24CA2177 Peo v Gray 05-14-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA2177 Larimer County District Court No. 15CR926 Honorable Stephen J. Jouard, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Eric David Gray,
Defendant-Appellant.
ORDER AFFIRMED
Division A Opinion by CHIEF JUDGE ROMÁN Martinez*, and Hawthorne*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 14, 2026
Philip J. Weiser, Attorney General, Paul Koehler, Senior Counsel, Denver, Colorado for Plaintiff-Appellee
Eric David Gray, Pro Se
*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 Eric David Gray appeals the district court’s order denying his
Crim. P. 35(c) motion without a hearing. We affirm.
I. Background
¶2 The prosecution charged Gray with first degree murder after
he shot and killed a neighboring landowner, Gerald Donovan. At
trial, the prosecution presented evidence that Gray and Donovan
had been engaged in a longstanding property dispute, and the two
had argued on the day of the shooting because Gray’s trailer was
parked partially in the road. Gray entered his house to retrieve a
rifle, and when Donovan walked onto Gray’s driveway, Gray shot
him.
¶3 Gray put forth a hybrid theory of defense. He argued that he
did not form the requisite mental state for first degree murder
because he was experiencing persecutory delusions and paranoia
and genuinely feared that Donovan had a gun — thus, in his mind,
he was acting in self-defense. He called several experts who
testified that he indeed had a mental illness that caused delusions
and paranoia. The jury was instructed on self-defense as well as
the elements of first degree murder, second degree murder, and
manslaughter. It found Gray guilty of first degree murder.
1 ¶4 Gray appealed the judgment of conviction, challenging the trial
court’s rejection of five tendered jury instructions and two of its
evidentiary rulings. A division of this court affirmed. People v.
Gray, (Colo. App. No. 18CA2432, July 28, 2022) (not published
pursuant to C.A.R. 35(e)).
¶5 Gray timely filed a pro se Crim. P. 35(c) motion raising twenty
claims. The postconviction court appointed counsel to supplement
the motion and ordered the prosecution to respond. After reviewing
the parties’ submissions, including their attached exhibits, the
court denied Gray’s motion in a lengthy written order without
granting a hearing.
II. Discussion
¶6 Acting pro se, Gray appeals the postconviction court’s ruling
as to seven of his claims. He contends that the district court erred
by denying his motion and not holding an evidentiary hearing. We
disagree.
A. Standard of Review
¶7 We review de novo a postconviction court’s denial of a Crim. P.
35(c) motion without a hearing. See People v. Marquez, 2020 COA
170M, ¶ 17. When a court determines that a pro se motion is not
2 wholly unfounded, appoints counsel, and orders a response from
the prosecution, it may deny the motion without an evidentiary
hearing if, “‘based on the pleadings,’ it is appropriate to enter a
ruling without holding a hearing.” People v. Martinez, 2026 COA 7,
¶ 10 (quoting Crim P. 35(c)(3)(V)); see People v. Segura, 2024 CO 70,
¶ 4.
¶8 We may affirm the postconviction court’s ruling on any ground
supported by the record. People v. Cooper, 2023 COA 113, ¶ 7.
B. Successive Claims
¶9 First, Gray claimed that he is entitled to postconviction relief
because (1) the jurors could not hear his trial proceedings; (2) the
prosecutor lied about two facets of evidence during
cross-examination and closing argument; and (3) the trial court
erroneously admitted unfairly prejudicial gun evidence that police
had unconstitutionally seized from his home. Each of these claims
could have been raised on direct appeal.
¶ 10 A postconviction court must “deny any claim that could have
been presented in an appeal previously brought.” People v. Houser,
2020 COA 128, ¶ 15 (quoting Crim. P. 35(c)(3)(VII)). This bar on
successive claims provides five exceptions, including one for claims
3 “where an objective factor, external to the defense and not
attributable to the defendant, made raising the claim
impracticable.” Crim. P. 35(c)(3)(VII)(e).
¶ 11 Gray’s motion did not allege that any exceptions apply to the
bar on his three successive claims. However, on appeal, Gray
argues that an exception applies to his gun evidence claim — that it
would have been impracticable to raise that claim on direct appeal
due to an insufficient appellate record. We do not address Gray’s
attempt, in his appellate brief, to fortify a claim inadequately
presented in his motion. See People v. Rodriguez, 914 P.2d 230,
251 (Colo. 1996).
¶ 12 Because these three claims are successive, and Gray’s motion
did not allege that any exceptions to the successiveness bar applied,
the postconviction court was required to deny the claims. See
Crim. P. 35(c)(3)(VII). It did not err in doing so.
C. Ineffective Assistance of Counsel Claims
¶ 13 Next, Gray claimed that his trial counsel was ineffective for
failing to (1) poll the jury; (2) call Gray’s brother as a witness; (3)
show that Gray’s alleged fear of Donovan was grounded in the
reality of their longstanding property dispute, in addition to his
4 mental-illness-related perceptions; and (4) show that Donovan was
trespassing on Gray’s property when he was shot, for the purpose of
establishing a defense-of-premises defense.
¶ 14 To sufficiently allege an ineffective assistance of counsel claim,
a defendant must (1) “identify the acts or omissions of counsel that
are alleged not to have been the result of reasonable professional
judgment” (the deficient performance prong), Strickland v.
Washington, 466 U.S. 668, 690 (1984); and (2) “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” (the prejudice prong), People v. Timoshchuk, 2018 COA
153, ¶ 22.
¶ 15 A postconviction court may deny an ineffective assistance
claim without conducting a hearing when the supporting allegations
are bare and conclusory; when the defendant fails to allege facts
that, if taken as true, would satisfy both Strickland prongs; or when
the record directly refutes the claim. People v. Duran, 2015 COA
141, ¶ 9; see Crim. P. 35(c)(3)(IV). However, when a defendant
alleges sufficient facts that, if true, may warrant relief, the court
5 must hold an evidentiary hearing. People v. Chalchi-Sevilla, 2019
COA 75, ¶ 7; see Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003).
¶ 16 Gray did not allege any prejudice related to his first two
ineffective assistance claims — that counsel failed to poll the jury
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24CA2177 Peo v Gray 05-14-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA2177 Larimer County District Court No. 15CR926 Honorable Stephen J. Jouard, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Eric David Gray,
Defendant-Appellant.
ORDER AFFIRMED
Division A Opinion by CHIEF JUDGE ROMÁN Martinez*, and Hawthorne*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 14, 2026
Philip J. Weiser, Attorney General, Paul Koehler, Senior Counsel, Denver, Colorado for Plaintiff-Appellee
Eric David Gray, Pro Se
*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 Eric David Gray appeals the district court’s order denying his
Crim. P. 35(c) motion without a hearing. We affirm.
I. Background
¶2 The prosecution charged Gray with first degree murder after
he shot and killed a neighboring landowner, Gerald Donovan. At
trial, the prosecution presented evidence that Gray and Donovan
had been engaged in a longstanding property dispute, and the two
had argued on the day of the shooting because Gray’s trailer was
parked partially in the road. Gray entered his house to retrieve a
rifle, and when Donovan walked onto Gray’s driveway, Gray shot
him.
¶3 Gray put forth a hybrid theory of defense. He argued that he
did not form the requisite mental state for first degree murder
because he was experiencing persecutory delusions and paranoia
and genuinely feared that Donovan had a gun — thus, in his mind,
he was acting in self-defense. He called several experts who
testified that he indeed had a mental illness that caused delusions
and paranoia. The jury was instructed on self-defense as well as
the elements of first degree murder, second degree murder, and
manslaughter. It found Gray guilty of first degree murder.
1 ¶4 Gray appealed the judgment of conviction, challenging the trial
court’s rejection of five tendered jury instructions and two of its
evidentiary rulings. A division of this court affirmed. People v.
Gray, (Colo. App. No. 18CA2432, July 28, 2022) (not published
pursuant to C.A.R. 35(e)).
¶5 Gray timely filed a pro se Crim. P. 35(c) motion raising twenty
claims. The postconviction court appointed counsel to supplement
the motion and ordered the prosecution to respond. After reviewing
the parties’ submissions, including their attached exhibits, the
court denied Gray’s motion in a lengthy written order without
granting a hearing.
II. Discussion
¶6 Acting pro se, Gray appeals the postconviction court’s ruling
as to seven of his claims. He contends that the district court erred
by denying his motion and not holding an evidentiary hearing. We
disagree.
A. Standard of Review
¶7 We review de novo a postconviction court’s denial of a Crim. P.
35(c) motion without a hearing. See People v. Marquez, 2020 COA
170M, ¶ 17. When a court determines that a pro se motion is not
2 wholly unfounded, appoints counsel, and orders a response from
the prosecution, it may deny the motion without an evidentiary
hearing if, “‘based on the pleadings,’ it is appropriate to enter a
ruling without holding a hearing.” People v. Martinez, 2026 COA 7,
¶ 10 (quoting Crim P. 35(c)(3)(V)); see People v. Segura, 2024 CO 70,
¶ 4.
¶8 We may affirm the postconviction court’s ruling on any ground
supported by the record. People v. Cooper, 2023 COA 113, ¶ 7.
B. Successive Claims
¶9 First, Gray claimed that he is entitled to postconviction relief
because (1) the jurors could not hear his trial proceedings; (2) the
prosecutor lied about two facets of evidence during
cross-examination and closing argument; and (3) the trial court
erroneously admitted unfairly prejudicial gun evidence that police
had unconstitutionally seized from his home. Each of these claims
could have been raised on direct appeal.
¶ 10 A postconviction court must “deny any claim that could have
been presented in an appeal previously brought.” People v. Houser,
2020 COA 128, ¶ 15 (quoting Crim. P. 35(c)(3)(VII)). This bar on
successive claims provides five exceptions, including one for claims
3 “where an objective factor, external to the defense and not
attributable to the defendant, made raising the claim
impracticable.” Crim. P. 35(c)(3)(VII)(e).
¶ 11 Gray’s motion did not allege that any exceptions apply to the
bar on his three successive claims. However, on appeal, Gray
argues that an exception applies to his gun evidence claim — that it
would have been impracticable to raise that claim on direct appeal
due to an insufficient appellate record. We do not address Gray’s
attempt, in his appellate brief, to fortify a claim inadequately
presented in his motion. See People v. Rodriguez, 914 P.2d 230,
251 (Colo. 1996).
¶ 12 Because these three claims are successive, and Gray’s motion
did not allege that any exceptions to the successiveness bar applied,
the postconviction court was required to deny the claims. See
Crim. P. 35(c)(3)(VII). It did not err in doing so.
C. Ineffective Assistance of Counsel Claims
¶ 13 Next, Gray claimed that his trial counsel was ineffective for
failing to (1) poll the jury; (2) call Gray’s brother as a witness; (3)
show that Gray’s alleged fear of Donovan was grounded in the
reality of their longstanding property dispute, in addition to his
4 mental-illness-related perceptions; and (4) show that Donovan was
trespassing on Gray’s property when he was shot, for the purpose of
establishing a defense-of-premises defense.
¶ 14 To sufficiently allege an ineffective assistance of counsel claim,
a defendant must (1) “identify the acts or omissions of counsel that
are alleged not to have been the result of reasonable professional
judgment” (the deficient performance prong), Strickland v.
Washington, 466 U.S. 668, 690 (1984); and (2) “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” (the prejudice prong), People v. Timoshchuk, 2018 COA
153, ¶ 22.
¶ 15 A postconviction court may deny an ineffective assistance
claim without conducting a hearing when the supporting allegations
are bare and conclusory; when the defendant fails to allege facts
that, if taken as true, would satisfy both Strickland prongs; or when
the record directly refutes the claim. People v. Duran, 2015 COA
141, ¶ 9; see Crim. P. 35(c)(3)(IV). However, when a defendant
alleges sufficient facts that, if true, may warrant relief, the court
5 must hold an evidentiary hearing. People v. Chalchi-Sevilla, 2019
COA 75, ¶ 7; see Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003).
¶ 16 Gray did not allege any prejudice related to his first two
ineffective assistance claims — that counsel failed to poll the jury
and to call his brother as a witness. Because his motion was devoid
of facts supporting Strickland’s prejudice prong for these claims, the
district court properly denied them without a hearing.
¶ 17 For his third ineffective assistance claim — that counsel failed
to show how his history with Donovan caused a heightened sense of
fear — Gray alleged prejudice only as follows: “the outcome of the
trial probably would have been different had the jury been made
aware of the reasons for Gray’s fear.” This bare and conclusory
statement of prejudice is insufficient to warrant a hearing. See
Townsell v. People, 2026 CO 11M, ¶ 34 (“While a defendant need
not use particular words [to allege Strickland prejudice], he must do
more than make conclusory allegations.”). Moreover, the record
shows that the jury heard substantial evidence showing that Gray’s
strained relationship with Donovan could have contributed to his
perceptions and fear on the day of the shooting. Counsel also
argued in closing that Gray’s prior experiences with Donavan had
6 affected his perceptions. For these reasons, Gray’s third ineffective
assistance of counsel claim did not warrant a hearing.
¶ 18 As we understand Gray’s Strickland allegations for his final
ineffective assistance claim, Gray alleged that (1) counsel’s
performance was deficient because they did not produce several
exhibits showing that Donovan was trespassing on Gray’s property
when he was shot; and (2) if counsel had shown that evidence, the
trial court would have allowed a defense-of-premises defense,
creating a reasonable probability that the jury would have found
him guilty of a lesser offense. However, the record demonstrates
that the trial court rejected a defense-of-premises defense based on
statutory limitations unrelated to whether Donovan was
trespassing. Assuming that Donovan was on Gray’s property when
he was shot, the court reasoned that the alleged circumstances did
not meet the criteria for the justifiable use of deadly force (1) in
defense of premises, which requires a reasonable belief that the
trespasser is attempting first degree arson, see § 18-1-705, C.R.S.
2025; or (2) against an intruder, which requires unlawful entry into
a dwelling, see § 18-1-704.5, C.R.S. 2025.
7 ¶ 19 Because the record refutes Gray’s allegation that the result of
the proceeding would have been different if his counsel had
introduced evidence of Donovan’s location at the time of the
shooting, we conclude that the postconviction court appropriately
denied this claim without a hearing. See People v. McDowell, 219
P.3d 332, 340 (Colo. App. 2009) (concluding that the defendant
could not have been prejudiced by trial counsel’s failure to raise a
defense that would not have succeeded).
III. Disposition
¶ 20 The order is affirmed.
JUSTICE MARTINEZ and JUDGE HAWTHORNE concur.