Opinion Filed: February 23, 2017

February 20, 2018 06:00 PM IN THE SUPREME COURT OF THE STATE OF OREGON ESTEBAN CHAVEZ, Petitioner-Appellant V. STATE OF OREGON Defendant-Respondent Multnomah County Circuit Court 111114537 A151251 S064968 PETITIONER'S REPLY BRIEF TO RESPONDENT'S BRIEF ON THE MERITS 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 STEVEN E. BENSON, #730259 ELLEN F. ROSENBLUM #753239 PO Box 15036 Attorney General Portland, OR 97293 BENJAMIN GUTMAN # 160599 Telephone: 503-238-6658 Solicitor General Attorney for Petitioner on Review

Oregon Department of Justice 1162 Court Street, NE Salem,OR 97301 Telephone: 503-378-4402 Attorneys for Respondent on Review Filed: February 20,2018

TABLE OF CONTENTS 1. Verduzco 1 2. Could Padilla Have Reasonably Been Anticipated? 2 A. The stand for the "escape clause" in ORS 138.510(3)... 2 B. Padilla Developed New Law 3 C. There Was No Split of Authority Concerning A Sixth Amendment Right to Be Advised of the Deportation Consequences of a Guilty Plea 8 D. "Conceivably Could" versus "Reasonably Could" 11 E. Retoractivity, Finality, Etc 15 3. Conclusion 19

11 TABLE OF AUTHOMTIES CASES Page Broomes v. Ashcroft, 358 F3d 1251 (10^ Cir.) cert, denied, 534 US 1034(2004) 13 Chaidez v. United States, 568 US 342, 133 S Ct 1103, (2013)... 4,5, 6, 7, 8, Fruchtman v. Kenton, 531 F/ 2d 046 (9^ Cir. 1976) 12 INS V. St Cyr, 533 US 289, 121 S Ct 2271, 150 L Ed2d 347 (2001) 7 Padilla v. Kentucky, 559 US 356,130 S Ct 1473, 176 L Ed 2d 284(2010) 2,3,4,7,8, 11, 12, 13, 14,19 People V. Pozo, Co, 746 P2d 523 (Colo. 1987) 10 State V. Montalban, 810 So2d 1106 (La) cert denied 537 US 887 (2002) 13 State V. Pardez, 136 NM 533, 101 P3d 799 (2004) 9, 10 Strickland v. Washington, 446 US 668, 104 S Ct 2052, 80 L Ed2d 647 (1984) 4, 7, 8, 13 Tafoya v. State, 500 P2d 247 (Alaska,1972) cert, denied 410 US 945 (1972) 13 United States v. Del Rosario, 902 F2d (DC Cir.), cert, denied, 498 US 942 (1990) 13 United States v. Fry, 322 F3d 1198 (9^ Cir. 2003) 12,13 11

Ill Verduzco v. State of Oregon, 357 Or 553,355 P3d 902 (2015) 1,3,12,16 STATUTES ORS 138.510 15 ORS 138.510(1) 16 ORS 138.510(2) 16,20 ORS 138.510(3) 2, 11 ORS 138.520 15 ORS 138.510(3) 4,5,7,14, 15,16,17 ORS 138.530 15,16 ORS 138.550(3) 5, 16 18 ORS 138.680 15 CONSTITUTIONAL PROVISIONS United States Constitution, Sixth Amendment 4, 5, 7, 8, 9,11, 12, 13, 18, 19

IV OTHER AUTHORITIES Oregon Post Conviction Hearing Act 16,17 Chin & Holmes, Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L. Review 697 (2002) 5, 8

PETITIONER'S REPLY BRIEF TO RESPONDENT'S BRIEF ON THE MERITS 1. Verduzco Respondent opens its Brief by stating that "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)" and urges this Court to reject petitioner's argument that "a failure to advise claim could not reasonably have been brought before Padilla was decided" as "it did in Verduzco^ Resp. Br. pp. 1-2, Respondent's comparison of the present case to Verduzco is mistaken and misleading, both factually and legally. As the opening paragraph in the Verduzco opinion explains, the court allowed review "to consider the principles that Oregon courts should follow in exercising their authority to apply federal constitutional rules retroactively in state post-conviction proceedings. Id, at 555. Unfortunately, the court never reached the question it intended to consider because Verduzco (unlike the present case) came before the court on petitioner's second petition for relief which raised the same grounds for relief that had been previously raised in his first petition for relief. Id, at 555. "Having raised those grounds in his first post-conviction petition, he cannot claim that he could not reasonably have raised them." Id., at

573. Accordingly, the court simply held that ORS 138.550(3) bars the claims petitioner alleges in his second post-conviction petition. Id., at 753. Contrary to Respondent's assertion, the Verduzco court never decided the question of whether Verduzco could reasonably have brought a failure-to-advise claim before Padilla was decided. Id., dix 513 (we need not decide whether petitioner reasonably could have raised the constitutional claims in his first postconviction petition that he now raises in his second post-conviction petition). The present case is clearly distinguished from Verduzco in two significant respects: (1) unlike Verduzco, petitioner herein has not previously raised his claim in an earlier post-conviction petition, and (2) the issue herein is one that Verduzco never decided, namely, whether a post-conviction failure-to-advise claim could reasonably have been brought before Padilla was decided. 2. Could Padilla Have Reasonably Been Anticipated? A. The standard for the "escape clause'' in ORS 138»510(3) Both parties agree that Oregon's post-conviction statue allows a petition to be filed after the normal two-year statute of limitations has run if the grounds asserted for relief "could not reasonably have been raised" within the two-year period. Both parties agree that this court explained the meaning of that phrase as follows:

"* * *[T]he question whether a claim reasonably could have been raised earlier will vaiy with the facts and circumstances of each claim. * * * '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 more likely the claim reasonable 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.'" Verduczo, supra, 357 Or at 571 (quoting Long 166 Or App at 97)(emphasis in original). "[T]he question under ORS 138.550(3) is not whether a petitioner conceivably could have raised the grounds for relief in an earlier petition. Rather, the question is whether the petitioner reasonably could have raised those grounds for relief earlier, a question that calls for a judgment about what was 'reasonable.'" Id, at 566 (emphasis added). Finally, petitioner accepts respondent's description of this standard as being a "demanding" one that "requires more than a showing that the law was unsettled or that there was contrary intermediate-court precedent at the time." Resp. Br. p. 13. B. Padilla Developed New Law Padilla held that "counsel must inform her [non-citizen] client whether

his [guilty] plea carries a risk of deportation." Padilla, 559 US at 374. At first blush, it might appear this decision is nothing more than a routine application of the general rule in Strickland v. Washington, 446 US 668, 104 S Ct 2052, 80 LEd2d 674 (1984)(setting forth the test to determine if coimsel represented his client competently) to the particular circumstances involving alien defendants subject to immigration consequences as a result of a guilty plea. Indeed, that is what both the petitioner and the dissent argued in Chaidez v. United States, 568 US 342, 133 S Ct 1103, 1111 (2013), namely, that Padilla was only a routine application of the Strickland test to the advice given by Padilla's attorney. The majority disagreed and pointed out that "* ** Padilla did something more." Id., 133 set at 1108. As the majority in Chaidez explained, before Padilla held that "counsel must inform her client whether his plea carries a risk of deportation," Padilla first had to consider the threshold question whether advice about deportation was categorically removed from the scope of the Sixth Amendment because it involved only a collateral consequence of conviction rather than a component of the criminal sentence. Chaidez, 133 S Ct at 1108. BqIovq Padilla, all 10 federal appellate courts that had considered the question had unanimously decided that advice about matters like deportation that were not a part or enmeshed in the criminal proceeding does not fall within the scope of the Sixth Amendment, and that

counsel's failure to inform a defendant of the collateral consequences of a guilty plea was never a violation of the Sixth Amendment. Id., at 1109 (citations omitted). In addition, appellate courts in almost 30 states agreed. Id., at 1109. As a result, the authors of the principal scholarly article on the subject called the exclusion of advice about collateral consequences from the scope of the Sixth Amendment one of "the most widely recognized rules of American law." Id. at 1109, (citing Chin & Holmes, Cornell L. Rev. 697, 706 (2002)). Before deciding whether an attorney had a constitutional duty to advise alien defendants of the deportation consequences of a guilty plea, Padilla first had to decide whether such advice was "categorically removed" from the scope of the Sixth Amendment because it involved only a "collateral consequence" of a conviction, rather than a component of the criminal sentence. Chaidez, at 1108. The groundbreaking part of Padilla was its conclusion "that advice regarding deportation is not categorically removed from the scope of the Sixth Amendment right to counsel." 559 US at 366. That decision overturned more than 40 years of precedent that "almost uniformly insisted on ** * the categorica[l] remov[al]" of advice about a conviction's non-criminal consequences - including deportation - from the scope of the Sixth Amendment. Chaidez., at 1110. Padilla was the first court to reject that categorical approach. M at 1110. As the Supreme Court itself

states, its decision in Padilla developed "new law." Id., at 1111. As Chaidez explains: "* * * it is exactly in refusing to apply the direct-collateral distinction that the Padilla Court did something novel. Before then, as the Court forthrightly acknowledged, that distinction would have doomed Padilla's claim in well-nigh every court in the United States. See 559 US at, 130 S Ct at 1480-81; supra, at 1110." Id, at 1112, footnote 13. Respondent repeatedly asserts that "a claim based on the principles from Padilla reasonably could have been anticipated before that case was decided." Resp. Br. p. 16. Respondent supports his assertion by showing that Sixth Amendment claims based on counsel's failure to give adequate advice about the deportation consequences of guilty pleas had been brought frequently in the decades before Padilla. Respondent's argument is wrong because it fails to grasp the true significance of Padilla. Like the dissent in Chaidez, respondent herein adopts a different account of Padilla in which it did no more than apply Strickland to a new set of facts. Chaidez rejected that argument, pointing out that: ^''Padilla had to develop new law, establishing that the Sixth Amendment applied at all, before it could assess the performance of Padilla's lawyer under Strickland. * * * Our first order of business was thus to consider whether the widely accepted distinction between direct and collateral consequences categorically foreclosed Padilla's claim, whatever the level of his attorney's performance. * * * All that reasoning came before we conducted a Strictland

Id, at 1111-12. analysis * * *, and none of it followed ineluctably from prior law." The petitioner and the dissent in Chaidez argued that Padilla "did no more that apply Strickland to a new set of facts. Id., at 1111. In doing so, the Chaidez petitioner and the dissent relied upon INS v. St. Cyr, 533 US 289, 121 S Ct 2271, 150 LEd2d 347 (2001), a case raising an issue of immigration law unrelated to the Sixth Amendment. St. Cyr noted that "competent defense counsel" should inform his client about a guilty plea's deportation consequences. Id, at 323, n. 50. Chaidez and the dissent argued that all Padilla had to do was recite the St. Cyr finding and apply the Strickland test to show that the petitioner had been deprived of his Sixth Amendment rights. Chaidez, 133 S Ct at 1111. The majority disagreed, pointing out that St. Cyr did not determine that the Sixth Amendment information requires a lawyer to provide such information, /c/., at 1113. Before St. Cyr, courts had held that deportation advice concerned a matter collateral to the criminal prosecution and was outside the scope of the Sixth Amendment. And, as the Chaidez court noted, "In the years following St. Cyr, not a single state or lower federal court considering a lawyer's failure to provide deportation advice abandoned the distinction between direct and collateral consequences, and several courts reaffirmed that divide, (citations omitted). It took Padilla to decide that

in assessing such a lawyer's performance, the Sixth Amendment sets the standard." Id., at 1113. C. There Was No Split of Authority Concerning A Sixth Amendment Right to Be Advised of the Deportation Consequences of a Guilty Plea Respondent asserts that Padilla resolved "a longstanding split among state and federal courts [regarding whether] a criminal defense attorney's failure to advise a client of 'clear' deportation consequences constitutes deficient performance under the Sixth Amendment to the United States Constitution." Resp. Br. pp. 5-6. Respondent is mistaken, because no such split ever existed. As pointed out previously herein, every federal circuit that had considered the matter had concluded that the Sixth Amendment did not require attorneys to inform their clients of the deportation consequences of a conviction. Chaidez, 133 S Ct at 1109. Almost 30 States agreed, leading the exclusion of advice from the Sixth Amendment's scope to be one of "the most widely recognized rules of American law." Id., at 1109, citing Chin & Holmes. The Supreme Court said: "It was Padilla that first rejected that categorical approach - and so made the Strickland test operative - when a criminal lawyer gives (or fails to give) advice about immigration Id., at 1110. Before Padilla, no court had beached the "chink-free wall between direct and collateral consequences." Id., at 1110.

To be sure, two state courts had digressed from the majority rule. Resp, Br. p. 18. In doing so, however, neither court criticized or rejected the collateral consequences doctrine. In State v. Pardez, 136 NM 533, 101 P3d 799 (2004) the defendant moved after sentencing to set aside his guilty plea on the basis that he was not adequately informed of the immigration consequences of his plea. Id., 101 P3d at 800. The court recognized that the Tenth Circuit held that "deportation remains a collateral consequence of a criminal conviction, and counsel's failure to advise a criminal defendant of its possibility does not result in a Sixth Amendment deprivation." Id, 101 P3d at 804-05. The court departed from the Tenth Circuit's holding for three reasons: First, there is only a "tenuous distinction" between misadvice and non-advice. Second, distinguishing between misadvice and nonadvice would create a chilling effect on the attorney's decision to offer advice. Third, not requiring the attorney to specifically advise the defendant of the immigration consequences of a guilty plea placed the duty of ascertaining those consequences on the client, who was least able to handle that duty. Based on that immigration consequences of guilty plea, which would allow the defendant to make a knowing and voluntary decision. 101 P3d at 805. At no point did the court criticize, reject or find that the collateral consequence doctrine did not exclude deportation advice from the scope of the Sixth Amendment. The court did not find that the Sixth Amendment required attorneys to give alien defendants immigration

10 advice. The most that can be said for Pardez is that a solitary court expanded the duties of attorneys to advise alien defendants about deportation consequences of guilty pleas as a matter of New Mexico state law. The second case cited in respondent's brief, People v. Pozo, 746 P2d 523 (Colo. 1987), the defendant moved to set aside his conviction some seven months after sentencing, on the grovmds (1) he was not adequately advised of, nor did he understand the elements of the charges against him, and (2) his attorney did not advise him of the possible deportation consequences of his guilty plea. At a hearing, Pozo's attorney acknowledged he had not discussed possible deportation consequences with Pozo. Id., at 525. After a review of various authorities, the court concluded that deportation consequences in criminal proceedings against alien defendants are material to critical phases of such proceedings. Id., at 529. Whether the failure of counsel to investigate those consequences depends to a significant degree upon whether or not the attorney had sufficient information to form a reasonable belief that his client was an alien. Because the record before the court did not establish that Pozo's attorney had reason to know his client was an alien, nor what the standards of minimally acceptable professional conduct were at the time, the court ordered the case returned to the trial court for further proceedings. Id, at 529-30. The court never considered the collateral

11 consequence doctrine, or whether it categorically removed deportation advice from the scope of the Sixth Amendment. As these cases demonstrate, the collateral consequence doctrine was virtually unchallenged. It was not until Padilla that "the previously chink-free wall between direct and collateral consequences" was breached. Chaidez, 133 S Ct at 1110. Padilla was the first court to reject the collateral consequence doctrine and thereby pave the way for immigration and deportation advice to be included among the protections of the Sixth Amendment. Id, at 1110. Accordingly, there was no split of authority concerning the collateral consequence doctrine and the fact that it excluded deportation advice from the scope of the Sixth Amendment. Before Padilla, there was no reason for petitioner to anticipate that one of the "most widely recognized rules of American law" would ever be overturned. D. "Conceivably Could" Versus "Reasonably Could" Throughout its brief, respondent repeatedly asserts that petitioner "could" have raised his claims before Padilla was decided. See, e.g., Resp. Br. pp. 15-20. In doing so, respondent appears to forget that the word "could" is modified by the adverb "reasonably" and that the correct interpretation of the escape clause of ORS 138.510(3) does not simply mean petitioner "conceivably could" have raised his grounds for relief earlier, but that it would also have been "reasonable" for him to

12 do so. Verduzco, 357 Or at 566 (interpreting the same wording of ORS 138.550(3)). As respondent points out, claims that attorneys had failed to provide alien defendants of adequate advice regarding the deportation consequences of a guilty plea had been brought for decades before Padilla. Resp. Br. 17. The only thing respondent's argument establishes is that it was "conceivably" possible to bring such claims before Padilla, while failing to demonstrate that it would have been "reasonable" for petitioner to do so. In fact, if petitioner had asserted his claims in a petition prior to Padilla, those claims would have been doomed to failure. While it is true that a petitioner cannot delay filing his petition until he feels assured of a favorable outcome, it is equally true that it is not reasonable to require petitions to be filed when established law makes their success impossible. Petitioner could not reasonably have filed his petition before Padilla was decided because the collateral consequence doctrine made it impossible for him to establish a Sixth Amendment violation based on inadequate advice about deportation. The federal circuits (including the Ninth Circuit) that had decided the issue had unanimously held that attorneys need not discuss the collateral consequences of a conviction, including deportation, with alien defendants. See, e.g., Fruchtman v. Kenton, 531 F. 2d 946, 949 (9* Cir. 1976); United State v. Fry,

13 322 F3d 1198,1200 (9^ Cir. 2003)(deportation is a collateral consequence not rising to the level of constitutionally ineffective assistance of counsel). As petitioner has previously argued, Oregon jurisprudence agreed with federal precedent. Pet. Br. pp. 15-19. The Padilla court noted that it had never expressly approved of the collateral consequences doctrine, saying: "We, however, have never applied a distinction between direct and collateral consequences to define the scope of constitutionally 'reasonable professional assistance' required under Strickland^ 466 US at 690, 104 S Ct 2052. Padilla, 559 US at 1481. While the Supreme Court was correct in saying that it had never expressly approved the collateral consequence doctrine, it had, on numerous occasions prior to Padilla^ refused to grant certiorari to cases involving that very issue, thereby tacitly approving those decisions applying and adhering to the collateral consequence doctrine. See, e.g., Broomes v. Ashcroft, 358 F3d 1251 (lo"^ Cir.) cert, denied, 534 US 1034 (2004); Untied States v. Del Rosario, 902 F2d (DC Cir) cert denied, 498 US 942 (1990); Tafoya v. State, 500 P2d 247 (Alaska, 1972)(cerf denied, 410 US 945 (1973); State v. Montalban, 810 So2d 1106 (La), cert denied 537 US 887 (2002). Given that firmly established state and federal precedent held that collateral consequences - including deportation - were outside the scope of the Sixth Amendment, how can it be said that petitioner "reasonably" could have asserted a

14 claim that his attorney's failure to advise him of the deportation consequences of his guilty plea infringed upon his Sixth Amendment rights? Granted, petitioner conceivably could have filed his petition in state or federal court, and after exhausting available appeals, then applied for certiorari to the United States Supreme Court. But how reasonable would that have been in the face of repeated denials of similar petitions for certiorari to that court? Before Padilla, Sixth Amendent law was firmly settled. The collateral consequence doctrine was an impenetrable barrier to obtaining post-conviction relief. The "War on Drugs" was declared by then-president Richard Nixon in the early 1970s. It has been an utter disaster, with illegal drugs being vastly more available today, at cheaper prices, than they were in the 1970s. Nonetheless, that war continues. A clever critic said words to this effect: "The definition of insanity is to keep doing the same thing over and over, and expecting a different result," That definition applies to the argument that petitioner "could" have pursued his claims prior to Patilla. Yes, he "conceivably could" have filed an earlier petition for relief, but until Patilla changed the law, it would have been unreasonable - not to mention insane - to do so because it would have been an act of utter futility with no chance, reasonable or otherwise, of success. IIII! /////

15 E. Retroactivity, Finality, Etc. At the outset, petitioner must correct an argument made in his Amended Merits Brief. Petitioner's argument stated: "Unlike federal courts, Oregon courts lack any authority to 'adjust' the Oregon Post-Conviction Act to dispose of postconviction petitions "as law and justice require." Pet. Br. p. 35. That statement is in error. ORS 138.520 expressly states: "The relief which a court may grant or order under ORS 138.510 to 138.680 shall include release, new trial, modification of sentence, and such other relief as may be proper and just. * * *." (emphasis added). The undersigned writer regrets this misstatement and hereby corrects it. That said, the Oregon Post-Conviction Hearing Act (OPCHA) does not give Oregon courts same latitude to condition the availability of post-conviction relief that federal courts enjoy under federal habeas statutes. ORS 138.520 is subject to ORS 138.530, which provides, in relevant part: "(1) Post-conviction relief pursuant to ORS 13 8.510 to 138.680 shall be granted by the court when one or more of the following grounds is established by the petitioner: (a) A substantial denial in the proceedings resulting in petitioner's 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. * * *

16 (2) Whenever a person petitions for relief under ORS 138.510 to 138.680, ORS 138.510 to 138.680 shall not be construed to deny relief where such relief would have been available prior to May 26,1959, under the writ of habeas corpus, nor shall it be construed to affect any powers of executive clemency or pardon provided by law." Oregon's post-conviction jurisprudence seems to have ignored those parts of ORS 138.530 (1) and (2) emphasized above. Oregon courts have denied postconviction relief for a variety of reasons without considering whether relief was available prior to May 26,1959 under the writ of habeas corpus. As recently as Verduzco decision in 2015, the Oregon Supreme Court was indicating that Oregon courts could consider such factors as (1) the state's interest in the finality of convictions, (2) the effect of the new federal right on the validity of the conviction, the need for predictable retroactivity rules, and (4) the value of additional review. Id., 357 Or at 562. Vedmco never identified any part of OPCHA as authorizing courts to condition post-conviction relief on any of factors it had described, nor did it even mention ORS 138.530 (1) or (2). Respectfully, petitioner submits that this view is mistaken because the Oregon Legislature has already determined what factors Oregon courts must consider. Those factors are set out in OPCHA, and specifically in ORS 138.530. Post-conviction relief in Oregon is not conditioned on the factors listed in the Verduzco opinion because they are not included as part of OPCHA. Relief under OPCHA is conditioned only on one factor: was such relief available prior to May

17 26,1959, under the writ of habeas corpus? Oregon rules of statutory construction forbid the courts from either adding to or omitting from the wording of the statute, meaning that courts cannot impose doctrines such as "retroactivity,""comity," or "finality" as barriers to granting post-conviction relief into OPCHA. When OPCHA was enacted in 1959, the legislature was familiar with the relief then available under a writ of habeas corpus. ORS 138.530 expresses a legislative intent to preserve constitutional protections as they were known in 1959, and to prevent relief from violations of those constitutional protections from being diminished or denied in the future. This is not to say that judicial doctrines such as "finality" are not important. They are. They often serve vital values and interests. But those values and interests are not paramount. The supreme values and interests of the United States and the State of Oregon are embedded in their respective constitutions, which are the supreme law. Constitutionally protected trial rights designed to ensure fair trials, such as the right to confront witnesses, the right to compel the attendance of witnesses, the right to have guilt proven beyond a reasonable doubt and the right to be represented by a competent lawyer, are paramount and take precedence over judicial doctrines. When a conflict arises between constitutional rights and a judicial doctrine such as "finality," the judicial doctrine must yield. Otherwise, constitutional provisions will cease to be the supreme law.

18 Finality of criminal convictions is not a paramount value in the United States or the State of Oregon. Criminal convictions are overturned through appeals and judicial review, writs of habeas corpus, and post-conviction proceedings. If finality of criminal convictions was the paramount value, appeals, writs of habeas corpus and post-conviction relief statues would have been abolished long ago. Far jfrom imdermining the integrity of the judicial process, post-conviction relief enhances it. Post-conviction relief is only available when the petitioner can establish a substantial denial of his rights that resulted in his conviction. The integrity of the judicial process is enhanced when courts ensure that defendants have not given up their constitutional rights without making a knowing and voluntary decision to plead guilty, without receiving accurate advice from a competent attorney, or without having been told the specific immigration consequences of pleading guilty, including whether deportation would be virtually certain. Denial of relief to defendants who have suffered a deprivation of constitutional rights puts those rights in jeopardy. Without the remedy of relief from judgments of conviction which were obtained in violation of Sixth Amendment and Due Process rights, those constitutional protections would become mere words lacking substance. Without a remedy to redress violations of constitutional rights, those rights and protections could be violated with impunity.

19 The possibility of sanctions and relief is what keeps judges, attorneys and prosecutors mindful of their obligations to see that the constitutional rights of defendants are not impaired. 3. Conclusion Petitioner has alleged the substantial denial of his Sixth Amendment right to be advised by his counsel of immigration deportation consequences of a guilty plea to the criminal charges brought against him. He has alleged that he was prejudiced by his attorney's failure to render constitutionally adequate advice. He is entitled to post-conviction relief under ORS 138.530(1). As set forth above and in his Merits Brief, petitioner's post-conviction petition as timely under the 'escape clause' of 138.510(3) because he could not reasonably have raised the grounds for relief asserted in his petition until after Padilla had removed the barrier of the collateral consequence doctrine, which had previously excluded those grounds for relief asserted by petitioner from the scope of the Sixth Amendment protections. Post-conviction relief for Sixth Amendment violations was available under the writ of habeas corpus prior to May 26, 1959. Judicial doctrines that could bar post-conviction relief (such as non-retroactive application of newly declared rights, finality, comity and the like) did not bar relief (or were not available to bar relief)

20 prior to May 26,1959, and pursuant to ORS 138,530(2) cannot be construed to bar relief to petitioner. The judgment of the trial court and the Court of Appeals should be set aside and this matter remanded for an evidentiary hearing. Respectfully submitted, /s/ Steven E. Benson STEVEN E. BENSON #730259 Attorney for Petitioner on Review

CERTIFICATION OF COMPLIANCE WITH BRIEF LENGTH AND TYPE SIZE REQUIREMENTS Brief Length I certify that (1) this brief complies with the word-count limitation in ORAP 5.05(2)(E) and the word count of this brief (as described in ORAP 5.05(e) is 4,459 words. Type Size I 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)(g). NOTICE OF FILING AND PROOF OF SERVICE I certify that on February 20,2018, 1 directed the original PETITIONER'S REPLY BRIEF TO RESPONDENT BRIEF ON THE MERITS to be electronically filed with the Appellate Court Administrator, Appellate Records Section, and electronically served upon Benjamin Gutman, Attorney for Respondent on Review by using the court's electronic filing system. I further certify that on February 20, 2018,1 directed PETITIONER'S REPLY BRIEF TO RESPONDENT'S BRIEF ON THE MERITS be served upon Benjamin Gutman, attorney for Respondent, by mailing two copies thereof, with postage prepaid, in an envelope addressed to: Benjamin Gutman Solicitor General Department of Justice 1162 Court Street, NE Salem, OR 97301-4096 /s/ Steven E. Benson Steven E. Benson, OSB #730259 Attorney for Petitioner/Appellant