Esteban Chavez. State of Oregon (S064968)

Transcription

1 University of Oregon March 8, 2018 AM-1 Esteban Chavez v. State of Oregon (S064968) RAD N/P

2 Esteban Chavez v. State of Oregon, 283 Or App 788, 391 P3d 801 (2017) (A151251) (S064968) (from the Multnomah County Circuit Court) Petitioner Esteban Chavez has been granted review of a Court of Appeals decision that affirmed a trial court decision granting the state's motion to dismiss his petition for postconviction relief. On review, the issues are: (1) Was Page v. Palmateer, 336 Or 379, 84 P3d 133 (2004) incorrectly decided? statutes? (2) s retroactivity a factor to be considered under Oregon's post-conviction relief (3) Did Padilla v. Kentucky, 559 US 356, 130 S Ct 1473, 176 L Ed 2d 284 (2010) announce a new constitutional rule that could not reasonably have been anticipated? (4) May petitioner be presumed to know the deportation consequences of a criminal conviction such that he could reasonably have timely raised his Sixth Amendment claim for relief under ORS (3)?

3 November 2, :03 PM N THE SUPREME COURT OF THE STATE OF OREGON ESTEBAN CHAVEZ, Petitioner-Appellant Petitioner on Review V. STATE OF OREGON Defendant-Respondent Respondent on Review Multnomah County Circuit Court A S AMENDED PETTONER ON REVEW'S MERTS BREF Review of the Opinion of the Court of Appeals on Appeal from a General Judgment of the Circuit Court for Multnomah County Honorable Cheryl Albrecht, Judge Opinion Filed: February 23, 2017 Author of Opinion: Rebecca A. Duncan, Judge Concurring Judges: Darleen Ortega, Presiding Judge, Joel Devore, Judge STEVEN E. BENSON # ELLEN F. ROSENBLUM # PO Box Attorney General Portland, OR BENJAMN GUTMAN #

4 Telephone: Solicitor General Attorney for Petitioner/Appellant DUSTN BUEHLER # Petitioner on Review Assistant Attorney General Oregon Department of Justice 1162 Court Street, NE Salem,OR Telephone: Attorneys for Respondent/ Respondent Respondent on Review Filed: November, 2017

5 TABLE OF CONTENTS Page STATEMENT OF THE CASE 1 1. Nature of the Proceedings Sought to be Reviewed 1 2. Nature of the Judgment Sought to be Reviewed 1 3. Jurisdiction 1 4. Timeliness of Appeal 2 5. Questions Presented 2 6. Summary of Argument 2 7. Statement of Facts 3 ASSGMENTOFERRORNO. 1 The Trial Court Erred in Determining that Appellant's Petition for Post-Conviction Relief Was Time-Barred Under ORS (3) 6. Preservation 6. Standard of Review 7. Argument 8 A. Petitioner's Post-Conviction Petition Was Timely 9 B. The Purpose and Meaning Of The Exception n ORS (3) 13 C. Before Padilla, Petitioner Could Not Reasonably Have Raised His Post-Conviction Claim for Relief 15

6 D. The Trial Court Misconstrued The Grounds Asserted n Petitioner's Post-Conviction Petition 21 ASSGNMENT OF ERROR NO. 2 The Trial Court Erred in Deciding that the ssue of Retroactivity s Applicable to Post-Conviction Hearings n Oregon 29. Preservation 29. Standard of Review 30. Argument 30 A. Relief Under Oregon's Post Conviction Hearing Act s Available Retroactively 30 B. Federal Rules Of Retroactivity Do Not Control The Availability of Post-Conviction Relief in Oregon 38 CONCLUSON 40 NDEX OF EXCERPT OF RECORD n the interest of brevity, no service pages or exhibits have been photocopies for this Excerpt. PETTON FOR POST-CONVCTON RELEF Page ER-1 MEMORANDUM N SUPPORT OF PETTON FOR POST-CONVCTON RELEF ER-6 ORDER GRANTNG/DENYNG STATE'S MOTON TO DSMSS (STATUTE OF LMTATON) OPNON OF THE COURT OF APPEALS ER-14 ER-19

7 ill NDEX OF AUTHORTES CASES Page Alfredo Saldana-Ramirez v. Oregon, 255 Or App 602, 298 P3d 59 (2013) 40 Ashley v. Hoyt, 139 Or App 385, 912 P2d 393 (1995) 7, 30, 33 Bartz V. State of Oregon, 314 Or 353, 839 P2d 217 (1992) 13,31 Benitz-Chacon v. State of Oregon, 178 Or App 352, 37 P3d 1035 (2001) 14,21, 23,24 Brady v. United States, 397 US 742 (1970) 25 Chaidez v. United States, 568 US 342, 133 S Ct 103 ( , 21 Chocktoot V. Smith, 280 Or 567, 571 P2d 1255 (1977) 7, 30 Church V. Gladden, 244 Or 308, 417 P2d 993 (1996) 29, 36 Danforth v. Minnesota, 552 US 264 (2008) 26, 28,31,35,39, 40 Denton Plastics, nc., v. City ofportland, 105 Or App 302, 804 P2d 1199(1991) 38 Escobedo v. llinois, 378 US 478 (1964) 37 Fruchtman v. Kenton, 531 F2d 946 (9^*^ Cir. 1976) 18 Gideon v. Wainwright, 372 US 335 (1963) 25 Gonzalez v. State of Oregon, 340 Or 452, 134 P3d 955 (2006) 16, 18, Hill V. Lockhart, 474 US 52 (1995) 26

8 V NSv. St Cyr, 533 US 289 (2001) 25 Johnson v. New Jersey, 384 US 719 (1966) 40 Lamb v. Coursey, 238 Or App 647, 243 P3d 130 (2010) 7, 30 Linkletter V. Walker, 381 US 618 (1965) 32 Long V. Armenakis, 166 Or App 94, 999 P2d 462, rev den 330 Or 361 (2000) 13, 14 Lyons v. Pearce, 298 Or 554, 694 P2d 969 (1985) 15, 16, 17, 18 McMann v. Richardson, 397 US 759 (1970) 25 Miranda v. Arizona, 384 US 436 (1966) 36 North V. Cupp, 254 Or 451 (1969) 13, 36 Padilla v. Kentucky, 559 US 356, 130 S Ct 1473, 176 L Ed 2d 284 (2010) 3,9,10, 11, 15, 18, 19, 20, 21, 22, 23, 24, 25, 27, 28, 29, 40, 41 Page V. Palmateer, 226 Or 379, 84 P3d 133 (2004) 38, 40 Palmer v. State of Oregon, 318 Or 352, 867 P2d 1368 (1994) 13,21 State V. Allen, 248 Or 376, 434 P2d 740 (1967) 36 State V. Fair, 263 Or 383, 502 P2d 1150 (1972) 38, 40 State V. Rogers, 330 Or 282, 4 P3d 121 (2000) 7, 30 Strickland v. Washington, 466 US 668 (1984) 25, 26, 27 League v. Palmateer, 184 Or App 577, 57 P3d 176 (2002) 34, 36 United States v. Amador-Leal, 276 F3d 511 (9^ Cir. 2002) 18

9 United States v. Fry, 322 F3d 1198 (9^*^ Cir. 2003) 18 WaldorfV. Elliott, 214 Or 437, 330 P2d 355 (1958) 8, 30 Young V. State of Oregon, 161 Or App 32, 983 P2d 1044 (1999) 38 Yundt V. D&D Bowl, nc., 259 Or 247, 486 P2d 553 (1971) 7, 30 CONSTTUTONAL PROVSONS Sixth Amendment of the United States Constitution 3,9, 11, 12, 19, 20,22, 23,25,26, 28 Fourteenth Amendment of the United States Constitution 12 Article, section 10, Oregon Constitution 12 Article, section 11, Oregon Constitution 12 STATUTES AND RULES 8 U.S.C. 1227(a)(2)(B)(i) 28U.S.C U. S. C ORS (1) 1 ORS (1) 2 ORS ORS (2)(1959) 33 ORS (2) (1989) 33

10 V ORS (2) (1993) 14, 30, 32, 34 ORS (3) 2,6, 7, 8, 13, 14, 15,21,23,40 ORS (3)(a) 2 ORS , 35, 37 ORS (1) 32, 33 ORS (l)(a) 32, 38 ORS (2) 30, 32 ORS (2) 13 ORS OREGON POST-CONVCTON HEARNG ACT 3,30, 32, 34, 35, 36, 37 llegal mmigration Reform and mmigrant Responsibility Act Of OTHER AUTHORTES Chin & Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L.Rev 697 (2002) 18, 20 Collins and Neal, The Oregon Postconviction Hearing Act, 39 Or L Rev 337 (1960) 31

11 APPELLANT'S OPENNG BREF STATEMENT OF THE CASE Nature of the Proceedings and Relief Sought Petitioner/Appellant Esteban Chavez (hereafter"petitioner") filed a petition for post-conviction relief seeking to be allowed to withdraw his guilty plea and have the Judgment of Conviction and Sentence set aside. Defendant/Respondent (hereafter"the state") moved for a judgment of dismissal on the grounds that the petition for post-conviction relief was not commenced within the time limited by statute. The trial court allowed the state's motion and entered a general judgment dismissing the petition for post-conviction relief. The Court of Appeals affirmed the judgment of the trial court. Nature of the Judgment Sought to be Reviewed The Multnomah County Circuit Court entered a General Judgment of dismissal on April 5, The Court of Appeals filed its decision affirming the trial court's judgment on February 23, Jurisdiction This court has jurisdiction under ORS (1).

12 Timeliness of Appeal The General Judgment of the trial court was entered on April 5, Petitioner filed his Notice of Appeal on April 18, 2012, within 30 days of the entry of the general judgment of dismissal, within the time allowed by ORS (1). The decision of the Court of Appeals was filed on February 23, Petitioner filed his Petition for Review on May 18, 2017, within the time allowed for doing so by the Supreme Court. Questions Presented 1. Was the petition for post-conviction relief filed timely pursuant to ORS (3)? 2. Are federal rules of retroactivity applicable to Oregon postconviction relief proceedings based upon the denial of federal constitutional rights? Summary of Argument ORS (3)(a) establishes a general rule that petitions for postconviction relief must be filed within two years of the date of conviction. t also establishes an exception when the grounds for relief asserted could not reasonably have been raised within the two-year limitation. Petitioner's petition comes within the exception because he was precluded by established

13 precedent from raising his claim of ineffective assistance of counsel under the Sixth Amendment of the United States until after Padilla v. Kentucky, 559 US 356, 130 S Ct 1473, 176 L Ed 2d 284 (2010) established that he was entitled to specific advice concerning the immigration consequences of his guilty plea. Petitioner was also foreclosed from raising his claim until Padilla repudiated the collateral consequence doctrine as it had been applied to deny relief to criminal defendants who had not received constitutionally adequate advice from counsel regarding the immigration consequences of their guilty pleas. Relief based on Padilla is applicable retroactively in Oregon. The Oregon Post-Conviction Hearing Act was adopted in 1959, when all constitutional rights were given full retroactive effect on both direct and collateral review in state and federal courts. t was only after 1965 that federal courts broke fi-om earlier precedent and began to restrict the retroactive application of rights. The Oregon Legislature could not have intended to incorporate into the Post-Conviction Hearing Act a restriction on relief that did not come into existence until several years after that Act was adopted in Statement of Facts Petitioner entered the United States in March, 1994, when he was 13 years of age. ER-4. He became a lawful permanent resident on November

14 21,1996. ER-4. His entire family lives in the United States. ER-4. He is married and has four children who are United States citizens. ER-4. He has worked steadily since finishing high school, and has bought and paid for the home where he resides with his family. ER-4. On June 30, 1999, petitioner was indicted on one count of Delivery of a Controlled Substance (Count ), and one count of Possession of a Controlled Substance (Count ). ER-1. n August, 1999, the state offered to dismiss Count of the indictment if petitioner agreed to plead guilty to Count. ER- 2. Petitioner and his attorney discussed the state's plea offer. ER-2. Petitioner's attorney did not ask him about his immigration status. ER-2. Petitioner's attorney did not advise him of the immigration consequences of a guilty plea, that he would be deported if he pled guilty, that he would be permanently barred from returning to the United States if he pled guilty, and that he could never become a naturalized citizen if he pled guilty. ER-2. Petitioner's attorney did not think he would be deported as a result of his guilty plea. ER-3. Petitioner's attorney did not ask him if he intended to apply to become a naturalized United States citizen. ER-3. n September, 1999, petitioner entered a plea of guilty to Delivery of a Controlled Substance, subsequent to which a Judgment of Conviction and

15 Sentence was entered in the Multnomah County Circuit Court on September 17,1999. ER-3. Petitioner relied upon the erroneous advice of his attorney when he pled guilty to Count of the charges against him. ER-3. Petitioner would not have entered into the plea agreement if his attorney had informed him that such a plea would expose him to certain removal from this country, would prevent him from ever becoming a naturalized citizen, and would cause him to be permanently barred from reentering the United States. ER-3. For petitioner, the immigration and naturalization consequences imposed as a result of his guilty plea were of far greater significance than the criminal consequences that could have been imposed had he gone to trial and been found guilty. ER-3. Petitioner would never have waived his right to trial if he had been informed of the specific immigration and naturalization consequences of his guilty plea. ER-3. Petitioner relied upon the advice of his attorney when he pled guilty to Count of the charges against him. ER-3. Petitioner did not appeal from this judgment, and has not previously made any application for post-conviction relief. ER-4. He successfully fulfilled the terms and requirements of his probation. ER-3. He has not been involved in illegal or criminal activity since his conviction. ER-3,4. On November 4, 2011, petitioner filed a petition for post-conviction relief and supporting memorandum, claiming he had been deprived of his

16 right to effective assistance of counsel under the Sixth Amendment to the United States Constitution, and alleging that if he been advised of the immigration consequences of his guilty plea, he would have requested trial instead of entering a plea. ER-1 to 13 Petitioner is subject to the provisions of the llegal mmigration Reform and mmigrant Responsibility Act of 1996 and was served in June, 2012 with notice to appear for removal (deportation) proceedings. ER-4. Petitioner was taken into custody pending a removal hearing scheduled for November 7, On March 5, 2012, the trial court issued its Order Granting State's Motion to Dismiss (Statute of Limitations). ER-14 to 18. On February 23, 2017, the Court of Appeals filed its Opinion affirming the trial court. ER-19 to 32. ASSGNMENT OF ERROR No. 1 The Trial Court Erred n Finding That Appellant's Petition For Post-Conviction Relief Was Time-Barred Under ORS (3). Preservation The issue of the timeliness of petitioner's petition was raised at all stages of the proceedings. Petitioner's petition for post-conviction relief and

17 supporting memorandum both expressly argued that the petition was timely under ORS (3). After the state filed its Motion to Dismiss on the ground that the petition for post-conviction relief had not been filed within the time limited by statute, petitioner filed his Memorandum in Response which expressly argued that the statute of limitations did not bar his petition for post-conviction relief. Both parties made extended oral arguments on the issue before Judge Albrecht and in the Court of Appeals. The court made a detailed analysis of the issue of whether petitioner's petition for post-conviction relief was barred by the statute of limitations, and after deciding that it was barred, granted the state's motion to dismiss.. Standard of Review A judgment denying post-conviction relief is reviewed for errors of law. Lamb v. Coursey, 238 Or App 647, 650, 243 P3d 130 (2010); Ashley v. Hoyty 139 Or App 385, 391, 912 P2d 393 (1995). Oregon appellate courts freely review legal questions for errors of law and do not defer to the trial court in any fashion. State v. Rogers, 330 Or 282, 312, 4 P3d 1261 )2000); Chocktootv. Smith, 280 Or 567, 575, 571 P2d 1255 (1977)(... such legal ruling are also open for briefing and review on appeal."); Yundt v. D&D Bowl, nc., 259 Or 2478, , 486 P2d 553 (1971)(judge must apply certain principles of law and when he fails to do so, his decision is not free

18 from review and revision); Waldorf v. Elliott, 214 Or 437, 441, 330 P2d 355 (1958)("... we can in any case correct any misapplication of the law to the facts.").. Argument The issue whether petitioner met the statute of limitations for postconviction relief is determined by ORS (3), which provides: "(3) A petition pursuant to ORS to must be filed within two years of the following, unless the court on hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the original or amended petition: (a) f no appeal is taken, the date the judgment or order on the conviction was entered in the register. This statute establishes a general rule that post-conviction claims must be filed not more than two years after conviction. t also establishes a different time limit for petitioners who qualify for an exception. No time limit is specified for petitions filed pursuant to the exception. n the absence of a specific time limit, it is reasonable to infer that the legislature intended the same two-year limit to apply to all petitions, whether that time period commenced the date a judgment on the conviction was entered, or on the date the grounds for relief could reasonably have been raised. Petitioner did not file his petition for post-conviction relief within two years of the date of the entry of his judgment of conviction. Therefore, his

19 petition was timely filed only if it was filed within two years of the date on which he could have reasonably raised the grounds for relief which he now asserts. A. Petitioner's Post-Conviction Petition Was Timely Petitioner asserts his petition for post-conviction relief was timely because it was filed within two years of the decision announced by the United States Supreme Court in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L Ed 2d 284 (2010). Padilla was a post-conviction proceeding filed by a legal permanent resident of the United States who had pled guilty to drug charges and, as a result, faced deportation. d, 130 S Ct at Mr. Padilla claimed that his attorney had failed to advise him on the immigration consequences of his guilty plea, and that his attorney had erroneously informed him that he "did not have to worry about immigration status since he had been in the country so long." d., at Mr. Padilla claimed that he had relied on his attorney's advice when he decided to enter a guilty plea. d, at The Court held that the Sixth Amendment required that counsel inform clients whether their pleas carry a risk of deportation. d., at The "collateral consequence" doctrine was repudiated and found to be inapplicable when deportation was a consequence of a criminal conviction. d, at 1482.

20 10 As Padilla explained, under contemporary law a noncitizen's removal (deportation) is practically inevitable if he has committed a removable offense. d., at Amendments made in 1996 to immigration law' made removal practically inevitable but for the possible exercise of limited remnants of discretion in cases involving drug offenses, thereby making removal nearly an automatic result for a broad class of noncitizen offenders. d., at The Court noted that "the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequences for Padilla's conviction" and that "Padilla's counsel could have easily determined that his plea would make him subject to deportation simply from reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal for all controlled substance convictions except for the most trivial of marijuana possession offenses." d, ^ Prior to 1996, both state and federal sentencing judges had the power to make a recommendation that aliens not be deported. Padilla, 130 S. Ct. at This procedure, known as judicial recommendation against deportation, or JRAD, gave the sentencing judge conclusive authority to decide when a conviction should be disregarded as a basis for deportation. d., at Congress eliminated the JRAD provision from immigration law in 1990, and eliminated the Attorney General's authority to grant discretionary relief in Thereafter, no discretionary relief was available to prevent deportation of aliens convicted of trafficking in a controlled substance. d., at As a result of the removal of these "critically important procedural protection[s]," deportation "is now virtually inevitable for a vast number of noncitizens convicted of crimes." d., at 1478, 1479.

21 11 at While immigration law can be complex, "when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear." d., at Under Padilla, it is "quintessentially the duty of counsel to provide her client with available advice about an issue like deportation" before the client decides whether to plead guilty. d., at The Supreme Court reversed the judgments of the state courts and remanded Padilla's case for a post-conviction evidentiary hearing based on its determination that Padilla's counsel had failed to give him competent advice, contrary to the guarantees of the Sixth Amendment. d., at The facts in petitioner's case are remarkably similar to those in Padilla. Here, petitioner has claimed in his post-conviction petition that he had become a legal permanent resident of the United States in On June 30, 1999, he was indicted for Delivery of a Controlled Substance (Count ), and Possession of a Controlled Substance (Count ). The District Attorney offered to dismiss Count of the indictment if petitioner pled guilty to Count of the indictment. Before deciding to plead guilty, petitioner and his attorney discussed the offer. Petitioner's attorney did not ask him about his immigration status did not advise him of the immigration consequences of a guilty plea and did not advise him (1) that he would be deported if he pled guilty, (2) that he would be permanently barred from returning to the United

22 12 States if he pled guilty, and (3) that he could never become a naturalized citizen if he pled guilty. Petitioner's attorney urged him to accept the District Attorney's offer because, among other things, it would be the "fastest and easiest" way to dispose of the charges against him. Petitioner relied upon the advice of his attorney when he decided to plead guilty to Count of the charges against him. He would not have entered into the plea agreement if his attorney had informed him that such a plea would expose him to certain removal from this country. For petitioner, the immigration and naturalization consequences imposed as a result of his guilty plea were of far greater significance than the criminal penalties that could have been imposed had he gone to trial and been found guilty. Because of his conviction, petitioner is subject to removal and has been taken into custody pending a hearing in mmigration Court. n his petition. Appellant alleges that his attorney's failure to advise him of the clear immigration and naturalization consequences of his guilty plea deprived him of his right to effective assistance of counsel guaranteed by Article, sections 10 and 11, of the Oregon Constitution and the Sixth and Fourteenth Amendments to the United States Constitution. Like Padilla, petitioner has made out a case for postconviction relief and is entitled to an evidentiary hearing.

23 13 B. The Purpose And Meaning Of The Exception n ORS (3) The purpose of the exception in ORS (3) which allows an untimely petition to be filed was ascertained in Bartz v. State of Oregon, 314 Or 353, 358, 839 P2d 217 (1992). There, the Court said the "purpose of the exception is to give persons extra time to file petitions for post-conviction relief in extraordinary circumstances." The meaning of the exception in ORS (3) was expounded in Long V. Armenakis, 166 Or App 94, 100, 999 P2d 461, rev den 330 Or 361 (2000). There, the court found significant guidance in ORS (2), which permitted a petitioner who filed a direct appeal from his conviction to base his post-conviction petition on claims that "could not reasonably have been asserted" on direct appeal. d., at 100. That standard is aimed at situations analogous to those in which a party is excused from preserving an issue at trial as a predicate to raising it later. d., at 100. "'The most common illustration is where the objection could conceivably have been made but could not reasonably have been expected. Examples are where the right subsequently sought to be asserted was not generally recognized to be in existence at the time of trial; where counsel was excusably unaware of facts which would have disclosed a basis for the assertion of the right; and where duress or coercion prevented assertion of the right.'" d., at 101 (citing Palmer v. State of Oregon, 318 Or 352, 358, 867 P2d 1368 (1994)(quoting North v. Cupp, 254 Or 451,456 (1969))(emphasis added).

24 14 'Consequently, when a new constitutional principle has been articulated between the time of a petitioner's direct appeal and the post-conviction proceeding, a claim based on the new constitutional principal will be considered even though it was not raised at trial or on appeal. 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 constitutional principle is a new one, or if its extension to a particular statute, circumstance, or setting is novel, unprecedented, or surprising, then the more likely the conclusion that the claim reasonably could not have been raised." /(c/., at 101 (emphasis added). The Long court adhered to those general guidelines in determining whether, under former ORS (2)( 1991) (now ORS (3)), a claim raised in a late post-conviction petition reasonably could not have been raised timely. d., at Thus, ORS (3) "... permits a late petition only on grounds that 'could conceivably been made but could not reasonably have been expected,' such as a newly announced constitutional principal that was not only unsettled at the time the petition had to be filed, but could not reasonably have been anticipated." Benitz-Chacon v. State of Oregon, 178 Or App 352, 359, 37 P3d 1035 (2001)(citingZ,o«g, 166 Or App at 101)(emphasis added). ///// /////

25 15 C. Before Padilla, Petitioner Could Not Reasonably Have Raised His Post-Conviction Claim For Relief Petitioner comes within the exception of ORS (3) because Padilla announced a new constitutional rule that could not reasonably have been anticipated. Before Padilla, attorneys had no duty to advise non-citizen criminal defendants of the immigration consequences of a conviction because immigration matters were deemed to be a collateral consequence of a criminal trial and thus outside the scope of the Sixth Amendment. Padilla reversed the so-called "collateral consequence" doctrine which had been enshrined in existing precedent and established a new Sixth Amendment right that had not been previously recognized. The Padilla decision held, for the first time, that an attorney provides ineffective assistance of counsel if he fails to inform a client that a criminal conviction will subject him to deportation and other immigration consequences. As more fully explained below, this holding reversed longestablished precedent and abolished a doctrine that had been almost universally embraced by federal and state courts. At the time petitioner herein pled guilty in 1999, Oregon courts firmly adhered to the "collateral consequence" doctrine. Lyons v. Pearce, 298 Or 554, 694 P2d 969 (1985), was a post-conviction case in which the petitioner claimed inadequate assistance of counsel, because counsel had not advised

26 16 him he could be subject to deportation as a result of his plea, and because his attorney had not asked the trial judge for a recommendation against deportation. d, at 556, 564. The Oregon Supreme Court noted that: "Federal circuit courts have interpreted the federal constitution to mandate neither the form by which the court must advise defendants of the consequences of the plea, nor even that deportation could result from conviction. The federal circuit courts have held consistently that vulnerability to deportation is a 'collateral' rather than a 'direct' consequence of a guilty plea, and therefore the trial courts have no duty to inform alien defendants of the possibility of deportation, either on constitutional grounds,... or under Federal Rules of Criminal Procedure...". d., at 563 (citations omitted; emphasis added). Since the record in Lyons showed that petitioner's plea petition at trial had explained "deportation was a possible consequence of conviction, and that the lawyer had reviewed the plea petition and the language advising petitioner "ofpossible deportation" with petitioner, the Lyons court held that he had suffered no deprivation of a constitutional right. d., at 567 (emphasis added). n 2006, the Oregon Supreme Court revisited the issue "whether petitioner's defense counsel provided constitutionally adequate assistance when he advised petitioner that the federal government may deport him if he pleaded guilty." Gonzalez v. State of Oregon, 340 Or 452, 454, 134 P3d 955 (2006)(emphasis added). The Oregon Supreme Court noted the general rule

27 17 that "counsel must advise a defendant of the direct consequences of a criminal conviction - that is, the maximum possible sentence... d., at 457. As a general rule, however, defense counsel is not required to advise clients of the collateral consequences - such as deportation - of a conviction as a matter of providing constitutionally adequate assistance. d, at 458. Oregon only requires, as a matter of state constitutional law, that defense counsel advise non-citizen clients that a criminal conviction "'may result' in deportation." d. At 458 (citing Lyons, 298 Or at 557, 567 (so holding)). The Gonzalez petitioner had argued that in light of changes to immigration law, Lyons was no longer good law and that defense counsel must do more than merely advise their clients that a conviction "may result" in deportation. d., at 459. The Oregon Supreme Court rejected that argument, saying it could "see no constitutional warrant for requiring that level of specificity concerning a collateral consequence of a conviction." d., at 459 (emphasis in original). Thus, while petitioner herein could conceivably have claimed in 1999 that he had been deprived of his constitutional right to effective representation when his attorney failed to advise him of the immigration consequences of his guilty plea, making such a claim in the face of adverse precedent would have been frivolous and futile, just as it was for

28 18 the petitioner in Gonzalez. t was only after Padilla was decided that he could reasonably have raised his post-conviction claims. As Lyons and Gonzalez make clear, the law in Oregon has been settled since as early as 1986 that non-citizen criminal defendants were deemed to have received constitutionally adequate representation if they were advised simply that they may be deported as a consequence of pleading guilty. Oregon was hardly alone in its adherence to the "collateral consequence" doctrine. Until Padilla was decided, "virtually all jurisdictions - including eleven federal circuits, more than thirty states, and the District of Columbia" held that defense counsel need not discuss the collateral consequences of a conviction, including deportation, with their non-citizen clients. Padilla, 130 S. Ct. at 1487 (Alito, J., concurring, citing Chin & Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L.Rev. 697 (2002)). f fact. Justice Alito went further, claiming that Padilla "marks a major upheaval in Sixth Amendment law," and pointed out that the majority did not cite a single case fi*om any federal court that held counsel's 2. The Ninth Circuit has long adhered to the "collateral consequence" doctrine. Fruchtman v. Kenton, 531 F.2d 946, 949 (9^*^ Cir. 1976)(deportation is a collateral, not direct, consequence of the criminal process); United States V. Amador-Leal, 276 F.3d 511, (9'*^ Cir. 2002)(holding Fruchtman remains good law); United States v. Fry, 322 F.3d 1198, 1200 (9^ Cir. 2003)(deportation is a collateral consequence not rising to the level of constitutionally ineffective assistance of counsel).

29 19 failure to provide advice regarding the removal consequences of a criminal conviction violated the Sixth Amendment right to counsel. d., at Faced with this one-sided precedent, petitioner could not have, reasonably or in good faith, sought post-conviction relief based on a claim of ineffective assistance of counsel prior to the decision in Padilla because controlling precedent in virtually all jurisdictions dictated that the failure to advise a defendant of the risk of deportation was not ineffective assistance of counsel because it was not a direct consequence of a conviction. Thus, at the time that petitioner was convicted in 1999, he was foreclosed by settled Oregon and federal precedent from claiming that he had been deprived of his Sixth Amendment rights. Those rights simply were not recognized to exist until after the Padilla decision was announced. Likewise, petitioner could not have reasonably anticipated the decision in Padilla. Padilla created new law when it abolished the "collateral consequence" doctrine and extended Sixth Amendment protections into areas beyond the sentencing authority of trial courts. Justice Alito described the Padilla decision variously as a "dramatic departure from precedent," a "new approach," a "dramatic expansion of the scope of criminal defense counsel's duties under the Sixth Amendment," and a "major upheaval in Sixth Amendment law." d, 130 S Ct at 1488, 1491, 1492 (Alito, J. concurring).

30 20 "Until today, the long-standing and unanimous position of the federal courts was that reasonable defense counsel need only advise a client about the direct consequences of a criminal conviction." d., at 1487(Alito, J., concurring)(emphasis in original). As a result, there was nothing to indicate to the bench or bar that the "collateral consequence" doctrine was not settled law or that its authority was in doubt, nor was there any reason to anticipate the Supreme Court would abruptly repudiate that doctrine in Padilla and extend a criminal defense attorney's Sixth Amendment duties into what previously had only been described as the collateral consequences of convictions. Even if the constitutional principle announced in Padilla is not new, its extension into the collateral consequences of a criminal conviction most certainly was novel, unprecedented and surprising. f there are any doubts that Padilla developed new law, one only needs to look at Chaidez v. U.S., 568 US 342, 133 S Ct 1103 (2013) where the Supreme Court itself held that Padilla developed new law. d., 133 S Ct at Prior to Padilla, " the exclusion of advice about collateral consequences from the Sixth Amendment's scope was one of 'the most widely recognized rules of American law.'" d., 133 S Ct at 1109 (quoting Chin & Holmes, Effective Assistance of Counsel and the Consequence of Guilty Pleas, 87 Cornell L. Rev. 697, 702 (2002). The Court concluded.

31 21 saying that if "that does not count as 'breaking new ground or imposing a new obligation, we are hard pressed to know what would.'" d., 133 S Ct at n Chaidez, the Supreme Court expressly rejected the argument that Padilla merely applied established authority {Strickland) to a new set of facts. nstead, the Supreme Court explained that Padilla "had to develop new law..." d, 133 set at The development of new law, which overturns one of "the most widely recognized rules of American law" and expands the scope of the Sixth Amendment protections to include deportation advice, is a rare and surprising event that was not dictated by precedent and could not reasonably have been anticipated by petitioner before Padilla. As such, it clearly satisfies the "escape clause" of ORS (3) as that clause has previously been interpreted in Oregon. Palmer v. State of Oregon, 318 Or at 357 (explaining that a right could not reasonably have been raised when it was "not generally recognized to be in existence"); Benitz-Chacon v. State of Oregon, 178 Or App at 359 (the escape clause permits a late petition to be filed on the grounds of a newly announced constitutional principal that was unsettled and could not reasonably have been anticipated earlier). D. The Trial Court Misconstrued The Grounds Asserted n Petitioner's Post-Conviction Petition The petition for post-conviction relief sets forth the grounds

32 22 relied upon by petitioner for relief, as follows: "SPECFC GROUNDS FOR RELEF The failure of petitioner's attorney to advise him of the clear immigration and naturalization consequences of his guilty plea deprived petitioner of his right to effective assistance of counsel guaranteed by Article, sections 10 and 11 of the Oregon Constitution and the Sixth and Fourteenth Amendments to the United States Constitution." ER-5. The petition also explained that it was filed timely, as follows: ^'TMELNESS OF FETTON.. On March 31, 2010, the United States Supreme Court issued its decision in Padilla v. Kentucky, 130 S. Ct (2010), which reversed existing case law and held that counsel's failure to advise a defendant of the clear immigration consequence of a guilty plea was constitutionally deficient. Prior to the decision in Padilla, established case law prevented petitioner from reasonably raising the grounds for relief which he now asserts. This petition is filed within two years of the Padilla decision and is timely." ER-5. At no time did petitioner assert that his claim for relief was based upon some fact or law that he had discovered after trial or after the time to seek post-conviction relief had expired. Rather, he clearly stated his claim was based upon the deprivation of his Sixth Amendment right to effective assistance of counsel, a right that was not extended to include competent legal advice concerning the immigration consequences of a criminal conviction until Padilla was decided. Before Padilla, legal advice concerning

33 23 immigration consequences was deemed a collateral consequence of the criminal proceedings, and thus not subject to Sixth Amendment protections. Thus, petitioner sought relief based upon a change in constitutional law which came about as a result of the Padilla decision. The statute of limitations in the exception set forth in ORS (3) only began to run when Padilla breached the previously impregnable wall between direct and collateral consequences and established, for the first time, a Sixth Amendment right to be advised of the immigration consequences of a criminal conviction. The trial court appears to have misinterpreted the allegations of the petition. The trial court order allowing summary judgment concluded that the petition was untimely and ordered it dismissed, saying: "Before Padilla, ineffective assistance did not occur if counsel failed to notify a defendant about immigration consequences because they were collateral rather than direct consequences of criminal convictions. Gonzalez v. State of Oregon, 340 Or 452, (2006). Padilla imposes new obligations on the government and its holding was not dictated by precedent at the time petitioner's conviction became final. Though petitioner argues that he could not have anticipated the Sixth Amendment would be construed to provide new protections regarding immigration consequences, Benitez- Chacon charges him with knowledge of the immigration consequences, and that knowledge requiring action on the petitioner's part applies whether immigration consequences are collateral or direct." App B, p. 4. This conclusion makes no sense. The petition for postconviction relief herein is not based upon some discovery by petitioner that he

34 24 was subject to deportation. t is based Padilla 's announcement of a new constitutional rule that expanded Sixth Amendment rights to include advice about the immigration consequences of criminal convictions. As such, it is distinguished from the petitioner in Benitez-Chacon, who asserted that the statute of limitations for seeking post-conviction relief did not begin to run until she "discovered" her injury when an immigration judge order her to be deported. d., at 355. Petitioner's claim herein involves the same immigration law as that in Benitez-Chacon, but petitioner does not claim he was unaware of that law as a basis for relief; rather, he contends that he did not know (nor could he reasonably have known) that he had been deprived of his Sixth Amendment rights until Padilla was decided. Until Padilla, no one had ever overcome the collateral consequence doctrine, which excluded advice about immigration consequences from the scope of the Sixth Amendment. Petitioner contends it was not reasonable for him to seek postconviction relief until Padilla had established a new constitutional principal or extended an existing constitutional principal "to a particular statute, circumstance, or setting * * * [in a] novel, unprecedented or surprising [way] * * *." Whether petitioner was, or was not, aware of the immigration consequences of his conviction when that conviction became final is immaterial to whether or not he was deprived of his Sixth Amendment right

35 25 to effective assistance of counsel. Only when Padilla changed the law was petitioner was required to act, which he did in a timely fashion. Application of the presumption that every defendant is aware of the statutes setting forth the consequences for a criminal conviction as a means for denying post-conviction relief to defendants who allege they were not advised by counsel of the consequences of a criminal conviction appears to conflict with federal law on that subject. The Sixth Amendment provides: "n all criminal prosecutions, the accused shall enjoy the right to * * * have the Assistance of Counsel for his defense." That Amendment has been interpreted to mean that all criminal defendants have the right to counsel. Gideon v. Wainwright, 372 US 335 (1963). The right to counsel includes the right to effective assistance of competent counsel. McMann v. Richardson, 397 us 759, 771 (1970); Strickland v. Washington, 466 US 668, 686 (1984). Guilty pleas must be voluntary and made with knowledge of the direct consequences. Brady v. United States, 397 US 742, 748 n. 6 (1970). Preserving the right to stay in the United States may be more important to a defendant than any potential jail sentence. NS v. St. Cyr, 553 US 289, 323 (2001). Among the "certain basic duties" that criminal defense attorneys must carry out is included a duty "to consult with

36 26 the defendant on important decisions." Strickland, supra, 466 US at 685. t is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation and the failure to do so "clearly satisfies the first prong of the Strickland analysis." Hill v. Lockhart, 474 US 52, 62 (1985)(White, J. concurring). Those constitutional guarantees would be nothing more than empty words if defendants who were not advised of the consequences of a criminal conviction were denied post-conviction relief on the assumption that the statutes setting forth the information their attorneys were required to provide were readily available to the defendants. n effect, application of the presumption to post-conviction proceedings would deny relief to defendants whose Sixth Amendment rights had been violated by incompetent counsel. States can enforce their own laws only so long as they do not infringe on federal constitutional guarantees. Danforth v. Minnesota, 552 US 264, 128 S Ct 1029, 1041 (2008). Application of the presumption would infringe on federal constitutional guarantees since it would mean that defendants have no Sixth Amendment right to receive competent advice from their counsel regarding the consequences of a criminal conviction because those defendants are presumed to have the same, or better, knowledge of the law as their counsel.

37 27 This is not to say that a defendant's knowledge of the immigration consequences of a criminal conviction is always immaterial. A postconviction petitioner must still demonstrate at an evidentiary hearing (1) that his counsel's advice was constitutionally deficient, and (2) that his defense was prejudiced by that deficient advice. Strickland, 466 US at 687. The problem with presuming that every defendant knows the immigration consequences of a criminal conviction is that it amounts to a categorical declaration that no defendant will ever be able to show he was prejudiced by deficient legal advice, at least when that advice concerns the immigration consequences of a criminal conviction. How can a defendant ever show his counsel's failure to provide competent advice about immigration consequences was prejudicial to his defense if he is presumed to have always had knowledge of those consequences independently of his counsel's advice? Surely the federal cases setting forth the duties of competent counsel under the Sixth Amendment were more than a theoretical exercise which no defendant can ever vindicate. Padilla holds that the Sixth Amendment requires non-citizen defendants be informed by their counsel of the immigration consequences of a guilty plea. d., 130 S Ct at That constitutional requirement cannot be satisfied by counsel's silence in reliance upon a presumption that the client

38 28 already has knowledge of immigration consequences because the client has access to the relevant statues. As Padilla explains, silence is "fundamentally at odds with the critical obligation of counsel to advise the client of 'the advantages and disadvantages of a plea agreement... t is quintessentially the duty of counsel to provide her client with available advice about an issue like deportation...". d., at 1484 (citations omitted). This statement clearly indicates the Supreme Court does not subscribe to the notion that defendants may be presumed to know the immigration consequences of a criminal conviction. The right expounded by Padilla to be advised by counsel of the immigration consequences of a criminal conviction would become nothing more than meaningless verbiage without substance if clients are denied a remedy when their counsel violates the "quintessential" constitutional duty to give them competent advice about deportation issues. States are prohibited from infringing upon federal constitutional guarantees. Danforth v. Minnesota, 552 US 264, 128 S Ct 1029, 1041 (2008). t would appear that an Oregon court's application of the presumption that defendants know the immigration consequences of criminal convictions would deny them postconviction relief, thereby infringing upon and reducing the scope of the Sixth Amendment right expounded by Padilla.

39 29 ASSGNMENT OF ERROR NO. 2 The Trial Court Erred in Deciding That the ssue of Retroactivity s Applicable to Post-Conviction Hearings n Oregon 1. Preservation The issue of whether Padilla v. Kentucky is retroactive or not was raised and extensively argued in the state's Motion to Dismiss. Petitioner submitted a Memorandum in Response to Defendant's Motion to Dismiss that argued that petitioner is entitled to relief regardless of whether Padilla is retroactive or not. The court made a detailed analysis of the issue of the retroactive application of announced constitutional principles and after determining that they apply, granted the state's motion to dismiss. While technically the state's Motion to Dismiss refers to the statute of limitations as the basis for the motion, it clearly addresses the issue of retroactivity in the body of its argument, and was addressed by petitioner in his responsive memorandum. The trial court treated it as a general demurrer. When a motion by its content tests a petition's legal sufficiency and the trial court treats it as a general demurrer, appellate courts will do likewise. Church V. Gladden, 244 Or 308, 313, 417 P2d 993 (1966). ///// /////

40 30. Standard of Review A judgment denying post-conviction relief is reviewed for errors of law. Lamb v. Coursey, 238 Or App 647, 650, 243 P3d 130 (2010); Ashley v. Hoyt, 139 Or App 385, 391, 912 P2d 393 (1995). Oregon appellate courts freely review legal questions for errors of law and do not defer to the trial court in any fashion. State v. Rogers, 330 Or 282, 312,4 P3d 1261 )2000); Chocktootv. Smith, 280 Or 567, 575, 571 P2d 1255 (1977)(... such legal ruling are also open for briefing and review on appeal."); Yundt v. DiScD Bowl, nc., 259 Or 2478, ,486 P2d 553 (1971)(judge must apply certain principles of law and when he fails to do so, his decision is not free from review and revision); Waldorf v. Elliott, 214 Or 437, 441, 330 P2d 355 (1958)("... we can in any case correct any misapplication of the law to the facts.").. Argument A. Relief Under Oregon's Post-Conviction Hearing Act s Available Retroactively When the Oregon Legislature enacted the Post-Conviction Hearing Act in 1959, it intended to codify the relief that was then available through a writ of habeas corpus. ORS (2), unchanged since 1959, provides: "Whenever a person petitions for relief under ORS to , ORS to shall not be construed to deny relief where such relief would have been available

41 31 prior to May 26, 1959, under the writ of habeas corpus, nor shall it be construed to affect any powers of executive clemency or pardon provided by law." The objective was not to enlarge the relief available prior to May 26, 1959, nor was it to reduce or diminish such relief. Bartz v. State of Oregon, 314 Or 353, 361 (1992)(The purpose of ORS (2) was to ensure that postconviction relief will be as broad a habeas corpus relief). The relief available through a writ of habeas corpus prior to May 26, 1959, had never been restricted to prospective application. Prior to 1965, the United States Supreme Court construed every constitutional error, including newly announced ones, as entitling state prisoners to relief on federal habeas. Danforth v. Minnesota, 552 US 264, 128 S Ct 1029, 1036 (2008)(until 1965, "'new' constitutional rules of criminal procedure were, without discussion or analysis, routinely applied to cases on habeas review"). Before 1965, the Supreme Court "took for granted the proposition that all federal constitutional rights, including rights that represented a break from earlier precedent, would be given full retroactive effect on both direct and collateral review." d., 128 S Ct at 1048 (Roberts, C.J., dissenting). 3, "The act is designed to provide at least as broad relief as was previously obtainable by habeas corpus inquiry into criminal convictions." Collins and Neal, The Oregon Post-Conviction Act, 39 Or L Rev 337, 346 (1960).

42 32 The issue of "retroactivity" was considered for the first time in 1965 in Linkletterv. Walker, 381 US 618 (1965). M,128 S Ct at Accordingly, the Oregon Legislature could not have intended in 1959 to impose a limitation on post-conviction relief based on a jurisprudence concerning the retroactivity of new principles of constitutional law that had not yet come into existence. Nothing in Oregon's Post-Conviction Relief act says or suggests that relief may not be available retroactively. Thus, ORS (2) requires that claims for relief based on the denial of federal constitutional rights (including those rights that represent a break from earlier precedent) be given the same relief that they would have received in 1959, without regard to subsequent changes in federal jurisprudence that has limited most habeas review cases to prospective relief. Another provision of the Post-Conviction Hearing Act which has remained unchanged since 1959 is ORS (1), which states, in relevant part: "(1) Post-conviction relief pursuant to ORS to shall be granted by the court when one or more of the following grounds is established by petitioner: (a) A substantial denial in the proceedings resulting in petitioner's conviction, or in the appellate review thereof, of petitioner's rights under the Constitution of the United States, or under the Constitution of the

43 33 State of Oregon, or both, and which denial rendered the conviction void. Thus, a petitioner in Oregon is entitled to post-conviction relief if he proves, by a preponderance of the evidence, that he suffered a substantial denial of a state or federal constitutional right in the proceeding below, which renders the conviction void. Ashley v. Hoyt, 139 Or App 385, 391, 912 P2d 393 (1996). Nothing in the language of ORS (1) requires that a constitutional right that was denied must be found to have retroactive application before postconviction relief is granted. This is hardly surprising since the concept of "retroactivity" did not exist and had never been applied when this statute was enacted. When the Post-Conviction Hearing Act was adopted in 1959, petitions for relief could "be filed without limit in time." Former ORS (2)( 1959). This statute was subsequently amended to provide a time limit of 120 days for filing a petition, "unless the court on hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the original or amended petition." Former ORS (2)( 1989). Later, the time limit was extended to two years, subject to the same exception for petitions based upon grounds "which could not reasonably have been raised in the original or amended petition." Former

44 34 ORS (2)( 1993). Although there was an established federal jurisdiction concerning the retroactivity of new rules of constitutional law when the time limit in ORS was amended in 1993, the Oregon Legislature did not insert any restrictions based upon the retroactive application of newly announced federal constitutional principles. Accordingly, neither the text nor the context of ORS and offers any support for the argument that there is a limitation on the availability of post-conviction relief in Oregon which did not exist in Despite the plain language of ORS which mandates postconviction relief when there has been a substantial denial of a constitutional right, Oregon courts have denied relief to petitioners unless they both (1) asserted a claim "based upon unanticipated and newly announced constitutional principles" which were also (2) applied retroactively. league V. Palmateer, 184 Or App 577, , 57 P3d 176, (2002). However, an examination of the precedent relied upon in league and other Oregon cases shows that the "retroactivity" requirement is not based upon any provision of the Oregon Post-Conviction Hearing Act, ORS to The "retroactivity" requirement appears to be an unwritten amendment that the courts have inserted into Oregon's post-conviction jurisprudence.

45 35 The authority of the United States Supreme Court to restrict the applicability of newly announced constitutional rules of criminal procedure is derived from Chapter 153 of Title 28 of the U.S. Code, which gives federal courts the authority to grant "writs of habeas corpus," but left unresolved may questions about the scope of available relief. Danforth, 128 S.Ct at That silence, along with the statute's command to dispose of habeas petitions "as law and justice require," 28 U.S.C. 2243, has been interpreted by the United States Supreme Court to authorize federal courts to adjust the scope of the writ in accordance with equitable and prudential considerations, including the adoption of the retroactivity rule. d., at Unlike federal courts, Oregon courts lack any authority to "adjust" the Oregon Post-Conviction Act or to dispose of post-conviction petitions "as law and justice require." When an Oregon petitioner establishes that there was a substantial denial of his rights under the Constitution of the United States in the proceedings resulting in his conviction, ORS mandates that relief be granted. Oregon courts have no authority to limit post-conviction relief to only the denial of those federal constitutional rights which federal courts have deemed to have retroactive application. An examination of Oregon cases in which post-conviction relief has been denied because the newly announced constitutional principle on which

46 36 they were based was not applied retroactively are remarkable for their lack of reliance upon, or consideration of, the Oregon Post-Conviction Hearing Act. For example, Teague v. Palmateer cites North v. Cupp, 254 Or 451,461 P2d 271 (1969), as authority for its assertion that the success of claims based on newly announced constitutional principles depends upon the retroactivity of the constitutional principal at work. Teague, 184 Or App at The petitioner in North, although told he could consult with an attorney before any interrogation, was not told an attorney would be appointed if he could not afford one. The North petitioner based his claim upon the rights announced in Miranda v. Arizona, 384 US 436 (1966), a case decided after his conviction became final. The North court denied relief for the reason that "the Supreme Court of the United States held that the standards of Miranda were not to be given retrospective application," and because the Court's ruling in State v. Allen, 248 Or 376, 434 P2d 740 (1967), decided that no retrospective application would be given to the principles announced in Miranda. State v. Allen (not a post-conviction relief case) simply states that Miranda rules had no application where they were announced after the retrial of the case in State V Allen began. d., 248 Or at 382, n. 1. The second case relied upon in Teague v. Palmateer as authority for its assertion was Church v. Gladden, 244 Or 308, 417 P2d, 993 (1966). The

47 37 Church petitioner alleged he had been interrogated without first being advised of his right to remain silent or to consult with an attorney, as announced in Escobedo v. llinois^ 378 US 478 (1964) subsequent to his conviction. The Court disposed of this claim by simply saying: "The rule of Escobedo has been held not to be of retroactive application. Elliott v. Gladden, 244 Or 134, 411 P2d 287 (1966); Johnson v. New Jersey, 384 US (1966). Petitioner may not take advantage of any new rights bestowed by Escobedo because his conviction was final before Escobedo was decided." d., at 313. n short, it appears the concept of retroactivity developed initially in the context of criminal trials where the admissibility of evidence was the subject of court-made rules. From there it was imported in to post-conviction relief hearings without analysis and without any acknowledgment that this was a different world not that was not ruled by the discretion of judges, but by statutes like the Oregon Post-Conviction Hearings Act and the legislative policies established therein. The requirement by Oregon courts that a newly announced constitutional principle must be deemed to have retroactive application before a petitioner relying upon a substantial denial of that principal in the proceedings resulting in his conviction will be successful in obtaining postconviction relief - is something courts have inserted into ORS The

48 38 addition of a retroactivity requirement by the courts to a statute is forbidden by ORS , which directs courts simply to ascertain and declare what is contained in a statute, and not to insert what has been omitted. Bedrock principles of the separation of powers forbid the judicial branch from expanding, or ignoring, statutory language. Young v. State of Oregon, 161 Or App 32, 41, 983 P2d 1044 (1999)(Landau, J., concurring). t is not the role of the courts to act as a super legislature and reweigh the policy decisions of the legislature. Denton Plastics, nc., v. City of Portland, 105 Or App 302,308, 804 P2d 1199 (1991). When the Legislative Assembly has not included a retroactivity requirement as part of the Oregon Post-Conviction Hearing Act, the judiciary is powerless to insist on it. Unless derived from the text or context of the Post-Conviction Hearing Act, a retroactivity requirement cannot be imposed as a bar to relief mandated by ORS (l)(a). B. Federal Rules Of Retroactivity Do Not Control The Availability of Post-Conviction Relief in Oregon n Page v. Palmateer, 226 Or 379, 84 P3d 133 (2004), the Oregon Supreme Court decided that it could not apply newly announced federal constitutional rights retroactively to post-conviction proceedings in Oregon unless those rights were deemed retroactive under federal rules. d., at 383, 390. The Court disavowed its earlier statement in State v. Fair, 263 Or 383, 502 P2d 1150 (1972) that the Court "was free to determine the degree to

49 39 which a new rule of federal constitutional law should be applied retroactively" as being incorrect. Page, 336 Or at 387. Four years later, the United States Supreme Court came to the opposite conclusion in Danforth v. Minnesota, supra. Danforth involved a post conviction proceeding seeking relief based on a new constitutional rule announced six years after the petitioner's conviction had become final. The Minnesota Supreme Court decided it was not free to give a United States Supreme Court decision announcing a new constitutional rule broader retroactive application that that given by that Court. d., 128 S Ct at n reversing, the United States Supreme Court explained that the federal concept of retroactivity was intended only "to limit the authority of federal court to overturn state convictions -not to limit a state court's authority to grant relief for violations of new rules of constitutional law when reviewing its own State's convictions." d., 128 S Ct at A determination that a constitutional violation is deemed "nonretroactive" for federal habeas cases "does not in any way limit the authority of a state court, when reviewing its own state criminal convictions, to provide a remedy for [that] violation..." d., 128 set at ronically, Danforth cited State f. Fair, supra, as an example of a court that correctly stated the proper application of the concept of retroactivity.

50 40 The United States Supreme Court said: "n State v. Fair, 263 Ore. 383, 502 P.2d 1150 (1972), the Oregon court noted... that 'we are free to choose the degree of retroactivity or prospectivity which we believe appropriate to the particular rule under consideration, so long as we give federal constitutional rights at least as broad a scope as the United States Supreme Court requires.' 263 Ore., at , 502 P2d at n so holding, the Oregon court cited our language in Johnson that "'States are still entirely free to effectuate undertheir own law stricter standards than those we have laid dovm and to apply those standards in a broader range of cases than is required by this decision.'" Danforth, 128 S Ct at 1039, (quoting Johnson v. New Jersey, 384 US 719, 86 S Ct 1772, 16 L Ed 2d 882 (1966). Since Fair correctly stated the law, the holding in Page v. Palmateer (and Page's disavowal of Fair) was necessarily incorrect and Page was wrongly decided. Contrary to Page and the cases that follow it (such as Alfredo Saldana-Ramirez v. Oregon, 255 Or App 602, P3d (2013)), federal retroactivity principles do not govern whether a new federal constitutional rule applies retroactively in Oregon courts. Oregon courts are entirely free to give retroactive effect to the new rule announced in Padilla. CONCLUSON Petitioner's petition for post-conviction relief was timely filed pursuant to the exception to the ordinary two-year limitation set forth in ORS (3) because petitioner was precluded by established precedent from

51 41 raising his claims of ineffective assistance of counsel under the Sixth Amendment to the United States Constitution until after Padilla v. Kentucky, supra, established that he was entitled to be specifically advised of the immigration consequences of his guilty plea, and because the collateral consequence doctrine was a bar to post-conviction relief based on immigration matters until it was repudiated in Padilla. The constitutional rights established in Padilla are retroactive under the Oregon Post-Conviction Hearing Act. The judgment of the trial court and Court of Appeals should be reversed and this case remanded for an evidentiary hearing. Respectfully submitted, / Steven E. Benson, OSB # Attorney for Petitioner-Appellant

52 EXCERPT OF RECORD

53 ER-1 m THE circurr court of the state of Oregon FOR THE COUNTY OF MULTNOMAH ESTEBAN CHAVEZ, ) Case No. Petitioner, ) PETmON FOR POST-CONVCTON ) RELEF V. ) (ORS to ) >TATE OF OREGON, Defendant. Petitioner represents to the court; FACTS 1. On June 30,1999, petitioner was indicted on one count of Delivery of a :ontroled Substance, a class B felony, and one count of Possession of a Controlled Substance, class C felony. (Exhibit 1, attached hereto). 2. On July 9,1999, petitioner was arraigned on the charges in the indictment, and le court appointed the Multnomah County Public Defender to represent petitioner. (Exhibit 2, tached hereto). Angel Lopez was the Public Defender attorney who represented petitioner at s arraignment; at all subsequent court appearances petitioner was represented by Gwenn utkovsky. 3. n approximately August, 1999, petitioner met with his attorney for a Pre-Trial PETTON FOR POST-CONVCTON RELEF Stovca E. Benson, OSB #73025 AttonieyatLitw P.O.BocljQStf Porta^OR Street PciiOsnd.C« (303)

54 ER-2 Conference, at which time the District Attorney made an offer to dismiss Count 11 of the indictment if petitioner agreed to plead guilty to Count. The District Attorney also explained that if this offer was accepted, he would also recommend to the court that petitioner be sentenced to 30 sanction units in jail and 3 years of formal probation, exclusion from a park, suspension of petitioner's driver's license, and reimbursement of his court-appointed attom^'s fees. At this time, petitioner and his attorney discussed the offer made by the District Attorney, potential defenses that petitioner had to the charges against him, including having evidence the police seized as the result of a warrantless search suppressed, and suppressing statements made by the petitioner prior to receiving Miranda warnings. Petitioner's attorney explained that the maximum sentence that could be imposed if petitioner was found guilty of the charges against him, and urged him to accept the District Attom^'s offer because, among other things, it would be the "festest and easiest" way to dispose of the charges against petitioner. Petitions's attom^ did not ask petitioner about his immigration status. Petitioner's attorney did not advise petitioner of the immigration consequences of a guilty plea, that he would be deported if he pled guilty, that he would be permanently barred from returning to the United States, and that he could never become a naturalized citizen. Based on the advise of his attorney, petitioner agreed to accept the District Attorney's offa*. 4. On September 2,1999, petitioner appeared before the court with his appointed attorney, Gwen Butkovsky, for a change of plea. mmediately prior to addressing the court, attorney Butkovsky read through a form of Petition to Plead Guilty/No Contest and Waiver of Jury Trial with petitioner, and filled in the blank spaces as she read the form. After she had filled out the form, petitioner dated and signed the Petition to Plead Guilty and Waiver of Jury Trial. Attorney Butkovsky then dated and signed the Certificate of Counsel which was part of the ;e2- PETTON FOR POST-CONVCTON RELEF Steven E. Beraon, OSB ((73025 Attorney at Law P.O.Bi«lSQ36 Pod>n4C»^ ^ Oak SHeet P(n&nd,(» (»^QM63S

55 ER.3 etition to Plead Guilty and Waiver of Jury Trial. (Exhibit 3, attached hereto). Paragraph 12 of the Petition to Plead Guilty and Waiver of Jury Trial contains a general (nmigration advisement which reads: " know that if am not a United States citizen, my plea may result in my deportation from the USA, or denial of naturalization, or exclusion from ftore admission to frie United States. Forney Butkovsky did not think petitioner would be deported as a result of his guilty plea. She did not ask if petitioner intended to apply to become a naturalized United States citizen. 5. The Honorable Clifford L. Freeman accepted petitioner's plea of guilty to Count of the indictment on Septemb^ 2,1999. (Exhibit 4, attached hereto). Petitioner has no recollection whether Judge Freeman directed any questions to petitioner concerning Paragraph 12 of the Petition to Plead Guilty or petitioner's understanding of what impact petitioner's guilty plea would have on his ability to remain in the United States or become a naturalized citizen. 6. Petitioner relied upon the erroneous advice of his attorney when he pleaded guilty to Count of the charges against him. Petitioner would not have entered into the plea agreement if his attorney had informed him that such a plea would expose him to certain removal from this country, would prevent him from ever becoming a naturalized citizen, and would cause him to be permanently barred from reentering the United States. For petitioner, the immigration and naturalization consequences imposed as a result of his guilty plea were offer greater significance that the criminal penalties that could have been imposed had he gone to trial and been found guilty. Petitioner would never have waived his right to trial if he had been informed of the specific immigration and naturalization consequences of his guilty plea. 7. Following his acceptance of petitioner's plea of guilty to Count, Judge Freeman proceeded to impose a Judgment of Conviction and Sentence. (Exhibit 5, attached hereto). 8. Following his conviction, petitioner successfully fulfilled all the terms and requirements of his probation. Except for minor offenses (traffic tickets), petitioner has not ;e 3 - PETTON FOR POST-CONVCTON RELEF Steven E. Boaon, OSB #73025 AtUmtoyatLsnr P.O. Box Poit]8Jt40R ^ Oak Street )f6anii.or (S

56 ER.4 been involved in illegal or criminal activity since his conviction. 9. Petitioner is a Lawful Permanent Resident of the United States. (Exhibit 6, attached hereto). He came to this country on r', when he was f 7^ years old. He became a lawful permanent resident on November 21, Because petitioner did not understand the immigration consequences of his plea and the judgment of conviction in his case, he applied to become a naturalized United States citizen in in processing his application, the Department of Homeland Security determined that petitioner had been convicted of the offense of Delivery of a Controlled Substance Schedule n, in the Multnomah County Circuit Court on September 2,1999, and is thus subject to removal (deportation) as a result. (Exhibit 7, attached hereto). 11. Shortly after the Department of Homeland Security determined that petitioner was subject to removal from the United States he was taken into custody. Petitioner remains in custody pending a hearing scheduled before the mmigration Court on November 7,2011. (Exhibit 8, attached hereto). 12. Petitioner's entire family lives in the United States. Petitioner is married and has four children who are United States citizens. Petitioner has worked steadily since finishing high school, and has bought and paid for the home where he resides with his frmily. APPELLATE AND POST-CONVCTON PROCEEDNGS 13. Petitioner did not file an appeal from the Judgment of Conviction and Sentence signed by Judge Freeman on September 9,1999, and entered on September 17, Petitioner has not previously made any application for post-conviction relief in this case. SPECFC GROUNDS FOR RELEF 15. The failure of petitioner's attorney to advise him of the clear immigration and naturalization consequences of his guilty plea dq)rived petitioner of his right to effective 4- PETTON FOR POST-CONVCTON RELEF Steven E. Bensm, #73025 AtttoneyatLsw P.O. Box Poi&i^OR M Oak Street PoiOand,<m (303)23S-6658

57 ER-5 assistance of counsel guaranteed by Article 1, sections 10 and 11, of the Oregon Constitution and the Sixth and Fourteenth Amendments to the United States Constitution. RELEF DESRED 16. Petitioner should be allowed to withdraw from his plea agreement and the Judgment of Conviction and Sentence should be set aside. TMELNESS OF PETTON 17. A petition for post-conviction relief must be filed within two years of the date on which the judgment of conviction was entered, '^unless the court on hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised the original or amended petition * ORS (3). As more fuuy set forth in the memorandum of law submitted herewith, at the time of petitioner's conviction the case law of both the State of Oregon and the federal Ninth Circuit Court of Appeals held that a gen^:al immigration advisement that a guilty plea may result in deportation, exclusion or denial of naturalization satisfied the constitutional requirements for effective assistance of counsel. On March 31,2010, the United States Supreme Court issued its decision in Padr7/a v. Kentucky^ 130 S. Ct (2010), which reversed existing case law and held that counsel's failure to advise a defendant of the clear immigration consequence of a guilty plea was constitutionally deficient. Prior to the decision in Padilla^ established case law prevented petitioner fiom reasonably raising the grounds for relief which he now asserts. This petition is filed within two years of the Padilla decision and is timely. 'S:i Petitioner e 5 - PETTON FOR POST-CONVCTON RELEF Steven E. Benson, OSB #73025 AttomeyatLaw P.O. Box PoO^OR ^Oek Street P(»tlanel.OR (5Q3i)238-66S8

58 ER N THE CRCUT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH ESTEBAN CHAVEZ, Petitioner, V. STATE OF OREGON, Defendant. Case No. iili«-i4ss7 MEMORANDUM N SUPPORT OF PETTON FOR POST-CONVCTON RELEF RGHT TO EFFECTVE ASSSTANCE OF COMPETENT COUNSEL The Sixth and Fourteenth Amendments to the United States Constitution guarantee a defendant in a state criminal trial the fundamental right to effective assistance of competent counsel. McMam v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Strickland v. Washington, 446 U.S. 668, S.Ct. 2052, 80 L.Ed.2d 674 (1984). Article, sections 10 and 11, of the Oregon Constitution provides its own distinct guarantee of effective assistance of counsel. Effective assistance of counsel is just as important at the pleading stage as at trial. VonMoltke v. Gillies, 332 U.S. 708, 721, 68 S.Ct. 316,322, 92 L.Ed. 309 (1948). The negotiation of a plea agreement is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 57, 106 Page 1 - MEMORANDUM N SUPPORT OF PETTON FOR POST-CONVCHON RELEF Steven E. Benson, OSB #73023 Attorney at Law P.O. Box PofdandOR ^ Oak Street PoitlandLOR (503^23S-«6S8 i

59 ER-7 ^ S.Ct. 366, 88 L.Ed.2d 203 (1985). n Strickland, supra, the United States Supreme Court set 2 out a two-pronged test which must be satisfied in order to prevail upon a claim of ineffective ^ assistance of counsel The petitioner must show that (1) counsel's performance fell below ^ objective standards of reasonableness and (2) that the petitioner suffered prejudice as a result of ^ his attorney's deficient representation. d., at 688, 694. g On March 31,2010, the United States Supreme Court issued its decision in the case of ^ Padilla v. Kentucky, 130 S.Ct (2010). The petitioner in Padilla had been a legal g permanent resident of the United States for over 40 years. d., at Mr. Padilla pled guilty ^ to drug transportation charges and faced deportation from the United States. d, at Mr. ^ Q Padilla claimed that his attorney had failed to advise him of the immigration consequences ^ ^ associated with his guilty plea, and that his attorney had erroneously informed him that he "did not have to worry about immigration status since he had been in the country so long.". d, at Mr. Padilla claimed that he relied on his attorney's advice when he decided to enter a guilty plea in his case. d, at The issue before the court was whether Mr. Padilla's j g j g attorney was constitutionally deficient in his representation. The Court's opinion outlines changes in immigration law, which have effectively removed an mmigration Judge's discretion when dealing with individuals who have been convicted of a variety of crimes. d, at 1478 to The Court explains that immigration and criminal law have become intimately intertwined. The Court reafsrmed that immigration consequences are a particularly severe 20 penalty associated with the criminal process and held that **Strickland applies to Padilla's 2j claim." d, at The Court next had to determine whether Mr. Padilla's attorney's representation had 22 been constitutionally deficient. The Court held that Mr. Padilla's attorney was constitutionally 24 deficient because he &iled to advise his client of the risk of deportation. d, at 1483,1486. The 2^ Court went further however and held that "when the deportation consequence is truly clear, as it Page 2 - MEMORANDUM BSf SUPPORT OF PETTON FOR POST-CONVCTON RELEF Steven E. Benson, OSB #73025 AttonsvatLaw P.O.Boxl5(»6 Pnt^OR SB Oak Street Poitlsnd,OR (503)23S-06S8

60 ER-8 was here, the duty to give correct advice is equally clear." d, at The Court noted that "the terms of the relevant immigration statute are succinct, clear, and explicit in defining the removal consequences for Padilla's conviction" and that 'Tadilla's counsel could have easily determined that his plea would make him subject to deportation simply fi'om reading the text of the statute, which addresses not some broad classification of crimes but specifically commands removal for all controlled substance convictions except for the most trivial of marijuana possession offenses." d., at The Court also specifically addressed situations in which the immigration consequences are not clear. n those situations, a general immigration advisement is appropriate. d, at Also, the Court made it clear that its holding was not limited to situations in which counsel gives incorrect advice. The court reasoned that such a holding would invite two "absurd" results, by (1) encouraging attorneys to simply remain silent on the issue of deportation, and (2) denying chents the most rudimentary advice on deportation even when it is reasonably available. d, at Silence would be at odds with a lawyer's "critical obligation" to advise clients of the advantages and disadvantages of a plea agreement. d, at F^ure to provide clients with available advice about deportation violates a ^quintessential' duty of defense counsel. d, at APPLCATON 0 PADLLA v. KENTUCKY TO THS CASE n this case, Mr. Chavez's attorney never advised him of the clear immigration consequences of his guilty plea. Chavez does not dispute that his plea agreement included a general immigration advisement. That advisement is not sufficient under the holding in Padilla and the facts of this case. First, the duty is upon defendant's attorney to advise his or her client about immigration consequences. Second, Mr. Chavez's attorney should have advised him, not that there /nqy be immigration consequences, but that he would he deported because of his guilty je 3 - MEMORANDUM N SUPPORT OF PETTON FOR POST-CONVCTON RELEF Steven E. Benson, OSB #73025 AttomeyatLaw P.O.B(flclS036 PoitlaniOR ^ Oak Street PQidaiid.OR (503^

61 ER plea. The facts in Mr. Chavez's case are very similar to those in Padilla. There was no ambiguity about the consequences of his plea agreement and that information was not difficult to ascertain. Mr. Chavez pled guilty to Delivery of a Controlled Substance, which is not only a controlled substance offense under existing federal law, but more importantly an aggravated felony. 8 U.S.C. 1101(a)(43)(B); Because Mr. Chavez pled guilty to an offense relating to a controlled substance, he was clearly and explicitly subject to automatic deportation. See 8 U.S.C. 1227(a)(2)(B)(i). ^ There is no relief from deportation for an offense involving a controlled substance, and Mr. Chavez will be permanently barred from returning to the United States. Mr. Chavez was never advised of the specific immigration consequences of his guilty plea by his attorney. Because the immigration consequences of his guilty plea were succinct, clear and explicit, Mr. Chavez's attorney should have advised him of those consequences. See, e.g.. National Legal Aid and Defender Assn., Performance Guidelines for Criminal Representation 6.2 (1995)(counsel must advise a client regarding the risk of deportation)(authority relied upon in Pacfi/Za, 130 S.Ct. at 1482). A general immigration advisement does not satisfy the holding m. Padilla because in this case, as in Padilla, there was no ambiguity regarding the immigration consequences. As in Padilla, counsel's frilure to advise Mr. Chavez of the specific immigration consequences of his plea constitutes deficient representation and satisfies the first prong of the Strickland Since Mr. Chavez's previous representation was constitutionally deficient. Mr. Chavez U.S.C. sec. 1227(a) (2)(B)() provides: ''Any alien who 21 at any time after admission has been convicted of a violation of 12 ^ conspiracy or attempt to violate) any law or regulation of a State, the United States or a foreign country relating to a 23 controlled substance * * *, other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable." 25 Page 4 - MEMORANDUM N SUPPORT OF PETTON FOR POST-CONVCTON RELEF Steven E. Benson, OSB #73023 Attorney at Low P.O. Box PoiOand.OR SE Oak Stieet PojtbBid,OR (S<»)23&46S8

62 ER-10 must next show that he suffered prejudice as a result of that representation. Specifically, the petitioner needs to demonstrate a "reasonable probability that, but for counsers unprofessional errors, the result of the proceedings would have been different." Strickland, 446 U.S. at 694. To demonstrate "prejudice," a petitioner must demonstrate "that there is a reasonable probability that, but for counsers errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59,106 S.Ct. 366, 88 L. d.2d 203, 210 (1985); Long v. State of Oregon, 130 Or App 198, 203, 880 P2d 509 (1994)(to prevail on the issue of prejudice, petitioner must establish that he would not have entered into plea agreement if counsel had adequately informed him of the consequences). f Mr. Chavez had been informed of the immigration consequences of his guilty plea, he would not have entered into the plea agreement or waived his right to trial. For Mr. Chavez, the immigration consequences of his plea were of far greater importance to him that the potential criminal sanctions he jfeced. He was not aware that as a result of his guilty plea he would be reposed to certain removal fi"om the United States to a country his family no longer lived in, barred from becoming a naturalized citizen, and barred firom ever reentering the United States. n Padilla, the Court notes that "to obtain relief on this type of claim a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla, 130 S.Ct. At 1485, citing v, Flores-Ortega, 528 U.S. 470,480, 486, 120 S.Ct. 1029,145 L.Ed.2d 985 (2000). Given the immigration consequences of a conviction, it would have been completely rational under the circumstances for hfr. Chavez to reject the plea agreement and instead compel the state to prove its case to a jury. As Padilla makes clear, for some people the immigration consequences of a criminal conviction are more important than the criminal sanctions. d., at Mr. Chavez unequivocally would never have waived his right to that trial if he was informed of the specific immigration consequences of his guilty plea. ge 5 - MEMORANDUM N SUPPORT OF PETTON FOR POST-CONVCTON RELEF Steven E. Batscm, OSB #73023 Attmncy flt Lflnr P.O.BaxS(B6 Prafl^OR ^ Oak Street Poieand.OR 97214

63 ER-li 2 Mr. Chavez's petition establishes both that his attorney's representation fell below objective standards of reasonableness and that he was prejudiced by his attorney's deficient 2 representation AVALABLTY OF POST-CONVCTON RELEF 5 g ORS provides, in relevant part: «"(1) Post-conviction relief pursuant to ORS to sh^ be granted 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, Q 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. 4: 4e 4:» n order for a petitioner to prevail on a claim of inadequate assistance of counsel, petitioner must show, by a preponderance of the evidence, that trial counsel failed to exercise reasonable professional skill and judgment and that petitioner suffered prejudice as a result. Saroian v. State of Oregon, 154 Or App 112, 115, 961 P2d 252 (1998), citing Trujillo v. Maass, 312 Or 431, 435, 822 P2d 703 (1991). As set forth above, petitioner has met this burden by showing that his trial attorney's representation fell below objective standards of reasonableness when she failed to advise of the immigration consequences of his guilty plea although those consequences were succinctly, clearly and explicitly set forth in the relevant immigration statute, and that petitioner was prejudiced by this deficient representation because he would not have entered his guilty plea otherwise. 4. TMELNESS OF THE PETTON >5 of the date the judgment order in petitioner's case was entered, "unless the court on hearing a Page 6 - MEMORANDUM N SUPPORT OF PETTON FOR POST-CONVCTON RELEF Steven E. Benson, OSB S73025 AttooieyatLaw P.O.BaxljQ36 P<»aBnd,OR SEOakStnet Poi&nd.OR (3Q3)Z3»<638

64 ER-12 j subsequent petition finds grounds for relief asserted which could not reasonably have been raised 2 in the original or amended petition." ^ Petitioner herein could not reasonably raise his claim of inadequate assistance of counsel ^ before Padilla was decided on March 31, Prior to Padilla, the prevailing view was that ^ the risk of deportation concerned only a "collateral" matter not within the sentencing authority of ^ the state courts. Such "collateral" consequences were deemed outside the scope of ^ representation required by the Sixth Amendment, meaning that the failure of counsel to advise g the defendant of possible deportation consequences was not cognizable as a claim for ineffective ^ assistance of counsel. See, e.g., Padilla, 103 S.Ct. at As the dissent'm Padilla points out, j Q '"virtually all jurisdictions' - including 'eleven federal circuits, more than thirty states, and the j j District of Columbia' -'hold that defense counsel need not discuss with their clients the j2 collateral consequences of a conviction,' including deportation." Padilla, 130 S.Ct. at 1487 (diss^t of Justice Alito, citing Chin & Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L.Rev. 697, 699 (2002)). j ^ Oregon courts have consistently adhered to the "collateral" matter doctrine. n Lyons v. Pearce, 298 Or 554,694 P2d 969 (1985), the court declined to "hold that, as a mater of state jg constitutional law, a particular form of notice [that deportation is a consequence of a guilty plea] is required." d., at 562. Specifically, the court held that a defendant was not deprived of effective assistance of counsel if he was advised of "possible deportation" as a result of entering 20 a guilty plea. d., at More recently, the Oregon Supreme Court again took up the issue of whether defense 22 counsel provided constitutionally adequate assistance when he advised a defendant only that the 22 federal government may deport him if he pled guilty to a controlled substance offense in 2^ Gonzalez v. State of Oregon, 340 Or 452, 134 P3d 955 (2006). The post-conviction court and 25 the Court of Appeals held that because Mr. Gonzalez's counsel had told him only that a guilty Page 7 - MEMORANDUM N SUPPORT OF PETTON FOR POST-CONVCHON RELEF Steven E. Benson, OSB #73025 AttommatLamr P.O. Box PorfaniOR ^ Oak Stieet PDfOand.OR (603)

65 ER-13 j plea "may result" in deportation, he had not been provided constitutionally adequate 2 representation. d, at The Oregon Supreme Court reversed the lower courts, holding 2 that the Oregon Constitution requires only that noncitizen criminal defendants be told that a ^ criminal conviction "may result" in deportation. d, at 459. ^ Since it was established law in both Oregon and federal courts that noncitizen criminal ^ defendants who pled guilty to controlled substance offenses had received effective representation 2 when they had been advised by their attorneys only that they may be subject to deportation as a g result of their guilty plea, it would not have been reasonable for petitioner herein to assert as g grounds for post-conviction relief that he had been denied effective assistance of counsel. t was jq ^ ^ not until the Padilla decision overturned existing law that it became reasonable for Mr. Chavez to seek post-conviction relief on the grounds that he had been denied effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitutioa Prior to March 31,2010, any post-conviction petition that Mr. Chavez may have filed in which he sought relief on those grounds would have been dismissed as meritless or j ^ yj frivolous. Because Mr. Chavez's petition for post-conviction relief has been filed within two years of the date of the Padilla decision, it is timely q 2j 5. CONCLUSON Based on the facts alleged in his post-conviction petition and for the reasons set fe»th above, Mr. Chavez's petition should be granted and the judgment of conviction entered 22 September 17, 1999, should be vacated. 22 DATED this 4*'' day of November, ^ i vy^ Steven E. Benson, OSB Attorney for Petitioner Page 8 - MEMORANDUM N SUPPORT OF PETTON FOR POST-CONVCTON RELEF Steven. Benson, OSB #73025 Attorney at Law P.O.B0K1SQ36 Poitland.C«& SE Oak Street Poillfln^OT^Z14

66 ER-14 N THE CRCUT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH ESTABAN CHAVEZ, ) ) Petitioner/Plaintiff, ) Case No V' } ) ORDER GRANTNG/DENYNG STATE OF OREGON, ) STATE'S MOTON TO DSMSS ) ) (STATUTE OF LMTATON) Respondant/Defendant. ) This case came before me for the State's Motion to Dismiss Petitioner's claim on the basis that it falls outside the statute of limitation. Mr. John Hoover appeared on behalf of the State. Mr. Steven Benson appeared on behalf of Petitioner. Mr. Chavez is in custody in an immigration facility and did not appear by telephone or in person. Mr. Chavez entered a plea of guilty to Delivery of a Controlled Substance in September Mr. Chavez alleges that his attorneys, Angel Lopez (now The Hon. Angel Lopez) and Gwen Butkovsky did not discuss the various significant immigration consequences of his plea with him. M:. Chavez alleges had he been aware of all the implications on his immigration status he would have requested trial instead of entering a plea. Mr. Chavez is subject to the provisions of the llegal mmigration Reform and mmigrant Responsibility Act of 1996 (RRA) and was served in June 2011 with notice to appear for removal proceedings. Ex.7 to Petitioner's Petition for Post-Conviction Relief. He filed this petition on November 1,2011. The case of Padilla v. Kentucky, 130 SCt 1473,176 L Ed2d 284 (2010), held that defense counsel had an obligation under the standards set forth in Strickland v. Washington, 466 US 668 (1984) to inform a defendant entering a plea whether the conviction carries a risk of deportation. Padilla, 130 SCt at Mr. Chavez is requesting that the court grant post-conviction relief

67 ER-15 dle^g failure to provide effective assistance of counsel by fading to adequately advise him of immigration consequences. The state moves to dismiss alleging the complaint Ms outside the statute of limitation ^d does not ad^uately plead grounds to trigger the escape clause. Under the two year statute of limitation, Mr. Ctavez would have needed to file apetition by September 1,2001. Mr. Chavez argues the limitation period tolls due to his failure to enter into a knowing and voluntary plea. He ^er states the earuest he could have filed his petition was after the US Supreme Court decided toe Padilla case because that would be the first timehe would have notice of his federal constitutional claims for relief. He states the running of the statute begins the date of the Padilla decision, March 30,2010. ORS (3)(a) provides that post-conviction relief actions must be filed within two years fi-om entry of conviction if no appeal is taken, unless the court finds "grounds for relief asserted which could not reasonably have been raised in the ori^d or amended petition." The exception to filing outside the statute of limitation is narrowly construed and must be limited to extraordinary circumstances. Benitez-Chacon v. State, 178 Or App 352,356, 37 P3d 1035 (2001). The issue is whether the information existed or was reasonably made available to the petitioner within the required time period. d, citing Brown v. Baldwin, 131 Or App 356,361, 885 P2d 707 (1994), See, also, Bartzv, State of Oregon, 314 Or 353, , 839^P2d 217 (1992). The exception to the statute of limitations does not encompass a claim based on a petitioner s lack of actual awareness of current statutes or laws. Benitez-Chacon v. State, 178 Or App at 359. This is true even if defendant relied on incorrect advice firom his attorney regarding the deadline for filing post-conviction relief. Brown v. Baldwin, 131 OrAppat361. Untimely petitions must allege^ facts that, if supported by evidence, would establish the grounds for relief could not reasonably have been raised timely. Morrow v. Maass, 109 Or App P2d 1374 (1991). ' ' The focus on the exception is the availability of information informing the grounds for post-conviction-relief and not the alleged mability of petitioner to take advantage of those grounds. Fisher v. Belleque, 237 Or App 405, ,240 P3d 745 (2010). The reasonableness of a petitioner's failure to act on available information is irrelevant to whether the escape clause should be triggered. d, 237 Or App at 411. Oregon courts have already rejected the notion that the escape clause allows filing outside the statute of limitation when a person did not leam of immigration consequences until a deportation order. After examining case interpreting the escape clause, the Court of Appeals found petitioner was presumed to have had knowledge of the relevant immigration statutes and rules then in existence. Benitez-Chacon v. State, 178 Or App at 357. The Court further rejected the "discovery rule" as a trigger for the statute's running. d, at

68 ER-16 The escape clause could be triggered if a petition asserts grounds for relief that could conceivably have been made but could not reasonably be expected such as a newly announced constitutional principle that was not only unsettled at the time but could not have reasonably been anticipated. d, at 359, citing Long v. ArmenakiSy 166 Or App 94, 101,999 P2d 461 (2000). The same result does not follow where the constitutional principle ianot new, but is an acknowledged one, and the uncertainty is in its scope or application to a particular circumstance. Long V. Armenakis, 166 Or App at 101. A petitioner is not excused from anticipating and raising a claim merely because that claim has not been resolved by an appellate court. Rather, if a claim reasonably can be anticipated it must be raised even if the law on the point is not yet settled. d, at 98. The exception does not encompass a claim based on a petitibhef' s lack' of actual awareness of current laws or statutes. Benitez-Chacon v. State, 178 Or App at 359. Petitioner and Defendant both discuss the issue of whether Padilla states a new constitutional rule of criminal procedure or whether it is merely an extension of existing constitutional standards, and as such, not a new constitutional law. New federal-constitutional rules do not apply retroactively unless the new rule requires observance of those procedures that are implicit in the concept of ordered liberty, the type of bedrock procedural element that must be found to vitiate the fairness of a conviction. Page v. Palmateer, 336 Or 379,388-89,84 P3d 133 (2004), citing league v. Lane, 489 US 288, (1989). To be a '^watershed" rule, a new rule must also be necessary to prevent an impermissibly large risk of an inaccurate conviction. Whorton v. Bockting, 549 US 406,418 (2007). A constitutional rule of criminal procedure does apply to all cases on direct and collateral review if it is not a new rule but rather an old rule applied to new facts. Chaidez v. United States, 655 F3d 684,688(7^ Cir. 2011), citing Whorton V. Bockting, 549 US at 416. Petitioner here argues his case comes within the escape clause because he could not reasonably have anticipated that Padilla would extend Sixth Amendment protections to include advice on immigration consequences of a conviction. The court finds the holding in Padilla does not represent a watershed rule. There is nothing about discussing the immigration consequences of a conviction that ensures the fairness of procedures at trial itself. Two recent cases appear to have adopted a broad retroactive application of Padilla to pleas entered since the passage of (RRA) without finding that Padilla constitutes a watershed change of constitutional procedure. See, generally, Denisyuk v. State of Maryland, (422 Md 462 QJ^\\)y Commonwealth of Mass. v. Clarke, 460 Mass 30 (2011). n Denisyuk, the petitioner filed a petition for post-conviction relief citing the same grounds at issue for Mr. Chavez. t was granted and the state filed appeal. The intermediate Court of Appeals reversed the trial court, and the Padilla decision was entered two days later. The court ruled that Padilla represented an old rule applied to new facts and "under Maryland retroactivity jurisprudence," applied retroactively. Denisyuk, p. 19, citing Potts v. State, 300 Md

69 ER ,577 (1984), which in turn cited United States v. Johnson, 457 US 537,549 (1982) (applying a Fourth Amendment construction retroactively to all convictions not yet final at the time of the ruling.) n Commonwealth v. Clarke, the petitioner had filed a motion for new trial arguing his plea was not voluntary because he was not informed of the immigration consequences. That first motion was denied in February Petitioner then filed a second motion for new trial on April 14,2010,15 days after Padilla was issued, which was also denied. The case was on appeal following the denial of the defendant*s second motion. The court likewise declared Padilla to be an old rule applied to new facts and applied it retroactively to cases on collateral review. Commonwealth v. Clarke, 460 Mass at 41. Though the courts in both cases cite a broad retroactive application, both cases were collateral reviews that were in process at the time Padilla was decided. The convictions were not yet final. Nothing in those cases or in Padilla indicates it should apply to revive cases long dormant or should override a statute of limitations long since expired. Nothing in those cases appears to automatically authorize a new action for collateral review. Under the Teague framework, old rules apply both on direct and collateral review, but new rules apply only to cases that are still on direct review. Whorton v. Bockting, 549 US at 416. That enunciated juxtaposition indicates the retroactive application would occur while a conviction was on collateral review and would not justify an entirely new cause of action. As such, the court does not read the broad statements of retroactive application in those cases to mean that petitioner here can bring a claim for relief more than 10 years after the statute of limitation has expired. Even if an old rule applied to new facts was enough to open a final conviction a decade later, this court does not find that Padilla is such a rule. A new rule is one that breaks new ground, imposes a new obligation on the states or government or one that was not dictated by precedent at the time the conviction became final. Whorton v. Bockting, 549 US at 416, citing Sqffle V. Parks, 494 US 484,488 (1990). Before Padilla, ineffective assistance did not occur if counsel failed to notify a defendant about immigration consequences because they were collateral rather than direct consequences of criminal convictions. Gonzalez v. State of Oregon, 340 Or 452, (2006). Padilla imposes new obligations on the government and its holding was not dictated by precedent at the time petitioner's conviction became final. Though petitioner argues that he could not have anticipated the Sixth Amendment would be construed to provide new protections regarding immigration consequences, Benitez-Chacon charges him with /// ///

70 ER^S knowledge of the immigration consequences, and that knowledge requiring action on the petitioner's part applies whether immigration consequences are collateral or direct. For the above-stated reasons, Aewurt grants the State's motion to dismiss. T S SO ORDERED this March, Albrecht W 4

71 ER-19 FLED: February 23, 2017 N THE COURT OF APPEALS OF THE STATE OF OREGON ESTEBAN CHAVEZ, Petitioner-Appellant, V. STATE OF OREGON, Defendant-Respondent. Multnomah County Circuit Court A Cheryl A. Albrecht, Judge. Argued and submitted on January 02,2014. Steven E. Benson argued the cause and filed the briefs for appellant. Kathleen Cegla, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General. Before Ortega, Presiding Judge, and Duncan, Judge, and DeVore, Judge. DUNCAN, J. Affirmed. DESGNATON OF PREVALNG PARTY AND AWARD OF COSTS Prevailing party: Respondent J No costs allowed. "Xl Costs allowed, payable by Appellant. Costs allowed, to abide the outcome on remand, payable by

72 ER-20 1 DUNCAN, P. J. 2 n this post-conviction case, petitioner alleges, based on Padilla v. 3 Kentucky, 559 US 356, ,369, 130 S Ct 1473, 176 L Ed 2d 284 (2010), that he was 4 denied effective assistance of counsel because his defense attorney failed to advise him of 5 the immigration and naturalization consequences of a guilty plea to a count of delivery of 6 a controlled substance. The post-conviction court concluded that the petition, filed 7 12 years after petitioner's conviction was final, was untimely; the court further reasoned 8 that the petition fails on the merits because Padilla does not provide a basis for relief for 9 convictions that were final before that decision was issued. For the reasons that follow, 10 we reject petitioner's arguments that he can prevail on the merits of his Pa^/z7/a-based 11 claim, and we affirm on that ground.^ 12 The backdrop of this case is an uncommonly complex weave of state and 13 federal law. Petitioner's underlying conviction for delivery of a controlled substance was 14 entered in 1999, but he did not file his petition for post-conviction relief until 2011, 15 shortly after the United States Supreme Court decided Padilla, 559 US at , which ' Although the judgment refers to dismissal based on the "statute of limitations," the parties agree that the issue of "retroactivity" /.e., whether Padilla provides a basis for post-conviction relief from convictions that were final before that case was decided was fully litigated by the parties and ruled upon by the trial court. Because we affirm the dismissal on the merits based on the issue of retroactivity, we do not address whether the petition was timely filed under ORS (3). See league v. Palmateer, 184 Or App 577, 591, 57 P3d 176 (2002), rev den, 335 Or 181 (2003) (concluding that a federal rule did not apply retroactively and that, "[a]s a result, we do not need to decide whether petitioner's claims were untimely under ORS (3) or were precluded by the successive petition bar of ORS (3)").

73 ER-21 1 held that counsel's failure to give correct advice regarding clear deportation consequences 2 of a conviction had amounted to ineffective assistance under the Sixth Amendment to the 3 United States Constitution. Petitioner alleged that, as in Padilla, his attorney had not 4 advised him of the clear immigration and naturalization consequences of his plea, and 5 that he Avould not have entered into the plea agreement if his attorney had told him that he 6 would be deported, would be barred from reentering the United States, and could not 7 become a naturalized citizen. He further alleged that, "[pjrior to the decision in Padilla, 8 established case law prevented petitioner from reasonably raising the grounds for relief 9 which he now asserts." 10 The state moved to dismiss the petition, arguing that petitioner could have 11 anticipated Padilla and that the petition was therefore untimely. See ORS (3)(a) 12 (requiring petitions for post-conviction relief to be filed within two years of the date of 13 conviction unless the asserted grounds for relief "could not reasonably have been raised" 14 in a timely manner). The state also argued that the petition fails because the procedural 15 rule aimounced in Padilla "is not retroactive and does not apply to his case"-/.e., it does 16 not provide a basis for relief from convictions that were final before Padilla was decided. 17 The post-conviction court agreed with both of the state's contentions, and it dismissed the 18 petition. 19 Petitioner then appealed the post-conviction judgment and, in his opening 20 brief, argued that the petition came within the exception to the two-year filing period 21 because Padilla announced a rule of law that could not reasonably have been anticipated

74 ER-22 1 before that decision. As for the merits, petitioner's challenge to the court's analysis of 2 retroactivity was two-fold and mirrored his contentions in the post-conviction court, 3 Petitioner argued that, contrary to the post-conviction court's ruling, Padilla announced a 4 rule that applies retroactively under the test set out in league v. Lane, 489 US 288, 311, S Ct 1060,103 L Ed 2d 334 (1989)(plurality). Alternatively, petitioner argued that 6 retroactivity principles for purposes of federal habeas relief do not constrain the ability of 7 state courts to grant relief in post-conviction proceedings, see Danforth v. Minnesota, US 264, 128 S Ct 1029, 169 L Ed 2d 859 (2008)(so holding), and that, as a matter of 9 state law, Oregon's Post-Conviction Hearing Act was never intended to limit relief based 10 on retroactivity principles. 11 Since petitioner filed his opening brief, there have been a number of state 12 and federal appellate decisions bearing on his Padilla-hdiSQd claim. First, in Chaidez v. 13 United States, 568 US, 133 S Ct 1103,185 L Ed 2d 149 (2013), the United States 14 Supreme Court addressed one of the predicate issues in this case: whether the rule 15 announced in Padilla is retroactive under the Teague analysis. n Chaidez, the Court held 16 that it is not: "[U]nder the principles set out in [Teague], Padilla does not have 17 retroactive effect." 133 S Ct at Shortly thereafter, in Saldana-Ramirez v. State of Oregon, 255 Or App 602, ,298 P3d 59, rev den, 354 Or 148 (2013), we applied that federal retroactivity rule in 20 a state post-conviction proceeding, holding that Chaidez "foreclosed" the petitioner's

75 ER-23 1 Padilla-hsiSQd claim where, as in this case, the conviction became final before Padilla 2 issued. We reasoned: 3 "[U]nder federal retroactivity principles as elucidated in Chaidez, Padilla 4 does not apply to petitioner's collateral challenge. '[FJederal retroactivity 5 principles govern whether a new federal rule applies retroactively in 6 [Oregon] court.' Miller v. Lampert, 340 Or 1, 7, 125 P3d 1260 (2006) 7 (citing Page v. Palmateer, 336 Or 379, , 84 P3d 133, cert den, US 866 (2004)). Accordingly, we affirm." 9 d. at 608 (bracketed material in Saldana-Ramirez; footnote omitted). We thereby 10 implicitly rejected another of the arguments that petitioner makes in this case: that, in 11 light of Danforth, federal retroactivity principles have no application to Oregon post- 12 conviction cases. That is, notwithstanding the holding in Danforth that states are free to 13 apply their own retroactivity principles, we continued to follow Miller and Page, two 14 cases that predated Danforth and remained the most recent pronouncements jfrom the 15 Oregon Supreme Court as to whether Oregon courts apply federal retroactivity principles 16 to state post-conviction cases.^ Accord Frias v. Coursey, 229 Or App 716, 717,215 P3d , rev den, 347 Or 258 (2009) ("n petitioner's view, Danforth specifically calls into ^ n Page, the court held that, "when interpreting the federal constitution or applying Supreme Court rulings that are based on its interpretation of the federal constitution, we must comply with what the Supreme Court has stated." 336 Or at 386 (relying on Oregon v. Mass, 420 US 714, 719, 95 S Ct 1215, 43 L Ed 2d 570 (1975), md American Trucking Ass'ns. nc. v. Smith, 496 US 167, , 110 S Ct 2323, 110 L Ed 2d 148 (1990)). The holding in Page represented a departure from the court's earlier statement in State V. Fair, 263 Or 383,387-88, 502 P2d 1150 (1972), that "we are free to choose the degree of retroactivity or prospectivity which we believe appropriate to the particular rule under consideration, so long as we give federal constitutional rights at least as broad a scope as the United States Supreme Court requires." n Danforth, the United States Supreme Court noted that history and observed that the decision to change course in Page was "misguided" and based on an incorrect reading of Hass and American Trucking Ass'ns nc. 552 US at 277 n 14.

76 ER-24 1 question the reasoning in Miller and Page. See Danforth, 128 S Ct at 1039 n 14 2 (describing the decision in Page as 'misguided'). Whatever the merits of petitioner's 3 argument, it is properly addressed to the Oregon Supreme Court."). 4 n the wake of Saldana-Ramirez, we summarily rejected similar arguments 5 that Padilla applies retroactively in state post-conviction proceedings. See, e.g., 6 Sandoval v. State of Oregon, 261 Or App 864, 864,322 P3d 1161, rev den, 355 Or (2014) (per curiam citing Saldana-Ramirez). Then, in one of those cases, the Supreme 8 Court allowed review specifically to address the import of Danforth. n Verduzco v. State 9 of Oregon, 357 Or 553, 555, 355 P3d 902 (2015), a case in which we had summarily 10 affirmed the post-conviction court in an order citing Saldana-Ramirez, the Supreme 11 Court began its decision by explaining: 12 "n[danforth], the United States Supreme Court held that state 13 courts may apply new federal constitutional rules retroactively in state post- 14 conviction proceedings even though those rules do not apply retroactively 15 in federal habeas corpus proceedings. We allowed review in this case to 16 consider the principles that Oregon courts should follow in exercising the 17 authority that Danforth recognized." 18 The court then described the parties' competing arguments regarding retroactivity, stating 19 that, "[i]n Saldana-Ramirez, the Court of Appeals noted that this court's decisions before 20 Danforth had followed federal retroactivity analysis, and the Court of Appeals signaled 21 that it would do so too until we exercised our authority under Danforth to take a different 22 course. See 255 Or App at 608; see also Frias v. Coursey, 229 Or App 716,215 P3d (2009)." Verduzco, 357 Or at 560 n The court then further described the effect of Danforth:

77 ER-25 1 "As noted, the United States Supreme Court held in Danforth that states 2 may apply new federal rules retroactively in state post-conviction 3 proceedings even though those rules would not apply retroactively in 4 federal habeas. Essentially, the Court held in Danforth that federal 5 retroactivity analysis does not define the scope of the federal right. 552 US 6 at 275. ndeed, in Danforth, the Court described the federal retroactivity 7 analysis that it had annoimced in league as an interpretation of the federal 8 habeas statute. d. at "After Danforth, each state is free to determine when new federal 10 rules should be applied retroactively in state post-conviction proceedings. 11 Such determinations can include a consideration of the state's interest in the 12 finality of convictions, the effect of the new federal right on the validity of 13 the conviction, the need for predictable retroactivity rules, and the value of 14 additional review. See Paul M, Bator, Finality in Criminal Law and 15 Habeas Corpus for State Prisoners, 76 Harv L Rev 441 (1963)(discussing 16 considerations that can inform when courts should revisit final 17 convictions); cf Danforth, 552 US at (explaining that the current 18 federal rule was adopted, among other things, to ensure predictable 19 results)." Or at As it turned out, however, the court did not ultimately reach the 22 retroactivity question on which it had allowed review. d. at 563 ("Even though we 23 allowed review to consider when new federal rules will apply retroactively in Oregon, we 24 conclude that this case does not provide an occasion to decide that issue."). nstead, the 25 court concluded that petitioner had raised the same grounds for relief in an earlier petition 26 for post-conviction relief, which barred his claim for relief under ORS (3) (the 27 rule against successive petitions). Thus, the court concluded its decision by stating, 28 "[W]e do not need to decide whether we would choose to adhere to the federal standard 29 ofretroactivity or, if we were to adopt a different standard, what principles would inform

78 ER-26 1 it. t is sufficient in this case to hold that ORS (3) bars the grounds for relief 2 alleged in petitioner's second post-conviction petition." d. at 574 (emphasis added). 3 With that background, we return to the arguments that petitioner raises with 4 regard to retroactivity in this case. First, petitioner argues that, under the federal analysis, 5 Padilla announced a rule that must be applied retroactively. As stated previously, that 6 contention is now foreclosed by the United States Supreme Court's decision in Chaidez, US at, and we do not discuss it further. 8 That leaves petitioner's alternative contention that federal retroactivity 9 principles do not control whether the rule announced in Padilla applies in this state post- 10 conviction case. As the court in Verdnzco noted, we previously signaled that we would 11 follow federal retroactivity principles until the Oregon Supreme Court "exercised [its] 12 authority under Danforth to take a different course." 357 Or at 560 n 4. The court's 13 discussion in Verduzco znd its express recognition that, "[ajfler Danforth, each state is 14 free to determine when new federal rules should be applied retroactively in state post- 15 conviction proceedings," 357 Or at 562calls that approach into question, at least to the 16 extent that we had previously considered ourselves to be bound by Page and Miller. 17 And, if petitioner in this case were asking us to exercise our authority to depart from the 18 federal standard, we would be confronted with the same questions that the court posed 19 but did not answer in Verduzco: "whether we would choose to adhere to the federal

79 ER-27 1 standard of retroactivity or, if we were to adopt a different standard, what principles 2 would inform it."^ 357 Or at 574. But that is not petitioner's argument. 3 Petitioner's argument is not based on our authority (or, for that matter, the 4 Oregon Supreme Court's authority) to craft a state standard of retroactivity. Rather, 5 petitioner posits that Oregon courts lack any such authority because the legislature, in 6 enacting the Post-Conviction Hearing Act in 1959, intended to provide relief based on the 7 denial of constitutional rights "regardless of whether they are deemed under current 8 jurisprudence to apply retroactively or prospectively." n other words, petitioner argues 9 that the Oregon legislature already made the choice authorized by Danforth, and that, 10 based on the text, context, and legislative history of the Post-Conviction Hearing Act, 11 there is no retroactivity limitation on post-conviction relief for constitutional violations. 12 Thus, petitioner argues, "[w]hen the Legislative Assembly has not included a retroactivity 13 requirement as part of the Post-Conviction Hearing Act, the judiciary has no power to 14 insist upon it." 15 Petitioner's argument is inconsistent with our previous interpretation of the 16 Post-Conviction Hearing Act in Teague v. Palmateer, 184 Or App 577, 57 P3d (2002), rev den, 335 Or 181 (2003), as well as the Oregon Supreme Court's longstanding 18 approach to that act. n Teague, we specifically addressed whether the concept of 19 retroactivity applies to state post-conviction cases. We explained that, whereas parts of ^ We would also be required to ask an additional question: whether we, as opposed to the Oregon Supreme Court, should decide those questions in the first instance.

80 ER-28 1 the Post-Conviction Hearing Act address issue preclusion, "Oregon's approach to 2 retroactivity is reflected in a nearly 40-year-old body of settled precedent." 184 Or App 3 at 581. After tracing the history of the Post-Conviction Hearing Act, we explained: 4 "Consistently with that general design, the availability of relief under 5 Oregon's post-conviction statutes depends on two factors. First, a petitioner 6 must seek substantive relief that would have been available through a writ 7 of habeas corpus. Bartz v. State of Oregon, 314 Or 353, 361, 839 P2d (1992). That principle is codified in ORS (2), which effectively 9 provides that the substance of habeas corpus relief remains available to a 10 person who petitions for relief under the post-conviction statutes. Bartz, Or at 361. Second, a petitioner must follow the proper procedures for 12 obtaining that relief. d. As pertinent here, the statutes codify issue 13 preclusion principles that tum on the availability of prior judicial 14 proceedings to address a petitioner's claims. * * * 15 "ssue preclusion and retroactivity are distinct concepts and 16 traditionally have been treated as such. From the earliest cases decided 17 under Oregon's post-conviction statutes, petitioners have been able 18 procedurally to assert claims based on unanticipated and newly announced 19 constitutional principles, but their ability to prevail on those claims has 20 depended on the retroactivity of the constitutional principle at work. Such 21 cases are legion. See, e.g., [North v. Cupp, 254 Or 451,459-62,461 P2d (1969), cert den, 397 US 1054 (1970)](one of petitioner's claims 23 barred by statutory issue preclusion principles; claim based on newly 24 announced Escobedo/Miranda doctrine could be raised but was not a basis 25 for relief because doctrine was not retroactive); Church v. Gladden, 244 Or , ,417 P2d 993 (1966)(similar). As we explained in Myers v. 27 Cupp, 49 Or App 691, 621 P2d 579 (1980), rev den, 290 Or 491 (1981), 28 whether a new constitutional rule provides an exception to issue preclusion 29 and also is retroactive are complementary inquiries; a petitioner must 30 satisfy both to be entitled to post-conviction relief: 31 '"[A]n exception to the general rule that an issue raised and 32 considered on direct appeal cannot be reconsidered in a post- 33 conviction proceeding applies where the law with respect to that 34 issue has changed since the time of appeal and that new law is to be 35 applied retroactively' 36 "49 Or App at (emphasis added; citation omitted). n a more recent 37 post-conviction case, the Oregon Supreme Court similarly observed that a

81 ER-29 1 'court must analyze retroactivity' when considering whether to apply a 2 newly announced rule to a post-conviction case. Moen v. Peterson, 312 Or 3 503, , 824 P2d 404 (1991) (emphasis added) (declining to determine 4 what retroactivity standard should apply because constitutional rule 5 invoked by petitioner was not new). n short, assessing the retroactivity of 6 a newly announced constitutional rule is a necessary and legitimate step in 7 the analysis of whether post-conviction relief should be awarded on the 8 basis of that new pronouncement. The inquiry is not subsumed in the 9 statutory standards pertaining to when new issues are procedurally proper 10 to assert." Or App at (footnotes omitted; emphasis in original). 12 Petitioner acknowledges our holding in Teague but argues that "an 13 examination of the precedent relied upon in Teague and other Oregon cases shows that 14 the 'retroactivity' requirement is not based upon any provision of the Oregon Post- 15 Conviction Hearing Act, ORS to ," and that the "'retroactivity' 16 requirement appears to be an unwritten amendment that the courts have inserted into 17 Oregon's post-conviction jurisprudence and is simply bad law." 18 As we recently explained in State v. Civil, 283 Or App 395,416, P3d 19 (2017), "we must not, and do not, 'lightly overrule' our precedents, including those 20 construing statutes." {QmtmgAguilar v. Washington County, 201 Or App 640, 648, P3d 514 (2005), rev den, 340 Or 34 (2006)). We only overrule cases that are "'plainly 22 wrong,' a rigorous standard grounded in presumptive fidelity to stare decisis'' d. at Thus, "we begin with the assumption that issues considered in our prior cases are 24 correctly decided, and the party seeking to change a precedent must assume responsibility 25 for affirmatively persuading us that we should abandon that precedent." Farmers ns. 10

82 ER-30 1 Co. V. Mowry, 350 Or 686,698,261 P3d 1 (2011)(internal quotation marks omitted). 2 Here, petitioner's arguments do not satisfy that standard. 3 First, the analysis in league was not unmoored from the text of the Post- 4 Conviction Hearing Act, as petitioner suggests. After carefully tracing the history of that 5 act, we considered the "general design" of the statute, as well as the principle "codified in 6 ORS (2), which effectively provides that the substance of habeas corpus relief 7 remains available to a person who petitions for relief under the post-conviction statutes." Or App at Even if we did not expressly state that the text, context, and 9 history of the Post-Conviction Hearing Act do not foreclose the application of 10 retroactivity principles, that conclusion was necessarily implicit in our analysis. 11 Second, petitioner's argument depends largely on what inferences to draw 12 from the fact that the Post-Conviction Hearing Act is silent with regard to retroactivity. 13 That is, petitioner does not point to any text, context, or legislative history that establishes 14 that the legislature affirmatively considered the question of retroactivity; rather, his 15 argument is that such a limitation would not have occurred to the legislature at all, 16 because it was not addressed by the Supreme Court until 1965 in Linkletter v. 17 Washington, 381 US 618, 85 S Ct 1731,14 L Ed 2d 601 (1965), six years after the Post- 18 Conviction Hearing Act was enacted. Even assuming that petitioner's understanding of 19 the history of retroactivity is correct,"^ we will not revisit our decision in league, let alone ^ Petitioner draws from the dissenting opinion in Danforth, in which Chief Justice Roberts wrote, "As the court correctly points out, before 1965 we took for granted the proposition that all federal constitutional rights, including rights that represented a break 11

83 ER-31 1 a half-century of settled law in Oregon, simply because petitioner would draw a different 2 inference from the legislature's silence on that issue. See Mowry, 350 Or at ("Stability and predictability are important values in the law; individuals and institutions 4 act in reliance on this court's decisions, and to frustrate reasonable expectations based on 5 prior decisions creates the potential for uncertainty and unfairness."). 6 Finally, as an overarching matter, petitioner has failed to persuade us that 7 we are even the proper court to address his argument regarding the effect of the Post- 8 Conviction Hearing Act. n Teague, we were not writing on a blank slate; our 9 understanding of retroactivity as applied to the Post-Conviction Hearing Act was 10 "reflected in a nearly 40-year-old body of settled precedenf'-predominantly cases 11 decided by the Oregon Supreme Court. 184 Or App at 581; also, e.g.. Church, Or at 313 (holding, in a post-conviction case, the "[p]etitioner may not take advantage of 13 any new rights bestowed by [Escobedo v. State of llinois, 378 US 478, 84 S Ct 1758,12 14 L Ed 2d 977 (1964)], because his conviction was final before Escobedo was decided"). 15 Although petitioner attempts to undermine the reasoning in those cases, such as Church, 16 in which the Supreme Court applied retroactivity principles to deny post-conviction 17 relief, ^ we are not in a position to overrule the Supreme Court, nor are we inclined to from earlier precedent, would be given frill retroactive effect on both direct and collateral review. That all changed with Linkletter v. Walker, 381 US 618, 85 S Ct 1731,14 L Ed 2d 601 (1965)." 552 US at 293 (Roberts, C. J., dissenting). ^ Petitioner suggests that Oregon courts, including the Supreme Court, incorrectly "imported" retroactivity principles from criminal trials into "post-conviction relief hearings without the realization that this was a different world not ruled by the discretion 12

84 ER-32 1 revisit our own well-considered opinion to the extent that it was based on those earlier 2 Supreme Court cases. ^ 3 For those reasons, we reject petitioner's argument that the Post-Conviction 4 Hearing Act precludes the application of retroactivity principles to deny relief in this 5 case, and we affirm the judgment of the post-conviction court. 6 Affirmed. of judges, but by statutes and legislative policy." ^ Although petitioner's claim for relief also alleges that he was denied his right to adequate assistance of counsel under the Oregon Constitution, his arguments on appeal relate exclusively to his Padilla-hd&t6. claims. Accordingly, we do not address any issues related to a state constitutional claim. 13

85 CERTFCATON OF COMPLANCE WTH BREF LENGTH AND TYPE SZE REQUREMENTS Brief Length certify that (1) this brief complies with the word-count limitation in ORAP 5.05(2)(b)(A) and the word count of this brief (as described in ORAP 5.05(2)(b)(a) is 9,233 words. Type Size certify that the type in this brief is not smaller than 14 point for both the text of the brief and footnotes as required by ORAP 5.05(4)(f). NOTCE OF FLNG AND PROOF OF SERVCE certify that on November 2, 2017, 1 directed the original Amended Petitioner on Review's Merits Brief to be electronically filed with the Appellate Court Administrator, Appellate Records Section, and electronically served upon Dustin Buehler, Attorney for Respondent on Review by using the court's electronic filing system. further certify that on November 2,2017, 1 directed the Amended Petitioner on Review's Merits Brief be served upon Dustin Buehler, attorney for Respondent, by mailing two copies thereof, with postage prepaid, in an envelope addressed to: Dustin Buehler Assistant Attorney General Department of Justice 1162 Court Street, NE Salem, OR /$/ Steven E. Benson Steven E. Benson, OSB # Attorney for Petitioner/Appellant

86 February 1, :15 PM N THE SUPREME COURT OF THE STATE OF OREGON ESTEBAN CHAVEZ, Petitioner-Appellant, Petitioner on Review, v. STATE OF OREGON, Multnomah County Circuit Court No CA A SC S Defendant-Respondent, Respondent on Review. BREF ON THE MERTS OF RESPONDENT ON REVEW, STATE OF OREGON Review of the decision of the Court of Appeals on appeal from a judgment of the District Court for Multnomah County, Honorable CHERYL A. ALBRECHT, Judge Opinion Filed: February 23, 2017 Author of Opinion: Rebecca A. Duncan, Judge Concurring Judges: Darleen Ortega, Presiding Judge, Joel Devore, Judge STEVEN E. BENSON # Attorney at Law PO Box Portland, OR Telephone: (503) sbensonatty@hotmail.com Attorney for Petitioner on Review ELLEN F. ROSENBLUM # Attorney General BENJAMN GUTMAN # Solicitor General 1162 Court St. NE Salem, Oregon Telephone: (503) benjamin.gutman@doj.state.or.us Attorneys for Respondent on Review 2/18

87 TABLE OF CONTENTS NTRODUCTON... 1 QUESTONS PRESENTED AND PROPOSED RULES OF LAW... 3 FACTUAL AND PROCEDURAL BACKGROUND... 4 SUMMARY OF ARGUMENT... 6 ARGUMENT... 9 A. The petition was procedurally barred because the grounds for relief reasonably could have been raised in a timely filing before Padilla was decided ORS (3) s escape clause applies to a legal question that was previously unsettled only if the question could not reasonably have been anticipated within two years of the conviction Petitioner reasonably could have anticipated the question ultimately resolved in Padilla within two years of his conviction Petitioner has not advanced any other justification for the delay B. Padilla does not apply retroactively to petitioner s conviction The federal constitution does not require the state to apply Padilla retroactively, because Padilla announced a new procedural rule that does not implicate the accuracy of criminal proceedings The Post-Conviction Hearing Act does not give greater retroactivity to federal constitutional rulings than the federal constitution requires C. Granting relief here would give too little weight to the state s interest in the finality of criminal convictions...29 CONCLUSON i

88 TABLE OF AUTHORTES Cases Alanis v. State, 583 NW2d 573 (Minn 1998)...18 Avent v. Gladden, 243 Or 594, 415 P2d 164 (1966)...27 Barajas v. State, 115 Nev 440, 991 P2d 474 (1999)...18 Bartz v. State, 314 Or 353, 839 P2d 217 (1992)...13 Bautista v. State, 160 SW3d 917 (Tenn Crim App 2004)...18 Beard v. Banks, 542 US 406, 124 S Ct 2504, 159 L Ed 2d 494 (2004)...24 Benitez-Chacon v. State of Oregon, 178 Or App 352, 37 P3d 1035 (2001), rev den, 334 Or 76 (2002)... 17, 21 Bouge v. Reed, 254 Or 418, 459 P2d 869 (1969)...28 Broomes v. Ashcroft, 358 F3d 1251 (10th Cir), cert denied, 543 US 1034 (2004)...17 Chaidez v. United States, 568 US 342, 133 S Ct 1103, 185 L Ed 2d 149 (2013)... 19, 23 Chavez v. State of Oregon, 283 Or App 788, 391 P3d 801 (2017)...6, 24 Church v. Gladden, 244 Or 308, 417 P2d 993 (1966)...27 Commonwealth v. Fraire, 55 Mass App Ct 916, 774 NE2d 677 (2002)...18 Commonwealth v. Frometa, 520 Pa 552, 555 A2d 92 (1989)...18 Commonwealth v. Fuartado, 170 SW3d 384 (Ky 2005)...18 ii

89 Danforth v. Minnesota, 552 US 264, 128 S Ct 1029, 169 L Ed 2d 859 (2008)...23 Eklof v. Steward, 360 Or 717, 385 P3d 1074 (2016)...10 Elliot v. Gladden, 244 Or 134, 411 P2d 287 (1966)...27 Escobedo v. llinois, 378 US 478, 84 S Ct 1758, 12 L Ed 2d 977 (1964)... 14, 25, 27 Gideon v. Wainwright, 372 US 335, 83 S Ct 792, 9 L Ed 2d 799 (1963)...22 Gonzalez v. State, 340 Or 452, 134 P3d 955 (2006)...17 Gutale v. State (S065136)... 20, 21 Haynes v. Cupp, 253 Or 566, 456 P2d 490 (1969)... 13, 25 Henderson v. Kibbe, 431 US 145, 97 S Ct 1730, 52 L Ed 2d 203 (1977)...30 Hill v. Lockhart, 474 US 52, 106 S Ct 366, 88 L Ed 2d 203 (1985)... 29, 31 n re Resendiz, 25 Cal 4th 230, 19 P3d 1171 (2001)...17 n re Sanders, 21 Cal 4th 697, 981 P2d 1038 (1999)... 30, 32 Long v. Armenakis, 166 Or App 94, 999 P2d 461 (2000)... 11, 12 Lugo v. Gladden, 244 Or 7, 414 P2d 324 (1966)...27 Lyons v. Pearce, 298 Or 554, 694 P2d 969 (1985)...17 McDonald v. Cupp, 254 Or 107, 458 P2d 427 (1969)...27 Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966)... 25, 27 iii

90 Moen v. Peterson, 312 Or 503, 824 P2d 404 (1991)... 29, 31 Montgomery v. Louisiana, 577 US, 136 S Ct 718, 193 L Ed 2d 599 (2016)...22 Nikolaev v. Weber, 705 NW2d 72 (SD 2005)...18 Niver v. Commissioner of Corr., 101 Conn App 1, 919 A2d 1073 (2007)...18 North v. Cupp, 254 Or 451, 461 P2d 271 (1969)...27 Otten v. Gladden, 244 Or 327, 417 P2d 1017 (1966)...27 Padilla v. Kentucky, 559 US 356, 130 S Ct 1473, 176 L Ed 2d 284 (2010)... passim Page v. Palmateer, 336 Or 379, 84 P3d 133, cert den, 543 US 866 (2004)...23 People v. Davidovich, 463 Mich 446, 618 NW2d 579 (2000)...18 People v. Ford, 86 NY2d 397, 657 NE2d 265 (1995)...18 People v. Huante, 143 ll 2d 61, 571 NE2d 736 (1991)...18 People v. Pozo, 746 P2d 523 (Colo 1987)...18 Perez v. State, 31 SW3d 365 (Tex App 2000)...18 Perez-Rodriguez v. State (S065022)... 20, 21 PGE v. Bureau of Labor and ndustries, 317 Or 606, 859 P2d 1143 (1993)...26 Rumpel v. State, 847 So 2d 399 (Ala Crim App 2002)...17 State ex rel Nixon v. Clark, 926 SW2d 22 (Mo Ct App 1996)...18 iv

91 State v. Alejo, 655 A2d 692 (R 1995)...18 State v. Arvanitis, 36 Ohio App 3d 213, 522 NE2d 1089 (1986)...18 State v. Christie, 655 A2d 836 (Del Super Ct), aff d, 655 A2d 306 (Del 1994)...18 State v. Chung, 210 NJ Super 427, 510 A2d 72 (App Div 1986)...18 State v. Dalman, 520 NW2d 860 (ND 1994)...18 State v. Evans, 258 Or 437, 483 P2d 1300 (1971)... 13, 27 State v. Fair, 263 Or 383, 502 P2d 1150 (1972)...28 State v. Gaines, 346 Or 160, 206 P3d 1042 (2009)...26 State v. Martinez-Lazo, 100 Wash App 869, 999 P2d 1275, rev den, 142 Wash 2d 1003 (2000)...18 State v. Montalban, 810 So 2d 1106 (La), cert denied, 537 US 887 (2002)...18 State v. Muriithi, 273 Kan 952, 46 P3d 1145 (2002)...18 State v. Paredez, 136 NM 533, 101 P3d 799 (2004)...18 State v. Ramirez, 636 NW2d 740 (owa 2001)...18 State v. Rojas-Martinez, 125 P3d 930 (Utah 2005)...18 State v. Rosas, 183 Ariz 421, 904 P2d 1245 (Ct App 1995)...17 State v. Santos, 136 Wisc 2d 528, 401 NW2d 856 (Ct App), rev den, 137 Wis 2d 652 (1987)...18 v

92 State v. Zarate, 264 Neb 690, 651 NW2d 215 (2002)...18 Strickland v. Washington, 466 US 668, 104 S Ct 2052, 80 L Ed 2d 674 (1984)...25 Tafoya v. State, 500 P2d 247 (Alaska 1972), cert denied, 410 US 945 (1973)...17 Teague v. Lane, 489 US 288, 109 S Ct 1060, 103 L Ed 2d 334 (1989)... 7, 21, 23, 31 Teague v. Palmateer, 184 Or App 577, 57 P3d 175 (2004)...28 United States v. Banda, 1 F3d 354 (5th Cir 1993)...17 United States v. DeFreitas, 865 F2d 80 (4th Cir 1989)...17 United States v. Del Rosario, 902 F2d 55 (DC Cir), cert denied, 498 US 942 (1990)...17 United States v. Fry, 322 F3d 1198 (9th Cir 2003)...17 United States v. George, 869 F2d 333 (7th Cir 1989)...17 United States v. Gonzalez, 202 F3d 20 (1st Cir 2000)...17 United States v. Santelises, 509 F2d 703 (2d Cir 1975)...17 Verduzco v. State of Oregon, 357 Or 553, 355 P3d 902 (2015)... passim Whorton v. Bockting, 549 US 406, 127 S Ct 1173, 167 L Ed 2d 1 (2007)...22 Williams v. State, 641 NE2d 44 (nd Ct App 1994)...18 vi

93 Statutes 28 USC 2244(d)(1)(C) USC 1227(a)(2)(B)(i)...5 Or Laws 1993, ch ORS , 11 ORS (3)... 3, 4, 5, 10, 11, 12 ORS (3)(a)...15 ORS (1)(a)...26 ORS (2)...15 ORS (3)...15 ORS (3)...11 ORS ORS , 11 US Const, Amend V...26 US Const, Amend V... 1, 6, 26 Other Authorities Jack G. Collins & Carl R. Neil, The Oregon Postconviction-Hearing Act, 39 Or L Rev 337 (1960)...27 Yolanda Vazquez, Advising Noncitizen Defendants on the mmigration Consequences of Criminal Convictions, 20 Berkeley La Raza LJ 31, & nn (2010)...18 Rules OAR (2)(b)...30 OAR (39)(c)...31 OAR (63)...31 OAR (71)(b)...31 vii

94 BREF ON THE MERTS OF RESPONDENT ON REVEW, STATE OF OREGON NTRODUCTON This case presents a slight variant on the issue that this court addressed in Verduzco v. State of Oregon, 357 Or 553, 355 P3d 902 (2015), a case not mentioned in petitioner s brief. The petitioner in Verduzco pleaded guilty to drug charges without having been advised by his attorney that a conviction would require the federal government to deport him. Years later, Verduzco filed a post-conviction petition based on the Supreme Court s ruling in Padilla v. Kentucky, 559 US 356, 130 S Ct 1473, 176 L Ed 2d 284 (2010), which held that the Sixth Amendment requires defense lawyers to advise their clients of the clear immigration consequences of a guilty plea. This court upheld dismissal of Verduzco s petition on procedural grounds, holding that, because he had raised the same issue in a previous post-conviction petition, the claim reasonably could have been raised before Padilla was decided. Here, petitioner pleaded guilty to selling cocaine in 1999 and received a sentence of probation. Twelve years later, and long after records-retention statutes should have required the destruction of the evidence of the underlying crime, he sought post-conviction relief. He alleged that although he had been told that a conviction could result in him being deported, his attorney had not advised him that he would be deported. He sought to justify his late petition by

95 2 asserting that he could not reasonably have raised his failure-to-advise claim before Padilla was decided. Unlike Verduzco, petitioner here had not in fact raised the claim in an earlier post-conviction petition, but the legal test whether the claim could not reasonably have been raised before Padilla was decided is the same. As it did in Verduzco, this court should reject the argument that a failureto-advise claim could not reasonably have been brought before Padilla was decided. Convicted criminal defendants, including Verduzco, had been raising those claims for decades. Although the Supreme Court had not addressed the issue before Padilla, as this court noted in Verduzco, a petitioner is not excused from raising his post-conviction claim in a timely petition merely because a point of law was unresolved. And petitioner s claim also fails for a second reason, because neither state nor federal law makes Padilla apply retroactively to convictions that were already final at the time of that decision. At its core, this case is about the finality of criminal convictions. The Post-Conviction Hearing Act strikes a balance between vindicating constitutional rights and putting an end to litigation about the validity of a conviction. The Act allows collateral attacks on convictions, but generally only if they are asserted promptly and based on procedural rules that had been announced before the conviction became final. n addition to ensuring finality for victims, those limits help protect the state s ability to prosecute the crime in

96 3 the event that a post-conviction petitioner is entitled to relief. The limits are especially important when, as here, the original criminal proceeding ended with a guilty plea rather than a trial, which means that there was no contemporaneous preservation of witness testimony and other evidence at the time of the original proceeding. Petitioner could have challenged his attorney s performance within two years of his conviction, but he did not do so. n those circumstances, the legislature has determined that the public s interest in finality outweighs his interest in rescinding the guilty plea. This court should affirm the dismissal of the post-conviction proceedings. QUESTONS PRESENTED AND PROPOSED RULES OF LAW First question presented: A petition for post-conviction relief must be filed within two years of when the conviction becomes final unless the grounds for relief could not reasonably have been raised in that period. ORS (3). When the ground for relief is ineffective assistance of counsel based on an alleged failure to advise about immigration consequences, could that ground reasonably have been raised before Padilla? First proposed rule of law: Yes. Convicted defendants could, and did, raise the same failure-to-advise claims in the decades before Padilla was decided. Although Padilla resolved a split among the lower courts about

97 4 whether those claims were cognizable, that fact alone does not bring a petition within ORS (3) s escape clause. Second question presented: The federal constitution does not require states to apply Padilla retroactively to convictions that became final before it was decided. Does the Post-Conviction Hearing Act nonetheless make Padilla retroactive as a matter of state law? Second proposed rule of law: No. Nothing in the Post-Conviction Hearing Act shows an intent to apply federal constitutional rules more broadly than the federal constitution requires. FACTUAL AND PROCEDURAL BACKGROUND Petitioner, who is from Mexico, became a lawful permanent resident of the United States in (ER 4; TCF 86). 1 Three years later, he was indicted on charges of delivery and possession of controlled substances. (ER 1; TCF 75). He ultimately admitted to having knowingly delivered cocaine for money and pleaded guilty to the class B felony of delivery of a controlled substance, in exchange for the district attorney s agreement to dismiss the other charge and recommend a sentence of jail and probation. (ER 1 2; TCF 77 78). 1 Cites to ER are to the excerpts of record attached to petitioner s opening brief in this court. Cites to TCF are to the electronic version of trial court file.

98 5 Under federal immigration law, a lawful permanent resident is deportable if he or she has been convicted of a controlled-substance violation, other than a single offense of possessing a small amount of marijuana. 8 USC 1227(a)(2)(B)(i). The plea petition that petitioner signed informed him that his conviction could have adverse immigration consequences: know that if am not a United States citizen, my plea may result in my deportation from the USA, or denial of naturalization, or exclusion from future admission to the United States. (ER 3; TCF 77). The criminal court accepted petitioner s guilty plea and the district attorney s sentencing recommendation. (ER 3). t convicted petitioner of one count of delivery of a controlled substance, dismissed the other count of the indictment, and imposed 36 months probation including a 30-day jail sentence. (TCF 80 84). The conviction was entered in September 1999, and petitioner did not appeal it. (ER 4). n 2011, more than 12 years after his conviction became final, petitioner sought post-conviction relief. (TCF 1). He alleged that his attorney did not ask him about his immigration status and did not advise him that he would be deported if he pleaded guilty. (ER 2). Petitioner acknowledged that he had filed the petition after the two-year limitation period in ORS (3), but he asserted that he could not reasonably have raised his ground for relief until the 2010 decision in Padilla. (ER 5). Padilla, resolving a longstanding split

99 6 among state and federal courts, held that a criminal defense attorney s failure to advise a client of clear deportation consequences of conviction constitutes deficient performance under the Sixth Amendment to the United States Constitution. 559 US at 369. The post-conviction court granted the state s motion to dismiss the petition. t held that that the petition was untimely and that Padilla did not extend the limitations period for filing for post-conviction relief. (ER 14 18). The Court of Appeals affirmed dismissal of the petition on different grounds. Chavez v. State of Oregon, 283 Or App 788, 391 P3d 801 (2017). t held that the rule announced in Padilla did not apply to petitioner s conviction, because that conviction had become final before the decision in Padilla. d. at 799. The court explained that Padilla was a new procedural rule for federal constitutional purposes and that neither the federal constitution nor the Post- Conviction Hearing Act required the state to apply that rule retroactively to cases like petitioner s. d. at SUMMARY OF ARGUMENT The post-conviction court correctly denied the petition for postconviction relief as procedurally barred. A post-conviction petition must be filed within two years after the conviction became final unless the grounds for relief could not reasonably have been raised within that two-year period. This court should construe that escape clause to the statute of limitations the same

100 7 way it construed the identically worded escape clause to the ban on successive post-conviction petitions in Verduzco: the question is not whether a particular legal question was already settled before the two-year deadline expired, but whether it reasonably could have been anticipated so that it could be raised and settled at that time. Under that standard, the petition here was untimely because the grounds for relief petitioner seeks to raise inadequate assistance of counsel based on failure to advise petitioner about the immigration consequences of his guilty plea could reasonably have been raised within two years after petitioner s conviction became final. Although Padilla itself was not decided until 2010, the issue could have been anticipated. ndeed, convicted defendants, including the petitioner in Verduzco, had been raising the same kind of failure-to-advise claims for decades. Thus, it would not have been unreasonable for someone in petitioner s circumstances to raise a Padilla-type claim in a timely petition. And even if the petition were timely, the petition still was properly dismissed because, as the Court of Appeals held, the rule announced in Padilla does not apply to the conviction at issue here. Under the United States Supreme Court s retroactivity analysis from Teague v. Lane, 489 US 288, 109 S Ct 1060, 103 L Ed 2d 334 (1989), Padilla does not apply retroactively to invalidate convictions like petitioner s that were already final before Padilla was decided. Although the federal constitution does not prevent the state from applying

101 8 Padilla retroactively as a matter of state law, nothing in the Post-Conviction Hearing Act shows an intent to apply federal constitutional rules more broadly than the constitution requires. Granting relief to petitioner and others like him would undermine the finality of criminal convictions, potentially decades after the case is concluded. Although petitioner s situation is sympathetic because of the harshness of federal immigration law, bending state post-conviction law to alleviate the harshness in one particular case is likely to inflict lasting damage on the criminal-justice system as a whole. Enough time has passed that this case likely would be unprosecutable if petitioner were allowed to withdraw his guilty plea. Thus, assuming petitioner ultimately showed that his counsel performed inadequately, he would end up better off than if he had received adequate assistance of counsel in the first place or if he had sought post-conviction relief in a timely petition. And even if there seemed to be a rough justice in allowing petitioner to wipe his record clean of a decades-old drug conviction, the same legal principle could allow individuals who pleaded guilty to much more serious crimes to walk free merely because they delayed challenging their counsel s performance. The Post-Conviction Hearing Act allows those individuals to challenge their counsel s performance, but they must invoke that remedy within two years or forever be barred from doing so. The limitations period strikes a balance that

102 may leave petitioner without a remedy here but protects the integrity of the justice system overall. 9 ARGUMENT Petitioner would be eligible to seek post-conviction relief based on the rule established in Padilla only if both (1) his petition were procedurally proper under the Post-Conviction Hearing Act, and (2) the rule established in Padilla applied to his conviction. See Verduzco, 357 Or at 561 (recognizing that those are independent hurdles). Neither requirement is met. Thus, the postconviction court correctly dismissed the petition as procedurally barred, and the Court of Appeals correctly affirmed the dismissal on the ground that Padilla does not apply to his conviction. A. The petition was procedurally barred because the grounds for relief reasonably could have been raised in a timely filing before Padilla was decided. ORS provides that petitions for post-conviction relief must be filed within two years of the date that the underlying criminal case became final unless the grounds for relief asserted * * * could not reasonably have been raised within that two-year period: (3) A petition pursuant to ORS to must be filed within two years of the following, unless the court on hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the original or amended petition: (a) f no appeal is taken, the date the judgment or order on the conviction was entered in the register.

103 (b) f an appeal is taken, the date the appeal is final in the Oregon appellate courts. (c) f a petition for certiorari to the United States Supreme Court is filed, the later of: 10 (A) The date of denial of certiorari, if the petition is denied; or (B) The date of entry of a final state court judgment following remand from the United States Supreme Court. ORS (3) (emphasis added). The language italicized above is commonly called the escape clause. A petitioner who files a late petition has the burden of alleging and ultimately showing that the petition falls within the escape clause that is, that the grounds for relief asserted in the petition could not reasonably have been raised in a timely action. Eklof v. Steward, 360 Or 717, 727, 385 P3d 1074 (2016). When, as here, the question is whether a subsequent development in the law was reasonably available at an earlier time, the issue is purely legal. d. at 733. As explained below, the escape clause does not apply to a subsequent development in the law unless that development could not reasonably have been anticipated so that the issue could be raised and settled in a timely petition. The issue decided in Padilla could reasonably have been anticipated within two years of petitioner s conviction. Petitioner s claim therefore does not fall within the escape clause.

104 11 1. ORS (3) s escape clause applies to a legal question that was previously unsettled only if the question could not reasonably have been anticipated within two years of the conviction. This court recently construed an identically worded provision of the Post- Conviction Hearing Act in Verduzco. That case involved the escape clause to ORS (3), which bars a successive post-conviction petition unless the grounds for relief could not reasonably have been raised in the original or amended petition : All grounds for relief claimed by petitioner in a petition pursuant to ORS go 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 (3) (emphasis added). This court in Verduzco explained that that escape clause does not allow a successive petition merely because a new decision has announced a rule of law that did not exist at the time of the first petition. 357 Or at 571. Rather, the question is whether the petitioner reasonably could have anticipated the legal question that was addressed in the later decision at the time of the first petition. d. This court adopted the standard that the Court of Appeals had laid out in Long v. Armenakis, 166 Or App 94, 999 P2d 461 (2000): The touchstone is not whether a particular question is settled, 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

105 12 more likely the claim reasonably should have been anticipated and raised. Conversely, if the constitutional principle is a new one, or if its extension to a particular statute, circumstance, or setting is novel, unprecedented, or surprising, then the more likely the conclusion that the claim reasonably could not have been raised. 357 Or at 571 (quoting Long, 166 Or App at 97) (emphasis in original). Although Verduzco suggested that the escape clause at issue there might not mean the same thing as the one at issue here, see id. at , there is no basis for interpreting them differently. As a textual matter, the two escape clauses are worded identically (other than a missing therein in ORS (3)). The identical wording is deliberate: As this court noted, the legislature borrowed the escape clause from the bar against successive petitions and inserted it, without modification, in the bar against untimely petitions and it did so even though, [r]ead literally, it does not fit easily with the prohibition against untimely petitions because it seems to require a timely original petition as a prerequisite to the filing of an untimely petition. Verduzco, 357 Or at 564 n 9. The use of identical language even though it is not the most natural wording suggests that the legislature intended to link the meaning of the two escape clauses. Context and legislative history also support interpreting the two escape clauses identically. The Long analysis that this court adopted in Verduzco as the standard for a successive petition was itself about the statute of limitation s escape clause. See id. at 571 n 17. And this court s previous interpretation of

106 13 the escape clause in Bartz v. State, 314 Or 353, 839 P2d 217 (1992), which examined the legislative history of its 1989 enactment, points in the same direction. The court stated that the escape clause is meant to be construed narrowly. d. at 359. The legislature amended the statute of limitations in 1993 after Bartz to extend it to two years, see Or Laws 1993, ch 517, 1, but there is no indication that the 1993 legislature intended to abrogate Bartz or change the substantive standard for the escape clause. Thus, the interpretation of the successive-petition escape clause in Verduzco should apply equally to the statute-of-limitations escape clause. That means that a petition filed more than two years after the conviction became final that seeks relief based on an intervening judicial decision is untimely unless the issue raised by the intervening decision could not reasonably have been anticipated within the two-year period. That is a demanding standard, and it requires more than a showing that the law was unsettled or that there was contrary intermediate-court precedent at the time. Verduzco identified just one case in which the standard was met: Haynes v. Cupp, 253 Or 566, 456 P2d 490 (1969), overruled by State v. Evans, 258 Or 437, 442, 483 P2d 1300 (1971). See Verduzco, 357 Or at As the court noted in Verduzco, Haynes has limited precedential value because it involved an unusually complicated mix of substantive and procedural rules relating to the right to silence during custodial interrogation that took place

107 14 shortly before the decision in Escobedo v. llinois, 378 US 478, 84 S Ct 1758, 12 L Ed 2d 977 (1964), the predecessor to the modern Miranda doctrine. Verduzco, 357 Or at Outside the Miranda context, this court has never concluded that a legal argument could not reasonably have been anticipated. The escape clause would apply to truly revolutionary changes in the law. For example, if the United States Supreme Court were to overrule four decades of settled precedent and hold the death penalty unconstitutional, the escape clause would allow death-row inmates to file new post-conviction petitions raising that new ground for relief, because that ground could not reasonably be asserted under current law. But the escape clause generally would not apply to incremental advances in the law or rulings by the Court that resolve lower-court splits, because those issues usually could have been anticipated and raised in a timely petition even if the claims appeared unlikely to succeed under current intermediate-court precedent. The escape clause s limited scope requires convicted defendants to present all potential claims promptly and at once, so that those claims can be litigated and resolved definitively at the earliest possible time. t means that there will be cases where convicted defendants reasonably forgo timely postconviction petitions because the existing case law is not in their favor at the time, a new decision that is more favorable comes down from a higher court, and the defendants are not allowed to take advantage of that new decision in a

108 late petition. But that is the balance that the Post-Conviction Hearing Act strikes between the public s interest in finality and convicted defendants 15 interest in vindicating their rights: t allows them to challenge their conviction collaterally, but only within two years unless the claim could not reasonably have been raised within that period. That time limit promotes the development of the law, protects the interests of victims and society as a whole in the finality of convictions, and preserves the state s ability to reprosecute a case when the petitioner ultimately obtains relief. And for truly extraordinary cases, the Post- Conviction Act leaves in place other avenues for relief such as executive clemency and original habeas proceedings in this court that are not subject to the strict time limit. See ORS (2), (3). 2. Petitioner reasonably could have anticipated the question ultimately resolved in Padilla within two years of his conviction. Under that standard, the petition in this case was procedurally barred. Petitioner s conviction was entered in 1999, and he did not appeal. (ER 4). The two-year time limit for filing a post-conviction petition therefore expired in See ORS (3)(a). Petitioner, who filed this petition ten years later in 2011, relies entirely on the fact that Padilla was not decided until (Opening Br 9). But criminal defendants could and did raise claims of inadequate assistance of counsel based on failure to give advice about the immigration consequences of their pleas long before Padilla was decided.

109 Thus, petitioner has not shown that his claim could not reasonably have been raised in The facts underlying the decision in Verduzco show that a claim based on the principles from Padilla reasonably could have been anticipated before that case was decided. Verduzco had filed a petition for post-conviction relief in 2006 raising essentially the same issue that petitioner seeks to raise here: 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 immigration law and that, if [he] came to the attention of the mmigration authorities at any time, * * * it was certain he would be deported as it is required by the mmigration and Nationality Act that aggravated felons be deported. 357 Or at 557 (alterations in original). Verduzco therefore is a case in which a criminal defendant in fact anticipated the issue resolved in Padilla more than four years before the case was decided. And relying in part on that fact, this court held that Verduzco s claim reasonably could have been raised before Padilla was decided. d. at 573. The only notable difference between Verduzco and this case is that Verduzco actually raised his failure-to-advise claim before Padilla was decided and petitioner here did not. But that should not lead to different outcomes. The reports of appellate decisions alone are replete with examples of litigants who, long before 2010, anticipated the ruling in Padilla and raised claims based on

110 17 counsel s failure to advise them of the immigration consequences of their guilty pleas. n Oregon, appellate decisions show that those claims were brought as far back as the 1980s. See, e.g., Gonzalez v. State, 340 Or 452, 455 n 2, 134 P3d 955 (2006) ( petitioner alleged that his trial counsel had failed to provide adequate assistance in violation of the state and federal constitutions because he had failed to advise petitioner that the NS would deport him if he pleaded guilty ); Lyons v. Pearce, 298 Or 554, 564, 694 P2d 969 (1985) (petitioner argued that counsel should have advised petitioner that if he pleaded guilty he could be subject to deportation ); Benitez-Chacon v. State of Oregon, 178 Or App 352, 357, 37 P3d 1035 (2001), rev den, 334 Or 76 (2002) ( Petitioner s complaint here is that her attorney failed to adequately inform her of the likely effects of the immigration laws in effect at the time of her conviction. ). Cases from other jurisdictions confirm that these claims were frequently brought in the decades before Padilla was decided. 2 2 See, e.g., Broomes v. Ashcroft, 358 F3d 1251 (10th Cir), cert denied, 543 US 1034 (2004); United States v. Fry, 322 F3d 1198 (9th Cir 2003); United States v. Gonzalez, 202 F3d 20 (1st Cir 2000); United States v. Banda, 1 F3d 354 (5th Cir 1993); United States v. Del Rosario, 902 F2d 55 (DC Cir), cert denied, 498 US 942 (1990); United States v. George, 869 F2d 333 (7th Cir 1989); United States v. DeFreitas, 865 F2d 80 (4th Cir 1989); United States v. Santelises, 509 F2d 703 (2d Cir 1975) (per curiam); Rumpel v. State, 847 So 2d 399 (Ala Crim App 2002); Tafoya v. State, 500 P2d 247 (Alaska 1972), cert denied, 410 US 945 (1973); State v. Rosas, 183 Ariz 421, 904 P2d 1245 (Ct App 1995); n re Resendiz, 25 Cal 4th 230, 19 P3d 1171 (2001); People v. Pozo, 746 P2d 523 (Colo 1987); Niver v. Commissioner of Corr., 101 Conn Footnote continued

111 18 To be sure, the vast majority of these claims failed. But see, e.g., Pozo, 746 P2d at 529; Paredez, 101 P3d at 804. The point, however, is that litigants were routinely raising and litigating the issue in the years before Padilla was decided. The sheer number of cases addressing the issue is powerful evidence that it could reasonably have been raised during that period. Of course, had ( continued) App 1, 919 A2d 1073 (2007) (per curiam); State v. Christie, 655 A2d 836 (Del Super Ct), aff d, 655 A2d 306 (Del 1994); People v. Huante, 143 ll 2d 61, 571 NE2d 736 (1991); Williams v. State, 641 NE2d 44 (nd Ct App 1994); State v. Ramirez, 636 NW2d 740 (owa 2001); State v. Muriithi, 273 Kan 952, 46 P3d 1145 (2002); Commonwealth v. Fuartado, 170 SW3d 384 (Ky 2005); State v. Montalban, 810 So 2d 1106 (La), cert denied, 537 US 887 (2002); Commonwealth v. Fraire, 55 Mass App Ct 916, 774 NE2d 677 (2002); People v. Davidovich, 463 Mich 446, 618 NW2d 579 (2000) (per curiam); Alanis v. State, 583 NW2d 573 (Minn 1998); State ex rel Nixon v. Clark, 926 SW2d 22 (Mo Ct App 1996); State v. Zarate, 264 Neb 690, 651 NW2d 215 (2002); Barajas v. State, 115 Nev 440, 991 P2d 474 (1999) (per curiam); State v. Chung, 210 NJ Super 427, 510 A2d 72 (App Div 1986); State v. Paredez, 136 NM 533, 101 P3d 799 (2004); People v. Ford, 86 NY2d 397, 657 NE2d 265 (1995); State v. Dalman, 520 NW2d 860 (ND 1994); State v. Arvanitis, 36 Ohio App 3d 213, 522 NE2d 1089 (1986); Commonwealth v. Frometa, 520 Pa 552, 555 A2d 92 (1989); State v. Alejo, 655 A2d 692 (R 1995); Nikolaev v. Weber, 705 NW2d 72 (SD 2005); Bautista v. State, 160 SW3d 917 (Tenn Crim App 2004); Perez v. State, 31 SW3d 365 (Tex App 2000); State v. Rojas-Martinez, 125 P3d 930 (Utah 2005); State v. Martinez-Lazo, 100 Wash App 869, 999 P2d 1275, rev den, 142 Wash 2d 1003 (2000); State v. Santos, 136 Wisc 2d 528, 401 NW2d 856 (Ct App), rev den, 137 Wis 2d 652 (1987). See generally Yolanda Vazquez, Advising Noncitizen Defendants on the mmigration Consequences of Criminal Convictions, 20 Berkeley La Raza LJ 31, & nn (2010) (citing conflicting state and federal decisions on what advice, if any, defense counsel must provide regarding the immigration consequences of a conviction). A Westlaw search for pre-2010 state or federal decisions with the phrases ineffective assistance of counsel, guilty plea, and deportation in the same paragraph yields nearly 500 results.

112 19 petitioner raised the claim in 2001, he might not have prevailed in the Court of Appeals or even in this court. But as this court explained in Verduzco, [t]he 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. Like hundreds of similarly situated convicted defendants, a defendant in petitioner s position would have had a reasonable opportunity to litigate the issue all the way to the United States Supreme Court, despite the fact that Padilla had not yet been decided. Petitioner does not dispute the foregoing principles. nstead, his main argument is that it would have been unreasonable to raise the claim before Padilla was decided because Padilla is considered a new rule of federal constitutional law for retroactivity purposes. (Opening Br 20-21). But he confuses two different legal standards. A rule is new for purposes of retroactivity if it was not dictated by precedent. Chaidez v. United States, 568 US 342, 347, 133 S Ct 1103, 185 L Ed 2d 149 (2013) (emphasis in original). By contrast, the escape clause does not apply if the issue could reasonably have been anticipated and raised, even if the rule of law was not settled at the time. Verduzco, 357 Or at 571. A case thus can announce a new rule on an issue that was previously unsettled but nonetheless could have been anticipated. See id. at 573 ( The escape clause does not preclude petitioner from relitigating only those grounds for relief that he was certain he could win

113 when he filed his first post-conviction petition. ). A new rule of federal 20 constitutional law (if it applies retroactively) extends the time for an inmate to seek federal habeas relief, see 28 USC 2244(d)(1)(C), but it does not automatically extend the time for seeking state post-conviction relief. As in Padilla, Verduzco, and many other cases, the claim here that trial counsel failed to advise petitioner of the deportation consequences of pleading guilty could reasonably have been raised before Petitioner s failure to do so within two years of his conviction bars his petition, and the post-conviction court therefore correctly dismissed it as untimely. 3. Petitioner has not advanced any other justification for the delay. Other than the fact that Padilla had not yet been decided, petitioner does not advance any argument about why a claim about inadequate advice could not reasonably have been raised in He disavows the argument, currently before this court in Perez-Rodriguez v. State (S065022) and Gutale v. State (S065136), that the escape clause applies because he did not discover that he was subject to deportation until after (Opening Br 23 24: The petition for post-conviction relief herein is not based upon some discovery by petitioner that he was subject to deportation. t is based on Padilla s announcement of a new constitutional rule * * *. ).

114 21 Thus, petitioner s lengthy discussion about the issue addressed in the Court of Appeals Benitez-Chacon decision whether the escape clause could be satisfied by a petitioner s discovery that he or she is subject to deportation is not relevant to any of the arguments he makes here. (Opening Br 24 28). n any event, for the reasons the state explains in its briefs in Perez-Rodriguez and Gutale, assertions about what petitioner personally knew or understood about immigration law do not satisfy the escape clause. B. Padilla does not apply retroactively to petitioner s conviction. f this court concludes that petitioner s claim qualifies for the statutory escape clauses, petitioner must also establish that the rule announced in Padilla applies retroactively in assessing the constitutional adequacy of his counsel s performance eleven years before Padilla was decided. See Verduzco, 357 Or at 561. But Padilla s rule is not retroactive as a matter of federal constitutional law, and nothing in the Post-Conviction Hearing Act makes it retroactive as a matter of state law. 1. The federal constitution does not require the state to apply Padilla retroactively, because Padilla announced a new procedural rule that does not implicate the accuracy of criminal proceedings. The framework governing the retroactivity of new rules of federal constitutional law is set forth in the plurality opinion in Teague v. Lane, 489 US 288, 109 S Ct 1060, 103 L Ed 2d 334 (1989). Under that framework, new substantive rules rules making it unconstitutional to punish particular conduct

115 22 or to impose a particular penalty for class of defendants are retroactive, meaning that they apply to all criminal defendants no matter when their convictions became final. Montgomery v. Louisiana, 577 US, 136 S Ct 718, 728, 193 L Ed 2d 599 (2016). By contrast, new procedural rules are almost always nonretroactive. d. They apply to defendants whose convictions were final when the new rule was announced only if they are watershed rules rules of such fundamental importance to the criminal-justice system that they are necessary to prevent an impermissibly large risk of an inaccurate conviction. Whorton v. Bockting, 549 US 406, 418, 127 S Ct 1173, 167 L Ed 2d 1 (2007) (quotation marks omitted). The only watershed procedural rule that has ever been identified is the right to appointed counsel for indigent defendants established by Gideon v. Wainwright, 372 US 335, 83 S Ct 792, 9 L Ed 2d 799 (1963). See Whorton, 549 US at For new substantive rules, which are retroactive, the federal constitution requires the state to apply the rules in any procedurally proper state-court proceedings, including timely post-conviction proceedings. See Montgomery, 136 S Ct at ( Where state collateral review proceedings permit prisoners to challenge the lawfulness of their confinement, States cannot refuse to give retroactive effect to a substantive constitutional right that determines the outcome of that challenge. ).

116 23 But for procedural rules, at least the non-watershed ones, the federal constitution does not require the state to apply the rules in post-conviction proceedings. See Danforth v. Minnesota, 552 US 264, 268, 128 S Ct 1029, 169 L Ed 2d 859 (2008). The constitution also does not forbid a state from providing greater redress than is constitutionally required, and thus it does not forbid state courts from applying new procedural rules retroactively. d. at 282. But whether to do so is a matter of state law, not federal constitutional law. See id. at 288 ( [T]he remedy a state court chooses to provide its citizens for violations of the Federal Constitution is primarily a question of state law. ). 3 Under that framework, the federal constitution does not require the state to apply Padilla retroactively to defendants whose convictions became final before n Chaidez, the Supreme Court held that Padilla announced a new rule for purposes of the retroactivity analysis, and that defendants whose convictions became final prior to Padilla therefore cannot benefit from its holding. 568 US at 358. Petitioner does not contend that the rule announced in Padilla was substantive or a watershed procedural rule. Thus, petitioner does not dispute that, under Teague, the Padilla decision does not apply retroactively to cases that were final before it was decided. 3 Danforth thus implicitly overruled this court s contrary conclusion in Page v. Palmateer, 336 Or 379, 385, 84 P3d 133, cert den, 543 US 866 (2004).

117 24 Petitioner s conviction became final in 1999, more than a decade before Padilla. (ER 4). State convictions are final for purposes of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied. Beard v. Banks, 542 US 406, 411, 124 S Ct 2504, 159 L Ed 2d 494 (2004) (quotation marks omitted). Thus, the federal constitution does not require the state to give petitioner relief based on Padilla. 2. The Post-Conviction Hearing Act does not give greater retroactivity to federal constitutional rulings than the federal constitution requires. Petitioner does not dispute any of the arguments above about why the federal constitution does not require the state to afford him post-conviction relief. Nor does he argue that this court can or should develop a separate federal retroactivity framework for the state courts as a matter of inherent authority. See Chavez, 283 Or App at 795. Rather, he contends only that the Post-Conviction Hearing Act already makes all new rules of federal constitutional law retroactive in state post-conviction proceedings. (Opening Br 31 33). That is so, he contends, because the Act was first enacted before the modern retroactivity framework had been developed, and thus he argues that the Act does not allow any examination of retroactivity. (d.)

118 25 That reasoning is flawed because it analyzes the question at the wrong level of generality. The Post-Conviction Hearing Act provided a procedural vehicle to vindicate federal constitutional rights regardless of how those rights were developed by the courts in the future. t is true that in 1959, when the Act was enacted, the United States Supreme Court had not yet held that new procedural rules were nonretroactive. But that is true of many other principles of federal constitutional law that are routinely applied in post-conviction proceedings. For example, not until 1964 did the Court begin to develop the rules governing custodial interrogation, such as what we today call Miranda warnings. See Escobedo, 378 US 478; Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966). And yet it is uncontroversial that those rules can be applied in post-conviction proceedings. See, e.g., Haynes, 253 Or 566. Similarly, the Court did not announce the current standard for ineffectiveassistance-of-counsel claims until 1984, see Strickland v. Washington, 466 US 668, 104 S Ct 2052, 80 L Ed 2d 674 (1984), but there is no dispute that it is proper for post-conviction courts to hear those claims. Thus, petitioner frames the wrong question when he asks whether the legislature intended in 1959 to impose a limitation on post-conviction relief based on a jurisprudence concerning the retroactivity of new principles of constitutional law that had not yet come into existence. (Opening Br 32). The legislature likely had no intention one way or the other on the federal

119 26 retroactivity issue, just like it had no intention with respect to the substantive meaning of the Fifth or Sixth Amendments. That does not mean that it intended to freeze the law on retroactivity at whatever it was in 1959; it just means that the legislature did not intend to resolve the issue in the Post-Conviction Hearing Act. The right question to ask here is whether the Post-Conviction Hearing Act shows any intent to afford remedies for federal constitutional rights beyond the remedies that the federal constitution itself requires. That is a question of statutory interpretation, and so it should be answered by considering the Act s text, context, and legislative history. State v. Gaines, 346 Or 160, , 206 P3d 1042 (2009); PGE v. Bureau of Labor and ndustries, 317 Or 606, , 859 P2d 1143 (1993). And under that framework, petitioner points to nothing in the text or context of the Post-Conviction Hearing Act suggesting that the legislature intended to afforded broader protection of federal constitutional rights that the constitution requires. f anything, the text points in the opposite direction. t allows for post-conviction relief when the 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) (emphasis added). The

120 27 italicized language reflects that not every constitutional violation should result in post-conviction relief, only certain kinds of constitutional violations. See Jack G. Collins & Carl R. Neil, The Oregon Postconviction-Hearing Act, 39 Or L Rev 337, 345 (1960). And as explained above, the federal constitution does not itself make the denial here one that requires post-conviction relief. Precedent from soon after enactment of the Post-Conviction Hearing Act confirms that it does not require retroactive application of new procedural rules beyond what the federal constitution demands. n several post-conviction cases decided after Escobedo and Miranda, for example, this court declined to apply the new federal constitutional rule retroactively. Elliot v. Gladden, 244 Or 134, 411 P2d 287 (1966), overruled on other grounds by Evans, 258 Or 437; Church v. Gladden, 244 Or 308, 313, 417 P2d 993 (1966); North v. Cupp, 254 Or 451, 462, 461 P2d 271 (1969). 4 Rather, the court ultimately adopted the retroactivity rule set by the Court, noting that it would add[] nothing to consistent and orderly judicial process to follow a stricter rule in state court. Evans, 258 Or at 442. Similarly, the court declined to apply retroactively a new federal rule on the due process required in juvenile-delinquency proceedings. Bouge v. Reed, 4 See also McDonald v. Cupp, 254 Or 107, 110, 458 P2d 427 (1969); Otten v. Gladden, 244 Or 327, , 417 P2d 1017 (1966); Lugo v. Gladden, 244 Or 7, 9, 414 P2d 324 (1966); Avent v. Gladden, 243 Or 594, 595, 415 P2d 164 (1966).

121 Or 418, 421, 459 P2d 869 (1969). As the court explained in State v. Fair, although it was not bound by the United States Supreme Court s retroactivity holdings, it tended to restrict the retroactive application of newly-announced rights, giving them only the application which the Supreme Court has adopted as a minimum. 263 Or 383, 388, 502 P2d 1150 (1972). Thus, for decades the accepted understanding of the Post-Conviction Hearing Act has been that it requires retroactive application of new federal constitutional rules only to the extent the federal constitution so demands. See Teague v. Palmateer, 184 Or App 577, 587, 57 P3d 175 (2004) (en banc) ( t would be a perversion of the comity principles reflected in state post-conviction procedures, not a service to them, to adopt rules of retroactivity for new federal pronouncements that are broader than those adopted by federal courts, therefore according less respect to the finality of state court judgments than the federal courts themselves require. ) (emphasis in original). Petitioner cites nothing in the Act s legislative history that could overcome this decades-long accepted understanding of retroactivity in post-conviction proceedings. n sum, neither the federal constitution nor the Post-Conviction Hearing Act requires the state to apply Padilla to petitioner s case, and petitioner has offered no other argument for doing so. Thus, the Court of Appeals correctly affirmed dismissal of the petition on the basis that Padilla does not apply.

122 29 C. Granting relief here would give too little weight to the state s interest in the finality of criminal convictions. Cases like this one are difficult not necessarily because the legal analysis is complicated, but rather because the consequences appear harsh. The harshness stems from federal immigration law, which makes an otherwise lawabiding resident deportable for a single drug conviction from long in the past. See Padilla, 559 US at But allowing federal immigration consequences to distort state postconviction law would impose unacceptably high costs on the criminal-justice system as a whole. The vast majority of post-conviction claims are like petitioner s based on inadequate assistance of counsel. Because these claims are ultimately based at least in part on private discussions between counsel and the client, they turn on information that neither the prosecutor nor the trial judge would typically be aware of at the time of the original prosecution. There generally is nothing that the prosecutor or the judge can do to prevent inadequate assistance of counsel, particularly when it is based on failure to give good advice about the strategic choices a client should make. See Moen v. Peterson, 312 Or 503, 512, 824 P2d 404 (1991) ( The government is not responsible for, and hence not able to prevent, attorney errors that will result in reversal of a conviction or sentence. ) (quoting Hill v. Lockhart, 474 US 52, 57 58, 106 S Ct 366, 88 L Ed 2d 203 (1985)).

123 30 And the consequences can have a serious impact on the criminal-justice system. When post-conviction relief is granted based on inadequate assistance of counsel, there is always a risk that the state will be unable to obtain a new conviction not because the defendant should have been acquitted the first time, but merely because the passage of time has made prosecution impractical. That risk grows over time: The longer it has been since the first prosecution, the more likely it is that evidence has been lost or destroyed, that witnesses cannot be found, or that memories have faded. See Henderson v. Kibbe, 431 US 145, 154 n 13, 97 S Ct 1730, 52 L Ed 2d 203 (1977) ( [A] collateral attack may be made many years after the conviction when it may be impossible, as a practical matter, to conduct a retrial. ); n re Sanders, 21 Cal 4th 697, 981 P2d 1038, 1042 (1999) ( Requiring a prisoner to file his or her challenge promptly helps ensure that possibly vital evidence will not be lost through the passage of time or the fading of memories. ). This case provides a typical example. t appears that petitioner should have completed his three-year term of probation more than 15 years ago, in 2002, at which point his criminal sentence would have been fully served. (TCF 80 84). Under the state s public-records retention policies, the most important evidence investigative reports, laboratory reports, warrants, and evidence from the original prosecution all should have been destroyed by 2005 at the latest. See, e.g., OAR (2)(b) (district attorney records retention

124 31 for felonies, with a judgment of guilty: 3 years after sentence expires ); OAR (39)(c) (law enforcement records retention for incident case files, including laboratory reports, officer notes, and warrants: until statute of limitations expires ); OAR (63) (law enforcement records retention for officer notes: 2 years); OAR (71)(b) (law enforcement records retention for property and evidence control: 1 year after statute of limitations expires ). The state s interest in finality is especially strong when as is always the case with Padilla claims the original prosecution resulted in a guilty plea. There is no reason to doubt that petitioner was in fact guilty of selling cocaine for money. Cf. Moen, 312 Or at 513 ( [T]he concern that unfair procedures may have resulted in the conviction of an innocent defendant is only rarely raised by a petition to set aside a guilty plea. ) (quoting Hill, 474 US at 58). But because of the plea, there likely was no trial transcript that could be used in the event the witnesses had died or were unavailable. See ORS (allowing this procedure). The lack of any contemporaneous preservation of witness testimony makes it particularly hard to reprosecute a case if the plea is withdrawn years later. Finality is also important for other reasons. Without finality, the criminal law is deprived of much of its deterrent effect. Teague, 489 US at 309 (plurality op). And when the crime involves a victim, one cannot

125 32 overestimate the value of the psychological repose that may come for the victim, or the surviving family and friends of the victim, generated by the knowledge the ordeal is finally over. n re Sanders, 981 P2d at One reason prosecutors offer favorable plea deals to criminal defendants is to spare the victims and other witnesses the burden of having to testify; if the plea deal likely could be undone down the road based on advice of counsel that the prosecutor is neither privy to nor able to correct prosecutors would be more reluctant to offer them in the first place. The Post-Conviction Hearing Act carefully balances the interest in finality against the interest in vindicating a criminal defendant s constitutional rights. t opens the door to collateral challenges that have the potential to undo final convictions and require the state to reprosecute crimes. But it imposes limits that circumscribe the impact that those challenges pose to the justice system. The two-year statute of limitations is one such limit, because it ensures that almost all post-conviction challenges will be raised within a time when the underlying case is still relatively recent and relevant evidence still can be preserved. The nonretroactivity of procedural rules that do not undermine our confidence in a defendant s guilt is another, because it protects the state s ability to preserve just convictions that were obtained in compliance with the law at the time of the original proceeding, and that might not be reprosecutable long after the conviction became final. Principles like statutes of limitations

126 33 and rules against retroactivity mean that there may be constitutional violations in criminal trials that cannot be remedied, other than through executive clemency or habeas proceedings in this court or the federal courts, because they were not raised on time. But eliminating those principles would impose even greater societal costs, by undermining the state s ability to impose appropriate consequences for criminal conduct. f petitioner ultimately were to obtain post-conviction relief here, he would end up better off than he would have been if he had received adequate assistance of counsel in the first place, or if he had filed a timely postconviction petition. f he had received adequate advice and rejected the plea deal, he would have risked being convicted at a trial anyway, with the same immigration consequences. f he had timely challenged his attorney s advice and prevailed, he again likely would have faced reprosecution and the same immigration consequences. And had he timely challenged his attorney s advice and lost, Verduzco would have barred him from litigating the issue again post- Padilla. Only by waiting more than a decade and then obtaining postconviction relief would he achieve a favorable result for purposes of his immigration case. And of course the state s real concern here is less with petitioner s case in particular than with its implications for other cases, which may be more serious than delivery of a controlled substance. f petitioner were eligible for

127 34 post-conviction relief, so too likely would be many other convicted defendants who years ago pleaded guilty to much more serious crimes and now claim not to have known that the crime would make them deportable. f those cases were no longer reprosecutable, dangerous offenders might walk free. And even litigating the merits of the post-conviction cases all these years later could prove impossible for the state. The state generally would not already have evidence about what advice defense attorneys did or did not give their clients. f the attorneys were now dead or could not remember what advice they gave in a particular case, the state might have no way to counter a petitioner s allegations of inadequate assistance of counsel. Here too, the more time has passed since a conviction became final, the greater the risk. f petitioner s allegations are true, the situation that he and his family face is sympathetic. But it is not a situation for which the legislature has authorized post-conviction relief.

128 petition. 35 CONCLUSON This court should affirm the judgment dismissing the post-conviction Respectfully submitted, ELLEN F. ROSENBLUM Attorney General /s/ Benjamin Gutman BENJAMN GUTMAN # Solicitor General Attorneys for Respondent on Review State of Oregon

129 NOTCE OF FLNG AND PROOF OF SERVCE certify that on February 1, 2018, directed the original Brief on the Merits of Respondent on Review, State of Oregon, to be electronically filed with the Appellate Court Administrator, Appellate Records Section, and electronically served upon Steven E. Benson, attorney for petitioner on review, by using the court's electronic filing system. CERTFCATE OF COMPLANCE WTH ORAP 5.05(1)(d) certify that (1) this brief complies with the word-count limitation in ORAP 5.05(1)(b) and (2) the word-count of this brief (as described in ORAP 5.05(1)(a)) is 8,448 words. further certify that the size of the type in this brief is not smaller than 14 point for both the text of the brief and footnotes as required by ORAP 5.05(3)(b). /s/ Benjamin Gutman BENJAMN GUTMAN # Solicitor General Attorney for Respondent on Review State of Oregon BG2:mb8/

130 May 24, :36 PM N THE SUPREME COURT OF THE STATE OF OREGON ESTEBAN CHAVEZ, Petitioner-Appellant V. STATE OF OREGON Defendant-Respondent Multnomah County Circuit Court A S AMENDED PETTON FOR REVEW OF ESTEBAN CHAVEZ Petition for Review of the Decision of the Court of Appeals on Appeal from a General Judgment of the Circuit Court for Multnomah County Honorable Cheryl Albrecht, Judge Opinion Filed: February 23, 2017 Author of Opinion: Rebecca A. Duncan, Judge Concurring Judges: Darleen Ortega, Presiding Judge, Joel Devore, Judge Petitioner on Review ntends to File a Brief on the Merits STEVEN E. BENSON, # PO Box Portland, OR Telephone: ELLEN F. ROSENBLUM # Attorney General ANNA M. JOYCE # Solicitor General

131 Attorney for Petitioner on Review KATHLEEN CEGLA Senior Assistant Attorney General RYANP.KAHN # Assistant Attorney General Oregon Department of Justice 1162 Court Street, NE Salem,OR Telephone: Ryan P. Kahn # Attorneys for Respondent on Review Filed: May, 2017

132 TABLE OF CONTENTS. fflstorcal AND PROCEDURALFACTS RELEVANT TO REVEW 1 XL LEGALAQUESTONSAPRESENTED ON REVEW PROPOSED RULES OF LAW 3 A. Question: Was Page v. Palmateer, 336 Or 379, 84 P3d 133 (2004) incorrectly decided? 3 B. Question: s retroactivity a factor to be considered under Oregon's Post-Conviction Relief statutes? 3 C. Question: Did Padilla v. Kentucky announce a new constitutional rule that could not reasonably have been anticipated before it was announced? 4 D. Question: May petitioner be presumed to know the deportation consequences of a criminal conviction such that he could reasonably have timely raised his Sixth Amendment claim for relief under ORS 138,501(3)? 4. REASONS WHY THE SSUES PRESENTED FOR REVEW ARE MPORTANT BEYOND THE BORDERS OF THS CASE 4 V. ARGUMENTS ON QUESTONS FOR REVEW 8 A. Page V. Palmateer Should Be Overruled And State v. Fair Should Be Acknowledged As Valid Authority n ts Entirety 8 B. Retroactivity Rules Do Not Apply To Post- Conviction Relief 9 C. Padilla v. Kentucky Announced A Constitutional

133 11 Principle That Was Unsettled And Could Not Reasonably Have Been Anticipated Before t Was Announced 14 D. A Petitioner May Not Be Presumed To Know The Deportation Consequences Of A Criminal Conviction Such That He Could Reasonably Have Timely Filed For Post-Conviction Relief On Sixth Amendment Grounds 14 CONCLUSON 21

134 ll NDEX OF APPENDX Esteban Chavez v. State of Oregon, 283 Or App 708, P3d (2017) App-A Order Granting/Denying State's Motion To Dismiss (Statute of Limitations) Post Conviction General Judgment App-B App-B

135 V TABLE OF AUTHORTES CASES Bartz V. State of Oregon, 314 Or 353, 839 P2d 217 (1992) 6, 15 18,20,21 Benitez-Chacon v. State of Oregon, 178 Or App 352, 37 P3d 1035 (2001) rev den, 334 Or 76 (2002) 8, 15 Brady v. United States, 397 US 742 (1970) 19 Danforth v. Minnesota, 552 US 264, 128 S Ct 1029, 169 L Ed 2d 859 (2008) 6, 8, 9,20 Esteban Chavez v. State of Oregon, 283 Or App 708, P3d (2017) 1,6,7 Gideon v. Wainwright, 372 US 335, 83 S Ct 792, 9 L Ed 799 (1963) 18 n relobb's Will, 111 Or 162, 160 P2d 295 (1945) 20 Libretti v. United States, 616 US 29 (1995) 19 Linkletter v. Walker, 381 US 618, 85 S Ct 1731, 14 L Ed 2d 601 (1965) 9 McMann v. Richardson, 397 US 759 (1970) 19 Padilla v. Kentucky, 559 US 356, 130 S Ct 1473, 176 L Ed 2d 284(2010) 1,3,4,14 17,20 Page V, Palmateer, 336 Or 379, 84 P3d 133 (2004) 3, 6, 7, 8 Powell V. Alabama, 287 US 45, 53 S Ct 55, 77 L Ed 158 (1932).. 19

136 V State V. Dell, 156 Or App 184, 967 P2d 507, rev den, 328 Or 194(1998) 19 State V. Fair, 263 Or 383, 502 P2d 1150 (1972) 6, 8, 11 State V. Gaines, 346 Or 160, 206 P3d 1042 (2009) 12 Strickland v. Washington, 446 US 668 (1984) 19 league v. Palmateer, 184 Or App 577, 53 P3d 176 (2002) 11,12 Verduzco v. State of Oregon, 357 Or 553, 355 P3d 902 (2015) 5, 6, 16, 17 Von Moltke v. Gillies, 332 US 708 (1948) 19 STATUTES ORS ORS (1) 10 ORS (2) 10,12 ORS (3) 4,5,7,14, 15,16,17 ORS (3) 5, CONSTTUTONAL PROVSONS United States Constitution, Sixth Amendment 5, 20 OTHER AUTHORTES Oregon Post Conviction Hearing Act 9, 10

137 Collins and Neal, The Oregon Postconviction Act, 39 Or L Rev 337 (1960) 9 V

138 PETTON FOR REVEW Petitioner/Appellant/Petitioner on Review ESTEBAN CHAVEZ petitions the Supreme Court of the State of Oregon to review and reverse the February 23,2017 decision of the Oregon Court of Appeals that affirmed the Circuit Court's Judgment which denied petitioner's claim for post-conviction relief based on Padilla v. Kentucky, 559 US 356, 130 S Ct 1473, 176 L Ed 2d 284 (2010). The Court of Appeal's opinion, Esteban Chavez v. State of Oregon, 283 Or App 708, P3d (2017) is attached as Appendix A. A copy of the trial court's Order Granting/Denying State's Motion to Dismiss (Statute of Limitation) and Post Conviction General Judgment are attached as Appendix B.. HSTORCAL AND PROCEDURAL FACTS RELEVANT TO REVEW Petitioner entered the United States in March, 1994, when he was 13 years of age. He became a lawful permanent resident on November 21, n 1999, he was indicted on one count of Delivery of a Controlled Substance and one count of Possession of a Controlled Substance. The state offered to dismiss one count of the indictment if petitioner agreed to plead guilty to the other count. When discussing the offer, petitioner's attorney did not ask him about his immigration statue, did not advise him of the immigration

139 consequences of a guilty plea, and did not ask him if he intended to apply to become a naturalized United States citizen. The attorney did not think petitioner would be deported as a result of his guilty plea. Petitioner entered a plea to the one count of Delivery of a Controlled Substance, the second count was dismissed, and a Judgment of Conviction against him was entered in the Multnomah County Circuit Court on September 17, n deciding to plead guilty, petitioner relied upon the erroneous advice of his attorney. He would not have entered a guilty plea if his attorney had informed him that such a plea would expose him to certain removal from this country, would prevent him from ever becoming a naturalized citizen, and would cause him to be permanently barred from reentering the United States. The immigration and naturalization consequences imposed as a result of his guilty plea were of far greater significance to petitioner that the criminal sanctions that could have been imposed had he gone to trial and been found guilty. Petitioner would never have waived his right to trial if he had been informed of the specific immigration and naturalization consequences of his guilty plea. Petitioner did not appeal from the judgment of conviction, and has not previously made any application for post-conviction relief. Petitioner

140 successfully fulfilled the terms and conditions of his probation, and has not been involved in any illegal or criminal activity since his conviction. On November 4, 2011, petitioner filed his petition for post-conviction relief, claiming he had been deprived of his right to effective assistance of counsel under the Sixth Amendment to the United States Constitution. Petitioner's petition was filed approximately 19 months after March 31, 2010, the date on which the United States Supreme Court decided Padilla v. Kentucky, 559 US 356, 130 S Ct 1473, 176 L Ed 2d 284 (2010). L LEGAL QUESTONS PRESENTED ON REVEW PROPOSED RULES OF LAW A. Question: Was Page v. Palmateer, 336 Or 379, 84 P3d 133 (2004) incorrectly decided? Proposed Rule of Law: Page v. Palmateer, supra, should be overruled, because it incorrectly held that Oregon courts must adhere to the federal standard of retroactivity when applying United States Supreme Court rulings that are based on its interpretation of the federal constitution. B. Question: s retroactivity a factor to be considered under Oregon's Post-Conviction Relief statutes? Proposed Rule of Law: Retroactivity rules do not control the availability of relief under Oregon's Post-Conviction statutes

141 C. Question: Did Padilla v, Kentucky, supra, announce a new constitutional rule that could not reasonably have been anticipated? Proposed Rule of Law: Padilla v. Kentucky, supra, announced a constitutional principal that was unsettled and could not reasonably have been anticipated before it was announced. D. Question: May petitioner be presumed to know the deportation consequences of a criminal conviction such that he could reasonably have timely raised his Sixth Amendment claim for relief under ORS (3)7 Proposed Rule of Law: Application of the presumption to petitioner's claim for post-conviction relief would infringe upon the scope of Sixth Amendment rights as required by the United States Supreme Court in Padilla V. Kentucky, supra. m. REASONS WHY THE SSUES PRESENTED FOR REVEW ARE MPORTANT BEYOND THE BORDERS OF THS CASE 1. The issue in this case involves the proper interpretation of Oregon's Post-Conviction Relief statutes with respect to the existence of limitations on relief due to retroactivitv and the "escape clause" of ORS (3) This case raises the issue of whether Oregon courts should analyze and apply the doctrine of retroactivity when considering whether to apply a newly announced constitutional rule to a post-conviction petition seeking relief under ORS (3). t also raises the question whether the "escape

142 clause" of ORS (3) will permit an untimely petition to be filed because it "could not reasonably have been raised" timely on Sixth Amendment grounds if the petitioner is presumed to know the relevant immigration and deportation statutes that he claims his attorney failed to make known to him. 2. The post-conviction issues raised in this case, or ones similar to them, arise frequentlv in Oregon courts There are numerous post-conviction petitions filed in Oregon courts every year, and there are numerous appeals from post-conviction cases involving issues similar to those raised herein. 3. Manv people are affected bv the decision in this case, as it arises often. The consequence of the decision is important to the public because deportation affects not onlv the individual defendant, but also his children, his familv, and his communitv There are hundreds of persons in Oregon currently facing potential deportation because of criminal convictions in their past. 4. The issue in this case is an issue of state law 5. The legal issues have been properlv preserved. This case is free from factual disputes or procedural obstacles that might prevent the Supreme Court form reaching the legal issue. There were no disputed facts at trial, nor were there any procedural disputes. This case is free from the procedural obstacle in Verduzco v. State of Oregon, 357 Or 553, 355 P3d 902 (2015). The Supreme Court allowed

143 review in Verdvzco to consider whether Oregon courts should continue to follow federal retroactivity analysis Danforth v. Minnesota, 552 US 264, 128 S Ct 1029, 169 L Ed 2d 859 (2008). The Court did not reach the retroactivity issue because the petitioner in Verduzco had raised the same grounds for relief in an earlier petition, which barred his claim under ORS (3). Unlike Verduzco, this case does not involve any earlier petition, nor an appeal. 6. The record in this case does, in fact present the issues described above. 7. Trial courts and the Court of Appeals are confused bv the apparent conflict that exists between the decisions of this Court and the United States Supreme Court The opinion in Danforth v. Minnesota, supra, observed that the decision in Page v. Palmateer, supra, was "misguided" and that State v. Fair, 263 Or 383, 502 P2d 1150 (1972)(disavowed in Page, 336 Or at 387) correctly held that states are free to apply new federal constitutional pronouncements more broadly that federal law requires of federal courts. 522 US at 227 n 14. Notwithstanding the Danforth opinion, the Oregon Court of Appeals decided that it is not in a position to overrule the Oregon Supreme Court and remains bound to follow Page v. Palmateer. Esteban Chavez v. State of Oregon, 283 Or 788, 799, P3d (2017)("we are not in a position to overrule the Supreme Court"). This Court should resolve this

144 conflict so the bench and bar in Oregon know whether Page v. Palmateer is still binding authority and whether the opinion in State v. Fair remains disavowed. 8. The Court of Appeals published a written opinion. Esteban Chavez v. State of Oregon, 283 Or App 788, P3d (2017), a copy of which is attached hereto as appendix A 9. The decision of the Court of Appeals appears to be wrong The Court of Appeals repeatedly states that it is not in a position to overrule the Supreme Court, both in its ruling in Page v. Palmateer, supra, or in its prior interpretations of the Post-Conviction Relief act. As a result, petitioner will suffer a serious or irreversible injustice and faces deportation. The error cannot be corrected by another branch of government. 10. The issues are well presented in the briefs Since the briefs were written there have been a number of new decisions bearing on the issues in this case. f review is allowed, petitioner intends to file a brief on the merits to incorporate recent developments bearing on the doctrine of retroactivity that were not available when the briefs in this case were submitted. 11. Oregon appellate cases denving post-conviction relief under ORS GGYal appear to violate Sixth Amendment rights of petitioners

145 Bartz V. State of Oregon, 314 Or 353, 839 P2d 217 (1992), and its progeny like Benitez-Chacon v. State of Oregon, 178 Or App 352, 37 P3d 1035 (2001), rev den. 334 Or 76 (2002), appear to have been wrongly decided because they do not give Sixth Amendment protections as broad a scope as the United States Supreme Court requires, and should be disavowed or overruled. 12. Amicus curiae have not appeared, but have contacted this writer and have expresses interest in appearing to advise the court V. ARGUMENTS ON QUESTONS FOR REVEW A. Page V, Palmaieer Should Be Overruled And State v. Fair Should Be Acknowledged As Valid Authority n ts Entirety Page V. Palmateer, supra, is fatally flawed. As Danforth v. Minnesota, supra, explains. Page v. Palmateer mistook the holdings of two United States Supreme Court cases and, as a result, its decision was "misguided." Danforth, 552 US at 227 n. 14. The Danforth Court went further, explaining that State v. Fair, supra, correctly stated the law that states are free to choose the degree of retroactivity or prospectivity to be applied to the particular rule under consideration so long as they give at least as broad a scope to federal constitutional rights as the United States Supreme Court requires. 522 US at 227.

146 Based on the Danforth opinion, this Court should overrule Page V. Palmateer and reinstate the authority of State v. Fair. B. Retroactivity Rules Do Not Apply To Post-Conviction Relief When the Oregon Legislature enacted the Post-Conviction Hearing Act in 1959, it intended to codify the relief that was then available through a writ of habeas corpus. The objective was neither to enlarge nor diminish the relief available. Collins and Neal, The Oregon Postconviction Hearing Act, 39 Or L Rev 337, 346(1960). At the time the Post-Conviction Hearing Act was enacted in 1959, no court had ever restricted the application of newly announced federal constitutional rights. Prior to 1965, the United States Supreme Court had construed "every constitutional error, including newly announced ones, as entitling state prisoners to relief on federal habeas." Danforth, 552 US at 272. Up to that time, it was assumed that "all federal constitutional rights, including rights that represented a break from earlier precedent, would be given full retroactive effect on both direct and collateral review." 552 US at 293 (Roberts, C.J, dissenting). "Retroactivity" was first considered in 1965 in Linkletter v. Walker, 381 US 618, 85 S Ct 1731, 14 L Ed 2d 601 (1965).

147 10 When the Oregon Legislature enacted the Post-Conviction Hearing Act in 1959, it did not include any restrictions on the availability of relief. ORS (1) simply stated: "(1) 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 under the Constitution of the State of Oregon, or both, and which denial rendered the conviction void." (emphasis added). ndeed, it appears to be difficult to argue that the Oregon Legislature could have intended to limit relief when the prevailing judicial presumption and practice at that time was that every constitutional error entitled the convicted person to relief on federal habeas. t would have been very difficult for the Oregon Legislature to conceive and intend to incorporate into law in 1959 a concept that did not come into existence until six years later. n fact, ORS (2) specifically forbids an interpretation of the Oregon Post-Conviction Hearing Act that would deny "such relief as would have been available prior to May 26, 1959, under the writ of habeas corpus. Prior to May 26, 1959, every federal constitutional right was given full

148 11 retroactive effect. As pointed out above, there were no "retroactivity" restrictions or requirements for relief under a writ of habeas corpus when Oregon's post-conviction statutes were enacted in May, Nothing in those statutes says that the protections of federal constitutional rights will be limited in scope to whatever limits are applicable in federal courts. n fact, Oregon courts felt free to, and did, give greater protection to federal constitutional rights than did the United States Supreme Court. See, e.g., State V. Fair, 263 Or at ("After the Supreme Court in Johnson v. New Jersey, supra, adopted a more restrictive rule, in Escobedo cases we continued to apply our own rule."), (citations omitted). The Court of Appeals opinion states: "Petitioner's argument is inconsistent with our previous interpretation of the Post-Conviction Hearing Act in Teague v. Palmateer, 184 Or App 577, 57 P3d 176 (2002) rev den, 335 Or 181 (2003), as well as the Oregon Supreme Court's longstanding approach to that act." 283 Or App at 796. That interpretation, however, failed to consider the text, context and legislative history of the act, and pointed to no provision of the act that indicated the legislature intended post-conviction relief to be conditioned on whether a newly announced constitutional right was deemed to have, or not to have, retroactive application. nstead, the Court of Appeals states that it considered the "general design" of the statute as well as the

149 12 principle "codified in ORS (2), which effectively provides that the substance of habeas corpus relief remains available to a person who petitions for relief under post-conviction statutes." d., at 796. That analysis simply begs the question. The fact remains that league never followed established methodology for interpretation of statutes. See, e.g., State v. Gaines, 346 Or 160, 166, 206 P3d 1042 (2009)(we begin with the text and context, then also consider the legislative history pertaining to what the legislature intended). The Court of Appeals simply does not, either in the present case or in league, explain how or why a "retroactivity" requirement can be added to ORS (2) to deny the relief that would have been available under the writ of habeas corpus prior to May 26, 1959 when no retroactivity requirements existed. The "40-year body of settled precedent" that the Court of Appeals cites and relies upon to buttress its conclusion that relief under the Oregon Post- Conviction Hearing Act is conditioned on the "retroactivity" of the constitutional right claimed to have been denied, appears to consist entirely of cases in which it was merely assumed, without analysis, that the scope of the federal rights involved were defined by the United States Supreme Court's determination whether those rights were "retroactive" for federal habeas purposes. Few, if any, of those cases look at, or engage in a meaningful

150 13 analysis, of Oregon's post-conviction relief statutes, nor do they try to determine what the Oregon Legislature intended when it enacted them. Around the time of the 1960s, the United States Supreme Court seemed to announce new constitutional rights on a regular basis, familiar to us as Miranda, Escobedo and Mapp v. Ohio, among many others. Many of these rights dealt with the admissibility of various types of evidence at trial. Because there are no statutes mandating when or under what circumstances judges are to admit evidence offered at trial, courts have been free to create their own rules, including rules to determine whether newly announced constitutional rights have retroactive or prospective application. t appears that having acquired the habit of deciding whether constitutional rights are retroactive or not in trial settings, that practice was carried over into determining whether those same rights are retroactive or not in postconviction hearings. That was improper and error. While courts are free to establish their own rules to govern what occurs at trials, the rules governing what relief is available in post-conviction hearings, at least in Oregon, are governed by statute. The availability of post-conviction relief is not left to the discretion of the judges and courts, because the Oregon Legislature has already determined when and under what circumstances post-conviction relief is available. When post-conviction statutes specify that relief is available

151 14 when constitutional rights have been violated, courts are not free to deny relief by making it conditional upon a factor or circumstance not mentioned in the statutes. To do so would be "to insert what has been omitted" into the statutes, in violation of ORS Petitioner has previously argued that the issue of "retroactivity" is not applicable to post-conviction hearings in Oregon in his Opening Brief before the Court of Appeals, pp , and pointed out that no Oregon appellate case appears to have ever applied the text, context and legislative history methodology to determine if relief can be conditioned upon a "retroactivity" requirement. n the interests of brevity and to avoid undue repetition, petitioner will not repeat its argument or analysis of cases here. C. Padilla v. Kentuckyy supra, Announced A Constitutional Principle That Was Unsettled And Could Not Reasonably Have Been Anticipated Before t Was Announced Petitioner has previously argued this matter, particularly in its Reply Brief, pp. 2-8, and has nothing new to add at this time. n the interests of brevity and to avoid undue repetition, petitioner will not repeat his argument or analysis of cases here. D. A Petitioner May Not Be Presumed To Know The Deportation Consequences of a Criminal Conviction Such That He Could Reasonably Have Timely Filed For Post-Conviction Relief On Sixth Amendment Grounds

152 15 Although the Court of Appeals did not discuss this issue in its opinion, the trial court ruled that petitioner was charged with knowledge of the immigration consequences of his criminal conviction, and that knowledge required him to act within the two-year time limit specified by ORS (3). ER-39-43; App-B. n other words, the trial court found that the statute of limitations bars the filing of petitioner's claim for relief because it was filed 12 years after his conviction, and the escape clause in ORS (3) does not apply because petitioner is presumed to know immigration laws and, consequently, knew his attorney had failed to give him correct advice regarding the clear deportation consequences of his conviction. The primary authority that the trial court relied upon was Benitez-Chacon v. State of Oregon, 178 Or App 352, 37 P3d 1035 (2001), rev den, 334 Or 76 (2002) which held that a petitioner is presumed to know immigration laws and, consequently, his subjective lack of awareness of the legal consequences of a plea will not delay the time in which a petition must be filed under ORS (3). d, at 355. Benitez-Chacon adhered to Bartz v. State of Oregon, 314 Or 353, 360, 839 P2d 217 (1992), which held that relevant statutes were reasonably available to the petitioner when his conviction became final and that the

153 16 failure of his attorney to advise him of available statutory defenses was not a ground for relief which could not reasonable have been raised timely. Recently this Court suggested in Verduzco v. State of Oregon, 357 Or 553, 565, 355 P3d 902 (2015) that Bartz might not be the "final answer"on the meaning of ORS (3). n the course of discussing a similarly worded escape clause in ORS (3), the Court noted that ORS was amended after Bartz was decided to expand the time for filing a petition from 120 days to two years, and remarked that although the wording of the escape clause was unchanged, the legislature discussed the relationship between the escape clause and the expanded limitations period at some length in the course of enacting the amendments to the statute of limitations. d., at 564. 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 (3), as amended in 1993, noting that the same phrase can have different meanings depending on differences in context and legislative history. d., at 565. After considering the text, context and two cases interpreting the escape clause of ORS , the Court adopted as its own the explanation given by

154 17 the Court of Appeals of the facts and circumstances to be considered when construing ORS (3): "The touchstone is not whether a particular question is settled^ 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 principal on which a claim is based, the more likely the claim reasonably should have anticipated and raised. Conversely, if the constitutional principal is a new one, or if its extension to a particular statute, circumstance, or setting is novel, unprecedented, or surprising, then the more likely the conclusion that the claim reasonably could not have been raised." d., at 571 (emphasis in original; citations omitted). The Verduzco petitioner filed a second petition for post-conviction relief in 2011, alleging that his trial counsel in 2003 had provided inadequate assistance under the Sixth Amendment. d., at 556, The Verduzco petitioner alleged that as a result of the United States Supreme Court's decision in Padilla, supra, he was entitled to bring a second petition. d., at 559. After an extensive discussion and analysis of ORS (3) the Court said the issue (whether the grounds asserted for relief could not reasonably have been raised in the original petition) might be a close call. d., at 572. The Court explained that the majority view among lower courts had previously rejected the arguments that Padilla subsequently vindicated. However, the Sixth Amendment issue in Padilla had been an "open one" because there was countervailing authority that counsel must advise clients

155 18 regarding the risk of deportation. d., at Ultimately, the Court did not reach the question whether petitioner reasonably could have raised his constitutional claims in his first petition. Because petitioner had raised the same claims in his first petition, he could not claim he could not reasonably have raised them before his second petition. As a result, the Court found petitioner's claims were barred because they were raised in a successive petition, and therefore did not decide whether ORS (3) imposes the same or a different standard. d., at nterestingly enough, although the Court referenced Bartz v. State of Oregon, supra, in its discussion of the escape clauses of ORS (3) and (2), it did not mention that case again, nor did it apply the Bartz holding to resolve petitioner's claims. The present case presents an opportunity for the Court to consider whether Bartz remains good authority. There is a second, and perhaps more important, reason why this court should re-visit Bartz and disavow or overrule it. The Bartz decision appears to be in conflict a large number of Sixth Amendment cases, including Padilla V. Kentucky, supra. The United States Supreme Court has determined that criminal defendant are unlikely to have the skill and knowledge necessary to adequately protect their rights or interests. Gideon v. Wainwright, 372 US 335,344, 83 S Ct 792, 9 L Ed 799 (1963)("[L]awyers in criminal courts are

156 19 necessities, not luxuries."); d. (quoting Powell v. Alabama, 287 US 45, 68-69, 53 S Ct 55, 77 L Ed 158 (1932)("The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. * * * He lacks both the skill and knowledge adequately to prepare his defense, even though he has a perfect one."). The right to counsel includes the right to effective assistance of competent counsel. McMann v. Richardson, 397 US 759, 771 (1970)("t is our responsibility under the Constitution to ensure that no criminal defendant - whether a citizen or not - is left to the 'mercies of incompetent counsel.'"); Strickland v. Washington., 446 US 668, 686 (1984). Effective assistance of counsel is just as important at the pleading state as at trial. Von Moltke v Gillies, 332 US 708, 721 (1948). t is a critical obligation of counsel to advise the client of the advantages and disadvantages of a plea agreement. Libretti v. United States, 516 US 29, (1995). Guilty pleas must be voluntary and made with knowledge of the direct consequences. Brady v. United States, 397 US 742, 748 n. 6 (1970). Albeit in a non-constitutional context, Oregon has also long recognized that non-lawyers rely upon their counsel. State v. Dell, 156 Or App 184, , 967 P2d 507, rev den 328 Or 194 (1998)(criminal defendant rely on their trial counsel; indeed, with respect to certain decisions, they are required to do

157 20 so). Those with whom a lawyer deals are oftentimes helpless from infancy or old age, and are generally ignorant of the law and of their legal rights; and practically at the mercy of the lawyer who represents them. n re Lobb's Will, 111 Or 162, 190, 160 P2d 295 (1945). Despite these constant reminders that criminal defendants and others are generally ignorant of the law dependent on their counsel to give them competent advice, Bartz held that criminal defendants cannot rely on the information and advice they receive from their trial counsel, because they are presumed to have the same, or better, knowledge of the law as the counsel that represented them at trial. 314 Or at t appears that no federal court has ever applied the Bartz presumption to deny federal habeas relief. n effect, the Bartz presumption would wipe out a significant part of the Sixth Amendment protection and its jurisprudence, because if criminal defendants are held to be informed of all laws and statutes that are reasonably available to them, they would have little need for competent legal advice from counsel. t appears the Bartz presumption would give federal constitutional rights, and especially Sixth Amendment rights, a far smaller scope that what is required by the United States Supreme Court. States are not allowed to do that. See, e.g., Danforth 552 US at n Padilla, the Supreme Court

158 21 held that "counsel must inform her client whether his plea carries a risk of deportation" and remanded the case so Padilla could be granted postconviction hearing based on his claim that his attorney failed to advise him of the immigration consequence of a criminal conviction. 559 US at 374. n contrast, Bartz denied post-conviction relief to a criminal defendant who alleged his attorney failed to advise him of all available statutory defenses, holding that the alleged failure "was not a "ground for which relief ** * could not reasonably have been raised." 314 Or at Thus, it is clear that had the Bartz Court decided Padilla v. Kentucky, Mr. Padilla would have been denied post-conviction relief. CONCLUSON The judgment of the Court of Appeals should be reversed and this case remanded for new trial. Respectfully submitted, /s/ Steven E. Benson Steven E. Benson, OSB # Attorney for Petitioner-Appellant

159 NDEX OF APPENDX Esteban Chavez v. State of Oregon, 283 Or App 708, P3ci (2017) App-A Order Granting/Denying State's Motion To Dismiss (Statute of Limitations) Post Conviction General Judgment App-B App-B

160 App-A FLED: February 23, 2017 N THE COURT OF APPEALS OF THE STATE OF OREGON ESTEBAN CHAVEZ, Petitioner-Appellant, V. STATE OF OREGON, Defendant-Respondent. Multnomah County Circuit Court A Cheryl A. Albrecht, Judge, Argued and submitted on January 02,2014. Steven E. Benson argued the cause and filed the briefs for appellant. Kathleen Cegla, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General. Before Ortega, Presiding Judge, and Duncan, Judge, and DeVore, Judge. DUNCAN, J. Affirmed. DESGNATON OF PREVALNG PARTY AND AWARD OF COSTS Prevailing party: Respondent No costs allowed. Costs allowed, payable by Appellant. Costs allowed, to abide the outcome on remand, payable by

161 App-A 1 DUNCAN, P. J. 2 n this post-conviction case, petitioner alleges, based on Padilla v. 3 Kentucky, 559 US 356, ,369, 130 S Ct 1473,176 L Ed 2d 284 (2010), that he was 4 denied effective assistance of counsel because his defense attorney failed to advise him of 5 the immigration and naturalization consequences of a guilty plea to a count of delivery of 6 a controlled substance. The post-conviction court concluded that the petition, filed 7 12 years after petitioner's conviction was final, was untimely; the court further reasoned 8 that the petition fails on the merits because Padilla does not provide a basis for relief for 9 convictions that were final before that decision was issued. For the reasons that follow, 10 we reject petitioner's arguments that he can prevail on the merits of his Padilla-h3SQ^ 11 claim, and we affirm on that ground.^ 12 The backdrop of this case is an uncommonly complex weave of state and 13 federal law. Petitioner's underlying conviction for delivery of a controlled substance was 14 entered in 1999, but he did not file his petition for post-conviction relief until 2011, 15 shortly after the United States Supreme Court decided Padilla, 559 US at , which ' Although the judgment refers to dismissal based on the "statute of limitations," the parties agree that the issue of "retroactivity"-/.e., whether Padilla provides a basis for post-conviction relief from convictions that were final before that case was decided was fully litigated by the parties and ruled upon by the trial court. Because we affirm the dismissal on the merits based on the issue of retroactivity, we do not address whether the petition was timely filed under ORS (3). See league v. Palmateer, 184 Or App 577, 591, 57 P3d 176 (2002), rev den, 335 Or 181 (2003) (concluding that a federal rule did not apply retroactively and that, "[a]s a result, we do not need to decide whether petitioner's claims were untimely under ORS (3) or were precluded by the successive petition bar of ORS (3)").

162 App-A 1 held that counsel's failure to give correct advice regarding clear deportation consequences 2 of a conviction had amounted to ineffective assistance under the Sixth Amendment to the 3 United States Constitution. Petitioner alleged that, as in Padilla, his attorney had not 4 advised him of the clear immigration and naturalization consequences of his plea, and 5 that he would not have entered into the plea agreement if his attorney had told him that he 6 would be deported, would be barred from reentering the United States, and could not 7 become a naturalized citizen. He further alleged that, "[p]rior to the decision in Padilla, 8 established case law prevented petitioner from reasonably raising the grounds for relief 9 which he now asserts." 10 The state moved to dismiss the petition, arguing that petitioner could have 11 anticipated Padilla and that the petition was therefore untimely. See ORS (3)(a) 12 (requiring petitions for post-conviction relief to be filed within two years of the date of 13 conviction unless the asserted grounds for relief "could not reasonably have been raised" 14 in a timely manner). The state also argued that the petition fails because the procedural 15 rule announced in Padilla "is not retroactive and does not apply to his case"-z.e., it does 16 not provide a basis for relief from convictions that were fmal before Padilla was decided. 17 The post-conviction court agreed with both of the state's contentions, and it dismissed the 18 petition. 19 Petitioner then appealed the post-conviction judgment and, in his opening 20 brief, argued that the petition came within the exception to the two-year filing period 21 because Padilla announced a rule of law that could not reasonably have been anticipated

163 App-A 1 before that decision. As for the merits, petitioner's challenge to the court's analysis of 2 retroactivity was two-fold and mirrored his contentions in the post-conviction court. 3 Petitioner argued that, contrary to the post-conviction court's ruling, Padilla announced a 4 rule that applies retroactively under the test set out in league v. Lane, 489 US 288, 311, S Ct 1060,103 L Ed 2d 334 (1989)(plurality). Alternatively, petitioner argued that 6 retroactivity principles for purposes of federal habeas relief do not constrain the ability of 7 state courts to grant relief in post-conviction proceedings, see Danforth v. Minnesota, US 264, 128 S Ct 1029, 169 L Ed 2d 859 (2008)(so holding), and that, as a matter of 9 state law, Oregon's Post-Conviction Hearing Act was never intended to limit relief based 10 on retroactivity principles. 11 Since petitioner filed his opening brief, there have been a number of state 12 and federal appellate decisions bearing on his Padilla-hdiSQd claim. First, in Chaidez v. 13 UnUed States, 568 US, 133 S Ct 1103,185 L Ed 2d 149 (2013), the United States 14 Supreme Court addressed one of the predicate issues in this case: whether the rule 15 announced in Padilla is retroactive under the League analysis. n Chaidez, the Court held 16 that it is not: "[UJnder the principles set out in [League], Padilla does not have 17 retroactive effect." 133 S Ct at Shortly thereafter, in Saldana-Ramirez v. State of Oregon, 255 Or App 602, ,298 P3d 59, rev den, 354 Or 148 (2013), we applied that federal retroactivity rule in 20 a state post-conviction proceeding, holding that Chaidez "foreclosed" the petitioner's

164 App-A 1 Padilla-hdiStd. claim where, as in this case, the conviction became final before Padilla 2 issued. We reasoned: 3 "[U]nder federal retroactivity principles as elucidated in Chaidez, Padilla 4 does not apply to petitioner's collateral challenge. '[F]ederal retroactivity 5 principles govern whether a new federal rule applies retroactively in 6 [Oregon] court.' Miller v. Lampert, 340 Or 1, 7, 125 P3d 1260 (2006) 7 (citing Page v. Palmateer, 336 Or 379, , 84 P3d 133, cert den^ US 866 (2004)). Accordingly, we affirm." 9 d. at 608 (bracketed material in Saldana-Ramirez; footnote omitted). We thereby 10 implicitly rejected another of the arguments that petitioner makes in this case: that, in 11 light of Danforth, federal retroactivity principles have no application to Oregon post- 12 conviction cases. That is, notwithstanding the holding in Danforth that states are free to 13 apply their own retroactivity principles, we continued to follow Miller and Page^ two 14 cases that predated Danforth and remained the most recent pronouncements from the 15 Oregon Supreme Court as to whether Oregon courts apply federal retroactivity principles 16 to state post-conviction cases. Accord Frias v. Coursey, 229 Or App 716,717, 215 P3d , rev den, 347 Or 258 (2009) ("n petitioner's view, Danforth specifically calls into ^ n Page, the court held that, "when interpreting the federal constitution or applying Supreme Court rulings that are based on its interpretation of the federal constitution, we must comply with what the Supreme Court has stated." 336 Or at 386 (relying on Oregon v. Hass, 420 US 714, 719, 95 S Ct 1215,43 L Ed 2d 570 (1975), and American Trucking Ass'ns. nc. v. Smith, 496 US 167,177-78, 110 S Ct 2323,110 L Ed 2d 148 (1990)). The holding in Page represented a departure from the court's earlier statement in State V. Fair, 263 Or 383,387-88, 502 P2d 1150 (1972), that "we are free to choose the degree of retroactivity or prospectivity which we believe appropriate to the particular rule under consideration, so long as we give federal constitutional rights at least as broad a scope as the United States Supreme Court requires." n Danforth, the United States Supreme Court noted that history and observed that the decision to change course in Page was "misguided" and based on an incorrect reading of Hass and American Trucking Ass'ns nc. 552 US at 277 n 14.

165 App-A 1 question the reasoning in Miller and Page. See Danforth, 128 S Ct at 1039 n 14 2 (describing the decision in Page as 'misguided'). Whatever the merits of petitioner's 3 argument, it is properly addressed to the Oregon Supreme Court."). 4 n the wake of Saldana-Ramirez, we summarily rejected similar arguments 5 that Padilla applies retroactively in state post-conviction proceedings. See, e.g., 6 Sandoval v. State of Oregon, 261 Or App 864, 864,322 P3d 1161, rev den, 355 Or (2014) {per curiam citing Saldana-Ramirez). Then, in one of those cases, the Supreme 8 Court allowed review specifically to address the import of Danforth. n Verduzco v. State 9 of Oregon, 357 Or 553, 555, 355 P3d 902 (2015), a case in which we had summarily 10 affirmed the post-conviction court in an order citing Saldana-Ramirez, the Supreme 11 Court began its decision by explaining: 12 "n[danforth], the United States Supreme Court held that state 13 courts may apply new federal constitutional rules retroactively in state post- 14 conviction proceedings even though those rules do not apply retroactively 15 in federal habeas corpus proceedings. We allowed review in this case to 16 consider the principles that Oregon courts should follow in exercising the 17 authority that Danforth recognized." 18 The court then described the parties' competing arguments regarding retroactivity, stating 19 that, "[i]n Saldana-Ramirez, the Court of Appeals noted that this court's decisions before 20 Danforth had followed federal retroactivity analysis, and the Court of Appeals signaled 21 that it would do so too until we exercised our authority under Danforth to take a different 22 course. See 255 Or App at 608; see also Frias v. Coiirsey, 229 Or App 716,215 P3d (2009)." Verduzco, 357 Or at 560 n The court then further described the effect of Danforth:

166 App-A 1 "As noted, the United States Supreme Court held in Danforth that states 2 may apply new federal rules retroactively in state post-conviction 3 proceedings even though those rules would not apply retroactively in 4 federal habeas. Essentially, the Court held in Danforth that federal 5 retroactivity analysis does not define the scope of the federal right. 552 US 6 at 275. ndeed, in Danforth, the Court described the federal retroactivity 7 analysis that it had announced in Teague as an interpretation of the federal 8 habeas statute. d. at "After Danforth, each state is firee to determine when new federal 10 rules should be applied retroactively in state post-conviction proceedings. 11 Such determinations can include a consideration of the state's interest in the 12 finality of convictions, the effect of the new federal right on the validity of 13 the conviction, the need for predictable retroactivity rules, and the value of 14 additional review. See Paul M. Bator, Finality in Criminal Law and 15 Habeas Corpus for State Prisoners, 16 Harv L Rev 441 (1963)(discussing 16 considerations Aat can inform when courts should revisit final 17 convictions); cf Danforth, 552 US at (explaining that the current 18 federal rule was adopted, among other things, to ensure predictable 19 results)." Or at As it turned out, however, the court did not ultimately reach the 22 retroactivity question on which it had allowed review. d. at 563 ("Even though we 23 allowed review to consider when new federal rules will apply retroactively in Oregon, we 24 conclude that this case does not provide an occasion to decide that issue."). nstead, the 25 court concluded that petitioner had raised the same grounds for relief in an earlier petition 26 for post-conviction relief, which barred his claim for relief under ORS (3) (the 27 rule against successive petitions). Thus, the court concluded its decision by stating, 28 "[W]e do not need to decide whether we would choose to adhere to the federal standard 29 ofretroactivity or, if we were to adopt a different standard, what principles would inform

167 App-A 1 it. t is sufficient in this case to hold that ORS (3) bars the grounds for relief 2 alleged in petitioner's second post-conviction petition." d. at 574 (emphasis added). 3 With that background, we retum to the arguments that petitioner raises with 4 regard to retroactivity in this case. First, petitioner argues that, under the federal analysis, 5 Padilla announced a rule that must be applied retroactively. As stated previously, that 6 contention is now foreclosed by the United States Supreme Court's decision in Chaidez, US at, and we do not discuss it further. 8 That leaves petitioner's alternative contention that federal retroactivity 9 principles do not control whether the rule announced in Padilla applies in this state post- 10 conviction case. As the court in Verduzco noted, we previously signaled that we would 11 follow federal retroactivity principles until the Oregon Supreme Court "exercised [its] 12 authority under Danforth to take a different course." 357 Or at 560 n 4. The court's 13 discussion in Verduzco-znA. its express recognition that, "[ajfter Danforth, each state is 14 free to determine when new federal rules should be applied retroactively in state post- 15 conviction proceedings," 357 Or at 562calls that approach into question, at least to the 16 extent that we had previously considered ourselves to be bound by Page and Miller. 17 And, if petitioner in this case were asking us to exercise our authority to depart from the 18 federal standard, we would be confronted with the same questions that the court posed 19 but did not answer in Verduzco: "whether we would choose to adhere to the federal

168 App-A 1 standard of retroactivity or, if we were to adopt a different standard, what principles 2 would inform it."^ 357 Or at 574. But that is not petitioner's argument. 3 Petitioner's argument is not based on our authority (or, for that matter, the 4 Oregon Supreme Court's authority) to craft a state standard of retroactivity. Rather, 5 petitioner posits that Oregon courts lack any such authority because the legislature, in 6 enacting the Post-Conviction Hearing Act in 1959, intended to provide relief based on the 7 denial of constitutional rights "regardless of whether they are deemed under current 8 jurisprudence to apply retroactively or prospectively." n other words, petitioner argues 9 that the Oregon legislature already made the choice authorized by Danforth, and that, 10 based on the text, context, and legislative history of the Post-Conviction Hearing Act, 11 there is no retroactivity limitation on post-conviction relief for constitutional violations. 12 Thus, petitioner argues, "[w]hen the Legislative Assembly has not included a retroactivity 13 requirement as part of the Post-Conviction Hearing Act, the judiciary has no power to 14 insist upon it." 15 Petitioner's argument is inconsistent with our previous interpretation of the 16 Post-Conviction Hearing Act in league v. Palmateer, 184 Or App 577, 57 P3d (2002), rev den, 335 Or 181 (2003), as well as the Oregon Supreme Court's longstanding 18 approach to that act. n Teague, we specifically addressed whether the concept of 19 retroactivity applies to state post-conviction cases. We explained that, whereas parts of ^ We would also be required to ask an additional question: whether we, as opposed to the Oregon Supreme Court, should decide those questions in the first instance.

169 App-A 1 the Post-Conviction Hearing Act address issue preclusion, "Oregon's approach to 2 retroactivity is reflected in a nearly 40-year-old body of settled precedent." 184 Or App 3 at 581. After tracing the history of the Post-Conviction Hearing Act, we explained: 4 "Consistently with that general design, the availability of relief under 5 Oregon's post-conviction statutes depends on two factors. First, a petitioner 6 must seek substantive relief that would have been available through a writ 7 of habeas corpus. Bartz v. State of Oregon, 314 Or 353,361, 839 P2d (1992). That principle is codified in ORS (2), which effectively 9 provides that the substance of habeas corpus relief remains available to a 10 person who petitions for relief under the post-conviction statutes. Bartz, Or at 361. Second, a petitioner must follow the proper procedures for 12 obtaining that relief. d. As pertinent here, the statutes codify issue 13 preclusion principles that tum on the availability of prior judicial 14 proceedings to address a petitioner's claims. * * * 15 "ssue preclusion and retroactivity are distinct concepts and 16 traditionally have been treated as such. From the earliest cases decided 17 under Oregon's post-conviction statutes, petitioners have been able 18 procedurally to assert claims based on imanticipated and newly announced 19 constitutional principles, but their ability to prevail on those claims has 20 depended on the retroactivity of the constitutional principle at work. Such 21 cases are legion. See, e.g., [North v. Cupp, 254 Or 451,459-62,461 P2d (1969), cert den, 397 US 1054 (1970)](one of petitioner's claims 23 barred by statutory issue preclusion principles; claim based on newly 24 announced Escobedo/Miranda doctrine could be raised but was not a basis 25 for relief because doctrine was not retroactive); Church v. Gladden, 244 Or , ,417 P2d 993 (1966)(similar). As we explained in Myers v. 27 Cupp, 49 Or App 691, 621 P2d 579 (1980), rev den, 290 Or 491 (1981), 28 whether a new constitutional rule provides an exception to issue preclusion 29 and also is retroactive are complementary inquiries; a petitioner must 30 satisfy both to be entitled to post-conviction relief: 31 '"[A]n exception to the general rule that an issue raised and 32 considered on direct appeal caimot be reconsidered in a post- 33 conviction proceeding applies where the law with respect to that 34 issue has changed since the time of appeal and that new law is to be 35 applied retroactively 36 "49 Or,App at (emphasis added; citation omitted). n a more recent 37 post-conviction case, the Oregon Supreme Court similarly observed that a

170 App-A 1 'court must analyze retroactivity' when considering whether to apply a 2 newly announced rule to a post-conviction case. Moen v. Peterson, 312 Or 3 503, , 824 P2d 404 (1991) (emphasis added) (declining to determine 4 what retroactivity standard should apply because constitutional rule 5 invoked by petitioner was not new). n short, assessing the retroactivity of 6 a newly announced constitutional rule is a necessary and legitimate step in 7 the analysis of whether post-conviction relief should be awarded on the 8 basis of that new pronouncement. The inqui^ is not subsumed in the 9 statutory standards pertaining to when new issues are procedurally proper 10 to assert." Or App at (footnotes omitted; emphasis in original). 12 Petitioner acknowledges our holding in league but argues that "an 13 examination of the precedent relied upon in league and other Oregon cases shows that 14 the 'retroactivity' requirement is not based upon any provision of the Oregon Post- 15 Conviction Hearing Act, ORS to ," and that the "'retroactivity' 16 requirement appears to be an unwritten amendment that the courts have inserted into 17 Oregon's post-conviction jurisprudence and is simply bad law." 18 As we recently explained in State v. Civil, 283 Or App 395,416, P3d 19 (2017), "we must not, and do not, 'lightly overrule' our precedents, including those 20 construing statutes." (Quoting v. Washington County, 201 Or App 640, 648, P3d 514 (2005), rev den, 340 Or 34 (2006)). We only overrule cases that are "'plainly 22 wrong,' a rigorous standard grounded in presumptive fidelity to stare decisis'' d. at Thus, "we begin with the assumption that issues considered in our prior cases are 24 correctly decided, and the party seeking to change a precedent must assume responsibility 25 for affirmatively persuading us that we should abandon that precedent." Farmers ns. 10

171 App-A 1 Co. V. Mowry, 350 Or 686,698,261 P3d 1 (2011) (internal quotation marks omitted). 2 Here, petitioner's arguments do not satisfy that standard. 3 First, the analysis in league was not unmoored from the text of the Post- 4 Conviction Hearing Act, as petitioner suggests. After carefully tracing the history of that 5 act, we considered the "general design" of the statute, as well as the principle "codified in 6 ORS (2), which effectively provides that the substance of habeas corpus relief 7 remains available to a person who petitions for relief under the post-conviction statutes." Or App at Even if we did not expressly state that the text, context, and 9 history of the Post-Conviction Hearing Act do not foreclose the application of 10 retroactivity principles, that conclusion was necessarily implicit in our analysis. 11 Second, petitioner's argument depends largely on what inferences to draw 12 from the fact that the Post-Conviction Hearing Act is silent with regard to retroactivity. 13 That is, petitioner does not point to any text, context, or legislative history that establishes 14 that the legislature affirmatively considered the question of retroactivity; rather, his 15 argument is that such a limitation would not have occurred to the legislature at all, 16 because it was not addressed by the Supreme Court until 1965 in Linkletter v. 17 Washington, 381 US 618, 85 S Ct 1731, 14 L Ed 2d 601 (1965), six years after the Post- 18 Conviction Hearing Act was enacted. Even assuming that petitioner's understanding of 19 the history of retroactivity is correct,"^ we will not revisit our decision in league, let alone Petitioner draws from the dissenting opinion in Danforth, in which Chief Justice Roberts wrote, "As the court correctly points out, before 1965 we took for granted the proposition that all federal constitutional rights, including rights that represented a break 11

172 App-A 1 a half-century of settled law in Oregon, simply because petitioner would draw a different 2 inference from the legislature's silence on that issue. See Mowry, 350 Or at ("Stability and predictability are important values in the law; individuals and institutions 4 act in reliance on this court's decisions, and to frustrate reasonable expectations based on 5 prior decisions creates the potential for uncertainty and unfairness."). 6 Finally, as an overarching matter, petitioner has failed to persuade us that 7 we are even the proper court to address his argument regarding the effect of the Post- 8 Conviction Hearing Act. n Teague, we were not writing on a blank slate; our 9 understanding of retroactivity as applied to the Post-Conviction Hearing Act was 10 "reflected in a nearly 40-year-old body of settled precedenf-predominantly cases 11 decided by the Oregon Supreme Court. 184 Or App dx5%\\ see also, e.g., Church, Or at 313 (holding, in a post-conviction case, the "[p]etitioner may not take advantage of 13 any new rights bestowed by [Escobedo v. State of llinois, 378 US 478, 84 S Ct 1758,12 14 L Ed 2d 977 (1964)], because his conviction was final before Escobedo was decided"). 15 Although petitioner attempts to undermine the reasoning in those cases, such as Church, 16 in which the Supreme Court applied retroactivity principles to deny post-conviction 17 relief, ^ we are not in a position to overrule the Supreme Court, nor are we inclined to from earlier precedent, would be given full retroactive effect on both direct and collateral review. That all changed with Linkletter v. Walker, 381 US 618, 85 S Ct 1731, 14 L Ed 2d 601 (1965)." 552 US at 293 (Roberts, C. J., dissenting). ^ Petitioner suggests that Oregon courts, including the Supreme Court, incorrectly "imported" retroactivity principles from criminal trials into "post-conviction relief hearings without the realization that this was a different world not ruled by the discretion 12

173 App-A 1 revisit our own well-considered opinion to the extent that it was based on those earlier 2 Supreme Court cases. ^ 3 For those reasons, we reject petitioner's argument that the Post-Conviction 4 Hearing Act precludes the application of retroactivity principles to deny relief in this 5 case, and we affirm the judgment of the post-conviction court. 6 Affirmed. ofjudges, but by statutes and legislative policy." Although petitioner's claim for relief also alleges that he was denied his right to adequate assistance of counsel under the Oregon Constitution, his arguments on appeal relate exclusively to his Padilla-hd&^d. claims. Accordingly, we do not address any issues related to a state constitutional claim. 13

174 App-B N THE CRCUT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH ESTABAN CHAVEZ, Petitioner/Plaintiff, Case No V. STATE OF OREGON, Respondent/Defendant. ORDER GRANTNG/DENYNG STATE'S MOTON TO DSMSS (STATUTE OF LMTATON) r 13". w i : This case came before me for the State's Motion to Dismiss Petitioner's claim on the basis that it falls outside the statute of limitation. Mr. John Hoover appeared on behalf of the State. Mr. Steven Benson appeared on behalf of Petitioner. Mr. Chavez is in custody in an immigration facility and did not appear by telephone or in person. Mr. Chavez entered a plea of guilty to Delivery of a Controlled Substance in September Mr. Chavez alleges that his attorneys. Angel Lopez (now The Hon. Angel Lopez) and Gwen Butkovsky did not discuss the various significant immigration consequences of his plea with him. Mr. Chavez alleges had he been aware of all the implications on his immigration status he would have requested trial instead of entaing aplea. Mr. Chavez is subject to the provisions of the llegal mmigration Reform and mmigrant Responsibility Act of 1996 (RRA) and was served in June 2011 with notice to ^pear for removal proceedings. Ex.7 to Petitioner's Petition for Post-Conviction Relief. He filed this petition on November 1,2011. The case of Padilla v. Kentucky, 130 Sa 1473,176 L Ed2d 284 (2010), held that defense counsel had an obligation under the standards set forth in Strickland v. Washington, 466 US 668 (1984) to inform a defendant entering a plea whether the conviction carries a risk of deportation. Padilla, 130 SCt at Mr. Chavez is requesting that the court grant post-conviction relief i it m

175 App-B alleging failure to provide effective assistance of counsel by failing to adequately advise him of immigration consequences. The state moves to dismiss alleging the complaint falls outside the statute of limitation and does not adequately plead grounds to trigger the escape clause. Under the two year statute of limitation, Mr. Chavez would have needed to file a petition by September 1,2001. Mr. Chavez argues the limitation period tolls due to his failure to enter into a knowing and voluntary plea. He further states the earliest he could have filed his petition was after the US Supreme Court decided the Padilla case because that would be the first time he would have notice of his federal constitutional claims for relief. He states the running of the statute begins the date of the Padilla decision, March 30,2010, ORS (3)(a) provides that post-conviction relief actions must be filed within two years from entry of conviction if no appeal is taken, unless the court finds "grounds for relief asserted which could not reasonably have been raised in the original or amended petition." The exception to filing outside the statute of limitation is narrowly construed and must be limited to extraordinary circumstances. Benitez-Chacon v. State, 178 Or App 352,356,37 P3d 1035 (2001). The issue is whether the information existed or was reasonably made available to the petitioner within the required time period. d, ciimg Brown Baldwin, 131 Or App 356, 361, 885 P2d 707 (1994). See, also, Bartz v. State oforegon, 314 Or 353, , 839 P2d 217 (1992). The exception to the statute of limitations does not encompass a claim based on a petitioner's lack of actual awareness of current statutes or laws. Benitez-Chacon v. State, 178 Or App at 359. This is true even if defendant relied on incorrect advice from his attomey regarding the deadline for filing post-conviction relief. Brown v. Baldwin, 131 Or App at 361. Untimely petitions must allege facts that, if supported by evidence, would establish the grounds for relief could not reasonably have been raised timely. Morrow v, Maass, 109 Or App 694, 695,820 P2d 1374(1991). The focus on the exception is the availability of information informing the grounds for post-conviction relief and not the alleged inability of petitioner to take advantage of those grounds. Fisher v. Belleque, 237 Or App 405, , 240 P3d 745 (2010). The reasonableness of a petitioner's failure to act on available information is irrelevant to whether the escape clause should be triggered. d, 237 Or App at 411. Oregon courts have already rejected the notion that the escape clause allows filing outside the statute of limitation when a person did not leara of immigration consequences until a deportation order. After examining case history interpreting the escape clause, the Court of Appeals found petitioner was presumed to have had knowledge of the relevant immigration statutes and rules then in existence. Benitez-Chacon v. State, 178 Or App at 357. The Court further rejected the "discovery rule" as a trigger for the statute's running. d, at

176 X W App-B b- '^^c^clawsecouldbetriggeredifapetitionassertsgroundsforreuefthatcoi^ wnstituhonal pnnciple that was not only unsettled at the time but could not have reasonawy ^ reasonably be expected such as a newly annauncei en anticipated. d, at 359, citing Long v. ArmenaMs, 166 Or App 94,101,999 P2d 461 (2<^l The same result does not follow where the constitutional principle is not new, but is an ^knowmged one, ^d the uncertainty is in its scope or appucation to a particular circumstance. ong v.armenahs, 166 Or App at 101. A petitioner is not excused fiom anticipating and raisii a claim merely because that claim has not been resolved by an appellate court Rather, if a claim re^on^ly can be anticipated it must be raised even if the law on the point is not yet settled. d, at 98. The exception does not encompass a claim based on a petitioner's lack of actual awareness of current laws or statutes. Benitez-Chacon v. State, 178 Or App at 359. Petitioner and Defendant both discuss the issue of whether Padilla states a new constitutional rule of criminal procedure or whether it is merely an extension of existing constitutional standards, and as such, not a new constitutional law. New federal constitutional rules do not apply retroactively unless the new rule requires observance of those procedures that are implicit in die concept of ordered Kberty, the type of bedrock procedural element that must be found to vitiate the fairness of a conviction. Page v. Palmateer, 336 Or 379,388-89,84 P3d 133 (2004), citing Teague v. Lane, 489 US 288, (1989). To be a 'Svatershed" rule, a new rule must also be necessary to prevent an impeimissibly large risk of an inaccurate conviction. Whorton v. Bockting, 549 US 406,418 (2007). A constitutional rule of criminal procedure does apply to all cases on direct and collateral review if it is not a new rule but rather an old rule applied to new facts. Chaidez v. United States, 655 F3d 684,688(7^ Cir. 2011), citing Whorton V. Bockting 549 US at 416. Petitioner here argues his case comes within the escape clause because he could not reasonably have anticipated that Padilla would extend Sixth Amendment protections to include advice on immigration consequences of a conviction. The court finds the holding in Padilla does not represent a watershed rule. There is nothing about discussing the immigration consequences of a conviction that ensures the fairness of procedures at trial itself. Two recent cases appear to have adopted a broad retroactive application of Padilla to pleas entered since the passage of (RRA) without finding that Padilla constitutes a watershed change of constitutional procedure. See, generally, Denisyuk v. State of Maryland, (422 Md 462 (2011); Commonwealth of Mass. v. Clarke, 460 Mass 30 (2011). n Denisyuk, the petitioner filed a petition for post-conviction relief citing the same grounds at issue for Mr. Chavez. t was granted and the state filed appeal. The Court of Appeals reversed the trial court, and the Padilla decision was entered two days later. The court ruled that Padilla represented an old rule applied to new facts and "under Maryland retroactivity jurisprudence," applied retroactively. Denisyuk, p. 19, citing Potts v. State, 300 Md J