Peo v. Forbes

23CA1431 Peo v Forbes 09-11-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1431
El Paso County District Court No. 14CR2084
Honorable Marcus S. Henson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jason Romeo Forbes,

Defendant-Appellant.

ORDERS AFFIRMED

Division IV
Opinion by JUDGE GOMEZ
Freyre and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 11, 2025

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

Jason Romeo Forbes, Pro Se
¶1 Defendant, Jason Romeo Forbes, appeals the postconviction

court’s orders denying his Crim. P. 35(c) petition for postconviction

relief following an evidentiary hearing, his motion requesting

funding for an expert affidavit, and his motion for leave to file

additional claims for relief. We affirm.

I. Background

¶2 In May 2014, three men met in the parking lot of a bar in

Colorado Springs to complete a marijuana sale. The sellers, David

Johnson and Javar Harrison, sat in the front of Johnson’s car,

while the buyer sat in the back of the car to inspect the drugs.

Harrison was getting out of the car to go inside the bar when he

heard the other men disagreeing over the quality of the drugs.

According to Harrison, Johnson told the buyer he didn’t have to buy

the marijuana if he didn’t like the look of it. The buyer responded,

“Well, check this out,” pulled a handgun from his pocket, and shot

Johnson twice. Harrison was also hit as he ran away from the car.

According to Harrison, the shooter started toward his own car but

then turned back, found Harrison hiding behind another vehicle,

and shot him twice more as he tried to crawl away. The shooter

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then drove away in a white Audi with distinctive large chrome wheel

rims and a temporary license plate tag.

¶3 Johnson was struck in the head and chest and died at the

scene. Harrison suffered four wounds in his torso and back but

survived after being placed in a medically induced coma. At the

scene, Harrison told bystanders the shooter was “Johnathan.”

Later, he identified the shooter as a man he knew as “Smoke.” He

said he knew “Smoke’s” name started with a J but could only think

of “Johnathan” at the time of the shooting.

¶4 At trial, the prosecution presented testimony by a forensics

expert who examined Johnson’s car and testified that latent

fingerprints matching Forbes’s were on the outside handle of the

car door the shooter had used. Additionally, cell phone records

revealed several calls between Forbes and Johnson in the hours

leading up to the shooting, and photos and text messages recovered

from Forbes’s cell phone linked him to a white Audi with distinctive

chrome rims and showed him trying to get rid of the car and the

rims following the shooting. The prosecution also presented

evidence that after the shooting, Forbes made multiple internet

searches regarding the shooting, the effects of medically induced

2
comas on memory, and whether cars can be traced through

temporary tags. And cell phone tracking data showed that, at the

time surrounding the shooting, two phones associated with Forbes

traveled from the general location of his home in Fountain to the

general location of the shooting in central Colorado Springs and

then (as to one of the phones) back to the general location of his

home.

¶5 Both Harrison and Forbes testified at trial. Harrison identified

Forbes as the shooter and the man he knew as “Smoke.” Forbes

denied shooting Johnson and Harrison and said he had been with a

woman at her house in Colorado Springs on the day of the shooting.

Other eyewitnesses also testified, describing the shooter in a way

that fit Forbes’s description.

¶6 A jury convicted Forbes of first degree murder, attempted first

degree murder, and first degree assault.

¶7 Forbes appealed his conviction, and a division of this court

affirmed. See People v. Forbes, (Colo. App. No. 15CA0914, Aug. 10,

2017) (not published pursuant to C.A.R. 35(e)).

¶8 Forbes then filed a timely petition for postconviction relief and

request for appointment of counsel. The postconviction court

3
appointed counsel, who filed a supplement to the petition followed

by three additional supplements. In those filings, Forbes claimed

that his trial counsel and his direct appeal counsel were ineffective

in various ways. The postconviction court held an evidentiary

hearing on Forbes’s claims and rejected them, making oral findings

followed by written findings on the final supplement Forbes’s

counsel filed after the court’s oral findings.

¶9 After the court’s initial oral ruling, and while the final

supplement was pending, Forbes filed a motion requesting funding

to present an affidavit from an additional expert, which the court

denied. Additionally, Forbes filed a motion for leave to file

additional ineffective assistance of counsel claims, which the court

also denied.

¶ 10 Forbes now appeals. Because he is self-represented in his

appeal, we construe his briefing broadly to ensure that we review all

the issues he raises. See People v. Cali, 2020 CO 20, ¶ 34.

II. Ineffective Assistance of Counsel Claims

¶ 11 Forbes challenges the postconviction court’s rejection of his

ineffective assistance of counsel claims. We first address his claims

4
regarding his trial counsel and then address those regarding his

direct appeal counsel.1

A. Ineffective Assistance of Trial Counsel

¶ 12 Forbes argues that trial counsel rendered ineffective

assistance relating to (1) the fingerprint evidence; (2) the compiled

exhibit of his text messages; and (3) a misstatement in the

testimony of the cell phone record custodian.

¶ 13 We first set forth the applicable legal standards and then

address each of these arguments in turn.

1. Applicable Law and Standard of Review

¶ 14 The United States and Colorado Constitutions both guarantee

a criminal defendant a right to the effective assistance of counsel.

U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16; People v.

Rainey, 2023 CO 14, ¶ 1. When evaluating claims of ineffective

assistance of counsel, we apply the two-prong test set forth in

Strickland v. Washington, 466 U.S. 668 (1984). Ardolino v. People,

69 P.3d 73, 76 (Colo. 2003); People v. Long, 126 P.3d 284, 286

1 Any postconviction claims that Forbes raised in the postconviction

court but did not reassert on appeal have now been abandoned.
See People v. Osorio, 170 P.3d 796, 801 (Colo. App. 2007).

5
(Colo. App. 2005). To prevail on such a claim, the defendant must

show that (1) their counsel’s performance was deficient and (2) the

deficient performance prejudiced them. Strickland, 466 U.S. at 687.

¶ 15 To establish deficient performance, the defendant must prove

that counsel’s representation “fell below an objective standard of

reasonableness.” Id. at 688. In conducting the reasonableness

inquiry, a court must make “every effort . . . to eliminate the

distorting effects of hindsight, to reconstruct the circumstances of

counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.” Id. at 689. And “a court must

indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance; that is, the

defendant must overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound

trial strategy.’” Id. (citation omitted).

¶ 16 To establish prejudice, the defendant must show that there is

a reasonable probability that, absent the errors, the result of the

proceeding would have been different. Id. at 694. “A reasonable

probability is a probability sufficient to undermine confidence in the

outcome.” Id.

6
¶ 17 A defendant must make both showings to require reversal of a

conviction. Id. at 687. Thus, a postconviction court may reject an

ineffective assistance of counsel claim if the defendant fails to

demonstrate either prong. People v. Aguilar, 2012 COA 181, ¶ 9.

¶ 18 We review the denial of a Crim. P. 35(c) petition after a hearing

as a mixed question of fact and law. People v. Corson, 2016 CO 33,

¶ 25. We defer to the postconviction court’s factual findings but

review de novo the court’s ultimate conclusions on the performance

and prejudice prongs. People v. Sharp, 2019 COA 133, ¶ 12. The

postconviction court determines the weight and credibility to be

given to any witness testimony at a Crim. P. 35(c) hearing. People v.

Hardin, 2016 COA 175, ¶ 39. Accordingly, “[w]here the evidence in

the record supports the findings and holding of the postconviction

court that presided over an evidentiary hearing, the judgment will

not be disturbed on review.” People v. Wardell, 2020 COA 47, ¶ 27.

2. Fingerprint Evidence

¶ 19 Forbes argues that trial counsel rendered ineffective

assistance in addressing the prosecution’s fingerprint evidence

because she failed to sufficiently challenge (1) police investigators’

preservation of the car on which the fingerprints were found; (2) the

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documentation of the fingerprints on the car; (3) the limitations of

the science of fingerprint examination; and (4) the fingerprint

examiner’s identification of the fingerprints as Forbes’s. We

address each argument in turn.

a. Preservation of the Car

¶ 20 After Forbes was taken into custody in connection with the

shooting, his counsel filed a motion for preservation of physical

evidence. On the same day the trial court granted that motion,

police investigators conducted an examination of Johnson’s car,

including lifting latent fingerprints from the car’s exterior. After the

examination, the car was transported to the police department’s

outdoor impound lot, rather than keeping it in the covered evidence

bay. Forbes claims that storing the car outside allowed for the

destruction of any remaining physical evidence on the car’s exterior,

inhibiting the defense from performing its own testing on the car.

¶ 21 Forbes argues that trial counsel should have more effectively

cross-examined prosecution witnesses about the adequacy of the

preservation of the car. We decline to consider this argument

because Forbes didn’t raise it in his Crim. P. 35(c) petition or

supplements; thus, it is not preserved. See People v. Stovall, 2012

8
COA 7M, ¶ 3 (“[A]llegations not raised in a Crim. P. 35(c) motion or

during the hearing on the motion are not properly preserved and

may not be raised for the first time on appeal . . . .” (citing People v.

Goldman, 923 P.2d 374, 375 (Colo. App. 1996))). Instead, Forbes

only made the related argument that trial counsel should have

presented expert testimony highlighting investigators’ failure to

preserve evidence.

¶ 22 We also agree with the postconviction court’s rejection of the

related argument that was preserved. As the postconviction court

noted, counsel addressed issues concerning preservation of the car

extensively before and during the trial. Not only did trial counsel

file the motion for the preservation of evidence, she also filed a

motion for sanctions for the violation of the order for preservation.

And when that motion was denied, she filed a petition in the

supreme court for relief pursuant to C.A.R. 21, which was also

denied. She also cross-examined one of the prosecution’s witnesses

about the lack of preservation of the car.

¶ 23 Given trial counsel’s efforts regarding this issue, we agree with

the postconviction court’s conclusion that her performance did not

fall below an objective standard of reasonableness. See Strickland,

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466 U.S. at 688-89; see also Aguilar, ¶ 12 (trial counsel didn’t

render ineffective assistance by not hiring an expert but challenging

the prosecution’s evidence in other ways).

b. Documentation of the Fingerprints

¶ 24 During the trial, the prosecution called Dan Dilts from the

Colorado Springs Police Department’s Metro Forensic Crime

Laboratory to testify about his collection and examination of the

latent fingerprints found on Johnson’s car.

¶ 25 Dilts testified that before he collected the latent fingerprints

from the car’s door handle, he took photos of them. But it was

difficult to see the prints on the chrome surface in those photos.

¶ 26 Forbes argues that trial counsel should have called an expert

to demonstrate the deficiencies in Dilts’s documentation, as the

evidence presented was insufficient to document the location where

the fingerprints were recovered and Dilts should’ve used ninhydrin,

superglue fumes, omni light, or enhanced digital images to increase

the visibility of the fingerprints in the photos.

¶ 27 Again, we agree with the postconviction court’s rejection of

this argument. While trial counsel didn’t call an expert to challenge

the documentation of the fingerprints, she did cross-examine Dilts

10
on his documentation — and specifically on how difficult it is to see

any fingerprints on the chrome door handle in the photos. In

response to trial counsel’s questioning, Dilts explained the

challenges associated with photographing latent fingerprints on

chrome surfaces.

¶ 28 Under these circumstances, we cannot conclude that trial

counsel’s efforts fell outside the wide range of reasonable

professional assistance. See Strickland, 466 U.S. at 688-89;

Aguilar, ¶ 12.

c. Limitations of Latent Fingerprint Examination

¶ 29 At trial, Dilts explained that he lifted latent fingerprints from

the rear passenger door, which he ran through the Automated

Fingerprint Identification System (AFIS). One of the candidates

AFIS returned was Forbes, who was by then already a suspect.

Dilts conducted a “one-to-one comparison” and concluded that the

prints came from Forbes’s right index and middle fingers.

¶ 30 The prosecutor asked Dilts about his level of certainty in

making a match like this. Dilts responded,

When you’re making a match, you have to
understand that you have to basically have
a hundred percent degree of certainty that

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you’re making a correct identification. There’s
things that are at stake here, obviously,
someone who you’re identifying in a crime.
That’s very important to take that weight.
Also, in my career, I put my career on the line
every time I make an identification. Because if
I make a false identification, I’ll never be able
to testify again. It will be brought up every
time thereafter . . . .

(Emphasis added.)

¶ 31 At the postconviction hearing, Forbes presented evidence —

primarily a 2009 National Academy of Sciences report and the

testimony of an expert on forensic sciences — suggesting there are

limits to the science of latent fingerprint examination. The expert

testified that, based on these limits, there is a push for fingerprint

examiners to move away from using language like “match” or

“hundred percent” certainty while testifying in criminal cases. The

expert opined that such terminology is “not scientific” because it

can falsely convey that there is no rate of error. The expert also

discussed the impact of confirmation bias in fingerprint

identification, particularly where the examiner knows who is

already suspected to have committed a crime.

¶ 32 Although it’s not entirely clear, it appears that Forbes may be

reasserting an argument he made below that his trial counsel

12
should’ve cross-examined Dilts on the limitations of latent

fingerprint identification and on confirmation bias and should’ve

contested Dilts’s “bolstering” of his own testimony by suggesting he

was a hundred percent certain the prints were Forbes’s.2

¶ 33 But the postconviction court found, with record support, that

although Forbes’s trial counsel didn’t specifically refer to the 2009

National Academy of Sciences report, she did cross-examine Dilts

on some of the limitations of the science of fingerprint evidence.

Trial counsel further cross-examined Dilts on potential confirmation

bias by asking him about the fact that, before he began his

analysis, he already knew that Forbes had been identified as a

suspect in the case.

¶ 34 Because trial counsel cross-examined Dilts on the science of

fingerprint examination generally and on his analysis specifically,

we agree with the postconviction court’s conclusion that her

performance did not fall below an objective standard of

2 Forbes also sought to admit another report from the National

Academy of Sciences, released in 2017, as newly discovered
evidence. The postconviction court declined to consider that report.
Forbes doesn’t appear to challenge that ruling on appeal. Thus, the
issue has been abandoned. See Osorio, 170 P.3d at 801.

13
reasonableness. See Strickland, 466 U.S. at 688-89; see also Arko

v. People, 183 P.3d 555, 558 (Colo. 2008) (as “captain of the ship,”

counsel has the final authority to make strategic decisions like

determining “whether and how to conduct cross-examination” (first

quoting Steward v. People, 498 P.2d 933, 934 (Colo. 1972); and

then quoting People v. Curtis, 681 P.2d 504, 511 (Colo. 1984))).

d. Identification of the Fingerprints

¶ 35 Finally, Forbes contests trial counsel’s decision not to call an

expert to refute Dilts’s identification of the fingerprints as Forbes’s

and counsel’s concession in closing arguments that Dilts’s

identification was accurate.

¶ 36 Trial counsel did consult her own expert on fingerprint

evidence, but that expert agreed with Dilts’s conclusion. Instead of

attempting to establish that the fingerprints in question were not

Forbes’s, trial counsel focused on highlighting the fact that

investigators couldn’t definitively establish how or when those

prints were deposited, thus calling into question what relevance the

prints had in connecting Forbes to the shooting. Because this was

a reasonable trial strategy adopted by counsel, we agree with the

postconviction court’s conclusion that it did not fall outside the

14
wide range of reasonable professional assistance. See Strickland,

466 U.S. at 688-89; Arko, 183 P.3d at 558; Aguilar, ¶ 12.

3. Text Messages

¶ 37 At trial, the prosecution admitted, without objection, a 212-

page compilation of Forbes’s text messages from the days leading

up to and following the shooting. The compilation included texts

indicating that Forbes was told that investigators were looking for a

white Audi in connection with the shooting. It also included texts

indicating that almost immediately afterward, Forbes began trying

to get rid of an Audi and take the rims off of it.

¶ 38 Forbes contends that trial counsel was ineffective because she

failed to object to the admission of some of the text messages in the

compilation on relevance and hearsay grounds.

¶ 39 As to the issue of relevance, Forbes asserts that, because some

of the texts in the compilation included “sexually explicit content,”

those texts were irrelevant and prejudicial insofar as the jury might

have inferred that he was a “sexually deviant person” and convicted

him on that basis. We agree with the postconviction court’s

determination that some of the texts were “not necessarily relevant.”

Nonetheless, we also agree with the court’s conclusion that failing

15
to object to the inclusion of those texts on relevance grounds isn’t

so deficient as to fall outside the wide range of reasonable

professional assistance. See Strickland, 466 U.S. at 688-89.

¶ 40 Turning to the issue of hearsay, Forbes asserts that his trial

counsel should have objected to the text message compilation —

which was introduced through the testimony of an investigating

officer — on the basis that the texts constituted hearsay. But, as

the postconviction court pointed out, the texts Forbes had sent were

admissible statements of the defendant, and many of the other texts

were arguably adopted admissions of the defendant (or provided

context for his admissions). See CRE 801(d)(2); People v. Hagos,

250 P.3d 596, 623 (Colo. App. 2009). Still other texts were not

admitted for the truth of the matter asserted and, thus, weren’t

hearsay at all. See CRE 801(c). Therefore, even if trial counsel had

objected on the basis of hearsay, most, if not all, of the texts likely

would’ve been admitted anyway. Trial counsel’s performance

accordingly was not constitutionally deficient. See Strickland, 466

U.S. at 688-89; see also Williams v. Trammell, 782 F.3d 1184, 1198

(10th Cir. 2015) (“[W]hen a defendant fails to show that a trial

court’s admission of evidence was improper for some reason, it

16
likely follows that the lawyer did not perform deficiently by failing to

object to its admission.”); Garrett v. United States, 78 F.3d 1296,

1302 (8th Cir. 1996) (“The performance of an attorney is not

deficient because the attorney failed to object to admissible

evidence . . . .”).

¶ 41 Moreover, even if we were to accept Forbes’s argument that his

counsel’s performance was deficient as to either or both of these

objections to the text message evidence, we also agree with the

postconviction court’s conclusion that any failure to object was not

prejudicial. See Strickland, 466 U.S. at 694. Forbes doesn’t explain

how the sexually explicit texts would’ve made a difference to the

jury, particularly given that some of those texts were with the

woman he claimed to have been with for a “booty call” at the time of

the shooting. He also doesn’t explain how any particular texts that

might have been considered hearsay damaged his case. And, in any

event, there was overwhelming evidence apart from the text

messages establishing Forbes’s guilt — including, among other

things, Harrison’s identification of him as the shooter, eyewitnesses

who described the shooter as fitting his description, phone records

showing multiple calls between him and Harrison before the

17
shooting, cell phone records showing his location during the

shooting, his fingerprints on Johnson’s car door handle, his

internet search history, and photos showing him in front of a white

Audi with distinct chrome rims (a car fitting the description of the

car eyewitnesses say the shooter left in).

4. Cell Phone Subscriber Information

¶ 42 At trial, a records custodian testified that Forbes was the

subscriber for one of the phone numbers the prosecution alleged

was connected with Forbes. However, the subscriber for that

number was unknown. Forbes contends that his trial counsel

failed to object to the custodian’s testimony or seek to correct the

record — which she indicated she didn’t do because she “had the

phones confused.”

¶ 43 However, the postconviction court found, with record support,

that regardless of who was the actual subscriber, all the evidence

suggested that Forbes was the user of that phone number during

the relevant time period. Indeed, Harrison had the phone number

saved in his phone under the name “Smoke,” and he testified that

he knew Forbes as “Smoke.” Moreover, the cell phone data showed

that the phone affiliated with that number, along with another

18
phone owned by Forbes, travelled on the day of the shooting from

the vicinity of Forbes’s home to the vicinity of the shooting and back

again.

¶ 44 Although a defendant has a right to effective representation,

that doesn’t equate to “a right to an attorney who performs [her]

duties ‘mistake-free.’” Weaver v. Massachusetts, 582 U.S. 286, 300

(2017) (quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 147

(2006)). Given the postconviction court’s observation that the

weight of the evidence pointed to the phone number being Forbes’s,

it was likely not obvious to trial counsel that there had been a

mistake in the testimony. For the same reason, the error was not

likely to have any prejudicial impact. And, as noted above, there

was substantial evidence supporting Forbes’s convictions.

Accordingly, we agree with the postconviction court’s rejection of

this claim under both Strickland prongs. See Strickland, 466 U.S.

at 688-89, 694.

B. Ineffective Assistance as to Direct Appeal Counsel

¶ 45 Forbes further contends that his direct appeal counsel

rendered constitutionally deficient performance by failing to

19
challenge the admission of the text messages on hearsay and

Confrontation Clause grounds.

¶ 46 The same two-pronged Strickland test applies to claims of

ineffective assistance of appellate counsel. Long, 126 P.3d at 286.

¶ 47 To establish the performance prong, “the defendant must show

that counsel failed to present the case effectively” — for example, by

“ignor[ing] issues that are clearly stronger than those presented.”

Id. But “[a]ppellate counsel is not required to raise on appeal every

nonfrivolous issue a defendant desires to raise.” People v. Trujillo,

169 P.3d 235, 238 (Colo. App. 2007). “‘[O]nly when ignored issues

are clearly stronger than those presented, will the presumption of

effective assistance of counsel be overcome,’ even in the context of a

direct appeal.” Id. (alteration in original) (quoting Ellis v. Hargett,

302 F.3d 1182, 1189 (10th Cir. 2002)).

¶ 48 To establish the prejudice prong on the basis of a failure to

raise specific issues on appeal, the defendant must show that but

for counsel’s errors, they would have prevailed in the appeal. See

Long, 126 P.3d at 286; Trujillo, 169 P.3d at 238-39.

¶ 49 Just as the postconviction court did, we conclude, for the

same reasons we conclude that Forbes’s trial counsel was not

20
ineffective as it relates to the text messages, that his direct appeal

counsel also was not ineffective. Simply stated, even if the texts

had been challenged on hearsay or Confrontation Clause grounds,

most of them were likely to have been found admissible as

statements of a party opponent, adoptive admissions, statements

providing context to Forbes’s admissions, or nonhearsay. See CRE

801(c), (d)(2); Hagos, 250 P.3d at 623. And even if some of the

messages had been excluded, it wouldn’t have made a difference in

the outcome of the trial. Therefore, it was reasonable for direct

appeal counsel to not have raised the issue on direct appeal. We

thus conclude that direct appeal counsel’s performance did not fall

below an objective standard of reasonableness. See Strickland, 466

U.S. at 688-89; Long, 126 P.3d at 286; Trujillo, 169 P.3d at 238-39.

C. Cumulative Error

¶ 50 Forbes asserts that his ineffective assistance of counsel claims

rise to the level of cumulative error. “For reversal to occur based on

cumulative error, a reviewing court must identify multiple errors

that collectively prejudice the substantial rights of the defendant,

even if any single error does not.” Howard-Walker v. People, 2019

CO 69, ¶ 25; see also People v. Gandiaga, 70 P.3d 523, 529 (Colo.

21
App. 2002) (applying the same standard when considering the

cumulative impact of multiple alleged ineffective assistance of

counsel claims).

¶ 51 We have rejected all of Forbes’s claims of ineffective assistance

of counsel on the basis that he hasn’t shown that his trial or

appellate counsel rendered constitutionally defective assistance.

Because we have not identified any errors — much less multiple

errors — we reject Forbes’s cumulative error claim.

III. Request for Funding for Expert Affidavit

¶ 52 Forbes also challenges the postconviction court’s denial of his

request for funding for an additional expert affidavit. We reject this

challenge.

¶ 53 We review the court’s order denying Forbes’s request for an

abuse of discretion. See People v. Stroud, 2014 COA 58, ¶ 5.

Accordingly, we will not disturb the court’s decision unless it is

manifestly arbitrary, unreasonable, or unfair or is based on an

erroneous understanding or application of the law. See id.

¶ 54 Forbes’s request — which he filed after the postconviction

court had held an evidentiary hearing and issued an oral ruling

denying his claims — proposed that an expert would provide an

22
additional opinion regarding his trial counsel’s failure to challenge

the prosecution’s fingerprint evidence. The request didn’t indicate

what the new expert would opine.

¶ 55 In denying Forbes’s request, the court explained that it had

already considered all the testimony and arguments the parties had

presented in their pleadings and at the hearing, including testimony

from a defense expert, and had already issued an oral ruling

disposing of all the claims presented to it up to that point, including

those relating to the fingerprint evidence. It then concluded, “The

Court does not find it appropriate or necessary to consider any

further evidence on these issues in the form of any expert affidavit.”

¶ 56 Given that the postconviction court had already denied the

underlying claims and that Forbes’s request didn’t indicate what an

additional expert would add to the evidence the court had already

considered, we conclude that the court’s denial of Forbes’s request

was not manifestly arbitrary, unreasonable, or unfair or based on

an erroneous understanding or application of the law. See id.

Accordingly, we don’t disturb its decision.

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IV. Motion for Leave to File Additional Claims

¶ 57 Lastly, Forbes challenges the postconviction court’s order

denying his motion for leave to file additional claims. We also reject

this challenge.

¶ 58 At the time of the postconviction court’s oral ruling rejecting

the ineffective assistance of counsel claims Forbes had asserted up

to that point, the court indicated that it would allow Forbes’s

postconviction counsel to file an additional supplement relating to

the fingerprint evidence. Counsel filed that supplement less than a

week later, and the court denied the supplemental claims in its

later written order.

¶ 59 In the interim period when only the final supplement was

pending, Forbes filed a pro se motion for leave to file additional

claims. In that motion, he attempted to assert additional ineffective

assistance of counsel claims regarding the cell phone evidence.

¶ 60 The postconviction court denied the motion, explaining that it

had already considered Forbes’s “wide-ranging prior claims of

ineffective assistance of trial counsel” asserted in his petition and

his counsel’s supplements and had provided Forbes and his

counsel an opportunity to establish the basis for those claims at an

24
evidentiary hearing. The court noted that some of the issues raised

in Forbes’s motion had already been raised and rejected, while

others were new issues that could’ve been raised in the previous

pleadings. Noting that the claims were essentially successive

postconviction petitions, the court concluded that it “d[id] not find

sufficiently special circumstances to warrant the consideration of

these new claims as they are substantially similar and related to

claims to [sic] previously raised and resolved.”

¶ 61 Forbes doesn’t deny that a court must deny a Crim. P. 35(c)

claim as successive if the claim was raised, or could have been

raised, in a previous postconviction proceeding. See Crim. P.

35(c)(3)(VI), (VII); People v. Taylor, 2018 COA 175, ¶ 17.

Nonetheless, he argues that this provision doesn’t apply because

his original postconviction proceeding was still under consideration,

and not yet final, at the time he requested to file additional claims.

¶ 62 We decline to decide whether the postconviction court properly

viewed the motion as a request to file successive claims because we

conclude that even if any claims weren’t successive, they were

untimely. Thus, the court didn’t err in denying the motion. See

People v. Duran, 2025 COA 34, ¶ 26 (“[W]e may affirm the

25
postconviction court’s order on any ground supported by the

record, whether or not the postconviction court relied on or

considered that ground.”).

¶ 63 Under Crim. P. 35(c)(3)(V), if a defendant files a pro se Rule

35(c) petition and requests appointed counsel and the court doesn’t

summarily deny the petition, the court must serve a copy of the

petition on the public defender’s office and allow it (or, as here,

alternate defense counsel) forty-nine days to file any additional

claims or seek further time to do so. After invoking this procedure,

the court granted requests by Forbes’s postconviction counsel for

additional time to investigate and supplement the original petition.

Postconviction counsel then filed the initial supplement, and while

awaiting a hearing (which was reset a few times), counsel filed two

further supplements, which the court accepted. And, as indicated,

the court allowed a final supplement filed shortly after the court’s

oral ruling based on additional issues that had been raised during

the hearing.

¶ 64 The postconviction court did not have to allow any further

supplements filed after that time. And by the time Forbes filed his

motion for leave to file additional claims, more than four and a half

26
years had passed since he filed his initial petition. Accordingly, the

court didn’t err in denying the motion. See People v. Marquez, 2020

COA 169M, ¶ 25 (although “a court may choose to excuse appointed

counsel’s failure to comply with the forty-nine-day deadline,” a

court “[i]sn’t required to do so . . . where [a motion] was filed more

than two years after postconviction counsel was appointed”).

V. Disposition

¶ 65 The orders are affirmed.

JUDGE FREYRE and JUDGE MEIRINK concur.

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