Peo v. Lansky

• Court: Colorado Court of Appeals
• Decided: November 14, 2024
• Docket: 23CA1742
• Status: Unpublished

Opinion

23CA1742 Peo v Lansky 11-14-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1742 El Paso County District Court No. 07CR547 Honorable Samuel A. Evig, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Valdamar Lansky,

Defendant-Appellant.

ORDER AFFIRMED

Division III Opinion by JUDGE NAVARRO Dunn and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 14, 2024

Philip J. Weiser, Attorney General, John T. Lee, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Valdamar Lansky, Pro Se ¶1 Defendant, Valdamar Lansky, appeals the postconviction

court’s order denying his “petition for state writ of habeas corpus,”

which the court construed as his second Crim. P. 35(c) motion. We

affirm.

I. Background

¶2 In 2008, a jury found Lansky guilty of two counts of sexual

assault on a child and two counts of sexual assault on a child by

one in a position of trust. The jury also found that he committed all

four offenses as part of a pattern of abuse. The trial court found

that Lansky was a habitual sex offender against children and

sentenced him to thirty-six years to life in prison.

¶3 On direct appeal, a division of this court affirmed the

judgment. See People v. Lansky, (Colo. App. No. 08CA2255, July

29, 2010) (not published pursuant to C.A.R. 35(f)). The mandate

was issued in 2010.

¶4 In 2013, Lansky filed his first pro se Crim. P. 35(c) motion, in

which he raised numerous claims of trial court error, prosecutorial

misconduct, and ineffective assistance of his trial counsel. The

court issued a written order denying the motion without a hearing.

Over a year later, Lansky appealed the order. A division of this

1 court dismissed the appeal with prejudice because Lansky had not

shown good cause for failing to timely appeal the order.

¶5 More than eight years later, in 2023, Lansky filed his “petition

for state writ of habeas corpus.” He again raised numerous claims

of trial court error, prosecutorial misconduct, and ineffective

assistance of his trial counsel. He also asked the postconviction

court to conduct a “forensic review” of his claims by comparing

them to the trial transcripts. Further, he requested that the court

appoint counsel for him and hold a hearing on the petition.

¶6 The postconviction court construed the habeas petition as a

Crim. P. 35(c) motion and denied it as successive. The court also

denied Lansky’s requests for counsel and a hearing.

II. Standard of Review

¶7 We review de novo. See People v. Taylor, 2018 COA 175, ¶ 8.

III. Analysis

¶8 As an initial matter, the postconviction court properly

construed Lansky’s habeas petition as a Crim. P. 35(c) motion. A

habeas corpus petition that seeks the type of relief available under

Crim. P. 35 “should be treated as a Crim. P. 35 motion based upon

the substantive constitutional issues raised therein, rather than

2 [upon] the label placed on the pleading.” DePineda v. Price, 915

P.2d 1278, 1280 (Colo. 1996) (quoting White v. Denver Dist. Ct., 766

P.2d 632, 634 (Colo. 1988)).

¶9 Still, Lansky argues that he was entitled to raise his motion as

a petition for writ of habeas corpus under section 13-45-101, C.R.S.

2024. But “[h]abeas corpus proceedings commenced pursuant to

[section 13-45-101] are civil actions.” People v. Calyer, 736 P.2d

1204, 1207 (Colo. 1987). “They are independent of any proceedings

directly related to any underlying criminal charges.” Id. “The

proper respondent [in the civil case] is that person allegedly

restraining the liberty of the petitioner, not the People of the State of

Colorado.” Id.

¶ 10 Here, Lansky improperly tried to use section 13-45-101 to

challenge the validity of his convictions in his criminal case. Hence,

the postconviction court correctly construed his petition as a Crim.

P. 35(c) motion.

¶ 11 As the postconviction court ruled, Lansky’s second Crim. P.

35(c) motion was successive. See Crim. P. 35(c)(3)(VI), (VII).

Lansky’s claims of trial court error and prosecutorial misconduct

were raised, or could have been raised, in his direct appeal. See id.

3 Lansky’s claims of ineffective assistance of his trial counsel were

raised, or could have been raised, in his first Crim. P. 35(c) motion.

See id. For the same reasons, Lansky’s request that the

postconviction court conduct a “forensic review” of his claims was

also successive. The postconviction court, therefore, was required

to deny the second Crim. P. 35(c) motion. See id. (providing that a

district court “shall” deny a successive postconviction claim);

Martinez v. People, 2024 CO 6M, ¶ 17 (recognizing that the word

“shall” in a statute or rule is mandatory).

¶ 12 Further, Lansky’s second Crim. P. 35(c) motion was time

barred because he filed it thirteen years after the conclusion of his

direct appeal — many years beyond the three-year deadline to file

such a motion. See § 16-5-402(1), (1.5), C.R.S. 2024.1

¶ 13 Because Lansky’s second Crim. P. 35(c) motion was successive

and time barred, the postconviction court did not err by denying his

request for postconviction counsel and a hearing on the motion.

See Crim. P. 35(c)(3)(IV), (V); People v. Zuniga, 80 P.3d 965, 973

(Colo. App. 2003).

1 Lansky did not allege any exception to the bars on successive and

untimely claims. See Crim. P. 35(c)(3)(I), (VI), (VII).

4 IV. Conclusion

¶ 14 The order is affirmed.

JUDGE DUNN and JUDGE GOMEZ concur.