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
2
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
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
3
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
4
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,
5
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.
6
¶ 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
7
section 16-5-402(1), C.R.S. 2021. See People v. Thomas, 867 P.2d
(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
8
claims are untimely. And, while a later deadline might apply to a
claim for ineffective assistance by postconviction counsel, see
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.
9
¶ 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
10
(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.
11
¶ 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
12
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
13
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.
