23CA0079 Peo v Chavez 07-18-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0079
Arapahoe County District Court Nos. 11CR690 & 11CR770
Honorable Joseph Whitfield, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Leroy James Chavez,
Defendant-Appellant.
ORDER AFFIRMED
Division V
Opinion by JUDGE BROWN
Harris and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 18, 2024
Philip J. Weiser, Attorney General, Brittany Limes Zehner, Assistant Solicitor
General, Denver, Colorado, for Plaintiff-Appellee
Leroy James Chavez, Pro Se
1
¶ 1 Defendant, Leroy James Chavez, appeals the postconviction
court’s denial of his Crim. P. 35(c) motion alleging (1) newly
discovered evidence that an appellate judge was biased against him
and (2) ineffective assistance of counsel for failure to raise the bias
claim. We affirm.
I. Background
¶ 2 In 2011, Chavez was charged with multiple felony and
misdemeanor offenses arising from two incidents during which he
assaulted his girlfriend, who was then in the process of divorcing
her husband. The jury returned guilty verdicts on all counts.
¶ 3 On direct appeal, a divided division of this court corrected the
classification of one misdemeanor conviction but otherwise affirmed
Chavez’s convictions and sentences. People v. Chavez, (Colo. App.
No. 12CA2517, Feb. 11, 2016) (not published pursuant to C.A.R.
35(f)). Now-former Judge Laurie Booras authored the majority
opinion. After the supreme court denied Chavez’s petition for
certiorari review, the mandate issued on January 9, 2017.
¶ 4 On January 26, 2017, Chavez filed his first Crim. P. 35(c)
motion asserting several claims of ineffective assistance of trial
counsel. After an evidentiary hearing, the postconviction court
2
denied Chavez’s motion in a short oral ruling, finding that Chavez
had failed to corroborate his claims with credible evidence that his
lawyers were ineffective. Another division of this court affirmed.
People v. Chavez, (Colo. App. No. 17CA2122, June 18, 2020) (not
published pursuant to C.A.R. 35(e)). Chavez did not petition for
certiorari review, and the mandate issued on September 18, 2020.
¶ 5 Meanwhile, Judge Booras was publicly censured and resigned
in 2019, based in part on her use of inappropriate racial epithets in
communications with a romantic partner, including racially
derogatory references to a Latina colleague and her ex-husband’s
On August 9, 2021, Chavez filed a second pro se Crim. P. 35(c)
motion, alleging that Judge Booras had been biased against him
based on his race and the similarities between her situation and the
facts of his case.
1
He argued that his claim was not time barred or
successive because postconviction appellate counsel was ineffective
1
Chavez argued that facts reported in the Denver Post article
about Judge Booras were similar to facts underlying his case —
namely, that Judge Booras’ romantic partner was trying to leave her
like he was trying to leave the victim.
3
for not raising it during his earlier Crim. P. 35(c) proceedings.
2
The
postconviction court summarily denied his motion as successive.
II. Standard of Review
¶ 6 A postconviction court may deny a Crim. P. 35(c) motion
without a hearing when the motion, files, and record clearly
establish that the allegations presented in the motion do not
warrant relief. Crim. P. 35(c)(3)(IV); Ardolino v. People, 69 P.3d 73,
77 (Colo. 2003).
¶ 7 We review de novo a postconviction court’s denial of a
defendant’s motion for postconviction relief without a hearing.
People v. Cali, 2020 CO 20, ¶ 14; see also People v. Duran, 2015
COA 141, ¶ 10 (“Whether a postconviction motion states a claim for
relief is generally a legal determination we review de novo.”). We
may affirm the court’s ruling on any ground supported by the
record, even if that ground was not articulated or considered by the
court. People v. Manyik, 2016 COA 42, ¶ 69.
2
Chavez refers to postconviction appellate counsel interchangeably
as “appellate counsel” and “postconviction counsel.” Given the
timing of his claims and the name of the attorney, Chavez must be
referring to counsel who represented him in his appeal from the
denial of his first Crim. P. 35(c) motion.
4
III. Bias Claim
¶ 8 Chavez contends that Judge Booras was biased against him
on his direct appeal and that such “evidence was discovered after
the trial and could [not have] been known through due diligence.”
We conclude that his claim is time barred.
¶ 9 Postconviction motions that collaterally attack felony
convictions like Chavez’s under Crim. P. 35(c) must be filed within
three years following the conviction. § 16-5-402(1), C.R.S. 2023
(setting the time limit as three years for all felonies other than class
1 felonies). The three-year period begins once a defendant’s
conviction is final — that is, when the mandate issues after a
defendant exhausts direct appeal remedies. Hunsaker v. People,
(Colo. App. 2007) (“[A] conviction is final when the [state] supreme
court denies the defendant’s petition for a writ of certiorari and the
mandate issues.”).
¶ 10 Because Chavez’s conviction became final on January 9, 2017,
when the supreme court denied his petition for writ of certiorari, he
had until January 9, 2020, to file a timely Crim. P. 35(c) motion.
Chavez did not file the motion at issue until August 9, 2021.
5
¶ 11 A Rule 35(c) motion filed after the three-year period expires
must allege facts that, if true, would establish one of the exceptions
to the time limit set forth in section 16-5-402(2). See Crim. P.
35(c)(3)(I). One such exception exists for cases in which the failure
to seek timely relief was the result of circumstances amounting to
justifiable excuse or excusable neglect. § 16-5-402(2)(d). If an
untimely Rule 35(c) motion does not allege facts that would
establish justifiable excuse or excusable neglect, the postconviction
court may deny the motion without a hearing. People v. Worosello,
motion alleged facts that, if true, constitute justifiable excuse or
excusable neglect. Id.
¶ 12 In his postconviction motion, Chavez alleged that evidence of
Judge Booras’ disciplinary proceedings became public when the
Denver Post published the disciplinary complaint against her in
March 2018. Chavez also alleged that Judge Booras was publicly
censured in March 2019. On appeal, Chavez admits that he
learned of this “new evidence” in March 2018, well within the three-
year period he had to file a timely Rule 35(c) motion. Yet Chavez
did not file his Rule 35(c) motion until August 2021 — more than a
6
year and a half beyond the statutory deadline and over three years
after he learned the information about Judge Booras giving rise to
his claim of bias.
3
¶ 13 Chavez fails to explain why he was unable to file his Rule 35(c)
motion between March 2018 and January 2020, when the statutory
time period to file the motion expired. He also fails to explain the
more than three-year delay between when he learned of Judge
Booras’ misconduct and when he filed the underlying motion. See
People v. Wiedemer, 852 P.2d 424, 441 (Colo. 1993) (courts
“consider the circumstances existing throughout the entire period
from the inception of the conviction in question” when evaluating
justifiable excuse or excusable neglect). We conclude that Chavez
failed to allege facts that, if true, amount to justifiable excuse or
excusable neglect for the late filing. Consequently, his claim that
3
We note that Chavez did not allege any facts suggesting that
Judge Booras was biased against him specifically or committed
misconduct related to his case. See People in Interest of A.P., 2022
CO 24, ¶ 30 (“The record must clearly demonstrate the alleged
bias.”).
7
Judge Booras was biased when resolving his direct appeal is time
barred.
4
¶ 14 Nonetheless, Chavez argues that postconviction appellate
counsel was ineffective for failing to add a judicial bias claim to the
appeal of his first Crim. P. 35(c) motion. Reading his claim liberally,
see People v. Bergerud, 223 P.3d 686, 697 (Colo. 2010), we
understand Chavez to argue that he could not have known that
postconviction appellate counsel had been ineffective until the
appeal of his first Crim. P. 35(c) motion was resolved in September
2020, which amounts to justifiable excuse or excusable neglect for
not bringing that claim by January 2020. We turn to that question
next.
4
The postconviction court denied Chavez’s motion as successive
based on the court of appeals’ “affirmed judgment.” While a court
must deny as successive any claim that could have been presented
in a prior appeal or postconviction proceeding, Crim. P. 35(c)(3)(VII),
the claim in the underlying motion arguably could not have been
raised in Chavez’s direct appeal or in his 2017 postconviction
motion because evidence of Judge Booras’ misconduct was not
made public until 2018. As a result, Chavez’s motion was not
successive. We nonetheless affirm the postconviction court’s ruling
because the motion was untimely. See People v. Manyik, 2016 COA
42, ¶ 69.
8
IV. Ineffective Assistance of Counsel Claim
¶ 15 Chavez contends that he received ineffective assistance of
counsel because he asked the attorney who represented him in the
appeal of his first Crim. P. 35(c) motion to add a judicial bias claim
based on Judge Booras’ misconduct, but counsel “wrote him a letter
telling him he should file a second 35(c) raising these claims, even
though his first 35(c) had not been ruled on.” Chavez contends this
advice amounts to deficient performance.
¶ 16 While ineffective assistance of counsel may constitute
justifiable excuse or excusable neglect, see People v. Valdez, 178
P.3d 1269, 1278 (Colo. App. 2007), to prevail on a claim of
ineffective assistance of counsel, a defendant must show that
(1) counsel’s performance was deficient, and (2) the deficient
performance prejudiced the defense, Strickland v. Washington, 466
U.S. 668, 687 (1984); Dunlap v. People, 173 P.3d 1054, 1062-63
(Colo. 2007).
¶ 17 Here, postconviction appellate counsel’s advice was correct.
She could not add a bias claim to the pending appeal because
Chavez had not raised the issue in his first Rule 35(c) motion.
When a defendant does not raise an issue in a postconviction
9
motion, the issue is not properly preserved for appellate review.
People v. Huggins, 2019 COA 116, ¶ 17. Indeed, had Chavez
followed postconviction appellate counsel’s advice, he could have
filed his postconviction motion before the three-year statutory
deadline expired.
5
¶ 18 Because Chavez failed to sufficiently allege deficient
performance, he failed to allege a viable claim for ineffective
Consequently, Chavez failed to allege any facts that would amount
to justifiable excuse or excusable neglect for not timely asserting his
claims. See Worosello, ¶ 35. As a result, the postconviction court
did not err by denying Chavez’s motion in a written order without a
hearing. See Ardolino, 69 P.3d at 77; Manyik, ¶ 69.
V. Disposition
¶ 19 The order is affirmed.
JUDGE HARRIS and JUDGE LUM concur.
5
The record is not clear as to when Chavez spoke to postconviction
appellate counsel about adding a judicial bias claim, but the appeal
of his first Crim. P. 35(c) motion was filed in November 2017 and
fully briefed by August 2019. See People v. Sa’ra, 117 P.3d 51, 56
(Colo. App. 2004) (“A court may take judicial notice of the contents
of court records in a related proceeding.”).
