Appellant's contention that the death penalty constitutes a cruel and unusual punishment proscribed by the Eighth Amendment was first raised on appeal. However, this contention has been recently rejected by Colorado in first degree murder cases. See Bell v. People, 431 P.2d 30 (Colo. 1967), and Segura v. People, 431 P.2d 768 (Colo. 1967).
HILL, Circuit Judge. Appellant, Michael John Bell, was tried and convicted for the crime of first degree murder and was sentenced to death by a jury in the District Court of the City and County of Denver, Colorado. The judgment was appealed to the Colorado Supreme Court and affirmed in Bell v. People, 158 Colo. 146, 406 P.2d 681. Thereafter, appellant filed with the state trial court a petition for post-conviction relief under Colo.R.Crim.P. 35. This motion having been denied, appellant again appealed to the Colorado Supreme Court which affirmed the lower court in Bell v. People, 431 P.2d 30. Subsequently thereto, appellant petitioned the federal district court for relief under 28 U.S.C. § 2254. After the issuance of an order to show cause and the holding of an evidentiary hearing, the court denied the writ and dismissed the petition and this appeal follows.
A full hearing was held on this question in Denver District Court as a part of the 35(b) proceedings, and petitioner's contentions were rejected in an extensive written opinion. The District Court ruling was affirmed by the Colorado Supreme Court in Bell v. People, Colo., 431 P.2d 30, 32. Thus, the state court determination of this matter is presumptively correct under 28 U.S.C.A. § 2254(d) (Supp. February 1967).
We conclude therefore that Nowels was not denied due process because of pre-trial publicity nor was in error on the part of the trial court to deny his several motions for a change of venue. Bell v. People, 163 Colo. 350, 431 P.2d 30, and Corbett v. People, 153 Colo. 457, 387 P.2d 409. II.