FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT June 11, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court NICHOLAS SOUDERS, Petitioner - Appellant, v. No. 18-1419 (D.C. No. 1:17-CV-02883-RM) SCOTT DAUFFENBACH, Warden; PHIL (D. Colo.) WEISER, Attorney General of the State of Colorado,* Respondents - Appellees. _________________________________ ORDER DENYING CERTIFICATE OF APPEALABILITY** _________________________________ Before PHILLIPS, McKAY, and BALDOCK, Circuit Judges. _________________________________ Nicholas Souders seeks a certificate of appealability (COA) to appeal the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254.1 After review, we deny Souders a COA and dismiss his appeal. * Pursuant to Fed. R. App. P. 43(c)(2), Cynthia Coffman is replaced by Phil Weiser as a Respondent in this case. ** This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 Because Souders is pro se, we construe his filings liberally, but we stop short of acting as his advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). BACKGROUND In 2003, the state of Colorado charged Souders with four counts: (1) sexual assault (application of physical force or physical violence), in violation of Colo. Rev. Stat. § 18-3-402(1)(a), (4)(a) (2006); (2) sexual assault (while physically aided or abetted by another, in violation of § 18-3-402(1)(a), (5)(a)(ii)); (3) conspiracy to commit sexual assault, in violation of §§ 18-3-402(1)(a), (4) and 18-2-201; and (4) possession of marijuana with intent to distribute, in violation of § 18-18-06(8)(b)(1).2 People v. Souders, No. 05CA1581, slip op. at 1 (Colo. App. July 26, 2007). After a trial on the sexual-offense counts, the jury convicted Souders of the second count listed above, but it acquitted him on the other two counts. For his conviction, the court sentenced him to a mandatory range of sixteen years to life imprisonment under the Colorado Sex Offender Lifetime Supervision Act. On direct review, the Colorado Court of Appeals (CCA) affirmed Souders’s conviction and sentence. People v. Souders, No. 05CA1581 (Colo. App. July 26, 2007). The Colorado Supreme Court denied his writ of certiorari. About six years later, Souders sought post-conviction relief in the Colorado state courts, asserting ineffective assistance of trial counsel. Among his many claims, he alleged that his trial counsel had not timely informed him of the state’s plea offer or of the likely sentencing consequences of rejecting the offer if later convicted. 2 Before trial, the court granted Souders’s motion to sever the marijuana- possession count. State court file at 5, 62–64, 87–88. Souders later pleaded guilty to that charge. Id. at 176–78. 2 The Colorado state district court held an evidentiary hearing on Souders’s post-conviction claim. The court heard testimony from Souders, his mother, his trial counsel, the prosecutor, and Souders’s expert in criminal defense and sexual-assault sentencing. The prosecuting attorney ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals