Reeves v. Nooth

• Decision Date: 07 November 2018
• Docket Number: A157444
• Citation: 294 Or.App. 711,432 P.3d 1105
• Parties: Benjie Allen REEVES, Petitioner-Appellant, v. Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant-Respondent.
• Court: Oregon Court of Appeals

294 Or.App. 711

432 P.3d 1105

Benjie Allen REEVES, Petitioner-Appellant,

v.Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant-Respondent.

A157444

Court of Appeals of Oregon.

Argued and submitted June 21, 2016.

November 7, 2018

Ryan T. O’Connor, Portland, OR, argued the cause for appellant. Also on the briefs was O’Connor Weber LLP.

Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

Steven T. Wax, Janis C. Puracal, and Aliza B. Kaplan; and Jesse Merrithew and Levi Merrithew Horst PC filed the brief amicus curiae for Oregon Innocence Project.

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

LAGESEN, J.

This case involves an untimely, successive petition for post-conviction relief in which petitioner alleges that he is "actually innocent" of most, but not all, of the offenses to which he pleaded guilty nearly 30 years ago. It requires us to consider whether a post-conviction petitioner’s claim of "actual innocence" can provide both a viable "freestanding" ground for post-conviction relief, as well as a basis for disregarding otherwise applicable legislative limitations on the availability of post-conviction relief and, if so, whether petitioner’s allegations and the attached evidence in support of his claim of "actual innocence" are sufficient to permit this proceeding to go forward. Although we do not foreclose the possibility that a claim of actual innocence might provide a basis for post-conviction relief, even in the face of apparent legislative limitations on the pursuit of such a claim, we ultimately do not reach the question because, regardless of the availability of such a claim—either as a freestanding basis for post-conviction relief or as a mechanism for excusing other procedural defaults—petitioner’s allegations and evidentiary showing of innocence fall far short of what, historically, has been required to challenge a conviction based on allegations of innocence. We therefore affirm the judgment of the post-conviction court dismissing the petition.

I. BACKGROUND

A. Underlying Charges and Trial Court Proceedings

Petitioner was indicted in June 1991 for eight crimes related to the murder of Earnest William Johnson: aggravated murder, intentional murder, felony murder (three counts), first-degree robbery, first-degree kidnapping, and second-degree assault. In September 1992, petitioner pleaded guilty to four of those charges—one of the felony murder counts, first-degree robbery, first-degree kidnapping, and second-degree assault—in exchange for dismissal of the remaining counts.

In an affidavit filed as part of the plea process, petitioner described the acts underlying his plea:

"On or about June 19, 1991, acting with four other persons, I did unlawfully and intentionally participate in the robbery by force of Earnest William Johnson, and, in the furtherance thereof, said Johnson was killed by another participant in the robbery. Further, in the course thereof, I did cause physical injury to Johnson by striking him with a metal pipe, a dangerous weapon, and said Johnson was moved with intent to interfere substantially with his personal liberty by other participants with intent to rob him after I had rendered Johnson injured by striking him with the metal pipe."

At the plea hearing, the court and the parties primarily focused on the theory that petitioner’s act of striking Johnson with the metal pipe had set in motion the events culminating in the murder. When the court asked petitioner whether he had committed the acts alleged in the murder charge, petitioner responded, "Somewhat, yeah, I guess I’m responsible in a way"; at that point, his counsel asserted that the factual recital for his plea "does adequately cover that for legal purposes."

Petitioner then explained, "On the robbery part, you know, I never took nothing from the victim at the scene. But, you know, so I’m not clear on the robbery, but I guess I’m a participant." Upon further inquiry from the court, petitioner stated that he did not know that the other participants were robbing Johnson, but he acknowledged that "[a]t some point during this whole episode" he did "realize they were robbing Mr. Johnson."

The court then inquired as to the robbery and kidnapping counts, and the discussion again turned to the degree of petitioner’s involvement in the episode. As the court described the robbery charge, petitioner’s counsel interjected that "[h]e had a metal pipe to which he hit Mr. Johnson just prior to the robbery, and was clearly an aider and abettor in the course of the robbery and did receive the fruit of the robbery following that act." Likewise, with regard to kidnapping, petitioner’s counsel explained:

"Again, if I may, Your Honor, he did not personally remove Mr. Johnson. What he did was strike him with the pipe, which made the rest of the event possible. Mr. Johnson was then moved some 60 to 100 feet, and against his will and held thereafter, being robbed, beaten, and killed by other participants."

After petitioner continued to deny that he had taken anything from Johnson at the scene or kidnapped him, he and his counsel conferred about the basis for the plea, resulting in the following exchange:

"[PETITIONER’S COUNSEL]: I’ve explained to my client that his act of striking Mr. Johnson made possible the kidnap of Mr. Johnson by the other participants, and to that extent he was aiding and abetting, and I believe he agrees with that .

"THE COURT: Do you agree with that, [petitioner]?

"[PETITIONER]: Yes sir."

(Emphasis added.)

The court then asked the prosecutor whether he believed that there was a sufficient factual basis for the plea. The prosecutor asserted that petitioner’s admissions were sufficient to establish a basis for the plea but also that petitioner was not "being fully accurate with respect to the facts he’s giving to the Court." The prosecutor then stated:

"I think he clearly was an aider and abettor from start to finish, and the amount he’s able to admit to constitutes sufficient basis for him changing his plea. But I’m not accepting his representations as being accurate with respect to the other involvement in the crime."

The court ultimately accepted petitioner’s plea to the charges and scheduled a sentencing hearing.

At sentencing, the state presented two witnesses who testified about petitioner’s involvement in the crimes. The first, who had been jailed in a holding cell with petitioner, testified that petitioner had admitted that he and four others had killed someone who had been "bullying" and "punking" petitioner at a homeless shelter where they had been staying. He testified:

"And [petitioner] explained to me they got him far enough away [from the shelter] that this fellow, who had been bullying him, had noticed he had a lead pipe. And at that time he told me that he started swinging and cracking him with it. And he said he got him and he was going to do him. And after he had started, he told me that him and these other fellows all jumped in and were all beating him, and they continued and made sure that the job was done."

The state’s next witness, Thomas Seitz, was one of the other individuals who had been charged with Johnson’s murder. Seitz had pleaded guilty to murder by that point, and he testified that he and four others—petitioner, John Soller, Scott Robinson, and Scott Chandler—had met in Portland and formed a group known as the Ranger Riders. Chandler had been the leader, and petitioner ranked third in the group. They had decided to travel south, hopped a train, and ended up in Eugene at the Mission, a homeless shelter. According to Seitz, they met Johnson at the Mission and invited him to join their group.

Seitz testified that the group left the shelter that same evening and ended up at a park by a river. At the park, Robinson approached Seitz and told him that petitioner was going to follow Johnson around a tree and hit him with a pipe, at which point the others were to grab Johnson and hold him. He testified that, about five minutes later, they carried out that plan. He watched petitioner go around a tree, saw him swing a lead pipe, and heard a smack; at that point, the others went around the tree and grabbed Johnson’s hands and feet, Chandler pulled out a knife and threatened Johnson, and they tied him up.

According to Seitz, he acted as a lookout while the others carried Johnson down to the river bank.¹ He testified that petitioner returned covered with blood, and that Soller and Chandler also returned with blood on them. Seitz explained that Johnson’s property was divided up after the murder, and that petitioner received a blue bag, some clothes, and a tarp.

After considering the evidence presented, the trial court imposed consecutive sentences on each of the four counts, for an aggregate sentence of 534 months in prison, along with lifetime post-prison supervision.²

B. Previous Post-Trial Proceedings

Petitioner filed a direct appeal, and this court affirmed. State v. Reeves , 134 Or. App. 38, 894 P.2d 1170, rev. den. , 321 Or. 284, 896 P.2d 1213 (1995). The following year, petitioner filed a petition for post-conviction relief; the court denied relief, and we affirmed that judgment. Reeves v. Armenakis , 164 Or. App. 318, 991 P.2d 66 (1999), rev. den. , 330 Or. 281, 6 P.3d 1099 (2000). Thereafter, petitioner initiated a habeas corpus proceeding in federal district court, which the court dismissed.

C. Present Post-Conviction Proceeding

In 2014, petitioner initiated the present post-conviction proceeding after obtaining an affidavit from one of his codefendants, Soller, who had been sentenced to life without the possibility of parole for his role in Johnson’s murder. In that affidavit, which was attached to the petition for relief, Soller described the circumstances of the murder as follows:

"On June 19, 1991, the five of us [Soller, petitioner, Robinson, Seitz,

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