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Gutale v. State

Supreme Court of Oregon

February 28, 2019

ABDALLA DAHIR GUTALE, Petitioner on Review,
v.
STATE OF OREGON, Respondent on Review.

          Argued and submitted March 7, 2018

          On review from the Court of Appeals. (CC C131617CV) (CA A155474) [*]

          Jason Weber, O'Connor Weber LLC, Portland, fled the briefs and argued the cause for petitioner on review.

          Jonathan N. Schildt, Assistant Attorney General, Salem, argued the cause and fled the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Walters, Chief Justice, and Balmer, Nakamoto, and Nelson, Justices, and Kistler, Senior Justice pro tem-pore, and Roger DeHoog, Judge of the Court of Appeals, Justice pro tempore. [**]

         Balmer, J., dissented and fled an opinion, in which Kistler, S.J., joined.

         Case Summary:

         In a petition for post-conviction relief, petitioner alleged that his trial counsel failed to inform him that there may be immigration consequences to his guilty plea. Based on that allegation, petitioner asserted that his trial counsel was constitutionally inadequate and ineffective under the state and federal constitutions. The petition was fled outside the two-year statute of limitations under ORS 138.510(3). Petitioner alleged that his petition fell within the escape clause because he learned of counsel's inadequacy only when he was placed in deportation proceedings, after the statute of limitations. The post-conviction court dismissed the petition as time-barred. The Court of Appeals affirmed, relying on Bartz v. State of Oregon, 314 Or. 353, 839 P.2d 217 (1992). Held: (1) The inquiry under the escape clause to the statute of limitations is whether a petitioner reasonably could have raised a ground for relief within the limitations period; (2) Unlike the petitioner in Bartz, petitioner's conviction may not have put him on notice of the need to investigate existence of a ground for relief, because petitioner alleged that it was the consequences of his conviction-namely, the immigration consequences-that caused him to conduct such an investigation.

         The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

         [364 Or. 504] NELSON, J.

         A petition for post-conviction relief "must be filed within two years" of the conviction becoming final, unless the petition falls within the escape clause. ORS 138.510(3). A petition falls within the escape clause if the "grounds for relief asserted * * * could not reasonably have been raised" within the limitation period. Id. This case concerns the meaning of the escape clause.

         Here, petitioner alleged in a petition for post-conviction relief that his trial counsel had failed to inform him of the immigration consequences of his guilty plea to a class A misdemeanor and, through that omission, led petitioner to believe that there would be no immigration consequences. Based on that alleged failure, petitioner asserted that his trial counsel was constitutionally inadequate and ineffective under the state and federal constitutions. See Padilla v. Kentucky, 559 U.S. 356, 369, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) (requiring counsel to inform a criminal defendant of clear immigration consequences of a plea and, where consequences are not clear, to advise that plea may carry a risk of adverse immigration consequences).

         The petition was filed outside the two-year limitations period. But petitioner alleged that his petition fell within the escape clause because he could not reasonably have known of his grounds for post-conviction relief within the limitations period. He based that allegation on the fact that neither trial counsel nor the sentencing court gave him any indication that his plea could carry immigration consequences, even when petitioner stated, on the record, that he was pleading guilty in part because he wished to travel and become a United States citizen. Petitioner alleged that he learned of counsel's inadequacy only when he was placed in deportation proceedings, after the statute of limitations had run.

         The post-conviction court dismissed the petition as time-barred under ORS 138.510(3). The Court of Appeals affirmed, based on the principle that "persons are assumed to know laws that are publicly available and relevant to them," including relevant immigration law. Gutale v. State of Oregon, 285 Or.App. 39, 42, 395 P.3d 942 (2017) (citing Bartz [364 Or. 505] v. State of Oregon, 314 Or. 353, 839 P.2d 217 (1992); Benitez-Chacon v. State of Oregon, 178 Or.App. 352, 37 P.3d 1035 (2001)). We allowed review to determine the proper meaning and scope of the escape clause. For the reasons set out below, we reverse the decisions of the post-conviction court and the Court of Appeals.

         I. BACKGROUND

         We take the historical facts from the allegations in petitioner's pleadings and attachments, including petitioner's response to the state's motion to dismiss. See Verduzco v. State of Oregon, 357 Or. 553, 555 n 1, 355 P.3d 902 (2015) (taking undisputed facts from petitioner's pleadings and attachments). Petitioner is a refugee from Somalia who arrived in the United States in 2003, when he was in his early teens. In April 2010, at the age of 20, petitioner was charged with various crimes after he was discovered in a car having sex with a 16-year-old girl. Petitioner pleaded guilty to one count of sex abuse in the third degree, a class A misdemeanor, and the remaining charges were dismissed.

         At the sentencing hearing that followed, petitioner stated that he was pleading guilty in part because he "really wan [ted to] travel" and to obtain his United States citizenship. The court sentenced petitioner to two years of probation and seven days in custody with credit for time served. The court ordered petitioner to register as a sex offender, but told him that if he successfully completed probation, it would "remove that requirement."

         Petitioner's trial counsel was required under Padilla to provide petitioner with information regarding the potential immigration consequences of his plea. Padilla was decided by the United States Supreme Court a couple of months before petitioner's sentencing. And, under ORS 135.385(2)(d), trial courts are required to inform nonciti-zen defendants who plead guilty that "conviction of a crime may result *** in deportation, exclusion from admission to the United States or denial of naturalization." Despite petitioner's statement at sentencing that he was pleading guilty so that he could travel and become a United States citizen, neither trial counsel nor the court gave petitioner any indication that his plea subjected him to immigration [364 Or. 506] consequences. Petitioner's judgment of conviction was entered on June 3, 2010.

         Just over two years later, on June 4, 2012, Immigration and Customs Enforcement (ICE) agents detained petitioner. In March 2013, petitioner filed for post-conviction relief, alleging that his trial counsel had been ineffective for failing to advise him of the immigration consequences of his plea. In an affidavit attached to his petition for post-conviction relief, he stated that his trial counsel had never discussed with him the immigration consequences of his guilty plea. At the time of his plea, petitioner was "unaware that [he] could be deported as a result of [his] sex abuse conviction." He remained "unaware that [he] could be deported until [he] was taken into ICE custody on June 4, 2012." He added, "I certainly would have filed within the two-year statute of limitations had I been informed that I could be deported as a result of my sex abuse conviction."

         The state moved to dismiss, arguing that the petition was barred by the two-year statute of limitations. Petitioner responded that he did not know that counsel had been ineffective until he was placed in deportation proceedings and learned, at that time, that he had pleaded to an offense that made him deportable. He further argued that, based on the actions of his counsel and the trial court, he had no reason to suspect either that he would suffer immigration consequences or that his counsel had failed to provide him with legally-required advice.

         At a hearing on the state's motion to dismiss, the post-conviction court made clear its view that, if petitioner's allegations were true, then he would have a strong claim for ineffective assistance of counsel under Padilla. The court nevertheless granted the state's motion, concluding that the information underlying petitioner's claim "would have been available" to petitioner because Padilla "already had been decided."[1]

         [364 Or. 507] Petitioner appealed. In considering petitioner's argument that he could not reasonably have known about his trial counsel's failings before being taken into ICE custody, the Court of Appeals relied on this court's decision in Bartz and the Court of Appeals' application of Bartz in Benitez-Chacon. In Bartz, the petitioner filed an untimely petition alleging that his trial counsel had been ineffective for "fail[ing] to advise him of an available statutory defense." 314 Or at 357. The petitioner further alleged that, based on his trial counsel's failure, he could not reasonably have known of that defense within the limitations period. This court rejected that argument. The court held that, because "it is a basic assumption of the legal system that the ordinary means by which the legislature publishes and makes available its enactments are sufficient to inform persons of statutes that are relevant to them," the statutes pertaining to the petitioner's crime of conviction "were reasonably available to [the petitioner] when his conviction became final." Id. at 359-60 (citing Dungey v. Fairview Farms, Inc., 205 Or. 615, 621, 290 P.2d 181 (1955) for proposition that "every person is presumed to know the law").

         The petitioner in Benitez-Chacon filed an untimely petition alleging that her trial counsel had "failed to inform her fully and adequately of the immigration consequences of a no contest plea." 178 Or.App. at 354. She alleged as well that, because her counsel had not fully informed her, she could not reasonably have known of the immigration consequences within the limitations period. The Court of Appeals relied on Bartz and rejected that argument. According to the Court of Appeals, "If the petitioner in Bartz was presumed to know the law based on the public nature of legislative enactments, so must petitioner in this case be presumed to have had knowledge of the relevant immigration statutes and rules." Id. at 357.

         In this case, petitioner is in essentially the same position as the petitioner in Benitez-Chacon, and he argued to the Court of Appeals that it should overrule its decision in that case. The court declined to so, concluding that the result in Benitez-Chacon was dictated by this court's decision Bartz. Gutale, 285 Or.App. at 44. The court held that [364 Or. 508] petitioner could not obtain relief from the statute of limitations because he was presumed to know the immigration law and United States Supreme Court case law that was relevant to his claim. Id. at 42-43. As a result, the Court of Appeals affirmed the post-conviction court's dismissal. Id. at 44 ("[W]e adhere to Benitez-Chacon and affirm the post-conviction court's ruling that the grounds for relief asserted in the petition do not fall within the escape clause."). Petitioner then sought review in this court, which we allowed.

         II. ANALYSIS

         Under Oregon's Post-Conviction Hearing Act (PCHA), a petitioner who has been convicted of a crime may obtain collateral relief by establishing "[a] substantial denial in proceedings resulting in petitioner's conviction * * * under the Constitution of the United States, or under the Constitution of the State of Oregon, or both, and which denial rendered the conviction void." ORS 138.530(1) (a). Post-conviction relief provides the primary mechanism by which a person who has been convicted of a crime may allege constitutional errors that were not, and could not have been, raised during the underlying criminal proceeding or on direct appeal. Those errors frequently involve allegations that counsel was unconstitutionally ineffective and inadequate in his or her handling of the criminal case.

         The PCHA generally requires that a post-conviction petitioner file a petition within two years of the date that the conviction becomes final. ORS 138.510(3). That statute of limitations, however, is subject to an escape clause. Under the escape clause, a petitioner may file an untimely petition by asserting "grounds for relief * * * which could not reasonably have been raised" within the two-year limitations period. Id.

         The parties dispute the meaning of that text and how that text was applied in Bartz. Petitioner reads Bartz as establishing a factual presumption that people know the law. According to petitioner, even if such a presumption applies, it is a presumption that may be overcome by a petitioner who establishes facts demonstrating that, within the limitations period, he or she could not reasonably have known [364 Or. 509] the law that provided the basis for the claim. And petitioner maintains that whether a petitioner reasonably should have known the law that provides the basis for a claim turns on a fact-intensive consideration of the totality of circumstances, such as whether the petitioner had access to legal sources or whether the legal basis for the claim was complicated.

         The state argues that petitioner's position is precluded by Bartz. According to the state, the standard is whether the bases for the claim-both the facts and the law-were reasonably available to the petitioner. And the state reads Bartz as holding that settled law is always reasonably available to a petitioner. Thus, under the state's reading, when the law that provides the basis for claim is settled, it is never a fact question whether that legal basis was reasonably available to a petitioner.

         Neither party gets it exactly right. As we explain below, the state is correct that the appropriate standard focuses on whether the grounds for relief were known or reasonably available to a petitioner. However, we do not read Bartz as narrowing the escape clause as much as the state maintains. We instead conclude that, when a petitioner's claim is premised on a trial counsel's failure to advise on the immigration consequences of a conviction, fact questions may still be relevant to determining whether the petitioner should have known about those immigration consequences.

         As an initial matter, we have made clear that a ground for relief reasonably could have been raised under one of two circumstances: (1) when the ground for relief was known or (2) when the ground for relief was reasonably available, despite not being known. See Verduzco, 357 Or at 566 (providing textual analysis of the phrase "could not reasonably have raised"); id. at 573 (concluding that a ground for relief was reasonably available to the petitioner because he had previously asserted that same ground for relief). Thus, a ground for relief could not reasonably have been raised earlier if the ground for relief was not known and was not reasonably available. That is true for both the factual and legal basis for a ground of relief. See Eklof v. Steward, 360 Or. 717, 734, 385 P.3d 1074 (2016) (considering whether the factual predicate of a petitioner's claim "reasonably should [364 Or. 510] have [been] discovered"); Verduzco, 357 Or at 571 (considering whether a legal claim could have been reasonably anticipated even before the legal basis for that claim was settled by the courts).

         Within that framework-which turns on whether the ground for relief was known or reasonably available- petitioner understands Bartz as addressing whether the ground for relief was known. Petitioner reads Bartz as holding that the petitioner was presumed to know the legal basis for his claim because people are presumed to know the law. To be sure, in a parenthetical citation, the court in Bartz cited Dungey for the proposition that "every person is presumed to know the law." Bartz, 314 Or at 360. And, in Benitez-Chacon, the Court of Appeals applied Bartz as presuming that people know the law: "If the petitioner in Bartz was presumed to know the law based on the public nature of legislative enactments, so must petitioner in this case be presumed to have had knowledge of the relevant immigration statutes and rules." Benitez-Chacon, 178 Or.App. at 357.

         But, notwithstanding the citation to Dungey, this court's analysis in Bartz did not turn on a presumption that people know the law. Instead of presuming that the petitioner knew the law, the court in Bartz concluded that the legal basis for the petitioner's claim was reasonably available to the petitioner. The court reached that conclusion because, if the petitioner had looked, the law could have been found in publicly available sources. As noted above, the court held that, because "it is a basic assumption of the legal system that the ordinary means by which the legislature publishes and makes available its enactments are sufficient to inform persons of statutes that are relevant to them," the statutes pertaining to the petitioner's crime of conviction "were reasonably available to [the petitioner] when his conviction became final." 314 Or at 359-60 (emphasis added). Thus, consistent with our other decisions interpreting the escape clause, the court's analysis in Bartz turned on whether the legal basis for the petitioner's claim was reasonably available to him. And the court concluded that it was.

         Nevertheless, Bartz does not control the outcome of this case in the manner that the state maintains. Being [364 Or. 511] reasonably available means more than just that a petitioner could have found the law if he or she had looked. Instead, a ground for relief is reasonably available only if there was a reason for the petitioner to look for it.

         For example, in cases where petitioners have asserted grounds for relief based on newly discovered facts, this court has considered whether "the facts on which their new grounds for relief depended could not reasonably have been discovered sooner." Verduzco, 357 Or at 566. In one such case, Eklof, the petitioner brought an untimely and successive petition for post-conviction relief, alleging that the prosecutor had withheld favorable evidence during the underlying criminal proceedings and that the fact of that withholding came to light only after the petitioner's first petition. 360 Or at 719. Specifically, after the first petition, the petitioner obtained the case file from her accomplice's trial counsel containing evidence that could have been used to impeach a witness that the state presented against the petitioner in her criminal trial. The petitioner alleged that the state violated her constitutional rights when it failed to turn over that impeachment evidence before the criminal trial. Id. at 722.

         The state argued in Eklof that, as a matter of law, the petitioner could not take advantage of the escape clause for either untimely or successive petitions because the petitioner's first post-conviction counsel had failed to request and review the case file at issue.[2] This court rejected that argument and held that whether the petitioner's first post-conviction counsel should have requested and reviewed the case file turned on whether there was information providing a reason to request and review the case file. See 360 Or at 734 ("Did petitioner's first post-conviction counsel have any information that would have revealed that the state had the evidence at issue during petitioner's criminal prosecution?"); id. at 733 (stating that the question of" [w] hether a petitioner 'reasonably could have been expected' to raise her claim in a timely initial post-conviction action often will depend on [364 Or. 512] who knew what, and when"). Thus, the petitioner's ground for relief was not barred because, although the evidence may have been available to her counsel on request, her counsel may have had no reason to suspect that the state had possession of evidence that it failed to produce.

         The resulting standard, therefore, requires assessing both whether the petitioner reasonably could have accessed the ground for relief and whether a reasonable person in the petitioner's situation would have thought to investigate the existence of that ground for relief. That standard is very similar to the standard for a discovery rule, which is used in other contexts. In negligence cases, for example, the statute of limitations does not begin until at least "the earlier of two possible events: (1) the date of the plaintiff's actual discovery of injury; or (2) the date when a person exercising reasonable care should have discovered the injury, including learning facts that an inquiry would have disclosed." Greene v. Legacy Emanuel Hospital,335 Or. 115, 123, 60 P.3d 535 (2002) (emphasis in original); see also ...


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