Background
In 2010, a jury found Francis M. Hernandez guilty of three counts of vehicular homicide, child abuse resulting in death, child abuse resulting in serious bodily injury, vehicular assault, three counts of third-degree assault, and eight counts of leaving the scene of an accident. Following a bench trial, he was also convicted of driving under restraint. The district court sentenced him to 60 years in prison cumulative.
On direct appeal in 2014, the Colorado Court of Appeals affirmed most convictions but held that Hernandez’s eight leaving-the-scene convictions must merge into a single conviction. The appellate mandate issued February 11, 2015. Hernandez subsequently filed multiple postconviction motions, which were denied. His first Crim. P. 35(c) motion was appealed and the denial was affirmed; he did not appeal denials of his second and third postconviction motions.
In January 2025—nearly ten years after his convictions became final—Hernandez filed a fourth postconviction motion. He acknowledged it was successive but requested “permission” to file, arguing he lacked counsel and the motion raised new grounds. Substantively, he challenged his sentence as disproportionate under the Eighth Amendment, invoked Blakely and Apprendi principles, claimed his child abuse and assault convictions should merge with vehicular homicide counts under the Double Jeopardy Clause, and argued that Erlinger v. United States (2024) applied because his jury trial rights were violated when the trial court did not submit his driving-under-restraint charge to the jury.
The Court’s Holding
The Colorado Court of Appeals affirmed the district court’s summary denial of Hernandez’s motion on multiple independent grounds. The primary basis was that the motion was time-barred. Under Colorado law, postconviction challenges to non-class 1 felonies must be brought within three years of when the conviction becomes final—marked by issuance of the appellate mandate. Hernandez’s mandate issued February 11, 2015, and he did not file his current motion until January 2025, nearly ten years later. The motion contained no allegations of any exception to this three-year time limit, and thus was facially time-barred.
The court rejected Hernandez’s implicit argument that Erlinger v. United States provided an excuse for the belated filing. Even construing his pro se pleading broadly, the opinion stated Erlinger did not establish a newly-arising constitutional rule that applies retroactively to cases on collateral review. Therefore, Erlinger could not overcome the time bar. The court further noted that Erlinger was inapplicable in any event because Hernandez had waived his right to a jury trial on the driving-under-restraint charge—Erlinger’s protections do not extend to waived jury trial claims.
Without reaching the district court’s alternative holding, the Court of Appeals agreed that several of Hernandez’s claims were also successive and therefore procedurally barred. His Apprendi and Blakely sentencing challenge had been raised and resolved in his first postconviction proceeding, and he offered no applicable exception for his merger, proportionality, or other claims under Rule 35(c)(3)(VII). The bare assertion that he was pro se and hearings were not held on prior motions did not constitute a valid exception to the successive claims bar.
Key Takeaways
- Postconviction motions in Colorado must clear strict procedural requirements: within three years of conviction finality, not successive, and with valid exceptions where applicable.
- Pro se status and the assertion of “new grounds” do not automatically excuse timeliness requirements or successive-claim bars.
- Newly established constitutional rules, even of constitutional magnitude, do not provide retroactive relief on collateral review unless they apply retroactively as a matter of constitutional law.
- Waiver of jury trial rights places a claim outside Erlinger protections, which apply to violations of jury trial guarantees.
Why It Matters
This decision reinforces Colorado’s strict gatekeeping requirements for postconviction relief, protecting finality while preventing indefinite collateral attacks on judgments. For defendants with multiple convictions or those representing themselves, it demonstrates that pro se status, lack of prior counsel, or the existence of newly developed constitutional doctrines will not extend filing deadlines or excuse successive-motion bars absent a qualifying exception under the Rules of Criminal Procedure.
The holding also clarifies the relationship between newly established constitutional rules (like Erlinger) and collateral review. While such rules may be significant as a matter of constitutional law, they do not automatically resurrect time-barred or procedurally barred claims. Courts retain broad discretion to apply procedural bars, and defendants must either meet their exceptions or accept that convictions, once final, are largely insulated from attack absent extraordinary circumstances.
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