Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Chavez v. State

Supreme Court of Oregon

April 4, 2019

ESTEBAN CHAVEZ, Petitioner on Review,
v.
STATE OF OREGON, Respondent on Review.

          Argued and submitted March 8, 2018, at the University of Oregon School of Law, Eugene, Oregon.

          On review from the Court of Appeals Nos. (CC 111114537) (CA A151251). [*]

          Steven E. Benson, Portland, argued the cause and filed the brief for petitioner on review.

          Benjamin Gutman, Solicitor General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief was Ellen F. Rosenblum, Attorney General.

          Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn and Nelson, Justices, and Kistler and Brewer, Senior Justices pro tempore. [**]

         [364 Or. 655] Case Summary: In 2011, petitioner filed a petition for post-conviction relief from his 1999 conviction for delivering a controlled substance. He argued that his trial attorney had violated the Sixth Amendment by failing to advise him of the immigration consequences of the conviction. Petitioner relied on Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), which announced a new constitutional rule requiring defense counsel to advise non-citizen clients of the virtually inevitable immigration consequences of conviction for certain offenses. The trial court dismissed the petition on the grounds that it was time-barred by ORS 138.510(3) and that Padilla does not apply retroactively. The Court of Appeals affirmed on the latter ground. Held: The post-conviction petition was not time-barred because petitioner could not reasonably have raised his argument based on Padilla before the two-year statute of limitations in ORS 138.510(3) expired. However, petitioner's only argument that Padilla applies retroactively-that Oregon's post-conviction statutes, ORS 138.530(1) and (2), always require retroactive application of new constitutional rules-was not well taken in light of the statutes' text and context.

         The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

         [364 Or. 656] KISTLER, S. J.

         In 1999, petitioner pled guilty to delivering cocaine. In 2011, he initiated this post-conviction proceeding. Relying on Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), he alleged that his trial attorney failed to advise him about the immigration consequences of his guilty plea in violation of the Sixth Amendment. The trial court dismissed the petition both because it was untimely and because Padilla does not apply retroactively. The Court of Appeals affirmed the post-conviction court's judgment on the latter ground. Chavez v. State of Oregon, 283 Or.App. 788, 391 P.3d 801 (2017). On review, petitioner challenges both grounds that the trial court identified for dismissing his petition. We hold that, although the petition was timely, the only retroactivity argument that petitioner raises on review-that Oregon's post-conviction statutes require that all new constitutional rules be applied retroactively-is not well taken. Accordingly, we affirm the Court of Appeals decision and the trial court's judgment.

         Because the trial court granted the state's motion to dismiss the petition for post-conviction relief, we assume that the allegations in the petition are true and state the facts consistently with those allegations. In 1999, petitioner was charged with possessing and delivering cocaine. Before trial, the district attorney offered petitioner a plea deal: If petitioner would plead guilty to delivering a controlled substance, the state would dismiss the possession charge and recommend a light sentence. In discussing the plea with petitioner, petitioner's lawyer did not advise him of the immigration consequences of pleading guilty to delivering a controlled substance. However, as part of the plea deal, petitioner did read and sign a plea petition, which recited:

"I know that if I am not a United States citizen, my plea may result in my deportation from the USA, or denial of naturalization, or exclusion from future admission to the United States."

         Petitioner's attorney discounted that warning; she advised him that she "did not think [he] would be deported as a result of his guilty plea." Finally, petitioner alleges that he "has no recollection" whether the trial judge discussed the [364 Or. 657] immigration consequences of his plea with him before he pled guilty to delivering a controlled substance. Petitioner did not appeal from the resulting judgment of conviction, which became final on September 2, 1999.

         In 2011, petitioner applied to become a naturalized United States citizen. In processing his application, the Department of Homeland Security discovered that he had been convicted of delivering a controlled substance and, as a result, was subject to deportation. On November 4, 2011, petitioner filed his first petition for post-conviction relief. He alleged that the Court's 2010 decision in Padilla demonstrated that his trial attorney's advice fell below the standard that the Sixth Amendment requires. Specifically, petitioner alleged that his attorney was constitutionally deficient because she did not advise him that, if he pled guilty to delivering a controlled substance, he would almost certainly be deported.

         The state moved to dismiss the petition, and the trial court granted the motion. The trial court reasoned that the petition was time-barred because petitioner reasonably could have anticipated Padilla and alternatively that Padilla did not apply retroactively to decisions that became final before it was decided. The Oregon Court of Appeals affirmed the trial court's judgment, reasoning that the argument that petitioner advanced for applying Padilla retroactively could not be reconciled with the Court of Appeals and this court's decisions. Chavez, 283 Or.App. at 796-99.

         On review, the parties raise two issues. The first is whether the two-year statute of limitations in ORS l38.5lO(3)(a) bars petitioner's Sixth Amendment claim. The second is whether, if it does not, the Court's 2010 decision in Padilla applies retroactively to a conviction that became final in 1999. We begin with the first issue.

         I. STATUTE OF LIMITATIONS

         ORS 138.510(3) provides:

"A petition pursuant to ORS 138.510 to 138.680 must be filed within two years of the [date that the challenged conviction became final], unless the court on hearing a subsequent petition finds grounds for relief asserted which could [364 Or. 658] not reasonably have been raised in the original or amended petition."

         As this court has explained, that subsection contains both a limitations period within which a post-conviction petition must be filed (two years from the date that the conviction became final) and an escape clause (the limitation period does not apply if the grounds for relief asserted in the petition could not reasonably have been raised within the limitations period). See Bartz v. State of Oregon, 314 Or. 353, 357-58, 839 P.2d 217 (1992).

         Because petitioner filed this petition for post-conviction relief approximately 12 years after his conviction became final, ORS 138.510(3) bars his petition unless the ground for relief asserted in the petition comes within the escape clause. Generally, cases invoking the escape clause fall into one of two categories. In one, the applicable law is established within the two-year limitation period, and the question is whether the petitioner reasonably could have asserted that available legal ground for relief. Compare Gutale v. State of Oregon, 364 Or. 502, 519-20, P.3d (2019) (holding that, even though Padilla had been decided when the petitioner pled guilty, a reasonable trier of fact could find that the petitioner was not on notice that he should investigate the possibility of adverse immigration consequences within the two-year limitations period), with Bartz, 314 Or at 359-60 (holding that the petitioner should have discovered within the limitations period a statutory defense to the charge to which he pled guilty). In the other category, a new constitutional rule is announced after the two-year limitation period expired, and the question is whether that "new rule" reasonably could have been raised within the limitations period. See Verduzco v. State of Oregon, 357 Or. 553, 355 P.3d 902 (2015).

         This case falls in the latter category. Petitioner argues that, when he pled guilty in 1999, the accepted understanding was that failing to warn a defendant about the collateral consequences of a guilty plea, such as the possibility of deportation, did not constitute inadequate assistance for the purposes of the Sixth Amendment. Rather, a lawyer would fall below the standard that the [364 Or. 659] Sixth Amendment required only if he or she failed to warn a defendant about the direct consequences of a plea, such as the maximum sentence that could be imposed as a result of the plea. The state responds that, as a matter of state constitutional law, this court required lawyers to advise their clients about the immigration consequences of a guilty plea as early as 1985 and that, before the Court decided Padilla in 2010, petitioners seeking post-conviction and habeas relief had argued that their lawyers violated the Sixth Amendment by failing to advise them of the immigration consequences of their pleas. In considering the parties' arguments, we first describe briefly the state of the law before Padilla and then turn to the question whether petitioner's Sixth Amendment claim reasonably could have been raised within two years of September 2, 1999, the date his conviction became final.

         In 2006, this court explained that the Sixth Amendment required defense counsel to advise their clients of the direct but not the collateral consequences of a guilty plea. Gonzalez v. State of Oregon, 340 Or. 452, 457-58, 134 P.3d 955 (2006). As petitioner notes, the direct consequences of a plea include the maximum and mandatory minimum sentences that can be imposed as a result of the plea while the collateral consequences include deportation, the loss of a license to practice a profession, the termination of parental rights, and the like. Id. (citing Gabriel J. Chin and Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L Rev 697, 699-701 (2002)). As a result, before Padilla, the "almost unanimou[s]" rule was that a defense counsel's failure to advise a client about the immigration consequences of a guilty plea did not provide a basis for seeking state post-conviction or federal habeas relief. Chaidez v. United States, 568 U.S. 342, 350, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013).

         Oregon was an exception to that rule. In 1985, this court held that lawyers will fall below the standard that the Oregon Constitution requires if they fail to warn clients who are not United States citizens that a guilty plea "may result" in deportation and other adverse immigration consequences. Lyons v. Pearce, 298 Or. 554, 567, 694 P.2d 969 (1985). In [364 Or. 660] 2006, this court reaffirmed Lyons. Gonzalez, 340 Or at 459.[1]Specifically, it considered and rejected a claim that, in light of changes to federal immigration law in 1996, the Oregon Constitution now required lawyers to warn their clients that deportation was a virtual certainty if they pled guilty to certain enumerated crimes. Id. This court instead reaffirmed that it was sufficient under the Oregon Constitution to advise a client of the maximum collateral consequence (deportation) that "may result" from a guilty plea. Id. In reaffirming Lyons, this court recognized that, outside of Oregon, the general rule was that failing to advise a client of the immigration consequences of a plea was simply not a cognizable basis for an inadequate assistance claim. See id. at 458.

         Four years after Gonzalez, the United States Supreme Court took a different course. After noting that, as a result of changes to immigration law in 1996, deportation was "virtually inevitable" for persons convicted of a specified class of crimes, the Court turned to the issue whether failing to advise a defendant of the immigration consequences of a guilty plea could be asserted as a basis for a Sixth Amendment inadequate assistance claim. In considering that issue, the Court noted that it had never adopted a distinction between "direct" and "collateral" consequences of a plea for the purposes of the Sixth Amendment. Padilla, 559 U.S. at 365. The Court, however, found it unnecessary to decide the validity of that distinction in other contexts because it concluded that deportation, as a consequence of a criminal conviction, was sufficiently intertwined with the criminal process and sufficiently significant to a defendant considering a guilty plea to hold that the failure to advise a client of the immigration consequences of pleading guilty can violate the Sixth Amendment. Id. at 366.

         Having reached that conclusion, the Court recognized that the federal immigration laws are not always clear [364 Or. 661] regarding the immigration consequences for persons convicted of some crimes. Id. at 369. It also recognized, however, that, for persons convicted of other, specified crimes, the immigration consequences are "succinct, clear, and explicit." Id. at 368. The Court reasoned that, "when the deportation consequence [of a criminal conviction] is truly clear, as it was in this case, the duty to give correct advice is equally clear." Id. at 369. That is, when a citizen of another country is considering pleading guilty to one of the specified offenses for which removal is "virtually inevitable," constitutionally adequate defense counsel should advise their clients of that likelihood.

         Padilla altered the legal landscape in two respects. First, it departed from what had been the "almost unanimou[s]" rule that the failure to advise a client of the immigration consequences of a guilty plea will never be a cognizable basis for asserting an inadequate assistance claim under the Sixth Amendment. See Chaidez, 568 U.S. at 350. Second, Padilla imposed a higher requirement on counsel than this court had done in Lyons in 1985 and in Gonzalez in 2006. After Padilla, if the immigration consequences of pleading guilty to certain crimes are "truly clear," as they were in this case, then the Sixth Amendment requires defense counsel to advise their clients not merely that a conviction "may result" in adverse immigration consequences but that deportation and other adverse immigration consequences will be "virtually inevitable" as a result of the plea.

         With that background in mind, we turn to the state's argument that petitioner reasonably could have raised his Sixth Amendment claim within two years of the date that his conviction became final in 1999. As we explained in Verduzco, the fact that a constitutional rule has not been definitively established does not necessarily mean that that ground for relief could not reasonably have been raised:

"'The touchstone is not whether a particular question is settled, but whether it reasonably is to be anticipated so that it can be raised and settled accordingly. The more settled and familiar a constitutional or other principle on which a claim is based, the more likely the claim reasonably should have been anticipated and raised. Conversely, [364 Or. 662] if the constitutional principle is a new one, or if its extension to a particular statute, circumstance, or setting is novel, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.