ADAN GODINEZ LOPEZ, aka Adan Lopez Godinez, Petitioner-Appellant,
Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant-Respondent.
and submitted February 6, 2017
County Circuit Court 12129813P; J. Burdette Pratt, Senior
Weber argued the cause for appellant. With him on the brief
was O'Connor Weber LLP.
Peenesh Shah argued the cause for respondent. With him on the
brief were Ellen F. Rosenblum, Attorney General, and Benjamin
Gutman, Solicitor General.
DeVore, Presiding Judge, and Garrett, Judge, and James,
appeals a judgment denying his petition for post-conviction
relief, assigning error to the post-conviction court's
denial of his motion to substitute counsel. Petitioner argues
that appointed counsel was not "suitable" under ORS
138.590(4) because, upon the court's request, appointed
counsel had fled a memorandum refuting the merits of pro se
claims raised by petitioner in a motion fled pursuant to
Church v. Gladden, 244 Or. 308, 417 P.2d 993 (1966).
Held: The post-conviction court abused its
discretion in denying petitioner's motion for substitute
counsel. The court denied the request for substitute counsel
based on a mistaken premise of law concerning counsel's
obligations in response to a Church motion, and therefore, a
mistaken premise of law as to what constituted
"suitable" counsel under ORS 138.590(4).
Post-conviction counsel's fling of a motion refuting the
merits of his own client's claims rendered him
oppositional to his own client, and therefore, unsuitable.
Or. 732] JAMES, J.
appeals from a judgment denying his petition for
post-conviction relief. On appeal, he assigns error to the
post-conviction court's denial of his motion to
substitute counsel. As discussed below, we conclude that the
post-conviction court's determination that counsel was
suitable was based on an incorrect understanding of a
post-conviction counsel's obligations following the
filing of a Church motion. Church v.
Gladden, 244 Or. 308, 417 P.2d 993 (1966). Accordingly,
we reverse and remand.
post-conviction claim began with the filing of a pro
se petition. Appointed counsel filed a second amended
petition on October 2, 2013. On April 28, 2014, petitioner
filed a pro se motion, pursuant to Church,
notifying the court of 27 additional claims for relief not
raised by post-conviction counsel.
post-conviction court scheduled a hearing on petitioner's
Church motion, explaining:
"[A]s I've conducted in the past under Church v.
Gladden, I go through the-through the claims that the
petitioner wants to have filed; I ask his attorney why he has
not filed those claims; and then if the state has anything
they want to add they usually do and then I make a decision
on a claim by claim basis."
due to scheduling, rather than respond orally to the
court's request, post-conviction counsel filed a
"Response to Petitioner's Church Motion" where
counsel set out, in 27 enumerated paragraphs, a
point-for-point refutation of his own client's pro
se claims. At times, counsel's refutation is
procedural, where he claims his client did "not identify
the 'proper' argument that trial counsel should have
made." At other times, counsel attacks the merits, where
he says his client's "claim is not legally
cognizable and facially fails to state a claim." At one
point, he states that some of his client's claims are
"hopelessly vague." Finally, even though his client
claimed his innocence, and that he was not at the crime
scene, post-conviction counsel states in his response
"that petitioner may well not have been at the crime
scene, but cannot certify that there exists a good faith
basis in law or fact for this claim."
Or. 733] Following post-conviction counsel's filing of
the "Response to Petitioner's Church Motion, "
petitioner moved to have new counsel appointed. At that
hearing, postconviction counsel summarized the situation:
"My understanding of [Church] is that the court
*** says to post-conviction counsel, well why won't you
bring these claims; what is it that is not, you know,
meritorious about these claims? And I did that in writing
given the ...