Background
In 1995, Raymond Cain and two codefendants robbed two women. Cain shot both women; one died and the other survived. A jury convicted Cain of first degree felony murder, attempted first degree murder after deliberation, conspiracy offenses, attempted methamphetamine possession, and crime-of-violence sentence enhancers. His direct appeal failed, and the mandate issued in 1998.
Cain’s codefendants later obtained reversals of their felony-murder convictions because their juries had not been adequately instructed on criminal attempt as part of attempted robbery, the predicate offense. In 2023, Cain filed his fourth Crim. P. 35(c) motion, alleging that trial, appellate, and prior postconviction counsel were ineffective for not challenging assertedly similar flaws in his felony-murder and attempted-murder instructions. The postconviction court denied the motion without a hearing.
The Court’s Holding
The Court of Appeals affirmed. Cain could not establish Strickland prejudice on his felony-murder-related ineffective-assistance claims because his instructions, considered as a whole, properly defined robbery and criminal attempt. Unlike the codefendants’ instructions, Cain’s separately stated attempt instruction was not buried within another offense, and the felony-murder affirmative-defense instruction correctly referred to robbery and attempted robbery.
The court also held that Cain’s challenge to his attempted first degree murder conviction was untimely. Although ineffective assistance can sometimes establish justifiable excuse or excusable neglect, Cain’s allegations did not explain his nearly three-decade delay. His claimed reliance on counsel’s advice about the codefendants’ felony-murder errors did not excuse a delayed challenge to the attempted-murder instruction, and any claimed conflict involving earlier counsel did not explain the failure to raise the claim after unconflicted counsel began representing him.
Key Takeaways
- Instructional defects that reversed codefendants’ convictions did not establish error where Cain’s own instructions adequately defined the relevant predicate offenses.
- An ineffective-assistance claim fails without a reasonable probability that the omitted argument would have succeeded.
- A defendant seeking to excuse an untimely collateral attack must account for the full period of delay with specific facts.
Why It Matters
The decision underscores that jury instructions must be evaluated as a whole and on the actual record in the defendant’s case, not by comparison alone to a codefendant’s trial. It also reinforces that postconviction claims involving non-class-1 felonies remain subject to Colorado’s three-year limitation unless the defendant adequately pleads justifiable excuse or excusable neglect.