Peo v. Cain

Opinion

25CA0085 Peo v Cain 07-30-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0085 Mesa County District Court No. 95CR547 Honorable Brian J. Flynn, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Raymond Cain,

Defendant-Appellant.

ORDER AFFIRMED

Division IV Opinion by JUDGE BROWN Freyre and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 30, 2026

Philip J. Weiser, Attorney General, Paul Koehler, Senior Counsel, Denver, Colorado, for Plaintiff-Appellee

Ramsey Lama Law, PLLC, Ramsey Lama, Canon City, Colorado, for Defendant-Appellant ¶1 Defendant, Raymond Cain, appeals the postconviction court’s

order denying his Crim. P. 35(c) motion without conducting a

hearing. We affirm.

I. Background

¶2 In 1995, Cain and two friends, Gabriel Rivera and Forest

Grant Porter, robbed two young women — S.F. and S.B. During the

robbery, Cain shot both women in the head. S.F. died, and S.B.

was seriously wounded but survived.

¶3 The prosecution charged Cain with first degree murder after

deliberation of S.F., first degree felony murder of S.F., attempted

first degree murder after deliberation of S.B., conspiracy to commit

first degree murder after deliberation, conspiracy to commit

aggravated robbery, and twelve crime of violence sentence

enhancers. After a thirteen-day trial, a jury acquitted Cain of first

degree murder after deliberation but found him guilty of first degree

felony murder of S.F., attempted first degree murder after

deliberation of S.B., conspiracy to commit first degree murder after

deliberation, conspiracy to commit aggravated robbery, attempt to

1 possess methamphetamine,1 and eight crime of violence sentence

enhancers.2

¶4 Rivera and Porter were tried separately. A jury found Rivera

guilty of first degree felony murder, conspiracy to commit

aggravated robbery, and attempt to possess cocaine. A different

jury found Porter guilty of first degree felony murder, conspiracy to

commit first degree murder after deliberation, and conspiracy to

commit aggravated robbery. Both codefendants were charged with

but acquitted of attempted first degree murder.

¶5 In 1997, appellate counsel Richard Tegtmeier filed a direct

appeal of Cain’s conviction challenging the district court’s failure to

respond to a mid-deliberation jury question; the constitutionality of

the juvenile direct file statute; the information and jury instructions

concerning conspiracy, attempted first degree murder, and

complicity; the admission of hearsay evidence; and the

prosecution’s alleged failure to preserve exculpatory evidence. A

division of this court affirmed, and the mandate issued in

1 It appears that this charge was added as a lesser nonincluded

offense at some point during trial. 2 Some of the crime of violence sentence enhancers were dismissed

before the jury rendered its verdict.

2 September 1998. See People v. Cain, (Colo. App. No. 96CA0393,

Nov. 13, 1997) (not published pursuant to C.A.R. 35(f)).

¶6 In 1998, Rivera filed a direct appeal, and a division of this

court reversed his felony murder conviction because the trial court

failed to adequately instruct the jury on all the elements of felony

murder — in particular, the instructions did not define criminal

attempt. See People v. Rivera, (Colo. App. No. 95CA1708, Jan. 22,

1998) (not published pursuant to C.A.R. 35(f)). In 2000, Porter filed

a direct appeal, and a division of this court reversed his felony

murder conviction on the same basis. See People v. Porter, (Colo.

App. No. 96CA1026, June 14, 2001) (not published pursuant to

C.A.R. 35(f)).

¶7 In 2005, Richard Bednarski, a lawyer at the same law firm as

Tegtmeier (then called Tegtmeier, Frank & Jones, LLC), filed a Crim.

P. 35(c) motion on Cain’s behalf, alleging that trial counsel had

provided ineffective assistance by failing to prevent Porter and S.B.

from testifying, failing to challenge S.B.’s identification of Cain, and

failing to investigate the bullet casings found at the scene before the

prosecution lost the evidence. After a hearing, the postconviction

court denied the motion. Through new appellate counsel, David

3 Lane of the firm Killmer, Lane & Newman, LLP, Cain appealed the

denial of his postconviction motion, and a division of this court

affirmed. See People v. Cain, (Colo. App. No. 06CA1106, Oct. 16,

2008) (not published pursuant to C.A.R. 35(f)).

¶8 In 2010, Tegtmeier and Bednarski (then at a firm called the

Tegtmeier Bednarski Law Firm, LLC) filed a second Crim. P. 35(c)

motion based on prosecutorial misconduct in withholding evidence

and a motion for new trial based on newly discovered evidence. The

postconviction court denied the motions. Through different

appellate counsel, Antony Noble of The Noble Law Firm, LLC, Cain

filed but later dismissed an appeal of those orders.

¶9 In 2013, Bednarski and Noble filed a third Crim. P. 35(c)

motion asserting that Cain’s sentence to life without the possibility

of parole was unconstitutional under Miller v. Alabama, 567 U.S.

460 (2012), because he was a juvenile at the time he committed his

crimes. The postconviction court initially denied the motion but

reconsidered that ruling after the Supreme Court determined that

Miller applied retroactively, see Montgomery v. Louisiana, 577 U.S.

190 (2016). After a hearing, the court resentenced Cain to life with

the possibility of parole after forty years.

4 ¶ 10 In 2023, through another set of attorneys, Ramsey Lama and

Thom LeDoux of the firm Lama, Luchetta & LeDoux, LLP, Cain filed

a fourth Crim. P. 35(c) motion, asserting that (1) trial counsel were

ineffective for failing to object to the errors in the felony murder and

attempted first degree murder instructions; (2) appellate counsel

was ineffective for failing to raise the instructional errors on direct

appeal; and (3) prior postconviction counsel were ineffective for

(a) failing to allege ineffective assistance of appellate counsel and

(b) having an actual conflict of interest.

¶ 11 Cain alleged that appellate counsel Tegtmeier had advised him

and first postconviction counsel Bednarski that the instructional

errors present in his codefendants’ cases did not exist in his case

and that he reasonably relied upon that advice. Cain also argued

that ineffective assistance of counsel claims are not successive, that

his attack on his felony murder conviction (a class 1 felony) had no

time bar, and that counsel’s ineffective assistance established

justifiable excuse or excusable neglect allowing him to attack his

attempted first degree murder conviction (a class 2 felony) beyond

the time limit established by section 16-5-402(1), C.R.S. 2025.

5 ¶ 12 The postconviction court ordered the prosecution to respond

to the motion. The prosecution argued that Cain’s claims were

successive, that his ineffective assistance claim related to his felony

murder conviction was barred by the equitable doctrine of laches,

and that he had not established justifiable excuse or excusable

neglect for his untimely ineffective assistance claim related to his

attempted murder conviction. The prosecution also argued that the

district court had properly instructed the jury on all elements of the

challenged convictions.

¶ 13 After Cain filed a reply, the postconviction court denied the

Crim. P. 35(c) motion without conducting a hearing. The court

adopted the prosecution’s reasoning that (1) Cain’s ineffective

assistance claim related to his felony murder conviction was barred

by laches, and (2) Cain had not established justifiable excuse or

excusable neglect for his untimely ineffective assistance claims

related to his attempted murder conviction.

II. Standard of Review

¶ 14 We review de novo a postconviction court’s denial of a Crim. P.

35(c) motion without a hearing. People v. Cali, 2020 CO 20, ¶ 14.

We also review de novo whether a defendant has alleged facts that,

6 if true, would constitute justifiable excuse or excusable neglect.

See People v. Chavez-Torres, 2019 CO 59, ¶ 11 (citing Close v.

People, 180 P.3d 1015, 1019 (Colo. 2008)); § 16-5-402(2)(d). We

may affirm a postconviction court’s order on any ground supported

by the record, whether or not the court relied on or considered that

ground. People v. Cooper, 2023 COA 113, ¶ 7.

III. Analysis

¶ 15 Cain contends that the postconviction court erred by

summarily denying his postconviction motion because he alleged

facts that (1) were sufficient to establish meritorious claims of

ineffective assistance of counsel and (2) would overcome any

suggestion of undue delay by establishing justifiable excuse or

excusable neglect, allowing the court to consider his untimely and

successive motion. We first conclude that, even assuming Cain’s

ineffective assistance claim related to his felony murder instructions

is not successive or barred by laches, the claim nonetheless fails

because the reversible instructional error present in his

codefendants’ trials did not exist in his trial. Next, we conclude

that Cain’s ineffective assistance claim related to his attempted

murder instructions is time barred because he failed to sufficiently

7 allege facts establishing justifiable excuse or excusable neglect for

his nearly-three-decade delay in asserting that claim.

Consequently, we perceive no error by the postconviction court in

denying Cain’s most recent Crim. P. 35(c) motion without

conducting a hearing.

A. Summary Denial of Crim. P. 35(c) Motions

¶ 16 A postconviction court may summarily deny a Crim. P. 35(c)

motion without a hearing if the motion, files, and record clearly

establish that the defendant is not entitled to relief; if the

allegations, even if true, do not provide a basis for relief; or if the

claims are bare and conclusory in nature and lack supporting

factual allegations. People v. Chipman, 2015 COA 142, ¶ 25. If the

court requests a response from the prosecution and allows a

defendant to file a reply, it must grant a hearing unless, “‘based on

the pleadings,’ the court finds that it is appropriate to enter a

summary ruling containing written findings of fact and conclusions

of law.” People v. Smith, 2017 COA 12, ¶ 2 (quoting Crim. P.

35(c)(3)(V)). “[W]hen a party’s briefing references or attaches a

portion of the existing record, the postconviction court can consider

8 it when determining whether a hearing is warranted.” People v.

Martinez, 2026 COA 7, ¶ 25.

¶ 17 There is no statutory time limit restricting when a defendant

may collaterally attack a class 1 felony conviction. § 16-5-402(1).

But postconviction collateral attacks on non-class 1 felony

convictions generally must be filed within three years following the

conviction. Id.; see People v. Collier, 151 P.3d 668, 671 (Colo. App.

2006). Even so, a court may consider claims that would otherwise

be time barred if it finds that the delay was due to justifiable excuse

or excusable neglect. § 16-5-402(2)(d). “Ineffective assistance of

counsel can constitute justifiable excuse or excusable neglect.”

People v. Valdez, 178 P.3d 1269, 1278 (Colo. App. 2007).

¶ 18 The equitable doctrine of laches may also bar a postconviction

claim even when section 16-5-402 would not. Robbins v. People,

107 P.3d 384, 390 (Colo. 2005). Laches applies when a party’s

“unconscionable delay in enforcing his rights has prejudiced the

party against whom relief is sought.” Id. at 388. For laches to

apply, “the record must show lack of diligence in the face of actual

knowledge of the conditions giving rise to the claim.” Id.

9 ¶ 19 A court may also summarily deny a postconviction motion as

successive if a defendant raised or could have raised the claim in a

prior appeal or postconviction motion. See Crim. P. 35(c)(3)(VI),

(VII). Generally, claims of ineffective assistance of counsel are not

successive. See Crim. P. 35(c)(3)(VIII) (“[T]he court shall not deny a

postconviction claim of ineffective assistance of trial counsel on the

ground that all or part of the claim could have been raised on direct

appeal[.]”); People v. Clouse, 74 P.3d 336, 341 (Colo. App. 2002) (a

claim of ineffective assistance of postconviction counsel is not

successive to a defendant’s first postconviction motion).

B. Ineffective Assistance of Counsel

¶ 20 A criminal defendant is constitutionally entitled to effective

assistance of counsel. U.S. Const. amends. VI, XIV; Colo. Const.

art. II, § 16; Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003). To

succeed on a claim of ineffective assistance of counsel, a defendant

must show that (1) counsel’s performance was deficient, in that it

fell below the minimum standard guaranteed by the Sixth

Amendment; and (2) the defendant was prejudiced, in that there is

a reasonable probability that, but for counsel’s errors, the result of

the proceeding would have been different. Strickland v. Washington,

10 466 U.S. 668, 687-94 (1984); Dunlap v. People, 173 P.3d 1054,

1063 (Colo. 2007). If a defendant fails to establish either the

performance prong or the prejudice prong, their claim for ineffective

assistance of counsel fails. See Dunlap, 173 P.3d at 1063.

¶ 21 To establish the performance prong in the context of appellate

counsel, “the defendant must show that counsel failed to present

the case effectively.” People v. Long, 126 P.3d 284, 286 (Colo. App.

2005). But “[a]ppellate counsel is not required to raise on appeal

every nonfrivolous issue a defendant desires to raise.” People v.

Trujillo, 169 P.3d 235, 238 (Colo. App. 2007). “‘[O]nly when ignored

issues are clearly stronger than those presented, will the

presumption of effective assistance of counsel be overcome,’ even in

the context of a direct appeal.” Id. (quoting Ellis v. Hargett, 302

F.3d 1182, 1189 (10th Cir. 2002)). And to demonstrate prejudice,

the defendant must show a reasonable probability that, but for

counsel’s errors, they would have prevailed on appeal. Long, 126

P.3d at 286; see also People v. Valdez, 789 P.2d 406, 410 (Colo.

1990) (to establish prejudice, the defendant “must demonstrate the

existence of meritorious grounds for reversal”).

11 C. Cain’s Ineffective Assistance Claim Related to His Felony Murder Conviction Fails on the Merits

¶ 22 Cain contends that (1) trial counsel was ineffective for failing

to object to his felony murder instructions on the basis that they

did not properly define the predicate offense of attempt to commit

robbery; (2) appellate counsel was ineffective for failing to raise the

instructional error on appeal; and (3) postconviction counsel was

ineffective for failing to raise the instructional error or claim

ineffective assistance of trial, appellate, and prior postconviction

counsel. Cain contends that the instructional error was plain and

clearly stronger than the other arguments raised on appeal because

the same instructional error resulted in the reversal of his

codefendants’ felony murder convictions.

¶ 23 Because we conclude that Cain’s substantive claim of

instructional error lacks merit, we necessarily conclude that any

allegedly deficient performance by counsel in failing to raise the

issue (or failing to assert ineffective assistance of counsel for failing

to raise the issue) did not result in Strickland prejudice. See

Trujillo, 169 P.3d at 239 (“[E]ven if counsel’s choice of issues were in

error, [the] defendant has not suffered any prejudice” because “he

12 would not have prevailed on the additional issues . . . .”). Thus, this

claim of ineffective assistance of counsel fails.

¶ 24 As relevant here, a defendant commits felony murder if,

[a]cting either alone or with one or more persons, he commits or attempts to commit . . . robbery, . . . and, in the course of or in furtherance of the crime that he is committing or attempting to commit, or of immediate flight therefrom, the death of a person, other than one of the participants, is caused by anyone.

§ 18-3-102(1)(b), C.R.S. 1995.3

¶ 25 Here, the predicate offense for Cain’s felony murder charge

was robbery or attempted robbery. Accordingly, proof of robbery or

attempted robbery was an element of felony murder, on which the

district court was required to accurately instruct the jury. See

Doubleday v. People, 2016 CO 3, ¶ 22 (explaining that “the

commission or attempt to commit the predicate offense is an

essential element of felony murder”); Riley v. People, 266 P.3d 1089,

1092 (Colo. 2011) (the trial court has a duty to accurately instruct

the jury concerning the controlling law).

3 We cite section 18-3-102(1)(b), C.R.S. 1995, the version of the

felony murder statute in effect at the time of Cain’s offense. Felony murder has since been reclassified as second degree murder. See Ch. 58, sec. 2, § 18-3-103(1)(b), 2021 Colo. Sess. Laws 236.

13 ¶ 26 A person commits robbery if they “knowingly take[] anything of

value from the person or presence of another by the use of force,

threats, or intimidation.” § 18-4-301(1), C.R.S. 2025. “A person

commits criminal attempt if, acting with the kind of culpability

otherwise required for commission of an offense, he engages in

conduct constituting a substantial step toward the commission of

the offense.” § 18-2-101(1), C.R.S. 2025. A “substantial step” is

“any conduct, whether act, omission, or possession, which is

strongly corroborative of the firmness of the actor’s purpose to

complete the commission of the offense.” Id.

¶ 27 In Cain’s case, Instruction No. 24 provided the elements of

felony murder:

1. That the defendant,

2. in the State of Colorado, at or about the date and place charged,

3. acting with one or more persons,

4. did commit or attempt to commit robbery as defined in these instructions, and

5. in the course of or in furtherance of the robbery, or in the immediate flight therefrom,

6. the death of a person, other than one of the participants, is caused by anyone,

14 7. without the affirmative defense in instruction number 26.

¶ 28 Instruction No. 26 explained that “[i]t is an affirmative

defense” to felony murder that Cain

1. [w]as not the only participant in the robbery, or attempt to commit robbery, and

2. did not kill or in any way solicit, request, command, importune, cause, or aid in the killing, and

3. was not armed with a deadly weapon, and

4. had no reasonable grounds to believe that any other participant was armed with a deadly weapon, and

5. the defendant did not engage in or intend to engage in and had no reasonable grounds to believe that any other participant intended to engage in conduct likely to result in death or serious bodily injury, and

6. the defendant endeavored to immediately disengage himself from the commission of robbery or attempted robbery, or flight therefrom, upon having reasonable grounds to believe that another participant was armed with a deadly weapon, or intended to engage in conduct likely to result in death or serious bodily injury.

¶ 29 Instruction No. 22 provided as follows:

The elements of the crime of Robbery are:

1. That the defendant,

15 2. in the State of Colorado, at or about the date and place charged,

3. knowingly,

4. took anything of value,

5. from the person or presence of [S.B.],

6. by the use of force, threats, or intimidation.

¶ 30 Instruction No. 35 explained that

[a]ttempt is when a person, acting with the kind of culpability otherwise required for commission of an offense, engages in conduct constituting a substantial step toward the commission of the offense. A substantial step is any conduct, whether act, omission, or possession, which is strongly corroborative of the firmness of the actor’s purpose to complete the commission of the offense.

¶ 31 Cain contends that these jury instructions failed to adequately

instruct the jury as to felony murder because no instruction defined

the predicate offense of “attempt to commit robbery” or connected

Instruction No. 35’s definition of “attempt” to Instruction No. 22’s

elements of robbery or to Instruction No. 24’s elements of first

degree felony murder. Cain argues that his instructions suffered

from “identical” deficiencies as his codefendants’ instructions,

which resulted in the reversal of their convictions.

16 ¶ 32 In Rivera’s direct appeal, he challenged his conviction on the

basis that the trial court failed to properly define the predicate

offense of criminal attempt to commit robbery. His felony murder

instruction identified the elements of that offense as follows:

1. That the defendant,

2. in the State of Colorado, at or about the date and place charged,

3. acting with one or more persons,

4. attempted to commit robbery as defined in these instructions, and

5. in the course of or in furtherance of the robbery, or in immediate flight therefrom,

6. the death of a person, other than one of the participants, is caused by anyone[,]

7. without the affirmative defense in instruction number 26.4

¶ 33 Notably, no instruction given during Rivera’s trial separately

defined attempt. See Rivera, No. 95CA1708, slip op. at 4. Instead,

attempt was defined as part of two other crimes. Rivera’s attempted

4 Cain attached copies of Rivera’s and Porter’s jury instructions to

his Crim. P. 35(c) motion, so the postconviction court could consider them in denying his postconviction motion, see People v. Martinez, 2026 COA 7, ¶ 25, and we can too in resolving his appeal.

17 first degree murder instruction identified the elements of that

offense as follows:

1. That the defendant,

2. in the State of Colorado, at or about the date and place charged,

3. after deliberation and with intent to cause the death of [S.B.],

4. engaged in conduct constituting a substantial step toward the commission of Murder of [S.B.] in the First Degree After Deliberation, as defined in these instructions.

And his criminal attempt to possess cocaine instruction identified

the elements of that offense as follows:

1. That the defendant,

2. in the State of Colorado, at or about the date and place charged,

3. with intent to commit the crime of possession of a Schedule II controlled substance: cocaine,

4. engaged in conduct constituting a substantial step toward the commission of a schedule II controlled substance: cocaine.

“Substantial step” was separately defined, but it was not linked to

“attempt” or to the felony murder instruction. Id. at 6. A division of

this court concluded that “the meaning of attempt in connection

18 with the felony murder charge would not have been apparent to the

jurors when viewing the instructions as a whole.” Id.

¶ 34 “Providing a further basis for confusing the jury,” the

affirmative defense instruction cross-referenced in Rivera’s felony

murder instruction referred to the crime of “conspiracy to commit

robbery,” not to robbery or attempted robbery, and “conspiracy

cannot be the predicate offense for a felony murder conviction.” Id.

The division concluded that “when read as a whole, the instructions

did not instruct the jury at all as to criminal attempt.” Id. at 7.

Because “attempt” was a necessary element for a conviction of

felony murder predicated on attempted robbery, Rivera was

deprived of his right to be found guilty of each element beyond a

reasonable doubt. Id. at 8. The division therefore reversed Rivera’s

felony murder conviction. Id. at 8, 18.

¶ 35 In Porter’s direct appeal, he also challenged the trial court’s

failure to define the predicate offense of criminal attempt to commit

robbery. His felony murder instruction identified the elements of

that offense as follows:

1. That the defendant,

19 2. in the State of Colorado, at or about the date and place charged,

3. acting with one or more persons,

4. attempted to commit robbery as defined in these instructions, and

5. in the course of or in furtherance of the robbery, or in immediate flight therefrom,

6. the death of a person, other than one of the participants, is caused by anyone[,]

7. without the affirmative defense in instruction number 23.

But, as a division of this court noted, the instructions did not define

“attempt” “as part of, or as applicable to,” felony murder. Porter,

No. 96CA1026, slip op. at 7-8. Instead, attempt was defined in the

elemental instruction for attempted first degree murder as follows:

1. That the defendant,

2. in the State of Colorado, at or about the date and place charged,

3. after deliberation and with intent to cause the death of [S.B.],

4. engaged in conduct constituting a substantial step toward the commission of Murder of [S.B.] in the First Degree After Deliberation, as defined in these instructions,

5. without the affirmative defense in Instruction number 25.

20 ¶ 36 The division noted that the jury was told that each count was

a separate and distinct offense that should be considered separately

from any other count. Id. And the division highlighted that Porter’s

self-defense instruction, like Rivera’s, referenced “conspiracy to

commit robbery,” incorrectly indicating that conspiracy, of which

Porter was convicted, could be a predicate offense to felony murder.

Id. at 9. Thus, the division concluded it was possible the jury was

misled by the instructions and reversed Porter’s felony murder

conviction. Id. at 9-10, 26.

¶ 37 Although the felony murder charges in the codefendants’ cases

were predicated solely on attempted robbery, the only definitions of

attempt were buried in elemental instructions for offenses other

than felony murder. Attempt was not separately defined and not

linked in any way to robbery or felony murder.

¶ 38 In contrast, Cain’s felony murder elemental instruction

required the jury to find that Cain “did commit or attempt to

commit robbery as defined in these instructions.” (Emphasis

added.) Robbery was separately and accurately defined in

21 Instruction No. 22.5 And attempt was separately and accurately

defined in Instruction No. 35, including what constitutes a

“substantial step” toward the commission of an offense. Unlike

Rivera’s and Porter’s instructions, the definition of attempt in Cain’s

instructions was not buried as an element of another offense;

instead, it readily applied to any instruction containing attempt as

an element.

¶ 39 The district court also instructed the jury that “[n]o single rule

describes all the law which must be applied. Therefore, the rules

must be construed together as a whole.” Viewed collectively, the

instructions accurately informed the jury regarding the elements of

felony murder, including the predicate offenses of robbery and

“attempt to commit robbery.” See Johnson v. People, 2019 CO 17,

¶ 14 (“We do not consider jury instructions in isolation; rather, we

5 Cain argues that “robbery” was only defined as a lesser included

crime of conspiracy to commit aggravated robbery. But the robbery instruction is not so limited. The instruction does not indicate that it is a lesser included offense or cross-reference any other instruction. Instead, it simply sets forth the elements of robbery and could be applied to any other instruction referencing robbery “as defined in these instructions,” including the felony murder instruction.

22 consider them ‘in the context of the instructions as a whole . . . .’”

(quoting Estelle v. McGuire, 502 U.S. 62, 72 (1991))).6

¶ 40 Moreover, in both codefendants’ cases, the instruction setting

forth the affirmative defense to felony murder sowed more confusion

by identifying an offense that could not serve as a predicate for

felony murder. The affirmative defense instruction cross-referenced

in Cain’s felony murder instruction, however, properly referred to

the predicate offenses of robbery and attempt to commit robbery.

¶ 41 In the end, we conclude that any objection to or appeal of

Cain’s felony murder instruction on the basis that it failed to

properly define the predicate offenses of robbery or attempt to

commit robbery would have been unsuccessful. Since Cain’s

instructional challenge would not have prevailed on appeal, he fails

to establish prejudice resulting from trial, appellate, or

postconviction counsel’s allegedly deficient performance. See Long,

126 P.3d at 286; Valdez, 789 P.2d at 410. Accordingly, we

6 To the extent Cain argues in his reply brief that his felony murder

charge had multiple predicate offenses and raises a unanimity concern as an alternative reason why his instructions were erroneous, we decline to consider the argument. See People v. Simpson, 93 P.3d 551, 555 (Colo. App. 2003) (declining to consider an argument presented for the first time in a reply brief).

23 conclude that the postconviction court did not err by denying this

ineffective assistance claim without conducting a hearing. See

Strickland, 466 U.S. at 687-94; Dunlap, 173 P.3d at 1063.

D. Cain’s Challenge to His Attempted First Degree Murder Conviction Is Time Barred

¶ 42 Any collateral attack on Cain’s attempted murder conviction is

subject to the three-year time limitation of section 16-5-402(1). His

conviction became final in 1998 when the mandate issued after his

direct appeal. Thus, it is undisputed that Cain’s most recent Crim.

P. 35(c) motion is untimely as to the attempted murder conviction.

But Cain contends that he sufficiently alleged that the delay was

the result of circumstances amounting to justifiable excuse or

excusable neglect such that the postconviction court should not

have denied the motion without conducting a hearing at which he

could prove his factual allegations. We are not persuaded.

¶ 43 In determining whether justifiable excuse or excusable neglect

exists, we must “consider the circumstances existing throughout

the entire period from the inception of the conviction in question.”

People v. Wiedemer, 852 P.2d 424, 441 (Colo. 1993). Factors a

court may consider include, but are not limited to,

24 (1) whether there are circumstances or outside influences preventing a challenge to a prior conviction and the extent to which the defendant having reason to question the constitutionality of a conviction investigates its validity and takes advantage of relevant avenues of relief that are available;

(2) whether a defendant had any previous need to challenge a conviction and either knew that it was constitutionally infirm or had reason to question its validity;

(3) whether a defendant had other means of preventing the government’s use of the conviction, so that a post-conviction challenge was previously unnecessary; and

(4) whether the passage of time has an effect on the [prosecution’s] ability to defend against the challenge.

Close, 180 P.3d at 1019-20 (citing Wiedemer, 852 P.2d at 441-42).

¶ 44 In his most recent postconviction motion, Cain asserted the

following facts related to the Wiedemer factors: (1) he relied on

appellate counsel Tegtmeier’s allegedly erroneous advice that the

instructional errors present in his codefendants’ cases were not

present in his case; (2) postconviction counsel Bednarski had an

actual conflict of interest that prevented him from challenging

Tegtmeier’s appellate performance because Bednarski was an

associate at the same firm as Tegtmeier; (3) Bednarski and all

25 subsequent postconviction counsel relied upon Tegtmeier’s advice

and did not investigate whether the defects that mandated reversal

in his codefendants’ cases existed in Cain’s case; (4) Cain

investigated his own case between 2005 to 2021, “but his conflicted

counsel failed to identify the meritorious claims”; and (5) the

passage of time would not affect the prosecution’s ability to defend

against this claim. For the limited purpose of evaluating the

timeliness issue, we accept these allegations as true. See

Chavez-Torres, ¶ 11. Nonetheless, for two reasons, we conclude

that Cain failed to allege facts, that if proved at a hearing, would

establish justifiable excuse or excusable neglect preventing him

from asserting claims that trial, appellate, or prior postconviction

counsel were ineffective for failing to challenge his attempted

murder instruction.

¶ 45 First, Cain’s allegation that Tegtmeier erroneously advised him

about the reversible errors in his codefendants’ cases does not

justify his delay in asserting claims related to his attempted murder

instruction. The instructional errors in the codefendants’ cases

related to their felony murder instructions; neither codefendant

challenged their attempted murder instructions on appeal because

26 both were acquitted of attempted murder. Tegtmeier’s allegedly

erroneous advice cannot justify decades of delay in raising claims

that were not at issue in, and thus not affected by, the

codefendants’ cases.

¶ 46 Instead, the fact that both codefendants were acquitted of

attempted murder should have given Cain and his counsel early

reason to question why the verdicts were different, including

prompting him to compare the jury instructions as he does now in

support of his argument that his felony murder instruction was

erroneous. Notably, Tegtmeier challenged the attempted murder

instruction on direct appeal, so for that reason too, Cain and his

postconviction counsel were on notice that there may have been

errors with the instruction.

¶ 47 Cain does not allege that Tegtmeier (or any of his other

counsel) misadvised him regarding the attempted murder

instruction, though such allegations likely would not establish

justifiable excuse or excusable neglect anyway. See Chavez-Torres,

¶ 24 (“[A]n attorney’s failure to advise a client does not generally

establish justifiable excuse or excusable neglect.”). And although

Cain specifically alleges that he investigated his case, he does not

27 explain why he was unable to discover this alleged instructional

error — or trial, appellate, or postconviction counsel’s alleged

ineffective assistance in failing to raise the error — earlier. See

People v. Slusher, 43 P.3d 647, 651 (Colo. App. 2001) (“[R]ecent

discovery of a legal basis for a collateral attack on a conviction does

not constitute excusable neglect where the defendant has not

otherwise demonstrated some unavoidable hindrance that would

cause a reasonably prudent person to neglect to pursue timely

collateral relief.”); People v. Vigil, 955 P.2d 589, 591 (Colo. App.

1997) (The “defendant’s indigence, ignorance of the law, and lack of

legal assistance did not amount to a sufficient showing of justifiable

excuse or excusable neglect.”).

¶ 48 Second, even if Bednarski, as an attorney working at the same

firm as Tegtmeier, had an actual conflict of interest that prevented

Cain from discovering Tegtmeier’s alleged ineffectiveness related to

the attempted murder instructional error, that impediment lasted

only until unconflicted postconviction counsel became involved.

Cain does not allege that Noble, who began representing Cain in

connection with the appeal of his 2010 postconviction motion and

who co-counseled his 2013 postconviction motion, had an actual

28 conflict of interest. Noble worked at a different firm than Tegtmeier

and Bednarski, and Cain cites no authority supporting a conclusion

that any conflict Bednarski had was imputed to Noble simply

because of their co-counsel relationship. See Colo. RPC 1.10(a)

(conflicts of interest may be imputed “[w]hile lawyers are associated

in a firm”); People ex rel. Peters v. Dist. Ct., 951 P.2d 926, 930 (Colo.

1998) (“[T]he ‘rule of imputed disqualification[]’ appears in Rule

1.10(a) of the Colorado Rules of Professional Conduct and requires

disqualification of all members of a law firm when any one of them

practicing alone would be disqualified because of a conflict of

interest.”); see also Smith v. Whatcott, 774 F.2d 1032, 1034 (10th

Cir. 1985) (explaining that it is a “generally stated rule that a

co-counsel relationship will not alone warrant disqualification”);

Anwar v. United States, 648 F. Supp. 820, 827 (N.D.N.Y. 1986)

(conflict of co-counsel was not imputed when the facts alleged did

“not indicate a general partnership relationship between [the

attorneys] extending beyond the representation of petitioner

himself”), aff’d, 823 F.2d 544 (2d Cir. 1987); Est. of Jones v. Beverly

Health & Rehab. Servs., Inc., 68 F. Supp. 2d 1304, 1311 (N.D. Fla.

1999) (“The fact that the two firms have associated as co-counsel

29 does not itself establish that their relationship is so close as to

impute disqualification.”).

¶ 49 Cain does not explain why he or Noble could not have

discovered the alleged instructional error anytime between 2010

and 2023. See Clouse, 74 P.3d at 341 (“[T]he justifiable excuse or

excusable neglect analysis begins with the premise that ineffective

postconviction counsel claims cannot be asserted until after timely

postconviction relief proceedings and appeals therefrom are

exhausted. Thereafter, the time to assert ineffective postconviction

counsel claims should be assessed in light of the Wiedemer

justifiable excuse or excusable neglect factors.”); Wiedemer, 852

P.2d at 441 (a defendant must account for the circumstances of the

entire period of delay from the conviction). Because Cain has not

alleged facts that, taken as true, establish justifiable excuse or

excusable neglect to allow an untimely collateral attack on his

attempted murder conviction, the postconviction court did not err

by concluding that this claim is time barred. See § 16-5-402(2);

Clouse, 74 P.3d at 340.

30 IV. Disposition

¶ 50 We affirm the postconviction court’s denial of Cain’s Crim. P.

35(c) motion.

JUDGE FREYRE and JUDGE SCHUTZ concur.