Jefferson County District Court No. 05CR3824 Honorable Margie L. Enquist, Judge
Cynthia H. Coffman, Attorney General, Molly E. McNab, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Springer and Steinberg, P.C., Andrew B. Reid, Denver, Colorado, for Defendant-Appellant
¶ 1 Defendant, Man Hao Luong, appeals the district court's order denying his Crim. P. 35(c) motion without a hearing. In his motion, Luong alleged that his trial counsel had provided ineffective assistance because counsel did not investigate whether Luong had been denied his Sixth Amendment right to a jury selected from a representative cross-section of the community. He thus presents an alleged violation of the Sixth Amendment's fair cross-section guarantee in the context of an ineffective assistance of counsel claim - an unusual posture that no reported Colorado decision has addressed. Because Luong's allegations did not show that his counsel's performance was deficient under the circumstances, we affirm the denial of the postconviction motion.
¶ 2 Based on acts committed in 2005, Luong was charged with six counts of aggravated robbery; two counts each of second degree kidnapping and first degree burglary; one count each of robbery of an at-risk adult, second degree assault, and theft; and conspiracy to commit multiple offenses. He was also charged with twelve crime of violence sentence enhancers. A jury found Luong guilty of all counts. The trial court sentenced him to ninety-six years in prison.
¶ 3 On direct appeal, a division of this court affirmed in part, reversed in part, and vacated in part the judgment. People v. Luong, (Colo.App. No. 07CA1604, Oct. 13, 2011) (not published pursuant to C.A.R. 35(f)). As a result, Luong was resentenced to sixty-four years in prison.
¶ 4 Luong then filed a Crim. P. 35(c) motion for postconviction relief. He alleged that he had received ineffective assistance from his trial counsel because counsel did not investigate whether jurors of Asian ethnicity were systematically or intentionally underrepresented in the 100-person venire from which his jury was selected as well as from other juries in the county over an extended period of time. Relatedly, Luong asserted that the State's destruction of records of the relevant master jury list (also known as the "jury wheel") and jury panel violated his constitutional rights because the purported destruction prevented him from proving that his counsel's performance had prejudiced him. The district court denied the motion.
¶ 5 After Luong filed his notice of appeal, the state court administrator informed him that the records of the jury wheel and jury panel (sometimes called the "jury pool") for the relevant date had been found. At Luong's request, the administrator in 2014 provided a list of the 324 people who appeared for jury service in Jefferson County on the day of Luong's trial. That list is in the appellate record even though it was not before the postconviction court. Luong moved to remand for consideration of the new information, and his motion was referred to this division. For the reasons set forth below, we deny the motion to remand.
II. Summary Denial of the Postconviction Motion
¶ 6 Luong contends that the postconviction court erred by denying his Crim. P. 35(c) motion without an evidentiary hearing. We do not agree.
A. Standard of Review
¶ 7 We review de novo a district court's summary denial of a Crim. P. 35(c) motion. People v. ...