Peo v. Barnett

22CA2007 Peo v Barnett 07-18-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA2007

El Paso County District Court No. 16CR3315

Honorable Frances R. Johnson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Matthew Manuel Barnett,

Defendant-Appellant.

ORDER AFFIRMED

Division I

Opinion by JUDGE WELLING

J. Jones and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 18, 2024

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant

Attorney General, Denver, Colorado, for Plaintiff-Appellee

Matthew Manuel Barnett, Pro Se

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¶ 1 Defendant, Matthew Manuel Barnett, appeals the district

court’s order denying his Crim. P. 35(c) motion without a hearing.

We affirm.

I. Background

¶ 2 A jury convicted Barnett of menacing, child abuse,

harassment, and reckless endangerment. The trial court sentenced

him to three years in the custody of the Department of Corrections,

to be followed by two years of mandatory parole. Barnett directly

appealed, and a division of this court affirmed the judgment of

conviction. People v. Barnett, (Colo. App. No. 19CA1057, Mar. 11,

2021) (not published pursuant to C.A.R. 35(e)).

¶ 3 Barnett then filed a timely pro se motion for postconviction

relief under Crim. P. 35(c). He asserted several claims related to his

trial counsel’s performance — namely, that counsel

(1) “knowingly and maliciously allowed violation of [his]

right to fair and speedy trial” and “lied” by saying “that

no violation occurred”;

(2) failed to investigate inconsistencies in witness

statements;

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(3) failed to seek a mistrial when the prosecutor

referenced Barnett’s mental health issues;

(4) failed to investigate and “produce evidence for [a

mental health] defense or mitigation”;

(5) “restarted the [speedy trial] clock” by withdrawing his

not guilty plea and entering a not guilty by reason of

insanity plea;

(6) failed to seek a competency examination before

sentencing;

(7) failed to object to seating a juror who was friends with

the prosecutor’s parents; and

(8) “failed to present proof of evidence in the records at

trial” and other information that would have

demonstrated that “the victim was a compulsive liar.”

¶ 4 Barnett also claimed that the prosecutor committed

misconduct by (1) knowingly presenting perjured testimony from

two witnesses; (2) “threaten[ing] to elevate [the] charges to

attempted murder for not taking the Judge Shakes Veteran’s

Trauma court plea deal”; and (3) “taint[ing] the jury” by referencing

Barnett’s “mental health issues” and “trip to the VA.” He further

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claimed that the trial court erred by denying a motion to dismiss,

denying his right to conflict-free counsel, and violating his “rights to

a fair and speedy trial because [his] attorney[’s] performance fell

below a reasonable level.” And, Barnett asserted, Judge Lowrey

(who presided over the trial) was biased due to his relationship with

Judge Shakes.

¶ 5 Last, Barnett alleged that he experienced a nine-month delay

in receiving a mental health evaluation. He questioned whether the

delay was attributable to his “attorney’s ineffectiveness or the

court’s lack of attention,” but stated that, “either way, this was very

prejudicial for my case.”

¶ 6 In a detailed written order, the district court denied the motion

without a hearing, concluding that Barnett had failed to state

adequate legal or factual grounds for relief.

II. The District Court Didn’t Err by Denying Crim. P. 35(c) Relief

¶ 7 We review de novo a district court’s decision to deny a Crim.

P. 35(c) motion without a hearing. People v. Cali, 2020 CO 20, ¶ 14.

We perceive no error in that decision here.

¶ 8 To warrant a hearing on a Crim. P. 35(c) motion, a defendant

must assert facts that, if true, would provide a basis for relief.

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People v. Simpson, 69 P.3d 79, 81 (Colo. 2003). A postconviction

court may deny a Crim. P. 35(c) motion without a hearing when the

motion, the files, and the record clearly establish that the defendant

is not entitled to relief. Ardolino v. People, 69 P.3d 73, 77 (Colo.

2003). A court may also deny relief when the allegations are bare,

conclusory, vague, or lacking in detail. People v. Venzor, 121 P.3d

260, 262 (Colo. App. 2005). Although pro se pleadings must be

broadly construed, it is not a court’s role to rewrite those pleadings

or act as an advocate for a pro se litigant. Cali, ¶ 34.

A. Ineffective Assistance of Counsel

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

assistance of counsel. U.S. Const. amends. VI, XIV; Colo. Const.

art. II, § 16. To obtain relief on an ineffective assistance of counsel

claim, a defendant must show that (1) counsel’s performance was

deficient — in that it fell below an objective standard of

reasonableness; and (2) the deficient performance prejudiced the

defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984).

To establish prejudice, the defendant must allege a reasonable

probability that, but for counsel’s errors or omissions, the result of

the proceeding would have been different. Id. at 694.

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¶ 10 If a court determines that a defendant has failed to prove

either prong of the Strickland test, it may deny the ineffective

assistance claim without addressing the other prong. Id. at 697.

¶ 11 Barnett’s allegations of deficient performance were nothing

more than a conclusory list of perceived errors and omissions,

without even the barest explanation of why, in his case, counsel’s

performance fell below an objective standard of reasonableness. It’s

not enough for a defendant to merely assert bare accusations that

his counsel erred; he must allege with specificity why counsel’s

errors or omissions constituted deficient performance. See People v.

Zuniga, 80 P.3d 965, 973 (Colo. App. 2003) (Bare and “conclusory

allegations regarding counsel’s allegedly deficient performance are

insufficient to demonstrate that defendant may be entitled to

postconviction relief and that the record might contain specific facts

that would substantiate his claim.”). Moreover, even assuming, for

the sake of argument, that Barnett alleged sufficient facts to permit

a conclusion that counsel’s alleged errors and omissions

constituted deficient performance, he wholly failed to allege the

requisite prejudice. That is, he didn’t allege — let alone explain —

why, but for counsel’s alleged errors and omissions, the result of

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his trial would have been different. Accordingly, we can’t conclude

that the district court erred by denying Barnett’s ineffective

assistance of counsel claims without a hearing.

B. Prosecutorial Misconduct and Trial Court Error

¶ 12 We likewise perceive no error in the district court’s resolution

of Barnett’s allegations of prosecutorial misconduct and trial court

error. To the extent these claims weren’t successive (because they

could have been raised in Barnett’s direct appeal, see Crim. P.

35(c)(3)(VII)), they were devoid of specific facts and therefore

appropriately denied as bare, conclusory, and lacking in sufficient

supporting detail. See Venzor, 121 P.3d at 262.

III. Appointment of Counsel

¶ 13 We also reject Barnett’s assertion that the district court erred

by failing to appoint counsel in conjunction with his postconviction

motion. Having concluded that the court properly denied the

motion without a hearing, we likewise conclude that the court didn’t

err by declining to appoint counsel. Id. at 264.

IV. New Assertions on Appeal

¶ 14 In his appellate brief, Barnett adds significant factual details

in support of his postconviction claims. However, a defendant may

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not use his brief on appeal to fortify issues inadequately raised or

supported by his postconviction motion. People v. Rodriguez, 914

P.2d 230, 251 (Colo. 1996). Accordingly, we won’t consider these

details on appeal.

V. Disposition

¶ 15 The order is affirmed.

JUDGE J. JONES and JUDGE SCHOCK concur.