23CA0603 Peo v Elhoweris 02-05-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0603 Arapahoe County District Court No. 14CR1984 Honorable Ryan J. Stuart, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Amin Elhoweris,
Defendant-Appellant.
ORDER AFFIRMED
Division III Opinion by JUDGE DUNN Moultrie and Taubman*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 5, 2026
Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Zobel Law, LLC, Cassandra Zobel, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Amin Elhoweris appeals the postconviction court’s order
denying his Crim. P. 35(c) motion.1 He contends that the court
should have held an evidentiary hearing on his claim that trial
counsel was ineffective by failing to investigate and present an
intoxication defense.2 Because we conclude that Elhoweris did not
sufficiently allege prejudice, we affirm.
I. Background
¶2 For his involvement in a gang-related shooting, a grand jury
indicted Elhoweris on charges of first degree murder, two counts of
attempted first degree murder (after deliberation and extreme
indifference), and conspiracy to commit first degree murder.
1 Because the record is unclear as to whether Elhoweris’s name is
spelled with a hyphen (El-Howeris), we adopt the spelling used by both parties in this appeal.
2 As we understand it, Elhoweris appeals the denial of his first
postconviction claim, which alleged that defense counsel failed to adequately investigate and present evidence of both voluntary and involuntary intoxication. The jury, however, considered and rejected voluntary intoxication. Thus, although Elhoweris refers simply to “intoxication defense” in his briefing, because he doesn’t develop any argument specific to voluntary intoxication, we construe “intoxication defense” as referring only to involuntary intoxication.
1 ¶3 Early in the case, Elhoweris told his trial counsel that he had
taken four pills of Percocet (a pain medication) over a two-day
period before the shooting and had also smoked marijuana and
drunk alcohol on the day of the shooting. Trial counsel obtained
some medical records and went back and forth as to whether to
present an expert witness on involuntary intoxication. Though trial
counsel consulted with an expert witness, he ultimately did not call
an expert witness to testify about involuntary intoxication.
¶4 At the close of evidence, trial counsel asked for an involuntary
intoxication instruction, but the court declined because there was
“no independent evidence of involuntary intoxication.” The court
agreed, however, to instruct the jury on voluntary intoxication.
¶5 In closing, the prosecution argued Elhoweris was guilty — not
as the shooter — but under a complicity theory. Trial counsel
countered that Elhoweris did not commit these crimes, he “was just
merely present” when they happened, and he was not guilty “by
association.” He also emphasized that Elhoweris was “in and out of
it,” directed the jury to the voluntary intoxication instruction, and
argued that because Elhoweris was incapacitated through “trauma”
2 and “perhaps through other substances,” he did not have the
requisite intent.
¶6 The jury convicted Elhoweris as charged. The trial court
imposed a controlling sentence of life in prison without the
possibility of parole. A division of this court affirmed the judgment.
People v. El-Howeris, (Colo. App. No. 16CA0653, Oct. 4, 2018) (not
published pursuant to C.A.R. 35(e)).
¶7 Elhoweris then moved for postconviction relief under Crim. P.
35(c), arguing, as relevant here, that trial counsel provided
ineffective assistance by failing to “adequately investigate and
present evidence of potential defenses of voluntary and involuntary
intoxication.”
¶8 The postconviction court denied that claim without a hearing,
concluding that Elhoweris “had not pled sufficient facts to establish
the failure to investigate or present an intoxication defense would
have likely changed the outcome at trial.”
II. Discussion
¶9 Elhoweris contends that the postconviction court erred when it
denied his claim without a hearing because he says the court
“applied the wrong legal standard.” We disagree.
3 A. Standard of Review and Legal Principles
¶ 10 To state a claim for ineffective assistance of counsel, a
defendant must allege facts sufficient to show that (1) counsel’s
performance was deficient, and (2) the deficient performance
prejudiced the defense. Dunlap v. People, 173 P.3d 1054, 1062
(Colo. 2007). Under the first prong of this test, the defendant must
identify acts or omissions of counsel that “fell below an objective
standard of reasonableness.” Strickland v. Washington, 466 U.S.
668, 687-88, 690 (1984). Under the second prong, the defendant
“must assert facts that, if true, show a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” People v. Timoshchuk, 2018 COA 153,
¶ 22. “Reasonable probability means a probability sufficient to
undermine confidence in the outcome.” Id.
¶ 11 A postconviction court may deny a Crim. P. 35(c) motion
without a hearing if the motion, files, and record in the case clearly
establish that the allegations in the defendant’s motion do not
warrant postconviction relief. Ardolino v. People, 69 P.3d 73, 77
(Colo. 2003); see Crim. P. 35(c)(3)(IV). Thus, a court may deny the
motion without a hearing if, for example, the record refutes the
4 claims or if the allegations, even if true, fail to satisfy one or both
Strickland prongs. People v. Phipps, 2016 COA 190M, ¶ 19; see
People v. Duran, 2025 COA 34, ¶ 15.
¶ 12 We review de novo the denial of a Crim. P. 35(c) claim without
a hearing. People v. Cali, 2020 CO 20, ¶ 14.
B. Intoxication Defense
¶ 13 Even if we assume that Elhoweris’s postconviction motion
sufficiently alleged deficient performance with respect to
investigating and presenting an intoxication defense, we conclude
that the motion failed to sufficiently allege prejudice.
¶ 14 To be specific, the motion failed to allege facts to show a
reasonable probability that the outcome of the trial would have
been different had trial counsel investigated or presented an
intoxication defense. See Strickland, 466 U.S. at 694. What’s more,
the motion failed to allege sufficient facts to establish an
involuntary intoxication defense. That is, the motion didn’t allege
that the combination of ingesting Percocet, marijuana, and alcohol
“resulted in [Elhoweris’s] lack of capacity to conform his . . .
conduct to the requirements of law.” People v. Garcia, 113 P.3d
5 775, 783 (Colo. 2005); see also § 18-1-804, C.R.S. 2025 (explaining
and defining “[i]ntoxication”).
Free access — add to your briefcase to read the full text and ask questions with AI
23CA0603 Peo v Elhoweris 02-05-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0603 Arapahoe County District Court No. 14CR1984 Honorable Ryan J. Stuart, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Amin Elhoweris,
Defendant-Appellant.
ORDER AFFIRMED
Division III Opinion by JUDGE DUNN Moultrie and Taubman*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 5, 2026
Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Zobel Law, LLC, Cassandra Zobel, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Amin Elhoweris appeals the postconviction court’s order
denying his Crim. P. 35(c) motion.1 He contends that the court
should have held an evidentiary hearing on his claim that trial
counsel was ineffective by failing to investigate and present an
intoxication defense.2 Because we conclude that Elhoweris did not
sufficiently allege prejudice, we affirm.
I. Background
¶2 For his involvement in a gang-related shooting, a grand jury
indicted Elhoweris on charges of first degree murder, two counts of
attempted first degree murder (after deliberation and extreme
indifference), and conspiracy to commit first degree murder.
1 Because the record is unclear as to whether Elhoweris’s name is
spelled with a hyphen (El-Howeris), we adopt the spelling used by both parties in this appeal.
2 As we understand it, Elhoweris appeals the denial of his first
postconviction claim, which alleged that defense counsel failed to adequately investigate and present evidence of both voluntary and involuntary intoxication. The jury, however, considered and rejected voluntary intoxication. Thus, although Elhoweris refers simply to “intoxication defense” in his briefing, because he doesn’t develop any argument specific to voluntary intoxication, we construe “intoxication defense” as referring only to involuntary intoxication.
1 ¶3 Early in the case, Elhoweris told his trial counsel that he had
taken four pills of Percocet (a pain medication) over a two-day
period before the shooting and had also smoked marijuana and
drunk alcohol on the day of the shooting. Trial counsel obtained
some medical records and went back and forth as to whether to
present an expert witness on involuntary intoxication. Though trial
counsel consulted with an expert witness, he ultimately did not call
an expert witness to testify about involuntary intoxication.
¶4 At the close of evidence, trial counsel asked for an involuntary
intoxication instruction, but the court declined because there was
“no independent evidence of involuntary intoxication.” The court
agreed, however, to instruct the jury on voluntary intoxication.
¶5 In closing, the prosecution argued Elhoweris was guilty — not
as the shooter — but under a complicity theory. Trial counsel
countered that Elhoweris did not commit these crimes, he “was just
merely present” when they happened, and he was not guilty “by
association.” He also emphasized that Elhoweris was “in and out of
it,” directed the jury to the voluntary intoxication instruction, and
argued that because Elhoweris was incapacitated through “trauma”
2 and “perhaps through other substances,” he did not have the
requisite intent.
¶6 The jury convicted Elhoweris as charged. The trial court
imposed a controlling sentence of life in prison without the
possibility of parole. A division of this court affirmed the judgment.
People v. El-Howeris, (Colo. App. No. 16CA0653, Oct. 4, 2018) (not
published pursuant to C.A.R. 35(e)).
¶7 Elhoweris then moved for postconviction relief under Crim. P.
35(c), arguing, as relevant here, that trial counsel provided
ineffective assistance by failing to “adequately investigate and
present evidence of potential defenses of voluntary and involuntary
intoxication.”
¶8 The postconviction court denied that claim without a hearing,
concluding that Elhoweris “had not pled sufficient facts to establish
the failure to investigate or present an intoxication defense would
have likely changed the outcome at trial.”
II. Discussion
¶9 Elhoweris contends that the postconviction court erred when it
denied his claim without a hearing because he says the court
“applied the wrong legal standard.” We disagree.
3 A. Standard of Review and Legal Principles
¶ 10 To state a claim for ineffective assistance of counsel, a
defendant must allege facts sufficient to show that (1) counsel’s
performance was deficient, and (2) the deficient performance
prejudiced the defense. Dunlap v. People, 173 P.3d 1054, 1062
(Colo. 2007). Under the first prong of this test, the defendant must
identify acts or omissions of counsel that “fell below an objective
standard of reasonableness.” Strickland v. Washington, 466 U.S.
668, 687-88, 690 (1984). Under the second prong, the defendant
“must assert facts that, if true, show a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” People v. Timoshchuk, 2018 COA 153,
¶ 22. “Reasonable probability means a probability sufficient to
undermine confidence in the outcome.” Id.
¶ 11 A postconviction court may deny a Crim. P. 35(c) motion
without a hearing if the motion, files, and record in the case clearly
establish that the allegations in the defendant’s motion do not
warrant postconviction relief. Ardolino v. People, 69 P.3d 73, 77
(Colo. 2003); see Crim. P. 35(c)(3)(IV). Thus, a court may deny the
motion without a hearing if, for example, the record refutes the
4 claims or if the allegations, even if true, fail to satisfy one or both
Strickland prongs. People v. Phipps, 2016 COA 190M, ¶ 19; see
People v. Duran, 2025 COA 34, ¶ 15.
¶ 12 We review de novo the denial of a Crim. P. 35(c) claim without
a hearing. People v. Cali, 2020 CO 20, ¶ 14.
B. Intoxication Defense
¶ 13 Even if we assume that Elhoweris’s postconviction motion
sufficiently alleged deficient performance with respect to
investigating and presenting an intoxication defense, we conclude
that the motion failed to sufficiently allege prejudice.
¶ 14 To be specific, the motion failed to allege facts to show a
reasonable probability that the outcome of the trial would have
been different had trial counsel investigated or presented an
intoxication defense. See Strickland, 466 U.S. at 694. What’s more,
the motion failed to allege sufficient facts to establish an
involuntary intoxication defense. That is, the motion didn’t allege
that the combination of ingesting Percocet, marijuana, and alcohol
“resulted in [Elhoweris’s] lack of capacity to conform his . . .
conduct to the requirements of law.” People v. Garcia, 113 P.3d
5 775, 783 (Colo. 2005); see also § 18-1-804, C.R.S. 2025 (explaining
and defining “[i]ntoxication”).
¶ 15 Worse still, the motion conceded the lack of prejudice, stating
that “it was very unlikely that [Elhoweris] would be able to prevail at
trial — even if he had been able to assert an intoxication defense”;
“an intoxication defense was unlikely to succeed”; and even with
Elhoweris’s “testimony in support of an intoxication defense, he was
likely to be convicted.”
¶ 16 Because the postconviction motion not only failed to allege
Strickland prejudice but affirmatively disclaimed any prejudice
related to the purported deficiencies in not investigating and
presenting an intoxication defense, the postconviction court
properly denied this claim without a hearing. See Duran, ¶ 15.
¶ 17 We are not persuaded otherwise by Elhoweris’s insistence that
it was “not his burden” to plead “sufficient facts to establish the
failure to investigate or present an intoxication defense would have
likely changed the outcome at trial.” That is in fact what Strickland
requires. See Timoshchuk, ¶ 22; see also People v. Stovall, 2012
COA 7M, ¶ 29 (noting that the defendant has the “burden of
alleging facts that would allow the postconviction court to find that
6 he was prejudiced by counsel’s alleged failure to investigate”). And
a defendant is not entitled to a hearing unless he alleges facts that
if true would provide a basis for relief. White v. Denv. Dist. Ct., 766
P.2d 632, 635 (Colo. 1988). We therefore reject Elhoweris’s claim
that the postconviction court applied the wrong legal standard
when it denied this claim without a hearing.
C. Abandoned Claims
¶ 18 Because Elhoweris does not reassert his remaining
postconviction claims, we deem them abandoned and don’t address
them. See People v. Rodriguez, 914 P.2d 230, 249 (Colo. 1996)
(“[F]ailure to specifically reassert on this appeal all of the claims
which the district court disposed of . . . constitutes a conscious
relinquishment of those claims . . . .”).
III. Disposition
¶ 19 The order is affirmed.
JUDGE MOULTRIE and JUDGE TAUBMAN concur.