Verduzco v. State of Oregon

No. 28 July 30, 2015 553
IN THE SUPREME COURT OF THE
STATE OF OREGON
JOSE ANTONIO GONZALEZ VERDUZCO,
Petitioner on Review,
v.
STATE OF OREGON,
Respondent on Review.
(CC CV110467; CA A153165; SC S062339)
En Banc
On review from the Court of Appeals.*
Argued and submitted March 12, 2015, at the University
of Oregon School of Law, Eugene.
Brian Conry, Portland, argued the cause and filed the
brief for petitioner on review.
Paul L. Smith, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on review.
With him on the brief were Ellen F. Rosenblum, Attorney
General, and Anna M. Joyce, Solicitor General.
Lindsey Burrows, Deputy Public Defender, Salem, filed
the brief for amicus curiae Office of Public Defense Services.
Sara F. Werboff, Janet Hoffman & Associates, Portland,
filed the brief for amici curiae Oregon Legal Academics and
Oregon Justice Resource Center. With her on the brief was
Christopher N. Lasch, Denver, Colorado.
Ryan T. O’Connor, Jason Weber, and Jed Peterson,
O’Connor Weber LLP, Portland, filed the brief for amicus
curiae O’Connor Weber LLP.
KISTLER, J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
______________
*  Appeal from Yamhill County Circuit Court, Ronald W. Stone, Judge. Order
of Summary Affirmance, May 6, 2014.
554 Verduzco v. State of Oregon
Case Summary: Petitioner filed for post-conviction relief, claiming that his
trial counsel provided inadequate assistance under the Sixth Amendment by fail-
ing to inform him that, by pleading guilty to an aggravated felony, he would be
deported. The post-conviction court denied relief. In 2011, after the United States
Supreme Court had issued a decision requiring that criminal defense attorneys
advise clients of immigration consequences, petitioner filed a second petition for
relief, advancing substantially the same claims that he made in his first peti-
tion. The post-conviction court denied relief on the ground that the petition was
untimely and successive, and the Court of Appeals summarily affirmed its judg-
ment. Held: Because petitioner reasonably could have and actually did raise sub-
stantially the same claims in his first petition that he raised in his second peti-
tion, his second petition was successive under ORS 138.550(3).
The decision of the Court of Appeals and the judgment of the circuit court
are affirmed.
Cite as 357 Or 553 (2015) 555
KISTLER, J.
In Danforth v. Minnesota, 552 U.S. 264, 128 S. Ct.
1029, 169 L. Ed. 2d 859 (2008), the United States Supreme
Court held that state courts may apply new federal con-
stitutional rules retroactively in state post-conviction pro-
ceedings even though those rules do not apply retroactively
in federal habeas corpus proceedings. We allowed review
in this case to consider the principles that Oregon courts
should follow in exercising the authority that Danforth rec-
ognized. However, after considering the parties’ arguments,
we conclude that the state statutory rule against succes-
sive petitions bars the grounds for relief that petitioner has
raised in his second post-conviction petition. We accordingly
affirm the Court of Appeals decision and the post-conviction
court’s judgment on that ground.
I.  FACTS AND PROCEDURAL HISTORY
Petitioner is a citizen of Mexico and, until 2006,
was a permanent legal resident of this country.1 In 2003,
the state charged him with possession and distribution of a
controlled substance after police officers found him in pos-
session of five pounds of marijuana. For a person in peti-
tioner’s circumstances, the presumptive sentence on the dis-
tribution charge was 19 to 20 months in prison. Petitioner
explained to his defense counsel that his primary goal was
to avoid serving time in prison so that he could continue his
job and education.
Given the likelihood of conviction and petitioner’s
stated goal of avoiding prison time, his defense counsel
negotiated a plea deal with the prosecutor, which the trial
court tentatively approved. Pursuant to that deal, peti-
tioner agreed to plead guilty to distribution of a controlled
substance, and the state agreed to dismiss the possession
charge and recommend probation. In discussing the case
1
Attached to petitioner’s second post-conviction petition are various docu-
ments from the hearing on his first post-conviction petition, including the post-
conviction court’s opinion denying his first petition for post-conviction relief. We
take the facts from the allegations in the second petition and the attachments
to that petition. We state disputed historical facts consistently with the post-
conviction courts’ opinions resolving petitioner’s first and second post-conviction
petitions.
556 Verduzco v. State of Oregon
with petitioner, his defense counsel told him, as she told
all her clients who were not United States citizens, that
“the Federal Government can do whatever [it] wants to
do and so [you] need to understand that [you] could be
deported” as a result of pleading guilty. She later char-
acterized her advice “as something more than ‘may’ be
deported, but something less than ‘will’ be deported” as a
result of a guilty plea.
In 2003, petitioner accepted the plea deal and
pleaded guilty to distribution of a controlled substance.
The state dismissed the possession charge, and the trial
court sentenced petitioner to probation. The plea petition
that petitioner signed stated: “I understand that a crimi-
nal conviction of a person who is not a United States citi-
zen may result in deportation, exclusion from admission to
the United States or denial of naturalization.” Petitioner did
not file a direct appeal after the trial court sentenced him
on January 26, 2004, and his conviction became final when
the judgment of conviction was entered on the register the
next day. See ORS 138.510(3)(a) (defining when an unap-
pealed conviction will be final for purposes of the state post-
conviction act).
After petitioner’s conviction became final, Immigra-
tion and Customs Enforcement (ICE) did not seek to remove
petitioner from this country and return him to Mexico,
even though he had pleaded guilty to an “aggravated fel-
ony” for the purposes of federal immigration law.2 Rather,
petitioner continued to live and work in this country until
2005, when he went on a personal trip to Mexico. When peti-
tioner attempted to return to this country, federal immigra-
tion officials detained him at the border and then admitted
him in January 2006 for a “deferred inspection” so that they
could determine the effect of his state conviction.
2
Under federal law, a person is deportable if he or she has been convicted of
an aggravated felony. 8 USC § 1227(a)(2)A)(iii). A state conviction for delivery
of a controlled substance is an aggravated felony for the purposes of the federal
immigration laws. See 8 USC § 1101(a)(43)(B) (defining an aggravated felony as,
among other crimes, “illicit trafficking in a controlled substance * * * including a
drug trafficking crime * * *”). See also Batrez Gradiz v. Gonzales, 490 F3d 1206,
1210 (10th Cir 2007) (observing that a drug crime constitutes an aggravated fel-
ony if it is analogous to a felony under the federal Controlled Substances Act); 21
USC §§ 841(a)-(b) (making it a felony to deliver a controlled substance).
Cite as 357 Or 553 (2015) 557
On January 24, 2006, slightly less than two years
after his state conviction became final, petitioner filed a timely
petition for post-conviction relief. See ORS 138.510(3) (post-
conviction petitions must be filed within two years after the
challenged conviction becomes final). Petitioner alleged that
his counsel had provided him with inadequate assistance,
in violation of the state and federal constitutions, when she
failed to tell him that distribution of a controlled substance
was an “aggravated felony” for the purposes of federal immi-
gration law and that, “if [he] came to the attention of the
Immigration authorities at any time, * * * it was certain he
would be deported as it is required by the Immigration and
Nationality [sic] Act that aggravated felons be deported.” He
also alleged that his counsel failed to tell him that persons
who commit aggravated felonies are barred from reentering
the United States. Finally, he alleged that his plea was not
knowing because the trial court had not informed him of
those consequences before it accepted his plea.
After holding a hearing on petitioner’s first post-
conviction petition, the post-conviction court ruled that his
counsel’s advice about the immigration consequences of
his guilty plea satisfied state constitutional standards. See
Gonzalez v. State of Oregon, 340 Or 452, 459, 134 P3d 955
(2006) (under Article I, section 11, it is sufficient to advise cli-
ents that a state conviction “may result” in deportation); Lyons
v. Pearce, 298 Or 554, 567, 694 P2d 969 (1985) (same). The
post-conviction court observed that the use of the word “may”
in the plea petition had, in fact, proved accurate because ICE
had not removed petitioner after he pleaded guilty. Rather,
petitioner had remained in this country and returned to work
and school for almost two years. It was only after petitioner
left the country in 2005 and then attempted to reenter the
country that ICE denied him unconditional reentry.
Before the post-conviction court, petitioner argued
that, even if his counsel’s advice had satisfied state con-
stitutional standards, it did not satisfy federal standards.
Relying on United States v. Kwan, 407 F3d 1005 (9th Cir
2005), he argued that his counsel’s advice had fallen below
the standard that the Sixth Amendment requires because
his counsel had not advised him that “he had [pleaded]
guilty to an offense that would almost certainly cause him
558 Verduzco v. State of Oregon
to be deported.” The post-conviction court disagreed, rea-
soning that Kwan was limited to instances where counsel
had responded to a client’s questions, purported to have
expertise, and had affirmatively misled the client.
The post-conviction court denied petitioner’s first
post-conviction petition on June 5, 2006. The Oregon Court
of Appeals affirmed the post-conviction court’s judgment on
March 19, 2008, and this court denied his petition for review
on November 26, 2008. Petitioner did not file a petition for
certiorari with the United States Supreme Court.
While petitioner’s post-conviction case was mak-
ing its way through the Oregon courts, the Kentucky courts
were considering a similar post-conviction petition. See
Commonwealth v. Padilla, 253 S.W.3d 482 (Ky 2008). In the
Kentucky case, Padilla alleged that his counsel had provided
inadequate assistance in violation of the Sixth Amendment
when he advised Padilla that, if Padilla pleaded guilty to
trafficking in more than five pounds of marijuana, he “ ‘did
not have to worry about [his] immigration status since he
had been in th[is] country so long.’ ” Id. at 483 (quoting coun-
sel’s advice). The Kentucky Supreme Court rejected Padilla’s
Sixth Amendment claim. It held that the Sixth Amendment
requires counsel to advise clients only of the direct conse-
quences of their pleas. The Kentucky Supreme Court held
that, because the effect of Padilla’s conviction on his fed-
eral immigration status was a collateral, not a direct, con-
sequence of his plea, the Sixth Amendment did not require
Padilla’s counsel either to address that issue at all or, if coun-
sel did address it, give Padilla accurate advice. Id. at 485.
Padilla filed a petition for a writ of certiorari with
the United States Supreme Court on November 14, 2008.
The Court asked the State of Kentucky for a response on
December 18, 2008, and it granted Padilla’s petition on
February 23, 2009. Padilla v. Kentucky, 555 U.S. 1169, 129
S. Ct. 1317, 173 L. Ed. 2d 582 (2009).3 In March 2010, the Court
3
When the Court granted Padilla’s petition for certiorari, petitioner still had
time either to file a petition for certiorari in his case or to seek an extension of
time in which to do so. See Sup Ct R 13(1) (a petition for a writ of certiorari may
be filed within 90 days of the date that a state supreme court denies discretionary
review).
Cite as 357 Or 553 (2015) 559
reversed the judgment of the Kentucky Supreme Court
and remanded the case for further proceedings. Padilla
v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284
(2010). The Court explained that, in the 1990s, Congress
had eliminated a sentencing court’s ability to make a bind-
ing recommendation that a person not be removed from this
country as a result of his or her conviction. Id. at 363. Later,
in 1996, Congress eliminated most of the Attorney General’s
authority to grant discretionary relief from removal. See id.
at 363-64 (explaining that only remnants of that discre-
tion remained). It followed, the Court concluded, that, for
persons whose convictions fall within a class of federally
defined “aggravated felonies,” removal is now “practically
inevitable.” Id. at 364.
In considering whether the Sixth Amendment
requires defense counsel to advise their clients of the immi-
gration consequences of a plea, the Court recognized that
Kentucky was “far from alone” in holding that the Sixth
Amendment requires counsel to advise their clients of the
direct consequences of a guilty plea but not the collateral
consequences. Id. at 365 and n 9. The Court explained, how-
ever, that it had “never applied a distinction between direct
and collateral consequences to define the scope of consti-
tutionally ‘reasonable professional assistance.’ ” Id. at 365.
And, it found that, because of the unique nature of removal,
there was no need to consider that distinction in deciding
Padilla’s case. Id. Rather, considering the close relationship
between criminal convictions and removal, the significant
consequences to persons who are removed, and the “weight
of prevailing professional” opinion, which was that defense
counsel should advise their clients of the risk of removal, the
Court held that, “when the deportation consequence is truly
clear, as it was in this case, the duty to give correct advice is
equally clear,” and the breach of that duty violates the Sixth
Amendment. Id. at 366-67, 369.
In 2011, petitioner filed a second petition for post-
conviction relief. He alleged that ICE had removed him from
the country in July 2006. He also alleged that, as a result of
the Court’s 2010 decision in Padilla, he was entitled to bring
a second or successive petition. On the merits of his claims,
he alleged essentially the same two grounds for relief that he
560 Verduzco v. State of Oregon
had alleged in his first post-conviction petition: (1) his trial
counsel had provided inadequate assistance under Article I,
section 11, and the Sixth Amendment when she failed to
advise him accurately of the immigration consequences of
his plea; and (2) his plea was not knowing, in violation of
Due Process, because the trial court had not accurately
advised him of the immigration consequences of his plea.
The post-conviction court denied petitioner’s second
post-conviction petition, reasoning that, under state law,
the petition was both successive and time-barred. The court
recognized that escape clauses exist for both state proce-
dural bars, but it reasoned that the second petition for post-
conviction relief did not come within either escape clause
because the grounds for relief that petitioner alleged in
his second petition reasonably could have been raised (and
had in fact been raised) in petitioner’s first post-conviction
petition.
Petitioner appealed. On appeal, the state identified
an additional procedural hurdle. It noted that, after the
post-conviction court had entered its judgment, the United
States Supreme Court held that Padilla does not apply
retroactively to cases that became final before the date of
that decision. See Chaidez v. United States, 568 US ___, 133
S. Ct. 1103, 185 L. Ed. 2d 149 (2013) (so holding). The state
also noted that the Oregon Court of Appeals had held that
it would follow federal retroactivity analysis and would not
apply Padilla retroactively in state post-conviction proceed-
ings. See Saldana-Ramirez v. State of Oregon, 255 Or App
602, 298 P3d 59, rev den, 354 Or 148 (2013) (so holding).4
Defendant responded that, under Danforth, state courts
are free to apply Padilla retroactively in post-conviction
proceedings even though Chaidez had held that Padilla
does not apply retroactively on federal habeas. Following its
decision in Saldana-Ramirez, the Court of Appeals issued
an order summarily affirming the post-conviction court’s
judgment.
4
In Saldana-Ramirez, the Court of Appeals noted that this court’s decisions
before Danforth had followed federal retroactivity analysis, and the Court of
Appeals signaled that it would do so too until we exercised our authority under
Danforth to take a different course. See 255 Or App at 608; see also Frias v.
Coursey, 229 Or App 716, 215 P3d 874 (2009).
Cite as 357 Or 553 (2015) 561
II. ISSUES
Before turning to the various arguments that the
parties advance on review, it is helpful to identify the three
issues those arguments address. Petitioner seeks to bring a
collateral challenge to his 2004 state conviction based on the
2010 decision in Padilla. In doing so, he faces three potential
obstacles. The first two derive from the state post-conviction
act. That act provides that post-conviction petitions must
be filed within two years after the challenged conviction
becomes final, ORS 138.510(3),5 and it also bars successive
petitions, ORS 138.550(3). In this case, petitioner’s second
post-conviction petition was filed in 2011, more than seven
years after his conviction for distribution became final in
2004. Moreover, because this is petitioner’s second petition,
it is, by definition, successive.
Both procedural bars, however, contain identically
worded “escape clauses.” Essentially, if petitioner could not
reasonably have raised the grounds for relief alleged in his
second petition either in a timely fashion or in the first peti-
tion, then those state procedural bars do not prevent peti-
tioner from pursuing the grounds for relief alleged in his
second post-conviction petition. On that issue, petitioner’s
argument reduces to the proposition that he could not have
raised his current claims for relief until after the Court
announced its decision in Padilla. It follows, he concludes,
that that change in the law brings his claim within both
escape clauses.
Even if petitioner passes those first two hurdles,
he still faces a third. Not all changes in the law apply ret-
roactively. Indeed, under federal law, a “new rule” will not
apply retroactively to convictions that have become final
unless the new rule is: (1) a “watershed rule” of criminal
procedure or (2) a rule placing “conduct beyond the power of
government to proscribe.” Teague v. Lane, 489 U.S. 288, 311,
109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989) (plurality) (quoting
5
When a conviction becomes final for the purposes of the post-conviction
act will vary depending on whether a defendant files an appeal in state court or
a petition for certiorari. ORS 138.510(3)(a)-(c). Because petitioner did not file a
direct appeal, his conviction became final on the date the judgment of conviction
was entered in the register. ORS 138.510(3)(a).
562 Verduzco v. State of Oregon
Mackey v. United States, 401 U.S. 667, 91 S. Ct. 1160, 28 L. Ed.
404 (1971) (Harlan, J., concurring in the judgments in part
and dissenting in part); see Miller v. Lampert, 340 Or 1, 125
P3d 1260 (2006) (discussing watershed rules of criminal
procedure).6 Ordinarily, under federal law, new rules will
apply only prospectively or to convictions that have not yet
become final. Teague, 489 U.S. at 310. And, as noted above,
the Court held in Chaidez that Padilla announced a “new
rule” that does not apply retroactively to convictions, such as
petitioner’s, that became final before Padilla was decided.7
That is not the end of the analysis, however. As
noted, the United States Supreme Court held in Danforth
that states may apply new federal rules retroactively
in state post-conviction proceedings even though those
rules would not apply retroactively in federal habeas.
Essentially, the Court held in Danforth that federal retro-
activity analysis does not define the scope of the federal
right. 552 U.S. at 275. Indeed, in Danforth, the Court
described the federal retroactivity analysis that it had
announced in Teague as an interpretation of the federal
habeas statute. Id. at 278.
After Danforth, each state is free to determine
when new federal rules should be applied retroactively in
state post-conviction proceedings. Such determinations can
include a consideration of the state’s interest in the finality of
convictions, the effect of the new federal right on the validity
of the conviction, the need for predictable retroactivity rules,
and the value of additional review. See Paul M. Bator, Finality
in Criminal Law and Habeas Corpus for State Prisoners,
76 Harv L Rev 441 (1963) (discussing considerations that
6
For federal purposes, a “case announces a new rule if the result was not
dictated by precedent existing at the time the defendant’s conviction became
final.” Teague, 489 U.S. at 301 (emphasis in original). Conversely, a case does not
announce a new rule when “it ‘[is] merely an application of the principle that
governed’ ” a prior decision to a new set of facts. Id. at 307.
7
In holding that Padilla announced a new rule, the Court explained in
Chaidez that Padilla was not simply applying the general standard of reasonable
assistance to a new set of facts. Chaidez, 133 S. Ct. at 1108. Rather, Padilla held,
for the first time, that the Sixth Amendment requires a lawyer to advise his or
her client about something other than the direct consequence of a criminal con-
viction. Id. at 1110. As a matter of federal law, Padilla established a new rule—
namely, a rule that was not dictated by the precedent that existed at the time of
Chaidez’s conviction.
Cite as 357 Or 553 (2015) 563
can inform when courts should revisit final convictions);
cf. Danforth, 552 U.S. at 273-74 (explaining that the current
federal rule was adopted, among other things, to ensure pre-
dictable results). Even though we allowed review to consider
when new federal rules will apply retroactively in Oregon,
we conclude that this case does not provide an occasion to
decide that issue. Rather, the state statutory limits on post-
conviction petitions resolve petitioner’s claims. We accord-
ingly turn to those statutory limits.
III.  STATE PROCEDURAL BARS
Oregon’s post-conviction act has prohibited succes-
sive petitions since it was first enacted in 1959. Or Laws
1959, ch 636, § 15(3). Section 15(3) of the 1959 act required
that
“all grounds [for relief] must be asserted in [the] original
or amended petition, 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.”
See ORS 138.550(3) (codifying section 15(3)). Section 15(2)
of the 1959 act contained a similar procedural bar. It pro-
vided that, when a petitioner had “sought and obtained
direct appellate review of [a] conviction and sentence,” no
ground for relief could be asserted in a post-conviction peti-
tion “unless such ground was not asserted and could not rea-
sonably have been asserted in the direct appellate review
proceeding.” See ORS 138.550(2) (codifying section 15(2)).8
Thirty years later, the legislature added another
procedural bar. In 1989, the legislature provided that a
petition for post-conviction relief “must be filed within
120 days” of the date that the challenged conviction became
final “unless the court on hearing a subsequent petition
finds grounds for relief asserted which could not reason-
ably have been raised in the original or amended petition.”
8
That limitation contains a qualification. If the petitioner was not repre-
sented by counsel on direct appeal due to lack of funds, then only those grounds
for relief that had been specifically decided on appeal are barred from being
asserted on post-conviction. See ORS 138.550(2).
564 Verduzco v. State of Oregon
Or Laws 1989, ch 1053, § 18.9 Four years after that, the
court expanded the time for filing a petition from 120 days
to two years. Or Laws 1993, ch 517, § 1; see ORS 138.510(3)
(now codifying the two-year statute of limitations).10
Both ORS 138.550(3) and ORS 138.510(3) contain
identically worded “escape clauses.” A petition will not be
untimely or successive if the grounds alleged in the peti-
tion “could not reasonably have been raised” earlier. In
this case, there is no dispute that petitioner filed his sec-
ond post-conviction more than two years after his 2004
conviction became final, nor is there any dispute that his
second petition is successive. Rather, the dispute is whether
the grounds for relief asserted in petitioner’s second post-
conviction petition “could not reasonably have been raised”
earlier. More specifically, the question is whether petitioner
could not reasonably have asserted the grounds for relief in
his second post-conviction petition until after the United
States Supreme Court issued its decision in Padilla in 2010.
In analyzing the two escape clauses, we start with
the prohibition against successive petitions and consider
it separately from the prohibition against untimely peti-
tions. Although both clauses are worded identically, one
was enacted in 1959 while the other was enacted in 1989
and modified in 1993. The contexts that preceded the two
clauses differ, as do their legislative histories. We cannot
assume, as the parties do, that the decision in Bartz v. State
of Oregon, 314 Or 353, 839 P2d 217 (1992), which relied
on the 1989 legislative history of ORS 138.510(3) to inter-
pret the escape clause in that statute, necessarily governs
90
The 1989 legislature borrowed the escape clause from the bar against suc-
cessive petitions and inserted it, without modification, in the bar against untimely
petitions. Read literally, the escape clause that the 1989 legislature borrowed
does not fit easily with the prohibition against untimely petitions. However, this
court resolved any tension in the limitations statute when it explained in Bartz v.
State of Oregon, 314 Or 353, 358, 839 P2d 217 (1992), that “the exception in ORS
138.510[(3)] does not require the filing of a timely ‘original or amended’ petition
as a prerequisite to the filing of an untimely petition.”
10
Although the 1993 legislature left the wording of the escape clause
unchanged, the legislature discussed the relationship between the escape clause
and the expanded limitations period at some length in the course of enacting the
1993 amendments to the statute of limitations. See, e.g., Tape Recording, House
Committee on the Judiciary, Subcommittee on Crimes and Corrections, Apr 7,
1993, Tape 70, Side A.
Cite as 357 Or 553 (2015) 565
the interpretation of the escape clause in ORS 138.550(3),
which was enacted 30 years earlier. Moreover, because the
1993 legislature discussed the escape clause at some length
in deciding whether to extend the period of limitation, we
also cannot assume that Bartz provides the final answer on
the meaning of ORS 138.510(3), as amended in 1993. See
State v. Ofodrinwa, 353 Or 507, 530, 300 P3d 154 (2013)
(recognizing that the same phrase can have different mean-
ings depending on differences in context and legislative
history).
We accordingly turn to the text of ORS 138.550.
The texts of ORS 138.550(2) and (3) express a complete
thought. If a petitioner has appealed from a judgment of
conviction and if the petitioner could have raised a ground
for relief on direct appeal, then the petitioner cannot raise
that ground for relief in a post-conviction petition “unless
such ground was not asserted and could not reasonably have
been asserted in the direct appellate review proceeding.”
ORS 138.550(2). Additionally, all grounds for relief must be
raised in the original or amended petition for post-conviction
relief unless the post-conviction court “on hearing a sub-
sequent petition finds grounds for relief asserted therein
which could not reasonably have been raised in the original
or amended petition.” ORS 138.550(3). Read together, those
two statutory provisions express the legislature’s determi-
nation that, when a petitioner has appealed and also has
filed a post-conviction petition, the petitioner must raise all
grounds for relief that reasonably could be asserted. See
Johnson v. Premo, 355 Or 866, 874-75, 333 P3d 288 (2014)
(explaining that ORS 138.550(3) codifies claim preclusion
principles). The failure to do so will bar a petitioner from
later raising an omitted ground for relief. Id.
We also note, as an initial matter, that ORS
138.550(3) provides that all grounds for relief be must
asserted in the original or amended petition “unless” the
post-conviction court finds that they could not have been
raised earlier. That phrasing places the burden on the peti-
tioner to show that an omitted ground for relief comes within
the escape clause. See Cain v. Gladden, 247 Or 462, 464, 430
P2d 1015 (1967) (sustaining a demurrer to a post-conviction
petition because the petitioner had neither alleged nor
566 Verduzco v. State of Oregon
shown that a new ground for relief asserted in a subsequent
petition could not reasonably have been raised in the origi-
nal or amended petition).
Turning to the specific wording of the escape clause,
we note that the legislature’s use of the word “could” in ORS
138.550(3) “connotes capability, as opposed to obligation.”
See OR-OSHA v. CBI Services, Inc., 356 Or 577, 589, 341
P3d 701 (2014) (considering a similar verb phrase). That
is, the word “could” asks whether a petitioner was “capable
of” raising the ground for relief in the first petition that
later was raised in a second petition. See id. To be sure, the
adverb “reasonably” modifies the phrase, “could * * * have
raised.” As a result of that adverb, the question under ORS
138.550(3) is not whether a petitioner conceivably could
have raised the grounds for relief in an earlier petition.
Rather, the question is whether the petitioner reasonably
could have raised those grounds for relief earlier, a ques-
tion that calls for a judgment about what was “reasonable”
under the circumstances. See id. at 591 (phrase “reasonable
diligence” requires a “value judgment about what is ‘rea-
sonable’ and what is ‘diligence’ under the circumstances of
each case”).
The context provides some insight into what the use
of the word “reasonably” means, most notably this court’s
cases interpreting ORS 138.550(2) and (3). In many of those
cases, the petitioners alleged that they could not reasonably
have raised a ground for relief earlier because those grounds
depended on newly discovered facts. See, e.g., Cain, 247 Or
at 464; Freeman v. Gladden, 236 Or 137, 139, 387 P2d 360
(1963). And the question whether those new grounds for
relief came within the escape clause in ORS 138.550(2) or
(3) turned on whether the petitioners persuaded the post-
conviction court that the facts on which their new grounds
for relief depended could not reasonably have been discov-
ered sooner.
In two cases, this court considered a claim that
the petitioner could not reasonably have raised a ground
for relief earlier because of changes in the law. See North
v. Cupp, 254 Or 451, 461 P2d 271 (1969); Haynes v. Cupp,
253 Or 566, 456 P2d 490 (1969), overruled on other grounds,
Cite as 357 Or 553 (2015) 567
State v. Evans, 258 Or 437, 442, 483 P2d 1300 (1971).11 This
court held in North that the petitioner reasonably could have
raised his Fourth Amendment claim earlier but reached
a different conclusion in Haynes regarding the petitioner’s
Sixth Amendment claim. We begin with North, which pre-
sented a relatively straightforward issue. We then turn to
Haynes, which involved a more complex determination.
In North, the petitioner alleged that officers had
searched his car in violation of the Fourth Amendment, but
he had not raised that issue on direct appeal. This court
held that ORS 138.550(2) barred his claim because he rea-
sonably could have raised the issue earlier. The Fourth
Amendment claim was fairly obvious. Officers had searched
the petitioner’s car without a warrant six days after they
arrested him, and they found evidence in his car that later
was admitted against him in his criminal trial. 254 Or at
453-54. As the court observed, there “was nothing obscure
about the law” that would have prevented the petitioner from
raising the Fourth Amendment issue on direct appeal. Id. at
458. The United States Supreme Court had held a year and
a half earlier in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6
L. Ed. 2d 1081 (1961), that the Fourth Amendment applied to
the states, and the challenged search was a garden variety
Fourth Amendment violation. Id.12
Haynes involved a more complex issue. The peti-
tioner in Haynes alleged that police officers had interrogated
him without informing him of his right to remain silent and
his right to counsel in violation of Escobedo v. Illinois, 378
U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964). Haynes, 253 Or
at 568. The state responded, among other things, that ORS
138.550(2) barred the petitioner from raising that ground
for relief in post-conviction because he reasonably could
11
In Evans, this court followed the retroactivity rule that the federal courts
recently had applied to Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed.
2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966). See Evans, 258 Or at 442. In doing so, it overruled Haynes to the
extent that this court had applied a different retroactivity rule to the petitioner’s
Escobedo claim in that case. Id.
12
North is notable, not for the holding discussed above, but for its conclu-
sion that Oregon’s post-conviction statutes do not permit a petitioner to raise an
issue on post-conviction that the petitioner reasonably could have raised on direct
appeal if he or she had made a contemporaneous objection below.
568 Verduzco v. State of Oregon
have raised it on direct appeal. Id. at 570. As this court
explained in Haynes, the petitioner’s trial and direct appeal
had occurred during a period when the substantive and pro-
cedural rules governing confessions were undergoing a seis-
mic shift.
Regarding substantive rules, the United States
Supreme Court decided Escobedo as the petitioner was brief-
ing his direct appeal and held that, when several conditions
combined, the Sixth Amendment required officers to advise
custodial suspects of the right to remain silent before ques-
tioning them.13 See Haynes, 253 Or at 570. Several months
after the petitioner’s direct appeal ended, this court issued
an opinion in which it extended Escobedo by converting what
had been a condition in Escobedo for the Sixth Amendment
to attach into additional information that officers must tell
custodial suspects. See id. (discussing State v. Neely, 239 Or
487, 398 P2d 482 (1965) (on reconsideration)).14
Regarding procedural rules, this court issued pro-
cedural rulings in three other cases after it decided Haynes’
appeal that, if they had been available, would have per-
mitted Haynes to challenge his confession under Escobedo
and Neely.15 First, this court held that Escobedo applied
to all cases that were “being tried or upon direct appeal”
when Escobedo was decided. State v. Clifton, 240 Or 378,
380, 401 P2d 697 (1965). Second, the court held that Neely’s
later extension of Escobedo “related back” to Escobedo and
applied to cases pending on direct appeal when Escobedo
13
Escobedo held that, when a person has become the focal suspect, been
taken into police custody, and been questioned by the police and when the person
has asked for and been denied counsel, the Sixth Amendment right to counsel
attaches and requires that the person be told of the “absolute constitutional right
to remain silent.” 378 U.S. at 490-91. The failure to do so meant that the person’s
statements could not be used against him or her. Id.
14
In Neely, this court held on reconsideration that a suspect need not ask for
and be denied counsel to be entitled to the Sixth Amendment right recognized
in Escobedo. 239 Or at 503-04. Rather, the Sixth Amendment requires officers
to advise persons who are focal suspects that they have a right to counsel before
questioning them. Id. Neely thus converted what had been in Escobedo a condi-
tion for a defendant’s Sixth Amendment right to attach before trial into a require-
ment that a defendant be advised of the right to counsel.
15
This court heard oral argument on petitioner’s direct appeal on November 5,
1964, and issued its opinion 13 days later on November 18, 1964. State v. Haynes,
239 Or 132, 396 P2d 694 (1964).
Cite as 357 Or 553 (2015) 569
was decided. Elliott v. Gladden, 244 Or 134, 411 P2d 287
(1966). Third, the court held that, if the defendant’s crimi-
nal trial had ended before the Court decided Escobedo, the
defendant could argue on direct appeal that his or her con-
fession had been admitted in violation of Escobedo without
having raised that objection at trial. Clifton, 240 Or at 379.
Having chronicled those substantive and procedural
shifts, this court rejected in one sentence the argument that
the petitioner reasonably could have raised his claim under
Escobedo and Neely on direct appeal. It stated: “Under these
circumstances we hold that the petitioner could not have
reasonably asserted this ground [that the police obtained
his confession without advising him of his right to remain
silent and his right to counsel in violation of Escobedo and
Neely] upon direct appeal.” Haynes, 253 Or at 571. As the
court’s use of the phrase “these circumstances” suggests,
its holding turns on the combination of procedural and sub-
stantive changes that the court had identified in Haynes and
that we have discussed above.
North and Haynes are relevant because they mark
two points on the spectrum where this court held that a
ground for relief reasonably could and could not have been
raised. North involved the application of settled principles
to a new set of facts and tells us little about when counsel
reasonably should have anticipated a ground for relief that
had not yet been definitively resolved. Haynes is closer to
the mark in that the petitioner’s counsel in that case per-
haps reasonably could have raised some of the federal sub-
stantive and state procedural issues that were being decided
either during the direct appeal in that case or after it ended.
However, as we read the court’s holding, it was the combina-
tion of those procedural and substantive changes that per-
suaded the court that the petitioner in Haynes reasonably
could not have raised his claim under Escobedo and Neely
on direct appeal. Because of the combination and complexity
of those changes, the value that Haynes provides in deciding
other cases is limited.
In addition to a statute’s context, we also consider
its legislative history. The legislative hearings that led to
the enactment of the 1959 post-conviction act do not address
570 Verduzco v. State of Oregon
this issue, nor does the commentary to the uniform act
on which Oregon’s post-conviction act was modeled. See
Uniform Post-Conviction Procedure Act (Uniform Act),
§ 8 comment (1955).16 Contemporaneous scholarly commen-
tary, however, sheds more light on the meaning of ORS
138.550(3). Two lawyers who participated in drafting the
bill that became Oregon’s post-conviction act wrote a law
review article shortly after the act was adopted. See Jack G.
Collins and Carl R. Neil, The Oregon Postconviction-Hearing
Act, 39 Or L Rev 337 (1960). The court repeatedly has
looked to their article in seeking to understand the 1959
post-conviction act. See Johnson, 355 Or at 874-75 (looking
to Collins and Neil’s article to determine the context for the
post-conviction act); Benson v. Gladden, 242 Or 132, 135,
407 P2d 634 (1965) (relying on their article to interpret the
post-conviction act).
Collins and Neil recognize, as this court’s cases have,
that a change in the law can be sufficiently novel or unex-
pected that a claim based on that change can come within
the escape clauses in ORS 138.550(2) and (3). They also
recognize, however, that whether an issue reasonably could
have been raised does not necessarily depend on whether
the issue had been definitively resolved by the courts. In
explaining how the escape clause in ORS 138.550(3) would
work, Collins and Neil set out the following hypothetical:
A petitioner was convicted in state court of a crime based
on evidence obtained in violation of the federal constitution.
Id. at 358. At the time of the criminal trial, the Fourteenth
Amendment did not prohibit the use of that evidence in a
state prosecution. Id. Two years later, the Supreme Court
reversed its position and held that using that evidence in
a state criminal trial violated the Fourteenth Amendment.
Id. at 358-59.
Collins and Neil explain that, if a petitioner filed a
post-conviction petition before the United States Supreme
16
Section 15(3) of the Oregon post-conviction act is taken essentially verba-
tim from section 8 of the Uniform Act. Compare Or Laws 1959, ch 636, § 15(3),
with Uniform Act § 8 (1955); see Datt v. Hill, 347 Or 672, 682-83, 227 P3d 714
(2010) (looking to the Uniform Act as legislative history). The comment to section
8 of the Uniform Act merely restates the act’s text and thus sheds little light on
its meaning. See Uniform Act, § 8 comment.
Cite as 357 Or 553 (2015) 571
Court changed its position, litigated the federal issue in
post-conviction, and lost, ORS 138.550(3) would bar him
from relitigating that ground for relief in a second post-
conviction petition. Id. at 359. However, if the petitioner had
filed a post-conviction petition before the Court changed its
position and litigated other issues, the petitioner would be
barred from filing a second post-conviction petition based
on the Court’s change of position “only if the unconstitution-
ality of the conviction is deemed a ground for relief which
[the petitioner] could not ‘reasonably’ have raised in his first
conviction petition.” Id. Under their explanation, the Court’s
2010 decision in Padilla would not permit petitioner to take
advantage of the escape clause in ORS 138.550(3) because
petitioner alleged that ground for relief in his first post-
conviction petition, litigated it, and lost.
Considering the text, context, and history of ORS
138.550, we conclude, as the Court of Appeals did in Long
v. Armenakis, 166 Or App 94, 97, 999 P2d 461 (2000), that
“whether an issue reasonably could be anticipated and raised
does not depend—at least not in a per se way—on whether the
issue has been definitively resolved by the courts.” Rather,
the question whether a claim reasonably could have been
raised earlier will vary with the facts and circumstances of
each claim. As the Court of Appeals explained in Long:
“The touchstone is not whether a particular question is set-
tled, but whether it reasonably is to be anticipated so that
it can be raised and settled accordingly. The more settled
and familiar a constitutional or other principle on which a
claim is based, the more likely the claim reasonably should
have been anticipated and raised. Conversely, if the consti-
tutional principle is a new one, or if its extension to a par-
ticular statute, circumstance, or setting is novel, unprece-
dented, or surprising, then the more likely the conclusion
that the claim reasonably could not have been raised.”
Id. at 101 (emphasis in original; citations omitted). We can-
not improve on the Court of Appeals’ summary of those gen-
eral principles and adopt its summary as our own.17
17
In Long, the Court of Appeals was construing ORS 138.510(3). However,
we conclude that its summary of when a claim reasonably can be raised captures
the meaning drawn from the text, context, and history of ORS 138.550(3).
572 Verduzco v. State of Oregon
With those principles in mind, we turn to the
grounds for relief that petitioner has alleged in his second
petition for post-conviction relief. As noted, petitioner alleges
that his trial counsel’s advice violated the Sixth Amendment
because she failed to advise him that, if he pleaded guilty to
distribution of a controlled substance, it was virtually inevi-
table that he would be removed. He also alleges that his plea
was not knowing, and therefore violated the Due Process
Clause, because the trial court did not give him the same
advice before accepting his guilty plea.18
Were it not for one fact, it might be a close call
whether petitioner reasonably could have raised those two
grounds for relief in his first post-conviction petition. As
the United States Supreme Court recognized in Padilla,
Kentucky was “far from alone” in holding in 2008 that the
effect of a state conviction on a defendant’s immigration sta-
tus was a collateral consequence of a guilty plea that did
not implicate the Sixth Amendment. Padilla, 559 U.S. at 365.
That is, it is fair to describe the distinction that Kentucky
drew between collateral and direct consequences of a con-
viction as the majority view among the lower courts. See
Chaidez, 133 S. Ct. at 1109 (discussing cases).
There was, of course, countervailing authority.
As the Court explained in Padilla, it had “never applied a
distinction between direct and collateral consequences to
define the scope of constitutionally ‘reasonable professional
assistance’ required under Strickland[.]” 559 U.S. at 365. Not
only was the Sixth Amendment issue thus an open one, but
federal courts of appeals had recognized for 20 years before
petitioner filed his first post-conviction petition that fail-
ing to ask for a binding recommendation from a sentencing
court that the defendant not be removed violated the Sixth
Amendment. Id. at 362-63; see United States v. Castro, 26
F3d 557 (5th Cir 1994); Janvier v. United States, 793 F2d
18
Petitioner’s argument assumes that his second ground for relief follows
from Padilla. We note, however, that a trial court’s Fourteenth Amendment
obligation to ensure that a defendant’s guilty plea is knowing is not necessarily
coextensive with his counsel’s Sixth Amendment obligation to provide constitu-
tionally adequate assistance. Given our holding that ORS 138.550(3) bars the
grounds for relief alleged in petitioner’s second post-conviction petition, we need
not decide the extent to which those two claims differ.
Cite as 357 Or 553 (2015) 573
449 (2d Cir 1986).19 Similarly, as the Court observed, “the
weight of prevailing professional norms supports the view
that counsel must advise her client regarding the risk of
deportation.” Id. at 367 (citing law review articles, treatises,
and professional guidelines that predated 2006).
We need not decide whether, given that conflicting
authority, petitioner reasonably could have raised the con-
stitutional claims in his first post-conviction petition that he
now raises in his second post-conviction petition. The fact
is that, in this case, he did. Having raised those grounds
for relief in his first post-conviction petition, he cannot
claim that he could not reasonably have raised them. ORS
138.550(3); see Collins and Neil, The Oregon Postconviction-
Hearing Act, 39 Or L Rev at 359. As we understand peti-
tioner’s contrary argument, it reduces to the proposition
that he could not reasonably have raised those grounds for
relief until after the United States Supreme Court decided
Padilla. For the reasons explained above, we do not con-
strue the escape clause in ORS 138.550(3) that broadly. The
escape clause does not preclude petitioner from relitigating
only those grounds for relief that he was certain he could
win when he filed his first post-conviction petition. Rather,
it precludes him raising those grounds of relief that he could
not reasonably have raised in his first petition.20
Because we hold that ORS 138.550(3) bars the
claims that petitioner alleges in his second post-conviction
petition, we need not decide whether ORS 138.510(3)
19
To be sure, the holdings in those intermediate appellate court decisions
differ in degree from the holding that the Court announced in Padilla. However,
those lower court decisions recognized that a lawyer’s failure to take steps in
negotiating a guilty plea to protect his or her client from adverse immigration
consequences could constitute inadequate assistance in violation of the Sixth
Amendment. Put differently, those courts did not apply the distinction between
direct and collateral consequences in that context.
20
In applying claim preclusion principles to post-conviction proceedings, the
1959 legislature made a policy choice that persons who file for post-conviction
petition relief must litigate completely all grounds for relief that they reasonably
could assert or risk the possibility that their claims will be foreclosed in future
state collateral challenges. In this case, the timing was such that, if petitioner
had sought certiorari in his first post-conviction proceeding, the Court likely
would have held his petition pending its resolution of Padilla and then granted
the petition, vacated the judgment, and remanded the case to the Oregon Court
of Appeals for reconsideration in light of Padilla.
574 Verduzco v. State of Oregon
imposes the same or a different standard; that is, we need
not decide whether the differing context and legislative
history of ORS 138.510(3), which was enacted in 1989 and
amended in 1993, lead to a more stringent or a more forgiv-
ing standard of reasonableness. Similarly, we do not need
to decide whether we would choose to adhere to the federal
standard of retroactivity or, if we were to adopt a different
standard, what principles would inform it. It is sufficient in
this case to hold that ORS 138.550(3) bars the grounds for
relief alleged in petitioner’s second post-conviction petition.
The Court of Appeals decision and the judgment of
the circuit court are affirmed.