2016 COA 13M
Colo. Ct. App.2016Background
- Defendant Man Hao Luong was convicted on multiple counts related to 2005 robberies and sentenced (ultimately) to 64 years after direct appeal adjustments.
- Luong filed a Crim. P. 35(c) postconviction motion claiming trial counsel was ineffective for failing to investigate whether Asian-Americans were underrepresented in the 100-person venire for his trial (and county juries generally).
- He alleged the venire contained no jurors identifiable as Asian, while Asians constituted about 2.6% of Jefferson County’s population (based on census figures cited in the motion).
- Luong also alleged the State had destroyed the jury wheel/panel records, preventing proof; after appeal the records were located, but were not before the postconviction court.
- The district court denied the motion without an evidentiary hearing; Luong appealed and sought remand to present the newly located jury records.
- The appellate court affirmed, holding Luong’s allegations—accepted as true—did not show counsel’s performance was constitutionally deficient under Strickland, so no remand for prejudice was required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial counsel was ineffective for not investigating a fair cross-section claim | Luong: absence of Asian jurors in 100-person venire and county Asian population (~2.6%) created a red flag requiring investigation | State: counsel’s performance was reasonable given the small Asian population and available statistical measures; counsel lacked obvious basis to investigate | Court: No deficient performance shown; counsel’s inaction fell within reasonable professional judgment |
| Whether summary denial of Crim. P. 35(c) motion without hearing was improper | Luong: alleged specific facts meriting a hearing | State: allegations did not establish counsel’s performance was deficient or raise issues requiring a hearing | Court: Denial affirmed—allegations, even if true, did not entitle Luong to relief |
| Whether underrepresentation in a single 100-person venire established a prima facie fair cross-section violation | Luong: zero Asians in venire vs. 2.6% county population constituted significant underrepresentation | State: small absolute disparity and small-group statistical issues mean single-venire absence insufficient | Court: Absolute disparity (≈2.6%) and absolute impact (~2.6 persons) did not show substantial underrepresentation; single-venire absence insufficient to establish systematic exclusion |
| Whether remand was appropriate after discovery of jury wheel/panel records | Luong: records could prove prejudice and warrant remand for hearing | State: any records would pertain only to prejudice; remand unnecessary if deficient-performance prong fails | Court: Denied remand because defendant failed to plead deficient performance; further proof of prejudice would not cure that defect |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance two‑prong test: deficient performance and prejudice)
- Duren v. Missouri, 439 U.S. 357 (fair cross-section test elements for jury venire challenges)
- Washington v. People, 186 P.3d 594 (Colo. 2008) (discusses statistical measures for underrepresentation on juries)
- Sepeda v. People, 581 P.2d 723 (Colo. 1978) (Sixth Amendment fair cross-section principle)
- Kimmelman v. Morrison, 477 U.S. 365 (counsel’s failure to investigate Fourth Amendment claims may be ineffective assistance standard)
- Cullen v. Pinholster, 568 U.S. 170 (courts must affirmatively entertain possible reasons for counsel’s decisions)
- Ardolino v. People, 69 P.3d 78 (Colo. 2008) (Colorado recognition of Strickland standard)