Corona v. Reyes ( 2024 )

702 August 28, 2024 No. 625
This is a nonprecedential memorandum opinion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
SIMON CORONA,
Petitioner-Appellant,
v.
Erin REYES,
Superintendent,
Two Rivers Correctional Institution,
Defendant-Respondent.
Umatilla County Circuit Court
20CV05168; A178615
Daniel J. Hill, Judge.
Submitted August 1, 2024.
Jedediah Peterson and Equal Justice Law filed the brief
for appellant. Simon C. Corona filed the supplemental brief
pro se. Jedediah Peterson and Equal Justice Law filed the
supplemental brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Ryan Kahn, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Chief Judge, Kamins, Judge, and Balmer,
Senior Judge.
BALMER, S. J.
Affirmed.
Nonprecedential Memo Op: 334 Or App 702 (2024) 703
BALMER, S. J.
Petitioner appeals from a judgment denying him
post-conviction relief. After a jury trial in 2006, petitioner
was convicted of multiple sex crimes, and he was sentenced
to a lengthy period of incarceration. In 2008, we affirmed
without issuing an opinion. State v. Corona, 222 Or App 330,
194 P3d 193, rev den, 345 Or 503 (2008). Petitioner filed for
post-conviction relief in 2009, but the post-conviction court
denied relief. In January 2020, petitioner filed a pro se peti-
tion for post-conviction relief arguing, among other things,
that trial counsel, appellate counsel, and post-conviction
counsel were ineffective and inadequate. Appointed counsel
filed a notice pursuant to ORS 138.590(5)1 that the petition
could not be amended to state a ground for relief. Counsel
averred that “[a]lthough it was possible that petitioner may
have been able to pursue a Ramos claim, the trial transcript
reveals all unanimous jury verdicts.”2 After a hearing on
the sufficiency of the petition, the post-conviction court dis-
missed it, and the court later clarified that the petition was
dismissed as time-barred and successive. We affirm.
We accept the post-conviction court’s supported
implicit and explicit factual findings and review for legal
error. Green v. Franke, 357 Or 301, 312, 350 P3d 188 (2015).
We review the post-conviction court’s dismissal of a peti-
tion for legal error. Hill v. Miller, 330 Or App 386, 389, 543
P3d 772 (2024). On appeal, petitioner argues that the post-
conviction court erred in dismissing the petition because,
although the jury verdicts were unanimous, the petition
could have been amended to argue that his trial counsel
was ineffective in failing to object to a nonunanimous jury
instruction.
1
ORS 138.590(5) provides in part that if “appointed counsel believes that
the original petition cannot be construed to state a ground for relief under ORS
138.510 to 138.680, and cannot be amended to state a ground for relief, counsel
shall, in lieu of moving to amend the petition, inform the petitioner and notify
the circuit court of counsel’s belief by filing an affidavit stating the belief and the
reasons therefor with the clerk of the circuit court.”
2
In Ramos v. Louisiana, 590 US 83, 140 S Ct 1390, 206 L Ed 2d 583 (2020),
the United States Supreme Court held that the Sixth Amendment to the United
States Constitution requires a jury to reach a unanimous verdict to convict some-
one of a felony.
704 Corona v. Reyes
Assuming without deciding that that argument was
preserved, we conclude that the post-conviction court did
not err in dismissing the petition. Petitioner does not argue
that the untimeliness of the claims asserted in his petition
should have been excused under the “escape clauses” in ORS
138.510(3) and ORS 138.550(3).3 Instead, he argues that the
petition could have been amended to assert a Ramos claim
or an ineffective assistance of counsel claim based on the
failure to raise the Ramos issue. Although petitioner could
not reasonably have raised those claims before Ramos, in
this instance, allowing the amendment would have been
futile because, as petitioner acknowledges, his jury verdicts
were unanimous. See Eklof v. Persson, 369 Or 531, 542, 508
P3d 468 (2022) (“justice does not require futile amendments
to be allowed”); see also Mandell v. Miller, 326 Or App 807,
811, 533 P3d 815, rev den, 371 Or 476 (2023) (“[W]e conclude
that post-conviction petitioners cannot prove that a Ramos
violation was consequential in their case when the record
does not indicate whether the jury that convicted them
was, in fact, nonunanimous, and are therefore not entitled
to relief.”). We therefore reject the argument that the post-
conviction court erred in dismissing the petition. In addi-
tion, having reviewed the arguments in petitioner’s pro se
supplemental brief, we reject them without discussion.
Affirmed.
3
ORS 138.510(3) provides in part that a post-conviction petition must be
filed within two years following the date a conviction became final, “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.” ORS
138.550(3) provides in part that any grounds for relief not asserted in the original
or amended petition are deemed waived “unless the court on hearing a subse-
quent petition finds grounds for relief asserted therein which could not reason-
ably have been raised in the original or amended petition.” It is questionable
whether ORS 138.510(3) applies in the successive petition context. See Hill, 330
Or App at 394-95.