Clark v. Nooth, 395 P.3d 32

Background

Petitioner was convicted by a jury of two counts of first-degree rape; he denied sexual contact. DNA and medical evidence supported the victim’s account; petitioner claimed the victim was high and fabricating.
During trial petitioner wore a hard-plastic leg brace under his pants; no evidentiary hearing or judicial findings justified the restraint.
In post-conviction proceedings petitioner alleged (inter alia) that trial counsel was impaired by drug use and rendered ineffective in multiple respects, including failing to object to the leg brace.
The post-conviction court denied all claims and refused petitioner’s request to subpoena the victim for post-conviction testimony.
On appeal this court: (1) held the stand-alone claim that the leg brace violated rights is procedurally barred on post-conviction review; (2) reversed and remanded the ineffective-assistance claim based on counsel’s failure to object to the restraint because the post-conviction court applied too-narrow a prejudice test; and (3) affirmed denial of the victim subpoena, applying ORS 138.625’s materiality/showing standard.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a stand‑alone challenge to being restrained at trial without findings is cognizable in post‑conviction relief	The leg brace was imposed without required findings and thus independently violated state and federal rights	The claim could and should have been raised at trial/direct appeal and is procedurally barred under ORS 138.550(2)	Procedurally barred; affirm denial of stand‑alone claim
Whether counsel’s failure to object to leg brace constituted ineffective assistance	Counsel should have objected; failure to object was deficient and may have caused prejudice beyond jury awareness	State argued either no prejudice or that counsel might have reasonably foregone objection	Reversed and remanded on this claim: court erred by equating prejudice only with jury awareness; trial court must reconsider prejudice and perform necessary factfinding
Standard and showing required to subpoena a victim under ORS 138.625	Petitioner sought subpoena based on a post‑trial recantation affidavit and possible leads for impeachment/investigation	State argued denial was proper exercise of discretion; information was not shown to be material/favorable to the post‑conviction claims	Affirmed denial: petitioner failed to make the objective showing that the victim has information "material" (i.e., likely to affect the post‑conviction determination) and favorable to his claims
Whether failure to impeach victim with certain felony convictions prejudiced petitioner	Petitioner argued counsel should have used convictions to impeach victim	State and court found the convictions would not have changed outcome given evidence of victim’s conduct	Affirmed: no prejudice shown (court rejected this assignment without extended discussion)

Key Cases Cited

State v. Washington, 355 Or. 612, 330 P.3d 596 (recognizes right to appear free of physical restraints; requires findings before restraints imposed)
Sproule v. Coursey, 276 Or. App. 417, 367 P.3d 946 (describes prejudice types from hidden restraints; distinguishes visible vs hidden restraints)
State v. Wall, 252 Or. App. 435, 287 P.3d 1250 (discusses dignity and fair‑trial interests implicated by restraints)
Montez v. Czerniak, 355 Or. 1, 322 P.3d 487 (Oregon standard for right to adequate assistance of counsel)
Strickland v. Washington, 466 U.S. 668 (Sixth Amendment ineffective assistance standard)
State v. Bittner, 235 Or. App. 554, 234 P.3d 1012 (explains how to make a plausible showing that a missing witness’s testimony would be material and favorable)
State v. Bray, 281 Or. App. 584, 383 P.3d 883 (discusses materiality standard—reasonable probability of different result)
Valenzuela‑Bernal v. United States, 458 U.S. 858 (a missing‑witness framework referenced for required avowals and plausibility showing)