CARVEL GORDON DILLARD

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1 March 3, :00 am CARVEL GORDON DILLARD v. JEFF PREMO S064028

2 June 6, :16 PM IN THE COURT OF APPEALS OF THE STATE OF OREGON CARVEL GORDON DILLARD, Petitioner-Appellant, v. Marion County Circuit Court Case No. 10C22490 CA A JEFF PREMO, Superintendent, Oregon State Penitentiary, Defendant-Respondent. APPELLANT S OPENING BRIEF Appeal from the Judgment of the Circuit Court for Marion County Honorable Dale W. Penn, Circuit Court Judge JED PETERSON # Attorney at Law O Connor Weber, LLP Attorneys at Law 522 SW Fifth Avenue, Suite 812 Portland, OR jed@oconnorweber.com Phone: Attorney for Petitioner-Appellant ELLEN ROSENBLUM # Attorney General ANNA JOYCE # Solicitor General 400 Justice Building 1162 Court Street NE Salem, OR anna.joyce@doj.state.or.us Phone: (503) Attorneys for Defendant-Respondent 06/14

3 TABLE OF CONTENTS STATEMENT OF THE CASE... 1 Nature of the Proceeding... 1 Nature of the Judgment... 1 Jurisdiction... 1 Notice of Appeal... 3 Questions Presented... 3 Summary of Argument... 4 Summary of Facts... 5 A. Standard of Review... 5 B. Summary of Pertinent Facts... 5 FIRST ASSIGNMENT OF ERROR... 9 Preservation of Error... 9 Standard of Review...11 Argument...11 I. Petitioner stated cognizable claims II. The court misreads the petition with respect to petitioner s claims of actions by the state III. Petitioner did not allege that the trial court erred, but rather that appellate counsel was ineffective for failing to argue that the trial court erred i APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

4 IV. Petitioner sufficiently alleged how his appellate counsel was ineffective and inadequate V. A claim of actual innocence is cognizable in post-conviction...23 SECOND ASSIGNMENT OF ERROR...27 Preservation of Error...27 Standard of Review...28 Argument...28 CONCLUSION...35 ii APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

5 iii APPELLANT S OPENING BRIEF TABLE OF AUTHORITIES Cases Anderson v. Gladden, 234 Or 614, 383 P2d 986 (1963)...24 Ayer v. Coursey, 253 Or App 726, 292 P3d 595 (2012)... 5 Ball v. Gladden, 250 Or 485, 443 P2d 621 (1968)... 5 Bartz v. State, 314 Or 353, 839 P2d 217 (1992)... 26, 32 Bradbury v. Teacher Standards and Practices Comm., 328 Or 391, 977 P2d 1153 (1999)... 5 Brady v. Maryland, 373 US 83, 83 S Ct 1194, 10 L Ed 2d 215 (1963)... 10, 17 Carriger v. Stewart, 132 F3d 463, (9th Cir 1997)...25 DA s Office v. Osborne, 557 US 52, 129 S Ct 2308, 174 L Ed 2d 38 (2009)...26 Duncan v. Louisiana, 391 US 145, 158, 88 S Ct 1444, 20 Led 2d 491 (1968)...32 Dunn v. Hill, 211 Or App 590, 156 P3d 72 (2007)...11 Guinn v. Cupp, 304 Or 488, 747 P2d 984 (1987)...19 Herrera v. Collins, 506 US 390, 113 S Ct 853, 122 L Ed 2d 203 (1993)...24 O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

6 Howell v. Franke, 258 Or App 202, 308 P3d 1078 (2013)... 27, 28, 34 In re Winship, 397 US 358, 25 L Ed 2d 368, 90 S Ct 1068 (1970)...25 Leyva-Grave-de-Peralta v. Blacketter, 232 Or App 441, 223 P3d 411 (2009)...11 Medina v. California, 505 US 437, 112 S Ct 2572, 120 L Ed 2d 353 (1992)...26 Ogle v. Nooth, 254 Or App 665, 298 P3d 32 (2013)... 2 Palmer v. State, 318 Or 352, 867 P2d 1368 (1994)... 15, 16, 17, 19 Pedroso v. Nooth, 251 Or App 688, 284 P3d 1207 (2012), rev den, 353 Or 203 (2013)...2, 3 Quimby v. Hill, 213 Or App 124, 159 P3d 1264 (2007)... 5 Schlup v. Delo, 513 US 298, 115 S Ct 851, 130 L Ed 2d 808 (1995)... 11, 25, 26 State v. Jury, 185 Or App 132, 57 P3d 970 (2002), rev den, 335 Or 504 (2003)...33 State v. Thompson, 328 Or 248, 971 P2d 879 (1999)...33 Ware v. Hall, 342 Or 444, 154 P3d 118 (2007)... 28, 29, 30, 31, 34 iv APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

7 Yeager v. Maass, 93 Or App 561, 763 P2d 184 (1988), rev den, 307 Or 340 (1989)... 11, 28 Young v. Ragen, 337 US 235, 69 S Ct 1073, 93 L Ed 1333 (1949)...32 Constitutional Provisions and Statutes US Const, Amend VI... 13, 23, 32 US Const, Amend XIV... 24, 25, 26, 32 ORS ORS ORS , 12, 28, 29 ORS , 2, 29, 30 ORS , 12, 14, 19, 23, 24, 25, 26 ORS , 28 ORS , 3, 11 ORS , 29 ORS , 11, 28, 29 ORS , 22 ORS ORS v APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

8 APPELLANT S OPENING BRIEF STATEMENT OF THE CASE Nature of the Proceeding Appellant, petitioner below and hereafter, appeals from a trial court judgment denying him post-conviction relief. Petitioner initiated the proceeding by filing a petition for post-conviction relief. A copy of the petition is attached at ER-1. Nature of the Judgment The post-conviction trial court dismissed the petition on defendant s motion and entered a general judgment. A copy of the general judgment is attached at ER-44. Jurisdiction This court has jurisdiction under ORS ORS (3) states, Notwithstanding ORS , a judgment dismissing a meritless petition is not appealable. A meritless petition is 1 ORS (1) provides, in part, Either the petitioner or the defendant may appeal to the Court of Appeals within 30 days after the entry of a judgment on a petition pursuant to ORS to APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

9 defined as one that, when liberally construed, fails to state a claim upon which post-conviction relief may be granted. ORS (2). In Pedroso v. Nooth, 251 Or App 688, , 284 P3d 1207 (2012), rev den, 353 Or 203 (2013), this court held that the statute does not allow the appeal from a post-conviction judgment entered after the court granted the state s motion to dismiss for failure to state a claim upon which post-conviction relief may be granted. By contrast, in Ogle v. Nooth, 254 Or App 665, 298 P3d 32 (2013), this court treated a judgment that dismissed a petition for failure to comply with the attachment provision of ORS as an appealable judgment, as opposed to the dismissal of a meritless petition. Ogle suggests that when a post-conviction judgment dismissing a petition is based on the interpretation of a statute other than ORS , the judgment is appealable; however, if the dismissal is based on ORS , the judgment is not appealable. Here, the defendant moved pursuant to ORAP 21(A)(8) to dismiss petitioner s petition for failure to state ultimate facts sufficient to constitute post-conviction claims. ER-39 (Motion to Dismiss Pro Se Petition for Post- Conviction Relief, hereinafter Motion ). However, each of the defendant s arguments for dismissal is couched in terms of a statute other than ORS Specifically, the defendant argued that (1) the petition does not 2 APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

10 specifically set forth the grounds for post-conviction relief, as required by ORS ; (2) petitioner s allegations against the state and appellate counsel do not establish grounds for relief, as provided by ORS (1); (3) petitioner s allegations against the trial court do not establish a ground for postconviction relief under ORS ; and (4) actual innocence is not a valid post-conviction relief claim under ORS (1). Thus, in dismissing petitioner s petition based on the defendant s arguments, the post-conviction court relied on statutes other than ORS , the statute at issue in Pedroso. Therefore, Pedroso does not control this case, and the judgment is appealable. 3 APPELLANT S OPENING BRIEF Notice of Appeal Judgment was entered in the Marion County Circuit Court on January 6, Petitioner timely filed a Notice of Appeal on January 22, Questions Presented 1. If a petitioner for post-conviction relief alleges that his appellate counsel was ineffective for several reasons, and asserts that he was wrongfully convicted and is legally innocent, has the petitioner stated sufficient facts to establish a claim for post-conviction relief? 2. Does the Post-Conviction Hearing Act (PCHA) allow a court to dismiss a petition for post-conviction relief with prejudice, if the court has appointed O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

11 counsel for the petitioner but does not hold a hearing on whether to dismiss the petition? 4 APPELLANT S OPENING BRIEF Summary of Argument 1. A trial court can dismiss a petition for post-conviction relief if a petitioner fails to state ultimate facts that constitute a claim for post-conviction relief. Here, petitioner specifically alleged facts that explained how his appellate counsel was ineffective and described several actions appellate counsel should have taken. Petitioner also alleged that he was prejudiced by the representation because he was convicted of a crime, which would have been reversed but for appellate counsel s inadequacy. Because petitioner alleged specific facts that explained how his constitutional rights were violated and that the violations led to a conviction, petitioner stated sufficient facts to assert a claim for post-conviction relief. 2. Case law from the Supreme Court construing the PCHA statutory scheme holds that when a post-conviction trial court dismisses a petition without holding a hearing, it must dismiss the petition without prejudice. Here, the court dismissed the petition with prejudice, but did not previously hold a hearing on whether to dismiss the petition. The post-conviction court thus erred in dismissing the petition with prejudice. O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

12 Summary of Facts A. Standard of Review This court accepts the post-conviction trial court s factual findings that are supported by evidence in the record. Ayer v. Coursey, 253 Or App 726, 728, 292 P3d 595 (2012). If the post-conviction court did not expressly make factual findings, and there is evidence from which the facts could be decided more than one way, we will presume that the facts were decided in a manner consistent with the court s ultimate conclusion. Id. (quoting Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968)). On review of a motion to dismiss, this court assume[s] the truth of all well-pleaded facts alleged in the complaint and gives petitioner the benefit of all favorable inferences that may be drawn from those facts. Bradbury v. Teacher Standards and Practices Comm., 328 Or 391, 393, 977 P2d 1153 (1999). See Quimby v. Hill, 213 Or App 124, 132, 159 P3d 1264 (2007) (noting that on review of a motion to dismiss pursuant to ORCP 21 A(8), we assume the truth of the challenged accusations ). B. Summary of Pertinent Facts 5 APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

13 Petitioner was charged by superseding indictment with four counts of sexual abuse in the second degree (Counts 1, 3, 5, and 7), ORS , and four counts of prostitution (Counts 2, 4, 6, and 8), ORS , in Josephine County case no. 05-CR Def Ex 102 (superseding indictment) (TCF 150). The indictment alleged crimes against two victims, Fisher and Knowlton. Def Ex 102 (TCF ). A jury found petitioner guilty of Counts 5 and 6, which involved the victim Fisher, and the court dismissed the remaining counts. Def Ex 112 (judgment) (TCF 197). For Count 5, the court sentenced petitioner to 60 months of probation, with 30 days in jail as a special condition of probation. Def Ex 112. For Count 6, the court sentenced petitioner to 60 months of probation, with 180 days in jail as a special condition of probation, to be served consecutive to the sentence in Count 5. Def Ex 112. Petitioner appealed. See Def Ex 124 (appellant s brief) (TCF 237); Def Ex 125 (appellant s supplemental pro se brief) (TCF 281); Def Ex 126 (respondent s answering brief) (TCF 292). The Court of Appeals affirmed without opinion, and the Supreme Court denied review. Def Ex 127 (appellate judgment) (TCF 346); State v. Dillard, 233 Or App 510, 226 P3d 130, rev den, 348 Or 461 (2010). 6 APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

14 Petitioner filed a pro se petition for post-conviction relief. In the petition, petitioner alleged that after he was arrested, he requested court-appointed counsel, but the request was denied. ER Petitioner also alleged that the trial court, over objection, denied petitioner resources while he was in custody that caused his pro se defense to be inadequate. ER-18. Petitioner alleged that at trial, he was denied discovery to which he was statutorily and constitutionally entitled. ER-10, -12, Petitioner could have used the discovery to impeach the victim, Fisher, who testified against him. ER-11, Petitioner preserved other issues at trial as well, including a demurrer to the indictment and the request for an instruction to the jury on a lesser-included offense. ER-27-28, Petitioner alleged that the victims, Fisher and Knowlton, conspired together and repeatedly burglarized mens residences and then if discovered they threatened the men with prosecution for statutory rape. ER-5-6. The prosecution knew at least some details of the scheme and made deals with both the victims, but concealed the truth from petitioner. ER-5-6. Petitioner was not aware of the conspiracy or the state s involvement in it until long after trial, after Fisher was convicted of first degree burglary in another case. ER-6-7, -9-10, APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

15 Petitioner was represented by appellate counsel, who did not assign error to the discovery violation, the trial court s refusal to provide court-appointed counsel to petitioner, the trial court s deprivation of petitioner s access to resources, the trial court s denial of petitioner s demurrer, or the court s refusal to instruct the jury as to a lesser-included offense. ER-11-14, , , The petition for post-conviction relief alleges that petitioner is actually innocent of the charges against him. See ER-7, -24, -35. The defendant moved to dismiss the petition on the grounds that petitioner fails to state ultimate facts sufficient to constitute post-conviction claims. Motion to Dismiss Pro Se Petition for Post-Conviction Relief at 1 (TCF 787). Appointed counsel for petitioner responded to the defendant s motion. Petitioner s Response to Defendant s Motion to Dismiss (hereinafter Response ) (TCF 792). Without a hearing, the trial court granted the defendant s motion and issued an opinion letter and judgment that dismissed the petition. ER-43; ER APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

16 FIRST ASSIGNMENT OF ERROR The post-conviction trial court erred in dismissing petitioner s petition for post-conviction relief on the basis that it failed to state ultimate facts sufficient to constitute post-conviction claims. Preservation of Error Defendant filed a motion to dismiss petitioner s pro se petition for postconviction relief. ER-39. The motion argued that under ORCP 21(A)(8) 2, the trial court should dismiss petitioner s petition because it fails to state ultimate facts sufficient to constitute post-conviction claims. ER-39. The motion specifically argued that (1) [p]etitioner makes no cognizable claims, (2) [p]etitioner s complaints of prosecutorial misconduct fail to state a claim for post-conviction relief, (3) [p]etitioner s complaints of trial court error fail to state a claim for post-conviction relief, (4) [p]etitioner s complaints about 2 ORCP 21 A provides, in part, Every defense, in law or fact, to a claim for relief in any pleading, whether a complaint, counterclaim, cross-claim or third party claim, shall be asserted in the responsive pleading thereto, except that the following defenses may at the option of the pleader be made by motion to dismiss: * * * (8) failure to state ultimate facts sufficient to constitute a claim[.] 9 APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

17 appellate counsel do not state a claim for post-conviction relief, and (5) [a]ctual innocence is not a claim for relief under Oregon law. ER Petitioner filed a response to defendant s motion to dismiss. In the response, petitioner disputed each of defendant s claims regarding the petition. Petitioner argued that his factual allegations are, at worst, surplusage and certainly not fatal to petitioner s claims. Response at 3. Petitioner argued the petition was sufficient to state a claim regarding prosecutorial misconduct because the petition allege[s] petitioner was forced into trial without counsel, denied a legitimate continuance to retain counsel, suddenly arrested and incarcerated without access to his legal materials, denied appointment of trial counsel and denied access to legal resources. Response at 4. In addition, the petition alleges other Brady violations and prosecutorial misconduct that, when taken as true, establish a substantial violation of his federal constitutional due process rights during the proceedings resulting in his conviction. Response at 5. Petitioner argued that his allegations establish that the trial court s erroneous conduct itself effectively prevented him from raising and preserving its errors for appeal. Response at 6-7. Petitioner outlined valid claims that appellate counsel did not raise on appeal. Response at Petitioner also argued that petitioner s pleadings are sufficient to 10 APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

18 allege actual innocence under [Schlup v. Delo, 513 US 298, 115 S Ct 851, 130 L Ed 2d 808 (1995)]. Response at 10. The court issued a letter opinion, granting defendant s motion to dismiss. The court stated, [t]he Court finds Defendant s arguments persuasive and adopts them as the basis for ruling. ER APPELLANT S OPENING BRIEF Standard of Review Appellate review of post-conviction proceedings is limited to questions of law appearing on the record. ORS (1); ORS ; see Yeager v. Maass, 93 Or App 561, 564, 763 P2d 184 (1988), rev den, 307 Or 340 (1989). Whether a petition states ultimate facts sufficient to state a claim for postconviction relief is a question of law. See Dunn v. Hill, 211 Or App 590, , 156 P3d 72 (2007) (applying standard in a habeas corpus case). Argument ORS provides that [t]he petition [for post-conviction relief] shall set forth specifically the grounds upon which relief is claimed, and shall state clearly the relief desired. ORCP 12 A, which applies to post-conviction proceedings, provides, All pleadings shall be liberally construed with a view of substantial justice between the parties. See Leyva-Grave-de-Peralta v. Blacketter, 232 Or App 441, , 223 P3d 411 (2009) (noting that the O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

19 Oregon Rules of Civil Procedure apply in post-conviction proceedings, but only to the extent that a more specific statute in the Post-Conviction Hearing Act does not apply ). Under this framework, the post-conviction court erred in dismissing the petition because when liberally construed and taken as true the petition alleges ultimate facts sufficient to state a claim for post-conviction relief. Accordingly, this court should reverse the trial court s judgment and remand for further proceedings. I. Petitioner stated cognizable claims. The court dismissed the petition in part because of defendant s argument that petitioner made no cognizable claims. ER-39. Petitioner s petition, however, stated cognizable claims, because he identified what rights were violated and how the violation prejudiced him. ORS (1) describes the cognizable claims that can be raised in a post-conviction proceeding: Post-conviction relief pursuant to ORS to 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 conviction, or in the appellate review thereof, of petitioner's rights under the Constitution of the United States, or 12 APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

20 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 sentence authorized by law for the crime of which petitioner was convicted; or unconstitutionality of such sentence. (d) Unconstitutionality of the statute making criminal the acts for which petitioner was convicted. First, petitioner alleged the specific rights that were violated. Petitioner alleged that he was denied discovery, in violation of ORS and ORS and petitioner s constitutional due process rights and petitioner s U.S. constitutional due process right to fair trial. ER-10, -12, -14. Petitioner alleged that he has a Sixth Amendment right to court-appointed counsel, which was violated in this case. ER-24. Petitioner alleged that his court-appointed appellate attorneys were constitutionally inadequate. ER-25. Petitioner also alleged that his appellate counsel should have raised an argument on appeal that demonstrated clear error and violated constitutional due process fair trial rights. ER-32. Petitioner offered several reasons why those rights were violated. For example, petitioner detailed several actions of his appellate counsel in support 13 APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

21 of his claim that his appellate counsel was ineffective. Petitioner alleged that his appellate counsel should have assigned error to the trial court s refusal to provide petitioner discovery of police officer reports and notes of witness interviews that could have been used to impeach Fisher at trial. ER Appellate counsel also should have assigned error to the trial court s refusal to provide court-appointed counsel to petitioner, ER-16-17, , the trial court s deprivation of petitioner s access to resources sufficient to adequately represent himself at trial, ER-18-19, the trial court s denial of petitioner s demurrer to the indictment, ER-27-28, , and the trial court s refusal to instruct the jury as to a lesser-included offense, ER Taken together and in light of the admonition that claims are to be read liberally and assuming the truth of the pleaded facts the petition establishes that petitioner has alleged specific, cognizable claims under ORS Petitioner alleged that his rights were violated, and he specifically described how his rights were violated. Therefore, he specifically set forth his claims for relief, as required by ORS II. The court misreads the petition with respect to petitioner s claims of actions by the state. 14 APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

22 The court also dismissed the petition because petitioner s claims against the state including prosecutorial misconduct and actions by the state did not constitute valid post-conviction claims: ER-40. In general, a claim for post-conviction relief must be based on an allegation of inadequate assistance of counsel. The Oregon Supreme Court has held that a post-conviction petitioner may not assert an issue that was not raised at trial in the underlying criminal proceeding, when the petitioner reasonably could have been expected to raise that issue in the trial court and when the petitioner does not assert that the failure to raise that issue constituted an inadequate assistance of trial counsel. Palmer v. State, 318 Or 352, 354, 867 P2d 1368 (1994). Thus, in order to state a claim for post-conviction relief, a petitioner must allege either inadequate assistance of counsel for failing to raise the given issue or circumstances to show why he could not reasonably have been expected to raise the issue at trial. Id. at 362. In all of these complaints, petitioner does not allege that counsel was inadequate for failing to raise the issue of alleged misconduct. Further, petitioner was aware of the information he lists in this complaint and reasonably could have litigated this matter during the trial proceedings. Therefore, under Palmer, this claim is not grounds for post-conviction relief. Accordingly, these claims should be dismissed with prejudice. 15 APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

23 The state misreads the petition when it asserts that petitioner reasonably could have litigated the issues at trial. Palmer holds that when a criminal defendant fails to raise an issue at trial that the defendant reasonably could have been expected to raise, the defendant cannot obtain post-conviction relief unless he demonstrates that the failure to raise the issue falls within one of several narrowly drawn exceptions. 318 Or at 358. One of those exceptions is where counsel was excusably unaware of facts which would have disclosed a basis for the assertion of the right. Id. at 357. In the petition, petitioner alleged several claims that could not reasonably have been raised at trial or the direct appeal because he was not aware of the underlying facts. Petitioner alleged that the victims, Fisher and Knowlton, conspired together and repeatedly burglarized mens residences and then if discovered they threatened the men with prosecution for statutory rape. ER-5-6. Petitioner alleged that the prosecution knew at least some details of the scheme and made deals with both the victims, but concealed the truth from petitioner. ER-5-6. Petitioner alleged that [t]he state concealed the interest of Fisher and it was not exposed to petitioner until long after trial, after Fisher was convicted of first degree burglary in another case. ER APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

24 Petitioner alleged that the prosecutor was complicit in the conspiracy, by offering immunity to Fisher and Knowlton in exchange for testimony that petitioner had engaged in criminal conduct. ER-6-7. Petitioner alleged that the prosecutor suborned perjury from both Knowlton and Fisher with threats of prosecution unless they recanted prior testimony, which testimony exonerated petitioner of all criminal charges. ER-9. Petitioner was not aware of the facts until after his trial. ER-10, Petitioner also alleged that the denial of police reports that contained the conflicting statements by Fisher was a violation of his federal due process right to a fair trial and Brady v. Maryland, 373 US 83, 83 S Ct 1194, 10 L Ed 2d 215 (1963). ER For each of petitioner s claims, he alleged a substantial violation of his federal constitutional right to due process. His allegations also established that he could not have raised the claims during trial, because he was unaware of the underlying facts until after trial. Thus, petitioner s claims satisfy the Palmer rule, and the post-conviction court erred in dismissing the claims. III. Petitioner did not allege that the trial court erred, but rather that appellate counsel was ineffective for failing to argue that the trial court erred. 17 APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

25 The post-conviction court dismissed petitioner s claims against the trial court, based on defendant s argument: ER Petitioner also complains of trial court error. These are not proper post-conviction claims. Pursuant to ORS and the case law interpreting the Post-Conviction Hearing Act, a petitioner cannot seek post-conviction relief upon grounds that either were, or could have been, raised on direct appeal. The complaints about the court are arguments that could or should have been raised on direct appeal because the alleged error was capable of being decided on the record before the Court of Appeals. Indeed, petitioner did raise this matter on appeal. Further, in general, as previously explained, a claim for post-conviction relief must be based on an allegation of inadequate assistance of counsel. In the complaints about the court, petitioner does not allege that counsel was inadequate for failing to raise an issue. Therefore, petitioner fails to state ultimate facts sufficient to constitute a claim for post-conviction relief. Accordingly, these claims should be dismissed with prejudice. Here, the state and post-conviction court misread the petition in alleging that the trial court committed error. As argued in more detail below, petitioner did allege several actions of the trial court that violated petitioner s rights, including denying him the right to a court-appointed attorney and denying him access to legal materials. However, petitioner made those allegations in the context of articulating issues that his appellate attorneys should have raised on appeal, but did not. See ER-11, -13, -17. Therefore, petitioner s claims of trial 18 APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

26 court error satisfy the Palmer rule because they are framed in terms of inadequate assistance of counsel. IV. Petitioner sufficiently alleged how his appellate counsel was ineffective and inadequate. The court dismissed petitioner s claims against his appellate counsel, based on defendant s argument: ER-41. Petitioner s complaints about appellate counsel fail to allege facts that would establish a substantial denial in the proceedings resulting in petitioner s convictions, or of petitioner s rights under the Constitution. ORS First, simply stating that counsel failed to do something is a legal conclusion and fails to state ultimate facts to state a claim for relief. Legal conclusions, without more, are legal nullities that present no issue. * * * Second, petitioner does not allege facts articulating how counsel s actions prejudiced petitioner. Accordingly, these claims should be dismissed with prejudice. Contrary to the state s argument, petitioner did not merely allege legal conclusions. Instead, petitioner alleged specific issues that appellate counsel should have raised, and petitioner indicated how the failure to raise them prejudiced his case. See Guinn v. Cupp, 304 Or 488, 496, 747 P2d 984 (1987) (holding that, for a post-conviction petitioner to obtain relief for constitutionally ineffective appellate counsel, the petitioner must establish (1) that competent 19 APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

27 appellate counsel would have asserted the claim, and (2) that had the claim of error been raised, it is more probable than not that the result would have been different ). Petitioner alleged that the trial court refused petitioner discovery of police officer reports and notes of witness interviews. ER-11. Petitioner could have used the reports to impeach Fisher s testimony at trial. ER Petitioner alleged that the trial court s ruling was erroneous, and that [i]t is an inadequate assistance of counsel issue because petitioners appellate counsel neglected to plead the issue to the appeals courts although petitioner demanded that they do so. ER-11, -13. Petitioner alleged that he received inadequate assistance of appellate counsel because his court-appointed appellate attorneys did not raise certain issues on appeal, such as the violation of petitioner s right to court-appointed counsel. ER Petitioner alleged facts to support that he was denied that right. After petitioner was arrested, he requested court-appointed counsel, but the request was denied. ER-16. Petitioner objected and filed a written motion arguing that he needed counsel, but the motion was summarily denied without hearing. ER Petitioner explained, Petitioners appellate counsel seized upon the issue of the denial of motion for trial delay and did argue that issue in 20 APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

28 the court of appeals. But appellate counsel ignored the issue of denial of court appointed counsel for petitioner when they should have argued both issues as either petitioner should have gotten the delay or he should have gotten court appointed counsel. ER-17. Petitioner also alleged that a corresponding issue appeared on the record, specifically that he was denied resources while incarcerated during trial that caused his pro se defense to be inadequate. ER-18. Petitioner argued to the trial court that his lack of information and the lack of other resources hindered his defense, but [p]etitioners appellate counsel did not argue that defense may be rendered inadequate involuntarily if the defense is denied necessary resources. ER-18. With respect to both the claim regarding denial of court-appointed counsel and the claim regarding the denial of resources, petitioner alleged prejudice: Petitioner certainly would not have been convicted of anything if he had been provided with counsel. But petitioner could probably have avoided any conviction while defending himself if the court had allowed petitioner minimal resources. ER-19. Petitioner alleged that the appellate attorneys were ineffective for failing to raise his demurrer to the indictment, which argument was preserved and on 21 APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

29 the record. ER-27. Petitioner raised and preserved a void-for-vagueness challenge to his crime of conviction, arguing that its arbitrary and discriminatory enforcement violated petitioner s [f]ederal and state guarantees of equal treatment under the law. ER Petitioner also argued in favor of the demurrer that the statute did not provide sufficient notice of the criminal conduct. ER-28, Petitioner summarized his argument that the crime of conviction fails to provide persons of ordinary intelligence notice of what conduct it prohibits and it encourages arbitrary and discriminatory enforcement in violation of equal protection guarantees. ER-27. As petitioner argued in the petition, the constitutional violation requires that the conviction must be vacated and the indictment quashed. ER-28. Petitioner alleged that his crime of conviction, second-degree sexual abuse, ORS , had two lesser-included offenses: contributing to sexual delinquency, ORS , and sexual misconduct, ORS ER The trial court refused petitioner s request to instruct the jury as to both lesserincluded offenses. ER-34. Petitioner s appellate counsel argued that the court erred with respect to refusing to instruct as to ORS , but failed to argue that the court also should have instructed as to ORS ER APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

30 In summary, petitioner identified several claims that appellate counsel should have raised on appeal, and petitioner identified how the failure to raise the claims prejudiced him and therefore fell below the benchmarks for adequate representation. The petition sufficiently alleged claims against appellate counsel to survive a motion to dismiss. V. A claim of actual innocence is cognizable in post-conviction. The court adopted the state s argument that petitioner s claim of actual innocence was not cognizable in post-conviction relief: ER Petitioner claims he is actually innocent. Petitioner s claim of actual innocence fails to state ultimate facts sufficient to constitute a claim for relief. ORS (1) sets forth four categories of claims on which the post-conviction court can grant relief. * * * Petitioner does not argue nor could he that any of those express grounds for post-conviction relief encompass a claim of actual innocence (at least not without a predicate constitutional violation). Accordingly, this claim should be dismissed with prejudice. The petition for post-conviction relief alleges that petitioner is actually innocent of the charges against him. See ER-7 (petitioner alleging that he did not commit any crime and the allegations were false ); ER-24 (alleging that petitioner s Sixth Amendment right to appointed counsel was violated and he was railroaded to conviction although he is actually innocent of all the charges 23 APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

31 of the conviction ); ER-35 ( Petitioner * * * is actually innocent of the charges of conviction. He did not commit the supposed crimes. ). This court and the Oregon Supreme Court have not addressed whether a post-conviction petitioner may bring a freestanding claim of actual innocence. See Anderson v. Gladden, 234 Or 614, 627, 383 P2d 986 (1963) ( We leave open the question whether newly discovered evidence can ever give rise to any kind of common-law post-conviction judicial relief. ). However, such a claim should fall within the scope of the post-conviction hearings act (PCHA). The PCHA requires a court to grant a petitioner post-conviction relief if, among other things, a petitioner establishes [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. ORS (1)(a). Convicting and imprisoning a person for an offense he did not commit violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Cf. Herrera v. Collins, 506 US 390, 417, 113 S Ct 853, 122 L Ed 2d 203 (1993) (assuming, without deciding, that the execution of an innocent person would be unconstitutional ); see also Carriger v. Stewart, APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

32 F3d 463, , (9th Cir 1997) (en banc) (quoting dissent from Herrera to describe test for freestanding claim of actual innocence in federal habeas corpus). The Supreme Court has explained that concern about the injustice that results from the conviction of an innocent person has long been at the core of our criminal justice system. That concern is reflected, for example, in the fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free. Schlup v. Delo, 513 US 298, 325, 115 S Ct 851, 130 L Ed 2d 808 (1995) (quoting In re Winship, 397 US 358, 372, 25 L Ed 2d 368, 90 S Ct 1068 (1970) (Harlan, J., concurring). Accordingly, a court must grant a petitioner postconviction relief under ORS (1)(a) if he establishes, more likely than not, that he is actually innocent of a conviction in the challenged judgment because that conviction would constitute a substantial denial of petitioner s Due Process right to liberty and freedom from a wrongful conviction. In the alternative, due process requires Oregon to allow actual innocence as a ground for relief. If this court concludes that the legislature did not intend ORS (1)(a) to permit a post-conviction relief petitioner to obtain relief based on a freestanding actual innocence claim, then the PCHA violates the Due Process Clause of the Fourteenth Amendment. US Const, Amend XIV. A state must provide a person convicted of a crime with some procedure by which 25 APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

33 to obtain relief for violations of federal constitutional rights. See Bartz v. State, 314 Or 353, , 839 P2d 217 (1992) (summarizing case law). A state postconviction process violates the Due Process Clause if it offends some principal of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental or transgresses any recognized principle of fundamental fairness in operation. DA s Office v. Osborne, 557 US 52, 69, 129 S Ct 2308, 174 L Ed 2d 38 (2009) (quoting Medina v. California, 505 US 437, 448, 112 S Ct 2572, 120 L Ed 2d 353 (1992)). As explained above, a person has a right to be free from a criminal conviction for which he is actually innocent and a liberty interest in obtaining release from wrongful imprisonment. A state post-conviction relief process that denies a petitioner an opportunity to void the judgment of conviction if he establishes his actual innocence offends fundamental principles of justice and transgresses any recognized principle of fundamental fairness in operation. Osborne, 557 US at 69; see also Schlup, 513 US at 325 (recognizing fundamental injustice of convicting an innocent person). Thus, if this court concludes that ORS (1)(a) does not require a court to void a judgment of conviction when a petitioner establishes actual innocence, then the PCHA violates the Due Process Clause. If a petitioner establishes actual innocence by 26 APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

34 a preponderance of the evidence, then the Due Process Clause requires the court to void the judgment of conviction. SECOND ASSIGNMENT OF ERROR The trial court erred when it dismissed the petition for post-conviction relief with prejudice without holding a hearing. Preservation of Error This is the type of error for which preservation is not required because the error itself occurred through petitioner s absence. Further, this court has reversed errors in nearly identical cases without mention of preservation, likely based on the common-sense notion that a person cannot preserve an argument against a court ruling when the person is not present to object. See Howell v. Franke, 258 Or App 202, 203, 308 P3d 1078 (2013) (reversing based on postconviction court error in dismissing a petition without holding a hearing without mention of preservation). Thus, this court should review the error. Alternatively, if this court were to conclude that the error must be preserved, this court should review it as plain error under ORAP 5.45(4)(b), as explained in further detail below. 27 APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

35 Standard of Review Appellate review of post-conviction proceedings is limited to questions of law appearing on the record. ORS (1); ORS ; see Yeager, 93 Or App at 564. Whether a petition can be dismissed with prejudice without holding a hearing is a question of law. See Howell, 258 Or App at 203 (not stating, but applying standard). Argument The post-conviction trial court erred in dismissing the petition with prejudice, without first holding a hearing at which petitioner was represented by counsel. In Ware v. Hall, 342 Or 444, 154 P3d 118 (2007), the Supreme Court construed several statutes relating to a post-conviction court s authority to dismiss petitions. ORS (3) provides in part: All grounds for relief claimed by petitioner in a petition pursuant to ORS to 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. ORS provides in part: 28 APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

36 (1) After the response * * * to the petition, the court shall proceed to a hearing on the issues raised. If the * * * response is by demurrer or motion raising solely issues of law, the circuit court need not order that petitioner be present at such hearing, as long as petitioner is represented at the hearing by counsel. At the hearing upon issues raised by any other response, the circuit court shall order that petitioner be present. * * * (2) If the petition states a ground for relief, the court shall decide the issues raised and may receive proof by affidavits, depositions, oral testimony or other competent evidence. * * *. ORS provides: (1) The court may, on its own motion or on the motion of the defendant, enter a judgment denying a meritless petition brought under ORS to (2) As used in this section, meritless petition means one that, when liberally construed, fails to state a claim upon which post-conviction relief may be granted. (3) Notwithstanding ORS , a judgment dismissing a meritless petition is not appealable. (4) A dismissal is without prejudice if a meritless petition is dismissed without a hearing and the petitioner was not represented by counsel. In Ware, the court held that the statutory scheme precluded a court from dismissing a petition with prejudice, unless the court had first appointed counsel and held a hearing: ORS requires both a hearing and counsel, if appropriate, before a court may dismiss a petition with prejudice. ORS 29 APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

37 (4) assumes that a court may dismiss a meritless petition without counsel and without a hearing but only if the dismissal is without prejudice. Nothing in the text or context of ORS (4) suggests that the legislature intended to craft a broader exception to the requirements in ORS than ORS provides; that is, nothing suggests that a court may dismiss a meritless post-conviction petition with prejudice if the petitioner has counsel but not some kind of a hearing. We cannot add an exception to the requirements of ORS that the legislature omitted. Id. at (footnote omitted, emphasis added). The court concluded that, in the case before it, the trial court erred when it dismissed the post-conviction petition with prejudice without providing petitioner or his counsel any opportunity to be heard. Id. at 453. The court in Ware also outlined two different courses for resolving postconviction petitions : Id. On the one hand, a court may appoint counsel, hold a hearing, and, if appropriate, permit amendments to the petition. * * * Having followed that course, a court may dismiss the petition with prejudice. * * * On the other hand, a trial court may dismiss a meritless petition before appointing counsel and without a hearing but only if it dismisses without prejudice -- a course that could leave a petitioner free to file another post-conviction petition. Here, the post-conviction court dismissed the petition with prejudice on January 3, ER-44. The court dismissed the petition in response to the 30 APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

38 state s motion to dismiss, which was filed October 22, ER-42. On December 9, 2013, the court wrote a letter opinion in which it stated that it granted the defendant s motion to dismiss and noted, [n]either party requested oral arguments in the two cases. Er The latest hearing in the case was held on June 10, 2013, at which the parties discussed scheduling. Tr Ware requires a hearing on the merits of the motion to dismiss, not just any hearing in the case. Therefore, the hearings in this case, which all preceded by several months the motion to dismiss and subsequent granting of the motion, are not sufficient to allow the court to enter an order dismissing the petition with prejudice. Further, nothing in Ware or the statutory scheme indicates that a party must request oral argument before the court dismisses the petition with prejudice. Accordingly, the post-conviction court violated Ware by dismissing the petition with prejudice, but without holding a hearing. This court should reverse the judgment and remand to the post-conviction court for further proceedings. 3 The two cases are both post-conviction cases brought by petitioner. The other case, Carvel Gordon Dillard v. Steve Brown, A156060, is also on appeal and presents similar issues. 31 APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

39 The trial court also violated the Due Process Clause in the Fourteenth Amendment to the United States Constitution when it dismissed the petition outside of petitioner s presence and without a hearing. A state must provide a person convicted of a crime with some procedure by which to obtain relief for violations of federal constitutional rights. Young v. Ragen, 337 US 235, 229, 69 S Ct 1073, 93 L Ed 1333 (1949); see also Bartz, 314 Or at (summarizing case law). Here, the trial court violated petitioner s right to due process by denying him an opportunity to be heard and put on evidence in response to the state s motion to dismiss. That effectively deprived petitioner of any ability to obtain relief for a violation of his Sixth Amendment right to effective assistance of counsel and his Due Process right to obtain review of his actual innocence claim, and, accordingly, denied petitioner a right essential for preventing miscarriages of justice. Bartz, 314 Or at 368 (quoting Duncan v. Louisiana, 391 US 145, 149, 158, 88 S Ct 1444, 20 Led 2d 491 (1968), in analyzing whether time limitation for filing a PCR petition violated due process) (internal quotation marks omitted). If this court concludes that the error must be preserved, then it is error apparent on the face of the record under ORAP Plain error must meet 32 APPELLANT S OPENING BRIEF O Connor Weber LLP 522 SW Fifth Avenue, Suite 812 Portland, OR (503)

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