Petitioner appeals the dismissal of his petition for post-conviction relief filed pursuant to ORS 138.510. He assigns error to the post-conviction court’s conclusion that his petition was time barred under ORS 138.510(3), which presumptively requires a petitioner to file for relief within two years after entry of judgment. Petitioner argues that his claim falls within an exception to that statute of limitations, which allows him to assert “grounds for relief * * * which could not reasonably have been raised” within the time allowed. See ORS 138.510(3). The state contends that petitioner could reasonably have raised his claim within that time and that the court, therefore, properly dismissed his petition. For the reasons that follow, we agree that petitioner’s claim is untimely and, accordingly, affirm.
The relevant facts are procedural and undisputed. Petitioner pleaded guilty to four counts of encouraging child sexual abuse in violation of ORS 163.686 (2007), amended by Or Laws 2011, ch 515, § 4,
Petitioner did not appeal his convictions, nor did he file for post-conviction relief within two years after the April 2007 entry of judgment. See ORS 138.510(3) (time period to file petition for post-conviction relief).
In May 2009, we decided State v. Ritchie,
In January 2011, the Supreme Court reversed our decisions in Ritchie I and Barger I, and held that merely viewing an image of child pornography on a computer screen did not constitute encouraging child sexual abuse under ORS 163.686(1). Barger II,
In October 2011, petitioner filed a petition for post-conviction relief that asserted a violation of his due process rights under the Fourteenth Amendment to the United States Constitution. His petition claimed that he had not voluntarily and intelligently entered his guilty pleas, because, under the substantive law newly announced in Ritchie II and Barger II, he was factually innocent.
The state moved to dismiss the petition as untimely based on ORS 138.510(3), which provides, in part:
“A petition pursuant to ORS 138.510 to 138.680 [the Post-Conviction Hearing Act] must be filed within two years of the following, unless the court on hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the original or amended petition:
“(a) If no appeal is taken, the date the judgment or order on the conviction was entered in the register.”
Petitioner argued to the post-conviction court that his claim could not reasonably have been raised within the two-year limitations period and that it therefore fell within the “escape clause” of ORS 138.510(3). See Benitez-Chacon v. State of Oregon,
In a written order, the post-conviction court concluded that, while the Supreme Court’s rulings in Ritchie II and Barger II were not available to petitioner within the applicable timeframe, he nonetheless could reasonably hаve anticipated that the issue of what constituted possession or control under ORS 163.686(1) would arise as a question of law. Therefore, he could have raised that issue within the two-year limitations period of ORS 138.510(3). As a result, the court dismissed the petition for post-conviction relief with prejudice.
Petitioner assigns error to that conclusion and largely renews the arguments that he made to the post-conviction court. Petitioner contends that he could not reasonably have raised his claim prior to Ritchie II and Barger II. In effect, he reasons that, as a lay person, he could not have recognized the technology-basеd defense announced in Ritchie II and Barger II until the Supreme Court issued those decisions several years after his convictions. He argues that the Supreme Court’s newly announced interpretation of ORS 163.686(1) in those cases excuses the late filing of his petition for post-conviction relief, because, in his view, that interpretation was novel and surprising. Petitioner alternatively urges us to equate the escape
For its part, the state does not rely on its “watershed” law argument on appeal. Instead, the focus of the state’s argument is that the mere fact that no appellate court had conclusively resolved the issue underlying petitioner’s claim until May 2009 does not excuse his untimely filing. The state acknowledges that Ritchie II and Barger II announced new law. The state points out, however, that, during the two years following petitioner’s conviction, no decisional law foreclosed petitioner’s argument. The stаte further argues that the claim itself — that petitioner did not possess or control the images automatically stored on his computer — was based on a familiar principle. Thus, the state argues that petitioner was required to timely raise his claim. As additional support for its argument that petitioner reasonably could have raised his claim by April 2009, the state notes that the defendant in Ritchie I raised the precise legal argument that petitioner now asserts, and raised that argument well before petitioner’s deadline to file for post-conviction relief.
It is undisputed that petitioner did not file his claim for relief within the two years following entry of judgment in his case. Therefore, the only question in this appeal is whether petitioner could reasonably have raised his claim within the prescribed two-year period. See ORS 138.510(3). For the reasons that follow, we conclude that petitioner could, in fact, reasonably have raised his claim within that timeframe and that ORS 138.510(3) therefore bars his petition for relief.
We review the post-conviction court’s legal conclusions for legal error. ORS 138.650; ORS 138.220 (scope of review for post-conviction relief); Cunningham v. Thompson,
As noted, ORS 138.510(3) requires a petitioner tо file for post-conviction relief within two years of entry of the judgment of conviction, unless the grounds for relief “could not reasonably have been raised” during that period. ORS 138.510(3); see Benitez-Chacon,
Long v. Armenakis,
We concluded that the petitioner’s claims for relief did not fall under the narrow exception in ORS 138.510(3). Id. at 102. We first reasoned that “a petitioner is not excused from anticipating and raising a claim merely because that claim has not been resolved by an appellate court. Rather, if a claim reasonably can be anticipated, then it must be raised even though the law on the point is not yet settled.” Id. at 98; see Mora v. Maass,
After deciding that the lack of controlling appellate authority on the petitioner’s specific ex post facto argument did not categorically excuse his late filing, we further examined the meaning of the phrase “could not reasonably have been raised.” Long,
“That standard * * * is aimed at situations analogous to those in which a party is excused from preserving an issue at trial as a predicate to raising it later. Palmer v. State of Oregon,318 Or 352 , 358,867 P2d 1368 (1994) (citing North [v. Cupp,254 Or 451 , 461,461 P2d 271 (1969)]).
“‘The most common illustration [of a claim which could not reasonably be anticipated] is where the objection could conceivably have been made but could not reasonably hаve been expected. Examples are where the right subsequently sought to be asserted was not generally recognized to be in existence at the time of trial; where counsel was excusably unaware of facts which would have disclosed a basis for the assertion of the right; and where duress or coercion prevented assertion of the right.’
“Id. at 357 (quoting North,
Long,
But, as we also made clear in Long, not every change in the law is one that could not reasonably have been anticiрated:
“The same result does not necessarily follow where the [newly announced] constitutional principle is an acknowledged one, and the uncertainty is in its scope or application to a particular circumstance. 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. See, e.g., Kniss v. Cupp,27 Or App 815 , 818,558 P2d 364 (1976), rev den,277 Or 491 (1977) (where, at time of trial, case law had established right to counsel at post-indictment lineup, and courts only later extended same right to preindictment lineup, issue reasonably could have been anticipated and raised). 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, orif 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.”
“the constitutional principle at stake (ex post facto prohibition against retroactive legislation) was not novel or nascent. Nor was there anything unprecedented or surprising in the idea that аn ex post facto challenge might lie against a statute reviving and permitting prosecution of cases that under the prior law were no longer subject to prosecution.”
Id. at 102. Thus, under Long, whether a change in the law is one that could not reasonably have been anticipated depends upon the particular circumstances in which the change arose. Id.; see Verduzco,
We applied Long in Walton, where we considered whether a post-conviction petitioner could reasonably have anticipated and raised a specific merger issue on direct appeal, even though adverse authority from our court would have dictated the outcome.
On appeal from that ruling, we acknowledged that, in light of Barrett, the petitioner’s merger argument would have been successful if applied in his post-conviction proceeding. Id. at 340. Nonetheless, we affirmed the dismissal of that claim. Id. at 351. Specifically, we held that our preexisting authority in Hessel did not excuse the petitioner from raising the merger issue on direct appeal. Id. at 347-51.
In reaching that conclusion, we again rejected a categorical approach in determining when a post-conviction claim is one that could reasonably have been anticipated and raised. Id. at 348-50. Thus, rather than holding that controlling precedent from our court does — or does not — render the failure to raise an issue on appeal “reasonable,” we considered both the circumstances surrounding the appellate decision and the procedural history of the petitioner’s case. Id. Among other considerations, we noted that Hessel was our sole precedent on the issue, that it addressed a novel issue of statutory construction, and that the issue had not been ruled upon by the Supreme Court. Id. at 350. We also found it significant, though not dispositive, that the petitioner had raised the merger issue in the trial court; that fact necessarily weighed against the argument that, to raise the issue on appeal, the petitioner would have had to anticipate a new principle of law or the application of that principle in a novel, unprecedented, or surprising manner. Id. In light of the considerations articulated in Long, the petitioner
Here, both parties rely on Long, but reach opposite conclusions. Petitioner argues that this case involves the application of a principle of law — the statutory meaning of “possesses or controls” — in a “novel, unprecedented, or surprising” manner. See Long,
As the state points out, the lack of appellate law on point is not dispositive. See Long,
Furthermore, there is nothing novel or unprecedented about an argument that a person’s conduct does not constitute possession or control within the meaning of a particular statute. Even though neither we nor the Supreme Court had, before Ritchie I, construed the terms “possess [es] ” and “control!]” as used in ORS 163.686(1), both courts had in other cases repeatedly construed those terms in connection with other parts of the Criminal Code, long before petitioner’s two-year post-conviction relief window closed.
In fact, the modern, technological setting in which petitioner’s charges arose reinforces
Moreover, well before the Supreme Court issued its decisions in Ritchie II and Barger II, a number of defendants in other jurisdictions had raised similar statutory interpretation defenses, requiring other courts to construe the terms possеssion and control under facts very similar to this case. See Barger II,
In light of the foregoing circumstances, we have little difficulty concluding that petitioner could reasonably have raised his statutory interpretation argument within the time allotted under ORS 138.510(3). Unlike the merger argument in Walton, which faced a considerable obstacle in the form of an adverse decision from our court, no appellate authority foreclosed that argument. Thus, as the state notes, the question of whether petitioner possessed or controlled the images on his computer’s hard drive was “open to debate,” and petitioner was in a position to raise that question. His post-conviction claim — that the proper interpretation of those statutory terms barred his conviction for encouraging child sexual abuse — was based on familiar legal concepts, including, generally, statutory construction, and, specifically, what it means to possess or control prohibited items. The Supreme Court’s decisions in Richie II and Barger II did not announce anything new about those concepts — those cases merely determined how the concepts would apply to the particular circumstances of petitioner’s conduct in this case. See Long,
For the reasons discussed above, we agree with the post-conviction court that, under the facts of this case, petitioner reasonably could have been expected to raise his argument prior to the expiration of ORS 138.510(3)’s two-year period for claims for post-conviction relief.
Affirmed.
Notes
All references in this opinion are to ORS 163.686 (2007), which was the version of the statute in effect at the time of petitioner’s prosecution. That statute provided, in relevant part:
“(1) A person commits the crime of encouraging child sexual abuse in the second degree if the person:
“(a)(A)(i) Knowingly possesses or controls any photograph *** of sexually explicit conduct involving a child for the purрose of arousing or satisfying the sexual desires of the person or another person.”
Unallocated space on a hard drive is not accessible to the average user, but may be retrieved using special data recovery software. State v. Ritchie,
ORS 138.550(2) provides, in relevant part:
“When the petitioner sought and obtained direct appellate review of the conviction and sentence of the petitioner, no ground for relief may be asserted by petitioner in a petition for relief under ORS 138.510 to 138.680 [Post-Conviction Hearing Act] unless such ground was not asserted and could not reasonably have been asserted in the direct appellаte review proceeding.”
For much the same reason, we reject without further discussion petitioner’s argument that the Supreme Court’s opinion reversing our decision in Ritchie I was “surprising” within the meaning oí Long.
See, e.g., State v. Fries,
As previously noted, petitioner also argues that we should view the standard for whether a party could reаsonably have raised an argument as equivalent to the standard for inadequate assistance of counsel. Petitioner reasons that, if an attorney is not ineffective for failing to anticipate and raise an issue, then a petitioner could not reasonably have been expected to anticipate and raise that issue. See Wells v. Peterson,
See, e.g., State v. Johnson,
Compare United States v. Kain,
The escape clause in ORS 138.510(3) considers whether petitioner could reasonably have been expected to raise the argument — not whether he could conceivably have made the argument. Long,
It is immaterial that, because we decided Ritchie I shortly after petitioner’s post-conviction window closed, his argument might not have been successful if it had been timely raised. Our analysis simply requires us to ask whether a claim could reasonably have been raised, not whether that claim could have been raised fruitfully. Cf. Kinkel v. Persson,