Tracy v. Nooth
Tracy v. Nooth
Opinion of the Court
Petitioner seeks reconsideration of our opinion in Tracy v. Nooth, 252 Or App 163, 285 P3d 745 (2012), in which we concluded that the post-conviction court erred in denying petitioner’s request for subpoenas in support of his post-conviction case and remanded for further proceedings. We limited the scope of remand to petitioner’s claims related to the subpoenas. Petitioner argues that the scope of remand is too narrow, and he “seeks reconsideration, to ask for leave to raise whatever claims below are permitted by ordinary post-conviction procedure, including amending the petition to raise claims that are presented by newly-discovered evidence.”
We disagree with petitioner’s understanding of the scope of remand and, therefore, allow reconsideration to clarify our disposition. Our “tagline,” which states the appellate disposition, read:
“Reversed and remanded for further proceedings on petitioner’s claims regarding investigation of Byrnes’s employment records, investigation of records from Corey’s Bar & Grill, investigation of records of Cascade Lodge on the night of the crime, investigation of potential witnesses who were staying at Cascade Lodge, and investigation of petitioner’s cell phone records; otherwise affirmed.”
To clarify, we (1) affirmed the claims that are not related to the subpoenas, and (2) did not preclude petitioner from seeking leave to amend his petition.
First, the claims that are not related to the subpoenas have been litigated and may not be raised on remand. As a general proposition, an appellant bears the burden of showing how a trial court’s error affected the judgment. Here, we determined that the error affected the judgment as to the claims that we remanded. Petitioner did not show that the error affected the judgment as to any of the other claims. On reconsideration, he does not appear to assert that he should be able to raise those claims on remand, nor does he offer any explanation specific to any of the individual claims regarding why he should be able to raise them on remand. As to those claims, the post-conviction court’s judgment is binding.
We remanded the claims related to the requested subpoenas to the post-conviction court in light of the fact that it denied them on erroneous grounds.
Reconsideration allowed; former opinion clarified and adhered to as clarified.
We did not reach the question whether there were other grounds upon which the post-conviction court could deny the subpoenas.
Reference
- Full Case Name
- ERNEST ALAN TRACY v. Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant-Respondent
- Cited By
- 5 cases
- Status
- Published