Osborne v. Cain ( 2022 )

265
Submitted March 4, affirmed April 20, petition for review denied July 28, 2022
(370 Or 197)
JACK LEE OSBORNE,
Petitioner-Appellant,
v.
Brad CAIN,
Superintendent,
Snake River Correctional Institution,
Defendant-Respondent.
Malheur County Circuit Court
18CV37811; A174206
509 P3d 747
J. Burdette Pratt, Judge.
Jedediah Peterson and O’Connor Weber LLC filed the
brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patrick M. Ebbett, Assistant Attorney
General, filed the brief for respondent.
Before James, Presiding Judge, and Aoyagi, Judge, and
Joyce, Judge.
PER CURIAM
Affirmed.
266 Osborne v. Cain
PER CURIAM
Petitioner appeals from a judgment denying his
petition for post-conviction relief. Petitioner was convicted
of attempted second-degree assault, third-degree assault,
and unlawful use of a weapon after he and another person
attacked the victim with a knife. He sought post-conviction
relief on the ground that trial counsel was constitutionally
deficient in failing to call a witness at trial who, according
to petitioner, would have testified that petitioner did not
have a knife. The post-conviction court denied relief on that
claim, as well as on petitioner’s related claim that he suf-
fered cumulative error, and petitioner assigns error to that
denial. We affirm.
Our review is for legal error, accepting the post-
conviction court’s factual findings if there is evidence to
support them. Montez v. Czerniak, 355 Or 1, 8, 322 P3d
487, adh’d to as modified on recons, 355 Or 598, 330 P3d
595 (2014) (citing Peiffer v. Hoyt, 339 Or 649, 660, 125 P3d
734 (2005)). The post-conviction court found that the state
and trial counsel had both made efforts to find the witness
but had been unable to locate her in part because she was
houseless; those findings are supported by the record. The
post-conviction court thus concluded that petitioner had not
proved that trial counsel failed to make reasonable efforts
to find the witness, upon which his claim of ineffective assis-
tance of counsel depends. The court further concluded that
petitioner had failed to prove prejudice, because petitioner
did not provide admissible evidence of what the witness’s
testimony would have been had she been located. The post-
conviction court’s legal conclusions are supported by the
facts upon which they rely and it therefore correctly rejected
petitioner’s claim for relief.1 We therefore affirm.
Affirmed.
1
Petitioner separately assigns error to the post-conviction court’s conclusion
that he had not suffered cumulative error, but petitioner combines argument on
that assignment with his first assignment of error because, according to peti-
tioner, they present the same legal question. As we understand it, his cumulative
error claim is part of his argument that he suffered prejudice. Because we reject
his first claim of error, we also reject his second.