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Maidens v. Nooth

Court of Appeals of Oregon

September 27, 2017

RANDY LEE MAIDENS, Petitioner-Appellant,
v.
Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant-Respondent.

          Argued and submitted February 10, 2016.

         Malheur County Circuit Court 1402693P; Lung S. Hung, Judge.

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

          Dustin Buehler, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

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

         Case Summary: Petitioner appeals from a judgment dismissing his successive petition for post-conviction relief, contending that it should have been allowed under the escape clauses of ORS 138.510(3) and ORS 138.550(3) because he did not learn of the facts underlying his claims for relief until after his first post-conviction relief proceeding had concluded. Held: Because petitioner had actual knowledge of the claim asserted in his successive petition within the two-year limitation period of ORS 138.510(3), the escape clause did not apply, and the post- conviction court correctly dismissed the petition as untimely.

         [288 Or. 38]

          DEHOOG, J.

         Petitioner appeals from a judgment dismissing his successive petition for post-conviction relief. He acknowledges that his petition was untimely, but contends that it should have been allowed under the so-called "escape clauses" of ORS 138.510(3) and ORS 138.550(3) because he did not learn of the facts underlying his claims for relief until after his first post-conviction relief proceeding had concluded.[1] As explained below, we reject that contention. Accordingly, we affirm.

         The relevant facts are undisputed. In 2009, petitioner was convicted, based on his Alford pleas, [2] of three counts of first-degree sexual abuse. After his direct appeal, which became final in September 2011, petitioner filed a petition for post-conviction relief. That petition was denied in December 2012. Petitioner filed a second petition for [288 Or. 39] post-conviction relief on February 6, 2014, and amended that petition on September 23, 2014, after counsel was appointed.[3]

         As relevant to the issues presented on appeal, petitioner alleged in his successive petition that he was entitled to post-conviction relief because, as part of the plea agreement in his criminal case, the state had agreed to release a computer seized as evidence to his parents, and petitioner's "due process right to enforce the literal terms of the agreement was violated when the computer was released to [his ex-wife] instead." In an attached affidavit, petitioner averred that, in March 2013, he had asked his brother whether the Prineville Police Department had released the computer to their parents yet and learned that it had not. Petitioner then wrote to the Prineville Police Department inquiring into the status of the computer. On May 3, 2013, he received a letter in response, informing him that the computer had been released to his ex-wife several years earlier, in June 2009. Petitioner's affidavit also stated that a condition of the plea agreement had been that the computer would be released to his parents only "after [his] appeal period had run" and that the agreement placed no limit on how long his parents had to obtain the computer.

         The superintendent moved to dismiss the petition on two grounds. First, he asserted that petitioner's claim could reasonably have been raised in the original petition, and, therefore, it was barred as a successive petition under ORS 138.550(3). Second, he contended that the petition was untimely because it was filed outside the two-year limitation period set forth in ORS 138.510(3). The post-conviction court agreed with the superintendent as to both points and granted the motion to dismiss. The court subsequently entered a judgment denying petitioner's successive petition and dismissing the action with prejudice. Petitioner appeals that judgment.

         [288 Or. 40] On appeal, petitioner contends that the postconviction court erred in dismissing his successive petition because it falls within the escape clauses of ORS 138.510(3) and ORS 138.550(3). That, petitioner asserts, is because he "could not reasonably have raised the grounds for relief earlier because he did not know that the state had breached the terms of the plea deal until after his first post-conviction relief proceeding had concluded." (Emphasis added.) At oral argument, petitioner acknowledged that he knew of the alleged breach-that is, the release of the computer to his ex-wife- within two years after his direct appeal became final. He contends, however, that that fact is immaterial because, in his view, the two-year limitation period in ORS 138.510(3) does not apply to successive petitions. Thus, according to petitioner, the only inquiry is whether he reasonably could have raised his grounds for relief in his original petition, triggering ORS 138.550(3), and not whether he reasonably could have raised those grounds within the two-year limitation period. And, he asserts, he could not have raised the issue presented here in his original petition because that proceeding concluded in 2012, and he did not learn of the alleged breach until May 3, 2013, when he received the police department's letter in response to his inquiry. He argues that he should be "allowed to presume the state would comply with the plea deal" and, viewing the facts as pleaded in the petition and supporting affidavit in his favor, he "was in no position to know the facts until after 2012."

         In response, the superintendent first contends that, because petitioner had actual knowledge of his claims within the two-year limitation period, the statutory escape clause is inapplicable, and petitioner's successive petition is barred as untimely. As the superintendent explains, "[b]ecause petitioner had more than three months to file a timely successive petition for post-conviction relief before the limitations period expired, it is irrelevant that he learned about the computer's release after the court denied his initial petition." The superintendent alternatively contends that petitioner's untimely successive petition does not, in any event, fall within the narrow scope of the escape clause, because the information necessary to support petitioner's claim was reasonably available even earlier than May 2013, [288 Or. 41] when he heard back from the Prineville Police Department. The superintendent points out that the police department promptly responded to petitioner's inquiry (implying that we should infer it would have done the same if petitioner had asked about his computer earlier) and that petitioner simply could have asked his parents, after the conclusion of his direct appeal, whether they had received the computer.

         As explained below, we conclude that the two-year statute of limitations in ORS 138.510(3) is not, as petitioner contends, limited to original petitions for post-conviction relief, but also applies to successive petitions. Thus, given the fact that petitioner had actual knowledge of the claim asserted in his successive petition within the limitation period, we agree with the superintendent that the statute's escape clause is inapplicable. Accordingly, the postconviction court correctly dismissed the petition as untimely under ORS 138.510(3).[4]

         ORS 138.510(3) provides, in relevant part, that "[a] petition pursuant to [the Post-Conviction Hearing Act] must be filed within two years of the [date the appeal is final[5], unless the court on hearing a subsequent petition finds grounds for relief asserted which could not ...


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