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Gutale v. State

Court of Appeals of Oregon

April 26, 2017

ABDALLA DAHIR GUTALE, Petitioner-Appellant,
v.
STATE OF OREGON, Defendant-Respondent.

          Argued and submitted January 12, 2016

         Washington County Circuit Court C131617CV D. Charles Bailey, Jr., Judge.

          Jason Weber argued the cause for appellant. With him on the brief was O'Connor Weber LLP.

          Jonathan N. Schildt, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Paul L. Smith, Deputy Solicitor General.

          Before Duncan, Presiding Judge, and DeVore, Judge, and Flynn, Judge pro tempore.

         Case Summary:

         Case Summary: More than two years after entry of his conviction for third degree sexual abuse, petitioner filed a petition for post-conviction relief alleging that his attorney had been constitutionally inadequate in failing to advise him of the immigration consequences of his plea to that charge. The post-conviction court dismissed the petition as untimely, ruling that it did not fall within the “escape clause” of ORS 138.510(3)(a). On appeal, petitioner argues that the court's ruling regarding the escape clause was incorrect, because he could not reasonably have raised his claim of inadequate assistance until he learned, more than two years after his conviction, that he had pleaded guilty to a deportable offense. Petitioner concedes that, in Benitez-Chacon v. State of Oregon, 178 Or.App. 352, 355, 37 P.3d 1035 (2001), rev den, 334 Or 76 (2002), we held that a petitioner is presumed to know the relevant immigration laws and, consequently, a petitioner's subjective lack of awareness of the legal consequences of a plea will not delay the time in which a petition must be filed under ORS 138.510(3). But, according to petitioner, his case is distinguishable from Benitez-Chacon on the facts, because petitioner received no advice regarding immigration consequences whereas the petitioner in Benitez-Chacon was told that she might be deported; alternatively, petitioner argues that we should overrule Benitez-Chacon because, among other things, it is absurd to presume that nonlawyers would understand an area of the law as nuanced and complex as immigration law.

         Held: There is no material difference, for purposes of Benitez-Chacon, between cases in which an attorney gives some immigration advice or none at all. The Court of Appeals also declined to overrule Benitez-Chacon, which was based on Supreme Court precedent. Thus, because the relevant immigration laws and case law were publicly available to petitioner from the start of the limitations period, his claim of inadequate assistance is not one “which could not reasonably have been raised” for purposes of ORS 138.510(3), and the post-conviction court did not err in dismissing it on that ground.

         Affirmed.

          DUNCAN, P. J.

         More than two years after entry of his conviction for third-degree sexual abuse, petitioner filed a petition for post-conviction relief alleging that his attorney had been constitutionally inadequate in failing to advise him of the immigration consequences of his plea to that charge. See Padilla v. Kentucky, 559 U.S. 356, 366-67, 369, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) (holding that counsel's failure to give correct advice regarding clear deportation consequences of a conviction amounted to ineffective assistance under the Sixth Amendment to the United States Constitution). The post-conviction court dismissed the petition as untimely, ruling that it did not fall within the "escape clause" of ORS 138.510. See ORS 138.510(3)(a) (requiring petitions for postconviction 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).

         On appeal, petitioner argues that the court's ruling regarding the escape clause was incorrect, because he could not reasonably have raised his claim of inadequate assistance until he learned, more than two years after his conviction, that he had pleaded guilty to a deportable offense. Petitioner concedes that, in Benitez-Chacon v. State of Oreson, 178 Or.App. 352, 355, 37 P.3d 1035 (2001), rev den, 334 Or 76 (2002), we held that a petitioner is presumed to know immigration laws and, consequently, a petitioner's subjective lack of awareness of the legal consequences of a plea will not delay the time in which a petition must be filed under ORS 138.510(3). But, according to petitioner, his case is distinguishable from Benitez-Chacon on the facts, because petitioner received no advice regarding immigration consequences whereas the petitioner in Benitez-Chacon was told that she might be deported; alternatively, petitioner argues that we should overrule Benitez-Chacon because, among other things, it is absurd to presume that nonlawyers would understand an area of the law as nuanced and complex as immigration law. See Padilla, 559 U.S. at 369 ("Immigration law can be complex, and it is a legal specialty of its own."); Cervantes v. Ferryman, 954 F.Supp. 1257, 1260 (ND 1111997) (describing one provision of the Immigration and Nationality Act as "an example of legislative draftsmanship that would cross the eyes of a Talmudic scholar").

         We reject without extended discussion petitioner's attempt to factually distinguish Benitez-Chacon. There is no material difference, for purposes of Benitez-Chacon, between cases in which an attorney gives some immigration advice or none at all. 178 Or.App. at 356 (explaining that, in Brown v. Baldwin, 131 Or.App. 356, 361, 885 P.2d 707 (1994), rev den, 320 Or 507 (1995), "we refused to distinguish between an attorney's passive failure to inform a defendant of particular legal information and an attorney's active misrepresentation concerning the law").

         We also decline petitioner's invitation to overrule Benitez-Chacon. The principle on which Benitez-Chacon is predicated-that persons are assumed to know laws that are publicly available and relevant to them-can yield harsh consequences in cases such as this, essentially putting the burden on a petitioner to investigate the adequacy of counsel's performance. Nonetheless, we were not writing on a clean slate in Benitez-Chacon, nor do we do so now. Benitez-Chacon drew the applicable assumption from the Supreme Court's decision in Bartz v. State of Oregon, 314 Or 353, 356-60, 839 P.2d 217 (1992), which interpreted ORS 138.510(2) (1991). That statute provided that a petition "must be filed within 120 days of the following, 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." (Emphasis altered.) Relying on legislative history from 1989, Bartz held that the legislature ...


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