Peo v. Sayed

• Court: Colorado Court of Appeals
• Decided: September 25, 2025
• Docket: 24CA1569
• Status: Unpublished

Opinion

24CA1569 Peo v Sayed 09-25-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1569 Logan County District Court No. 15CR120 Honorable Stephanie M.G. Gagliano, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Hazhar A. Sayed,

Defendant-Appellant.

ORDER AFFIRMED

Division A Opinion by JUDGE BERGER* Román, C.J., and Graham*, J., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced September 25, 2025

Philip J. Weiser, Attorney General, Trina K. Kissel, Senior Assistant Attorney General and Assistant Solicitor General, Denver, Colorado

Hazhar A. Sayed, 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 Defendant, Hazhar A. Sayed, appeals the district court’s order

denying his most recent postconviction motion without a hearing.

We affirm.

I. Background

¶2 The district court sentenced Sayed to three years in prison

after a jury found him guilty of second degree assault and third

degree assault. A division of this court affirmed the judgment of

conviction on direct appeal. See People v. Sayed, (Colo. App. No.

17CA0847, Feb. 13, 2020) (not published pursuant to C.A.R. 35(e))

(Sayed I).

¶3 In 2020, Sayed filed a pro se Crim. P. 35(c) motion, in which

he asserted various claims of ineffective assistance of trial and

direct appeal counsel. The district court denied the motion without

a hearing. Sayed appealed, and, as relevant here, added three new

claims. He asserted that (1) trial counsel was ineffective because

she had an actual conflict of interest; (2) appellate counsel was

ineffective for failing to raise on direct appeal the issue of trial

counsel’s conflict of interest; and (3) appellate counsel was

ineffective for failing to challenge the district court’s error in failing

to advise Sayed about trial counsel’s conflict of interest. The

1 division affirmed the district court’s order. See People v. Sayed,

(Colo. App. 20CA1527, Feb. 2, 2023) (not published pursuant to

C.A.R. 35(e)) (Sayed II). As to the three unpreserved claims, the

division declined to address them because Sayed did not raise them

in his postconviction motion before the district court. Id.

at ¶¶ 32-33.

¶4 Sayed then filed the postconviction motion at issue in this

appeal. In it, he reasserted the three claims that the division

declined to consider in his prior postconviction appeal. Sayed

conceded that his motion was both untimely and successive.

However, he argued that he “should be allowed justifiable excuse or

excusable neglect . . . due to ineffective assistance of counsel” and

exceptions to the successive procedural bar contained in Crim. P.

35(c)(3)(VII)(a),(b), and (e) applied.

¶5 The district court denied Sayed’s motion in a written order.

The court concluded that his motion was both untimely and

successive and no exceptions to the applicable time or procedural

bars applied.

2 II. Discussion

¶6 Sayed contends that the district court erred by denying his

postconviction motion without a hearing. Because we conclude

that Sayed’s motion was successive, we disagree.

A. Standard of Review

¶7 We review de novo the district court’s denial of a motion for

postconviction relief without an evidentiary hearing. People v. Cali,

2020 CO 20, ¶ 14.

B. Analysis

¶8 Generally, a district court must deny any claim that was

raised or resolved, or could have been presented, in a prior appeal

or postconviction proceeding. See Crim. P. 35(c)(3)(VI), (VII).

Sayed’s claims about his trial counsel’s conflict of interest and his

direct appeal counsel’s ineffective assistance could have been raised

in his prior Crim. P. 35(c) motion. Therefore, his claims are

successive, and the court correctly denied his motion on this basis.

¶9 Nevertheless, Sayed asserts that the claims raised in his

motion fall under three exceptions to the rule barring successive

postconviction motions — Crim. P. 35(c)(3)(VII)(a), (b), and (e).

3 ¶ 10 Subsection (a) provides an exception for “[a]ny claim based on

events that occurred after initiation of the defendant’s prior appeal

or postconviction proceeding.” Crim. P. 35(c)(3)(VII)(a). But none of

Sayed’s claims involve events that occurred after the filing of his

original Crim. P. 35(c) motion. Instead, his claim that his trial

counsel had a conflict of interest was based on events that occurred

during a pretrial hearing, and his claim against direct appeal

counsel was based on counsel’s performance during his direct

appeal, both of which occurred before the filing of Sayed’s original

Crim. P. 35(c) motion.

¶ 11 Next, subsection (b) provides an exception for “[a]ny claim

based on evidence that could not have been discovered previously

through the exercise of due diligence.” Crim. P. 35(c)(3)(VII)(b). But

the evidence that Sayed asserts is newly discovered — trial

counsel’s conflict of interest — is not newly discovered evidence

under Crim. P. 35(c)(3)(VII)(b) because it is based on facts that

occurred before his trial that he was present for. Moreover, even

assuming such evidence qualified under this exception, Sayed has

not alleged why he could not have discovered trial counsel’s conflict

of interest and direct appeal counsel’s failure to raise claims related

4 to the conflict, through the exercise of due diligence, before he filed

his first postconviction motion.

¶ 12 Finally, subsection (e) provides an exception for “[a]ny claim

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). Sayed suggests that trial

counsel’s failure to make a record about her conflict “may”

constitute an objective factor which made raising the claim

impracticable. However, Sayed’s conflict of interest claims were not

based on new evidence and could have been raised in his first

postconviction proceeding. This precludes a conclusion that

objective factors made raising them impracticable until now.

¶ 13 Because Sayed’s second postconviction motion was

successive, and no exceptions apply, the district court properly

denied it without a hearing. See Crim. P. 35(c)(3)(VII); see also

People v. Thompson, 2020 COA 117, ¶ 44. Having so concluded, we

need not address whether the district court properly denied Sayed’s

motion as untimely.

III. Disposition

¶ 14 The order is affirmed.

5 CHIEF JUDGE ROMÁN and JUDGE GRAHAM concur.