ESTEBAN CHAVEZ, Petitioner on Review, v. STATE OF OREGON, Respondent on Review.
(CC 111114537) (CA A151251) (SC S064968)
In the Supreme Court of the State of Oregon
Argued and submitted March 8, 2018; affirmed April 4, 2019
364 Or 654 | 438 P3d 381
Argued and submitted March 8, 2018, at University of Oregon School of Law, Eugene, Oregon; decision of Court of Appeals and judgment of circuit court affirmed April 4, 2019
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
On review from the Court of Appeals.*
Steven E. Benson, Portland, argued the cause and filed the brief for petitioner on review.
Benjamin Gutman, Solicitor General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief was Ellen F. Rosenblum, Attorney General.
KISTLER, S. J.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
In 1999, petitioner pled guilty to delivering cocaine. In 2011, he initiated this post-conviction proceeding. Relying on Padilla v. Kentucky, 559 US 356, 130 S Ct 1473, 176 L Ed 2d 284 (2010), he alleged that his trial attorney failed to advise him about the immigration consequences of his guilty plea in violation of the Sixth Amendment. The trial court dismissed the petition both because it was untimely and because Padilla does not apply retroactively. The Court of Appeals affirmed the post-conviction court‘s judgment on the latter ground. Chavez v. State of Oregon, 283 Or App 788, 391 P3d 801 (2017). On review, petitioner challenges both grounds that the trial court identified for dismissing his petition. We hold that, although the petition was timely, the only retroactivity argument that petitioner raises on review—that Oregon‘s post-conviction statutes require that all new constitutional rules be applied retroactively—is not well taken. Accordingly, we affirm the Court of Appeals decision and the trial court‘s judgment.
Because the trial court granted the state‘s motion to dismiss the petition for post-conviction relief, we assume that the allegations in the petition are true and state the facts consistently with those allegations. In 1999, petitioner was charged with possessing and delivering cocaine. Before trial, the district attorney offered petitioner a plea deal: If petitioner would plead guilty to delivering a controlled substance, the state would dismiss the possession charge and recommend a light sentence. In discussing the plea with petitioner, petitioner‘s lawyer did not advise him of the immigration consequences of pleading guilty to delivering a controlled substance. However, as part of the plea deal, petitioner did read and sign a plea petition, which recited:
“I know that if I am not a United States citizen, my plea may result in my deportation from the USA, or denial of naturalization, or exclusion from future admission to the United States.”
Petitioner‘s attorney discounted that warning; she advised him that she “did not think [he] would be deported as a result of his guilty plea.” Finally, petitioner alleges that he “has no recollection” whether the trial judge discussed the
In 2011, petitioner applied to become a naturalized United States citizen. In processing his application, the Department of Homeland Security discovered that he had been convicted of delivering a controlled substance and, as a result, was subject to deportation. On November 4, 2011, petitioner filed his first petition for post-conviction relief. He alleged that the Court‘s 2010 decision in Padilla demonstrated that his trial attorney‘s advice fell below the standard that the Sixth Amendment requires. Specifically, petitioner alleged that his attorney was constitutionally deficient because she did not advise him that, if he pled guilty to delivering a controlled substance, he would almost certainly be deported.
The state moved to dismiss the petition, and the trial court granted the motion. The trial court reasoned that the petition was time-barred because petitioner reasonably could have anticipated Padilla and alternatively that Padilla did not apply retroactively to decisions that became final before it was decided. The Oregon Court of Appeals affirmed the trial court‘s judgment, reasoning that the argument that petitioner advanced for applying Padilla retroactively could not be reconciled with the Court of Appeals and this court‘s decisions. Chavez, 283 Or App at 796-99.
On review, the parties raise two issues. The first is whether the two-year statute of limitations in
I. STATUTE OF LIMITATIONS
“A petition pursuant to
ORS 138.510 to138.680 must be filed within two years of the [date that the challenged conviction became final], unless the court on hearing a subsequent petition finds grounds for relief asserted which couldnot reasonably have been raised in the original or amended petition.”
As this court has explained, that subsection contains both a limitations period within which a post-conviction petition must be filed (two years from the date that the conviction became final) and an escape clause (the limitation period does not apply if the grounds for relief asserted in the petition could not reasonably have been raised within the limitations period). See Bartz v. State of Oregon, 314 Or 353, 357-58, 839 P2d 217 (1992).
Because petitioner filed this petition for post-conviction relief approximately 12 years after his conviction became final,
This case falls in the latter category. Petitioner argues that, when he pled guilty in 1999, the accepted understanding was that failing to warn a defendant about the collateral consequences of a guilty plea, such as the possibility of deportation, did not constitute inadequate assistance for the purposes of the Sixth Amendment. Rather, a lawyer would fall below the standard that the
In 2006, this court explained that the Sixth Amendment required defense counsel to advise their clients of the direct but not the collateral consequences of a guilty plea. Gonzalez v. State of Oregon, 340 Or 452, 457-58, 134 P3d 955 (2006). As petitioner notes, the direct consequences of a plea include the maximum and mandatory minimum sentences that can be imposed as a result of the plea while the collateral consequences include deportation, the loss of a license to practice a profession, the termination of parental rights, and the like. Id. (citing Gabriel J. Chin and Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L Rev 697, 699-701 (2002)). As a result, before Padilla, the “almost unani-mou[s]” rule was that a defense counsel‘s failure to advise a client about the immigration consequences of a guilty plea did not provide a basis for seeking state post-conviction or federal habeas relief. Chaidez v. United States, 568 US 342, 350, 133 S Ct 1103, 185 L Ed 2d 149 (2013).
Oregon was an exception to that rule. In 1985, this court held that lawyers will fall below the standard that the Oregon Constitution requires if they fail to warn clients who are not United States citizens that a guilty plea “may result” in deportation and other adverse immigration consequences. Lyons v. Pearce, 298 Or 554, 567, 694 P2d 969 (1985). In
Four years after Gonzalez, the United States Supreme Court took a different course. After noting that, as a result of changes to immigration law in 1996, deportation was “virtually inevitable” for persons convicted of a specified class of crimes, the Court turned to the issue whether failing to advise a defendant of the immigration consequences of a guilty plea could be asserted as a basis for a Sixth Amendment inadequate assistance claim. In considering that issue, the Court noted that it had never adopted a distinction between “direct” and “collateral” consequences of a plea for the purposes of the Sixth Amendment. Padilla, 559 US at 365. The Court, however, found it unnecessary to decide the validity of that distinction in other contexts because it concluded that deportation, as a consequence of a criminal conviction, was sufficiently intertwined with the criminal process and sufficiently significant to a defendant considering a guilty plea to hold that the failure to advise a client of the immigration consequences of pleading guilty can violate the Sixth Amendment. Id. at 366.
Having reached that conclusion, the Court recognized that the federal immigration laws are not always clear
Padilla altered the legal landscape in two respects. First, it departed from what had been the “almost unani-mou[s]” rule that the failure to advise a client of the immigration consequences of a guilty plea will never be a cognizable basis for asserting an inadequate assistance claim under the Sixth Amendment. See Chaidez, 568 US at 350. Second, Padilla imposed a higher requirement on counsel than this court had done in Lyons in 1985 and in Gonzalez in 2006. After Padilla, if the immigration consequences of pleading guilty to certain crimes are “truly clear,” as they were in this case, then the Sixth Amendment requires defense counsel to advise their clients not merely that a conviction “may result” in adverse immigration consequences but that deportation and other adverse immigration consequences will be “virtually inevitable” as a result of the plea.
With that background in mind, we turn to the state‘s argument that petitioner reasonably could have raised his Sixth Amendment claim within two years of the date that his conviction became final in 1999. As we explained in Verduzco, the fact that a constitutional rule has not been definitively established does not necessarily mean that that ground for relief could not reasonably have been raised:
“‘The touchstone is not whether a particular question is settled, but whether it reasonably is to be anticipated so that it can be raised and settled accordingly. The more settled and familiar a constitutional or other principle on which a claim is based, the more likely the claim reasonably should have been anticipated and raised. Conversely,
if the constitutional principle is a new one, or if its extension to a particular statute, circumstance, or setting is novel, unprecedented, or surprising, then the more likely the conclusion that the claim reasonably could not have been raised.‘”
Verduzco, 357 Or at 571 (quoting Long v. Armenakis, 166 Or App 94, 101, 999 P2d 461 (2000); emphases in original).
In Verduzco, the petitioner filed a second post-conviction petition after the Court decided Padilla in 2010, and the state argued that a related procedural statute barred his Sixth Amendment Padilla claim because he reasonably could have raised that claim in the first post-conviction petition he filed in 2006. Id. at 573; see
We also noted that the proceedings in Verduzco were contemporaneous with the proceedings in Padilla. Id. at 557-59. Not only had Verduzco litigated a virtually identical Sixth Amendment claim at roughly the same time that Padilla was pursuing his claim, but the United States Supreme Court had granted Padilla‘s petition for certiorari before the time expired for Verduzco to file a petition for certiorari. Id. at 558 n 3. As a matter of timing, if Verduzco had petitioned for certiorari, the Court could have held his case until it decided Padilla and then granted, vacated, and remanded Verduzco‘s case for reconsideration in light of the Court‘s decision in Padilla. See id. at 573 n 20. We accordingly concluded that Verduzco reasonably could have raised his Sixth Amendment inadequate assistance claim when he filed his first post-conviction petition. Id. at 573.
As the Court explained in Chaidez, the “almost unani-mou[s]” rule before Padilla was that a Sixth Amendment inadequate assistance claim based on the failure to advise a defendant of the immigration consequences of a guilty plea was simply not cognizable. 568 US at 350. It is certainly true, as the state notes, that some litigants were raising similar claims before Padilla. However, those claims did not meet with success in the federal courts, and the question is not whether such a claim conceivably could have been raised. Verduzco, 357 Or at 566. Rather, it is whether it reasonably could have been raised. Id. As this court recognized in Verduzco, when the underlying principle is “novel, unprecedented, or surprising,” and not merely an extension of settled or familiar rules, the more likely it becomes that the ground for relief could not reasonably have been asserted. Indeed, if this court did not anticipate Padilla‘s holding when we decided Gonzalez in 2006, we can hardly say that petitioner should have anticipated it five years earlier in 2001. We accordingly hold that his petition comes within the escape clause in
Having concluded that petitioner‘s Sixth Amendment claim is not time-barred, we turn to his argument that Padilla applies retroactively in state post-conviction proceedings. On that issue, petitioner recognizes that Padilla announced a new federal constitutional rule that does not apply retroactively in federal court. He argues, however, that federal law permits states to apply new federal rules, such as the one announced in Padilla, retroactively even though those rules do not apply retroactively in the federal courts. Additionally, he contends that, as a matter of state law, Oregon‘s 1959 post-conviction statute requires that all new state and federal constitutional rules apply retroactively in state post-conviction proceedings.
Before turning to petitioner‘s argument that the text, context, and history of Oregon‘s 1959 post-conviction statute require that all new federal constitutional rules apply retroactively in state post-conviction proceedings, we first discuss federal retroactivity analysis. Oregon adopted its 1959 post-conviction statute as federal retroactivity analysis was being developed, and an understanding of the federal analysis provides important context for understanding the Oregon statute. With the federal cases in mind, we then turn to petitioner‘s state statutory arguments.
A. Federal Retroactivity Analysis
Before 1915, the grounds for petitioning for a writ of federal habeas corpus were limited; the only basis that a petitioner could assert was that the court that had rendered the judgment lacked jurisdiction. See Danforth v. Minnesota, 552 US 264, 271, 128 S Ct 1029, 169 L Ed 2d 859 (2008) (discussing the development of federal habeas corpus law). In 1915, the grounds for petitioning for habeas were expanded to include the “depriv[ation] * * * of [a person‘s] life or liberty without due process of law,” but only if the constitutional violation was so serious that it rendered the conviction void for lack of jurisdiction. Id. at 272 (citing cases that had granted habeas relief when, for example, mob violence had dominated the petitioner‘s criminal trial). Perhaps because those cases turned primarily on the application of settled
In 1953, the Court expanded the grounds on which federal habeas relief could be granted to violations of all applicable constitutional rights. Brown v. Allen, 344 US 443, 73 S Ct 397, 97 L Ed 469 (1953). However, even after Brown, procedural restrictions on asserting federal habeas claims meant that “[i]t was the rare case in which the habeas petitioner had raised a ‘new’ constitutional argument both at his original trial and on appeal” so as to allow a habeas court to consider whether to apply a “new” constitutional rule to convictions which had become final. Desist, 394 US at 261 (Harlan, J., dissenting). As Justice Harlan explained in Desist, “[t]he conflict between retroactivity and finality only became of major importance [in 1963] with the Court‘s decision in Fay v. Noia, [372 US 391, 83 S Ct 822, 9 L Ed 2d 837 (1963)].” Id. Only after Fay removed the procedural restrictions that limited the instances in which the retroactivity of new rules was at issue did the conflict between retroactivity and finality become acute. Indeed, before 1959, when Oregon enacted its post-conviction statute, the Court had applied a new constitutional rule retroactively only once. See Eskridge v. Washington Prison Board, 357 US 214, 78 S Ct 1061, 2 L Ed 2d 1269 (1958) (applying equal protection holding retroactively); cf. Linkletter v. Walker, 381 US 618, 628 n 13, 85 S Ct 1731, 14 L Ed 2d 601 (1965) (listing cases in which the Court had applied new constitutional rules retroactively).
From 1961 to 1964, the Court expanded the list of federal constitutional rights that apply directly to the states and applied those rights for the first time (and thus retroactively) to two and perhaps three cases arising on federal habeas corpus. See Linkletter, 381 US at 628 n 13
In 1989, a plurality of the Court sought to bring some order to the field. It announced a set of principles to govern the retroactive application of new federal constitutional rules, which it drew in large part from Justice Harlan‘s separate opinions in Desist and Mackey. See Teague v. Lane, 489 US 288, 303-08, 109 S Ct 1060, 103 L Ed 2d 334 (1989) (plurality). Teague defined what constitutes a “new” constitutional rule and explained that new federal constitutional rules should apply to all cases pending on direct appeal when the rule is announced. Id. at 301, 304-05. However, Teague recognized that
“‘[t]he interest in leaving concluded litigation in a state of repose * * * may quite legitimately be found by those responsible for defining the scope of the [federal] writ [of habeas corpus] to outweigh in some, many, or most instances the competing interest in readjudicating convictions according to all legal standards in effect when a habeas petition is filed.‘”
Id. at 306 (quoting Mackey, 401 US at 682-83 (Harlan, J., concurring in part and dissenting in part)). After noting the different considerations at issue in cases arising on direct appeal and in cases arising on collateral review, Teague concluded that, as a general rule, new federal constitutional rules will not apply retroactively to cases that had become
Teague arose in the context of a federal habeas corpus proceeding, and it was unclear initially whether the general rule of nonretroactivity and the two exceptions that Teague announced reflected an interpretation of the federal habeas corpus statutes or the scope of the underlying federal constitutional right. The Court gave partial answers to that question first in Danforth and later in Montgomery v. Louisiana, 136 S Ct 718, 193 L Ed 2d 599 (2016).
The Court held in Danforth that Teague‘s general rule of nonretroactivity reflects the relief available under the federal habeas corpus statutes. 552 US at 282. In reaching that conclusion, the Court started from the proposition that “the source of a ‘new rule’ is the Constitution itself, not any judicial power to create new rules of law. Accordingly, the underlying right necessarily pre-exists our articulation of the new rule.” Id. at 271. The Court explained:
“What we are actually determining when we assess the ‘retroactivity’ of a new rule is not the temporal scope of a newly announced right, but whether a violation of the right that occurred prior to the announcement of the new rule will entitle a criminal defendant to the relief sought.”
Building on that proposition, the Court explained in Danforth that, while the federal habeas statute gives federal courts the authority to grant writs of habeas corpus, it “leaves unresolved many important questions about the scope of available relief.” Id. at 278. The Court observed that
The Court later held in Montgomery that ”Teague‘s conclusion establishing the retroactivity of new substantive rules [that come within the first Teague exception] is best understood as resting upon constitutional premises.” 136 S Ct at 729. The Court reasoned that the concerns that led to Teague‘s first exception required, as a matter of federal constitutional law, that new rules that come within that exception be applied retroactively. Id. It followed, the Court held in Montgomery, “that when a new substantive rule of constitutional law [that comes within the first Teague exception] controls the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule.” Id.
Danforth and Montgomery thus identify two classes of new federal constitutional rules. For new constitutional rules that come within the first Teague exception, retroactivity is an inherent part of the right; state courts must give retroactive effect to the right. Montgomery, 136 S Ct at 729. Conversely, new constitutional rules that come within Teague‘s “general rule of nonretroactivity” permit but do not require retroactive application of the newly recognized right. Danforth, 552 US at 278-79. The retroactive application of those rules (rules that come within the general rule of nonretroactivity) on state and federal collateral review can be offset by “equitable and prudential considerations,” such as finality. Id.
B. State Collateral Challenges
The history of state post-conviction proceedings mirrors in many respects their federal counterpart. The
The 1959 state post-conviction act made a petition under the act the exclusive remedy for challenging the lawfulness of a state criminal conviction,5 and it abolished all common law post-conviction remedies except for the writ of habeas corpus.
“Whenever a person petitions for relief under
ORS 138.510 to138.680 ,ORS 138.510 to138.680 shall not be construed to deny relief where such relief would have been available prior to May 26, 1959, under the writ of habeas corpus, nor shall it be construed to affect any powers of executive clemency or pardon provided by law.”
In this case, petitioner relies on
1. ORS 138.530(2)
As petitioner recognizes, the rule of construction that
Textually, the phrase “writ of habeas corpus” in
Ordinarily, we assume that the legislature used the phrase “writ of habeas corpus” in
On that issue, no Oregon Supreme Court decision had held before 1959 that a new constitutional ruling would apply retroactively. Indeed, no Oregon Supreme Court decision had expressly identified that issue before 1959, nor does there appear to have been a practice of sub silentio applying new constitutional rulings retroactively in state habeas. In large part, the absence of any discussion of retroactivity before 1959 derived from the limited grounds on which habeas had been available before the enactment of the post-conviction act. As noted above, state habeas relief traditionally had been available only if the court imposing the conviction had lacked jurisdiction over the person or the subject. Huffman, 197 Or at 297. Because those constitutional principles were well-established, they presumably did not raise questions regarding the retroactive application of “new” constitutional rules. At most, the only question that they raised was the application of established principles to analogous circumstances.
To be sure, this court recognized in Huffman in 1952 that state habeas also would lie for “other matter[s] rendering the proceeding void.” 197 Or at 298 (internal quotation marks omitted; emphasis omitted). However, the court had no occasion in Huffman to address whether the other matters that the petitioner raised in that case, if proved on remand, would announce “new rules” and whether, if they did so, they would apply retroactively.7 The same is true for the other cases arising before 1959. For all that appears from the cases, this court applied settled rules to the facts of
Although petitioner does not identify any case in which the state writ of habeas was applied retroactively, even sub silentio, we note that two cases—Cannon v. Gladden, 203 Or 629, 281 P2d 233 (1955), and Smallman v. Gladden, 206 Or 262, 291 P2d 749 (1956), overruled in part on other grounds, State v. Collis, 243 Or 222, 413 P2d 53 (1966)—arguably could be viewed that way. We discuss each case briefly and then explain why we view them differently.
In Cannon, the legislature provided (and Cannon received) a greater sentence for attempted rape than he could have received for the completed crime. 203 Or at 630-31. In considering whether Cannon‘s sentence was constitutionally disproportionate, this court began by noting that the case was “unusual” and that it could not find “any authorities to guide [it] in [its] task.” Id. at 631. However, it decided the question by applying the constitutional rule established 34 years earlier in Sustar v. County Court for Marion Co., 101 Or 657, 201 P 445 (1921)—whether Cannon‘s sentence was so disproportionate to the offense that it shocked the moral sense of all reasonable people. 203 Or at 632. After phrasing the question that way, the court explained that “[t]he question answers itself.” Id.
On the one hand, it is possible to read Cannon as announcing a new rule that it applied retroactively (albeit without saying so) to a conviction that had become final. After all, the court noted that it could find no authorities to guide it in its task. On the other hand, it is possible to read Cannon as applying the well-settled rule set out in Sustar to a new factual situation in which the correct application of the rule to the petitioner‘s sentence could only be described as self-evident. In considering whether Cannon announced
The other decision that could be said to raise an issue of retroactivity is Smallman. Tucked away in the middle of that decision is a discussion of the petitioner‘s third assignment of error; in that assignment of error, he argued that the statute under which he had been convicted violated the Equal Protection Clause. See 206 Or at 278-81. This court noted that “[t]he fact that the ruling contended for might cause a mass hegira from the penitentiary does not foreclose consideration of the issue, but it does argue that the contention should be viewed with profound skepticism.” Id. at 279. This court went on to reject the petitioner‘s argument on the merits. Id. at 281.
It is possible to read the court‘s statement that a ruling in the petitioner‘s favor “might cause a mass hegira from the penitentiary” as a recognition that a favorable ruling “might” apply retroactively. The court, however, never resolved (and had no need to resolve) whether such a ruling would apply retroactively since it ruled against the petitioner on the merits. It is true that, long after Smallman was decided, the plurality in Teague explained that the question whether a new federal ruling applies retroactively should be resolved as a preliminary matter. See Teague, 489 US at 300-01. But we cannot conclude from a federal practice announced more than 30 years after Smallman was decided
As we read the state habeas decisions before 1959, they do not expressly address the retroactive application of new constitutional rules, nor do they reveal a clear pattern of retroactive application in state habeas decisions. It follows that we cannot read
Contrary to petitioner‘s argument,
2. ORS 138.530(1)(a)
Focusing on
Beyond that, petitioner never explains why the phrase “substantial denial” of his constitutional rights that “rendered the conviction void” is not a problem for his reading of the subsection. Textually,
Another interpretation is textually permissible.
We also consider a statute‘s context in determining what the text means. Context includes “the preexisting common law and the statutory framework within which the law was enacted.” Klamath Irrigation District v. United States, 348 Or 15, 23, 227 P3d 1145 (2010) (internal quotation marks omitted). As explained above, retroactive application of new constitutional rules in state habeas proceedings was not an issue when the legislature enacted the post-conviction act in 1959. Moreover, it was not a substantial issue in federal habeas either. Because of procedural limitations on federal habeas corpus, the retroactive application of new federal rulings in federal habeas cases before 1963 was “rare.” Desist, 394 US at 261 (Harlan, J., dissenting).
To be sure, one pair of federal decisions had raised the issue before 1959. In 1956, a plurality of the United States Supreme Court ruled that, if states provided for appeals generally, they could not deny indigent defendants that right by requiring them to pay for a transcript as a condition of taking an appeal. Griffin v. Illinois, 351 US 12, 18-20, 76 S Ct 585, 100 L Ed 891 (1956). Justice Frankfurter concurred in the judgment. He agreed that, if a state “has a general policy of allowing criminal appeals, it cannot make lack of means an effective bar to the exercise of this opportunity.” Id. at 24 (Frankfurter, J., concurring in the judgment). In agreeing with the plurality, however, he noted that the rule announced in Griffin did not necessarily apply retroactively. He observed that, in future cases, the Court should recognize “candidly the considerations that give prospective content to a new pronouncement of law.” Id. 26. He then concluded that “[t]he rule of law announced this day should be delimited as indicated.” Id.
Two years later, in 1958, the Court applied Griffin retroactively in a per curiam opinion, which did not mention the issue of retroactivity. See Eskridge, 357 US at 216. The
One final source bears on petitioner‘s statutory interpretation argument. In State v. Fair, 263 Or 383, 502 P2d 1150 (1972), this court recognized that it was not bound to apply all new federal constitutional rules retroactively in post-conviction proceedings. As the court explained in Fair, “we are free to choose the degree of retroactivity or prospectivity which we believe appropriate to the particular rule under consideration, so long as we give federal constitutional rights at least as broad a scope as the United States Supreme Court requires.” Id. at 387-88; see Bouge v. Reed, 254 Or 418, 459 P2d 869 (1969); Haynes v. Cupp, 253 Or 566, 456 P2d 490 (1969) overruled on other grounds, State v. Evans, 258 Or 437, 442, 483 P2d 1300 (1971).9 We cannot reconcile the rule that petitioner urges us to draw from Oregon‘s post-conviction statute (that every new constitutional rule will apply retroactively in post-conviction proceedings) with the rule that Fair announced (that the court may but need not apply some new constitutional rules retroactively).
To be sure, the court in Fair did not state its retroactivity rule after analyzing the text and context of the 1959 statute. But if, as discussed above, the text and context of the 1959 statute do not require the absolute rule that petitioner urges us to find in those sources, then this court‘s retroactivity decisions, summarized in Fair, provide another
Considering the text and context of Oregon‘s post-conviction statute, we hold that
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.