ERNIE JUNIOR PEREZ, Petitioner on Review, v. Brad CAIN, Superintendent, Snake River Correctional Institution, Respondent on Review.
CC 16CV29849; CA A164434; SC S067002
Supreme Court of Oregon
October 1, 2020
367 Or 96 (2020) | 473 P3d 540
Argued and submitted March 6, decision of Court of Appeals and judgment of circuit court affirmed October 1, 2020
Petitioner sought post-conviction relief, advancing constitutional claims founded on the interpretation of a statute governing waiver of juveniles to adult court in State v. J. C. N.-V., 359 Or 559, 380 P3d 248 (2016). Petitioner argues that, although his petition was successive and untimely, he could not reasonably have raised his claims earlier—and that he therefore satisfied the relevant exceptions allowing successive and untimely claims in
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
En Banc
On review from the Court of Appeals.*
Ryan Kahn, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
GARRETT, J.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
GARRETT, J.
Petitioner pleaded guilty in 2005 to two aggravated murders that he hаd committed at the age of 14. In 2016, he filed a petition for post-conviction relief raising constitutional claims premised on this court‘s interpretation of
We allowed review to address petitioner‘s argument that his claims could not reasonably have been raised priоr to this court‘s decision in J. C. N.-V., so as to allow him to escape the application of the statute of limitations in
I. BACKGROUND
In 2005, petitioner broke into a home; during the home invasion he shot and killed two people. At the time, he was 14 years old. Because of his age, proceedings against him were initiated in juvenile court. The state sought to waive him into adult court on multiple charges of aggrаvated murder. See
Petitioner entered a guilty plea to four counts of aggravated murder.2 He was sentenced to two terms of life with the possibility of parole after 30 years, with 20 years of the second sentence to be served consecutive to the first. The Court of Appeals affirmed his convictions and sentence without opinion in 2007. State v. Perez, 214 Or App 571, 166 P3d 607 (2007). Petitioner did not seek review in this court.
In 2008, petitioner filed a timely petition for post-conviction relief, initiating a proceeding in which he was represented by counsel. Petitioner alleged, among other things, that his trial counsel had been inadequate and
In 2016, this court decided J. C. N.-V. Shortly thereafter, petitioner filed a second petition for post-conviction relief. He alleged that the trial court had violated
consistent with that required by this court‘s decision in J. C. N.-V.3
The superintendent filed a motion to dismiss, arguing that the petition was successive and therefore barred by the claim preclusion rule found in
“[a]ll grounds for relief claimed by petitioner in a [petition for post-conviction relief] must be asserted in the original or amended petition, and any grounds not so asserted are deemed waived unless the court on hearing a subsequent petition finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition.”
In addition, the superintendent argued that the petition was untimely and therefore barred by the statute of limitations found in
“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.
“(b) If an appeal is taken, the date the appeal is final in the Oregon appellate courts.”
Petitioner conceded that his petition was successive and untimely. He argued, however, that his new claims were covered by the exceptions in both
The post-conviction court concluded that the petition was successive and untimely, and it held that the escape clauses did not apply. It therefore dismissed the petition for post-conviction relief.
Petitioner аppealed, assigning error to, among other things, the post-conviction court‘s dismissal of the case. He argued that the escape clauses applied to his claims because they rested on a legal principle—the interpretation of
The superintendent responded that petitioner could have raised his escape-clause argument at the time of his first post-conviction proceeding and within two years of his conviction becoming final. The superintendent argued that, prior to J. C. N.-V., “no appellate authority foreclosed the argument that the Supreme Court endorsed in that case,” and all of the statutory construction principles and materials relied on in J. C. N.-V. were available to petitioner before that case was decided.
The Court of Appeals affirmed. Perez, 297 Or App 617. In reaching that conclusion, the Court of Appeals gave substantial weight to the waiver study on which the trial court had relied in waiving petitioner into adult court, noting that the study had conducted the type of analysis that
this court said was required in J. C. N.-V. Id. at 625-26. The Court of Appeals reasoned that
“[t]he waiver study put at issue the application of the Kent criteria, making it reasonably possible for petitioner to raise any issues regarding the juvenile court‘s inquiry under those criteria long before the Supreme Court‘s decision in J. C. N.-V.; in fact, given that the waiver study was based on the Kent criteria, it is not wholly implausible to think that, but for petitioner‘s stipulation to the waiver into adult court, the court would have conducted ‘the kind of inquiry contemplated by the Kent criterion’ that the J. C. N.-V. court held is required.”
Id. at 626. The Court of Appeals also noted that petitioner‘s first post-conviction proceeding occurred contemporaneously with the juvenile court proceedings in J. C. N.-V. Id. The Court of Appeals therefore concluded that petitioner‘s claims did not fall within the escape clauses. Id.
Petitioner filed a petition for review, arguing that the Court of Appeals had erred in its application of the escape clauses.6 We allowed the petition for review. We now affirm the decision of the post-conviction court, although based on reasoning somewhat different than that of the Court of Appeals.
II. ANALYSIS
We begin—and, because it is dispositive, end—with the claim preclusion bar contained in
“All grounds for relief claimed by petitioner in a petition pursuant to ORS 138.510 to 138.680 must be asserted in the original or amended petition, and any grounds not so asserted are deemed waived unless the court on hearing a subsequent petition finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition.”
Because this is petitioner‘s second petition for post-conviction relief,
that he could have brought in his first post-conviction petition, unless the claim “could not reasonably have been raised” in the earlier petition. To obtain consideration of any claims in this new petition, petitioner must show that that exception applies to the claim.
As he did below, petitioner argues that the escape clause applies in this case because petitioner‘s claims rest, in part, on this court‘s decision in J. C. N.-V. Petitioner contends that this court‘s decision in J. C. N.-V. was novel and surprising, and that it established legal principles that could not reasonably have been anticipated at the time of petitioner‘s first post-conviction petition. In addition, petitioner argues that, because he was 14 at the time of the original waiver and 18 at the time of the expiration of the statute of limitations, his youth should factor into the analysis.7
A. The Escape Clause
The first of those cases is Verduzco v. State of Oregon, 357 Or 553, 355 P3d 902 (2015). In Verduzco, the petitioner brought a claim of ineffective assistance of counsel, arguing that his trial counsel had performed deficiently by failing to advise him of the immigration consequences of his guilty plea. Id. at 559-60. In making that claim, the petitioner relied on the then-recent decision of the United States Supreme Court in Padilla v. Kentucky, 559 US 356, 130 S Ct 1473, 176 L Ed 2d 284 (2010), which held that the failure to advise a defendant of clear deportation consequences may constitute ineffective assistance of counsel.
Howеver, the petitioner had filed a previous post-conviction petition, shortly before Padilla was decided, in which he had raised the same claim. Verduzco, 357 Or at 557-58. We held that
“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 сonstitutional 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). However, we did not apply that analysis to the petitioner‘s claim in Verduzco because the petitioner had raised the same claim in an earlier petition. We reasoned that the escape clause did not apply because, “[h]aving raised those grounds for relief in his first post-conviction petition, [the petitioner] cannot claim that he could not reasonably have raised them [in that petition].” Id. at 573.
Chavez v. State of Oregon, 364 Or 654, 438 P3d 381 (2019), like Verduzco, concerned a claim that the petitioner‘s trial counsel had failed to provide specific advice about the deportation consequences of a guilty plea. In Chavez, the claim was brought in an untimely, but not successive, petition, so the only procedural bar to relief was the statute of limitations in
To determine whether the petitioner could reasonably have raised his claim during the statute of limitatiоns period, we reviewed the state of the law with respect to petitioner‘s claim between 1999 and 2001. Chavez, 364 Or at 659-61. In Lyons v. Pearce, 298 Or 554, 694 P2d 969 (1985), we had held, under the Oregon Constitution, that a defense attorney has a duty to advise noncitizen clients that a guilty plea may result in deportation. But we had not held, as Padilla ultimately would in 2010, that more specific advice about the immigration consequences of the plea was sometimes required. At the time that the statute of limitations on
We observed, however, that although no Oregon decision hаd addressed the issue, “the ‘almost unanimou[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.” Chavez, 364 Or at 663 (quoting Chaidez v. United States, 568 US 342, 350, 133 S Ct 1103, 185 L Ed 2d 149 (2013)) (alteration in Chavez). That is, most courts to consider the issue not only had rejected the rule adopted by the Supreme Court in Padilla but had rejected the more modest requirement—a general warning about deportation—that this court had imposed in Lyons. Chavez, 364 Or at 660-61.
Under those circumstances, we explained, the petitioner‘s claim could not reasonably have been raised in 2001:
“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. Rather, it is whether it reasonably could have been raised. 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.”
Id. at 663 (citations omitted). Because, as of 2001, the rule ultimately announced in Padilla had been roundly rejected by numerous appellate courts, we concluded that the petitioner‘s claim based on Padilla could not reasonably have been raised within the statute of limitations.
We next addressed the meaning of the escape clauses in White v. Premo (S065188), 365 Or 1, 443 P3d 597 (2019). White involved an
To answer that question, we reviewed the state of Eighth Amendment jurisprudence regarding juveniles at the time of the petitioner‘s trial through to the present. We noted, first, that in Stanford v. Kentucky, 492 US 361, 109 S Ct 2969, 106 L Ed 2d 306 (1989), the Supreme Court had rejected an Eighth Amendment challеnge to the execution of juvenile offenders older than 15. Further,
”Stanford remained the law until 12 years after petitioner‘s conviction and eight years after petitioner‘s first post-conviction petition, when in 2005, the Court decided Roper
v. Simmons, 543 US 551, 125 S Ct 1183, 161 L Ed 2d 1 (2005),] and held that the Eighth Amendment categorically prohibits states from putting juveniles to death.”
White, 365 Or at 8. We then observed that, subsequently, in Graham v. Florida, 560 US 48, 130 S Ct 2011, 176 L Ed 2d 825 (2010), the Supreme Court had held that the Eighth Amendment also categorically prohibits sentencing juvenile offenders to life without parole for nonhomicide offenses. Finally, we recounted that in 2012, in Miller, the Court had extended the principles of Graham and Roper to juveniles convicted of homicide, holding that, although the Eighth Amendment does not categorically bar life-without-parole sentences, it does “require[] the sentencer ‘to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.‘” White, 365 Or at 9 (quoting Miller, 567 US at 480).
In light of that context, we were
“not convinced that petitioner reasonably could have asserted a Miller claim at the time of his direct appeal or his earlier post-conviction proceeding. At those times, the Court had not yet held that juveniles typically possess traits that make them less blameworthy than adults, and certainly had not held that mandatory life-without-parole sentences for juveniles who commit homicide violate the Eighth Amendment.”
White, 365 Or at 11. As in Chavez, we noted that “the statutory question is not whether a claim conceivably could have been raised, but, rather, whether it reasonably could have been raised,” White, 365 Or at 11, and we held that Miller, like Padilla, was а “‘novel, unprecedented, [and] surprising‘” decision given the state of the case law at the time of the earlier proceedings, White, 365 Or at 11 (quoting Chavez, 364 Or at 663) (alteration in White).
Verduzco, Chavez, and White guide our analysis here. In each of those cases, we looked to the state of the law at the time of the petitioner‘s earlier opportunity to raise the claim in order to determine whether the claim could reasonably have been raised at that time. If controlling case law
at the time would have precluded the claim—for example, as Stanford likely would have barred a Miller claim prior to 2005—that circumstance would counsel a conclusion that the claim could not reasonably have been raised at the time. But we have never held that the existence of a controlling decision precluding the claim is absolutely necessary to show that the claim could not reasonably have been raised. In Chavez, there was no controlling case precluding an Oregon petitioner from raising a Padilla claim during the statute-of-limitations period, but we nevertheless held that such a claim could not reasonably have been raised, in light of the near-unanimous consensus against such a claim in other jurisdictions.
B. State v. J. C. N.-V.
Thus, to evaluate petitioner‘s argument in this case—that the rule that we adopted in J. C. N.-V. was so novel and surprising that a petitioner in 2008 could not reasonably have advanced an argument based on it—we examine the state of the case law and legal principles at that time, as well as the basis of our ultimate decision in J. C. N.-V.
The text at issue in J. C. N.-V. was the requirement in
Between 1985 and 2008, when petitioner filed his first post-conviction petition, neither this court nor the Court of Appeals had interpreted the phrase “sufficient sophistication
quality of the conduct involved.”11 The first appellate decision to interpret that phrase was State v. J. C. N.-V., 268 Or App 505, 342 P3d 1046 (2015), rev‘d, 359 Or 559, 380 P3d 248 (2016), in which the en banc Court of Appeals considered whether the juvenile court misapplied
“[t]he text, context, and legislative history of
ORS 419C.349(3) reflect the legislature‘s intent to allow waiver for those youths who, by nature of their sophistication and maturity, understand what they are doing in a physical sense and understand that their actions are wrong or will likely have criminal consequences.”
J. C. N.-V., 268 Or App at 539. In reaching that conclusion, the Court of Appeals focused on the phrase “nature and quality of the conduct,” and relied on, among other indicia, its “well-worn legal meaning in the context of criminal capacity,” id. at 518, dating back to its use to describe the common-law standard for the insanity defense in M‘Naghten‘s Case, 10 Clark & Fin 200, 8 Eng Rep 718 (1843). Two judges dissented, stating that they would have held “that waiver was intended to apply only to those ‘exceptional cases’ in which the court had considered the youth‘s developmental capacity.” 268 Or App at 555 (Egan, J., dissenting).
This court allowed review and reversed. In interpreting
in enacting
We also looked to the Supreme Court‘s decision in Kent, which had held that a “waiver decision implicated the juvenile‘s due process rights,” J. C. N.-V., 359 Or at 582, and had “appended to its decision a set of criteria that juvenile courts in the District of Columbia had used in deciding waiver issues, hinting that due process would be served if juvenile courts based their waiver decisions on such criteria.” Id. We concluded that portions of
We also examined other common law and statutory context, along with legislative history from 1983, 1985, and 1995. J. C. N.-V., 359 Or at 585-97. We concluded that “the legislature intended to have a trial court determine, from the evidence presented, whethеr the youth in question has sufficient adult-like mental, social and emotional capabilities to appreciate the relevant conduct, its consequences and criminality.” 359 Or at 599.
Petitioner argues that this court‘s decision in J. C. N.-V. was novel, unprecedented and surprising. He points first to the fact that, before the decisions in J. C. N.-V., no appellate decision had interpreted the key phrase in
We agree with petitioner that the meaning of
particular question is settled, but whether it reasonably is to be anticipated so that it can be raised and settled accordingly.” 357 Or at 571 (quoting Long, 166 Or App at 101) (emphases in original). Thus, the absence of a settled answer to a legal question is insufficient, on its own, to make a claim one that could not reasonably have been raised at an earlier time.12
We recognize that, if petitioner had raised his claims in 2008, a litigant opposing those claims could have argued that they were premised on an interpretation of
To the extent that petitioner suggests that J. C. N.-V. interpreted
“required a court to consider ‘the sophistication and maturity of the juvenile’ as an independent criterion relevant to a waiver decision, indicating that the court should consider the full panoply of a youth‘s capabilities that indicate ‘maturity’ and ‘sophistication.’ Based on the ordinary meaning of those terms, those capabilities would be the capabilities of normal adults that evidence heightened worldliness and discernment. Because those terms were used to determine, among other things, whether a youth was sufficiently blameworthy to stand trial as an adult, it seems logical that they would include adult-like traits that relate to traditional notions of blameworthiness beyond those necessary to establish criminal responsibility, such as capacities for premeditation and planning, impulse control,
independent judgment, and a more hardened personality and outlook. Given our understanding that the statutory phrase ‘sophistication and maturity’ came from the Kent criteria, it is logical to understand the phrase as requiring an inquiry into the extent to which a juvenile‘s mental, social and emotional developmental capabilities indicate adult-like capabilities indicative of blameworthiness.”
J. C. N.-V., 359 Or at 583-84 (footnote omitted). That is, J. C. N.-V. itself explained that its interpretаtion of the statute followed logically from the legislature‘s use of a phrase drawn from the Kent criteria.
This case thus differs markedly from those in which we have held that an intervening change in case law was sufficiently novel or surprising that a petitioner‘s claim based on the change in law could not reasonably have been asserted earlier. In Padilla, the Supreme Court issued a holding at odds with the conclusion previously reached by “[a]ll 10 federal appellate courts to consider the question” and “[a]ppellate courts in almost 30 States.” Chaidez, 568 US at 350-51. Miller represented the culmination of a dramatic and rapid shift in the Supreme Court‘s treatment of Eighth Amendment claims by juvenile defendants. Between 2005 and 2012, governing case law develоped from Stanford‘s rule that execution of juveniles was constitutionally permissible to Miller‘s holding that, even in homicide cases, “a lifetime in prison is a disproportionate sentence for
Petitioner also argues that, even if the question was an open one for purposes of appeal in 2008, his claims still could not reasonably have been raised because the rule adopted in J. C. N.-V. was contrary to the standard practice in juvenile courts at the time (and petitioner reads J. C. N.-V. to so imply). Assuming arguendo that petitioner‘s premise is correct, we still conclude that petitioner could reаsonably have raised his claims. The question under
C. Petitioner‘s Age
Petitioner also argues that the escape clause analysis should take into account his age. Because he was 17 or 18 at the time of his first petition for post-conviction relief, petitioner argues that we should consider the fact that “his status as a youth would have made it even more difficult to comprehend the significance of the statute or understand the ways in which he was prejudiced by its application to him.” In support of that argument, he relies on our decision in Gutale v. State of Oregon, 364 Or 502, 435 P3d 728 (2019). The superintendent argues that the argument is unpreserved, and that, in any event, petitioner‘s agе at the time plays no role in the analysis.
Petitioner was represented by counsel in his first post-conviction proceeding. As we have explained,
“[i]n Verduzco, Eklof [v. Steward, 360 Or 717, 385 P3d 1074 (2016)], and our other cases applying the escape clause to
the bar on successive petitions, we have considered whether a ground for relief reasonably could have been raised from the point of view of counsel. As noted, ORS 138.550(3) codifies claim preclusion principles: It addresses the question of whether a petitioner who already has litigated a petition for post-conviction relief may return to court and litigate a second time, and it provides that a petitioner may not do so where counsel reasonably could have raised the grounds at issue in that prior litigation.”
Gutale, 364 Or at 518 (citation omitted). Under
“By contrast, when the bar on successive petitions does not apply, the inquiry under the escape clause to the statute of limitations is whether a petitioner reasonably could have raised a ground for relief before any litigation has occurred. The focus of the reasonableness inquiry is therefore the petitioner, rather than an attorney representing the petitioner.”
364 Or at 518-19. That is, to the extent that Gutale made the petitioner the subject of the reasonableness inquiry, it did so only for the escape clause in
III. CONCLUSION
For the reasons given above, we reject pеtitioner‘s argument that he could not reasonably have raised his post-conviction claims in his first post-conviction petition. Because those claims could have been raised in the prior post-conviction proceeding, they “are deemed waived” and
cannot be raised in this proceeding.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.