2022). We see no need, however, to apply
Fontenot’s holding in our COA assessment of the district court’s ruling. Because
we conclude that reasonable jurists would not debate the correctness of the district
court’s determination—under searching de novo review—that Mr. Nicholls’s
actual-innocence gateway claim is without merit, we perforce would reach the
same conclusion if we gave deference to the state courts’ factual findings under
Fontenot’s holding.

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We do not believe that reasonable jurists would debate the correctness of

the district court’s assessment of Mr. Nicholls’s actual-innocence gateway claim.

Therefore, they likewise would not debate the court’s decision to deny Mr.

Nicholls an evidentiary hearing regarding that claim. Generally, the district court

pointed out that Mr. Nicholls’s so-called new evidence was not new, was merely

impeachment evidence of Dr. DeHaan, and was not persuasive in light of

additional evidence showing his guilt; consequently, he could not show that no

reasonable juror would find him guilty beyond a reasonable doubt. See id. at

760–63. Accordingly, the court determined that Mr. Nicholls did not demonstrate

his actual innocence, which in turn, revealed his failure to demonstrate “a

fundamental miscarriage of justice sufficient to overcome his procedural default”

of his habeas claim of ineffective assistance of counsel. Id. at 763.

More specifically, first, the district court pointed out that Mr. Nicholls’s

evidence concerning the recent scientific advancements in fire investigations was

not new. The standard and methodology that Mr. Nicholls proffered as recent

advancements were actually the proposed new standards for fire investigations at

the time of the trial. See id. at 760. Mr. Nicholls’s defense counsel used those

then-proposed standards in the questioning of the witnesses. See id. In the same

vein, the district court also noted that Mr. Nicholls “failed to demonstrate that any

other ‘scientific advancements’ establish his actual innocence.” Id. Thus, the

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court was unpersuaded that Mr. Nicholls’s evidence about these new scientific

advancements and standards would “demonstrat[e] that it is more likely than not

that no reasonable juror would have convicted him.” Id.

Second, the district court deemed equally unavailing Mr. Nicholls’s

evidence apparently showing that Dr. DeHaan changed his opinion in a separate

action in Louisiana because of the advancements in fire science. The district court

reasoned that such “evidence does not affirmatively demonstrate that Mr.

DeHaan’s opinion in the Nicholls case was incorrect.” Id. at 761. The district

court then recounted the differences between the Louisiana case and Mr.

Nicholls’s case—as Dr. DeHaan himself explained in an evidentiary hearing the

postconviction Colorado state court held. Id. The district court observed that the

evidence Mr. Nicholls proffered in this regard could be used to merely impeach

Dr. DeHaan’s credibility and bolster Mr. Nicholls’s own expert—who opposed Dr.

DeHaan’s testimony at trial. Id. Because such evidence could only be used to

merely impeach Dr. DeHaan, the court concluded that the evidence could not show

Mr. Nicholls’s actual innocence.

And, third, the district court found unpersuasive Mr. Nicholls’s “supposedly

confidential” evidence showing that Dr. DeHaan was investigated by the Ethics

Committee of the American Academy of Forensic Science and was found to have

unethically offered misleading testimony in the Louisiana case. Id. at 762.

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Although finding such a report troubling, the court again found that such evidence

“goes to the impeachment of Mr. DeHaan’s testimony, it does not demonstrate Mr.

Nicholls’ actual innocence.” Id.

At bottom, the court concluded that, despite these claims against Dr.

DeHaan, Mr. Nicholls still failed to proffer evidence of his actual innocence, as

required by Schlup. Id. Indeed, the court opined that, even if one were to assume

that the jury would fully discredit Dr. DeHaan and his methodology, Mr. Nicholls

could not show that it is “more likely than not . . . no reasonable juror would find

him guilty beyond a reasonable doubt” in light of the additional evidence

surrounding the case. See id. at 762–63 (quoting House, 547 U.S. at 538). The

court determined that Mr. Nicholls failed to meet his burden on his

actual-innocence claim; thus, his showing was insufficient to overcome the

procedural default of his habeas claim. Id. at 763.

Having thoroughly considered Mr. Nicholls’s filings, the record, and the

relevant law, we conclude that no reasonable jurists would debate the correctness

of the district court’s disposition of Mr. Nicholls’s request for an evidentiary

hearing concerning his actual-innocence gateway claim.

B

In support of his other COA request, Mr. Nicholls very briefly argues that

the district court erred by determining that his second and third claims—which he

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now refers to singularly as his “due-process claim”—were “not cognizable in

federal habeas.”8 Aplt.’s Opening Br. at 61. His argument amounts to little more

8
It is conceivable that Mr. Nicholls is seeking a COA here to challenge
the district court’s resolution of only one of these two claims. That is, it is
conceivable that Mr. Nicholls’s argument here only relates to the district court’s
resolution of his third claim—but not his second. We are alert to this possibility
primarily because, in describing one of the “two federal constitutional claims
addressed in this appeal,” which relates to a purported due-process violation based
on “new evidence including advances in arson science demonstrat[ing] that the
convictions were based on unreliable evidence,” Mr. Nicholls offers a bare citation
to the portion of his district-court argument that only involved his third claim.
Aplt.’s Opening Br. at 2–3 (citing R., Vol. I, at 24–26). Mr. Nicholls of course
also denominates his claim here in the singular as a “due-process claim.” Id. at
61. We do not think, however, that it is likely that Mr. Nicholls—in attacking the
district court’s rationale regarding the lack of cognizability of his purported due-
process claim in habeas proceedings—intended to limit his challenge to the court’s
resolution of only his third claim. First and foremost, Mr. Nicholls does not
expressly limit his challenge in this fashion, though he has had an opportunity to
do so. The district court disposed of Mr. Nicholls’s second and third claims
collectively, without drawing any analytical distinctions between them. It did so
under the rationale that they were, in essence, stand-alone actual-innocence claims
based on purported newly discovered evidence—rather than gateway claims
allowing for the resolution of distinct, defaulted habeas claims (e.g., the
ineffective-assistance claim here). And the court reasoned that such stand-alone
actual-innocence claims were not cognizable in federal habeas proceedings.
Indeed, in its district-court briefing, the State also seemed to treat Mr. Nicholls’s
arguments concerning his second and third claims as presenting a single newly
discovered evidence claim, and it pronounced this claim “not cognizable in federal
habeas.” R., Vol. II, at 6, 33 (Suppl. Pre-Answer Resp., filed June 29, 2017).

In contesting the district court’s unified rationale here, Mr. Nicholls cites to
the portion of the record containing the court’s collective disposition, but he
makes no explicit attempt to distinguish between his second and third claims. See
Aplt.’s Opening Br. at 61 (citing R., Vol. II, at 581–84 (Dist. Ct. Order, dated Feb.
26, 2019)). Furthermore, because the court addressed and adjudicated his second
and third claims in a unified fashion, without drawing analytical distinctions
between them, it does not strike us as implausible that Mr. Nicholls might elect to

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than the following one-sentence conclusory assertion: “[A] claim that one’s

convictions are based on unreliable forensic evidence, which is clearly what Mr.

Nicholls has alleged here, is a cognizable violation of the Due Process Clause, as

other federal courts have recognized.” Id. at 61–62. As support for this assertion,

Mr. Nicholls merely refers—without elaboration, or even a pin citation—to a lone

out-of-circuit decision: Han Tak Lee v. Houtzdale SCI (Lee II), 798 F.3d 159 (3d

Cir. 2015).

We conclude that Mr. Nicholls has not shown that reasonable jurists would

debate the district court’s resolution of his second and third claims. Accordingly,

we deny him a COA regarding these claims—or, as Mr. Nicholls labels them—his

due-process claim.

speak of these claims in a singular fashion—as a unified whole—in explaining
why the district court allegedly erred in not perceiving that they were cognizable
claims implicating the Due Process Clause. That is to say, it would not have been
unreasonable (if not optimal) for Mr. Nicholls to elect to refer to his two
claims—without differentiation—in the singular as his “due-process claim,” in
explaining the court’s ostensible misperception of them as non-cognizable,
actual-innocence claims. Ultimately, recognizing the lack of clarity in Mr.
Nicholls’s brief on this matter, we adopt the reading of it that at least had the
potential of being most favorable to Mr. Nicholls—of securing him a COA, not
only on his third claim, but also on his second claim. As things have turned out,
however, even this reading of his brief does not avail Mr. Nicholls. For reasons
detailed infra, we conclude that Mr. Nicholls has offered nothing that would cause
reasonable jurists to debate the district court’s resolution of his second and third
claims and, accordingly, deny him a COA.

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At the outset, we express our serious doubts about whether Mr. Nicholls’s

“skeletal” argument is sufficient to preserve his request for a COA assessment.

United States v. Pursley, 577 F.3d 1204, 1231 n.17 (10th Cir. 2009); see Bronson

v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined

to consider arguments that are not raised, or are inadequately presented, in an

appellant’s opening brief.”); see also Grant v. Trammell, 727 F.3d 1006, 1025

(10th Cir. 2013) (“Even a capital defendant can waive an argument by

inadequately briefing an issue, and we break no new ground by holding the same

here.” (citation omitted)). However, even putting those doubts aside, we conclude

that Mr. Nicholls has not done enough to secure a COA. He gives us no ground to

question what seems patent from the record: reasonable jurists would not debate

that the district court understood the import of Mr. Nicholls’s second and third

claims and correctly rejected them as non-cognizable on habeas review.

In connection with his second claim, Mr. Nicholls succinctly stated the

essence of his argument: “With the ability to extensively go into the newly

discovered evidence the jury would see how unreliable and questionable the []

prosecution’s evidence is and would likely acquit me. The interests of justice

require me [to have] a fair chance to submit this newly discovered evidence to a

jury.” R., Vol. I, at 24. Regarding his third claim, Mr. Nicholls told the district

court that the CCA “misapplied” “Colorado’s newly discovered evidence standard”

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when it found that the evidence he proffered was “merely impeaching.” Id. at

25–26. Mr. Nicholls averred that “Colorado’s newly discovered evidence standard

is founded upon the federal standards for newly discovered evidence.” Id. at

25–26. He reasoned that, “[h]ad the State not misapplied this standard[,] there

would have been a hearing at which [he] would have prevailed.” Id. at 26.

“[M]ost importantly,” Mr. Nicholls noted, that absent such a purported

misapplication of the newly discovered evidence standard, the state court “would

have limited the information the jury would have had to consider, creating more

reasonable doubt to a jury.” Id. And, in conclusion—without elaboration—Mr.

Nicholls conclusorily “ask[ed] th[e] court to find that the State court violated my

right to due process under the 14th Amendment.” Id.

The district court, however, discerned no basis to consider his claims on

habeas review. Specifically, in disposing of Mr. Nicholls’s second and third

claims, the district court explained that the claims “do not state cognizable habeas

corpus claims because there is no federal constitutional right (1) to receive a new

trial on newly discovered evidence; and (2) to postconviction review in state

court.” Id., Vol. II, at 582 (Dist. Ct. Order, dated Feb. 26, 2019). Citing Supreme

Court authority, the district court explained that “[c]laims of actual innocence

based on newly discovered evidence have never been held to state a ground for

federal habeas relief absent an independent constitutional violation occurring in

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the underlying state criminal proceeding.” Id. at 582–83 (emphasis omitted)

(quoting Herrera v. Collins, 506 U.S. 390, 400 (1993)). The court also entertained

the possibility that Mr. Nicholls was effectively attempting to assert “a

constitutional due process violation based on the [CCA’s] refusal to grant a new

trial in his postconviction proceedings.” Id. at 583. But it found that such a

potential averment was equally unavailing since “such claims would not

demonstrate the existence of any independent constitutional violation during the

course of his underlying criminal proceedings.” Id. (emphasis added). It noted

that “[t]he issue of whether a new trial should be granted is a matter of state law.”

Id. at 583–84 (first citing Herrera, 506 U.S. at 408; then citing Estelle v.

McGuire, 502 U.S. 62, 67–68 (1991)).

We conclude that reasonable jurists would not debate that the district court

properly understood the substance of Mr. Nicholls’s second and third claims and

correctly rejected them. Mr. Nicholls offers no persuasive explanation for how his

purported second and third claims—what he calls his “due-process claim”—are

anything other than claims of actual innocence based on newly discovered

evidence. The mere fact (if it be so) that Colorado’s newly discovered evidence

standards mirror federal newly discovered evidence standards—as Mr. Nicholls has

asserted—would not, without more, present for the consideration of the district

court an independent (non-defaulted) constitutional violation. Accordingly, no

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reasonable jurists would debate the district court’s determination that Mr.

Nicholls’s second and third claims are not cognizable in habeas proceedings; in

particular, there is no cognizable stand-alone actual-innocence claim based on

newly discovered evidence, at least in a noncapital case. See Herrera, 506 U.S. at

400 (“[C]laims of actual innocence based on newly discovered evidence have

never been held to state a ground for federal habeas relief absent an independent

constitutional violation occurring in the underlying state criminal proceeding.”);

see Brian R. Means, FEDERAL HABEAS MANUAL § 1:61, Westlaw (database

updated May 2021) (“A freestanding claim of actual innocence in a non-capital

case based on newly discovered evidence is not ground for habeas corpus relief”

(citing Herrera, 506 U.S. at 400)); see also Farrar v. Raemisch, 924 F.3d 1126,

1131 (10th Cir. 2019) (“We have thus held that actual innocence does not

constitute a freestanding basis for habeas relief.”).

Mr. Nicholls’s unadorned reference to Lee II does not alter our decisional

calculus. Having reviewed that case, we acknowledge that the Third Circuit there

upheld the grant of habeas relief to a petitioner who had been charged and

convicted in state proceedings of an alleged arson-related death; among other

things, the petitioner claimed that “his continued incarceration also lacked the due

process due him because newly developed scientific evidence showed he was

probably innocent.” 798 F.3d at 161–62; see id. at 169 (affirming “the District

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Court’s grant of habeas relief”). In affirming, the Third Circuit predicated its

analysis in substantial part on the legal foundation that had been established in

petitioner’s prior Third Circuit appeal—Han Tak Lee v. Glunt (Lee I), 667 F.3d

397 (3d Cir. 2012). See, e.g., Lee II, 798 F.3d at 162 (citing and quoting from Lee

I). As relevant here, in Lee I, the Third Circuit panel expressly declined to reach

the question of whether “an actual innocence claim based upon newly discovered

evidence [was] cognizable in a federal habeas corpus petition,” but instead granted

petitioner the right to discovery on remand under the view that petitioner’s

“allegations, if proven, would be sufficient to establish a due process violation.”

Lee I, 667 F.3d at 400, 403 n.5; see also Lee II, 798 F.3d at 162 (noting that Lee I

proceeded from the premise that petitioner’s action “raised a due-process claim

rather than a free-standing innocence claim”).

It is notable, however, that state counsel on appeal in Lee I conceded that

petitioner’s claim sounded in due process and that “this type of claim is cognizable

in a federal habeas petition.” Lee I, 667 F.3d at 403 n.6. Consequently, the

characterization of petitioner’s newly discovered evidence claim as a due-process

claim—cognizable in habeas proceedings—actually was not contested in the Lee

litigation. The same certainly cannot be said here. See R., Vol. II, at 33 (State’s

Suppl. Pre-Answer Resp., filed June 29, 2017) (characterizing Mr. Nicholls’s

second and third claims as a unified newly discovered evidence claim that was

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“not cognizable in federal habeas”). More importantly, even if Lee I is understood

as holding that a petitioner’s claim based on newly discovered scientific evidence

may be in some instances characterized as a due-process claim cognizable in

habeas proceedings, Mr. Nicholls does nothing to explain why he should benefit

from Lee I and its progeny here—let alone clarify how Lee I and Lee II (which he

specifically cites) square with the Supreme Court’s actual-innocence decision in

Herrera and our own precedent applying it.9 We will not craft arguments to

support the cause of even pro se litigants, see Garrett v. Selby Connor Maddux &

9
Through our independent research, we unearthed the Ninth Circuit’s
decision in Gimenez v. Ochoa, 821 F.3d 1136 (9th Cir.), cert. denied, --- U.S. ----,
137 S. Ct. 503 (2016), which cites Lee II and purports to adopt the Third Circuit’s
“rule” that “permits [habeas] petitioners to seek relief [under a due-process theory]
from convictions based on flawed forensic evidence” that is revealed through new
scientific developments. Id. at 1144–45; cf. id. at 1144 (relatedly noting that
“recognizing such a [due-process] claim is essential in an age where forensics that
were once considered unassailable are subject to serious doubt”). As further
support for this supposed rule, Gimenez cited the Third Circuit’s decision in
Albrecht v. Horn, 485 F.3d 103 (3d Cir. 2007). Even putting aside the fact that
Gimenez did not actually grant relief to the petitioner under this ostensible rule,
see 821 F.3d at 1145—raising the possibility that its holding adopting the rule was
unnecessary dictum—there is as least some reason to question the court’s reading
of Lee II. First, as we have noted, in the Lee litigation the characterization of
petitioner’s habeas claim as one sounding in due process was not contested. See
Lee I, 667 F.3d at 403 n.6. And, second, it is not patent how Albrecht—which
does not even mention Lee I or Lee II—evinces the rule that Gimenez discerned.
In any event, the important point here is that it is Mr. Nicholls’s burden—not
ours—to explain the import of Lee I and its progeny and how these cases would
cause reasonable jurists to debate the district court’s determination that his second
and third claims are not cognizable in habeas proceedings. And Mr. Nicholls’s
unadorned citation to Lee II does not even begin to carry this burden.

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Janer, 425 F.3d 836, 840 (10th Cir. 2005); a fortiori we will not attempt to do so

for Mr. Nicholls in this counseled appeal. Accordingly, Mr. Nicholls’s bare

reference to Lee II does not alter our decisional calculus.

In sum, we conclude that reasonable jurists would not debate that the

district court understood the substance of Mr. Nicholls’s second and third

claims—which Mr. Nicholls labels his due-process claim—and correctly

determined that they were not cognizable in federal habeas proceedings.

III

Turning away from our COA inquiry, Mr. Nicholls contends that,

irrespective of whether the court erred in denying him an evidentiary hearing, it

wrongly denied his request for appointed counsel. See Aplt.’s Opening Br. at 59.

Mr. Nicholls specifically claims that the district court denied his request partly

because he did not request any discovery. Id. But, he reasons, if counsel had

been appointed, Mr. Nicholls could have made appropriate requests for discovery

and, as a consequence, provided even better arguments regarding the need for an

evidentiary hearing. Id. Furthermore, says Mr. Nicholls, counsel could have

obtained a court-appointed defense expert to further explain the technical scientific

evidence and “the key implications” of § 2254(e)(1) “as it relates to the jury’s

rejection of the testimony of Mr. Church and the defense’s adequate rebuttal of the

prosecution’s theory of financial desperation that supposedly motivated the

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crimes.” Id. Further, he reasons that counsel could have provided the court “with

broader contextual information about wrongful convictions in arson cases,”

“alerted the court to caselaw supporting Mr. Nicholls’s Due-Process claim,” and

“identified how the state postconviction court misapplied the prejudice prong” of

his ineffective assistance of counsel claim. Id. at 60.

As we stated earlier, Mr. Nicholls does not need a COA for us to review an

appeal from the district court’s denial of his motion to appoint counsel. See supra

note 1. Thus, we review Mr. Nicholls’s arguments on the merits.

“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). Mr. Nicholls, however, must be afforded counsel if the district court

determines that an evidentiary hearing was required. See Swazo v. Wyoming Dep’t

of Corr. State Penitentiary Warden, 23 F.3d 332, 333 (10th Cir. 1994). Barring

that, “generally appointment of counsel in a § 2254 proceeding is left to the

[district] court’s discretion.” Id. More specifically, “the district court has broad

discretion to appoint counsel . . . and its denial of counsel will not be overturned

unless it would result in fundamental unfairness impinging on due process rights.”

Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991) (quoting Maclin v. Freake,

650 F.2d 885, 886 (7th Cir. 1981)). “In determining whether to appoint counsel,

the district court should consider a variety of factors, including the merits of the

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litigant’s claims, the nature of the factual issues raised in the claims, the litigant’s

ability to present his claims, and the complexity of the legal issues raised by the

claims.” Id.; accord Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995).

In denying Mr. Nicholls’s request for appointment of counsel, the district

court first stated that because “an evidentiary hearing is not warranted in this

action and no discovery has been requested or authorized,” Mr. Nicholls “is not

entitled to appointment of counsel.” R., Vol. II, at 727. Nevertheless, the district

court further considered the merits of Mr. Nicholls’s request before concluding

that it was “not persuaded that appointment of counsel is necessary in the interests

of justice.” Id. Recounting each of the factors we ordinarily consider, the district

court reasoned that, “[a]lthough the state court record is extensive, it does not

appear that the remaining habeas claims are particularly complex or that [Mr.

Nicholls] lacks the ability to argue the merits of those claims.” Id.

After thorough consideration of Mr. Nicholls’s filings, the record, and the

relevant law, we uphold the court’s decision. Specifically, for substantially the

reasons that the court articulated, we discern no abuse of discretion in the court’s

decision to deny Mr. Nicholls’s request for appointment of counsel.

IV

For the foregoing reasons, we DENY Mr. Nicholls a COA and DISMISS

this matter, insofar as it challenges the district court’s denial of Mr. Nicholls’s

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request for an evidentiary hearing for his actual-innocence gateway claim and the

denial of his second and third claims as non-cognizable in habeas proceedings.

And we AFFIRM the district court’s order denying Mr. Nicholls’s motion for

appointment of counsel.

ENTERED FOR THE COURT

Jerome A. Holmes
Circuit Judge

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