Marcus v. Reyes ( 2023 )

122
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted February 24, vacated and remanded July 12, 2023
DAVID ABRAHAM MARCUS,
Petitioner-Appellant,
v.
Erin REYES,
Superintendent,
Two Rivers Correctional Institution,
Defendant-Respondent.
Umatilla County Circuit Court
19CV05979; A176855
Claudia M. Burton, Senior Judge.
Margaret Huntington and O’Connor Weber LLC filed the
briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Susan G. Howe, Assistant Attorney
General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
JACQUOT, J.
Vacated and remanded.
Nonprecedential Memo Op: 327 Or App 122 (2023) 123
JACQUOT, J.
Petitioner attempted to abduct a woman, admit-
ted the crimes to several people, and subsequently pleaded
guilty to kidnapping and attempted rape. Petitioner raised
two claims in his petition for post-conviction relief. The
post-conviction court’s judgment denying relief addressed
petitioner’s inadequate assistance of counsel claim but not
his stand-alone due process claim. Petitioner had the oppor-
tunity to object to the judgment’s form before it was entered
but failed to do so. On appeal, in one assignment of error,
petitioner contends that the entered judgment does not sat-
isfy ORS 138.640(1), because it fails to address both of his
claims for relief, and requests plain-error review for the first
time in his reply brief. We vacate and remand.
BACKGROUND
Petitioner appeals from a general judgment denying
him post-conviction relief on the ground that the entered
judgment does not satisfy ORS 138.640(1), as interpreted by
Datt v. Hill, 347 Or 672, 227 P3d 714 (2010). To comply with
ORS 138.640(1), a post-conviction judgment must address
each separate claim made by the petitioner in the petition.
Datt, 347 Or at 685. Petitioner raised two claims: (1) that trial
counsel provided ineffective assistance of counsel by failing
to ensure his plea was knowing, voluntary, and intelligent,
and (2) that petitioner’s rights to due process and fundamen-
tal fairness were violated because his plea was not knowing,
voluntary, and intelligent. In its judgment denying peti-
tioner relief, the post-conviction court explicitly addressed
only petitioner’s ineffective assistance of counsel claim, stat-
ing that “[p]etitioner makes one claim, which is that due to
ineffective assistance of counsel his guilty pleas were not
knowingly, voluntarily, and intelligently made.” Petitioner
failed to preserve the error in the post-conviction proceed-
ings, and that failure is not excused because petitioner had
an opportunity to bring it to the court’s attention before the
judgment was entered. Petitioner then did not request that
we review for plain error until his reply brief. Defendant
argues that because petitioner failed to request plain-error
review in his opening brief, we should refuse to engage in
the review and that, regardless, the post-conviction court
124 Marcus v. Reyes
did not plainly err. Petitioner argues that nothing prevents
him from requesting plain error-review in the reply brief.
ORS 138.640
ORS 138.640(1) requires a state post-conviction
court’s judgment denying post-conviction relief to “clearly
state the grounds on which the cause was determined,
and whether a state or federal question was presented and
decided.” Datt, 347 Or at 685. The statute is intended to
ensure that post-conviction courts provide enough infor-
mation to assist federal courts in determinations of habeas
corpus jurisdiction.1 Id. at 682. The statute imposes a
“clear-statement rule on judgments in post-conviction pro-
ceedings.” Soderstrom v. Premo, 274 Or App 624, 626, 360
P3d 1272 (2015). To be sufficiently clear, and to enable a fed-
eral court to determine habeas corpus jurisdiction, a post-
conviction judgment denying relief must, at minimum:
“(1) identify the claims for relief that the court considered
and make separate rulings on each claim; (2) declare, with
regard to each claim, whether the denial is based on a peti-
tioner’s failure to utilize or follow available state proce-
dures or a failure to establish the merits of the claim; and
(3) make the legal bases for denial of relief apparent.”
Datt, 347 Or at 685. To make the legal bases for denial of
relief apparent, with respect to each claim that contains
more than one element, the judgment must identify each
element that the court determined was not met. Fisher v.
Angelozzi, 285 Or App 541, 552-53, 398 P3d 367 (2017).
PLAIN-ERROR REVIEW
Generally, we will not consider a claim of error
that was not preserved in the lower court. ORAP 5.45(1).
Additionally, we generally will not consider an argument
raised for the first time in a reply brief. State v. Murga, 291
1
Federal habeas corpus jurisdiction over a person in state custody requires
that the applicant have exhausted available state remedies. 28 USC § 2254(2018). Additionally, the federal court cannot grant relief with respect to any
claim adjudicated on the merits in state court proceedings unless the state
court’s decision is contrary to or an unreasonable application of federal law. Id.To determine whether an applicant’s claim was adjudicated on the merits and
whether the applicant has exhausted state remedies, the federal court must have
the information required by ORS 138.640. Datt, 347 Or at 685.
Nonprecedential Memo Op: 327 Or App 122 (2023) 125
Or App 462, 468-69, 422 P3d 417 (2018) (surveying cases
rejecting arguments raised for the first time in a reply brief);
ORAP 5.45(1). However, ORAP 5.45(1) allows this court
discretion to correct an unpreserved error if it is plain. An
error is plain if (1) the error is one of law, (2) the legal point
is obvious and “not reasonably in dispute,” and (3) to reach
the error, the court does not need to go “outside the record or
choose between competing inferences to find it, and the facts
that comprise the error are irrefutable.” State v. Tilden, 252
Or App 581, 590-91, 288 P3d 567 (2012). Even if we deter-
mine that the error is plain, we must decide whether to exer-
cise our discretion to address it. State v. Reyes-Camarena,
330 Or 431, 435, 7 P3d 522 (2000).
Here, the error is plain. First, we review a post-
conviction court’s judgment for errors of law. Wright v.
Nooth, 264 Or App 329, 331, 336 P3d 1, rev den, 356 Or 517(2014). Second, the legal point is obvious and not reasonably
in dispute. The Supreme Court in Datt clearly required the
post-conviction court to identify a petitioner’s claims and
“make separate rulings” on each of them, declare whether
it denied the claims on procedural or merits grounds, and
explain the legal bases for its decision. 347 Or at 685. Here,
petitioner raised two separate claims in his petition and
his post-conviction trial memorandum: (1) ineffective assis-
tance of trial counsel; and (2) violation of petitioner’s due
process rights. Although the judgment made clear that peti-
tioner’s ineffective assistance of counsel claim was denied
on the merits, it did not identify the due process issue and
provide a separate ruling. Finally, we do not need to go out-
side of the record to find the error. The judgment specifi-
cally identified petitioner’s ineffective assistance of coun-
sel claim as his “one claim” and did not address his second
claim.
Having concluded that the post-conviction court
plainly erred, we must decide whether to exercise our dis-
cretion to correct the error and articulate our reasons for
doing so. Ailes v. Portland Meadows, Inc., 312 Or 376, 382,
823 P2d 956 (1991). When deciding whether to exercise our
discretion, we may consider the following nonexclusive list
of factors:
126 Marcus v. Reyes
“[T]he competing interests of the parties; the nature of the
case; the gravity of the error; the ends of justice in the par-
ticular case; how the error came to the court’s attention;
and whether the policies behind the general rule requir-
ing preservation of error have been served in the case in
another way, i.e., whether the trial court was, in some man-
ner, presented with both sides of the issue and given an
opportunity to correct any error.”
Ailes, 312 Or at 382 n 6 (citations omitted).
Even absent an objection, the post-conviction court
is “not relieved of its statutory responsibility under ORS
138.640 to state the grounds upon which the cause was deter-
mined” and dispose of all claims. Leahy v. Hill, 219 Or App
592, 596, 185 P3d 464 (2008) (citing Owens v. Cupp, 300 Or
158, 161, 707 P2d 1225 (1985)). We will correct the error in
this case in the interests of judicial efficiency and accuracy.
As discussed, ORS 138.640(1) serves to ensure that post-
conviction courts provide federal courts with enough infor-
mation to determine habeas corpus jurisdiction. Datt, 347
Or App at 682. Ordinarily, a claim rejected on procedural
grounds in state court will not be reviewed on the merits in
federal court. See, e.g., Nitschke v. Belleque, 680 F3d 1105,
1109 (9th Cir 2012). In the absence of a reasoned decision, the
federal court generally will treat a claim as being resolved
on the merits. Harrington v. Richter, 562 US 86, 99, 131 S Ct
770, 178 L Ed 2d 624 (2011) (“When a federal claim has been
presented to a state court and the state court has denied
relief, it may be presumed that the state court adjudicated
the claim on the merits in the absence of any indication or
state-law procedural principles to the contrary.” (Citations
omitted.)).2
Here, though some of the reasoning supporting the
judgment in the inadequate assistance claim could also sup-
port the stand-alone due process claim, it is not clear what
the basis for rejecting the claim would have been. Procedural
defenses were raised, and a decision could have been based
2
We note defendant’s assertion that Harrington has made the reasoning in
Datt obsolete. However, as we have already explained, “[t]hat is an argument
more appropriately directed to the Oregon Supreme Court than to us. Unless
the Supreme Court modifies its holding in Datt, we, as an intermediate appellate
court, must adhere to it.” Soderstrom, 274 Or App at 629.
Nonprecedential Memo Op: 327 Or App 122 (2023) 127
upon the merits or procedural grounds. Leaving the judg-
ment in an ambiguous form could result in merits review of
a claim that was resolved on procedural grounds. It would
not serve the ends of justice to have a federal court view the
state court as having resolved a claim on the merits when
that did not, in fact, happen. Although it would have been
preferable for petitioner to have raised the form-of-judgment
issue with the post-conviction court, thereby sparing the
time and expense of this appeal, there is no good reason
to leave the judgment ambiguous where that could lead to
additional inefficiencies down the road.
We exercise our discretion in this case because the
error is clear, easy to remedy, and serves the ends of jus-
tice and judicial efficiency long-term. The post-conviction
court wrote an otherwise thoughtful and detailed opinion.
Petitioner did not make new arguments in his request for
plain-error review in his reply brief, he requested plain-
error review based on the arguments he had already made
in his opening brief, and the state was able to preemptively
respond to the plain-error factors in its answering brief. It
is true that if given the opportunity to correct the error by a
timely objection from petitioner’s post-conviction trial attor-
ney, the post-conviction court could have easily corrected it.
That weighs in favor of declining to exercise our discretion
to conduct plain-error review. However, the rest of the fac-
tors we consider convince us that under this limited set of
circumstances, we should correct the plain error.
The proper remedy for noncompliance with ORS
138.640(1) is to vacate and remand for the post-conviction
court to include the required findings. Soderstrom, 274
Or App at 629-30.
Vacated and remanded.