Cunio v. Premo, 395 P.3d 25

Background

In 1994 petitioner (aged 16) participated in kidnapping, robbery, and the killings of two victims; he was waived to adult court, convicted (stipulated facts trial) of two counts each of aggravated murder, first‑degree kidnapping, and first‑degree robbery, and sentenced to two consecutive indeterminate life terms plus 280 months.
Petitioner appealed; judgment affirmed. He filed multiple post‑conviction relief (PCR) petitions in 1997 and 2005 challenging the legality/excessiveness of his sentence (including under ORS 161.620 and Eighth/Fourteenth Amendment grounds); those petitions were denied and appeals were unsuccessful.
In 2012 the U.S. Supreme Court decided Miller v. Alabama (mandatory LWOP for juveniles unconstitutional). The Board set petitioner’s projected release date on the aggravated‑murder terms in 2012.
In 2013 petitioner filed a successive PCR petition asserting Miller‑based Eighth and state constitutional claims, an ORS 161.620 statutory claim, and ineffective assistance for failure to object to the sentence; he argued the claims could not reasonably have been raised earlier because Miller and the Board’s release‑date decision post‑dated prior petitions.
The superintendent moved for summary judgment arguing the petition was untimely and barred as successive under ORS 138.510(3) and ORS 138.550(3); the post‑conviction court granted summary judgment for the superintendent and dismissed with prejudice.
On appeal the court, following its reasoning in Kinkel v. Persson and Verduzco v. State, held that petitioner had raised the same statutory and constitutional sentencing challenges in earlier proceedings and thus the statutory prohibition on successive petitions barred his current claims; the dismissal was affirmed.

Issues

Issue	Cunio's Argument	State's Argument	Held
Whether Miller’s emergence and the Board’s 2012 release‑date order place petitioner’s Miller‑based claims within the statutory escape clauses for late/successive petitions (ORS 138.510(3), ORS 138.550(3)).	Miller was new law and the Board’s 2012 order established his effective term, so he could not reasonably have raised Miller claims earlier.	Petitioner had previously challenged the sentence; the claims could have been (and were) raised earlier, so escape clauses do not apply.	Held for state: escape clauses do not apply because petitioner had earlier raised substantially the same statutory and constitutional sentencing claims.
Whether ORS 161.620 barred imposition of life without parole and thus rendered the sentence illegal.	Petitioner contended his 1994 sentence amounted to a de facto life without release in violation of ORS 161.620.	State maintained statutory challenge was previously litigated and is barred as successive.	Held for state: statutory challenge barred as previously raised.
Whether petitioner’s Eighth Amendment / Article I, §16 and §15 claims (cruel and unusual / disproportionate / denial of meaningful opportunity for rehabilitation) are timely and cognizable in PCR.	Petitioner argued Miller supports that his juvenile life‑type sentence is unconstitutional and thus he could not have reasonably raised the claim pre‑Miller.	State argued petitioner had already raised Eighth Amendment and related state constitutional challenges in prior petitions, so claims are successive/time‑barred.	Held for state: constitutional claims were raised earlier and are barred from successive petition.
Whether the Board’s parole‑setting order can be attacked in a PCR petition to trigger escape clauses.	Petitioner argued the Board order established the length of his term and thus triggered permissive review under the escape clauses.	State argued board decisions are not challengeable in PCR and the underlying sentence remained unchanged; the Board order does not create new grounds that could not reasonably have been raised earlier.	Held for state: Board order does not bring claims within escape clauses; challenges to the Board order are not cognizable in PCR.

Key Cases Cited

Kinkel v. Persson, 276 Or. App. 427 (Or. Ct. App.) (statutory bar on successive PCR petitions prevents relitigation of claims earlier raised)
Verduzco v. State of Oregon, 357 Or. 553 (Or.) (interpretation of ORS 138.550’s bar on successive petitions and the escape clause)
Miller v. Alabama, 567 U.S. 460 (2012) (Eighth Amendment prohibits mandatory life without parole for juvenile offenders)
Montgomery v. Louisiana, 136 S. Ct. 718 (2016) (Miller announced a substantive rule retroactive on collateral review)