Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 21CA2068
Attorneys for Petitioner: Samler and Whitson, P.C. Hollis A.
Whitson Denver, Colorado
Attorneys for Respondent: Philip J. Weiser, Attorney General
John T. Lee, First Assistant Attorney General Yaried Hailu,
Assistant Attorney General Fellow Denver, Colorado
Attorneys for Amicus Curiae Korey Wise Innocence Project:
Wheeler Trigg O'Donnell LLP Clarissa M. Collier Nicole L.
Jones Denver, Colorado
Attorneys for Amicus Curiae Office of Alternate Defense
Counsel: The Noble Law Firm, LLC Antony Noble Tara Jorfald
Lakewood, Colorado Lynn Noesner Denver, Colorado
Amicus
Curiae Ramsey Lama, Esq., pro se: Cañon City, Colorado
2
HOOD
JUSTICE
3
¶1
Jamale D. Townsell was convicted of various crimes for
robbing a bank. Following an unsuccessful appeal, Townsell
moved the district court for postconviction relief under
Crim. P. 35(c), alleging ineffective assistance of trial
counsel based on his attorney's alleged failure to
properly investigate certain DNA evidence. The postconviction
court summarily denied the motion without appointing counsel,
and the majority of a division of the court of appeals
affirmed. Because we agree with the division majority that
Townsell failed to adequately allege prejudice, we affirm the
judgment of the court of appeals.
I.
Facts and Procedural History
¶2
In June 2013, an armed and masked man robbed the Bank of the
West in Aurora. After jumping over the counter and pointing a
handgun at one of two tellers, the man took over $1,000 in
cash from the teller's drawer and stashed it in a bank
bag, which also contained a Global Positioning System
("GPS") device.
¶3
According to eyewitnesses to the robbery, the suspect was
around five feet eight inches tall and left-handed. Security
video footage also shows the suspect wearing a red bandana, a
hat with eye and mouth holes cut into it so it could serve as
a mask, and black shoes with white soles. He also had a phone
duct taped to his arm and earbuds taped to his
T-shirt.
4
¶4
The GPS device led the police to a car belonging to E.R.,
Townsell's estranged wife. Upon searching the car, police
officers found a black shoe with a white sole and a gun.
Nearby, in the middle of the road, police found the bank bag
that, among other things, contained the stolen money, a
sweatshirt, a red bandana, the mask, pantyhose, gloves, and a
shoe matching the one found in the car. Officers also
obtained Townsell's cell phone records, which showed
Townsell's phone had called E.R.'s phone shortly
before and shortly after the robbery. And an expert testified
at trial that Townsell's phone was near the bank when the
robbery occurred.
¶5
Forensic analysts tested the shoes, pantyhose, bandana, and
mask, and the results matched Townsell's DNA. The results
from the pantyhose, bandana, and right shoe showed a
single-source profile; meaning, all of the DNA came from one
person. Townsell's genetic profile was a complete match
to these single-source profiles. Of the fifteen locations
swabbed for potential DNA in the left shoe, thirteen matched
Townsell's genetic profile, a result that, according to
expert testimony at trial, was "more rare than 1 in 300
billion." The mask's testing returned a mixed
profile, with a major and minor contributor to the DNA
makeup. The minor component left such little DNA it was
"basically uninterpretable," but the major
component was, once again, a match with Townsell's
genetic profile.
5
The prosecution's expert testified that Townsell was the
source of the DNA on each item.
¶6
The other items seized-namely, the shirt, phone, earbuds,
gloves, and sweatshirt-weren't tested.
¶7
The prosecution charged Townsell with aggravated robbery and
other offenses. During pretrial discovery, the prosecution
disclosed a report detailing the DNA testing described above.
Defense counsel later claimed he misunderstood the report and
believed that the prosecution had tested only the pantyhose.
About a month before trial, the prosecution sent defense
counsel a second DNA report containing essentially the same
information as the first. Defense counsel claimed he
didn't read the second report until the fourth day of
trial.
¶8
During the trial, defense counsel objected to the admission
of any DNA evidence other than the pantyhose test results,
arguing lack of notice. Defense counsel subsequently
disclosed that his entire trial strategy was based on an
erroneous belief that the pantyhose contained the only DNA
match to Townsell, which he claimed he could "deal
with." Because the court concluded that the prosecution
had, in fact, properly disclosed the test results, the court
overruled the objection and admitted the test results into
evidence.
6
¶9
Although defense counsel argued to the jury that the
investigating officers knew there may have been an alternate
suspect, given the disparity between Townsell (who is six
feet two inches tall and right-handed) and the description of
the robber (again, approximately five feet eight inches tall
and seemingly left-handed), he presented no testimony in
support of this theory. The jury found Townsell guilty as
charged, and the court sentenced him to thirty-two years in
the custody of the Department of Corrections.
¶10
On direct appeal, a division of the court of appeals affirmed
Townsell's convictions and sentence. People v.
Townsell, No. 14CA1225, ¶ 1 (Apr. 5, 2018)
("Townsell I").
¶11
Townsell later moved, pro se, for postconviction relief under
Crim. P. 35(c), alleging ineffective assistance of trial
counsel.[1] Townsell argued that "[Reasonable
performance of counsel includes an adequate investigation of
facts[,] . . . viable theories, and development of
evidence," and counsel's complete
7
misunderstanding of the DNA report was "clear evidence
he failed to properly investigate." Therefore,
counsel's choices at trial could not be considered
reasonable because he was not "informed of all available
options" given his failure to adequately address the DNA
evidence. This allegation of failure to investigate, Townsell
contended, "necessitate[d] an evidentiary hearing."
Townsell argued that, once counsel realized he'd
misinterpreted the DNA reports, he should have requested a
continuance so Townsell could (1) hire an independent expert
to test evidence the prosecution had neglected and (2) better
defend against DNA results used by the prosecution. He
stated:
[A]fter learning of new DNA [evidence] against defendant[,]
defense counsel still proceeded to rush the trial in
violation of defendant[']s right to due process. Had
defense counsel requested a continuance after learning of
additional DNA evidence[,] th[e]n a proper defense could have
changed the outcome of this case.... With a continuance,
counsel could have hired a DNA expert to counter the
people[']s expe[r]t and could have had more effective
cross-examination of the people's expert.
¶12
The postconviction court denied Townsell's motion on its
face without referring it to the Office of the Public
Defender ("OPD"), finding that Townsell had failed
to allege prejudice, as required by Strickland v.
Washington, 466 U.S. 668, 687 (1984), because he
didn't "identify any facts to explain" what
"substantial evidence" his counsel might have found
with further DNA testing or "how that substantial
evidence would have overcome the substantial DNA evidence the
prosecution offered at trial."
8
¶13
Townsell appealed the postconviction court's order, and
the majority of a division of the court of appeals affirmed,
concluding that Townsell hadn't explained how additional
DNA testing could have overcome the weight of the evidence
used to convict him. People v. Townsell, No.
21CA2068, ¶¶ 19, 23 (Nov. 16, 2023)
("Townsell II"). On appeal, Townsell
argued that additional DNA testing and a DNA expert's
explanation would have revealed that untested items that were
closer to the robber's skin (for example, the
robber's shirt, the earbuds, and the phone taped to the
shirt) would exculpate him because they wouldn't contain
Townsell's DNA. Id. at ¶¶ 18-19. The
division majority, however, concluded that this argument (1)
overstated the evidence produced at trial for an alternate
suspect;[2] (2) failed to explain how new DNA testing
would overcome the evidence containing his DNA; and (3)
failed to allege that a DNA expert would be available and
able to testify consistently with his allegations.
Id. at ¶¶ 18-20. Additionally, the
division majority concluded there was no reason to believe
any new DNA evidence would be more probative than the
previously tested evidence. Id. at ¶ 17.
9
¶14
Judge Schutz dissented based on his belief that Townsell had
alleged sufficient facts to warrant forwarding Townsell's
motion to the OPD. Id. at ¶ 24 (Schutz, J.,
dissenting). As Judge Schutz reasoned, a pro se incarcerated
defendant "may not be in a position to fully develop the
factual and legal basis for their petition"; therefore,
they need only allege "viable facts that, if established
at a hearing, would entitle them to relief."
Id. at ¶ 29. Thus, Townsell's allegation
that his counsel should have retained a DNA expert to uncover
exculpatory evidence sufficed to warrant the appointment of
postconviction counsel. Id. at ¶ 24. Judge
Schutz inferred Townsell had asserted that additional DNA
evidence would have bolstered Townsell's alternate
suspect theory. Id. at ¶ 39.
¶15
Townsell petitioned this court for certiorari review, which
we granted.[3]
10
II.
Analysis
¶16
After identifying the standard of review, we examine Crim. P.
35(c)'s standard for the appointment of counsel. We next
discuss how a postconviction defendant must plead an
ineffective-assistance-of-counsel claim under Crim. P. 35(c)
and Strickland. Finally, we turn to the facts of
this case and consider whether, given the standard for
appointment of counsel and the two-pronged
Strickland test, the postconviction court should
have appointed counsel for Townsell.
A.
Standard of Review
¶17
We review the division majority's interpretation of Crim.
P. 35(c) de novo. Hunsaker v. People, 2021 CO 83,
¶ 16, 500 P.3d 1110, 1114. In doing so, we use the same
canons that guide our interpretation of statutes. People
v. Bueno, 2018 CO 4, ¶ 18, 409 P.3d 320, 325. We
begin with Crim. P. 35(c)'s plain language, reading it
consistently with its plain and ordinary meaning. People
v. Steen, 2014 CO 9, ¶ 10, 318 P.3d 487, 490. If
the language is clear, we apply it as written. People v.
Angel, 2012 CO 34, ¶ 17, 277 P.3d 231, 235. If,
however, the rule is unclear, "we must attempt to
resolve any ambiguity so as to make our application of the
rule consistent with the intent of the rule and fundamental
purposes of the Colorado Rules of Criminal Procedure 'to
provide for the just determination of criminal
proceedings' and 'to secure simplicity in procedure,
fairness in administration,
11
and the elimination of unjustifiable expense and
delay.'" Id. (quoting Peterson v.
People, 113 P.3d 706, 708 (Colo. 2005).
B.
The Standard for the Appointment of Counsel and for Granting
a Hearing Under Crim. P. 35(c)
¶18
Both the United States Constitution and the Colorado
Constitution guarantee a criminal defendant's right to
trial counsel. U.S. Const. amend. VI; Colo. Const.
art. II, § 16.
¶19
Although there is no similar right to postconviction
counsel, there is "a limited statutory right to
postconviction counsel for meritorious Crim. P. 35(c)
motions." Silva v. People, 156 P.3d 1164, 1168
(Colo. 2007) (explaining that this statutory right arises
from a longstanding interpretation of the statutes that
created and now govern the OPD, and the legislature's
subsequent implied ratification of the right); see also
Duran v. Price, 868 P.2d 375, 379 (Colo. 1994).
¶20
Meritorious postconviction motions are those that aren't
"wholly unfounded." Silva, 156 P.3d at
1168. A motion isn't wholly unfounded if it contains at
least one claim with arguable merit. People v.
Segura, 2024 CO 70, ¶ 7, 558 P.3d 234, 237.
¶21
In determining whether a defendant's motion has met this
standard, Crim. P. 35(c)(3)(IV) directs courts to
consider, among other things, whether the motion is timely .
. ., whether it fails to state adequate factual or legal
grounds for relief, whether it states legal grounds for
relief that are not meritorious,
12
whether it states factual grounds that, even if true, do not
entitle the party to relief, and whether it states factual
grounds that, if true, entitle the party to relief, but the
files and records of the case show to the satisfaction of the
court that the factual allegations are untrue.
¶22
If the court, based on those considerations, determines that
the motion isn't wholly unfounded, and "[i]f the
defendant has requested counsel be appointed in the motion,
the court shall cause a complete copy of said motion to be
served on the [OPD]." Crim. P. 35(c)(3)(V).
¶23
Based on this plain language, the court should appoint
postconviction counsel if the defendant has requested counsel
and has presented at least one claim in his postconviction
motion that isn't "wholly unfounded." See
Segura, ¶ 35, 558 P.3d at 242. This is a low bar,
but a bar nonetheless. Although we broadly construe a pro se
defendant's pleadings, understanding that a pro se
litigant may be unable "to articulate their argument
like a lawyer," Jones v. Williams, 2019 CO 61,
¶ 5, 443 P.3d 56, 58, the rule still requires the
defendant to provide adequate factual or legal grounds, which
if true, would entitle the defendant to relief.
¶24
Once appointed, the OPD typically will investigate the merits
of the defendant's postconviction claims and decide if it
will represent the defendant in the postconviction
proceedings. Crim. P. 35(c)(3)(V). Under section 21-1-104(2),
C.R.S. (2025), a public defender isn't required to pursue
any remedies unless the public defender is "satisfied
first that there is arguable merit to the proceeding."
13
¶25
After the OPD has entered an appearance in the case and both
sides have filed their pleadings, "the court shall grant
a prompt hearing on the motion unless, based on the
pleadings, the court finds that it is appropriate to enter a
ruling containing written findings of fact and conclusions of
law." Crim. P. 35(c)(3)(V). At this stage, the court
should no longer accept the allegations as true but must
instead determine if the defendant has sufficiently proven
his claims by a preponderance of the evidence. See People
v. Naranjo, 840 P.2d 319, 325 (Colo. 1992).
¶26
The standards for appointing postconviction counsel and
holding an evidentiary hearing on a postconviction motion
differ. The first-for appointment of counsel-requires the
court to determine if the allegations, assuming they are
true, have arguable merit. The second-for holding a
hearing-requires the court to conduct a hearing unless
"the motion, files, and record in the case clearly
establish that the allegations presented in the
defendant's motion are without merit and do not warrant
postconviction relief." Ardolino v. People, 69
P.3d 73, 77 (Colo. 2003) (emphasis added) ("Because
relief for ineffective assistance of counsel requires a
criminal defendant to prove both deficient representation and
prejudice, denial of the motion without a hearing is
justified if, but only if, the existing record establishes
that the defendant's allegations, even if proven true,
would fail to establish one or the other prong of the
Strickland test."); see also People v.
McDowell,
14
219 P.3d 332, 340 (Colo.App. 2009) (concluding that the
postconviction court didn't err by denying the
defendant's Crim. P. 35(c) motion alleging the
ineffective assistance of counsel without a hearing because
his claims were directly refuted by the trial record).
However, here, we need not address whether Townsell is
entitled to a hearing because we conclude in Part E below
that his claim was wholly unfounded.
C.
Determining Arguable Merit: The Interplay of Strickland and
the Appointment of Postconviction Counsel
¶27
Townsell argues that because his
ineffective-assistance-of-counsel claim rests on potentially
exculpatory but untested DNA evidence, he neither can, nor
should he have to, explain how the DNA evidence in question
would undermine a court's confidence in the trial's
outcome in his request for postconviction counsel. We
disagree.
¶28
Counsel is considered ineffective when their "conduct so
undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just
result." Ardolino, 69 P.3d at 76. To meet this
standard, a defendant must show: (1) "counsel's
performance was deficient"-meaning, "counsel's
representation fell below an objective standard of
reasonableness"; and (2) "the deficient performance
prejudiced the defense"-meaning, there is "a
reasonable probability that, but for counsel's
unprofessional errors, the result of
15
the proceeding would have been different."
Strickland, 466 U.S. at 687-88, 694; see also
Ardolino, 69 P.3d at 76.
¶29
Accordingly, to qualify for the appointment of postconviction
counsel, a defendant's postconviction motion must provide
allegations that, if true, would establish both prongs of the
Strickland test. Silva, 156 P.3d at 1165.
In doing so, the defendant should explain not only the
deficiency that made his counsel ineffective but also how and
why, based on that deficiency, there is a reasonable
probability that the result of the proceeding would have been
different. While a defendant need not use particular words,
he must do more than make conclusory allegations. "A
'conclusory' allegation is one '[e]xpressing a
factual inference without stating the underlying facts on
which the inference is based.'" Woodall v.
Godfrey, 2024 COA 42, ¶ 33, 553 P.3d 249, 260
(alteration in original) (quoting Conclusory,
Black's Law Dictionary (11th ed. 2019)). If the defendant
fails to do so, the court may determine the claim is wholly
unfounded and that it need not appoint counsel. See
People v. Garcia, 815 P.2d 937, 941 (Colo. 1991)
(explaining that if the defendant fails to
demonstrate prejudice, the postconviction court may deny his
Crim. P. 35(c) claim on that basis alone).
D.
DNA Evidence in Strickland Evaluations
¶30
Townsell urges us to be more lenient in fashioning a standard
for appointment of counsel in postconviction cases such as
his. While incarcerated,
16
he tells us, he could do little to demonstrate the prejudice
caused by his trial counsel's failure to more critically
evaluate the DNA evidence in his case. Townsell argues that
the unusual nature of DNA evidence "places a special
responsibility on the reviewing court" to appoint
counsel to assist in developing claims premised on such
evidence.[4]
¶31
However, Townsell points to no source of Colorado law, and we
have found none, that would suggest that a defendant alleging
the ineffective assistance of counsel based on counsel's
failure to investigate DNA evidence should be entitled to a
different standard than that applied to other types of
evidence. Therefore, when a postconviction defendant asserts
that his trial counsel was ineffective based on a failure to
investigate DNA evidence, he must still show prejudice under
Strickland. See People v. Corson, 2016 CO
33, ¶ 41, 379 P.3d 288, 296; cf. People v.
Thompson, 2020 COA 117, ¶ 33, 485 P.3d 566, 572
("Crim. P. 35(c)(2)(V) permits a motion based on newly
discovered evidence, but that section does not address or
authorize the discovery of such evidence - DNA or
otherwise.").
17
E.
Application
¶32
Townsell argues that his claim is not wholly unfounded and
that the postconviction court and the division majority erred
by requiring him to prove the merits of his
ineffective-assistance-of-counsel claim-including,
prejudice-to have counsel appointed. He asserts this was
error because he can't prove prejudice without the DNA
testing his counsel's deficient performance precluded.
¶33
Townsell addressed the first prong of Strickland by
alleging that his attorney failed to request a continuance to
test all the seized items for potentially exculpatory DNA.
This sufficiently alleged deficient performance.
¶34
Townsell failed, however, to explain what additional DNA
testing might reveal and specifically how it might have
exculpated him. In his postconviction motion, he merely
asserted that, had his attorney conducted further
investigation, "he would have discovered substantial
evidence of defendant's exclusion despite the new DNA
evidence against Mr. Townsell." That single sentence is
the entirety of his argument as to prejudice. And although,
as we've explained, at this stage of postconviction
proceedings, a defendant need not prove prejudice,
he must provide more than a bare, conclusory assertion
unsupported by any facts. People v. Mills, 163 P.3d
1129, 1134 (Colo. 2007) ("The standard for making a
successful ineffective assistance of counsel claim is very
high, and it is a valid exercise of the court's duty to
oversee the orderly administration of justice to require some
factual
18
basis that the standard will be satisfied before appointing
an attorney to investigate the claims." (citation
omitted)). A defendant must allege some factual or
legal basis upon which the court can find prejudice. See
White v. Denver Dist. Ct., 766 P.2d 632, 635 (Colo.
1988) (explaining that a defendant "need not set forth
the evidentiary support for his allegations in his initial
Crim. P. 35(c) motion; instead, a defendant need only assert
facts that if true, would provide a basis for relief under
Crim. P. 35").
¶35
Townsell needed to explain not only what he thought the
missing DNA testing might reveal, but also how, with that
evidence, there was a reasonable probability that the outcome
of his trial would have been different. In other words,
Townsell needed to provide some basis, which if true, would
explain how further investigation would have excluded him
from the robbery given the strength of the evidence used to
convict him-namely, his cell phone records and cell location,
as well as the fact that his DNA was found on the shoes,
pantyhose, bandana, and mask, all of which were found in or
near the discarded bank bag. But he didn't. Townsell
failed to allege any facts upon which the court could find
that the prejudice prong of his claim had arguable merit. He
simply said that further testing would exclude him. See
Townsell II, ¶ 20. His motion focused on the nature
of defense counsel's mistake but failed to include the
potential prejudice the mistake caused.
19
¶36
Although in his dissent, Judge Schutz inferred a connection
between untested DNA evidence and an alternate suspect, in
Townsell's Crim. P. 35(c) motion, Townsell only asserted
that further DNA testing would prove his exclusion
but never the inclusion of another suspect. Townsell
never alleged that there was an alternate suspect.
¶37
Although Townsell didn't need to use any magic words, he
needed to provide some explanation of how further
investigation would have excluded him or how it would have
overcome the substantial evidence introduced at trial against
him. As it stands, his single, conclusory statement fails to
satisfy Crim. P. 35(c)(3)(IV)'s low bar for alleging
"adequate factual or legal grounds." See People
v. Lopez, 12 P.3d 869, 872 (Colo.App. 2000). Therefore,
these claims are wholly unfounded, and the postconviction
court didn't err by denying Townsell's request for
postconviction counsel.
III.
Conclusion
¶38
We affirm the judgment of the court of appeals.
20
JUSTICE GABRIEL, joined by CHIEF JUSTICE MARQUEZ, concurring
in part and dissenting in part.
¶39
I agree with the majority's recitation of the applicable
standards for the appointment of counsel and for granting a
hearing under Crim. P. 35(c). Maj. op. ¶¶ 21-26. I
also agree with the majority that the law does not create
special rules for ineffective assistance of counsel claims
involving allegations concerning the alleged failure to
investigate DNA evidence. Id. at ¶ 31. As in
all ineffective assistance of counsel cases, to obtain relief
on an ineffective assistance of counsel claim concerning the
investigation of DNA evidence, a defendant generally must
satisfy the two-prong test adopted by the Supreme Court in
Strickland v. Washington, 466 U.S. 668, 690, 694
(1984). That test requires a showing that (1) counsel's
acts or omissions were outside the acceptable range of
professionally competent assistance; and (2) but for counsel
errors, there is a reasonable probability that the result of
the proceeding would have been different. Id.
¶40
I part company with the majority, however, on the question of
whether Jamale D. Townsell made sufficient allegations in his
petition to warrant the appointment of counsel and a hearing
on his Crim. P. 35(c) petition. Unlike the majority, I
believe that he did. Indeed, I cannot discern what more
Townsell could have alleged without actually conducting the
neglected DNA testing and asserting the results. In my view,
the majority's ruling imposes an impossible burden on
21
criminal defendants who are seeking postconviction relief-and
particularly those who are proceeding pro se-and
unnecessarily raises the standard for the appointment of
counsel and the setting of a hearing on a Crim. P. 35(c)
petition.
¶41
Accordingly, I respectfully concur in part in and dissent in
part from the majority's opinion in this case.
I.
Factual Background
¶42
I need not repeat the factual and procedural background set
forth in the majority opinion. Instead, I will generally
limit my recitation of the facts to the relevant allegations
contained in Townsell's Crim. P. 35(c) petition.
¶43
I do, however, note at the outset that substantial evidence
in this case tended to suggest that an alternate suspect,
namely, the brother of Townsell's estranged wife,
committed the robbery at issue. Most notably, witnesses
described the robber as predominantly left-handed and five
feet seven inches to five feet nine inches in height.
Townsell is right-handed and six feet two inches tall. The
brother, in contrast, matched the description of the robber.
Moreover, although certain items alleged to be associated
with the robber were tested, many others, including a number
of items that the robber wore closest to his body, were not.
¶44
Townsell's pro se Crim. P. 35(c) petition consisted of a
fully completed Form 4 (four pages) plus an attachment (five
single-spaced, typed pages) detailing at great length the
grounds underlying his petition.
22
¶45
As pertinent here, Townsell alleged that four weeks before
his scheduled trial, the prosecution disclosed to defense
counsel additional DNA evidence that the prosecution planned
to admit at trial. Townsell alleged that at that time, his
counsel expressed that he had no knowledge of additional DNA
evidence, other than that which was found on a pair of
pantyhose, and that counsel was unconcerned about the
pantyhose because no one had identified them as having been
used in the robbery. According to Townsell, counsel expressed
concern about the allegedly newly produced DNA evidence but
proceeded to "rush the trial" in violation of
Townsell's due process rights.
¶46
Townsell further alleged that defense counsel had erred in
thinking that Townsell's DNA was found only on the
pantyhose (evidence in the record demonstrated that counsel
had been advised earlier that Townsell's DNA was found on
other items). And as a result of the fact that counsel was
uninformed about the evidence in the case, Townsell asserted
that counsel was unable to make a professionally reasonable
decision as to whether to present mitigating evidence.
¶47
Specifically, Townsell alleged, "[C]ase law rejects the
notion that a strategic decision can be reasonable, when this
attorney has failed to investigate his options and make
reasonable possible mitigating evidence regarding additional
DNA evidence documentation, but [defense counsel]
inexplicably failed to follow up with further
investigation."
23
¶48
Townsell then expressly asserted that he was prejudiced by
counsel's deficient conduct: "Had he [i.e., counsel]
done so [i.e., investigate further the DNA evidence], he
would have discovered substantial evidence of defendant's
exclusion despite the new DNA evidence against Mr.
Townsell."
¶49
Finally, Townsell alleged, "With a continuance, counsel
could have hired a DNA expert to counter the peoples expect
[sic] and could have had more effective cross-examination of
the people's expert."
¶50
Although Townsell is not an attorney, the import of his
allegations was clear and unmistakable: his counsel
"missed the DNA report" that had been provided and
did not properly investigate the DNA evidence. Had counsel
done so, he would have discovered substantial evidence that
tended to show that Townsell was not the robber (and, by
necessary implication, that someone else was).
II.
Analysis
¶51
I begin by briefly outlining the applicable standards
governing the appointment of counsel and the setting of a
hearing for purposes of Crim. P. 35(c). I then apply those
principles to the facts presented.
A.
Crim. P. 35(c)
¶52
Crim. P. 35(c)(3)(IV) and (V) set forth the procedures
governing petitions for postconviction review, including
referrals to the Office of the Public Defender and
24
the setting of hearings. We succinctly summarized the import
of these provisions in People v. Segura, 2024 CO 70,
¶ 4, 558 P.3d 234, 236:
Under paragraph (IV), if the court concludes that the motion,
the record, and the file show that the defendant is not
entitled to relief, it must deny the motion without
forwarding a copy to the prosecution and the Office of the
Public Defender ("OPD"). Crim. P. 35(c)(3)(IV). But
if the court does not so conclude, then paragraph (V)
requires the court to forward a copy of the motion to the
prosecution and, if the motion requests the appointment of
counsel, then also to the OPD. Crim. P. 35(c)(3)(V). The OPD
must then file a response within forty-nine days indicating
whether it has a conflict of interest and, if not, whether it
intends to enter its appearance and whether it needs more
time to investigate the defendant's claims. Id.
If the OPD enters its appearance, it must include in its
response any additional claims that have arguable merit.
Id. After the motion (as supplemented by the OPD)
has been fully briefed, an evidentiary hearing must be held
unless the court finds it appropriate to dispose of the
motion without a hearing. Id.
¶53
We further explained:
Thus, upon its initial review of a Crim. P. 35(c) motion
containing a request for postconviction counsel, the court
must either deny the motion and thus all of the claims, or
not deny the motion and thus none of the claims-there is no
halfway option. And if the court denies all of the claims, it
must enter written findings of fact and conclusions of law
without taking further action. But if the court denies none
of the claims, it must grant the request for postconviction
counsel and forward a complete copy of the motion to the
prosecution and the OPD. The OPD must then decide which
claims (if any) lack arguable merit and should be abandoned,
which arguably meritorious claims (if any) should be
supplemented, and which new claims (if any) have arguable
merit and should be added. The parties must thereafter brief
any arguably meritorious claims, including those supplemented
and added.
Segura, ¶ 26, 558 P.3d at 240 (footnotes
omitted).
25
¶54
In addition to the foregoing, we have made clear that
"[p]leadings by pro se litigants must be broadly
construed to ensure that they are not denied review of
important issues because of their inability to articulate
their argument like a lawyer." Jones v.
Williams, 2019 CO 61, ¶5, 443 P.3d 56, 58.
B.
Application
¶55
Applying the foregoing principles here, I would conclude that
Townsell pleaded sufficient facts in his pro se Crim. P.
35(c) petition to mandate the appointment of counsel and the
setting of a hearing on his petition.
¶56
As noted above, in a detailed petition, Townsell alleged that
his counsel had "missed" the DNA report that he had
been given and therefore did not conduct an appropriate
investigation as to such evidence. To the contrary, according
to Townsell, counsel believed that the only DNA evidence at
issue in the case had been found on pantyhose that were not
even involved in the robbery. Accordingly, counsel did not
believe that DNA evidence would pose a problem at trial. And
then, when counsel learned about what he believed to be new
DNA evidence, he did not seek an opportunity to investigate
that evidence. Instead, he proceeded to "rush the
trial" without conducting a thorough investigation and,
in Townsell's view, uninformed as to the evidence that
was to be presented by the prosecution. This, in turn,
rendered counsel unable to make reasoned strategic decisions
as to potentially available mitigating DNA evidence.
26
¶57
Based on the foregoing, Townsell expressly asserted that he
was prejudiced by counsel's deficient conduct.
Specifically, as noted above, Townsell alleged, "Had
[counsel] done so [i.e., investigate further the DNA
evidence], he would have discovered substantial evidence of
defendant's exclusion despite the new DNA evidence
against Mr. Townsell." And Townsell further contended,
"With a continuance, counsel could have hired a DNA
expert to counter the peoples expect [sic] and could have had
more effective cross-examination of the people's
expert."
¶58
The sum and substance of Townsell's pro se allegations
were that (1) counsel's performance in missing the DNA
report and then not conducting a proper investigation
concerning the DNA evidence in the case was deficient conduct
under Strickland; and (2) but for counsel's
unprofessional conduct, the result of the trial would
probably have been different (i.e., Townsell was prejudiced
under Strickland's second prong) because had
counsel performed properly, he would have discovered
substantial evidence that tended to show that Townsell was
not the robber (and that someone else was).
¶59
I believe that these are specific (and not conclusory)
factual allegations as to both prongs of Strickland,
and they were sufficient to establish a basis for referring
the matter to the OPD.
¶60
Notwithstanding the foregoing, the majority concludes that
Townsell did not adequately allege prejudice-even to warrant
a referral to counsel. Maj. op.
27
¶¶ 1, 34-37. In the majority's view, a pro se
defendant like Townsell in a case like this one must explain
(1) what further DNA testing might reveal and how it might
have exculpated him; (2) how, with that evidence, there was a
reasonable probability that his trial's outcome would
have been different (i.e., how further investigation would
have excluded the defendant from the robbery, given the
strength of the evidence used to convict him); and (3) how
further DNA testing would have proved not only the
defendant's exclusion but another suspect's
inclusion. See id. at ¶¶ 34-37. In my
view, however, no attorney, much less a pro se defendant,
could have made such allegations without actually conducting
the DNA testing that the defense believes would exonerate the
defendant.
¶61
The obligation that the majority imposes on Townsell is
contrary to the fact that Crim. P. 35(c)(3)(IV) and (V)
establish a pleading standard. A petitioner seeking
postconviction relief need not plead all of their evidence.
Nor must they prove their case. They need only plead
sufficient facts that, if true, would entitle them to relief.
See Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003)
(observing that a Crim. P. 35(c) motion alleging ineffective
assistance of counsel may be denied without a hearing
"if, but only if, the existing record establishes that
the defendant's allegations, even if proven true, would
fail to establish one or the other prong of the
Strickland test"). Moreover, as noted above,
Crim. P. 35(c) makes clear that a hearing will occur if a
petitioner sets forth a claim that has arguable merit.
28
¶62
Although the majority purports to acknowledge that at this
stage of the proceedings, a defendant need not prove
prejudice, Maj. op. ¶ 34, the majority's opinion
requires the defendant to plead substantial specific evidence
that would, in fact, allow the defendant not only to prove
their case but also to undermine the prosecution's
evidence at trial, notwithstanding the fact that such
evidence generally will not be available to the defendant.
¶63
Alternatively, if the majority was, in fact, merely
attempting to set forth minimum pleading requirements, then,
although it claims otherwise, see id. at ¶ 37,
its opinion simply quibbles with the words that Townsell, a
pro se party, used to establish prejudice, thereby requiring
him to assert a litany of "magic words" not
mandated by Crim. P. 35(c). By way of example, the majority
faults Townsell for asserting only that further DNA testing
would have excluded him and not that it would have included
someone else. See id. at ¶ 36. And the majority
further faults Townsell for not expressly alleging
that there was an alternate suspect. See id. But as
noted above, the import of Townsell's pro se allegations
was clear and unmistakable: he was not the robber and, by
necessary implication, someone else was. In my view, the
majority is, in fact, requiring a pro se petitioner to recite
certain "magic words" to establish the requisite
prejudice.
¶64
And the majority's imposition of such a requirement is
particularly troubling here because Form 4, which pro se
petitioners like Townsell are required
29
to use, nowhere requires the petitioner to identify how they
were prejudiced. Thus, in this case, Townsell alleged
more than was required of him. (If pro se
petitioners are going to be required to make substantial
allegations of prejudice, as the majority seems to suggest,
then I would respectfully encourage the court's Rules of
Criminal Procedure Committee to consider revising Form 4 to
give pro se petitioners more adequate notice of that
requirement.)
¶65
Finally, the standard that the majority enforces today
neglects our longstanding mandate that "[p]leadings by
pro se litigants must be broadly construed to ensure that
they are not denied review of important issues because of
their inability to articulate their argument like a
lawyer." Jones, ¶ 5, 443 P.3d at 58. Here,
the majority not only holds Townsell to the standard of
learned counsel but also appears to have imposed on him (and
other similarly situated Crim. P. 35(c) petitioners) a burden
that even lawyers would likely find insurmountable.
Specifically, for the reasons noted above, under the
majority's rule, it appears that petitioners like
Townsell are required to plead their evidence, and if they do
not do so, then they are subject to having their petitions
summarily dismissed. And this is so even though, particularly
in cases like this one, most petitioners will never be able
to plead their evidence absent the DNA investigation and
testing that they claim did not occur but should have
occurred. I cannot agree that Crim. P. 35(c) sets so high a
bar.
30
III.
Conclusion
¶66
For these reasons, although I agree with the majority's
recitation of the applicable legal standard and with its view
that the law does not establish unique rules for ineffective
assistance of counsel cases involving allegations of a
failure to investigate DNA evidence, I do not agree with the
application of those principles to the facts of this case.
Instead, in my view, Townsell alleged sufficient facts to
warrant the postconviction court's referring this matter
to counsel for further review and the setting of a hearing.
His substantial pro se allegations were by no means
conclusory. Nor were his claims wholly unfounded.
¶67
Accordingly, I respectfully concur in part in and dissent in
part from the majority's opinion in this case.
---------
Notes:
[1] To apply for postconviction relief,
Townsell, like all pro se defendants seeking Crim. P. 35(c)
relief, filled out Form 4. "Form 4 is a standardized
document that appears in the appendix to the Colorado Rules
of Criminal Procedure." People v. Stanley, 169
P.3d 258, 260 (Colo.App. 2007). It requires defendants to
check the applicable grounds for the motion from a list and
to attach pages stating the grounds and facts supporting each
claim. It specifies that a defendant must include "each
and every fact you feel supports that claim" and warns
in all caps that" [i]f you do not raise all claims here,
the court may not have to entertain later motions for similar
relief." Appendix to the Colo. Rules of Crim. Proc.,
Form 4, Petition for Postconviction Relief Pursuant to Crim.
P. 35(c).
[2] After defense counsel attempted to
state during closing arguments that there was an alternate
suspect, the parties had a bench conference during which the
court stated that "there was no testimony to support the
alternate suspect theory" and "defense counsel was
only allowed to argue that the police had 'notice'
that there might be an alternate suspect given the disparity
between the witnesses' descriptions of the robber's
height and Townsell's height." Townsell II,
¶ 18.
[3] We granted certiorari to review the
following issues:
1. Whether the standard for appointment of counsel
under Criminal Rule of Procedure 35(c) differs from the
standard for granting a hearing.
2. Whether an indigent pro se petitioner alleging
ineffective assistance of counsel for failure to investigate
DNA evidence must specify how exculpatory DNA evidence would
undermine confidence in the conviction to sustain a Rule
35(c) motion.
3. Whether petitioner is entitled to postconviction
counsel and a hearing to develop his claim that trial counsel
rendered ineffective assistance of counsel by failing to
investigate DNA evidence.
[4] In 2023, the Colorado legislature
enacted a statute titled, "Content of application for
DNA testing," which allows a court to order DNA testing
if "[i]t finds a reasonable probability that the
petitioner would not have been convicted if favorable results
had been obtained through DNA testing at the time of the
original prosecution." Ch. 15, sec. 3, §
18-1-413(1)(a), 2023 Colo. Sess. Laws 44, 45. Therefore, if a
defendant wants DNA testing, there is an avenue at his
disposal, even if he can't meet Strickland or
doesn't assert an ineffective-assistance-of-counsel
claim.
---------