April 20, 2019

Colorado Court of Appeals: Counsel Not Ineffective for Failing to Appeal POWPO Conviction to Supreme Court

The Colorado Court of Appeals issued its opinion in People v. Ray on Thursday, July 16, 2015.

Possession of a Weapon by a Previous Offender—Ineffective Assistance of Counsel—Certiorari Petition—U.S. Supreme Court—Investigation—Affirmative Defense.

After police officers observed Ray driving his vehicle straight through an intersection while in a left turn lane, exceeding the speed limit, playing loud music, and driving recklessly, they stopped and searched his car, discovering a BB gun and a firearm. Ray was on probation after having been adjudicated a delinquent on controlled substances and motor vehicle theft charges. Ray was charged with and convicted of Possession of a Weapon by a Previous Offender (POWPO). Ray is on death row after having been convicted of first-degree murder in a separate case, and his POWPO conviction was used as an aggravating factor in determining his death sentence. Ray filed a Crim.P. 35(c) motion for post-conviction relief, which was denied.

On appeal, Ray contended that appellate counsel rendered ineffective assistance by failing to file a certiorari petition with the U.S. Supreme Court. Ray had no right to counsel to pursue a petition for certiorari review in the Supreme Court. Further, he did not establish any resulting prejudice from failure to file a petition, because (1) he failed to show that it was likely the petition would be granted, (2) the exclusionary rule would not have precluded suppression of the firearm found in his car, and (3) the good faith exception to the exclusionary rule would have ultimately precluded suppression of the firearm.

Ray also contended that trial counsel rendered ineffective assistance by failing to investigate whether others had driven his car before the POWPO arrest. Because there was no reasonable probability that the result of the trial would have changed if evidence that others had driven the car had been admitted, the court did not err in determining this claim was raised and resolved on direct appeal.

Finally, Ray contended that trial counsel rendered ineffective assistance by failing to investigate a potential affirmative defense based on his Second Amendment right to possess firearms for self-defense. However, such a defense was not supported by the evidence and would have conflicted with Ray’s theory of defense that he did not know the firearm was in his car. The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

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