Peo v. Cook ( 2024 )

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<div>22CA1206 Peo v Cook 10-03-2024 </div>
<div> </div>
<div>COLORADO COURT OF APPEALS </div>
<div> </div>
<div> </div>
<div>Court of Appeals No. 22CA1206 </div>
<div>Arapahoe County District Court No. 04CR3080 </div>
<div>Honorable Ben L. Leutwyler III, Judge </div>
<div> </div>
<div> </div>
<div>The People of the State of Colorado, </div>
<div> </div>
<div>Plaintiff-Appellee, </div>
<div> </div>
<div>v. </div>
<div> </div>
<div>Steven Matthew Cook, </div>
<div> </div>
<div>Defendant-Appellant. </div>
<div> </div>
<div> </div>
<div>ORDER AFFIRMED </div>
<div> </div>
<div>Division VI </div>
<div>Opinion by JUDGE <span>WELLING</span> </div>
<div>Lipinsky<span> and Gomez, JJ., concur </span>
</div>
<div> </div>
<div>NOT PUBLISHED PURSUANT TO C.A.R. 35(e) </div>
<div>Announced October 3, 2024 </div>
<div> </div>
<div> </div>
<div>Philip J. Weiser, Attorney General, <span>Katherine Gillespie</span>, Senior Assistant </div>
<div>Attorney General, Denver, Colorado, for Plaintiff-Appellee </div>
<div> </div>
<div>Steven Matthew Cook, Pro Se </div>
</div></div>
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<div>1 </div>
<div>¶ 1<span> </span><span>Defendant, Steven Matthew Cook, appeals the postconviction </span>
</div>
<div>court’s June 3, 2022<span>, order denying several of his requests for </span>
</div>
<div>postconviction relief. We affirm. </div>
<div>I.<span> <span>Background </span></span>
</div>
<div>¶ 2<span> </span><span>In 2014, a jury convicted Cook of twenty-nine counts of child-</span>
</div>
<div>related sex offenses on retrial. On direct appeal, a division of <span></span>this </div>
<div>court affirmed the convictions and issued its mandate on January </div>
<div>28, 2015.<span> </span><span>People v. Cook</span><span>,</span><span> </span>2014 COA <span>33</span> (<span>Cook</span><span> I</span><span>)</span><span>. </span> </div>
<div>¶ 3<span> </span><span>In late April 2015, before he filed his first pro se petition for </span>
</div>
<div>postconviction relief, Cook filed a motion asking the court to </div>
<div>appoint postconviction counsel for him. On May 1, 2015, the court </div>
<div>granted Cook’s motion. <span>Even though the court had granted his </span>
</div>
<div>request to appoint postconviction counsel two and a half <span></span>weeks </div>
<div>earlier, Cook filed <span>a </span>pro <span>se </span>petition for postconviction <span></span>relief on May </div>
<div>18, 2015. In this pro se Crim. P. 35(c) motion, Cook alleg<span>ed</span>, among </div>
<div>other things, that trial counsel rendered ineffective assistance by </div>
<div>failing to present an alibi and alternate suspect defense focusing on </div>
<div>R.R. as the perpetrator<span>. </span>Three days after Cook filed his May 2015 </div>
<div>pro se Crim. P. 35(c) motion, the postconviction court summarily </div>
</div></div>
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<div>2 </div>
<div>denied it, <span>“</span>except to the extent that post-conviction counsel finds </div>
<div>grounds for relief that haven<span>’t been previously addressed.” </span> </div>
<div>¶ 4<span> </span><span>On October 28, 2016, <span>Cook’s court</span>-appointed postconviction </span>
</div>
<div>counsel filed a Crim. P. 35(c) motion. In that motion, </div>
<div>postconviction counsel raised two claims for relief but didn<span>’</span><span>t </span>
</div>
<div>re<span>assert any of the contentions that Cook raised in his May 2015 </span>
</div>
<div>pro se Crim. P. 35(c) motion<span>. </span>The postconviction court summarily </div>
<div>denied one of the claims <span>in counsel’s Crim. P. 35(c) motion </span>without </div>
<div>a hearing and denied the other claim after an evidentiary hearing.<span> </span> </div>
<div>¶ 5<span> </span><span>In August 2017, Cook appealed, contending the postconviction </span>
</div>
<div>court erred by denying the claims raised in <span>counsel’s </span>October 2016 </div>
<div>Crim. P. 35(c) motion. Cook didn<span>’t challenge the court’s summary </span>
</div>
<div>disposition of the claims he raised in his May 2015 pro se Crim. </div>
<div>P.<span> 35(c) motion. <span> People v. Cook</span><span>,</span><span> </span>(Colo. App. No. 17CA13<span></span>55, Nov. 19, </span>
</div>
<div>2020) (not published pursuant to C.A.R. 35(e<span>))</span> (<span>Cook II</span>). The </div>
<div>division affirmed<span>. <span> <span>Id<span>.</span></span></span></span> </div>
<div>¶ 6<span> </span><span>While <span>Cook<span> <span>II</span></span></span> was pending, Cook filed several more pro se </span>
</div>
<div>postconviction motions. On May 9, 2017, Cook filed a pro se </div>
<div>motion seeking postconviction DNA testing. In this motion, <span></span>Cook </div>
<div>argued that DNA samples collected during the initial investigation </div>
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<div>3 </div>
<div>that weren<span>’t tested “could have possibly belonged to [R.<span></span>R.] or to </span>
</div>
<div>another suspect,” effectively reraising issues around trial counsel’s </div>
<div>failure to pursue an alternate suspect defense. The court declined </div>
<div>to take action on Cook’s <span>motion because he was represented <span></span>by </span>
</div>
<div>counsel at the time, noting that <span>“[t]he Court will not consider <span></span>pro se </span>
</div>
<div>motions filed by [Cook] while he is represented.” <span> </span>
</div>
<div>¶ 7<span> </span><span>On January 30, 2018, also while the appeal in <span>Cook<span> <span>II</span> </span></span>was </span>
</div>
<div>pending, Cook filed another pro se Crim. P. 35(c) motion, in which </div>
<div>he<span> argu<span>ed</span>, among other things, that his appointed direct appeal </span>
</div>
<div>counsel rendered ineffective assistance because <span>he</span> failed to raise </div>
<div>the issue that DNA evidence of alternative suspects should ha<span></span>ve </div>
<div>been pursued at trial<span>. </span>The court issued an order stating that, due </div>
<div>to the pendency of the appeal in <span>Cook <span>II</span></span>, it didn<span>’</span>t have jurisdiction </div>
<div>to consider Cook’s <span>January 2018 Crim. P. 35(c) motion and would </span>
</div>
<div>thus take “no further action on <span>[it].</span><span>”<span> <span> </span></span></span>
</div>
<div>¶ 8<span> </span><span>While <span>Cook II </span>was still pending, Cook filed two pro se motions </span>
</div>
<div>for clarification <span>—</span> one in December 2020 and the other in January </div>
<div>2021 <span>—</span> seeking an update on the status of his January 2018 pro se </div>
<div>Crim. P. 35(c) motion. The court issued an order on Janua<span></span>ry 26, </div>
</div></div>
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<div>2021, stating that it “can take no action .<span> . . until the case is </span>
</div>
<div>returned to the district court by the court of appeals.” <span> </span>
</div>
<div>¶ 9<span> </span><span>The court of appeals issued its mandate in <span>Cook II</span> on April 14, </span>
</div>
<div>2021. <span> </span>
</div>
<div>¶ 10<span> </span><span>On May 17, 2021, Cook filed a pro se motion to correct <span></span>an </span>
</div>
<div>illegal sentence pursuant to Crim. P. 35(a). Finding that Cook </div>
<div>didn<span>’</span><span>t allege that his sentence was illegal under the law or illegally </span>
</div>
<div>imposed, the postconviction <span>court analyzed Cook’s Crim. P.</span> 35(a) </div>
<div>motion as a Crim. P. 35(c) motion. The postconviction court denied </div>
<div>the motion without a hearing, and Cook appealed that decision. <span></span> <span> </span>
</div>
<div>¶ 11<span> </span><span>On October 19, 2021, Cook filed his fourth pro se Crim. </span>
</div>
<div>P.<span> 35(c) motion. In that motion, he asserted ten claims, including </span>
</div>
<div>that postconviction counsel rendered ineffective assistance because </div>
<div>she didn<span>’</span>t reassert the claims raised in his May 2015 pro se C<span></span>rim. </div>
<div>P.<span> 35(c) motion, including his claim that trial counsel f<span></span>ailed to </span>
</div>
<div>investigate alibi and alternate suspect defenses focusing on R.R<span>. </span>
</div>
<div>On<span> October 21, 2021, the postconviction court entered an or<span></span>der </span>
</div>
<div>noting <span>that “the record is clear”</span> that Cook<span>’s</span> October 2021 pro se </div>
<div>Crim. P. 35(c) motion <span>“</span>should be denied as a successive </div>
<div>postconviction claim,” but<span> stating that it couldn</span><span>’t</span><span> take any formal </span>
</div>
</div></div>
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<div>5 </div>
<div>action on such motion because of the pendency of <span>Cook’s</span> appeal of </div>
<div>the denial of his pro se Crim. P. 35(a) motion<span>. </span> </div>
<div>¶ 12<span> </span><span>On October 25, 2021, Cook filed a <span>“</span>request to obtain a ruling </span>
</div>
<div>and order on outstanding Crim. P. 35(c) motions,<span>”</span> arguing, among </div>
<div>other things, that the claims from his May 2015 pro se Crim. </div>
<div>P.<span> 35(c) motion should proceed to an evidentiary hearing<span>. </span>Two days </span>
</div>
<div>later, the postconviction court entered an order noting that it was </div>
<div>taking <span>“</span>no action<span>”</span> <span>on Cook’s October 25 request because his</span> appeal </div>
<div>of the denial of his Crim. P. 35(a) motion was still pending and, </div>
<div>therefore, the court didn<span>’</span>t have jurisdiction to rule on the request<span>. </span> </div>
<div>¶ 13<span> </span><span>In early March 2022, Cook filed a motion and supporting </span>
</div>
<div>affidavit to dismiss his Crim P. 35(a) appeal, and this court </div>
<div>dismissed that appeal on March 22, 2022. </div>
<div>¶ 14<span> </span><span>On April 7, 2022, Cook <span>re</span>filed his <span>“</span>request to obtain a ruling </span>
</div>
<div>and order on his outstanding post-conviction motions alleging </div>
<div>ineffective assistance of trial, appellate, and postconviction coun<span></span>sel </div>
<div>pursuant to Crim. P. 35(c).<span>”</span><span> </span>On April 15, 2022, Cook filed a </div>
<div>“<span>request to obtain a ruling and order on his outstanding post-</span>
</div>
<div>conviction motion for DNA testing and appointment of <span></span>counsel.<span>”</span><span> </span>On </div>
<div>May 26, 2022, Cook filed a <span>“</span>request for status on [his<span>] </span>motion to </div>
</div></div>
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<div>6 </div>
<div>obtain a ruling and order on outstanding postconviction moti<span></span>ons </div>
<div>alleging ineffective assistance of trial, appellate, and postconviction </div>
<div>counsel and to obtain additional DNA testing.<span>”</span><span> </span> </div>
<div>¶ 15<span> </span><span>On June 3, 2022, the postconviction court issued a <span>th</span>orough </span>
</div>
<div>nineteen-<span>pa</span><span>ge written order addressing the three requests that<span></span> </span>
</div>
<div>Cook filed in April and May 2022. In <span>it</span>, the postconviction court </div>
<div>denied Cook any postconviction relief without a hearing or </div>
<div>appointing counsel<span>. </span><span> </span>
</div>
<div>II.<span> <span>General Legal Principles and Standard of Review Ap<span></span>plicable to </span></span>
</div>
<div>Ineffective Assistance of Counsel Claims </div>
<div>¶ 16<span> </span><span>To succeed on a Crim. <span>P.</span> 35(c) ineffective assistance of co<span></span>unsel </span>
</div>
<div>claim, a defendant must show by a preponderance of the <span></span>evidence </div>
<div>that (1) counsel performed deficiently and (2) <span>counsel’s deficient </span>
</div>
<div>performance prejudiced the defendant. <span>People v. Cha<span></span>lchi-Sevilla<span>, </span></span>
</div>
<div>2019 COA 75, ¶ 6 (citing<span> Strickland v. Washington</span>, 466 U.S. 668, </div>
<div>688 (1984)). To satisfy the deficiency prong, a defendant mu<span></span>st </div>
<div>show that counsel’s performance “fell below an objective standar<span></span>d of </div>
<div>reasonableness.” <span>Strickland</span><span>, 466 U.S. at 688. Whether counsel </span>
</div>
<div>acted reasonably during the representation is measured by t<span></span>he </div>
<div>totality of the circumstances and then-existing prevailing </div>
</div></div>
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<div>7 </div>
<div>professional standards. <span>See Davis v. People</span>, 871 P.2d 769, <span></span>772 </div>
<div>(Colo. 1994) (citing <span>Strickland</span>, 466 U.S. at 688-90). Generally, </div>
<div>there is a strong presumption that counsel’s decisions f<span></span>ell within a </div>
<div>wide range of reasonable possibilities. <span>See</span> <span>Dunlap v. People</span>, 173 </div>
<div>P.3d 1054, 1063 (Colo. 2007) (citing <span>Strickland</span>, 466 U.S.<span></span> at 689). </div>
<div>To establish prejudice, a defendant must demonstrate t<span></span>hat, but for </div>
<div>counsel’s deficient conduct, there is a reasonable probabilit<span></span>y that </div>
<div>the outcome of the proceeding would’ve been differe<span></span>nt. <span>See Davis<span>, </span></span>
</div>
<div>871 P.2d at 772. </div>
<div>¶ 17<span> </span><span>A Crim. P. 35(c) claim is considered successive when a </span>
</div>
<div>defendant has raised and a postconviction court has resolv<span></span>ed the </div>
<div>claim, or when a defendant could have raised the claim in a prio<span></span>r </div>
<div>appeal or postconviction proceeding and didn’t<span> do so. Crim. P. </span>
</div>
<div>35(c)(3)(VI), (VII). </div>
<div>¶ 18<span> </span><span>Whether a Crim. P. 35(c) motion sufficiently states a claim f<span></span>or </span>
</div>
<div>relief is a legal determination. <span>People v. Long</span>, 126 P.3d 28<span></span>4, 286 </div>
<div>(Colo. App. 2005). Accordingly, we review de novo a postconviction </div>
<div>court’s denial of a Crim. P.<span> 35(c) motion without a hearing. <span>Peop<span></span>le </span></span>
</div>
<div>v. Wilson<span>, 397 P.3d 1090, 1094 (Colo. App. 2011) (citi<span></span>ng <span>Long</span>, 126 </span>
</div>
<div>P.3d at 286)<span>, </span><span>aff’d</span>, 2015 CO 37<span>. </span>We may affirm a postconviction </div>
</div></div>
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<div>court’s decision on any grounds supported by the record, ev<span></span>en if </div>
<div>those grounds differ from those on which the postconviction c<span></span>ourt </div>
<div>relied. <span>See People v. Aarness</span>, 150 P.3d 1271, 1277 (Col<span></span>o. 2006); </div>
<div>People v. Dyer<span>, 2019 COA 161, ¶ 39. </span>
</div>
<div>III.<span> <span>Analysis </span></span>
</div>
<div>¶ 19<span> </span><span>On appeal, Cook argues, among other contentions, that he is </span>
</div>
<div>entitled to a hearing on his alternate suspect claim (which he f<span></span>irst </div>
<div>advanced in his May 2015 pro se Crim. P. 35(c) motion). It appears </div>
<div>that Cook packages his alternate-suspect Crim. P. 35(c) claim <span>as </span>
</div>
<div>four distinct ineffective assistance of counsel claims. Those claims, </div>
<div>as best we can discern them, are: (1) trial counsel rendered </div>
<div>ineffective assistance by failing to raise an alternate suspe<span></span>ct defense </div>
<div>focusing on R.R.; (2) direct appeal counsel rendered ineffective </div>
<div>assistance by failing to raise the issue that DNA evidence of an </div>
<div>alternate suspect should have been pursued, effectively reraising </div>
<div>the alternate suspect defense issue; (3) postconviction counsel </div>
<div>rendered ineffective assistance because she didn<span>’</span>t reraise his </div>
<div>original Crim. P. 35(c) claims from his May 2015 motion, including </div>
<div>his claim about the alternate suspect defense<span>; </span>and </div>
<div>(4) postconviction appellate counsel rendered ineffective assistan<span></span>ce </div>
</div></div>
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<div>9 </div>
<div>because she was required to reraise the Crim. P. 35(c) claims from </div>
<div>his May 2015 motion, including his claim about the alternate </div>
<div>suspect defense, as required, he says, by this <span>court’s decisions in </span>
</div>
<div>People v. Smith<span>, 2022 COA 56 (</span>Smith I<span>)<span>, </span></span><span>rev<span>’d</span></span><span>, 2024 CO 3 (</span>Smith <span>II</span><span>), </span>
</div>
<div>and <span>People v. Nozolino</span>, 2023 COA 39.<span> </span> </div>
<div>¶ 20<span> <span>Cook’s alternate<span>-suspect Crim. P. 35(c) claim, in any iteration, </span></span></span>
</div>
<div>never proceeded to a hearing, so we review its denial, in each of it<span></span>s </div>
<div>iterations, de novo. <span>See Long</span>, 126 P.3d at 286. </div>
<div>A.<span> <span>Ineffective Assistance of Trial Counsel </span></span>
</div>
<div>¶ 21<span> </span><span>In his May 2015 pro se Crim. P. 35(c) motion, Cook alleged </span>
</div>
<div>that trial counsel rendered ineffective assistance by failing to </div>
<div>present an alibi or alternate suspect defense focusing on <span></span>R.R. The </div>
<div>postconviction court summarily denied this claim because Cook </div>
<div>had been appointed counsel before he filed his motion. We discern </div>
<div>no error. </div>
<div>¶ 22<span> </span><span>Courts routinely decline to consider pro se pleadings <span></span>filed by </span>
</div>
<div>represented defendants <span>because “[a] defendant .</span> . . does not <span></span>have a </div>
<div>right to demand ‘hybrid’ or mixed representation.”<span> </span><span>People v. </span>
</div>
<div>Arguello<span>, 772 P.2d 87, 92 (Colo. 1989). When a represented </span>
</div>
<div>defendant files a pro se pleading, “a court .<span> . </span>. may ignore [it].” </div>
</div></div>
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<div>10 </div>
<div>People v. Gess<span>, 250 P.3d 734, 737 (Colo. App. 2010); </span>see a<span></span>lso<span> </span>People </div>
<div>v. Plancarte<span>, 232 P.3d 186, 194 (Colo. App. 2009) (“[<span></span>T]he court does </span>
</div>
<div>not consider pro se pleadings filed by represented parties.”).<span> </span>
</div>
<div>¶ 23<span> </span><span>Cook filed his first pro se Crim. P. 35(c) motion on May 18, </span>
</div>
<div>2015, seventeen days after the court appointed him counsel at his </div>
<div>request. Accordingly, Cook had appointed counsel when he filed </div>
<div>his May 2015 pro se Crim. P. 35(c) motion and the postconviction </div>
<div>court <span>didn’t</span> have an obligation to consider it. <span>See</span> <span>Gess</span>, 250 P.3d at </div>
<div>737. Thus, we conclude that the postconviction court prope<span></span>rly </div>
<div>denied Cook’s <span>May 2015 pro se Crim. P. 35(c) motion without a </span>
</div>
<div>hearing. And the postconviction court properly denied <span>as </span>
</div>
<div>su<span>ccessive <span>Cook’s </span>attempt to revive his May 2015 pro se Crim. </span>
</div>
<div>P.<span> 35(c) motion as an ineffective assistance of trial counsel claim<span>. </span> </span>
</div>
<div>See<span> Crim. P. 35(c)(3)(VI). </span>
</div>
<div>B.<span> <span>Ineffective Assistance of Direct <span>Appe<span>al</span></span> Counsel </span></span>
</div>
<div>¶ 24<span> </span><span>In his January 2018 pro se Crim. P. 35(c) motion, Cook arg<span></span>ued </span>
</div>
<div>that direct appeal counsel rendered ineffective assistance <span>by</span> failing </div>
<div>to argue that alternate suspect DNA evidence should have been </div>
<div>admitted at trial<span>. </span>The postconviction court denied this claim as </div>
<div>successive. Again, we discern no error<span>. </span> </div>
</div></div>
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<div>11 </div>
<div>¶ 25<span> </span><span>The <span>Strickland</span> standard for ineffective assistance of counsel </span>
</div>
<div>also applies to an ineffective assistance of appellate counsel cl<span></span>aim. </div>
<div>People v. Dunlap<span>, 124 P.3d 780, 795 (Colo. App. 20<span></span>04). But to </span>
</div>
<div>proceed to a hearing on an ineffective assistance of appellate </div>
<div>counsel claim, a defendant must also allege that the <span>“ignored issues </span>
</div>
<div>are clearly stronger than those presented” by appellate <span></span>counsel to </div>
<div>overcome the presumption in favor of effective assistance. <span>People v. </span>
</div>
<div>Trujillo<span>, 169 P.3d 235, 238 (Colo. App. 2007). </span>
</div>
<div>¶ 26<span> </span><span>Cook<span>’s court<span>-appointed postconviction </span>counsel didn’t <span>include </span></span></span>
</div>
<div>this claim against direct appeal counsel in <span>counsel’s</span> October 20<span></span><span>16 </span>
</div>
<div>Crim. P. 35(c) motion<span>. A</span>s the postconviction court correctly held, </div>
<div>the claim is therefore barred as successive under Crim. P. </div>
<div>35(c)(3)(VI) <span>because it could have been, but wasn’t</span>, raised in a prior </div>
<div>motion for postconviction relief<span>. </span>Accordingly, the postconviction </div>
<div>court correctly denied <span>Cook’s ineffective assistance of direct a<span></span>ppeal </span>
</div>
<div>counsel claim.<span> </span> </div>
<div>¶ 27<span> <span>Further, even if this claim isn’t barred as successive, <span>the </span></span></span>
</div>
<div>postconviction court still properly denied it without a hearing for </div>
<div>two independent <span>reasons. First, Cook can’t overcome <span>Stri<span></span>ckland<span>’s </span></span></span>
</div>
<div>deficient performance prong because the record indicates that<span></span> </div>
</div></div>
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<div>12 </div>
<div>direct appeal counsel argued that the <span>court’s ruling on </span>alternate </div>
<div>suspect DNA evidence was erroneous, as evidenced by <span>Cook</span><span> I</span><span>, <span>¶¶ </span></span>
</div>
<div>44<span>-<span>45<span>. <span>(Further, for this same reason it <span>couldn’t have been </span></span></span></span></span>
</div>
<div>deficient performance by postconviction counsel to fail t<span></span>o assert this </div>
<div>claim of deficient performance of direct appeal counsel.)<span> </span>Second, </div>
<div>Cook failed to adequately plead an ineffective assistance of direct </div>
<div>appeal counsel claim; to state a claim for ineffective assistance of </div>
<div>direct appeal counsel, Cook also needed to assert that the allegedly </div>
<div>“ignored” claim that alternate suspect DNA evidence <span></span>should have </div>
<div>been pursued at trial was stronger than the claims that direct </div>
<div>appeal counsel pursued. <span>See Trujillo</span>, 169 P.3d <span>at</span> 238. But Cook </div>
<div>failed to do so in his January 2018 pro se Crim. P. 35(c) motion. </div>
<div>C.<span> <span>Ineffective Assistance of Postconviction Counsel </span></span>
</div>
<div>¶ 28<span> </span><span>In his October 2021 pro se Crim. P. 35(c) motion, Cook </span>
</div>
<div>contends that his postconviction counsel rendered ineffective </div>
<div>assistance by failing to reraise the claims in his May 2015 pro se </div>
<div>Crim. P. 35(c) motion, including the claim that trial counsel fail<span>ed</span> to </div>
<div>present an alibi or alternate suspect defense focusing on <span></span>R.R. In its </div>
<div>June 3, 2022 order, the postconviction court denied the claim as </div>
<div>“duplicative of post<span>-conviction claims that [Cook] has previously </span>
</div>
</div></div>
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<div><div>
<div>13 </div>
<div>raised, and which have been previously [considered and] denied<span>” </span>
</div>
<div>either by the postconviction court or the court of appeals in <span>Cook</span><span> I</span><span>.<span> </span></span>
</div>
<div>The postconviction court further observed, <span>“</span>That [Cook] now </div>
<div>attempts to repackage these claims as ineffective assistance of p<span></span>ost-</div>
<div>conviction counsel does not change the fact that [Cook] has </div>
<div>repeatedly raised these same underlying issues.<span>”</span> We agree with t<span></span>he </div>
<div>postconviction court’s decision to deny this claim without a hea<span></span>ring, </div>
<div>albeit for a reason other than successiveness.<span> </span> </div>
<div>¶ 29<span> </span><span>Even assuming that repackaging <span>Cook’s </span>original pro se </span>
</div>
<div>ineffective assistance of trial counsel claim as a claim for ineffective </div>
<div>assistance of postconviction counsel for abandoning the original </div>
<div>claim can successfully evade the successiveness bar, <span>see</span> <span>People v. </span>
</div>
<div>Clouse<span>, 74 P.3d 336, 341 (Colo. App. 2002) (a claim of <span></span>ineffective </span>
</div>
<div>assistance of postconviction counsel isn<span>’</span>t successive to a </div>
<div>defendant<span>’</span><span>s first postconviction motion), the court properly denied </span>
</div>
<div>Cook’<span>s repackaged ineffective assistance of postconviction <span></span>counsel </span>
</div>
<div>claim without a hearing<span>. </span> This is because Cook <span>didn’t adequately </span>
</div>
<div>plead either prong of <span>Strickland</span> as it pertains to ineffective </div>
<div>assistance of postconviction counsel<span>, </span><span>s<span>ee</span></span> <span>Silva v. People</span>, 156 P.3d </div>
</div></div>
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<div>14 </div>
<div>1164, 1169 (Colo. 2007) (the two-prong <span>St<span>rickland</span></span> test applies to </div>
<div>claims of ineffective assistance of postconviction counsel<span>).</span> </div>
<div>¶ 30<span> <span>Cook’s<span> May 2021 pro se motion makes the conclusory </span></span></span>
</div>
<div>statement <span>that “</span>[p]ost[]conviction counsel was ineffective for failin<span></span>g </div>
<div>to investigate claims brought <span>in [Cook’s] original [Crim. P.] 35(c) </span>
</div>
<div>filing <span>and abandoning issues from original filing.” </span>He then goes on </div>
<div>to explain, again in <span>general terms, that he didn’t want his </span>
</div>
<div>postconviction counsel to abandon these claims <span>but</span> co<span></span>unsel did so </div>
<div>anyway. Based on this, he asserts that his <span>“[p]ost[]conviction </span>
</div>
<div>counsel was clearly ineffective for not investigating all original 35(<span></span>c) </div>
<div>claims.” <span> </span>
</div>
<div>¶ 31<span> <span>These conclusory allegations aren’t sufficient to adequately </span></span>
</div>
<div>state a colorable claim for ineffective assistance of postconviction </div>
<div>counsel<span>. <span>See, e.g.</span>, <span>People v. Lopez<span>, 2015 COA 45, ¶ 58 (“Bare or </span></span></span>
</div>
<div>conclusory allegations without supporting detail do not warrant <span></span>an </div>
<div>evidentiary hearing.”)<span>; </span><span>People v. Osorio<span>, 170 P.3d 796, 800 (Colo. </span></span>
</div>
<div>App. 2007)<span>. </span><span>Cook doesn’t explain </span>which of the claims his </div>
<div>postconviction counsel should have investigated, describe any </div>
<div>investigatory steps postconviction counsel should have taken, or </div>
<div>indicate what any such investigation may have yielded<span>. </span>This failure </div>
</div></div>
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<div>15 </div>
<div>to provide any detail warrants denial of the claim without a hearing.<span></span> </div>
<div>See, e.g.<span>, </span>People v. Zuniga<span>, 80 P.3d 965, 973 (Colo. App. <span></span>2003). </span>
</div>
<div>¶ 32<span> </span><span>Nor does Cook explain how he was prejudiced by </span>
</div>
<div>postconviction counsel’s alleged failure to investigate. Presuma<span></span>bly, </div>
<div>the prejudice is that, had postconviction counsel conducted an </div>
<div>additional (but unspecified) investigation into one or more of the </div>
<div>abandoned claims, postconviction counsel would have ass<span></span>erted </div>
<div>such claim and there is a reasonable probability that such a claim </div>
<div>would have succeeded in securing postconviction relief. <span>But Cook’s</span> </div>
<div>October 2021 pro se motion lacks any explanation or factual </div>
<div>allegations supporting any of the links in this causal chain. </div>
<div>¶ 33<span> </span><span>Simply put, a general and conclusory assertion that counsel </span>
</div>
<div>should have investigated five pro se claims that counsel abandone<span></span>d </div>
<div>isn<span>’</span><span>t <span>adequate to state a colorable claim of ineffective assistance of </span></span>
</div>
<div>postconviction counsel. To conclude otherwise would “lead t<span></span>o </div>
<div>infinite post-<span>conviction proceedings,” <span>Silva</span></span>, 156 P.3d at 1169, <span></span>by </div>
<div>permitting a defendant to repackage a plainly successive inef<span></span>fective </div>
<div>assistance of counsel claim as an ineffective assistance of </div>
<div>postconviction counsel claim.<span> </span>Accordingly, the court properly </div>
<div>denied <span>Cook’s claim for ineffective assistance of postconviction </span>
</div>
</div></div>
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<div><div>
<div>16 </div>
<div>counsel without a hearing.<span> </span><span>See Aarness</span>, 150 P.3d at 1277; <span>Dyer</span><span>, </span>
</div>
<div>¶ <span>39</span>. </div>
<div>D.<span> <span>Ineffective Assistance of Postconviction Appellate Counsel </span></span>
</div>
<div>Under <span>Smith I </span>and <span>Nozolino</span> </div>
<div>¶ 34<span> </span><span>Finally, Cook contends that, under <span>Smith I</span> and <span>Nozolino</span>, he is </span>
</div>
<div>entitled to an evidentiary hearing on his alternate suspect clai<span></span>m </div>
<div>because he never waived th<span>at</span> claim and the postconviction co<span></span>urt </div>
<div>never properly considered <span>it</span>s merits<span>. </span>He appears to contend that </div>
<div>postconviction appellate counsel was ineffective by failing to rais<span></span>e </div>
<div>this contention. <span>However it’s packaged, w</span>e disagree that t<span></span>here is a </div>
<div>Smith<span> <span>or </span></span>Nozolino<span> problem anywhere in these proceedings. </span>
</div>
<div>¶ 35<span> </span><span>In <span>Smith I</span>, a division of this court held that, when <span>a </span></span>
</div>
<div>postconviction court appoints counsel to represent a defen<span></span>dant in </div>
<div>postconviction proceedings after the defendant filed a pro se Crim. </div>
<div>P.<span> 35(c) motion, and appointed counsel files a supplement<span></span>al Crim. </span>
</div>
<div>P.<span> <span>35(c) motion that fails to include some of the <span></span>defendant’s pro se </span></span>
</div>
<div>claims, a postconviction court <span>can dispose of a defendant’s <span></span>pro se </span>
</div>
<div>claims only when there has been a finding of waiver. <span>Smit<span></span>h I<span>, ¶ 14. </span></span>
</div>
<div>¶ 36<span> </span><span>But the supreme court reversed <span>Smith I</span>, holding that so long </span>
</div>
<div>as an appointed attorney doesn’t abandon all of a defendant’s </div>
</div></div>
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<div>17 </div>
<div>postconviction claims, an attorney <span>isn’t required “</span>to obtain her </div>
<div>client<span>’</span><span>s informed consent regarding strategic or tact<span></span>ical decisions, </span>
</div>
<div>including as to which individual claims to raise or to ab<span></span>andon in </div>
<div>pursuing a Crim. P. 35(c) motion.<span>” </span> <span>Smith <span>II</span></span>, ¶ 29. Indeed, as to </div>
<div>deciding which postconviction claims to pursue<span>, <span>“</span></span>an attorney has </div>
<div>the authority to make tactical decisions with which the <span></span>client </div>
<div>disagrees.<span>” <span> </span></span><span>Id.</span><span> (citing <span>Arko <span>v. People</span></span>, 183 P.3d 555, 558 (Colo. </span>
</div>
<div>2008)<span>).</span><span> </span>
</div>
<div>¶ 37<span> </span><span>In other words, appointed counsel, as captain of the </span>
</div>
<div>postconviction ship, has the authority to decide which </div>
<div>postconviction claims to pursue and which to abandon withou<span>t </span>
</div>
<div>obtaining the defendant’s approval, “much less his informed </div>
<div>consent<span>,” so long as counsel doesn’t move to dismiss <span></span>defendant’s </span>
</div>
<div>Crim. P. 35(c) motion in full. <span>Id.</span> <span>at</span> ¶ 30. Thus, there was nothin<span></span>g </div>
<div>improper about appointed counsel declining to pursue any of the </div>
<div>claims asserted in <span>Cook’s </span>May 2015 pro se Crim. P. 35(c) motion </div>
<div>without obtaining his consent. </div>
<div>¶ 38<span> <span>Cook’s reliance on <span>Nozolino</span><span> </span>doesn’t fare <span>any better. In </span></span></span>
</div>
<div>Nozolino<span>, the postconviction court summarily denied <span></span>most of the </span>
</div>
<div>defendant’s pro se Crim. P.<span> 35(c) claims before appointing couns<span></span>el, </span>
</div>
</div></div>
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<div>18 </div>
<div>and it appointed counsel specifically to represent the defendant <span></span>on </div>
<div>just the surviving claims<span>. </span><span>Nozolino</span><span>, ¶</span> 11. The division held that the </div>
<div>postconviction court didn’t follow the procedures of Crim.<span></span> </div>
<div>P.<span> 35(c)(3)(V) because the rule requires that counsel be a<span></span>ppointed </span>
</div>
<div>before any denial of pro se claims if any one of the claims is </div>
<div>potentially meritorious<span>. </span><span>Nozolino</span>, ¶¶ 16, 28. Cook, however, was </div>
<div>appointed postconviction counsel <span>before</span> he asserted any </div>
<div>postconviction claims. And the postconviction court, in denying </div>
<div>Cook’s <span>May 2015 pro se Crim. P. 35(c) motion, made clear t<span></span>hat it </span>
</div>
<div>was denying those claims <span>“except to the extent that post</span>-convicti<span></span>on </div>
<div>counsel finds grounds for relief that haven’t been previously </div>
<div>addressed.” In other words, appointed <span>postconviction counsel had </span>
</div>
<div>unfettered latitude to assert any claims counsel thought </div>
<div>meritorious, including <span>the claims in Cook’s </span>May 2015 pro se Crim. </div>
<div>P. 35(c) motion. Thus, <span>Nozolino</span> <span>doesn’t provi</span>de Cook with any <span></span>basis </div>
<div>for relief. </div>
<div>IV.<span> </span><span>Disposition </span>
</div>
<div>¶ 39<span> </span><span>For the reasons set forth above, the postconviction court<span>’s </span></span>
</div>
<div>June 3, 2022, order is affirmed. </div>
<div>JUDGE LIPINSKY and JUDGE GOMEZ concur. </div>
</div></div>
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