Peo v. Parra

22CA0849 Peo v Parra 10-24-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0849
City and County of Denver District Court No. 09CR2290
Honorable Lisa C. Arnolds, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Christopher Dewayne Parra,

Defendant-Appellant.

ORDER AFFIRMED

Division IV
Opinion by JUDGE HARRIS
Yun and Berger*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 24, 2024

Philip J. Weiser, Attorney General, Brittany Limes Zehner, Assistant Solicitor
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Meredith K. Rose, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Defendant, Christopher Dewayne Parra, appeals the summary

denial of his Crim. P. 35(c) motion alleging ineffective assistance of

counsel. We affirm.

I. Background

¶2 At about 4:00 a.m. on Christmas morning 1998, C.C. called

911 to report that she had just been attacked in her apartment by

an unknown assailant. She told the responding officers that the

man had tied her hands with a shoelace and repeatedly sexually

assaulted her at knifepoint.

¶3 During the assault, the assailant used a condom that lodged

near the victim’s cervix. The condom was recovered a few hours

later during the victim’s sexual assault examination.

¶4 Ten years later, the police matched DNA from the condom to

Parra, who, in 1998, lived in the same apartment building as the

victim. Parra was arrested. During a recorded police interview,

Parra denied that he and the victim had ever had consensual sex.

¶5 At trial, having learned of the DNA evidence, Parra’s theory of

defense was that he had consensual sex with the victim on

Christmas eve. Then, because her boyfriend was arriving within a

1
few hours and she could not dislodge Parra’s condom, the victim

falsely reported a rape to explain why she had to have another

man’s condom removed from her vagina.

¶6 To counter Parra’s consent defense, the prosecution presented

evidence under CRE 404(b) of two prior sexual assaults.

¶7 According to the evidence, in 1996, Parra entered J.R.’s

bedroom in the middle of the night and raped her at knifepoint.

She was eventually able to grab a gun from under the bed and,

when it jammed, she hit Parra in the head and escaped. Parra was

arrested at the scene. He claimed that he and J.R. had consensual

sex. A jury could not reach a verdict on the sexual assault charge,

and Parra later entered no contest pleas to assault with a weapon

and indecent exposure.

¶8 In 2000, Parra climbed through a window into A.E.’s

apartment in the middle of the night, entered her bedroom armed

with a knife, and started kissing her mouth and licking her thighs.

A.E. screamed, awakening her boyfriend, who restrained Parra until

police arrived. Parra, who lived in the same apartment building as

A.E., claimed that he had accidentally wandered into the wrong

2
apartment, had fallen asleep on the bedroom floor, and was

awakened by the victim’s screams. A jury convicted him of first

degree burglary and sexual assault.

¶9 The jury in this case rejected Parra’s consent defense and

found him guilty of three counts of sexual assault and one count of

second degree kidnapping. The court designated Parra a sexually

violent predator and imposed the maximum authorized sentence.

¶ 10 On direct appeal, Parra argued that the trial court erred by

admitting the CRE 404(b) evidence of prior sexual assaults and that

the volume of evidence was particularly prejudicial. The division

disagreed, concluded that all the prior act evidence was properly

admitted, and affirmed the convictions. See People v. Parra, (Colo.

App. No. 10CA1475, Mar. 26, 2015) (not published pursuant to

C.A.R. 35(f)) (Parra I). The supreme court denied certiorari and the

mandate issued on May 19, 2016.

3
¶ 11 On September 18, 2019, Parra filed a pro se Crim. P. 35(c)

motion.1 The motion asserted that trial counsel had provided

ineffective assistance2 by

• failing to exclude the CRE 404(b) evidence or to effectively

challenge the CRE 404(b) witnesses’ testimony at trial;

• unreasonably advising Parra not to testify and failing to

prepare him to testify;

• failing to spend adequate time conferring with Parra before

trial;

• failing to pursue meritorious defenses;

• failing to present expert testimony on various issues;

1 The postconviction court recognized that Parra’s motion was

untimely. See § 16-5-402(1), C.R.S. 2024 (postconviction motion
must be filed within three years of the date the conviction becomes
final). But the court determined that Parra might have been able to
establish justifiable excuse or excusable neglect for the delay, see
§ 16-5-402(2)(d), based on appellate counsel’s alleged incorrect
advice about the deadline for filing the postconviction motion. The
postconviction court declined to hold a hearing on the timeliness
issue, however, because it concluded that Parra’s claims failed on
the merits. We agree with the court’s merits analysis, so we also
decline to reach the timeliness question.

2 Parra also raised various claims of trial court errors, which the

postconviction court denied as successive because those claims
could have been raised on direct appeal. See Crim. P. 35(c)(3)(VII).
4
• failing to effectively cross-examine certain witnesses; and

• failing to investigate and present mitigating evidence of Parra’s

mental health at sentencing.3

Parra also asserted a cumulative error claim.

¶ 12 Parra’s appointed counsel later filed a supplemental motion,

reasserting four of Parra’s pro se claims:

1. counsel was ineffective in her “handling” of the CRE 404(b)

issues “both prior to, and at the time of, trial”;

2. counsel provided ineffective assistance by failing to prepare

Parra to testify and by improperly advising him not to

testify;

3. counsel failed to communicate sufficiently with Parra before

trial, which led to her ineffective handling of the CRE 404(b)

issues and her unreasonable advice to Parra about

testifying; and

3 In his pro se motion, Parra alleged that his lawyer should have

introduced evidence of his mental health condition at trial as well,
but that part of his ineffective assistance of counsel claim has been
abandoned on appeal.
5
4. counsel’s cumulative errors deprived Parra of the effective

assistance of counsel.

¶ 13 In an exceptionally thorough and well-reasoned order, the

postconviction court addressed and rejected each of Parra’s claims,

including claims raised in the pro se motion and not reasserted in

the supplemental motion.

¶ 14 Parra now appeals.

II. Legal Principles and Standard of Review

¶ 15 A criminal defendant has a constitutional right to the effective

assistance of counsel. People v. Rainey, 2023 CO 14, ¶ 1. To

prevail on an ineffective assistance of counsel claim, a defendant

must show that (1) counsel’s performance was deficient and

(2) counsel’s deficient performance prejudiced the defense. See

Strickland v. Washington, 466 U.S. 668, 687 (1984).

¶ 16 In assessing the first prong of the Strickland test, we must

“indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance; that is, the

defendant must overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound

6
trial strategy.’” Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91,

101 (1955)); see also Le v. Mullin, 311 F.3d 1002, 1025 (10th Cir.

2002) (“For counsel’s performance to be constitutionally ineffective,

it must have been ‘completely unreasonable, not merely wrong, so

that it bears no relationship to a possible defense strategy.’”)

(citation omitted).

¶ 17 To establish prejudice under the second prong of the test, the

defendant must demonstrate “a reasonable probability that, but for

7
counsel’s unprofessional errors, the result of the proceeding would

have been different.” Strickland, 466 U.S. at 694.4

¶ 18 “Because a defendant must show both deficient performance

and prejudice, a court may resolve the claim solely on the basis that

the defendant has failed in either regard.” People v. Karpierz, 165

P.3d 753, 759 (Colo. App. 2006).

¶ 19 A postconviction court may deny a Rule 35(c) motion without

an evidentiary hearing if the motion “fails to state adequate factual

or legal grounds for relief,” Crim. P. 35(c)(3)(IV); the factual

4 Parra argues at various points in his briefing that the

postconviction court assessed his claims under an incorrect
prejudice standard. He points to instances in which the court
stated, with respect to a certain claim, that Parra “could not show”
that absent the alleged errors, the outcome “would have” been
different. Parra says the court’s language indicates that it required
him to show that the outcome would have been different, whereas,
under the correct standard, he only had to show a reasonable
probability of a different outcome. We disagree that the court’s
occasional shorthand demonstrates that it applied the wrong
standard. At the beginning of its order, it precisely articulated the
standard and repeated the “reasonable probability” language later
in its analysis. See People v. Washington, 2014 COA 41, ¶¶ 28-29
(defendant failed to show that court applied the incorrect prejudice
standard where court articulated correct standard in its order). In
any event, we review the court’s order, including its conclusions
regarding prejudice, de novo. See People v. Delgado, 2019 COA 55,
¶ 6.
8
allegations, even if true, do not warrant relief; the claims raise only

issues of law; or the record directly refutes the allegations. People

v. Castillo, 2022 COA 20, ¶ 14.

¶ 20 We review the summary denial of a Rule 35(c) motion de novo.

People v. Cali, 2020 CO 20, ¶ 14.

III. Claims Asserted in the Supplemental Motion

¶ 21 We first address Parra’s claims that counsel provided

ineffective assistance with respect to the CRE 404(b) evidence and

Parra’s right to testify.

A. CRE 404(b) Evidence

¶ 22 Any claim that trial counsel was ineffective because she failed

to prevent the admission of the CRE 404(b) evidence is foreclosed by

the Parra I division’s conclusion that all the evidence was

admissible. See, e.g., People v. Washington, 2014 COA 41, ¶ 40 (no

prejudice from counsel’s failure to object to the admission of CRE

404(b) evidence where the appellate court held that the evidence

was admissible); see also Williams v. Trammell, 782 F.3d 1184,

1198 (10th Cir. 2015) (“[W]hen a defendant fails to show that a trial

court’s admission of evidence was improper for some reason, it

likely follows that the lawyer did not perform deficiently by failing to
9
object to its admission.”); Garrett v. United States, 78 F.3d 1296,

1302 (8th Cir. 1996) (“The performance of an attorney is not

deficient because the attorney failed to object to admissible

evidence.”).5

¶ 23 Thus, Parra cannot demonstrate that counsel provided

ineffective assistance by (1) failing to consult with Parra’s lawyers in

the 2000 case about ways to exclude the CRE 404(b) evidence in

this case; (2) failing to “challenge[] the underlying facts of these

incidents” at the motions hearing; (3) failing to collaterally attack

the 2000 conviction;6 and (4) failing to object to the amount of CRE

404(b) evidence.7

5 In this case, trial counsel did object, repeatedly, to the admission

of the CRE 404(b) evidence. But under well-established law, even if
she had not objected, we could not say that she provided ineffective
assistance.

6 This claim fails for the independent reason that Parra did not

identify any grounds on which the 2000 conviction could have been
collaterally attacked in 2009 by his lawyer in this case.

7 This claim fails for the independent reason that counsel did object

to the volume of evidence and requested a mistrial; the objection
was overruled and the request for a mistrial denied.
10
¶ 24 That brings us to Parra’s complaints about his lawyer’s

performance at trial concerning the prior act evidence. In our view,

trial counsel had two options: she could try to persuade the jury

that Parra had not assaulted J.R. and A.E., by relitigating the facts

of the cases and attempting to impeach all nine CRE 404(b)

witnesses, or she could try to persuade the jury that the prior

conduct was irrelevant to whether Parra had consensual sex with

C.C. by emphasizing the dissimilarities between the prior acts and

the current offense. Trial counsel chose the second approach.

¶ 25 On appeal, Parra argues that his lawyer was ineffective for not

choosing the first approach. Specifically, he says counsel should

have impeached the victims’ testimony in the prior sexual assault

cases and challenged the testimony of an officer involved in the

2000 case.

¶ 26 As noted, though, Parra must overcome a strong presumption

that counsel’s conduct was reasonable, because “[i]t is all too

tempting for a defendant to second-guess counsel’s assistance after

conviction . . . , and it is all too easy for a court, examining

counsel’s defense after it has proved unsuccessful, to conclude that

11
a particular act or omission of counsel was unreasonable.”

Strickland, 466 U.S. at 689. Therefore, in applying the

presumption, we are “required not simply to give [the] attorney[] the

benefit of the doubt, but to affirmatively entertain the range of

possible reasons . . . counsel may have had for proceeding as [she]

did.” People v. Luong, 2016 COA 13M, ¶ 20 (quoting Cullen v.

Pinholster, 563 U.S. 170, 196 (2011)); see also United States v.

Fortson, 194 F.3d 730, 736 (6th Cir. 1999) (determining, without an

evidentiary hearing, that defendant had not overcome presumption

of effective assistance because the court could “conceive of

numerous reasonable strategic motives” for counsel’s actions at

trial).

¶ 27 We cannot say that counsel’s strategy with respect to the CRE

404(b) evidence was objectively unreasonable. Indeed, Parra does

not allege any facts showing that counsel’s strategy was

unreasonable; he simply points to an available alternative strategy.

But the mere existence of a second potentially reasonable strategy

does not render counsel’s strategy per se unreasonable and does

not overcome the presumption. See Johnson v. Comm’r of Corr.,

12
140 A.3d 1087, 1112 (Conn. App. Ct. 2016) (“The fact that

[counsel’s chosen strategy] was not the only reasonable trial

strategy that was available to counsel, or that it ultimately was not

successful, is not dispositive of the issue of whether the strategy

employed was objectively reasonable.”), aff’d, 198 A.3d 52 (Conn.

2019). To be entitled to an evidentiary hearing, Parra had to

explain why “there was no conceivable tactical justification for

counsel’s strategy,” id. at 1108, not just explain why he thought his

strategy was better.

¶ 28 And Parra’s preferred strategy had its own fundamental flaws.

So even if we assume that relitigating the prior sexual assaults is a

reasonable strategy, Parra cannot establish that his lawyer provided

ineffective assistance.

¶ 29 Take, for example, his complaint that counsel was ineffective

for failing to challenge the officer’s testimony suggesting that Parra

entered A.E.’s apartment through a window, not through the front

door as Parra claimed. According to Parra, the officer “theorized

that a latex glove found near the window was left by the intruder”

when, in fact, police reports allegedly established that the glove

13
belonged to A.E.’s daughter. But the officer never testified that the

glove likely belonged to the intruder.8 So counsel could not have

provided ineffective assistance by failing to challenge the officer’s

“theory” about the glove. Nor was counsel ineffective for failing to

challenge the officer’s basis for opining that Parra’s lug soled shoes

matched a print outside A.E.’s window. Parra suggests that the

officer, who testified as a lay witness, gave expert testimony, but

that is incorrect. See People v. Vigil, 2015 COA 88M, ¶¶ 61-64,

aff’d, 2019 CO 105. And although he contends that counsel should

have “cross-examined [the officer] about this alleged match,” he

does not say what cross-examination would have revealed. See

People v. Osorio, 170 P.3d 796, 800-01 (Colo. App. 2007).

¶ 30 Likewise, Parra fails to explain how counsel could have

“impeached” A.E.’s testimony that Parra had kissed her and licked

her thighs as her boyfriend was sleeping next to her. See id. As for

8 The officer testified that the window screen had been tampered

with and noted, in describing a photograph, that “there’s a rubber
latex glove laying on the windowsill.” Then, in response to the
question, “[D]id you notice anything else around the daughter’s
window,” he responded, “Like I said, just the window screen. It
looked like it had been punched out and hastily put into place[,]
and then the rubber glove.”
14
the DNA evidence, counsel elicited testimony from a DNA analyst

that Parra was excluded as a contributor to all the saliva samples

collected from A.E. To the extent Parra contends that counsel was

ineffective for failing to call an expert to testify that the absence of

DNA evidence in the case was “impossible” to reconcile with A.E.’s

testimony, we reject that contention. The postconviction court

concluded that Parra had to identify an expert who would offer such

an opinion, and we agree, particularly because the analyst did not

find the absence of Parra’s DNA significant. See People v. Terry,

2019 COA 9, ¶ 27 (no cognizable ineffective assistance of counsel

claim based on failure to call an expert where the defendant did not

“identify expert testimony” that would have rebutted the

prosecution expert’s opinion); see also Winters v. State, 2019 WY

76, ¶ 62 (“When an ineffective assistance claim is based upon the

failure to call an expert witness, the defendant must show an expert

was available who would have testified consistently with his

theory.”) (citation omitted). And if the argument is that counsel

should have introduced evidence that A.E.’s DNA was also not

found on Parra’s hands, that evidence would have been cumulative

15
of the evidence that no DNA linked Parra to A.E. See Washington, ¶

35 (counsel is not ineffective for failing to introduce cumulative

evidence).

¶ 31 Finally, counsel’s failure to impeach J.R. with trivial

inconsistencies between her testimony in the 1996 case and her

testimony at this trial did not amount to ineffective assistance.9

See United States v. Harris, 394 F.3d 543, 556 (7th Cir. 2005)

(failure to impeach a witness on “trivial matters” does not constitute

ineffective assistance of counsel); Johnson v. United States, 860 F.

Supp. 2d 663, 817 (N.D. Iowa 2012) (A defendant “cannot show

prejudice from failure to impeach a witness where the

9 On appeal, Parra does not specify any inconsistencies, but instead

directs us to his supplemental motion. The motion sets forth six
inconsistencies between J.R.’s 1996 preliminary hearing testimony
and her 2010 testimony in this case, including (1) in 1996, she said
that before the assault, she was at The Drink with her roommate
and two others, but in 2010, she said she thought the name of the
bar was the Sunset Grill and she was there with her roommate and
one other person; (2) in 1996, she said she spent about two hours
at the bar, but in 2010, she said she spent “maybe an hour and a
half” there; and (3) in 1996, when asked how long Parra had his
fingers inserted in her vagina, she said she “couldn’t say for sure,”
but that “to [her], it seemed like a long time” whereas in 2010, she
said his fingers were in her vagina for “probably a minute,” but it
“was hard to say because “time seems like it’s running really fast
and really slow at the same time.”
16
inconsistencies in a witness’s pretrial statements and trial

testimony are ‘very slight,’ because the likelihood of a different

result must be considered in light of the evidence as a whole.”).

¶ 32 For these reasons, we agree with the postconviction court that

Parra was not entitled to a hearing on any of these ineffective

assistance of counsel claims relating to the CRE 404(b) evidence.

B. Advice Regarding the Right to Testify

¶ 33 A defendant has a constitutional right to testify in his own

defense, U.S. Const. Amend. 5; Colo. Const. art. 2, § 25, and

counsel has a duty to adequately advise the defendant about his

right to testify, People v. Naranjo, 840 P.2d 319, 323 (Colo. 1992).

¶ 34 Parra contends that counsel unreasonably advised him not to

testify and then failed to prepare him to do so. As a result, he says,

he felt compelled to waive his right to testify.

¶ 35 But here, too, Parra cannot overcome the presumption that

counsel’s action might be considered sound trial strategy.

Counsel’s advice not to testify is presumptively reasonable unless

Parra can show that “no competent counsel would have taken the

action that his counsel did take.” Putman v. Head, 268 F.3d 1223,

17
1244 (11th Cir. 2001) (citation omitted). Parra insists that the

advice was unreasonable because testifying was his only

opportunity to rebut the CRE 404(b) evidence and substantiate his

consent defense, and his testimony could do no more damage than

the CRE 404(b) evidence had already done. According to Parra, any

reasonably competent lawyer would have advised him to testify “in

this she said/he said case.”

¶ 36 Counsel’s strategy, though, was not to rebut the CRE 404(b)

evidence, but instead to try to convince the jury that it was

irrelevant to the current charges. So Parra’s blow-by-blow rebuttal

of every CRE 404(b) witness’s testimony (as outlined in his pro se

motion) would have undercut, rather than supported, counsel’s

strategy, and it would have turned a “she said/he said” case into a

“she said and she said and she said/he said” case — the exact

result counsel was trying to avoid. And counsel could reasonably

have concluded that Parra could not effectively substantiate his

consent defense in light of the interview in which he denied having

had consensual sex with the victim. Finally, it is not true that the

CRE 404(b) evidence had doomed Parra so entirely that he could

18
not have done worse by testifying: the jury acquitted him of three

counts of sexual assault. Because, given all this, we can conceive

of an obvious reason “counsel . . . proceed[ed] as [she] did,” Parra

cannot overcome the presumption that counsel’s advice was

reasonable. Luong, ¶ 20.

¶ 37 Moreover, Parra knew, because the trial court told him, that

the decision to testify was his alone and that he had the right to

testify even if his lawyer had given him contrary advice. See

Jackson v. United States, 956 F.3d 1001, 1007-08 (8th Cir. 2020)

(counsel was not ineffective for advising the defendant not to testify

where advice was based on a strategy of avoiding cross-examination

and the defendant “certainly knew he could testify”).

¶ 38 Still, Parra says he felt compelled to go along with his lawyer

because he was unprepared to testify. As an initial matter, we

agree with the postconviction court that Parra’s response to the

court’s Curtis advisement10 belies this argument. Though a valid

Curtis advisement will not foreclose every claim concerning the

defendant’s right to testify, see Moore v. People, 2014 CO 8, ¶ 24,

10 See People v. Curtis, 681 P.2d 504 (Colo. 1984).

19
we think it does here. Parra’s argument is essentially that he did

not waive his right to testify voluntarily but only under compulsion,

because he believed he could not effectively exercise the

right. During the Curtis advisement, however, Parra told the court

that his decision not to testify was a “voluntary decision,” not made

“as a result of pressure or influence or coercion by anybody.” In

other words, the record refutes this claim.

¶ 39 Regardless, the claim is conclusory. A mere allegation that

counsel failed to prepare him to testify is insufficient. Parra must

demonstrate prejudice, by explaining how, with some preparation,

his decision about testifying would have been different. See, e.g.,

United States v. Cooper, 594 F. App’x 509, 515 (10th Cir. 2014)

(unpublished opinion) (on a claim that counsel failed to prepare a

defendant to testify, the defendant must establish prejudice). But

Parra does not explain what preparation was necessary for him to

elect to testify about his own version of what transpired on

Christmas eve (and in 1996 and 2000). To the extent he argues

that preparation was necessary to help him withstand the

“eviscerat[ing]” cross-examination that counsel warned him about,

20
that argument merely confirms that counsel had a good reason to

advise him not to testify.

¶ 40 In sum, we conclude that the postconviction court properly

denied without a hearing Parra’s claims that counsel provided

ineffective assistance with respect to his right to testify.

IV. Claims Raised in the Pro Se Motion and Addressed by the
Postconviction Court

¶ 41 The postconviction court elected to address the ineffective

assistance of counsel claims raised in Parra’s pro se motion but not

reasserted in the supplemental motion. Accordingly, we consider

those claims preserved for our review. See, e.g., No on EE v. Beall,

2024 COA 79, ¶ 13 (generally, an issue is preserved for appeal if the

district court ruled on it).

A. Failure to Pursue Meritorious Defenses

1. Alibi Defense

¶ 42 Parra says that counsel provided ineffective assistance

because she failed to call witnesses who would have established

that Parra was at his mother’s house in the middle of the night on

Christmas eve 1998, and therefore not at C.C.’s apartment when

the assault occurred. Of course, an alibi defense is inconsistent

21
with a consent defense, and because of the DNA evidence, Parra

was limited to a consent defense. Still, he says that he could have

used the alibi witnesses to prove that he had sex with the victim

earlier on Christmas eve — before he arrived at his mother’s house

that evening for a party. The alternate timeline, in turn, would have

undermined the victim’s credibility.

¶ 43 The postconviction court rejected the argument because

Parra’s brother, a reluctant prosecution witness, testified that Parra

was likely at his mother’s house at the time C.C. reported being

raped, so additional testimony that Parra was at his mother’s house

would have been cumulative.

¶ 44 On appeal, Parra insists that the brother’s testimony was

equivocal, and that Parra’s mother could have more effectively

established the alternate timeline.

¶ 45 We agree with the postconviction court that the mother’s

testimony, even if less equivocal, would have been cumulative of the

brother’s testimony. See, e.g., Daniel v. State, 86 So. 3d 405, 429-

30 (Ala. Crim. App. 2011) (“[E]ven if alternate witnesses could

provide more detailed testimony, trial counsel is not ineffective for

22
failing to present cumulative evidence.”) (citation omitted).

Additionally, a theory that the consensual sex occurred earlier in

the day — as early as 4:00 p.m., according to Parra — would have

undercut Parra’s consent defense. That defense depended on the

victim’s concern that her boyfriend was about to arrive at her

apartment and would discover the lodged condom. But if

consensual sex occurred at 4:00 p.m., the victim had more than

twelve hours before her boyfriend was scheduled to arrive to go to

an emergency room and have the condom removed. As the

prosecutor noted in closing argument, under those circumstances,

the victim did not have the motive to falsely report a rape that Parra

had ascribed to her. Therefore, trial counsel had a strategic reason

not to set a precise timeline and instead to argue more generally

that the brother’s testimony called into question the credibility of

the victim’s account, which is exactly what counsel did. “Once

counsel reasonably selects a defense, it is not deficient performance

to fail to pursue alternative defenses,” Rios v. Rocha, 299 F.3d 796,

807 (9th Cir. 2002), particularly when, as here, the alternative

23
strategy would have conflicted with the chosen strategy, see

Jackson v. Shanks, 143 F.3d 1313, 1320 (10th Cir. 1998).

2. Rape Shield

¶ 46 Parra contends that his lawyer was ineffective for failing to

pierce the rape shield so that he could present evidence that the

victim “was into ‘the hookup culture’ and traded sex with Parra for

cocaine, despite having a boyfriend.”

¶ 47 That claim fails for at least two reasons. First, as Parra

acknowledges, counsel did file a motion to pierce the rape shield,

which the trial court denied. Second, Parra does not even suggest a

legal theory under which evidence that the victim traded sex for

drugs would be admissible under the rape shield statute,

particularly in a case where it is undisputed that the defendant and

victim had sex. See § 18-3-407(1)(a)-(b), C.R.S. 2010; see also

Crim. P. 35(c)(3)(IV) (postconviction motion must “state adequate . .

. legal grounds for relief”).

3. Suppression of a Taped Interview

¶ 48 During trial, defense counsel discovered that police had

recorded an interview of Parra in 1996, after he was arrested for

sexually assaulting J.R. Because the recording of the interview was
24
not turned over, counsel moved to suppress Parra’s statements to

police. After a hearing, the trial court denied the motion.

¶ 49 On appeal, Parra argues that counsel provided ineffective

assistance by not filing the suppression motion earlier. That claim

fails because he does not explain why the timing of the motion

matters or allege that suppression of the statements would probably

have resulted in a different verdict. See People v. Vicente-Sontay,

2014 COA 175, ¶ 23 (When a defendant alleges ineffective

assistance of counsel based on a failure to litigate a suppression

issue, “the defendant must prove that the suppression claim was

‘meritorious’ and that there is a reasonable probability that the

verdict would have been different absent the excludable evidence.”).

B. Failure to Call Expert Witnesses

1. “Hookup Culture” Expert

¶ 50 Parra contends that his lawyer was ineffective for failing to

present expert testimony that in 1998, young people sometimes

engaged in casual sex. He says the testimony was necessary to

explain “his relationships” with J.R. and C.C.

¶ 51 For a few reasons, we disagree. First, while Parra attached

some articles about “hookup culture” to his motion, he did not
25
identify anyone purporting to be an expert in that field. Second, in

2010, the fact that people sometimes have sex outside of a

committed relationship would not have been a concept so

unfamiliar to an ordinary juror that it would have been the proper

subject of expert testimony. See Venalonzo v. People, 2017 CO 9,

¶ 22 (explaining that expert testimony “is that which goes beyond

the realm of common experience and requires experience, skills, or

knowledge that the ordinary person would not have”); see also

People v. Newmiller, 2014 COA 84, ¶¶ 58-60 (affirming trial court’s

determination that the “[f]ailure to call an expert on a matter more

properly the subject of lay testimony is not ineffective assistance of

counsel”). Third, the expert could not have testified about whether

the victims participated in “hookup culture,” so the testimony

would not, in fact, have helped the jury understand Parra’s

purported “relationships” with the victims.

2. False Memories Expert

¶ 52 At trial, the doctor who had conducted the sexual assault

examination of the victim in 1998 testified that he recalled seeing

“linear, red, deep abrasions” that covered “270 degrees of [the

26
victim’s] wrist,” “almost like . . . a rope burn.” On cross-

examination, the doctor confirmed that his report described “red

marks” and “abrasions” on the victim’s wrists, but it did not

describe the marks as covering 270 degrees of her wrists or looking

like a “burn.”

¶ 53 Parra argues that counsel was ineffective for failing to call an

expert on “false and enhanced memories” to impeach the doctor’s

testimony about the injuries he observed.11 But there was no

evidence that the doctor’s memory was false or enhanced. He

explained that he had an independent recollection of the

examination because it was the only “sexual assault case [he had]

ever done where [he] removed a condom, and that stood out to

[him],” as did the wrist injuries, which he had not seen in “any

other case.” See Gilbert v. Paramo, 754 F. App’x 611, 612 (9th Cir.

2019) (unpublished opinion) (counsel was not ineffective for failing

11 Parra also says that counsel could have “more effectively” cross-

examined the doctor about his failure to take notes during the
victim’s examination (he did take notes, which documented the
injuries to C.C.’s wrists) and his failure to order a toxicology report
(Officer Michael Maloney testified that he ordered a toxicology
report). Parra cannot show any prejudice from these alleged
deficiencies.
27
to call an expert on false memories to impeach the sexual assault

victim’s testimony because the “failure to call an expert is not

deficient where there is no evidence to support a defense”).

V. Cumulative Error

¶ 54 Parra contends that the cumulative effect of the alleged errors

prejudiced him. Even assuming the cumulative error doctrine

applies to ineffective assistance of counsel claims, but see People v.

Rivas, 77 P.3d 882, 893 (Colo. App. 2003) (cumulative error

doctrine applies when the “trial court commit[s] numerous errors”),

we need not conduct a cumulative error analysis because we have

concluded that none of Parra’s claims warrant an evidentiary

hearing. See Howard-Walker v. People, 2019 CO 69, ¶ 25 (“For

reversal to occur based on cumulative error, a reviewing court must

identify multiple errors that collectively prejudice the substantial

rights of the defendant, even if any single error does not.”).12

12 For this reason, we reject Parra’s claim that counsel provided

ineffective assistance by not spending enough time conferring with
him about the case. Parra cannot show prejudice because the
allegedly inadequate conferral time did not result in any deficient
performance by counsel that prejudiced his defense.

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VI. Sentencing

¶ 55 At sentencing, Parra was represented by a different lawyer.

According to Parra, the second lawyer met with him for about thirty

minutes before the sentencing hearing.

¶ 56 Parra contends that the second lawyer provided ineffective

assistance by failing to present evidence of his self-diagnosed post-

traumatic stress disorder (PTSD), which he says resulted from his

Army service in the mid-1990s, during which he completed a six-

month stint in Haiti, and which he says may have been exacerbated

by antimalarial medication he took at that time. He says the

second lawyer should also have presented evidence that around the

time of the offense, he was “self-medicating” through “heavy

drinking, occasional cocaine use, and sexual addiction behavior.”

¶ 57 But Parra never alleges that he told either of his lawyers that

he had PTSD and, in his briefing on appeal, he concedes that

neither of them “had [any] notion” that he “had been adversely

affected by his [military] service.”

¶ 58 The reasonableness of counsel’s decision to forgo making an

argument is “directly related to the information the defendant has

29
supplied.” People v. Rodriguez, 914 P.2d 230, 295 (Colo. 1996)

(citation omitted); see also Strickland, 466 U.S. at 690-91

(explaining that counsel’s decision whether to undertake a

particular line of investigation is generally based on the facts of the

case and information supplied by the defendant). The second

lawyer’s failure to present evidence that Parra suffered from PTSD

cannot constitute ineffective assistance “when the essential and

foundational information required to trigger” an investigation into

his mental health was “withheld from [the second lawyer] by [Parra]

himself.” Rodriguez, 914 P.2d at 295 (citation omitted).

¶ 59 On appeal, Parra suggests that the second lawyer did not learn

about the PTSD because the lawyer spent insufficient time with

him. But Parra does not explain why he could not have told his

second lawyer that he had PTSD at some point during a thirty-

minute visit.

¶ 60 In any event, a defendant alleging ineffective assistance of

counsel at sentencing must show a reasonable probability that, but

for counsel’s deficient performance, the result of the sentencing

proceeding would have been different. See People v. Dunlap, 124

30
P.3d 780, 797 (Colo. App. 2004). “It is not enough ‘to show that the

errors had some conceivable effect on the outcome of the

proceeding.’” Harrington v. Richter, 562 U.S. 86, 104 (2011)

(quoting Strickland, 466 U.S. at 693).

¶ 61 In his 2019 pro se motion, Parra alleged that he developed

PTSD in the mid-1990s. He did not allege any side effects from the

antimalarial medication other than that it “exacerbated” his PTSD.13

Parra did not allege that he had ever been diagnosed with PTSD or

any other mental health disorder. Parra did not submit an

evaluation or other report from a mental health professional opining

that he suffered from a mental health disorder at the time of the

offense. He did not identify any mental health professional who he

intended to call at a hearing to testify about his mental health in

1998. And although he faulted his second lawyer for not

investigating mitigating mental health evidence, he did not allege

that an investigation would have uncovered any useful evidence,

13 In support of his allegations, Parra attached to his motion an

article discussing the side effects of Lariam. The article does not
say that Lariam “exacerbates” PTSD; it says that Lariam can
produce symptoms similar to PTSD.
31
much less identify what evidence it would have uncovered. See

People v. Sharp, 2019 COA 133, ¶ 15 (to assert a failure to

investigate claim, a defendant must allege that the investigation

would have uncovered evidence that might reasonably have resulted

in a different outcome); People v. Chambers, 900 P.2d 1249, 1252

(Colo. App. 1994) (“Unless [an] investigation would have discovered

substantial evidence which, if introduced, might reasonably have

led to a different result, counsel’s deficiency . . . was not

prejudicial.”).

¶ 62 The postconviction court accepted as true that Parra had

PTSD from his time in Haiti, and that he self-medicated by drinking

heavily, using illegal drugs, and engaging in “sexual addiction

behavior.” But in light of all the evidence, the court found that

there was no reasonable probability that this information would

have had “any substantial impact” at sentencing.

¶ 63 On appeal, Parra says only that the court’s conclusion is

“speculative.” We do not agree.

¶ 64 At the sentencing hearing, the court said that “the facts of this

case are extraordinarily aggravated,” and that this was “one of the

32
most aggravated cases of sexual assault th[e] [c]ourt ha[d] ever

heard.” It found that Parra was “clearly a serial rapist” and “clearly

qualif[ied] as a sexually violent predator.” The court told Parra,

“you are one of the most dangerous people I have known in my

career.” It found Parra to be a “clear and present danger to anyone,

any female, in [the] community.” For that reason, it explained, “for

th[e] [c]ourt to do anything but ensure that you serve as long as you

possibly can serve in prison” would be “a dereliction of my duty.”

According to the court, it wanted to impose “the most severe

sanction [it could].”

¶ 65 We conclude that Parra has failed to show there is a

reasonable probability that, but for counsel’s failure to present

evidence of Parra’s self-diagnosed PTSD and his addictive

behaviors, the result of the sentencing hearing would have been

different. Accordingly, we agree with the postconviction court that

Parra was not entitled to a hearing on this claim. Cf. People v.

Torrez, 2013 COA 37, ¶ 92 (reversing the defendant’s sentence but

declining to remand for resentencing where the trial court “clearly

and unequivocally stated that it intended to impose the maximum

33
sentence,” and instead correcting the sentence on appeal to achieve

the maximum possible lawful sentence); see also Ardolino v. People,

69 P.3d 73, 77 (Colo. 2003) (denial of a postconviction motion

without a hearing is justified if the existing record establishes that

the defendant’s factual allegations, even if proved true, would fail to

demonstrate prejudice).

VII. Disposition

¶ 66 The order is affirmed.

JUDGE YUN and JUDGE BERGER concur.

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