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Horath v. Nooth

Court of Appeals of Oregon

December 5, 2018

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

          Submitted November 14, 2017

          Malheur County Circuit Court 15CV1087 Patricia A. Sullivan, Judge.

          Jed Peterson and O'Connor Weber LLC filed the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General, filed the brief for respondent.

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

         Case Summary:

         Petitioner initiated this post-conviction proceeding in which he alleges four claims for relief: (1) inadequate and ineffective assistance of trial counsel (claim one); (2) prosecutorial misconduct (claim two); (3) actual innocence (claim three); and (4) inadequate assistance of post-conviction counsel in his previous post-conviction proceeding (claim four). The post-conviction court, on the superintendent's motion for summary judgment, dismissed the petition as untimely and successive. The court also ruled that petitioner's claims of actual innocence, prosecutorial misconduct, and inadequate assistance were not proper bases for post-conviction relief and were subject to dismissal for that additional reason.

         Held:

         The trial court erred by granting summary judgment and dismissing petitioner's first three claims. As to claim one, under ORCP 47 C, the post-conviction court was required to view the evidence in a manner most favorable to petitioner, and was therefore not permitted to discredit petitioner's evidence as "not credible." With respect to claim two, the court's articulated bases for dismissing that claim were incorrect. As for claim three, given Reeves v. Nooth, 294 [295 Or. 164] Or.App. 711, P.3d (2018), where the Court of Appeals articulated a number of considerations regarding the availability of an actual innocence claim, the court remanded to the post-conviction court to give the parties an opportunity to address that claim in view of Reeves.

         Reversed and remanded as to claims one through three; otherwise affirmed.

         

         [295 Or.App. 165] LAGESEN, P.J.

         In 2010, petitioner pleaded guilty to one count of aggravated murder and was sentenced to life imprisonment with a 30-year minimum term of incarceration. In 2015, petitioner initiated this post-conviction proceeding-his second-in which he alleges four claims for relief: (1) inadequate and ineffective assistance of trial counsel (claim one); (2) prosecutorial misconduct (claim two); (3) actual innocence (claim three); and (4) inadequate assistance of post-conviction counsel in his previous post-conviction proceeding (claim four). On the superintendent's motion for summary judgment, the post-conviction court dismissed the petition as untimely and successive, also ruling that petitioner's claims of actual innocence, prosecutorial misconduct, and inadequate assistance were not legally proper bases for post-conviction relief and were subject to dismissal for that additional reason. For the reasons that follow, we reverse except as to the dismissal of the claim of inadequate assistance of post-conviction counsel.

         "We review the post-conviction court's grant of summary judgment to determine whether the court correctly concluded that there are no genuine issues of material fact and that [the superintendent] was entitled to judgment as a matter of law." Putnam v. Angelozzi, 278 Or.App. 384, 388, 324 P.3d 994 (2016).

         As noted, the post-conviction court's primary basis for granting summary judgment was that the petition was untimely under ORS 138.510 and successive under ORS 138.550. In opposing the superintendent's motion, petitioner did not dispute either that the petition was untimely or that it was successive. Instead, petitioner contended that he was entitled to pursue his claims under the escape clauses of ORS 138.510 and ORS 138.550, which permit a petitioner to pursue a ground for post-conviction relief in an untimely or successive petition if that ground for ...


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