IAN A. GILDERSON, Petitioner-Appellant,
Jeri TAYLOR, Superintendent, Eastern Oregon Correctional Institution, Defendant-Respondent.
Submitted October 31, 2017.
County Circuit Court CV150270; John V. Kelly, Senior Judge.
Kenneth A. Kreuscher fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Erin K. Galli, Assistant Attorney General, fled
the brief for respondent.
Lagesen, Presiding Judge, and DeVore, Judge, and James,
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
Or.App. 497] LAGESEN, P. J.
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). Consequently, it is not
appealable and we must dismiss.
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) 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."
receiving the affidavit, the post-conviction court scheduled
a hearing on the sufficiency of the petition. [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
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.
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); 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.").
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-and because the superintendent's
brief suggests [289 Or.App. 500] otherwise-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 ...