Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lopez v. Nooth

Court of Appeals of Oregon

September 13, 2017

ADAN GODINEZ LOPEZ, aka Adan Lopez Godinez, Petitioner-Appellant,
v.
Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant-Respondent.

          Argued and submitted February 6, 2017

         Malheur County Circuit Court 12129813P; J. Burdette Pratt, Senior Judge.

          Jason 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.

          Before DeVore, Presiding Judge, and Garrett, Judge, and James, Judge. [*]

         Petitioner 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.

          [287 Or. 732] JAMES, J.

         Petitioner 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.

         Petitioner's 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.

         The 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."

         Ultimately, 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."

         [287 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.