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Gilderson v. Taylor

Court of Appeals of Oregon

December 28, 2017

IAN A. GILDERSON, Petitioner-Appellant,
v.
Jeri TAYLOR, Superintendent, Eastern Oregon Correctional Institution, Defendant-Respondent.

          Submitted October 31, 2017.

         Umatilla County Circuit Court CV150270; John V. Kelly, Senior Judge.

          Kenneth A. Kreuscher fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Erin K. Galli, Assistant Attorney General, fled the brief for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary: Petitioner appeals a general judgment dismissing his petition for post-conviction relief with prejudice. After court-appointed post-conviction counsel determined that the petition could not be construed to state a ground for relief, or be amended to do so, there was a hearing on the sufficiency of the petition, at which the post-conviction court entered a general judgment of dismissal with prejudice. Petitioner appeals. Held: The general judgment is a "judgment dismissing a meritless petition" within the meaning of ORS 138.525(3) and, consequently, is not appealable.

         Appeal dismissed.

         [289 Or.App. 497] LAGESEN, P. J.

         Petitioner appeals a judgment dismissing his petition for post-conviction relief with prejudice. However, the judgment is a "judgment dismissing a meritless petition" within the meaning of ORS 138.525(3).[1] Consequently, it is not appealable and we must dismiss.

         Petitioner initiated this proceeding by filing a pro se petition for post-conviction relief. The petition alleged 11 grounds on which petitioner asserted that his conviction should be set aside. The post-conviction court appointed counsel for petitioner under ORS 138.590. After evaluating the case, petitioner's post-conviction counsel filed an affidavit with the court under ORS 138.590(5)[2] representing that she had concluded that the petition could not be construed to state a ground for relief and also that it could not be amended to do so: "After careful review of the facts of this case, it is my belief that the original petition, filed by [petitioner] cannot be construed to state a ground for relief under ORS 138.510 to 138.680, nor can it be amended to state a ground for relief."

         After receiving the affidavit, the post-conviction court scheduled a hearing on the sufficiency of the petition.[3] [289 Or.App. 498] At the hearing, post-conviction counsel represented that she had looked into the matters that petitioner had asked her to explore, but was unable to submit a petition on his behalf. She noted, in particular, that the challenge that petitioner wanted to pursue with respect to Measure 11 was foreclosed by longstanding case law. The court then heard from petitioner directly, after which the court concluded that the petition should be dismissed and entered a general judgment of dismissal with prejudice. The judgment stated that "[t]he *** matter came before the Court upon an ORS 138.590(5) Affidavit."

         This appeal followed. Petitioner contends that the post-conviction court erred in dismissing 10 of his 11 alleged grounds for relief. He also asserts that the judgment entered by the post-conviction court is not in the form required by ORS 138.640(1) as construed by Datt v. Hill, 347 Or. 672, 227 P.3d 714 (2010). The superintendent first responds that the post conviction court dismissed the petition on the ground that it did not state a claim upon which relief could be granted and, for that reason, ORS 138.525 makes the judgment not appealable. Alternatively, the superintendent asserts that petitioner's claims of error are unpreserved and fail on their merits. Finally, the superintendent contends that the requirements of ORS 138.640(1) do not apply to a judgment dismissing a petition for post-conviction relief-as distinct from a judgment denying a petition for post-conviction relief-and that, in any event, the judgment of dismissal comports with ORS 138.640(1) as construed by Datt.

         We conclude that the judgment is not appealable and, for that reason, do not reach the merits of the parties' arguments regarding the correctness of the post-conviction court's ruling and the form of judgment. The sufficiency of the petition was put at issue by post-conviction counsel's ORS 138.590(5) affidavit stating that the petition could not be construed to state a ground upon which post-conviction relief could be granted and could not be amended to do so. The purpose of the hearing triggered by the affidavit [289 Or.App. 499] was for the court to evaluate whether the petition stated grounds for post-conviction relief (or could be amended to do so) after hearing from counsel and petitioner on that point. Nothing else was put at issue by counsel's affidavit under ORS 138.590(5). Under those circumstances, the court's dismissal of the petition necessarily was for failure to state a claim upon which relief may be granted because that was the only question before the court. And a dismissal of a post-conviction petition for failure to state a claim is, as a matter of law, a dismissal of the petition as meritless. ORS 138.525(2) 0"[M]eritless petition' means one that, when liberally construed, fails to state a claim upon which postconviction relief may be granted."); Young v. Hill, 347 Or. 165, 171, 218 P.3d 125 (2009). That means that the judgment is not appealable. ORS 138.525(3); Dillard v. Premo, 362 Or. 41, 47, 403 P.3d 746 (2017) (explaining the circumstances in which ORS 138.525(3) bars an appeal of a judgment dismissing a post-conviction petition);[4] Young, 347 Or at 173 ("In turn, the statute is unambiguous: petitions that fail to state a claim are meritless, and a judgment dismissing a petition as meritless is not appealable.").

         Because the judgment is not appealable, petitioner's assignments of error, including his claim that the judgment does not comport with ORS 138.640(1) as construed in Datt, are not before us on their merits. However, in furtherance of Datt's stated objective of providing clarity to the federal courts that conduct review of Oregon post-conviction judgments[5]-and because the superintendent's brief suggests [289 Or.App. 500] otherwise[6]-we observe that a judgment dismissing a postconviction petition for failure to state a claim (or as "merit-less") represents a decision on the merits of the claims alleged. As the Supreme Court explained in Young, a dismissal for failure to state a claim represents a legal conclusion that, even if the facts alleged are credited, the petitioner's claims fail as a matter of law: "Determining whether the particular allegations of a pleading state a claim entails a legal conclusion, the 'merits' of which may be debatable." 347 Or at 173. It does not represent a rejection of the petitioner's claims on procedural grounds. See Delzell v. Coursey,354 Or. 597, 597, 318 P.3d 749 (2013) (differentiating between a petition dismissed on procedural grounds as "time-barred and/or successive" and a petition dismissed as "meritless (failed to state a claim)"); Hayward v. Premo,281 Or.App. 113, 116-17, 383 P.3d 437, rev den, 360 Or. 751 (2016) (same). Inevitably, a federal court reviewing such a judgment of dismissal in a case involving federal constitutional claims is tasked with assessing whether the post-conviction court's legal conclusion that the allegations fail to state a claim "was ...


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