Hill v. Miller ( 2024 )

386 January 31, 2024 No. 48
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
DAVID L. HILL, JR.,
Petitioner-Appellant,
v.
Jamie MILLER,
Snake River Correctional Center,
Defendant-Respondent.
Malheur County Circuit Court
21CV06055; A177440
Lung S. Hung, Judge.
Argued and submitted October 31, 2023.
Margaret Huntington argued the cause for appellant.
On the opening brief were Lindsey Burrows and O’Connor
Weber LLC. Also on the reply brief was O’Connor Weber,
LLC.
Jordan R. Silk, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Lagesen, Chief Judge, and Tookey, Judge, and
Kamins, Judge.
LAGESEN, C. J.
Reversed and remanded.
Cite as 330 Or App 386 (2024) 387
388 Hill v. Miller
LAGESEN, C. J.
Petitioner appeals a judgment dismissing his post-
conviction petition as untimely, ORS 138.510(3), and suc-
cessive, ORS 138.550(3).1 The post-conviction court con-
cluded that the ground for relief raised in the petition was
one that petitioner could not reasonably have raised within
two years of the date that his conviction was final, or in his
previous petitions for post-conviction relief, such that peti-
tioner was entitled to the benefit of the escape clauses in
both ORS 138.510 and ORS 138.550. The court nevertheless
dismissed the petition. Relying on our decision in Canales-
Robles v. Laney, 314 Or App 413, 422, 498 P3d 343 (2021),
which construed the escape clause of ORS 138.510 as a toll-
ing provision, the post-conviction court determined that
the petition was untimely because petitioner waited more
than two years to file it after the ground for relief asserted
became available to petitioner. Although the post-conviction
court’s decision was correct under our decision in Canales-
Robles, under a subsequent decision of the Supreme Court,
Ingle v. Matteucci, 371 Or 413, 537 P3d 895 (2023), petition-
er’s demonstration that his ground for relief falls within the
1
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 convic-
tion 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.”
Cite as 330 Or App 386 (2024) 389
relevant escape clause or clauses is sufficient to allow him
to pursue that ground for relief. We therefore reverse and
remand.
STANDARD OF REVIEW
We review a post-conviction court’s ruling on a
motion to dismiss a petition for legal error, assuming the
truth of the allegations in the petition and its attachments.
Ingle, 371 Or at 416; Zsarko v. Angelozzi, 281 Or App 506, 508,
382 P3d 1239 (2016), rev den, 361 Or 312 (2017). Pertinent to
this case, we review for legal error a post-conviction court’s
determination that either the ORS 138.510 escape clause or
the ORS 138.550 escape clause permits a petitioner to pur-
sue a ground for post-conviction relief that was not alleged
in a timely-filed initial petition for relief. See Ingle, 371 Or at
445-46 (so reviewing).
FACTUAL AND PROCEDURAL BACKGROUND
We state the relevant facts in accordance with our
standard of review. Petitioner entered a stipulated plea
agreement with the state. Under the terms of the plea
agreement, he was entitled to credit for time served start-
ing on the date of his arrest, June 2, 2008. That credit
would reduce his time in the custody of the Department of
Corrections (DOC) by 17.2 months, resulting in a total of
144 months’ incarceration in DOC custody. At sentencing,
the court reminded petitioner that, under the terms of the
agreement, petitioner’s sentence would be “not one day more
[or] one day less” than the agreed-upon term. The court then
entered a judgment reflecting the court’s intention that peti-
tioner’s total term of incarceration include credit for time
served since June 2, 2008.
Petitioner sought post-conviction relief in 2010 and
2011. He did not raise any issue regarding the credit-for-
time-served component of his sentence in the 2010 and 2011
petitions, and he did not obtain any relief as a result of those
petitions.
On or around March 23, 2015, DOC notified peti-
tioner that it could not honor the part of the agreement
allowing for credit for time served. Nearly six years later, on
390 Hill v. Miller
February 9, 2021, petitioner filed the instant post-conviction
proceeding, alleging that trial counsel was inadequate and
ineffective for allowing him to enter the plea involving an
agreed-upon sentence that was not enforceable.
The superintendent moved to dismiss, arguing that
the petition was (a) untimely under ORS 138.510(3); and (b)
successive under ORS 138.550(3). The post-conviction court
granted the motion, ruling that petitioner’s ground for relief
fell within the escape clauses of both statutes but that peti-
tioner’s delay in seeking relief meant that his request was
untimely under Canales-Robles.
Specifically, with respect to ORS 138.550(3), the
post-conviction court determined that petitioner’s ground for
relief could not reasonably have been raised by petitioner’s
post-conviction lawyers before petitioner received the notice
from DOC. Thus, the petition fell within the escape clause
of ORS 138.550(3). See Perez v. Cain, 367 Or 96, 113, 473
P3d 540 (2020) (whether escape clause of ORS 138.550(3)
applies turns on whether ground for relief was reasonably
available to petitioner’s prior post-conviction counsel). With
respect to ORS 138.510(3), the post-conviction court con-
cluded, for the same reason, that the ground for relief was
not available to petitioner within the two-year period follow-
ing the date his conviction became final. See Ingle, 371 Or
at 446-47 (whether escape clause of ORS 138.510(3) applies
turns on whether, in the circumstances that confronted the
petitioner, the petitioner reasonably could have raised the
ground for relief within the two-year window). Nonetheless,
following our construction of the escape clause as a tolling
provision in Canales-Robles and Bean v. Cain, 314 Or App
529, 497 P3d 1273 (2021), which applied the tolling analysis
set forth in Canales-Robles, the post-conviction court deter-
mined that the petition was not timely because petitioner
filed it more than two years after the date on which he had
notice of the fact that DOC would not effectuate the sen-
tence in the manner intended by petitioner, the state, and
the sentencing court. Petitioner appealed.
On appeal, in his opening and reply briefs, petitioner
first argues that Canales-Robles was wrongly decided, to the
extent that it treated the escape clause in ORS 138.510(3)
Cite as 330 Or App 386 (2024) 391
as a tolling provision. Petitioner further argues that he
is entitled to the benefit of the escape clauses under both
ORS 138.510(3) and ORS 138.550(3) because he could not
reasonably have raised his credit-for-time-served claim in
a timely petition under ORS 138.510(3) or in his previous
post-conviction petitions, regardless of the amount of time it
took him to seek relief.
In the answering brief, the superintendent argues
that Canales-Robles is correct and that the post-conviction
court correctly dismissed the petition as time-barred.
Alternatively, the superintendent argues that the judg-
ment of dismissal should be affirmed on the alternative
ground that petitioner is not entitled to the benefit of the
ORS 138.550 escape clause. The superintendent’s theory
is that the legal basis and the facts supporting the DOC’s
determination that it would not give effect to the sentenc-
ing court’s intended sentence would have been available to
counsel who investigated the legality of the sentence, such
that petitioner could have raised the issue in his initial post-
conviction proceeding.
After briefing was completed in this case, the
Supreme Court decided Ingle. In Ingle, the court interpreted
the escape clause of ORS 138.510(3). In that case, the peti-
tioner had not filed his petition for post-conviction within two
years of the date his conviction became final, as required by
ORS 138.510(3). Ingle, 371 Or at 415. At issue was whether
the petitioner’s mental illness, which petitioner alleged had
prevented him from seeking post-conviction relief within
the two-year limitations period, entitled him to the benefit
of the ORS 138.510(3) escape clause. Id.
The Supreme Court concluded that if petitioner
could prove the allegations about how his mental illness
affected his ability to file for post-conviction relief, then peti-
tioner would be entitled to the benefit of the escape clause.
Id. at 416. Notably, the court did not require the petitioner to
demonstrate that he filed his post-conviction petition within
two years of the date on which his mental illness was no lon-
ger an impediment to filing. The court also did not otherwise
construe the escape clause to function as a tolling provision.
392 Hill v. Miller
On the contrary, the court explained that ORS
138.510(3) “includes a limitations period and an exception
to that period.” Id. at 415. Rejecting arguments by the state
analogizing ORS 138.510(3) to other statutes of limitations,
and related rules regarding claim accrual and tolling, the
court observed that ORS 138.510(3) “does not contain a toll-
ing provision; instead, it has an escape clause.” Id. at 432
n 4. The court also observed that “there is no statute of ulti-
mate repose for [post-conviction] claims.” Id. Ultimately, the
court explained that principles applicable to other statutes
of limitations do not apply to the limitations period in ORS
138.510(3). Id. Rather, if a petitioner demonstrates that the
escape clause applies to a particular ground for relief, then
ORS 138.510(3) does not bar a petition asserting that ground
for relief:
“The state’s effort to compare the statute of limitations for
post-conviction petitions to other statutes of limitations
is understandable, but the statute of limitations for post-
conviction petitions is unique. It does not work the same
way as other statutes of limitations, because its limitations
period starts to run from a specific date—when a convic-
tion becomes final—and that date is independent of when
a claim ‘accrues’ in the sense that a plaintiff knows or has
reason to know of a claim. That is, the post-conviction
statute does not have an ordinary discovery accrual rule;
instead, it has an escape clause, which is broad enough to
cover both circumstances where a petitioner did not know
or have reason to know of their ground for relief and cir-
cumstances where a petitioner was incapable of taking the
steps necessary to raise their ground for relief within the
limitations period.”
Id.
After the Supreme Court issued its decision, peti-
tioner then submitted a memorandum of additional author-
ities. Petitioner notes both that the Supreme Court rejected
the notion that the escape clause in ORS 138.510(3) is a
tolling provision and, further, that the Post-Conviction
Hearings Act (PCHA) does not impose a “statute of ultimate
repose for such claims” that fall within the escape clause.
Petitioner asserts that, under Ingle, he is entitled to pur-
sue his claim because it is not one that reasonably could
Cite as 330 Or App 386 (2024) 393
have been raised within the limitations period or within one
of his two prior post-conviction petitions. Petitioner argues
further that “[i]f petitioner could not reasonably have raised
his ground for relief [within] the two years following [the]
date” his conviction became final, then “his petition is not
time-barred,” because, under Ingle, there is no statute of
ultimate repose for pursuing a post-conviction claim that
falls within an escape clause.
In response, the superintendent argues that the
Supreme Court’s decision in Ingle does not displace our deci-
sion in Canales-Robles. The superintendent reasons that the
Supreme Court did not address explicitly whether a peti-
tioner eligible to invoke the escape clauses of ORS 138.510(3)
and ORS 138.550(3) must do so within two years of the date
the ground for relief became available to the petitioner. In
the superintendent’s view, this means that Ingle does not
displace our decision in Canales-Robles. The superintendent
argues further that, to depart from our holding in Canales-
Robles that the escape clause of ORS 138.510(3) operates as
a tolling provision, we must conclude that our interpreta-
tion of the escape clause as a tolling provision was plainly
wrong. The superintendent asserts that, notwithstanding
Ingle, Canales-Robles is not plainly wrong.
ANALYSIS
As framed by the parties’ arguments and the post-
conviction court’s ruling, this case presents two issues:
(1) whether the facts alleged by petitioner establish that his
post-conviction counsel could not reasonably have raised his
claim related to credit for time served in petitioner’s previ-
ous post-conviction petitions, so as to entitle him to the bene-
fit of the escape clauses; and (2) if so, whether petitioner was
required to file for post-conviction relief within two years of
the date he became aware of the potential ground for relief.
On the first issue, we agree with the post-conviction
court that the facts alleged by petitioner demonstrate that
the asserted ground for relief was not reasonably available
to petitioner, or his prior post-conviction lawyers, until DOC
alerted petitioner in 2015 that it would not honor the stipu-
lated plea agreement. Because that was long after petitioner
394 Hill v. Miller
filed his first two petitions, the ground could not have been
reasonably raised in the first two petitions.
Arguing otherwise, the superintendent posits that
the ground was reasonably available to petitioner’s prior post-
conviction lawyers because, in the superintendent’s view,
petitioner’s post-conviction lawyers could have researched
the law and determined that petitioner’s plea agreement
was not one that could be implemented in a lawful way. We
are not persuaded. As long as the state had not indicated to
petitioner that it would not honor the terms of the sentence
imposed as part of the stipulated plea agreement, petitioner
did not have a viable claim for post-conviction relief. It is
difficult to conceive of what, exactly, petitioner’s claim would
have been before DOC alerted petitioner that he would not
get credit for time served; an anticipatory claim based on
the theory that the state might not honor the agreement
would likely not have been justiciable.
The remaining question is whether petitioner
was required to file for relief within two years of discover-
ing the basis for his claim. On that question, the parties
and the post-conviction court assumed that ORS 138.510
imposes a two-year limitation period in this context, where
a petitioner has filed previous petitions for post-conviction
relief and is seeking to avoid the successive-petition bar of
ORS 138.550(3) by demonstrating that a ground for relief
“could not reasonably have been raised in” the prior peti-
tion or petitions. ORS 138.550(3). That assumption is sub-
ject to question. There is no indication in the text of ORS
138.550(3) or ORS 138.510(3) that the legislature intended
to impose a time limitation for successive petitions asserting
post-conviction claims that could not reasonably have been
raised in a prior post-conviction proceeding. Ordinarily, “[i]t
is not our role to add limitations that the legislature itself
did not include.” PGE v. Alfalfa Solar I, LLC, 323 Or App
531, 537, 524 P3d 124, rev den, 371 Or 308 (2023) (citing
ORS 174.010).
Nevertheless, for purposes of this decision, we
assume, as the parties have, that ORS 138.510(3) has some
application to successive petitions filed under the escape
clause of ORS 138.550(3). At this stage of the proceeding,
Cite as 330 Or App 386 (2024) 395
ORS 138.510(3), as construed in Ingle, required only that
petitioner allege facts showing that he could not reason-
ably have raised his claim within two years of the date his
conviction became final, something petitioner did here. As
explained above, Ingle held that a petitioner satisfies the
ORS 138.510(3) escape clause with respect to a ground for
relief by demonstrating that the petitioner could not reason-
ably have raised the ground for relief within two years of the
date the petitioner’s conviction became final, nothing more,
nothing less. 471 Or at 446. The court was clear that ORS
138.510 does not have a tolling provision but, instead, has
an escape clause that operates as an exception to the limita-
tions period, not as something that affects the running of
the limitations period. Id. at 415. And the court was clear
that the legislature did not impose an outer time limit—a
statute of ultimate repose—on post-conviction claims. Id. at
432 n 4.
To the extent our decision in Canales-Robles holds
that the escape clause of ORS 138.510(3) operates as a toll-
ing provision, we overrule it.2 That interpretation of the
ORS 138.510(3) escape clause is irreconcilable with Ingle.3
Our holding in Canales-Robles explicitly construed the ORS
138.510(3) escape clause as a tolling provision, holding that,
as a result of the escape clause, “the statute of limitations
is tolled during the time period that a claim could not rea-
sonably have been raised.” 314 Or App at 422. Similarly,
2
Because this opinion overrules our existing precedent, the panel specifi-
cally advised all members of the court of the effect of its decision, but neither the
chief judge nor a majority of the regularly elected or appointed judges referred,
under ORS 2.570(5), the cause to be considered en banc.
3
The superintendent argues that, because Ingle did not address the specific
issues resolved in Canales-Robles, it does not supply a basis for us to conclude
that the Supreme Court has displaced our decision in Canales-Robles. We dis-
agree. See State v. McKnight, 293 Or App 274, 281, 426 P3d 669, rev den, 363 Or
817 (2018) (examining whether prior Court of Appeals decision was “irreconcil-
able or fundamentally unworkable” with subsequent Supreme Court decision to
determine whether it should be overruled in light of subsequent Supreme Court
decision). Unlike the situation addressed in McKnight, in which a subsequent
Supreme Court decision was at odds with some, but not all, of our reasoning
in support of our prior interpretation of a statute, in Ingle, the Supreme Court
issued a statutory interpretation that is different from the one that we issued in
Canales-Robles. The Ingle interpretation binds us. Mastriano v. Board of Parole,
342 Or 684, 692-93, 159 P3d 1151 (2007) (explaining that “an authoritative inter-
pretation of [a] statute by [the Supreme Court] * * * ordinarily should be con-
trolling if the statute is unchanged in any pertinent way”).
396 Hill v. Miller
we reasoned that “[t]he statute of limitations does not com-
mence until [a] ground [for] relief becomes available, if it
ever does.” Id. at 423. That construction of the escape clause
cannot be reconciled with the Supreme Court’s conclusion
in Ingle that ORS 138.510 does not have a tolling provision.
We recognize that this means that some post-
conviction claims might be filed long after the petitioner’s
conviction becomes final, and long after a ground for relief
became available to the petitioner. But, as the Supreme
Court recognized in Ingle, “the bar for establishing that
the escape clause applies is high,” something that will limit
the number of such claims. 371 Or at 444. Beyond that, the
choice whether to impose time limitations on claims that fall
within either the ORS 138.510(3) escape clause or the ORS
138.550(3) escape clause is a choice that belongs to the legis-
lature, not the courts: “In the construction of a statute, the
office of the judge is simply to ascertain and declare what
is, in terms or in substance, contained therein, not to insert
what has been omitted, or to omit what has been inserted.”
ORS 174.010
In sum, the post-conviction court correctly con-
cluded that the facts alleged by petitioner, if proved, would
entitle petitioner to the benefit of the escape clauses of both
ORS 138.510(3) and ORS 138.550(3). The post-conviction
court erred, however, when it determined that petitioner’s
failure to seek relief within two years of discovering the
basis for relief required dismissal. Although the court’s rea-
soning was correct under our decision in Canales-Robles, we
must overrule Canales-Robles because it is irreconcilable
with Ingle. To the extent ORS 138.510(3) has any applica-
tion on these facts, under Ingle, petitioner was required to
demonstrate simply that the ground for relief could not rea-
sonably have been raised within two years of the date his
conviction became final, a standard satisfied by the plead-
ings here.
Reversed and remanded.