Oregon Supreme Ct - July 30, 2015

by: Sean McGuire and Abassos • July 30, 2015 • no comments

PCR - A Claim Raised, Litigated, and Lost in a Post-Conviction Petition Cannot Be Raised a Second Time, Even in Light of New Case Law.

When determining whether a second petition for post-conviction relief raises an issue that "could reasonably" have been raised in the first petition, and is therefore barred under ORS 138.550, the determining factor is not whether the issue in question has or has not been "definitively resolved" by the courts, but rather whether the issue could have been anticipated and raised. This determination "will vary with the facts and circumstances of each claim." Here, the petitioner, who was a legal permanent resident, claimed his trial counsel provided inadequate assistance by failing to inform him that pleading guilty to an aggravated felony would make him deportable. After his petition was denied, the U.S. Supreme Court held in Padilla v. Kentucky that such a failure constituted a violation of the Sixth Amendment. Petitioner then brought an IAC claim under Padilla and argued that his claim was not barred by the rule against successive petitions because this second claim "could not" have been raised before Padilla.

The Supreme Court rejects petitioner's argument, reasoning that, although Padilla did announce a new rule, the fact of its novelty is inconsequential to the determination at issue in this case. Whether a claim "could reasonably" have been raised earlier does not depend on whether the issue has been definitively resolved, but rather on whether it could have been anticipated, and the announcement of a new rule on the matter does not change that underlying calculus. The Court quotes, and adopts as its own, the position of the Oregon Court of Appeals:

The touchstone is not whether a particular question is settled, but whether it reasonably is to be anticipated so that it can be raised and settled accordingly. The more settled and familiar a constitutional or other principle on which a claim is based, the more likely the claim reasonably should have been anticipated and raised. Conversely, if the constitutional principle is a new one, or if its extension to a particular statute, circumstance, or setting is novel, unprecedented, or surprising, then the more likely the conclusion that the claim reasonably could not have been raised.

Long v. Armenakis, 166 Or.App. 94, 101 (2000) (emphasis in original; citations omitted). Ultimately, the Supreme Court finds it does not need to decide whether petitioner "reasonably could have raised the constitutional claims in his first post-conviction petition that he now raises in his second post-conviction petition. The fact is that, in this case, he did. Having raised those grounds for relief in his first post-conviction petition, he cannot claim that he could not reasonably have raised them."

Affirmed. Verduzco v. State of Oregon, 357 Or. 553 (2015).