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

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

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,

(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,

(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,

,

(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,

,

. 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.” Id., ¶ 45,

(quoting People v.

Smith,

(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, 915

8 P.2d at 1280; People v. Simms,

,

(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,

,

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

, ___ 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 Price,

; People v. Boulden,

,

.

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,

(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,

,

.

¶ 29 A claim of ineffective assistance of counsel presents mixed

questions of fact and law. Dunlap v. People,

(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,

,

.

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,

(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, ¶ 4,

.

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,” Strickland,

, and that “the

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

,

. 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.” Strickland,

.

¶ 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. Sullivan,

. 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, ¶ 65,

. Once a defendant makes a prima facie

showing of a conflict under Sullivan, prejudice is presumed and

nothing more is required for relief. Sullivan,

;

Villanueva, ¶ 30,

. The Sullivan adverse effect

inquiry thus places a lesser burden on a defendant than does

the Strickland prejudice analysis. Villanueva, ¶ 30,

.

¶ 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,

¶ 30,

.

¶ 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,

(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 . . . .” Mickens,

. The

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

comparable difficulties.”

This is 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,

(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,

(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,

(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, ¶ 38,

(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. Beets,

.

¶ 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,

,

; 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,

(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,

(Colo. App.

2007) (quoting Ellis v. Hargett,

(10th Cir.

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

nonfrivolous issue a defendant desires to raise.”

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

fall “outside the wide range of professionally competent assistance”

and was not ineffective. See Strickland,

.

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,

(Colo. 2002); People v.

Zapata,

(Colo. 1989), cited with approval in

People v. Rediger,

; People v. Collins,

(Colo. 1986); Gray v. People,

,

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

People v. Hamilton,

(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,

(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