22CA1206 Peo v Cook 10-03-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1206 Arapahoe County District Court No. 04CR3080 Honorable Ben L. Leutwyler III, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Steven Matthew Cook,
Defendant-Appellant.
ORDER AFFIRMED
Division VI Opinion by JUDGE WELLING Lipinsky and Gomez, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 3, 2024
Philip J. Weiser, Attorney General, Katherine Gillespie, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Steven Matthew Cook, Pro Se ¶1 Defendant, Steven Matthew Cook, appeals the postconviction
court’s June 3, 2022, order denying several of his requests for
postconviction relief. We affirm.
I. Background
¶2 In 2014, a jury convicted Cook of twenty-nine counts of child-
related sex offenses on retrial. On direct appeal, a division of this
court affirmed the convictions and issued its mandate on January
28, 2015. People v. Cook, 2014 COA 33 (Cook I).
¶3 In late April 2015, before he filed his first pro se petition for
postconviction relief, Cook filed a motion asking the court to
appoint postconviction counsel for him. On May 1, 2015, the court
granted Cook’s motion. Even though the court had granted his
request to appoint postconviction counsel two and a half weeks
earlier, Cook filed a pro se petition for postconviction relief on May
18, 2015. In this pro se Crim. P. 35(c) motion, Cook alleged, among
other things, that trial counsel rendered ineffective assistance by
failing to present an alibi and alternate suspect defense focusing on
R.R. as the perpetrator. Three days after Cook filed his May 2015
pro se Crim. P. 35(c) motion, the postconviction court summarily
1 denied it, “except to the extent that post-conviction counsel finds
grounds for relief that haven’t been previously addressed.”
¶4 On October 28, 2016, Cook’s court-appointed postconviction
counsel filed a Crim. P. 35(c) motion. In that motion,
postconviction counsel raised two claims for relief but didn’t
reassert any of the contentions that Cook raised in his May 2015
pro se Crim. P. 35(c) motion. The postconviction court summarily
denied one of the claims in counsel’s Crim. P. 35(c) motion without
a hearing and denied the other claim after an evidentiary hearing.
¶5 In August 2017, Cook appealed, contending the postconviction
court erred by denying the claims raised in counsel’s October 2016
Crim. P. 35(c) motion. Cook didn’t challenge the court’s summary
disposition of the claims he raised in his May 2015 pro se Crim.
P. 35(c) motion. People v. Cook, (Colo. App. No. 17CA1355, Nov. 19,
2020) (not published pursuant to C.A.R. 35(e)) (Cook II). The
division affirmed. Id.
¶6 While Cook II was pending, Cook filed several more pro se
postconviction motions. On May 9, 2017, Cook filed a pro se
motion seeking postconviction DNA testing. In this motion, Cook
argued that DNA samples collected during the initial investigation
2 that weren’t tested “could have possibly belonged to [R.R.] or to
another suspect,” effectively reraising issues around trial counsel’s
failure to pursue an alternate suspect defense. The court declined
to take action on Cook’s motion because he was represented by
counsel at the time, noting that “[t]he Court will not consider pro se
motions filed by [Cook] while he is represented.”
¶7 On January 30, 2018, also while the appeal in Cook II was
pending, Cook filed another pro se Crim. P. 35(c) motion, in which
he argued, among other things, that his appointed direct appeal
counsel rendered ineffective assistance because he failed to raise
the issue that DNA evidence of alternative suspects should have
been pursued at trial. The court issued an order stating that, due
to the pendency of the appeal in Cook II, it didn’t have jurisdiction
to consider Cook’s January 2018 Crim. P. 35(c) motion and would
thus take “no further action on [it].”
¶8 While Cook II was still pending, Cook filed two pro se motions
for clarification — one in December 2020 and the other in January
2021 — seeking an update on the status of his January 2018 pro se
Crim. P. 35(c) motion. The court issued an order on January 26,
3 2021, stating that it “can take no action . . . until the case is
returned to the district court by the court of appeals.”
¶9 The court of appeals issued its mandate in Cook II on April 14,
2021.
¶ 10 On May 17, 2021, Cook filed a pro se motion to correct an
illegal sentence pursuant to Crim. P. 35(a). Finding that Cook
didn’t allege that his sentence was illegal under the law or illegally
imposed, the postconviction court analyzed Cook’s Crim. P. 35(a)
motion as a Crim. P. 35(c) motion. The postconviction court denied
the motion without a hearing, and Cook appealed that decision.
¶ 11 On October 19, 2021, Cook filed his fourth pro se Crim.
P. 35(c) motion. In that motion, he asserted ten claims, including
that postconviction counsel rendered ineffective assistance because
she didn’t reassert the claims raised in his May 2015 pro se Crim.
P. 35(c) motion, including his claim that trial counsel failed to
investigate alibi and alternate suspect defenses focusing on R.R.
On October 21, 2021, the postconviction court entered an order
noting that “the record is clear” that Cook’s October 2021 pro se
Crim. P. 35(c) motion “should be denied as a successive
postconviction claim,” but stating that it couldn’t take any formal
4 action on such motion because of the pendency of Cook’s appeal of
the denial of his pro se Crim. P. 35(a) motion.
¶ 12 On October 25, 2021, Cook filed a “request to obtain a ruling
and order on outstanding Crim. P. 35(c) motions,” arguing, among
other things, that the claims from his May 2015 pro se Crim.
P. 35(c) motion should proceed to an evidentiary hearing. Two days
later, the postconviction court entered an order noting that it was
taking “no action” on Cook’s October 25 request because his appeal
of the denial of his Crim. P. 35(a) motion was still pending and,
therefore, the court didn’t have jurisdiction to rule on the request.
¶ 13 In early March 2022, Cook filed a motion and supporting
affidavit to dismiss his Crim P. 35(a) appeal, and this court
dismissed that appeal on March 22, 2022.
¶ 14 On April 7, 2022, Cook refiled his “request to obtain a ruling
and order on his outstanding post-conviction motions alleging
ineffective assistance of trial, appellate, and postconviction counsel
pursuant to Crim. P. 35(c).” On April 15, 2022, Cook filed a
“request to obtain a ruling and order on his outstanding post-
conviction motion for DNA testing and appointment of counsel.” On
May 26, 2022, Cook filed a “request for status on [his] motion to
5 obtain a ruling and order on outstanding postconviction motions
alleging ineffective assistance of trial, appellate, and postconviction
counsel and to obtain additional DNA testing.”
¶ 15 On June 3, 2022, the postconviction court issued a thorough
nineteen-page written order addressing the three requests that
Cook filed in April and May 2022. In it, the postconviction court
denied Cook any postconviction relief without a hearing or
appointing counsel.
II. General Legal Principles and Standard of Review Applicable to Ineffective Assistance of Counsel Claims
¶ 16 To succeed on a Crim. P. 35(c) ineffective assistance of counsel
claim, a defendant must show by a preponderance of the evidence
that (1) counsel performed deficiently and (2) counsel’s deficient
performance prejudiced the defendant. People v. Chalchi-Sevilla,
2019 COA 75, ¶ 6 (citing Strickland v. Washington, 466 U.S. 668,
688 (1984)). To satisfy the deficiency prong, a defendant must
show that counsel’s performance “fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688. Whether counsel
acted reasonably during the representation is measured by the
totality of the circumstances and then-existing prevailing
6 professional standards. See Davis v. People, 871 P.2d 769, 772
(Colo. 1994) (citing Strickland, 466 U.S. at 688-90). Generally,
there is a strong presumption that counsel’s decisions fell within a
wide range of reasonable possibilities. See Dunlap v. People, 173
P.3d 1054, 1063 (Colo. 2007) (citing Strickland, 466 U.S. at 689).
To establish prejudice, a defendant must demonstrate that, but for
counsel’s deficient conduct, there is a reasonable probability that
the outcome of the proceeding would’ve been different. See Davis,
871 P.2d at 772.
¶ 17 A Crim. P. 35(c) claim is considered successive when a
defendant has raised and a postconviction court has resolved the
claim, or when a defendant could have raised the claim in a prior
appeal or postconviction proceeding and didn’t do so. Crim. P.
35(c)(3)(VI), (VII).
¶ 18 Whether a Crim. P. 35(c) motion sufficiently states a claim for
relief is a legal determination. People v. Long, 126 P.3d 284, 286
(Colo. App. 2005). Accordingly, we review de novo a postconviction
court’s denial of a Crim. P. 35(c) motion without a hearing. People
v. Wilson, 397 P.3d 1090, 1094 (Colo. App. 2011) (citing Long, 126
P.3d at 286), aff’d, 2015 CO 37. We may affirm a postconviction
7 court’s decision on any grounds supported by the record, even if
those grounds differ from those on which the postconviction court
relied. See People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006);
People v. Dyer, 2019 COA 161, ¶ 39.
III. Analysis
¶ 19 On appeal, Cook argues, among other contentions, that he is
entitled to a hearing on his alternate suspect claim (which he first
advanced in his May 2015 pro se Crim. P. 35(c) motion). It appears
that Cook packages his alternate-suspect Crim. P. 35(c) claim as
four distinct ineffective assistance of counsel claims. Those claims,
as best we can discern them, are: (1) trial counsel rendered
ineffective assistance by failing to raise an alternate suspect defense
focusing on R.R.; (2) direct appeal counsel rendered ineffective
assistance by failing to raise the issue that DNA evidence of an
alternate suspect should have been pursued, effectively reraising
the alternate suspect defense issue; (3) postconviction counsel
rendered ineffective assistance because she didn’t reraise his
original Crim. P. 35(c) claims from his May 2015 motion, including
his claim about the alternate suspect defense; and
(4) postconviction appellate counsel rendered ineffective assistance
8 because she was required to reraise the Crim. P. 35(c) claims from
his May 2015 motion, including his claim about the alternate
suspect defense, as required, he says, by this court’s decisions in
People v. Smith, 2022 COA 56 (Smith I), rev’d, 2024 CO 3 (Smith II),
and People v. Nozolino, 2023 COA 39.
¶ 20 Cook’s alternate-suspect Crim. P. 35(c) claim, in any iteration,
never proceeded to a hearing, so we review its denial, in each of its
iterations, de novo. See Long, 126 P.3d at 286.
A. Ineffective Assistance of Trial Counsel
¶ 21 In his May 2015 pro se Crim. P. 35(c) motion, Cook alleged
that trial counsel rendered ineffective assistance by failing to
present an alibi or alternate suspect defense focusing on R.R. The
postconviction court summarily denied this claim because Cook
had been appointed counsel before he filed his motion. We discern
no error.
¶ 22 Courts routinely decline to consider pro se pleadings filed by
represented defendants because “[a] defendant . . . does not have a
right to demand ‘hybrid’ or mixed representation.” People v.
Arguello, 772 P.2d 87, 92 (Colo. 1989). When a represented
defendant files a pro se pleading, “a court . . . may ignore [it].”
9 People v. Gess, 250 P.3d 734, 737 (Colo. App. 2010); see also People
v. Plancarte, 232 P.3d 186, 194 (Colo. App. 2009) (“[T]he court does
not consider pro se pleadings filed by represented parties.”).
¶ 23 Cook filed his first pro se Crim. P. 35(c) motion on May 18,
2015, seventeen days after the court appointed him counsel at his
request. Accordingly, Cook had appointed counsel when he filed
his May 2015 pro se Crim. P. 35(c) motion and the postconviction
court didn’t have an obligation to consider it. See Gess, 250 P.3d at
737. Thus, we conclude that the postconviction court properly
denied Cook’s May 2015 pro se Crim. P. 35(c) motion without a
hearing. And the postconviction court properly denied as
successive Cook’s attempt to revive his May 2015 pro se Crim.
P. 35(c) motion as an ineffective assistance of trial counsel claim.
See Crim. P. 35(c)(3)(VI).
B. Ineffective Assistance of Direct Appeal Counsel
¶ 24 In his January 2018 pro se Crim. P. 35(c) motion, Cook argued
that direct appeal counsel rendered ineffective assistance by failing
to argue that alternate suspect DNA evidence should have been
admitted at trial. The postconviction court denied this claim as
successive. Again, we discern no error.
10 ¶ 25 The Strickland standard for ineffective assistance of counsel
also applies to an ineffective assistance of appellate counsel claim.
People v. Dunlap, 124 P.3d 780, 795 (Colo. App. 2004). But to
proceed to a hearing on an ineffective assistance of appellate
counsel claim, a defendant must also allege that the “ignored issues
are clearly stronger than those presented” by appellate counsel to
overcome the presumption in favor of effective assistance. People v.
Trujillo, 169 P.3d 235, 238 (Colo. App. 2007).
¶ 26 Cook’s court-appointed postconviction counsel didn’t include
this claim against direct appeal counsel in counsel’s October 2016
Crim. P. 35(c) motion. As the postconviction court correctly held,
the claim is therefore barred as successive under Crim. P.
35(c)(3)(VI) because it could have been, but wasn’t, raised in a prior
motion for postconviction relief. Accordingly, the postconviction
court correctly denied Cook’s ineffective assistance of direct appeal
counsel claim.
¶ 27 Further, even if this claim isn’t barred as successive, the
postconviction court still properly denied it without a hearing for
two independent reasons. First, Cook can’t overcome Strickland’s
deficient performance prong because the record indicates that
11 direct appeal counsel argued that the court’s ruling on alternate
suspect DNA evidence was erroneous, as evidenced by Cook I, ¶¶
44-45. (Further, for this same reason it couldn’t have been
deficient performance by postconviction counsel to fail to assert this
claim of deficient performance of direct appeal counsel.) Second,
Cook failed to adequately plead an ineffective assistance of direct
appeal counsel claim; to state a claim for ineffective assistance of
direct appeal counsel, Cook also needed to assert that the allegedly
“ignored” claim that alternate suspect DNA evidence should have
been pursued at trial was stronger than the claims that direct
appeal counsel pursued. See Trujillo, 169 P.3d at 238. But Cook
failed to do so in his January 2018 pro se Crim. P. 35(c) motion.
C. Ineffective Assistance of Postconviction Counsel
¶ 28 In his October 2021 pro se Crim. P. 35(c) motion, Cook
contends that his postconviction counsel rendered ineffective
assistance by failing to reraise the claims in his May 2015 pro se
Crim. P. 35(c) motion, including the claim that trial counsel failed to
present an alibi or alternate suspect defense focusing on R.R. In its
June 3, 2022 order, the postconviction court denied the claim as
“duplicative of post-conviction claims that [Cook] has previously
12 raised, and which have been previously [considered and] denied”
either by the postconviction court or the court of appeals in Cook I.
The postconviction court further observed, “That [Cook] now
attempts to repackage these claims as ineffective assistance of post-
conviction counsel does not change the fact that [Cook] has
repeatedly raised these same underlying issues.” We agree with the
postconviction court’s decision to deny this claim without a hearing,
albeit for a reason other than successiveness.
¶ 29 Even assuming that repackaging Cook’s original pro se
ineffective assistance of trial counsel claim as a claim for ineffective
assistance of postconviction counsel for abandoning the original
claim can successfully evade the successiveness bar, see People v.
Clouse, 74 P.3d 336, 341 (Colo. App. 2002) (a claim of ineffective
assistance of postconviction counsel isn’t successive to a
defendant’s first postconviction motion), the court properly denied
Cook’s repackaged ineffective assistance of postconviction counsel
claim without a hearing. This is because Cook didn’t adequately
plead either prong of Strickland as it pertains to ineffective
assistance of postconviction counsel, see Silva v. People, 156 P.3d
13 1164, 1169 (Colo. 2007) (the two-prong Strickland test applies to
claims of ineffective assistance of postconviction counsel).
¶ 30 Cook’s May 2021 pro se motion makes the conclusory
statement that “[p]ost[]conviction counsel was ineffective for failing
to investigate claims brought in [Cook’s] original [Crim. P.] 35(c)
filing and abandoning issues from original filing.” He then goes on
to explain, again in general terms, that he didn’t want his
postconviction counsel to abandon these claims but counsel did so
anyway. Based on this, he asserts that his “[p]ost[]conviction
counsel was clearly ineffective for not investigating all original 35(c)
claims.”
¶ 31 These conclusory allegations aren’t sufficient to adequately
state a colorable claim for ineffective assistance of postconviction
counsel. See, e.g., People v. Lopez, 2015 COA 45, ¶ 58 (“Bare or
conclusory allegations without supporting detail do not warrant an
evidentiary hearing.”); People v. Osorio, 170 P.3d 796, 800 (Colo.
App. 2007). Cook doesn’t explain which of the claims his
postconviction counsel should have investigated, describe any
investigatory steps postconviction counsel should have taken, or
indicate what any such investigation may have yielded. This failure
14 to provide any detail warrants denial of the claim without a hearing.
See, e.g., People v. Zuniga, 80 P.3d 965, 973 (Colo. App. 2003).
¶ 32 Nor does Cook explain how he was prejudiced by
postconviction counsel’s alleged failure to investigate. Presumably,
the prejudice is that, had postconviction counsel conducted an
additional (but unspecified) investigation into one or more of the
abandoned claims, postconviction counsel would have asserted
such claim and there is a reasonable probability that such a claim
would have succeeded in securing postconviction relief. But Cook’s
October 2021 pro se motion lacks any explanation or factual
allegations supporting any of the links in this causal chain.
¶ 33 Simply put, a general and conclusory assertion that counsel
should have investigated five pro se claims that counsel abandoned
isn’t adequate to state a colorable claim of ineffective assistance of
postconviction counsel. To conclude otherwise would “lead to
infinite post-conviction proceedings,” Silva, 156 P.3d at 1169, by
permitting a defendant to repackage a plainly successive ineffective
assistance of counsel claim as an ineffective assistance of
postconviction counsel claim. Accordingly, the court properly
denied Cook’s claim for ineffective assistance of postconviction
15 counsel without a hearing. See Aarness, 150 P.3d at 1277; Dyer,
¶ 39.
D. Ineffective Assistance of Postconviction Appellate Counsel Under Smith I and Nozolino
¶ 34 Finally, Cook contends that, under Smith I and Nozolino, he is
entitled to an evidentiary hearing on his alternate suspect claim
because he never waived that claim and the postconviction court
never properly considered its merits. He appears to contend that
postconviction appellate counsel was ineffective by failing to raise
this contention. However it’s packaged, we disagree that there is a
Smith or Nozolino problem anywhere in these proceedings.
¶ 35 In Smith I, a division of this court held that, when a
postconviction court appoints counsel to represent a defendant in
postconviction proceedings after the defendant filed a pro se Crim.
P. 35(c) motion, and appointed counsel files a supplemental Crim.
P. 35(c) motion that fails to include some of the defendant’s pro se
claims, a postconviction court can dispose of a defendant’s pro se
claims only when there has been a finding of waiver. Smith I, ¶ 14.
¶ 36 But the supreme court reversed Smith I, holding that so long
as an appointed attorney doesn’t abandon all of a defendant’s
16 postconviction claims, an attorney isn’t required “to obtain her
client’s informed consent regarding strategic or tactical decisions,
including as to which individual claims to raise or to abandon in
pursuing a Crim. P. 35(c) motion.” Smith II, ¶ 29. Indeed, as to
deciding which postconviction claims to pursue, “an attorney has
the authority to make tactical decisions with which the client
disagrees.” Id. (citing Arko v. People, 183 P.3d 555, 558 (Colo.
2008)).
¶ 37 In other words, appointed counsel, as captain of the
postconviction ship, has the authority to decide which
postconviction claims to pursue and which to abandon without
obtaining the defendant’s approval, “much less his informed
consent,” so long as counsel doesn’t move to dismiss defendant’s
Crim. P. 35(c) motion in full. Id. at ¶ 30. Thus, there was nothing
improper about appointed counsel declining to pursue any of the
claims asserted in Cook’s May 2015 pro se Crim. P. 35(c) motion
without obtaining his consent.
¶ 38 Cook’s reliance on Nozolino doesn’t fare any better. In
Nozolino, the postconviction court summarily denied most of the
defendant’s pro se Crim. P. 35(c) claims before appointing counsel,
17 and it appointed counsel specifically to represent the defendant on
just the surviving claims. Nozolino, ¶ 11. The division held that the
postconviction court didn’t follow the procedures of Crim.
P. 35(c)(3)(V) because the rule requires that counsel be appointed
before any denial of pro se claims if any one of the claims is
potentially meritorious. Nozolino, ¶¶ 16, 28. Cook, however, was
appointed postconviction counsel before he asserted any
postconviction claims. And the postconviction court, in denying
Cook’s May 2015 pro se Crim. P. 35(c) motion, made clear that it
was denying those claims “except to the extent that post-conviction
counsel finds grounds for relief that haven’t been previously
addressed.” In other words, appointed postconviction counsel had
unfettered latitude to assert any claims counsel thought
meritorious, including the claims in Cook’s May 2015 pro se Crim.
P. 35(c) motion. Thus, Nozolino doesn’t provide Cook with any basis
for relief.
IV. Disposition
¶ 39 For the reasons set forth above, the postconviction court’s
June 3, 2022, order is affirmed.
JUDGE LIPINSKY and JUDGE GOMEZ concur.