Eklof v. Persson
| Decision Date | 21 April 2022 |
| Docket Number | CC C120242CV (SC S068347) |
| Citation | 369 Or. 531,508 P.3d 468 |
| Parties | Karlyn EKLOF, Petitioner on Review, v. Rob PERSSON, Superintendent, Coffee Creek Correctional Facility, Respondent on Review. |
| Court | Oregon Supreme Court |
Lindsey Burrows, O'Connor Weber LLC, Portland, argued the cause and filed the briefs for petitioner on review.
Jordan R. Silk, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Kristen G. Williams, McMinnville, filed the brief for amicus curiae Oregon Trial Lawyers Association.
Before Walters, Chief Justice, and Balmer, Flynn, Duncan, Nelson, Garrett, and DeHoog, Justices.**
Petitioner was convicted of aggravated intentional murder in 1995 and sentenced to life in prison without the possibility of parole. In this, her second case seeking post-conviction relief, petitioner moved to amend her complaint a third time to introduce new claims that the state unlawfully withheld exculpatory evidence in petitioner's criminal trial. Under ORCP 23 A, after a pleading is amended once, further amendments require either the consent of the adverse party or leave of court. Here, the state1 did not consent, so leave of the post-conviction court was required.
The post-conviction court considered, among other things, the state's argument that petitioner's proposed amended claims were barred as a successive petition under ORS 138.550(3). That bar applies unless the claims at issue "could not reasonably have been raised" in a prior petition. ORS 138.550(3). The state presented evidence from the records of earlier cases involving the same murder, which purported to show that petitioner or her counsel knew about the allegedly withheld evidence and the possibility that it was withheld, and, therefore, reasonably could have raised her claims. After considering that evidence, the post-conviction court denied petitioner leave to amend her petition.
Petitioner sought review, asking this court to resolve whether the merit of the proposed amendments, including whether they are procedurally barred, is relevant to determining whether to grant leave to amend under ORCP 23 A, and whether the post-conviction court erred in considering the state's evidence.
For the reasons explained below, we reiterate that the gravamen of the inquiry under ORCP 23 A is prejudice to the opposing party, and we clarify that merit is relevant only insofar as ORCP 23 A permits leave to be denied for futile amendments. We further conclude that a court may consider judicially noticeable facts in determining whether a proposed amendment is futile. In applying those rules to this case, we conclude that some of petitioner's claims were not futile. Because the state and post-conviction court identified no meaningful prejudice to the state resulting from petitioner's proposed amendments, the post-conviction court abused its discretion in denying leave to amend. We therefore reverse the decision of the Court of Appeals and the judgment of the circuit court, and remand to the circuit court for further proceedings.
Petitioner was convicted of aggravated intentional murder in 1995, based on evidence that she and an accomplice, Tiner, murdered petitioner's roommate. Among the state's witnesses in that proceeding were Distabile, Hope, and Smith. Petitioner was sentenced to life in prison without the possibility of parole. Petitioner unsuccessfully sought relief through direct appeal, a petition for post-conviction relief filed in 1999, and a federal petition for habeas corpus filed in 2004.
Petitioner then filed this successive petition for post-conviction relief, alleging, among other things, that she was denied due process because of Brady violations by the state. See Brady v. Maryland , 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) (). After petitioner had amended this petition twice for reasons not relevant here, the post-conviction court granted summary judgment to the defendant. This court reversed that judgment and remanded the case for further proceedings. Eklof v. Steward , 360 Or. 717, 385 P.3d 1074 (2016) ( Eklof I ).
On remand, petitioner moved for leave to amend her petition a third time, seeking to allege, as relevant here, additional Brady violations related to the three witnesses mentioned above: Smith, Hope, and Distabile. As to Smith, petitioner alleged that the state had withheld evidence that Smith had a reputation for dishonesty among local judges, prosecutors, and police. As to Hope, petitioner alleged that the state had withheld evidence that Hope had been under investigation for several sex abuse crimes. As to Distabile, petitioner alleged that the state had withheld a letter from Distabile's attorney offering Distabile's "full and complete cooperation in exchange for transactional (i.e., total) immunity from prosecution in the *** murder [case]." Petitioner contended that that allegedly withheld evidence could have been used to impeach Smith, Hope, and Distabile at trial.
Under ORCP 23 A, petitioner needed the court's leave to amend her petition a third time. ORCP 23 A provides, in part:
The clause, "leave shall be freely given when justice so requires," petitioner observed, gave the trial court discretion regarding the amendment. Petitioner directed the court's attention to four considerations that the Court of Appeals has identified to guide the appropriate exercise of that discretion:
"(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 v. Thompson , 162 Or. App. 139, 145, 986 P.2d 54 (1999), rev. den. , 329 Or. 589, 994 P.2d 130 (2000). Petitioner contended that all four Ramsey considerations weighed in favor of amendment. Petitioner also contended that, in evaluating the motion for leave to amend, the court was required to assume the truth of the allegations in the amended petition. Petitioner emphasized that, because the strength of her claims depended on discoverable facts, justice required that she be permitted to amend her petition and proceed to discovery.
The state objected to petitioner's motion for leave to amend, arguing, as relevant here, that petitioner's proposed amendments were barred as a successive petition under ORS 138.550(3).2 That bar applies unless petitioner's claims "could not reasonably have been raised" in her prior petition. ORS 138.550(3). To support its position that petitioner knew about the allegedly withheld evidence, and its withholding, and that the Brady claims either could reasonably have been raised, or indeed had been raised, the state attached exhibits including filings submitted by petitioner in her prior cases, as well as transcripts of prior proceedings. The state also addressed the four Ramsey considerations, arguing, among other things, that allowing the amendment would prejudice the state because it would "add to the burden of having to prove this case all over again" and "make the Superintendent and the State meet these claims."
The post-conviction court denied petitioner's motion for leave to amend, adopting the state's reasoning without elaboration. Petitioner proceeded to trial on her second amended petition and, in the end, was denied post-conviction relief.
Petitioner appealed the resulting judgment, arguing, as relevant here, that the post-conviction court abused its discretion by denying her motion for leave to amend. Petitioner reiterated her position that the four Ramsey considerations weighed in favor of allowing the amendment.
In response, the state defended the post-conviction court's decision on the ground that petitioner's proposed claims lacked "colorable merit," the fourth Ramsey consideration. The state did not address any of the other three Ramsey considerations. The state defined a claim with "colorable merit" as one that "legitimately allege[d]" the facts that claimant would eventually have to prove. The state did not explain what it meant to allege something "legitimately," but, ultimately, the state appeared to argue that the allegations were not "legitimate" if they were contradicted by judicially noticeable facts and were therefore a "sham." See ORCP 21 E(1) (allowing the court to strike "any sham, frivolous, or irrelevant pleading or defense"). The state reasoned that, in this case, petitioner was required to "allege and prove facts establishing that she could not reasonably have raised [her] claims in a timely post-conviction proceeding—that is, establishing that the claims come within * * * ORS 138.550(3) ’s escape clause[ ]." The state then argued that judicially noticeable facts, specifically "petitioner's own oral and written representations" in her prior post-conviction and federal habeas cases, showed that she reasonably could have raised all her new claims in her first post-conviction proceeding, and that she could not now "legitimately allege" any facts to the contrary.
The Court of Appeals affirmed, relying on Ramsey ’s four considerations and concluding...
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