and submitted June 16, 2017
County Circuit Court 04C12723 Dale Penn, Judge.
J. Casey argued the cause and fled the briefs for appellant.
Timothy A. Sylwester, Assistant Attorney General, argued the
cause for respondent. With him on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
appeals a judgment granting him post-conviction relief, which
the post-conviction court entered after remand from the Court
of Appeals in Oatney v. Premo, 275 Or.App. 185, 369
P.3d 387 (2015), rev den, 359 Or. 847 (2016).
Petitioner assigns error to the post-conviction court's
failure to include in its judgment a provision prohibiting
the state from introducing on retrial certain evidence.
Petitioner argues that the doctrines of issue preclusion,
claim preclusion, and law of the case operate to prevent the
state from relitigating the admissibility of the evidence.
Held: The post-conviction court did not err. The
admissibility of evidence on retrial of the charges against
petitioner was not, and could not have been, a subject of
Or. 527] ARMSTRONG, P. J.
was convicted of aggravated murder and sentenced to death.
After his conviction and sentence were affirmed on appeal in
State v. Oatney, 335 Or. 276, 66 P.3d 475 (2003),
cert den, 540 U.S. 1151 (2004), petitioner sought
post-conviction relief on a number of grounds. Those grounds
included that his trial counsel had provided him with
constitutionally deficient legal representation by failing to
seek to exclude at petitioner's criminal trial statements
and testimony by petitioner's co-conspirator in the
murder, Johnston, that the state allegedly had obtained in
violation of an immunity agreement with petitioner. The
post-conviction court denied relief, but we reversed its
decision on appeal because we concluded that petitioner was
entitled to post-conviction relief on his first claim for
trial counsels' failure to seek to exclude Johnston's
statements and testimony. Oatney v. Premo. 275
Or.App. 185, 223, 369 P.3d 387 (2015), rev den, 359
Or. 847 (2016).
remand from our decision, petitioner sought to have the
post-conviction court include in its judgment granting
post-conviction relief a provision prohibiting Johnston from
testifying for the state on retrial of the charges against
petitioner and excluding as evidence on retrial (1)
Johnston's testimony at the first trial, (2) all
out-of-court statements made by Johnston on or after the date
of the state's immunity agreement with petitioner, and
(3) any evidence obtained or derived from the statement that
petitioner had given the state under the immunity agreement.
The post-conviction court entered a judgment on remand that
set aside petitioner's aggravated murder conviction and
death sentence but that did not include the provision that
petitioner sought restricting the evidence that could be
admitted on retrial of the charges against petitioner.
Petitioner appeals the post-conviction judgment, contending
that the post-conviction court erred in failing to include in
the judgment the provision sought by petitioner, because the
doctrines of issue preclusion, claim preclusion, and law of
the case operate to prevent the state from relitigating the
admissibility of the evidence that petitioner sought to
exclude. We conclude that [288 Or. 528] the post-conviction
court did not err in entering the judgment that it did on
remand and affirm.
conclude as we do because, had the post-conviction court
correctly reached in the first instance the conclusion that
we reached on appeal-viz., that petitioner's
trial counsel had provided petitioner with constitutionally
deficient legal representation by failing to seek to exclude
from petitioner's criminal trial the statements and
testimony by Johnston-the judgment that the post-conviction
court would have entered granting relief on that basis would
have set aside petitioner's conviction and sentence (as
the judgment does here), but it would not, and could not,
have included a provision on the admissibility of evidence on
retrial. Simply put, the admissibility of evidence on retrial
of the charges against petitioner was not, and could not have
been, a subject of post-conviction relief. To the extent that
the grant of post-conviction relief could affect the
admissibility of evidence on retrial under the doctrines of
issue and claim preclusion, as petitioner contends, that is
an issue that petitioner will have to raise with the trial
court that presides over the retrial.
took an appeal to us to establish petitioner's
entitlement to post-conviction relief for trial counsels'
failure to seek to exclude Johnston's statements and
testimony does not alter the post-conviction relief to which
petitioner is entitled. In other words, the relief to which
petitioner is legally entitled is the same whether it was
determined by the post-conviction court in the original
proceeding or by that court on remand under our direction to
grant petitioner post-conviction relief. To the extent that
the doctrines of issue preclusion, claim preclusion, and law
of the case are applicable as a result of our decision on
appeal, they are applicable upon the entry of the
judgment granting post-conviction relief, not in the
judgment granting that relief.Hence, the post-conviction court
did not err in ...