Eklof v. Steward , 360 Or. 717 ( 2016 )

No. 80 December 22, 2016 717
IN THE SUPREME COURT OF THE
STATE OF OREGON
KARLYN EKLOF,
Petitioner on Review,
v.
Heidi STEWARD,
Superintendent,
Coffee Creek Correctional Facility,
Respondent on Review.
(CC C120242CV; CA A154212; SC S063870)
En Banc
On review from the Court of Appeals.*
Argued and submitted September 23, 2016.
Jason Weber, O’Connor Weber LLC, Portland, argued the
cause and filed the brief for petitioner on review.
Timothy A. Sylwester, Assistant Attorney General,
Salem, argued the cause and filed the brief for respondent on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
Janis C. Puracal, Oregon Innocence Project, Portland,
Mathew W. dos Santos, American Civil Liberties Union
Foundation of Oregon, Portland, and Rankin Johnson IV,
Oregon Criminal Defense Lawyers Association, Portland,
filed the brief for those amici curiae. Also on the brief were
Steven T. Wax, Alice B. Kaplan, and Erik Blumenthal.
BREWER, J.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to that court for further proceedings.
______________
*  Appeal from Washington County Circuit Court, Thomas W. Kohl, Judge.
273 Or App 789 (2015).
718 Eklof v. Steward
Case Summary: Petitioner, who was convicted of aggravated murder, filed
a successive petition for post-conviction relief, alleging that the prosecution
withheld exculpatory materials in violation of Brady v. Maryland, 373 US 83,
83 S Ct 1194, 10 L Ed 2d 215 (1963). The state moved for summary judgment,
arguing that petitioner had not sufficiently pleaded that her claim fell within
the escape clauses of ORS 138.510 and ORS 138.550, which require petitions for
post-conviction relief to be filed within specified timelines unless the grounds for
relief could not reasonably have been raised earlier. Held: The trial court erred
in granting the state’s motion for summary judgment. Petitioner alleged that the
Brady materials were not known to any counsel representing her until 2012. The
state’s motion challenged only petitioner’s allegations, arguing that it would have
been possible for petitioner to have discovered the Brady materials earlier. The
existence of numerous factual issues concerning whether petitioner reasonably
could have discovered the materials earlier precluded summary judgment.
The decision of the Court of Appeals is reversed. The judgment of the circuit
court is reversed, and the case is remanded to that court for further proceedings.
Cite as 360 Or 717 (2016) 719
BREWER, J.
Under Brady v. Maryland, 373 US 83, 87, 83 S Ct
1194, 10 L Ed 2d 215 (1963), a prosecutor’s withholding of
favorable evidence from a criminal defendant “violates due
process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution.” Petitioner in this successive action for post-
conviction relief—who is serving a sentence of life impris-
onment without the possibility of parole for aggravated
murder—seeks review of a Court of Appeals decision that
upheld summary judgment for the state on the ground that
petitioner’s Brady violation claim was barred as a matter
of law under ORS 138.510(3) and ORS 138.550(3).1 Eklof
v. Steward, 273 Or App 789, 359 P3d 570 (2015). Petitioner
asserts that she is entitled to pursue her Brady violation
claim despite the bars against untimely and successive peti-
tions set out in those statutes, and that the trial court erred
in concluding that her petition was barred as a matter of
law.2 As explained below, we conclude that the trial court
erred in granting the state’s motion for summary judgment
on petitioner’s Brady violation claim. Accordingly, we reverse
and remand.
1
ORS 138.510(3) provides, in part:
“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 convic-
tion was entered in the register.
“(b) If an appeal is taken, the date the appeal is final in the Oregon
appellate courts.”
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.”
2
Petitioner also argues that the trial court erred in granting summary judg-
ment as to an inadequate assistance of counsel claim concerning a jury instruc-
tion; we reject that argument without discussion.
720 Eklof v. Steward
I.  FACTS AND PROCEDURAL HISTORY
Petitioner was convicted of aggravated murder
in 1995, based on the theory that she and an accomplice,
Jeffrey Tiner, murdered James Salmu. See generally State
v. Tiner, 340 Or 551, 135 P3d 305 (2006), cert den, 549 US
1169 (2007) (describing evidence underlying Tiner’s aggra-
vated murder conviction). The Court of Appeals affirmed
petitioner’s conviction without opinion. State v. Eklof, 154 Or
App 448, 960 P2d 397 (1998), rev den, 328 Or 331 (1999). In
1999, shortly after her conviction became final, petitioner
filed her first action for post-conviction relief; her petition
in that case, which did not assert a Brady violation claim,
ultimately was dismissed.
In 2012, petitioner again sought post-conviction
relief in the present action. In her second amended petition,
which is at issue here, petitioner alleged, in pertinent part:
“John Distabile and David Tiner were key witnesses
against Petitioner in case no. 109404750 (Lane County) [in
which petitioner was convicted of aggravated murder].
“* * * * *
“On March 1, 201[2], attorney Andy Simrin (Attorney
for Petitioner’s co-defendant Jeffrey Tiner) mailed to coun-
sel for this Petitioner a computer ‘thumb drive’ contain-
ing copies of four exhibits from the post-conviction case of
Jeffrey Tiner, who had also been convicted of murdering
James Salmu. Those exhibits included the prosecution file
for the case against this Petitioner, the prosecution file
for the case against Jeffrey Tiner, California Department
of Justice records relating to David Tiner’s criminal his-
tory (David Tiner is the brother of co-defendant Jeffrey
Tiner) and NCIC records relating to David Tiner’s criminal
history.
“Among the materials in the prosecution file for the
case against Jeffrey Tiner was a set of police reports that
would have been valuable in impeaching John Distabile if
they had been disclosed to Petitioner’s attorneys in case no.
109404750 (Lane County).
“The Distabile impeachment materials described in the
preceding paragraph were never disclosed to any attorney
working on behalf of Petitioner until Mr. Simrin caused
Cite as 360 Or 717 (2016) 721
them to be delivered to Petitioner’s attorney in this post-
conviction proceeding.
“David Tiner’s criminal history was never disclosed
to any attorney working on behalf of Petitioner until
Mr. Simrin caused them to be delivered to Petitioner’s
attorney in this post-conviction proceeding.
“David Tiner’s criminal history would have had
impeachment value if it had been disclosed to Petitioner’s
attorneys in case no. 109404750.”
Based on those allegations, petitioner claimed that
there had been a substantial denial of her due process rights
under the Fourteenth Amendment to the United States
Constitution. Petitioner further alleged that she previously
had sought post-conviction relief in the 1999 action, that
relief had been denied in that action, and that the Brady
violation claim in this action could not reasonably have been
raised in the 1999 action.
In support of her Brady violation claim in this
case, petitioner submitted the trial transcript and other
materials related to her underlying criminal case, as well
as police reports concerning John Distabile and records
of David Tiner’s criminal history that, she asserted, had
been withheld by the prosecution in her criminal case.
The police reports indicated that, when Distabile initially
was interviewed about the murder, he gave a somewhat
different account from his testimony at petitioner’s crimi-
nal trial; thus, the earlier account could have been offered
to impeach Distabile’s trial testimony. In addition, the
materials related to David Tiner’s criminal history could
have been offered at petitioner’s criminal trial to impeach
Tiner’s testimony. See generally Strickler v. Greene, 527 US
263, 281-82, 119 S Ct 1936, 144 L Ed 2d 286 (1999) (hold-
ing that Brady applies not only to exculpatory information
withheld from defendant, but also to favorable impeach-
ment information).
The state filed an answer to the petition in which
it alleged as “affirmative defenses” that this action was
barred under the two-year limitations period prescribed by
ORS 138.510(3)(b), and was barred as a successive petition
722 Eklof v. Steward
by ORS 138.550(3).3 The state then sought summary judg-
ment, asserting, as pertinent here, that petitioner’s Brady
violation claim was barred: (1) under ORS 138.510(3)(b), on
the ground that she reasonably could have raised that claim
within two years after the criminal judgment was final; and
(2) under ORS 138.550(3), on the ground that she could have
raised the claim in her original post-conviction action. The
state explained that there were no genuine issues of mate-
rial fact and that it was entitled to judgment as a matter of
law, because
“petitioner has not alleged any ultimate facts demonstrat-
ing that she was reasonably unable, when she first sought
post-conviction relief, to discover that impeachment mate-
rial was allegedly withheld by a prosecutor or not made
available to petitioner’s underlying defense counsel in
1995.”
In her response to the motion, petitioner reiter-
ated that the state had withheld materials from her crim-
inal trial counsel that would have been useful in impeach-
ing Distabile and David Tiner. Petitioner pointed out that
she and Jeffrey Tiner had been tried separately and that
different prosecutors had handled their respective cases.4
Petitioner submitted evidence that her criminal trial coun-
sel had not been provided with the Brady materials, and that
information about David Tiner’s criminal history would not
have been reasonably available to her post-conviction coun-
sel from other sources in the 1999 action. Petitioner there-
fore asserted that she could not reasonably have obtained
3
Although the state labeled those defenses as affirmative defenses, and, gen-
erally speaking, statute of limitations defenses are affirmative defenses on which
a defendant bears the burden of persuasion, see T.R. v. Boy Scouts of America, 344
Or 282, 299, 181 P3d 758 (2008) (so noting), the parties and the trial court prop-
erly treated the question of whether petitioner’s claim was barred under either of
those statutes as a matter on which she would ultimately bear that burden. See
generally Verduzco v. State, 357 Or 553, 565, 355 P3d 902 (2015) (ORS 138.550
“places the burden on the petitioner to show that an omitted ground for relief
comes within the escape clause”).
4
Petitioner has asked this court to take judicial notice of the case registers in
her underlying criminal case, as well as in Jeffrey Tiner’s case, and the state has
not objected. See OEC 201(b)(2) (court may take judicial notice of sources whose
accuracy cannot reasonably be questioned). We therefore take judicial notice of
the fact that petitioner and Jeffrey Tiner were tried separately, and indeed, that
Jeffrey Tiner was not tried until 2000, after petitioner’s conviction became final.
Cite as 360 Or 717 (2016) 723
the Brady materials before Jeffrey Tiner’s counsel informed
her of their existence in 2012.
In a reply memorandum, the state again urged that
“petitioner has not pleaded any ultimate facts showing why
she was supposedly unable, until 2012, to discover what
was in the prosecutor’s Tiner file. Even more importantly,
petitioner has not submitted any evidence proving that she
was unable, until 2012, to discover what was in the prose-
cutor’s file.”
The state asserted that petitioner had had “ample oppor-
tunity” to seek the Tiner file, and that it was “self-evident”
that it would have been possible for petitioner’s first post-
conviction counsel to have subpoenaed the prosecutor’s
Tiner file and reviewed it for information that might have
been helpful to petitioner’s first post-conviction action. The
state argued that petitioner had not shown that her counsel
in the first post-conviction action could not have discovered
the materials and asserted a timely Brady claim.
The trial court granted the state’s motion for sum-
mary judgment without elaboration and entered a general
judgment for the state, in which it concluded that there were
no genuine issues of material fact and that the state was
entitled to judgment as a matter of law.
On appeal, petitioner argued that the trial court
had erred in granting the state’s motion for summary judg-
ment, asserting that the Brady materials at issue were not
reasonably available to petitioner until they were provided
to her in 2012. In response, the state pointed out that, in its
answer to the petition, it had not admitted that the Brady
materials had not been provided to petitioner prior to 2012.
However, the state further stated that it had assumed, for
purposes of summary judgment, that “those records were
not properly disclosed to her and that she suffered prejudice,
as she had alleged.”
As it had before the trial court, the state urged
that, under the identically-worded escape clauses in ORS
138.510(3)(b) (setting limitation period as two years after
criminal judgment becomes final) and ORS 138.550(3) (bar-
ring claims that were not asserted in the original or amended
724 Eklof v. Steward
petition for post-conviction relief), petitioner had not shown
that her claim could not reasonably have been raised in her
first post-conviction action. The state noted, in particular,
that petitioner had not presented evidence that the District
Attorney’s office had actively concealed the file, and the
state opined that, if counsel had used “reasonable diligence,”
the Brady materials could have been discovered. Again, con-
sistently with its argument before the trial court, the state
asserted that the escape clauses under ORS 138.510(3)(b)
and ORS 138.550(3) were not available “where the informa-
tion always existed and was readily available to [petitioner]
but her counsel just did not think to inquire about it.”
The Court of Appeals affirmed the grant of sum-
mary judgment on petitioner’s Brady claim, but on a differ-
ent ground than the state had asserted in its motion before
the trial court. The Court of Appeals observed that, under
Verduzco, petitioner bore the burden of proving that her
claim fell within a statutory escape clause. See 360 Or at
722 n 3, above. It therefore opined:
“Consequently, to withstand the state’s motion for sum-
mary judgment petitioner had the burden of coming for-
ward with admissible evidence that would permit a reason-
able factfinder to find that the escape clause applied to the
Brady claim. * * * * *
“Petitioner did not meet that burden here. The sum-
mary judgment record contains a significant evidentiary
gap: Petitioner submitted no evidence regarding what was
known to petitioner and her post-conviction lawyer at the
time of the 1999 post-conviction proceeding.5 Petitioner
did not submit an affidavit from her 1999 post-conviction
lawyer, or any other evidence about what facts that law-
yer knew during the 1999 post-conviction case. Petitioner
also did not submit her own affidavit, or any other evi-
dence about what she herself knew during the 1999 post-
conviction proceeding.
“__________
“5  We note that the petition adequately pleaded that the
Brady ground for relief falls within the escape clause; it
alleged that the facts underlying petitioner’s claim were not
disclosed to any lawyer representing petitioner until 2012.
However, once the state tested those pleadings by moving
Cite as 360 Or 717 (2016) 725
for summary judgment, petitioner was required to come
forward with evidence that would permit a reasonable fact-
finder to find that petitioner had proved those allegations.”
273 Or App at 794, 794 n 5.
The Court of Appeals did not address the parties’
arguments before the trial court and on appeal concerning
whether the Brady claim reasonably could have been raised
in the original petition. The court explained:
“In the light of our conclusion that the summary judg-
ment record would not permit a reasonable factfinder to
find that petitioner and her post-conviction lawyer did not
know the facts on which her Brady claim depends, we do not
address the parties’ competing arguments as to whether
and what extent a post-conviction petitioner who does not
discover the facts underlying a Brady claim until after a
first post-conviction proceeding must demonstrate that she
affirmatively investigated whether the prosecution might
have violated its Brady obligations in order to demonstrate
that the Brady claim could not reasonably have been raised
in the original petition, or their competing arguments as to
whether due process would permit a state to impose that
type of investigatory obligation on a petitioner.”
Id. at 795 n 7. Petitioner sought review in this court, which
we allowed.
II.  POST-CONVICTION RELIEF
AND BRADY CLAIMS
Under the Post-Conviction Hearing Act, a peti-
tioner who has been convicted of a crime may obtain collat-
eral relief if the petitioner establishes “[a] substantial denial
in the proceedings resulting in petitioner’s conviction * * *
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.” ORS 138.530(1)(a). However,
“[w]hen a criminal defendant fails to raise an issue at trial
that the defendant reasonably could have been expected to
raise, the defendant cannot obtain post-conviction relief on
that ground unless the defendant alleges and proves that
the failure to raise the issue was due to one (or more) of a
few narrowly drawn exceptions.” Palmer v. State, 318 Or 352,
358, 867 P2d 1368 (1994). One such exception is triggered
726 Eklof v. Steward
where a claim was not raised in the petitioner’s underlying
criminal prosecution due to inadequate assistance of coun-
sel. Id. Other exceptions include “where the right subse-
quently sought to be asserted was not generally recognized
to be in existence at the time of trial,” and “where counsel
was excusably unaware of facts that would have disclosed a
basis for the assertion of the right.” Id. at 357 (quoting North
v. Cupp, 254 Or 451, 456-57, 461 P2d 271 (1969)).
The gravamen of a Brady violation claim that is first
raised in a post-conviction action is a species of the third
category mentioned above: that trial counsel was excusably
unaware of evidence favorable to the defense because the
state had breached its obligation to disclose such evidence
to the defense. See, e.g., State v. McDonnell, 313 Or 478, 500,
837 P2d 941 (1992) (“if the state has knowledge of evidence
favorable to the defense or exculpatory in nature, the state
is under an affirmative due process obligation to make it
available to the defense”). When Brady materials are not
discovered until more than two years after a criminal defen-
dant’s conviction has become final, or until after the criminal
defendant has already litigated an action for post-conviction
relief, then ORS 138.510(3) and ORS 138.550(3) come into
play.
As noted, 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.”
Cite as 360 Or 717 (2016) 727
(Emphasis added.) And, as further noted, ORS 138.550(3)
provides:
“All grounds for relief claimed by petitioner in a peti-
tion 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 hear-
ing 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.”
(Emphasis added.)
This court has held that a petitioner who files a late
or successive petition for post-conviction relief that is sub-
ject to ORS 138.510(3) or ORS 138.550(3),5 must allege and
ultimately demonstrate that the grounds for relief asserted
in the petition could not reasonably have been raised in a
timely initial action. See Verduzco, 357 Or 553, 561, 355 P3d
902 (2015) (“if petitioner could not reasonably have raised
the grounds for relief alleged in his second petition either
in a timely fashion or in the first petition, then those state
procedural bars do not prevent petitioner from pursuing the
grounds for relief alleged in his second post-conviction peti-
tion”). Moreover, this court has interpreted ORS 138.550(3)
as “plac[ing] the burden on the petitioner to show that an
omitted ground for relief comes within the escape clause.”
Id. at 565 (citing Cain v. Gladden, 247 Or 462, 464, 430 P2d
1015 (1967)). Cain, in turn, upheld the dismissal of a petition
for post-conviction relief on the ground that the petitioner
had “failed to allege in his petition facts to demonstrate
that the * * * grounds for relief could not reasonably have
been asserted in the direct appellate review.” 247 Or at 464(emphasis added).6
5
As a practical matter, successive post-conviction actions often are barred
both under ORS 138.510(3) and ORS 138.550(3).
6
Our interpretation of the escape clause in ORS 138.550 drew from the same
line of cases that this court relied on in Palmer.
728 Eklof v. Steward
To summarize the governing principles: If a post-
conviction petitioner alleges that, during the course of her
criminal prosecution, the state had knowledge of evidence
favorable to the defense or exculpatory in nature, but failed
to disclose that evidence in violation of the Brady rule, the
petitioner must plead, and ultimately prove, that her crim-
inal trial counsel “ ‘was excusably unaware of facts that
would have disclosed a basis for the assertion of the right’ ”
on direct appeal. Palmer, 318 Or at 357 (quoting North 254
Or at 456-57). Stated differently, a Brady violation claim,
like most other post-conviction claims, must have been
raised in the direct criminal proceeding unless counsel was
excusably unaware of it. See, e.g., State v. Longo, 341 Or 580,
599-600, 148 P3d 892 (2006), cert den, 552 US 835 (2007)
(analyzing Brady claim in context of direct criminal appeal).
That is so regardless of whether a post-conviction action is
timely, untimely under ORS 138.510(3), or successive under
ORS 138.550(3). If a post-conviction petition is untimely or
successive, however, the petitioner must further plead and
prove not only that her criminal trial counsel was excusably
unaware of the basis for the Brady claim, but also that the
claim could not reasonably have been raised either within
the two-year period set out in ORS 138.510 or in the original
action for post-conviction relief.
With that framework in mind, we turn to the ques-
tion whether the state was entitled to summary judgment
on petitioner’s Brady violation claim in this case. Initially,
we note that the parties have focused in part on whether
petitioner’s first post-conviction counsel reasonably could
have discovered David Tiner’s prior convictions by searching
for records in other jurisdictions. That focus is misplaced.
As discussed, the gravamen of a Brady claim is that excul-
patory evidence was withheld by the prosecution. The fact
that exculpatory evidence comes to light after a conviction
becomes final does not, in and of itself, give rise to any post-
conviction claim, much less a Brady claim. It might form
the basis for a Brady claim if the evidence was known to
the prosecution; it also might form the basis for a claim of
inadequate assistance of trial counsel if counsel reason-
ably should have discovered it. But the question here is not
whether counsel reasonably should have discovered David
Cite as 360 Or 717 (2016) 729
Tiner’s prior convictions as of 1999, but whether counsel
reasonably should have discovered that the prosecutor had
withheld information pertaining to those convictions as well
as the police reports concerning Distabile.
With that preface in mind, we turn to the parties’
primary dispute, which concerns whether the trial court
and the Court of Appeals properly applied the summary
judgment standards in ORCP 47 C.
III.  SUMMARY JUDGMENT STANDARDS
ORCP 47 C provides:
“The court shall grant the motion if the pleadings, depo-
sitions, affidavits, declarations and admissions on file show
that there is no genuine issue as to any material fact and
that the moving party is entitled to prevail as a matter of
law. No genuine issue as to a material fact exists if, based
upon the record before the court viewed in a manner most
favorable to the adverse party, no objectively reasonable
juror could return a verdict for the adverse party on the
matter that is the subject of the motion for summary judg-
ment. The adverse party has the burden of producing evi-
dence on any issue raised in the motion as to which the
adverse party would have the burden of persuasion at trial.
The adverse party may satisfy the burden of producing evi-
dence with an affidavit or a declaration under section E of
this rule.”
When a party seeks summary judgment, a court must view
the pleadings, as well as any “depositions, affidavits, dec-
larations and admissions” that the parties have submitted
in support of or in opposition to the summary judgment
motion, in the light most favorable to the non-moving party.
ORCP 47 C.
In Two Two v. Fujitec America, Inc., 355 Or 319,
324, 325 P3d 707 (2014), this court observed that, under
ORCP 47 C, “the party opposing summary judgment has
the burden of producing evidence on any issue ‘raised in the
motion’ as to which [that party] would have the burden of
persuasion at trial.” (Emphasis added.) Because it plays a
prominent role in our analysis, we describe the facts and
holding in that case in some detail.
730 Eklof v. Steward
In Two Two, the plaintiffs had asserted negligence
and strict liability claims concerning a faulty elevator, and
the defendant sought summary judgment on both claims.
Id. at 321. At issue was whether the trial court, and sub-
sequently the Court of Appeals, had correctly disposed of
the negligence claim on the ground that an expert affidavit
submitted in opposition to the summary judgment motion
(although addressing whether the defendant had been neg-
ligent in the manner alleged) had failed to demonstrate that
there was a genuine issue of material fact as to causation.
Id. at 323-24. This court noted that, in its motion, the defen-
dant had raised issues of fact concerning whether it had
properly modernized, inspected, and maintained the eleva-
tor, whether it was in control of the elevator at the time of the
incident giving rise to the claim, and whether the doctrine
of res ipsa loquitur was applicable. Id. at 324. The defendant
did not, however, “raise in the motion” the issue whether its
alleged negligence had been the cause of the plaintiffs’ inju-
ries. Id. at 325. Rather, it “first raised the issue of causation
as a basis for summary judgment in its reply memorandum.”
Id.
In reversing judgment for the defendant, this court
stated:
“Parties seeking summary judgment must raise by motion
the issues on which they contend they are entitled to pre-
vail as a matter of law. Parties opposing summary judg-
ment have the burden of producing evidence that creates a
material issue of fact as to those issues, but only as to those
issues.”
Id. at 326 (emphasis added).
As explained below, in light of the foregoing author-
ities, we conclude that both the trial court and the Court
of Appeals erred in applying the summary judgment stan-
dards in this case, albeit in different ways. We first examine
the trial court’s rationale for granting summary judgment
in favor of the state.
A.  The Trial Court’s Summary Judgment Ruling
The issue that was raised in the state’s summary
judgment motion and decided by the trial court is whether
Cite as 360 Or 717 (2016) 731
petitioner sufficiently “alleged” that she could not reason-
ably have raised her Brady claim during her first post-
conviction action. We reiterate that point with emphasis:
The state’s summary judgment motion only challenged the
sufficiency of petitioner’s pleadings as to whether her claim
fell within the escape clauses of ORS 138.510(3)(b) and ORS
138.550(3). In its motion, the state did not challenge peti-
tioner’s ability to prove what she had pleaded; instead, it
merely challenged the sufficiency of petitioner’s pleading.
It is true that, in its reply to petitioner’s response to the
motion, the state asserted that “it would have been possible
for petitioner’s first post-conviction counsel to have subpoe-
naed the prosecutor’s Tiner file and reviewed it,” and argued
that “petitioner has not submitted any evidence that she
was unable, until 2012, to discover what was in the prosecu-
tor’s file.” However, that issue was not “raised in the motion”
for summary judgment. See Two Two, 355 Or at 325 (issue
raised in movant’s reply memorandum was not “raised in
the motion” for summary judgment). Thus, the only issue
properly before the trial court on summary judgment was
whether petitioner had sufficiently pleaded that her Brady
claim fell within a statutory escape clause.
The allegations that petitioner pleaded in support
of her Brady violation claim were straightforward, and can
be summarized as follows: (1) The District Attorney’s office
had knowledge or possession of evidence that petitioner
could have used in her criminal trial to impeach two of the
state’s witnesses against her; (2) the District Attorney’s
office failed to provide that evidence to petitioner’s crimi-
nal trial counsel in violation of her due process rights;
(3) petitioner’s counsel were unaware of the evidence until it
was disclosed to petitioner’s counsel in 2012 by an attorney
who represented a different petitioner, in a different, albeit
factually related, post-conviction action; and (4) petitioner
could not reasonably have raised her Brady violation claim
in her first post-conviction action.
As described above, the state’s summary judg-
ment motion rested on two premises: (1) the factual asser-
tion that “it would have been possible for petitioner’s first
post-conviction counsel to have subpoenaed the prosecutor’s
732 Eklof v. Steward
Jeffrey Tiner file and reviewed it for information that might
have been helpful to petitioner’s first post-conviction pro-
ceeding”; and (2) the legal proposition that the failure of peti-
tioner’s first post-conviction counsel to request and examine
the Jeffrey Tiner file precluded petitioner from asserting in
a subsequent action that the Brady claim “could not reason-
ably have been raised in the original or amended petition.”
Even though its summary judgment motion was
based solely on the ground that petitioner’s pleadings were
insufficient to bring her Brady violation claim within the
escape clauses of ORS 138.510(3)(b) and ORS 138.550(3),
the state’s first premise rested on the factual assertion that,
if petitioner’s counsel had sought to examine the District
Attorney’s file in the Jeffrey Tiner case in her first post-
conviction action, counsel would have been able to do so
and would have discovered the Brady materials that had
been withheld from petitioner during her criminal case. But
there is no basis in the record for that assertion. Although
it is possible, as a factual matter, that the Brady materials
were located in the Jeffrey Tiner file in 1999 and that, upon
request, the District Attorney’s office would have disclosed
them to petitioner’s post-conviction counsel, the state did not
raise those issues as factual matters for resolution on sum-
mary judgment. Rather, the state’s motion (which focused
exclusively on petitioner’s allegations) called for the court to
presume that in 1999, the Brady materials were in the same
location where there were later discovered in 2012, and that
the District Attorney’s office that had failed to disclose them
in 1995 would have disclosed them in 1999 if petitioner’s
counsel specifically had sought to review materials from
the Jeffrey Tiner file. Given the limited basis of the state’s
challenge, it was inappropriate for the court to make that
presumption.
That leads us to the second point. The state’s
remaining premise—that, as a matter of law, the failure of
petitioner’s first post-conviction counsel to seek access to the
Jeffrey Tiner file precluded petitioner from asserting in this
action that the Brady claim could not reasonably have been
raised in the first action—also did not provide an appropri-
ate ground for summary judgment on the record before us.
Cite as 360 Or 717 (2016) 733
In some post-conviction cases, where the question is
whether a claim reasonably could have been raised in a prior
action, the issue will be a legal one, capable of resolution on
summary judgment. For example, a common issue in succes-
sive post-conviction actions is whether counsel in an earlier
post-conviction action reasonably could have been expected
to raise a claim that later appellate case law demonstrated
would have been viable. See, e.g., Verduzco, 357 Or at 571
(addressing whether ineffective assistance of counsel claim
could have been raised in earlier post-conviction proceed-
ing, based on counsel’s alleged failure to provide sufficient
information about immigration consequences of guilty
plea).7 Whether such a claim “reasonably could have been
raised earlier will vary with the facts and circumstances of
each claim.” Id. But, because such a question generally will
involve an assessment of the state of the law at a given point
in time, it may lend itself to resolution by summary judg-
ment because there may well be “no genuine issue as to any
material fact and * * * the moving party is entitled to prevail
as a matter of law.” ORCP 47 C.
The same is not necessarily true of a Brady viola-
tion claim. As discussed, the gravamen of such a claim is
that the state had an obligation to disclose, but did not dis-
close, evidence that was material either to guilt or to pun-
ishment in a petitioner’s criminal case. Whether a petitioner
reasonably could have been expected to raise a Brady viola-
tion claim in a timely initial post-conviction action often will
depend on who knew what, and when. That is, the resolution
of such an issue can depend on “the facts and circumstances
of each claim.” Verduzco, 357 Or at 571. But, where, as here,
petitioner alleged that no counsel who represented her knew
7
On that issue, this court held:
“The touchstone is not whether a particular question is settled, but
whether it reasonably is to be anticipated so that it can be raised and settled
accordingly. The more settled and familiar a constitutional or other principle
on which a claim is based, the more likely the claim reasonably should have
been anticipated and raised. Conversely, if the constitutional principle is a
new one, or if its extension to a particular statute, circumstance, or setting is
novel, unprecedented, or surprising, then the more likely the conclusion that
the claim reasonably could not have been raised.”
Id. at 571 (quoting Long v. Armenakis, 166 Or App 94, 101, 999 P2d 461, rev den,
330 Or 361 (2000)).
734 Eklof v. Steward
of the Brady materials until 2012, and nothing in the record
indicates that she or her counsel had information that might
have revealed the existence of the materials before then,
the trial court had no basis on which to decide, as a matter
of law, that counsel reasonably should have known of the
claim.
In this case, there is much that is not known (and
that cannot be presumed as a matter of law) about the
nature of the alleged Brady violation that could be perti-
nent to the issue whether petitioner’s first post-conviction
counsel reasonably should have discovered the basis for the
claim. Among those factual questions are: Where were the
allegedly exculpatory materials located when petitioner’s
first post-conviction case was pending? Were those materi-
als made available to Jeffrey Tiner’s criminal defense team
in 1999, or were they made public in the course of Jeffrey
Tiner’s trial in 2000? Did petitioner’s first post-conviction
counsel have any information that would have revealed
that the state had the evidence at issue during petitioner’s
criminal prosecution? The answers to those questions—and
others—could have a bearing on whether petitioner’s Brady
violation claim could “reasonably have been raised in the
original or amended petition.” However, again, the state’s
motion did not put those factual matters at issue, and the
trial court therefore had no basis to conclude as a matter
of law that petitioner’s counsel in the first post-conviction
action reasonably could have asserted a Brady violation
claim. It follows that the trial court erred in determining
that there existed no genuine issue of material fact, and
that the state was entitled to judgment as a matter of law.
The Court of Appeals nevertheless affirmed the
trial court’s summary judgment ruling, albeit on a differ-
ent ground. Accordingly, we turn to that court’s rationale for
affirmance.
B.  The Court of Appeals’ Rationale
The Court of Appeals, relying on Verduzco for the
proposition that petitioner bore the burden of establishing
that her Brady violation claim fell within a statutory escape
clause, concluded that, “to withstand the state’s summary
Cite as 360 Or 717 (2016) 735
judgment motion,” petitioner was required, but failed to,
“come forward with admissible evidence that would permit
a reasonable factfinder to find that the escape clause applied
to the Brady claim.” 273 Or App at 794. More particularly,
the Court of Appeals held that petitioner was required to, but
did not, submit evidence in response to the state’s summary
judgment motion regarding “what facts [her post-conviction]
lawyer knew during the 1999 post-conviction proceeding”
and “what she herself knew during the 1999 post-conviction
proceeding.” Id.
In reaching that conclusion, the Court of Appeals
erred in applying the “raised in the motion” provision of
ORCP 47 C. Here, defendant’s summary judgment motion
on the Brady claim asserted only one ground, namely, that
petitioner had not “alleged any ultimate facts demonstrating
that she was reasonably unable, when she first sought post-
conviction relief, to discover that impeachment material was
allegedly withheld by a prosecutor or not made available to
petitioner’s underlying defense counsel in 1995.” That is, the
state’s sole challenge to petitioner’s Brady claim was that,
as alleged, that claim was insufficient to trigger the escape
clause of either ORS 138.510(3) or ORS 138.550(3).
Among petitioner’s allegations were her assertions
that the Brady materials “were never disclosed to any attor-
ney working on behalf of Petitioner until Mr. Simrin caused
them to be delivered to Petitioner’s attorney in this post-
conviction proceeding.” Because the state challenged only
petitioner’s allegations and not her ability to prove those
allegations, the state did not “raise in the motion” the issue
whether petitioner would be able to meet her burden of
proving that none of the attorneys who had represented her
before 2012 had knowledge of the Brady materials.8 Nor did
the state’s motion raise the other issue cited by the Court
of Appeals—that petitioner was required to allege, and
submit an affidavit in support of such allegation, that she
personally lacked knowledge of the Brady violation at the
8
In Ogle v. Nooth, 355 Or 570, 330 P3d 572 (2014), this court discussed the
requirement in ORS 138.580 that materials supporting a post-conviction claim
must be attached to the petition. The trial court proceedings in this case occurred
before Ogle was decided, and no issue has been raised as to whether petitioner’s
filing complied with ORS 138.580. We therefore do not address that issue.
736 Eklof v. Steward
time of her original post-conviction action. 273 Or App at
794. In short, the state’s argument in the post-conviction
court, which it reiterated before the Court of Appeals, had
nothing to do with what petitioner or her counsel actually
knew about the Brady materials at the time of the first post-
conviction action. Rather, the state’s premise was that peti-
tioner reasonably could have raised the Brady claim in the
first action if her counsel had sought access to the Jeffrey
Tiner file from the District Attorney’s office in 1999.
Under Outdoor Media Dimensions Inc. v. State of
Oregon, 331 Or 634, 659-60, 20 P3d 180 (2001), an appel-
late court may affirm a trial court’s ruling on an alterna-
tive basis if, among other things, it can conclude that the
record is materially “the same one that would have been
developed had the prevailing party raised the alternative
basis for affirmance below.” That criterion is of particular
importance where, as here, the opposing party had no rea-
son to adduce evidence on an issue that was not raised in the
summary judgment motion. See, e.g., Petock v. Asante, 351
Or 408, 425, 268 P3d 579 (2011) (rejecting alternative basis
for affirming summary judgment because the court could
not conclude that the record was materially the same one
that would have been developed had the defendant raised
the alternative basis for affirmance in its summary judg-
ment motion). In opposing the state’s summary judgment
motion, petitioner was required to address issues raised in
the motion, but only those issues. Two Two, 355 Or at 326.
Because it would have been improper for the trial court to
grant summary judgment based on the ground that the
Court of Appeals identified, that ground did not provide an
alternative basis to affirm on appeal. We therefore conclude
that the Court of Appeals’ rationale for upholding the trial
court’s ruling does not withstand scrutiny.9
9
That said, we recognize that there may be viable arguments in this type of
case that failure to disclose information to defense attorneys does not constitute
a Brady violation because the criminal defendant or defense counsel knew the
information from other sources. See, e.g., United States v. Agurs, 427 US 97, 103,
96 S Ct. 2392, 49 L Ed 2d 342 (1976) (Brady applies to “information which had
been known to the prosecution but unknown to the defense”). Similarly, a post-
conviction petitioner’s own personal knowledge of the basis for a Brady violation
claim that she failed to communicate to post-conviction counsel may defeat an
argument that she falls within the escape clauses of ORS 138.510(3) or ORS
138.550(3). We cannot conclude, however, that a post-conviction petitioner is
Cite as 360 Or 717 (2016) 737
The decision of the Court of Appeals is reversed.
The judgment of the circuit court is reversed, and the case
is remanded to that court for further proceedings.
required, in her initial pleading, to rebut every possible defense to a claim, or to
negate such a defense in response to a motion for summary judgment, when the
moving party has not raised the issue.