                                                                                   FILED
                                                                       United States Court of Appeals
                                                                               Tenth Circuit

                       UNITED STATES COURT OF APPEALS                        March 11, 2014

                                                                           Elisabeth A. Shumaker
                                    TENTH CIRCUIT                              Clerk of Court



 CRAIG DUNCAN NICHOLLS,

        Petitioner - Appellant,

 v.                                                           No. 13-4065
                                                      (D.C. No. 2:09-CV-00982-TC)
 ALFRED BIGELOW, Warden at the
 Central Utah Correctional Facility,                            (D. Utah)

        Respondent - Appellee.



             ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.


       Craig Nicholls, a Utah state prisoner, filed a pro se application for relief under

28 U.S.C. § 2254 in the United States District Court for the District of Utah. The district

court denied his application. Mr. Nicholls now seeks a certificate of appealability (COA)

from this court to pursue an appeal. See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA to

appeal denial of § 2254 application). He claims entitlement to relief on the grounds (1)

that his guilty plea was not knowing and voluntary because of his mental illness

(depression), his lack of participation in preparing his plea statement, an unfair plea

colloquy, and absence of a factual basis for his plea; (2) that the state judge engaged in
misconduct, including a violation of Utah Rule of Criminal Procedure 11(i), by

participating in the plea negotiations; (3) that he received ineffective assistance of

counsel in deciding whether to plead guilty; and (4) that the lack of an evidentiary

hearing in the state courts made the state-court decisions unreasonable and not binding on

the federal courts. He also challenges the denial of an evidentiary hearing in federal

district court. We deny a COA and dismiss the appeal.

I.     BACKGROUND

       Mr. Nicholls pleaded guilty to one count of aggravated murder in Utah state court.

He executed a Rule 11 waiver/statement of facts to demonstrate that his plea was

voluntary and intelligent and to set forth the facts of his offense. The Utah Supreme

Court later summarized the facts as follows:

       After consulting with his girlfriend, Tamara Rhinehart, Nicholls agreed to
       kill Rhinehart’s ex-husband, Michael John Boudrero. In July 2003,
       Nicholls called Boudrero and asked him to come to a construction site to
       help with a plumbing job. At the same time, Rhinehart was planning to
       attend a movie with her children to provide an alibi for Nicholls, who
       planned to show up late for the movie after he killed Boudrero.
              Between 8 and 9 p.m., Boudrero arrived at the construction site, and
       Nicholls led him to the basement. Nicholls then shot Boudrero in the back
       and chest, dragged him into a storage room, stole property from him,
       locked the body in the storage room, and escaped in Boudrero’s car.
              Investigators quickly focused on Nicholls and Rhinehart as suspects.
       Nicholls used a prepaid phone card to call Boudrero to set up the meeting;
       the phone card was traced to Nicholls through video surveillance showing
       him purchasing the card at a Wal-Mart in Brigham City. Investigators also
       received tips from confidential informants who said that Rhinehart had told
       them about a plan that “was going to happen soon,” by which she meant her
       ex-husband “was going to be gone.” Rhinehart also told an informant that
       her boyfriend was going to kill Boudrero.

                                               2
              Nicholls was charged with one count of aggravated homicide, a
      capital felony, and one count of purchasing, transferring, possessing, or
      using a firearm by a restricted person, a third degree felony. The State
      initially sought the death penalty.

Nicholls v. State, 203 P.3d 976, 978 (Utah 2009) (footnote omitted).

      The Utah trial court conducted a thorough plea colloquy. It began by inquiring

whether Mr. Nicholls was competent to proceed:

      The Court: [A]re you under the influence of any drugs, medication or
      alcohol?
      [Mr. Nicholls]: No, sir.
      The Court: Are you confident that you are in complete control of your
      mental faculties and are able to proceed today?
      [Mr. Nicholls]: Yes, sir.
      The Court: Any reason you can think of not to proceed?
      [Mr. Nicholls]: No, sir.

R., Vol. I at 37. The prosecutor then read aloud Mr. Nicholls’s plea statement, asking

him to confirm or deny everything included in the document. That exchange concluded

with the following:

      [Prosecutor]: “No threats or promises of any sort have been made to me to
      induce me or to persuade me to enter this plea.”
      [Mr. Nicholls]: Yes, sir.
      [Prosecutor]: “No one has told me that I would receive any form of
      leniency because of my plea.”
       [Mr. Nicholls]: Yes, sir.
             ....
      [Prosecutor]: “I have discussed this case and the plea with my attorneys as
      much as I wish to. I have no further questions of my lawyer prior to the
      court taking my plea.” Is that correct?
      [Mr. Nicholls]: Yes, sir.
      [Prosecutor]: “I am satisfied with my lawyer’s counsel and advice.”
      [Mr. Nicholls]: Yes, sir.
      [Prosecutor]: Seven, “My decision to enter this plea was made after full
      and careful thought, with the advice of counsel and with a full
                                            3
       understanding of my rights and the facts and circumstances of the case and
       the consequences of the plea. I was not under the influence of any drugs,
       medication or intoxicants when the decision to enter the plea was made and
       I am not now under the influence of any drugs, medication or intoxicants.”
       [Mr. Nicholls]: Yes, sir.
       [Prosecutor]: “I have no mental reservations concerning this plea.”
       [Mr. Nicholls]: Yes, sir.

Id. at 54–55. After the statement was read aloud and confirmed by Mr. Nicholls, the

court asked him (1) if he understood that if he did not plead guilty he would have a

presumption of innocence and would be entitled to a jury trial and (2) if he was making

his plea “intelligently, knowingly, voluntarily, and intentionally.” Id. at 56. The court

also established that he understood that immediate imposition of sentence would mean he

could not withdraw his plea. The court then accepted the plea and sentenced

Mr. Nicholls to life in prison without parole.

       Mr. Nicholls later filed a pro se motion to withdraw his plea. The state trial court

dismissed for lack of jurisdiction because it had already imposed sentence. He then filed

a pro se motion under Utah Rule of Criminal Procedure 22(e) to correct his sentence and

arrest judgment, and the court dismissed again for lack of jurisdiction. Mr. Nicholls

appealed to the Utah Supreme Court, which dismissed the appeal, stating that he could

challenge his guilty plea only in a postconviction proceeding. The Utah Supreme Court

eventually affirmed denial of his later postconviction challenge. See Nicholls, 203 P.3d

at 978. He then filed his § 2254 application in federal district court. The district court

denied relief, and Mr. Nicholls appeals.

II.    DISCUSSION
                                              4
       A.     Standard of Review

       A COA will issue “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a

demonstration that . . . includes showing that reasonable jurists could debate whether (or,

for that matter, agree that) 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, 484 (2000) (internal quotation marks omitted). In other

words, the applicant must show that the district court’s resolution of the constitutional

claim was either “debatable or wrong.” Id.

       The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), provides

that when a claim has been adjudicated on the merits in a state court, a federal court can

grant habeas relief only if the applicant establishes that the state-court decision was

“contrary to, or involved an unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States,” or “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) (1), (2). As we have explained:

       Under the “contrary to” clause, we grant relief only if the state court arrives
       at a conclusion opposite to that reached by the Supreme Court on a question
       of law or if the state court decides a case differently than the Court has on a
       set of materially indistinguishable facts.

Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (brackets and internal quotation

marks omitted). Relief is provided under the “unreasonable application” clause “only if

                                              5
the state court identifies the correct governing legal principle from the Supreme Court’s

decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id.

(brackets and internal quotation marks omitted). Thus, a federal court may not issue a

habeas writ simply because it concludes in its independent judgment that the relevant

state-court decision applied clearly established federal law erroneously or incorrectly.

See id. Rather, that application must have been unreasonable. For those of

Mr. Nicholls’s claims which the Utah Supreme Court adjudicated on the merits,

“AEDPA’s deferential treatment of state court decisions must be incorporated into our

consideration of [his] request for [a] COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th

Cir. 2004).

       In reviewing the state-court decision, we are “limited to the record that was before

the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 131 S. Ct.

1388, 1398 (2011). If a petitioner desires an evidentiary hearing on a claim that the state

court did not decide on the merits, AEDPA requires the applicant to have “develop[ed]

the factual basis of [the] claim in State court proceedings.” 28 U.S.C. § 2254 (e)(2). If

the petitioner failed to develop the factual basis in state court, then he cannot receive an

evidentiary hearing unless the claim “relies on—(i) a new rule of constitutional law,

made retroactive to cases on collateral review by the Supreme Court . . . or (ii) a factual

predicate that could not have been previously discovered through the exercise of due

diligence.” Id. § 2254(e)(2)(a). If the applicant did not fail to develop the factual basis of

his claims in state court proceedings, then pre-AEDPA standards apply, and the applicant
                                              6
must show that “his allegations, if true and not contravened by the existing factual record,

would entitle him to habeas relief.” Littlejohn v. Trammell, 704 F.3d 817, 858 (10th Cir.

2013) (internal quotation marks omitted).

       B.      Whether the Plea was Knowing and Voluntary

       Mr. Nicholls argues that his plea was not knowing and voluntary. First, he alleges

that his mental condition at the time, in part caused by his not having access to

prescription medication for depression that he had been taking before his arrest,1 caused

him not to understand the plea process or the plea hearing. The Utah Supreme Court

rejected this claim on the grounds that “[n]othing in the plea colloquy suggested that

[Mr.] Nicholls was incompetent.” Nicholls, 203 P.3d at 981. It summarized the plea

proceedings, observing that he participated in the proceedings, gave “precise, appropriate

answers at appropriate times,” and indicated that he understood what was going on. Id.

In addition, the court stated that “[d]epression is not sufficient . . . to establish

incompetence,” which is measured by whether the defendant can rationally consult with

his lawyer and understand the proceedings against him. Id. at 982. Mr. Nicholls has

never presented any evidence, or even an allegation, that he was suffering from any

mental infirmity other than depression at the time of the plea. The court’s ruling was not

contrary to or an unreasonable application of clearly established law. Cf. United States v.

Mackovich, 209 F.3d 1227, 1233 (10th Cir. 2000) (“[T]his circuit has long recognized

1
  Mr. Nicholls alleges that the jail administration would not let him have access to his
medication and that state detectives were withholding the medication from him. But he
provided no evidence to support the allegations.
                                                7
that the presence of some degree of mental disorder in the defendant does not necessarily

mean that he is incompetent to assist in his own defense.” (brackets, ellipses, and internal

quotation marks omitted)).

       Second, Mr. Nicholls argues that his plea was not knowing and voluntary because

he took no part in preparing his plea statement and had not read or touched it before the

hearing. But he presents no evidence, as opposed to unsworn allegations, to support his

factual assertions.

       Third, Mr. Nicholls argues that his statements at the plea hearing should not be

used to defeat his claims because his answers in the plea colloquy were crafted by the

prosecutor, he was constrained to one-word answers, and he was instructed by counsel to

answer as he did. The only evidence to support this claim was his sworn statement in

state court that his counsel told him “you must convince the judge this is your decision.”

R., Vol. I at 77. But this statement is not an allegation that counsel compelled him to

answer any specific question in any specific way.

       Finally, Mr. Nicholls argues that his plea did not have a sufficient factual basis.

This claim is squarely contradicted by his plea statement, which sets out in detail the

actions he took to plan and commit the murder. These admissions were sufficient to

establish the elements of the offense.

       No reasonable jurist would debate the district court’s rejection of Mr. Nicholls’s

claim that his plea was not knowing or voluntary.

       C.     Judicial Misconduct
                                              8
       Mr. Nicholls contends that he is entitled to relief because of judicial misconduct.

First, he relies on Utah Rule of Criminal Procedure 11(i)(1), which states, “The judge

shall not participate in plea discussions prior to any plea agreement being made by the

prosecuting attorney.” He contends that the trial judge violated the rule by participating

in his plea negotiations. A violation of state law, however, does not in itself provide a

ground for § 2254 relief. See Davis v. Workman, 695 F.3d 1060, 1079 (10th Cir. 2012).

Mr. Nicholls must show “that the trial judge’s participation denied [him] due process of

law by causing him not to understand the nature of the charges against him or the

consequences of the guilty plea, or [that] the judge’s participation coerced the defendant

to enter into a plea bargain involuntarily.” Miles v. Dorsey, 61 F.3d 1459, 1467 (10th

Cir. 1995) (internal quotation marks omitted).

       Even if we were to read Mr. Nicholls’s § 2254 application as alleging a due-

process violation, there is no evidence to support the allegation. Mr. Nicholls relies on a

statement by the judge at the plea colloquy:

       I would like in a discussion we had in your absence, Mr. Ward [a
       prosecutor], but in the presence of Mr. Caine [defense counsel] and his co-
       counsel, Mr. Demler, in order to proceed with this matter I would prefer
       that the defendant be sworn and take the witness stand for examination
       relative to his competency and his understanding of the plea and in
       connection with the Rule 11 statement of waiver. Mr. Daines [a
       prosecutor] indicated that he would like to conduct that examination and I
       think that would be an appropriate procedure.

R., Vol. I at 36. Although this statement alludes to a meeting between the court and

counsel before the plea colloquy, there is no indication that the court participated in

                                               9
negotiating the substance of the agreement, and Mr. Nicholls has provided no evidence

that the prehearing meeting was anything other than a meeting to discuss procedure

during the colloquy. Certainly nothing rose to the level of coercing Mr. Nicholls to

accept the plea (after all, Mr. Nicholls was not present at the meeting).

       Next, Mr. Nicholls contends that the trial judge demonstrated bias by not asking

the state what evidence it had to support the plea and not inquiring properly into whether

the plea was knowing and voluntary. But we see no shortcoming in the trial court’s

conduct of the plea hearing. Certainly Mr. Nicholls has not provided any Supreme Court

decision that required the court to do more than it did.

       No reasonable jurist would debate the district court’s denial of the claim of

judicial misconduct.

       D.     Ineffective Assistance of Counsel

       Mr. Nicholls next argues that he received ineffective assistance of counsel in

preparing his case and deciding to accept a plea. To prevail on a claim of ineffective

assistance of counsel, the “defendant must show [(1)] that counsel’s representation fell

below an objective standard of reasonableness” and (2) that he was prejudiced by the

substandard representation. Strickland v. Washington, 466 U.S. 668, 687–88 (1984). “In

cases where a defendant complains that ineffective assistance led him to accept a plea

offer as opposed to proceeding to trial, the defendant [has] to show a reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and would

have insisted on going to trial.” Missouri v. Frye, 132 S. Ct. 1399, 1409 (2012) (internal
                                             10
quotation marks omitted). Mr. Nicholls alleges that his counsel were ineffective when

they (1) failed to investigate and prepare his case, (2) coerced him into entering a guilty

plea, and (3) failed to apprise the court of his mental-health issues. We examine each

allegation in turn.

              1.      Investigation and Preparation

       Mr. Nicholls asserts that his counsel spent very little time with him, refused to

accept his phone calls, and did not file sufficient motions, conduct an independent

investigation, develop a defense strategy, or review his medical history. He further

alleges that counsel improperly waived a preliminary hearing and interviewed only one

potential witness. The Utah Supreme Court considered these claims and found them

insufficient to meet Strickland’s first prong, representation “below an objective standard

of reasonableness.” See Nicholls, 203 P.3d at 983 (internal quotation marks omitted).

The court correctly observed that there was insufficient evidence to support allegations

that defense counsel had done so little work on the case. See id. Although Mr. Nicholls

stated in his sworn state-court petition that his lead counsel “never accepted one phone

call from petitioner” and that he “came to the jail twice totalling [sic] about 30 mins,” R.,

Vol. I at 78, he also submitted a log from the jail detailing his visits and phone calls, and

it indicates that he had at least eight visits from his attorneys before the date of the plea

hearing. The Utah court also reviewed the plea colloquy, noting that Mr. Nicholls

expressed his satisfaction with his legal representation. See Nicholls, 203 P.3d at 983.

And, of course, counsel enabled Mr. Nicholls to escape the death penalty. The Utah
                                              11
Supreme Court decision was not contrary to or an unreasonable application of clearly

established law.

              2.     Coercion

       Mr. Nicholls alleges his counsel used tactics on the day of the plea to coerce him

into pleading guilty. His brief in our court alleges that his counsel told him that he

needed to accept a plea that day, although he had not authorized plea discussions; that

when he told counsel he wanted to go to trial, counsel argued with him for an hour and a

half until it was clear that counsel were unwilling to go to trial and he agreed to plead

guilty; and that during this meeting counsel promised him “medications, an appeal, [his]

family and even Prisneyland” if he pleaded guilty. App. Br. at 18. But the only evidence

in the record to support these allegations is Mr. Nicholls’s assertion in his sworn state-

court petition that “Counsel was aware of the petitioner[’]s precarious state of health but

forced him to capitulate to their demands anyway by badgering and verbally abusing the

petitioner for the next 3 hrs so that the 13h00 deadline would be met using statements like

. . . you will get medication as soon as you get to prison.”2 R., Vol. I at 76‒77.

       Pointing to Mr. Nicholls’s statements at the plea colloquy that he was not

threatened or promised anything in return for the plea, the Utah Supreme Court rejected

this claim. See Nicholls, 203 P.3d at 983. Its ruling was neither contrary to nor an

unreasonable application of clearly established law: “[T]he representations of the

2
  Mr. Nicholls also cites to an affidavit filed in federal district court with his § 2254
application. But that document was not before the state courts that decided this issue on
the merits, so we cannot consider it. See Cullen, 131 S. Ct. at 1398.
                                             12
defendant, his lawyer, and the prosecutor at [the plea] hearing, as well as any findings

made by the judge accepting the plea, constitute a formidable barrier in any subsequent

collateral proceedings.” Blackledge v. Allison, 431 U.S. 63, 73–74 (1977). We have

recognized that sometimes this barrier can be overcome, but the court must “look[]

closely at both the petitioner’s allegations and the circumstances in which he pled guilty.”

Worthen v. Meachum, 842 F.2d 1179, 1184 (10th Cir. 1988), overruled on other grounds

by Coleman v. Thompson, 501 U.S. 722, 750 (1991). “Solemn declarations in open court

carry a strong presumption of verity. The subsequent presentation of conclusory

allegations unsupported by specifics is subject to summary dismissal, as are contentions

that in the face of the record are wholly incredible.” Blackledge, 431 U.S. at 74. For

example, although Mr. Nicholls’s brief suggests that his counsel had threatened him with

deprivation of his medication if he did not plead guilty, Mr. Nicholls has not actually

sworn to that assertion. Indeed, in his § 2254 application he acknowledges that counsel’s

statement that he could get his medications in prison was a true statement. Although he

argues that the statement was nevertheless coercive, presenting the brutal facts to a client

is the job of counsel; it is not coercion. The gist of Mr. Nicholls’s claim appears to be

only that his counsel strongly urged him to plead guilty. But this is proper conduct by an

attorney if he believes that a plea is the best course. See Miles, 61 F.3d at 1470.

       Mr. Nicholls also claims that his counsel did not explain the rights he would give

up by pleading. But any failure in this regard was rendered harmless by the trial court’s

exhaustive colloquy, which advised him of his rights before he pleaded guilty. See
                                             13
United States v. Hamilton, 510 F.3d 1209, 1216 (10th Cir. 2007) (“In light of the court’s

careful explanation of the plea’s consequences and [defendant’s] testimony that he

understood those consequences, [defendant’s] allegation that he would have gone to trial

but for his attorney’s failure to advise him of the career-offender provision is insufficient

to establish prejudice.”).

       Finally, Mr. Nicholls argues that the short amount of time between the arrest and

the plea (three months and 12 days) shows that the plea was rushed. But he cites no

authority, and we are aware of none, that such a period of time between an arrest and a

plea indicates a violation of the defendant’s constitutional rights.

              3.      Failure to Communicate with the Court

         Mr. Nicholls further argues that his counsel should have, but did not, present to

the court evidence about his mental-health issues that rendered him incompetent to plead

guilty. But as discussed earlier, there is no evidence in the record that he was

incompetent when he pleaded. His counsel’s failure to present a meritless argument did

not cause his representation to fall below an objective standard of reasonableness.

       No reasonable jurist would debate the denial of Mr. Nicholls’s claim of ineffective

assistance of counsel.

       E.     Evidentiary Hearing

       Mr. Nicholls argues that the refusal of the state courts to grant him an evidentiary

hearing to develop the factual basis of his claims undermines their decisions and the basis

for this court to grant them deference. But he does not suggest what specific evidence
                                              14
would have been elicited at such a hearing or why the new evidence would entitle him to

relief.

          Mr. Nicholls also challenges the denial of his request for an evidentiary hearing in

district court. But a § 2254 applicant is not entitled to an evidentiary hearing if he “has

failed to develop the factual basis of [his] claim in State court proceedings.” 28 U.S.C.

§ 2254(e)(2). Requesting an evidentiary hearing in state court is not always sufficient, on

its own, to meet the standard. See Cannon v. Mullin, 383 F.3d 1152, 1176–77 (10th Cir.

2004). “The federal district court should not be required to conduct an evidentiary

hearing on a claim when the applicant for relief has not presented evidence that would be

readily available if the claim were true.” Id. at 1177. If Mr. Nicholls’s claims are

meritorious, he should have personal knowledge of facts establishing their merit. Yet, the

one sworn pleading filed in state court does not, as discussed above, provide evidence

sufficient to overcome Mr. Nicholls’s sworn statements at the plea colloquy.

Mr. Nicholls failed to develop the factual basis of his claims in state court, so the district

court properly declined to grant an evidentiary hearing.

III.      CONCLUSION

    We DENY Applicant’s motion for a stay. We DENY the application for a COA and

DISMISS the appeal. We GRANT Applicant’s motion to proceed in forma pauperis.

                                             ENTERED FOR THE COURT


                                             Harris L Hartz
                                             Circuit Judge
                                               15
