The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY August 1, 2019
2019COA116
No. 16CA1709, Peo v Huggins — Criminal Procedure — Postconviction Remedies; Attorneys and Clients — Ineffective Assistance of Counsel — Conflicts of Interest
Cuyler v. Sullivan, 446 U.S. 335 (1980), cannot be read so
broadly as to encompass a conflict of interest involving an
attorney’s personal interests. Applying Sullivan in cases arising
from a lawyer’s conflict of interest resulting from the lawyer’s
self-interest would undermine the uniformity and simplicity of
Strickland v. Washington, 466 U.S. 668 (1984). A division of the
court of appeals holds that Sullivan applies when an attorney labors
under a narrower category of conflicts of interest: where the
attorney’s conflict of interest arises from multiple concurrent
representation. COLORADO COURT OF APPEALS 2019COA116
Court of Appeals No. 16CA1709 Arapahoe County District Court No. 93CR1584 Honorable F. Stephen Collins, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Chester L. Huggins,
Defendant-Appellant.
ORDER AFFIRMED
Division IV Opinion by JUDGE LIPINSKY Román, J., concurs J. Jones, J., specially concurs
Announced August 1, 2019
Philip J. Weiser, Attorney General, Matthew S. Holman, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Robin M. Lerg, Alternate Defense Counsel, Montrose, Colorado, for Defendant- Appellant ¶1 Defendant, Chester L. Huggins, appeals the denial of his
motions for postconviction relief under Crim. P. 35(c). He contends
that the delay in resolution of his motions violated his “due process
right to a speedy and meaningful postconviction review.” Huggins
further contends that the postconviction court erred in denying his
ineffective assistance of counsel claim because the attorney who
represented him both at trial and in his direct appeal labored under
a conflict of interest.
¶2 We affirm because the application of Cuyler v. Sullivan, 446
U.S. 335 (1980), to ineffective assistance of counsel cases premised
on a purported conflict of interest involving the lawyer’s self-interest
would undermine the uniformity and simplicity of Strickland v.
Washington, 466 U.S. 668 (1984).
Background
¶3 We address only the relevant portion of the lengthy history of
this case.
¶4 Huggins was convicted of first degree murder, conspiracy to
commit first degree murder, and being an accessory to a crime.
Forrest Lewis represented Huggins both at his trial and in the direct
appeal. Before trial, Huggins filed a pro se motion for appointment
1 of new counsel on various grounds, including Lewis’s alleged failure
to assist Huggins in preparing for trial, lack of legal knowledge,
failure to communicate, and bias. The trial court denied the
motion. In addition, Lewis filed two separate motions for leave to
withdraw on the grounds that Huggins believed that he and Lewis
could no longer work together after they had discussed a possible
plea agreement. The trial court also denied Lewis’s motions.
¶5 After the trial, the court granted Lewis’s motion for
appointment as Huggins’s appellate counsel. A division of this
court affirmed the judgment of conviction. People v. Huggins, (Colo.
App. No. 94CA1159, May 23, 1996) (not published pursuant to
C.A.R. 35(f)).
¶6 In February 1998, Huggins filed a pro se motion to vacate his
judgment of conviction under Crim. P. 35(c) (First Motion). In the
First Motion, he alleged that Lewis had been ineffective for several
reasons, including because Lewis had “failed to raise conflict of
interest issues between himself and his client at trial” and had not
interviewed three potential witnesses.
¶7 Later that year, Huggins filed a second motion to vacate his
judgment of conviction, also under Crim. P. 35(c) (Second Motion).
2 In the Second Motion, Huggins again argued that Lewis had been
ineffective. Concurrently, he filed a motion for the appointment of
counsel to assist with his postconviction motions. The court
appointed Steven Katzman to represent Huggins in connection with
the Second Motion.
¶8 The First and Second Motions remained pending on the
postconviction court’s docket for the next eleven years. During that
time, Huggins filed a pro se motion for the appointment of new
counsel (New Counsel Motion), in which he expressed his
displeasure with Katzman’s performance. The court took no action
on the New Counsel Motion, however. More than two years later,
Katzman moved to withdraw on the basis of irreconcilable
differences with Huggins. The court granted Katzman leave to
withdraw.
¶9 In February 2010, Huggins filed a third pro se motion for
postconviction relief, again under Crim. P. 35(c) (Third Motion),
which also included an ineffective assistance of counsel claim. The
postconviction court denied the Third Motion in an order entered in
July 2010. That order made no reference to the First or Second
Motions, however.
3 ¶ 10 In March 2013, Huggins filed a “Request for a Status Report,”
in which he sought information regarding the status of the First
and Second Motions (Status Request). The postconviction court
responded that it would not take action on the Status Request
because Huggins had not served it on the People.
¶ 11 More than two years later, Huggins sent a letter to the Chief
Justice of the Colorado Supreme Court (Letter), in which he alleged
a “gross violation of [his] due process rights by the delay” in
adjudication of his First and Second Motions.
¶ 12 The postconviction court appointed Evan Zuckerman as new
counsel for Huggins in March 2015. Zuckerman filed a status
report in which she requested additional time to investigate the
grounds for Huggins’s postconviction motions and a supplement
(Supplement) to the Third Motion. The Supplement restated
Huggins’s ineffective assistance of counsel claim and argued that
Lewis had been “ineffective in advising and raising as a possible
appellate issue the trial court’s denial of the two motions to
withdraw resulting in abandonment of a possible appellate claim for
relief.” Additionally, Huggins argued in the Supplement that he had
been deprived of his statutory right to postconviction review
4 because the postconviction court could not “properly and
meaningfully review a complete record of proceedings.” The record
reflects that Lewis had not ordered transcripts of certain of the
proceedings in the trial court.
¶ 13 Following an evidentiary hearing at which Lewis, Huggins, and
other witnesses testified, the postconviction court denied all three of
Huggins’s postconviction motions (collectively, the Crim. P. 35(c)
Motions). (The court inexplicably denied the Third Motion twice.)
¶ 14 Huggins appeals the denial of the Crim. P. 35(c) Motions.
Huggins’s Due Process Claims
¶ 15 Huggins contends that his due process right to a “speedy and
meaningful postconviction review” was violated because of the delay
in adjudication of the Crim. P. 35(c) Motions. The parties dispute
whether Huggins preserved this due process argument.
¶ 16 We conclude that Huggins did not preserve the argument and,
thus, we cannot consider it.
A. The Law on Preservation of Arguments
¶ 17 When a defendant does not raise an issue in a postconviction
motion or during the hearing on that motion, and the
postconviction court therefore does not have an opportunity to rule
5 on the issue, as a general rule, the issue is not properly preserved
for appeal and we will not consider it. DePineda v. Price, 915 P.2d
1278, 1280 (Colo. 1996) (“Issues not raised before the district court
in a motion for postconviction relief will not be considered on appeal
of the denial of that motion.”); People v. Golden, 923 P.2d 374, 375
(Colo. App. 1996) (holding that, in an appeal of a Crim. P. 35(c)
motion, the court of appeals will not consider allegations not raised
in the motion and thus not ruled on by the trial court).
¶ 18 This rule applies to both constitutional and nonconstitutional
arguments presented for the first time in an appeal of a ruling on a
Crim. P. 35(c) motion. See People v. Jackson, 109 P.3d 1017, 1019
(Colo. App. 2004) (declining to consider due process and other
constitutional arguments not presented to the trial court in Crim. P.
35(c) motion).
¶ 19 Despite the broad language of cases such as DePineda and
Golden, we have the discretion to consider an unpreserved
argument, but only in rare cases. See Hagos v. People, 2012 CO
63, ¶ 23, 288 P.3d 116, 122 (holding that reversal for unpreserved
error “must be rare to maintain adequate motivation among trial
participants to seek a fair and accurate trial the first time”). More
6 specifically, this court may consider unpreserved constitutional
arguments, “but only where doing so would clearly further judicial
economy.” See People v. Houser, 2013 COA 11, ¶ 35, 337 P.3d
1238, 1248. Without such a limitation, a defendant might
intentionally “withhold a meritorious objection, permit error to
occur, and then, in the event of a conviction, raise the error for the
first time on appeal.” Id., ¶ 45, 337 P.3d at 1249 (quoting People v.
Smith, 121 P.3d 243, 253 (Colo. App. 2005) (Webb, J., specially
concurring)).
B. Huggins Failed to Preserve His Due Process Argument
¶ 20 Huggins contends that he preserved his argument regarding
the alleged violation of his due process right “to a speedy and
meaningful” postconviction review “by filing pleadings complaining
about the delay in resolving [the Crim. P. 35(c) Motions].” Huggins’s
argument misses the mark.
¶ 21 He cites four documents through which he allegedly preserved
the due process argument: the New Counsel Motion, a one-page
attachment to the First Motion, the Status Request, and the Letter.
• In the New Counsel Motion, Huggins requested the
appointment of new counsel because Katzman allegedly
7 had a conflict of interest and had unreasonably delayed
in meeting with Huggins. The New Counsel Motion did
not mention any delay in adjudication of Huggins’s
postconviction motions.
• The one-page attachment to the First Motion described
the anticipated testimony of individuals whom Lewis had
not called at trial but did not address Huggins’s due
process claim.
• The Status Request appears to be a motion for a status
report on the First and Second Motions, both of which
alleged ineffective assistance of counsel only. Huggins
specifically asked the postconviction court to “set this
matter down so this court could declar[e] whether
counsel is ineffective.” The Status Request said nothing
about a violation of Huggins’s due process rights.
• In the Letter, Huggins alleged that the postconviction
court had “committed a gross violation of [his] due
process rights by the delay in action.” But the Letter was
not a motion and did not present the due process issue
to the postconviction court for a ruling. See Price, 915
8 P.2d at 1280; People v. Simms, 185 Colo. 214, 218, 523
P.2d 463, 465 (1974).
¶ 22 Moreover, the Supplement, which summarized Huggins’s
postconviction arguments, made no reference to an alleged violation
of his due process rights as a consequence of the postconviction
court’s inaction on the Crim. P. 35(c) Motions. Although the
Supplement contained a due process argument, in that contention,
Huggins asserted that Lewis’s failure to request transcripts of
certain proceedings in the trial court violated Huggins’s due process
rights because, without the transcripts, the postconviction court
could not review a complete record of the underlying proceedings.
Further, Huggins’s Crim. P. 35(c) Motions (as well as his other
postconviction filings) did not include an argument that the delay in
the rulings on the Rule 35(c) Motions violated his right to due
process.
¶ 23 Huggins’s argument is materially different from the
unpreserved arguments our supreme court determined were
forfeited, and not waived, in Cardman v. People, 2019 CO 73, ¶ 18,
___ P.3d ___, ___, and Phillips v. People, 2019 CO 72, ¶ 38, ___ P.3d
___, ___. See Cardman, ¶ 10 (waiver is the intentional
9 relinquishment of a known right or privilege, while forfeiture is the
failure to make the timely assertion of a right); Phillips, ¶¶ 16-17
(same).
¶ 24 Unlike this case, both Cardman and Phillips involved
defendants who sought to raise new arguments in support of
positions they had taken in the trial court. In Cardman and
Phillips, the defense presented on appeal new arguments for
suppression of evidence it had challenged in the trial court. See
Cardman, ¶¶ 6-7, 11; Phillips, ¶¶ 13-14 (explaining that the
defendant was singing a “different tune” and had “switched horses”
in advancing the new arguments).
¶ 25 Huggins not only failed to present his due process argument to
the postconviction court, but he never raised in the postconviction
court any argument, based on any legal theory, that he was entitled
to relief because the court had waited too long to rule on the Crim.
P. 35(c) Motions. Huggins is not merely changing tunes or horses;
he never sang a note or climbed into a saddle before filing his
appeal. We do not read Cardman or Phillips as permitting a
defendant to raise an entirely new issue on an appeal of a
postconviction motion.
10 ¶ 26 Because the postconviction court had no opportunity to rule
on Huggins’s due process argument, Huggins failed to preserve it.
And this is not one of those rare cases in which we will consider an
unpreserved constitutional argument to “clearly further judicial
economy.” For these reasons, we will not consider Huggins’s
unpreserved argument that the delay in adjudication of the Rule
35(c) Motions violated his due process rights. See Price, 915 P.2d at
1280; People v. Boulden, 2016 COA 109, ¶ 5, 381 P.3d 454, 455.
Ineffective Assistance of Counsel
¶ 27 Huggins next contends that the postconviction court erred in
finding that he had not proven his ineffective assistance of counsel
claim. He argues that, by representing him at both the trial and on
appeal, Lewis labored under a conflict of interest and, therefore,
was ineffective, as a matter of law.
A. Standard of Review
¶ 28 We review the denial of a Crim. P. 35(c) motion following a
hearing for an abuse of discretion. People v. Firth, 205 P.3d 445,
449 (Colo. App. 2008). A district court abuses its discretion if its
decision is manifestly arbitrary, unreasonable, or unfair, or is based
11 on an erroneous understanding or application of the law. People v.
Trammell, 2014 COA 34, ¶ 10, 345 P.3d 945, 947-48.
¶ 29 A claim of ineffective assistance of counsel presents mixed
questions of fact and law. Dunlap v. People, 173 P.3d 1054, 1063
(Colo. 2007). We defer to a postconviction court’s findings of fact
when they are supported by the record, but we review its legal
conclusions de novo. West v. People, 2015 CO 5, ¶ 11, 341 P.3d
520, 525.
B. Huggins Preserved His Ineffective Assistance of Counsel Claim
¶ 30 The People contend that Huggins failed to preserve his conflict
of interest claim because he incorrectly framed it as “an ineffective
assistance of counsel claim[] under Strickland [v. Washington, 466
U.S. 668 (1984)].” We disagree.
¶ 31 We do not require parties to use “talismanic language”
to preserve an argument for appeal. People v. Melendez, 102 P.3d
315, 322 (Colo. 2004). Where a defendant raises an issue
sufficiently to provide the district court with an opportunity to rule
on it, the issue is sufficiently preserved. Boulden, ¶ 4, 381 P.3d at
455.
12 ¶ 32 In the Supplement, Huggins asserted that Lewis was
“ineffective in advising and raising as a possible appellate issue the
trial court’s denial of Lewis’s motions to withdraw, resulting in
abandonment of a possible appellate claim for relief.” Huggins
contends that Lewis did not raise his conflict of interest on appeal
because “it required an evaluation of Lewis’ own conduct
precipitating the motions to withdraw” and Lewis “had a strong
disincentive to raise the denials of the withdrawal motions or to
even communicate candidly with Mr. Huggins about the claim.”
Huggins specifically argued in the Supplement that
[w]hen Mr. Lewis was appointed as appellate counsel, he was wholly unable to effectively advise Mr. Huggins on a potential claim regarding the trial court’s denial of Mr. Huggins [sic] request for substitute counsel. An effective advisement would have required Mr. Lewis to accurately assess his own ineffectiveness as trial counsel, which created a conflict of interest in his representation of Mr. Huggins in his appeal. By failing to raise a potentially meritorious claim, Mr. Huggins was denied effective assistance of counsel in his appeal.
¶ 33 We conclude that this argument was sufficient to provide the
postconviction court with an opportunity to consider Huggins’s
argument that Lewis was ineffective because he had labored under
13 a conflict of interest. Thus, Huggins preserved his claim of
ineffective assistance of counsel premised on Lewis’s alleged conflict
of interest.
C. The Legal Standard Applicable to Ineffective Assistance of Counsel Claims Based on a Conflict Between the Attorney’s Self-Interest and the Client’s Interests
¶ 34 We next consider whether Huggins’s claim of ineffective
assistance of counsel is governed by Strickland, which applies to
general allegations of ineffective assistance of counsel, or by Cuyler
v. Sullivan, 446 U.S. 335 (1980), which applies when an attorney
labors under a narrower category of conflicts of interest. Each
standard places a different burden on a defendant attempting to
demonstrate a violation of the constitutional right to conflict-free
counsel.
¶ 35 To prevail on an ineffective assistance of counsel claim under
Strickland, a defendant must prove that counsel’s performance was
so deficient as to be “outside the wide range of professionally
competent assistance,” Strickland, 466 U.S. at 690, and that “the
deficient performance prejudiced the defense,” People v. Villanueva,
2016 COA 70, ¶ 29, 374 P.3d 535, 542. The defendant must also
demonstrate “a reasonable probability that, but for counsel’s
14 unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at
694.
¶ 36 In contrast, under Sullivan, a defendant must demonstrate
only that his counsel labored under a conflict of interest that
adversely affected the lawyer’s performance. Sullivan, 446 U.S. at
348. Where Sullivan applies, the defendant must show by a
preponderance of the evidence that (1) counsel had a conflict of
interest; and (2) the conflict adversely affected the representation.
West, ¶ 65, 341 P.3d at 534. Once a defendant makes a prima facie
showing of a conflict under Sullivan, prejudice is presumed and
nothing more is required for relief. Sullivan, 446 U.S. at 349-50;
Villanueva, ¶ 30, 374 P.3d at 542. The Sullivan adverse effect
inquiry thus places a lesser burden on a defendant than does
the Strickland prejudice analysis. Villanueva, ¶ 30, 374 P.3d at
542.
¶ 37 In Mickens v. Taylor, 535 U.S. 162 (2002), the Supreme Court
said in dicta that Sullivan applies only to those cases in which the
attorney’s conflict of interest arises from multiple concurrent
15 representations. See id. at 174-75. The federal courts disagree on
the extent to which Mickens narrowed the scope of Sullivan. See
United States v. Williamson, 859 F.3d 843, 854 n.3 (10th Cir. 2017)
(collecting cases). And the broad language of Villanueva suggests
that Sullivan can apply to conflicts that do not involve the
representation of parties with differing interests. See Villanueva,
¶ 30, 374 P.3d at 542.
¶ 38 We hold that Sullivan cannot be read so broadly as to
encompass the type of conflict of which Huggins complains,
however. See Ezekor v. United States, No. CV 10-0549, 2012 WL
12991292, at *9 (S.D. Tex. June 13, 2012) (noting that, although
some courts have applied Sullivan to “ineffective assistance of
counsel claims grounded on a conflict of interest between an
attorney’s personal or financial interests and the attorney’s clients’
interests,” an ineffective assistance of counsel claim “grounded on a
conflict of interest between an attorney’s duty to a client and the
attorney’s own self-interest is governed by the Strickland standard”
(citing United States v. Newell, 315 F.3d 510, 516 (5th Cir. 2002))).
¶ 39 The majority in Mickens persuasively reasoned that Sullivan
articulated a rule applicable only to one particular category of
16 conflict of interest in light of the “high probability of prejudice
arising from multiple concurrent representation, and the difficulty
of proving that prejudice . . . .” Mickens, 535 U.S. at 175. The
Court underscored that “[n]ot all attorney conflicts present
comparable difficulties.” Id.
This is not to suggest that one ethical duty is more or less important than another. The purpose of our . . . Sullivan exception[] from the ordinary requirements of Strickland, however, is not to enforce the Canons of Legal Ethics, but to apply needed prophylaxis in situations where Strickland itself is evidently inadequate to assure vindication of the defendant’s Sixth Amendment right to counsel.
Id. at 176.
¶ 40 In reliance on the Mickens language, courts have declined to
extend Sullivan to conflict situations not involving multiple
concurrent representation. See, e.g., Foote v. Del Papa, 492 F.3d
1026, 1029 (9th Cir. 2007) (explaining that “the Sullivan exception
applies where the petitioner shows: (1) that his counsel actively
represented conflicting interests; and (2) that this adversely affected
his counsel’s performance”); Earp v. Ornoski, 431 F.3d 1158, 1184
(9th Cir. 2005) (holding that the Sullivan test does not apply to
conflict of interest arising from attorney’s romantic interest in
17 defendant); Beets v. Scott, 65 F.3d 1258, 1265 (5th Cir. 1995) (en
banc) (noting that Strickland offers a superior framework for
addressing attorney conflicts outside the multiple or serial client
context).
¶ 41 We agree with these authorities and therefore reject Huggins’s
contention that West can be read expansively to require application
of the Sullivan test to conflicts involving an attorney’s personal
interests. See West, ¶ 38, 341 P.3d at 530 (assuming, without
deciding, that Sullivan applies to alleged conflicts of interest arising
from successive representation of trial witnesses against a
defendant). Applying Sullivan in cases arising from a lawyer’s
conflict of interest resulting from the lawyer’s self-interest would
undermine the uniformity and simplicity of Strickland. Beets, 65
F.3d at 1265.
¶ 42 Thus, we review Huggins’s conflict of interest argument under
the Strickland test.
D. Huggins Did Not Establish That Lewis Was Ineffective Under the Strickland Test
¶ 43 Huggins contends that Lewis was ineffective because he
labored under a conflict of interest while representing Huggins.
18 According to Huggins, Lewis’s “own professional interest” conflicted
with Huggins’s desire to argue on appeal that the trial court erred
in denying Lewis’s motions to withdraw.
¶ 44 The record supports the trial court’s key findings of fact
regarding Lewis’s representation of Huggins:
• Lewis’s disagreement with Huggins had focused on
Lewis’s recommendation that Huggins accept the plea
agreement the prosecution had offered.
• Lewis encouraged Huggins to accept the plea agreement
because of the strength of the evidence against Huggins
and Lewis’s belief that the chances of winning at trial
were very low.
• Huggins lost confidence in Lewis’s ability to advocate on
behalf of Huggins when Lewis encouraged Huggins to
accept the plea agreement.
• It is not unusual for defense counsel to lose the
confidence of his or her client after recommending that
the client accept a plea agreement.
• Huggins had been reluctant to accept the risk of going to
trial.
19 • By the time of trial, Lewis and Huggins had resolved their
differences.
• Huggins had been frustrated with Lewis’s performance at
trial primarily because Lewis had not interviewed the
three potential witnesses whose testimony Huggins
believed would support his defense.
• There is no reasonable basis to believe the jury would
have acquitted Huggins if the jury had heard the
potential witnesses’ testimony.
• The disagreements between Huggins and Lewis regarding
strategy never rose to the level of a conflict of interest.
• There had never been a complete breakdown in Huggins’s
communications with Lewis.
• The disagreements between Huggins and Lewis had not
justified the appointment of new counsel for Huggins.
• Lewis presented a vigorous defense at trial.
• Lewis did not prevent Huggins from making any of the
decisions related to the trial that are reserved to the
defendant.
20 • Lewis and Huggins discussed Huggins’s appellate rights,
potential appellate issues, and Huggins’s right to a
different lawyer on appeal.
• Huggins believed Lewis had fought hard for him at trial
and was comfortable with Lewis serving as appellate
• Lewis did not believe any issue prevented him from
properly representing Huggins on appeal.
• Lewis would not have represented Huggins on appeal if
Huggins had not expressly agreed that Lewis should
serve as his appellate counsel.
• Lewis evaluated the entirety of the trial proceedings in
determining the issues that could be raised on appeal,
ordered transcripts of only those portions of the trial
proceedings reflecting issues that legitimately could be
raised on appeal, and determined that the denial of the
motions to withdraw did not raise legitimate appellate
issues.
21 • Huggins could not point to any potential errors
documented in those portions of the trial proceedings for
which Lewis had not ordered transcripts.
¶ 45 The trial court’s meticulous findings of fact establish that,
contrary to Huggins’s argument, Lewis’s personal interests had not
materially limited his ability to represent Huggins on appeal.
Therefore, Lewis had not operated under a conflict of interest at
that time. “A conflict of interest exists when the attorney’s ability to
represent a client is materially limited by the attorney’s own
interests.” People v. Delgadillo, 2012 COA 33, ¶ 9, 275 P.3d 772,
775; see Colo. RPC 1.7(b). Challenging the trial court’s rulings on
the motions to withdraw would not, as Huggins contends, have
required Lewis to contradict his earlier assertion to the trial court
that there was good cause for withdrawal.
¶ 46 Lewis had felt no compunction about asking the trial court to
allow him to withdraw as Huggins’s attorney. Huggins does not
explain why Lewis would have been unwilling to raise on appeal the
very same argument for withdrawal that Lewis had presented to the
trial court.
22 ¶ 47 We are unaware of any Colorado case law establishing a per se
rule that the same attorney may not represent a defendant at trial
and on appeal. “We disagree that trial counsel cannot effectively
assist a client on appeal. Many trial attorneys represent their
clients on appeal, in part, because of their intimate knowledge of
the facts and law of the case.” Rogers v. State, 253 P.3d 889, 897
(Mont. 2011).
¶ 48 Lastly, Huggins has not established that the arguments
concerning the motions for leave to withdraw would have been
stronger than the arguments that Lewis presented on appeal.
“[O]nly when ignored issues are clearly stronger than those
presented, will the presumption of effective assistance of counsel be
overcome . . . .” People v. Trujillo, 169 P.3d 235, 238 (Colo. App.
2007) (quoting Ellis v. Hargett, 302 F.3d 1182, 1189 (10th Cir.
2002)). “Appellate counsel is not required to raise on appeal every
nonfrivolous issue a defendant desires to raise.” Id.
¶ 49 For these reasons, Lewis’s representation of Huggins did not
fall “outside the wide range of professionally competent assistance”
and was not ineffective. See Strickland, 466 U.S. at 690.
23 Conclusion
¶ 50 The postconviction court’s order is affirmed.
JUDGE ROMÁN concurs.
JUDGE J. JONES specially concurs.
24 JUDGE J. JONES, specially concurring.
¶ 51 I concur in the majority’s judgment in full. But I write
separately because I believe defendant invited any error in the
district court’s application of Strickland v. Washington, 466 U.S.
668 (1984), to his conflict of interest claim.
¶ 52 In defendant’s First Motion he didn’t make any claim about a
conflict of interest. He did assert that the two-prong Strickland test
applied to his ineffective assistance claims.
¶ 53 Defendant’s Second Motion alleged, in entirely conclusory
fashion, that his trial/appellate counsel “failed to raise conflict of
interest issues between himself and his client at trial.” It didn’t talk
about a legal test.
¶ 54 Defendant’s Third Motion didn’t mention a conflict of interest
at all.
¶ 55 The Supplement filed by counsel on defendant’s behalf raised
the conflict of interest issue. And it argued expressly, and at
length, that the Strickland test applied to that issue. On the issue
of prejudice, defendant argued that he had established prejudice
under Strickland.
25 ¶ 56 In denying defendant’s conflict of interest claim, the district
court applied the Strickland prejudice test for which defendant had
argued. Now on appeal, defendant contends that the district court
erred by applying that test. Our case law is clear, however, that
having urged a different test below, defendant is barred by the
invited error doctrine from claiming error in the application of that
test. See Horton v. Suthers, 43 P.3d 611, 618 (Colo. 2002); People v.
Zapata, 779 P.2d 1307, 1308-09 (Colo. 1989), cited with approval in
People v. Rediger, 2018 CO 32, ¶ 34; People v. Collins, 730 P.2d
293, 304-05 (Colo. 1986); Gray v. People, 139 Colo. 583, 588, 342
P.2d 627, 630 (1959), cited with approval in Rediger, ¶ 34; see also
People v. Hamilton, 381 N.E.2d 74, 75 (Ill. App. Ct. 1978)
(“[D]efendant cannot inject an erroneous statement of law into an
argument before the trial court and then rely on his own error to
obtain a reversal on appeal.”); State v. Jenkins, 840 A.2d 242, 249
(N.J. 2004).
¶ 57 So although I agree with the majority’s analysis of the conflict
of interest issue, I would not address it.