Peo v. Gray

24CA2177 Peo v Gray 05-14-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA2177
Larimer County District Court No. 15CR926
Honorable Stephen J. Jouard, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Eric David Gray,

Defendant-Appellant.

ORDER AFFIRMED

Division A
Opinion by CHIEF JUDGE ROMÁN
Martinez*, and Hawthorne*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 14, 2026

Philip J. Weiser, Attorney General, Paul Koehler, Senior Counsel, Denver,
Colorado for Plaintiff-Appellee

Eric David Gray, 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 Eric David Gray appeals the district court’s order denying his

Crim. P. 35(c) motion without a hearing. We affirm.

I. Background

¶2 The prosecution charged Gray with first degree murder after

he shot and killed a neighboring landowner, Gerald Donovan. At

trial, the prosecution presented evidence that Gray and Donovan

had been engaged in a longstanding property dispute, and the two

had argued on the day of the shooting because Gray’s trailer was

parked partially in the road. Gray entered his house to retrieve a

rifle, and when Donovan walked onto Gray’s driveway, Gray shot

him.

¶3 Gray put forth a hybrid theory of defense. He argued that he

did not form the requisite mental state for first degree murder

because he was experiencing persecutory delusions and paranoia

and genuinely feared that Donovan had a gun — thus, in his mind,

he was acting in self-defense. He called several experts who

testified that he indeed had a mental illness that caused delusions

and paranoia. The jury was instructed on self-defense as well as

the elements of first degree murder, second degree murder, and

manslaughter. It found Gray guilty of first degree murder.

1
¶4 Gray appealed the judgment of conviction, challenging the trial

court’s rejection of five tendered jury instructions and two of its

evidentiary rulings. A division of this court affirmed. People v.

Gray, (Colo. App. No. 18CA2432, July 28, 2022) (not published

pursuant to C.A.R. 35(e)).

¶5 Gray timely filed a pro se Crim. P. 35(c) motion raising twenty

claims. The postconviction court appointed counsel to supplement

the motion and ordered the prosecution to respond. After reviewing

the parties’ submissions, including their attached exhibits, the

court denied Gray’s motion in a lengthy written order without

granting a hearing.

II. Discussion

¶6 Acting pro se, Gray appeals the postconviction court’s ruling

as to seven of his claims. He contends that the district court erred

by denying his motion and not holding an evidentiary hearing. We

disagree.

A. Standard of Review

¶7 We review de novo a postconviction court’s denial of a Crim. P.

35(c) motion without a hearing. See People v. Marquez, 2020 COA

170M, ¶ 17. When a court determines that a pro se motion is not

2
wholly unfounded, appoints counsel, and orders a response from

the prosecution, it may deny the motion without an evidentiary

hearing if, “‘based on the pleadings,’ it is appropriate to enter a

ruling without holding a hearing.” People v. Martinez, 2026 COA 7,

¶ 10 (quoting Crim P. 35(c)(3)(V)); see People v. Segura, 2024 CO 70,

¶ 4.

¶8 We may affirm the postconviction court’s ruling on any ground

supported by the record. People v. Cooper, 2023 COA 113, ¶ 7.

B. Successive Claims

¶9 First, Gray claimed that he is entitled to postconviction relief

because (1) the jurors could not hear his trial proceedings; (2) the

prosecutor lied about two facets of evidence during

cross-examination and closing argument; and (3) the trial court

erroneously admitted unfairly prejudicial gun evidence that police

had unconstitutionally seized from his home. Each of these claims

could have been raised on direct appeal.

¶ 10 A postconviction court must “deny any claim that could have

been presented in an appeal previously brought.” People v. Houser,

2020 COA 128, ¶ 15 (quoting Crim. P. 35(c)(3)(VII)). This bar on

successive claims provides five exceptions, including one for claims

3
“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).

¶ 11 Gray’s motion did not allege that any exceptions apply to the

bar on his three successive claims. However, on appeal, Gray

argues that an exception applies to his gun evidence claim — that it

would have been impracticable to raise that claim on direct appeal

due to an insufficient appellate record. We do not address Gray’s

attempt, in his appellate brief, to fortify a claim inadequately

presented in his motion. See People v. Rodriguez, 914 P.2d 230,

251 (Colo. 1996).

¶ 12 Because these three claims are successive, and Gray’s motion

did not allege that any exceptions to the successiveness bar applied,

the postconviction court was required to deny the claims. See

Crim. P. 35(c)(3)(VII). It did not err in doing so.

C. Ineffective Assistance of Counsel Claims

¶ 13 Next, Gray claimed that his trial counsel was ineffective for

failing to (1) poll the jury; (2) call Gray’s brother as a witness; (3)

show that Gray’s alleged fear of Donovan was grounded in the

reality of their longstanding property dispute, in addition to his

4
mental-illness-related perceptions; and (4) show that Donovan was

trespassing on Gray’s property when he was shot, for the purpose of

establishing a defense-of-premises defense.

¶ 14 To sufficiently allege an ineffective assistance of counsel claim,

a defendant must (1) “identify the acts or omissions of counsel that

are alleged not to have been the result of reasonable professional

judgment” (the deficient performance prong), Strickland v.

Washington, 466 U.S. 668, 690 (1984); and (2) “assert facts that, if

true, show a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different” (the prejudice prong), People v. Timoshchuk, 2018 COA

153, ¶ 22.

¶ 15 A postconviction court may deny an ineffective assistance

claim without conducting a hearing when the supporting allegations

are bare and conclusory; when the defendant fails to allege facts

that, if taken as true, would satisfy both Strickland prongs; or when

the record directly refutes the claim. People v. Duran, 2015 COA

141, ¶ 9; see Crim. P. 35(c)(3)(IV). However, when a defendant

alleges sufficient facts that, if true, may warrant relief, the court

5
must hold an evidentiary hearing. People v. Chalchi-Sevilla, 2019

COA 75, ¶ 7; see Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003).

¶ 16 Gray did not allege any prejudice related to his first two

ineffective assistance claims — that counsel failed to poll the jury

and to call his brother as a witness. Because his motion was devoid

of facts supporting Strickland’s prejudice prong for these claims, the

district court properly denied them without a hearing.

¶ 17 For his third ineffective assistance claim — that counsel failed

to show how his history with Donovan caused a heightened sense of

fear — Gray alleged prejudice only as follows: “the outcome of the

trial probably would have been different had the jury been made

aware of the reasons for Gray’s fear.” This bare and conclusory

statement of prejudice is insufficient to warrant a hearing. See

Townsell v. People, 2026 CO 11M, ¶ 34 (“While a defendant need

not use particular words [to allege Strickland prejudice], he must do

more than make conclusory allegations.”). Moreover, the record

shows that the jury heard substantial evidence showing that Gray’s

strained relationship with Donovan could have contributed to his

perceptions and fear on the day of the shooting. Counsel also

argued in closing that Gray’s prior experiences with Donavan had

6
affected his perceptions. For these reasons, Gray’s third ineffective

assistance of counsel claim did not warrant a hearing.

¶ 18 As we understand Gray’s Strickland allegations for his final

ineffective assistance claim, Gray alleged that (1) counsel’s

performance was deficient because they did not produce several

exhibits showing that Donovan was trespassing on Gray’s property

when he was shot; and (2) if counsel had shown that evidence, the

trial court would have allowed a defense-of-premises defense,

creating a reasonable probability that the jury would have found

him guilty of a lesser offense. However, the record demonstrates

that the trial court rejected a defense-of-premises defense based on

statutory limitations unrelated to whether Donovan was

trespassing. Assuming that Donovan was on Gray’s property when

he was shot, the court reasoned that the alleged circumstances did

not meet the criteria for the justifiable use of deadly force (1) in

defense of premises, which requires a reasonable belief that the

trespasser is attempting first degree arson, see § 18-1-705, C.R.S.

2025; or (2) against an intruder, which requires unlawful entry into

a dwelling, see § 18-1-704.5, C.R.S. 2025.

7
¶ 19 Because the record refutes Gray’s allegation that the result of

the proceeding would have been different if his counsel had

introduced evidence of Donovan’s location at the time of the

shooting, we conclude that the postconviction court appropriately

denied this claim without a hearing. See People v. McDowell, 219

P.3d 332, 340 (Colo. App. 2009) (concluding that the defendant

could not have been prejudiced by trial counsel’s failure to raise a

defense that would not have succeeded).

III. Disposition

¶ 20 The order is affirmed.

JUSTICE MARTINEZ and JUDGE HAWTHORNE concur.

8