Peo v. Chavez

Opinion

23CA0079 Peo v Chavez 07-18-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0079

Arapahoe County District Court Nos. 11CR690 & 11CR770

Honorable Joseph Whitfield, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Leroy James Chavez,

Defendant-Appellant.

ORDER AFFIRMED

Division V

Opinion by JUDGE BROWN

Harris and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 18, 2024

Philip J. Weiser, Attorney General, Brittany Limes Zehner, Assistant Solicitor

General, Denver, Colorado, for Plaintiff-Appellee

Leroy James Chavez, Pro Se

1

¶ 1 Defendant, Leroy James Chavez, appeals the postconviction

court’s denial of his Crim. P. 35(c) motion alleging (1) newly

discovered evidence that an appellate judge was biased against him

and (2) ineffective assistance of counsel for failure to raise the bias

claim. We affirm.

I. Background

¶ 2 In 2011, Chavez was charged with multiple felony and

misdemeanor offenses arising from two incidents during which he

assaulted his girlfriend, who was then in the process of divorcing

her husband. The jury returned guilty verdicts on all counts.

¶ 3 On direct appeal, a divided division of this court corrected the

classification of one misdemeanor conviction but otherwise affirmed

Chavez’s convictions and sentences. People v. Chavez, (Colo. App.

No. 12CA2517, Feb. 11, 2016) (not published pursuant to C.A.R.

35(f)). Now-former Judge Laurie Booras authored the majority

opinion. After the supreme court denied Chavez’s petition for

certiorari review, the mandate issued on January 9, 2017.

¶ 4 On January 26, 2017, Chavez filed his first Crim. P. 35(c)

motion asserting several claims of ineffective assistance of trial

counsel. After an evidentiary hearing, the postconviction court

2

denied Chavez’s motion in a short oral ruling, finding that Chavez

had failed to corroborate his claims with credible evidence that his

lawyers were ineffective. Another division of this court affirmed.

People v. Chavez, (Colo. App. No. 17CA2122, June 18, 2020) (not

published pursuant to C.A.R. 35(e)). Chavez did not petition for

certiorari review, and the mandate issued on September 18, 2020.

¶ 5 Meanwhile, Judge Booras was publicly censured and resigned

in 2019, based in part on her use of inappropriate racial epithets in

communications with a romantic partner, including racially

derogatory references to a Latina colleague and her ex-husband’s

new wife, who was Native American. In re Booras, 2019 CO 16, ¶ 8.

On August 9, 2021, Chavez filed a second pro se Crim. P. 35(c)

motion, alleging that Judge Booras had been biased against him

based on his race and the similarities between her situation and the

facts of his case.

1

He argued that his claim was not time barred or

successive because postconviction appellate counsel was ineffective

1

Chavez argued that facts reported in the Denver Post article

about Judge Booras were similar to facts underlying his case —

namely, that Judge Booras’ romantic partner was trying to leave her

like he was trying to leave the victim.

3

for not raising it during his earlier Crim. P. 35(c) proceedings.

2

The

postconviction court summarily denied his motion as successive.

II. Standard of Review

¶ 6 A postconviction court may deny a Crim. P. 35(c) motion

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

establish that the allegations presented in the motion do not

warrant relief. Crim. P. 35(c)(3)(IV); Ardolino v. People, 69 P.3d 73,

77 (Colo. 2003).

¶ 7 We review de novo a postconviction court’s denial of a

defendant’s motion for postconviction relief without a hearing.

People v. Cali, 2020 CO 20, ¶ 14; see also People v. Duran, 2015

COA 141, ¶ 10 (“Whether a postconviction motion states a claim for

relief is generally a legal determination we review de novo.”). We

may affirm the court’s ruling on any ground supported by the

record, even if that ground was not articulated or considered by the

court. People v. Manyik, 2016 COA 42, ¶ 69.

2

Chavez refers to postconviction appellate counsel interchangeably

as “appellate counsel” and “postconviction counsel.” Given the

timing of his claims and the name of the attorney, Chavez must be

referring to counsel who represented him in his appeal from the

denial of his first Crim. P. 35(c) motion.

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III. Bias Claim

¶ 8 Chavez contends that Judge Booras was biased against him

on his direct appeal and that such “evidence was discovered after

the trial and could [not have] been known through due diligence.”

We conclude that his claim is time barred.

¶ 9 Postconviction motions that collaterally attack felony

convictions like Chavez’s under Crim. P. 35(c) must be filed within

three years following the conviction. § 16-5-402(1), C.R.S. 2023

(setting the time limit as three years for all felonies other than class

1 felonies). The three-year period begins once a defendant’s

conviction is final — that is, when the mandate issues after a

defendant exhausts direct appeal remedies. Hunsaker v. People,

2021 CO 83, ¶ 36; see also People v. Stanley, 169 P.3d 258, 259

(Colo. App. 2007) (“[A] conviction is final when the [state] supreme

court denies the defendant’s petition for a writ of certiorari and the

mandate issues.”).

¶ 10 Because Chavez’s conviction became final on January 9, 2017,

when the supreme court denied his petition for writ of certiorari, he

had until January 9, 2020, to file a timely Crim. P. 35(c) motion.

Chavez did not file the motion at issue until August 9, 2021.

5

¶ 11 A Rule 35(c) motion filed after the three-year period expires

must allege facts that, if true, would establish one of the exceptions

to the time limit set forth in section 16-5-402(2). See Crim. P.

35(c)(3)(I). One such exception exists for cases in which the failure

to seek timely relief was the result of circumstances amounting to

justifiable excuse or excusable neglect. § 16-5-402(2)(d). If an

untimely Rule 35(c) motion does not allege facts that would

establish justifiable excuse or excusable neglect, the postconviction

court may deny the motion without a hearing. People v. Worosello,

2019 COA 166, ¶ 35. We review de novo whether the defendant’s

motion alleged facts that, if true, constitute justifiable excuse or

excusable neglect. Id.

¶ 12 In his postconviction motion, Chavez alleged that evidence of

Judge Booras’ disciplinary proceedings became public when the

Denver Post published the disciplinary complaint against her in

March 2018. Chavez also alleged that Judge Booras was publicly

censured in March 2019. On appeal, Chavez admits that he

learned of this “new evidence” in March 2018, well within the three-

year period he had to file a timely Rule 35(c) motion. Yet Chavez

did not file his Rule 35(c) motion until August 2021 — more than a

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year and a half beyond the statutory deadline and over three years

after he learned the information about Judge Booras giving rise to

his claim of bias.

3

¶ 13 Chavez fails to explain why he was unable to file his Rule 35(c)

motion between March 2018 and January 2020, when the statutory

time period to file the motion expired. He also fails to explain the

more than three-year delay between when he learned of Judge

Booras’ misconduct and when he filed the underlying motion. See

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

“consider the circumstances existing throughout the entire period

from the inception of the conviction in question” when evaluating

justifiable excuse or excusable neglect). We conclude that Chavez

failed to allege facts that, if true, amount to justifiable excuse or

excusable neglect for the late filing. Consequently, his claim that

3

We note that Chavez did not allege any facts suggesting that

Judge Booras was biased against him specifically or committed

misconduct related to his case. See People in Interest of A.P., 2022

CO 24, ¶ 30 (“The record must clearly demonstrate the alleged

bias.”).

7

Judge Booras was biased when resolving his direct appeal is time

barred.

4

¶ 14 Nonetheless, Chavez argues that postconviction appellate

counsel was ineffective for failing to add a judicial bias claim to the

appeal of his first Crim. P. 35(c) motion. Reading his claim liberally,

see People v. Bergerud, 223 P.3d 686, 697 (Colo. 2010), we

understand Chavez to argue that he could not have known that

postconviction appellate counsel had been ineffective until the

appeal of his first Crim. P. 35(c) motion was resolved in September

2020, which amounts to justifiable excuse or excusable neglect for

not bringing that claim by January 2020. We turn to that question

next.

4

The postconviction court denied Chavez’s motion as successive

based on the court of appeals’ “affirmed judgment.” While a court

must deny as successive any claim that could have been presented

in a prior appeal or postconviction proceeding, Crim. P. 35(c)(3)(VII),

the claim in the underlying motion arguably could not have been

raised in Chavez’s direct appeal or in his 2017 postconviction

motion because evidence of Judge Booras’ misconduct was not

made public until 2018. As a result, Chavez’s motion was not

successive. We nonetheless affirm the postconviction court’s ruling

because the motion was untimely. See People v. Manyik, 2016 COA

42, ¶ 69.

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IV. Ineffective Assistance of Counsel Claim

¶ 15 Chavez contends that he received ineffective assistance of

counsel because he asked the attorney who represented him in the

appeal of his first Crim. P. 35(c) motion to add a judicial bias claim

based on Judge Booras’ misconduct, but counsel “wrote him a letter

telling him he should file a second 35(c) raising these claims, even

though his first 35(c) had not been ruled on.” Chavez contends this

advice amounts to deficient performance.

¶ 16 While ineffective assistance of counsel may constitute

justifiable excuse or excusable neglect, see People v. Valdez, 178

P.3d 1269, 1278 (Colo. App. 2007), to prevail on a claim of

ineffective assistance of counsel, a defendant must show that

(1) counsel’s performance was deficient, and (2) the deficient

performance prejudiced the defense, Strickland v. Washington, 466

U.S. 668, 687 (1984); Dunlap v. People, 173 P.3d 1054, 1062-63

(Colo. 2007).

¶ 17 Here, postconviction appellate counsel’s advice was correct.

She could not add a bias claim to the pending appeal because

Chavez had not raised the issue in his first Rule 35(c) motion.

When a defendant does not raise an issue in a postconviction

9

motion, the issue is not properly preserved for appellate review.

People v. Huggins, 2019 COA 116, ¶ 17. Indeed, had Chavez

followed postconviction appellate counsel’s advice, he could have

filed his postconviction motion before the three-year statutory

deadline expired.

5

¶ 18 Because Chavez failed to sufficiently allege deficient

performance, he failed to allege a viable claim for ineffective

assistance of counsel. See Strickland, 466 U.S. at 687.

Consequently, Chavez failed to allege any facts that would amount

to justifiable excuse or excusable neglect for not timely asserting his

claims. See Worosello, ¶ 35. As a result, the postconviction court

did not err by denying Chavez’s motion in a written order without a

hearing. See Ardolino, 69 P.3d at 77; Manyik, ¶ 69.

V. Disposition

¶ 19 The order is affirmed.

JUDGE HARRIS and JUDGE LUM concur.

5

The record is not clear as to when Chavez spoke to postconviction

appellate counsel about adding a judicial bias claim, but the appeal

of his first Crim. P. 35(c) motion was filed in November 2017 and

fully briefed by August 2019. See People v. Sa’ra, 117 P.3d 51, 56

(Colo. App. 2004) (“A court may take judicial notice of the contents

of court records in a related proceeding.”).