August 13, 2014
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 preserve his constitutional rights.
" c. Appellate [C]ounsel was ineffective in failing to adequately communicate with Petitioner regarding the status of his appeal and the next procedural steps Petitioner would need to take in order once his appeal was final."
At the post-conviction trial, petitioner provided evidence that, beginning in April 2010, he had repeatedly asked appellate counsel about the status of his appeal, and that he had asked appellate counsel to " please withdraw from his services so that he could continue on his appellate process with * * * a public defender or court-appointed attorney." Petitioner stated that he had " received absolutely no response from [appellate counsel] regarding what was going on [or] what [he] needed to do." Petitioner stated that, as a result, he " lost some very precious time for his federal habeas corpus time," and that appellate counsel " did not actually even file a motion to withdraw until October of 2010 so that [petitioner] could go forward on his process."
For its part, the state  relied on the trial memorandum that it had submitted to the post-conviction court. In that memorandum, the state asserted that, " [i]n order to prevail on a claim of ineffective assistance of appellate counsel, petitioner must establish '(1) a competent appellate counsel would have asserted the claim, and (2) that had the claim of error been raised, it is more probable than not that the result would have been different.'" (quoting Guinn v. Cupp, 304 Or. 488, 496, 747 P.2d 984 (1987)). The state contended that petitioner had failed to state a claim for relief, because petitioner's alleged prejudice--" los[ing] additional time that may be required in order to file his federal habeas corpus" --was a " prospective[,] potential harm" that had " nothing to do with the proceedings that resulted in conviction." According to the state, petitioner's three claims " fail[ed] to show how petitioner's constitutional rights were violated in the underlying criminal proceedings." The state added that, even if petitioner's complaints stated a claim for [264 Or.App. 727] post-conviction relief, petitioner had failed to submit sufficient evidence to prove his claims.
The post-conviction court denied petitioner's petition, stating, " in short, I would say that I agree a hundred percent with [the state]." Regarding petitioner's three claims of inadequate assistance of appellate counsel, the court stated, " I see no basis in post-conviction for these at all, and so they--they
don't even state a claim."  Petitioner now appeals.
On appeal, petitioner argues that appellate counsel was inadequate when he failed to either file a petition for review in the Supreme Court or take steps to withdraw as counsel so that petitioner could " pursue other options." He contends that appellate counsel's failure to act prejudiced him in two ways: first, he lost the opportunity to seek review from the Supreme Court, which " could have resulted in the reversal of his convictions" ; second, he will likely be foreclosed from raising claims for habeas corpus relief in federal court because he was unable to exhaust his state remedies.
Our review in post-conviction proceedings is for legal error. ORS 138.650; ORS 138.220. A petitioner is entitled to post-conviction relief if he 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 138.530(1)(a). When a petitioner claims that he received inadequate assistance of legal counsel in violation of Article I, section 11, of the Oregon Constitution, the petitioner must show, by a preponderance of the evidence, that counsel " failed to exercise reasonable professional skill and judgment and that the petitioner suffered prejudice as a result." Holloway v. Gower, 225 Or.App. 176, 180, 200 P.3d 584 (2009) (citing Trujillo v. Maass, 312 Or. 431, 435, 822 P.2d 703 (1991)). In Holloway, we also noted that " [t]o prevail under the Sixth Amendment [to the United States Constitution], a petitioner must prove that counsel's performance 'fell below an objective standard [264 Or.App. 728] of reasonableness * * * under prevailing professional norms' and that there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. (quoting Strickland, 466 U.S. at 694) (omission in Holloway ).
Similarly, the Oregon Supreme Court has explained that
" [a] plaintiff seeking post-conviction relief stemming from a claim of inadequate assistance of appellate counsel for failing to assert a claimed error must establish (1) that a competent appellate counsel would have asserted the claim, and (2) that had the claim of error been raised, it is more probable than not that the result would have been different. In short, the post-conviction plaintiff must show that he or she was prejudiced."
Guinn, 304 Or. at 496. Thus, a petitioner seeking post-conviction relief based on a claim that appellate counsel failed to assist him in filing a petition for review in the Supreme Court must establish that (1) a competent appellate counsel would not have failed to assist petitioner in filing a petition for review and (2) had appellate counsel assisted petitioner in filing a petition for review, it is more probable than not that the result would have been different.
Here, petitioner failed to sufficiently preserve before the post-conviction court the arguments that he now makes regarding
prejudice. Accordingly, he cannot prevail on his challenge to that court's ruling.
[264 Or.App. 729] ORAP 5.45(1) provides that, " [n]o matter claimed as error will be considered on appeal unless the claimed error was preserved in the lower court * * *." See also Ailes v. Portland Meadows, Inc., 312 Or. 376, 380, 823 P.2d 956 (1991) (noting that, generally, an issue must have been preserved in the trial court for the appellate court to address it on appeal). We have a " duty to determine, sua sponte, whether the arguments that an appellant raises on appeal are adequately preserved for our review." State v. Cossette, 256 Or.App. 675, 680, 301 P.3d 954 (2013). As we have explained, " [p]reservation principles apply in the context of post-conviction relief and, as a general rule, arguments not made to the post-conviction court in support of a claim will not be considered on appeal." Hale v. Belleque, 255 Or.App. 653, 660, 298 P.3d 596, adh'd to on recons, 258 Or.App. 587, 312 P.3d 533, rev den, 354 Or. 597, 318 P.3d 749 (2013). The preservation requirement serves several goals, including judicial efficiency, fairness to opposing parties, and full development of the record. Peeples v. Lampert, 345 Or. 209, 219-20, 191 P.3d 637 (2008). As the Oregon Supreme Court has explained, " a party must provide the trial court with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted." State v. Wyatt, 331 Or. 335, 343, 15 P.3d 22 (2000). In sum, the petitioner " must have alerted the trial judge and opposing counsel to the substance of the position that is advanced on appeal." State v. Taylor, 198 Or.App. 460, 469, 108 P.3d 682, rev den, 339 Or. 66, 118 P.3d 802 (2005).
As noted above, petitioner's petition for post-conviction relief alleged that 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" ; that appellate counsel was " ineffective in failing to assist Petitioner in what steps he needed to take in order to further preserve his constitutional rights" ; and that appellate counsel was " ineffective in failing to adequately communicate with Petitioner regarding the status of his appeal and the next procedural steps" he needed to take once his appeal was final. Petitioner's arguments in the proceeding [264 Or.App. 730] before the post-conviction court mirrored those set forth in his petition.
On appeal, however, petitioner first argues that Oregon Supreme Court review " could have resulted in the reversal of his convictions" and second, that he will " likely be foreclosed" from raising claims for federal habeas corpus relief, because he has been prevented him from exhausting his state remedies, and therefore may be found to have procedurally defaulted. See 28 U.S.C. § 2254(b)(1)(A) (" An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that * * * the applicant has exhausted the remedies available in the courts of the State[.]" ); but see Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (federal court can consider the merits of a procedurally defaulted claim if the petitioner can demonstrate " cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice" ).
As such, the arguments presented to the post-conviction court were qualitatively different from those now presented to this court. While in his petition for post-conviction relief and in proceedings before the post-conviction court, petitioner argued that appellate counsel did not keep him fully informed of the status of his appeal, failed to assist him in what steps he needed to take in order to further preserve his constitutional rights, and failed to adequately communicate with him regarding the status of his appeal, neither in his petition nor in the proceeding before the post-conviction court did petitioner advance the arguments he now makes before this court.
Regarding petitioner's first argument on appeal, petitioner did not argue to the post-conviction court that he might have prevailed
in the Oregon Supreme Court, or present or explain the basis on which he believes that his criminal conviction could have been overturned. As a result, petitioner's arguments in the proceeding before the post-conviction court would not " have alerted the [post-conviction trial] judge and opposing counsel to the substance of the [264 Or.App. 731] position that is advanced on appeal." Taylor, 198 Or.App. at 469.
Similarly, regarding petitioner's second argument on appeal, petitioner did not argue to the post-conviction court that he will likely be foreclosed from raising claims for habeas corpus relief in federal court because he was unable to exhaust his state remedies. Thus, as with petitioner's first argument on appeal, the petitioner's arguments in the proceeding before the post-conviction court would not " have alerted the [post-conviction trial] judge and opposing counsel to the substance of the position that is advanced on appeal." Id.
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.