Peo v. Hunter

20CA0993 Peo v Hunter 01-27-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA0993

Jefferson County District Court No. 02CR3254

Honorable Diego G. Hunt, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

James Henry Hunter,

Defendant-Appellant.

ORDER AFFIRMED

Division III

Opinion by JUDGE GOMEZ

J. Jones and Lipinsky, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced January 27, 2022

Philip J. Weiser, Attorney General, Grant R. Fevurly, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

James Henry Hunter, Pro Se

1

¶ 1 Defendant, James Henry Hunter, appeals the trial court’s

order denying his petition for new DNA testing. We affirm.

I. Background

¶ 2 In 2004, Hunter went to trial on charges of second degree

burglary, sexual assault, and sexual assault on a child for breaking

into and entering his neighbor’s home and sexually assaulting her

and her daughter. There was no question that the crimes had been

committed; the only question was whether the masked perpetrator

who had committed them was Hunter.

¶ 3 During the trial, the prosecution introduced DNA evidence

linking Hunter to the crime scene — specifically, two pubic hairs

matching his DNA profile (one matching his profile alone and the

other matching his profile with a mixture of the adult victim’s DNA).

The prosecution also presented other evidence pointing to Hunter,

including, among other things, his admission to investigating

officers that he was in the area the night of the crimes (he claimed

he was at home next door), his body size and features matching the

adult victim’s description of the perpetrator, evidence that he was

wearing clothes on the night of the crimes matching the description

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of the perpetrator’s clothes, and the adult victim’s testimony that

she recognized his voice based on her prior conversations with him.

¶ 4 The jury convicted Hunter on all charges, and the court

sentenced him to an aggregate prison term of eighty-four years to

life and designated him as a sexually violent predator.

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

convictions but vacated and remanded the sexually violent predator

designation for more specific factual findings. People v. Hunter,

(Colo. App. No. 04CA0699, Mar. 1, 2007) (not published pursuant

to C.A.R. 35(f)). Hunter didn’t raise any challenges on appeal

relating to the DNA evidence presented at trial. The supreme court

denied certiorari review, and the mandate was issued in 2007.

¶ 6 On remand, the trial court made further findings supporting

its designation of Hunter as a sexually violent predator. Hunter

appealed that issue again. Ultimately, the supreme court upheld

the designation. People v. Hunter, 2013 CO 48, ¶ 18. The mandate

in that case was issued in 2013.

¶ 7 In 2016, Hunter, through counsel, filed a timely Crim. P. 35(c)

motion alleging ineffective assistance by his trial counsel. In one of

his claims, he argued that trial counsel had failed to challenge

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deficiencies in the logging, storage, and analysis of the DNA

evidence. The postconviction court denied the motion without a

hearing. As to the claim regarding DNA evidence, the court

reasoned that the claim was essentially an attack on the sufficiency

and admissibility of the DNA evidence and, as such, was barred

because it could’ve been raised on direct appeal. The court also

held that, even if the claim wasn’t barred, it failed because Hunter’s

trial counsel had thoroughly litigated issues regarding the DNA

evidence at a pretrial hearing and there was no reasonable

probability that any mistake could’ve affected the outcome.

¶ 8 In a motion to reconsider, Hunter argued that the real issue

regarding the DNA evidence was that no written reports confirmed

that any of the hair follicles found at the scene belonged to him.

The postconviction court denied the motion to reconsider.

¶ 9 On appeal, a division of this court affirmed. People v. Hunter,

slip op. at ¶ 33 (Colo. App. No. 17CA2112, Apr. 25, 2019) (not

published pursuant to C.A.R. 35(e)). In doing so, the division

concluded that the record directly refuted Hunter’s claim relating to

the DNA evidence, as “a laboratory report . . . confirmed that two of

Hunter’s pubic hairs were found” at the scene. Id. at ¶ 22. The

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division also agreed with the postconviction court that, “[t]o the

extent Hunter complains about chain of custody or labeling issues,

. . . these are sufficiency and admissibility claims that could have

been raised on direct appeal and are therefore not properly

considered under Rule 35(c).” Id. at ¶ 24. The supreme court

denied review, and the mandate was issued in February 2020.

¶ 10 A month later, Hunter, acting pro se, filed the underlying

petition for new DNA testing pursuant to sections 18-1-411 to -417,

C.R.S. 2021. He argued that a piece of DNA evidence used to

convict him was “highly suspect due to [a] break in the chain-of-

custody” and was “unconvincing in light of advances in DNA

technology.” Thus, he requested new DNA testing, which he argued

would exclude him as the perpetrator of the crimes.

¶ 11 The trial court denied the petition, concluding that Hunter had

failed to sufficiently allege two of the factual criteria required by

section 18-1-413, C.R.S. 2021. First, he hadn’t adequately alleged

that favorable results of DNA testing would demonstrate his actual

innocence. Rather, the court pointed out, the division in his Crim.

P. 35(c) appeal had concluded that the record refuted his argument

challenging the reliability of the earlier DNA testing. And second,

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he hadn’t alleged that DNA testing wasn’t available prior to his

conviction. Instead, he alleged only that “advanced” DNA testing

wasn’t available at that time.

II. Analysis

¶ 12 Hunter’s arguments on appeal fall into two categories:

(1) arguments concerning alleged ineffective assistance by various

attorneys who represented him at different times in the case; and

(2) arguments concerning the trial court’s denial of his petition for

new DNA testing. We consider each in turn.

A. Ineffective Assistance of Counsel

¶ 13 Hunter’s primary argument on appeal is that he received

ineffective assistance from counsel throughout the case: from his

trial counsel, who failed to call an expert witness to establish the

unreliability of the DNA evidence due to a “break in [the] chain of

custody causing contamination and a false positive” from one of the

DNA samples; from his appellate counsel on direct appeal, who

failed to challenge the reliability of the DNA evidence in that appeal;

and from his postconviction counsel, who failed to include this

issue in his Crim. P. 35(c) motion.

¶ 14 Hunter’s ineffective assistance claims fail for several reasons.

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¶ 15 First, the claims were not preserved. Even broadly construing

Hunter’s pro se petition for new DNA testing, see People v. Cali,

2020 CO 20, ¶ 34, the petition didn’t raise any ineffective

assistance claims. The petition referred to alleged ineffective

assistance by trial counsel only in the context of attempting to

satisfy one of the elements for DNA testing. See § 18-1-413(1)(c)(II)

(requiring a petitioner to demonstrate that they didn’t secure DNA

testing prior to their conviction because such testing wasn’t

reasonably available “or for reasons that constitute justifiable

excuse, ineffective assistance of counsel, or excusable neglect”).

But it didn’t separately allege that Hunter was entitled to relief

based on the alleged ineffective assistance of his trial counsel. And

nowhere did it refer to any alleged ineffective assistance by Hunter’s

appellate or postconviction counsel. Thus, the claims were not

preserved for purposes of this appeal. See People v. Stovall, 2012

COA 7M, ¶ 3 (concluding that ineffective assistance claims not

presented to the trial court weren’t properly before this court).

¶ 16 Second, the claims are untimely. Ineffective assistance claims,

as collateral attacks on judgments of conviction cognizable under

Crim. P. 35(c), are subject to the limitations period prescribed by

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section 16-5-402(1), C.R.S. 2021. See People v. Thomas, 867 P.2d

880, 885-86 (Colo. 1994); People v. Clouse, 74 P.3d 336, 338-39

(Colo. App. 2002). Because Hunter was convicted of non-class 1

felonies, under section 16-5-402(1), he had three years from the

conclusion of his direct appeal to bring any ineffective assistance

claims. See § 16-5-402(1) (establishing a three-year limitation

period following the date of a non-class 1 felony conviction);

Hunsaker v. People, 2021 CO 83, ¶ 26 (explaining that a

“conviction” occurs for purposes of the statute once a defendant’s

appeal of the conviction has been exhausted).

¶ 17 But Hunter didn’t file the underlying petition until 2020 —

about thirteen years after the mandate was issued in his direct

appeal (in 2007) and seven years after the mandate was issued in

his appeal from the amended sexually violent predator designation

(in 2013). And he hasn’t asserted any grounds for an exception

under the statute. See § 16-5-402(2); Crim. P. 35(c)(3)(I); People v.

Abad, 962 P.2d 290, 291 (Colo. App. 1997).

¶ 18 Thus, even if we were to conclude that Hunter’s convictions

weren’t final until the conclusion of his appeal of the amended

sexually violent predator designation, his ineffective assistance

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claims are untimely. And, while a later deadline might apply to a

claim for ineffective assistance by postconviction counsel, see

§ 16-5-402(2)(d); Clouse, 74 P.3d at 341, as we have explained, no

such claim was preserved.

¶ 19 And third, the claims are successive. Absent specific

circumstances not alleged here, courts must deny postconviction

claims arising under Crim. P. 35(c) if the claims either were or could

have been raised and resolved in a prior appeal or postconviction

proceeding. Crim. P. 35(c)(3)(VI)-(VII); People v. Houser, 2020 COA

128, ¶ 15.

¶ 20 Hunter could have raised his ineffective assistance claims

(aside from his claim of ineffective assistance of postconviction

counsel) previously, in his earlier Crim. P. 35(c) motion and in his

appeal from the denial of that motion. Indeed, he did raise

ineffective assistance claims in those proceedings — and he raised

one such claim relating specifically to his trial counsel’s handling of

the DNA evidence. Thus, it is clear not only that Hunter could

have — but that he did — raise these issues in prior proceedings,

even if his arguments are slightly different now.

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¶ 21 For all these reasons, we decline to review Hunter’s ineffective

assistance claims.

B. New DNA Testing

¶ 22 Hunter also argues that the trial court erred by denying his

petition for new DNA testing. We are not persuaded.

¶ 23 As the trial court explained, a petition for DNA testing must

“include specific facts sufficient to support a prima facie showing

that post-conviction relief is warranted under the criteria set forth

in section 18-1-413.” § 18-1-412(2), C.R.S. 2021. And if the

motion, files, and record show to the satisfaction of the court that

the petitioner isn’t entitled to relief based on the criteria in section

18-1-413, the court must deny the motion without a hearing or the

appointment of counsel. § 18-1-412(3).

¶ 24 Those section 18-1-413 factual criteria include the following:

(a) Favorable results of the DNA testing will

demonstrate the petitioner’s actual innocence;

(b) A law enforcement agency collected

biological evidence pertaining to the offense

and retains actual or constructive possession

of the evidence that allows for reliable DNA

testing;

(c)(I) Conclusive DNA results were not available

prior to the petitioner’s conviction; and

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(II) The petitioner did not secure DNA testing

prior to his or her conviction because DNA

testing was not reasonably available or for

reasons that constitute justifiable excuse,

ineffective assistance of counsel, or excusable

neglect; and

(d) The petitioner consents to provide a

biological sample for DNA testing.

§ 18-1-413(1). In this context, “actual innocence” means “clear and

convincing evidence such that no reasonable juror would have

convicted the defendant.” § 18-1-411(1).

¶ 25 The trial court determined that Hunter hadn’t adequately

alleged factual criteria (a) and (c)(I).

¶ 26 We review that determination de novo. Although review of a

postconviction petition for DNA testing generally presents a mixed

question of fact and law, in which the court’s factual findings are

reviewed for clear error and its legal conclusions de novo, People v.

Thompson, 2020 COA 117, ¶ 24, here the trial court denied the

petition without conducting a hearing or making any factual

findings. Thus, the de novo standard applicable to a court’s denial

of a Crim. P. 35(c) motion without a hearing is more fitting. See

Houser, ¶ 43.

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¶ 27 Applying this standard, we agree with the trial court that

Hunter failed to adequately plead the factual criteria in

section 18-1-413(1)(a) and (c)(I).

¶ 28 As to factual criterion (1)(a), Hunter didn’t adequately plead

that favorable DNA testing would demonstrate his actual innocence.

Although he speculates that new DNA testing could establish that

the prior testing of one of the samples (which supposedly had been

contaminated during a break in the chain of custody) resulted in a

false positive, that still wouldn’t negate the other sample from the

scene that also matched his DNA profile. Nor would it negate the

other evidence that supported the jury’s verdict — including, in

particular, evidence that he was in the vicinity of the crime scene at

the time of the crimes, that his body size and features matched

those of the perpetrator, that he was wearing clothes that fit the

description of those worn by the perpetrator, and that the adult

victim recognized his voice.

¶ 29 Thus, additional testing would not demonstrate actual

innocence, as it would not provide clear and convincing evidence

such that no reasonable juror would have convicted Hunter of the

crimes. See § 18-1-411(1); see also Thompson, ¶ 26 (agreeing with

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the trial court that any DNA testing revealing the absence of the

defendant’s DNA on items from the crime scene wouldn’t establish

his actual innocence, as it “would not necessarily or logically rebut

other strong evidence of [his] guilt”); People v. Young, 2014 COA

169, ¶¶ 62-63 (affirming the trial court’s finding that the defendant

had shown only that evidence from the crime scene could be

subject to further DNA testing but not that such testing would have

established his actual innocence).

¶ 30 Additionally, as to factual criterion (1)(c)(I), Hunter didn’t

allege that conclusive DNA results were not available prior to his

conviction. He alleged only that one of the two DNA samples that

was presented at trial was contaminated and that additional testing

with newer technology might show it didn’t match his DNA profile.

In reviewing Hunter’s Crim. P. 35(c) appeal, a division of this court

has already rejected his argument that the DNA evidence presented

at trial wasn’t conclusive. His challenges to the sufficiency and

admissibility of that evidence, which the trial court and divisions of

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this court have rejected multiple times, don’t satisfy his burden

under section 18-1-413(1)(c)(I).

1

III. Conclusion

¶ 31 The order is affirmed.

JUDGE J. JONES and JUDGE LIPINSKY concur.

1

Because we agree with the reasons stated by the trial court for its

denial of the petition, we don’t consider the People’s argument that

Hunter also failed to include the results of all prior DNA tests in his

petition, as required by section 18-1-412(2), C.R.S. 2021.