Byers v. Reyes ( 2023 )

399
This is a nonprecedential memorandum opinion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 March 10; reversed in part, remanded for further proceedings, other-
wise affirmed April 19, 2023
ROBERT JEROME BYERS,
Petitioner-Appellant,
v.
Erin REYES,
Superintendent,
Two Rivers Correctional Institution,
Defendant-Respondent.
Umatilla County Circuit Court
20CV20327; A177326
Eva J. Temple, Judge.
Jedediah Peterson and O’Connor Weber LLC filed the
brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Rebeca M. Auten, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Chief Judge, and Kamins, Judge, and
Armstrong, Senior Judge.
LAGESEN, C. J.
Reversed in part; remanded for further proceedings;
otherwise affirmed.
400 Byers v. Reyes
LAGESEN, C. J.
Following a stipulated facts trial in 2002, petitioner
was convicted of burglary in the first degree (Count 1),
rape in the first degree (Counts 2 and 4), sodomy in the first
degree (Counts 3, 5, and 9 to 12), unlawful sexual penetra-
tion in the first degree (Count 6), and assault in the second
degree (Count 7). In this post-conviction proceeding, peti-
tioner seeks relief from those convictions on the ground that
he is “actually innocent” and on the ground that, in view of
Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 1396, 206
L Ed 2d 583 (2020), his rights under Article I, section 11,
of the Oregon Constitution and the Sixth and Fourteenth
Amendments to the United States Constitution were vio-
lated in at least two respects: (1) petitioner’s trial and appel-
late counsel were ineffective and inadequate in failing to
ensure petitioner’s waiver of his right to a jury trial was
knowing, intelligent, and voluntary; and (2) petitioner was
denied due process and a fair trial. Petitioner’s theory was
that Oregon’s unconstitutional practice of allowing con-
viction by nonunanimous verdicts rendered his jury trial
waiver invalid.
The superintendent moved for summary judgment.
Pertinent to the issues on appeal, with regard to petition-
er’s claims of actual innocence, the superintendent asserted
that petitioner could not establish a genuine issue of mate-
rial fact to prove his actual innocence. With regard to peti-
tioner’s remaining claims, the superintendent asserted that
Ramos did not apply retroactively in post-conviction pro-
ceedings, precluding petitioner from prevailing on them.
The post-conviction court agreed and granted the motion.
We review a post-conviction court’s granting of
summary judgment to determine whether the court cor-
rectly concluded that there are no genuine issues of material
fact and that the superintendent was entitled to judgment
as a matter of law. Bean v. Cain, 314 Or App 529, 530, 497
P3d 1273 (2021). A movant is entitled to summary judgment
if, “viewing the evidence in the record in the light most
favorable to the opposing party, the pleadings, depositions,
affidavits, declarations and admissions on file show that
there is no genuine issue as to any material fact and that
Nonprecedential Memo Op: 325 Or App 399 (2023) 401
the moving party is entitled to prevail as a matter of law.”
Id.; see also ORCP 47 C (setting forth standard for granting
summary judgment). For the reasons given below, we affirm
the post-conviction court’s rejection of petitioner’s actual
innocence claims and remand for further proceedings in
light of Ramos, 590 US at ___, 140 S Ct at 1396, and Watkins
v. Ackley, 370 Or 604, 633, 523 P3d 86 (2022).
Actual innocence. Petitioner assigns error to the
post-conviction court’s denial of relief on his claim of
“actual innocence.” The court rejected that claim based on
its conclusions that an “actual innocence” claim “is not a
valid post-conviction claim” and that “petitioner failed to
offer sufficient evidence to support the claims.” As we have
explained, a freestanding post-conviction claim of actual
innocence, if viable, “would require [a] petitioner to demon-
strate, at the very least, that newly discovered and reliable
evidence makes it more likely than not that no reasonable
juror could have found petitioner guilty beyond a reasonable
doubt, when the new evidence is considered in the context of
the record as a whole.” Reeves v. Nooth, 294 Or App 711, 738,
432 P3d 1105 (2018), rev den, 364 Or 680 (2019). Petitioner
did not offer any evidence of his innocence in response to the
superintendent’s motion for summary judgment; as a result,
the post-conviction court properly concluded that petitioner
had not made the evidentiary showing necessary under
Reeves.1
Failure to advise petitioner regarding jury unanimity
requirement. Petitioner’s remaining claims are that Ramos,
which held that the Sixth Amendment requires a unanimous
verdict to support a conviction in state court, entitles him to
relief from his convictions. See Ramos, 590 US at ___, 140
S Ct at 1396. Petitioner’s theory is that Oregon’s unconstitu-
tional nonunanimous jury practice caused him to waive his
right to a jury trial and proceed to a stipulated facts trial,
something petitioner contends violated his constitutional
rights. The post-conviction court granted summary judg-
ment to petitioner on the ground that Ramos did not apply
1
Petitioner asserted that he planned to seek DNA testing which, he claimed,
would exonerate him, but he never introduced any DNA evidence. Our affirmance
of the post-conviction court’s denial of relief is without prejudice to petitioner’s
ability to renew such a claim, should he obtain exculpatory evidence in the future.
402 Byers v. Reyes
retroactively in post-conviction proceedings. The superin-
tendent concedes that, in light of Watkins, 370 Or at 633, the
post-conviction court erred by ruling that Ramos does not
apply retroactively, and that “in the unique circumstances
of this case, this court should reverse and remand for the
parties to litigate, and the post-conviction court to resolve,
each of petitioner’s first four claims on its merits.” We agree
and, for that reason, remand for further proceedings.
Reversed in part; remanded for further proceed-
ings; otherwise affirmed.