SHAWN W. FIELD, Petitioner-Appellant,
RICK COURSEY, Superintendent, Eastern Oregon Correctional Institution, Defendant-Respondent
Submitted March 18, 2014
Umatilla County Circuit Court. CV101492. James R. Hargreaves, Senior Judge.
Erin Galli and Chilton & Galli, LLC, filed the brief for appellant.
Mary H. Williams, Deputy Attorney General, Anna M. Joyce, Solicitor General, and Carson L. Whitehead, Assistant Attorney General, filed the brief for respondent.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[264 Or.App. 725] TOOKEY, J.
Petitioner appeals a judgment denying his petition for post-conviction relief. He argues that he received inadequate assistance of appellate counsel when, after his judgment of conviction was affirmed by this court, appellate counsel failed to file either a petition for review with the Oregon Supreme Court or a motion to withdraw as counsel. Because petitioner failed to preserve his arguments regarding the nature of the alleged prejudice that he suffered as a result of appellate counsel's representation, we do not address them on appeal and, accordingly, we affirm the decision of the post-conviction court.
The following procedural facts are not in dispute. Following a jury trial, defendant was convicted of murder, ORS 163.115; assault, ORS 163.175; criminal mistreatment, ORS 163.205; and manufacture of a controlled substance, former ORS 475.999 (2003), renumbered as ORS 475.904 (2005). Petitioner appealed to this court, challenging three of the trial court's rulings: (1) the denial of a motion to suppress petitioner's statements; (2) the denial of a motion for a mistrial; and (3) the imposition of consecutive sentences. We affirmed the judgment of conviction in September 2009. State v. Field, 231 Or.App. 115, 218 P.3d 551 (2009).
In October 2010, petitioner initiated post-conviction proceedings. In a formal petition for post-conviction relief, petitioner claimed, among other things, that appellate counsel had provided inadequate assistance following his direct appeal in the Court of Appeals:
" Petitioner * * * alleges that he was denied effective assistance of appellate counsel in violation of Article I, section 11 of the Oregon Constitution and the 6th Amendment of the U.S. Constitution, made applicable to the states by the 14th Amendment to the United States Constitution and Strickland v. Washington [466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] in the following manner:
" a. Appellate Counsel was ineffective in failing to keep Petitioner fully informed of the status of his appeal, therefore causing Petitioner to lose additional time that may be required in order to file his federal habeas corpus.
[264 Or.App. 726] " b. Appellate Counsel was ineffective in failing to assist Petitioner in what steps he needed to take in order to further ...