Argued and Submitted March 12, 2015, at the University of Oregon School of Law, Eugene
On review from the Court of Appeals CC CV110467; CA
Verduzco v. State, 355 Or. 879, 333 P.3d 333 (2014)
Brian Conry, Portland, argued the cause and filed the brief for petitioner on review.
Paul L. Smith, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Lindsey Burrows, Deputy Public Defender, Salem, filed the brief for amicus curiae Office of Public Defense Services.
Sara F. Werboff, Janet Hoffman & Associates, Portland, filed the brief for amici curiae Oregon Legal Academics and Oregon Justice Resource Center. With her on the brief was Christopher N. Lasch, Denver, Colorado.
Ryan T. O'Connor, Jason Weber, and Jed Peterson, O'Connor Weber LLP, Portland, filed the brief for amicus curiae O'Connor Weber LLP.
[357 Or. 555] KISTLER,
In Danforth v. Minnesota, 552 U.S. 264, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008), the United States Supreme Court held tat state courts may apply new federal constitutional rules retroactively in state post-conviction proceedings even though those rules do not apply retroactively in federal habeas corpus proceedings. We allowed review in this case to consider the principles that Oregon courts should follow in exercising the authority that Danforth recognized. However, after considering the parties' arguments, we conclude that the state statutory rule against successive petitions bars the grounds for relief that petitioner has raised in his second post-conviction petition. We accordingly affirm the Court of Appeals decision and the post-conviction court's judgment on that ground.
I. FACTS AND PROCEDURAL HISTORY
Petitioner is a citizen of Mexico and, until 2006, was a permanent legal resident of this country. In 2003, the state charged him with possession and distribution of a controlled substance after police officers found him in possession of five pounds of marijuana. For a person in petitioner's circumstances, the presumptive sentence on the distribution charge was 19 to 20 months in prison. Petitioner explained to his defense counsel that his primary goal was to avoid serving time in prison so that he could continue his job and education.
Given the likelihood of conviction and petitioner's stated goal of avoiding prison time, his defense counsel negotiated a plea deal with the prosecutor, which the trial court tentatively approved. Pursuant to that deal, petitioner agreed to plead guilty to distribution of a controlled substance, and the state agreed to dismiss the possession charge and recommend probation. In discussing the case [357 Or. 556] with petitioner, his defense counsel told him, as she told all her clients who were not United States citizens, that " the Federal Government can do whatever [it] wants to do and so [you] need to understand that [you] could be deported" as a result of pleading guilty. She later characterized her advice " as something more than 'may' be deported, but something less than 'will' be deported" as a result of a guilty plea.
In 2003, petitioner accepted the plea deal and pleaded guilty to distribution of a controlled substance. The state dismissed the possession charge, and the trial court sentenced petitioner to probation. The plea petition that petitioner signed stated: " I understand that a criminal conviction of a person who is not a United States citizen may result in deportation, exclusion from admission to the United States or denial of naturalization." Petitioner did not file a direct appeal after the trial court sentenced him on January 26, 2004, and his conviction became final when the judgment of conviction was entered on the register the next day. See ORS 138.510(3)(a) (defining when an unappealed conviction will be final for purposes of the state post-conviction act).
After petitioner's conviction became final, Immigration and Customs Enforcement (ICE) did not seek to remove petitioner from this country and return him to Mexico, even though he had pleaded guilty to an " aggravated felony" for the purposes of federal immigration law. Rather, petitioner continued
to live and work in this country until 2005, when he went on a personal trip to Mexico. When petitioner attempted to return to this country, federal immigration officials detained him at the border and then admitted him in January 2006 for a " deferred inspection" so that they could determine the effect of his state conviction.
[357 Or. 557] On January 24, 2006, slightly less than two years after his state conviction became final, petitioner filed a timely petition for post-conviction relief. See ORS 138.510(3) (post-conviction petitions must be filed within two years after the challenged conviction becomes final). Petitioner alleged 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 Immigration authorities at any time, * * * it was certain he would be deported as it is required by the Immigration and Nationality [ sic ] Act that aggravated felons be deported." He also alleged that his counsel failed to tell him that persons who commit aggravated felonies are barred from reentering the United States. Finally, he alleged that his plea was not knowing because the trial court had not informed him of those consequences before it accepted his plea.
After holding a hearing on petitioner's first post-conviction petition, the post-conviction court ruled that his counsel's advice about the immigration consequences of his guilty plea satisfied state constitutional standards. See Gonzalez v. State of Oregon, 340 Or. 452, 459, 134 P.3d 955 (2006) (under Article I, section 11, it is sufficient to advise clients that a state conviction " may result" in deportation); Lyons v. Pearce, 298 Or. 554, 567, 694 P.2d 969 (1985) (same). The post-conviction court observed that the use of the word " may" in the plea petition had, in fact, proved accurate because ICE had not removed petitioner after he pleaded guilty. Rather, petitioner had remained in this country and returned to work and school for almost two years. It was only after petitioner left the country in 2005 and then attempted to reenter the country that ICE denied him unconditional reentry.
Before the post-conviction court, petitioner argued that, even if his counsel's advice had satisfied state constitutional standards, it did not satisfy federal standards. Relying on United States v. Kwan, 407 F.3d 1005 (9th Cir 2005), he argued that his counsel's advice had fallen below the standard that the Sixth Amendment requires because his counsel had not advised him that " he had [pleaded] guilty to an offense that would almost certainly cause him [357 Or. 558] to be deported." The post-conviction court disagreed, reasoning that Kwan was limited to instances where counsel had responded to a client's questions, purported to have expertise, and had affirmatively misled the client.
The post-conviction court denied petitioner's first post-conviction petition on June 5, 2006. The Oregon Court of Appeals affirmed the post-conviction court's judgment on March 19, 2008, and this court denied his petition for review on November 26, 2008. Petitioner did ...