Hayward v. Premo
Hayward v. Premo
Opinion of the Court
Petitioner, who was convicted of aggravated murder (among other offenses) and sentenced to death, appeals from a judgment dismissing his latest petition for post-conviction relief on the ground that it was untimely and improperly successive, contrary to both ORS 138.510(3), which requires a post-conviction petition to be filed within two years of the completion of the direct appeal process, and ORS 138.550, which requires all grounds for relief to be asserted in a petitioner’s first post-conviction proceeding.
APPEALABILITY
We first address the superintendent’s argument that the judgment on review is not appealable. That argument is predicated on ORS 138.525, which provides that “a judgment dismissing a meritless petition is not appealable.” ORS 138.525(3). Under the statute, a “meritless petition” is “one that, when liberally construed, fails to state a claim upon which post-conviction relief may be granted.” ORS 138.525(2); Young v. Hill, 347 Or 165, 173-74, 218 P3d 125 (2009) (construing ORS 138.525 to mean that “no appeal lies from any judgment dismissing a petition for post-conviction relief for failure to state a claim”). The superintendent points to the fact that the post-conviction court’s order of dismissal states that the petition is meritless and argues that we must accept that statement and dismiss the appeal.
We reject the superintendent’s argument. First, although the post-conviction court’s order of dismissal characterized the petition as meritless, the court’s judgment of dismissal did not. Thus, on its face, the judgment is not “a judgment dismissing a meritless petition.” ORS 138.525. And, to the extent the face of the judgment is not dispositive on that point, a review of the record confirms that the trial court did not dismiss the petition as “meritless” as that term is defined in ORS 138.525. The Supreme Court has distinguished between the dismissal of a petition as time-barred and successive and the dismissal of a petition for failure to state a claim, Delzell v. Coursey, 354 Or 597, 318 P3d 749
Here, the post-conviction court’s order reveals that it dismissed the petition because it concluded that all grounds for relief were untimely and successive. Under Delzell and Breece, that is not a dismissal for failure to state a claim. Although the court also concluded that the allegations in the fourth ground for relief did not state a claim, that determination was not the basis for its dismissal of the petition as whole; it was simply an alternative ground for dismissing a single alleged ground for relief.
DISMISSAL
The next question is whether the post-conviction court properly dismissed the petition. Because, as petitioner acknowledges, the petition was untimely and successive on its face, to withstand a motion to dismiss, petitioner was required to allege facts that, if proven, would show that he was entitled to avail himself of the escape clauses of ORS 138.510(3) and ORS 138.550(3). As we have explained, “[a]n untimely petition must allege facts that, if supported by evidence, would establish that the grounds for relief could not reasonably have been raised timely.” Morrow v. Maass, 109 Or App 694, 695, 820 P2d 1374 (1991), rev den, 312 Or 676 (1992). The same is true for a successive petition. That
Here, as to the first three alleged grounds for relief, although petitioner’s arguments in his brief posit some reasons why defendant could not have raised them in a timely first petition, the operative petition alleges no specific facts that would permit a finding that the grounds for relief could not reasonably have been raised in a timely manner in petitioner’s previously filed petition. Instead, the petition alleges the broad legal conclusion that “this successive petition is proper because grounds are asserted which could not reasonably have been raised in the initial petition,” without providing any factual specifics as to why that is the case. For that reason, the post-conviction court correctly concluded that the first three alleged grounds for relief were subject to dismissal as untimely and successive. See Morrow, 109 Or App at 695 (affirming dismissal of post-conviction petition
As to the fourth ground for relief, dismissal also was proper, albeit for different reasons. The fourth ground for relief alleges that defendant was denied the effective assistance of post-conviction counsel, a claim that defendant contends is supported by Martinez v. Ryan, 566 US 1, 132 S Ct 309, 182 L Ed 2d 272 (2012). It is unclear to us whether defendant is alleging that any ineffective assistance of post-conviction counsel supplies a basis for relief from his conviction, or if, instead, defendant is contending that his post-conviction counsel’s alleged ineffectiveness provides a basis for him to invoke the escape clauses of ORS 138.510(3) and ORS 138.550(3).
If the former, the allegations in that ground for relief are sufficient to establish that it could not reasonably have been raised in a timely or original petition; such a claim would not accrue until the completion of petitioner’s post-conviction proceedings. Nonetheless, the claim is foreclosed by our decision in Cunningham v. Premo, 278 Or App 106, 123-24, 373 P3d 1167 (2016), and, thus, the post-conviction court properly dismissed it. In Cunningham, we held that “the adequacy of post-conviction counsel cannot be challenged in a later post-conviction proceeding.” Id. at 124 (citation omitted).
If, instead, petitioner intends the allegations in the fourth ground for relief to supply a basis for invoking the escape clause as to the first three grounds for relief, Cunningham forecloses that pathway as well. There, we also held that we “decline to extend the Supreme Court’s rationale in Martinez to post-conviction claims that are barred as successive, and conclude that [a] petitioner may not avail himself of the escape clause based on his claim that former post-conviction counsel was inadequate.” Id. at 124-25. Although Cunningham involved the escape clause under ORS 138.550(3) only, its holding applies with equal force to the escape clause of ORS 138.510(3).
Affirmed.
The petition, alleges four grounds for relief: (1) that petitioner’s trial lawyers were not qualified under Oregon state law standards for appointment of counsel in capital cases; (2) that petitioner’s trial lawyers were inadequate in a number of respects; (3) that the investigation conducted by the defense team did not satisfy constitutional standards; and (4) that petitioner’s lawyer in his first post-conviction case was inadequate and ineffective. In addition to concluding that the petition was time-barred and successive, the post-conviction court also concluded that the fourth alleged ground for relief did not state a claim, and that the first alleged ground for relief was barred by Palmer v. State of Oregon, 318 Or 352, 867 P2d 1368 (1994).
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 on hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the original or amended petition:
“(a) If no appeal is taken, the date the judgment or order on the conviction was entered in the register.
“(b) If an appeal is taken, the date the appeal is final in the Oregon appellate courts.
“(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(3) provides:
“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 the court, as provided in ORS 138.610, shall have no effect on petitioner’s right to bring a subsequent petition.”
By contrast, under Breece, if the post-conviction court had determined that each alleged ground for relief was (1) untimely or successive and (2) failed to state a claim, then ORS 138.525 would bar this appeal. 279 Or App at 649.
Reference
- Full Case Name
- MICHAEL JAMES HAYWARD v. Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant-Respondent
- Cited By
- 6 cases
- Status
- Published