24CA0600 Peo v Close 05-14-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0600 City and County of Denver District Court No. 15CR4878 Honorable Eric M. Johnson, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
James C. Close,
Defendant-Appellant.
ORDER AFFIRMED
Division I Opinion by JUDGE DUNN J. Jones and Fox, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 14, 2026
Philip J. Weiser, Attorney General, Grant R. Fevurly, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Lauretta A. Martin Neff, Alternate Defense Counsel, Montrose, Colorado, for Defendant-Appellant ¶1 James C. Close appeals the postconviction court’s order
denying his Crim. P. 35(c) motion without a hearing and without
the appointment of postconviction counsel. He argues that his
allegations of ineffective assistance of counsel — specifically his
allegation that counsel failed to “pursue evidence of [the victim’s]
history of false reports” — are sufficient to warrant the appointment
of postconviction counsel. We affirm.
I. Factual and Procedural Background
¶2 Based on allegations that he sexually assaulted a teenager
who was living at his house, the People charged Close with sexual
assault on a child (position of trust) and sexual assault on a child
(pattern of sexual abuse).
¶3 Close did not testify at trial, but his counsel defended on the
theory that the victim fabricated the allegations. The theory of
defense was not without support. For example, the victim’s mother
testified that the victim was untruthful about “significant things”
and that throughout her life, the victim “made up allegations” to get
people in trouble. As to the last point, the victim’s mother told the
jury about false allegations the victim had made against a few
family members as well as a “boy from her school.” As to the
1 accusations against Close, the victim’s mother expressed “doubts
about what [her] daughter was saying.”
¶4 The jury convicted Close as charged, and the court sentenced
him to twelve years to life in prison. On appeal, a division of this
court affirmed the judgment of conviction. See People v. Close,
(Colo. App. No. 18CA1071, Feb. 10, 2022) (not published pursuant
to C.A.R. 35(e)).
¶5 Close filed a timely pro se Rule 35(c) motion alleging that his
trial counsel had provided ineffective assistance. He alleged that
his attorney provided ineffective assistance by (1) eliciting and
commenting on bolstering testimony; (2) failing to ask the court to
allow evidence of the victim’s history of false reporting of sexual
assaults; (3) allowing the victim’s “PTSD” testimony; (4) failing to
object to the court’s response to a jury question; and (5) failing to
raise a jurisdictional objection to a detective’s testimony. He also
alleged that counsel’s errors cumulatively resulted in ineffective
assistance. Close asked for appointment of postconviction counsel
and a hearing.
¶6 The postconviction court denied Close’s motion without
appointing counsel and without a hearing. Rejecting the claims for
2 different reasons, the court found none of them potentially
meritorious.
II. Analysis
¶7 Now represented by counsel, Close contends that his
allegations of ineffective assistance of counsel are sufficient to
warrant the appointment of postconviction counsel. Thus, he asks
us to “put the train back on the tracks at the point it got derailed”
and remand the case for appointment of postconviction counsel,
“the opportunity to supplement[]” the motion, and “reconsideration
of the merits of” the motion and any supplement “as required by the
law.”
A. Legal Principles and Standard of Review
¶8 Defendants have a constitutional right to effective assistance
of counsel. Strickland v. Washington, 466 U.S. 668, 684-86 (1984).
To demonstrate ineffective assistance of counsel, a defendant must
show that (1) counsel’s performance was deficient and (2) the
deficient performance prejudiced the defense. Id. at 687. An
ineffective assistance claim fails if the defendant is unable to satisfy
either prong. Id. at 697; see also Dunlap v. People, 173 P.3d 1054,
1062-63 (Colo. 2007) (adopting the two-prong Strickland test).
3 ¶9 To establish deficient performance, the defendant must show
that counsel’s representation “fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688. To establish
prejudice, the defendant must show that there is a reasonable
probability that, but for counsel’s errors, the result of the
proceeding would have been different. Id. at 694. A reasonable
probability means a probability sufficient to undermine confidence
in the outcome. Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003).
¶ 10 A court may deny a Rule 35(c) motion without a hearing and
without appointing counsel if the motion, files, and record in the
case clearly establish that the allegations in the defendant’s motion
do not warrant postconviction relief. Id. at 77; see also Crim. P.
35(c)(3)(IV), (V) (discussing procedure for review of Rule 35(c)
motions and when service on the prosecution and the public
defender (if counsel is requested) is required).
¶ 11 We review de novo the denial of a Rule 35(c) motion without a
hearing, People v. Cali, 2020 CO 20, ¶ 14, and may affirm a ruling
on any basis supported by the record, see People v. Glover, 2015
COA 16, ¶ 22. And while we broadly construe pro se motions to
ensure that litigants are not “denied review of important issues
4 because of their inability to articulate their argument like a lawyer,”
we may neither rewrite a pro se litigant’s motion nor act as their
advocate. Cali, ¶ 34 (citation omitted).
B. The Postconviction Court Did Not Err by Denying the Pro Se Rule 35(c) Motion
¶ 12 Close primarily argues that he adequately alleged that trial
counsel provided ineffective assistance by failing to “pursue
evidence of [the victim’s] history of false reports” and that the
postconviction court was therefore required to appoint counsel and
send his complete Rule 35(c) motion to appointed counsel for
further investigation and possible supplementation. See People v.
Segura, 2024 CO 70, ¶ 7 (holding that if “at least one claim has
arguable merit,” the postconviction court “must grant the request
for postconviction counsel and forward a complete copy of the
motion to the prosecution and [appointed counsel]”).
¶ 13 “[T]o 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.” Townsell
v. People, 2026 CO 11M, ¶ 29. That means the defendant must
“explain not only the deficiency that made his counsel ineffective
5 but also how and why, based on that deficiency, there is a
reasonable probability that the result of the proceeding would have
been different.” Id. A conclusory prejudice allegation is insufficient
to warrant appointment of postconviction counsel. Id.
Free access — add to your briefcase to read the full text and ask questions with AI
24CA0600 Peo v Close 05-14-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0600 City and County of Denver District Court No. 15CR4878 Honorable Eric M. Johnson, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
James C. Close,
Defendant-Appellant.
ORDER AFFIRMED
Division I Opinion by JUDGE DUNN J. Jones and Fox, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 14, 2026
Philip J. Weiser, Attorney General, Grant R. Fevurly, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Lauretta A. Martin Neff, Alternate Defense Counsel, Montrose, Colorado, for Defendant-Appellant ¶1 James C. Close appeals the postconviction court’s order
denying his Crim. P. 35(c) motion without a hearing and without
the appointment of postconviction counsel. He argues that his
allegations of ineffective assistance of counsel — specifically his
allegation that counsel failed to “pursue evidence of [the victim’s]
history of false reports” — are sufficient to warrant the appointment
of postconviction counsel. We affirm.
I. Factual and Procedural Background
¶2 Based on allegations that he sexually assaulted a teenager
who was living at his house, the People charged Close with sexual
assault on a child (position of trust) and sexual assault on a child
(pattern of sexual abuse).
¶3 Close did not testify at trial, but his counsel defended on the
theory that the victim fabricated the allegations. The theory of
defense was not without support. For example, the victim’s mother
testified that the victim was untruthful about “significant things”
and that throughout her life, the victim “made up allegations” to get
people in trouble. As to the last point, the victim’s mother told the
jury about false allegations the victim had made against a few
family members as well as a “boy from her school.” As to the
1 accusations against Close, the victim’s mother expressed “doubts
about what [her] daughter was saying.”
¶4 The jury convicted Close as charged, and the court sentenced
him to twelve years to life in prison. On appeal, a division of this
court affirmed the judgment of conviction. See People v. Close,
(Colo. App. No. 18CA1071, Feb. 10, 2022) (not published pursuant
to C.A.R. 35(e)).
¶5 Close filed a timely pro se Rule 35(c) motion alleging that his
trial counsel had provided ineffective assistance. He alleged that
his attorney provided ineffective assistance by (1) eliciting and
commenting on bolstering testimony; (2) failing to ask the court to
allow evidence of the victim’s history of false reporting of sexual
assaults; (3) allowing the victim’s “PTSD” testimony; (4) failing to
object to the court’s response to a jury question; and (5) failing to
raise a jurisdictional objection to a detective’s testimony. He also
alleged that counsel’s errors cumulatively resulted in ineffective
assistance. Close asked for appointment of postconviction counsel
and a hearing.
¶6 The postconviction court denied Close’s motion without
appointing counsel and without a hearing. Rejecting the claims for
2 different reasons, the court found none of them potentially
meritorious.
II. Analysis
¶7 Now represented by counsel, Close contends that his
allegations of ineffective assistance of counsel are sufficient to
warrant the appointment of postconviction counsel. Thus, he asks
us to “put the train back on the tracks at the point it got derailed”
and remand the case for appointment of postconviction counsel,
“the opportunity to supplement[]” the motion, and “reconsideration
of the merits of” the motion and any supplement “as required by the
law.”
A. Legal Principles and Standard of Review
¶8 Defendants have a constitutional right to effective assistance
of counsel. Strickland v. Washington, 466 U.S. 668, 684-86 (1984).
To demonstrate ineffective assistance of counsel, a defendant must
show that (1) counsel’s performance was deficient and (2) the
deficient performance prejudiced the defense. Id. at 687. An
ineffective assistance claim fails if the defendant is unable to satisfy
either prong. Id. at 697; see also Dunlap v. People, 173 P.3d 1054,
1062-63 (Colo. 2007) (adopting the two-prong Strickland test).
3 ¶9 To establish deficient performance, the defendant must show
that counsel’s representation “fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688. To establish
prejudice, the defendant must show that there is a reasonable
probability that, but for counsel’s errors, the result of the
proceeding would have been different. Id. at 694. A reasonable
probability means a probability sufficient to undermine confidence
in the outcome. Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003).
¶ 10 A court may deny a Rule 35(c) motion without a hearing and
without appointing counsel if the motion, files, and record in the
case clearly establish that the allegations in the defendant’s motion
do not warrant postconviction relief. Id. at 77; see also Crim. P.
35(c)(3)(IV), (V) (discussing procedure for review of Rule 35(c)
motions and when service on the prosecution and the public
defender (if counsel is requested) is required).
¶ 11 We review de novo the denial of a Rule 35(c) motion without a
hearing, People v. Cali, 2020 CO 20, ¶ 14, and may affirm a ruling
on any basis supported by the record, see People v. Glover, 2015
COA 16, ¶ 22. And while we broadly construe pro se motions to
ensure that litigants are not “denied review of important issues
4 because of their inability to articulate their argument like a lawyer,”
we may neither rewrite a pro se litigant’s motion nor act as their
advocate. Cali, ¶ 34 (citation omitted).
B. The Postconviction Court Did Not Err by Denying the Pro Se Rule 35(c) Motion
¶ 12 Close primarily argues that he adequately alleged that trial
counsel provided ineffective assistance by failing to “pursue
evidence of [the victim’s] history of false reports” and that the
postconviction court was therefore required to appoint counsel and
send his complete Rule 35(c) motion to appointed counsel for
further investigation and possible supplementation. See People v.
Segura, 2024 CO 70, ¶ 7 (holding that if “at least one claim has
arguable merit,” the postconviction court “must grant the request
for postconviction counsel and forward a complete copy of the
motion to the prosecution and [appointed counsel]”).
¶ 13 “[T]o 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.” Townsell
v. People, 2026 CO 11M, ¶ 29. That means the defendant must
“explain not only the deficiency that made his counsel ineffective
5 but also how and why, based on that deficiency, there is a
reasonable probability that the result of the proceeding would have
been different.” Id. A conclusory prejudice allegation is insufficient
to warrant appointment of postconviction counsel. Id.
¶ 14 In support of the deficient performance prong of his false
allegation claim, Close alleged that the victim “had previously
accused multiple people of committing . . . sexual assaults against
her”; these accusations were “unfounded”; the victim’s mother and
aunt made statements “show[ing]” the allegations were unfounded;
the prosecution failed to disclose an allegation of sexual assault
before the first trial; the “actions and statements do not fall under
the rape shield”; and trial counsel “knew of previous unfounded
allegations made by [the victim]” and “never requested the court
allow it be placed on the record and submitted to the jury.”
¶ 15 We agree with Close that the postconviction court
misinterpreted the deficient performance allegations. Without
reference to the allegations that the victim had a history of
“multiple” false sexual assault reports, the court considered
whether trial counsel provided ineffective assistance by failing to
ask the trial court to allow evidence of a single prior allegation of
6 sexual assault. And it concluded that “the decision not to attempt
to introduce evidence of the victim’s [singular] allegation was a
reasonable strategic decision.” But that conclusion is not exactly
tethered to what Close alleged.
¶ 16 Still, even if we assume that Close alleged sufficient facts that,
if true, show that counsel performed deficiently, his Rule 35(c)
motion failed to allege sufficient facts to demonstrate Strickland
prejudice. See Townsell, ¶¶ 29, 37. Indeed, all Close says about
the purported effect of counsel’s failure to seek admission of the
victim’s history of “multiple” false sexual assault reports is that “it
deprived Close of a defense to the charges against him.” But Close
didn’t allege any facts about what additional “defense” he would
have presented or how or why the unidentified defense would have
created a reasonable probability that the result of the proceeding
would have been different. See Strickland, 466 U.S. at 694; see also
Townsell, ¶ 37 (concluding that the district court did not err by
denying a pro se defendant’s request for postconviction counsel
when the Rule 35(c) motion did not “provide some explanation”
beyond a “conclusory statement” of prejudice). And doing so would
be difficult given that Close defended on the theory that the victim
7 fabricated the sexual assault allegations and he elicited testimony
that the victim was known to make up allegations, including a false
sexual assault allegation. The jury was unpersuaded by that
evidence.
¶ 17 Though Close briefly argues that his remaining four ineffective
assistance of counsel claims “also have merit,” they each fail for the
same reason. More specifically, to the extent that the remaining
ineffective assistance of counsel claims allege any prejudice — and
a couple of them don’t — they do so in conclusory and generic
terms. For instance, peppered throughout the Rule 35(c) motion
are general claims that counsel’s deficient performance “deprived
[Close] of a fair trial” and “lowered the burden of proof.” But none
of the remaining claims allege any facts explaining how and why —
absent the alleged deficient performance — there is a reasonable
8 probability that the outcome of the trial would have been different.1
See Townsell, ¶ 35.
¶ 18 We therefore reach the same conclusion as the postconviction
court, albeit for different reasons. Because Close’s prejudice
allegations were bare, conclusory, and vague, we affirm the denial
of the Rule 35(c) motion without the appointment of counsel and
without a hearing. See Townsell, ¶¶ 29, 37; People v. Mills, 163
P.3d 1129, 1133 (Colo. 2007).
III. Disposition
¶ 19 The order is affirmed.
JUDGE J. JONES and JUDGE FOX concur.
1 Even assuming the cumulative error doctrine applies to ineffective
assistance of counsel claims, that claim too is insufficient because Close failed to allege cumulative prejudice. That is, Close did not allege that while he may not have been prejudiced by any one of counsel’s singular deficiencies, he was nonetheless denied effective assistance of counsel because of the cumulative prejudicial effect of counsel’s errors. See Howard-Walker v. People, 2019 CO 69, ¶ 25 (“[C]umulative error involves cumulative prejudice.”).