Cunningham v. Premo, 06C12230
| Citation | 373 P.3d 1167,278 Or.App. 106 |
| Decision Date | 04 May 2016 |
| Docket Number | 06C12230,A149439. |
| Parties | Clinton CUNNINGHAM, Petitioner–Appellant, v. Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant–Respondent. |
| Court | Court of Appeals of Oregon |
278 Or.App. 106
373 P.3d 1167
Clinton CUNNINGHAM, Petitioner–Appellant
v.
Jeff PREMO, Superintendent, Oregon State Penitentiary, Defendant–Respondent.
06C12230
A149439.
Court of Appeals of Oregon.
Argued and Submitted April 4, 2014.
Decided May 4, 2016.
Andy Simrin argued the cause for appellant. With him on the brief were W. Keith Goody and Andy Simrin PC.
Kathleen Cegla, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before ARMSTRONG, Presiding Judge, and EGAN, Judge, and GARRETT, Judge.*
GARRETT, J.
This appeal concerns the denial of petitioner's third petition for post-conviction relief. Petitioner was sentenced to death in 1992 following his conviction on two counts each of first-degree rape and aggravated murder, and one count of intentional murder, for the rape and killing of a young woman. Although he confessed to the killing, petitioner has always maintained that he and the victim had consensual sex and that he did not rape her. After filing two unsuccessful petitions for post-conviction relief, as well as a petition for federal habeas corpus relief, petitioner alleged in his third post-conviction petition, among other claims, that (1) the state failed to disclose material, exculpatory evidence
in violation of his due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), (2) the withheld evidence demonstrates that he is “actually innocent” of the crime of rape (and, thus, the crime of aggravated murder predicated upon that rape), and (3) both his trial and appellate counsel were unconstitutionally inadequate for failing to raise the above Brady claim.
In a judgment dismissing the petition, the post-conviction court denied petitioner's claims because they were procedurally barred and petitioner had failed to sufficiently prove any of them. One of the procedural bars cited by the post-conviction court was the bar against successive petitions, set out in ORS 138.550(3). The court found that petitioner's claims did not fall within the statute's “escape clause”1 because those claims could reasonably have been raised in petitioner's first or second post-conviction petitions. Petitioner appeals the judgment, challenging the court's procedural and merits rulings.2 We write only to address petitioner's second assignment of error, in which he challenges
the post-conviction court's ruling that petitioner's claims were procedurally barred. As we explain below, the post-conviction court's findings are supported by the record, and the court did not err in determining that the state statutory rule against successive petitions bars all of the grounds that petitioner raised in his third petition for post-conviction relief. Accordingly, we affirm the judgment.
We review the post-conviction court's ruling for legal error. ORS 138.220 ; Montez v. Czerniak, 355 Or. 1, 8, 322 P.3d 487, adh'd to as modified on recons., 355 Or. 598, 330 P.3d 595 (2014). In doing so, we are bound by the post-conviction court's findings of fact if they are supported by evidence in the record. Id. (citing Lichau v. Baldwin, 333 Or. 350, 359, 39 P.3d 851 (2002) ). “If the post-conviction court failed to make findings of fact on all the issues—and there is evidence from which such facts could be decided more than one way—we will presume that the facts were decided consistent with the post-conviction court's conclusions of law.” Id.
I. BACKGROUND
A. The Underlying Criminal Proceedings
We take the relevant historical facts concerning the crimes, as do the parties, from the Oregon Supreme Court's opinion affirming petitioner's judgment of conviction and sentence of death. State v. Cunningham, 320 Or. 47, 880 P.2d 431 (1994), cert. den., 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995) (Cunningham I ).
On October 19, 1991, the victim was driven by her friend, Moyer, to a location north of Coos Bay. The victim intended to hitchhike from there to Eugene. On that date, petitioner and two other men, Allison and Johnson, were traveling in the Coos Bay area in a truck driven by petitioner. Petitioner displayed a knife to Johnson. The three men saw the victim hitchhiking and offered her a ride, which she accepted.
Several hours later, petitioner and the victim went to Moyer's house in petitioner's truck, where the victim introduced petitioner to Moyer. The victim told Moyer that she was going to Eugene with petitioner. Moyer observed
empty beer cans in the truck and noticed that the victim was slurring her words and was unable to walk straight. He tried to talk her out of leaving and wrote
down petitioner's name and the truck's license plate number. The victim left with petitioner.
The following day, petitioner went to Johnson's house. Allison was there. When Allison asked petitioner if he “got him some last night,” petitioner grinned. He told Allison that he had taken the victim to a friend's house. After breakfast, petitioner and Allison departed for Roseburg. On the way, petitioner threw his knife into a nearby creek, telling Allison that he did not need it anymore.
Meanwhile, that same morning, a motorist found the victim's semi-nude body in a remote wooded area. Testing revealed the presence of spermatozoa and seminal fluid in her vagina. The victim had an abrasion near her perineum, as well as a series of four abrasions along the inside of her thigh, about six inches from her vulva, suggestive of fingernail scratches. An autopsy revealed that the victim had been stabbed approximately 37 times on her face, neck, breasts, back, abdomen, and hands, causing her to die from loss of blood. According to the medical examiner, some of the wounds were “defensive wounds,” indicating that she had tried to ward off the attack, and some of the wounds may have been inflicted at a point when she no longer was able to offer any significant resistance. Some of the wounds above and around her breasts suggested “the possibility of sexual mutilation in a perimortem or postmortem context.”
The victim's pants and underwear were later found stuffed inside a bag that had been thrown into some nearby bushes. Although the victim's legs were covered with blood, the outside of her pants had little or no blood on them. The state's criminologist concluded that her pants were down or off at the time of the knife attack. Neither the pants nor underwear had sperm or seminal fluid on them.
Following news reports regarding the discovery of the victim's body, Moyer and Johnson each separately contacted the police. Moyer gave the police petitioner's name and the truck's license plate number. Petitioner was arrested several days later.
Petitioner admitted to police that he had driven the truck, picked up the victim, and met Moyer. He also admitted killing the victim, although he denied raping her. According to petitioner's account, shortly after leaving Moyer's residence for Eugene, he pulled off the road, and he and the victim had consensual sex in the truck. They then resumed driving to Eugene. After the victim angered petitioner by repeatedly turning up the volume on the radio, he pulled his truck off the road and told the victim to get out. Petitioner asserted that the victim then grabbed his knife from the dashboard or glove box and came at him, that he took the knife away from her, cutting her hand, but that she continued coming at him and that he kept pushing her away with the knife. Petitioner recalled stabbing the victim a total of “three or four times.” He stated that she fell to the ground and was having difficulty breathing and that some of her clothing came off as he dragged her to a ditch. Petitioner said that he then threw her bags into the bushes and later threw his knife into a creek and disposed of his bloody clothing in a dumpster.
Petitioner was indicted on two counts of aggravated murder, ORS 163.095, one count of intentional murder, ORS 163.115, and two counts of first-degree rape, ORS 163.375. The two aggravated murder counts were predicated, respectively, on the allegations of first-degree rape, ORS 163.095(2)(d), and petitioner's attempt to conceal that crime, ORS 163.095(2)(e).
At trial, after the state presented its case-in-chief, petitioner moved for acquittal on the aggravated murder and rape counts on the ground that there was insufficient evidence from which a jury could find beyond a reasonable doubt that petitioner had raped the victim. The trial court denied the motion, and petitioner was convicted on all counts and sentenced to death.
On direct review by the Oregon Supreme Court, petitioner argued, in relevant part,
that the trial court erred in denying his motion for judgment of acquittal....
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