Verduzco v. State of Oregon
355 P.3d 902
| Or. | 2015Background
- Petitioner (Mexican national, former lawful permanent resident) pleaded guilty in 2004 to state distribution of a controlled substance; plea form warned conviction "may" result in deportation. He received probation and did not appeal.
- ICE did not remove him immediately; after a trip to Mexico in 2005, he was detained on reentry and ultimately removed in 2006.
- In 2006 (within two years), petitioner filed a post-conviction petition alleging trial counsel provided ineffective assistance by failing to advise that the conviction was an "aggravated felony" making deportation virtually certain; the court denied relief and Oregon appellate review was denied in 2008.
- The U.S. Supreme Court decided Padilla v. Kentucky (2010), holding counsel must give correct advice about clear deportation consequences; petitioner filed a second post-conviction petition in 2011 relying on Padilla.
- The post-conviction court denied the second petition as untimely and successive under ORS 138.510(3) and ORS 138.550(3); the Court of Appeals summarily affirmed. The Oregon Supreme Court affirmed, holding the successive-petition bar (ORS 138.550(3)) precluded the second petition because petitioner reasonably could — and in fact did — raise the same claims in his first petition.
Issues
| Issue | Petitioner (Gonzalez Verduzco) | State (Oregon) | Held |
|---|---|---|---|
| Whether Padilla-created Sixth Amendment claim could justify a successive/untimely state post-conviction petition | Padilla is a change in law that made his claim viable only after 2010, so the second petition falls within the statutory escape clauses | Petitioner reasonably could have raised the same claims earlier; statutory bars therefore apply | ORS 138.550(3) bars the second petition because petitioner could reasonably have raised (and did raise) the same issues in his first petition |
| Whether Oregon should adopt federal retroactivity rules or apply Padilla retroactively in state post-conviction proceedings under Danforth | Second petition relies on Padilla; petitioner urges state application of Padilla retroactively in post-conviction proceedings | State argues federal retroactivity analysis (Chaidez/Teague) precludes retroactive application; but Danforth allows states discretion | Court declined to adopt a new retroactivity rule here because the state statutory successive-petition bar resolved the case; did not decide retroactivity standard for Oregon |
| Whether petitioner’s plea was involuntary/unknowing because the trial court didn’t advise of certain deportation consequences | Counsel and plea form used "may" language; petitioner asserts plea was not knowing without clearer immigration advice | State points to counsel’s warning and plea form and prior litigation rejecting federal claim in first petition | Court did not reach merits; procedural bar applied because claim was litigated earlier |
| Burden and meaning of ORS 138.550(3) escape clause: when is a ground "could not reasonably have been raised" earlier? | Argues Padilla created a new rule that he could not reasonably have asserted earlier | State argues escape clause requires that if claim reasonably could have been raised earlier (even if unsettled), failure to do so bars later litigating it | Court interprets "could not reasonably have been raised" contextually: asks whether petitioner reasonably could have anticipated and raised the claim; here petitioner had in fact raised the claim earlier, so escape clause does not apply |
Key Cases Cited
- Danforth v. Minnesota, 552 U.S. 264 (states may apply new federal constitutional rules retroactively in state post-conviction proceedings)
- Padilla v. Kentucky, 559 U.S. 356 (Sixth Amendment duty to advise about clear deportation consequences of plea)
- Chaidez v. United States, 568 U.S. 342 (Padilla announced a new rule that does not apply retroactively on federal habeas)
- Teague v. Lane, 489 U.S. 288 (federal retroactivity framework for new rules)
- North v. Cupp, 254 Or. 451 (issue reasonably could have been raised on direct appeal—example of escape-clause analysis)
- Haynes v. Cupp, 253 Or. 566 (examining when changes in law allow late assertion of claims under escape clause)
- Johnson v. Premo, 355 Or. 866 (discussing claim-preclusion principles codified in ORS 138.550(3))