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White v. Premo

Supreme Court of Oregon

May 31, 2019

LYDELL MARCUS WHITE, Petitioner on Review,
v.
Jeff PREMO, Superintendent, Oregon State Penitentiary, Respondent on Review.

          Argued and submitted March 7, 2019,, at the University of Oregon School of Law, Eugene, Oregon.

          On review from the Court of Appeals. (CC 11C24315) (CA A154435) [*]

          Ryan T. O'Connor, O'Connor Weber LLC, Portland, a rg ued the cause and fled the briefs for petitioner on rev iew.

          Paul L. Smith, Deputy Solicitor 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.

          Aliza B. Kaplan, Lewis & Clark Law School, Portland, fled the brief for amici curiae Constitutional Law and Criminal Procedure Scholars.

          Alexander A. Wheatley, Fisher & Phillips, LLC, Portland fled the brief for amici curiae Lewis & Clark Law School's Criminal Justice Reform Clinic, Oregon Criminal Defense Lawyers Association, Oregon Justice Resource Center, Juvenile Law Center, and Phillips Black, Inc.

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

         [365 Or. 2] Case Summary:

         Petitioner was 15 when he and his twin brother murdered an elderly couple. Among other charges, petitioner was charged with and convicted of murder, receiving an 800-month sentence. Following the United States Supreme Court's decision in Miller v. Alabama, 567 U.S. 460 (2012), petitioner fled a petition for post-conviction relief, in which he argued that his 800-month sentence for murder is the equivalent of a life-without-parole sentence that did not comply with Miller. Specifically, petitioner argued that, to be in accord with Miller, his sentence required the trial court to determine that he was one of the rare juvenile offenders who is irreparably corrupt, a determination that the trial court did not make in petitioner's case. The post-conviction court dismissed the petition as pro-cedurally barred, and the Court of Appeals affirmed. Held: Petitioner's petition for post-conviction relief is not procedurally barred; his sentence of 800 months is subject to Miller; and the record does not establish that the trial court found petitioner to be one of the rare juvenile offenders who is irreparably corrupt.

         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.

         [365 Or. 3] WALTERS, C. J.

         In Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the United States Supreme Court determined that it is cruel and unusual punishment to sentence a juvenile to life without parole unless a court determines that the juvenile's crime does not reflect the "'transient immaturity'" of youth, but instead, demonstrates that the juvenile is "'the rare juvenile offender whose crime reflects irreparable corruption.'" Id. at 479-80 (quoting Roper v. Simmons, 543 U.S. 551, 573, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005)). In this post-conviction proceeding, petitioner, a juvenile offender, contends that the 800-month sentence he is serving for a single homicide is the functional equivalent of life without parole and was imposed without a hearing that satisfied the procedural and substantive requirements of the Eighth Amendment. For the reasons that follow, we hold that petitioner is not procedurally barred from seeking post-conviction relief and that his sentence is subject to Miller's protections. Because this record does not convince us that the sentencing court determined that petitioner's crime reflects irreparable corruption, we reverse the decisions of the Court of Appeals and the post-conviction court and remand to the post-conviction court for further proceedings.

         We begin our discussion with the fact that Miller was decided almost 20 years after petitioner and his twin brother, Laycelle, both then 15 years old, murdered an elderly couple. Petitioner was convicted of those murders in 1995, and he appealed to the Court of Appeals. That court affirmed without opinion, and this court denied review. State v. White (Lydell), 139 Or.App. 136, 911 P.2d 1287, rev den, 323 Or. 691 (1996). In 1997, petitioner filed his first petition for post-conviction relief. The post-conviction court denied relief, and, on appeal, the Court of Appeals affirmed without opinion. This court again denied review. White v. Thompson, 163 Or.App. 416, 991 P.2d 63 (1999), rev den, 329 Or. 607 (2000). Later, petitioner filed a second petition for post-conviction relief, raising a claim under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Then, in 2012, the United States Supreme Court decided Miller, and, in 2013, petitioner filed this petition for [365 Or. 4] post-conviction relief.[1] The superintendent responded with a motion for summary judgment, asserting that the petition was procedurally barred; the post-conviction court agreed and dismissed the petition. The Court of Appeals affirmed, and we allowed review. White v. Premo, 285 Or.App. 570, 397 P.3d 504 (2017), rev allowed, 363 Or. 727 (2018).

         Three procedural barriers to post-conviction relief are relevant here: a statute of limitations, a claim preclusion limitation, and a successive petition limitation. ORS 138.510(3), [2] 138.550(2), (3).[3] The petition before us now is barred by all three of those procedural limitations, unless review is permitted by what we refer to as their "escape" clauses. Each of those escape clauses permit a petitioner to bring a claim that would be procedurally barred if the "grounds" on which the petitioner relies were not asserted [365 Or. 5] and could not reasonably have been either asserted or raised in certain described circumstances.

         Petitioner argues that because Miller had not yet been decided when he filed his direct appeal and his earlier post-conviction claims, he did not assert and reasonably could not have asserted or raised the "grounds" on which he now relies in those earlier proceedings. The superintendent counters that the term "grounds" refers not to a particular legal argument, but to a general type of claim- here, a claim that a sentence imposes cruel and unusual punishment-and that petitioner asserted that type of claim on direct appeal and in his earlier post-conviction proceeding. Alternatively, the superintendent contends that, even if the term "grounds" contemplates more specificity, petitioner previously asserted a claim that was "close" to a Miller claim or reasonably could have asserted such a claim, and, therefore, his present claim is procedurally barred. As we will explain, two of our recent cases demonstrate that petitioner has the better argument.

         In the first case-Verduzco v. State of Oregon, 357 Or. 553, 355 P.3d 902 (2015)-this court considered whether the procedural bar against successive post-conviction petitions barred the petitioner's claim, and, in doing so, focused not on whether the petitioner had asserted the same general type of claim in both petitions, but, rather, on whether the petitioner had relied on the same legal rule to prove both claims of ineffective assistance of counsel. In his successive post-conviction petition, the petitioner relied on his lawyer's failure to give him the advice required by Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010): When the immigration consequences of pleading guilty to certain crimes are "'truly clear, '" defense attorneys must advise their clients that deportation and other adverse immigration consequences will be "'practically inevitable'" as a result of the plea. Verduzco, 357 Or at 559 (quoting Padilla, 559 U.S. at 364, 369). In his original petition, the petitioner did not cite Padilla because the Court had not yet decided that case, but the petitioner had alleged that his lawyer had failed to give him the very advice that the Court later required. Id. at 557-58. We concluded that the bar against successive petitions [365 Or. 6] precluded the petitioner from relitigating a virtually identical claim. Id. at 573.

         In our most recent post-conviction case, Chavez v. State of Oregon, 364 Or. 654, 438 P.3d 381 (2019), this court followed a path similar to the one it took in Verduzco, but reached a different destination. In Chavez, the petitioner, like the petitioner in Verduzco, filed a petition for post-conviction relief based on Padilla. Id. at 656. The petitioner's claim was untimely, but he argued that the escape clause applied. Id. at 658-59. The petitioner argued that Padilla had not been decided until some 12 years after his conviction and that he reasonably could not have raised a Padilla claim in the time permitted by the statute. Id. We agreed and, in doing so, said that the petitioner reasonably could not have anticipated the "ground for relief on which he later relied-the legal rule adopted in Padilla. Id. at 663. Thus, Chavez and Verduzco both demonstrate that, as used in the escape clauses in the Post-Conviction Hearings Act, the term "grounds" means the legal rule asserted as a basis for a claim, not the general nature of the claim.[4]

         We therefore turn to the superintendent's alternative argument that, even though petitioner did not cite and could not have cited the Miller rule in his previous proceedings, he previously made claims that were "close" to Miller claims or reasonably could have asserted that legal rule. Consequently, the superintendent contends, the escape clauses do not permit his current claim. Again, Chavez and Verduzco answer the argument advanced.

         In Chavez, this court discussed the reason that it reached a different result in that case than it had in Verduzco. [365 Or. 7] 364 Or at 661-63. We explained that, in Verduzco, the petitioner had "litigated a virtually identical Sixth Amendment claim at roughly the same time that Padilla was pursuing his claim"; Chavez, we said, "arises in a different posture." Id. at 662-63. In Chavez, the petitioner had never asserted a claim that was "virtually identical" to the claim that the Court later decided in Padilla, and we were not persuaded that a Padilla claim reasonably could have been raised within two years of the date that the petitioner's conviction became final-"five years before the petitioners in Verduzco and Padilla raised that claim." Id. at 663. In reaching that conclusion, we recognized that some litigants had raised Padilla-type claims before Padilla was decided, but we reasoned that the statutory question is not whether a claim conceivably could have been raised but, rather, whether it reasonably could have been raised. Id. The answer to that question, we explained, depends on where the legal rule that forms the basis for a claim lies in a continuum: "[W]hen the underlying principle is 'novel, unprecedented, or surprising,' and not merely an extension of settled or familiar rules, the more likely it becomes that the ground for relief could not reasonably have been asserted." Id.

         For the reasons that follow, we conclude that this case arises in the same posture as did Chavez. Like the petitioner in Chavez, petitioner relies on a rule articulated by the Supreme Court many years after petitioner's conviction, and petitioner did not previously litigate a "virtually identical" claim or do so "at roughly the same time" that the Supreme Court was considering that claim. And, we, like the court in Chavez, are not persuaded that petitioner reasonably could have raised a Miller claim within two years of his conviction or his later post-conviction proceedings.

         To explain why we reach that conclusion, it is necessary to briefly describe the state of the law before Miller was decided in 2012. See Chavez, 364 Or at 659-61 (describing the state of the law before Padilla was decided). In 1988, a plurality of the United States Supreme Court explained in Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 101L.Ed.2d 702 (1988), that "contemporary standards of decency" counsel against executing a person who was under 16 years of age at the time of his or her offense, and [365 Or. 8] the Court thus held that the Eighth Amendment prohibited the practice. Id. at 823, 838. A year later, in Stanford v. Kentucky,492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989), the Court also "referred to contemporary standards of decency in this country," but it reached a contrary conclusion with respect to the execution of juvenile offenders over 15 but under 18. Roper, 543 U.S. at 562. In Stanford, the Court rejected arguments that the death penalty failed to serve the legitimate goals of penology because there was evidence that juveniles possess less developed cognitive skills than adults, are less likely to fear death, and are less mature and responsible, and therefore less morally blameworthy. 492 U.S. at ...


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