Dunlap v. People, No. 04SA218.

Docket NºNo. 04SA218.
Citation173 P.3d 1054
Case DateMay 14, 2007
CourtSupreme Court of Colorado
173 P.3d 1054
Nathan DUNLAP, Defendant-Appellant/Cross-Appellee
v.
The PEOPLE of the State of Colorado, Plaintiff-Appellee/Cross-Appellant.
No. 04SA218.
Supreme Court of Colorado, En Banc.
May 14, 2007.
As Modified on Denial of Rehearing July 2, 2007.*

[173 P.3d 1060]

Philip Cherner, Denver, Colorado, Michael Heher, Captain Cook, Hawaii, Attorneys for Defendant-Appellant/Cross-Appellee.

[173 P.3d 1061]

John W. Suthers, Attorney General, Paul Koehler, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, Colorado, Carol Chambers, District Attorney, Eighteenth Judicial District, Paul Wolff, Chief Deputy District Attorney, Centennial, Colorado, Attorneys for Plaintiff-Appellee/Cross-Appellant.

Justice RICE delivered the Opinion of the Court.


This case comes to us on appeal of the district court's denial of the defendant's Crim. P. 35(c) motion for postconviction relief. We reverse in part, affirm in part, and hold that the defendant is not entitled to postconviction relief.

I. Facts and Procedural History

In 1996, a jury convicted the defendant, Nathan Dunlap, of four counts of first-degree murder for the killing of three teenagers and a middle-aged woman at a Chuck E. Cheese restaurant on December 14, 1993; the jury imposed the death penalty for these crimes. For related non-capital convictions, Dunlap received consecutive terms of incarceration in the Department of Corrections totaling over 100 years. On direct appeal, we affirmed the death penalty. People v. Dunlap, 975 P.2d 723 (Colo.1999), cert. denied, 528 U.S. 893, 120 S.Ct. 221, 145 L.Ed.2d 186 (1999) ("Dunlap I"). The case returned to this court a second time on Dunlap's Crim. P. 35(b) motion to reduce both the death sentence and the non-capital sentences. We affirmed the trial court's denial of that motion. People v. Dunlap, 36 P.3d 778 (Colo. 2001), cert. denied, 534 U.S. 1095, 122 S.Ct. 844, 151 L.Ed.2d 722 (2002) ("Dunlap II").

Dunlap subsequently filed a Crim. P. 35(c) motion seeking postconviction relief on numerous grounds, including the ineffective assistance of trial counsel. The Crim. P. 35(c) hearing consumed 52 days of court time and was conducted by the same judge who had presided over the guilt and penalty phases of the trial.1 In its 368-page order, the 35(c) court determined that Dunlap's trial counsel, Messrs. Forrest Lewis and Steven Gayle,2 performed deficiently by failing to conduct an adequate mental health mitigation investigation and by failing to object to a portion of the People's penalty phase closing argument. The 35(c) court determined, however, that these two instances of substandard performance did not individually or collectively cause constitutional prejudice. Therefore, the 35(c) court denied postconviction relief.

In the present appeal, Dunlap raises twenty-seven separate issues for review, many of which are claims that he was denied his constitutional right to effective assistance of counsel at both the guilt and penalty phases of the trial. On cross-appeal, the People argue that the 35(c) court erred in finding trial counsel's performance substandard. We agree with the People that the actions of Dunlap's trial counsel did not fall below the constitutionally required level of performance. As such, Dunlap was not denied his constitutional right to effective assistance of counsel and is not entitled to postconviction relief on those grounds. We further find that Dunlap's other contentions of constitutional error are not meritorious. Therefore, we reverse in part and affirm in part the 35(c) court's order, and hold that Dunlap is not entitled to postconviction relief.

II. Postconviction Review

The right to bring a postconviction attack to the validity and legality of a conviction or sentence is statutory, not constitutional. People v. Rodriguez, 914 P.2d 230, 249 (Colo.1996) ("Rodriguez V"). In reviewing a Crim. P. 35(c) claim, we presume the validity of the conviction and the defendant bears the burden of proving his claims by a preponderance of the evidence. Id.; People v. Naranjo, 840 P.2d 319, 325 (Colo.1992); Kailey v. Colo. Dept. of Corr., 807 P.2d 563, 567 (Colo. 1991). The trial court that presides over a Crim. P. 35(c) hearing is the trier of fact and bears the responsibility of determining the weight and credibility to be given to witness

173 P.3d 1062

testimony. Kailey, 807 P.2d at 567; Lamb v. People, 174 Colo. 441, 446, 484 P.2d 798, 800 (1971). Where the evidence in the record supports the findings and holding of the court, the judgment of the court will not be disturbed on review. Kailey, 807 P.2d at 567; Lamb, 174 Colo. at 446, 484 P.2d at 800.

In this 35(c) proceeding Dunlap has raised a number of issues which could have been, but were not, raised on direct appeal. In Rodriguez V, we comprehensively addressed whether failure to raise an issue on direct appeal waives that issue for purposes of 35(c) proceedings. 914 P.2d at 252-56. We clarified that, in order for an issue which could have been raised on direct appeal to be reviewable in postconviction proceedings, the issue must be constitutional. Id. at 253-55. We also specifically approved and adopted Standard 22-6.1 of the American Bar Association Standards for Criminal Justice: Postconviction Remedies, which sets forth the respondent's affirmative defense of abuse of process.3 Id. at 254 n. 20. The People have not argued abuse of process in response to Dunlap's issues that could have been but were not raised on direct appeal. Therefore, to the extent that Dunlap raises claims of constitutional error, we address the issues on the merits.4 In so doing, we address the claims using the same standards that would have applied had the issues been raised on direct appeal. See Rodriguez V, 914 P.2d at 273 (applying plain error standard to erroneous jury instruction); id. at 261 (reviewing trial court's denial of a challenge for cause for abuse of discretion); People v. Versteeg, 165 P.3d 760, ___ (Colo.App. 2006) (discussing the correct standard of review for a postconviction claim based on unpreserved trial error).

III. Ineffective Assistance of Counsel

Both the United States and the Colorado Constitutions guarantee a criminal defendant a right to the effective assistance of counsel. U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16. The United States Supreme Court established the test for the ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Rodriguez V, 914 P.2d at 294; Davis v. People, 871 P.2d 769, 772 (Colo.1994) ("Davis II"). In order to prevail on an ineffective assistance of counsel claim, a defendant must prove that 1) counsel's performance was deficient and 2) the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Unless both showings are made, a defendant has not proven that he was denied the effective assistance of counsel. Id.

For the performance prong, a defendant must prove that counsel's representation "fell below an objective standard of-reasonableness." Strickland, 466 U.S. at 688, 104 S.Ct. 2052. In conducting the reasonableness inquiry, a court must make "every effort ... to eliminate the distorting effects of hindsight, to reconstruct the circumstances

173 P.3d 1063

of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689, 104 S.Ct. 2052. In addition, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id.

For the prejudice prong, a defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Only where both the performance prong and the prejudice prong have been proven will a defendant be entitled to postconviction relief because of the ineffective assistance of counsel.

Both prongs of the ineffectiveness inquiry present mixed questions of law and fact. Id. at 698, 104 S.Ct. 2052. When reviewing a postconviction court's findings on a mixed question of law and fact, we defer to the court's findings of fact if they are supported by the record but review legal conclusions de novo. People v. Kyler, 991 P.2d 810, 818 (Colo.1999). With these principles of law in mind, we turn to Dunlap's specific claims.

Dunlap alleges that he was denied his constitutional right to the effective assistance of counsel because: 1) trial counsel failed to conduct an adequate mitigation investigation into his mental health; 2) trial counsel operated under a conflict of interest; 3) trial counsel failed to present available mitigation evidence on the issue of future dangerousness; 4) trial counsel's opening statements in both the guilt phase and the penalty phase of the trial denied him effective assistance of counsel; 5) trial counsel's closing argument in the penalty phase of the trial denied him effective assistance of counsel; 6) trial counsel stipulated to evidence of his gang affiliation; and 7) trial counsel failed to exhaust peremptory challenges during jury selection.5 We address each allegation in turn.

A. Mental Health Mitigation Investigation

Dunlap alleges that trial counsel failed to adequately investigate and present a mental health mitigation case at the penalty phase of his trial. The 35(c) court agreed that trial counsel's decision to stop investigating a mental health defense fell below an objective standard of reasonableness. However, the 35(c) court also determined that the deficient performance was not prejudicial and therefore denied postconviction relief. Dunlap appeals the prejudice holding, while the People cross-appeal the deficiency holding. We agree with the People that trial counsel's performance...

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117 practice notes
  • People v. Abu-Nantambu-El, Court of Appeals No. 14CA1234
    • United States
    • Colorado Court of Appeals of Colorado
    • December 14, 2017
    ...new trial without a showing of actual prejudice.’ " (quoting Dyer v. Calderon , 151 F.3d 970, 973 (9th Cir. 1998) )); Dunlap v. People , 173 P.3d 1054, 1081-82 (Colo. 2007) (noting a defendant's right to a fair trial is implicated when a court's erroneous denial of a challenge for cause res......
  • People v. McGlaughlin, 15CA2008
    • United States
    • Colorado Court of Appeals of Colorado
    • August 9, 2018
    ...to deny a Crim. P. 35(c) motion de novo, but we defer to the court's factual findings if the record supports them . Dunlap v. People , 173 P.3d 1054, 1063 (Colo. 2007). In other words, we are an appellate court, and we cannot find facts. People v. A.W. , 982 P.2d 842, 845 (Colo. 1999). This......
  • People v. Houser, Court of Appeals No. 17CA0972
    • United States
    • Colorado Court of Appeals of Colorado
    • August 27, 2020
    ...in an appeal previously brought or postconviction proceeding previously brought ...." Crim. P. 35(c)(3)(VII) ; see Dunlap v. People , 173 P.3d 1054, 1062 n.4 (Colo. 2007). ¶ 16 As discussed above, Houser contended in his direct appeal that the offense of patronizing a prostituted child is u......
  • People in Interest of T.B., Court of Appeals No. 16CA1289
    • United States
    • Colorado Court of Appeals of Colorado
    • June 20, 2019
    ...Successiveness¶ 8 Claims that could have been raised in a prior appeal are usually barred as successive. See Dunlap v. People, 173 P.3d 1054, 1062 (Colo. 2007) (citing Crim. P. 35(c)); People v. Vondra, 240 P.3d 493, 495 (Colo. App. 2010) ("Defendant could have challenged the district court......
  • Request a trial to view additional results
119 cases
  • People v. Abu-Nantambu-El, Court of Appeals No. 14CA1234
    • United States
    • Colorado Court of Appeals of Colorado
    • December 14, 2017
    ...new trial without a showing of actual prejudice.’ " (quoting Dyer v. Calderon , 151 F.3d 970, 973 (9th Cir. 1998) )); Dunlap v. People , 173 P.3d 1054, 1081-82 (Colo. 2007) (noting a defendant's right to a fair trial is implicated when a court's erroneous denial of a challenge for cause res......
  • People v. McGlaughlin, 15CA2008
    • United States
    • Colorado Court of Appeals of Colorado
    • August 9, 2018
    ...to deny a Crim. P. 35(c) motion de novo, but we defer to the court's factual findings if the record supports them . Dunlap v. People , 173 P.3d 1054, 1063 (Colo. 2007). In other words, we are an appellate court, and we cannot find facts. People v. A.W. , 982 P.2d 842, 845 (Colo. 1999). This......
  • People v. Houser, Court of Appeals No. 17CA0972
    • United States
    • Colorado Court of Appeals of Colorado
    • August 27, 2020
    ...in an appeal previously brought or postconviction proceeding previously brought ...." Crim. P. 35(c)(3)(VII) ; see Dunlap v. People , 173 P.3d 1054, 1062 n.4 (Colo. 2007). ¶ 16 As discussed above, Houser contended in his direct appeal that the offense of patronizing a prostituted child is u......
  • People in Interest of T.B., Court of Appeals No. 16CA1289
    • United States
    • Colorado Court of Appeals of Colorado
    • June 20, 2019
    ...Successiveness¶ 8 Claims that could have been raised in a prior appeal are usually barred as successive. See Dunlap v. People, 173 P.3d 1054, 1062 (Colo. 2007) (citing Crim. P. 35(c)); People v. Vondra, 240 P.3d 493, 495 (Colo. App. 2010) ("Defendant could have challenged the district court......
  • Request a trial to view additional results

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