Peo v. Huggins

     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                               August 1, 2019

                               2019COA116

No. 16CA1709, Peo v Huggins — Criminal Procedure —
Postconviction Remedies; Attorneys and Clients — Ineffective
Assistance of Counsel — Conflicts of Interest

     Cuyler v. Sullivan, 

(1980), cannot be read so

broadly as to encompass a conflict of interest involving an

attorney’s personal interests. Applying Sullivan in cases arising

from a lawyer’s conflict of interest resulting from the lawyer’s

self-interest would undermine the uniformity and simplicity of

Strickland v. Washington, 

(1984). A division of the

court of appeals holds that Sullivan applies when an attorney labors

under a narrower category of conflicts of interest: where the

attorney’s conflict of interest arises from multiple concurrent

representation.
COLORADO COURT OF APPEALS                                       2019COA116


Court of Appeals No. 16CA1709
Arapahoe County District Court No. 93CR1584
Honorable F. Stephen Collins, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Chester L. Huggins,

Defendant-Appellant.


                              ORDER AFFIRMED

                                   Division IV
                         Opinion by JUDGE LIPINSKY
                              Román, J., concurs
                         J. Jones, J., specially concurs

                          Announced August 1, 2019


Philip J. Weiser, Attorney General, Matthew S. Holman, First Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Robin M. Lerg, Alternate Defense Counsel, Montrose, Colorado, for Defendant-
Appellant
¶1    Defendant, Chester L. Huggins, appeals the denial of his

 motions for postconviction relief under Crim. P. 35(c). He contends

 that the delay in resolution of his motions violated his “due process

 right to a speedy and meaningful postconviction review.” Huggins

 further contends that the postconviction court erred in denying his

 ineffective assistance of counsel claim because the attorney who

 represented him both at trial and in his direct appeal labored under

 a conflict of interest.

¶2    We affirm because the application of Cuyler v. Sullivan, 

(1980), to ineffective assistance of counsel cases premised

 on a purported conflict of interest involving the lawyer’s self-interest

 would undermine the uniformity and simplicity of Strickland v.

 Washington, 

(1984).

                                 Background

¶3    We address only the relevant portion of the lengthy history of

 this case.

¶4    Huggins was convicted of first degree murder, conspiracy to

 commit first degree murder, and being an accessory to a crime.

 Forrest Lewis represented Huggins both at his trial and in the direct

 appeal. Before trial, Huggins filed a pro se motion for appointment


                                    1
 of new counsel on various grounds, including Lewis’s alleged failure

 to assist Huggins in preparing for trial, lack of legal knowledge,

 failure to communicate, and bias. The trial court denied the

 motion. In addition, Lewis filed two separate motions for leave to

 withdraw on the grounds that Huggins believed that he and Lewis

 could no longer work together after they had discussed a possible

 plea agreement. The trial court also denied Lewis’s motions.

¶5    After the trial, the court granted Lewis’s motion for

 appointment as Huggins’s appellate counsel. A division of this

 court affirmed the judgment of conviction. People v. Huggins, (Colo.

 App. No. 94CA1159, May 23, 1996) (not published pursuant to

 C.A.R. 35(f)).

¶6    In February 1998, Huggins filed a pro se motion to vacate his

 judgment of conviction under Crim. P. 35(c) (First Motion). In the

 First Motion, he alleged that Lewis had been ineffective for several

 reasons, including because Lewis had “failed to raise conflict of

 interest issues between himself and his client at trial” and had not

 interviewed three potential witnesses.

¶7    Later that year, Huggins filed a second motion to vacate his

 judgment of conviction, also under Crim. P. 35(c) (Second Motion).


                                    2
 In the Second Motion, Huggins again argued that Lewis had been

 ineffective. Concurrently, he filed a motion for the appointment of

 counsel to assist with his postconviction motions. The court

 appointed Steven Katzman to represent Huggins in connection with

 the Second Motion.

¶8    The First and Second Motions remained pending on the

 postconviction court’s docket for the next eleven years. During that

 time, Huggins filed a pro se motion for the appointment of new

 counsel (New Counsel Motion), in which he expressed his

 displeasure with Katzman’s performance. The court took no action

 on the New Counsel Motion, however. More than two years later,

 Katzman moved to withdraw on the basis of irreconcilable

 differences with Huggins. The court granted Katzman leave to

 withdraw.

¶9    In February 2010, Huggins filed a third pro se motion for

 postconviction relief, again under Crim. P. 35(c) (Third Motion),

 which also included an ineffective assistance of counsel claim. The

 postconviction court denied the Third Motion in an order entered in

 July 2010. That order made no reference to the First or Second

 Motions, however.


                                   3
¶ 10   In March 2013, Huggins filed a “Request for a Status Report,”

  in which he sought information regarding the status of the First

  and Second Motions (Status Request). The postconviction court

  responded that it would not take action on the Status Request

  because Huggins had not served it on the People.

¶ 11   More than two years later, Huggins sent a letter to the Chief

  Justice of the Colorado Supreme Court (Letter), in which he alleged

  a “gross violation of [his] due process rights by the delay” in

  adjudication of his First and Second Motions.

¶ 12   The postconviction court appointed Evan Zuckerman as new

  counsel for Huggins in March 2015. Zuckerman filed a status

  report in which she requested additional time to investigate the

  grounds for Huggins’s postconviction motions and a supplement

  (Supplement) to the Third Motion. The Supplement restated

  Huggins’s ineffective assistance of counsel claim and argued that

  Lewis had been “ineffective in advising and raising as a possible

  appellate issue the trial court’s denial of the two motions to

  withdraw resulting in abandonment of a possible appellate claim for

  relief.” Additionally, Huggins argued in the Supplement that he had

  been deprived of his statutory right to postconviction review


                                     4
  because the postconviction court could not “properly and

  meaningfully review a complete record of proceedings.” The record

  reflects that Lewis had not ordered transcripts of certain of the

  proceedings in the trial court.

¶ 13   Following an evidentiary hearing at which Lewis, Huggins, and

  other witnesses testified, the postconviction court denied all three of

  Huggins’s postconviction motions (collectively, the Crim. P. 35(c)

  Motions). (The court inexplicably denied the Third Motion twice.)

¶ 14   Huggins appeals the denial of the Crim. P. 35(c) Motions.

                        Huggins’s Due Process Claims

¶ 15   Huggins contends that his due process right to a “speedy and

  meaningful postconviction review” was violated because of the delay

  in adjudication of the Crim. P. 35(c) Motions. The parties dispute

  whether Huggins preserved this due process argument.

¶ 16   We conclude that Huggins did not preserve the argument and,

  thus, we cannot consider it.

              A.    The Law on Preservation of Arguments

¶ 17   When a defendant does not raise an issue in a postconviction

  motion or during the hearing on that motion, and the

  postconviction court therefore does not have an opportunity to rule


                                     5
  on the issue, as a general rule, the issue is not properly preserved

  for appeal and we will not consider it. DePineda v. Price, 

, 1280 (Colo. 1996) (“Issues not raised before the district court

  in a motion for postconviction relief will not be considered on appeal

  of the denial of that motion.”); People v. Golden, 

, 375

  (Colo. App. 1996) (holding that, in an appeal of a Crim. P. 35(c)

  motion, the court of appeals will not consider allegations not raised

  in the motion and thus not ruled on by the trial court).

¶ 18   This rule applies to both constitutional and nonconstitutional

  arguments presented for the first time in an appeal of a ruling on a

  Crim. P. 35(c) motion. See People v. Jackson, 

, 1019

  (Colo. App. 2004) (declining to consider due process and other

  constitutional arguments not presented to the trial court in Crim. P.

  35(c) motion).

¶ 19   Despite the broad language of cases such as DePineda and

  Golden, we have the discretion to consider an unpreserved

  argument, but only in rare cases. See Hagos v. People, 

, ¶ 23, 

, 122 (holding that reversal for unpreserved

  error “must be rare to maintain adequate motivation among trial

  participants to seek a fair and accurate trial the first time”). More


                                     6
  specifically, this court may consider unpreserved constitutional

  arguments, “but only where doing so would clearly further judicial

  economy.” See People v. Houser, 

, ¶ 35, 

, 1248. Without such a limitation, a defendant might

  intentionally “withhold a meritorious objection, permit error to

  occur, and then, in the event of a conviction, raise the error for the

  first time on appeal.” 

337 P.3d at 1249 (quoting People v.

  Smith, 

, 253 (Colo. App. 2005) (Webb, J., specially

  concurring)).

       B.   Huggins Failed to Preserve His Due Process Argument

¶ 20   Huggins contends that he preserved his argument regarding

  the alleged violation of his due process right “to a speedy and

  meaningful” postconviction review “by filing pleadings complaining

  about the delay in resolving [the Crim. P. 35(c) Motions].” Huggins’s

  argument misses the mark.

¶ 21   He cites four documents through which he allegedly preserved

  the due process argument: the New Counsel Motion, a one-page

  attachment to the First Motion, the Status Request, and the Letter.

       •     In the New Counsel Motion, Huggins requested the

             appointment of new counsel because Katzman allegedly


                                     7
    had a conflict of interest and had unreasonably delayed

    in meeting with Huggins. The New Counsel Motion did

    not mention any delay in adjudication of Huggins’s

    postconviction motions.

•   The one-page attachment to the First Motion described

    the anticipated testimony of individuals whom Lewis had

    not called at trial but did not address Huggins’s due

    process claim.

•   The Status Request appears to be a motion for a status

    report on the First and Second Motions, both of which

    alleged ineffective assistance of counsel only. Huggins

    specifically asked the postconviction court to “set this

    matter down so this court could declar[e] whether

    counsel is ineffective.” The Status Request said nothing

    about a violation of Huggins’s due process rights.

•   In the Letter, Huggins alleged that the postconviction

    court had “committed a gross violation of [his] due

    process rights by the delay in action.” But the Letter was

    not a motion and did not present the due process issue

    to the postconviction court for a ruling. See Price, 

; People v. Simms, 

, 218, 

, 465 (1974).

¶ 22   Moreover, the Supplement, which summarized Huggins’s

  postconviction arguments, made no reference to an alleged violation

  of his due process rights as a consequence of the postconviction

  court’s inaction on the Crim. P. 35(c) Motions. Although the

  Supplement contained a due process argument, in that contention,

  Huggins asserted that Lewis’s failure to request transcripts of

  certain proceedings in the trial court violated Huggins’s due process

  rights because, without the transcripts, the postconviction court

  could not review a complete record of the underlying proceedings.

  Further, Huggins’s Crim. P. 35(c) Motions (as well as his other

  postconviction filings) did not include an argument that the delay in

  the rulings on the Rule 35(c) Motions violated his right to due

  process.

¶ 23   Huggins’s argument is materially different from the

  unpreserved arguments our supreme court determined were

  forfeited, and not waived, in Cardman v. People, 

, ¶ 18,

  ___ P.3d ___, ___, and Phillips v. People, 

, ¶ 38, ___ P.3d

  ___, ___. See Cardman, ¶ 10 (waiver is the intentional


                                     9
  relinquishment of a known right or privilege, while forfeiture is the

  failure to make the timely assertion of a right); Phillips, ¶¶ 16-17

  (same).

¶ 24    Unlike this case, both Cardman and Phillips involved

  defendants who sought to raise new arguments in support of

  positions they had taken in the trial court. In Cardman and

  Phillips, the defense presented on appeal new arguments for

  suppression of evidence it had challenged in the trial court. See

  Cardman, ¶¶ 6-7, 11; Phillips, ¶¶ 13-14 (explaining that the

  defendant was singing a “different tune” and had “switched horses”

  in advancing the new arguments).

¶ 25   Huggins not only failed to present his due process argument to

  the postconviction court, but he never raised in the postconviction

  court any argument, based on any legal theory, that he was entitled

  to relief because the court had waited too long to rule on the Crim.

  P. 35(c) Motions. Huggins is not merely changing tunes or horses;

  he never sang a note or climbed into a saddle before filing his

  appeal. We do not read Cardman or Phillips as permitting a

  defendant to raise an entirely new issue on an appeal of a

  postconviction motion.


                                    10
¶ 26   Because the postconviction court had no opportunity to rule

  on Huggins’s due process argument, Huggins failed to preserve it.

  And this is not one of those rare cases in which we will consider an

  unpreserved constitutional argument to “clearly further judicial

  economy.” For these reasons, we will not consider Huggins’s

  unpreserved argument that the delay in adjudication of the Rule

  35(c) Motions violated his due process rights. See 

; People v. Boulden, 

, ¶ 5, 

, 455.

                       Ineffective Assistance of Counsel

¶ 27   Huggins next contends that the postconviction court erred in

  finding that he had not proven his ineffective assistance of counsel

  claim. He argues that, by representing him at both the trial and on

  appeal, Lewis labored under a conflict of interest and, therefore,

  was ineffective, as a matter of law.

                        A.    Standard of Review

¶ 28   We review the denial of a Crim. P. 35(c) motion following a

  hearing for an abuse of discretion. People v. Firth, 

,

  449 (Colo. App. 2008). A district court abuses its discretion if its

  decision is manifestly arbitrary, unreasonable, or unfair, or is based




                                    11
  on an erroneous understanding or application of the law. People v.

  Trammell, 

, ¶ 10, 

, 947-48.

¶ 29     A claim of ineffective assistance of counsel presents mixed

  questions of fact and law. Dunlap v. People, 

, 1063

  (Colo. 2007). We defer to a postconviction court’s findings of fact

  when they are supported by the record, but we review its legal

  conclusions de novo. West v. People, 

, ¶ 11, 

, 525.

  B.     Huggins Preserved His Ineffective Assistance of Counsel Claim

¶ 30     The People contend that Huggins failed to preserve his conflict

  of interest claim because he incorrectly framed it as “an ineffective

  assistance of counsel claim[] under Strickland [v. Washington, 

(1984)].” We disagree.

¶ 31     We do not require parties to use “talismanic language”

  to preserve an argument for appeal. People v. Melendez, 

, 322 (Colo. 2004). Where a defendant raises an issue

  sufficiently to provide the district court with an opportunity to rule

  on it, the issue is sufficiently preserved. Boulden, ¶ 

.




                                     12
¶ 32   In the Supplement, Huggins asserted that Lewis was

  “ineffective in advising and raising as a possible appellate issue the

  trial court’s denial of Lewis’s motions to withdraw, resulting in

  abandonment of a possible appellate claim for relief.” Huggins

  contends that Lewis did not raise his conflict of interest on appeal

  because “it required an evaluation of Lewis’ own conduct

  precipitating the motions to withdraw” and Lewis “had a strong

  disincentive to raise the denials of the withdrawal motions or to

  even communicate candidly with Mr. Huggins about the claim.”

  Huggins specifically argued in the Supplement that

            [w]hen Mr. Lewis was appointed as appellate
            counsel, he was wholly unable to effectively
            advise Mr. Huggins on a potential claim
            regarding the trial court’s denial of Mr.
            Huggins [sic] request for substitute counsel.
            An effective advisement would have required
            Mr. Lewis to accurately assess his own
            ineffectiveness as trial counsel, which created
            a conflict of interest in his representation of
            Mr. Huggins in his appeal. By failing to raise a
            potentially meritorious claim, Mr. Huggins was
            denied effective assistance of counsel in his
            appeal.

¶ 33   We conclude that this argument was sufficient to provide the

  postconviction court with an opportunity to consider Huggins’s

  argument that Lewis was ineffective because he had labored under


                                    13
  a conflict of interest. Thus, Huggins preserved his claim of

  ineffective assistance of counsel premised on Lewis’s alleged conflict

  of interest.

       C.     The Legal Standard Applicable to Ineffective Assistance of
             Counsel Claims Based on a Conflict Between the Attorney’s
                       Self-Interest and the Client’s Interests

¶ 34        We next consider whether Huggins’s claim of ineffective

  assistance of counsel is governed by Strickland, which applies to

  general allegations of ineffective assistance of counsel, or by Cuyler

  v. Sullivan, 

(1980), which applies when an attorney

  labors under a narrower category of conflicts of interest. Each

  standard places a different burden on a defendant attempting to

  demonstrate a violation of the constitutional right to conflict-free

  counsel.

¶ 35        To prevail on an ineffective assistance of counsel claim under

  Strickland, a defendant must prove that counsel’s performance was

  so deficient as to be “outside the wide range of professionally

  competent assistance,” 

, and that “the

  deficient performance prejudiced the defense,” People v. Villanueva,

  

, ¶ 29, 

, 542. The defendant must also

  demonstrate “a reasonable probability that, but for counsel’s


                                        14
  unprofessional errors, the result of the proceeding would have been

  different. A reasonable probability is a probability sufficient to

  undermine confidence in the outcome.” 

.

¶ 36     In contrast, under Sullivan, a defendant must demonstrate

  only that his counsel labored under a conflict of interest that

  adversely affected the lawyer’s performance. 

. Where Sullivan applies, the defendant must show by a

  preponderance of the evidence that (1) counsel had a conflict of

  interest; and (2) the conflict adversely affected the representation.

  West, ¶ 

. Once a defendant makes a prima facie

  showing of a conflict under Sullivan, prejudice is presumed and

  nothing more is required for relief. 

;

  Villanueva, ¶ 

. The Sullivan adverse effect

  inquiry thus places a lesser burden on a defendant than does

  the Strickland prejudice analysis. Villanueva, ¶ 

.

¶ 37     In Mickens v. Taylor, 

(2002), the Supreme Court

  said in dicta that Sullivan applies only to those cases in which the

  attorney’s conflict of interest arises from multiple concurrent


                                    15
  representations. See 

The federal courts disagree on

  the extent to which Mickens narrowed the scope of Sullivan. See

  United States v. Williamson, 

, 854 n.3 (10th Cir. 2017)

  (collecting cases). And the broad language of Villanueva suggests

  that Sullivan can apply to conflicts that do not involve the

  representation of parties with differing interests. See Villanueva,

  ¶ 

.

¶ 38   We hold that Sullivan cannot be read so broadly as to

  encompass the type of conflict of which Huggins complains,

  however. See Ezekor v. United States, No. CV 10-0549, 

, at *9 (S.D. Tex. June 13, 2012) (noting that, although

  some courts have applied Sullivan to “ineffective assistance of

  counsel claims grounded on a conflict of interest between an

  attorney’s personal or financial interests and the attorney’s clients’

  interests,” an ineffective assistance of counsel claim “grounded on a

  conflict of interest between an attorney’s duty to a client and the

  attorney’s own self-interest is governed by the Strickland standard”

  (citing United States v. Newell, 

, 516 (5th Cir. 2002))).

¶ 39   The majority in Mickens persuasively reasoned that Sullivan

  articulated a rule applicable only to one particular category of


                                    16
  conflict of interest in light of the “high probability of prejudice

  arising from multiple concurrent representation, and the difficulty

  of proving that prejudice . . . .” 

. The

  Court underscored that “[n]ot all attorney conflicts present

  comparable difficulties.” 

not to suggest that one ethical duty is
                more or less important than another. The
                purpose of our . . . Sullivan exception[] from
                the ordinary requirements of Strickland,
                however, is not to enforce the Canons of Legal
                Ethics, but to apply needed prophylaxis in
                situations where Strickland itself is evidently
                inadequate to assure vindication of the
                defendant’s Sixth Amendment right to counsel.

  

¶ 40   In reliance on the Mickens language, courts have declined to

  extend Sullivan to conflict situations not involving multiple

  concurrent representation. See, e.g., Foote v. Del Papa, 

, 1029 (9th Cir. 2007) (explaining that “the Sullivan exception

  applies where the petitioner shows: (1) that his counsel actively

  represented conflicting interests; and (2) that this adversely affected

  his counsel’s performance”); Earp v. Ornoski, 

, 1184

  (9th Cir. 2005) (holding that the Sullivan test does not apply to

  conflict of interest arising from attorney’s romantic interest in


                                      17
  defendant); Beets v. Scott, 

, 1265 (5th Cir. 1995) (en

  banc) (noting that Strickland offers a superior framework for

  addressing attorney conflicts outside the multiple or serial client

  context).

¶ 41    We agree with these authorities and therefore reject Huggins’s

  contention that West can be read expansively to require application

  of the Sullivan test to conflicts involving an attorney’s personal

  interests. See West, ¶ 

(assuming, without

  deciding, that Sullivan applies to alleged conflicts of interest arising

  from successive representation of trial witnesses against a

  defendant). Applying Sullivan in cases arising from a lawyer’s

  conflict of interest resulting from the lawyer’s self-interest would

  undermine the uniformity and simplicity of Strickland. 

.

¶ 42    Thus, we review Huggins’s conflict of interest argument under

  the Strickland test.

   D.    Huggins Did Not Establish That Lewis Was Ineffective Under
                            the Strickland Test

¶ 43    Huggins contends that Lewis was ineffective because he

  labored under a conflict of interest while representing Huggins.



                                     18
  According to Huggins, Lewis’s “own professional interest” conflicted

  with Huggins’s desire to argue on appeal that the trial court erred

  in denying Lewis’s motions to withdraw.

¶ 44   The record supports the trial court’s key findings of fact

  regarding Lewis’s representation of Huggins:

       •    Lewis’s disagreement with Huggins had focused on

            Lewis’s recommendation that Huggins accept the plea

            agreement the prosecution had offered.

       •    Lewis encouraged Huggins to accept the plea agreement

            because of the strength of the evidence against Huggins

            and Lewis’s belief that the chances of winning at trial

            were very low.

       •    Huggins lost confidence in Lewis’s ability to advocate on

            behalf of Huggins when Lewis encouraged Huggins to

            accept the plea agreement.

       •    It is not unusual for defense counsel to lose the

            confidence of his or her client after recommending that

            the client accept a plea agreement.

       •    Huggins had been reluctant to accept the risk of going to

            trial.

                                   19
•   By the time of trial, Lewis and Huggins had resolved their

    differences.

•   Huggins had been frustrated with Lewis’s performance at

    trial primarily because Lewis had not interviewed the

    three potential witnesses whose testimony Huggins

    believed would support his defense.

•   There is no reasonable basis to believe the jury would

    have acquitted Huggins if the jury had heard the

    potential witnesses’ testimony.

•   The disagreements between Huggins and Lewis regarding

    strategy never rose to the level of a conflict of interest.

•   There had never been a complete breakdown in Huggins’s

    communications with Lewis.

•   The disagreements between Huggins and Lewis had not

    justified the appointment of new counsel for Huggins.

•   Lewis presented a vigorous defense at trial.

•   Lewis did not prevent Huggins from making any of the

    decisions related to the trial that are reserved to the

    defendant.



                            20
•   Lewis and Huggins discussed Huggins’s appellate rights,

    potential appellate issues, and Huggins’s right to a

    different lawyer on appeal.

•   Huggins believed Lewis had fought hard for him at trial

    and was comfortable with Lewis serving as appellate

    counsel.

•   Lewis did not believe any issue prevented him from

    properly representing Huggins on appeal.

•   Lewis would not have represented Huggins on appeal if

    Huggins had not expressly agreed that Lewis should

    serve as his appellate counsel.

•   Lewis evaluated the entirety of the trial proceedings in

    determining the issues that could be raised on appeal,

    ordered transcripts of only those portions of the trial

    proceedings reflecting issues that legitimately could be

    raised on appeal, and determined that the denial of the

    motions to withdraw did not raise legitimate appellate

    issues.




                           21
       •     Huggins could not point to any potential errors

             documented in those portions of the trial proceedings for

             which Lewis had not ordered transcripts.

¶ 45   The trial court’s meticulous findings of fact establish that,

  contrary to Huggins’s argument, Lewis’s personal interests had not

  materially limited his ability to represent Huggins on appeal.

  Therefore, Lewis had not operated under a conflict of interest at

  that time. “A conflict of interest exists when the attorney’s ability to

  represent a client is materially limited by the attorney’s own

  interests.” People v. Delgadillo, 

, ¶ 9, 

,

  775; see Colo. RPC 1.7(b). Challenging the trial court’s rulings on

  the motions to withdraw would not, as Huggins contends, have

  required Lewis to contradict his earlier assertion to the trial court

  that there was good cause for withdrawal.

¶ 46   Lewis had felt no compunction about asking the trial court to

  allow him to withdraw as Huggins’s attorney. Huggins does not

  explain why Lewis would have been unwilling to raise on appeal the

  very same argument for withdrawal that Lewis had presented to the

  trial court.




                                     22
¶ 47   We are unaware of any Colorado case law establishing a per se

  rule that the same attorney may not represent a defendant at trial

  and on appeal. “We disagree that trial counsel cannot effectively

  assist a client on appeal. Many trial attorneys represent their

  clients on appeal, in part, because of their intimate knowledge of

  the facts and law of the case.” Rogers v. State, 

, 897

  (Mont. 2011).

¶ 48   Lastly, Huggins has not established that the arguments

  concerning the motions for leave to withdraw would have been

  stronger than the arguments that Lewis presented on appeal.

  “[O]nly when ignored issues are clearly stronger than those

  presented, will the presumption of effective assistance of counsel be

  overcome . . . .” People v. Trujillo, 

, 238 (Colo. App.

  2007) (quoting Ellis v. Hargett, 

, 1189 (10th Cir.

  2002)). “Appellate counsel is not required to raise on appeal every

  nonfrivolous issue a defendant desires to raise.” 

  For these reasons, Lewis’s representation of Huggins did not

  fall “outside the wide range of professionally competent assistance”

  and was not ineffective. See 

.




                                    23
                                 Conclusion

¶ 50   The postconviction court’s order is affirmed.

       JUDGE ROMÁN concurs.

       JUDGE J. JONES specially concurs.




                                   24
        JUDGE J. JONES, specially concurring.

¶ 51    I concur in the majority’s judgment in full. But I write

  separately because I believe defendant invited any error in the

  district court’s application of Strickland v. Washington, 

(1984), to his conflict of interest claim.

¶ 52    In defendant’s First Motion he didn’t make any claim about a

  conflict of interest. He did assert that the two-prong Strickland test

  applied to his ineffective assistance claims.

¶ 53    Defendant’s Second Motion alleged, in entirely conclusory

  fashion, that his trial/appellate counsel “failed to raise conflict of

  interest issues between himself and his client at trial.” It didn’t talk

  about a legal test.

¶ 54    Defendant’s Third Motion didn’t mention a conflict of interest

  at all.

¶ 55    The Supplement filed by counsel on defendant’s behalf raised

  the conflict of interest issue. And it argued expressly, and at

  length, that the Strickland test applied to that issue. On the issue

  of prejudice, defendant argued that he had established prejudice

  under Strickland.




                                     25
¶ 56   In denying defendant’s conflict of interest claim, the district

  court applied the Strickland prejudice test for which defendant had

  argued. Now on appeal, defendant contends that the district court

  erred by applying that test. Our case law is clear, however, that

  having urged a different test below, defendant is barred by the

  invited error doctrine from claiming error in the application of that

  test. See Horton v. Suthers, 

, 618 (Colo. 2002); People v.

  Zapata, 

, 1308-09 (Colo. 1989), cited with approval in

  People v. Rediger, 

, ¶ 34; People v. Collins, 

, 304-05 (Colo. 1986); Gray v. People, 

, 588, 

, 630 (1959), cited with approval in Rediger, ¶ 34; see also

  People v. Hamilton, 

, 75 (Ill. App. Ct. 1978)

  (“[D]efendant cannot inject an erroneous statement of law into an

  argument before the trial court and then rely on his own error to

  obtain a reversal on appeal.”); State v. Jenkins, 

, 249

  (N.J. 2004).

¶ 57   So although I agree with the majority’s analysis of the conflict

  of interest issue, I would not address it.




                                     26