Kelso v. Reyes ( 2024 )

22 July 24, 2024 No. 512
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
DAVID JAMES KELSO,
Petitioner-Appellant,
v.
Erin REYES,
Superintendent,
Two Rivers Correctional Institution,
Defendant-Respondent.
Umatilla County Circuit Court
20CV30489; A180767
J. Burdette Pratt, Judge.
Submitted June 14, 2024.
Margaret Huntington and Equal Justice Law filed the
brief for appellant. Section B of the opening brief and a reply
brief were filed by appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Chief Judge, and Egan, Judge.
EGAN, J.
Affirmed.
Nonprecedential Memo Op: 334 Or App 22 (2024) 23
EGAN, J.
Petitioner appeals from a judgment denying him
post-conviction relief. His appointed counsel filed a brief
pursuant to ORAP 5.90 and State v. Balfour, 311 Or 434,
814 P2d 1069 (1991). The brief contains a Section B in which
petitioner argues that he was denied effective assistance of
appellate counsel. See ORAP 5.90(1)(b). The state filed an
answering brief responding to petitioner’s arguments, and
petitioner was granted leave to file a pro se supplemental
reply brief. Reviewing under ORAP 5.90(3) for “arguably
meritorious issues,” we affirm.1
After a jury trial, petitioner was convicted of first-
degree burglary, ORS 164.225, second-degree burglary,
ORS 164.215, interference with making a report, ORS
165.572, two counts of fourth-degree assault, ORS 163.160,
strangulation, ORS 163.187, and menacing, ORS 163.190.
The trial court sentenced him to 160 months in prison.
Having reviewed the record, including the trial court file,
the transcript of the hearings, and the post-conviction court
proceedings, and having reviewed the Balfour brief, includ-
ing the arguments in Section B of the brief and the state’s
response to those arguments, we have identified no arguably
meritorious issues. Regarding the arguments in petitioner’s
pro se supplemental reply brief, we are unable to address
them because they are based on materials that are not part
of the record.
Affirmed.
1
As authorized by ORS 2.570(2)(b), this matter is determined by a two-judge
panel. See, e.g., State v. Yother, 310 Or App 563, 484 P3d 1098 (2021) (deciding
matter submitted through Balfour process by two-judge panel); Ballinger v.
Nooth, 254 Or App 402, 295 P3d 115 (2012), rev den, 353 Or 747 (2013) (same).