In 1993, at 15 years old, petitioner and his twin brother murdered an elderly couple.
As noted, based on acts committed when he was 15 years old, petitioner was convicted of aggravated murder, murder, and first-degree robbery. We affirmed the trial court’s judgment without opinion on direct appeal, and the Supreme Court denied review. See State v. White,
In 2012, the Board of Parole and Post-Prison Supervision held a prison term hearing and issued an order establishing petitioner’s prison term on the life sentence imposed for the aggravated murder conviction. See State ex rel Engweiler v. Felton,
Also in 2012, the United States Supreme Court decided Miller, in which it held that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders.”
“Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. *** And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.”
Id. at 477,
In his petition in this case, petitioner claimed that he had been denied adequate assistance of trial counsel in a number of ways, including that counsel failed to “object to, as unconstitutionally disproportionate
The superintendent filed a motion for summary judgment asserting, among other things, that the petition was time barred under ORS 138.510(3) and did not fall within the escape clause under that statute.
On appeal, in his first assignment of error, petitioner contends that the trial court erred when it denied him relief on his claim of inadequate and ineffective assistance of trial counsel. In particular, he asserts that the 1995 judgment in his criminal case imposed a de facto life sentence without the possibility of release.
The state post-conviction relief act provides “that post-conviction petitions must be filed within two years after the challenged conviction becomes final, ORS 138.510(3), and it also bars successive petitions, ORS 138.550(3).” Verduzco v. State of Oregon,
In Verduzco, the Oregon Supreme Court interpreted and applied ORS 138.550. As the court explained, under ORS 138.550(2), if a petitioner
“has appealed from a judgment of conviction and if the petitioner could have raised a ground for relief on direct appeal, then the petitioner cannot raise that ground for relief in a post-conviction petition ‘unless such ground was not asserted and could not reasonably have been asserted in the direct appellate review proceeding.’”
Id. at 565 (quoting ORS 138.550(2)). Similarly, under ORS 138.550(3), “all grounds for relief must be raised in the
“Those two statutory provisions ‘express a complete thought’ and, read together, ‘express the legislature’s determination that, when a petitioner has appealed and also has filed a post-conviction petition, the petitioner must raise all grounds for relief that reasonably could be asserted.’ A ‘failure to do so will bar a petitioner from later raising an omitted ground for relief.’”
Kinkel,
In Verduzco, the petitioner filed a successive petition for post-conviction relief, claiming that counsel in his underlying criminal proceeding had been ineffective for failing to advise him of the immigration consequences of pleading guilty to distribution of a controlled substance. In an earlier unsuccessful post-conviction petition, the petitioner had alleged essentially the same grounds for relief. Thereafter, the United States Supreme Court had decided Padilla v. Kentucky,
Because the petitioner had earlier raised those claims, the court concluded that he could not “claim that he could not reasonably have raised them.” Id. As the court explained, “[t]he escape clause does not preclude petitioner from relitigating only those grounds for relief that he was certain he could win when he filed his first post-conviction petition.” Id.
“In other words, the fact that, in an earlier appeal or petition for post-conviction relief, a petitioner unsuccessfully raised a ground for relief that would have been successful under later case law does not bring a claim for relief within the escape clauses of ORS 138.550(2) and (3). On the contrary, the fact that a petitioner earlier raised the same ground for relief demonstrates that that ground for relief could reasonably have been raised on appeal or in a first petition for post-conviction relief.”
Kinkel,
As noted, in this case, petitioner asserts, in part, that he is entitled to relief from the 1995 judgment because the sentence imposed, particularly, the 800-month murder sentence, is a de facto life sentence that constitutes cruel and unusual punishment in violation of the Eighth Amendment and Article I, section 16. Furthermore, he asserts that he could not have raised that challenge earlier because Miller announced a new rule that he could not have reasonably anticipated.
As noted, petitioner also claims that the 800-month sentence for murder is vertically disproportionate to the sentence for aggravated murder, and asserts that he could not have raised that challenge before the parole board established a release date on his aggravated murder sentence in 2012, and, therefore, it falls within the escape clauses in ORS 138.510 and ORS 138.550. We are unpersuaded. As petitioner notes, his vertical proportionality challenge “involves a comparison between the sentence for murder and the sentence for aggravated murder.” However, his sentence on each conviction was set forth in the 1995 judgment in this case and those sentences have not changed in the years since they were imposed. Thus, a challenge based on the premise that the 800-month sentence for murder is vertically disproportionate to an indeterminate life sentence for aggravated murder could have been raised at that time. See Cunio,
In a second assignment of error, petitioner asserts that the court erred when it denied relief on his claim of inadequate or ineffective assistance of post-conviction counsel. In particular, he asserts that his procedural default should be excused based on the inadequacy of counsel in his original post-conviction proceeding. That is, he asserts that he “satisfies the escape clauses in the [Post-Conviction Hearing Act] if he proves that his * * * counsel unreasonably failed to raise a ground for relief in a prior post-conviction proceeding.” We reject that contention.
First, as we recently reiterated in Cunningham v. Premo,
“[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.”
However, as we explained in Cunningham, the Court’s decision in Martinez “applies narrowly to procedurally barred claims of ineffective trial counsel in federal habeas corpus petitions, where barred claims will only be reviewed upon demonstration of cause and prejudice for the procedural default, or that a failure to review the claim will result in the fundamental miscarriage of justice.” Cunningham,
In sum, the post-conviction court did not err in granting the superintendent’s motion for summary judgment and dismissing petitioner’s claims as improperly successive pursuant to ORS 138.550(3).
Affirmed.
Notes
As petitioner notes in his brief, petitioner and his brother, Laycelle, received similar convictions and sentences. Laycelle’s appeal from a post-conviction judgment is currently pending in White v. Premo, A154420.
Petitioner filed a pro se petition for post-conviction relief in December 2011 and then, in February 2013, filed an amended petition through counsel in which he relied on Miller.
As petitioner notes in his brief, his projected release date on the aggravated murder sentence is 2018 and, at time the brief was filed, his expected release date on the 800-month sentence was June 3, 2051.
In his petition, petitioner also stated several other ways in which, in his view, his criminal trial counsel had been inadequate. For example, he claimed counsel had failed to investigate or articulate “any sentencing facts in mitigation” and failed to object to the imposition of an upward departure sentence on the ground that the court “failed to articulate findings supporting application of aggravating factors to support such a departure.” He does not specifically discuss those claims on appeal, nor does he articulate any reason that those claims could not have been raised in his original post-conviction petition. Accordingly, we do not understand him to challenge the post-conviction court’s dismissal of those claims.
ORS 138.510(3) provides:
“A petition pursuant to ORS 138.510 to 138.680 must be filed within two years of the following, unless the court upon hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the original or amended petition:
“(a) If no appeal is taken, the date the judgment or order on the conviction was entered in the register.
“(b) If an appeal is taken, the date the appeal is final in the Oregon appellate courts.
“(c) If a petition for certiorari to the United States Supreme Court is filed, the later of:
“(A) The date of denial of certiorari, if the petition is denied; or
“(B) The date of entry of a final state court judgment following remand from the United States Supreme Court.”
ORS 138.550 provides, in part:
“The effect of prior judicial proceeding concerning the conviction of petitioner which is challenged in the petition shall be as specified in this section and not otherwise:
“(1) The failure of petitioner to have sought appellate review of the conviction, or to have raised matters alleged in the petition at the trial of the petitioner, shall not affect the availability of relief under ORS 138.510 to 138.680. But no proceeding under ORS 138.510 to 138.680 shall be pursued while direct appellate review of the conviction of the petitioner, a motion for new trial, or a motion in arrest of judgment remains available.
“(2) When the petitioner sought and obtained direct appellate review of the conviction and sentence of the petitioner, no ground for relief may be asserted by petitioner in a petition for relief under ORS 138.510 to 138.680 unless such ground was not asserted and could not reasonably have been asserted in the direct appellate review proceeding. If petitioner was not represented by counsel in the direct appellate review proceeding, due to lack of funds to retain such counsel and the failure of the court to appoint counsel for that proceeding, any ground for relief under ORS 138.510 to 138.680 which was not specifically decided by the appellate court may be asserted in the first petition for relief under ORS 138.510 to 680, unless otherwise provided in this section.
“(3) All grounds for relief claimed by petitioner in a petition pursuant to ORS 138.510 to 138.680 must be asserted in the original or amended petition, and any grounds not so asserted are deemed waived unless the court on hearing a subsequent petition finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition. However, any prior petition or amended petition which was withdrawn prior to the entry of judgment by leave of court, as provided in ORS 138.610, shall have no effect on petitioner’s right to bring a subsequent petition.”
Petitioner points out that, when he was sentenced, his earliest release date would not have been until he was in his 80s. As noted, he also states that, at the time he filed his brief, his release date from the 800-month sentence was June 3, 2051, when he would be in his early 70s.
As noted, petitioner claims in this case that trial counsel was constitutionally ineffective. That claim is irreconcilable with his assertion that his claims fall within the escape clauses of ORS 138.510 and ORS 138.550. As we explained in Lutz v. Hill,
“[T]he factual premise of petitioner’s invocation of the ‘escape clauses’ in ORS 138.510(3) and ORS 138.550(3), viz., that his present claim‘could not reasonably have been raised’ before [new Supreme Court case law], is irreconcilable with the factual premise of his claim of inadequate assistance of counsel, viz., that, as of [the time of his trial], reasonable criminal defense counsel would have anticipated [that development of the law] and raised a * * * challenge [based on that expected development of the law]. Although it may be abstractly possible, in some case, that an otherwise time-barred claim of inadequate assistance of counsel could be cognizable under the ‘escape clauses,’ this is not such a case. Bluntly, post-conviction petitioners in this petitioner’s position are statutorily ‘whipsawed.’”
(Emphasis in original.)
As in Kinkel and Cunio, in their briefs, with respect to the merits of petitioner’s “cruel and unusual punishment” challenge to his sentences, the parties make arguments regarding whether the Court’s decision in Miller applies retroactively. As we recognized in both of those cases, in Montgomery v. Louisiana,_ US_,_,
As in Cunio, petitioner’s argument that the sentence in this case is cruel and unusual under Article I, section 16, are based on Eighth Amendment arguments. He relies on Miller in support of his position and essentially argues that, because the sentences are cruel and unusual for Eighth Amendment purposes, they violate Article I, section 16, as well. “In light of petitioner’s earlier challenges to his sentence, his Article I, section 16, claim” that the sentence is cruel and unusual, which is based on his Eighth Amendment claim, “could have also been raised earlier” and does “not fall within the statutory escape clause.” Cunio,
Under ORS 138.530(1), post-conviction relief is to be granted when a petitioner establishes:
“(a) A substantial denial in the proceedings resulting in petitioner’s conviction, or in the appellate review thereof, of petitioner’s rights under the Constitution of the United States, or under the Constitution of the State of Oregon, or both, and which denial rendered the conviction void.
“(b) Lack of jurisdiction of the court to impose the judgment rendered upon petitioner’s conviction.
“(c) Sentence in excess of, or otherwise not in accordance with, the sentence authorized by law for the crime of which petitioner was convicted; or unconstitutionality of such sentence.
“(d) Unconstitutionality of the statute making criminal the acts for which petitioner was convicted.”
Under ORS 138.540(2),
“[w]hen a person restrained by virtue of a judgment upon a conviction of a crime asserts the illegality of the restraint upon grounds other than the unlawfulness of such judgment or the proceedings upon which it is based or in the appellate review thereof, relief shall not be available [under the post-conviction relief statutes] but shall be sought by habeas corpus or other remedies, if any, as otherwise provided by law.”