Eklof v. Steward, 360 Or. 717

Background

Eklof was convicted of aggravated murder in 1995 and filed an initial post-conviction petition in 1999 (which did not assert a Brady claim) that was dismissed.
In 2012 Eklof received a thumb drive from counsel for co-defendant Tiner containing prosecution files, police reports, and David Tiner’s criminal-history records that she alleges the state had withheld at trial.
Eklof filed a successive post-conviction petition alleging a Brady violation (failure to disclose impeachment/exculpatory materials) and that the Brady claim could not reasonably have been raised earlier because her attorneys did not know of the materials until 2012.
The state moved for summary judgment, arguing Eklof had not pleaded facts showing the claim fell within the escape clauses of ORS 138.510(3) and ORS 138.550(3) (timeliness/successive-petition bars) and suggested counsel could have discovered the Tiner file earlier.
The trial court granted summary judgment for the state. The Court of Appeals affirmed on the alternative ground that Eklof failed to produce evidence about what she and her 1999 post-conviction lawyer knew in 1999.
The Oregon Supreme Court reversed, holding the trial court erred because the state’s motion challenged only the sufficiency of Eklof’s pleadings (not factual proof), and factual questions about who knew what and when precluded summary judgment.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Eklof’s successive/late Brady petition falls within the escape clauses of ORS 138.510(3) and ORS 138.550(3)	Eklof: The withheld Brady materials were unknown to her and her counsel until 2012; she pleaded facts showing the claim could not reasonably have been raised earlier.	Steward: Eklof failed to plead ultimate facts showing she reasonably could not have discovered the materials earlier; counsel could have subpoenaed the Tiner file in 1999.	Reversed: factual disputes about who knew what and where materials were located precluded summary judgment; the state challenged pleading sufficiency only.
Proper scope of summary-judgment inquiry under ORCP 47 C	Eklof: Court must view pleadings and submitted evidence in non-moving party’s favor; state’s motion raised only pleading sufficiency.	Steward: Argued Eklof had burden to produce evidence showing the escape clause applied.	Held: Under Two Two and ORCP 47 C, movant must raise the issues it seeks to decide; Eklof was not required to negate defenses not raised in the motion.
Whether a petitioner must submit affidavits from prior counsel or herself at summary judgment to show lack of knowledge in earlier proceedings	Eklof: Allegations that no counsel had the materials until 2012 suffice when the state’s motion challenged pleading only.	Steward/Ct. of Appeals: Eklof needed affidavits/evidence about what she and 1999 counsel knew to survive summary judgment.	Held: Court of Appeals erred; the state did not raise that issue in its motion so Eklof was not required to produce such evidence at that stage.
Whether Brady-based timing issues are generally resolvable as a matter of law	Eklof: Often fact-specific because resolution turns on who knew what and when.	Steward: In some cases, reasonable diligence/legal expectations can be resolved on summary judgment.	Held: Some timing questions may be legal, but Brady cases often present factual questions (location of files, who had knowledge) that defeat summary judgment here.

Key Cases Cited

Brady v. Maryland, 373 U.S. 83 (constitutional due-process rule forbidding prosecution’s suppression of material favorable evidence)
Strickler v. Greene, 527 U.S. 263 (Brady encompasses impeachment evidence)
Two Two v. Fujitec America, Inc., 355 Or. 319 (party opposing summary judgment must produce evidence only on issues raised in the motion)
Verduzco v. State, 357 Or. 553 (petitioner bears burden to show omitted grounds fall within escape clauses)
Palmer v. State, 318 Or. 352 (exceptions to raising claims earlier include excusably unaware counsel)
Cain v. Gladden, 247 Or. 462 (petitioner must allege facts showing grounds could not reasonably have been raised earlier)
North v. Cupp, 254 Or. 451 (excusable unawareness of facts can excuse failure to raise claim earlier)
State v. Longo, 341 Or. 580 (analysis of Brady claims in direct appeal context)
Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or. 634 (appellate courts may affirm on alternative basis only if record would have developed similarly below)
United States v. Agurs, 427 U.S. 97 (Brady applies to information known to prosecution but unknown to defense)
Ogle v. Nooth, 355 Or. 570 (procedural requirements for supporting materials in post-conviction petitions)
Petock v. Asante, 351 Or. 408 (appellate review of alternative grounds for summary judgment)