397 P.3d 504
Or. Ct. App.2017Background
- Petitioner (15 at the time) and his twin brother committed murders in 1993; petitioner was convicted (aggravated murder, murder, first-degree robbery) and sentenced in 1995 to an indeterminate life term (aggravated murder), an 800-month concurrent term (murder), and a consecutive 36-month term (robbery).
- Petitioner pursued direct appeal and multiple post-conviction petitions in the 1990s and 2000s; earlier post-conviction petitions raised Eighth Amendment/cruel-and-unusual-punishment challenges to the sentences and were denied.
- In 2012 the Board set a 288-month prison term on the aggravated murder life sentence; petitioner later relied on Miller v. Alabama (2012) to challenge his juvenile life-type sentence as unconstitutional.
- In 2013 petitioner filed a successive post-conviction petition asserting ineffective assistance of trial counsel (failure to object to an 800-month "de facto" life sentence), and ineffective assistance of prior post-conviction counsel; he invoked ORS 138.510/138.550 escape clauses based on Miller.
- The superintendent moved for summary judgment, arguing the petition was untimely and barred as successive under ORS 138.510(3) and ORS 138.550(3); the post-conviction court granted summary judgment and dismissed the petition.
- On appeal, the court focused on whether the statutory bar against successive petitions (ORS 138.550) precluded relief and affirmed, relying on prior Oregon decisions interpreting the escape clauses.
Issues
| Issue | White's Argument | Premo's Argument | Held |
|---|---|---|---|
| Whether ORS 138.550 bars the successive post-conviction petition | White: Miller created a new rule he reasonably could not have raised earlier; escape clause applies | Premo: Petition was successive and claims were or could have been raised earlier; statutory bar applies | Held: ORS 138.550 bars the petition because petitioner previously raised comparable Eighth Amendment claims and thus could have reasonably raised them earlier |
| Whether Miller’s new rule brings White’s Eighth Amendment/cruel-and-unusual challenge within the escape clause | White: Miller announced a rule unforeseeable earlier, so escape clause applies | Premo: Even if Miller is new, White already raised Eighth Amendment sentence challenges in earlier petitions | Held: Escape clause inapplicable because White had earlier challenged his sentence on Eighth Amendment grounds |
| Whether the vertical disproportionality claim (800 months vs. life) could only be raised after the Board set a parole term | White: Could not reasonably raise vertical-proportionality claim until Board fixed prison term in 2012 | Premo: Sentences were fixed in 1995; claim could have been raised then; board decision is not challengeable in post-conviction relief | Held: Claim could have been raised earlier; moreover, parole-board action is not cognizable in post-conviction relief |
| Whether inadequate prior post-conviction counsel excuses successive-petition bar under ORS 138.550 | White: Martinez v. Ryan suggests ineffective post-conviction counsel can excuse procedural default | Premo: Martinez governs federal habeas; Oregon law does not allow attacking prior post-conviction counsel to invoke escape clause | Held: Escape clauses cannot be satisfied by blaming former post-conviction counsel; Martinez does not control ORS 138.550 interpretation |
Key Cases Cited
- Miller v. Alabama, 567 U.S. 460 (holding mandatory life without parole for juveniles unconstitutional)
- Montgomery v. Louisiana, 136 S. Ct. 718 (holding Miller announces a substantive rule retroactive on collateral review)
- Padilla v. Kentucky, 559 U.S. 356 (failure to advise clear deportation consequences can violate Sixth Amendment)
- Martinez v. Ryan, 566 U.S. 1 (narrow federal habeas exception for ineffective post-conviction counsel where initial-review collateral proceeding is required)
- Verduzco v. State of Oregon, 357 Or. 553 (interpretation of ORS 138.550 escape clauses)
- Kinkel v. Persson, 276 Or. App. 427 (application of escape-clause principles to Miller-type claims)
- Curdo v. Premo (Cunio), 284 Or. App. 698 (successive-petition bar applied to juvenile-sentencing claims post-Miller)
- Cunningham v. Premo, 278 Or. App. 106 (post-conviction counsel adequacy cannot be used to evade successive-petition bar)