Lead Opinion
Petitioner appeals the dismissal of his petition for post-conviction relief, in which he alleged two grounds for relief. First, petitioner claimed that his dangerous offender sentence was imposed unconstitutionally under the principles announced in Apprendi v. New Jersey,
The pertinent facts are not in dispute. Petitioner was convicted of first-degree manslaughter after a jury trial in 1989. In August 1989, petitioner was sentenced, pursuant to ORS 161.725 (1987) and ORS 161.735 (1987), as a dangerous offender, based in part on a finding by the sentencing court that he suffers from a severe personality disorder indicating a propensity toward criminal activity. As a result of his dangerous offender status, petitioner received an indeterminate sentence of 30 years, with a 15-year minimum sentence. Had he not been designated a dangerous offender, petitioner’s maximum indeterminate sentence for the crime of first-degree manslaughter would have been 20 years. ORS 163.118(2); ORS 161.605(1). On direct appeal in 1990, this court affirmed petitioner’s conviction without opinion, and the Oregon Supreme Court denied review. State v. Teague,
Petitioner’s principal claim in the current petition is that the imposition of a dangerous offender sentence for his crime violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution, as interpreted and applied in Apprendi, because the predicate facts underlying his dangerous offender sentence enhancement were neither pleaded in the indictment nor found by the jury beyond a reasonable doubt. Petitioner also asserts that he received ineffective assistance of trial counsel in violation of state and federal constitutional provisions because his counsel failed to argue that the facts on which the dangerous offender sentence was based should have been pleaded in the indictment and found by the jury beyond a reasonable doubt.
The post-conviction court dismissed the petition on three alternative grounds: (1) the petition was untimely under ORS 138.510(3); (2) petitioner’s allegations were barred by the successive petition bar of ORS 138.550(3); and (3) even if petitioner’s claims were not procedurally barred, the imposition of petitioner’s dangerous offender sentence was not unconstitutional under the legal principles announced in Apprendi. Petitioner asserts on appeal that the post-conviction court erred in each of its conclusions. Defendant superintendent responds that the trial court was correct in each of those conclusions and emphasizes that any one is sufficient to compel affirmance.
By way of supplemental briefing, the parties have addressed the additional issue of
As explained at length below, Oregon courts are not obligated to follow federal retroactivity principles in state post-conviction proceedings, but it is well settled that we do so for prudential reasons. Consequently, the retroactivity of the rule announced in Apprendi should be tested under Teague v. Lane. Applying that test, we conclude, as has the overwhelming majority of other jurisdictions, that Apprendi does not apply retroactively to collateral review proceedings such as those for post-conviction relief. Because that conclusion completely disposes of petitioner’s challenge to his dangerous offender sentence, we do not decide whether that challenge is untimely under ORS 138.510(3) or is precluded by the successive petition bar of ORS 138.550(3). Finally, we reject petitioner’s ineffective assistance of counsel claim. We address each matter in turn.
I. RETROACTIVITY ANALYSIS IN POST-CONVICTION PROCEEDINGS
The federal Supremacy Clause does not require states to adhere to federal retroactivity principles in determining whether to grant post-conviction relief to Oregon prisoners who rely on newly announced federal constitutional pronouncements. Rather, states are free to apply new federal constitutional pronouncements to a broader range of cases — that is, to give those pronouncements greater retroactive application — than federal law requires of federal courts. That much has long been settled. See, e.g., Johnson v. New Jersey,
To place that precedent — and the retroactivity issue — in perspective, we begin with a bit of background. The United States Constitution requires states to furnish state prisoners with “some clearly defined method by which they may raise claims of denial of federal rights.” Young v. Ragen,
4. A few years later, in 1959, the legislature enacted the Post-Conviction Hearing Act. Or Laws 1959, ch 636, §§ 1-24. The Act was intended to eliminate the multiplicity of remedies and to ensure the adequacy of state post-conviction procedures to address federal constitutional defects, as required by federal law. See generally Collins and Neil, 39 Or L Rev at 337-40. To that end, the legislature replaced the common-law writ of habeas corpus with a single uniform statutory proceeding. See Benson v. Gladden,
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,
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,
“[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 be applied retroactively.”
Our conclusion that retroactivity principles apply in post-conviction proceedings leads to a second issue: Do we apply federal standards for retroactivity to new federal constitutional pronouncements or do we apply some other standard? That issue also is resolved by precedent.
In Fair, the Oregon Supreme Court reviewed its case law involving the retroactive application of newly announced federal constitutional principles and concluded:
“We may draw two conclusions from our recent decisions on retroactivity. First, 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. Secondly, we have tended to restrict the retroactive application of newly - announced rights, giving them only the application which the Supreme Court has adopted as a minimum.”
Fair, at a minimum, announces a preferred approach and stands for the proposition that Oregon courts generally should apply federal retroactivity rules to newly announced federal principles, unless we identify a sound reason to depart from them. That approach remains sound and should be followed in this case. As described earlier, the very existence of our statutory post-conviction relief procedures is, in effect, a reflection of principles of comity and federalism: states must respect the federal constitutional rights of their state prisoners. Those same principles were at work in our preexisting habeas jurisprudence, where the Oregon Supreme Court adopted an approach of aligning its habeas corpus procedures, as nearly as possible, with the procedures and standards followed by federal courts. Huffman,
“There is nothing to prevent this court from adopting a more strict rule [of retroactivity] than that enunciated by the United States Supreme Court, but in this field of law it adds nothing to consistent and orderly judicial process.”
State v. Evans,
-II. APPLICATION OF TEAGUE v. LANE
Under Teague v. Lane, newly announced constitutional rules apply retroactively to cases on collateral review only in two narrow circumstances.
The standard is one that few new pronouncements are likely to satisfy. As the Supreme Court itself has observed, new “watershed” rules are inevitably a rarity: “Because we operate from the premise that such procedures would be so central to an accurate determination of innocence or guilt, we believe it unlikely that many such components of basic due process have yet to emerge.” Teague v. Lane,
The Supreme Court’s holding in Apprendi is that a jury, rather than a judge, must determine the facts that support a statutory sentencing enhancement beyond a statutory maximum and that the determination must be by proof beyond a reasonable doubt, rather than a preponderance. The Apprendi rule therefore has two aspects: (1) who must find the facts that enhance the sentence beyond the maximum (a jury), and (2) the standard of proof that applies to the factfinding (beyond a reasonable doubt). Every appellate court in the country that has considered the retroactivity of Apprendi’s holding, save one,
The Supreme Court has identified Gideon u. Wainwright,
• Gideon applies to every felony prosecution, in contrast to Apprendi, which comes into play only in the subset of criminal cases in which a defendant is sentenced beyond the statutory maximum. Apprendi therefore did not announce the kind of sweeping rule contemplated by Teague v. Lane’s exception for watershed rules. United States v. Sanchez-Cervantes,282 F3d 664 , 669 (9th Cir), cert den, _ US _ ,123 S Ct 48 (2002); United States v. Sanders,247 F3d 139 , 150 (4th Cir), cert den,534 US 1032 (2001).
• The applicable Teague v. Lane exception applies only to those procedures without which the likelihood of an accurate conviction is seriously diminished. Apprendi’s holding does not protect the innocent from erroneous conviction but, rather, protects the guilty from sentences beyond the statutory maximum. Sanchez-Cervantes,282 F3d at 669-70 ; United States v. Moss,252 F3d 993 , 999 (8th Cir 2001), cert den,534 US 1097 (2002).
• Apprendi is not a “watershed” rule because judges can constitutionally increase a criminal defendant’s sentence based on facts that a judge finds by a preponderance of the evidence, provided that increase does not exceed the statutory maximum. Sanders,247 F3d at 150 ; Moss,252 F3d at 1000 .
• Although Gideon announced a new bedrock principle by holding that the right to counsel is fundamental to any felony criminal trial, Apprendi “merely clarified and extended the scope of a preexisting right — the right to have all convictions supported by proof beyond a reasonable doubt.” United States v. Mora,293 F3d 1213 , 1219 (10th Cir), cert den, _ US _ ,123 S Ct 388 (2002).
Although all of those observations have persuasive force, they are eclipsed by one further factor that the courts have relied on — namely, that Apprendi is subject to harmless error/plain error analysis. See, e.g.,Moss,
“Further supporting the view that Apprendi does not rise to the level of a watershed change in criminal procedure is the fact that the maj ority of the federal circuit courts have subjected Apprendi claims to harmless and plain error review. * * * As these courts have recognized, it is possible for a criminal defendant to have a fair and accurate trial without the new procedural protection offered by Apprendi. None of these cases have suggested that failure to submit the question of [an enhanced sentencing factor] to a jury is structural error. We do not suggest, of course, that all structural errors satisfy Teague’s second exception. We merelyemphasize that finding something to be a structural error would seem to be a necessary predicate for a new rule to apply retroactively under Teague.”
Sanders,
We therefore hold that Apprendi does not apply retroactively in post-conviction proceedings in this state. As a result, we do not need to decide whether petitioner’s claims were untimely under ORS 138.510(3) or were precluded by the successive petition bar of ORS 138.550(3). Petitioner’s claim that his dangerous offender sentence is unconstitutional under Apprendi was properly dismissed because petitioner may not avail himself of the Apprendi rule in this case.
III. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
The only remaining issue is whether the post-conviction court also properly dismissed petitioner’s ineffective assistance of counsel claim. Petitioner’s claim in that regard requires little discussion. To prevail on a claim of ineffective assistance of counsel, petitioner must show that “trial counsel failed to exercise reasonable professional skill and judgment and that [he] suffered prejudice as a result.” Trujillo v. Maass,
IV. CONCLUSION
In summary, federal retroactivity principles govern petitioner’s ability to assert a claim for post-conviction relief based on the rule of law announced in Apprendi. Under the guidelines set forth in Teague v. Lane, newly announced constitutional rules do not apply retroactively to cases on collateral review unless the newly announced rule is a “watershed rule of criminal procedure.” For the reasons stated above, the rule in Apprendi is not such a rule. Petitioner, therefore, may not avail himself of the Apprendi rule in this post-conviction proceeding. Additionally, the post-conviction court correctly dismissed petitioner’s ineffective assistance of counsel claim.
Affirmed.
Notes
US Const, Art VI, cl 2.
The Oregon Supreme Court had been applying issue preclusion (then termed “res judicata”) principles in habeas corpus cases for years. See, e.g., Barber v. Gladden,
Frequently, the fact that a newly announced principle was not subject to issue preclusion was a given; the only point in dispute was whether a newly announced constitutional principle should be applied retroactively. When the answer has been yes, the petitioner has prevailed. See, e.g., Holbert v. Gladden,
On occasion, this court has declined to address retroactivity if the record established that a new constitutional rule had been earlier raised and abandoned by the petitioner and so the claim was procedurally barred in any event. See, e.g., Boyer v. State of Oregon,
For the most part, the dissent’s analysis is not responsive to ours. The dissent does not address the extensive body of case law, most of it from the Oregon Supreme Court, analyzing the retroactivity of new constitutional pronouncements in deciding whether a post-conviction petitioner may prevail based on a change in the law since his conviction.
In particular, the court cited Bouge,
See Cornell v. Cupp,
The exception is a decision of one of the intermediate appellate courts of Illinois. See People v. Beachem, 317 Ill App 3d 693, 706,
Even in Illinois, the intermediate appellate courts do not agree on the question and the state supreme court has not resolved the conflict. See, e.g., People v. Kizer, 318 Ill App 3d 238,
See also Ring v. Arizona,
Concurrence Opinion
concurring in part, dissenting in part.
Petitioner appeals the dismissal of his petition for post-conviction relief. ORS 138.650. That petition, which challenged petitioner’s dangerous offender sentence, alleged, variously, that the sentence was unconstitutional because it was based on facts not pleaded in the indictment and not found by the jury beyond a reasonable doubt, and that he received inadequate assistance of trial counsel
As explained below, I would conclude that petitioner has stated cognizable claims for post-conviction relief pursuant to ORS 138.530(1)(a) and ORS 138.530(1)(c), for the following reasons: (1) The retroactivity test of Teague v. Lane,
I. THE RETROACTIVITY ANALYSIS OF TEAGUE v. LANE DOES NOT CONTROL THE COGNIZABILITY OF FEDERAL CONSTITUTIONALCLAIMS UNDER OREGON’S POST-CONVICTION RELIEF STATUTES
The threshold question here is whether petitioner’s Apprendi-based claims are cognizable in state post-conviction proceedings at all. That, in turn, implicates the subsidiary question of whether the retroactivity analysis of Teague v. Lane applies to federal constitutional claims under Oregon’s post-conviction statutes. For the reasons set forth below, I conclude that the Teague retroactivity analysis does not govern whether relief for federal constitutional violations is available in state post-conviction proceedings.
As an initial matter, we have developed a body of nonconstitutional law (discussed more fully below, see
To answer that question, we must examine Teague and its precedential underpinnings. See, e.g., Linkletter v. Walker,
The Court, as an initial matter, confronted the question of how and when newly announced constitutional principles should be applied retroactively on collateral review in federal habeas corpus proceedings. The Court began by noting that its case law concerning when new constitutional principles should be applied was not entirely consistent. Id. at 300. The Court’s starting point was Linkletter.
In Linkletter, the Court had determined that the retroactivity of an exclusionary principle announced in another case should be determined by examining the purpose of the exclusionary rule, the reliance of the states on prior law, and the effect on the administration of justice of a retroactive application of the exclusionary rule. Teague,
After Linkletter, in Mackey, Justice Harlan, dissenting,
“While, as I have just stated, I think it clear what law should be applied to nonfinal convictions here on direct review, the choice of law problem as it applies to cases here on habeas seems to me a much more difficult one. However, that choice, in my view, is also one that can be responsibly made only by focusing, in the first instance, on the nature, function, and scope of the adjudicatory process in which such cases arise. The relevant frame of reference, in other words, is not the purpose of the new rule whose benefit the petitioner seeks, but instead the purposes for which the writ of habeas corpus is made available.”
Id. at 682. Justice Harlan then summarized historical limitations on the availability of the writ of habeas corpus, noting, in particular, the principles of procedural default for failure to raise an issue on direct appeal. Id. at 682-84. He concluded:
“In my view, the issues respectively presented by [the two habeas cases at issue] — whether the new rules of [substantive constitutional law] should be applied ‘retroactively’— must be considered as none other than a problem as to the scope of the habeas writ. We can properly decline to apply the [new substantive constitutional law] to the present cases only if that is consistent with the reasons for the provision, in our federal legal system, of a habeas corpus proceeding to test the validity of an individual’s official confinement.”
Id. at 684. In concluding that it would generally be “sounder” to apply the law as it existed at the time a conviction became final, Justice Harlan relied, in part, on what he perceived as Congress’s intent in crafting federal habeas corpus statutes. Id. at 687-88 n 5. In proposing that the general rule for habeas corpus cases should involve “defining [constitutional] errors according to the law in effect when a conviction became final,” id. at 692, he proposed two exceptions: the first for “substantive due process” issues, id. at
After Mackey but before Teague, the Court, in Griffith, adopted the first prong of Justice Harlan’s proposed retroactivity analysis from the Mackey dissent — that newly announced constitutional principles would be applied on direct review.
In Teague, the Court also elaborated on the reasons for treating the retroactivity question differently depending on whether the issue arose on direct appeal or on collateral review in habeas. The Court noted, as had Justice Harlan in Mackey, the historic limitations on the writ of habeas corpus, observed that procedural default rules limited a petitioner’s federal habeas corpus claims in numerous ways, and “recognized that interests of comity and finality must also be considered in determining the proper scope of habeas review.” Teague,
The question in this case is whether Teague expresses a general federal constitutional rule of nonretroactivity for cases on collateral review that is applicable in a context other than the federal habeas corpus context, e.g., state post-conviction proceedings. I conclude that it does not. Although Teague refers generically to “collateral review” at a number of points, and that term could be read to encompass review in state post-conviction proceedings, there is no suggestion that the general rule of nonretroactivity applied in federal habeas corpus cases is constitutionally mandated to be applied in any other context.
One thing is entirely clear from Teague, and from Justice Harlan’s dissent in Mackey, which was ultimately adopted: The retroactivity of a newly announced rule of constitutional criminal procedure does not depend primarily on the nature or magnitude of the constitutional right involved, but on the procedural posture of the case in which the issue arises. If the case is before the court on direct review (and, thus, the underlying judgment is nonfinal), then any newly announced rule of constitutional criminal procedure will be applicable, regardless of its nature or magnitude. On the other hand, if the case before the court is a federal habeas corpus case, then the general rule is that a newly announced rule of constitutional criminal procedure will not be applied to undo a conviction that became final before the new rule was announced. Although exceptions to that general rule of nonretroactivity may depend on the nature of the constitutional rights involved, the basic premise of current retroactivity
Nor is there any suggestion in Teague itself (or in Justice Harlan’s dissent in Mackey, which Teague adopted) that the rules of direct appeal retroactivity and collateral review nonretroactivity are themselves based on the requirements of the Due Process Clause or on any other constitutional provision that is made applicable to the states through the Fourteenth Amendment. Rather, to the extent that the Court expressed concerns of a constitutional magnitude regarding retroactivity on collateral review, those concerns hinged on federalism and comity — namely, concerns that constantly relitigating constitutional issues based on evolving law imposed a significant burden on states. Teague,
Those concerns simply do not transfer, either as a matter of policy or a matter of federal constitutional law, to state post-conviction proceedings. State post-conviction relief provides remedies defined by the legislature that enacted the post-conviction statutes.
In sum, the analysis set forth in Teague does not apply as a sort of Supremacy Clause-mandated overlay to determine whether claims of due process violations based on Apprendi are cognizable in a state post-conviction proceeding. Rather, our state’s post-conviction statutes themselves, and related Oregon appellate decisions, govern when, or whether, such “retroactive” relief is available in Oregon courts.
The majority concludes, nevertheless, that Oregon case law requires us to follow federal precedent on retroactivity. I disagree.
The majority relies, in part, on State v. Fair,
The Fair court noted that it had “closely followed the retroactivity rules adopted by the United States Supreme Court.”
The majority’s suggestion that the court’s decision in Fair somehow forces us to apply the federal habeas corpus retroactivity rule announced in Teague is, frankly, puzzling. The court in Fair did not “adopt” a federal retroactivity analysis. It noted its freedom to apply or not apply that analysis as it chose, and emphasized that it was looking to the Court’s cases “for guidance.” Fair,
Nor does our own prior case law mandate that we apply the federal habeas corpus standard enunciated in Teague. The majority states that “we are to adhere to federal precedent in analyzing the retroactivity of newly announced federal constitutional rules asserted as grounds” for post-conviction relief.
For example, in Kellotat v. Cupp,
Rather, to the contrary, Palmer v. State of Oregon,
Long is the law of this court. The majority does not propose to overrule Long and its antecedents or offer any persuasive reason for abandoning that line of cases in favor of some federally announced, and potentially variable, standard of collateral cognizability of federal claims. Long, not Teague, controls — and, as described below,
II. EVEN IF TEAGUE v. LANE WERE APPLICABLE, APPRENDI ANNOUNCES A ‘WATERSHED” RULE THAT IS SUBJECT TO RETROACTIVE APPLICATION IN COLLATERAL PROCEEDINGS
As noted,
Thus, the essential quality of a “watershed” new rule for Teague purposes is that it fundamentally implicates and enhances the accuracy of fact-finding procedures in the criminal trial process. See Teague,
Here, the majority implicitly, and correctly, acknowledges that the Apprendi rule is a “new” rule for Teague retroactivity purposes.
Even assuming that Teague controls the cognizability of Apprendi-based claims under Oregon’s post-conviction relief statutes, I disagree: Apprendi radically altered deeply grounded premises about the respective functions of court and jury in criminal sentencing. Moreover, at least with respect to the determination of “future dangerousness” for sentencing enhancement purposes, the new procedures Apprendi mandates qualitatively enhance the accuracy of the criminal fact-finding process.
My assessment oí Apprendi as announcing a “watershed rule” is inextricably intertwined with my consideration, below, of the merits of petitioner’s argument that certain features of Oregon’s dangerous offender sentencing statutes cannot be reconciled with Apprendi. I defer much of my substantive discussion of Apprendi to my analysis of the merits. See
First, under Apprendi, an offender’s future dangerousness must be determined by a jury, beyond a reasonable doubt, rather than by a judge, by a preponderance of the evidence. Thus, Apprendi alters not only who makes that determination — which can result in an additional 10 years’ incarceration — but also the quantum of proof required to establish that fact. See Apprendi,
Second, and in a related sense, that change in the law qualitatively alters and enhances the accuracy of the fact-finding process. See In re Winship,
In sum, Apprendi transforms the traditional landscape of criminal sentencing and goes to the very constitutional “bedrock” of a defendant’s right to have a jury determine beyond a reasonable doubt a fact that will result in the imposition of additional years of incarceration beyond the statutory maximum. I acknowledge, as the majority emphasizes,
The Supreme Court has not yet spoken on Apprendi's retroactivity. Pending the Court’s direction, I would conclude that, as applied to the determination of “future dangerousness” under Oregon’s dangerous offender statutes, Apprendi announces a “watershed rule.”
III. PROCEDURAL BARS: PETITIONER’S CLAIM FOR INEFFECTIVE ASSISTANCE OF COUNSEL IS TIME-BARRED. PETITIONER’S REMAINING CLAIMS ARE NEITHER TIME-BARRED NOR PRECLUDED UNDER THE “SUCCESSIVE-PETITION” BAR
I turn, then, to whether petitioner’s present claims are procedurally barred under Oregon’s post-conviction relief statutes.
“A petition [for post-conviction relief] 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.”
(Emphasis added.) Petitioner’s petition for post-conviction relief was filed in March 2000, more than two years after the date of his conviction, after appeal to the Oregon appellate courts, became final. Thus, his petition would be barred under ORS 138.510(3)(b) unless he asserted grounds for relief “which could not reasonably have been raised in the original or amended petition.”
In a similar manner, ORS 138.550(3) provides, in part:
“All 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.”
(Emphasis added.) Because petitioner previously had sought post-conviction relief before seeking relief in the present case, his present petition is barred unless it asserts grounds for relief “which could not reasonably have been raised in the original or amended petition.” Id.
The question, then, regardless of whether ORS 138.510(3) or ORS 138.550(3) applies, is whether the grounds for relief that petitioner asserts in the present case “could not reasonably have been raised in the original or amended petition.” In Long,
“[W]hen a new constitutional principle has been articulated between the time of a petitioner’s direct appeal and the post-conviction proceeding, a claim based on the new constitutional principle will be considered in the post-conviction proceeding even though it was not raised at trial or on appeal. The same result does not necessarily follow where the 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. 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.”
(Emphasis in original; citations omitted.)
Petitioner asserts that the post-conviction court erred in concluding that his present claims should reasonably have been raised in his original petition because the rule of law that was foreshadowed in Jones v. United States,
As noted above, petitioner asserted two bases for his post-conviction claims. First, he asserted that, because the Due Process Clause requires that the facts upon which an enhanced sentence beyond the statutory maximum is based be pleaded in the indictment and found by the jury, his sentence was unconstitutional.
With respect to inadequate assistance, the majority concludes that petitioner’s complaint fails because his Apprendi-based claims are sufficiently “new” that trial counsel cannot reasonably be faulted for “not anticipating] that the law would develop as it did.”
Petitioner’s other claim, that he is entitled to post-conviction relief on the ground that his sentence was unconstitutionally excessive, ORS 138.530(1)(c), requires a very different analysis. Because of the nature of the escape clause provisions of ORS 138.510(3) and ORS 138.550(3), a determination of whether petitioner is excused from the time constraints provided by those statutes necessarily requires some analysis of the substance of his claim.
Defendant was sentenced as a dangerous offender pursuant to ORS 161.725(1) (1987), which allowed the court to impose an indeterminate sentence of 30 years if “[t]he defendant is being sentenced for a Class A felony, and the court finds that the defendant is suffering from a severe personality disorder
Here, defendant argues — and the post-conviction court agreed — that petitioner could and should have made a constitutional challenge. to that aspect of the dangerous offender sentencing scheme in a timely petition for post-conviction relief, because Apprendi and Jones did not establish a new principle of constitutional law. Defendant argues that those cases were, in fact, substantially similar to Oregon decisions that predated petitioner’s conviction. In so arguing, defendant first invokes Quinn.
In Quinn, the defendant challenged the constitutionality of a murder sentencing scheme that permitted the jury to convict him of murder based on a specified mental state, but allowed the sentencing court to impose a sentence of death if the court found that the murder “was committed with a greater culpable mental state than that found by the jury.”
“We have upheld other enhanced penalty statutes even though they required additional post-trial findings by the court as a basis for a greater sentence. In particular, we have upheld the former Habitual Criminal Act and sexually dangerous offender statutes over challenges that the procedures violated the right to trial by jury of the facts upon which enhanced punishment was to be based. The difference between those statutes and [the murder sentencing scheme at issue], however, is found in the simple principle that the facts which constitute the crime are for the jury and those which characterize the defendant are for the sentencing court.”
Quinn,
Wedge addressed a similar issue, which concerned a judicially imposed minimum sentence for use of a firearm during the commission of the crime for which the defendant was sentenced. There, it was unclear from the indictment whether the state was alleging that the defendant used a knife or a gun in the course of a first-degree robbery.
In State v. Mitchell,
“[t]he defendant is being sentenced for a felony that seriously endangered the life or safety of another, has been previously convicted of a felony not related to the instant crime as a single criminal episode, and the court finds that the defendant is suffering from a severe personality disorder indicating a propensity toward criminal activity.”
ORS 161.725(2) (1987). The issue in Mitchell was whether the defendant was entitled to a jury determination that the crime for which he was being sentenced was one that “seriously endangered the life or safety of another.”
Even before Mitchell, we had held on two occasions that the Due Process Clause did not require proof beyond a reasonable doubt that a criminal defendant had a “severe personality disorder indicating a propensity toward criminal activity.” State v. Hunter,
In sum, at the time petitioner’s sentence was imposed — and at the time his initial post-conviction petition was timely filed — Oregon courts had held that the Due Process Clause did not require that the sentence-enhancing fact that a defendant suffered a “severe personality disorder indicating a propensity toward criminal activity” be proved beyond a reasonable doubt. However, our cases did hold that Article I, section 11, as well as the Due Process Clause, required that the finding that the crime for which the defendant was being sentenced “seriously endangered the life or safety of another” be found by a jury beyond a reasonable doubt, because the latter “relates particularly to the crime for which the offender is being sentenced.” Mitchell,
Given the contemporary consensus of Oregon appellate precedent, a post-conviction petitioner could reasonably have viewed the argument that he was entitled to a jury’s determination as to whether he suffered from a severe personality disorder indicating a propensity toward crimes that seriously endanger the life or safety of another as foreclosed by settled precedent. As noted, Hunter and Sanders rejected similar due process arguments. Mitchell, Quinn, and Wedge, which concerned only facts that related to the crime itself, did not call into question our conclusion in Hunter and Sanders. Rather, they implicitly, but necessarily, confirmed the correctness of our holdings by drawing, and reiterating, the distinction between circumstances of the crime and the personal characteristics of the offender.
Defendant does not suggest that, regardless of how the Apprendi rule squares with the analyses of Quinn and Wedge, petitioner could have “reasonably anticipated” the Apprendi rule based on federal precedent. Defendant’s reticence in that regard is unsurprising. Given the state of then-contemporaneous federal law, the Apprendi rule could not have been reasonably anticipated until the late 1990s. That conclusion comports with the lengthy discussions of United States Supreme Court precedent (or the lack thereof) in Apprendi itself, as well as
Courts determining whether a constitutional principle qualifies as “newly announced” for purposes of Teague have looked at factors similar to those we consider in. determining whether a rule of law reasonably could have been anticipated. For the most part, federal courts have concluded that the rule announced in Apprendi and foreshadowed in Jones, was, in fact, a newly announced principle of constitutional law. In McCoy v. United States,
“Apprendi established a new rule of criminal procedure, one that was not dictated by precedent existing before the Apprendi decision was released. Until it was announced, all circuits had been upholding sentences that were greater than the otherwise applicable maximum sentences based on drug quantity not charged in the indictment, submitted to the jury, and proved beyond a reasonable doubt.”
See also United States v. Moss, 252 F3d 993, 997-98 (8th Cir 2001), cert den,
I return to Apprendi’s immediate antecedents. The first of those cases was Almendarez-Torres, decided in 1998, in which the Court considered whether a statute that provided that a person who had been convicted of an aggravated felony and who had returned to the United States after having been deported was subject to up to 20 years’ imprisonment described a separate crime from merely returning to the country after an initial deportation (which otherwise was punishable by a sentence of no more than two years) — or whether consideration of the defendant’s commission of an aggravated felony was only a sentence enhancement factor.
In reaching its conclusion, the Almendarez-Torres majority relied heavily on Patterson v. New York,
In Jones, decided the following year, the Court again split in a 5-4 decision. However, the four dissenters from Almendarez-Torres were in the majority, joined by one other justice. The question in Jones was whether a federal carjacking statute described one crime, or three different crimes with three different maximum penalties: 15 years for carjacking; 25 years if serious bodily injury results; up to life imprisonment if death results.
In 2000, the Supreme Court decided Apprendi. There, the defendant was convicted of, inter alia, possession of a firearm for an unlawful purpose, which, under New Jersey law, carried a maximum sentence of 10 years.
“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
Id. at 490 (emphasis added).
We recently summarized the Court’s Apprendi decision as follows:
“The Court noted that, at the time of the nation’s founding, ‘[a]ny possible distinction between an “element” of a felony offense and a “sentencing factor” was unknown’ and that, ‘[a]s a general rule, criminal proceedings were submitted to a jury after being initiated by an indictment containing all the facts and circumstances which constitute the offensef.]’ [530 US] at 478 (internal quotation omitted). The Court explained that, as a result of those established practices and principles, the substantive criminal law ‘tended to be sanction-specific,’ id. at 479, and, although applicable statutes might prescribe a range of penalties, trial judges otherwise typically have had little discretion in imposing the sentencefor a particular offense. Id. at 479-80.
“The Court stated that the resulting ‘historic link’ between a conviction and the sentence for that conviction ‘highlight[s] the novelty of a legislative scheme that removes the jury from the determination of a fact that, if found, exposes the criminal defendant to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.’ Id. at 482-83 (emphasis in original). After reviewing its earlier case law relating to facts affecting the severity of a defendant’s sentence — particularly Jones v. United States, 526 US 227,119 S Ct 1215 ,143 L Ed 2d 311 (1999)—the Court concluded that, ‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’Id. at 490.”
State v. Crain,
In sum, Apprendi held as a matter of constitutional law what the Court had suggested in the nonconstitutional Jones case a year earlier and what the Almendarez-Torres dissent had proposed two years earlier: Facts, other than facts of prior conviction, must be decided by a jury under the “reasonable doubt” standard if the existence of such facts are used to increase the penalty for a crime beyond the prescribed statutory maximum. See also Ring v. Arizona,
I return to this case. The question before us is whether, given the state of the law at the time petitioner timely filed his first petition for post-conviction relief, the constitutionality of his dangerous offender sentence enhancement could “reasonably have been raised.” ORS 138.510(3); ORS 138.550(3). As noted above, the answer depends on whether the constitutional principle at issue “is a new one, or if its extension to a particular statute, circumstance, or setting is novel, unprecedented, or surprising.” Long,
Here, the constitutional principle underlying petitioner’s Apprendi-based claim — viz., that due process requires proof beyond a reasonable doubt as to every fact necessary to constitute the crime — is not new. See Winship,
As recounted above, the rule of law from Quinn, Wedge, and Mitchell established that (1) sentence enhancement factors that related to the commission of the crime itself must be decided by the jury, but (2) sentence enhancement factors “which characterize [a] defendant are for the sentencing court.” Quinn,
In sum, a post-conviction petitioner in petitioner’s position could not, and would not, have “reasonably’ anticipated petitioner’s present constitutional claims before Jones and Apprendi. See Long,
I thus conclude that the grounds for relief asserted in petitioner’s petition for post-conviction relief “could not reasonably have been raised in the original or amended petition.” ORS 138.510(3); ORS 138.550(3). Consequently, the trial court should not have dismissed petitioner’s petition on the grounds that it was barred under ORS 138.510(3) and ORS 138.550(3).
IV. THE MERITS: PETITIONER HAS STATED LEGALLY COGNIZABLE CLAIMS FOR POST-CONVICTION RELIEF UNDER APPRENDI
The trial court here not only granted the state’s motion to dismiss on procedural grounds, but also ruled in the alternative:
“Even if petitioner’s filing is deemed timely, neither the decision in Apprendi or Jones supports petitioner’s allegations. Petitioner was convicted of a Class A felony, and the sentencing court did not condition the dangerous offender sentence on any findings that could be characterized as facts of the crime. The decisions in Apprendi and Jones are therefore inapplicable in the present case.”
Thus, the court reasoned that petitioner’s claim failed on the merits under Apprendi, apparently based on the conclusion that Apprendi drew the same distinction drawn by the courts in Quinn, Wedge, and Mitchell, i.e., that “facts which constitute the crime are for the jury and those which characterize the defendant are for the sentencing court.” Quinn,
Defendant asserts that Apprendi must be understood to establish a right to “a jury trial on a disputed fact, and consequently to have the fact alleged in the indictment, only if the fact both serves to aggravate the crime, by requiring or authorizing the imposition of an enhanced sentence, and relates to the manner or circumstances in which [the criminal defendant] committed the crime.” (Emphasis in original.) In making that assertion, defendant notes that Apprendi and Jones both concerned circumstances of the crime and suggests that the Court’s holding must be limited to such circumstances. The only language in the Apprendi opinion to which defendant points in support of his proposed rule of law is the following:
“New Jersey’s reliance on Almendarez-Torres is also unavailing. The reasons supporting an exception from the general rule for the statute construed in that case do not apply to the New Jersey statute. Whereas recidivism ‘does not relate to the commission of the offense’ itself,523 US at 230, 244 , New Jersey’s biased purpose inquiry goes precisely to what happened in the ‘commission of the offense. ’ Moreover, there is a vast difference between accepting the validity of a prior judgment of conviction entered in aproceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof.”
Apprendi,
I disagree. First, whatever the Court might otherwise have intended to express regarding New Jersey’s misreliance on Almendarez-Torres, “any fact,” other than prior convictions, means “any fact.” Not “some facts.” Not “any fact relating solely to the commission of the offense.” We are not free to engage in revisionist reconstruction of the Court’s plain language. Nor are we free to deprecate that explicit directive as dictum. Rather, as confirmed by the Court’s recent decision in Ring, we must assume that the Court meant what it said in Apprendi.
Further, the Court’s “any fact” language comports contextually with the totality of its analysis. The Court discussed at length the history of sentencing practices and sentencing enhancements, as well as its prior case law that touched on the subject. A significant focus of the Court’s discussion was on whether the “sentence enhancement” elevated the crime beyond the prescribed statutory maximum. For example, after reviewing that history, the Court concluded, “nothing * * * suggests that it is impermissible for judges to exercise discretion — taking into consideration various factors relating both to offense and offender — in imposing a judgment within the range prescribed by statute.” Apprendi, 530 US at 481 (emphasis in original).
Finally, the excerpt on which defendant relies concerned the Court’s treatment of Almendarez-Torres, and the Court had a number of other things to say about that decision. In Apprendi, the Court described Almendarez-Torres as an “exceptional departure” from the practice of requiring proof beyond a reasonable doubt of facts used to enhance penalties. Id. at 487. It described the case at length, and stated:
“Both the certainty that procedural safeguards attached to any ‘fact’ of prior conviction, and the reality that [the defendant] did not challenge the accuracy of that ‘fact’ in his case, mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a ‘fact’ increasing punishment beyond the maximum of the statutory range.”
Id. at 488 (footnote omitted). The Court concluded:
“Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, [the defendant] does not contest the decision’s validity and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the outset.”
Id. at 489-90 (footnote omitted; emphasis added).
The Court, thus, entertained doubts about the vitality of Almendarez-Torres in light of its broad holding, but maintained the rule announced in that case concerning “facts” relating to recidivism as the “narrow exception” to the broad rule it was announcing. In short, while AlmendarezTorres may have made something of the distinction between facts that relate to the commission of an offense and other types of facts, the Apprendi Court did not. It discussed the “fact” of recidivism — which clearly does not relate to the commission of the offense being sentenced — and maintained a “narrow exception” to its broad rule on the ground that the “fact” of the previous conviction was one for which the defendant had been entitled to a jury trial, and proof beyond a reasonable doubt. To put it bluntly, had the Court intended to announce the ride of law posited by defendant here — that the rule applies only where a sentence beyond the statutory maximum
I take the Court’s announcement in Apprendi at face value: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
In closing, I acknowledge that application of the rule of law announced in Apprendi is fraught with potential difficulties — and potential irony. That rule may confer a mixed blessing, at best, for criminal defendants. As human and legal experience often cautions, “Be careful of what you ask for; you might get it.”
Justice Breyér, in his dissent in Apprendi, highlights one glaring potential incongruity: Requiring a criminal defendant to defend against aggravating factors at trial “could easily place the defendant in the awkward (and conceivably unfair) position of having to deny he committed the crime yet offer proof about how he committed it, e.g., T did not sell drugs, but I sold no more than 500 grams.’ ” 530 US at 557 (Breyer, J., dissenting); see also Nancy J. King and Susan R. Klein, Essential Elements, 54 Vand L Rev 1467, 1495 (2001) (suggesting that, unless bifurcated trials are authorized for a jury’s consideration of sentence enhancement factors, a jury that hears evidence of prejudicial aggravating circumstances may be more inclined to convict a defendant).
The dangerous offender sentencing scheme at issue here exemplifies the difficulty posed by having a jury decide sentence-enhancement facts. Regardless of the nature of the felony for which a defendant is being tried, the dangerous offender statute requires a finding that the defendant is suffering from a severe personality disorder indicating a propensity toward crimes that seriously endanger the life or safety of another. In the normal course of things, such “propensity” evidence is not admissible and is considered highly prejudicial. See, e.g., OEC 404(3) (generally, evidence of “other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith”). Thus, under Apprendi, a defendant facing a dangerous offender sentence could look forward to having the jury consider not only evidence pertaining to commission of the underlying crime, but also evidence of his or her psycho-social history bearing on propensity to commit crimes.
In sum, Apprendi seems to sanction the presentation of potentially highly inflammatory evidence pertaining to a defendant’s personal characteristics before the jury ever renders a verdict as to guilt. Whether, or how, that can be squared with the “fundamental fairness” requirements of the Due Process Clause awaits another case. Cf. Ring,
I thus conclude that the post-conviction trial court erred in determining that petitioner’s claims, other than those alleging ineffective assistance of counsel, failed to state a claim for relief under Apprendi. I respectfully dissent from the majority’s affirmance of the trial court’s dismissal of those claims.
In his opinion beginning at
That is not to say that state post-conviction statutes have no constitutional underpinnings. Article I, section 23, of the Oregon Constitution provides that“[t]he privilege of the writ of habeas corpus shall not be suspended unless in case of rebellion, or invasion the public safety require it.” ORS 34.330(3), in turn, provides that a person who is eligible to obtain post-conviction relief pursuant to ORS 138.510 to 138.680 may not prosecute a writ of habeas corpus. Thus, post-conviction proceedings do indirectly provide remedies that are mandated by the state constitution.
The majority also does not explain why, if Fair is controlling, it is not using the Linkletter standard followed in that case, rather than the Teague standard that came much later. The majority offers no support for its implicit proposition that Oregon appellate courts, when choosing to follow nonbinding United States Supreme Court precedent, necessarily abandon those analyses when the Court does, and somehow prospectively adopt the Court’s subsequent analyses on a subject. Yet that is exactly what the majority does here, in concluding that case law that predates Teague decrees that we apply the test announced in Teague.
The majority cites Stewart v. Cupp,
The majority’s reliance on Cornell v. Cupp,
Virtually all of the federal decisions address Apprendi’s application to sentence enhancement for drug crimes based on the quantity of drugs involved. See, e.g., United States v. Mora,
Given the majority’s analysis, it does not need to reach and resolve this question. I must.
ORS 138.530(1)(c) provides that a petitioner may obtain post-conviction relief if subjected to a “[sjentence in excess of, or otherwise not in accordance with, the sentence authorized by law for the crime of which petitioner was convicted; or unconstitutionality of such sentence.”
ORS 138.530(1)(a) provides that a petitioner may obtain post-conviction relief if there has been a “substantial denial in the proceedings resulting in petitioner’s conviction * * * of petitioner’s rights under the Constitution of the United States, or under the Constitution of the State of Oregon, or both, and which denial rendered the conviction void.”
But see McMillan v. Pennsylvania,
Similarly, state courts that have addressed whether Apprendi issues can be raised in state collateral proceedings have treated it as announcing a new rule of law. See State v. Sepulveda, 201 Ariz 158, 159,
As the Eleventh Circuit Court of Appeals noted in a recent decision, all federal circuit courts that had addressed the issue “determined that Apprendi did constitute a new rule of criminal procedure by requiring that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt.” McCoy v. United States,
Defendant expressly acknowledges, and I agree, that the dangerous offender statute authorizes a court to impose a sentence that is longer than the statutory maximum otherwise prescribed for the underlying offense. That fact distinguishes this case from State v. Dilts,