359 P.3d 570
Or. Ct. App.2015Background
- Petitioner filed a second post-conviction relief (PCR) petition in 2012 challenging her 1995 aggravated murder conviction; a prior PCR was denied in 2001.
- Three claims in the 2012 petition: (1) Brady violation — prosecution withheld impeachment/exculpatory material for witnesses David Tiner and John Distabile; (2) trial counsel ineffective for failing to object to the "natural and probable consequences" jury instruction later invalidated in State v. Lopez-Minjarez; (3) first PCR counsel ineffective for failing to raise the Lopez-Minjarez issue in 1999.
- State moved for summary judgment, arguing ORS 138.550(3) bars the new claims unless petitioner shows they "could not reasonably have been raised" earlier, and that the alleged ineffectiveness of first PCR counsel is not a cognizable PCR ground.
- Trial court granted summary judgment for the state; petitioner appealed. The court of appeals affirms.
- Court held (a) petitioner did not challenge dismissal of the first-PCR-counsel-ineffective claim on appeal, so that ruling stands; (b) Lopez-Minjarez-based trial-ineffectiveness claim fails as a matter of law under this court's precedent (Hale v. Belleque); (c) Brady claim barred by ORS 138.550(3) because petitioner failed to submit evidence showing the facts underlying the Brady claim "could not reasonably have been discovered" before her first PCR.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether first-PCR-counsel-ineffective claim is cognizable and survives summary judgment | That first PCR counsel was ineffective for not raising Lopez-Minjarez | State: claim not cognizable / summary judgment proper | Not contested on appeal; grant affirmed |
| Whether trial counsel was ineffective for not objecting to the natural-and-probable-consequences instruction | Failure to object was ineffective because instruction later invalidated in Lopez-Minjarez | Objecting earlier was not required because instruction reflected prevailing law at trial | Denied — Hale controls; failure to object was reasonable then |
| Whether prosecution violated Brady by withholding impeachment materials for Tiner and Distabile | Withheld impeachment evidence material to guilt/penalty; thus Brady violation | Claim barred by ORS 138.550(3) unless petitioner shows facts could not reasonably have been discovered earlier | Denied — petitioner failed to meet burden to invoke escape clause; no admissible evidence about what she or prior counsel knew in 1999 |
| Whether petitioner met burden at summary judgment to show new facts were undiscoverable earlier | Petitioner: affidavits and materials show evidence not disclosed until 2012 | State: petitioner must produce admissible evidence showing knowledge of petitioner/prior counsel in 1999; she did not | Denied — significant evidentiary gap; petitioner bore burden and failed to produce affidavits from herself or 1999 PCR counsel |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (suppression of favorable evidence violates due process)
- Strickler v. Greene, 527 U.S. 263 (materiality standard for Brady)
- State v. Lopez-Minjarez, 350 Or. 576 (instruction invalidated)
- Hale v. Belleque, 255 Or. App. 653 (failure to object to instruction was reasonable pre-Lopez-Minjarez)
- Verduzco v. State of Oregon, 357 Or. 553 (interpretation of ORS 138.550(3) escape clause)
- Cain v. Gladden, 247 Or. 462 (requirements to invoke escape clause based on undiscovered facts)
- Wade v. Brockamp, 268 Or. App. 373 (distinguishing cases where instruction objection could be required)
- Banks v. Dretke, 540 U.S. 668 (state representations about Brady disclosures can excuse later failure to raise claim)