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Hernandez-Zurita v. State

Court of Appeals of Oregon

March 7, 2018

BALTAZAR HERNANDEZ-ZURITA, Petitioner-Appellant,
v.
STATE OF OREGON, Defendant-Respondent.

          Argued and submitted December 11, 2017

         Washington County Circuit Court A161593 Andrew Erwin, Judge.

          Jason Weber argued the cause for appellant. With him on the brief was O'Connor Weber LLC.

          Peenesh Shah, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

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

         Case Summary: In 2009, petitioner pleaded guilty to one count of unlawful delivery of methamphetamine, and the federal government deported him to Mexico. Six years later, in 2015, he fled a petition for post-conviction relief in which he alleged that he received constitutionally inadequate assistance with regard to the plea. His petition admitted that it was untimely under the two-year limitation period in ORS 138.510(3) but asserted that it satisfied the "escape clause" of that statute, which permits a late fling if the grounds alleged in the petition "could not reasonably have been raised" within the limitation period. The delay, petitioner alleged, was attributable to the obstacles he faced in obtaining legal materials or legal counsel while in Mexico. The post-conviction court dismissed the petition, ruling that the grounds for relief in the petition were based on information that existed and was publicly available from the time that petitioner's conviction was entered and that, under controlling precedent, the fact that petitioner was unable to appreciate or acted reasonably in failing to seek that information due to his personal circumstances was not sufficient to bring his petition within the escape clause. On appeal, petitioner contends that that precedent was wrongly decided and has been called into question by the Supreme Court's decision in Verduzco v. State of Oregon, 357 Or. 553, 355 P.3d 902 (2015).

         [290 Or.App. 622] Held: Verduzco did not directly or indirectly overrule the line of Court of Appeals cases holding that the applicability of the escape clause in ORS 138.510(3) turns on whether the information pertinent to a petitioner's claims was available, and not on whether a petitioner's failure to access that information was reasonable; nor did petitioner demonstrate that those Court of Appeals cases were plainly wrong. Accordingly, the Court of Appeals adhered to the reasoning of those cases and held that petitioner failed to allege facts sufficient to bring his petition within the escape clause of ORS 138.510(3).

         [290 Or.App. 623] LAGESEN, P. J.

         In 2009, petitioner pleaded guilty to one count of unlawful delivery of methamphetamine. The federal government then deported him to Mexico. Six years later, in 2015, he filed a petition for post-conviction relief in which he alleged that he received constitutionally inadequate assistance with regard to the plea. His petition admitted that it was untimely under the two-year limitation period in ORS 138.510(3) but asserted that it satisfied the "escape clause" of that statute, which permits a late filing if the grounds alleged in the petition "could not reasonably have been raised" within the limitation period. The delay, petitioner alleged, was attributable to the obstacles he faced in obtaining legal materials or legal counsel while in Mexico. Applying this court's precedent, the post-conviction court dismissed the petition, ruling that the grounds for relief in the petition were based on information that existed and was publicly available from the time that petitioner's conviction was entered and that, under controlling precedent, the fact that petitioner was unable to appreciate or reasonably failed to seek that information due to his personal circumstances was not sufficient to bring his petition within the escape clause. Although petitioner contends that that precedent was wrongly decided and has been called into question by a later Supreme Court decision, we decline to overrule it and, therefore, affirm.

         I. BACKGROUND

         The criminal charges underlying this postconviction case were filed in December 2008, after police stopped petitioner's car for a traffic infraction and discovered methamphetamine during an ensuing search of the car. Petitioner was charged with one count of unlawful delivery of methamphetamine and one count of unlawful possession of methamphetamine, both felonies. The following month, he pleaded guilty to unlawful delivery and was sentenced to three months' probation; the charge of unlawful possession was dismissed. The judgment of conviction was entered in Washington County in January 2009, and petitioner did not appeal.

         [290 Or.App. 624] Petitioner, who was a Mexican citizen, was released immediately after sentencing into the custody of Immigration and Customs Enforcement (ICE), and he was deported to Mexico in March 2009. Petitioner eventually reentered the United States, and he was taken into ICE custody in September 2014.

         In January 2015, petitioner initiated these postconviction proceedings, alleging various grounds on which his trial counsel had been constitutionally deficient when representing him in connection with the drug charges. Petitioner acknowledged that his petition had not been filed within the two-year limitation period set forth in ORS 138.510(3), but he alleged that his delay in filing was excusable due to his circumstances after being deported. Specifically, he alleged that it would have been extraordinarily difficult for someone in his position-indigent, functionally illiterate, unable to speak English, and residing in a rural part of Mexico-to initiate post-conviction proceedings in Washington County. Additionally, he alleged, he had been in hiding during his time in Mexico because of threats on his life by a drug cartel, providing a further obstacle to his timely filing.

         According to petitioner, it was not until after speaking with an immigration attorney, upon being taken into ICE custody in September 2014, that petitioner discovered the immigration consequences of his conviction for delivery of a controlled substance-namely, that the conviction would prevent him from obtaining asylum or gaining legal status in the United States. (Petitioner explained that he previously believed that he had been deported in 2009 as a consequence of his illegal entry into the United States, and not as a consequence of his conviction.)

         Petitioner also attached to the petition two additional declarations describing obstacles that he faced in filing for post-conviction relief from Mexico. The first was from one of petitioner's friends, Marisela Reyna Mandujano, who described her efforts on petitioner's behalf to obtain information on filing for post-conviction relief, including efforts to obtain information from the Washington County Courthouse. The second declaration came from Eidar Gonzales, a private investigator who described his own [290 Or.App. 625] efforts to obtain information about the post-conviction process, including contacting the Mexican consulate, contacting the United States Embassy in Mexico, emailing and calling attorneys in Mexico, and searching online for forms that would assist someone in filing for post-conviction relief. In the declaration, Gonzales opined that "it would be virtually impossible for a deported, Mexican born, Mexican educated, indigent, Spanish speaking only, 5th grade ...


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