July 16, 2019

Colorado Court of Appeals: Attempted Extreme Indifference Murder Constitutes “Grave and Serious” Crime for Proportionality Purposes

The Colorado Court of Appeals issued its opinion in People v. Terry on Thursday, January 24, 2019.

Constitutional Law—Cruel and Unusual Punishment—Criminal Procedure—Postconviction Remedies.

Terry was charged in two cases with multiple offenses arising from two separate incidents. In the first incident, Terry rammed his truck into a patrol car when officers attempted to stop him for breaking into parked vehicles. In the second incident, officers responded to a report of an intoxicated man (later identified as Terry) driving his truck around a Walmart parking lot. Terry got into his truck, slammed an officer’s hand in the door, and ran over the officer’s foot as he sped away. After a chase, Terry sped toward officers and rammed the patrol cars. A jury found him guilty of attempted extreme indifference murder, second degree assault on a peace officer, two counts of first-degree criminal trespass, third degree assault on a peace officer, two counts of criminal mischief, two counts of vehicular eluding, and four habitual criminal counts. After the court adjudicated Terry a habitual criminal in a separate trial, it sentenced him to an aggregate total of 204 years in the custody of the Department of Corrections.

Terry filed pro se for postconviction relief with a request for counsel. The district court denied three of his four claims and appointed counsel to address only the one claim on which it had not already ruled. It simultaneously ordered that a copy of the motion be served on the Office of the Public Defender (OPD) and the prosecution, and instructed the prosecutor to respond to the pro se motion and any supplemental motion within 30 days of its filing. The OPD determined it had a conflict of interest, so alternate defense counsel was appointed who filed a supplemental motion raising six claims of ineffective assistance of counsel. The district court concluded that five of the six claims did not entitle Terry to relief and ordered the prosecution to respond to the remaining claim, which Terry withdrew. The district court dismissed his five claims of ineffective assistance of counsel, without first ordering the prosecution to respond.

On appeal, Terry contended that the district court erred in denying his petition for postconviction relief because Crim. P. 35(c)(3)(V) requires, in the circumstances presented here, that the prosecution respond and the defendant be allowed an opportunity to reply to that response. Crim. P. 35(c)(3)(V) does not prevent the court from ordering the prosecution to respond to only that portion of a postconviction motion that the court considers to have arguable merit. Here, the district court’s procedure fell within the bounds of prescribed procedure; it ruled on the pro se and supplemental petitions based on the motions, record, and facts and ordered the prosecution to respond to the one claim it deemed potentially meritorious. The trial court did not err, but even if it did, any error was harmless because Terry did not show prejudice.

Terry next contended that the district court erred in denying his postconviction petition because Terry sufficiently pleaded ineffective assistance of counsel. Here, (1) trial counsel’s decisions not to pursue a not guilty by reason of insanity plea or other mental health defense were objectively reasonable; (2) trial counsel’s failure to pursue a voluntary intoxication defense was strategically sound; (3) it was not error for defense counsel to decide not to pursue lesser nonincluded offenses based on trial strategy; (4) defense counsel did not err in deciding not to file a suppression motion; and (5) defense counsel did not err in failing to request a proportionality review, because attempted extreme indifference murder constitutes a per se “grave and serious” crime for purposes of an abbreviated proportionality review. Therefore, the trial court did not err in denying the postconviction motion.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Neither District Court Nor Counsel Required to Inform Defendant He Would Pay Interest on Restitution

The Colorado Court of Appeals issued its opinion in People v. Joslin on Thursday, February 22, 2018.

Criminal Procedure—Postconviction Motion—Restitution—Interest.

After entering into plea agreements, defendant was sentenced to 92 years to life in the custody of the Department of Corrections and ordered to pay over $14,000 in fees and $1,520 in restitution. When defendant did not pay the restitution within a year, he was charged interest on that unpaid restitution pursuant to C.R.S. § 18-1.3-603(4)(b). He then filed two nearly identical Crim. P. 35(c) motions, alleging that in each case he was never told that he would be charged interest on unpaid restitution. He claimed that he would never have pleaded guilty if he had known he would have to pay interest. The district court denied the motions without a hearing.

On appeal, defendant contended that he was entitled to postconviction relief because either the district court or his counsel (or both) was required to tell him that he would be required to pay interest on unpaid restitution and they failed to do so. Interest on unpaid restitution is a collateral consequence of a plea and neither the district court nor defendant’s counsel had a duty to advise defendant of this possibility. Therefore, defendant’s postconviction allegations, even if true, do not warrant relief, and the district court did not err in denying defendant’s motion without a hearing.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Plea Counsel Correctly Advised Defendant of Likelihood of Deportation

The Colorado Court of Appeals issued its opinion in People v. Juarez on Thursday, October 19, 2017.

Foreign National—Immigration—Criminal Attorney—Ineffective Assistance of Counsel—Deportation.

Juarez is a Mexican foreign national who has lived in Denver since he was approximately 6 years old. In 2009 he was granted lawful permanent residence status. In 2011, after cocaine was found in his possession, Juarez was charged with one felony count of possession of a controlled substance. Juarez pleaded guilty to possession of a schedule V controlled substance, a class 1 misdemeanor. During his providency hearing, Juarez’s attorney acknowledged that this misdemeanor under Colorado state law was the equivalent of a felony under the Immigration and Naturalization Act. Juarez told the court that he understood that the plea could affect his immigration status. Juarez was sentenced to drug court, and after testing positive for THC, he was deported to Mexico. He filed motions for postconviction relief alleging ineffective assistance of counsel, which were denied.

On appeal, Juarez argued that his attorney performed deficiently by failing to inform him that he would be subject to “mandatory deportation” if convicted. Juarez’s attorney acted within the objective standard of reasonableness by informing Juarez that he was “very likely” to be deported by entering into the plea agreement. Therefore, Juarez’s attorney provided constitutionally effective representation.

Juarez also argued that his attorney was required to advise him that his guilty plea would result in lifetime inadmissibility to the United States, mandatory detention, and destruction of the defense of cancellation of removal. Criminal defense attorneys are not required to function as immigration lawyers, and the court of appeals found no support for these arguments. Counsel’s performance was within the range of competence demanded of attorneys in criminal cases.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Statute of Limitations Tolled While Defendant Incarcerated in Minnesota

The Colorado Court of Appeals issued its opinion in People v. Butler on Thursday, September 7, 2017.

Sexual Assault—Child—Statute of Limitations—Tolling—Out-of-State.

In 1995, Butler was convicted in Colorado and sentenced to 14 years’ imprisonment for sexually assaulting a child. In 1999, the Colorado Department of Corrections (DOC) placed Butler in a Minnesota prison, where he served the remainder of his Colorado sentence until he was released in 2006. A month after his release, Butler attempted to contact L.W., prompting L.W. to report abuse he had allegedly suffered as a child between January 1992 and May 1995. Charges were then brought against Butler in the present case based on L.W.’s allegations of sexual assault, and he was convicted. Butler filed a Crim. P. 35(c) motion asserting that the charges were barred by the applicable 10-year statute of limitations. The postconviction court denied Butler’s motion based on tolling of Colorado’s limitations period while Butler was incarcerated and thus “absent from the state of Colorado.” Butler did not raise the statute of limitations argument on direct appeal.

The people initially contended that Butler was barred from pursuing his statute of limitations claim in a postconviction proceeding under the abuse of process rule. However, under an exception to the abuse of process rule, any claim that the sentencing court lacked subject matter jurisdiction may be pursued in a postconviction proceeding. Consequently, Butler’s claim was not barred.

On appeal, Butler contended that the postconviction court erred in ruling that the trial court had subject matter jurisdiction for purposes of the statute of limitations’ tolling provision because he was absent from Colorado while he was incarcerated in Minnesota for his prior Colorado convictions. The Colorado Court of Appeals concluded that a defendant is “absent” from Colorado for statute of limitations purposes when he has been transferred by the DOC to an out-of-state facility to serve out the remainder of a Colorado sentence. Consequently, the applicable 10-year limitations period was tolled while Butler was in Minnesota. Additionally, under the circumstances here, the prosecution’s failure to plead Butler’s absence from the state did not deprive the court of jurisdiction to proceed.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Denial of Crim. P. 35 Motion Without Hearing was In Error

The Colorado Court of Appeals issued its opinion in People v. Smith on Thursday, January 27, 2017.

Crim. P. 35(c)Post-Conviction ReliefPlea AgreementIneffective Assistance of CounselHearing—Sentencing.

Smith was charged with three sexual offenses. As the result of an unwritten plea agreement, Smith pleaded guilty to added counts of first degree assault with a deadly weapon and attempted sexual assault on a child by a person in a position of trust. The original charges were dismissed, and Smith was sentenced to a determinate 28-year term in the custody of the Department of Corrections.

Acting pro se, Smith timely moved for post-conviction relief under Crim. P. 35(c). The district court appointed counsel to expound on Smith’s claims in a supplemental motion. The court sought and received a response from the prosecution, which attached a report authored by the prosecution’s investigator. Smith filed a reply that did not specifically challenge the investigator’s report but rather identified contested issues of fact and requested an evidentiary hearing. In a written order, the district court denied Smith’s motion without holding a hearing.

On appeal, Smith contended that the district court erred in denying his motion without a hearing because he asserted sufficient facts to support his claim that plea counsel was ineffective. Under certain circumstances, a trial court may deny a post-conviction motion without conducting an evidentiary hearing if the motion, the files, and the record show the defendant is not entitled to relief, and where the court refers the matter for additional briefing, as it did here, it may enter a ruling based on the pleadings if it finds it appropriate to do so. Here, the district court relied, in part, on the report authored by the prosecution’s investigator in determining that Smith was not entitled to relief. Because the attachment was not part of the file and record of the case, and did not qualify as a pleading, the district court’s reliance on that document was error. It was also error for the court to rely on Smith’s plea colloquy in denying his claims related to that phase of the proceedings because Smith alleged sufficient facts to warrant a hearing on his claim of ineffective assistance related to his plea.

Smith also claimed ineffective assistance of counsel at his sentencing. The Colorado Court of Appeals determined that this claim was conclusory, vague, and lacking in detail, and that it failed to adequately allege the required prejudice.

The district court’s order on Smith’s claim of ineffective assistance of counsel at sentencing was affirmed. The district court’s order on Smith’s claim of ineffective assistance of counsel related to his plea was reversed and the case was remanded for a hearing solely on that claim.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Lengthy Delay in Postconviction Proceedings Did Not Violate Due Process

The Colorado Court of Appeals issued its opinion in People v. Hardin on Thursday, December 1, 2016.

William Hardin was accused of robbing three men and killing two of them. When his 1988 trial concluded, Hardin was convicted of two counts of aggravated robbery, two counts of felony murder, and two counts of murder after deliberation. He was sentenced to two consecutive 16-year sentences for the aggravated robbery convictions and two life sentences for the felony murder convictions. He was not sentenced for the murder after deliberation convictions. Hardin appealed and was also granted a limited remand to pursue a Crim. P. 35(c) ineffective assistance claim. Over the next six years, Hardin was appointed a series of private attorneys for his postconviction claim; Hardin repeatedly filed pro se motions expressing frustration with his legal representation and his appointed attorneys’ lack of action on the postconviction claim.

In 1997, a division of the Colorado Court of Appeals vacated Hardin’s limited remand and decided his direct appeal. It affirmed Hardin’s convictions but remanded for sentencing on the murder after deliberation convictions and vacate one of the felony murder convictions. That division also concluded that Hardin’s ineffective assistance claims should be decided in a postconviction proceeding. Hardin filed a pro se postconviction proceeding in 1999, which the court denied without a hearing. Another division of the court of appeals reversed and remanded with instructions to hold further proceedings on the postconviction claims. After several more years, Hardin’s current attorney was appointed. Eight years after her appointment, the trial court held an evidentiary hearing on Hardin’s postconviction claims. The postconviction court denied Hardin’s motion after the hearing, and he appealed.

The court of appeals analyzed whether the excessively lengthy delay in the postconviction proceedings violated Hardin’s due process rights. Hardin argued that he should have been granted a new trial because the delay impaired his ability to present his claims for postconviction relief, as shown by the witnesses’ faded memories and the unavailability of certain records. The court of appeals disagreed with Hardin, but affirmed the postconviction court’s denial of his motion for relief. The court of appeals found that the length of the delay weighed in Hardin’s favor, the reason for the delay was mixed and therefore neutral, the defendant properly asserted his rights, and the delay did not prejudice Hardin. The court found that although some of the witnesses’ memories were dimmed, it was not so significant as to prejudice Hardin. The court emphasized that although it did not find prejudice, the lengthy delay is unacceptable in a legal system designed to provide speedy resolutions to criminal defendants.

The court of appeals next addressed Hardin’s contention that the postconviction court abused its discretion by not making findings of fact or conclusions of law as to whether his trial counsel was inefficient for failing to object to the trifurcation of the aggravated robbery charges. The court found that although the trial court did not directly address this issue, it made factual findings about Hardin’s lack of prejudice on all issues, therefore the trifurcation issue was presumably covered.

The court of appeals affirmed the postconviction court’s denial of Hardin’s motion for relief.

Colorado Court of Appeals: Facts, If True, Would Establish Justifiable or Excusable Neglect

The Colorado Court of Appeals issued its opinion in People v. Torres on Thursday, November 17, 2016.

Guilty Plea—Immigration Status—Post-Conviction Motion—Statutory Time Bar—Justifiable Excuse—Excusable Neglect.

Chavez-Torres is a citizen of Mexico who came to the United States with his family when he was a child. While in high school, Chavez-Torres pleaded guilty to first degree criminal trespass. The trial court sentenced him to probation, which he successfully completed.

Seventeen years after his criminal trespass conviction, the U.S. Department of Homeland Security initiated removal proceedings, alleging that Chavez-Torres was not legally present in the United States and had been convicted of a crime involving moral turpitude. Chavez-Torres moved for post-conviction relief from his criminal trespass conviction under Crim. P. 35(c) based on ineffective assistance of counsel. He alleged that he had informed his plea counsel that he was not a U.S. citizen but counsel advised him to accept the plea agreement without telling him that the guilty plea carried a risk of adverse immigration consequences. He claimed that had he been properly advised he would have insisted on going to trial. He asserted that as a result, his plea and conviction were constitutionally infirm. While acknowledging that his post-conviction motion was untimely, he alleged that these circumstances amount to justifiable excuse or excusable neglect. The trial court denied the motion as untimely, finding that the prejudice to the state would be too great, given the passage of time, and that he failed to assert facts amounting to justifiable excuse or excusable neglect.

On appeal, Chavez-Torres contended that the district court erred in summarily denying his post-conviction motion based on the statutory time bar because he asserted facts that, if true, would establish justifiable excuse or excusable neglect. Here, even though Chavez-Torres had informed plea counsel that he was not a citizen of the United States, counsel had advised him to accept the plea agreement without telling him that the guilty plea carried a risk of adverse immigration consequences. Chavez-Torres subsequently completed his probation and did not learn that his conviction had adverse immigration consequences until the removal proceedings were initiated. Under these circumstances, it cannot be concluded, as a matter of law, that justifiable excuse or excusable neglect did not exist.

Defendant also argued that the finding that the State would suffer “great” prejudice has no record support. The Colorado Court of Appeals determined that the existing record does not support the district court’s finding that the state will suffer great prejudice.

The order denying the post-conviction motion was reversed and the case was remanded to the district court to determine whether Chavez-Torres has established justifiable excuse or excusable neglect for his untimely post-conviction motion. If he can, the court must then consider the merits of his post-conviction motion.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Defendant Entitled to At Least a Hearing on Ineffective Assistance Claims

The Colorado Court of Appeals issued its opinion in People v. Hunt on Thursday, June 16, 2016.

Postconviction Relief—Ineffective Assistance of Counsel—Transferred Intent—Complicity.

Defendant was charged with first degree “after deliberation” murder, first degree “extreme indifference” murder, conspiracy to commit murder, possession of a weapon by a previous offender, and three crimes of violence (sentencing enhancement) counts. Under a plea agreement, defendant pleaded guilty to an added count of second degree murder and to one of the original crime of violence counts in exchange for (1) the dismissal of the remaining charges and (2) a stipulated sentence of between 30 and 40 years’ imprisonment.

Defendant later wrote two letters to the district court asking to withdraw his guilty plea. He asserted that he was not guilty of murder because he had not intended for the shooter to kill the victim and his attorney had erroneously advised him that he could, if tried, be found guilty and sentenced to life imprisonment under a complicity theory. Plea counsel then filed a motion to withdraw from the case based on an alleged conflict of interest and asked the court to allow defendant to withdraw his guilty plea. Following a hearing, the court found no conflict of interest and directed counsel to file a Crim. P. 32(d) motion to withdraw guilty plea on behalf of defendant. Counsel filed the motion three days later. The court did not address the motion and sentenced defendant to 40 years’ imprisonment.

Defendant subsequently filed two pro se Crim. P. 35(c) motions for postconviction relief based on ineffective assistance of plea counsel, again alleging that he had been incorrectly advised that he could be found guilty of murder as a complicitor simply because he was present when a person he had not intended to be killed was killed. The court appointed new counsel who expounded on defendant’s claims, and the court, without a hearing, denied the motions for postconviction relief.

On appeal, defendant argued that he was entitled to a hearing on his ineffective assistance of counsel assertions, and the Court of Appeals agreed. An ineffective assistance of counsel claim requires a defendant to establish that counsel’s performance fell below the level of reasonably competent assistance demanded of attorneys in criminal cases and that the deficient performance prejudiced the defense. A hearing is required unless the record establishes that the allegations, if proven true, would fail to establish either of these conditions. Here, defendant argued that he was not aware that the shooter intended to kill someone other than a person whom defendant wanted to kill. If true, these facts would not support a conviction for first or second degree murder under a complicitor theory, and failure to advise defendant of this could have constituted deficient performance on the part of plea counsel. Because there was no hearing to determine what plea counsel advised defendant and what the professional norms were, or whether defendant would have pleaded guilty anyway, the case was remanded for an evidentiary hearing on this issue. Remand is also necessary for an evidentiary hearing on defendant’s claim that plea counsel was ineffective for failing to advise him about appealing the ruling denying his Crim. P. 35(c) motion to withdraw the guilty plea.

The order was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Non-Disclosure of Victim’s Juvenile Adjudication Did Not Render Plea Ineffective

The Colorado Supreme Court issued its opinion in People v. Corson on Monday, May 16, 2016.

Guilty Pleas—Voluntariness—Ineffective Assistance of Counsel—Crim. P. 16.

Respondent Corson pleaded guilty to sexual assault on a child, position of trust. Corson sought to overturn his conviction because the prosecutor, who had previously obtained a juvenile adjudication against the victim for falsely reporting a sexual assault in another case, did not disclose the victim’s prior false-reporting adjudication. The Supreme Court held that the prosecution’s non-disclosure did not render Corson’s guilty plea involuntary or his plea counsel ineffective. The Court also held that juvenile adjudications are not criminal convictions and therefore are not subject to automatic disclosure under Crim. P. 16(I)(a)(1)(V).

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Potential Conflict of Interest Relevant in Determination of Prejudice to Defendant

The Colorado Court of Appeals issued its opinion in People v. Villanueva on Thursday, May 5, 2016.

Benjamin Garcia-Diaz’s wife called the police for a domestic violence incident, and authorized a search of the residence. Police found $30,000 worth of cocaine during the search. Garcia-Diaz retained Charles Elliot to defend the domestic violence charges, and although the prosecution moved to add drug charges, the motion was still pending when Garcia-Diaz disappeared in March 2005. His body was found in September 2005, and Martin Villanueva was arrested for the murder.

Villanueva retained Elliot, who had represented him in the past. Elliot advised Villanueva that the prosecution might seek to disqualify him because of his prior representation with Garcia-Diaz, and later Elliot entered into an agreement with the prosecution where neither party would mention his prior representation of Garcia-Diaz. The trial court was never told about the conflict of interest.

At trial in 2006, the prosecution’s theory of the case was that Garcia-Diaz was about to enter into an agreement with the prosecution and would have laid the blame on Villanueva, his supplier, so Villanueva shot him at a crucial time. In fact, as Elliot knew, Garcia-Diaz had not negotiated at all with the prosecution and was not preparing to blame Villanueva, but because of his agreement Elliot could not rebut the prosecution’s theory.

Villanueva was eventually convicted and sentenced to life in prison without the possibility of parole. His conviction was affirmed on direct appeal. He then filed a Crim. P. 35(c) motion alleging that Elliot’s performance was deficient because he had a conflict of interest that adversely affected his trial performance. The district court denied the postconviction motion.

On appeal, the court of appeals evaluated Villanueva’s claims under the framework set forth in West v. People, 2015 CO 5, which clarified the correct standard for evaluating conflict of interest claims. Under West, to show an adverse effect from a conflict of interest, the defendant must identify a plausible defense or strategy, show that the alternative strategy was objectively reasonable, and establish that counsel’s failure to pursue the alternative strategy was linked to the conflict. Villanueva contended that Elliot was ineffective for failing to rebut the prosecution’s theory of the case. The trial court determined that because Villanueva showed only a potential conflict, not an actual conflict, his argument failed. However, under West, Villanueva needed only to show a potential conflict.

The court of appeals remanded for the district court to consider whether Elliot’s duties to Garcia-Diaz were inherently in conflict with Villanueva’s suggested alternative strategy of rebutting the prosecution’s evidence regarding whether Garcia-Diaz was about to snitch on Villanueva.

Tenth Circuit: Trial Counsel’s Strategic Decision Does Not Constitute Ineffective Assistance

The Tenth Circuit Court of Appeals issued its opinion in Jones v. Warrior on Tuesday, November 10, 2015.

As Paul Howell parked his Suburban in his parents’ driveway with his two young daughters and his sister, he was shot by a black man in a white shirt with a black hat and a red bandanna covering his face. His sister grabbed the girls out of the backseat and ran them into the house, and Howell’s parents ran out to find their son, lifeless, in the driveway. The Suburban was gone. Howell died later that day from a gunshot wound to the head. Police later found the Suburban in a convenience store parking lot on the south side of Oklahoma City and canvassed the area, looking for suspects. They interviewed Kermit Lottie at a nearby auto body shop, who informed them that Ladell King and at least one other person had attempted to sell him the Suburban the previous day but he refused to buy it. Police tracked down King later that day, and he gave them a phone number and address for Julius Jones.

Police surrounded Jones’s parents house and called him to tell him that they wanted to talk to him about the murder. Jones escaped through a second-story window. Officers obtained warrants and searched the house, finding in Jones’s room a white t-shirt and black stocking cap that matched the descriptions given by Howell’s sister. Police also found a .25-caliber semi-automatic pistol and ammunition matching the bullets in the Suburban and Howell. Two days later, officers arrested Christopher Jordan, and after a citywide search, they found and arrested Jones. Jordan pleaded guilty and agreed to testify against Jones at trial. Jones was eventually found guilty of first-degree felony murder and sentenced to death.

Jones appealed his convictions and death sentence to the Oklahoma Court of Criminal Appeals (OCCA). He asserted numerous claims of error, including that his trial counsel, David McKenzie, was ineffective for failing to call Emmanuel Littlejohn, an inmate who briefly shared a cell with Jordan, who Jones asserted would have testified that Jordan admitted to shooting Howell and said that Jones wasn’t involved at all. After interviewing Littlejohn and speaking to his attorney about his credibility, McKenzie decided that Littlejohn was a “pathological liar” and lacked credibility. The OCCA found that Jones’ argument about McKenzie’s ineffective assistance went to trial strategy, and found nothing unreasonable about McKenzie’s decision not to call Littlejohn. The OCCA affirmed his convictions and sentence.

Next, Jones sought post-conviction relief in state court, claiming, among other things, that McKenzie was ineffective for failing to investigate whether anyone could corroborate Littlejohn’s story. Jones asserted that Christopher Berry, another inmate who had shared a cell pod with Jordan, had heard Jordan bragging about shooting Howell. McKenzie was also Berry’s attorney, but he never asked Berry about Jones’ case. The OCCA rejected Jones’ claims, noting that Berry suffered from the same credibility problems as Littlejohn and the inmates’ accounts showed only that Jordan changed his story to suit his needs.

Jones then sought federal habeas relief. The federal district court rejected all of Jones’ eight asserted grounds for relief, but granted a certificate of appealability on only one issue: whether McKenzie was ineffective for failing to investigate Littlejohn’s claim that Jordan confessed to the shooting. Using the Strickland analysis, the Tenth Circuit determined that the OCCA had denied relief on the performance prong and had not evaluated the prejudice prong. The Tenth Circuit found that the OCCA had applied the correct legal standard in its decision, and had analyzed trial counsel’s purported deficiency for failing to investigate and present the two witnesses at trial. The Tenth Circuit found Jones failed to establish that the OCCA’s decision was contrary to established law. The Tenth Circuit similarly found no basis for Jones’ claim that the OCCA’s decision was based on an unreasonable determination of the facts.

The Tenth Circuit affirmed the district court’s denial of habeas relief, and denied Jones’ motion to extend the COA to include several additional claims of ineffective assistance.

Colorado Court of Appeals: Underrepresentation of Asian Americans in Jury Pool Not Constitutionally Significant

The Colorado Court of Appeals issued its opinion in People v. Luong on Thursday, February 11, 2016.

Man Hao Luong was convicted of several crimes based on acts occurring in 2005 and was sentenced to 96 years imprisonment. On direct appeal, the court of appeals affirmed in part, reversed in part, and remanded, and on remand his sentence was reduced to 64 years. Luong then filed a Crim. P. 35(c) motion for postconviction relief, arguing his counsel was ineffective because he had not investigated the underrepresentation of Asian Americans in the jury pool at Luong’s trial. The postconviction court denied his motion and Luong appealed.

Luong’s original trial took place in Jefferson County, where Asian Americans comprise 2.63% of the population. Of the 100 member jury pool at Luong’s trial, none were Asian American. Luong argued his counsel should have investigated whether jurors of Asian descent were systematically or intentionally underrepresented in his jury as well as other juries in the county. Luong also asserted that the state’s destruction of the master jury list (jury wheel) and jury panel violated his constitutional rights because the destruction prevented him from proving his counsel’s performance prejudiced him. After he filed his appeal but before the court of appeals issued its opinion, the state court administrator informed Luong that the records of the jury wheel and jury panel had been found, and provided a list of the 324 people who reported for jury service on the date of Luong’s trial. Luong moved to remand for reconsideration of that information, but the court of appeals denied his motion.

On appeal, the court of appeals first noted that to establish that the composition of a jury pool is a prima facie violation of the Sixth Amendment, the defendant must prove (1) the excluded group is distinctive, (2) the representation of the group is not fair and reasonable in relation to the number of such persons in the community, and (3) the underrepresentation is due to systematic exclusion of the group in the jury selection process. The court of appeals, acknowledging that Asian Americans are a distinctive group, evaluated whether the representation of Asian Americans in the jury pool was fair and reasonable in relation to the population within the community. The court noted that implicit in Luong’s argument was a presumption that his counsel should have known the percentage of Asians in Jefferson County and been surprised that there were not at least two people of Asian descent in the 100-person jury pool. The court initially noted that counsel’s performance was not grossly incompetent and a hearing on the Crim. P. 35 motion was unnecessary. Next, using statistical analyses, the court found no constitutional violation from having a 100-person jury pool with no Asian Americans. Because the population of Asians in Jefferson County was small, the absolute impact of the absence of Asians on the jury pool was insignificant.

The court of appeals affirmed the denial of Luong’s Crim. P. 35 motion for postconviction relief.