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Verduzco v. State

Supreme Court of Oregon, En Banc

July 30, 2015

JOSE ANTONIO GONZALEZ VERDUZCO, Petitioner on Review,
v.
STATE OF OREGON, Respondent on Review

Argued and Submitted March 12, 2015, at the University of Oregon School of Law, Eugene

Page 903

On review from the Court of Appeals CC CV110467; CA A153165. [*]

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.

OPINION

Page 904

[357 Or. 555] KISTLER, J.

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.[1] 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.[2] Rather, petitioner continued

Page 905

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 not file a petition for certiorari with the United States Supreme Court.

While petitioner's post-conviction case was making its way through the Oregon courts, the Kentucky courts were considering a similar post-conviction petition. See Commonwealth v. Padilla, 253 S.W.3d 482 (Ky 2008). In the Kentucky case, Padilla alleged that his counsel had provided inadequate assistance in violation of the Sixth Amendment when he advised Padilla that, if Padilla pleaded guilty to trafficking in more than five pounds of marijuana, he " 'did not have to worry about [his] immigration status since he had been in th[is] country so long.'" Id. at 483 (quoting counsel's advice). The Kentucky Supreme Court rejected Padilla's Sixth Amendment claim. It held that the Sixth Amendment requires counsel to advise clients only of the

Page 906

direct consequences of their pleas. The Kentucky Supreme Court held that, because the effect of Padilla's conviction on his federal immigration status was a collateral, not a direct, consequence of his plea, the Sixth Amendment did not require

Padilla's counsel either to address that issue at all or, if counsel did address it, give Padilla accurate advice. Id. at 485. Padilla filed a petition for a writ of certiorari with the United States Supreme Court on November 14, 2008. The Court asked the State of Kentucky for a response on December 18, 2008, and it granted Padilla's petition on February 23, 2009. Padilla v. Kentucky, 555 U.S. 1169, 129 S.Ct. 1317, 173 L.Ed.2d 582 (2009).[3] In March 2010, the Court [357 Or. 559] reversed the judgment of the Kentucky Supreme Court and remanded the case for further proceedings. Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). The Court explained that, in the 1990s, Congress had eliminated a sentencing court's ability to make a binding recommendation that a person not be removed from this country as a result of his or her conviction. Id. at 363. Later, in 1996, Congress eliminated most of the Attorney General's authority to grant discretionary relief from removal. See id. at 363-64 (explaining that only remnants of that discretion remained). It followed, the Court concluded, that, for persons whose convictions fall within a class of federally defined " aggravated felonies," removal is now " practically inevitable." Id. at 364.

In considering whether the Sixth Amendment requires defense counsel to advise their clients of the immigration consequences of a plea, the Court recognized that Kentucky was " far from alone" in holding that the Sixth Amendment requires counsel to advise their clients of the direct consequences of a guilty plea but not the collateral consequences. Id. at 365 and n 9. The Court explained, however, that it had " never applied a distinction between direct and collateral consequences to define the scope of constitutionally 'reasonable professional assistance.'" Id. at 365. And, it found that, because of the unique nature of removal, there was no need to consider that distinction in deciding Padilla's case. Id. Rather, considering the close relationship between criminal convictions and removal, the significant consequences to persons who are removed, and the " weight of prevailing professional" opinion, which was that defense counsel should advise their clients of the risk of removal, the Court held that, " when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear," and the breach of that duty violates the Sixth Amendment. Id. at 366-67, 369.

In 2011, petitioner filed a second petition for post-conviction relief. He alleged that ICE had removed him from the country in July 2006. He also alleged that, as a result of the Court's 2010 decision in Padilla, he was entitled to bring a second or successive petition. On the merits of his claims, he alleged essentially the same two grounds for relief that he [357 Or. 560] had alleged in his first post-conviction petition: (1) his trial counsel had provided inadequate assistance under Article I, section 11, and the Sixth Amendment when she failed to advise him accurately of the immigration consequences of his plea; and (2) his plea was not knowing, in violation of Due Process, because the trial court had not accurately advised him of the immigration consequences of his plea.

The post-conviction court denied petitioner's second post-conviction petition, reasoning that, under state law, the petition was both successive and time-barred. The court recognized that escape clauses exist for both state procedural bars, but it reasoned that the second petition for post-conviction relief did not come within either escape clause because the grounds for relief that petitioner alleged in his second petition reasonably could have been raised (and had in fact been raised) in petitioner's first post-conviction petition.

Page 907

Petitioner appealed. On appeal, the state identified an additional procedural hurdle. It noted that, after the post-conviction court had entered its judgment, the United States Supreme Court held that Padilla does not apply retroactively to cases that became final before the date of that decision. See Chaidez v. United States, 568 U.S., 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013) (so holding). The state also noted that the Oregon Court of Appeals had held that it would follow federal retroactivity analysis and would not apply Padilla retroactively in state post-conviction proceedings. See Saldana-Ramirez v. State of Oregon, 255 Or.App. 602, 298 P.3d 59, rev den, 354 Or. 148, 311 P.3d 525 (2013) (so holding).[4] Defendant responded that, under Danforth, state courts are free to apply Padilla retroactively in post-conviction proceedings even though Chaidez had held that Padilla does not apply retroactively on federal habeas. Following its decision in Saldana-Ramirez, the Court of Appeals issued an order summarily affirming the post-conviction court's judgment.

[357 Or. 561] II. ISSUES

Before turning to the various arguments that the parties advance on review, it is helpful to identify the three issues those arguments address. Petitioner seeks to bring a collateral challenge to his 2004 state conviction based on the 2010 decision in Padilla. In doing so, he faces three potential obstacles. The first two derive from the state post-conviction act. That act provides that post-conviction petitions must be filed within two years after the challenged conviction becomes final, ORS 138.510(3),[5] and it also bars successive petitions, ORS 138.550(3). In this case, petitioner's second post-conviction petition was filed in 2011, more than seven years after his conviction for distribution became final in 2004. Moreover, because this is petitioner's second petition, it is, by definition, successive.

Both procedural bars, however, contain identically worded " escape clauses." Essentially, if petitioner could not reasonably have raised the grounds for relief alleged in his second petition either in a timely fashion or in the first petition, then those state procedural bars do not prevent petitioner from pursuing the grounds for relief alleged in his second post-conviction petition. On that issue, petitioner's argument reduces to the proposition that he could not have raised his current claims for relief until after the Court announced its decision in Padilla. It follows, he concludes, that that change in the law brings his claim within both escape clauses.

Even if petitioner passes those first two hurdles, he still faces a third. Not all changes in the law apply retroactively. Indeed, under federal law, a " new rule" will not apply retroactively to convictions that have become final unless the new rule is: (1) a " watershed rule" of criminal procedure or (2) a rule placing " conduct beyond the power of government to proscribe." Teague v. Lane, 489 U.S. 288, 311, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality) (quoting [357 Or. 562] Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in the judgments in part and dissenting in part); see Miller v. Lampert, 340 Or. 1, 125 P.3d 1260 (2006) (discussing watershed rules of criminal procedure).[6] Ordinarily, under federal law, new rules will apply only prospectively or to convictions that have not yet become final. Teague, 489 U.S. at 310.

Page 908

And, as noted above, the Court held in Chaidez that Padilla announced a " new rule" that does not apply retroactively to convictions, such as petitioner's, that became final before Padilla was decided.[7]

That is not the end of the analysis, however. As noted, the United States Supreme Court held in Danforth that states may apply new federal rules retroactively in state post-conviction proceedings even though those rules would not apply retroactively in federal habeas. Essentially, the Court held in Danforth that federal retroactivity analysis does not define the scope of the federal right. 552 U.S. at 275. Indeed, in Danforth, the Court described the federal retroactivity analysis that it had announced in Teague as an interpretation of the federal habeas statute. Id. at 278.

After Danforth, each state is free to determine when new federal rules should be applied retroactively in state post-conviction proceedings. Such determinations can include a consideration of the state's interest in the finality of convictions, the effect of the new federal right on the validity of the conviction, the need for predictable retroactivity rules, and the value of additional review. See Paul M. Bator, Finality in Criminal Law and Habeas Corpus for State Prisoners, 76 Harv L Rev 441 (1963) (discussing considerations that [357 Or. 563] can inform when courts should revisit final convictions); cf. Danforth, 552 U.S. at 273-74 (explaining that the current federal rule was adopted, among other things, to ensure predictable results). Even though we allowed review to consider when new federal rules will apply retroactively in Oregon, we conclude that this case does not provide an occasion to decide that issue. Rather, the state statutory limits on post-conviction petitions resolve petitioner's claims. We accordingly turn to those statutory limits.

III. STATE PROCEDURAL BARS

Oregon's post-conviction act has prohibited successive petitions since it was first enacted in 1959. Or. Laws 1959, ch 636, § 15(3). Section 15(3) of the 1959 act required that

" all grounds [for relief] must be asserted in [the] original or amended petition, and any grounds not so asserted are deemed waived unless the court on hearing a subsequent petition finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition."

See ORS 138.550(3) (codifying section 15(3)). Section 15(2) of the 1959 act contained a similar procedural bar. It provided that, when a petitioner had " sought and obtained direct appellate review of [a] conviction and sentence," no ground for relief could be asserted in a post-conviction petition " unless such ground was not asserted and could not reasonably have been asserted in the direct appellate review proceeding." See ORS 138.550(2) (codifying section 15(2)).[8]

Thirty years later, the legislature added another procedural bar. In 1989, the legislature provided that a petition for post-conviction relief " must be filed within 120 days" of the date that the challenged conviction became final " unless the court on hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the original or amended petition." [357 Or. 564] Or. Laws 1989, ch 1053, § 18.[9]

Page 909

Four years after that, the court expanded the time for filing a petition from 120 days to two years. Or. Laws 1993, ch 517, § 1; see ORS 138.510(3) (now codifying the two-year statute of limitations).[10]

Both ORS 138.550(3) and ORS 138.510(3) contain identically worded " escape clauses." A petition will not be untimely or successive if the grounds alleged in the petition " could not reasonably have been raised" earlier. In this case, there is no dispute that petitioner filed his second post-conviction more than two years after his 2004 conviction became final, nor is there any dispute that his second petition is successive. Rather, the dispute is whether the grounds for relief asserted in petitioner's second post-conviction petition " could not reasonably have been raised" earlier. More specifically, the question is whether petitioner could not reasonably have asserted the grounds for relief in his second post-conviction petition until after the United States Supreme Court issued its decision in Padilla in 2010.

In analyzing the two escape clauses, we start with the prohibition against successive petitions and consider it separately from the prohibition against untimely petitions. Although both clauses are worded identically, one was enacted in 1959 while the other was enacted in 1989 and modified in 1993. The contexts that preceded the two clauses differ, as do their legislative histories. We cannot assume, as the parties do, that the decision in Bartz v. State of Oregon, 314 Or. 353, 839 P.2d 217 (1992), which relied on the 1989 legislative history of ORS 138.510(3) to interpret the escape clause in that statute, necessarily governs [357 Or. 565] the interpretation of the escape clause in ORS 138.550(3), which was enacted 30 years earlier. Moreover, because the 1993 legislature discussed the escape clause at some length in deciding whether to extend the period of limitation, we also cannot assume that Bartz provides the final answer on the meaning of ORS 138.510(3), as amended in 1993. See State v. Ofodrinwa, 353 Or. 507, 530, 300 P.3d 154 (2013) (recognizing that the same phrase can have different meanings depending on differences in context and legislative history).

We accordingly turn to the text of ORS 138.550. The texts of ORS 138.550(2) and (3) express a complete thought. If a petitioner has appealed from a judgment of conviction and if the petitioner could have raised a ground for relief on direct appeal, then the petitioner cannot raise that ground for relief in a post-conviction petition " unless such ground was not asserted and could not reasonably have been asserted in the direct appellate review proceeding." ORS 138.550(2). Additionally, all grounds for relief must be raised in the original or amended petition for post-conviction relief unless the post-conviction court " on hearing a subsequent petition finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition." ORS 138.550(3). Read together, those two statutory provisions express the legislature's determination that, when a petitioner has appealed and also has filed a post-conviction petition, the petitioner must raise all grounds for relief that reasonably could be asserted. See Johnson v. Premo, 355 Or. 866, 874-75, 333 P.3d 288 (2014) (explaining that ORS 138.550(3) codifies claim preclusion principles). The failure to do so will bar a petitioner from later raising an omitted ground for relief. Id.

We also note, as an initial matter, that ORS 138.550(3) provides that all grounds for relief be must asserted in the original or amended petition " unless" the post-conviction court finds that they could not have been raised earlier. That phrasing places the burden on the petitioner to show that an omitted ground for relief comes within the escape

Page 910

clause. See Cain v. Gladden, 247 Or. 462, 464, 430 P.2d 1015 (1967) (sustaining a demurrer to a post-conviction petition because the petitioner had neither alleged nor [357 Or. 566] shown that a new ground for relief asserted in a subsequent petition could not reasonably have been raised in the original or amended petition).

Turning to the specific wording of the escape clause, we note that the legislature's use of the word " could" in ORS 138.550(3) " connotes capability, as opposed to obligation." See OR-OSHA v. CBI Services, Inc., 356 Or. 577, 589, 341 P.3d 701 (2014) (considering a similar verb phrase). That is, the word " could" asks whether a petitioner was " capable of" raising the ground for relief in the first petition that later was raised in a second petition. See id. To be sure, the adverb " reasonably" modifies the phrase, " could * * * have raised." As a result of that adverb, the 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" under the circumstances. See id. at 591 (phrase " reasonable diligence" requires a " value judgment about what is 'reasonable' and what is 'diligence' under the circumstances of each case" ).

The context provides some insight into what the use of the word " reasonably" means, most notably this court's cases interpreting ORS 138.550(2) and (3). In many of those cases, the petitioners alleged that they could not reasonably have raised a ground for relief earlier because those grounds depended on newly discovered facts. See, e.g., Cain, 247 Or. at 464; Freeman v. Gladden, 236 Or. 137, 139, 387 P.2d 360 (1963). And the question whether those new grounds for relief came within the escape clause in ORS 138.550(2) or (3) turned on whether the petitioners persuaded the post-conviction court that the facts on which their new grounds for relief depended could not reasonably have been discovered sooner.

In two cases, this court considered a claim that the petitioner could not reasonably have raised a ground for relief earlier because of changes in the law. See North v. Cupp, 254 Or. 451, 461 P.2d 271 (1969); Haynes v. Cupp, 253 Or. 566, 456 P.2d 490 (1969), overruled on other grounds, [357 Or. 567] State v. Evans, 258 Or. 437, 442, 483 P.2d 1300 (1971).[11] This court held in North that the petitioner reasonably could have raised his Fourth Amendment claim earlier but reached a different conclusion in Haynes regarding the petitioner's Sixth Amendment claim. We begin with North, which presented a relatively straightforward issue. We then turn to Haynes, which involved a more complex determination.

In North, the petitioner alleged that officers had searched his car in violation of the Fourth Amendment, but he had not raised that issue on direct appeal. This court held that ORS 138.550(2) barred his claim because he reasonably could have raised the issue earlier. The Fourth Amendment claim was fairly obvious. Officers had searched the petitioner's car without a warrant six days after they arrested him, and they found evidence in his car that later was admitted against him in his criminal trial. 254 Or. at 453-54. As the court observed, there " was nothing obscure about the law" that would have prevented the petitioner from raising the Fourth Amendment issue on direct appeal. Id. at 458. The United States Supreme Court had held a year and a half earlier in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 86 Ohio Law Abs. 513 (1961), that the Fourth Amendment applied to the states, and the challenged search was a garden variety Fourth Amendment violation. Id. [12]

Page 911

Haynes involved a more complex issue. The petitioner in Haynes alleged that police officers had interrogated him without informing him of his right to remain silent and his right to counsel in violation of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). Haynes, 253 Or. at 568. The state responded, among other things, that ORS 138.550(2) barred the petitioner from raising that ground for relief in post-conviction because he reasonably could [357 Or. 568] have raised it on direct appeal. Id. at 570. As this court explained in Haynes, the petitioner's trial and direct appeal had occurred during a period when the substantive and procedural rules governing confessions were undergoing a seismic shift.

Regarding substantive rules, the United States Supreme Court decided Escobedo as the petitioner was briefing his direct appeal and held that, when several conditions combined, the Sixth Amendment required officers to advise custodial suspects of the right to remain silent before questioning them.[13] See Haynes, 253 Or. at 570. Several months after the petitioner's direct appeal ended, this court issued an opinion in which it extended Escobedo by converting what had been a condition in Escobedo for the Sixth Amendment to attach into additional information that officers must tell custodial suspects. See id. (discussing State v. Neely, 239 Or. 487, 398 P.2d 482 (1965) (on reconsideration)).[14]

Regarding procedural rules, this court issued procedural rulings in three other cases after it decided Haynes' appeal that, if they had been available, would have permitted Haynes to challenge his confession under Escobedo and Neely.[15] First, this court held that Escobedo applied to all cases that were " being tried or upon direct appeal" when Escobedo was decided. State v. Clifton, 240 Or. 378, 380, 401 P.2d 697 (1965). Second, the court held that Neely 's later extension of Escobedo " related back" to Escobedo and applied to cases pending on direct appeal when Escobedo [357 Or. 569] was decided. Elliott v. Gladden, 244 Or. 134, 411 P.2d 287 (1966). Third, the court held that, if the defendant's criminal trial had ended before the Court decided Escobedo, the defendant could argue on direct appeal that his or her confession had been admitted in violation of Escobedo without having raised that objection at trial. Clifton, 240 Or. at 379.

Having chronicled those substantive and procedural shifts, this court rejected in one sentence the argument that the petitioner reasonably could have raised his claim under Escobedo and Neely on direct appeal. It stated: " Under these circumstances we hold that the petitioner could not have reasonably asserted this ground [that the police obtained his confession without advising him of his right to remain silent and his right to counsel in violation of Escobedo and Neely ] upon direct appeal." Haynes, 253 Or. at 571. As the court's use of the phrase " these circumstances" suggests, its holding turns on the combination of procedural and substantive changes that the court had identified in Haynes and that we have discussed above.

Page 912

North and Haynes are relevant because they mark two points on the spectrum where this court held that a ground for relief reasonably could and could not have been raised. North involved the application of settled principles to a new set of facts and tells us little about when counsel reasonably should have anticipated a ground for relief that had not yet been definitively resolved. Haynes is closer to the mark in that the petitioner's counsel in that case perhaps reasonably could have raised some of the federal substantive and state procedural issues that were being decided either during the direct appeal in that case or after it ended. However, as we read the court's holding, it was the combination of those procedural and substantive changes that persuaded the court that the petitioner in Haynes reasonably could not have raised his claim under Escobedo and Neely on direct appeal. Because of the combination and complexity of those changes, the value that Haynes provides in deciding other cases is limited.

In addition to a statute's context, we also consider its legislative history. The legislative hearings that led to the enactment of the 1959 post-conviction act do not address [357 Or. 570] this issue, nor does the commentary to the uniform act on which Oregon's post-conviction act was modeled. See Uniform Post-Conviction Procedure Act (Uniform Act), § 8 comment (1955).[16] Contemporaneous scholarly commentary, however, sheds more light on the meaning of ORS 138.550(3). Two lawyers who participated in drafting the bill that became Oregon's post-conviction act wrote a law review article shortly after the act was adopted. See Jack G. Collins and Carl R. Neil, The Oregon Postconviction-Hearing Act, 39 Or. L Rev 337 (1960). The court repeatedly has looked to their article in seeking to understand the 1959 post-conviction act. See Johnson, 355 Or. at 874-75 (looking to Collins and Neil's article to determine the context for the post-conviction act); Benson v. Gladden, 242 Or. 132, 135, 407 P.2d 634 (1965) (relying on their article to interpret the post-conviction act).

Collins and Neil recognize, as this court's cases have, that a change in the law can be sufficiently novel or unexpected that a claim based on that change can come within the escape clauses in ORS 138.550(2) and (3). They also recognize, however, that whether an issue reasonably could have been raised does not necessarily depend on whether the issue had been definitively resolved by the courts. In explaining how the escape clause in ORS 138.550(3) would work, Collins and Neil set out the following hypothetical: A petitioner was convicted in state court of a crime based on evidence obtained in violation of the federal constitution. Id. at 358. At the time of the criminal trial, the Fourteenth Amendment did not prohibit the use of that evidence in a state prosecution. Id. Two years later, the Supreme Court reversed its position and held that using that evidence in a state criminal trial violated the Fourteenth Amendment. Id. at 358-59.

Collins and Neil explain that, if a petitioner filed a post-conviction petition before the United States Supreme [357 Or. 571] Court changed its position, litigated the federal issue in post-conviction, and lost, ORS 138.550(3) would bar him from relitigating that ground for relief in a second post-conviction petition. Id. at 359. However, if the petitioner had filed a post-conviction petition before the Court changed its position and litigated other issues, the petitioner would be barred from filing a second post-conviction petition based on the Court's change of position " only if the unconstitutionality of the conviction is deemed a ground for relief which [the petitioner] could not 'reasonably' have raised in his first conviction petition." Id. Under their explanation, the Court's 2010 decision in Padilla would not permit petitioner to take advantage of the escape clause in ORS 138.550(3) because petitioner alleged that ground for relief in his first post-conviction petition, litigated it, and lost.

Page 913

Considering the text, context, and history of ORS 138.550, we conclude, as the Court of Appeals did in Long v. Armenakis, 166 Or.App. 94, 97, 999 P.2d 461 (2000), that " whether an issue reasonably could be anticipated and raised does not depend--at least not in a per se way--on whether the issue has been definitively resolved by the courts." Rather, the question whether a claim reasonably could have been raised earlier will vary with the facts and circumstances of each claim. As the Court of Appeals explained in Long :

" 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 reasonably 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."

Id. at 101 (emphasis in original; citations omitted). We cannot improve on the Court of Appeals' summary of those general principles and adopt its summary as our own.[17]

[357 Or. 572] With those principles in mind, we turn to the grounds for relief that petitioner has alleged in his second petition for post-conviction relief. As noted, petitioner alleges that his trial counsel's advice violated the Sixth Amendment because she failed to advise him that, if he pleaded guilty to distribution of a controlled substance, it was virtually inevitable that he would be removed. He also alleges that his plea was not knowing, and therefore violated the Due Process Clause, because the trial court did not give him the same advice before accepting his guilty plea.[18]

Were it not for one fact, it might be a close call whether petitioner reasonably could have raised those two grounds for relief in his first post-conviction petition. As the United States Supreme Court recognized in Padilla, Kentucky was " far from alone" in holding in 2008 that the effect of a state conviction on a defendant's immigration status was a collateral consequence of a guilty plea that did not implicate the Sixth Amendment. Padilla, 559 U.S. at 365. That is, it is fair to describe the distinction that Kentucky drew between collateral and direct consequences of a conviction as the majority view among the lower courts. See Chaidez, 133 S.Ct. at 1109 (discussing cases).

There was, of course, countervailing authority. As the Court explained in Padilla, it had " never applied a distinction between direct and collateral consequences to define the scope of constitutionally 'reasonable professional assistance' required under Strickland [.]" 559 U.S. at 365. Not only was the Sixth Amendment issue thus an open one, but federal courts of appeals had recognized for 20 years before petitioner filed his first post-conviction petition that failing to ask for a binding recommendation from a sentencing court that the defendant not be removed violated the Sixth Amendment. Id. at 362-63; see United States v. Castro, 26 F.3d 557 (5th Cir 1994); Janvier v. United States, 793 F.2d 449 (2d Cir 1986).[19] [357 Or. 573] Similarly, as the

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Court observed, " the weight of prevailing professional norms supports the view that counsel must advise her client regarding the risk of deportation." Id. at 367 (citing law review articles, treatises, and professional guidelines that predated 2006).

We need not decide whether, given that conflicting authority, petitioner reasonably could have raised the constitutional claims in his first post-conviction petition that he now raises in his second post-conviction petition. The fact is that, in this case, he did. Having raised those grounds for relief in his first post-conviction petition, he cannot claim that he could not reasonably have raised them. ORS 138.550(3); see Collins and Neil, The Oregon Postconviction-Hearing Act, 39 Or. L Rev at 359. As we understand petitioner's contrary argument, it reduces to the proposition that he could not reasonably have raised those grounds for relief until after the United States Supreme Court decided Padilla. For the reasons explained above, we do not construe the escape clause in ORS 138.550(3) that broadly. The escape clause does not preclude petitioner from relitigating only those grounds for relief that he was certain he could win when he filed his first post-conviction petition. Rather, it precludes him raising those grounds of relief that he could not reasonably have raised in his first petition.[20]

Because we hold that ORS 138.550(3) bars the claims that petitioner alleges in his second post-conviction petition, we need not decide whether ORS 138.510(3) [357 Or. 574] imposes the same or a different standard; that is, we need not decide whether the differing context and legislative history of ORS 138.510(3), which was enacted in 1989 and amended in 1993, lead to a more stringent or a more forgiving standard of reasonableness. Similarly, we do not need to decide whether we would choose to adhere to the federal standard of retroactivity or, if we were to adopt a different standard, what principles would inform it. It is sufficient in this case to hold that ORS 138.550(3) bars the grounds for relief alleged in petitioner's second post-conviction petition.

The Court of Appeals decision and the judgment of the circuit court are affirmed.


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