Colorado’s second-highest court last week ordered an El Paso County judge to hold a hearing on an incarcerated man’s claim that he received constitutionally-ineffective assistance of counsel, based on his trial lawyer’s decision not to call multiple witnesses who would have corroborated the defendant’s alibi.

Antonio Jose Vargas Jr. is serving a 96-year sentence for kidnapping and an additional sentence of 48 years to life for sexual assault. A jury found Vargas guilty in 2009 and the Court of Appeals upheld his convictions in 2013.

Now, Vargas is asserting his trial lawyer was deficient for not presenting four witnesses: Vargas’ son, mother, family friend and employee. Two of them would have testified Vargas was not with the victim the night of the crime, and the other two would have explained the victim did not appear injured or rattled the morning after the crime.

Such testimony, “if found credible, would seem to corroborate Vargas’ hotly disputed alibi,” wrote Judge Craig R. Welling in the April 13 opinion of a three-judge appellate panel.

According to the evidence, Vargas abducted the victim, bound her hands and mouth, and took her to his property, where he sexually assaulted her. Vargas maintained he did have consensual sex with the victim two days earlier, but he was not with her the night of the assault. He offered a theory for why the victim would fabricate allegations against him.

In 2015, Vargas filed a petition for postconviction relief, claiming specifically his trial lawyer’s performance dipped below the constitutionally-required level of effectiveness.

District Court Judge Gregory R. Werner held a hearing on one of Vargas’ claims and found Vargas to not be credible. He then denied all of Vargas’ claims for relief, including Vargas’ contention that he was actually innocent.

The Court of Appeals panel agreed with Werner’s handling of the case in part. Welling acknowledged in the opinion that it is unclear whether Colorado courts can act upon a claim of innocence that is untethered to a constitutional violation. But if an innocence claim exists, it has an “extraordinarily high threshold” that Vargas had not satisfied in this instance, Welling added.

The panel then parted ways with Werner on Vargas’ allegation that his trial lawyer neglected to call four witnesses who would have cast doubt on the victim’s story.

Although one of Vargas’ sons did testify that Vargas was at home the night of the kidnapping and sexual assault, Vargas’ other son and a family friend would have also corroborated that alibi. At the time of trial, Vargas’ non-testifying son was allegedly “on the run” and the prosecution was “unable to locate” the friend. However, there were no further details and no clear understanding of whether both witnesses were unable to testify.

“Because the record regarding (the friend) doesn’t establish why defense counsel didn’t call him to testify … we remand this issue for an evidentiary hearing,” wrote Welling, reaching the same conclusion for Vargas’ son.

As for Vargas’ mother and employee, both had breakfast with Vargas and the victim the morning after the crime. They now say they would have testified the victim did not appear injured and acted normally.

The prosecution argued to the Court of Appeals that the victim testified she “pretended to be fine,” and additional witnesses would not have undermined her account.

“In our review of the transcript, however, there is no instance where the victim says she ‘pretended’ to be fine while eating,” Welling countered. “While it may be true that some parts of the testimony by Vargas’ mother and his employee would have been consistent with the victim’s trial testimony, the proffered testimony, if credible, would seem to corroborate Vargas’ theory of defense.”

The appellate panel returned the case to Werner for a hearing on whether Vargas’ trial lawyer was constitutionally ineffective for failing to call those witnesses. Under U.S. Supreme Court precedent, Vargas must show the attorney’s performance was below an “objective standard of reasonableness” and, in the absence of the attorney’s errors, the outcome likely would have been different.

The case is People v. Vargas.