Montez v. Czerniak, 322 P.3d 487

Background

In 1987 petitioner committed a brutal sexual assault, murder, and arson; convicted in 1988 of aggravated murder and related charges. After direct review the Oregon Supreme Court remanded for a penalty-phase retrial; petitioner was sentenced to death after the 1992 retrial.
Petitioner filed a long-running post-conviction petition alleging ineffective assistance of counsel during the 1992 penalty-phase retrial. The post-conviction court denied relief; the Oregon Court of Appeals affirmed; this appeal follows.
Defense presented an extensive mitigation case (childhood abuse/neglect, PTSD, substance abuse, prison adjustment, expert testimony that petitioner was treatable). Counsel retained multiple experts (clinical psychologist, neuropsychologists, addiction specialist) and an investigator.
Petitioner alleged counsel unreasonably omitted mitigation (sexual abuse, brain injury), failed to secure/record a mitigation specialist, mishandled disclosure of a prior death sentence, misused inmate witnesses, failed to present actuarial evidence on future dangerousness, and erred re: jury instructions and polling.
The post-conviction court found counsel investigated mitigation, used experts, and made reasoned tactical choices; the Court of Appeals and Oregon Supreme Court concluded petitioner failed to show counsel’s performance fell below objective standards or that omitted matters undermined confidence in the outcome.

Issues

Issue	Montez's Argument	State's Argument	Held
Omitted sexual-abuse mitigation	Counsel failed to investigate and present evidence that petitioner was sexually abused by his mother	Counsel investigated childhood trauma extensively, provided available evidence to experts, and petitioner did not disclose abuse to experts	Counsel not ineffective; mitigation case was comprehensive and investigators/experts were properly used
Failure to detect/present brain-injury evidence	Counsel failed to pursue full neuropsychological testing and failed to give experts petitioner’s neurological history	Counsel retained neuropsychologists, ran sensitive screening tests, and experts found no evidence of organic brain damage	Counsel not ineffective; experts reasonably concluded no brain injury and counsel reasonably relied on them
Denial/not preserving record re: mitigation specialist	Counsel failed to make record or press denial of appointment of mitigation specialist	Counsel moved for appointment, supplemented affidavits, and developed mitigation with existing experts/investigator	Counsel not ineffective; failure to obtain specialist did not show unreasonable performance
Disclosure of prior death sentence	Counsel unreasonably revealed petitioner had been sentenced to death and advised waiver	Disclosure was strategic, made with petitioner’s consent to explain prison context and anticipated evidence; limiting instruction given	Counsel’s strategy reasonable and waived by petitioner; not ineffective
Use of inmate witnesses and prison testimony	Counsel failed to adequately prepare inmate witnesses, and failed to object to prejudicial testimony	Inmate witnesses were selected by petitioner to humanize him; counsel made tactical objections and weighed risks	Counsel’s choices were tactical and within reasonable professional judgment
Failure to use actuarial evidence on future dangerousness	Counsel should have used actuarial base-rate studies to rebut state evidence of dangerousness	Such actuarial testimony and practice were not reliably available or widely used in 1992; counsel presented clinical/prison-adjustment evidence	Counsel not ineffective; actuarial approach not established practice in 1992 and experts presented available evidence
Jury instruction, unanimity, and jury poll issues	Counsel failed to emphasize that one juror’s "no" yields life, failed to secure clarifying instruction or oral poll	Court’s instructions correctly explained unanimity for "yes" and that lack of unanimity requires "no"; polling decision was within court discretion	Counsel not ineffective; instructions read as a whole accurate; no basis to probe jury deliberations

Key Cases Cited

State v. Montez, 309 Or. 564 (Ore. 1990) (Montez I) (direct review and remand regarding jury instruction on mitigation)
State v. Montez, 324 Or. 343 (Ore. 1996) (Montez II) (penalty-phase retrial instructions and affirmance)
State v. Wagner, 309 Or. 5 (Ore. 1990) (mitigation must allow jury a reasoned moral response on death penalty)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (objective-reasonableness standard for counsel performance)
Wiggins v. Smith, 539 U.S. 510 (U.S. 2003) (inadequate mitigation investigation where counsel abandoned background inquiry)
Rompilla v. Beard, 545 U.S. 374 (U.S. 2005) (counsel must examine readily available court records revealing mitigation leads)
Sears v. Upton, 561 U.S. 945 (U.S. 2010) (remand on ineffective-mitigation claim)
Porter v. McCollum, 558 U.S. 30 (U.S. 2009) (prejudice from failure to present strong mitigation evidence)
Harrington v. Richter, 562 U.S. 86 (U.S. 2011) (highly deferential review; no post hoc rationalization of counsel)
Ake v. Oklahoma, 470 U.S. 68 (U.S. 1985) (due process may require appointed psychiatric expert when essential to defense)
Krummacher v. Gierloff, 290 Or. 867 (Ore. 1980) (counsel must exercise reasonable professional skill; tactical choices protected)
Lichau v. Baldwin, 333 Or. 350 (Ore. 2002) (two-step Oregon test for inadequate assistance under state constitution)
State v. Davis, 345 Or. 551 (Ore. 2008) (equating "adequate" assistance under Oregon Constitution with "effective" assistance federally)