IN RE: The PEOPLE of the State of Colorado (2026)

¶1 In this original proceeding, defendant Keevin Bell, II, asks us to clarify whether a postconviction court has the authority to order duplicate discovery. Bell's postconviction counsel — a different attorney than Bell's trial and appellate counsel — sought from the prosecution a copy of reams of missing pretrial discovery in Bell's case. The prosecution directed Bell's postconviction counsel to request it under the Colorado Criminal Justice Records Act (“CCJRA”), §§ 24-72-301 to -309, C.R.S. (2025). Instead, postconviction counsel moved the district court for an order compelling disclosure, which the court denied based on its belief that it lacked the authority to do otherwise.

¶2 We conclude that if an indigent defendant has shown that he may be entitled to postconviction relief based on specific facts likely mentioned in pretrial discovery, which is unavailable to postconviction counsel, and which would help the defendant substantiate his allegations, the postconviction court should order the prosecution to provide a free copy of the requested duplicate discovery to the defendant.

I. Facts and Procedural History

¶3 A jury convicted Bell of first degree murder, among other offenses, and the court sentenced him to life in prison without the possibility of parole. Bell appealed, and a division of the court of appeals affirmed his convictions and sentence. People v. Bell, No. 19CA767, ¶ 1, 2022 WL 22926515 (Colo.App. June 2, 2022).

¶4 About two years later, Bell moved, pro se, for postconviction relief under Crim. P. 35(c) and requested the appointment of counsel. The district court appointed the Public Defender's Office, but due to a conflict of interest, alternate defense counsel (“ADC”) entered an appearance instead.

¶5 ADC sought a copy of the discovery from Bell's trial counsel but ultimately received only about half of it. (ADC estimates she is missing about thirty-three out of sixty-six discovery packets. “Discovery” in this context encompasses, for example, a broad range of police reports, witness statements, photos, and forensic test results. See, e.g., Crim. P. 16(I)(a)(1). It is the basic fund of information on which charges are based and strategic decisions are made.) ADC requested a copy of the missing packets from the prosecution and was told she needed to submit a request through the CCJRA and pay the associated costs and fees.

¶6 ADC then moved the court to compel the prosecution to disclose the requested materials. The court denied the motion. Relying on our holdings in People v. Silva-Jaquez, 2025 CO 11, 564 P.3d 650, and People v. Owens, 2014 CO 58M, 330 P.3d 1027, the district court concluded:

It is only death penalty proceedings, in which defense seeks disclosure from the prosecution, that implicate the due process clause and permit a court to rely on this constitutional provision to compel discovery of constitutionally material information favorable to defendant. Absent some rule, statute, or constitutional provision, a court does not have “inherent authority” to order discovery in postconviction proceedings.

(Citation omitted.) The court then concluded that Silva-Jaquez “leaves no room ․ to be able to find that [Bell] ․ has a constitutional right to postconviction discovery.”

¶7 Bell petitioned this court for an order to show cause under C.A.R. 21, which we granted.¹

II. Analysis

¶8 We begin by explaining our jurisdiction to hear this case and the applicable standard of review. We then discuss the statutes and rules that govern pretrial discovery and postconviction review in Colorado, and we consider whether those sources or any constitutional rights give defendants a right to duplicate discovery in postconviction proceedings. Finally, we consider and reject the prosecution's argument that postconviction counsel must resort to the CCJRA to obtain a copy of pretrial discovery.

A. Original Jurisdiction

¶9 Relief under C.A.R. 21 “is extraordinary in nature and is a matter wholly within” our discretion. C.A.R. 21(a)(2). “Such relief will be granted only when no other adequate remedy is available,” id., and, for example, when the “ ‘petition raises “issues of significant public importance that we have not yet considered,” ’ ” Silva-Jaquez, ¶ 11, 564 P.3d at 653 (quoting People v. Kilgore, 2020 CO 6, ¶ 8, 455 P.3d 746, 748).

¶10 We choose to exercise our discretion here because the issue presents a matter of statewide concern: Procedures and standards for postconviction discovery vary dramatically from one judicial district to the next. See id. at ¶ 16, 564 P.3d at 653. By weighing in here, we advance the public's interest in the uniform administration of justice. See id. at ¶ 44, 564 P.3d at 657.

B. Standard of Review

¶11 Although we generally review a district court's criminal discovery orders for an abuse of discretion, id. at ¶ 18, 564 P.3d at 654, the questions presented here require us to consider whether a postconviction court has the authority to order the prosecution to provide the defense with a copy of pretrial discovery, which is a question of law. Therefore, our review is de novo. Id.

C. Postconviction Discovery

¶12 There is no explicit constitutional right to discovery in criminal cases or to postconviction review; any such rights have been created by rule and statute. People v. Castorena, 2026 CO 2, ¶ 14, 582 P.3d 459, 464; see also People v. Wiedemer, 852 P.2d 424, 438 (Colo. 1993). And because “courts have ‘no freestanding authority to grant criminal discovery beyond what is authorized by the Constitution, the rules, or by statute,’ ” Castorena, ¶ 14, 582 P.3d at 464 (quoting Silva-Jaquez, ¶ 19, 564 P.3d at 654), we consider each source of law to determine whether a court's authority to order discovery extends to postconviction proceedings.

1. Statutes and Rules

¶13 Crim. P. 16 is the primary source of a Colorado trial court's authority to order discovery in criminal cases. However, it expressly applies only before trial and therefore doesn't apply to postconviction proceedings. Crim. P. 16 (governing “Discovery and Procedure Before Trial”); see, e.g., Silva-Jaquez, ¶ 23, 564 P.3d at 654.

¶14 Postconviction proceedings are generally governed by Crim. P. 35 and section 18-1-410, C.R.S. (2025). But neither the statute nor the rule provides for discovery in postconviction proceedings. See Silva-Jaquez, ¶ 24, 564 P.3d at 655. We've previously determined that “[s]uch silence creates a limitation, not an opportunity.” Id. at ¶ 26, 564 P.3d at 655; see also People v. Thompson, 2020 COA 117, ¶ 32, 485 P.3d 566, 572 (“Had the supreme court intended to allow ․ discovery in connection with a Crim. P. 35(c) motion, it easily could have said so. It did not.”).

¶15 Despite the general absence of a right to discovery in postconviction proceedings, there are a few exceptions.

¶16 First, defendants convicted of felony offenses have a narrow statutory right to postconviction discovery related to DNA evidence. These defendants may apply “for DNA testing concerning the[ir] conviction and sentence.” § 18-1-412(1), C.R.S. (2025); see also § 18-1-411(3.3), C.R.S. (2025).

¶17 Second, we've recognized a defendant's right to postconviction discovery in death penalty cases. See Owens, ¶¶ 1-2, 330 P.3d at 1028-29. But that right is expressly provided for in the rules and statutes governing the unitary review process, a process that applies exclusively to death penalty cases. Id. at ¶ 14, 330 P.3d at 1031; Crim. P. 32.2; §§ 16-12-201 to -210, C.R.S. (2025). Therefore, this limited right to postconviction discovery doesn't extend to non-death penalty cases.² See Silva-Jaquez, ¶¶ 36-38, 564 P.3d at 656.

¶18 Beyond these express provisions, there is no statute or rule authorizing a court to order postconviction discovery. See id. at ¶¶ 20, 26, 564 P.3d at 654-55. And although “trial courts possess ‘the inherent authority to manage their dockets through scheduling orders’ addressing the endorsement of witnesses and other timely disclosures,” id. at ¶ 7, 564 P.3d at 652 (quoting Owens, ¶ 16, 330 P.3d at 1032), courts may not rely on this “inherent authority to order discovery in a postconviction proceeding,” id. at ¶ 3, 564 P.3d at 652.

¶19 But that is not the end of the inquiry. We've observed that there may be circumstances when “a defendant's constitutional rights ․ require the prosecution to disclose certain information in a postconviction proceeding,” and so a court may order discovery to protect those rights. Id. at ¶ 20, 564 P.3d at 654. Ultimately, the judiciary has a duty “to uphold the constitution in all judicial proceedings.” People v. Germany, 674 P.2d 345, 350 (Colo. 1983). We therefore turn our attention to whether any of Bell's constitutional rights are implicated here.

2. Constitutional Rights

¶20 When a state creates a right by statute or rule, the accompanying procedures must comport with a defendant's constitutional rights, including the right to due process. Evitts v. Lucey, 469 U.S. 387, 401, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); Hoang v. People, 2014 CO 27, ¶ 39, 323 P.3d 780, 788; see also Dist. Att'y’s Off. v. Osborne, 557 U.S. 52, 68, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009) (A “state-created right can, in some circumstances, beget yet other rights to procedures essential to the realization of the parent right.” (quoting Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 463, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981))).

a. Effective Assistance of Counsel

¶21 In Colorado, there is no constitutional right to postconviction counsel, but Crim. P. 35(c)(3)(IV) and (V) authorize a postconviction court to appoint counsel if the court concludes that the defendant's postconviction motion has arguable merit. See Townsell v. People, 2026 CO 11M, ¶ 24, 585 P.3d 838, 843.

¶22 If appointed, postconviction counsel is constitutionally obligated to provide effective assistance. See U.S. Const. amend. VI; Colo. Const. art. II, § 16; People v. Breaman, 939 P.2d 1348, 1351-52 (Colo. 1997). Just like trial and appellate counsel, postconviction counsel must provide assistance that is at least “minimally effective” and “ ‘of sufficient quality to ensure that the process itself is fundamentally fair.’ ” Silva v. People, 156 P.3d 1164, 1169 (Colo. 2007) (quoting People v. Valdez, 789 P.2d 406, 410 (Colo. 1990)); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (providing the two-prong test a defendant must meet to establish that counsel was ineffective); § 21-1-104, C.R.S. (2025) (explaining the duties of a public defender in representing indigent clients). Whether counsel provided effective assistance is measured by a standard of objective reasonableness. Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003).

¶23 Under Crim. P. 35(c)(3)(V), if the court appoints postconviction counsel, counsel must then respond to that order by indicating whether they will enter an appearance on behalf of the defendant or whether they have any conflicts, requesting any additional time needed to investigate, and adding any claims that they determine have arguable merit. See § 21-2-104, C.R.S. (2025); Townsell, ¶ 24, 585 P.3d at 843. To satisfy these requirements in a constitutionally compliant manner, postconviction counsel may need to review all the pretrial discovery. See Ardolino, 69 P.3d at 77; see also Crim. P. 35(c)(3). Depending on the nature of the defendant's allegations, it could be objectively unreasonable not to. See Fisher v. Gibson, 282 F.3d 1283, 1296 (10th Cir. 2002); Ardolino, 69 P.3d at 76.

¶24 Thus, under some circumstances, the intersection of the limited state-created right to postconviction counsel and a defendant's constitutional right to such counsel's effective assistance may authorize a court to order the prosecution to copy and disclose pretrial discovery to the defendant even in postconviction proceedings. To hold otherwise — that is, to flatly prohibit such orders — would elevate administrative ease for district attorneys over the effectiveness of postconviction counsel in fulfilling their assigned role in a system that our state government created.

b. Due Process

¶25 Due process also looms large here. The Due Process Clause of the United States Constitution “imposes procedural limitations on a State's power to take away protected entitlements,” Osborne, 557 U.S. at 67, 129 S.Ct. 2308, but it doesn't dictate what form those procedures must take, id. at 69, 129 S.Ct. 2308; accord Pennsylvania v. Finley, 481 U.S. 551, 559, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). See U.S. Const. amend. XIV; see also Colo. Const. art. II, § 25. And in the postconviction context, due process simply ensures that the procedures governing a state-created right don't “ ‘offend[ ] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,’ or ‘transgress[ ] any recognized principle of fundamental fairness in operation.’ ” Osborne, 557 U.S. at 69, 129 S.Ct. 2308 (quoting Medina v. California, 505 U.S. 437, 446, 448, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992)).

¶26 One of these fundamental principles is that all defendants are entitled to the same system of justice regardless of wealth. See Griffin v. Illinois, 351 U.S. 12, 18-19, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Jurgevich v. Dist. Ct., 907 P.2d 565, 567 (Colo. 1995). Accordingly, when the state creates a right, “[t]he State cannot adopt procedures which leave ․ indigent defendants merely a ‘meaningless ritual’ while others in better economic circumstances have a ‘meaningful appeal.’ ” Ross v. Moffitt, 417 U.S. 600, 612, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974) (quoting Douglas v. California, 372 U.S. 353, 358, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963)); see also Smith v. Bennett, 365 U.S. 708, 713, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961) (“ When an equivalent right is granted by a State, financial hurdles must not be permitted to condition its exercise.”); People v. Nord, 790 P.2d 311, 315 (Colo. 1990) (“The Due Process and Equal Protection Clauses of the Fourteenth Amendment are implicated when a state creates ‘differences in access to the instruments needed to vindicate legal rights’ on the basis of the ‘financial condition [sic] of the defendant.’ ” (quoting Roberts v. LaVallee, 389 U.S. 40, 42, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967) (per curiam))).

¶27 As discussed, Colorado has created a right to postconviction review in certain circumstances. And a defendant is entitled to a meaningful opportunity to challenge the effective assistance of trial and appellate counsel. See Wiedemer, 852 P.2d at 441 (noting “the overriding concern enunciated in Germany that a defendant have the meaningful opportunity required by due process to challenge his conviction”); Dooly v. People, 2013 CO 34, ¶ 6, 302 P.3d 259, 262 (“[A] criminal defendant ha[s] an absolute right to challenge the effectiveness of his trial counsel by postconviction review ․”). So, Griffin’s holding that access to justice not be determined by one's financial situation applies to postconviction proceedings. See Smith, 365 U.S. at 713-14, 81 S.Ct. 895 (applying Griffin to state habeas filing fees). Relatedly, we discourage defendants from raising ineffective-assistance-of-counsel claims on direct appeal, preferring that such allegations be made in postconviction proceedings with a fully developed factual record. See Ardolino, 69 P.3d at 77; People v. Thomas, 867 P.2d 880, 886 (Colo. 1994). Postconviction proceedings are often a defendant's best — and sometimes only — opportunity for meaningful review of any ineffective-assistance-of-counsel claims. See Ardolino, 69 P.3d at 77.

¶28 But this doesn't mean postconviction defendants are entitled to the full panoply of rights they had at trial. See Jurgevich, 907 P.2d at 567. Due process doesn't require “absolute equality or precisely equal advantages” in all contexts. United States v. MacCollom, 426 U.S. 317, 324, 96 S.Ct. 2086, 48 L.Ed.2d 666 (1976) (quoting San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 24, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973)). It requires only that indigent defendants have “an adequate opportunity to present their claims fairly.” Ross, 417 U.S. at 612, 94 S.Ct. 2437.

¶29 And although a postconviction court may deny a defendant's motion without appointing counsel and without a hearing if it concludes “the motion, files, and record in the case clearly establish that the allegations presented in the defendant's motion are without merit and do not warrant postconviction relief,” Ardolino, 69 P.3d at 77, if the court concludes the motion has arguable merit and appoints counsel, the court must ensure that the defendant's constitutional rights are protected, cf. Hoang, ¶ 39, 323 P.3d at 788 (holding, in relevant part, that “[a]lthough no federal constitutional right to an appeal exists, when a state creates appellate courts as an integral part of the adjudication of guilt or innocence, appellate procedures must comport with the United States Constitution”).

¶30 Accordingly, the state doesn't violate a defendant's right to due process by requiring an indigent defendant to do more than simply assert the fact of indigency and a desire to look for errors. See Jurgevich, 907 P.2d at 567 (“A defendant does not have a constitutional right to a free transcript to search for errors to raise in a collateral attack.”); Carr v. Dist. Ct., 402 P.2d 182, 183 (Colo. 1965). Nor is an indigent defendant entitled to discovery based on bare assertions of error. Cf. Jurgevich, 907 P.2d at 568 (“Merely because a transcript might be of benefit to a defendant does not mean that he is constitutionally entitled to one.”); MacCollom, 426 U.S. at 327, 96 S.Ct. 2086. Although a defendant with the financial means to pay for copies is free to spend his money to pursue frivolous claims, the state isn't obligated to subsidize that pursuit. See Jurgevich, 907 P.2d at 567; see also Ross, 417 U.S. at 616, 94 S.Ct. 2437 (“The duty of the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an adequate opportunity to present his claims fairly ․”).

¶31 Rather, an indigent defendant must show that “he may be entitled to relief under Crim. P. 35(c) ․ and that the record might contain specific facts that would substantiate alleged errors.” Jurgevich, 907 P.2d at 567 (citation omitted); see also MacCollom, 426 U.S. at 326, 96 S.Ct. 2086. This requires a defendant to assert specific errors, along with specific facts. See Snavely v. Shannon, 511 P.2d 905, 907 (Colo. 1973); Carr, 402 P.2d at 183; see also Ruark v. Gunter, 958 F.2d 318, 319 (10th Cir. 1992).

¶32 We therefore conclude that, if an indigent defendant meets these requirements, a postconviction court should order the prosecution to disclose Crim. P. 16 discovery materials to protect the defendant's due process rights.

3. Application

¶33 Here, Bell asserted seven claims of ineffective assistance of trial counsel, including, among others, that trial counsel was ineffective for failing to investigate Bell's assertion of voluntary intoxication and also for failing to assert the defense that, because of that intoxication, Bell lacked the specific intent necessary to commit first degree murder. See Ardolino, 69 P.3d at 76 (“[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.”). Bell also asserted that trial counsel was ineffective for failing to investigate evidence from the crime scene, which showed signs of tampering based on the unusual placement of the shell casing on the victim's body. See Fisher, 282 F.3d at 1296 (concluding that “[a] decision not to investigate cannot be deemed reasonable if it is uninformed”). Bell believes that such investigation might have produced evidence to corroborate his version of events and thus his defense. Additionally, Bell alleged that trial counsel failed to tell him that the prosecution had offered a plea deal even though Bell had told counsel he was interested in accepting a plea in lieu of going to trial. See Lafler v. Cooper, 566 U.S. 156, 168, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). These assertions contain specific allegations of ineffectiveness and specific facts that might be supported by the requested discovery.

¶34 Moreover, before asking the court to order the disclosure, postconviction counsel made a good-faith effort to obtain a complete copy of discovery from Bell's trial attorneys, who claimed to possess only about half of the discovery. Bell's postconviction counsel then requested the missing packets from the prosecution. The prosecution has never argued they can't provide the packets because they don't have them.

¶35 Under these circumstances, we conclude that the postconviction court has the authority to order discovery and that it erred by concluding otherwise. See Osborne, 557 U.S. at 69, 129 S.Ct. 2308; cf. Jurgevich, 907 P.2d at 567-68 (concluding the defendant wasn't entitled to a free transcript because he had failed to allege specific facts that would entitle him to postconviction relief and instead sought the transcript merely to discover potential errors).

D. The CCJRA

¶36 The prosecution argues that, to obtain a copy of pretrial discovery, postconviction counsel should submit a CCJRA request and pay the requisite fees rather than seeking a court order to compel disclosure. By following this procedure, they argue, the district attorney's office will be compensated for the cost of finding and copying those materials.

¶37 The CCJRA provides for public inspection of criminal justice agency records. Under the statute, with some exceptions not applicable here,

all criminal justice records, at the discretion of the official custodian, may be open for inspection by any person at reasonable times, ․ and the official custodian of any such records may make such rules and regulations with reference to the inspection of such records as are reasonably necessary for the protection of such records and the prevention of unnecessary interference with the regular discharge of the duties of the custodian or his office.

§ 24-72-304(1), C.R.S. (2025). “Criminal justice agencies may assess reasonable fees ․ for the search, retrieval, and redaction of criminal justice records requested,” § 24-72-306(1), C.R.S. (2025), except that any fee provisions “shall not apply to discovery materials that a criminal justice agency is required to provide in a criminal case pursuant to [Crim. P. 16],” § 24-72-306(3).

¶38 A copy of pretrial discovery obtained pursuant to a CCJRA request, however, will not always satisfy postconviction counsel's duty to provide effective assistance because the CCJRA's plain language grants the custodian of the records requested discretion to disclose all, some, or none of those records, and any records disclosed are subject to redaction. § 24-72-304(1), (4), (4.5); § 24-72-305, C.R.S. (2025); see also Harris v. Denver Post Corp., 123 P.3d 1166, 1174 (Colo. 2005) (explaining the scope of limitations on a custodian's discretion). Thus, despite the CCJRA's general preference for disclosure, see Freedom Colo. Info., Inc. v. El Paso Cnty. Sheriff's Dep't, 196 P.3d 892, 899 (Colo. 2008), postconviction counsel would have no guarantee that a full, unredacted copy of pretrial discovery would be provided pursuant to a CCJRA request. And although the prosecution stated in their response brief that they don't redact records requested under the CCJRA by postconviction counsel, they represent but one judicial district in the state. Other districts are free to create different policies.

¶39 Accordingly, we conclude that postconviction counsel need not resort to the CCJRA to obtain a copy of constitutionally essential pretrial discovery.

III. Conclusion

¶40 Therefore, we make the order to show cause absolute, reverse the district court's denial of Bell's motion to compel disclosure, and remand the case to the district court for further proceedings consistent with this opinion. The district court should evaluate whether Bell has alleged specific errors and specific facts in the requested discovery that would substantiate those errors. If the court finds that he has, then it should order the prosecution to disclose the discovery.

FOOTNOTES

1.   The issues presented by the petitioner in this original proceeding are as follows:1. Does a postconviction court have authority to order the prosecution to provide the defense with a copy of Trial Discovery (i.e., a duplicate of the same Rule 16 discovery previously disclosed to trial counsel) when this information is necessary to safeguard the defendant's constitutional rights to due process of law and effective assistance of counsel?2. Does People v. Silva-Jaquez, 2025 CO 11, [564 P.3d 650,] lend any support to the Postconviction Court's broad pronouncement that, outside of a death penalty proceeding, a district court has no constitutional authority to order the prosecution to produce postconviction discovery?

2.   Colorado abolished the death penalty in 2020 for offenses committed on or after July 1, 2020. Ch. 61, secs. 1, 10, §§ 16-11-901, 18-1.3-401(1)(a)(V.5)(A), 2020 Colo. Sess. Laws 204, 204, 209-10.

JUSTICE HOOD delivered the Opinion of the Court.