Walton v. Myrick, 459 P.3d 250

Walton was convicted of aggravated murder and, after appeals and remands, received consecutive life sentences; he previously pursued post-conviction relief (PCR) and federal habeas relief, obtaining a new direct appeal in 2009.
In 2015 Walton filed a successive PCR petition raising multiple ineffective-assistance and prosecutorial-misconduct claims; the superintendent moved for summary judgment on all but Walton’s ninth claim (ineffective assistance on the 2009 appeal).
Walton contended he should be allowed to raise those claims in a successive petition because, during the initial PCR proceeding, he was represented by counsel and his pro se attempt to file supplemental claims was rejected by the court.
At trial Walton sought to amend the ninth claim by interlineation to allege appellate counsel failed to "federalize" a new-trial claim on appeal; the court denied the untimely amendment and rejected the ninth claim on the merits.
The PCR court granted summary judgment to the superintendent on the other claims as untimely and successive; Walton appealed, arguing the statutory "escape clause" permitted his successive petition because he had attempted pro se filings in the original proceeding.

Issue	Walton's Argument	Myrick's Argument	Held
Whether Walton could raise claims in a successive PCR petition that he tried to file pro se but could not get accepted during the original PCR where he was represented by counsel	Walton: The ORS 138.550(3) "escape clause" allows a successive petition because he attempted to raise the same claims pro se in the original proceeding but the court refused to accept them	Myrick: ORS 138.550(3) bars successive claims that could have been raised in the original PCR; a represented petitioner cannot use failed hybrid filings to circumvent the procedural bar	Court: Bogle controls — a represented petitioner must choose counsel or proceed pro se and cannot pursue hybrid filings; failed pro se attempts while represented do not permit a successive petition
Whether the PCR court erred in denying Walton's untimely amendment by interlineation to the ninth claim	Walton: The amendment was minor and clarified counsel failed to federalize the claim	Myrick: The amendment was untimely and would inject a new theory at trial	Court: Denial of the untimely interlineation was not erroneous (affirmed)

Bogle v. State of Oregon, 363 Or 455 (clarifies that a PCR petitioner must choose counsel or pro se and disallows hybrid filings; failed pro se attempts while represented do not justify successive petitions)
Church v. Gladden, 244 Or 308 (historical basis for requiring petitioners to notify the court if counsel refuses petitioner’s requests; interpreted in Bogle)
White v. Premo, 365 Or 1 (describes ORS 138.550(3) escape clause permitting otherwise barred claims that could not reasonably have been raised earlier)