373 P.3d 1167
Marion Cty. Cir. Ct., O.R.2016Background
- Petitioner convicted (1992) of two counts aggravated murder (one predicated on rape), one count intentional murder, and two counts first-degree rape; sentenced to death. He confessed to killing but maintained sex was consensual.
- Defense discovered victim had prior arrests and possible prostitution history in Canada; defense investigator interviewed witnesses and obtained some Canadian information pretrial; prosecutor provided discovery that referenced victim’s background.
- Petitioner filed two prior post-conviction petitions (1995 and 2003) and a federal habeas action; the 1995 post-conviction proceeding addressed defense counsel’s failure to present the victim’s prostitution/sexual history and denied relief.
- In 2008 petitioner filed a third post-conviction petition alleging Brady violations (undisclosed evidence about victim’s violence, prostitution arrests, suicidal behavior), actual innocence of rape/aggravated murder, and ineffective assistance of trial and appellate counsel; he relied in part on a 2005 interview of Jennifer Caros.
- The post-conviction court found the claims were successive and procedurally barred under ORS 138.550(3) because the facts supporting the Brady claim were known or reasonably discoverable earlier; it also found no Brady violation or actual innocence even on the merits.
- The Court of Appeals affirmed, holding petitioner could reasonably have raised the Brady-based claims in his first post-conviction petition and rejecting arguments that Martinez or later interviews excused the procedural bar.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Successive-petition bar (ORS 138.550(3)) | Petitioner: third petition should be allowed under escape clause because key facts (Caros interview) discovered in 2005 were not reasonably discoverable earlier | State: facts supporting Brady claim were known or reasonably discoverable pre-2005; petition is successive and barred | Court: Affirmed dismissal — petitioner could have reasonably raised the claims earlier; escape clause not met |
| Brady violation (suppression of exculpatory evidence) | Petitioner: prosecutor failed to disclose material evidence about victim’s propensity for violence, prostitution, and suicide, and made misleading arguments | State: discovery and defense investigation revealed victim’s background; no evidence prosecutor withheld material information or made false arguments | Court: Did not reach merits in detail because claim barred; post-conviction court found no proven withholding and no prejudicial Brady violation |
| Actual innocence of rape/aggravated murder | Petitioner: newly discovered evidence shows he is actually innocent of rape (thus aggravated murder) per Schlup gateway | State: evidence presented did not establish actual innocence or render conviction unreliable | Court: Actual innocence claim not cognizable on post-conviction review; petitioner failed to prove actual innocence |
| Ineffective assistance of prior post-conviction counsel as excuse | Petitioner: prior post-conviction counsel’s inadequacy excuses failure to raise claims earlier | State: argument unpreserved and, in any event, adequacy of prior post-conviction counsel cannot be relitigated in later petition | Court: Rejected; Martinez inapplicable to state successive-petition escape clause; claim cannot overcome ORS 138.550(3) bar |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (due process requires disclosure of material exculpatory evidence)
- Crawford v. Washington, 541 U.S. 36 (Confrontation Clause limits admissibility of testimonial out-of-court statements)
- Ring v. Arizona, 536 U.S. 584 (jury must find aggravating facts supporting death penalty)
- Schlup v. Delo, 513 U.S. 298 (actual innocence gateway to federal review)
- Martinez v. Ryan, 566 U.S. 1 (ineffective-assistance-of-counsel in initial-review collateral proceeding may excuse procedural default in federal habeas)
- Coleman v. Thompson, 501 U.S. 722 (cause-and-prejudice standard for excusing procedural default)
- Verduzco v. State of Oregon, 357 Or. 553 (escape-clause burden: petitioner must show facts could not reasonably have been discovered sooner)
- Eklof v. Steward, 273 Or. App. 789 (petitioner must show it was reasonable not to have discovered facts earlier)
- Kinkel v. Persson, 276 Or. App. 427 (petitioner must raise any grounds that could reasonably have been raised earlier)
- Palmer v. State of Oregon, 318 Or. 352 (successive petition limitations under ORS 138.550)