In this post-conviction case, petitioner alleges, based on Padilla v. Kentucky,
The state moved to dismiss the petition, arguing that petitioner could have anticipated Padilla and that the petition was therefore untimely. See ORS 138.510(3)(a) (requiring petitions for post-conviction relief to be filed within two years of the date of conviction unless the asserted grounds for relief “could not reasonably have been raised” in a timely manner). The state also argued that the petition fails because the procedural rule announced in Padilla “is not retroactive and does not apply to his case”—i.e., it does not provide a basis for relief from convictions that were final before Padilla was decided. The post-conviction court agreed with both of the state’s contentions, and it dismissed the petition.
Petitioner then appealed the post-conviction judgment and, in his opening brief, argued that the petition came within the exception to the two-year filing period because Padilla announced a rule of law that could not reasonably have been anticipated before that decision. As for the merits, petitioner’s challenge to the court’s analysis of retroactivity was two-fold and mirrored his contentions in the post-conviction court. Petitioner argued that, contrary to the post-conviction court’s ruling, Padilla announced a rule that applies retroactively under the test set out in Teague v. Lane,
Since petitioner filed his opening brief, there have been a number of state and federal appellate decisions bearing on his Padilla-based claim. First, in Chaidez v. United States,
Shortly thereafter, in Saldana-Ramirez v. State of Oregon,
“[Ujnder federal retroactivity principles as elucidated in Chaidez, Padilla does not apply to petitioner’s collateral challenge. ‘[Fjederal retroactivity principles govern whether a new federal rule applies retroactively in [Oregon] court.’ Miller v. Lampert,340 Or 1 , 7,125 P3d 1260 (2006) (citing Page v. Palmateer,336 Or 379 ,385-86, 84 P3d 133 , cert den,543 US 866 (2004)). Accordingly, we affirm.”
Id. at 608 (bracketed material in Saldana-Ramirez', footnote omitted). We thereby implicitly rejected another of the arguments that petitioner makes in this case: that, in light of Danforth, federal retroactivity principles have no application to Oregon post-conviction cases. That is, notwithstanding the holding in Danforth that states are free to apply their own retroactivity principles, we continued to follow Miller and Page, two cases that predated Danforth and remained the most recent pronouncements from the Oregon Supreme Court as to whether Oregon courts apply federal retroactivity principles to state post-conviction cases.
In the wake of Saldana-Ramirez, we summarily rejected similar arguments that Padilla applies retroactively in state post-conviction proceedings. See, e.g., Sandoval v. State of Oregon,
“In [Danforth], the United States Supreme Court held that state courts may apply new federal constitutional rules retroactively in state post-conviction proceedings even though those rules do not apply retroactively in federal habeas corpus proceedings. We allowed review in this case to consider the principles that Oregon courts should follow in exercising the authority that Danforth recognized.”
The court then described the parties’ competing arguments regarding retroactivity, stating that, “[i]n Saldana-Ramirez, the Court of Appeals noted that this court’s decisions before Danforth had followed federal retroactivity analysis, and the Court of Appeals signaled that it would do so too until we exercised our authority under Danforth to take a different course. See
The court then further described the effect of Danforth:
“As noted, the United States Supreme Court held in Danforth that states may apply new federal rules retroactively in state post-conviction proceedings even though those rules would not apply retroactively in federal habeas. Essentially, the Court held in Danforth that federal retroactivity analysis does not define the scope of the federal right.552 US at 275 . Indeed, in Danforth, the Court described the federal retroactivity analysis that it had announced in Teague as an interpretation of the federal habeas statute. Id. at 278.
“After Danforth, each state is free to determine when new federal rules should be applied retroactively in state post-conviction proceedings. Such determinationscan include a consideration of the state’s interest in the finality of convictions, the effect of the new federal right on the validity of the conviction, the need for predictable retroac-tivity rules, and the value of additional review. See Paul M. Bator, Finality in Criminal Law and Habeas Corpus for State Prisoners, 76 Harv L Rev 441 (1963) (discussing considerations that can inform when courts should revisit final convictions); cf. Danforth, 552 US at 273-74 (explaining that the current federal rule was adopted, among other things, to ensure predictable results).”
As it turned out, however, the court did not ultimately reach the retroactivity question on which it had allowed review. Id. at 563 (“Even though we allowed review to consider when new federal rules will apply retroactively in Oregon, we conclude that this case does not provide an occasion to decide that issue.”). Instead, the court concluded that petitioner had raised the same grounds for relief in an earlier petition for post-conviction relief, which barred his claim for relief under ORS 138.550(3) (the rule against successive petitions). Thus, the court concluded its decision by stating, “[W]e do not need to decide whether we would choose to adhere to the federal standard of retroactivity or, if we were to adopt a different standard, what principles would inform it. It is sufficient in this case to hold that ORS 138.550(3) bars the grounds for relief alleged in petitioner’s second post-conviction petition.” Id. at 574 (emphasis added).
With that background, we return to the arguments that petitioner raises with regard to retroactivity in this case. First, petitioner argues that, under the federal analysis, Padilla announced a rule that must be applied retroactively. As stated previously, that contention is now foreclosed by the United States Supreme Court’s decision in Chaidez,
That leaves petitioner’s alternative contention that federal retroactivity principles do not control whether the rule announced in Padilla applies in this state post-conviction case. As the court in Verduzco noted, we previously signaled that we would follow federal retroactivity principles until the Oregon Supreme Court “exercised [its] authority under Danforth to take a different course.”
Petitioner’s argument is not based on our authority (or, for that matter, the Oregon Supreme Court’s authority) to craft a state standard of retroactivity. Rather, petitioner posits that Oregon courts lack any such authority because the legislature, in enacting the Post-Conviction Hearing Act in 1959, intended to provide relief based on the denial of constitutional rights “regardless of whether they are deemed under current jurisprudence to apply retroactively or prospectively.” In other words, petitioner argues that the Oregon legislature already made the choice authorized by Danforth, and that, based on the text, context, and legislative history of the Post-Conviction Hearing Act, there is no retroactivity limitation on post-conviction relief for constitutional violations. Thus, petitioner argues, “[w]hen the Legislative Assembly has not included a retroactivity requirement as part of the Post-Conviction
Petitioner’s argument is inconsistent with our previous interpretation of the Post-Conviction Hearing Act in Teague v. Palmateer,
“Consistently with that general design, the availability of relief under Oregon’s post-conviction statutes depends on two factors. First, a petitioner must seek substantive relief that would have been available through a writ of habeas corpus. Bartz v. State of Oregon,314 Or 353 , 361,839 P2d 217 (1992). That principle is codified in ORS 138.530(2), which effectively provides that the substance of habeas corpus relief remains available to a person who petitions for relief under the post-conviction statutes. Bartz,314 Or at 361 . Second, a petitioner must follow the proper procedures for obtaining that relief. Id. As pertinent here, the statutes codify issue preclusion principles that turn on the availability of prior judicial proceedings to address a petitioner’s claims. ***
“Issue preclusion and retroactivity are distinct concepts and traditionally have been treated as such. From the earliest cases decided under Oregon’s post-conviction statutes, petitioners have been able procedurally to assert claims based on unanticipated and newly announced constitutional principles, but their ability to prevail on those claims has depended on the retroactivity of the constitutional principle at work. Such cases are legion. See, e.g., [North v. Cupp,254 Or 451 , 459-62,461 P2d 271 (1969), cert den,397 US 1054 (1970)] (one of petitioner’s claims barred by statutory issue preclusion principles; claim based on newly announced Escobedo/Miranda doctrine could be raised but was not a basis for relief because doctrine was not retroactive); Church v. Gladden,244 Or 308 , 311-13,417 P2d 993 (1966) (similar). As we explained in Myers v. Cupp,49 Or App 691 ,621 P2d 579 (1980), rev den,290 Or 491 (1981), whether a new constitutional rule provides an exception to issue preclusion and also is retroactive are complementary inquiries; a petitioner must satisfy both to be entitled to post-conviction relief:
‘“[A]n exception to the general rule that an issue raised and considered on direct appeal cannot be reconsidered in a post-conviction proceeding applies where the law with respect to that issue has changed since the time of appeal and that new law is to he applied retroactively.’
“49 Or App at 695-96 (emphasis added; citation omitted). In a more recent post-conviction case, the Oregon Supreme Court similarly observed that a ‘court must analyze ret-roactivity’ when considering whether to apply a newly announced rule to a post-conviction case. Moen v. Peterson,312 Or 503 , 508-10,824 P2d 404 (1991) (emphasis added) (declining to determine what retroactivity standard should apply because constitutional rule invoked by petitioner was not new). In short, assessing the retroactivity of a newly announced constitutional rule is a necessary and legitimate step in the analysis of whether post-conviction relief should be awarded on the basis of that new pronouncement. The inquiry is not subsumed in the statutory standards pertaining to when new issues are procedurally proper to assert.”
Petitioner acknowledges our holding in Teague but argues that “an examination of the precedent relied upon in Teague and other Oregon cases shows that the ‘retroactivity’ requirement is not based upon any provision of the Oregon Post-Conviction
As we recently explained in State v. Civil,
First, the analysis in Teague was not unmoored from the text of the Post-Conviction Hearing Act, as petitioner suggests. After carefully tracing the history of that act, we considered the “general design” of the statute, as well as the principle “codified in ORS 138.530(2), which effectively provides that the substance of habeas corpus relief remains available to a person who petitions for relief under the post-conviction statutes.”
Second, petitioner’s argument depends largely on what inferences to draw from the fact that the Post-Conviction Hearing Act is silent with regard to retroactivity. That is, petitioner does not point to any text, context, or legislative history that establishes that the legislature affirmatively considered the question of retroactivity; rather, his argument is that such a limitation would not have occurred to the legislature at all, because it was not addressed by the Supreme Court until 1965 in Linkletter v. Washington,
Finally, as an overarching matter, petitioner has failed to persuade us that we are even the proper court to address his argument regarding the effect of the Post-Conviction Hearing Act. In Teague, we were not writing on a blank slate; our understanding of retroactivity as applied to the Post-Conviction Hearing Act was “reflected in a nearly 40-year-old body of settled precedent”—predominantly cases decided by the Oregon Supreme Court.
For those reasons, we reject petitioner’s argument that the Post-Conviction Hearing Act precludes the application of retroactivity principles to deny relief in this case, and we affirm the judgment of the post-conviction court.
Affirmed.
Notes
Although the judgment refers to dismissal based on the “statute of limitations,” the parties agree that the issue of “retroactivity”—i.e., whether Padilla provides a basis for post-conviction relief from convictions that were final before that case was decided—was fully litigated by the parties and ruled upon by the trial court. Because we affirm the dismissal on the merits based on the issue of retroactivity, we do not address whether the petition was timely filed under ORS 138.510(3). See Teague v. Palmateer,
In Page, the court held that, “when interpreting the federal constitution or applying Supreme Court rulings that are based on its interpretation of the federal constitution, we must comply with what the Supreme Court has stated.”
We would also be required to ask an additional question: whether we, as opposed to the Oregon Supreme Court, should decide those questions in the first instance.
Petitioner draws from the dissenting opinion in Danforth, in which Chief Justice Roberts wrote, “As the court correctly points out, before 1965 we took for granted the proposition that all federal constitutional rights, including rights that represented a break from earlier precedent, would be given full retroactive effect on both direct and collateral review. That all changed with Linkletter v. Walker,
Petitioner suggests that Oregon courts, including the Supreme Court, incorrectly “imported” retroactivity principles from criminal trials into “post-conviction relief hearings without the realization that this was a different world not ruled by the discretion of judges, but by statutes and legislative policy.”
Although petitioner’s claim for relief also alleges that he was denied his right to adequate assistance of counsel under the Oregon Constitution, his arguments on appeal relate exclusively to his Padilla-based claims. Accordingly, we do not address any issues related to a state constitutional claim.