Opposition Brief — Jasim Mohammed Hassi Ramadon, Petitioner v. Colorado

NO. 25-6778

In the Supreme Court of the United States

________________________________________________________________

JASIM MOHAMMED HASSI RAMADON,

Petitioner,

– v. –

COLORADO,

Respondent.

________________________________________________________________

On Petition for Writ of Certiorari to the Colorado Court of Appeals

________________________________________________________________

BRIEF IN OPPOSITION

________________________________________________________________

PHILIP J. WEISER

Attorney General

RUSSELL D. JOHNSON

Deputy Solicitor General

SHANNON WELLS STEVENSON

Solicitor General

JESSICA E. ROSS

Assistant Solicitor General

JILLIAN J. PRICE

Deputy Attorney General

Counsel of Record

Office of the Colorado

Attorney General

1300 Broadway, 10th Floor

Denver, Colorado 80203

Jillian.Price@coag.gov

(720) 508-6000

PATRICK A. WITHERS

Assistant Solicitor General

KATHERINE WYNN

Assistant Attorney General Fellow

KIT BEIKMANN

Assistant Attorney General Fellow

Counsel for Respondent

QUESTIONS PRESENTED

1. Whether a due process violation grounded in the denial of a

defendant’s right to testify is structural error.

2. Whether a Sixth Amendment violation grounded in counsel depriving

the defendant of the right to testify requires proof of prejudice under

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

PARTIES TO THE PROCEEDING

Petitioner Jasim Mohammed Hassi Ramadon, pro se, was the appellant in the

court below. Respondent State of Colorado was the appellee in the court below.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................... i

PARTIES TO THE PROCEEDING .............................................................................. ii

TABLE OF CONTENTS ............................................................................................... iii

INTRODUCTION .......................................................................................................... 1

STATEMENT OF THE CASE ....................................................................................... 1

I.

On trial for multiple counts of sexual assault, Petitioner was repeatedly

advised of his right to testify and chose not to do so. ............................................... 1

II.

The postconviction court and the Colorado Court of Appeals concluded that

Petitioner validly waived his right to testify, had effective counsel, and suffered

no prejudice, regardless. ............................................................................................ 5

REASONS FOR DENYING THE PETITION .............................................................. 8

I.

Because Petitioner waived his right to testify in accordance with due

process, this case presents no reason to address if an invalid waiver of the right to

testify would have been structural error. ................................................................. 9

II.

There is no factual or legal reason to address whether defendants must

show Strickland prejudice if they relinquished their right to testify as a result of

ineffective assistance of counsel. ............................................................................. 13

A. Petitioner’s case is a poor vehicle to address the issue that his Petition

asserts. ................................................................................................................. 14

B. The law underlying Petitioner’s argument is settled; there is no circuit

split on the prejudice question because the circuits have followed the path set

out by this Court. ................................................................................................. 17

CONCLUSION............................................................................................................. 23

iii

TABLE OF AUTHORITIES

Cases

Adams v. Robertson,

520 U.S. 83 (1997) .................................................................................................... 16

Anderson v. City of Bessemer City,

470 U.S. 564 (1985) .................................................................................................. 10

Becker v. Cline,

699 F. App’x 783 (10th Cir. 2017) ........................................................................... 20

Brown v. Artuz,

124 F.3d 73 (2d Cir. 1997) ................................................................................. 20, 21

Carter v. Clark,

667 F. Supp. 3d 163 (W.D. Va. 2023) ................................................................ 22, 23

Carter v. Kentucky,

450 U.S. 288 (1981) .................................................................................................. 15

Florida v. Nixon,

543 U.S. 175 (2004) .................................................................................................. 20

Godinez v. Moran,

509 U.S. 389 (1993) .................................................................................................. 11

Hartsfield v. Dorethy,

949 F.3d 307 (7th Cir. 2020).................................................................................... 20

Hodge v. Haeberlin,

579 F.3d 627 (6th Cir. 2009).................................................................................... 20

Jackson v. United States,

956 F.3d 1001 (8th Cir. 2020).................................................................................. 20

Jones v. Barnes,

463 U.S. 745 (1983) .................................................................................................. 19

Jordan v. Hargett,

34 F.3d 310 (5th Cir. 1994)........................................................................................ 9

Lesko v. Sec’y Pa. Dep’t of Corr.,

34 F.4th 211 (3d Cir. 2022)................................................................................ 20, 21

iv

Lisbon v. United States,

758 F. App’x 780 (11th Cir. 2018) ........................................................................... 20

McCoy v. Louisiana,

584 U.S. 414 (2018) ................................................................................ 16, 19, 20, 22

Miranda v. Kennedy,

125 F.4th 23 (1st Cir. 2025)..................................................................................... 20

Moody v. NetChoice, LLC,

603 U.S. 707 (2024) .................................................................................................. 12

nited States v. Hung Thien Ly,

646 F.3d 1307 (11th Cir. 2011).................................................................................. 9

Palmer v. Hendricks,

592 F.3d 386 (3d Cir. 2010) ..................................................................................... 21

People v. Curtis,

681 P.2d 504 (Colo. 1984) .......................................................................... 2, 3, 11, 12

People v. Robles,

74 P.3d 437 (Colo. App. 2003) ................................................................................. 18

People v. Spaulding,

957 N.W.2d 843 (Mich. Ct. App. 2020) ................................................................... 10

Peretz v. United States,

501 U.S. 923 (1991) .................................................................................................. 11

Rock v. Arkansas,

483 U.S. 44 (1987) .................................................................................................... 10

Roe v. Flores-Ortega,

528 U.S. 470 (2000) .................................................................................................. 18

Sinclair v. United States,

481 F. App’x 354 (9th Cir. 2012) ............................................................................. 20

Smith v. Robbins,

528 U.S. 259 (2000) .................................................................................................. 18

Solomon v. Curtis,

21 F. App’x 360 (6th Cir. 2001) ................................................................................. 9

Stafford v. Int’l Harvester Co.,

668 F.2d 142 (2d Cir. 1981) ..................................................................................... 10

v

State v. Anthony,

860 N.W.2d 10 (Wis. 2015) ...................................................................................... 10

State v. Lacourse,

398 So. 3d 712 (La. Ct. App. 2024) .......................................................................... 10

State v. Lute,

76 N.E.3d 664 (Ohio Ct. App. 2016) ........................................................................ 10

State v. Rivera,

741 S.E.2d 694 (S.C. 2013) ...................................................................................... 10

Strickland v. Washington,

466 U.S. 668 (1984) ................................... i, 1, 8, 9, 13, 14, 16, 17, 18, 19, 20, 21, 23

Tex. & P.R. Co. v. R.R. Comm’n,

232 U.S. 338 (1914) .................................................................................................. 10

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) .................................................................................................. 13

United States v. Barksdale,

98 F.4th 86 (3d Cir. 2024).......................................................................................... 9

United States v. Cronic,

466 U.S. 648 (1984) .................................................................................................. 18

United States v. Gillenwater,

717 F.3d 1070 (9th Cir. 2013).................................................................................... 9

United States v. Johnson,

65 F.4th 932 (7th Cir. 2023) ...................................................................................... 9

United States v. Mullins,

315 F.3d 449 (5th Cir. 2002).................................................................................... 20

United States v. Pennycooke,

65 F.3d 9 (3d Cir. 1995) ........................................................................................... 11

United States v. Robinson,

700 F. App’x 178 (4th Cir. 2017) ....................................................................... 20, 23

United States v. Smith,

433 F. App’x 847 (11th Cir. 2011) ............................................................................. 9

United States v. Tavares,

100 F.3d 995 (D.C. Cir. 1996) .................................................................................. 20

vi

Weaver v. Massachusetts,

582 U.S. 286 (2017) .................................................................................................. 19

Williams v. United States,

No. 3:15-CV-01301, 2018 WL 4656231 (D. Conn. 2018) ........................................ 22

vii

INTRODUCTION

Petitioner asks this Court to decide uncontroversial issues based on

hypothetical facts. In an unpublished and non-precedential opinion, the Colorado

Court of Appeals decided that (1) Petitioner’s waiver of his right to testify satisfied

due process, and (2) counsels’ attempt to dissuade Petitioner from testifying did not

amount to ineffective assistance because Petitioner proved neither deficient

performance nor prejudice.

Now, however, he asks this Court to consider (1) if automatic reversal would

have been required, had his testimony waiver violated due process, and (2) whether

he had to prove Strickland prejudice in his case, if counsel had rendered deficient

performance. This Court should not accept Petitioner’s invitation to render advisory

opinions on these questions.

Even if these issues were properly presented, further guidance from this Court

would afford little practical benefit. This Court’s precedent already clearly requires

Strickland prejudice in cases such as this, as illustrated by the reasoning of those

circuit courts of appeals that have considered the issue.

For all of these reasons, the Petition should be denied.

STATEMENT OF THE CASE

I.

On trial for multiple counts of sexual assault, Petitioner was

repeatedly advised of his right to testify and chose not to do so.

In the early morning hours of July 22, 2012, an incapacitated woman was

violently sexually assaulted, resulting in traumatic intimate injuries that required

surgical intervention once she regained consciousness. CF, pp. 816–20, 2251–52.

1

Colorado law enforcement officers identified Petitioner as the perpetrator. CF,

pp. 1444–45. The State of Colorado charged him with multiple counts each of sexual

assault, unlawful sexual contact, and attempted sexual assault; one count of firstdegree assault; and thirteen crime-of-violence sentence enhancers. CF, pp. 30–37.

Petitioner went to trial in 2014. CF, pp. 754–59. During that trial and outside

the presence of the jury, the trial court spoke with Petitioner about whether he

intended to testify on his own behalf. CF, pp. 1964–68. Trial courts in Colorado

routinely make such inquiries because under Colorado law “when a defendant waives

the right to testify on his own behalf, the trial court has a duty to ascertain on the

record whether the defendant makes that waiver with a complete understanding of

his rights, including the right to override the advice of his counsel not to testify.”

People v. Curtis, 681 P.2d 504, 507–08 (Colo. 1984). These “Curtis advisements”

inform a defendant that:

•

They have a right to testify;

•

If they want to testify, no one can prevent them from doing so;

•

If they testify, the prosecution will be allowed to cross-examine

them;

•

If they have been convicted of a felony, the prosecutor will be

entitled to ask them about it, thereby disclosing it to the jury;

and

2

•

If a felony conviction is disclosed to the jury, then the jury can

be instructed to consider it only as to the defendant’s

credibility.

Id. at 514.

Here, the trial court gave Petitioner Curtis advisements on two separate

occasions. During the first, the court told Petitioner that it was going to give him “an

advisement of your rights in relation to your choice to testify or not. I want you to

think about this overnight. This advisement is kind of giving you information about

your rights regarding testifying or not.” CF, p. 1965:16–20.

The court explained that the purpose of this advisement was to help Petitioner

understand not only his right to take the stand, “but also the consequences thereof.”

CF, pp. 1965:21–23. The court told Petitioner “that you may testify even if your

counsel advises you against that,” and Petitioner said, “Yes, ma’am” when asked if he

understood. CF, p. 1965:22–25. The court then proceeded to give him a full Curtis

advisement. CF, pp. 1966–67. Following this initial advisement, the trial court asked

Petitioner to “think about that tonight” because it was going to ask him about his

decision to testify after the prosecution rested. CF, p. 1967:5–8.

The next day, the trial court gave Petitioner a second Curtis advisement. CF,

pp. 1503–05. The court again told him that “[n]o one can prevent you from testifying

if you want to testify,” and Petitioner again said, “Yes, ma’am” when asked if he

understood. CF, p. 1503:15–17. The court then engaged in the following colloquy with

Petitioner:

3

THE COURT: And so I want to ask, are you under the

influence of any drugs or alcohol today?

PETITIONER: No, I’m not.

THE COURT: You don’t have any mental health issue that

you think would impair your ability to understand the

advisement today?

PETITIONER: I don’t believe so at this time.

DEFENSE COUNSEL: I think Mr. [Ramadon] does have

some mental health issues. I think he’s saying he doesn’t

think they will affect his ability to make this decision.

THE COURT: Can you tell me that?

PETITIONER: I got four brain injuries, and I got bad

memory.

THE COURT: Do you think those would affect your ability

to understand my advisement to you about your right to

testify today?

PETITIONER: I’m not good with the law, but I trust my

lawyer.

THE COURT: All right. But you understand that?

PETITIONER: Yes.

THE COURT: Even if you trust your lawyers, that decision

to testify or not is solely yours.

PETITIONER: Yes, I understand.

THE COURT: Do you need more time to talk to your

attorney about that?

PETITIONER: No, I do not, ma’am.

THE COURT: What’s your decision?

PETITIONER: At this time I wish not to testify.

THE COURT: And nobody’s –

PETITIONER: I talked to my counsel, my lawyers and I

don’t testify. That is a voluntary decision by me.

THE COURT: And nobody’s forcing you to do that, right?

PETITIONER: No, ma’am.

4

CF, pp. 1504–05 (emphasis added).

Petitioner did not testify at trial. The jury acquitted him of first-degree assault

and its accompanying sentence enhancers, and one count of unlawful sexual contact

was dismissed. The jury convicted Petitioner of all remaining charges. The Colorado

Court of Appeals, Colorado’s intermediate appellate court, affirmed his convictions in

an unpublished opinion, and the Colorado Supreme Court denied his petition for

certiorari review. CF, pp. 751, 1326–51.

II.

The postconviction court and the Colorado Court of Appeals

concluded that Petitioner validly waived his right to testify,

had effective counsel, and suffered no prejudice, regardless.

Petitioner timely filed a pro se motion for postconviction relief, which his

counsel later supplemented. CF, pp. 1205–16, 1254–57. As relevant here, Petitioner

claimed that his waiver of the right to testify was not knowing, voluntary, and

intelligent, and that trial counsel was ineffective for advising him not to testify at

trial. CF, pp. 1205–16, 1254–57. The postconviction court ordered the prosecution to

respond and ultimately set the matter for a hearing. CF, pp. 1258, 2751–52; see

generally Tr. 12-19-22. 1

At the hearing, Petitioner claimed he told his defense counsel, Chalmers and

Hostetler, that he wanted to testify but that they had threatened to withdraw if he

decided to take the stand. Tr. 12-19-22, pp. 184:15–186:11. Counsel, on the other

1 The record contains two transcripts for December 19, 2022. The one named “TR. 12-19-22 – 35c

Continued” contains the entirety of the postconviction hearing. Unless otherwise noted, it is this file

to which Colorado refers when citing to Tr. 12-19-22.

5

hand, testified that they strongly encouraged him not to testify but never made any

threats. Tr. 12-19-22, pp. 32:24–33:6.

For example, Chalmers said that they “strongly encouraged” but did not

threaten him:

Q. When you had the conversations with Mr. Ramadon

about whether to testify or not testify, was that pretrial?

A. We had conversation pretrial for sure. He was adamant

all along he wanted to testify, and we were doing

everything we could to prevent him from testifying. Apart

from actually threatening or something like that, we were

strongly encouraging him not to testify.

...

Q. Now to be clear, you said you never threatened him?

A. No, I don’t think I threatened him. I don’t believe I

threatened him. That’s not generally my practice. I would

have said things that he might have interpreted as a

threat. You’re going to die in prison if you testify, I have

said that to clients before.

Tr. 12-19-22, pp. 32:24–33:6, 69:12–17 (emphasis added). Chalmers also explained

why they encouraged him not to testify: Petitioner had “an air of cockiness” and

others perceived him as “annoying,” which she feared the jury might have seen if they

put him on the stand. Tr. 12-19-22, pp. 33:21–34:5.

Similarly, Hostetler testified that while she could understand how Petitioner

may have interpreted her statements to him as a threat to withdraw, she was “sure

we never said it like that”:

Q. Did you ever threaten Mr. Ramadon in any way that if

he chose to testify that you would terminate your

representation of him?

6

A. I’m sure we never said it like that, but I can remember

saying we will not represent you if you testify, we will not.

We cannot do this if you testify.

Q. Fair to say that it came out essentially that if he

testified, you were saying you would no longer be his

attorney; is that correct?

A. I can understand 100% how he would interpret it that

way.

...

Q. And what was your purpose of hounding and being

adamant that Mr. Ramadon couldn't take the stand?

A. I couldn’t see a way to defend the case with him taking

the stand. I just thought that it would – I didn’t think that

the jury was going to have the faith in him and believe in

him the way we did.

Tr. 12-19-22, pp. 140:25–142:5.

The court denied the postconviction motion after considering the entire record,

including Petitioner’s waiver of his right to testify; counsel’s pretrial actions and

performance at trial; and the evidence presented at the postconviction hearing. See

generally Supp. Tr. 03-07-23, p. 20:21-24; Pet. App. 15–17. The court acknowledged

that “trial counsel strongly discouraged [Petitioner] from testifying” and that, in

advance of trial (but not during the course of trial), there was a “not even so veiled

suggestion that counsel may actually end their representation of [Petitioner] should

he make the decision to testify.” Supp. Tr. 03-07-23, p. 4:2–11. But the court

ultimately found that Petitioner knowingly, voluntarily, and intelligently waived his

right to testify. Supp. Tr. 03-07-23, pp. 5:3–6:23. The court further concluded that

Petitioner failed to demonstrate that he received ineffective counsel or that he was

prejudiced. Supp. Tr. 03-07-23, pp. 7:2–8:17.

7

Petitioner appealed the postconviction court’s order to the Colorado Court of

Appeals, which affirmed in an unpublished, nonprecedential decision. Pet. App.

1–32. This petition followed.

REASONS FOR DENYING THE PETITION

Petitioner has failed to identify any compelling reason that would justify this

Court’s intervention. There is no split among the circuits, no conflict with this Court’s

precedent, no important question that this Court must settle, nor any other

persuasive reason to expend the Court’s limited resources to hear this matter.

Instead, the Petition presents questions that this Court would never reach in an effort

to overturn an unpublished decision that is not binding on any other court.

The first question presented asks whether structural error requiring automatic

reversal occurs when counsel coerces a defendant to waive their right to testify. But

this case is the wrong vehicle to answer that question. The postconviction court made

factual findings with ample record support that Petitioner was not coerced and

validly waived his right to testify. Petitioner cannot show that those findings are

clearly erroneous, and thus, there is no opportunity here to reach the issue on which

he seeks review. 2

The second question presented is a similarly unpersuasive candidate for

review. Again, vehicle problems would keep the Court from reaching the issue.

Petitioner’s assertion that he need not demonstrate prejudice is being raised for the

2 And even if that were not the case, as discussed in the context of Petitioner’s ineffective assistance

of counsel claim, federal circuit courts have uniformly applied Strickland’s prejudice framework when

determining whether a violation of the right to testify by counsel merits a new trial. There is no circuit

split that requires this Court’s intervention to resolve.

8

first time in this Court and should not be considered. Further, he cannot demonstrate

that his counsel was ineffective—as both prior courts reviewing that issue

concluded—leaving the Court with no reason to address the prejudice-focused

question he presents.

And even were that not the case, Petitioner questions whether a waiver of the

right to testify resulting from ineffective assistance of counsel is subject to a prejudice

analysis under Strickland v. Washington, 466 U.S. 668 (1984). But there is no circuit

split on this issue, and the analysis in the decision below—and the approach taken in

every circuit—is consistent with this Court’s precedents.

This Court should deny the Petition.

I.

Because Petitioner waived his right to testify in accordance

with due process, this case presents no reason to address if an

invalid waiver of the right to testify would have been structural

error.

Petitioner asks this Court to decide if an invalid waiver of the right to testify,

which violates due process, is structural error. Circuit courts that have addressed the

issue conclude it is not. See, e.g., United States v. Barksdale, 98 F.4th 86, 88–89 (3d

Cir. 2024); Jordan v. Hargett, 34 F.3d 310, 315 (5th Cir. 1994); Solomon v. Curtis, 21

F. App’x 360, 362 (6th Cir. 2001); United States v. Johnson, 65 F.4th 932, 942 (7th

Cir. 2023); United States v. Smith, 433 F. App’x 847, 851 (11th Cir. 2011); see also

United States v. Gillenwater, 717 F.3d 1070, 1083 (9th Cir. 2013) (assuming that

harmless-error analysis applies to a right-to-testify claim under due process); United

States v. Hung Thien Ly, 646 F.3d 1307, 1318 (11th Cir. 2011) (same). Courts in many

states have reached the same conclusion, while others have determined it is

9

structural error whenever the right to testify is violated. Compare People v.

Spaulding, 957 N.W.2d 843, 856 (Mich. Ct. App. 2020); State v. Lute, 76 N.E.3d 664,

673 (Ohio Ct. App. 2016); State v. Anthony, 860 N.W.2d 10, 29 (Wis. 2015), with State

v. Lacourse, 398 So. 3d 712, 719 (La. Ct. App. 2024); State v. Rivera, 741 S.E.2d 694,

707 (S.C. 2013).

Petitioner gives this Court no reason to address this small minority of

jurisdictions, however, because the Colorado courts found that he validly waived his

right to testify. See Pet. App. 6–8. Petitioner’s case is the wrong vehicle to address

the issue that he raises.

True, Petitioner disputes the state courts’ findings. See, e.g., Pet. App. 7–8. But

“the rule is well settled”—and has been for over a century—“that findings of fact

concurred in by two lower courts will not be disturbed by this court unless shown to

be clearly erroneous.” Tex. & P.R. Co. v. R.R. Comm’n, 232 U.S. 338, 339 (1914). And

to do so, the record as a whole must leave this Court with the “definite and firm

conviction that a mistake has been committed.” Anderson v. City of Bessemer City,

470 U.S. 564, 573 (1985) (citation modified); see also Stafford v. Int’l Harvester Co.,

668 F.2d 142, 147 (2d Cir. 1981) (the party asserting clear error bears the burden of

proving it). Because Petitioner cannot satisfy that standard here, the Court will never

reach the question he presents.

Defendants have a right to testify in their own defense. Rock v. Arkansas, 483

U.S. 44, 49 (1987). While this right may be waived, a defendant must do so

voluntarily. See Godinez v. Moran, 509 U.S. 389, 400 (1993) (discussing in a different

10

context that the waiver of the defendant’s “constitutional rights” must be “knowing

and voluntary”); Peretz v. United States, 501 U.S. 923, 936 (1991) (“The most basic

rights of criminal defendants are similarly subject to waiver.”).

As discussed above—and unlike federal law—Colorado law requires courts to

advise criminal defendants outside the jury’s presence:

that he has a right to testify, that if he wants to testify then

no one can prevent him from doing so, that if he testifies

the prosecution will be allowed to cross-examine him, that

if he has been convicted of a felony the prosecutor will be

entitled to ask him about it and thereby disclose it to the

jury, and that if the felony conviction is disclosed to the jury

then the jury can be instructed to consider it only as it

bears upon his credibility. In connection with the privilege

against self-incrimination, the defendant should also be

advised that he has a right not to testify and that if he does

not testify then the jury can be instructed about that right.

Compare Curtis, 681 P.2d at 514 (footnote omitted), holding modified by People v.

Blehm, 983 P.2d 779, 786 (Colo. 1999), with United States v. Pennycooke, 65 F.3d 9,

13 (3d Cir. 1995) (recognizing that “a trial court has no affirmative duty to advise the

defendant of the right to testify or to obtain an on-the-record waiver of such right”).

Here, Petitioner was twice advised of, and stated that he understood, his right

to testify. Pet. App. 15, 17–18. Petitioner also “indicated on the record that he trusted

his lawyers and that he did not need any additional time to speak further with them

before deciding to waive his right to testify.” Pet. App. 15. The Colorado Court of

Appeals rightly found this advisement highly probative of the validity of Petitioner’s

waiver. Pet. App. 17–18. In fact, during trial (and after being advised of his rights by

11

the court), Petitioner said no one had forced him to waive his right to testify. Pet.

App. 8–11.

Years later and after he was convicted, he changed his story and asserted that

his defense counsel had coerced him into waiving his right to testify. During the

postconviction proceedings, Petitioner was afforded an evidentiary hearing where he

had the opportunity to prove he was coerced. Importantly, the Colorado

postconviction court heard testimony and received evidence about counsels’ advice

against testifying. After considering all of the evidence before it, the court found that

Petitioner’s counsel did not “expressly threaten[]” to withdraw if Petitioner testified.

Pet. App. 16–17; see Supp. Tr. 03-07-23, pp.6–7.

Further, while counsel “strongly discouraged” Petitioner from testifying, they

also did so sufficiently before trial that Petitioner was not forced to choose between

representing himself at trial or going forward with attorneys whose theory of defense

would contradict and undermine his testimony. Pet. App. 16–17. Petitioner’s

postconviction characterizations of his attorneys’ actions as coercive was one

potential view of the evidence, but it was not the only one. It was also inconsistent

with what he had previously told the trial court in the context of the Curtis

advisements. Ultimately, both the postconviction court and the Colorado Court of

Appeals rejected Petitioner’s claim that he was coerced. Pet. App. 14–18; 3 Supp. Tr.

03-07-23, pp. 6–7.

3 Because they rejected Petitioner’s factual contentions, those courts also had no reason to consider

whether automatic reversal would be required, as Petitioner seeks here. This too counsels against

granting the Petition. As this Court has recognized, there is value in other courts addressing a question

first before it comes to this Court. See Moody v. NetChoice, LLC, 603 U.S. 707, 726 (2024).

12

Given the facts, Petitioner cannot demonstrate that these courts clearly erred

and that he was coerced into waiving his right to testify. Because his waiver was

valid, there is no need for this Court to address whether a due process violation

grounded in the denial of a defendant’s right to testify is a structural error that

requires automatic reversal. Instead, granting the Petition to address the first

question presented would result in nothing more than the kind of hypothetical

dispute that this Court does not entertain. TransUnion LLC v. Ramirez, 594 U.S.

413, 423 (2021) (noting that the Article III case or controversy requirement keeps

federal courts from becoming nothing more than “roving commission[s]” that “publicly

opine on every legal question”). Petitioner’s first question presented does not merit

this Court’s review.

II.

There is no factual or legal reason to address whether

defendants must show Strickland prejudice if they relinquished

their right to testify as a result of ineffective assistance of

counsel.

Petitioner’s second question asks this Court to conclude that courts should

presume prejudice when a defendant alleges ineffective counsel deprived him of the

right to testify. His question fails to warrant this Court’s review for two reasons.

First, as a factual matter, this case does not present a vehicle to address the

question. Petitioner’s counsel was not deficient, so it is unnecessary to ask whether a

prejudice analysis is appropriate. What’s more, Petitioner did not raise his question

in the lower courts. In fact, he argued that prejudice should be evaluated, just under

a modified test he does not advocate for here.

13

Second, this Court has no reason to address the issue that Petitioner presents

because the law he challenges is settled. The Colorado Court of Appeals’ approach is

consistent with a long and unambiguous line of this Court’s precedents. And, in light

of this precedent, the circuit courts agree that Strickland requires a prejudice

assessment when the right to testify is violated through deficient counsel.

Accordingly, guidance is not needed on this issue.

A.

Petitioner’s case is a poor vehicle to address the

issue that his Petition asserts.

Petitioner asks this Court to determine whether Strickland’s prejudice

analysis applies when counsel’s deficient performance violates a defendant’s right to

testify at trial. But this case does not present the issue: Petitioner’s counsel performed

adequately, and he did not develop the issue in his state appeal. Petitioner’s case is a

poor vehicle for this Court’s review.

1.

Because Petitioner’s Strickland claim fails for

lack of deficient performance, there is no

reason to consider the prejudice question.

Defendants seeking to prove ineffective assistance of counsel must show that

counsel performed deficiently. Strickland, 466 U.S. at 687. “This requires showing

that counsel made errors so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Id.

In this case, Petitioner tried to convince the Colorado courts that his counsel

was deficient because (1) they coerced Petitioner into giving up his right to testify,

and (2) counsel lacked a reason for discouraging the testimony. Pet. at pp. 11–14. He

did not succeed. And for good reason; neither claim holds up under scrutiny.

14

First, as discussed above, supra pp. 12–15, Petitioner’s coercion claim has

consistently been rejected, and with ample record support. See generally Tr.

12-19-22; Supp. Tr. 03-07-23; Pet. App. at pp. 19–20. As such, that claim does not

support Petitioner’s assertion that his counsel were ineffective.

Second, Petitioner now claims his counsel had no valid reason to advise him

against testifying, arguing that their concerns over his criminal history were invalid. 4

Pet. at p. 10. But as the postconviction court and the Colorado Court of Appeals both

noted, Petitioner’s counsel were also concerned that he would not present well to a

jury. Supp. Tr. 03-07-23, p. 7:2–23; Pet. App. at p. 22. Indeed, that was the only

reason the postconviction court cited. Supp. Tr. 03-07-23, p. 7:2–23. Standing alone,

counsel’s professional opinion regarding how a jury could react to their client is a

valid strategic reason to recommend against testifying. See Carter v. Kentucky, 450

U.S. 288, 293, 299–300 (1981).

That may explain why Petitioner previously disavowed any argument

challenging whether his counsel’s reasons for not wanting him to testify were valid.

Expressly criticizing the postconviction court’s analysis, Petitioner stated below:

“With regard to Ramadon’s related ineffective-assistance-of-counsel claim, the People

and the lower court misapprehend Ramadon’s claim. Ramadon did not claim or

argue that counsel’s various reasons for advising Ramadon against

testifying fell below an objective standard of reasonableness.” Reply Brief for

4 Petitioner does have some juvenile criminal history, but it was not discussed at trial. Because of the

limited postconviction record and because Petitioner’s conviction was in juvenile court, Respondents

lack the detail necessary to opine on whether his criminal history would have been admissible evidence

had he taken the stand.

15

Appellant at 8, People v. Ramadon, No. 2023CA653 (Colo. App. Feb. 19, 2025). There

is no need for this Court to grant the Petition so he can attempt to do so now.

Thus, Petitioner’s presupposition that counsel performed deficiently is false.

So, even if this Court wanted to address whether Strickland prejudice should be

presumed when defense counsel violates a defendant’s right to testify, the Court

would never reach the question presented. Therefore, his case is a poor vehicle for

this Court’s review.

2.

Petitioner raises his presumed-prejudice

argument for the first time in this Court.

This Court generally will not take up questions that were not “addressed by,

or properly presented to, the state court that rendered the decision [the Court] ha[s]

been asked to review.” Adams v. Robertson, 520 U.S. 83, 86 (1997). And unlike he

does here, Petitioner did not argue presumptive prejudice in the Colorado Court of

Appeals. Rather, Petitioner said below that he would need to show prejudice on his

ineffective assistance claim. Pet. App. 22–23. Relying on Colorado case law, he

asserted that it would be sufficient for him to prove that he would have testified—not

that his testimony would have changed the outcome of his trial—to demonstrate

prejudice. Pet. App. 22–23. He did not contend, as he does now, that prejudice should

be presumed without any further showing. Compare Pet. App. 23–24, with Pet.

14–15. Indeed, McCoy v. Louisiana, 584 U.S. 414 (2018), on which Petitioner heavily

relies before this Court, did not make an appearance in his briefing before the

Colorado Court of Appeals. In fact, with the exception of Strickland, none of the

16

federal cases that Petitioner cites for this argument were raised to the Colorado Court

of Appeals.

Petitioner gives no reason to explain—much less justify—his change of horses

before this Court. Because this Court has nothing to review below, this Court does

not have the foothold necessary to reach the Petition’s second question.

B.

The law underlying Petitioner’s argument is settled;

there is no circuit split on the prejudice question

because the circuits have followed the path set out

by this Court.

Strickland is clear: “Conflict of interest claims aside, actual ineffectiveness

claims alleging a deficiency in attorney performance are subject to a general

requirement that the defendant affirmatively prove prejudice.” Strickland, 466 U.S.

at 693. And prejudice only exists in this context when “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 694.

As discussed above, the Colorado Court of Appeals had no need to address the

prejudice question because Petitioner’s claim failed for other reasons. But out of an

abundance of caution, the court did so. And its conclusion that prejudice was lacking

flowed unremarkably from this Court’s precedent as applied harmoniously among the

federal circuit courts. So, even if the facts of Petitioner’s case were amenable to

review—which they are not—the settled nature of the law in this area would leave

little reason for this Court to intervene.

17

1.

The Colorado Court of Appeals’ approach is

consistent with this Court’s existing

precedent.

Multiple cases from this Court guide the prejudice issue that Petitioner now

raises. And the clear nature of this Court’s guidance makes Petitioner’s request for

further clarity unnecessary.

In Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000), this Court echoed its earlier

precedent that defendants must show Strickland prejudice unless the “violation of

the right to counsel rendered the proceeding presumptively unreliable or entirely

nonexistent.” The Colorado Court of Appeals rightly recognized this principle. See

Pet. App. 24. Quoting Colorado case law, the court explained that “the prejudice prong

of the Strickland test is modified in cases where counsel’s erroneous performance

leads to a defendant’s deprivation of legal proceedings.” Id. (quoting People v. Robles,

74 P.3d 437, 439 (Colo. App. 2003)). Thus, because Petitioner was not deprived of a

legal proceeding, the Colorado Court of Appeals rightly applied the second prong of

Strickland without modification. See Pet. App. 24–25. 5

5 Petitioner has also never argued that his criminal trial was presumptively unreliable under Flores-

Ortega. Nor could he. The circumstances where this Court has found no showing of prejudice necessary

are a far cry from those present here. See United States v. Cronic, 466 U.S. 648, 659–60 (1984) (holding

no showing of prejudice needed for (1) the complete denial of counsel, (2) denial of counsel at a critical

trial stage, (3) counsel failing entirely to meaningfully test the prosecution’s case, and (4) counsel

provided so little of time to prepare for trial that there is no opportunity to provide effective assistance),

cited with approval by Flores-Ortega, 528 U.S. at 484; see also Smith v. Robbins, 528 U.S. 259, 287

(2000) (noting three categories of ineffective-assistance claims that do not require prejudice: (1) the

denial of counsel, (2) certain “state interference with counsel’s assistance,” and (3) when defense

counsel has an actual conflict of interest that adversely affected their performance), cited with

approval by Flores-Ortega, 528 U.S. at 484. That high bar is necessary to ensure that every ineffective

assistance claim is not treated as structural error, an approach this Court has never endorsed and

would directly conflict with Strickland.

18

This Court’s precedent also clarifies that this analysis holds, whether or not

the underlying deprivation of the right to testify is structural error.

In McCoy, this Court said that the rights to testify at trial and assert innocence

at trial, among others, are personal to the defendant. 584 U.S. at 422. And a court

depriving a defendant of the latter right—as had occurred in McCoy—is structural

error. See id. at 427. The same does not hold true, however, if the main issue is

“counsel’s competence” in advising the defendant to admit guilt, rather than the

“court allow[ing] counsel to usurp control” of the defendant’s personal right. See id.

at 426–27. In such a case, McCoy said that Strickland applied and the defendant

must show prejudice. See id. at 426; see also Weaver v. Massachusetts, 582 U.S. 286,

290, 305 (2017) (holding that a constitutional error that would be structural if brought

on its own still requires a showing of Strickland prejudice if brought as a claim of

ineffective assistance).

This framework leaves little path to be cut in this case. Petitioner alleges that

“counsels’ coercive actions” rendered the waiver of his right to testify involuntary.

Pet. 14. So, even assuming arguendo that structural error applies to his alleged rightto-testify violations, his challenge to counsels’ actions falls squarely under

Strickland’s purview and still requires prejudice. See McCoy, 584 U.S. at 426–27.

True, McCoy dealt with a defendant’s right to maintain innocence at trial

rather than the right to testify at trial. But the two rights are fraternal twins, if not

identical; they are both among the “certain fundamental decisions” left to the

defendant’s “ultimate authority.” Jones v. Barnes, 463 U.S. 745, 751 (1983); accord

19

McCoy, 584 U.S. at 422; Florida v. Nixon, 543 U.S. 175, 187 (2004). This Court has

not suggested that these two similar rights should receive disparate analyses, nor

does logic supply a reason. Therefore, this Court has all but answered the question of

whether Petitioner must show prejudice “[w]hen a defendant is prevented from

testifying due to counsels’ coercive actions”: he must. Pet. 2, 11.

2.

Because this Court’s precedent is clear, there

is no circuit split warranting this Court’s

intervention.

In accord with this Court’s precedent, federal circuit courts have uniformly

applied Strickland to determine whether reversal is warranted when a defendant

claims that ineffective assistance of counsel deprived him of the right to testify. See

Miranda v. Kennedy, 125 F.4th 23, 30 (1st Cir. 2025); Brown v. Artuz, 124 F.3d 73,

79–80 (2d Cir. 1997); Lesko v. Sec’y Pa. Dep’t of Corr., 34 F.4th 211, 236–37 (3d Cir.

2022); United States v. Robinson, 700 F. App’x 178, 180–81 (4th Cir. 2017); United

States v. Mullins, 315 F.3d 449, 455–57 (5th Cir. 2002); Hodge v. Haeberlin, 579 F.3d

627, 639 (6th Cir. 2009); Hartsfield v. Dorethy, 949 F.3d 307, 313 (7th Cir. 2020);

Jackson v. United States, 956 F.3d 1001, 1006–08 (8th Cir. 2020); Sinclair v. United

States, 481 F. App’x 354, 354 (9th Cir. 2012); Becker v. Cline, 699 F. App’x 783, 785–

86 (10th Cir. 2017); Lisbon v. United States, 758 F. App’x 780, 782–84 (11th Cir.

2018); United States v. Tavares, 100 F.3d 995, 998–99 (D.C. Cir. 1996).

For example, in Brown, the Second Circuit reviewed a habeas corpus

proceeding in which the defendant contended that he was deprived of his right to

testify due to his counsel both affirmatively preventing him from testifying and

failing to advise him of his right to testify. 124 F.3d at 79–80. Before applying

20

Strickland, the court noted that, “[b]ecause the burden of ensuring that the defendant

is informed of the nature and existence of the right to testify rests upon defense

counsel, we conclude that this burden is a component of the effective assistance of

counsel.” Id. at 79. And the court explained that “any claim by the defendant that

defense counsel has not discharged this responsibility—either by failing to inform the

defendant of the right to testify or by overriding the defendant’s desire to testify—

must satisfy the two-prong test established in Strickland.” Id. (citing Strickland, 466

U.S. at 668).

In Lesko, the Third Circuit applied Strickland to review a district court’s

determination that, even if the defendant’s counsel was deficient, the defendant was

not prejudiced so reversal was not warranted. 34 F.4th at 235–36. In affirming the

district court, the Third Circuit explained that it did not intend to downplay the

significance of a defendant’s own testimony. Id. at 236. But the court noted its

previous holding that prejudice should not “be presumed or a reversal automatic

when a defendant’s right to testify has been violated,” and explained that a

defendant’s simple desire to tell his own story is insufficient for prejudice. Id. at 237

(citing Palmer v. Hendricks, 592 F.3d 386, 397–98 (3d Cir. 2010)).

Nevertheless, Petitioner argues that tension exists among the federal circuits,

citing two district-court decisions as proof. But he makes discord out of harmony.

Neither case that Petitioner cites grants relief under Strickland without affirmative

proof of prejudice.

21

First, Petitioner points to Williams v. United States, No. 3:15-CV-01301, 2018

WL 4656231 (D. Conn. 2018). He correctly asserts that the Williams court said it was

not aware of authority from this Court holding that the right to testify should be

reviewed for structural error when raised in the context of ineffective assistance of

counsel. Id. at *5. In fact, the Williams court agreed with the defendant that it was

possible such a claim could be reviewed for structural error. Id. (noting that the right

to testify “implicates the client’s autonomy and freedom ‘to make his own choices

about the proper way to protect his own liberty’”) (quoting McCoy, 584 U.S. at 427

(citation modified)).

That said, the Williams court ultimately noted that applicable circuit

precedent “directs courts to consider such claims under the Strickland standard.” Id.

Moreover, the Williams court found that, like Petitioner here, the defendant had

failed to establish any violation of his right to testify in the first place, rendering its

entire discussion of whether violating the right to testify was structural error where

prejudice should be presumed dicta. Id.

Second, Petitioner’s reliance on Carter v. Clark, 667 F. Supp. 3d 163 (W.D. Va.

2023), is similarly unavailing. True, again, the district court there concluded that an

attorney had committed structural error by not telling the defendant that he had a

right to testify. Id. at 201. But the court went on to say that, “because the error was

made by counsel and not the court, and because [the defendant] raise[d] the issue by

means of an ineffective assistance of counsel claim . . . , the court must further

determine whether the error was prejudicial under Strickland.” Id. Accordingly, the

22

Carter court too acted consistently with circuit precedent and examined the

defendant’s allegations to ultimately find prejudice. Id. at 209; see Robinson, 700 F.

App’x at 180–81.

In sum, the case law Petitioner cites shows that the Colorado Court of Appeals

correctly decided this case. There is no open question as to whether a defendant’s

ineffective assistance of counsel claim implicating the right to testify requires a

showing of prejudice under Strickland. It does. Moreover, the circuit courts are

following this Court’s precedents in applying Strickland to claims that ineffective

assistance of counsel deprived the defendant of the right to testify. Accordingly, this

Court should deny the Petition.

CONCLUSION

The Petition for a writ of certiorari should be denied.

23

Respectfully submitted,

PHILIP J. WEISER

Attorney General

SHANNON WELLS

STEVENSON

Solicitor General

RUSSELL D. JOHNSON

Deputy Solicitor General

JESSICA E. ROSS

Assistant Solicitor

General

PATRICK A. WITHERS

Assistant Solicitor

JILLIAN J. PRICE

Deputy Attorney General General

Counsel of Record

KATHERINE WYNN

Assistant Attorney

Office of the Colorado

General Fellow

Attorney General

1300 Broadway

10th Floor

Denver, Colorado 80203

Jillian.Price@coag.gov

(720) 508-6000

May 13, 2026

KIT BEIKMANN

Assistant Attorney

General Fellow

Counsel for Respondent

24