Eklof v. Persson

• Decision Date: 18 November 2020
• Docket Number: A167037
• Citation: 477 P.3d 1215,307 Or.App. 585
• Parties: Karlyn EKLOF, Petitioner-Appellant, v. Rob PERSSON, Superintendent, Coffee Creek Correctional Facility, Defendant-Respondent.
• Court: Oregon Court of Appeals

307 Or.App. 585

477 P.3d 1215

Karlyn EKLOF, Petitioner-Appellant,

v.Rob PERSSON, Superintendent, Coffee Creek Correctional Facility, Defendant-Respondent.

A167037

Court of Appeals of Oregon.

Argued and submitted December 6, 2019.

November 18, 2020

Lindsey Burrows argued the cause for appellant. Also on the briefs was O'Connor Weber LLC.

Jordan R. Silk, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.

AOYAGI, J.

Petitioner appeals a judgment denying post-conviction relief. In her first assignment of error, she claims that the post-conviction court abused its discretion when it denied her motion for leave to amend her petition for post-conviction relief. For the reasons explained below, we conclude that the court did not abuse its discretion in denying leave to amend. In her second assignment of error, petitioner challenges the admission of a particular exhibit during her post-conviction trial; we reject that assignment without written discussion. Accordingly, we affirm.

FACTS

Petitioner was convicted of aggravated murder in 1995 and sentenced to life in prison without the possibility of parole. After an unsuccessful appeal and an unsuccessful timely petition for post-conviction relief, petitioner filed a successive petition for post-conviction relief in 2012, which she later amended twice.

In her second amended petition (the operative petition), petitioner alleged that her trial counsel provided inadequate and ineffective assistance with respect to a particular jury instruction (first claim) and that she was denied due process as a result of Brady violations related to trial witnesses John Distabile and David Tiner (second claim). See Brady v. Maryland , 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) (a prosecutor's withholding of favorable evidence from a criminal defendant "violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution"). The post-conviction court granted summary judgment to the superintendent on both claims. On appellate review, the Supreme Court reversed the summary judgment ruling on the second claim and remanded for further proceedings. Eklof v. Steward , 360 Or. 717, 737, 385 P.3d 1074 (2016).

On remand, petitioner moved for leave to amend her petition for a third time, seeking, as relevant here, to allege additional Brady violations related to trial witnesses Alven Hope, Jerry Smith, and John Distabile.¹ As to Hope, petitioner sought to allege that the prosecution had withheld evidence that, at the time of petitioner's trial, Hope was under investigation for child sexual abuse and possession of child pornography, that Hope had prior convictions for robbery and interference, and that Hope had told the police a different story about how he acquired the murder weapon than what he testified at petitioner's trial. As to Smith, petitioner sought to allege that the prosecution had withheld evidence that Smith had a reputation in the community for dishonesty. As to Distabile, petitioner sought to allege that the prosecution had withheld a letter from Distabile's attorney to the prosecutor offering Distabile's cooperation in exchange for transactional immunity.

With respect to the timing of her claims, petitioner alleged at the end of her proposed third amended petition that she "could not reasonably have raised the above grounds for relief at her criminal trial, on direct appeal, during the two-year statute of limitations, or in her first post-conviction proceeding, because neither the Lane County District Attorney nor the Oregon Department of Justice disclosed the above described (and attached) evidence to petitioner during any of those proceedings."

The superintendent opposed petitioner's motion, arguing that four pertinent factors weighed against allowing leave to amend. See Ramsey v. Thompson , 162 Or. App. 139, 145, 986 P.2d 54 (1999), rev. den. , 329 Or. 589, 994 P.2d 130 (2000) (identifying four factors relevant to the court's exercise of discretion). With respect to one factor, the colorable merit of the proposed amendments, the superintendent brought to the court's attention statements that petitioner had made in her original 1999 post-conviction proceeding and in a 2004 federal habeas proceeding, as showing that petitioner had raised or could have raised her new Brady allegations in her original post-conviction proceeding. The materials provided by the superintendent showed that petitioner had offered Distabile's attorney's letter as an exhibit in the 1999 proceeding, had cited the Distabile letter in the 2004 proceeding, had raised Smith's alleged reputation for dishonesty in both the 1999 and 2004 proceedings, and had made statements in the 2004 proceeding that revealed that she was aware of or had learned of the Hope evidence while the 1999 proceeding was ongoing. The superintendent argued that petitioner's own statements in prior legal proceedings showed that her amended Brady claim was not colorable in a successive petition.

For all of the reasons argued by the superintendent, the post-conviction court denied petitioner's motion for leave to amend her post-conviction petition. Petitioner proceeded to trial on her second amended petition and was denied post-conviction relief. Petitioner appeals the resulting judgment, challenging the post-conviction court's denial of her motion for leave to amend.

ANALYSIS

Under ORCP 23 A, a party may amend a pleading once within a certain time as a matter of course. Otherwise, a party may amend only by leave of the court or by written consent of the adverse party. ORCP 23 A. Here, petitioner sought to file a third amended petition over the superintendent's objection, so she could amend only by leave of the post-conviction court. See Young v. Hill , 347 Or. 165, 171, 218 P.3d 125 (2009) (recognizing that, except as otherwise provided in the post-conviction statutes, the Oregon Rules of Civil Procedure apply in post-conviction proceedings). The court denied such leave.

We review a post-conviction court's denial of leave to amend a petition for abuse of discretion. Ramsey , 162 Or. App. at 144, 986 P.2d 54. In doing so, we recognize that the post-conviction court has "broad discretion with respect to amendment of post-conviction pleadings," but we also recognize that "the exercise of that discretion should comport with ORCP 23 A's directive that leave to amend ‘shall be freely given when justice so requires.’ " Id . (quoting ORCP 23 A; other internal quotation marks omitted).

We have previously identified four considerations relevant to a post-conviction court's exercise of discretion whether to allow amendment: (1) the nature of the proposed amendments and their relationship to the existing pleadings; (2) the prejudice, if any, to the opposing party; (3) the timing of the proposed amendments and related docketing concerns; and (4) the colorable merit of the proposed amendments. Ramsey , 162 Or. App. at 145, 986 P.2d 54. Those factors are nonexclusive. Field v. Myrick , 299 Or. App. 634, 640, 449 P.3d 895 (2019). They also are not required to be given equal weight. Day v. Day , 299 Or. App. 460, 478, 450 P.3d 1 (2019) (rejecting an argument that the trial court necessarily abused its discretion in denying leave to amend if three of the four Ramsey factors favored granting leave to amend, because we do not "mechanically count" Ramsey factors to determine whether the court abused its discretion).

In this case, the superintendent argued that all four Ramsey factors weighed against allowing amendment, and the post-conviction court adopted the superintendent's reasoning in denying leave to amend. On appeal, petitioner argues that the court erred in its analysis of all four factors, while the superintendent focuses on the fourth factor, which he views as dispositive regardless of the other factors. Even though the superintendent, as respondent, focuses on one factor, we consider all of the factors on which the post-conviction court relied in deciding whether the court abused its discretion. We therefore consider each Ramsey factor.

The post-conviction court did not err by agreeing with the superintendent that the nature of the proposed amendments and their relationship to the existing pleadings disfavored amendment, at least with respect to the alleged Brady violations related to Hope and Smith. Although petitioner had already pleaded a Brady claim in the operative petition, the new allegations would have injected new issues related to two entirely different witnesses and, as petitioner acknowledges, would have required new discovery. See Day , 299 Or. App at 479, 450 P.3d 1. The timing of the proposed amendments and related docketing concerns also weighed at least somewhat against amendment. Petitioner filed her successive petition in 2012, she moved to amend her petition for the third time in 2017, and the case was scheduled to go to trial (and did go to trial) only two months after the hearing on the motion. Cf. Downs v. Waremart, Inc. , 137 Or. App. 119, 140-41, 903 P.2d 888 (1995), rev'd. in part on other grounds , 324 Or. 307, 926 P.2d 314 (1996) ("Given the age of the case and the proximity of the trial date, we conclude that the trial court did not abuse its discretion in denying leave to amend.").

As for prejudice, having to prepare additional defenses is not the type of prejudice contemplated by Ramsey . "[G]eneral consequences that tend to accompany any amendment are not prejudice of a sort that weighs against allowing an amendment under ORCP 23 A." Day , 299 Or. App. at 480, 450 P.3d 1. Here, the superintendent made a somewhat more nuanced argument, suggesting that the prejudice was in having to prepare additional defenses with respect to claims that were untimely and...