Bias v. Cupp
| Decision Date | 29 January 1970 |
| Parties | Dewey Bernard BIAS, Appellant, v. Hoyt C. CUPP, Warden, Oregon State Penitentiary, Respondent. |
| Court | Oregon Court of Appeals |
J. Marvin Kuhn, Deputy Public Defender, Salem, filed the brief for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Jim G. Russell, Asst. Atty. Gen., Salem, filed the brief for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.
Petitioner appeals from an order sustaining a demurrer to his amended petition for post-conviction relief. The petition alleges nine causes of action. No reason is stated or apparent as to why the first eight of them were not raised in the unsuccessful direct appeal which defendant previously took to the Oregon Supreme Court. State v. Bias, 248 Or. 24, 432 P.2d 312 (1967).
ORS 138.550(2) provides in part:
'When the petitioner sought and obtained direct appellate review of his conviction and sentence, no ground for relief may be asserted * * * unless such ground was not asserted and could not reasonably have been asserted in the direct appellate review proceeding * * *.'
Since the petition states no reasons why these eight points were not raised on direct appeal, the demurrer was properly sustained as to them. Cain v. Gladden, 247 Or. 462, 430 P.2d 1015 (1967).
The ninth cause of action in the petition for post-conviction relief purports to be based upon the doctrine concerning police lineups enunciated by the United States Supreme Court in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). The Wade opinion was handed down on June 12, 1967, while petitioner's direct appeal (State v. Bias, supra) was pending. Even assuming, for the sake of argument, that because of the timing Bias could not reasonably have asserted the Wade-Gilbert doctrine on his direct appeal, and that the facts involved were within the Wade-Gilbert doctrine, he states no ground for relief. The Wade-Gilbert doctrine is applicable only to lineups conducted after June 12, 1967. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Petitioner was arrested, tried, convicted and sentenced over nine months prior to the time the Wade and Gilbert opinions were handed...
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