Teague v. Palmateer

1, 2001; Submitted on record and briefs resubmitted en banc October October 30, 2002, January petition affirmed October review denied 181) (335 Or TEAGUE, SCOTT LEWIS Appellant, Joan PALMATEER,

Superintendent, Oregon Penitentiary, State

Respondent. 00C-12089; A113384 P3d 176

578-a 578-b

578-c Theodore C. Coran filed the brief for appellant.

Hardy Myers, Attorney General, Michael D. Reynolds, General, Timothy Solicitor and A. Sylwester, Assistant General, Attorney filed the brief for respondent.

Rankin Johnson IV filed the brief amicus curiae for Oregon Criminal Defense Lawyer’s Association. Deits,

Before Chief Judge, Edmonds, Landau, Haselton, Armstrong, Linder, Wollheim, Kistler, Brewer, Judges.

LINDER, J.

Haselton, J., concurring dissenting part, part.

578-d

LINDER, J. of his petition

Petitioner the dismissal for appeals two post-conviction relief, alleged grounds which he First, relief. dangerous claimed that his offender petitioner unconstitutionally sentence was under the imposed princi Jersey, 466, 120 announced in S ples New (2000). Second, Ct L Ed 2d claimed he received assistance constitutionally inadequate argue counsel because his trial counsel failed that the dan gerous offender sentence unconstitutional. The trial court dismissed the and petition, we affirm.

The facts are pertinent dispute. not in Petitioner was convicted of after a trial in first-degree manslaughter jury In August 1989, petitioner sentenced, 1989. pursuant was (1987) ORS 161.725 and ORS 161.735 as a dangerous offender, on a based in the part finding by sentencing court he that suffers from severe personality indicating a disorder a propensity toward criminal a result of dan- activity. As his gerous indeterminate status, petitioner offender received an sentence of 30 years, 15-year with a minimum sentence. Had he offender, not been a designated dangerous petitioner’s maximum the indeterminate sentence for crime of first- degree manslaughter years. would have been 20 ORS 161.605(1). 163.118(2); appeal 1990, ORS On direct in this court affirmed and petitioner’s opinion, conviction without Oregon the denied review. State v. Teague, (1990). 522, 124, P2d Or 422 den, rev Fol- lowing conviction, the of his affirmance filed timely petition for that post-conviction relief was denied. 2000, petitioner this second petition. filed current is principal petition

Petitioner’s claim in the the imposition dangerous offender sentence for his crime violated the Process of the Fourteenth Due Clause Constitution, Amendment to the United States as inter- preted Apprendi, predicate and in the facts applied because underlying his offender sentence enhancement dangerous neither found pleaded by jury were indictment nor asserts that he beyond reasonable doubt. Petitioner also received of trial in violation ineffective assistance counsel because his coun- provisions state federal constitutional facts on which the dangerous sel failed to argue have been pleaded offender sentence was based should a reasonable doubt. jury beyond by indictment found petition court dismissed (1) post-conviction untimely grounds: petition three alternative (2) were 138.510(3); allegations petitioner’s under ORS 138.550(3); and bar of ORS petition barred the successive barred, procedurally if claims were not petitioner’s even offender sentence dangerous imposition petitioner’s legal principles under was not unconstitutional that the Petitioner asserts on appeal announced in Apprendi. Defen- erred in each of its conclusions. court post-conviction the trial was correct court superintendent responds dant any one emphasizes conclusions and in each of those affirmance. compel sufficient to have briefing, parties way supplemental

By applies additional issue of whether addressed the Defendant proceedings. retroactively Defendant regard. in that arguments makes two related Clause,1 that, Supremacy under the federal asserts first retroactivity federal obligated apply courts are Oregon Next, relying post-conviction proceedings. in state principles Lane, Teague test articulated retroactivity on the federal (1989), defen- L Ed 2d 334 109 Ct S is Apprendi in legal principle that the announced urges dant Crimi- Oregon and amicus curiae retroactive. Petitioner not (OCDLA) make several Association Lawyer’s nal Defense the rule retroactivity of about the questions to our responses reduce to essentially arguments Their Apprendi. of law from (1) rule of announced Teague alternative propositions: two corpus to federal habeas applies only federal that procedure any proceedings; to state post-conviction claims not announced retroactivity test event, satisfies Apprendi Teague v. Lane. not are below, courts length Oregon

As explained in state retroactivity federal principles to follow obligated we do but it is well settled proceedings, post-conviction 1 Const, VI, Art cl 2. US retroactivity

so prudential Consequently, for reasons. under be tested should Apprendi the rule announced conclude, as has test, Lane. we v. Teague Applying jurisdictions, of other overwhelming majority to review apply retroactively proceedings does not collateral that conclu- relief. Because such as those his dan- to petitioner’s challenge completely disposes sion that chal- sentence, do decide whether gerous offender we not 138.510(3) by or precluded ORS is lenge untimely is under 138.550(3). we Finally, bar of petition the successive ORS We of counsel claim. ineffective assistance reject petitioner’s each in turn. address matter ANALYSIS IN

I. RETROACTIVITY POST-CONVICTION PROCEEDINGS require The Clause does not Supremacy federal in deter retroactivity states to adhere federal principles to Oregon relief to mining grant post-conviction whether to constitu prisoners newly who announced federal rely are new Rather, apply tional states free to pronouncements. range federal constitutional to broader pronouncements retro is, those give pronouncements greater cases —that to federal requires active federal law application —than See, That Johnson long e.g., courts. much has been settled. 1772, 16 L Ed 2d Jersey, New 86 S Ct US 383, 387-88, P2d 1150 (1966); Fair, State v. (1972). wrong. So, is position contrary defendant’s to to “up is Rather, correctly argues, OCDLA it amicus collat to rules the effect on Oregon adopt regarding its own “Oregon in the law” eral review of subsequent changes how has done to OCDLA’s Contrary position, so[.]” amicus 138.510(3) and ever, by ORS retroactivity is not determined raise may 138.550(3), ORS a petitioner which address when petition. claims not or in a prior post-conviction raised at trial Those statutes codify relating preclusion, issue principles retroactivity not retroactivity. Oregon’s approach reflected in a body precedent. of settled nearly 40-year-old retroactivity To place precedent —and issue —in background. a bit of perspective, begin we with state United States states to furnish Constitution requires they prisoners with clearly method “some defined 582

may raise claims of rights.” denial of federal Young v. Ragen, 337 235, (1948). US L 239, 1073, 69 S Ct 93 Ed 1333 Before the enactment of current Oregon’s statutory post-conviction scheme, a state relief prisoner seeking for an alleged viola- tion of a federal was right confronted with a array confusing of writs and statutory remedies that often failed to address 138.540(1). federal claims adequately. See ORS generally See Jack G. Collins and R. Neil, Carl The Oregon Postconviction- (1960). Act, Hearing 337, 39 Or L Rev 337-40 The Oregon Supreme Court in the 1950s responded problem by to the adopting a more “elastic” to the approach availability of relief through Alexander, habeas v. corpus. 283, 197 Or Huffman (1953). 349, P2d 253 289 In particular, the court declared it would “shape procedural our so as apparatus to com- ply” with the United States Court’s mandate in id., and its Young, procedure would “assimilate in [habeas] cases, nearly be, as as to may that of federal courts.” Id. 350.

4. years later, A few 1959, legislature enacted the 1959, 636, Post-Conviction Hearing Act. Or Laws ch Act 1-24. The was intended to eliminate the of multiplicity §§ remedies and to ensure state adequacy procedures defects, address federal constitutional required federal See generally Neil, law. Collins and 39 Or L Rev at 337-40. end, legislature To that replaced common-law writ single of habeas with a corpus uniform 132, See v. 242 statutory proceeding. Gladden, Benson Or (1966). 136, 634 den, 407 P2d cert 384 US 908 objective but, rather, enlarge grounds was not to for relief codify grounds previously available and to continue by precedent, course set while confusion over eliminating proper several common-law writs was the vehi Gladden, 426, 429, 407 cle for See relief. Parker Or P2d 363, 468, 246 (1965), rev’d on other 87 S Ct grounds, L 508, 17 Ed 2d 420 Lerch 9 Or (1966); v. Cupp, App (1972); P2d den Long 289, 295, 487 rev v. Cupp, (1971). P2d den rev

Consistently design, with that availabi general lity of under statutes Oregon’s post-conviction depends relief First, on two factors. must seek substantive relief cor a writ habeas through that would have been available 353, 361, 839 P2d Or Bartz v. State pus. Oregon, (1992). 138.530(2), which in ORS That is codified principle relief corpus of habeas effectively that the substance provides for relief under petitions remains available to a who person Second, a Or at 361. Bartz, statutes. 314 post-conviction obtaining for procedures the proper must follow petitioner issue here, codify the statutes Id. As pertinent that relief. availability prior turn on principles preclusion So, for claims.2 a petitioner’s to address judicial proceedings from barred ordinarily procedurally is example, and on raised at trial a claim that could have been raising See generally and decided. direct or that was raised appeal 1368 352, 358, 867 P2d 318 Or Oregon, Palmer v. State of (1994) 254 Or 138.550(1)); Cupp, North v. (construing ORS (1970) den, 397 US 1054 (1969), P2d 271 cert 451, 455-57, 461 (same). not raise Likewise, ordinarily may a petitioner post- untimely subsequent petition claim in an or in a been asserted relief if the claim could have conviction to exception Or at 359. An timely Bartz, initial 314 petition. claim asserted is one bars arises when the procedural those in the prior have been asserted” reasonably that “could not of a new pronouncement proceeding, encompasses have been reasonably not principle constitutional that could generally Long See stage. and raised at an earlier anticipated den, 94, 100-02, 461, 999 P2d rev Armenakis, 166 Or App v. (2000). 330 Or 361 distinct con retroactivity are preclusion

Issue and treated as such. From and have been cepts traditionally stat post-conviction Oregon’s earliest cases decided under claims to assert utes, procedurally have been able petitioners constitutional newly announced unanticipated based on claims has on those ability prevail but their principles, principle of the constitutional retroactivity on the depended 2 (then preclusion applying termed Oregon Supreme issue The Court had been See, years. e.g., judicata”) principles corpus Barber v. cases for “res Gladden, in habeas den, (1959); (1958), 132-37, 948 641 cert 332 P2d 215 Or Gladden, (1955); Gladden, 487, 488, 204 Or 414 Wix v. 280 P2d Blount v. 203 Or (1955). approach. 597, 599, post-conviction statutes codified that 284 P2d 356 By way Neil, of a later addition generally L Rev at 355-59. 39 Or See Collins untimely Act, procedural and subse legislature bar for included a similar 138.510(3). quent petitions. See ORS at 459- See, North, cases are 254 Or legion. e.g., work. Such (one issue statutory claims petitioner’s barred announced newly claim based on

preclusion principles; but was not a Escobedo/Miranda doctrine could be raised retroactive); Church basis for relief because doctrine was not (simil Gladden, 308, 311-13, v. 417 P2d 993 ar).3 Or Myers As we explained Cupp, a new den, (1981), P2d 579 rev 290 Or 491 whether provides preclusion rule an to issue exception peti complementary inquiries; and also is retroactive are satisfy tioner must both to be entitled to relief: an raised and exception general

“[A]n to the rule that issue in a direct cannot be reconsidered appeal considered on law with post-conviction proceeding applies where the appeal the time of respect changed to that issue has since retroactively.” be applied and that new law to omitted). In added; citation a 49 Or at 695-96 App (emphasis Court case, Oregon Supreme more recent the post-conviction analyze retroactivity” a similarly observed that “court must 3 subject newly principle Frequently, was not to fact that a announced the newly given; only point dispute preclusion a a the in was whether issue announced constitutional answer has been Or was retroactively. applied principle When the should be See, Gladden, yes, petitioner prevailed. e.g., v. 253 has Holbert 287, 291, 850 435, 437-39, 455 (1969); Maass, App P2d 45 v. 119Or P2d Clawson (1972). 528, 532, (1993); Cupp, App P2d 1237 When the 398 answer Nunn v. 10 Or 500 See, Reed, no, e.g., Bouge petitioner v. has been denied relief. has been 107, 110, 458 418, 421-23, (1969); Cupp, Or 254 Or 459 P2d 869 McDonald v. 254 Gladden, 327, 328-29, 417 (1966);Lugo (1969); 244 P2d 1017 v. P2d 427 Gladden, Otten v. Or Gladden, 594, 595, 415 7, 9, (1966); P2d 324 v. 243 Or 244 Or 414 Avent 61, 65-66, 714 1074(1986);Stewart (1966); Cupp, App P2d P2d v. 78 Or 164 Kellotat 41, 1, (1972); Cupp, App 167, Young Cupp, App 8 Or v. 12 Or 170 n 506 P2d 503 v. 527, (1971), App (1972); Cupp, 2 n rev den v. Or P2d 1201 Proffitt (1969), 169, 175-76, 459 529, 468 P2d 912,(1970); Endsley Cupp, App P2d 448 v. 1 Or rev den (1970). rev den occasion, retroactivity record estab- to if the On this court has declined address by raised and abandoned lished that a new constitutional rule had been earlier petitioner See, e.g.,Boyer any procedurally v. in event. and so the claim was barred (1979). times, 629, 632-33, Oregon, App this Other State 43 Or 603 P2d of procedurally petitioner barred from court has declined to address whether a raising event, that, any a on the basis an issue and has instead resolved the case petitioner be enti- would not rule would not be retroactive and new constitutional tled to relief. 510, 511-12, See, e.g., Cupp, 462 P2d 684 1 Or Bias v. (1970). independence approaches of the retroac- demonstrate the rev den The two tivity preclusion inquiries. and issue a newly announced rule considering whether to apply when Peterson, 508- case. post-conviction to Moen added) deter- (declining 824 P2d 404 (emphasis because con- retroactivity apply what standard should mine new). short, rule invoked was not In stitutional announced constitu- assessing retroactivity newly analysis necessary legitimate step rule is a tional relief should be awarded on post-conviction of whether of that new not sub- pronouncement. inquiry basis new statutory to when pertaining sumed standards procedurally are to assert.4 proper issues retroactivity principles apply Our conclusion that leads to issue: Do we proceedings a second post-conviction new con- retroactivity federal federal standards apply stan- or do we some other pronouncements apply stitutional by precedent. That also is resolved dard? issue case Oregon reviewed its Fair, Supreme Court newly announced the retroactive involving application law principles federal constitutional concluded: recent deci- may “We draw two conclusions from our retroactivity. First, degree are choose the sions on we free to retroactivity prospectivity appropri- or which we believe consideration, long so as we particular ate to the rule under scope rights at least as broad a give federal constitutional Secondly, we Supreme requires. as the United States Court - newly application have to restrict the retroactive tended only application rights, giving announced them has as a adopted minimum.” added). sure, Fair was Or at To be (emphasis 387-88 fact, however, That direct not a case. appeal, it as a rationale, nor is reflected part no in court’s played deci- most of the holding. contrary, To the limitation on its its synthesize in court reviewed Fair sions federal rules retroactivity newly announced approach analysis responsive to The dissent part, is not ours. the most the dissent’s For Oregon law, body from case most of it does not the extensive address pronouncements Court, analyzing retroactivity Supreme new constitutional change may prevail in deciding post-conviction petitioner based on a whether a the law since conviction. his

were ones that the court had rendered in post-conviction appeals. Fair, See 263 Or at 387-88.5 from that Drawing juris- prudence, the court general identified a approach to claims based on the retroactive application of newly announced fed- rights. eral See id. Citing Fair, we have acknowledged that we are to adhere to precedent federal in analyzing the retro- activity of newly announced federal constitutional rules asserted as grounds for collateral relief from criminal convic- tions, including grounds asserted in petitions for post- conviction relief.6

Fair, at a minimum, announces a preferred approach and stands for the proposition that Oregon courts generally should apply federal retroactivity newly rules to 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 earlier, described very exis tence of our statutory post-conviction relief procedures is, in effect, a reflection of principles comity and federalism: states must respect federal constitutional of their rights state prisoners. Those same principles were at work in our preexisting habeas jurisprudence, where the Oregon Supreme Court adopted an approach of its aligning habeas corpus procedures, as nearly possible, procedures with the and standards followed by federal courts. 197 Or at Huffman, 349. The enactment of the post-conviction statutes in 1959 particular, Bouge, In (1969), the court cited 254 Or P2d 869 Elliott v. Gladden, 134, 287, den, (1966), 244 Or 411 P2d cert 384 US 1020 and Guse v. Gladden, 243 Or part grounds by 414 P2d 317 overruled in on other Evans, (1971). State v. fact, 258 Or post-conviction 483 P2d 1300 all of the analyzing retroactivity cases consistently pronouncements of new federal constitutional applied retroactivity analysis have federal standards to the and have point. adhered to App federal case law on See also cases cited at 184 Or at 584 n 3. (1976) (habeas Cupp, 805, 808, App See Cornell pro 25 Or 550 P2d 1386 ceeding: “[W]e follow the United States Court’s resolution of the retroac * * tivity question *.”); Cupp, App 167, 170 1, 506 (1973); Stewart v. 12 Or n P2d 503 (1986) (new Cupp, App 61, 64, see also Kellotat v. 78 Or 714 P2d 1074 state subject retroactivity analysis post-conviction rules are to Fair proceedings). Peterson, 71, 74, App (declaring But see Moen v. 103 Or 795 P2d 1109 retroactivity that we do not pronouncements consider of new state constitutional proceedings), recons, 481, 484, 802 relief 104 Or P2d 76 affd (1990) (acknowledging decision, applying that Kellotat had been overlooked in first retroactivity analysis, affirming decision), result in first on alternative aff'd ground, 503, 509-10, 824 (retroactivity analysis notrequired P2d 404 new). by post-conviction petitioner because constitutional rule invoked was not not intended for state but prisoners to broaden remedies codify unify Consistently to them. with that understand- ing, consistently comity Oregon with principles, Court announced that it would federal retro- Supreme apply activity they changed and evolved —to principles —even newly announced federal rights, despite constitutional fact that it did not have to do so as a matter of federal law: nothing prevent adopting

“There is to this court from by retroactivity] [of more strict rule than that enunciated Court, in this field of law it Supreme the United States but orderly judicial nothing process.” adds to consistent and (over (1971) 437, 442, 483 P2d 1300 Evans, State v. 258 Or cases that ruling prior post-conviction inaccurately predicted that the United States Court scope Supreme retroactive / Miranda). at gave Fair, later to Escobedo See also 387-88 from and earlier (synthesizing approach post- Evans cases). comity conviction It would be a of the perversion prin reflected in state not a ciples post-conviction procedures, them, service adopt retroactivity to to rules of for new federal pronouncements by that are broader than those fed adopted courts, eral according respect finality therefore less to the state court federal judgments than the courts themselves Lane, See v. 489 US at 310 require. generally Teague retroactivity of new federal constitutional rules (approach should state interests of their respect finality judg ments and should minimize the cost and intrusiveness forcing continually states to under stan litigate changing confinement dards the of the of state whose legality prisoners then-existing trial and conformed to appeals standards). conclude that the current stan We therefore retroactivity dards the United States governing adopted appropriately apply petitioner’s Apprendi based claim in this case.

-II. APPLICATION OF TEAGUE v. LANE Lane, newly Under v. announced constitu Teague rules to cases on collateral review apply retroactively tional only in two narrow circumstances. 489 US 310-11. to new “watershed rules of exception applies relevant here criminal necessary that are to the fundamental procedure Sawyer Smith, proceeding.” fairness of the criminal (internal 227, 241-42, 110 S Ct 111 L Ed 2d 193 omitted). must not it, marks a new rule quotation To meet trial,” it must be “aimed at only improving accuracy “alter procedural also our of the bedrock understanding Id. at elements essential to the fairness of a proceeding.” omitted). original; internal marks (emphasis quotation pronouncements that few new The standard is one has itself the likely satisfy. Supreme are to As rarity: inevitably are observed, new “watershed” rules procedures the that such premise “Because we from operate of innocence accurate determination would be so central to an many components that such unlikely we believe it guilt, or Lane, 489 v. yet emerge.” Teague basic due have to process errors structural So, even so-called example, US at 313. for new rules the because necessarily satisfy exception, do not our necessarily “alter[ ] such errors in a trial do not involving v. Tyler involved. principle of the bedrock” understanding L Ed 2d 632 2478, 121 Ct 150 Cain, 656, 7, US 666 n S 533 Lane, (2001) v. fact, Teague since original). (emphasis pro rule or identified a new the Court has not the under qualifies rule that new constitutional posed Mandanici, 205 United States v. See exception. “watershed” (2d (2000), and 879 den, cert 531 US 519, 2000), F3d 529 Cir (2002) (summarizing 2666 122 S Ct den, _ US __, cert cases). is that a holding Apprendi

The Court’s Supreme sup the facts must determine judge, rather than a jury, statutory beyond a sentencing enhancement statutory port by proof must be determination and that maximum doubt, preponderance. than a rather beyond a reasonable (1) who must aspects: therefore has two rule Apprendi The maxi beyond the sentence that enhance find the facts (a to proof applies the standard of mum jury), doubt). Every appellate a reasonable factfinding (beyond retroactivity that has considered country court in the it does not one,7 has concluded save holding, Apprendi’s 7 appellate courts intermediate exception of one of the is a decision The (2000), 693, 706, Beachem, over App 740 NE2d 389 People Ill 3d 317 Illinois. See v. 742, 323, Fields, App by People 772 NE2d grounds 331 Ill 3d v. ruled on other appeal (decision division); district, see den, _ NE2d _ (2002) first third 558, den, 88, 1014, appeal Ill 2d Rush, 196 NE2d People Ill 3d 757 v. also meet “watershed” for an to the exception gen- standard rule of eral cases are correct. nonretroactivity. Those Court has identified Gideon u. 792, 2d Wainwright, 335, 372 US 83 Ct 9 L Ed S which declared for the that representation first time coun trial, sel fundamental to a fair criminal kind of holding watershed v. Lane Teague exception. meets the 1257, 108 Parks, 495, 110 v. S Ct L Ed 2d Saffle 415 (1990). courts that Apprendi Lower have observed is not par with Gideon and does not otherwise meet Teague Lane for v. several reasons: exception

(cid:127) Gideon applies every felony prosecution, in con Apprendi,

trast only which comes into play subset of criminal in which a cases defendant is sen beyond statutory tenced maximum.

therefore did not announce kind of rule sweeping contemplated by Teague exception Lane’s watershed rules. v. Sanchez-Cervantes, United States (9th Cir), 282 F3d cert den, _ US _ , 48 (2002); Sanders, 123 S Ct United States v. 247 F3d (4th (2001). Cir), den, cert 534 US 1032 (cid:127) The applicable v. Lane Teague exception applies only

to procedures those without the likelihood of an accurate is seriously conviction diminished. Apprendi’s holding does not protect innocent rather, from but, erroneous protects conviction guilty beyond from the statutory sentences maxi- Sanchez-Cervantes, 669-70; mum. 282 F3d at United (8th Moss, 993, 2001), States v. 252 999 Cir F3d cert (2002). den, US 534 1097 (decision district, following Beachem); Lee, People NE2d 763 324 of fifth v. 882, App (2001), allowed, 625, appeal Ill 326 3d 762 NE2d 2d 18 198 Ill 770 NE2d (2002) (decision Beachem). district, following

222 third of Illinois, agree question appellate Even in the intermediate courts do not on the See, supreme e.g., People Kizer, state court has not the conflict. v. resolved 588, 755 App (2000), appeal den, Ill 318 (2001), 3d NE2d 1103 195 Ill 2d NE2d480 (2001) (decision den, division, district, cert 534 US 1029 of first first apply retroactively disa greeing Apprendi concluding with Beachem and does not review); People Gholston, 179, (2002), on collateral Ill 3d NE2d 880 772 (decision division, following appeal pending district, Kizer and sum first fourth courts). among marizing split Illinois (cid:127) Apprendi is not a rule because judges “watershed”

can a criminal constitutionally increase defendant’s sentence based that a finds judge pre- on facts evidence, increase ponderance provided does statutory Sanders, not exceed the maximum. 150; Moss, 247 F3d at at 1000. 252 F3d (cid:127) Although Gideon announced a new bedrock principle

by holding that the to counsel is fundamental to right any trial, clarified felony Apprendi “merely criminal preexisting right and extended the of a scope —the have all right supported by proof convictions beyond a doubt.” United States v. reasonable (10th Mora, 1213, Cir), den, 293 F3d cert (2002). _ US _ , 123 S Ct 388 all of those observations have Although persuasive are factor that the courts force, they eclipsed by one further harmless namely, subject have relied is Apprendi on— See, 1000-01; analysis. error 252 F3d error/plain e.g.,Moss, Sanders, 247 F3d lower court decisions relied Many at 150. on that factor before the United States that the Court question, effectively predicting addressed the to harmless error/ Apprendi subject would conclude that term, them cor- plain analysis. proved error Last the Court Cotton, 122 S Ct rect. United States v. L a defendant’s Ed 2d 860 the Court affirmed drugs enhanced sentence that on the quantity was based error, an admitted notwithstanding Apprendi he possessed, affect the seriously after that “the error did not concluding fairness, judicial proceed- or integrity, public reputation correctly courts have 122 S Ct at 1786. As other ings.” at odds with the con- observed, inherently that conclusion is Teague a rule that satisfies clusion that announces Apprendi v. Lane’s standard: exacting not the view that does supporting

“Further change proce- in criminal rise to the level of a watershed ority the federal circuit courts maj dure is the fact that the plain error subjected Apprendi have claims to harmless * ** possible it is recognized, these courts have review. As and accurate trial a defendant to have a fair criminal by protection Apprendi. the new offered procedural without failure to submit suggested have that None of these cases

591 [an enhanced question jury a sentencing factor] to is course, error. We do not suggest, that all structural struc- satisfy Teague’s errors exception. merely tural second We emphasize finding that something to be structural error necessary seem to be a for a predicate would new rule to retroactively Teague.” under apply (citations omitted).

Sanders, 247 F3d at no 150-51 There is that rejoinder holding to observation. Court’s persuasive that Apprendi subject Cotton to a error/harmless plain analysis effectively error dictates a conclusion that Apprendi apply retroactively does not in collateral to a con challenges (7th Curtis v. Cir States, viction. United 294 F3d 843-44 (so 2002) after Court’s decision in concluding (same).8 Cotton); Mora, 293 F3d 1219 We therefore hold that does not Apprendi ret- apply roactively in this state. As a proceedings result, we do not to decide need whether claims petitioner’s 138.510(3) untimely were under ORS were or precluded 138.550(3). the successive bar of petition ORS Petitioner’s that his claim offender sentence is dangerous unconstitu- tional under Apprendi dismissed properly because peti- may tioner not avail himself of the rule in this case. Apprendi III. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM

The only issue is whether remaining the post- court conviction also petitioner’s dismissed ineffec properly assistance tive of counsel claim. Petitioner’s claim in that little regard requires discussion. To on a claim of inef prevail counsel, fective assistance of petitioner must show “trial failed counsel to exercise reasonable skill and professional and that suffered judgment prejudice [he] a result.” (1991). v. Maass, 431, 435, 822 703 Trujillo Or P2d When bases attorney’s his claim on his failure to raise legal trial, his criminal particular position attorney’s is not representation constitutionally inadequate if, due Arizona, Ring _ n 7, 122 2428, 2443 7, 153 See also US S Ct n (2002) (declining argument Apprendi L Ed 2d to reach state’s error was harmless; remanding proceedings; noting instead to the state court for further ordinarily pass “the leaves it lower courts to harmlessness of error instance”); (O’Connor, J., dissenting) (disagreeing in the first 122 S at 2448-50 Ct occurred, noting prove but that sea. error likelihood such errors will harmless). have counsel could law, unsettled state of reasonable Wells v. Peter as to the position. whether to assert

disagreed (1992). As the above dis 233, 236, P2d 192 son, announced a amply demonstrates, plainly cussion Apprendi law, if it was not one rule of federal even new retroactively to collat that applies watershed dimensions Because v. Lane. Teague review under proceedings eral pro reasonable new, exercising rule was counsel Apprendi’s that the law anticipate not fessional skill and could judgment have could and reasonable counsel did, would as it develop Apprendi that argument to whether to raise the disagreed reason, post-conviction endorsed. For that eventually ineffective assistance correctly petitioner’s court dismissed counsel claim.

IV. CONCLUSION govern retroactivity principles summary, federal relief for post-conviction assert a claim ability to petitioner’s Under Apprendi. in the rule of law announced based on con- Lane, newly announced Teague set forth guidelines collat- to cases on retroactively apply rules do not stitutional rule is a “watershed announced newly eral review unless the above, the reasons stated For the procedure.” rule of criminal therefore, may Petitioner, such a rule. rule in is not Apprendi post-conviction rule in this Apprendi himself of the not avail correctly court Additionally, post-conviction proceeding. claim. of counsel assistance ineffective petitioner’s dismissed Affirmed. dissenting J., concurring part,

HASELTON, part. petition of his the dismissal

Petitioner appeals petition, That ORS 138.650. relief. post-conviction sentence, alleged, offender dangerous challenged petitioner’s it because unconstitutional was variously, the sentence and not indictment pleaded on facts not was based that he doubt, and reasonable beyond a by jury found tried because trial counsel assistance of inadequate received unconstitu- was the sentence argue counsel failed to alter- three petition dismissed tional. The trial court (1) under filed untimely petition native grounds: (2) 138.510(3); were barred petitioner’s allegations ORS 138.550(3); if even successive-petition bar of ORS barred, the imposi claims were not petitioner’s procedurally sentence comported tion of offender petitioner’s dangerous Jersey, v. New of law enunciated in principles with (2000). 466, 120 L Ed 2d 435 For S Ct follow, majority I with the agree reasons inadequate relief based on was not entitled to However, petitioner’s I conclude that assistance of counsel. barred and state allegations procedurally other are not I would Consequently, relief under Apprendi. claim for reverse and remand. below, petitioner

As I would conclude that explained relief pursu claims for cognizable post-conviction has stated 138.530(1)(a) 138.530(1)(c), and ORS for the fol ant to ORS (1) Lane, v. retroactivity Teague reasons: test of lowing 1060,103 L Ed 2d 334 does not 288, 109 489 US S Ct claims, fed to, control, the of based on apply cognizability or violations, Oregon’s post-conviction eral constitutional under (2) Teague of retroactivity analysis relief statutes. Even if the v. Lane were and announces applicable, Apprendi represents subject application. a “watershed rule” that is to retroactive (3) ineffective assistance of With the of his claim of exception relief are counsel, post-conviction other bases for petitioner’s 138.510(3) by the suc untimely not under ORS or precluded 138.550(3) (4). has Petitioner bar of ORS cessive-petition cognizable claims for relief under pleaded offender sen judicial imposition petitioner’s dangerous violated federal dangerousness” tence based on his “future in turn. due I address each matter process. TEAGUE v. THE ANALYSIS OF

I. RETROACTIVITY THE COGNIZABILITY LANE DOES NOT CONTROL UNDER OF FEDERAL CONSTITUTIONALCLAIMS RELIEF STATUTES OREGON’S POST-CONVICTION is whether petitioner’s The threshold here question post- in state cognizable claims are Apprendi-based turn, That, implicates all. proceedings conviction analysis retroactivity of whether subsidiary question under claims v. Lane to federal constitutional Teague applies set forth statutes. For the reasons Oregon’s post-conviction below, I conclude that retroactivity analysis does Teague whether relief govern not for federal constitutional violations available in state post-conviction proceedings. is matter,

As an body initial we have developed (discussed fully below, nonconstitutional law more see 184 Or 606-07), & at 601-03 when a new constitu App concerning tional that has been articulated between the time of principle direct petitioner’s appeal post-conviction proceeding can be in the post-conviction proceeding although considered trial or See v. generally Long not raised at on direct appeal. Armenakis, 94, 101, 999 461, den, P2d rev 330 Or standard). (discussing Long The test set forth as the retro- and other cases is not the same post-conviction Thus, further reduces activity Teague. question test from law, this whether, as a matter of federal constitutional retroactivity analy court required apply Teague whether we can fol challenge, sis to an or Apprendi-related consti concerning newly low our own law when a announced in a applied tutional will be principle proceeding. Teague must examine question,

To answer that we See, Linkletter v. underpinnings. e.g., and its precedential (1965); Walker, 618, 1731, Ct 14 L Ed 2d 601 381 US 85 S 1160, 28 L Ed States, 401 US 91 S Ct Mackey v. United S Ct (1971); Kentucky, 2d 404 Griffith (1987). availability L Teague 93 Ed 2d 649 concerned had been relief for a who corpus federal habeas 489 US Teague, court of numerous crimes. convicted in state convictions, original at 292-93. After the petitioner’s Amend Sixth United States Court issued several The then petitioner selection. concerning jury ment decisions that, under relief, arguing sought corpus federal habeas cases, selection in his jury decided subsequently those Id. at 293- the Sixth Amendment. comport trial did not with 94. matter, ques- confronted the Court, as an initial prin- newly

tion of how and when announced review in on collateral retroactively should be ciples applied by not- began The Court corpus proceedings. federal habeas new constitutional case law when ing concerning its Id. entirely be not consistent. applied should was principles Linkletter. was starting point at 300. The Court’s that the ret- Linkletter, the Court had determined in an announced another roactivity exclusionary principle by examining case be determined purpose should rule, law, the states on exclusionary prior reliance of a retroactive justice the effect on the administration 489 US at 302 application exclusionary Teague, of the rule. 636-40). Linkletter, Although 381 US at Linkletter (citing case, a habeas it announced was corpus principle applied by the Court “to limit of certain new rules to cases application review,” Teague, on direct as well as in other circumstances. cases). (citing 489 US at 302 Harlan, Linkletter, Mackey,

After in Justice dissent- ing,1 retroactivity approach. took issue with the Linkletter began by princi- Justice Harlan that he found no observing pled treating presents basis for one case on direct review the same constitutional issue in a different manner from another direct Mackey, case on review. 401 US at 678-81 J., (Harlan, dissenting). He that a new rule of consti- posited tutional always applied law should be on direct review. On of collateral where convictions were question review final, Justice Harlan wrote:

“While, stated, I just as have I think it clear what law applied should be to convictions here on direct nonfinal review, the choice it here problem applies of law as to cases However, seems me much difficult habeas more one. choice, view, my responsibly is also one that can be instance, nature, only by focusing, made function, on the the first scope adjudicatory process in which reference, such arise. The frame of in other cases relevant words, purpose is not the of the new rule whose benefit seeks, purposes but instead the for which corpus writ of habeas is made available.” 675, judg opinion beginning In his at 401 US at Justice Harlan concurs States, Mackey, ment in but also dissents from "Williams v. United judgment u. in Elkanich S Ct 28 L Ed 2d 388 and concurs in the reference, States, opinion we United decided in the same with For ease of Williams. opinion refer All citations to Justice Harlan’s those cases as a “dissent.” Mackey opinion opinion in this are to Justice Harlan’s above. described at 682. Justice

Id. Harlan historical limi- then summarized tations on availability of the writ of habeas not- corpus, in ing, particular, default for fail- principles procedural an ure to raise issue Id. at 682-84. He on direct appeal. concluded: my view,

“In respectively presented [the issues two habeas cases at rules of issue] [substan- the new —whether ‘retroactively’— constitutional applied law] tive should be problem must be considered as none other than a as to the decline to scope properly apply habeas writ. We can present [new law] substantive to the only pro- cases if that is consistent with the reasons for the vision, in our legal system, corpus pro- federal of a habeas ceeding validity to test of an individual’s official confinement.” 684. In that it be “sounder” concluding generally

Id. at would the law as it existed at the time a conviction became apply final, relied, perceived Justice Harlan in on what he part, statutes. Congress’s crafting corpus intent federal habeas general Id. at 687-88 n 5. In rule proposing “defining corpus [constitutional] habeas cases should involve a conviction according errors to the law in effect when final,” 692, became id. at he two the first proposed exceptions: issues, and the sec for “substantive due id. process” of those procedures ond for “claims of nonobservance ” * * * ordered Id. at liberty.’ are ‘implicit concept Connecticut, 319, 325, Palko v. 58 S Ct (quoting (1937)). L as an of such example 82 Ed 288 He identified at trial. Id. at 694. right a “bedrock” to counsel principle Court, Mackey Teague, After but before proposed Justice Harlan’s adopted prong the first Griffith, newly dissent —that retroactivity analysis Mackey from the be applied announced constitutional would principles 322-23, years 328. Two later in direct review. US at of Justice prong the Court the second Teague, adopted that, they fall within an analysis “[u]nless Harlan’s proposed rule, new constitutional rules general to the exception those be cases applicable criminal will not procedure rules are announced.” have final before the new become Justice adopted The Court also 489 US at 310. Teague, due process, for substantive proposed exception Harlan’s a variation on his “implicit of ordered concept liberty’ (internal omitted). Id. at 311 exception. quotation marks Court elaborated on the latter it is exception, stating “reserved watershed rules criminal procedure.” Id. for of added). (emphasis The Court indicated that this second exception applied not only to procedures “implicit in the con- cept of ordered liberty” that implicate fairness, fundamental (internal id. at 311 quotation omitted), marks but also to “ ‘ “new” constitutional rules which significantly improve the ” pre-existing fact-finding procedures.’ Id. at 312 (quoting Desist States, v. United 244, 262, 89 S Ct 22 L J.)). Ed 2d 248 (Harlan,

In Teague, the Court also elaborated on the reasons treating 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 limited default rules petitioner’s federal corpus habeas claims in ways, numerous and “recog- nized that interests of comity and finality must also be con- sidered in determining the proper of scope habeas review.” Teague, 489 US at 308. The Court further observed that ret- roactive application of new rules of constitutional law in habeas corpus proceedings imposed significant costs upon was, states and in some ways, more intrusive enjoin- than ing criminal prosecutions because it “continually forces the States to marshal resources in order to in keep prison defen- dants whose trials and appeals conformed to then-existing constitutional standards.” Id. at 310 (emphasis original).

The question in this case is whether Teague expresses a general federal constitutional rule of nonretroac- tivity for cases on collateral review that is in a applicable con- text other than the context, federal habeas corpus e.g., state post-conviction I proceedings. conclude that it does not. Although Teague refers generically to “collateral review” at a number of points, that term could be read to encompass review in state proceedings, there is no sug- gestion that the general rule nonretroactivity of applied in federal habeas corpus cases is constitutionally mandated to be applied in any other context. thing

One is entirely Teague, clear from and from Justice Harlan’s Mackey, ultimately dissent which was adopted: newly of a announced rule of retroactivity con- stitutional criminal procedure depend does not on primarily the nature or magnitude involved, right constitutional on but of the case which the issue procedural posture If arises. the case is review (and, before court direct thus, nonfinal), then underlying judgment any newly announced rule of will be procedure constitutional criminal magnitude. On the applicable, regardless of its nature or hand, other if the case is a federal habeas cor- before court case, rule announced pus general newly then is that applied will be procedure rule criminal not new rule to undo a conviction that became final before the rule exceptions to that Although general was announced. constitu- nonretroactivity may on the nature of the depend involved, of current retroactiv- rights premise tional the basic retroactivity depends law from the Court is that ity on the and is not proceeding, part parcel type right. substantive constitutional underlying (or Teague there in itself in any suggestion Nor is adopted) Mackey, Teague Justice Harlan’s dissent in retroactivity of and collateral appeal that rules direct are based on the nonretroactivity review themselves any Process or on other con- requirements of Due Clause to the states applicable stitutional that is made provision the extent Rather, Fourteenth Amendment. through the magni- a expressed that the concerns of constitutional con- review, those regarding retroactivity tude collateral comity namely, concerns cerns on federalism hinged — issues based on constantly constitutional relitigating Teague, on states. evolving imposed significant law burden 489 US at 310. as a transfer, either simply concerns do not

Those law, to constitutional of or a matter of federal policy matter relief post-conviction proceedings. State post-conviction state that enacted by the legislature remedies defined provides in Thus, legislature, the state statutes.2 post-conviction constitutional say post-conviction statutes have no That is not to state that“[t]he provides I, Oregon underpinnings. Constitution section of Article the level of burden enacting post-conviction statutes, defines imposed on the state issues in crimi- relitigating in terms of has, nal cases after in legislature convictions are final. The fact, placed some claims will not be con- limitations on when sidered magnitude. asserted constitutional despite errors of See, 138.550(3) e.g., 138.510(3); (establishingtime- ORS ORS lines on post-conviction claims and successive limiting peti- below). tions, as discussed Those limitations are —and are properly choice, product legislative state and not —the command. with Consistently long- federal established principles comity, legis- federalism and those not, lative be, choices are and cannot or supplanted overrid- den by judicial decisions addressing availability of federal habeas relief. corpus sum, in analysis set forth does not Teague

apply as a sort of Supremacy Clause-mandated overlay to determine whether claims due violations based on process cognizable are post-conviction a state proceed- ing. Rather, our state’s themselves, statutes Oregon related appellate decisions, govern when, or whether, such “retroactive” relief Oregon available in courts.

The majority concludes, nevertheless, Oregon case law requires us to follow precedent federal on retroactiv- ity. I disagree.

The majority relies, Fair, on State part, P2d 1150 its conclusion it must adhere to federal precedent analyzing retroactivity newly announced federal constitutional rules asserted as grounds for collateral relief from criminal conviction. 184 Or App at 585-87. That misplaced. reliance is Fair was a direct criminal appeal, decided when the United States Court was still following the Linkletter it standard that disa- 594-97) vowed in See 184 Or App (discussing at his- Griffith. tory of Court’s retroactivity That jurisprudence). type privilege corpus suspended of the writ of habeas shall not be unless in case of rebel- lion, public safety require 34.330(3), turn, provides or invasion the it.” ORS that in person eligible pursuant a who is to obtain 138.510 to relief to ORS may prosecute Thus, corpus. post-conviction proceed- 138.680 not a writ of habeas ings indirectly provide by do remedies that are mandated constitution. state

analysis, retroactivity question noted above, as treated the part parcel right as and substantive constitutional at distinguish appeals and did not direct and issue between col- challenges. lateral “closely

The Fair court noted that it had followedthe Supreme retroactivity adopted rules the United States it noted, however, Court.” Or at 385. It further that did always that it choose to so. Id. at It stated was not do 387. retroactivity degree prospectivity “free to or choose appropriate particular under to rule which we believe rights long give consideration, so as we federal constitutional scope Supreme least a Court at as broad as United States requires.” “[t]he at The court that deci- Id. 387-88. observed binding are on of United not sions States may guidance.” us, but look Id. 388. we to those cases for apply on Linkletter The then went on to a court variation Oregon 388- Id. at standard to an issue of constitutional law. 90. majority’s suggestion the court’s decision in corpus apply federal habeas

Fair somehow forces us to frankly, puzzling. retroactivity Teague is, in rule announced retroactivity “adopt” federal The court in Fair did not apply analysis. analysis apply to or not It noted its freedom looking emphasized chose, that it was to it as guidance.” Or It then Fair, “for at 388. the Court’s cases proceeded retroactivity analy- apply on to variation federal Teague analytical to whatso- sis that no resemblance bears read a mandate It Fair be ever. is difficult see how can obviously Teague, apply not no decided that we had been point. Teague simply application has Moreover, at that newly presented or Fair, i.e., not the issue whether applied principle be should announced constitutional context appeal. question, direct answers of a Griffith quite manner from the answers in a manner different it question Thus, to the in Fair. extent which the was answered presented question direct that a federal constitutional appeal, clearly longer good law because is no Fair Griffith princi- newly announced federal decrees Bluntly: apply appeals. ples Fair not a case do on direct

601 about not case col- was rights, federal constitutional about vital- remaining no has and furthermore challenges, lateral retroactivity constitutional and insofar as federal ity force sum, majority’s the In is concerned. analysis appeal on direct into law Oregon the standard attempt bootstrap Teague to ultimately unavailing.3 is Fair invoking we law mandate that own case prior Nor does our in enunciated habeas standard apply corpus the federal to to federal “we are adhere majority The states that Teague. announced newly the of retroactivity in precedent analyzing for grounds” post- as federal rules asserted constitutional the cases to However, Or at 586. relief. 184 App conviction that support proposition pre- which the in of majority points decisions in date Court’s Supreme the United States Griffith its to the changed approach and in which the Court Teague, retroactivity that retroactivity and determined question of of rather than on the nature depended type proceeding on the right.4 of the constitutional 3 why, controlling, using majority explain not if it is The also does not Fair case, Teague in the standard that the Linkletter standard followed that rather than majority support implicit proposition The no for its that came much later. Oregon offers courts, choosing nonbinding appellate when to follow United States analyses Supreme does, precedent, necessarily the abandon when Court Court those subsequent analyses prospectively adopt on a sub and somehow the Court’s here,

ject. concluding exactly majority Yet predates Teague the does in that case law that is what Teague. apply that the announced in decrees we test 4 167, (1973), majority Cupp, App 12 506 P2d for The cites Stewart Or 503 analyzing proposition precedent in the the have to federal retro- we adhered activity post-conviction newly rules in cases. of announced federal constitutional footnote, observing App did Fair in a 184 Or at 586 n 6. It is true that Stewart cite that, post-conviction petitioner’s arguments and in that one the was meritless of (in any event, ing right appeal direct cases based a constitutional held includ it was on Fair) However, only relying be Id. at 170 n 1. while on that not to retroactive. footnote, majority holding isolated does not undertake to discuss the actual Stewart, post-conviction petitioner to Stewart. asserted that he was entitled plea bargain prosecution plea was in of a that his violation benefits York, 257, bargain. 2d on v.New S Ct L Ed He relied Santobello agreed (1971), peti had decided his conviction. We with the 427 tioner’s been after bargain argument to the benefit of his and held that that he entitled Stewart, post-conviction App to 12 Or at We was entitled relief. 173. analysis an did not undertake whether constitutional rule of law announced retroactively; applied implicitly must have in Santobello was be we assumed retroactively, applied retroactively. apply it we it did since case could hardly analysis provide application be said to definitive retroactive federal principles proceedings, given it in state failed to analysis all, engage any retroactivity certainly in at but it did not adhere federal analyzing retroactivity, precedent majority suggests. as the example, Cupp, 61,

For 78 Or App Kellotat v. we P2d addressed the of retroactive propriety I, law newly of a announced rule of under Article application Oregon section We reiterated the lan- Constitution. from that we Fair would look to case law of guage guidance,” United States “only ultimately at concluded that right question Kellotat, one applied retroactively, was not to be id. 67. But relies, all many well as the cases the majority on which underlying appli- on an that the assumption rest retroactive a cation of new rule of constitutional law on depends right noted, nature of As the United the substantive involved. Supreme approach States Court abandoned that in Griffith radically a Teague analysis and in favor of of is model Fair, Kellotat, cases on different. While various relies do that we majority proposition which the stand for retroactiv- guidance looked for from Court’s “substantive” do a “blank check” that we decisions, they simply not write ity would, future, any radically in different adhere to the United retroactivity to approach jurisprudence Supreme might States Court later espouse. Rather, Oregon, Palmer v. State contrary, to of 352, (1994), post- P2d 357,

318 Or 867 1368 indicates fact, subse- is, right available “where the conviction relief to generally recognized be asserted not quently sought to (Internal of marks quotation be in existence at the time trial.” omitted.) 184 Or length below, I Long, discuss at constitu- 607, at stated that “when a new explicitly we App a the time of has been articulated between principle tional proceeding, and the petitioner’s appeal post-conviction direct 805, majority’s Cupp, App P2d 1386 25 Or 550 The reliance on Cornell v. similarly precedent (1976), support its we does not assertion that follow federal cases, analyzing retroactivity post-conviction App 184 Or n because at 586 post-conviction corpus of not was a “conditions Cornell was a case. Cornell habeas underlying on convic- did not involve a collateral attack an confinement” case that Rather, expungement insti- it an of tion. concerned whether inmate was entitled process concerning his under the due rule announced tutional records confinement (1976) (which Cupp, 545 “conditions in Bekins v. 274 Or P2d 861 also was a case). corpus for It cited Fair confinement” is true that in Cornell the court habeas give rights proposition generally newly that we announced constitutional 25 Or effect that does. same level retroactive the United States However, certainly App anything the avail- at 808. it to hold about cannot be said relief, given ability post-conviction post-conviction relief. that it did not involve

603 will be con- principle on new a claim based constitutional 166 Or Long, App the post-conviction proceeding.” sidered in added). and, was not That (emphasis principle at novel — long line of prece- indeed, our commitment reiterated 631, 633, 773 P2d See, Maass, App v. 96 Or e.g., Twitty dent. (1989) (“when is articu- principle a new constitutional and the direct appeal lated the time of petitioner’s between relief, a based on the new claim for petition post-conviction post- will be considered principle constitutional 691, 695, 49 Or Myers App proceeding”); Cupp, conviction (1981) (“where a new den, rev Or 491 P2d 579 the time of principle recognized between post-conviction for petition direct and his petitioner’s appeal reasonably asserted his relief and where he could not have it will subsequently principle appeal, claim based on this relief’). be considered on a petition majority does not is the law of this court. Long any or offer per- and its antecedents propose Long to overrule in favor of suasive reason for line of cases abandoning variable, some stan- federally announced, potentially not Long, dard of claims. cognizability collateral federal and, below, Teague, described controls — 606-18, claims are Long, petitioner’s Apprendi-based under 138.530(1). cognizable under ORS APPLICABLE,

II. IF LANE EVEN TEAGUE v. WERE RULE A ‘WATERSHED” APPRENDI ANNOUNCES TO APPLICATION THAT IS SUBJECT RETROACTIVE IN PROCEEDINGS COLLATERAL 596-97, Or at the Court noted, Teague, As 184 App carved an to its rule nonretroactiv- exception general out A will be ity. procedure new constitutional rule of criminal retroactive on collateral review where given application that are procedures rule the observance of those “requires liberty.” Teague, of ordered 489 US at implicit concept (internal omitted). is, and quotation ellipses marks That required newly where application retroactive is represents rule[ ] announced a “watershed funda- principle Sawyer mental of the integrity criminal proceeding.” 229, 2d Smith, 110 S Ct 111 L Ed (1990). new law A rule of such a “watershed” constitutes

when it our the bedrock understanding procedural “alter[s] elements that must be a partic- found to vitiate the fairness of (internal ular conviction.” Teague, quotation 489 US at 311 omitted; marks emphasis original).

Thus, the essential quality of “watershed” new rule for Teague purposes is that it fundamentally implicates and enhances the accuracy of fact-finding procedures in the crim- (“watershed inal trial See process. Teague, 489 US at 313 refer to rule[s]” “those new procedures without which the diminished”). likelihood of an accurate conviction seriously Here, the majority implicitly, correctly, acknowledges rule Apprendi is a “new” rule for Teague retroactivity purposes. However, 184 Or App at 587. the majority concludes that Apprendi’s fundamental fea- requiring that sentencing enhancement facts that had ture — previously been found by judges by a preponderance evidence must be specifically by jury beyond determined reasonable doubt —does not constitute a “watershed rule” within Teague’s exception. 184 Or App 591-92. assuming

Even that Teague controls the cognizabil- ity of Apprendi-based claims under Oregon’s post-conviction statutes, relief I disagree: Apprendi radically deeply altered grounded about premises functions of court respective jury in criminal sentencing. Moreover, at least with respect to the dangerousness” “future determination sentencing enhancement purposes, the new procedures Apprendi qualitatively mandates enhance accuracy fact-finding criminal process.

My assessment oí Apprendi announcing a “water- shed rule” is inextricably consideration, intertwined with my below, of the merits of petitioner’s argument that certain fea- Oregon’s dangerous tures of sentencing offender statutes cannot be reconciled with Apprendi. my I defer sub- much of stantive discussion of my analysis of the merits. See 184 Or at 619-22. However, for I present purposes, emphasize two salient considerations:

First, under Apprendi, danger- an future offender’s determined ousness must be by a jury, beyond a reasonable

605 the evi- of doubt, by preponderance rather than a by judge, makes that deter- only who alters not Thus, dence. Apprendi incar- years’ 10 in an additional can result mination —which to establish proof required also the quantum ceration —but of stake (noting “[a]t at 476 530 US that fact. See Apprendi, surpassing of protections in this case are constitutional importance”). in the sense, change a related

Second, and in accuracy of the and enhances law alters qualitatively 363, 90 Winship, See In re fact-finding process. “reasonable (characterizing Ed 368 S Ct L 2d risk reducing for as “a instrument prime doubt” standard error”). factual resting of convictions on land- the traditional transforms sum, Apprendi very constitu- to sentencing goes criminal scape of deter- jury have a right to tional “bedrock” of a defendant’s result a fact that will mine a reasonable doubt beyond beyond incarceration years of imposition of additional empha- acknowledge, majority I as statutory maximum. federal courts none of the sizes, 588-90, ultimately deemed has question that has considered the But, respect, rule.” with a “watershed pronounce Apprendi them I do not find holdings, and we are not bound those before us.5 respect question at least with persuasive, yet spoken has not direction, I Court’s Pending the retroactivity. Apprendi's determination to the that, applied would conclude 5 application Apprendi’s to sen Virtually address all of the federal decisions See, drugs quantity drug involved. on the tence enhancement crimes based (10th den, _ US 2002), Mora, e.g., Cir cert 293 F3d 1213 United States v. (4th 2002), Dove, _, (2002); San-Miguel Cir 291 F3d 257 L v. 154 Ed 2d 315 (2002); den, _ US _ , v. Sanchez- United States L Ed 2d 242 cert (9th 2d 243 Cervantes, 2002), den, _ US _ , 154 L Ed 282 F3d 664 Cir cert (8th den, 2001), States, US 1169 (2002); Murphy cert v. United 268 F3d 599 Cir (11th den, _ US 2001), States, (2002); McCoy cert 266 F3d 1245 Cir United (2002). distinguishable _, least, very cases are 153 L Ed 2d At those fea “judge beyond doubt” jury” “preponderance a reasonable that the vs. vs. little, accuracy any, determination tures of have if effect on the verifiable) drugs. The viz., quantity cases, (objectively critical fact in those dan fact-finding of future accuracy implications respect determination with to the gerousness i.e., personality disorder particular person whether a has “a severe — indicating propensity activity” qualitatively different. towards criminal —are

“future dangerousness” Oregon’s under dangerous offender statutes, 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 turn, then,

I to whether claims petitioner’s present are procedurally barred under Oregon’s relief post-conviction Specifically, statutes.6 are petitioner’s claims time-barred 138.510(3) 138.550(3) under or ORS barred under ORS because had petitioner previously sought post-conviction 138.510(3) relief? ORS provides: petition post-conviction [for

“A relief] must be filed years within two of the following, unless the court on hear- ing subsequent petition grounds finds asserted for relief reasonably not original could have been raised in the or petition: amended

“(a) taken, If appeal judgment no is the date the or order on the conviction was entered in register.

“(b) taken, appeal If an the date the is final in appeal the Oregon appellate courts.” added.)

(Emphasis petition Petitioner’s for post-conviction relief was filed in March more than two after the years conviction, date of after appeal his to the Oregon appellate courts, Thus, became final. his would be barred petition 138.510(3)(b) under ORS unless he for grounds asserted relief “which could not have been raised in the reasonably original or amended petition.” 138.550(3) manner,

In a similar ORS provides, part: grounds by petitioner petition

“All relief claimed for in a post-conviction original [for relief] must be asserted in the any grounds or amended petition, not so asserted are deemed the court hearing subsequent waived unless petition grounds finds asserted therein which could relief for majority’s analysis, ques Given the it does not need to reach and resolve this tion. I must. original or amended in the reasonably have been raised not petition.” added.) had sought previously Because

(Emphasis case, in the present relief seeking relief before for grounds it asserts unless is barred present petition his in the been raised have reasonably not “which could relief Id. amended petition.” or original ORS of whether then, regardless question, 138.550(3)

138.510(3) grounds is whether applies, or ORS case “could not present asserts in the relief that petitioner peti- or amended original have been raised reasonably identical interpreted we Long, tion.” 138.510(2) (1991), as follows: ORS language from articulated has been principle “[W]hen a new constitutional and the appeal direct petitioner’s time of a between the the new con- based on a claim post-conviction proceeding, post-convic- considered principle will be stitutional trial or on raised at though it was not proceeding tion even where necessarily follow does not The same result appeal. one, and acknowledged is an principle the constitutional particular to a uncertainty scope application is in its or particular whether The touchstone is not circumstance. be antic- settled, reasonably is to but whether it question is accordingly. and settled that it can be raised ipated so principle or other and familiar a constitutional more settled based, likely the claim reason- the more on which a claim is Conversely, anticipated and raised. ably should have been one, if its exten- a new or principle is if constitutional circumstance, statute, setting or particular sion to a likely more novel, then the surprising, or unprecedented, have reasonably could not claim the conclusion that been raised.” omitted.) citations original;

(Emphasis court post-conviction that Petitioner asserts should reason- claims present that his concluding erred the rule because original petition in his have been raised ably States, 526 in Jones v. United that was foreshadowed of law (1999), and L 2d 311 1215, 143 Ed 227, 119 S Ct US principle. was a new Apprendi, announced concluded correctly the trial court responds Defendant that petitioner’s present claims are barred, and that peti reasonably tioner’s claims could have been earlier, raised because the constitutional principle by enunciated the Court is, in Jones and Apprendi according defendant, “almost identical” to the principle by enunciated the Oregon Supreme Quinn, in State v. P2d (1982). State v. Wedge, 293 Or 652 P2d 773 above, As noted petitioner asserted two bases for his First, claims. he asserted that, because the Due Process Clause requires that the facts which an upon beyond enhanced sentence maximum statutory is based be pleaded in the indictment and found by jury, his sen- tence was unconstitutional.7 Second, he asserted that he received constitutionally inadequate assistance of trial coun- sel because trial counsel faded argue sup- the factors porting the dangerous enhanced offender sentence should have been pleaded in the indictment jury.8 and found respect

With to inadequate assistance, the majority concludes that petitioner’s complaint fails because his Apprendi-based claims are sufficiently “new” that trial coun- sel cannot be reasonably faulted for “not anticipating] the law would it develop as did.” 184 Or App agree. at 592.1 Consequently, I concur in that aspect majority’s disposition. claim,

Petitioner’s other he post- is entitled to conviction relief ground on the that his sentence was uncon stitutionally excessive, 138.530(1)(c), very ORS requires different analysis. Because of the escape nature of the clause 138.510(3) provisions of 138.550(3), ORS and a deter ORS mination of whether petitioner is excused the time con from straints provided those by statutes some necessarily requires analysis of the substance of his claim. 138.530(1)(c) provides petitioner may post-conviction ORS that a relief obtain “[sjentence subjected of, with, if to a the excess or otherwise not in accordance by convicted; sentence authorized law or for the crime of which was unconstitutionality of such sentence.” 138.530(1)(a) provides ORS petitioner may post-conviction that a obtain resulting peti relief if proceedings there has been a “substantial denial in the * * * tioner’s petitioner’s rights conviction of United of the under the Constitution States, both, or under Oregon, denial Constitution of the State and which or

rendered the conviction void.” dangerous as a offender

Defendant was sentenced 161.725(1) allowed the court (1987), to ORS pursuant years of 30 if “[t]he an indeterminate sentence impose to A and the felony, is a Class being defendant sentenced for from suffering per- a severe court finds the defendant is criminal sonality indicating a toward propensity disorder court, impos- activity.” ORS a before required 161.735 to 161.725 a ORS ing dangerous pursuant offender sentence investigation consider obtain and a presentence psychologist. an a or by examination report psychiatrist sentencing statutory clearly indicated scheme whether and not make the determination court, jury, a would disor- defendant from severe suffering personality was a activity. indicating der a for criminal propensity Here, argues defendant —and made a court and should have agreed petitioner could —that dangerous to that challenge. aspect sentencing timely petition post- offender scheme in a estab- relief, conviction because and Jones did not argues lish a new of constitutional law. Defendant principle were, fact, substantially Oregon that those similar to cases predated arguing, decisions that conviction. In so petitioner’s Quinn. defendant first invokes Quinn,

In the constitution- challenged the defendant ality jury of a sentencing permitted murder scheme state, to convict him murder based mental specified sentence sentencing impose but allowed the court if the committed death court found that the murder “was mental than found greater culpable with state statutory The court that the jury.” at 404. concluded I, 11, of Article section scheme unconstitutional under Oregon Constitution: have statutes even penalty “We other enhanced upheld by they findings though post-trial additional required we particular, as a greater court basis for a sentence. sexually Act and upheld have Habitual Criminal former challenges pro- that the dangerous offender statutes over upon the facts right by jury to trial cedures violated the The differ- was to be based. punishment which enhanced sentencing statutes murder [the ence between those however, simple issue], principle scheme found 610 that the the constitute crime are the jury and facts for those which characterize the are the sentenc- defendant for

ing court.” added). Quinn, Or at 290 405 The court (emphasis indicated that, concerning while factors the “kind and character” of a may defendant properly be considered the sentencing court, factors that criminal for “go to the acts which defen- dant is be punished” by jury. to be must decided a Id. at 406 (internal omitted). quotation marks The court further indi- cated that the result was the same I, under either Article sec- 11, tion Oregon Constitution or the Due Process Clause of the United States Constitution. Id. at n 9.

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 There, sentenced. it was unclear the from indictment whether the state alleging was that the defendant used a knife or a of a gun first-degree robbery. course 293 Or at 602-03. the use weapon support While of either would jury’s verdict, robbery a sentencing imposed gun court finding minimum based on its own defendant had used a firearm. Id. at 603. The court reiterated verbatim its test from Quinn “facts which the crime are constitute for the jury those which characterize the defendant are for the sentencing judge.” Id. 607. It use at held: “The or threat- ened use of firearm is finding goes a a to the criminal act for which this defendant and thus is closer to an punished, element of crime a than to characterization of the defen- dant.” Id.9 452, Mitchell, 379,

In State v. 734 P2d den, rev 303 Or 590 (1987), applied we Court’s test dangerous from to a Quinn Wedge portion of offender sentencing Mitchell, scheme. the defendant had Pennsylvania, 84-91, 106 But see McMillan v. US S Ct 91 L Ed (1986) (due that, gun process require 2d 67 of a was a did not where use factor required mandatory sentence, imposition of a minimum use must be found such beyond doubt; however, suggested might a reasonable result be beyond different if the was used to enhance sentence what otherwise would factor maximum). States, statutory be the 2406, 2417-18, 153 v. United S Ct See also Harris (McMillan 524, 541-45 implicitly L Ed 2d neither nor explicitly by Apprendi). or modified overruled under a different as a offender been sentenced dangerous pro- case. The present than the provision one at issue court sentencing vision issue Mitchell permitted if impose dangerous sentence offender felony that being defendant sentenced for a “[t]he is another, safety has been seriously endangered the life or the instant previously crime felony not related to convicted of a that and court finds single episode, as a criminal the disor- a suffering personality the defendant is from severe activity.” indicating propensity der a toward criminal 161.725(2) (1987). whether issue in was ORS Mitchell that the the jury defendant was entitled to a determination he one that “seri- being crime for which was sentenced was App the 84 Or at ously endangered safety life or another.” that the Quinn 454. and we concluded Applying Wedge, that defendant was entitled to a determination of issue: jury status “The critical fact not relate to the or does offender’s character, find, but relates privileged which court is being is sen- particularly to the crime for which offender tenced.” Id. at 457. Mitchell,

Even before we had held on two occasions beyond a proof that the Due Process Clause did not require doubt a had a “severe reasonable that criminal defendant disorder a toward criminal personality indicating propensity 109, 647 P2d 943 Hunter, App 99, State v. 58 Or activity.” Sanders, 35 (1982), den, (1983); 294 Or rev Or 391 State v. Or App 503, 506-09, den, 195 P2d rev (1979). those earlier suggestion Mitchell contained no that the court’s any question by were in called into way cases Wedge and application Quinn announced in principle to the dangerous offender statute. was sum, at sentence petitioner’s the time imposed petition at the initial post-conviction time his —and Due Proc-

was timely had held that Oregon courts filed — sentence-enhancing ess fact Clause did not require indi- disorder a defendant personality suffered a “severe proved a criminal be cating propensity activity” toward beyond hold that a did However, reasonable our cases doubt. Clause, I, Article section as the Due Process well defen- finding that the crime for which required life or being “seriously endangered sentenced dant a reasonable by jury beyond of another” be found a safety the crime doubt, the latter “relates particularly because Mitchell, being the offender is sentenced.” which deci- Court’s Thus, 457. case law —the Oregon Sanders, decisions in and our Quinn Wedge, sions in facts between Hunter, Mitchell —drew a clear distinction being is crime for which the defendant that constitute the and facts that sentenced, jury finding required, for which a sen- by be found defendant,” may “characterize the tencing court. appel- Oregon consensus of contemporary

Given the reasonably could precedent, late jury’s that he was entitled to the argument have viewed per- from a severe as to whether he suffered determination crimes toward indicating propensity disorder sonality as foreclosed safety the life or of another seriously endanger rejected noted, Hunter and Sanders As precedent. settled Wedge, and Mitchell, Quinn, arguments. process similar due itself, did the crime facts that related to only which concerned Sanders. in Hunter and our conclusion not call into question the cor- confirmed necessarily, but Rather, they implicitly, the dis- reiterating, and drawing, holdings by rectness of our and the personal of the crime tinction between circumstances characteristics of the offender. how that, of regardless suggest

Defendant does not and Quinn analyses squares rule with Apprendi “reasonably anticipated” have could Wedge, petitioner reti- Defendant’s precedent. based on federal Apprendi rule then- the state of Given unsurprising. cence in that regard not rule could law, Apprendi federal contemporaneous That the late 1990s. until reasonably anticipated have been of United discussions lengthy with comports conclusion thereof) (or in lack precedent States antecedents, its immediate well as itself, as Apprendi Ct 224, 118 S States, v. United Almendarez-Torres 231-52, US at Jones, 526 (1998), and 1219, 140 L Ed 2d 350 understanding That at length which I describe below. by post- law is also corroborated state of federal pre-Apprendi Teague addressing the decisions Apprendi appellate federal

613 corpus cases. As noted retroactivity federal habeas rule for may be granted relief under above, corpus federal habeas failed if the to raise circumstances, even limited proceeding, criminal underlying in the litigate and the issue constitutional newly prin- announced if the issue concerns 489 at 311. US ciple. Teague, a constitutional determining princi whether

Courts purposes Teague announced” qualifies “newly ple we in. deter at similar to those consider have looked factors reasonably could have been a rule of law mining whether For the most courts have concluded anticipated. part, federal and foreshadowed the rule announced fact, of constitu Jones, was, newly principle announced States, 266 F3d McCoy tional law. v. United (11th L Ed 2d 183 2001), den, _ US _ , cert 153 Cir stated: the court procedure, a new of criminal one

“Apprendi established rule existing before the by precedent not dictated was announced, Until it was all Apprendi decision was released. greater that were upholding had been sentences circuits sentences based applicable than the otherwise maximum indictment, submitted charged not drug quantity beyond doubt.” jury, proved to the a reasonable (8th Cir Moss, F3d 997-98 See also United States 252 rule concern 2001), den, (Apprendi cert US “obviously” new ing statutory maximum was by precedent the result not dictated because principle final); became existing the time the defendant’s conviction 2000) (9th Smith, (Apprendi Cir Jones v. F3d it broke Teague because purposes announced a new rule for on the obligations new ground imposed new government).10 antecedents. The immediate Apprendi’s

I return 1998, in Almendarez-Torres, decided cases first of those was 10 Apprendi Similarly, be whether issues can state courts that have addressed announcing proceedings a it as new rule collateral have treated raised state (Ariz 2001) 159, 158, App Sepulveda, 1085 Ariz 32 P3d law. See State v. 201 law”); People (“Apprendi significant change a in federal constitutional constitutes (2000) 700-02, (recognizing 693, Beachem, App 389 that NE 2d 317 Ill 3d 740 law). announced a “new rule” 614

in which the whether a that pro Court considered statute vided that a who had been convicted of an person aggravated the United after hav felony and who had returned to States been to 20 ing deported subject up years’ imprison was merely returning ment described a crime from separate (which was country after an initial otherwise deportation a of no than punishable by years) sentence more two —or an whether consideration of the defendant’s commission of factor. aggravated felony only a sentence enhancement Court, decision, relied on US 226. The a 5-4 2411, 91 Pennsylvania, 79, McMillan v. S Ct (see 9), L Ed 2d 67 at 610 n App upheld statute as enhancement rather merely concerning penalty than crime of an addi creating separate requiring proof 242-47. tional element. 523 US at conclusion, In its the Almendarez-Torres reaching York, US majority heavily relied on Patterson v. New that 97 S Ct 53 L Ed 2d 281 for the conclusion any “the Constitution factors to requires scarcely sentencing ” Torres, be treated elements of a Almendarez- [as crime]. a sharp US at 241. The decision in Almendarez-Torres drew a leg dissent that out the arbitrariness with which pointed islative define “elements” of crimes ver body could choose to (Scalia, factors.” Id. at 252-53 “sentencing sus enhancement J., dissent that dissenting). It was the Almendarez-Torres (see in McMillan suggested first that a distinction noted that, 9), in that per Or at 610 n but not decided case— maximum a crime penalty that increased the haps, fact a reasonable doubt —should beyond should need to be proved Almendarez-Torres, 523 US at 254 be the dispositive question. (Scalia, J., majority, The Almendarez-Torres dissenting). could however, the notion McMillan explicitly rejected “McMillan noting be read to stand for that proposition, in that case would have petitioners’ argument said sentencing ‘exposed if the fact appeal’ had ‘more superficial ” greater punishment,’ them to or additional and concluded distinction was not greater punishment additional Almendarez-Torres, (quoting determinative. 523 US at 245 88) Almendarez-Torres). McMillan, 477 (emphasis US at Jones, following year, again decided the the However, in a 5-4 decision. from split four dissenters majority, joined Almendarez-Torres were in the by one other whether a justice. question carjack- Jones was federal three ing crime, statute described one or different crimes with three different penalties: years maximum for car- years if jacking; bodily injury results; serious to life up imprisonment if death results. 526 US at 229-30. The indict- ment in Jones did not which section allege of the statute would and the apply, jury only was instructed as to the ele- ments carjacking, for with no bodily injury mention of serious or death. Id. at 230-31. jury After the returned a verdict of guilty, the court at sentencing made a that the crime finding had involved serious bodily injury 25-year and a imposed sentence. Id. The Court observed that and both due process (other the Sixth Amendment require that fact than “any prior conviction) that increases the maximum crime penalty for a indictment, must be in an charged submitted a jury, proven a beyond Court, reasonable doubt.” Id. 243 n 6. The suggesting that there were serious constitutional concerns with construing the carjacking merely statute as a sentenc- ing statute, enhancement avoided a decision on the constitu- tional question by construing creating statute as three separate offenses. Id. at 251-52. the Supreme Court Apprendi. decided

There, the defendant was of, alia, convicted inter possession of a firearm for an unlawful purpose, which, under New Jersey law, carried a years. maximum sentence of 10 at 468. The sentencing found, by court preponderance evidence, that the defendant committed the crime because of racial bias. Id. at 471. Jersey law, Under New the defendant was eligible for an extended term of imprisonment upof to 20 years based on the court’s finding of racial bias. Id. at 469. The defendant received an actual sentence of 12 for the years crime. Id. at 471. The question before the Court was “whether [the had a right jury defendant] to have a find such bias on the basis of Id. proof beyond a reasonable doubt.” at 475-76. The Court announced the rule of law: following conviction, “Other than the prior any fact of fact penalty beyond

increases the prescribed crime stat- utory maximum must jury, proved be submitted to a beyond a reasonable doubt.” added).

Id. at 490 (emphasis the Court’s summarized deci- recently We sion as follows: that, time of the nation’s

“The Court noted at the found- an ing, ‘[a]ny possible distinction between “element” of a felony “sentencing and a factor” was unknown’ and offense that, rule, were general proceedings ‘[a]s a criminal submit- jury ted to a after initiated an indictment contain- being ing all the facts and circumstances which constitute the (internal omitted). The quotation offensef.]’ [530 US] at 478 that, explained prac- as a result of those established principles, tices and the substantive criminal law ‘tended to and, 479, although sanction-specific,’ applicable be id. at judges trial might prescribe range penalties, statutes in typically imposing otherwise have had little discretion Id. at 479-80. particular the sentence for a offense. link’ resulting

“The Court stated that ‘historic between a conviction and the sentence for that conviction ‘highlight[s] novelty legislative of a scheme that that, a fact if jury removes the from the determination of found, exposes penalty the criminal defendant to a exceed ing punished according the maximum he would receive if jury alone.’ Id. at 482-83 the facts reflected verdict (emphasis original). reviewing After its earlier case law relating affecting severity to facts of a defendant’s sen States, 227, 119 v. 526 US particularly Jones United tence — (1999) S Ct 143 L Ed 2d 311 Court concluded — the conviction, that, any fact that prior ‘[o]ther than the fact of a beyond prescribed increases the for a crime penalty statutory jury, maximum must be submitted to a proved beyond a reasonable doubt.’Id. at 490.” Crain, 627, 633-34, v. Or 33 P3d 1050 App State (2002) (footnote omitted; den, emphasis rev 334 Or 76 original). sum, held a matter of constitutional Apprendi

law what the Court had in the nonconstitutional suggested case a earlier and what the Almendarez-Torres year Jones than years Facts, dissent had two earlier: other proposed conviction, jury facts of must be decided under prior by are doubt” standard if the such facts “reasonable existence of beyond pre a crime increase the for penalty used to Arizona, Ring also maximum. See statutory scribed (reiterat 572-77 2428, 153 L Ed 2d S Ct sen it to invalidate and applying from ing holding circumstances aggravating based on imposed tence of death jury). a court rather than a found us is before question I return to this case. at the time whether, the state of the law given relief, the first timely petition filed his enhance- offender sentence constitutionality dangerous of his 138.510(3); have been raised.” ORS “reasonably ment could 138.550(3). above, depends As noted the answer ORS one, or issue “is a new principle the constitutional whether circumstance, or set- statute, to a particular if its extension Long, novel, surprising.” or ting unprecedented, is at 101. underlying Here, principle viz., process that due petitioner’s Apprendi-based claim — nec- every as to fact beyond a reasonable doubt proof requires Winship, new. See constitute the crime —is not essary to established, its well While that basic principle US at 364. as opposed enhancement factors” “sentencing application were crime,” a was not obvious —nor constituting to “facts Apprendi in Jones and subject Court’s conclusions about this Indeed, Oregon law.11 foreshadowed in its earlier case as to helpful guidance above more provided cases discussed did the cases of the United States this issue than decisions had settled Moreover, Oregon those Court. adversely to petitioner. question decision, fed Appeals all noted in a recent Eleventh Circuit Court of As the Apprendi did con that had addressed the issue “determined circuit courts eral any by requiring increases procedure fact that criminal a new rule of stitute beyond statutory prescribed must be submit penalty maximum for a crime States, McCoy beyond jury proved v. United and a reasonable doubt.” to the ted (2002) (11th 2001), den, _ US _ , 2d 183 153 L Ed Cir cert F3d (citing (O’Connor, cases) original). Apprendi, (emphasis at 525 See also (“the years instance, identify single dissenting)

J., cannot a in the over Rights, applied, as a consti of the Bill of that our Court has the ratification since original)). today” (emphasis requirement, the rule it announces tutional

As above, recounted the rule of law from Quinn, (1) and Wedge, Mitchell established that sentence enhance- ment factors that related to the commission of the crime itself must be decided but jury, sentence enhancement factors “which characterize defendant are [a] for the sentenc- ing court.” Quinn, 290 Or at 405. A finding under the danger- ous offender statute that a defendant has a “severe person- ality disorder indicating propensity toward criminal activity” does not relate to the circumstances of the crime is, itself. Rather, it literally, characterization of the defen- dant being is, sentenced —that of the defendant’s personal Moreover, characteristics. explained above, specifically we held, Sanders, both in Hunter and in that the person- “severe ality disorder indicating a propensity toward criminal activ- ity’ factor used in dangerous offender statute did not need to be proved beyond a reasonable Hunter, doubt. 58 Or 109; at App Sanders, 35 Or at App 507.

In sum, post-conviction in petitioner’s position not, could not, would have antici- “reasonably’ pated petitioner’s present constitutional claims before Jones and Apprendi. See Long, 101. Sanders and Hunter expressly rejected claim, such a and Quinn, Wedge, and Mitchell corroborated that rejection. Nothing in the Oregon case law —and defendant points to no contempora- neous suggested federal case that such a had claim law — even the slightest Contrary likelihood of success. to defen- dant’s present position, the rule of Apprendi hardly “almost identical” to the analysis Quinn, Wedge, et al. With the single explicit convictions, of an offender’s exception prior see Apprendi, 530 US at endorses nothing Quinn and Wedge’s sweeping differentiation between the cir- cumstances of the crime and the characteristics Indeed, offender. Apprendi’s holding any bedrock explodes such distinction.

I thus conclude that for relief asserted grounds in petitioner’s relief “could not petition reasonably have in the original peti- been raised or amended 138.550(3). tion.” ORS 138.510(3); ORS Consequently, trial court should not have dismissed petitioner’s petition 138.510(3) the grounds that it was barred under ORS 138.550(3). ORS HAS

IV. THE MERITS: PETITIONER STATED FOR CLAIMS POST- LEGALLY COGNIZABLE UNDER CONVICTION RELIEF APPRENDI only granted trial here not court the state’s on but also ruled in procedural grounds, motion to dismiss the alternative: petitioner’s filing timely,

“Even if is deemed neither Apprendi supports petitioner’s allega- decision in or Jones felony, Petitioner A tions. was convicted of a Class and the sentencing dangerous court did not condition the offender any findings sentence on that could be characterized as Apprendi facts of the crime. The decisions in and Jones are inapplicable present therefore in the case.” Thus, the court reasoned that claim failed on the petitioner’s under Apprendi, merits based on the conclusion apparently drew the same Apprendi distinction drawn the courts Mitchell, in Quinn, Wedge, i.e., and that “facts which consti- tute the crime are for the and jury those which characterize are Quinn, defendant for the court.” 290 Or at sentencing 405. above, however, As discussed Apprendi essentially is not Quinn, same as Wedge, Mitchell.

Defendant asserts must be under- Apprendi stood right fact, to establish a to “a trial jury disputed indictment, to have the consequently alleged fact in the if only crime, the fact both serves to aggravate by requir- ing or authorizing sentence, of an enhanced imposition and relates to the manner or circumstances [the criminal committed the crime.” (Emphasis defendant] original.) assertion, making defendant notes Apprendi and Jones both concerned circumstances crime and that the Court’s must limited suggests holding be to such circumstances. The only language opinion points to which defendant his support proposed rule following: of law is the Jersey’s

“New reliance on also Almendarez-Torres unavailing. supporting The reasons an exception from the general rule for the statute construed in that case do not Jersey apply to the New statute. Whereas recidivism ‘does itself, not relate to the commission 523 US at offense’ 230, 244, Jersey’s purpose New biased inquiry goes precisely ’ happened to what the More- ‘commission of offense. over, there is a accepting vast difference between the valid- ity prior of a judgment proceeding of conviction entered a jury in which the defendant had the to a trial and the right right require prosecutor prove guilt beyond to the to a doubt, allowing judge reasonable required and the to find the proof.” fact under a of lesser standard added). Apprendi, essence, US at 496 (emphasis that, defendant is positing that the Court’s broad directive conviction, than the any “[o]ther fact of a that prior fact increases the for a crime stat- penalty beyond prescribed maximum utory jury, proved must be submitted to a and beyond doubt,” added), a reasonable id. at 490 (emphasis “any really does not mean what it that fact” means says —and “any to the an relating commission fact offense.” disagree. First, might

I whatever the Court other- Jersey’s have intended mis- express regarding wise to New fact,” Almendarez-Torres, “any prior reliance on other than convictions, Not fact “any “any means fact.” Not “some facts.” are not relating solely the commission of the offense.” We free to in revisionist reconstruction of the Court’s engage explicit Nor are we free to that plain language. deprecate the Court’s Rather, by directive as dictum. as confirmed recent decision in we must assume that Court Ring, meant what it said in Apprendi.

Further, “any language comports the Court’s fact” The Court dis- contextually totality analysis. with the of its and sen- length history sentencing practices cussed at case law that tencing enhancements, prior as well as its of the Court’s dis- subject. significant touched on A focus ele- cussion was the “sentence enhancement” on whether statutory maximum. beyond prescribed vated the crime the Court con- reviewing history, For after that example, * * * cluded, it is “nothing suggests impermissible vari- taking to exercise into consideration judges discretion — imposing and offender —in relating ous factors both to offense statute.” judgment within the range prescribed in original). 530 US at 481 Apprendi, (emphasis con- defendant relies Finally, excerpt on which Almendarez-Torres, the Court’s cerned treatment of had to say a number of other things about deci- In Apprendi, sion. the Court described Almendarez-Torres as “exceptional departure” practice an from the requiring proof beyond a reasonable doubt of facts used to enhance pen- alties. Id. at 487. It described the case at length, stated:

“Both any certainty procedural safeguards attached to conviction,

‘fact’ prior reality and the defen- [the case, did challenge accuracy dant] not ofthat ‘fact’in his mitigated process the due and Sixth concerns Amendment implicated allowing judge otherwise determine ‘fact’ increasing punishment beyond the maximum of the range.” statutory (footnote omitted).

Id. The Court concluded: “Even though arguable it is that Almendarez-Torres incorrectly decided, was logical and that a application ofour reasoning today apply should if the recidivist issue were contested, [the defendant] does not contest the decision’s validity we need not revisit it purposes for of our deci- today sion to treat the as a exception gen- case narrow to the eral rule we recalled at the outset.” (footnote added). at Id. 489-90 omitted; emphasis Court, thus, entertained doubts the about vital- of ity in its light holding, Almendarez-Torres of broad but maintained the rule announced in that concerning case “facts” to relating recidivism as the “narrow to the exception” broad rule it was announcing. short, In while Almendarez- may Torres have made the something of between distinction facts that relate to the an commission of offense and other of types facts, the Apprendi Court did not. It the discussed “fact” clearly recidivism —which does not to the com- relate mission of being the offense sentenced —and maintained a “narrow exception” to its broad rule on the the ground “fact” of the previous conviction the defen- was one for which dant had trial, been entitled a a jury beyond and proof reasonable it put doubt. To had the intended bluntly, to announce the ride of here —that posited law defendant by rule the a applies only beyond statutory where sentence being maximum is imposed and the fact on which enhanced sentence is based relates to the circumstances it crime —then would have in a engage had no reason to

lengthy discussion of The Court could Almendarez-Torres. have stated that its rule had no to the simply application new of Almendarez-Torres issue facts because recidivism at in case did to the not relate circumstances of the crime. But not do it did so.

I at face Apprendi take the Court’s announcement conviction, fact that any “Other than the fact of prior value: a a stat- beyond increases for crime penalty prescribed maximum jury, proved must be to a utory submitted added). a doubt.” US at beyond (emphasis reasonable found, In the criminal trial court underlying proceeding, suf- evidence, petitioner was preponderance indicating propen- from a disorder fering personality severe criminal of that activity, and, toward sity consequence sentenced a maximum indeterminate finding, petitioner the max- years of 30 more than years, sentence sentence that could have received imum fact other finding of such a concerned a finding. absence That conviction; pen- “increase[d] the fact it also prior than of a statutory maxi- beyond for crime alty prescribed [the] Id.12 mum.” the rule application I closing, acknowledge diffi- fraught potential law announced in with a mixed irony. may That rule confer potential

culties —and human and defendants. As blessing, best, criminal ask cautions, you “Be careful of what experience often legal for; might it.” you get highlights Apprendi, Breyér,

Justice his dissent a criminal Requiring glaring potential incongruity: one trial factors against aggravating to defend defendant (and con- in the easily the defendant awkward place “could unfair) the deny he committed of ceivably position having T did not it, e.g., about he committed yet proof crime offer how ” US at grams.’ 500 530 I no more than drugs, sell but sold 12 dangerous acknowledges, agree, expressly I that the offender Defendant statutory longer impose is than the a that authorizes a court to sentence statute distinguishes underlying prescribed That fact for the offense. maximum otherwise allowed, v. Dilts, App 238, 39 P3d 276 335 Or from rev this case State (2002) guidelines (holding that, Apprendi purposes, departure do sentences statutorily prescribed longer imposition than involve of sentences that are the not máximums). Nancy King J. and Susan J., see also (Breyer, dissenting); L Rev Elements, 54 Vand Klein, R. Essential trials are author- that, unless bifurcated (suggesting enhancement fac- of sentence jury’s a consideration ized for aggravating cir- tors, prejudicial that hears evidence of jury a defendant). a inclined to convict may cumstances be more sentencing scheme at issue offender dangerous jury a decide difficulty having here exemplifies posed nature of Regardless sentence-enhancement facts. being tried, dangerous felony for which a defendant the defendant is suf- finding statute a requires offender a indicating propen- from a severe disorder fering personality endanger safety the life or sity seriously toward crimes such things, “propensity” of another. In the normal course of is considered highly prejudi- evidence is not admissible and 404(3) See, evidence “other e.g., (generally, cial. OEC the charac- crimes, wrongs prove or acts is not admissible ter a acted in con- person person order to show therewith”). Thus, a defendant formity Apprendi, under offender sentence could look forward to facing dangerous to com- having jury only pertaining consider not evidence crime, also his or underlying mission of the but evidence of history bearing propensity her to commit psycho-social crimes. sum, presentation seems to sanction the evidence to a potentially highly inflammatory pertaining jury

defendant’s before the ever personal characteristics Whether, how, or that can be guilt. renders verdict as to fairness” squared requirements with “fundamental Due case. 536 US at Ring, Process Clause awaits another Cf. _ , (Scalia, J., concurring) (suggesting 153 L Ed 2d at 579 that, find the facts to sen although jury necessary must tencing factors, enhancement it could do so either in a sepa “by rate or penalty-phase proceeding placing aggravat (where it ing-factor logically belongs anyway) determination guilt phase”). I thus conclude that trial court claims, determining petitioner’s erred in other than counsel, assistance of alleging those ineffective failed to state Apprendi. respectfully a claim for relief under I dissent from majority’s affirmance of the trial court’s dismissal of those claims.

Case Details

Case Name: Teague v. Palmateer

Court Name: Court of Appeals of Oregon

Date Published: Oct 30, 2002

Citation: 57 P.3d 176

Docket Number: 00C-12089; A113384

Court Abbreviation: Or. Ct. App.