June 12, 2014
MARCO ANTONIO MONTEZ, Petitioner on Review,
Stanley CZERNIAK, Superintendent, Oregon State Penitentiary, Respondent on Review
On petitioner on review's petition for reconsideration filed April 22, 2014.[*]
CC 97C12376; CA A130258.
Montez v. Czerniak, 355 Ore. 1, 322 P.3d 487 (2014)
Daniel J. Casey, Portland, filed the petition for reconsideration.
No appearance contra.
Before Balmer, Chief Justice, Walters and Baldwin, Justices, and Riggs and Durham, Senior Judges, Justices pro tempore.[**]
[355 Ore. 599] PER CURIAM
Petitioner seeks reconsideration of this court's decision in Montez v. Czerniak, 355 Ore. 1, 322 P.3d 487 (2014), a post-conviction relief case in which we affirmed both the Court of Appeals decision and the post-conviction judgment below. In seeking reconsideration, petitioner takes exception to our holding as to the disclosure of petitioner's previous death sentence at his penalty phase retrial, as well as various aspects of our analysis regarding omitted expert mitigation evidence. With regard to those arguments, we affirm our previous decision without further discussion.
Petitioner has correctly noted, however, that our opinion misidentified Kenneth McPhail as an inmate witness who testified on petitioner's behalf at the Multnomah County Circuit Court. See Montez v. Czerniak, 355 Ore. at 29 n 8 (" Eight inmates testified for petitioner and all did so at the penitentiary except for Kenneth McPhail, whose testimony was taken at the Multnomah County Circuit Court." ) That identification was incorrect; the record shows that the inmate who testified in Multnomah County Circuit Court was, in fact, Michael McDonnell. Accordingly, we allow this petition for reconsideration and modify our decision to correct that error.
The petition for reconsideration is allowed. The former opinion is modified and adhered to as modified.