DAVID NICHOLS A/K/A DAVID SYDNEY NICHOLS A/K/A DAVID SIDNEY NICHOLS APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 09/22/2017
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
LEE, C.J., FAIR AND WILSON, JJ.
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.
Nichols filed a third PCR motion in 2016, which was denied
and is now the subject of this appeal. Finding no error, we
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.
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
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).
Our review of the summary dismissal of a PCR motion, a
question of law, is de novo. Young v. State, 731