Peo v. Close

24CA0600 Peo v Close 05-14-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0600
City and County of Denver District Court No. 15CR4878
Honorable Eric M. Johnson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

James C. Close,

Defendant-Appellant.

ORDER AFFIRMED

Division I
Opinion by JUDGE DUNN
J. Jones and Fox, JJ., concur

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

Philip J. Weiser, Attorney General, Grant R. Fevurly, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Lauretta A. Martin Neff, Alternate Defense Counsel, Montrose, Colorado, for
Defendant-Appellant
¶1 James C. Close appeals the postconviction court’s order

denying his Crim. P. 35(c) motion without a hearing and without

the appointment of postconviction counsel. He argues that his

allegations of ineffective assistance of counsel — specifically his

allegation that counsel failed to “pursue evidence of [the victim’s]

history of false reports” — are sufficient to warrant the appointment

of postconviction counsel. We affirm.

I. Factual and Procedural Background

¶2 Based on allegations that he sexually assaulted a teenager

who was living at his house, the People charged Close with sexual

assault on a child (position of trust) and sexual assault on a child

(pattern of sexual abuse).

¶3 Close did not testify at trial, but his counsel defended on the

theory that the victim fabricated the allegations. The theory of

defense was not without support. For example, the victim’s mother

testified that the victim was untruthful about “significant things”

and that throughout her life, the victim “made up allegations” to get

people in trouble. As to the last point, the victim’s mother told the

jury about false allegations the victim had made against a few

family members as well as a “boy from her school.” As to the

1
accusations against Close, the victim’s mother expressed “doubts

about what [her] daughter was saying.”

¶4 The jury convicted Close as charged, and the court sentenced

him to twelve years to life in prison. On appeal, a division of this

court affirmed the judgment of conviction. See People v. Close,

(Colo. App. No. 18CA1071, Feb. 10, 2022) (not published pursuant

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

¶5 Close filed a timely pro se Rule 35(c) motion alleging that his

trial counsel had provided ineffective assistance. He alleged that

his attorney provided ineffective assistance by (1) eliciting and

commenting on bolstering testimony; (2) failing to ask the court to

allow evidence of the victim’s history of false reporting of sexual

assaults; (3) allowing the victim’s “PTSD” testimony; (4) failing to

object to the court’s response to a jury question; and (5) failing to

raise a jurisdictional objection to a detective’s testimony. He also

alleged that counsel’s errors cumulatively resulted in ineffective

assistance. Close asked for appointment of postconviction counsel

and a hearing.

¶6 The postconviction court denied Close’s motion without

appointing counsel and without a hearing. Rejecting the claims for

2
different reasons, the court found none of them potentially

meritorious.

II. Analysis

¶7 Now represented by counsel, Close contends that his

allegations of ineffective assistance of counsel are sufficient to

warrant the appointment of postconviction counsel. Thus, he asks

us to “put the train back on the tracks at the point it got derailed”

and remand the case for appointment of postconviction counsel,

“the opportunity to supplement[]” the motion, and “reconsideration

of the merits of” the motion and any supplement “as required by the

law.”

A. Legal Principles and Standard of Review

¶8 Defendants have a constitutional right to effective assistance

of counsel. Strickland v. Washington, 466 U.S. 668, 684-86 (1984).

To demonstrate ineffective assistance of counsel, a defendant must

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

deficient performance prejudiced the defense. Id. at 687. An

ineffective assistance claim fails if the defendant is unable to satisfy

either prong. Id. at 697; see also Dunlap v. People, 173 P.3d 1054,

1062-63 (Colo. 2007) (adopting the two-prong Strickland test).

3
¶9 To establish deficient performance, the defendant must show

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

reasonableness.” Strickland, 466 U.S. at 688. To establish

prejudice, the defendant must show that there is a reasonable

probability that, but for counsel’s errors, the result of the

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

probability means a probability sufficient to undermine confidence

in the outcome. Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003).

¶ 10 A court may deny a Rule 35(c) motion without a hearing and

without appointing counsel if the motion, files, and record in the

case clearly establish that the allegations in the defendant’s motion

do not warrant postconviction relief. Id. at 77; see also Crim. P.

35(c)(3)(IV), (V) (discussing procedure for review of Rule 35(c)

motions and when service on the prosecution and the public

defender (if counsel is requested) is required).

¶ 11 We review de novo the denial of a Rule 35(c) motion without a

hearing, People v. Cali, 2020 CO 20, ¶ 14, and may affirm a ruling

on any basis supported by the record, see People v. Glover, 2015

COA 16, ¶ 22. And while we broadly construe pro se motions to

ensure that litigants are not “denied review of important issues

4
because of their inability to articulate their argument like a lawyer,”

we may neither rewrite a pro se litigant’s motion nor act as their

advocate. Cali, ¶ 34 (citation omitted).

B. The Postconviction Court Did Not Err by Denying the Pro Se
Rule 35(c) Motion

¶ 12 Close primarily argues that he adequately alleged that trial

counsel provided ineffective assistance by failing to “pursue

evidence of [the victim’s] history of false reports” and that the

postconviction court was therefore required to appoint counsel and

send his complete Rule 35(c) motion to appointed counsel for

further investigation and possible supplementation. See People v.

Segura, 2024 CO 70, ¶ 7 (holding that if “at least one claim has

arguable merit,” the postconviction court “must grant the request

for postconviction counsel and forward a complete copy of the

motion to the prosecution and [appointed counsel]”).

¶ 13 “[T]o qualify for the appointment of postconviction counsel, a

defendant’s postconviction motion must provide allegations that, if

true, would establish both prongs of the Strickland test.” Townsell

v. People, 2026 CO 11M, ¶ 29. That means the defendant must

“explain not only the deficiency that made his counsel ineffective

5
but also how and why, based on that deficiency, there is a

reasonable probability that the result of the proceeding would have

been different.” Id. A conclusory prejudice allegation is insufficient

to warrant appointment of postconviction counsel. Id.

¶ 14 In support of the deficient performance prong of his false

allegation claim, Close alleged that the victim “had previously

accused multiple people of committing . . . sexual assaults against

her”; these accusations were “unfounded”; the victim’s mother and

aunt made statements “show[ing]” the allegations were unfounded;

the prosecution failed to disclose an allegation of sexual assault

before the first trial; the “actions and statements do not fall under

the rape shield”; and trial counsel “knew of previous unfounded

allegations made by [the victim]” and “never requested the court

allow it be placed on the record and submitted to the jury.”

¶ 15 We agree with Close that the postconviction court

misinterpreted the deficient performance allegations. Without

reference to the allegations that the victim had a history of

“multiple” false sexual assault reports, the court considered

whether trial counsel provided ineffective assistance by failing to

ask the trial court to allow evidence of a single prior allegation of

6
sexual assault. And it concluded that “the decision not to attempt

to introduce evidence of the victim’s [singular] allegation was a

reasonable strategic decision.” But that conclusion is not exactly

tethered to what Close alleged.

¶ 16 Still, even if we assume that Close alleged sufficient facts that,

if true, show that counsel performed deficiently, his Rule 35(c)

motion failed to allege sufficient facts to demonstrate Strickland

prejudice. See Townsell, ¶¶ 29, 37. Indeed, all Close says about

the purported effect of counsel’s failure to seek admission of the

victim’s history of “multiple” false sexual assault reports is that “it

deprived Close of a defense to the charges against him.” But Close

didn’t allege any facts about what additional “defense” he would

have presented or how or why the unidentified defense would have

created a reasonable probability that the result of the proceeding

would have been different. See Strickland, 466 U.S. at 694; see also

Townsell, ¶ 37 (concluding that the district court did not err by

denying a pro se defendant’s request for postconviction counsel

when the Rule 35(c) motion did not “provide some explanation”

beyond a “conclusory statement” of prejudice). And doing so would

be difficult given that Close defended on the theory that the victim

7
fabricated the sexual assault allegations and he elicited testimony

that the victim was known to make up allegations, including a false

sexual assault allegation. The jury was unpersuaded by that

evidence.

¶ 17 Though Close briefly argues that his remaining four ineffective

assistance of counsel claims “also have merit,” they each fail for the

same reason. More specifically, to the extent that the remaining

ineffective assistance of counsel claims allege any prejudice — and

a couple of them don’t — they do so in conclusory and generic

terms. For instance, peppered throughout the Rule 35(c) motion

are general claims that counsel’s deficient performance “deprived

[Close] of a fair trial” and “lowered the burden of proof.” But none

of the remaining claims allege any facts explaining how and why —

absent the alleged deficient performance — there is a reasonable

8
probability that the outcome of the trial would have been different.1

See Townsell, ¶ 35.

¶ 18 We therefore reach the same conclusion as the postconviction

court, albeit for different reasons. Because Close’s prejudice

allegations were bare, conclusory, and vague, we affirm the denial

of the Rule 35(c) motion without the appointment of counsel and

without a hearing. See Townsell, ¶¶ 29, 37; People v. Mills, 163

P.3d 1129, 1133 (Colo. 2007).

III. Disposition

¶ 19 The order is affirmed.

JUDGE J. JONES and JUDGE FOX concur.

1 Even assuming the cumulative error doctrine applies to ineffective

assistance of counsel claims, that claim too is insufficient because
Close failed to allege cumulative prejudice. That is, Close did not
allege that while he may not have been prejudiced by any one of
counsel’s singular deficiencies, he was nonetheless denied effective
assistance of counsel because of the cumulative prejudicial effect of
counsel’s errors. See Howard-Walker v. People, 2019 CO 69, ¶ 25
(“[C]umulative error involves cumulative prejudice.”).

9