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Chavez v. State

Court of Appeals of Oregon

February 23, 2017

ESTEBAN CHAVEZ, Petitioner-Appellant,
v.
STATE OF OREGON, Defendant-Respondent.

          Argued and Submitted January 2, 2014

         Multnomah County Circuit Court 111114537; Cheryl A. Albrecht, Judge.

          Steven E. Benson argued the cause and fled the briefs for appellant.

          Kathleen Cegla, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

          Before Ortega, Presiding Judge, and Duncan, Judge, and DeVore, Judge.

         Case Summary: In this post-conviction case, petitioner alleges, based on Padilla v. Kentucky, 559 U.S. 356, 366-67, 369, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), that he was denied effective assistance of counsel because his defense attorney failed to advise him of the immigration and naturalization consequences of a guilty plea to a count of delivery of a controlled substance. The post-conviction court concluded that the petition, fled 12 years after petitioner's conviction was final, was untimely; the court further reasoned that the petition fails on the merits because Padilla is not "retroactive"-i.e., it does not provide a basis for relief from convictions that were final before that decision was issued. On appeal, petitioner challenges both bases of the post-conviction court's ruling. With regard to timeliness, petitioner argues that the petition comes within the exception to the two-year fling period for post-conviction claims because Padilla announced a new rule of law that could not reasonably have been anticipated before that decision. As for the issue of retroactivity, petitioner's challenge is two-fold: He argues that, contrary to the post-conviction court's ruling, Padilla announced a new rule that applies retroactively under the federal test set out in Teague v. Lane, 489 U.S. 288, 311, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality). Alternatively, he argues that the retroactivity principles described in Teague do not constrain the ability of state courts to grant relief in post-conviction proceedings and that, as a matter of state law, Oregon's Post-Conviction Hearing Act was never intended to limit relief based on retroactivity principles. Held: Petitioner failed to demonstrate any error by the post-conviction court with regard to the issue of retroactivity, making it unnecessary to address the timeliness of the petition. Petitioner's arguments regarding retroactivity under the federal test are foreclosed by Chaidez v. United States, 568 US, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013), which held that Padilla does not have retroactive effect under the principles set out in Teague. Petitioner's alternative argument-that the Post-Conviction Hearing Act precludes the application of any retroactivity test, whether announced by federal or state courts-is contrary to established case law, and petitioner failed to persuade the Court of Appeals to depart from that longstanding approach to Oregon's Post-Conviction Hearing Act.

         Affirmed.

          DUNCAN, P. J.

         In this post-conviction case, petitioner alleges, based on Padilla v. Kentucky, 559 U.S. 356, 366-67, 369, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), that he was denied effective assistance of counsel because his defense attorney failed to advise him of the immigration and naturalization consequences of a guilty plea to a count of delivery of a controlled substance. The post-conviction court concluded that the petition, filed 12 years after petitioner's conviction was final, was untimely; the court further reasoned that the petition fails on the merits because Padilla does not provide a basis for relief for convictions that were final before that decision was issued. For the reasons that follow, we reject petitioner's arguments that he can prevail on the merits of his Padilla-based claim, and we affirm on that ground.[1]

         The backdrop of this case is an uncommonly complex weave of state and federal law. Petitioner's underlying conviction for delivery of a controlled substance was entered in 1999, but he did not file his petition for post-conviction relief until 2011, shortly after the United States Supreme Court decided Padilla, 559 U.S. at 366-67, which held that counsel's failure to give correct advice regarding clear deportation consequences of a conviction had amounted to ineffective assistance under the Sixth Amendment to the United States Constitution. Petitioner alleged that, as in Padilla, his attorney had not advised him of the clear immigration and naturalization consequences of his plea, and that he would not have entered into the plea agreement if his attorney had told him that he would be deported, would be barred from reentering the United States, and could not become a naturalized citizen. He further alleged that, "[p]rior to the decision in Padilla, established case law prevented petitioner from reasonably raising the grounds for relief which he now asserts."

         The state moved to dismiss the petition, arguing that petitioner could have anticipated Padilla and that the petition was therefore untimely. See ORS 138.510(3)(a) (requiring petitions for post-conviction relief to be filed within two years of the date of conviction unless the asserted grounds for relief "could not reasonably have been raised" in a timely manner). The state also argued that the petition fails because the procedural rule announced in Padilla "is not retroactive and does not apply to his case"-i.e., it does not provide a basis for relief from convictions that were final before Padilla was decided. The post-conviction court agreed with both of the state's contentions, and it dismissed the petition.

         Petitioner then appealed the post-conviction judgment and, in his opening brief, argued that the petition came within the exception to the two-year filing period because Padilla announced a rule of law that could not reasonably have been anticipated before that decision. As for the merits, petitioner's challenge to the court's analysis of retroactivity was two-fold and mirrored his contentions in the post-conviction court. Petitioner argued that, contrary to the post-conviction court's ruling, Padilla announced a rule that applies retroactively under the test set out in Teague v. Lane, 489 U.S. 288, 311, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality). Alternatively, petitioner argued that retroactivity principles for purposes of federal habeas relief do not constrain the ability of state courts to grant relief in post-conviction proceedings, see Danforth v. Minnesota, 552 U.S. 264, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008) (so holding), and that, as a matter of state law, Oregon's Post-Conviction Hearing Act was never intended to limit relief based on retroactivity principles.

         Since petitioner filed his opening brief, there have been a number of state and federal appellate decisions bearing on his Padilla-based claim. First, in Chaidez v. United States, 568 U.S. ___, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013), the United States Supreme Court addressed one of the predicate issues in this case: whether the rule announced in Padilla is retroactive under the Teague analysis. In Chaidez, the Court held that it is not: "[U]nder the principles set out in [Teague], Padilla does not have retroactive effect." 133 S.Ct. at 1105.

         Shortly thereafter, in Saldana-Ramirez v. State of Oregon.255 Or.App. 602, 607, 298 P.3d 59, rev den, 354 Or 148 (2013), we applied that federal retroactivity rule in a state post-conviction proceeding, holding that Chaidez "foreclosed" the petitioner's Padilla-based claim where, as in this case, ...


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