Watkins v. Ackley ( 2022 )

604
Argued and submitted May 12, judgment of circuit court reversed, and case
remanded to circuit court for further proceedings December 30, 2022
JACOB KEITH WATKINS,
Petitioner-Appellant,
v.
Richard ACKLEY,
Superintendent,
Deer Ridge Correctional Institution,
Defendant-Respondent.
(CC 20CV27534) (CA A176245) (SC S068825)
523 P3d 86
Petitioner sought post-conviction relief on the ground that his four felony
convictions had been based on nonunanimous guilty verdicts and thus violated
the rule announced in Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206
L Ed 2d 583 (2020), that the Sixth Amendment prohibits conviction of a crime
by a nonunanimous verdict. The post-conviction court denied relief on that
claim, holding that the Ramos rule was inapplicable to petitioner’s convictions
because those convictions already were final when Ramos was decided. Petitioner
appealed, arguing that the post-conviction court had erred in concluding that the
jury unanimity rule that had been announced in Ramos did not apply retroac-
tively as a basis for post-conviction relief from convictions that already were final
when the rule was announced. Petitioner’s appeal was certified to the Supreme
Court under ORS 19.405, along with two other similar cases, Huggett v. Kelly,
(A174444)(S068823), and Jones v. Brown, (A175780)(S068824). Held: The post-
conviction court erred in denying relief on petitioner’s convictions, which were
entered on nonunanimous verdicts, because a conviction that violates the Ramos
jury unanimity rule, even if it became final before that rule was announced,
constitutes a “substantial denial” of a constitutional right which “rendered
the conviction[s] void,” and thus requires post-conviction relief under ORS
138.530(1)(a)—unless one of the procedural defenses in the Post-Conviction
Hearings Act has been raised and sustained.
The judgment of the circuit court is reversed, and the case is remanded to the
circuit court for further proceedings.
On certification from the Court of Appeals under ORS
19.405.* Certification accepted and under advisement on
September 16, 2021.
Ryan T. O’Connor, O’Connor Weber LLC, Portland, argued
the cause and filed the brief for appellant.
______________
* On appeal from the Jefferson County Circuit Court, Michael R. McLane,
Judge.
Cite as 370 Or 604 (2022) 605
Rebecca M. Auten, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent. Also
on the brief were Ellen F. Rosenblum, Attorney General,
Benjamin Gutman, Solicitor General, and Chris Perdue,
Assistant Attorney General.
Rosalind M. Lee, Portland, filed the brief for amicus cur-
iae Oregon Criminal Defense Lawyers Association.
Aliza Kaplan, Portland, filed the brief for amicus cur-
iae Criminal Justice Reform Clinic at Lewis & Clark Law
School. Also on the brief were Michaela C. Gore, Laney B.
Ellisor, Colin Bradshaw, and Bijal Patel.
Anna Sortun, Portland, filed the brief for amici curiae
Latino Network, Don’t Shoot Portland, NAACP Corvallis-
Albany Branch #1118, NAACP Eugene-Springfield Branch
#1119, NAACP Salem-Keizer Branch #1166, NAACP
Portland Chapter 1120B, Black Millennial Movement, Unite
Oregon, Immigrant and Refugee Community Organization,
and Urban League of Portland.
Before Walters, Chief Justice, and Balmer, Flynn,
Duncan, Nelson, and Garrett, Justices, and Baldwin, Senior
Judge, Justice pro tempore.**
BALMER, J.
The judgment of the circuit court is reversed, and the
case is remanded to the circuit court for further proceedings.
Baldwin, S. J., concurred and filed an opinion.
______________
** DeHoog, J., did not participate in the consideration or decision of this case.
606 Watkins v. Ackley
BALMER, J.
In Ramos v. Louisiana, 590 US ___, 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 that a jury reach a unanimous guilty
verdict to convict a defendant of a crime. Since that deci-
sion, this court, as the highest court in one of two juris-
dictions that have permitted criminal defendants to be
convicted by nonunanimous juries,1 has been dealing with
its implications. Until now, we have considered questions
about Ramos’s effect only in cases that have come before us
on direct appeal and review—that is, cases that were still
pending on appeal when Ramos was decided—meaning
that any violation of the rule announced in Ramos could
be raised before the judgment of conviction became final.
See, e.g., State v. Williams, 366 Or 495, 466 P3d 55 (2020)
(defendant’s conviction based on nonunanimous jury verdict
was plain error, and court’s exercise of discretion to review
the error and reverse the conviction was warranted); State
v. Ulery, 366 Or 500, 464 P3d 1123 (2020) (same); State v.
Flores Ramos, 367 Or 292, 478 P3d 515 (2020) (although jury
instruction that defendant could be convicted on nonunan-
imous jury verdict was constitutional error, defendant was
not entitled to reversal of conviction when jury’s guilty ver-
dict was unanimous; convictions based on nonunanimous
verdicts must be reversed). Today, we consider the effect of
Ramos in a case that comes to us in a different posture: an
appeal from a trial court’s rejection of a post-conviction peti-
tioner’s challenge to convictions that were obtained through
nonunanimous verdicts. Petitioner raised the issue as soon
as Ramos was decided—but years after the challenged
convictions had become final. The issue on appeal thus
1
Article I, section 11, of the Oregon Constitution expressly permits a crimi-
nal defendant to be convicted by a nonunanimous jury verdict, unless the charge
is first-degree murder. The relevant part of Article I, section 11, states:
“Provided, however, that in the circuit court ten members of the jury may
render a verdict of guilty or not guilty, save and except a verdict of guilty of
first[-]degree murder, which shall be found only by a unanimous verdict, and
not otherwise; provided further, that the existing laws and constitutional
provisions relative to criminal prosecutions shall be continued and remain
in effect as to all prosecutions committed before the taking effect of this
amendment.”
Cite as 370 Or 604 (2022) 607
concerns the so-called “retroactivity”2 of the constitutional
rule announced in Ramos in a post-conviction proceeding
under ORS 138.510 to 138.680.
The Court of Appeals certified the appeal to this
court, as provided in ORS 19.405. This court accepted the
certification, and we now hold that, when a petitioner seeks
post-conviction relief, on Sixth Amendment grounds, from a
judgment of conviction which was based on a nonunanimous
verdict and which became final before the Supreme Court’s
Ramos decision issued, the petitioner is entitled to relief—
assuming that none of the procedural defenses in the Post-
Conviction Hearings Act have been raised and sustained.
That is so because convicting a defendant on a nonunani-
mous jury verdict amounts to a “substantial denial in the
proceedings resulting in petitioner’s conviction * * * of peti-
tioner’s rights under the Constitution of the United States
* * * which denial rendered the conviction void,” for which
post-conviction relief “shall be granted.” ORS 138.530(1)(a).3
2
The term “retroactivity” is misleading. As the Supreme Court explained in
Danforth v. Minnesota, 552 US 264, 271, 128 S Ct 1029, 169 L Ed 2d 859 (2008):
“ ‘Retroactivity’ suggests that when we declare that a new constitutional rule
of criminal procedure is ‘nonretroactive,’ we are implying that the right at
issue was not in existence prior to the date the ‘new rule’ was announced.
But this is incorrect. As we have already explained, the source of a ‘new rule’
is the Constitution itself, not any judicial power to create new rules of law.
Accordingly, the underlying right necessarily pre-exists our articulation of
the new rule. What we are actually determining when we assess the ‘retroac-
tivity’ of a new rule is not the temporal scope of a newly announced right, but
whether a violation of the right that occurred prior to the announcement of
the new rule will entitle a criminal defendant to the relief sought.”
Because courts (including this court) have tended to use “retroactivity” as short-
hand for the concept, the term is difficult to avoid. But, when possible, we attempt
to describe the concept in more accurate terms.
3
In its entirety, ORS 138.530(1) provides:
“Post-conviction relief pursuant to ORS 138.510 to 138.680 shall be
granted by the court when one or more of the following grounds is established
by the petitioner:
“(a) A substantial denial in the proceedings resulting in petitioner’s con-
viction, or in the appellate review thereof, of petitioner’s rights under the
Constitution of the United States, or under the Constitution of the State of
Oregon, or both, and which denial rendered the conviction void.
“(b) Lack of jurisdiction of the court to impose the judgment rendered
upon petitioner’s conviction.
“(c) Sentence in excess of, or otherwise not in accordance with, the sen-
tence authorized by law for the crime of which petitioner was convicted; or
unconstitutionality of such sentence.
608 Watkins v. Ackley
I. HISTORICAL FACTS
In 2011, petitioner was convicted of four felonies, all
based on verdicts that were not unanimous. At that time,
the prevailing understanding was that a nonunanimous
guilty verdict did not violate a criminal defendant’s Sixth
Amendment right to a jury trial, Apodaca v. Oregon, 406
US 404, 92 S Ct 1628, 32 L Ed 2d 184 (1972), and petitioner
did not raise any objection to the nonunanimous verdicts
in the trial court, in his unsuccessful direct appeal, or in
the trial and appeal of his first, unsuccessful post-conviction
petition. But after the Supreme Court announced in Ramos
that the Sixth Amendment prohibited criminal convictions
based on nonunanimous verdicts, petitioner filed a second
post-conviction petition, raising claims that (1) his convic-
tions based on nonunanimous verdicts violated his Sixth
Amendment right to a jury trial; (2) because of the discrim-
inatory origins of Oregon’s constitutional provisions allow-
ing conviction by a nonunanimous verdict, his conviction
by a nonunanimous jury also violated his rights under the
Equal Protection Clause of the Fourteenth Amendment;
(3), (4) his trial and appellate counsel had each been consti-
tutionally inadequate in failing to raise challenges to the
nonunanimous guilty verdicts in anticipation of a change
in the Supreme Court’s view of the constitutionality of such
verdicts; and (5) the trial court’s instruction that the jury
could convict on nonunanimous verdicts constituted struc-
tural error.
The state moved for summary judgment on all
five claims.4 The state argued that petitioner’s equal pro-
tection claim was barred by the statute of limitations and
other procedural bars in the Post-Conviction Hearing Act
(PCHA), ORS 138.510 to 138.680,5 but it notably did not
raise those procedural bars against petitioner’s remaining
claims. On the inadequate assistance of counsel claims, the
“(d) Unconstitutionality of the statute making criminal the acts for
which petitioner was convicted.”
4
While ORS 138.570 provides that a petition for post-conviction relief “shall
name as defendant the official charged with the confinement of the petitioner,” in
this opinion, we refer to “the state” as the defendant.
5
The state also argued that petitioner had failed to present evidence of any
disparate impact that would support an equal protection claim.
Cite as 370 Or 604 (2022) 609
state argued that, given the state of the law at the time of
petitioner’s trial and appeal, counsel had not been constitu-
tionally deficient in failing to challenge the constitutionality
of petitioner’s convictions by nonunanimous verdicts and, in
any event, petitioner had not been prejudiced by counsels’
failure to raise such challenges. And on the two claims that
relied directly on Ramos—the first and fifth claims just
outlined—the state argued that: (1) under then-applicable
federal analysis, the rule announced in Ramos would not
apply “retroactively” to convictions that already were final
when that case was decided because the rule is neither a
new substantive rule of constitutional law nor a new “water-
shed” rule of criminal procedure implicating the fundamen-
tal fairness and accuracy of the criminal proceeding;6 and
(2) under Page v. Palmateer, 336 Or 379, 386, 84 P3d 133
(2004), that, at least for new rules of criminal procedure
that are drawn from the United States Constitution, fed-
eral retroactivity analysis applies in petitioner’s state post-
conviction proceeding.7
Petitioner conceded that the two inadequate assis-
tance claims could not be sustained but resisted the motion
for summary judgment as it applied to the remaining claims,
arguing, on various grounds, that post-conviction relief is
available in Oregon for petitioners whose convictions were
obtained in violation of the rule announced in Ramos, even
for convictions that became final before the Ramos decision
issued. The post-conviction court granted the state’s motion
for summary judgment, briefly explaining that, in its view,
(1) the rule in Ramos “does not apply retroactively to cases
6
See Teague v. Lane, 489 US 288, 311-13, 109 S Ct 1060, 103 L Ed 2d 334(1989) (describing the general rule in federal habeas corpus proceedings that
newly announced constitutional rules do not apply retroactively to convictions
that already were final when rule was announced, with exceptions for new
substantive rules and “watershed” rules of criminal procedure). The Supreme
Court has since abandoned the “watershed” rules of criminal procedure excep-
tion, Edwards v. Vannoy, ___ US ___, 141 S Ct 1547, 1560, 209 L Ed 2d 651(2021), meaning that, in federal habeas cases, only new substantive rules apply
retroactively.
7
The state acknowledged that, shortly after this court concluded in Page that
Oregon was bound to apply the federal retroactivity rule in state post-conviction
proceedings, the Supreme Court announced in Danforth, 552 US at 280-81, that
state courts are free to apply broader retroactivity rules in their own state’s post-
conviction proceedings. But the state argued that, because Page was this court’s
last word on the issue, it still controlled in Oregon.
610 Watkins v. Ackley
on collateral review”; and (2) petitioner had not produced
evidence sufficient to create an issue of fact as to whether he
could not have reasonably raised his equal protection claim
at an earlier time or proceeding.
Petitioner filed a notice of appeal and then moved
jointly with the state for certification of the appeal to this
court, as provided in ORS 19.405 and ORAP 10.10. As noted,
the Court of Appeals granted that motion and certified
the appeal, and this court accepted the Court of Appeals’
certification.
Before this court, petitioner challenges only the
post-conviction court’s refusal to grant relief on his first
claim—the claim that, because his convictions were based
on nonunanimous jury verdicts, they were obtained in
violation of the Sixth Amendment, which is applicable to
defendants under the Fourteenth Amendment, as decided
in Ramos. Because the import of Ramos is undeniable and
the state has not argued that some other bar to relief (such
as the res judicata bars set out in ORS 138.550) applies,8
the issue before this court is a narrow one: Did the post-
conviction court err in denying relief for that constitutional
violation, based on its conclusion that the rule of Ramos
“does not apply retroactively” to convictions that already
were final when Ramos issued?
II. LEGAL BACKDROP
On the question whether a convicted person can
obtain retroactive relief in post-conviction for the state’s vio-
lation of a federal constitutional rule that was not judicially
recognized until after the person was convicted, Oregon law
is not clear. Much of the confusion stems from uncertainty
about whether and how the federal “retroactivity” doctrine is
binding in state court proceedings. As we described in Chavez
8
Neither is there any question that Ramos announced a new constitutional
rule, rather than simply applying an existing rule to a particular set of facts. See
Chaidez v. United States, 568 US 342, 347-48, 133 S Ct 1103, 185 L Ed 2d 149(2013) (explaining that “retroactivity” issue pertains only to newly announced
constitutional rule, not when constitutional principle established in an earlier
decision is applied to a different set of facts). In Edwards, ___ US ___, 141 S Ct
1547, the Supreme Court concluded that, because the constitutional rule stated
in Ramos was not dictated by precedent existing at the time of the defendant’s
conviction, it was, in fact, a “new rule.” ___ US at ___, 141 S Ct at 1555-56.
Cite as 370 Or 604 (2022) 611
v. State of Oregon, 364 Or 654, 664-68, 438 P3d 381 (2019),
the federal retroactivity doctrine evolved in the context of
federal habeas corpus proceedings at a time when the United
States Supreme Court was both expanding the list of federal
constitutional rights that were applicable to the states and
thus could be raised in federal habeas, and removing proce-
dural barriers that had prevented federal habeas petition-
ers from raising “new” constitutional arguments. The grow-
ing possibility of using federal habeas to obtain retroactive
relief based on newly announced constitutional rules inevi-
tably clashed with traditional concerns about the finality of
judgments in criminal proceedings. Id. The Court sought to
resolve that conflict in Linkletter v. Walker, 381 US 618, 85
S Ct 1731, 14 L Ed 2d 601 (1965), holding that courts had
discretion to determine whether a newly announced consti-
tutional rule could be used to obtain retroactive relief, based
on their own weighing of three factors: the new rule’s pur-
pose; the effect of its retroactive application on the admin-
istration of justice; and the reliance of law enforcement
authorities on any prior standard. Id. at 629.
Some years later, recognizing that application of
that discretionary analysis had led to inconsistent results,
the Court announced a more systematic set of rules in
Griffith v. Kentucky, 479 US 314, 107 S Ct 708, 93 L Ed 2d
649 (1987), and Teague v. Lane, 489 US 288, 109 S Ct 1060,
103 L Ed 2d 334 (1989). Under Griffith, a newly announced
constitutional rule would apply in all cases still pending on
direct appeal when the rule was announced. 479 US at 328.
Under Teague, newly announced constitutional rules would
not apply retroactively in collateral review proceedings, with
two exceptions. First, new “substantive” rules, i.e., rules
that “place certain kinds of primary, private individual con-
duct beyond the power of the criminal law-making author-
ity to proscribe,” would always provide a basis for relief on
collateral review. 489 US at 307. Second, “watershed rules
of criminal procedure” that “alter our understanding of the
bedrock procedural elements essential to a fair trial” would
similarly provide a basis for retroactive relief. Id. at 311.
Recently, the Court abandoned the “watershed rules
of criminal procedure” exception as “moribund,” explaining
that, because it had never found a new criminal procedure
612 Watkins v. Ackley
rule that fit within that exception in the 30-odd years since
the exception was announced, it could not “responsibly con-
tinue to suggest” that a new rule could satisfy the exception.
Edwards v. Vannoy, ___ US ___, 141 S Ct 1547, 1559-60, 209
L Ed 2d 651 (2021). Thus, as things now stand in federal
habeas proceedings, new constitutional rules of criminal
procedure never provide a basis for retroactive relief, while
new constitutional rules that are substantive always pro-
vide a basis for retroactive relief.
But what about state collateral review proceedings—
and, particularly, proceedings under Oregon’s PCHA? While
Linkletter and Teague both set out rules for determining
which federal constitutional violations could be remedied
retroactively in federal appeal and habeas proceedings, nei-
ther case addressed whether states must or could provide
retroactive remedies for the same constitutional violations
in their own post-conviction proceedings.
In fact, even as the Supreme Court was first devel-
oping its retroactivity doctrine, it expressly disavowed
any intention to impose the retroactivity rules that it had
designed for federal appeals and habeas proceedings on
the states. See Johnson v. New Jersey, 384 US 719, 733, 86
S Ct 1772, 16 L Ed 2d 882 (1966) (“Of course, States are
still entirely free to effectuate under their own law stricter
standards than those we have laid down and to apply those
standards in a broader range of cases than is required by
this decision.”). After Teague, the Court clarified and refined
its thinking on that issue. In Danforth v. Minnesota, 552 US
264, 278-79, 128 S Ct 1029, 169 L Ed 2d 859 (2008), the
Court explained that Teague’s general rule of nonretroac-
tivity had been derived from the federal habeas statute and
therefore limited only the scope of federal habeas relief,
leaving states free to apply new constitutional rules retro-
actively in state post-conviction proceedings. On the other
hand, the Court explained in Montgomery v. Louisiana, 577
US 190, 200-05, 136 S Ct 718, 193 L Ed 2d 599 (2016), that
the exception announced in Teague for new “substantive”
rules to the general rule of nonretroactivity rested on con-
stitutional grounds, meaning that states must apply such
new substantive rules retroactively in their own collateral
proceedings.
Cite as 370 Or 604 (2022) 613
Although the Supreme Court’s view that its ret-
roactivity doctrine was in some respects not binding in
state collateral proceedings thus became ever clearer, this
court’s cases were not always in accord. Early on, in State
v. Fair, 263 Or 383, 387-88, 502 P2d 1150 (1972), this court
announced two conclusions that it drew from its own prece-
dents regarding retroactivity:
“First, we are free to choose the degree of retroactivity or
prospectivity which we believe appropriate to the partic-
ular rule under consideration, so long as we give federal
constitutional rights at least as broad a scope as the United
States Supreme Court requires. Secondly, we have tended
to restrict the retroactive application of newly announced
rights, giving them only the application which the Supreme
Court has adopted as a minimum.”
Notably, that pronouncement in Fair was dictum, given
that the new constitutional rule at issue in the case was
not derived from federal constitutional rights. With respect
to the new state constitutional rule that was at issue in the
case (the former jeopardy rule drawn from Article I, section
12, of the Oregon Constitution in State v. Brown, 262 Or 442,
497 P2d 1191 (1972)), the court announced that the “deter-
mination of retroactivity or prospectivity is for us alone”—
but declared that it would nevertheless look to the Supreme
Court’s cases pertaining to federal constitutional rules for
guidance. Fair, 263 Or at 388. Ultimately, the court applied
the three-factor Linkletter analysis to resolve the retroac-
tivity issue that was before it and held that, on balance, the
new rule would apply only when the prosecution on which
the former claim was based began after the date that Brown
was decided. Id. at 389.9 Notably, the three-factor retroac-
tivity analysis used in Fair was not applied by this court in
any later case.
Some thirty years later, after the Supreme Court
had abandoned the Linkletter retroactivity analysis in favor
9
It is worth noting that Fair’s ultimate holding is in conflict with the ratio-
nale underpinning the Supreme Court’s later decision in Griffith, which holds—on
the ground that similarly situated defendants should be treated the same—that
“a new rule for the conduct of criminal prosecutions is to be applied retroactively
to all cases, state or federal, pending on direct review or not yet final.” 479 US at
328.
614 Watkins v. Ackley
of the rules announced in Teague, we concluded that, while
Oregon courts are free to apply their own retroactivity anal-
yses to new rules of Oregon constitutional law (as stated in
Fair), they do not have the same freedom with respect to
new rules of federal constitutional law—they must apply
Teague. Page, 336 Or at 386-87. Thereafter, Oregon courts
applied the federal Teague analysis to determine the retro-
activity of new rules of federal constitutional law in state
post-conviction proceedings and denied retroactive appli-
cation of any new constitutional rule of criminal procedure
that did not qualify as a “watershed” rule, i.e., a rule “with-
out which the likelihood of an accurate conviction is seri-
ously diminished.” Id. at 389. See also Miller v. Lampert,
340 Or 1, 125 P3d 1260 (2006) (applying Teague rules to
determine that new federal constitutional rule announced
in Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147
L Ed 2d 435 (2000), does not apply retroactively in Oregon
post-conviction proceeding); Peed v. Hill, 210 Or App 704,
153 P3d 125, rev den, 343 Or 33 (2007) (applying Teague
rules to determine that new federal constitutional rule
announced in Crawford v. Washington, 541 US 36, 124 S Ct
1354, 158 L Ed 2d 177 (2004), does not apply retroactively in
Oregon post-conviction proceeding). Although the Supreme
Court subsequently held, in Danforth, that Teague does not
“limit a state court’s authority to grant relief for violations
of new rules of constitutional law when reviewing its own
state’s convictions,” 552 US at 280-81,10 and although this
court acknowledged that holding in Verduzco v. State of
Oregon, 357 Or 553, 555, 355 P3d 902 (2015), this court has
yet to determine whether and when a remedy is available in
an Oregon post-conviction proceeding for a past violation of
newly announced federal constitutional rule.11
That issue loomed in the background of two cases
that we have decided since Danforth, but neither case required
a comprehensive answer to the question. In Verduzco, 357
10
In Danforth, the Supreme Court also specifically referred to Page’s conclu-
sion that state courts are bound to apply Teague in state post-conviction proceed-
ings as “misguided.” 552 US at 277 n 14.
11
In the absence of a decision by this court on that issue, the Court of Appeals
has continued to apply the federal retroactivity analysis, i.e., Teague. See, e.g.,
Saldana-Ramirez v. State of Oregon, 255 Or App 602, 607-08, 298 P3d 59, rev den,
354 Or 148 (2013).
Cite as 370 Or 604 (2022) 615
Or 553, we allowed review to consider whether and in what
circumstances post-conviction relief was available based on
a new constitutional rule announced after the petitioner’s
convictions were final, but we concluded that the case was
resolved by the statutory bar at ORS 138.550(3) against suc-
cessive post-conviction petitions. In Chavez v. State of Oregon,
364 Or 654, 438 P3d 381 (2019), the petitioner raised a ret-
roactivity issue, but argued only that two specific provisions
of the PCHA required that every new federal constitutional
rule apply retroactively in post-conviction. We rejected the
petitioner’s broad interpretation of the two PCHA provisions
but left room for other retroactivity theories—including ones
that might rely on different provisions of the PCHA or more
particularized interpretations of the same provisions.
One final piece of legal background information is
relevant to the particular new constitutional rule at issue in
this certified appeal. A year ago, in Edwards, the Supreme
Court decided that the new federal constitutional rule at
issue in this case—the jury unanimity rule announced in
Ramos—does not apply retroactively on federal collateral
review. ___ US at ___, 141 S Ct at 1551. As noted above, the
Court simultaneously abandoned, for federal habeas pur-
poses, the “watershed rules of criminal procedure” exception
to the general rule of nonretroactivity announced in Teague,
stating that, thereafter, “new procedural rules do not apply
retroactively on federal collateral review.” Edwards, ___ US
at ___, 141 S Ct at 1561.
III. ARGUMENTS AND ANALYSIS
Petitioner’s sole contention on appeal is that the
trial court erred in denying post-conviction relief from
convictions obtained in violation of the rule announced in
Ramos, on the ground that “Ramos * * * does not apply ret-
roactively to cases on collateral review.” Petitioner observes
that, while the Supreme Court concluded in Edwards that
Ramos is not retroactively applicable in federal habeas pro-
ceedings, it also confirmed what it previously had stated—
that “states remain free, if they choose, to retroactively
apply the jury-unanimity rule as a matter of state law in
state post-conviction proceedings.” ___ US at ___ n 6, 141
S Ct at 1559 n 6 (citing Danforth, 552 US at 282). Petitioner
616 Watkins v. Ackley
argues that the Oregon legislature already has made that
choice, by enacting a statute—the PCHA—that requires
retroactive application in post-conviction of any new fed-
eral constitutional rule of criminal procedure and that the
Supreme Court has clearly identified Ramos as announcing
such a rule. See id. at 1556 (“Ramos plainly announced a
new rule [of criminal procedure] for purposes of this court’s
retroactivity doctrine”).
Petitioner further argues that, if this court deter-
mines that the PCHA does not require that relief be granted
in post-conviction for all newly announced constitutional
rules, thus leaving it to this court to determine what retro-
activity rule applies, then it should determine the retroac-
tivity issue under the Linkletter rule, used by this court in
Fair, which properly balances the state’s interest in final-
ity of judgments against considerations of fairness and
justice—or, barring that, the rule in Teague. Petitioner con-
tends that, under either of those approaches to retroactivity,
retroactive relief in post-conviction would be available for
a past violation of the jury unanimity rule announced in
Ramos.
The state responds that petitioner’s theory about
the PCHA is incorrect and inconsistent with this court’s
decision in Chavez, and that, in fact, the legislature had
entirely the opposite intent in enacting the PCHA than the
one that petitioner contends for—an affirmative intent to
preclude retroactive post-conviction relief when the federal
constitution itself would not require such retroactive relief.
And, the state adds, to the extent that this court does not
agree with that interpretation of the statute, it should sim-
ply adopt Teague as the proper analytical framework for
deciding issues of retroactivity and conclude, as the United
State Supreme Court decided in Edwards, that Ramos does
not apply retroactively.
A. The Parties’ Arguments About the Meaning and Effect of
the PCHA
Petitioner first argues that, in ORS 138.550, the
PCHA itself instructs that any violation of a newly announced
constitutional rule of criminal procedure may be remedied
in post-conviction proceedings, as long as the issue could
Cite as 370 Or 604 (2022) 617
not reasonably have been raised at an earlier time or in an
earlier proceeding. Although petitioner acknowledges that,
in Chavez, this court rejected a similar argument, based on
two other provisions of the PCHA, he observes that the hold-
ing in Chavez was intentionally narrow—stating that the
analysis was sufficient to answer the sole retroactivity ques-
tion that the petitioner had raised in his briefs, i.e., whether
the two provisions at issue there require that all new consti-
tutional rules be applied retroactively. 364 Or at 679.
As noted, petitioner here relies on ORS 138.550,
which lists various res judicata bars to post-conviction relief,
but also provides an exception, for each of those procedural
bars, for “ground[s] for relief” that could not reasonably
have been raised at an earlier time or proceeding. Petitioner
notes that the list of the procedural bars in ORS 138.550 is
prefaced with the following instruction: “The effect of prior
judicial proceedings concerning the conviction of [the] peti-
tioner which is challenged in the petition shall be as speci-
fied in this section and not otherwise.”12 (Emphasis added.)
12
ORS 138.550 provides, in part:
“The effect of prior judicial proceedings concerning the conviction of peti-
tioner which is challenged in the petition shall be as specified in this section
and not otherwise:
“(1) The failure of petitioner to have sought appellate review of the con-
viction, or to have raised matters alleged in the petition at the trial of the
petitioner, shall not affect the availability of relief under ORS 138.510 to
138.680. But no proceeding under ORS 138.510 to 138.680 shall be pursued
while direct appellate review of the conviction of the petitioner, a motion for
new trial, or a motion in arrest of judgment remains available.
“(2) When the petitioner sought and obtained direct appellate review of
the conviction and sentence of the petitioner, no ground for relief may be
asserted by petitioner in a petition for relief under ORS 138.510 to 138.680
unless such ground was not asserted and could not reasonably have been
asserted in the direct appellate review proceeding. If petitioner was not rep-
resented by counsel in the direct appellate review proceeding, due to lack of
funds to retain such counsel and the failure of the court to appoint counsel for
that proceeding, any ground for relief under ORS 138.510 to 138.680 which
was not specifically decided by the appellate court may be asserted in the
first petition for relief under ORS 138.510 to 138.680, unless otherwise pro-
vided in this section.
“(3) All grounds for relief claimed by petitioner in a petition pursuant to
ORS 138.510 to 138.680 must be asserted in the original or amended peti-
tion, and any grounds not so asserted are deemed waived unless the court on
hearing a subsequent petition finds grounds for relief asserted therein which
could not reasonably have been raised in the original or amended petition.
However, any prior petition or amended petition which was withdrawn prior
618 Watkins v. Ackley
Petitioner contends that that prefatory sentence establishes
that the legislature intended the statute as a comprehen-
sive expression of when a petitioner could obtain post-
conviction review on the merits of a ground for relief after
prior judicial proceedings had concluded—thus precluding
the adoption of additional procedural bars, such as the ret-
roactivity doctrine, to a court’s review of a post-conviction
claim on the merits. In other words, petitioner argues, the
legislature intended the procedural bars (and the escape
clauses) in ORS 138.550 (and, in addition, the statute of
limitations set out in ORS 138.510(3)) to be the exclusive
means for determining questions pertaining to when a peti-
tioner must or may assert a ground for relief—including
questions pertaining to the availability of retroactive relief
based on a constitutional rule adopted after the petition-
er’s conviction became final or after a first post-conviction
petition.
Although we find petitioner’s interpretation of ORS
138.550 to be unpersuasive for a number of reasons, we focus
on one logical flaw in his broader theory. Even if we were to
accept petitioner’s contention that ORS 138.550 precludes
application of any procedural bar to review (including the
common-law retroactivity doctrine) not expressly mentioned
therein, that would still not explain why a post-conviction
court must always grant relief for a newly announced consti-
tutional rule in the first place. Petitioner appears to rely on
ORS 138.530(1)(a) to bridge that gap, concluding at the end
of his statutory argument here that,
“[b]ecause petitioner’s ground for relief is not procedurally
barred by any provision of the PCHA, the post-conviction
court must reach the merits of the ground and ‘shall’ grant
relief if petitioner establishes a federal constitutional viola-
tion that rendered the conviction void. ORS 138.530(1)(a).”
In thus relying on ORS 138.530(1)(a) for the neces-
sary premise that a post-conviction court must grant relief
whenever a petitioner establishes a violation of a new fed-
eral constitutional rule, petitioner ignores this court’s deci-
sion in Chavez. In Chavez, the petitioner similarly asserted
to the entry of judgment by leave of the court, as provided in ORS 138.610,
shall have no effect on petitioner’s right to bring a subsequent petition.”
Cite as 370 Or 604 (2022) 619
that ORS 138.530(1)(a) requires that all new constitutional
rules be applied retroactively in post-conviction proceed-
ings, relying, as petitioner appears to here, on the directive
that post-conviction relief “shall be granted when” a peti-
tioner establishes “a substantial denial[,] in the proceedings
resulting in [the] petitioner’s conviction[,]” of the petitioner’s
state or federal constitutional rights that “rendered the con-
viction void.” 364 Or at 675-76 (quoting ORS 138.530(1)(a)).
This court rejected that theory, noting, among other things,
that the sweeping claim regarding all new or expanded con-
stitutional rules did not appear to comport with apparent
limitations in the text of the provision—which refers to “sub-
stantial denial[s]” of constitutional rights that “rendered the
conviction void.”13 364 Or at 676. The court then rejected the
petitioner’s contention that the PCHA likely incorporated a
rule that all new constitutional rules applied retroactively
in post-conviction because it was enacted at a time when—
according to the petitioner—that was the practice in habeas
proceedings: It concluded that, in 1959, there was no clear
pattern of applying new constitutional rules retroactively in
state or federal habeas proceedings. Chavez, 364 Or at 675,
677-78. Finally, the court suggested that the petitioner’s
absolute rule could not be easily reconciled with this court’s
statement, in Fair, that “we are free to choose the degree of
retroactivity or prospectivity which we believe appropriate
to the particular rule under consideration, so long as we give
federal constitutional rights at least as broad a scope as the
United States Supreme Court requires.” 364 Or at 678 (quot-
ing Fair, 263 Or at 387-88).
Accordingly, we reject petitioner’s contention that
ORS 138.550 requires courts to grant retroactive post-
conviction relief for any denial at trial of a constitutional
right that could not reasonably have been raised at an ear-
lier time.
13
The court in Chavez also rejected the petitioner’s contention that ret-
roactive application of all new federal constitutional rules is required by ORS
138.530(2), which provides that the PCHA “shall not be construed to deny relief
where such relief would have been available prior to May 26, 1959, under the writ
of habeas corpus.” The court concluded that the provision referred to the state
writ of habeas corpus and that there was nothing to indicate that, before 1959,
Oregon courts granted retroactive relief in habeas decisions based on any, much
less all, new constitutional rules. 364 Or at 671-74.
620 Watkins v. Ackley
While petitioner has not argued for a narrower
interpretation of the PCHA under which only some new con-
stitutional rules, including the new rule at issue here, must
be applied retroactively, the state seeks to foreclose the pos-
sibility of such an interpretation. The state contends that,
when the text of ORS 138.530(1)(a) is considered in light of
its context, it is clear that the legislature did not intend to
require retroactive relief in post-conviction for a violation of
any new federal constitutional rules when the federal con-
stitution does not require such retroactive relief. In a nut-
shell, the state relies on a series of evidentiary premises:
(1) in specifying that relief shall be granted for a “substantial
denial” of a petitioner’s constitutional rights that “renders
the conviction void,” ORS 138.530(1)(a) is invoking judicial
precedents in habeas corpus cases, thus defining the avail-
ability of relief in terms of circumstances for which relief
traditionally was available in habeas; (2) the commentary in
Jack G. Collins and Carl R. Neil, The Oregon Postconviction
Hearing Act, 39 Or L Rev 337, 345 (1960) (Collins & Neil)
confirms that the legislature intended to invoke this court’s
habeas cases as an aid to interpretation, that is, to incorpo-
rate the substantive aspects of common-law post-conviction
remedies, primarily habeas corpus;14 (3) in various cases
that consider provisions of the PCHA, this court has stated
that the statute overall was enacted for the purpose of pro-
viding a single, exclusive statutory post-conviction remedy,
Parker v. Gladden, 245 Or 426, 429, 407 P2d 246 (1965),
rev’d on other grounds, 385 US 363, 87 S Ct 468, 17 L Ed
2d 429 (1966), but one that would be adequate for prisoners
seeking to raise federal constitutional defects in their con-
victions, Bartz v. State of Oregon, 314 Or 353, 361, 839 P2d
217 (1992), as the federal Constitution seemed to require,
Collins & Neil, 39 Or L Rev at 337; and (4) in Fair, 263 Or
at 388, this court had noted that it had “tended to restrict
the retroactive application of newly announced rights, giv-
ing them only the application which the Supreme Court has
adopted as a minimum.”
14
Because the authors were involved in the drafting of the PCHA, this court
has often considered the Collins & Neil article as important context when inter-
preting a provision of the PCHA. Strasser v. State of Oregon, 368 Or 238, 264, 489
P3d 1025 (2021).
Cite as 370 Or 604 (2022) 621
Taken together, the state asserts, that textual and
contextual evidence shows that the legislature “did not
intend to provide greater relief for federal violations than
the federal constitution requires.” Applying that suggested
interpretation of ORS 138.530(1)(a) and the PCHA in gen-
eral, the state concludes that, because the federal constitu-
tion does not require retroactive relief in habeas based on
the unanimous jury requirement announced in Ramos, nei-
ther does the PCHA.
The state’s argument regarding the meaning and
effect of ORS 138.530(1)(a) is simply not supported by the
evidence offered. To the extent that the state is suggesting
that the provision, read in context, expresses an affirmative
legislative intent that Oregon post-conviction courts cannot
provide greater relief for federal violations than the federal
constitution requires, it is clearly mistaken: While the cited
material does suggest that the legislature intended that
relief be granted for constitutional violations that would be
remedied in traditional habeas proceedings and particu-
larly in federal habeas, nothing in that material suggests a
purpose of limiting the availability of relief in proceedings
under the PCHA to constitutional defects for which relief
in federal habeas would be available. And because we do
not accept the state’s theory that ORS 138.530(1)(a) ties
the availability of post-conviction relief for a violation of a
federal constitutional rule to the availability of relief for
the same violation in federal habeas, we do not agree that
the provision somehow precludes any interpretation of the
PCHA that would require post-conviction courts to grant
relief for a federal constitutional defect when relief would
not be available under the federal constitution.
B. If the PCHA does not either require or preclude retroac-
tive relief in post-conviction for all new federal consti-
tutional rules, does it require retroactive relief for some
such rules?
Petitioner argues that, if this court concludes that
the PCHA does not require retroactive application in post-
conviction of all new constitutional rules, then it must deter-
mine for itself when retroactive application of new federal
constitutional rules is required in Oregon post-conviction
622 Watkins v. Ackley
proceedings.15 He contends that this court should adopt a
test for determining the retroactivity of new federal consti-
tutional rules that, in his view, is consistent with Oregon law
and that appropriately balances the state’s interest in the
finality of judgments with the interests of post-conviction
petitioners and society at large in vindicating the constitu-
tional rights of criminal defendants—the test drawn from
Linkletter, 381 US 618, that this court used in Fair, 263 Or
at 388-90. And he contends that, under such a rule—and
even under the Teague test—a violation, at trial, of the jury
unanimity requirement announced in Ramos would consti-
tute grounds for relief in a post-conviction proceeding under
the PCHA.
While, in so arguing, petitioner focuses on common-
law rules, drawn from Linkletter by way of Fair and, alterna-
tively, Teague, we conclude that the test for determining ret-
roactivity resides in the directive in ORS 138.530(1)(a) that
post-conviction relief be granted when a petitioner estab-
lishes “a substantial denial[,] in the proceedings resulting in
petitioner’s conviction[,] * * * of petitioner’s rights under the
Constitution of the United States, or under the Constitution
of the State of Oregon, or both, and which denial rendered
the conviction void.” We do not mean to suggest that the leg-
islature enacted that provision with the specific intent that
a post-conviction court be required to determine the avail-
ability of retroactive relief based on every newly announced
or expanded constitutional rule. Indeed, given the history of
the retroactivity doctrine that we have summarized above,
370 Or at 610-15, it seems unlikely that the legislature would
have had that doctrine in mind when it enacted the PCHA.
But ORS 138.530(1)(a) appears on its face to provide a gen-
eral standard for determining when the state’s violation of
a criminal defendant’s constitutional rights would require
relief in post-conviction, applicable to whatever variations
on that question might arise. In the absence of any indica-
tion of a contrary legislative intent, we assume that it can
be applied to determine when post-conviction relief must be
15
Petitioner reminds us that, under Danforth, 552 US at 280-81, and
Edwards, ___ US at ___ n 6, 141 S Ct at 1559 n 6, states are free to apply new fed-
eral constitutional rules retroactively in their own post-conviction proceedings
without regard to their retroactivity in federal habeas proceedings.
Cite as 370 Or 604 (2022) 623
granted for a denial of a petitioner’s constitutional rights
that was not recognized as such until after the petitioner’s
conviction became final. To determine whether and how the
statute might apply in those circumstances, we must con-
sider its intended meaning and scope.
Again, ORS 138.530(1)(a) provides:
“Post-conviction relief pursuant to ORS 138.510 to 138.680
shall be granted by the court when one or more of the fol-
lowing grounds is established by the petitioner:
“(a) A substantial denial in the proceedings resulting
in petitioner’s conviction, or in the appellate review thereof,
of petitioner’s rights under the Constitution of the United
States, or under the Constitution of the State of Oregon, or
both, and which denial rendered the conviction void.”
Under that provision, post-conviction relief is required
only for certain types or degrees of violations of a criminal
defendant’s constitutional rights. Taken in their ordinary
sense, the two phrases that are used to convey the relevant
limitations—“substantial denial” of constitutional rights
“which * * * rendered the conviction void”—suggest that the
legislature intended to limit the provision’s application to
constitutional defects that are consequential, i.e., not minor
or technical, and so serious that they would invalidate any
judgment of conviction resulting from a proceeding that
included such a defect. But in the absence of any explanation
in the statute, it is unclear what kind of defect would “ren-
der [a] conviction void.” Context, which includes cases that
have interpreted the provision and contemporaneous schol-
arly commentary, provides some assistance in that regard.
For the sake of efficiency, we first turn to the com-
mentary on ORS 138.530(1)(a) in Collins & Neil, which
describes the provision, in part, in relation to its neighbor,
ORS 138.530(1)(b), which requires post-conviction relief
when the petitioner establishes “[l]ack of jurisdiction of the
court to impose the judgment rendered upon petitioner’s
conviction”:
“The term ‘substantial denial’ in subsection (1)(a) * * * is
taken from the Illinois Act. Some technical violations of
624 Watkins v. Ackley
constitutional rights are not such as to prejudice the fair-
ness of the trial and do not tend to increase the possibility
of a miscarriage of justice. This section permits the courts
to determine which constitutional violations are serious
enough to merit postconviction relief. At the request of the
attorney general’s office, the House amended subsection (1)(a)
by adding the final phrase ‘which denial rendered the con-
viction void.’ The purpose of the amendment was to invoke
the judicial precedents in habeas corpus cases as an aid to
interpretation of the term ‘substantial denial of constitu-
tional rights.’
“Subsection (1)(b) codifies the traditional habeas corpus
terminology in stating a ground for relief. Cases involving
that remedy have developed a doctrine that a substantial
procedural error in the course of a criminal trial may cause
the trial court to lose jurisdiction to proceed further, even
though the court had jurisdiction at the beginning of the
trial. A judgment rendered after such a loss of ‘jurisdiction’
is void under this doctrine, and is subject to attack by habeas
corpus. Subsection (1)(b) and subsection (1)(a) may overlap
to a considerable extent, since many substantial denials of
constitutional rights would cause a court to lose jurisdic-
tion to render a judgment in the old habeas corpus sense.
However, the insertion of subsection (1)(b) should make it
clear that relief against a criminal conviction is not to be
denied under this act in any case where it would have pre-
viously been granted through habeas corpus.”
39 Or L Rev at 345 (emphasis added).
In Brooks v. Gladden, 226 Or 191, 359 P2d 1055(1961), decided shortly after the PCHA was enacted, this
court interpreted ORS 138.530(1)(a) in similar terms:
“The scope of subsection (1)(a), ORS 138.530 can best be
described in relation to subsection (1)(b). The latter subsec-
tion states the ground for relief in habeas corpus as that
extraordinary remedy was known at common law[, i.e., the
trial court’s lack of jurisdiction]. The scope of the writ of
habeas corpus was expanded, however, by Congress and
the United States Supreme Court to afford relief where the
trial court had jurisdiction initially but lost it by departing
from due process of law, thus rendering the judgment void.
The function of the writ was similarly extended by our own
cases to reach violations of the Oregon Constitution.
Cite as 370 Or 604 (2022) 625
“Subsection (1)(a) of ORS 138.530 states in substance the
principle announced in these latter cases, providing a post-
conviction remedy where there is a substantial denial of
rights protected by either the federal or state constitution.”
Id. at 195 (emphasis added; citations omitted). Those expla-
nations in Brooks and Collins & Neil both point to histori-
cal sources of the requirement in ORS 138.530(1)(a) that the
challenged constitutional error in the criminal proceedings
be one that “rendered the judgment void” and suggest that
the requirement must be interpreted in light of its histor-
ical use in habeas cases to signify a certain kind or qual-
ity of procedural error that causes the trial court to lose
“jurisdiction.”
As described in Brooks and Collins & Neil, the com-
mon law on which ORS 138.530(1)(b) was based held that
habeas corpus was available only to challenge a trial court’s
jurisdiction over the case, which, if absent, would render
the proceeding and resulting judgment “void.” But long
before the PCHA was enacted, courts had adopted a view
that went beyond the strict limits of a court that legally was
without jurisdiction to render a valid judgment, to encom-
pass the theory that is reflected in ORS 138.530(1)(a)—that
certain constitutional errors in criminal proceedings are of
such a magnitude that they should be viewed as, in effect,
stripping a court of its jurisdiction to enter judgment on a
conviction, thus rendering the conviction “void” and sub-
ject to challenge in habeas corpus. See, e.g., Huffman v.
Alexander, 197 Or 283, 297-99, 251 P2d 87 (1952) (citing and
discussing influence of United States Supreme Court cases
in which judgments of conviction were declared “void” and
thus reachable in habeas due to violation of the constitu-
tional rights of an accused person; holding that judgment of
conviction rendered upon an information without waiver of
indictment would be void and that petitioner therefore could
raise absence of valid waiver as ground for habeas relief).
On the other hand, “mere errors or irregularities which ren-
der the proceedings merely voidable” could not be reached in
habeas corpus. Smallman v. Gladden, 206 Or 262, 270, 291
P2d 749 (1955).16
16
When the cited cases speak of a conviction being rendered “void” by the
trial court’s loss of jurisdiction and contrast that with errors which merely render
626 Watkins v. Ackley
In Brooks, we noted that the types of procedural
errors that would render a judgment “void” were violations
of “due process of law.” 226 Or at 195 (explaining historical
expansion of habeas corpus “to afford relief where the trial
court had jurisdiction originally but lost it by departing
from due process of law”). We then explained that what due
process requires
“cannot be expressed in precise terms. Broadly speaking,
it denotes our sense of what constitutes fair play in the
legal procedures under which a man is tried. Expressed in
terms of the relief provided by the writ of habeas corpus, it
is said that the scope of the writ ‘is largely a reflection of
our contemporary attitudes towards an ideal of fairness in
the administration of justice.’ ”
Id. at 199 (citations omitted).17 Thus, we subsequently
announced, the question that ORS 138.530(1)(a) poses as to
whether a constitutional defect was a “substantial denial”
that “rendered the conviction void” is “one for judicial sense
of fairness, guided by our knowledge of the traditions which
have shaped our procedural rights and by our understand-
ing of the mechanics of trial procedures, including the func-
tioning of the jury in our present[-]day practice.” Id. at 204.18
the proceedings “voidable,” they do not mean that, regardless of whether any for-
mal judicial proceeding recognizes that fact, the conviction immediately becomes
a nullity and the convicted person can proceed as if it never had occurred.
17
In Brooks, we also explained that, although that standard is essentially the
same one that the United States Supreme Court had used to determine whether
a criminal procedure comports with due process, “this court’s application of the
standard of due process in a particular case may be at variance with that of the
Supreme Court.” 226 Or at 200.
18
Brooks clarifies that not every constitutional violation would be grounds for
post-conviction relief under that standard. There, we pointed to the longstand-
ing common-law rule that, save for cases involving “exceptional circumstances,”
habeas corpus is not available to correct errors that could have been raised in an
appeal. We added:
“We recognize that relief through the avenue of appeal is oftentimes open
where constitutional rights are violated in the course of the trial, but where
a denial of procedural due process is urged, the fact that a remedy by way of
appeal is provided is a factor to be weighed in determining whether mini-
mum procedural safeguards are present.”
226 Or at 203. In other words, while the availability of relief on appeal would
preclude post-conviction relief for some constitutional defects that might occur
in criminal proceedings, it would not preclude post-conviction relief for a con-
stitutional violation that infringes on “due process” in the sense that Brooks
describes—it offends our “judicial sense of fairness, guided by our knowledge of
Cite as 370 Or 604 (2022) 627
We concluded that the procedural error claimed by the post-
conviction petitioner who brought the case did not “render[ ]
the conviction void” under that standard and therefore was
not a ground for relief under ORS 138.530(1)(a).
The text and context of ORS 138.530(1)(a) point to
the same conclusions about the provision’s meaning. The
provision requires post-conviction relief only for denials of
a post-conviction petitioner’s constitutional rights that are
(1) substantial, i.e., consequential; and (2) offensive to our
sense of what is fundamentally fair in the context of crimi-
nal prosecutions, based on “the traditions that have shaped
our procedural rights and * * * our understanding of the
mechanics of trial procedures,” Brooks, 226 Or at 204, such
that we may consider the resulting conviction “void,” in the
sense described above.
We pause, at this point, to consider how that under-
standing of ORS 138.530(1)(a) meshes with our more recent
cases that have dealt with claims under that statute. We
note, first, that, while many post-conviction petitioners
might be able to point to constitutional errors in their trials
and appeals, they cannot obtain relief on a post-conviction
claim that is directed at those errors if the state raises
and prevails on one of the defenses set out in the PCHA.
The PCHA itself bars post-conviction claims asserted after
the two-year statute of limitations, ORS 138.510(3); claims
that were raised and considered in a direct appeal of the
underlying criminal case, ORS 138.550(2); and, if the peti-
tioner had filed an earlier post-conviction petition, claims
that were not raised in that petition, ORS 138.550(3). Yet
each of those statutory bars is subject to an exception for
claims that “could not reasonably have been raised” within
the limitations period, in the direct appeal, or in the ear-
lier post-conviction proceeding. For that reason, much post-
conviction litigation concerns whether one or more of those
statutory bars applies in a particular case or whether the
petition comes within an exception—which we often refer
to as an “escape clause”—because the claim “could not rea-
sonably have been raised” earlier. See, e.g., Gutale v. State
the traditions which have shaped our procedural rights and by our understand-
ing of the mechanics of trial procedures.” 226 Or at 204.
628 Watkins v. Ackley
of Oregon, 364 Or 502, 435 P3d 728 (2019) (applying escape
clause to permit post-conviction claim to proceed despite
statute of limitations, where petitioner alleged that he had
no basis for understanding that guilty plea would make
him eligible for deportation). And in many of those cases,
the petitioner asserts that counsel in the underlying crim-
inal case provided inadequate assistance—a claim that
ordinarily cannot be raised at trial or on appeal and thus
is more likely to fit within the exception to the statutory
bars just discussed. In Gutale, for example, the petitioner’s
claim was that his counsel was constitutionally inadequate
because he had failed to inform petitioner that his guilty
plea might have immigration consequences. As a result,
post-conviction claims asserting inadequate assistance of
counsel make up the vast majority of post-conviction cases
in which this court has decided a petitioner’s right to relief
under ORS 138.530(1)(a).
This court has long tested those inadequate assis-
tance of counsel claims under one of two two-part standards,
depending on whether the claim is brought under the Oregon
Constitution or the United States Constitution. In evaluating
a claim of inadequate assistance of counsel under Article I,
section 11, of the Oregon Constitution, we first determine
whether the petitioner has established that the lawyer failed
to exercise reasonable professional skill and judgment, and
then, if the answer is affirmative, we determine whether the
petitioner has established that counsel’s failure had a ten-
dency to affect the result of the trial. Montez v. Czerniak, 355
Or 1, 6-7, 322 P3d 487 (2014). In evaluating claims of inef-
fective assistance of counsel under the Sixth Amendment to
the United States Constitution, we apply the standard that
the United States Supreme Court announced in Strickland
v. Washington, 466 US 668, 104 S Ct 2052, 80 L Ed 2d 674(1984)—the petitioner must show both that counsel’s perfor-
mance “fell below an objective standard of reasonableness”
and a reasonable probability that, but for the unreasonable
performance, the result would have been different. Montez,
355 Or at 7-8 (quoting Strickland, 466 US at 688).
Our present interpretation of ORS 138.530(1)(a) as
requiring relief only for denials of constitutional rights that
are both substantial and offensive to our sense of what is
Cite as 370 Or 604 (2022) 629
fundamentally fair is consistent with the standards that we
apply to evaluate claims of inadequate assistance of counsel.
The state and federal standards for the constitutional inade-
quacy of counsel—both of which look at the objective reason-
ableness of counsel’s conduct of the petitioner’s defense and
at whether any failure in that regard was prejudicial—have
been used and, in the case of the standard under Article I,
section 11, fine-tuned, by this court over a 40-year period.
Those standards are helpful in determining whether there
has been a “substantial denial” of constitutional rights for
the particular category of post-conviction claims that they
are designed to address.
What is more, it is evident that any post-conviction
claim of ineffective assistance of counsel that meets those
standards necessarily meets the standard that we draw
from ORS 138.530(1)(a) today. Claims of ineffective assis-
tance of counsel ultimately rest on the right to counsel guar-
anteed by Article I, section 11, and the Sixth Amendment—a
right the denial of which in a criminal proceeding has long
been recognized as a denial of an essential component of
a fair trial, one of the “fundamental principles of liberty
and justice which lie at the base of all our civil and politi-
cal institutions.” Gideon v. Wainwright, 372 US 335, 341, 83
S Ct 792, 9 L Ed 2d 799 (1963). It also has been understood
that the right to the assistance of counsel that is essential
to fundamental fairness is a right to competent and effec-
tive assistance. Shipman v. Gladden, 253 Or 192, 198, 453
P2d 921 (1969); McMann v. Richardson, 397 US 759, 771
n 14, 90 S Ct 1441, 25 L Ed 2d 763 (1970). Thus, when post-
conviction petitioners establish that counsel did not pro-
vide competent and effective assistance at trial or at some
other critical point in the criminal proceedings, they have
essentially shown a substantial constitutional violation that
offends our “judicial sense of fairness,” in light of “the tradi-
tions that have shaped our procedural rights.” Brooks, 226
Or at 204. The two “reasonable performance plus prejudice”
standards that we employ when considering post-conviction
claims of ineffective assistance of counsel function as yard-
sticks for determining when some particular failing of coun-
sel amounts to ineffective assistance that offends that fun-
damental fairness standard. Cf. Strickland, 466 US at 686
630 Watkins v. Ackley
(announcing reasonable performance plus prejudice stan-
dard for assessing ineffective assistance claims after stat-
ing that “the benchmark for judging any claim of ineffec-
tiveness must be whether counsel’s conduct so undermined
the proper functioning of the adversarial process that the
trial cannot be relied on as having produced a just result”).
While we have applied, and will continue to apply,
the abovementioned standards for determining whether
a post-conviction petitioner has established a “substan-
tial denial * * * which * * * rendered the conviction void” in
the particular context of claims of inadequate assistance
of counsel, the standard that we draw from those words
today—which we have applied in our prior cases—is broadly
applicable to, and is the basic instrument for determining
a petitioner’s right to relief for, any post-conviction claim of
constitutional error. In our view, the interpretation of ORS
138.530(1)(a) that we apply in this case is consistent with
our existing post-conviction case law, including cases rais-
ing ineffective assistance of counsel claims and those rais-
ing other constitutional claims. We see no need, in deciding
this case, to modify or reconsider any of our prior decisions
interpreting that statutory provision.
Stated more simply, a petitioner seeking post-
conviction relief under ORS 138.530(1)(a) must establish a
denial of a constitutional right that was (1) consequential
in the criminal justice proceeding; and (2) offensive to our
“judicial sense of fairness, guided by our knowledge of the
traditions which have shaped our procedural rights and by
our understanding of the mechanics of trial procedures,
including the functioning of the jury in our present[-]day
practice.” Brooks, 226 Or at 204. Thus, whether we are con-
sidering a more commonly alleged constitutional violation,
such as inadequate assistance of counsel, or, as here, a pro-
cedure that was not recognized as a constitutional violation
until after the conviction being challenged became final, the
test for when post-conviction relief is required for a constitu-
tional defect is the same: Where the state has not asserted
and proved any of the procedural defenses set out in the
PCHA, a court must grant post-conviction relief for any
denial of a constitutional right that is both consequential
Cite as 370 Or 604 (2022) 631
and offensive to our “judicial sense” of what is fundamen-
tally fair in the context of criminal prosecutions, based on
the traditions that have determined what we recognize as a
defendant’s procedural rights.
IV. APPLICATION
We turn to the application of that construction of
ORS 138.530(1)(a) to petitioner’s claim that he is entitled to
retroactive relief in post-conviction for the trial court’s viola-
tion of the Sixth Amendment unanimous jury rule recently
announced in Ramos. We begin with the fact that the pro-
ceedings that resulted in petitioner’s convictions involved—
as do all trials for felonies in this state, by statute—a trial
by a 12-person jury, the members of which were drawn from
a randomly selected group of county residents and screened
for bias, and which may return a guilty verdict only on a
finding of guilt beyond a reasonable doubt. ORS 136.001;
ORS 136.210; ORS 136.220; ORS 10.215; ORS 136.415. If a
jury trial is used to determine a criminal defendant’s guilt or
innocence, then fundamental fairness requires that the jury
trial be one that incorporates any element that, according to
“the traditions that have shaped our procedural rights” is
essential to a fair jury trial. Brooks, 226 Or at 204.
The jury unanimity requirement is indisputably
such an element. Justice Kagan’s dissent in Edwards aptly
explains its centrality to our understanding of a fair and
reliable jury verdict. She quotes Blackstone for the proposi-
tion that a person can be punished for a crime “only when
‘the truth of an accusation’ is ‘confirmed by the unanimous
suffrage’ of a jury ‘of his equals and neighbors.’ ” ___ US at
___, 141 S Ct at 1576 (Kagan, J, dissenting) (quoting William
Blackstone, 4 Commentaries on the Laws of England 343
(1769)) (brackets omitted). And she points to the Court’s
decision in Brown v. Louisiana, 447 US 323, 100 S Ct 2214,
65 L Ed 2d 159 (1980), regarding the retroactivity of the
rule announced in Burch v. Louisiana, 441 US 130, 99 S Ct
1623, 60 L Ed 2d 96 (1979): that when a person is tried by
a six-person jury, the guilty verdict must be unanimous. In
Brown, Justice Kagan observes, the Court concluded that the
unanimity rule in that six-person jury context is “essential”
and must be applied retroactively because a nonunanimous
632 Watkins v. Ackley
jury “ ‘raises serious doubts about the fairness of a trial’ ”
and “fails to ‘assure the reliability of a guilty verdict.’ ” ___
US at ___, 141 S Ct at 1576-77 (quoting Brown, 447 US at
331) (brackets omitted). In other words, the requirement of a
unanimous guilty verdict has long been viewed as an essen-
tial part of a fair jury trial.
The logic of that view is evident. There is less risk
of an erroneous conviction by a 12-person jury that unan-
imously finds that a defendant is guilty beyond a reason-
able doubt than there is by a 12-person jury which cannot
unanimously make that finding. But there is another, per-
haps less immediately evident but nevertheless historically
important, way that the unanimity requirement safeguards
fundamental fairness: It helps ensure that a jury’s decision
is based on the evidence and not on racial or other similar
biases. Oregon, like most other United States jurisdictions,
has statutes that are directed at creating a jury pool that is
representative of the community, ORS 10.215, and at pro-
hibiting exclusion of jurors on the basis of “race, religion,
sex, sexual orientation, gender identity, national origin, age,
income, occupation or any other factor that discriminates
against a cognizable group in this state,” ORS 10.030(1). In
theory, those requirements lessen the likelihood of jury deci-
sions based on bias against a “cognizable group” of which
the defendant is a member. But, if a jury, however repre-
sentative of the community it might be, is not required to
reach unanimity, the majority can simply ignore the views
of the minority who do not share its biases and thus force a
decision that ultimately is based on prejudice. In that way,
as Justice Stewart explained in his dissent in Johnson v.
Louisiana, 406 US 356, 397-98, 92 S Ct 1620, 32 L Ed 2d 152(1972), a requirement that a jury reach a unanimous guilty
verdict ensures that juries operate fairly and that their deci-
sions are based on the evidence rather than biases—and
thus are more likely to be accurate.
And, with respect to our own state, that particu-
lar concern about the unfairness of permitting nonunan-
imous guilty verdicts is not merely theoretical. As the
Supreme Court recognized in Ramos, Oregon’s adoption, in
1934, of the constitutional amendment that ever since has
permitted conviction of most crimes by a nonunanimous
Cite as 370 Or 604 (2022) 633
jury,19 “can * * * be traced to the rise of the Ku Klux Klan
and efforts to dilute the influence of racial and ethnic and
religious minorities on Oregon juries.” ___ US at ___, 140
S Ct at 1394 (internal quotation marks omitted). In other
words, Oregon discarded the common-law unanimous
guilty verdict requirement—a requirement that Oregon
courts had recognized and applied in criminal trials from
the time Oregon’s Constitution went into effect in 1859 until
the adoption of the 1934 amendment20 —precisely because it
can prevent racial, religious, and other such majorities from
overriding the views of minorities in determining guilt or
innocence, a result that is offensive to our sense of what is
fundamentally fair.
We conclude that, when a criminal defendant’s
guilt or innocence is determined by means of a trial before
a 12-person jury, convicting the defendant on anything less
than a unanimous guilty verdict violates our sense of what
is fundamentally fair in a criminal proceeding, given “the
traditions that have shaped our procedural rights and * * *
our understanding of the mechanics of trial procedures.”
Brooks, 226 Or at 204.
A constitutional violation of that magnitude “ren-
der[s] the conviction void” within the meaning of ORS
138.530(1)(a)—even if it is raised after the post-conviction
petitioner’s conviction became final. And, unless the state
asserts and proves one of the procedural defenses set out in
the PCHA, a petitioner who establishes a violation of that
sort is entitled to relief, because ORS 138.530(1)(a) provides
that a post-conviction court “shall” grant relief for “a sub-
stantial denial” of petitioner’s constitutional rights “which
* * * rendered the conviction void.”
We recognize that our decision in this case will
likely lead to the reexamination of many judgments that
became final years or decades ago. But our analysis of ORS
19
On May 18, 1934, the people of Oregon adopted the amendment to Article I,
section 11, of the Oregon Constitution that permits conviction of a crime by a
nonunanimous jury—except when the charge is first-degree murder. The word-
ing of the amendment is set out above, 370 Or at 606 n 1.
20
Cf. State v. Newman, 109 Or 61, 69, 218 P 936 (1923) (holding that nonunan-
imous verdict instruction was not error in paternity case because, although some
jurisdictions treated such suits as criminal, they were considered civil in Oregon).
634 Watkins v. Ackley
138.530(1)(a), its grounding in the extraordinary remedy of
habeas corpus, and our application of that statute when the
violation of a constitutional right resulted in a criminal trial
that lacked the “fairness we expect in the administration of
justice,” Brooks, 226 Or at 204, compels our decision here.
The reasoning set out above and in Senior Judge Baldwin’s
concurring opinion support our conclusion that, in these cir-
cumstances, the important value of finality in the criminal
justice system must give way to the constitutional right to a
unanimous jury verdict.
Petitioner here is entitled to post-conviction relief
for the denial of his Sixth Amendment right to conviction
by a nonunanimous jury. The post-conviction court erred in
granting the state’s motion for summary judgment on peti-
tioner’s claim that raised that issue.
The judgment of the circuit court is reversed,
and the case is remanded to the circuit court for further
proceedings.
BALDWIN, J., concurring.
I agree with the majority’s view that petitioner is
entitled to post-conviction relief for the denial of his Sixth
Amendment right to conviction by a unanimous jury. In
reaching that decision, I recognize that it is not necessary for
the majority to fully discuss the pernicious discriminatory
purpose and effect of Oregon’s constitutional provision that
permits nonunanimous verdicts. I write separately because
I think that a commitment to the rule of law requires us,
as Oregonians, to better understand that troubled aspect of
our history lest we repeat it and yet again cause great injury
to our civic health by the adoption of an exclusionary law.
I. RAMOS
I begin with an examination of the extent to which
the Supreme Court in Ramos v. Louisiana, 590 US ___, 140
S Ct 1390, 206 L Ed 2d 583 (2020), expressly recognized
the discriminatory purpose and effect of Louisiana’s and
Oregon’s nonunanimous verdict laws.
In striking down Louisiana’s and Oregon’s nonunan-
imous verdict laws, the Ramos court announced that a jury
Cite as 370 Or 604 (2022) 635
must reach a unanimous verdict to convict and that the
“Sixth Amendment right to a jury trial is ‘fundamental to
the American scheme of justice’ and incorporated against
the States under the Fourteenth Amendment.” Ramos, 590
US at ___, 140 S Ct at 1397 (citing Duncan v. Louisiana, 391
US 145, 148-50, 88 S Ct 1444, 20 L Ed 2d 491 (1968)). While
the discriminatory purpose and effect of the nonunanimous
verdict law was not central to the Supreme Court’s legal
analysis, the Court considered that discriminatory purpose
and effect in reaching its decision. As pertinent here, the
Court asked an uncomfortable question: “Why do Louisiana
and Oregon allow nonunanimous convictions?” Ramos,
590 US at ___, 140 S Ct at 1394. The Court then candidly
answered that question:
“Though it’s hard to say why these laws persist, their origins
are clear. Louisiana first endorsed nonunanimous verdicts
for serious crimes at a constitutional convention in 1898.
According to one committee chairman, the avowed purpose
of that convention was to ‘establish the supremacy of the
white race,’ and the resulting document included many of
the trappings of the Jim Crow era: a poll tax, a combined
literacy and property ownership test, and a grandfather
clause that in practice exempted white residents from the
most onerous of these requirements. * * *
“Adopted in the 1930s, Oregon’s rule permitting non-
unanimous verdicts can be similarly traced to the rise of
the Ku Klux Klan and efforts to dilute ‘the influence of
racial, ethnic, and religious minorities on Oregon juries.’
In fact, no one before us contests any of this; courts in both
Louisiana and Oregon have frankly acknowledged that
race was a motivating factor in the adoption of their States’
respective nonunanimity rules.”
Id. (footnotes omitted).
Concurring opinions in Ramos also acknowledged
that those pernicious laws have successfully accomplished
that discriminatory purpose. Justice Kavanaugh empha-
sized that those laws have “allow[ed] convictions of some
who would not be convicted under the proper constitutional
rule, and [have] tolerate[d] and reinforce[d] a practice that
is thoroughly racist in its origins and [have] continuing
racially discriminatory effects[.]” Id. at ___, 140 S Ct at636 Watkins v. Ackley
1419 (Kavanaugh, J., concurring in part). Similarly, Justice
Sotomayor expressed her view that “the racially biased
origins of the Louisiana and Oregon laws uniquely matter
here.” Id. at ___, 140 S Ct at 1408 (Sotomayor, J., concurring
in part). This is so, in part, because Louisiana and Oregon
have not “truly grappled with the laws’ sordid history in
reenacting them.” Id. at ___, 140 S Ct at 1410 (Sotomayor, J.,
concurring in part).
That “sordid history” was only recently addressed
by both Louisiana and Oregon, which I will briefly discuss
before going into more detail on Oregon’s history. Before the
late 1800s, Louisiana required a unanimous jury verdict for
a felony conviction. See State v. Reddick, 351 So 3d 273, 277-
78 (La 2022). That changed, however, after ratification of the
Fourteenth Amendment and passage of the Civil Rights Act
of 1875, which prompted the United States Supreme Court
to prohibit states from barring Black jurors from jury ser-
vice entirely. Strauder v. West Virginia, 100 US 303, 25 L Ed
664 (1879), abrogated by Taylor v. Louisiana, 419 US 522, 95
S Ct 692, L Ed 2d 690 (1975); see Reddick, 351 So 3d at 278.
Following Strauder, Louisiana convened a Constitutional
Convention in 1898. Ramos, 590 US at ___, 140 S Ct at 1394;
Reddick, 351 So 3d at 278. The purpose of that convention
was to “establish the supremacy of the white race,” accord-
ing to one of the delegates. Ramos, 590 US at ___, 140 S Ct
at 1394. Louisiana sought to avoid an investigation by the
United States Senate into whether Louisiana was systemi-
cally excluding Black jurors from juries, and its solution was
to undermine Black juror participation on juries in another
way: by permitting the use of nonunanimous verdicts for
serious crimes. Id.Similar to Louisiana, Oregon required a unani-
mous jury verdict from 1864 until 1934. See State v. Larson,
252 Or 624, 626, 450 P2d 754 (1969). Oregon amended its
constitution to allow for nonunanimous jury verdicts in
all but first-degree murder cases in 1934. Aliza Kaplan,
Non-Unanimous Jury Law in Oregon, Oregon Encyclopedia
(June 2022), https://www.oregonencyclopedia.org/articles/non_
unanimous_jury_law/#.Y6SHSNXMKUk (accessed Dec 22,
2022). The Oregon Criminal Trials Without Juries Amendment
(Measure 2) was on the May 18, 1934, ballot as a legislatively
Cite as 370 Or 604 (2022) 637
referred constitutional amendment.1 Official Voters’
Pamphlet, Special Election, May 18, 1934, 6. The measure
was approved by voters; it thereafter amended Article I, sec-
tion 11, of the Oregon Constitution, as well as former ORS
136.610 (1953), renumbered as ORS 136.450 (1973), which
governs unanimity requirements for juries in criminal
cases.2
The Oregon Supreme Court was faced with the
question of whether to end the practice of using nonunan-
imous guilty verdicts prior to the United States Supreme
Court’s decision in Ramos. In 1969, the Oregon Supreme
Court stated that 35 years of the nonunanimity require-
ment had shown that the Oregon procedure was “suited to
Oregon conditions” and that “the Oregon system has been
as just as the system in jurisdictions requiring a unanimous
verdict.” State v. Gann, 254 Or 549, 562, 463 P2d 570 (1969),
overruled on other grounds by Ramos, 590 US ___, 140 S Ct
1390. In 1970, this court was again faced with the question
of whether to end the state’s nonunanimous verdict practice,
when it denied review of a claim that conviction for a crime
by a less-than-unanimous jury violated the claimant’s right
to trial by jury under the Sixth Amendment. The United
States Supreme Court granted certiorari of the claim and
affirmed, upholding Louisiana and Oregon’s ability to con-
tinue using nonunanimous jury verdicts. Apodaca v. Oregon,
406 US 404, 406, 92 S Ct 1628, 32 L Ed 2d 184 (1972), over-
ruled by Ramos, 590 US ___, 140 S Ct 1390.
Louisiana and Oregon were finally forced to face
the “sordid history” of their respective laws in 2020. After
the United States Supreme Court decided Ramos, the prac-
tice of using nonunanimous jury verdicts was ended in both
states. Ramos, 590 US at ___, 140 S Ct at 1397 (“There can
be no question either that the Sixth Amendment’s unanim-
ity requirement applies to state and federal criminal trials
equally.”); see State v. Ulery, 366 Or 500, 464 P3d 1123
1
The Oregon legislature has authority to propose constitutional amend-
ments and refer them to the voters for ratification. Or Const, Art XVII, § 1.
2
ORS 136.450 has since been amended to require a unanimous guilty ver-
dict and a concurrence of at least 10 of 12 jurors for a not guilty verdict in crimi-
nal actions.
638 Watkins v. Ackley
(2020) (“Ramos leaves no doubt that [Oregon’s] acceptance of
nonunanimous guilty verdicts must change[.]”).
The Supreme Court later determined that its deci-
sion would not apply retroactively and instead left to the
states the determination of whether to apply Ramos retroac-
tively. Edwards v. Vannoy, ___ US ___, 141 S Ct 1547, 1559
n 6, 209 L Ed 2d 651 (2021) (“States remain free, if they
choose, to retroactively apply the jury-unanimity rule as a
matter of state law in state post-conviction proceedings.”).
In dissent, Justice Kagan, joined by Justices Breyer and
Sotomayor, reminded the majority of the extent to which
Ramos acknowledged the racist origins of the nonunani-
mous verdict laws and the danger that racial prejudice had
resulted in wrongful convictions. Justice Kagan noted that
those majority and concurring opinions “relied on a strong
claim about racial injustice.” Edwards, ___ US at ___, 141
S Ct at 1577 (Kagan, J., dissenting). The Ramos majority had
explained that the nonunanimous verdict rules were meant
“to dilute the influence [on juries] of racial, ethnic, and reli-
gious minorities,” and “to ensure that African-American
juror service would be meaningless.” Edwards, ___ US
at ___, 141 S Ct at 1577 (Kagan, J., dissenting) (quoting
Ramos, 590 US at ___, 140 S Ct at 1394 (internal quotation
marks omitted)). Justice Kagan noted further that Justice
Kavanaugh’s concurring opinion in Ramos linked that his-
tory to current practice: “ ‘In light of the[ir] racist origins,
* * * it is no surprise that non-unanimous juries can make a
difference’—that ‘[t]hen and now,’ they can * * * ‘negate the
votes of black jurors, especially in cases with black defen-
dants.’ ” Edwards, ___ US at ___, 141 S Ct at 1577 (Kagan, J.,
dissenting) (most alterations in original; quoting Ramos,
590 US at ___, 140 S Ct at 1417-18 (Kavanaugh, J., concur-
ring in part)). But, Justice Kagan stated, that assertion pre-
cluded the majority’s result in Edwards:
“If the old rule functioned as an engine of discrimination
against black defendants, * * * its replacement must impli-
cat[e] * * * the fundamental fairness and accuracy of the
criminal proceeding[.] * * * [T]he unanimity rule helps
prevent racial prejudice from resulting in wrongful convic-
tions. * * * The rule should therefore apply not just forward
but back, to all convictions rendered absent its protection.”
Cite as 370 Or 604 (2022) 639
Edwards, ___ US at ___, 141 S Ct at 1578 (Kagan, J., dis-
senting) (internal quotation marks omitted).
The dissenters in Edwards concluded that a decision
like Ramos “comes with a promise, or at any rate should. If
the right to a unanimous jury is so fundamental—if a ver-
dict rendered by a divided jury is ‘no verdict at all’—then
[the petitioner] should not spend his life behind bars over
two jurors’ opposition.” Id. at ___, 141 S Ct at 1582 (Kagan,
J., dissenting). Despite the dissent’s sound reasoning, the
majority decided to leave the question of retroactivity to the
states.
Following Ramos and Edwards, in 2022, the
Oregon legislature introduced Senate Bill (SB) 1511. That
bill sought to create a process by which a person convicted
or found guilty as a result of a nonunanimous jury verdict
could file a petition for post-conviction relief within one year
of the Act’s effective date; in other words, the bill would have
applied the Ramos decision retroactively. The bill died in
committee in early 2022.
Around the same time that SB 1511 was intro-
duced, this court was presented with the task of deter-
mining whether to apply Ramos retroactively following the
appeal (in this case) from a trial court’s rejection of a post-
conviction petitioner’s challenge to his conviction obtained
through nonunanimous verdicts. 370 Or at 606-07.
Louisiana’s reaction post-Ramos recently came to a
head when its state supreme court decided not to apply the
Ramos jury unanimity rule retroactively. Reddick, 2021-KP-
01893 at p 16. Although the Louisiana court went through
its state’s ignoble history surrounding its now outdated
nonunanimous verdict rule, it nevertheless determined that
that history was not enough for it to apply Ramos retroac-
tively, instead opting to leave that decision in the hands of
the state legislature. Id. at p 17.
In sum, Oregon and Louisiana created nonunani-
mous verdict laws that deprived many defendants, partic-
ularly defendants of color, of their Sixth Amendment rights
for decades. Neither state fully addressed the discrimina-
tory purposes or effects of their laws until the United States
640 Watkins v. Ackley
Supreme Court decided Ramos, and the states were ulti-
mately forced to examine their laws’ histories.
II. OREGON’S HISTORY
I next turn to additional historical background
regarding the origins and purposes of Oregon’s nonunani-
mous verdict law. Based on her scholarly research, Professor
Aliza Kaplan has written an informative article that includes
a brief summary of specific circumstances that gave rise to
the adoption of that law by initiative in 1934:
“The non-unanimous jury rule, passed as a ballot measure
in 1934, was a result of social conditions and a notorious
murder trial and was intended, at least in part, to dampen
the influence of racial, ethnic, and religious minorities on
juries.
“The trial involved Jacob Silverman, a hotel proprietor
in Portland, who was charged with the murder of Jimmy
Walker near Scappoose in April 1933. During jury delib-
erations, eleven jurors wanted to find Silverman guilty of
first-degree murder, but one did not, so they compromised
by finding him guilty of manslaughter. Many Oregonians
were outraged at the lesser verdict, and the Oregon leg-
islature proposed a constitutional amendment less than a
month after Silverman was sentenced.
“* * * ‘The increased urbanization of American life,’
the November 25, 1933, Oregonian editorialized, ‘and the
vast immigration into America from southern and eastern
Europe, of people untrained in the jury system, have com-
bined to make the jury of twelve increasingly unwieldy and
unsatisfactory.’ * * * Oregonians approved the amendment
with 58 percent of the vote.”
Aliza Kaplan, Non-Unanimous Jury Law in Oregon, Oregon
Encyclopedia (June 2022), https://www.oregonencyclopedia.
org/articles/non_unanimous_jury_law/#.Y6SHSNXMKUk
(accessed Dec 22, 2022).
More recently, in an Oregon circuit court case to
which the Ramos court cited, a trial court denied the defen-
dant’s motion for a new trial following a nonunanimous ver-
dict because the defendant did not prove an equal protec-
tion challenge as applied to him. Ramos, 590 US at ___, 140
S Ct at 1394 n 5; State v. Williams, Case No. 15CR58698 (Or
Cite as 370 Or 604 (2022) 641
Mult Co Cir Ct, Dec 15, 2016). However, the circuit court’s
Opinion and Order extensively discussed the historical
evidence and found “as fact that race and ethnicity was a
motivating factor in the passage of [the nonunanimous jury
law], and that the measure was intended, at least in part, to
dampen the influence of racial, ethnic, and religious minori-
ties on Oregon juries.” Williams, Case No. 15CR58698 at
16. In addition to considering the public backlash to the
Silverman case, the court examined the broader context of
Oregon’s “long history of racial discrimination”:
“[The nonunanimous jury law] was passed in a state
with a long history of racial discrimination. It was passed
in a state where minority participation in the legal sys-
tem, even as witnesses let alone as decision makers on a
jury, was subject to heated debate. It was passed during a
period of racial tension when the state had seen an explo-
sion of organized racial hatred and the rise of the [Ku Klux
Klan]. In light of that history, when the dominant media
of the period ran multiple stories, over the span of years,
contrasting ‘white’ jurors from those of ‘mixed blood,’ warn-
ing against immigrant participation on jury service, and
claiming that certain ‘people in the world are unfit for dem-
ocratic institutions,’ no reasonable fact-finder could con-
clude that race wasn’t a motivating factor in the passage of
[the nonunanimous verdict law].”
Id.
As recognized by the Supreme Court in Ramos, the
adoption of the nonunanimous jury rule in Oregon can be
“traced to the rise of the Ku Klux Klan and efforts to dilute
‘the influence of racial, ethnic, and religious minorities on
Oregon juries.’ ” Ramos, 590 US at ___, 140 S Ct at 1394; see
also Edwards, ___ US at ___, 141 S Ct at 1574 (Kagan, J., dis-
senting) (“[T]he state laws countenancing non-unanimous
verdicts originated in white supremacism and continued in
our own time to have racially discriminatory effects.”).
Indeed, recent scholarship confirms that, during
much of our region’s early history, Black exclusion laws
“largely succeeded in their aim of discouraging free Blacks
from settling in Oregon early on, ensuring that Oregon would
develop as primarily white.” Greg Nokes, Black Exclusion
Laws in Oregon, Oregon Encyclopedia (Sept 2022), https://
642 Watkins v. Ackley
www.oregonencyclopedia.org/articles/exclusion_laws/#.
Y6SL99XMKUk (accessed Dec 22, 2022).
“White emigrants who came to present-day Oregon
during the 1840s and 1850s generally opposed slavery, but
many also opposed living alongside African Americans. * * *
Although the exclusion laws were not generally enforced,
they had their intended effect of discouraging Black set-
tlers. The 1860 census for Oregon, for example, reported
128 African Americans in a total population of 52,465. In
2013, only 2 percent of the Oregon population was Black.”
Id.; see also Darrell Miller & Carmen P. Thompson, Special
Issue: White Supremacy & Resistance, 120 Or Hist Q 4
(Winter 2019) (providing information on scholarly articles
written to assist Oregonians in understanding our troubled
history of white supremacy).3
Greg Nokes’s article briefly described Oregon’s
Black exclusion laws, the first of which had been enacted
and amended by June of 1844. That law prohibited slavery,
gave slaveholders a time limit to “remove their slaves out of
the country,” and freed slaves whose owners did not remove
them. Nokes, Black Exclusion Laws in Oregon, Oregon
Encyclopedia (Sept 2022), https://www.oregonencyclopedia.org/
3
The Note from the Editors includes the following explanation:
“White supremacy is not just the Ku Klux Klan donning robes or burning
crosses, but it can be. It is not just an individual act of racial discrimina-
tion, although it can be that, too. White supremacy is a collective set of codes,
spoken and unspoken, explicit and implied, that society enforces through its
institutions, governments, and legal structures in order to keep those deemed
as White on top and every other racial group below them—with specific
emphasis, in the United States, on keeping Black people at the bottom. * * *
“This special issue is not neutral on the subject of White supremacy. It
does not put blame onto readers who are labeled as ‘White,’ but it is meant
as a call to self-reflection. [Dr. Darrell] Millner, in one of our editorial meet-
ings, put it best when he said: ‘We are not responsible for the past, but we are
responsible for our relationship to the past.’ We challenge all readers to look
both inward and outward at the legacies and vestiges of what racial labeling
has meant, and continues to mean, for people who are not White and for those
who are.
“History, as revealed in this issue, demonstrates that White supremacy
is subtle. It is historical, it is organic, and it is alive and well in the twenty-
first century. In America, being White has long been the standard, the norm,
the universal image and framework through which the nation’s institutions
have been conceptualized.”
Millner & Thompson, 120 Or Hist Q at 356-57.
Cite as 370 Or 604 (2022) 643
articles/exclusion_laws/#.Y6SL99XMKUk (accessed Dec 22,
2022) (internal quotation marks omitted). The second exclu-
sion law about which Nokes writes was enacted in 1849 and
specified that “it shall not be lawful for any negro or mulatto
to enter into, or reside” in Oregon, except for those who were
already in the territory. Id. That law was rescinded in 1854.
Nokes also describes an exclusion clause submitted to vot-
ers by delegates to Oregon’s Constitutional Convention in
1857; that clause was accompanied by a proposal to legal-
ize slavery. The exclusion clause prohibited Black people
from being in the state, owning property, and making con-
tracts. Id. Although Oregon voters disapproved of slavery
by a wide margin, they approved of the exclusion clause.
The clause was incorporated into the state’s Bill of Rights
and made Oregon the only free state admitted to the Union
with an exclusion clause in its constitution. Id. That racist
history evolved into Oregon voters’ approval and use of the
nonunanimous verdict law.
III. LEARNING FROM HISTORY
As previously described, the discriminatory pur-
pose and effect of Oregon’s nonunanimous verdict law is
clear. However, it is important as Oregonians that we fully
recognize the invidious nature of this Oregon law. Although
facially neutral, the law was intended to marginalize the
influence of nonwhite jurors and deny the equal protection
of the law to nonwhite criminal defendants. Indeed, because
the law was facially neutral, the measure caused immeasur-
ably great harm to the citizens of this state, while largely
evading legal challenge. That wholesale denial of equal treat-
ment under the law and the denial of full participation of
some in our jury system are distinct features of second-class
citizenship. While Oregon did not approve nonunanimous
juries as part of a brutal program of racist Jim Crow mea-
sures against Black Americans, its own voters—consistent
with this state’s long and foundational history of bigotry
and Black exclusion laws—approved nonunanimous juries
as a means of excluding nonwhites from meaningful partic-
ipation in our justice system.
We must also recognize that the accuracy of peti-
tioner’s conviction and the convictions of those similarly
644 Watkins v. Ackley
situated is seriously in question due to the denial of a
unanimous jury. All those convictions were reached after
defendants were denied the equal treatment of the law,
with some jurors having sufficient doubt to vote “not guilty.”
Further, we know that the application of the nonunanimous
jury rule has “allow[ed] convictions of some who would not
be convicted under the proper constitutional rule, and [has]
tolerate[d] and reinforce[d] a practice that is thoroughly
racist in its origins and has continuing racially discrimi-
natory effects[.]” Ramos, 590 US at ___, 140 S Ct at 1419(Kavanaugh, J., concurring in part).
We should also understand that the imposition of
the nonunanimous verdict law in Oregon for more than 90
years has undermined the integrity of our judicial system
and reduced public confidence in our laws and our system
of justice. That is so because the wholesale denial of Sixth
Amendment rights to the citizens of a state is repugnant to
the rule of law. Equal treatment under law is integral to the
rule of law. And the rule of law is not sustainable unless all
citizens of all states enjoy the full benefits and advantages
of our federal constitutional protections.
As citizens of Oregon from all backgrounds—par-
ticularly based on our history of racial exclusion—we must
understand that the passage of our nonunanimous jury ver-
dict law has not only caused great harm to people of color:
That unchecked bigotry also undermined the fundamental
Sixth Amendment rights of all Oregonians for nearly a cen-
tury. The direct passage of that exclusionary law in 1934
by Oregon voters was a self-inflicted injury to our precious
constitutional heritage. For us to protect and preserve that
constitutional heritage, we must always be on our guard
against such mischief. With that understanding—and with
a measure of courage—we can learn from our history and
avoid such grievous injury in the future to our civic health.
I agree that applying Ramos only prospectively is
not sufficient. We should also apply the constitutional rule of
Ramos to petitioner and others similarly situated. I concur
in the majority opinion and in the judgment of this court.