SUMMARY

August 27, 2020

2020COA128

No. 17CA0972, Peo v Houser — Criminal Procedure —

Postconviction Remedies — Conviction Obtained or Sentence 

Imposed in Violation of the Constitution; Attorneys and Clients 

— Ineffective Assistance of Counsel

A division of the court of appeals considers whether a district 

court may deny without a hearing a defendant’s Crim. P. 35(c) 

motion premised on trial counsel’s alleged ineffectiveness for not 

presenting constitutional arguments that no appellate court in this 

state has ever adopted. The majority holds that a Crim. P. 35(c) 

motion fails to establish a meritorious claim of ineffective assistance 

of counsel if it rests on an attorney’s failure to raise novel 

arguments unsupported by then-existing precedent.

The partial dissent would remand based on its determination 

that several of the defendant’s constitutional claims that underlie 

his ineffective assistance of counsel claims have merit. The partial 

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.
dissent would hold that a defendant is entitled to a hearing on a 

Crim. P. 35(c) claim that presents serious constitutional questions 

regarding the validity of his conviction and sentence.
COLORADO COURT OF APPEALS 2020COA128

Court of Appeals No. 17CA0972

Douglas County District Court No. 06CR678

Honorable Paul A. King, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Timothy Charles Houser,

Defendant-Appellant.

ORDER AFFIRMED IN PART, REVERSED IN PART,

AND CASE REMANDED WITH DIRECTIONS

Division VII

Opinion by JUDGE LIPINSKY

Fox, J., concurs

Berger, J., concurs in part and dissents in part

Prior Opinion Announced May 7, 2020, WITHDRAWN

Petition for Rehearing GRANTED in part, DENIED in part

Announced August 27, 2020

Philip J. Weiser, Attorney General, Jillian J. Price, Senior Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Lynn Noesner, Deputy State 

Public Defender, Denver, Colorado, for Defendant-Appellant
1

¶ 1 Defendant, Timothy Charles Houser, appeals the district 

court’s order denying his Crim. P. 35(c) motion for postconviction 

relief. The postconviction court rejected Houser’s constitutional 

arguments and his claims of ineffective assistance of counsel 

without a hearing. 

¶ 2 We affirm the postconviction court’s denial of Houser’s 

constitutional arguments. We also affirm the portion of the 

postconviction court’s order addressing Houser’s claim that his trial 

counsel was ineffective for failing to raise novel arguments. We hold 

that an attorney cannot be deemed ineffective solely because he or 

she did not take positions unsupported or not “clearly 

foreshadowed” by then-existing law. In addition, we affirm the 

portion of the order holding that Houser is not entitled to a hearing 

on his claim that his attorney was ineffective for failing to raise a 

valid defense, because that claim fails as a matter of law. However, 

we reverse the postconviction court’s denial of Houser’s claims that 

his counsel was ineffective for not challenging the out-of-court 

identification of Houser and the search warrant resting on such 

identification, and not challenging the prosecution’s alleged 

outrageous conduct in forcing his first attorney to withdraw. The 
2

case is remanded to the postconviction court for a hearing on those 

claims. 

I. Background

¶ 3 Houser was convicted of patronizing a prostituted child in 

violation of section 18-7-406(1)(a), C.R.S. 2019. Sixteen-year-old 

A.J. testified at Houser’s trial that she earned money through 

prostitution. She posted an advertisement on Craigslist in which 

she identified herself as a twenty-year-old “playmate.” Houser 

responded to A.J.’s posting. A.J. told police she went to Houser’s 

“home in Douglas County where he paid her $240 to engage in 

sexual acts with him.” People v. Houser, 2013 COA 11, ¶ 2, 337 

P.3d 1238, 1243 (Houser I).

¶ 4 Houser was charged with patronizing a prostituted child. 

Houser filed a pretrial notice of intent to assert an affirmative 

defense under section 18-1-503.5, C.R.S. 2019, that Houser had 

reasonably believed A.J. was over the age of eighteen. That statute 

authorizes a reasonable mistake of age defense, although it does 

not refer to the child prostitution statutes. The prosecution filed an 

objection to the notice, arguing that section 18-7-407, C.R.S. 2019, 

which expressly applies to the child prostitution statutes, precluded 
3

Houser from raising such a defense. See § 18-7-407 (“In any 

criminal prosecution under sections 18-7-402 to 18-7-407, it shall 

be no defense that the defendant did not know the child’s age or 

that he reasonably believed the child to be eighteen years of age or 

older.”). 

¶ 5 Following a hearing, the trial court found that section 

18-7-407 bars defendants charged with patronizing a prostituted 

child from presenting a reasonable mistake of age defense. The 

court, therefore, prohibited Houser from arguing at trial that he 

reasonably believed A.J. was at least eighteen years old.

¶ 6 A jury found Houser guilty of patronizing a prostituted child. 

The trial court sentenced him to thirty days in jail, with ten days’ 

credit for time served, and sex offender intensive supervised 

probation for an indeterminate term of ten years to life. Six years 

later, after Houser failed to comply with the terms of his probation, 

the trial court resentenced him to two years to life in the custody of 

the Department of Corrections. 
4

A. Houser’s Direct Appeal

¶ 7 Houser appealed his conviction. A division of this court 

affirmed. Houser I, ¶ 1, 337 P.3d at 1243. Two of the holdings in 

Houser I are relevant here. 

¶ 8 First, the division affirmed the trial court’s ruling that Houser 

was precluded from presenting a reasonable mistake of age defense. 

Id. at ¶ 27, 337 P.3d at 1246. In comparing sections 18-1-503.5(1) 

and 18-7-407, the Houser I division acknowledged that the former 

“mandates that the court allow a reasonable belief defense when the 

victim is at least fifteen years old, [while] the other expressly 

prohibits such a defense.” Id. at ¶ 19, 337 P.3d at 1245. After 

meticulously analyzing the legislative history of the two statutes, 

the division determined that section 18-7-407 applies to the offense 

of patronizing a prostituted child. Thus, defendants charged with 

that offense cannot present a reasonable mistake of age defense, as 

a matter of law. Id. at ¶¶ 18-27, 337 P.3d at 1245-46. 

¶ 9 Second, the division declined to consider Houser’s 

unpreserved argument that section 18-7-401(6), C.R.S. 2019, which 

defines “prostitution by a child,” is unconstitutionally vague on its 

face. Id. at ¶ 49, 337 P.3d at 1250. The division decided that 
5

judicial economy did not “afford a basis” for departing from the 

principle that a constitutional challenge may not be raised for the 

first time on appeal. Id. at ¶¶ 28, 30, 49, 337 P.3d at 1246, 1247, 

1250.

B. Houser’s Crim. P. 35(c) Motion

¶ 10 After the Houser I division affirmed his conviction, Houser filed 

a Crim. P. 35(c) motion challenging the constitutionality of his 

conviction and sentence, and alleging ineffective assistance of 

counsel. The postconviction court denied Houser’s motion without 

a hearing. It found that Houser I precluded Houser’s constitutional 

arguments and, even if Houser could present such arguments, they 

fail on the merits. It also held that Houser failed to establish 

prejudice and deficient performance and, therefore, is not entitled to 

a hearing on his ineffective assistance of counsel claims. This 

appeal followed.

¶ 11 In his appeal, Houser largely reasserts the arguments he 

presented in his Crim. P. 35(c) motion. 

¶ 12 Houser raises four constitutional arguments: (1) the offense of 

patronizing a prostituted child is unconstitutionally vague; (2)

section 18-7-401(6) violates Houser’s right to equal protection; (3) 
6

section 18-7-407, which Houser I held precludes a defendant from 

raising an affirmative defense of reasonable mistake of age in child 

prostitution cases, violates Houser’s equal protection and due 

process rights; and (4) section 18-1.3-1004(2)(a), C.R.S. 2019, the 

Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA), is 

unconstitutional as applied to Houser and, specifically, violates his 

due process rights. 

¶ 13 Further, Houser contends that his trial counsel was ineffective 

in failing to (1) challenge the constitutionality of section 18-7-407; 

(2) challenge the constitutionality of his sentence under SOLSA; (3) 

argue that the offense of patronizing a prostituted child is void for 

vagueness; (4) argue that Houser’s conviction under section 

18-7-406(1) violates equal protection; (5) raise a valid defense; (6) 

call a particular witness; and (7) challenge “the State’s outrageous 

conduct.” Houser argues that the postconviction court erred in 

denying him a hearing on the claims raised in his Crim. P. 35(c) 

motion. 

II. Houser’s Constitutional Claims

¶ 14 Before we address the merits of Houser’s constitutional 

arguments, we first consider the People’s contention that they are 
7

not properly before us. The People assert that, because Houser 

raised only one constitutional argument in his direct appeal, we are 

precluded from considering all of Houser’s constitutional claims 

under Crim. P. 35(c)(3)(VI) or Crim. P. 35(c)(3)(VII) or, in the 

alternative, under the doctrine of law of the case. We disagree that 

Houser’s void for vagueness argument is not properly before us. 

However, we agree with the People that we are precluded from 

considering Houser’s other constitutional arguments under Crim. P. 

35(c). 

A. Although Houser’s Void for Vagueness Argument Is Properly 

Before Us, We Do Not Consider Houser’s Other Constitutional 

Arguments Under Crim. P. 35(c)

1. Crim. P. 35(c)(3)(VI) and Crim. P. 35(c)(3)(VII)

¶ 15 Crim. P. 35(c)(3)(VI) requires us to “deny any claim that was 

raised and resolved in a prior appeal . . . .” We must also “deny any 

claim that could have been presented in an appeal previously 

brought or postconviction proceeding previously brought . . . .” 

Crim. P. 35(c)(3)(VII); see Dunlap v. People, 173 P.3d 1054, 1062 n.4 

(Colo. 2007). 

¶ 16 As discussed above, Houser contended in his direct appeal 

that the offense of patronizing a prostituted child is 
8

unconstitutionally vague, although the division in Houser I declined 

to consider the argument. Houser I, ¶¶ 28, 49, 337 P.3d at 1246, 

1250. Houser’s void for vagueness argument, therefore, does not fit 

within Crim. P. 35(c)(3)(VI) or Crim. P. 35(c)(3)(VII) because it was 

raised, but not resolved, in Houser’s direct appeal. We therefore 

address this argument on the merits. We do not, however, consider 

Houser’s remaining constitutional arguments because Houser could 

have raised them in his direct appeal but did not do so. See Crim. 

P. 35(c)(3)(VII).

2. Law of the Case

¶ 17 “[T]he law of the case ‘is a rule of practice, based upon sound 

policy that when an issue is once litigated and decided, that should 

be the end of the matter.’” Verzuh v. Rouse, 660 P.2d 1301, 1303 

(Colo. App. 1982) (quoting United States v. U.S. Smelting Ref. & 

Mining Co., 339 U.S. 186, 198 (1950)). Houser argues that the law 

of the case doctrine does not apply to his argument that section 

18-7-406 is void for vagueness because the division in Houser I

“refused to address or resolve” the merits of that argument. We 

agree. Because Houser’s void for vagueness argument was not 
9

“litigated and decided” in Houser I, the law of the case doctrine does 

not preclude us from addressing it. 

B. The Offense of Patronizing a Prostituted Child Is Not 

Unconstitutionally Vague

¶ 18 We disagree with Houser’s argument that the patronizing a 

prostituted child statute is unconstitutionally vague. 

¶ 19 We review the constitutionality of a statute de novo. Dean v. 

People, 2016 CO 14, ¶ 8, 366 P.3d 593, 596. A statute is not void 

for vagueness so long as it “permits persons of ordinary intelligence 

to distinguish between permissible and illegal conduct and provides 

workable standards for those responsible for the enforcement and 

application of the law.” People v. West, 724 P.2d 623, 626 (Colo. 

1986). 

¶ 20 A person commits the crime of “patronizing a prostituted 

child” by performing with a child one of the acts included in the 

definition of “prostitution by a child.” § 18-7-401(6); § 18-7-406(1). 

“[P]rostitution by a child” is defined as 

either a child performing or offering or agreeing 

to perform any act of sexual intercourse, 

fellatio, cunnilingus, masturbation, or anal 

intercourse with any person not the child’s 

spouse in exchange for money or other thing of 

value or any person performing or offering or 
10

agreeing to perform any act of sexual 

intercourse, fellatio, cunnilingus, 

masturbation, or anal intercourse with any 

child not the person’s spouse in exchange for 

money or other thing of value.

§ 18-7-401(6).

¶ 21 Houser argues that, because the definition of “prostitution by 

a child” includes certain actions performed by a child, but not by 

the defendant, it is unclear how a “defendant can conform his 

behavior to avoid criminal liability.” See § 18-7-401(6). For 

example, he contends that a defendant could be found guilty of 

patronizing a prostituted child merely because a child offered to 

perform for the defendant one of the acts specified in section 

18-7-401(6). Houser suggests that merely reading a child’s written 

offer of prostitution, such as in a Craigslist posting, would be 

sufficient to convict a defendant of patronizing a prostituted child. 

¶ 22 But Houser’s reading of the statute is too broad. Houser was 

not convicted of “prostitution by a child,” but of “patronizing a 

prostituted child” under section 18-7-406(1)(a). Section 

18-7-406(1)(a) requires that the defendant perform one of the 

prohibited acts with a child. The plain language of the statute 
11

makes clear that the actions of a child alone do not constitute an 

offense under section 18-7-406(1)(a). 

¶ 23 While we acknowledge that the language of section 

18-7-406(1)(a) could be clearer, a statute “need not be drafted with 

mathematical precision” to provide “fair warning of the proscribed 

conduct.” People v. Becker, 759 P.2d 26, 31 (Colo. 1988). Thus, we 

conclude that section 18-7-406(1) is not void for vagueness. 

¶ 24 Houser also tacks on a cursory as-applied challenge at the 

conclusion of his vagueness argument, suggesting that the use of 

the word “offer[]” in section 18-7-401(6) “destroyed [his] defense” 

because “the [prosecution] was able to argue Houser was guilty 

regardless of whether [he had] sex” with A.J. We do not address 

this argument because Houser presented it as a bald legal 

proposition. Barnett v. Elite Props. of Am., Inc., 252 P.3d 14, 19 

(Colo. App. 2010) (“We will not consider a bald legal proposition 

presented without argument or development.”). Further, we do not 

consider Houser’s as-applied challenge because he did not present 

such argument in his original Crim. P. 35(c) motion. See People v. 

Salinas, 55 P.3d 268, 270 (Colo. App. 2002).
12

¶ 25 For these reasons, we conclude that Houser is not entitled to a 

hearing on his void for vagueness claim based on the record and the 

plain language of the statute. Thus, we affirm the postconviction 

court’s summary denial of this claim. 

III. Houser’s Ineffective Assistance of Counsel Claims

¶ 26 We next address whether Houser is entitled to a hearing on his 

ineffective assistance of counsel claims. See Crim. P. 35(c)(3)(VIII) 

(requiring that we “shall not deny a postconviction claim of 

ineffective assistance of trial counsel on the ground that all or part 

of the claim could have been raised on direct appeal”). We conclude 

that Houser is entitled to a hearing on the merits of some, but not 

all, of his ineffective assistance of counsel claims. 

A. Applicable Law 

1. Ineffective Assistance of Counsel Claims

¶ 27 A criminal defendant is constitutionally entitled to the effective 

assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687 

(1984); Davis v. People, 871 P.2d 769, 772 (Colo. 1994). “The 

purpose of this constitutional guarantee is to ensure the accused a 

level of assistance calculated to produce a fair and just result in a 
13

criminal prosecution.” People v. Garcia, 815 P.2d 937, 940 (Colo. 

1991).

¶ 28 A defendant’s conviction may be reversed based on a claim of 

ineffectiveness of counsel, but only if the defendant satisfies both 

prongs of the test the United States Supreme Court adopted in 

Strickland. Davis, 871 P.2d at 772. Under Strickland, a defendant 

must demonstrate that (1) counsel’s performance was outside the 

wide range of professionally competent assistance and (2) the 

defendant was prejudiced by counsel’s substandard legal work. 

Strickland, 466 U.S. at 687. 

¶ 29 Prevailing on the first prong is complicated by the “wide range 

of professionally competent assistance” counsel can provide. Id. at

690. “Because of the difficulties inherent in making the 

evaluation,” we “indulge a strong presumption that counsel’s 

conduct falls within the wide range of reasonable professional 

assistance.” Id. at 689. 

¶ 30 Under the second prong of Strickland, “[a]n error by counsel, 

even if professionally unreasonable, does not warrant setting aside 

the judgment of a criminal proceeding if the error had no effect on 

the judgment.” Id. at 691. Rather, the “defendant must show that 
14

there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been 

different” to demonstrate prejudice. Id. at 694. “A reasonable 

probability is a probability sufficient to undermine confidence in the 

outcome.” Id.; see Hagos v. People, 2012 CO 63, ¶ 30, 288 P.3d 

116, 123 (holding that the standard of proof to demonstrate 

prejudice is that of a reasonable probability).

¶ 31 “It is the defendant’s burden to prove both Strickland prongs.” 

People v. Corson, 2016 CO 33, ¶ 34, 379 P.3d 288, 295; see Holland 

v. Jackson, 542 U.S. 649, 654 (2004) (holding that the defendant 

has the burden of proving whether counsel’s performance was 

deficient by a preponderance of the evidence); see also Hagos, ¶ 30, 

288 P.3d at 123.

¶ 32 The Colorado cases interpreting Strickland have not 

consistently articulated the defendant’s burden of proof to establish 

prejudice resulting from counsel’s allegedly substandard legal work. 

As then-Judge Gabriel explained, “[o]ur supreme court has issued 

arguably conflicting pronouncements as to the proper burden of 

proof for Strickland’s second prong.” People v. Washington, 2014 

COA 41, ¶ 23, 345 P.3d 950, 955; compare Hagos, ¶ 16, 288 P.3d at 
15

120 (applying a reasonable probability standard), and Garcia, 815 

P.2d at 941 (same), with People v. Naranjo, 840 P.2d 319, 325 (Colo. 

1992) (holding that the burden to prove prejudice is “by a 

preponderance of the evidence”). While some divisions of this court 

have followed Naranjo, see, e.g., People v. Garner, 2015 COA 174, 

¶ 17, 381 P.3d 320, 324; People v. McDowell, 219 P.3d 332, 339 

(Colo. App. 2009), we agree with the division in Washington that 

“reasonable probability” is the appropriate standard of proof under 

Strickland’s second prong. ¶ 23, 345 P.3d at 954-55.

2. Counsel’s Performance Is Not Rendered Deficient for Failing to 

Present Novel Legal Arguments

¶ 33 “[N]umerous state and federal courts have concluded that 

counsel’s failure to advance novel legal theories or arguments does 

not constitute ineffective performance.” Ledbetter v. Comm’r of 

Corr., 880 A.2d 160, 167 (Conn. 2005). Specifically, a lawyer does 

not perform deficiently by “failing to raise novel arguments that are 

unsupported by then-existing precedent.” United States v. Morris, 

917 F.3d 818, 823 (4th Cir. 2019); see Snider v. United States, 908 

F.3d 183, 192 (6th Cir. 2018) (“We have repeatedly held that 

counsel is not ineffective for failing to predict developments in the 
16

law, unless they were clearly foreshadowed by existing decisions.”); 

see also Shaw v. Wilson, 721 F.3d 908, 916-17 (7th Cir. 2013). 

“Nor does counsel fall below Strickland’s standard of reasonableness 

by failing to anticipate changes in the law, or to argue for an 

extension of precedent.” Morris, 917 F.3d at 823. Even if a “wholly 

novel claim” may have had merit in hindsight, counsel’s failure to 

raise such a claim does not render his performance constitutionally 

ineffective. Anderson v. United States, 393 F.3d 749, 754 (8th Cir. 

2005).

¶ 34 This does not mean that an attorney cannot be ineffective 

because he or she did not present an argument lacking decisive 

precedent. “Even where the law is unsettled, . . . counsel must 

raise a material objection or argument if ‘there is relevant authority 

strongly suggesting’ that it is warranted.” Morris, 917 F.3d at 824 

(quoting United States v. Carthorne, 878 F.3d 458, 466 (4th Cir. 

2017)). 

¶ 35 Further, an attorney’s “strategic choices made after thorough 

investigation of law and facts relevant to plausible options are 

virtually unchallengeable.” Strickland, 466 U.S. at 690. This is for 

good reason. “There are countless ways to provide effective 
17

assistance in any given case. Even the best criminal defense 

attorneys would not defend a particular client in the same way.” Id.

at 689. 

¶ 36 Strickland cautioned that “[i]t is all too tempting for a 

defendant to second-guess counsel’s assistance after conviction or 

adverse sentence, and it is all too easy for a court, examining 

counsel’s defense after it has proved unsuccessful, to conclude that 

a particular act or omission of counsel was unreasonable.” Id. The 

Court noted that “[i]ntensive scrutiny of counsel . . . could dampen 

the ardor and impair the independence of defense counsel, 

discourage the acceptance of assigned cases, and undermine the 

trust between attorney and client.” Id. at 690. Thus, “[c]ourts 

should strive to ensure that ineffectiveness claims not become so 

burdensome to defense counsel that the entire criminal justice 

system suffers as a result.” Id. at 697.

¶ 37 For this reason, an attorney may perform effectively by 

choosing “to maneuver within the existing law, declining to present 

untested or rejected legal theories.” State v. McNeill, 700 N.E.2d 

596, 607 (Ohio 1998); see Bailey v. State, 472 N.E.2d 1260, 1265 

(Ind. 1985) (holding that counsel is not ineffective if he or she fails 
18

to “change then-existing law”); see also Engle v. Isaac, 456 U.S. 

107, 134 (1982) (“[T]he Constitution guarantees criminal 

defendants only a fair trial and a competent attorney. It does not 

insure that defense counsel will recognize and raise every 

conceivable constitutional claim.”). 

¶ 38 The partial dissent asserts that we are making new bright line 

rule. But there is nothing novel about our holding. Our approach 

reflects the well-established principle that, to prevail on a claim of 

ineffective assistance of counsel, a defendant must show that his or 

her counsel’s legal work fell outside the “wide range of 

professionally competent assistance.” Strickland, 466 U.S. at 690. 

Indeed, no reported Colorado decision has held that an attorney 

was ineffective because he or she did not attempt to break new legal 

ground, and the partial dissent cites to no Colorado authority in 

support of its expansive view of ineffectiveness. 

¶ 39 The partial dissent asserts that

[i]f any of Houser’s constitutional claims that 

underlie his ineffective assistance of counsel 

claims have merit, he should be given an 

opportunity to convince a district court judge, 

based on evidence, including expert testimony, 

that the failure to raise those meritorious 
19

claims constituted deficient performance under 

the first prong of Strickland.

Infra ¶ 93. But under this reasoning, a defendant would be entitled 

to a hearing on any Crim. P. 35(c) claim for ineffective assistance 

merely by arguing that counsel failed to raise a constitutional 

argument with any potential merit. This would be true even where 

the claim rests on arguments that would have been directly contrary

to the law at the time of trial and where counsel raised a reasonable 

alternative argument. 

¶ 40 The partial dissent’s interpretation of ineffectiveness would 

also have significant repercussions for every attorney in this state, 

as it would lower the bar for proving professional negligence. See 

Rantz v. Kaufman, 109 P.3d 132, 139 (Colo. 2005) (explaining that 

the “inquiry undertaken” in cases involving ineffective assistance 

and cases involving legal malpractice “is identical and focuses on 

what ordinary members of the legal profession would have done at 

the time the action was taken”). If a criminal defense attorney can 

be deemed ineffective for not urging a court to adopt a new 

constitutional rule, then an attorney could be found professionally 

negligent for making the same judgment call. Finding that an 
20

attorney commits malpractice by not seeking this type of change in 

the law would flood the courts with new professional negligence 

lawsuits, as well as novel claims filed by attorneys practicing 

defensive lawyering.

3. Denials of Crim. P. 35(c) Motions Without a Hearing

¶ 41 A defendant is entitled to a hearing on the merits of a Crim. P. 

35 motion if he or she “assert[ed] facts that if true would provide a 

basis for relief.” White v. Denver Dist. Court, 766 P.2d 632, 635 

(Colo. 1988). A court, therefore, may only deny a Crim. P. 35(c) 

motion without a hearing when “the motion and the files and record 

of the case show to the satisfaction of the court that the defendant 

is not entitled to relief.” Crim. P. 35(c)(3)(IV); see People v. Thomas, 

867 P.2d 880, 890-91 (Colo. 1994). “Summary denial of a 

postconviction relief motion is also appropriate if the claims raise 

only an issue of law, or if the allegations, even if true, do not 

provide a basis for relief.” People v. Venzor, 121 P.3d 260, 262 

(Colo. App. 2005). 

¶ 42 Thus, “[t]he denial of a claim of ineffective assistance of 

counsel without a hearing is justified if, but only if, the existing 

record establishes that the defendant’s allegations, even if proven 
21

true, would fail to establish either constitutionally deficient 

performance or prejudice.” People v. Chavez-Torres, 2016 COA 

169M, ¶ 31, 410 P.3d 690, 696, aff’d, 2019 CO 59, 442 P.3d 843; 

see People v. Rodriguez, 914 P.2d 230, 255 (Colo. 1996).

¶ 43 “We review de novo a postconviction court’s denial of a Crim. 

P. 35(c) motion without a hearing.” People v. McGlaughlin, 2018 

COA 114, ¶ 25, 428 P.3d 691, 697.

B. The Failure to Raise Certain Novel Legal Arguments Did Not 

Render Houser’s Counsel Ineffective

¶ 44 Houser contends that his counsel was ineffective by failing to 

raise four arguments that were not established by precedent at the 

time: the unconstitutionality of section 18-7-407, the 

unconstitutionality of Houser’s sentence under SOLSA, section 

18-7-406(1) is void for vagueness, and section 18-7-406(1) violates 

equal protection. 

¶ 45 We disagree and affirm the postconviction court’s denial of 

these claims without a hearing because, as a matter of law, 

Houser’s counsel was not ineffective for failing to raise novel 

arguments. 
22

1. Failure to Challenge the Constitutionality of Section 18-7-407

¶ 46 Houser argues that his counsel was ineffective because he 

failed to challenge the constitutionality of section 18-7-407, which 

precludes a defendant from raising a mistake of age defense in 

cases involving offenses under the child prostitution statutes. We 

disagree. 

¶ 47 Houser does not cite, and, with one exception, we cannot find, 

any reported case involving a challenge to the constitutionality of 

section 18-7-407. See People v. Maloy, 2020 COA 71, ¶ 44, ___ P.3d 

___, ___ (rejecting challenge to the constitutionality of section 

18-7-407). 

¶ 48 Significantly, at the time of Houser’s trial, no Colorado case 

had yet clarified whether section 18-7-407 or section 18-1-503.5(1), 

the more general statute allowing for a reasonable mistake of age 

defense, applied to the offense of patronizing a prostituted child. 

The issue was not resolved until Houser’s direct appeal. See 

Houser I, ¶ 14, 337 P.3d at 1244 (concluding, “in a matter of first 

impression, that section 18-7-407 prevents a defendant from 

offering a reasonable belief in age defense to a charge of patronizing 

a prostituted child”) (emphasis added); see also Maloy, ¶ 40, ___ 
23

P.3d at ___ (citing to Houser I for the proposition that, under 

sections 18-1-503.5(1) and 18-7-407, the affirmative defense of 

reasonable mistake of age is not available to a defendant charged 

with patronizing a prostituted child).

¶ 49 At the pretrial hearing on this issue, Houser’s counsel argued 

that section 18-1-503.5(1) applied to the offense of patronizing a 

prostituted child and that Houser should therefore be allowed to 

argue at trial that he reasonably believed A.J. was an adult. In 

support of this argument, counsel cited to the legislative history of 

each statute and presented a number of other arguments 

supporting his position. Houser’s attorney did not challenge the 

constitutionality of section 18-7-407, however. The prosecution 

countered that section 18-7-407 applied based on rules of statutory 

construction because it was more specific than section 

18-1-503.5(1). 

¶ 50 The postconviction court, which had also presided over the 

hearing, said that, although it had ultimately concluded that 

section 18-7-407 was “better law,” the argument of Houser’s 

counsel had been “skillful and rational.” 
24

¶ 51 Houser urges us to conclude that counsel’s failure to challenge 

the constitutionality of section 18-7-407 rendered his performance 

ineffective. Regardless of the persuasiveness of Houser’s 

constitutional arguments, the issue before us is whether counsel’s 

choice of argument rendered his performance deficient. Anderson, 

393 F.3d at 754 (explaining that the question is not whether 

counsel’s decision to choose an argument was “intelligent or 

effective,” but whether the decision was an unreasonable one that 

only an incompetent attorney would make); see also Strickland, 466 

U.S. at 690 (“[S]trategic choices made after thorough investigation 

of law and facts relevant to plausible options are virtually 

unchallengeable . . . .”). 

¶ 52 We hold that, regardless of the facts Houser could present at a 

Crim. P. 35(c) hearing, he could not prove that his counsel’s 

performance was deficient on the grounds that the attorney did not 

mount a novel constitutional challenge to section 18-7-407 when 

counsel put forth a “skillful and rational” argument that the statute 

did not apply. 

¶ 53 In sum, Houser’s counsel was not ineffective for not 

challenging the constitutionality of section 18-7-407 and instead 
25

making the reasonable strategic choice to argue that the statute did 

not apply to Houser. If successful, the argument would have 

allowed Houser to raise the defense of reasonable mistake of age.

¶ 54 For these reasons, we affirm the postconviction court’s 

decision to deny Houser a hearing on his claim that his counsel was 

ineffective for failing to challenge the constitutionality of section 

18-7-407. 

2. Failure to Challenge the Constitutionality of Houser’s Sentence 

Under SOLSA

¶ 55 Houser contends that his counsel’s failure to challenge the 

constitutionality of SOLSA as applied to Houser rendered counsel’s 

performance deficient. We disagree. 

¶ 56 As Houser acknowledges, divisions of this court — including 

the divisions that decided the issue before his trial — have rejected 

every facial challenge to the constitutionality of SOLSA. See, e.g., 

People v. Knobee, 2020 COA 7, ¶ 63, ___ P.3d ___, ___; People v. 

Sabell, 2018 COA 85, ¶ 47, 452 P.3d 91, 100; People v. Relaford, 

2016 COA 99, ¶ 72, 409 P.3d 490, 501; People v. Torrez, 2013 COA 

37, ¶ 88, 316 P.3d 25, 40; People v. Collins, 250 P.3d 668, 679 

(Colo. App. 2010); People v. Villa, 240 P.3d 343, 359 (Colo. App. 
26

2009); People v. Firth, 205 P.3d 445, 452 (Colo. App. 2008). Until 

April 2020, divisions of this court had also rejected every as-applied 

challenge to the constitutionality of the statute. See Maloy, ¶ 35, 

___ P.3d at ___ (ruling in favor of the defendant’s as-applied equal 

protection challenge to a section of SOLSA for the first time in a 

reported case); see also Sabell, ¶ 45, 452 P.3d at 100 (rejecting an 

as-applied constitutional challenge to SOLSA because the division 

was not persuaded to depart from the numerous decisions of 

previous divisions of this court affirming the constitutionality of 

SOLSA); People v. Oglethorpe, 87 P.3d 129, 133 (Colo. App. 2003) 

(holding that SOLSA was not unconstitutional as applied to the 

defendant); cf. People in Interest of T.B., 2019 COA 89, ¶ 1, ___ P.3d 

___, ___ (holding that the automatic lifetime registration 

requirement contained in the Colorado Sex Offender Registration 

Act is unconstitutional as applied to juveniles) (cert. granted Feb. 3, 

2020).

¶ 57 Rather than raise an argument unsupported by Colorado 

precedent, Houser’s counsel asserted that Houser was not subject 

to SOLSA because he reasonably believed A.J. was an adult, asked 

the court to consider that A.J. had misled Houser about her age, 
27

noted that the legislature did not intend that SOLSA punish 

someone like Houser who reasonably believed he was patronizing 

an adult prostitute, and argued that the sex offender treatment 

required under SOLSA was unnecessary based on Houser’s 

psychological evaluations. 

¶ 58 Because the Colorado appellate courts had universally rejected 

constitutional challenges to SOLSA at the time of Houser’s trial, he 

cannot establish he was prejudiced by counsel’s failure to raise 

such a challenge. The record therefore establishes that Houser 

cannot make a successful ineffective assistance of counsel claim 

based on his counsel’s failure to attack the constitutionality of 

SOLSA. See Chavez-Torres, ¶ 31, 410 P.3d at 696. 

¶ 59 We therefore affirm the postconviction court’s denial of 

Houser’s request for a hearing on his claim that his counsel was 

ineffective for failing to challenge the constitutionality of SOLSA.

3. Failing to Argue that Section 18-7-406(1) Is Void for 

Vagueness

¶ 60 Houser contends that his counsel was ineffective for failing to 

argue that the offense of patronizing a prostituted child is void for 

vagueness. We disagree. 
28

¶ 61 As discussed in Part II.B above, we conclude, as a matter of 

first impression, that the offense of patronizing a prostituted child 

under section 18-7-406(1) is not unconstitutionally vague. 

Houser’s counsel, therefore, did not perform deficiently by failing to 

raise this novel argument. See Morris, 917 F.3d at 823. Moreover, 

because we conclude that section 18-7-406(1) is not 

unconstitutionally vague, Houser cannot demonstrate a reasonable 

probability that, but for his counsel’s failure to argue vagueness, 

“the result of the proceeding would have been different.” Strickland, 

466 U.S. at 694. 

¶ 62 Thus, we affirm the postconviction court’s denial of Houser’s 

request for a hearing on his claim that his counsel was ineffective 

for failing to attack section 18-7-406(1) as unconstitutionally vague. 

4. Failure to Argue that Houser’s Conviction Under Section

18-7-406(1) Violates Equal Protection 

¶ 63 Houser argues that his counsel was ineffective because he did 

not present an equal protection argument. Houser asserts that he 

was denied equal protection because, even though his conduct fell 

within the meaning of “soliciting for child prostitution” under 

section 18-7-402, C.R.S. 2019, he was charged under section 
29

18-7-406(1) for patronizing a prostituted child, which carries a 

harsher penalty. Houser alleges that his counsel “recognized the 

offer and agreement language in the ‘prostitution by a child’ 

definition was problematic. Yet, his counsel didn’t try to litigate the 

constitutionality of this language.” But the issue is not whether 

such an equal protection argument could have merit. It is whether 

counsel could be found ineffective for choosing not to present the 

argument. We disagree with Houser that his counsel’s decision 

rendered him ineffective.

¶ 64 The partial dissent asserts that Houser is nonetheless entitled 

to a hearing on his claim that his counsel was ineffective for not 

launching a constitutional attack on section 18-7-406(1), even 

though no such attack had succeeded in any reported decision at 

the time of Houser’s trial. The partial dissent relies on the division’s 

determination in Maloy that the defendant was denied equal 

protection because, as applied to the defendant’s conduct, 

patronizing a prostituted child proscribed the same conduct as 

pandering of a child and inducement of child prostitution, even 

though the latter offenses carry lighter sentences than the former 

offense. Id. (The division in Maloy also concluded that, based on 
30

the facts of the case, solicitation does not proscribe the same 

conduct as patronizing a prostituted child.) 

¶ 65 Had Maloy predated Houser’s trial and Houser’s counsel

nevertheless failed to raise an as-applied equal protection challenge 

to 18-7-406(1)(a), Houser’s ineffective assistance claim may well 

have warranted a hearing to determine whether Maloy sufficiently 

foreshadowed a change in the law that would have impacted the 

outcome of Houser’s case. But the division did not decide Maloy

until more than ten years after Houser’s trial. 

¶ 66 A defense attorney is not ineffective because he or she did not 

raise an untested constitutional challenge to a criminal charge that 

is not clearly foreshadowed by then-existing case law. See 

Anderson, 393 F.3d at 754; see also Snider, 908 F.3d at 192. 

¶ 67 Houser does not point us to any foreshadowing in Colorado 

case law that would have required his counsel to argue that section 

18-7-406(1) violates equal protection. Instead, Houser merely cites 

to cases holding that unrelated statutes violate equal protection. 

For example, Houser relies on People v. Marcy, 628 P.2d 69, 71-72 

(Colo. 1981), in which the Colorado Supreme Court held that two 

murder statutes were “not sufficiently distinguishable . . . to 
31

warrant the substantial differential in penalty authorized by the 

statutory scheme.” Houser therefore is not entitled to relief for 

ineffective assistance of counsel because his counsel did not 

present a novel equal protection argument not “clearly 

foreshadowed” under existing law. See Venzor, 121 P.3d at 262. 

¶ 68 Thus, we affirm the postconviction court’s denial without a

hearing of Houser’s ineffective assistance claim based on his 

counsel’s failure to present an equal protection argument. 

C. Houser Is Not Entitled to a Hearing on His Claim that His 

Counsel Failed to Raise a Valid Defense

¶ 69 Houser further contends that he is entitled to a hearing on his 

claim that his counsel was ineffective by offering a theory of defense 

that admitted Houser’s guilt without his consent. Houser argues 

that this tactic demonstrated that his counsel was ignorant of 

sections 18-7-406(1)(a) and 18-7-401(6). We disagree and conclude 

that his counsel’s theory of defense did not, as a matter of law, 

admit Houser’s guilt. See Venzor, 121 P.3d at 262 (“Summary 

denial of a postconviction relief motion is . . . appropriate if the 

claims raise only an issue of law . . . .”).
32

¶ 70 Houser’s counsel argued that, although Houser arranged for 

A.J. to visit his home, they did not have sex because A.J. refused to 

produce an ID after Houser demanded that she prove she was at 

least eighteen. According to this theory, Houser was prepared to 

pay A.J. for sex, but only if she first convinced him that she was at 

least eighteen. Defense counsel admitted that Houser agreed to 

“pay [A.J.] for her time,” but argued Houser did not pay her for sex. 

Instead, Houser’s counsel asserted that Houser paid A.J. because 

he knew “her pimp [was] in the car” and he feared for his safety if 

she walked out his door without cash in hand. 

¶ 71 At the time of Houser’s trial, few Colorado appellate decisions 

addressed the offense of patronizing a prostituted child. See People 

v. Madden, 111 P.3d 452, 457 (Colo. 2005); People v. Holland, 708 

P.2d 119, 119 n.2 (Colo. 1985). And only one of the cases —

Madden — analyzed section 18-7-406(1)(a). See Madden, 111 P.3d 

at 457. 

¶ 72 In Madden, the court reversed a defendant’s conviction for 

attempted patronizing of a prostituted child because “there was no 

evidence presented at trial that [the defendant] attempted to give 

anything of value to [the child] or to any other person in exchange 
33

for sex [with the child].” Id. at 460. The court held that 

“‘patronizing a prostituted child’ requires an exchange of something 

of value” for “sex with a child.” Id. at 459. 

¶ 73 While a division of this court later concluded in Houser I that a 

“person need not perform a sexual act to be guilty of patronizing a 

prostituted child,” the case law at the time of Houser’s trial 

permitted an argument that a defendant could not be found liable 

for patronizing a prostituted child if he did not perform one of the 

prohibited acts with her. Houser I, ¶ 69, 337 P.3d at 1253. 

Counsel’s defense, although unpersuasive to the jury, did not 

amount to a guilty plea under Madden. 

¶ 74 Thus, we deny Houser’s claim that he is entitled to a hearing 

on his claim that his counsel was ineffective for not raising a valid 

defense. See Crim. P. 35(c)(3)(IV); see also Thomas, 867 P.2d at 

890-91. 

D. Houser Is Entitled to a Hearing on the Merits of His Remaining 

Claims 

1. Failure to Challenge Out-of-Court Identification 

¶ 75 Houser argues that he is entitled to a hearing on his claim 

that his trial counsel was ineffective for failing to sufficiently 
34

challenge A.J.’s out-of-court identification of him and to file a 

motion to suppress the search warrant for his home premised on 

that identification. We agree. 

¶ 76 Houser alleges that, instead of conducting a photo lineup, 

Mike Ryan, a Denver Police Department detective, drove with A.J. to 

Houser’s residence, improperly showed her only a single photo, and 

asked, “[I]s this the guy?” The affidavit filed in support of the 

warrant used to search Houser’s home bolsters Houser’s challenge 

to the photo identification and search of his home. It states that 

Ryan “obtained a photo of [Houser], which he showed to [A.J.].” But 

it can also be interpreted to support the prosecution’s assertion 

that Ryan later told another officer, months after the search, that 

he “showed A.J. six photos, including [Houser’s] Colorado DMV 

photo,” one at a time. 

¶ 77 Houser’s first attorney filed a motion to suppress A.J.’s out-ofcourt identification as impermissibly suggestive, but later requested 

that the motion “be tabled for the time being until Ryan shows up 

to testify.” Houser’s second attorney withdrew the motion to 

suppress during a hearing on the issue and explained to the court 

that, after discussing the photo identification with the prosecutor, 
35

he was satisfied — based on the prosecutor’s reputation — there 

were no issues related to the lineup. 

¶ 78 Houser argues he was prejudiced because his counsel never 

called Ryan to testify whether he showed A.J. a single photo —

which may have been impermissibly suggestive and could have 

invalidated the warrant used to search his home — or six 

photographs, as the prosecution contended. 

¶ 79 Because this allegation, if true, could support a claim that his 

counsel’s conduct was deficient for failing to challenge a potentially 

improper out-of-court identification based upon a prosecutor’s 

reputation, Houser is entitled to a hearing on the merits of this 

claim. See White, 766 P.2d at 635. Thus, we remand this claim to 

the postconviction court for a hearing on the merits. 

2. Failure to Challenge the State’s Alleged Outrageous Conduct 

¶ 80 Houser contends that he is entitled to a hearing on his claim 

that his counsel was ineffective for failing to challenge the 

prosecution’s alleged “outrageous conduct.” Houser argues that the 

prosecution “committed outrageous conduct by pretending to be the 

victim in the case, intruding on Houser’s attorney[-]client 

relationship . . . and interfering with Houser’s right to counsel.” He 
36

alleges, and the record reflects, that the lead police officer in the 

case, Dea Aragon, investigated Charles Leidner, Houser’s first 

attorney, for alleged witness intimidation of A.J. 

¶ 81 The People contend that Aragon initiated the investigation 

after A.J.’s mother contacted the Douglas County Sheriff’s Office to 

report a threatening call from Leidner and his investigator, in which 

the men told her that, if A.J. testified, they would “drag [her] over 

the coals, embarrass her, and eat her alive.” The men also allegedly 

threatened to charge A.J. and her mother with federal tax evasion. 

¶ 82 Following Aragon’s investigation, a special prosecutor filed a 

motion to disqualify Leidner from further representation of Houser. 

Houser, then represented by conflict-free counsel, requested that 

Leidner remain his attorney. Although the court denied the 

prosecutor’s motion to disqualify Leidner, Leidner later moved to 

withdraw as Houser’s counsel. The trial court granted the motion 

and Scott Reisch succeeded Leidner as Houser’s lawyer. 

¶ 83 Houser argues he was prejudiced because Reisch failed to 

argue that the prosecution’s conduct in allegedly pressuring Leidner 

to withdraw from the case was outrageous. Houser asserts that, 

“[h]ad Reisch successfully litigated this claim, it could have resulted 
37

in the dismissal of [the] charge[] against Houser” because the 

remedy for a prosecutor’s outrageous conduct is dismissal of the 

charges. See United States v. Russell, 411 U.S. 423, 431 (1973). 

The postconviction court denied Houser’s claim because it 

concluded that the prosecution’s conduct was not outrageous. 

¶ 84 The proper question, however, is whether Houser’s allegation, 

if true, would provide a basis for an ineffective assistance claim. We 

conclude it would and, therefore, remand the claim to the 

postconviction court for a hearing on the merits. 

IV. Conclusion

¶ 85 The postconviction court’s denial of Houser’s Crim. P. 35(c) 

motion is affirmed except as to Houser’s right to a hearing on his 

claims that his counsel was ineffective for (a) not challenging A.J.’s 

out-of-court identification of Houser and the search warrant resting 

on such identification and (b) not challenging the prosecution’s 

alleged outrageous conduct. The case is remanded to the 

postconviction court for a hearing on those claims.

JUDGE FOX concurs.

JUDGE BERGER concurs in part and dissents in part. 
38

JUDGE BERGER, concurring in part and dissenting in part.

¶ 86 This is the majority’s central holding: “We hold that an 

attorney cannot be deemed ineffective solely because he or she did 

not take positions unsupported or not ‘clearly foreshadowed’ by 

then-existing law.” Supra ¶ 2. This new bright line rule is not 

consistent with Crim. P. 35(c). Unless reversed by the supreme 

court, this new rule will have long-lasting consequences that are at 

odds with the language of Crim. P. 35(c), the beneficent purposes 

underlying that rule, and the bedrock constitutional guarantee of 

reasonably effective assistance of counsel. 

I. Postconviction Claims

¶ 87 In his postconviction motion and on this appeal, Houser 

claims that his counsel was ineffective for failing to raise four 

constitutional arguments: (1) his conviction violated his equal 

protection rights; (2) his conviction should be vacated because the 

patronizing a prostituted child statute is unconstitutionally vague; 

(3) the Colorado Sex Offender Lifetime Supervision Act of 1998 

(SOLSA) and section 18-7-407, C.R.S. 2019, as applied to him, 

violated his substantive due process rights; and (4) his sentence 

under SOLSA violated his rights under the Eighth Amendment and 
39

article II, section 20 of the Colorado Constitution.1 Although the 

majority grants limited relief to Houser and remands for an 

evidentiary hearing on certain other ineffective assistance claims, it 

rejects, without a hearing and as a matter of law, every one of the 

claims described above. 

¶ 88 If any one of the constitutional claims underpinning his 

ineffective assistance of counsel claims fails, the related ineffective 

assistance claim necessarily fails as well. In that event, it would be 

impossible to satisfy the prejudice requirement under Strickland v. 

Washington, 466 U.S. 668 (1984). 

¶ 89 But if any of Houser’s underlying constitutional claims are 

meritorious, then there is a reasonable probability that, but for 

counsel’s failure to raise them, the outcome of the trial would have 

been different. Strickland, 466 U.S. at 694-95. Thus, if any of 

Houser’s underlying constitutional claims would have succeeded, 

he must be given the opportunity, at an evidentiary hearing, to 

 1 Houser also advances other claims, including direct constitutional 

claims. I agree with the majority that all but one of the direct 

constitutional claims are successive because they could have been 

brought on direct appeal. Crim. P. 35(c)(3)(VII). I also agree with 

the majority’s disposition of those claims not addressed in this 

dissent. 
40

prove that his counsel’s performance was deficient. Instead, the 

majority’s newly created rule bars all of these claims. 

II. The Majority’s New Rule Regarding Constitutional Claims is 

Inconsistent with Existing Law, Unworkable, and Unwarranted

¶ 90 The majority’s new rule cuts directly against the express 

language of Crim. P. 35(c)(2)(I), which states that “every person 

convicted of a crime is entitled as a matter of right to make 

application for postconviction review upon the grounds . . . [t]hat 

the conviction was obtained or sentence imposed in violation of the 

Constitution or laws of the United States or the constitution or laws 

of this state.” 

¶ 91 Postconviction remedies are designed “to prevent 

constitutional injustice.” Edwards v. People, 129 P.3d 977, 982 

(Colo. 2006) (quoting People v. Rodriguez, 914 P.2d 230, 252 (Colo. 

1996)). A rule that would bar consideration of the merits of 

Houser’s ineffective assistance claims is inconsistent with the 

broad, remedial purposes of Crim. P. 35(c). 

¶ 92 It is further inconsistent with the Sixth Amendment’s 

guarantee to criminal defendants of reasonably effective assistance 

of counsel. U.S. Const. amend. VI. A defendant is not entitled to 
41

the best criminal lawyer in a given jurisdiction; a defendant is 

entitled to the “reasonably effective assistance” of counsel. 

Strickland, 466 U.S. at 687. From the established proposition that 

a defendant is entitled only to reasonably effective counsel, the 

majority reasons that in every case a lawyer’s failure to raise claims 

that have not been accepted or “clearly foreshadowed” in that 

jurisdiction (or in a controlling jurisdiction) can never constitute 

ineffective assistance. While the majority’s insistence on not raising 

the constitutionally required level of performance may help courts 

address frivolous claims more efficiently, the cure is worse than the 

disease. 

¶ 93 First, and contrary to the majority opinion, it is entirely 

conceivable that the failure to raise a meritorious constitutional 

claim could be objectively unreasonable, even if such claim had not 

been previously road-mapped for counsel in a controlling, published 

decision. The determination of whether counsel’s failure to raise 

such a claim was reasonable “present[s] mixed questions of law and 

fact.” Dunlap v. People, 173 P.3d 1054, 1063 (Colo. 2007). And the 

Colorado Supreme Court has recognized that appellate courts will 

rarely be in the position to decide such inherently factual questions. 
42

Ardolino v. People, 69 P.3d 73, 77 (Colo. 2003). While sometimes 

the trial record will clearly demonstrate lack of prejudice, “[u]nless 

the issue was expressly litigated . . . , it is far less likely that a trial 

record will demonstrate that potentially prejudicial acts or 

omissions of counsel were not only strategic choices but were ones 

that were reasonable in light of the law and facts.” Id. Thus, we 

cannot reject such inherently factual claims as a matter of law. 

¶ 94 Second, an allegation of ineffective assistance premised on 

counsel’s failure to raise a constitutional attack on the conviction 

does not without more (actually, much more) establish ineffective 

assistance. The majority states that anything less than its 

categorical prohibition would result in a situation in which “a 

defendant would be entitled to a hearing on any Crim. P. 35(c) claim 

for ineffective assistance merely by arguing that counsel failed to 

raise a constitutional argument with any potential merit.” Supra 

¶ 34. But that is not the case. 

¶ 95 In order to be entitled to a hearing, the defendant must first 

establish that the underlying constitutional claim is meritorious 

and that, but for counsel’s failure to raise it, the outcome of the 

proceeding would have been different. Strickland, 466 U.S. at 
43

694-95. If a controlling court such as the United States Supreme 

Court or the Colorado Supreme Court has not accepted the 

constitutional theory, the task is even more difficult, and in the vast 

majority of cases, the claim will fail. But the fact that the burden is 

daunting, and that most such challenges will fail for any number of 

reasons, is not a warrant for creating, as the majority has done, a 

rule that prohibits, as a matter of law, all such challenges. 

¶ 96 Once the defendant has established the merits of the 

underlying constitutional claim, then the defendant must meet the 

high bar of establishing that counsel was deficient in failing to raise 

that claim. Id. at 687-91. As discussed above, this determination 

is properly the subject of a hearing. 

¶ 97 The majority contends that this approach would “lower the bar 

for proving professional negligence.” Supra ¶ 36. Apart from the 

fact that this is simply irrelevant to the question of whether Houser 

received effective assistance of counsel, it is untrue. Even when the 

defendant has established the merits of the underlying claim and a 

reasonable probability that the failure to raise the claim affected the 

outcome of the proceedings, the defendant must still establish, as 
44

always, that the failure to raise such claim “fell below an objective 

standard of reasonableness.” Strickland, 466 U.S. at 688. 

¶ 98 To reach its overbroad holding, the majority relies on noncontrolling cases from other jurisdictions purportedly holding that a 

“lawyer does not perform deficiently by ‘failing to raise novel 

arguments that are unsupported by then-existing precedent.’” 

Supra ¶ 30 (quoting United States v. Morris, 917 F.3d 818, 823 (4th 

Cir. 2019)). But unlike the majority, many of these jurisdictions 

have also recognized the limits of such a broad rule and the 

nuances associated with these ineffective assistance challenges. 

For example, in Morris, the court stated that “counsel sometimes 

will be required to make arguments ‘even in the absence of decisive 

precedent.’” Morris, 917 F.3d at 823-24 (quoting United States v. 

Carthorne, 878 F.3d 458, 465-66 (4th Cir. 2017)). Indeed, unlike 

the majority, the Seventh Circuit has recognized that a lack of 

precedent supporting a defendant’s ineffective assistance claim is 

“only half the picture,” and that a “dearth” of precedent should have 

indicated to defense counsel that the facts and circumstances of 

that case were “unusual” and distinguishable from existing case 
45

law. Shaw v. Wilson, 721 F.3d 908, 916-17 (7th Cir. 2013)

(emphasis added).

¶ 99 If any of Houser’s constitutional claims that underlie his 

ineffective assistance of counsel claims have merit, he should be 

given an opportunity to convince a district court judge, based on 

evidence, including expert testimony, that the failure to raise those 

meritorious claims constituted deficient performance under the first 

prong of Strickland.

¶ 100 I now proceed to analyze the constitutional claims that Houser 

claims should have been advanced on his behalf but were not.2

III. Equal Protection

¶ 101 Houser claims that he was deprived of equal protection of the 

law when he was punished for violating the statute that prohibits 

patronizing a child prostitute when that same conduct is also 

criminalized by another statute that carries a much lower penalty. 

 2 Because the constitutional questions that are determinative of 

whether Houser can prove prejudice under the second prong of 

Strickland v. Washington, 466 U.S. 668 (1984), are questions of law, 

there is no reason to remand to the postconviction court to resolve 

them. This court stands in as good a position as the postconviction 

court in that respect.
46

¶ 102 This is not a novel constitutional claim. The Colorado 

Supreme Court has repeatedly held that “Colorado’s guarantee of 

equal protection is violated where two criminal statutes proscribe 

identical conduct, yet one punishes that conduct more harshly.” 

Dean v. People, 2016 CO 14, ¶ 14. 

¶ 103 More specifically, Houser argues that his conviction violates 

his equal protection rights under the Colorado Constitution because 

the patronizing statute criminalizes the same conduct as the 

soliciting a child prostitute statute, while imposing a harsher 

penalty.3 

¶ 104 The statutes, however, differ in a key respect. Patronizing 

requires that the child prostitute actually perform, offer, or agree to 

perform a sex act in exchange for money. § 18-7-406(1)(a), C.R.S. 

2019; see § 18-7-401(6), (7), C.R.S. 2019. Soliciting does not. § 18-

 3 Unlike the United States Constitution, the Colorado Constitution 

contains no express equal protection clause, but the Colorado 

Supreme Court has construed the due process clause of the 

Colorado Constitution to imply a similar guarantee. Dean v. People, 

2016 CO 14, ¶ 11. Colorado courts have construed the equal 

protection guarantees under the Colorado Constitution more 

broadly than those available under the United States Constitution. 

People v. Stewart, 55 P.3d 107, 114 (Colo. 2002) (citing United 

States v. Batchelder, 442 U.S. 114 (1979)).
47

7-402(1)(a), C.R.S. 2019. Thus, a defendant is punished more 

severely under the patronizing statute for successfully inducing the 

child to respond to an offer for money in exchange for sex.4 “The 

general assembly may establish more severe penalties for acts that 

it believes have graver consequences, even if the differences are only 

a matter of degree.” People v. Stewart, 55 P.3d 107, 114-15 (Colo. 

2002). Accordingly, I would reject this specific claim.

¶ 105 But, as analyzed in the recent case of People v. Maloy, 2020 

COA 71, other child prostitution statutes prohibit the same conduct 

engaged in by Houser but impose non-SOLSA penalties. A person 

patronizes a child prostitute in violation of section 18-7-406(1)(a) if 

such person “[e]ngages in an act which is prostitution of a child,” as 

defined in section 18-7-401(7), or an act that is prostitution “by a 

child,” as defined in section 18-7-401(6). In Maloy, the defendant 

was convicted of patronizing a child prostitute under the 

“prostitution of a child” definition for inducing a child to perform 

certain sexual acts (with third persons, not the defendant), or 

 4 “[A]ctual performance of a sexual act is not necessary; a mere offer 

or agreement to perform is sufficient, provided money has been 

promised.” People v. Houser, 2013 COA 11, ¶ 84.
48

inducing her to allow others to perform such acts, by coercion or 

threat or intimidation or in exchange for money or other thing of 

value. Id. at ¶ 21 (citing § 18-7-401(7)). The division concluded 

that the conviction violated equal protection principles under the 

Colorado Constitution because section 18-7-403(1)(a), C.R.S. 2019 

(pandering of a child), and section 18-7-405.5, C.R.S. 2019 

(inducement of child prostitution), as applied to the defendant, 

criminalize the same conduct but do not require an indeterminate 

life sentence under SOLSA. Id. at ¶ 21. 

¶ 106 Houser was convicted of patronizing under the “prostitution by 

a child” subsection, but this does not change the result of the equal 

protection analysis. 

“Prostitution by a child” means either a child 

performing or offering or agreeing to perform 

any act of sexual intercourse, fellatio, 

cunnilingus, masturbation, or anal intercourse 

with any person not the child’s spouse in 

exchange for money or other thing of value or 

any person performing or offering or agreeing 

to perform any act of sexual intercourse,

fellatio, cunnilingus, masturbation, or anal 

intercourse with any child not the person’s 

spouse in exchange for money or other thing of 

value.

§ 18-7-401(6).
49

¶ 107 This language is, admittedly, confusing. How can someone 

other than a child prostitute engage in an act that is “prostitution 

by a child?” As I understand it, section 18-7-406(1)(a) and section 

18-7-401(6) together prohibit any action that results in an act of 

prostitution by a child. In this case, the jury found that Houser 

engaged in some act that resulted in a child offering or agreeing to 

perform a sex act in exchange for money.5 Like in Maloy, this 

conduct could also form the basis for non-SOLSA charges under the 

pandering and inducement statutes. 

¶ 108 The pandering statute prohibits someone, “for money or other 

thing of value,” from “[i]nducing a child by menacing or criminal 

intimidation to commit prostitution.”6 § 18-7-403(1)(a). Admittedly, 

Houser did not act “for money or other thing of value.” Nor did he 

realize an act of child prostitution through “menacing or 

intimidation.” But, for the reasons described in Maloy, these 

distinctions are meaningless for purposes of the equal protection 

 5 On this record, we cannot know whether the jury also concluded 

that Houser had sex with A.J.

6 Pandering, under section 18-7-403(1)(a), C.R.S. 2019, is a class 2 

felony, but it is not an offense subject to punishment under the 

Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA). 

§§ 18-1.3-1003(5)(a), -1004(1)(a), C.R.S. 2019.
50

analysis. Maloy, ¶¶ 27-29. Houser should not be subjected to 

greater punishment when his conviction required proof of fewer 

elements and his conduct was less blameworthy than that of 

someone convicted of pandering. Id. at ¶¶ 28-29.

¶ 109 A person commits inducement of child prostitution if such 

person, “by word or action, other than [by menacing or criminal 

intimidation], induces a child to engage in an act which is 

prostitution by a child.” § 18-7-405.5. As discussed above, that is 

exactly the conduct Houser was convicted of here. 

¶ 110 Accordingly, and consistent with the analysis in Maloy,

Houser’s conviction and sentence for patronizing a child prostitute 

violated his right to equal protection of the law. If, but only if, 

Houser can establish that his counsel’s performance was deficient, 

he is entitled to relief. 

IV. Substantive Due Process

¶ 111 SOLSA and section 18-7-407, as applied to Houser, violate his 

substantive due process rights. 

¶ 112 This, again, is not a novel claim. Indeed, variations of this 

argument are raised in almost every appeal to this court in which a 

SOLSA sentence was imposed. While other divisions of this court 
51

have rejected variations of this argument, they have not addressed 

the facts and circumstances presented here. 

¶ 113 Various divisions of this court have rejected facial substantive 

due process challenges to SOLSA.7 However, many did so without 

independent analysis, relying only on the reasoning of earlier 

divisions. People v. Knobee, 2020 COA 7, ¶ 63; People v. Sabell, 

2018 COA 85; People v. Relaford, 2016 COA 99, ¶ 72; People v. 

Torrez, 2013 COA 37, ¶ 88; People v. Collins, 250 P.3d 668, 679 

(Colo. App. 2010); People v. Villa, 240 P.3d 343, 359 (Colo. App. 

2009); People v. Firth, 205 P.3d 445, 452 (Colo. App. 2008). The 

lead cases, People v. Oglethorpe, 87 P.3d 129, 133 (Colo. App. 

2003), and People v. Strean, 74 P.3d 387, 393 (Colo. App. 2002), 

addressed only facial challenges.8 The Colorado Supreme Court 

has never weighed in on these questions. Accordingly, Houser’s 

counsel could have raised the narrow, as-applied challenge that 

 7 Some of these cases, e.g., People v. Sabell, 2018 COA 85, purport 

to address an as-applied challenge to SOLSA, but they do not 

engage in any as-applied analysis, and instead simply rely on the 

decisions of earlier divisions to reject the claim. 

8 People v. Oglethorpe, 87 P.3d 129, 133 (Colo. App. 2003), 

addresses as-applied challenges to SOLSA, but not an as-applied 

substantive due process challenge. 
52

Houser now raises on appeal without departing from the broader 

holdings in Oglethorpe and Strean. 

¶ 114 “[T]he touchstone of due process is protection of the individual 

against arbitrary action of government,” County of Sacramento v. 

Lewis, 523 U.S. 833, 845 (1998) (citation omitted), and “sanctions 

which are downright irrational,” Hudson v. United States, 522 U.S. 

93, 103 (1997). Substantive due process prohibits the government 

from engaging in conduct that shocks the conscience or interferes 

with rights implicit in the concept of ordered liberty. People v. 

Garlotte, 958 P.2d 469, 474 (Colo. App. 1997). When no 

fundamental right is implicated, substantive due process requires 

that legislation bear a rational relationship to a legitimate 

governmental interest. People v. Zinn, 843 P.2d 1351, 1353 (Colo. 

1993). 

¶ 115 Under SOLSA and section 18-7-407, which prohibited Houser 

from raising the defense that he believed A.J. was of age at trial, 

Houser was convicted of the felony of patronizing a child prostitute 

and sentenced to an indeterminate life sentence without any proof 

that he had intended to patronize a child prostitute. If he had only 

been found guilty of patronizing an adult prostitute, he would have 
53

been convicted of less than a misdemeanor — a class 1 petty 

offense. § 18-7-205, C.R.S. 2006. Thus, section 18-7-407 imposed 

strict liability for an element of the offense that transformed 

Houser’s crime from a petty offense to a felony bearing an 

indeterminate life sentence. 

¶ 116 In my view, imposing an indeterminate life sentence without 

any proof that Houser actually intended to commit the element of 

the crime requiring the indeterminate life sentence both shocks the 

conscience and offends notions of ordered liberty.9 

¶ 117 Moreover, under the facts of this case, the relationship 

between Houser’s conduct that was proved at trial and the 

indeterminate life sentence exceeds the bounds of rationality and 

thus the protections of the Due Process Clause. SOLSA’s 

indeterminate sentencing requirement is based on the presumption 

 9 Questions regarding the constitutionality of strict liability criminal 

statutes that impose substantial penalties are complex, and many 

related questions remain unresolved by both the United States 

Supreme Court and the Colorado Supreme Court. See People v. 

Manzo, 144 P.3d 551, 554-59 (Colo. 2006) (recognizing that public 

welfare offenses are “a constitutionally permissible type of strict 

liability offense”); Alan C. Michaels, Constitutional Innocence, 112 

Harv. L. Rev. 828, 834 (1999). But here, the issue is quite narrow 

and does not require an extensive analysis of the limits of the 

General Assembly’s power to define strict liability crimes. 
54

that the “majority” of sex offenders, if untreated, are likely to 

reoffend. § 18-1.3-1001, C.R.S. 2019. But in this case, there has 

never been an adjudication that Houser intended to patronize a 

child prostitute. Nevertheless, SOLSA presumes that he is likely to 

again act as a sex offender if untreated and requires an 

indeterminate life sentence or, in the discretion of the district court, 

indeterminate probation. Without proof of intent, there is no 

rational relationship between the facts proved at trial and the 

sentence required by SOLSA. 

¶ 118 Irrespective of whether the Due Process Clause limits a state’s 

power to define a strict liability defense that imposes a life sentence, 

here SOLSA and section 18-7-407 create the perverse and patently 

irrational result by which a defendant cannot defend himself at trial 

by arguing that he never intended to commit the offense, but then 

can only get out of prison and off parole if he admits to that same 

offense.10 The Due Process Clause demands more than such a 

Kafkaesque result. 

 10 This is materially different from the ordinary SOLSA situation in 

which a defendant is convicted of an offense that prescribes mens 

rea components while the defendant maintains his innocence. 
55

V. Grossly Disproportionate Punishment 

¶ 119 Houser argues that his counsel was ineffective at sentencing 

because his counsel failed to argue that an indeterminate sentence 

was “not proportionate to his actual criminal conduct” in violation 

of the Eighth Amendment. The effective life sentence imposed on 

Houser raises obvious proportionality concerns. The majority does 

not specifically refer to this claim but presumably rejects it based 

on its newly formulated rule. 

¶ 120 While I agree with Houser that his sentence creates the 

inference of gross disproportionality, I cannot, on this record, 

conclude that his sentence violates the Eighth Amendment. That 

determination requires evidence to be presented to the 

postconviction court. 

¶ 121 The legislature’s authority to prescribe punishment “is limited 

by the principle of proportionality that is embedded in the 

constitutional prohibition against the infliction of cruel and 

unusual punishment.” Wells-Yates v. People, 2019 CO 90M, ¶ 1. 

The Eighth Amendment prohibits “not only barbaric punishments, 

 

Here, no court has ever adjudicated whether Houser ever had any 

intent to patronize a child prostitute. 
56

but also sentences that are disproportionate to the crime 

committed.”11 Id. at ¶ 5 (quoting Solem v. Helm, 463 U.S. 277, 284 

(1983)). “Simply put . . . the punishment should fit the crime.” Id. 

at ¶ 1. 

¶ 122 In analyzing whether the punishment fits the crime, courts 

must first weigh the gravity or seriousness of the offense and the 

harshness of the penalty and determine whether this comparison 

leads to an inference of gross disproportionality (abbreviated 

proportionality review). Id. at ¶¶ 11-15. If it does, then courts must 

consider the sentences for other crimes in the same jurisdiction and 

sentences for the same crime in other jurisdictions (extended 

proportionality review). Id. at ¶¶ 15-17. 

A. The Gravity or Seriousness of the Offense

¶ 123 To weigh the gravity or seriousness of the offense, courts must 

consider “the harm caused or threatened to the victim or society,” 

as well as the “culpability of the offender.” Id. at ¶ 12 (quoting 

Solem, 463 U.S. at 292).12 Without a doubt, patronizing a child 

 11 Article II, section 20 of the Colorado Constitution is identical to 

the Eighth Amendment. 

12 Unlike some crimes, patronizing a child prostitute is not per se 

grave or serious. Wells-Yates v. People, 2019 CO 90M, ¶ 65. 
57

prostitute threatens serious harm to both the victim and society. 

The defendant’s moral or criminal culpability, however, depends 

largely on the defendant’s state of mind. See Solem, 463 U.S. at 

293; Wells-Yates, ¶ 12. 

¶ 124 In this case, we know only that Houser intended to patronize a

prostitute. Because section 18-7-407 precluded Houser from 

raising the defense that he did not know A.J. was underage, the 

jury did not reach the question of whether Houser knew A.J. was 

underage, and we cannot reach that conclusion. While this 

conduct is illegal, it is only a petty offense, whereas patronizing a 

child prostitute is a class 3 felony punishable by an indeterminate 

sentence in prison. 

B. The Harshness of the Penalty

¶ 125 Houser’s indeterminate life sentence is one of the harshest 

sentences available under Colorado’s criminal code because it is, in 

effect, a life sentence. While we must consider Houser’s parole 

eligibility in weighing the severity of the sentence, Wells-Yates, ¶ 14, 

we must also acknowledge the sentence’s upper limit and the 

realities of a SOLSA sentence. 
58

¶ 126 In the equal protection context, courts “weigh[] the relative 

harshness of a penalty by looking principally to the overall potential 

term of imprisonment, not the timing of parole eligibility.” Dean, 

¶ 28. I see no reason not to do so here, and the upper limit is 

incarceration for the rest of Houser’s natural life. 

¶ 127 Furthermore, under SOLSA, a sex offender may not be 

released on parole unless the parole board determines that the 

offender “has successfully progressed in treatment.” § 18-1.3-

1006(1)(a), C.R.S. 2019. If Houser continues to maintain, as he has 

since he was charged, that he intended only to patronize an adult 

prostitute — a claim that has never been adjudicated by any court 

— and has no sexual interest in children, it is difficult to see how he 

could ever successfully progress in treatment and thus be released 

from prison. 

¶ 128 Weighing these factors, I conclude that sentencing Houser to 

an indeterminate life sentence without establishing that he 

intended to patronize a child prostitute leads to an inference of 

gross disproportionality between the gravity or seriousness of the 

crime and the harshness of the penalty. 
59

¶ 129 On this record, however, I cannot complete the second step of 

the analysis mandated by Wells-Yates. “In the absence of a need for 

. . . a detailed comparison of sentences imposed for . . . crimes in 

this or other jurisdictions, an appellate court is as well positioned 

as a trial court to conduct a proportionality review.” People v. 

Gaskins, 825 P.2d 30, 37-38 (Colo. 1992), abrogated on other 

grounds by Wells-Yates, 2019 CO 90M. Under Wells-Yates, ¶ 17, 

the determination of whether Houser’s sentence constitutes 

unconstitutionally excessive punishment requires an analysis of the 

sentences for other crimes in the same jurisdiction and sentences 

for the same crime in other jurisdictions — facts not in the record 

before us. 

VI. Conclusion

¶ 130 For these reasons, I would remand to the postconviction court 

for a determination of whether Houser’s counsel was deficient for 

failing to raise equal protection and substantive due process 

challenges to his conviction and sentence. If the postconviction 

court determined based on evidence presented at a hearing that 

counsel provided ineffective assistance in failing to raise these 

claims, Houser would be constitutionally entitled to relief. 
60

¶ 131 On the Eighth Amendment claim, I would remand to the 

postconviction court to conduct an extended proportionality review. 

If the postconviction court then concluded that the sentence was 

unconstitutionally disproportionate, it would be required to hold a 

hearing to determine whether Houser’s counsel was deficient for 

failing to raise an Eighth Amendment claim.

¶ 132 I respectfully dissent from the majority’s contrary disposition.