Colorado’s second-highest court agreed earlier this month that a Boulder County judge mistakenly rejected a man’s petition for postconviction relief when she should have looked into his allegation that his defense lawyer represented him despite being unauthorized to practice law.

David Keith McCoy pleaded guilty in 2012 to organized crime and drug possession charges and he received 35 years in prison. McCoy’s sister subsequently hired attorney Thomas E. Henry to seek postconviction relief for McCoy. Henry filed a petition in January 2017, alleging McCoy’s prior counsel provided constitutionally ineffective assistance in the plea process.

Chief Judge Ingrid S. Bakke subsequently rejected the petition. She noted defendants need to allege an attorney’s performance was both deficient and affected the outcome of the case. But Henry’s petition “does not even attempt” to allege a prejudicial effect, so it “would be a waste of time” to evaluate McCoy’s claims, Bakke wrote.

In 2021, McCoy, now representing himself, filed another petition alleging Henry himself provided ineffective assistance during the first postconviction proceeding. McCoy now claimed Henry was not actually authorized to practice law at the time he represented McCoy, given that his attorney registration status was listed as “inactive.”

“By engaging in the unauthorized practice of law, Henry has deprived McCoy of his Sixth Amendment right to counsel,” McCoy argued, alleging Henry never told him about his inactive status.

Then-District Court Judge Norma A. Sierra similarly rejected McCoy’s second postconviction motion. She noted she had looked up Henry’s attorney registration in Colorado. Although there were multiple instances of discipline on Henry’s record, his latest sanction of probation in lieu of suspension appeared to expire in March 2016, before he submitted the petition on behalf of McCoy.

“As Mr. Henry’s license was active during the time he represented Mr. McCoy, no further review of this issue will be undertaken,” Sierra wrote in denying McCoy’s motion.

Not so fast, responded a three-judge panel for the Court of Appeals.

Henry’s listing on Colorado’s attorney registration database advertises his license as “disability inactive.” Nebraska, which is the location of Henry’s business address, also lists his registration as disability inactive. Neither website mentions when Henry’s status changed to inactive.

“McCoy asserts that the district court misunderstood his argument by focusing on Henry’s disciplinary cases,” wrote Judge Matthew D. Grove in the appellate panel’s July 3 opinion. The publicly available data did not refute — and potentially corroborated — Henry’s claim that his defense lawyer was practicing without a license.

That was “exactly why McCoy’s claim should not have been summarily dismissed,” Grove added. “Because McCoy advanced a claim that he received ineffective assistance of counsel based on his attorney’s lack of licensure, the district court should have referred it to the public defender for further investigation.”

The Court of Appeals reinstated McCoy’s petition.

The case is People v. McCoy.