Eklof v. Steward

• Decision Date: 22 December 2016
• Docket Number: SC S063870,CC C120242CV
• Citation: 385 P.3d 1074,360 Or. 717
• Parties: Karlyn EKLOF, Petitioner on Review, v. Heidi STEWARD, Superintendent, Coffee Creek Correctional Facility, Respondent on Review.
• Court: Oregon Supreme Court

360 Or. 717

385 P.3d 1074

Karlyn EKLOF, Petitioner on Review,

v.Heidi STEWARD, Superintendent, Coffee Creek Correctional Facility, Respondent on Review.

CC C120242CV

SC S063870

Supreme Court of Oregon.

Argued and submitted September 23, 2016.

December 22, 2016

Jason Weber, O'Connor Weber LLC, Portland, argued the cause and filed the brief for petitioner on review.

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Janis C. Puracal, Oregon Innocence Project, Portland, Mathew W. dos Santos, American Civil Liberties Union Foundation of Oregon, Portland, and Rankin Johnson IV, Oregon Criminal Defense Lawyers Association, Portland, filed the brief for those amici curiae. Also on the brief were Steven T. Wax, Alice B. Kaplan, and Erik Blumenthal.

En Banc

BREWER, J.

Under 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." Petitioner in this successive action for post-conviction relief—who is serving a sentence of life imprisonment without the possibility of parole for aggravated murder—seeks review of a Court of Appeals decision that upheld summary judgment for the state on the ground 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 successive petitions set out in those statutes, and that the trial court erred in concluding that her petition was barred as a matter of law.² As explained below, we conclude that the trial court erred in granting the state's motion for summary judgment on petitioner's Brady violation claim. Accordingly, we reverse and remand.

I. FACTS AND PROCEDURAL HISTORY

Petitioner was convicted of aggravated murder in 1995, based on the theory that she and an accomplice, Jeffrey Tiner, murdered James Salmu. See generally State v. Tiner , 340 Or. 551, 135 P.3d 305 (2006), cert. den. , 549 U.S. 1169, 127 S.Ct. 1125, 166 L.Ed.2d 896 (2007) (describing evidence underlying Tiner's aggravated murder conviction). The Court of Appeals affirmed petitioner's conviction without opinion. State v. Eklof , 154 Or.App. 448, 960 P.2d 397 (1998), rev. den. , 328 Or. 331, 987 P.2d 509 (1999). In 1999, shortly after her conviction became final, petitioner filed her first action for post-conviction relief; her petition in that case, which did not assert a Brady violation claim, ultimately was dismissed.

In 2012, petitioner again sought post-conviction relief in the present action. In her second amended petition, which is at issue here, petitioner alleged, in pertinent part:

"John Distabile and David Tiner were key witnesses against Petitioner in case no. 109404750 (Lane County) [in which petitioner was convicted of aggravated murder].

"* * * * *"On March 1, 201[2], attorney Andy Simrin (Attorney for Petitioner's co-defendant Jeffrey Tiner) mailed to counsel for this Petitioner a computer ‘thumb drive’ containing copies of four exhibits from the post-conviction case of Jeffrey Tiner, who had also been convicted of murdering James Salmu. Those exhibits included the prosecution file for the case against this Petitioner, the prosecution file for the case against Jeffrey Tiner, California Department of Justice records relating to David Tiner's criminal history (David Tiner is the brother of co-defendant Jeffrey Tiner) and NCIC records relating to David Tiner's criminal history.

"Among the materials in the prosecution file for the case against Jeffrey Tiner was a set of police reports that would have been valuable in impeaching John Distabile if they had been disclosed to Petitioner's attorneys in case no. 109404750 (Lane County).

"The Distabile impeachment materials described in the preceding paragraph were never disclosed to any attorney working on behalf of Petitioner until Mr. Simrin caused them to be delivered to Petitioner's attorney in this post-conviction proceeding.

"David Tiner's criminal history was never disclosed to any attorney working on behalf of Petitioner until Mr. Simrin caused them to be delivered to Petitioner's attorney in this post-conviction proceeding.

"David Tiner's criminal history would have had impeachment value if it had been disclosed to Petitioner's attorneys in case no. 109404750."

Based on those allegations, petitioner claimed that there had been a substantial denial of her due process rights under the Fourteenth Amendment to the United States Constitution. Petitioner further alleged that she previously had sought post-conviction relief in the 1999 action, that relief had been denied in that action, and that the Brady violation claim in this action could not reasonably have been raised in the 1999 action.

In support of her Brady violation claim in this case, petitioner submitted the trial transcript and other materials related to her underlying criminal case, as well as police reports concerning John Distabile and records of David Tiner's criminal history that, she asserted, had been withheld by the prosecution in her criminal case. The police reports indicated that, when Distabile initially was interviewed about the murder, he gave a somewhat different account from his testimony at petitioner's criminal trial; thus, the earlier account could have been offered to impeach Distabile's trial testimony. In addition, the materials related to David Tiner's criminal history could have been offered at petitioner's criminal trial to impeach Tiner's testimony. See generally Strickler v. Greene , 527 U.S. 263, 281–82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (holding that Brady applies not only to exculpatory information withheld from defendant, but also to favorable impeachment information).

The state filed an answer to the petition in which it alleged as "affirmative defenses" that this action was barred under the two-year limitations period prescribed by ORS 138.510(3)(b), and was barred as a successive petition by ORS 138.550(3).³ The state then sought summary judgment, asserting, as pertinent here, that petitioner's Brady violation claim was barred: (1) under ORS 138.510(3)(b), on the ground that she reasonably could have raised that claim within two years after the criminal judgment was final; and (2) under ORS 138.550(3), on the ground that she could have raised the claim in her original post-conviction action. The state explained that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law, because

"petitioner has not alleged any ultimate facts demonstrating that she was reasonably unable, when she first sought post-conviction relief, to discover that impeachment material was allegedly withheld by a prosecutor or not made available to petitioner's underlying defense counsel in 1995."

In her response to the motion, petitioner reiterated that the state had withheld materials from her criminal trial counsel that would have been useful in impeaching Distabile and David Tiner. Petitioner pointed out that she and Jeffrey Tiner had been tried separately and that different prosecutors had handled their respective cases.⁴ Petitioner submitted evidence that her criminal trial counsel had not been provided with the Brady materials, and that information about David Tiner's criminal history would not have been reasonably available to her post-conviction counsel from other sources in the 1999 action. Petitioner therefore asserted that she could not reasonably have obtained the Brady materials before Jeffrey Tiner's counsel informed her of their existence in 2012.

In a reply memorandum, the state again urged that

"petitioner has not pleaded any ultimate facts showing why she was supposedly unable, until 2012, to discover what was in the prosecutor's Tiner file. Even more importantly, petitioner has not submitted any evidence proving that she was unable, until 2012, to discover what was in the prosecutor's file."

The state asserted that petitioner had had "ample opportunity" to seek the Tiner file, and that it was "self-evident" that it would have been possible for petitioner's first post-conviction counsel to have subpoenaed the prosecutor's Tiner file and reviewed it for information that might have been helpful to petitioner's first post-conviction action. The state argued that petitioner had not shown that her counsel in the first post-conviction action could not have discovered the materials and asserted a timely Brady claim.

The trial court granted the state's motion for summary judgment without elaboration and entered a general judgment for the state, in which it concluded that there were no genuine issues of material fact and that the state was entitled to judgment as a matter of law.

On appeal, petitioner argued that the trial court had erred in granting the state's motion for summary judgment, asserting that the Brady materials at issue were not reasonably available to petitioner until they were provided to her in 2012. In response, the state pointed out that, in its answer to the petition, it had not admitted that the Brady materials had not been provided to petitioner prior to 2012. However, the state further stated that it had assumed, for purposes of summary judgment, that "those records were not properly disclosed to her and that she suffered prejudice, as she had alleged."

As it had before the trial court, the state urged that, under the identically-worded escape clauses in ORS 138.510(3)(b) (setting limitation period as two years after criminal judgment becomes final) and ORS 138.550(3) (barring claims that were not asserted in the...