Arapahoe County District Court No. 93CR1584 Honorable F.
Stephen Collins, Judge
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
ORDER
LIPINSKY JUDGE.
¶
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).
I.
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 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). 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.
¶
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 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.
II.
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 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 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 ...