Chavez v. State

• Decision Date: 23 February 2017
• Docket Number: A151251
• Citation: 283 Or.App. 788,391 P.3d 801
• Parties: Esteban CHAVEZ, Petitioner-Appellant, v. STATE of Oregon, Defendant-Respondent.
• Court: Oregon Court of Appeals

283 Or.App. 788

391 P.3d 801

Esteban CHAVEZ, Petitioner-Appellant,

v.STATE of Oregon, Defendant-Respondent.

A151251

Court of Appeals of Oregon.

Argued and submitted January 2, 2014.

February 23, 2017

Steven E. Benson argued the cause and filed the briefs for appellant.

Kathleen Cegla, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Ortega, Presiding Judge, and Duncan, Judge, and DeVore, Judge.

DUNCAN, P.J.

In this post-conviction case, petitioner alleges, based on Padilla v. Kentucky , 559 U.S. 356, 366-67, 369, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), that he was denied effective assistance of counsel because his defense attorney failed to advise him of the immigration and naturalization consequences of a guilty plea to a count of delivery of a controlled substance. The post-conviction court concluded that the petition, filed 12 years after petitioner's conviction was final, was untimely; the court further reasoned that the petition fails on the merits because Padilla does not provide a basis for relief for convictions that were final before that decision was issued. For the reasons that follow, we reject petitioner's arguments that he can prevail on the merits of his Padilla -based claim, and we affirm on that ground.¹

The backdrop of this case is an uncommonly complex weave of state and federal law. Petitioner's underlying conviction for delivery of a controlled substance was entered in 1999, but he did not file his petition for post-conviction relief until 2011, shortly after the United States Supreme Court decided Padilla , 559 U.S. at 366-67, 130 S.Ct. 1473, which held that counsel's failure to give correct advice regarding clear deportation consequences of a conviction had amounted to ineffective assistance under the Sixth Amendment to the United States Constitution. Petitioner alleged that, as in Padilla , his attorney had not advised him of the clear immigration and naturalization consequences of his plea, and that he would not have entered into the plea agreement if his attorney had told him that he would be deported, would be barred from reentering the United States, and could not become a naturalized citizen. He further alleged that, "[p]rior to the decision in Padilla , established case law prevented petitioner from reasonably raising the grounds for relief which he now asserts."

The state moved to dismiss the petition, arguing that petitioner could have anticipated Padilla and that the petition was therefore untimely. See ORS 138.510(3)(a) (requiring petitions for post-conviction relief to be filed within two years of the date of conviction unless the asserted grounds for relief "could not reasonably have been raised" in a timely manner). The state also argued that the petition fails because the procedural rule announced in Padilla "is not retroactive and does not apply to his case"—i.e. , it does not provide a basis for relief from convictions that were final before Padilla was decided. The post-conviction court agreed with both of the state's contentions, and it dismissed the petition.

Petitioner then appealed the post-conviction judgment and, in his opening brief, argued that the petition came within the exception to the two-year filing period because Padilla announced a rule of law that could not reasonably have been anticipated before that decision. As for the merits, petitioner's challenge to the court's analysis of retroactivity was two-fold and mirrored his contentions in the post-conviction court. Petitioner argued that, contrary to the post-conviction court's ruling, Padilla announced a rule that applies retroactively under the test set out in Teague v. Lane , 489 U.S. 288, 311, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality). Alternatively, petitioner argued that retroactivity principles for purposes of federal habeas relief do not constrain the ability of state courts to grant relief in post-conviction proceedings, see Danforth v. Minnesota , 552 U.S. 264, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008) (so holding), and that, as a matter of state law, Oregon's Post-Conviction Hearing Act was never intended to limit relief based on retroactivity principles.

Since petitioner filed his opening brief, there have been a number of state and federal appellate decisions bearing on his Padilla -based claim. First, in Chaidez v. United States , 568 U.S. 342, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013), the United States Supreme Court addressed one of the predicate issues in this case: whether the rule announced in Padillais retroactive under the Teague analysis. In Chaidez , the Court held that it is not: "[U]nder the principles set out in [Teague ], Padilla does not have retroactive effect." 133 S.Ct. at 1105.

Shortly thereafter, in Saldana-Ramirez v. State of Oregon , 255 Or.App. 602, 607, 298 P.3d 59, rev. den. , 354 Or. 148, 311 P.3d 525 (2013), we applied that federal retroactivity rule in a state post-conviction proceeding, holding that Chaidez "foreclosed" the petitioner's Padilla -based claim where, as in this case, the conviction became final before Padilla issued. We reasoned:

"[U]nder federal retroactivity principles as elucidated in Chaidez , Padilla does not apply to petitioner's collateral challenge. ‘[F]ederal retroactivity principles govern whether a new federal rule applies retroactively in [Oregon] court.’ Miller v. Lampert , 340 Or. 1, 7, 125 P.3d 1260 (2006) (citing Page v. Palmateer , 336 Or. 379, 385-86, 84 P.3d 133, cert. den. , 543 U.S. 866 [125 S.Ct. 205, 160 L.Ed.2d 110] (2004) ). Accordingly, we affirm."

Id. at 608, 298 P.3d 59 (bracketed material in Saldana-Ramirez ; footnote omitted). We thereby implicitly rejected another of the arguments that petitioner makes in this case: that, in light of Danforth , federal retroactivity principles have no application to Oregon post-conviction cases. That is, notwithstanding the holding in Danforth that states are free to apply their own retroactivity principles, we continued to follow Miller and Page , two cases that predated Danforth and remained the most recent pronouncements from the Oregon Supreme Court as to whether Oregon courts apply federal retroactivity principles to state post-conviction cases.² Accord Frias v. Coursey, 229 Or.App. 716, 717, 215 P.3d 874, rev. den. , 347 Or. 258, 218 P.3d 540 (2009) ("In petitioner's view, Danforth specifically calls into question the reasoning in Miller and Page. See Danforth , 128 S.Ct. at 1039 n. 14 (describing the decision in Page as ‘misguide’). Whatever the merits of petitioner's argument, it is properly addressed to the Oregon Supreme Court.").

In the wake of Saldana-Ramirez , we summarily rejected similar arguments that Padilla applies retroactively in state post-conviction proceedings. See, e.g. , Sandoval v. State of Oregon , 261 Or.App. 864, 864, 322 P.3d 1161, rev. den. , 355 Or. 668, 330 P.3d 27 (2014) (per curiam citing Saldana-Ramirez ). Then, in one of those cases, the Supreme Court allowed review specifically to address the import of Danforth . In Verduzco v. State of Oregon , 357 Or. 553, 555, 355 P.3d 902 (2015), a case in which we had summarily affirmed the post-conviction court in an order citing Saldana-Ramirez , the Supreme Court began its decision by explaining:

"In [Danforth ], the United States Supreme Court held that state courts may apply new federal constitutional rules retroactively in state post-conviction proceedings even though those rules do not apply retroactively in federal habeas corpus proceedings. We allowed review in this case to consider the principles that Oregon courts should follow in exercising the authority that Danforth recognized."

The court then described the parties' competing arguments regarding retroactivity, stating that, "[i]n Saldana-Ramirez , the Court of Appeals noted that this court's decisions before Danforth had followed federal retroactivity analysis, and the Court of Appeals signaled that it would do so too until we exercised our authority under Danforth to take a different course. See 255 Or.App. at 608, 298 P.3d 59 ; see also Frias v. Coursey , 229 Or.App. 716, 215 P.3d 874 (2009)." Verduzco , 357 Or. at 560 n. 4, 355 P.3d 902.

The court then further described the effect of Danforth :

"As noted, the United States Supreme Court held in Danforth that states may apply new federal rules retroactively in state post-conviction proceedings even though those rules would not apply retroactively in federal habeas. Essentially, the Court held in Danforth that federal retroactivity analysis does not define the scope of the federal right. 552 U.S. at 275, 128 S.Ct. 1029. Indeed, in Danforth , the Court described the federal retroactivity analysis that it had announced in Teague as an interpretation of the federal habeas statute. Id. at 278 .

"After Danforth , each state is free to determine when new federal rules should be applied retroactively in state post-conviction proceedings. Such determinations can include a consideration of the state's interest in the finality of convictions, the effect of the new federal right on the validity of the conviction, the need for predictable retroactivity rules, and the value of additional review. See Paul M. Bator, Finality in Criminal Law and Habeas Corpus for State Prisoners , 76 Harv L Rev 441 (1963) (discussing considerations that can inform when courts should revisit final convictions); cf. Danforth , 552 U.S. at 273-74 (explaining that the current federal rule was adopted, among other things, to ensure predictable results)."

357 Or. at 562-63, 355 P.3d 902.

As it turned out, however, the court did not ultimately reach the retroactivity question on which it had allowed review. Id. at 563, 355 P.3d 902 ("Even though we allowed review to consider when new federal rules will apply retroactively in Oregon, we conclude that this case does not provide an occasion to decide that issue."). Instead, ...