Eklof v. Steward, C120242CV, A154212.

Citation359 P.3d 570,273 Or.App. 789
Decision Date23 September 2015
Docket NumberC120242CV, A154212.
PartiesKarlyn EKLOF, Petitioner–Appellant, v. Heidi STEWARD, Superintendent, Coffee Creek Correctional Facility, Defendant–Respondent.
CourtCourt of Appeals of Oregon

273 Or.App. 789
359 P.3d 570

Karlyn EKLOF, Petitioner–Appellant
v.
Heidi STEWARD, Superintendent, Coffee Creek Correctional Facility, Defendant–Respondent.

C120242CV, A154212.

Court of Appeals of Oregon.

Argued and Submitted Sept. 8, 2014.
Decided Sept. 23, 2015.


359 P.3d 571

Jason L. Weber argued the cause and filed the brief for appellant.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before DUNCAN, Presiding Judge, and LAGESEN, Judge, and EDMONDS, Senior Judge.

Opinion

LAGESEN, J.

273 Or.App. 791

Petitioner appeals from a judgment dismissing her petition for post-conviction relief with prejudice. The petition currently at issue is petitioner's second. She previously filed for post-conviction relief in 1999, after the completion of the direct appeal in her underlying criminal case. That petition for post-conviction relief was denied in 2001. This second petition, which petitioner filed at the beginning of 2012, alleges that petitioner is entitled to relief from her 1995 conviction for aggravated murder on three grounds: (1) that the prosecution withheld material exculpatory evidence in violation of its disclosure obligations under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, as recognized by the Supreme Court in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ; (2) that trial counsel was inadequate and ineffective under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution for not objecting to the “natural and probable consequences” jury instruction that the Oregon Supreme Court later invalidated in State v. Lopez–Minjarez, 350 Or. 576, 260 P.3d 439 (2011), on the ground that the jury instruction was not an accurate statement of the law; and (3) that petitioner's first post-conviction lawyer was inadequate and ineffective for not raising the Lopez–Minjarez issue as a ground for relief in petitioner's first post-conviction petition. The state1 moved for summary judgment, asserting that (1) the first two grounds for relief were barred by ORS 138.550(3), which requires a petitioner

359 P.3d 572

who files a second (or subsequent) post-conviction petition to demonstrate that the new grounds for relief “could not reasonably have been raised” in the first petition, and the third ground for relief—that petitioner's first post-conviction lawyer was inadequate—was not a cognizable ground for post-conviction relief. The trial court granted the motion. We affirm.

273 Or.App. 792

We review the post-conviction court's grant of summary judgment to determine whether the court correctly concluded that there are no genuine issues of material fact and that the state was entitled to judgment as a matter of law. Washington v. Johnson, 165 Or.App. 578, 581, 997 P.2d 263, rev. den., 330 Or. 553, 10 P.3d 943 (2000) (citing ORCP 47(C) ). A genuine issue of material fact is lacking when, viewing the record in the light most favorable to the nonmoving party, petitioner, no reasonable factfinder could find for that party on the matter put at issue by the motion. Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or. 634, 638–39, 20 P.3d 180 (2001). We address, in turn, the separate grounds for relief resolved by the post-conviction court's grant of summary judgment.

On appeal, petitioner has not challenged the grant of summary judgment to the state on her ground for relief predicated on the alleged inadequacy and ineffectiveness of petitioner's post-conviction lawyer in the first post-conviction case; for that reason, we affirm the grant of summary judgment to the state on that ground for relief.

We also affirm the grant of summary judgment to the state on petitioner's ground for relief predicated, in effect, on trial counsel's alleged inadequacy and ineffectiveness for not anticipating Lopez–Minjarez's invalidation of the “natural and probable consequences” jury instruction on accomplice liability. We do so, however, for different reasons than the post-conviction court. After the court rendered its decision, we decided Hale v. Belleque, 255 Or.App. 653, 298 P.3d 596, adh'd, to on recons., 258 Or.App. 587, 312 P.3d 533, rev. den., 354 Or. 597, 318 P.3d 749 (2013). In that case, we rejected a post-conviction claim identical to petitioner's, ruling that, until the opinions of our court and the Supreme Court in Lopez–Minjarez, “[t]he failure of trial counsel to object to [the instruction] was a reasonable exercise of professional skill and judgment.” Hale, 255 Or.App. at 686, 298 P.3d 596.2 Hale dictates

273 Or.App. 793

that petitioner's Lopez–Minjarez ground for relief fails as a matter of law, entitling the state to summary judgment on it.

We turn to petitioner's ground for relief predicated on the prosecution's alleged violation of its Brady obligations.3 That ground for relief is based on allegations that the prosecution failed to turn over impeachment evidence related to two witnesses who testified at petitioner's criminal trial: David Tiner and John Distabile. ORS 138.550(3) barred that ground for relief unless petitioner demonstrated that it fell within the provision's escape clause: that is, that the Brady

359 P.3d 573...

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6 cases
  • Eklof v. Steward
    • United States
    • Oregon Supreme Court
    • December 22, 2016
    ...that petitioner's Brady violation claim was barred as a matter of law under ORS 138.510(3) and ORS 138.550(3).1 Eklof v. Steward , 273 Or.App. 789, 359 P.3d 570 (2015). Petitioner asserts that she is entitled to pursue her Brady violation claim despite the bars against untimely and successi......
  • Lizarraga-Regalado v. Premo
    • United States
    • Oregon Court of Appeals
    • March 1, 2017
    ...298 P.3d 596, adh'd to on recons, 258 Or.App. 587, 312 P.3d 533, rev. den., 354 Or. 597, 318 P.3d 749 (2013), and Eklof v. Steward, 273 Or.App. 789, 792-93, 359 P.3d 570 (2015), rev'd in part on other grounds, 360 Or. 717, 385 P.3d 1074 (2016), we held that where the petitioners' criminal t......
  • Cunningham v. Premo
    • United States
    • Oregon Court of Appeals
    • May 4, 2016
    ...[his] first post-conviction proceeding and that it was reasonable for [him] not to have discovered them at that time.” Eklof v. Steward, 273 Or.App. 789, 793, 359 P.3d 570 (2015). Moreover, ORS 138.550(3) does “not only prevent a petitioner from bringing a successive petition for post-convi......
  • State v. Sanchez
    • United States
    • Oregon Court of Appeals
    • September 23, 2015
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