People v. Ray
2015 WL 4312699
Colo. Ct. App.2015Background
- Ray on death row from a separate first-degree murder case; POWPO conviction used as death-penalty aggravator.
- In 2004 Ray was on probation for prior drug and vehicle theft offenses; police stopped him for traffic violations and searched his car after handcuffing him.
- A BB gun was found in the passenger compartment and a firearm was found behind the driver’s door panel.
- Trial court admitted the firearm against suppression challenges; intermediate appellate court affirmed conviction; Colorado Supreme Court denied certiorari; mandate issued in 2008.
- Ray filed Crim. P. 86(c) postconviction motion in 2011 alleging ineffective assistance of appellate and trial counsel and other claims; the court denied.
- Ray has additional convictions related to 2004–2005 Lowry Park shootings and murder of a key witness, proceedings in those cases are referenced but not central to the present Crim. P. 85(c) ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether heightened scrutiny applies to POWPO review. | Ray argues heightened scrutiny should apply because POWPO aided capital case. | Ray asserts noncapital analogies should not trigger heightened scrutiny. | Assumed for argument, but still no relief; no ineffective assistance shown. |
| Appellate counsel's failure to file a certiorari petition to the U.S. Supreme Court. | Ray contends counsel’s failure was deficient and prejudicial. | State contends no right to counsel to pursue certiorari; no prejudice shown. | No deficient performance; no prejudice under heightened scrutiny. |
| Prejudice under Strickland for failure to file certiorari. | Ray would have benefited if Gant had been considered earlier. | Uncertain timing and outcome; no guarantee of reversal. | No reasonable probability of different outcome on remand; prejudice not shown. |
| Trial counsel's failure to investigate whether others drove Ray's car. | Counsel did not uncover third-party access to the car. | Investigation was adequate; evidence unlikely to change outcome. | No ineffective assistance; claim resolved on direct appeal. |
| Failure to raise a Second Amendment defense. | Defense could have admitted knowledge but asserted self-defense. | Defense would conflict with theory that Ray did not know firearm was there. | No ineffective assistance; defense was strategically unfounded. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (establishes standard for ineffective assistance)
- Ardolino v. People, 69 P.3d 76 (Colo. 2003) (deferential review; reasonable performance required)
- Dunlap v. People, 975 P.2d 728 (Colo. 1999) (right to counsel not guaranteed for certiorari review)
- Perez v. People, 281 P.3d 957 (Colo. 2010) (distinguishes pending certiorari timelines (Gant context))
- Gant v. United States, 556 U.S. 332 (U.S. 2009) (limits vehicle search incident to arrest after occupant taken into custody)
- Newmiller v. People, 338 P.3d 459 (Colo. 2014) (postconviction standard for prejudice on ineffective assistance)
- Davis v. United States, 564 U.S. 229 (U.S. 2011) (good faith exception to exclusionary rule for pre-Gant searches)
- Hopper v. People, 284 P.3d 87 (Colo. App. 2011) (applies good faith exception post-Davis)
- Belton v. United States, 453 U.S. 454 (U.S. 1981) (bright-line rule for vehicle searches before Gant)