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Nichols v. State

Court of Appeals of Mississippi

November 6, 2018

DAVID NICHOLS A/K/A DAVID SYDNEY NICHOLS A/K/A DAVID SIDNEY NICHOLS APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 09/22/2017

          TATE COUNTY CIRCUIT COURT TRIAL JUDGE HON. JAMES MCCLURE III

          ATTORNEY FOR APPELLANT: DAVID NICHOLS (PRO SE)

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER

          BEFORE LEE, C.J., FAIR AND WILSON, JJ.

          FAIR, JUDGE

         ¶1. In 2004, David Nichols pleaded guilty to two counts of murder and was sentenced to serve two life sentences in the custody of the Mississippi Department of Corrections. Three years later, he filed his first motion for post-conviction relief (PCR), which was denied. He appealed, and the denial was affirmed in Nichols v. State, 994 So.2d 236 (Miss. Ct. App. 2008). In 2011, he filed a second unsuccessful PCR motion. Nichols v. State, 120 So.3d 433 (Miss. Ct. App. 2013).

         ¶2. Nichols filed a third PCR motion in 2016, which was denied and is now the subject of this appeal. Finding no error, we affirm.

         FACTS

         ¶3. Nichols styled his third action as a motion for recusal/change of venue because he alleged wrongdoing by the State and because the judge assigned to rule on his motion was an assistant district attorney when Nichols was prosecuted. Nichols further claimed that false evidence was used to obtain a conviction, that his guilty plea was involuntarily entered, and that his counsel was ineffective. He also requested an evidentiary hearing.

         ¶4. As the assigned judge stated in his recusal order, he "did not participate in the prosecution, conviction[, ] or sentencing of [Nichols] in any way or capacity during his employment with the Office of the District Attorney." Nor was he the original trial judge, though he had dismissed Nichols's second PCR as successive and time-barred. In any event, he recused himself in this case "out of an abundance of caution and in order to avoid any appearance of impropriety[.]" After the case was reassigned, the replacement circuit judge dismissed Nichols's motion-treating it as a third PCR motion-without an evidentiary hearing.

         STANDARD OF REVIEW

         ¶5. A circuit court may summarily dismiss a PCR motion without an evidentiary hearing "[i]f it plainly appears from the face of the motion, any annexed exhibits[, ] and the prior proceedings in the case that the movant is not entitled to any relief . . . ." Miss. Code Ann. § 99-39-11(2) (Rev. 2015). And "this [C]ourt will affirm the summary dismissal of a PCR motion [unless the appellant shows] a claim is procedurally alive substantially showing the denial of a state or federal right." Pinkney v. State, 192 So.3d 337, 341-42 (¶13) (Miss. Ct. App. 2015) (internal quotation marks omitted).

         ¶6. Our review of the summary dismissal of a PCR motion, a question of law, is de novo. Young v. State, 731 ...


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