Hale v. Belleque
Decision Date | 20 March 2013 |
Docket Number | No. 105,105 |
Parties | CONAN WAYNE HALE, Petitioner-Appellant, v. Brian BELLEQUE, Superintendent, Oregon State Penitentiary, Defendant-Respondent. |
Court | Oregon Court of Appeals |
Marion County Circuit Court
Daniel J. Casey argued the cause and filed the opening and reply briefs for petitioner. Conan Wayne Hale filed the supplemental brief pro se.
Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, Pamela J. Walsh, Assistant Attorney General, and Joanna L. Jenkins, Assistant Attorney General.
Before Wollheim, Presiding Judge, and Haselton, Chief Judge, and Nakamoto, Judge.
In 1998, petitioner was convicted of 13 counts of aggravated murder and sentenced to death for the murders of three victims committed in 1995. Defendant was also convicted of a number of other offenses, including burglary, theft, criminal mischief, kidnapping, rape, sodomy, unlawful sexual penetration, and sexual abuse. On direct review, the Supreme Court reversed six of the 13 aggravated murder convictions and affirmed seven of the convictions and the death sentences and remanded for resentencing. The court remanded the seven affirmed convictions for entry of corrected judgments reflecting three convictions for aggravated murder and imposing a single sentence of death for each conviction. State v. Hale, 335 Or 612, 75 P3d 612 (2003), cert den, 541 US 942 (2004). In this post-conviction proceeding, petitioner sought to have the remaining seven convictions for aggravated murder and his other convictions set aside due to constitutionally inadequate and ineffective assistance of counsel during the guilt and penalty phases of his trial and on appeal, and he also raised independent constitutional arguments challenging the death sentences. The post-conviction trial court rejected petitioner's post-conviction claims. For the reasons explained herein, we reverse and remand two burglary convictions and otherwise affirm.
We begin with the facts of the underlying crimes, as described by the Supreme Court on direct review:
Hale, 335 Or at 614-17 (footnote omitted).
Petitioner's petition for post-conviction relief alleged 17 claims, and included claims of inadequacy of trial counsel during both the guilt and penalty phases of trial1 and inadequacy of appellate counsel. Petitioner also raised several stand-alone claims challenging the constitutionality and imposition of the death penalty.
A petitioner is entitled to raise on post-conviction relief only those issues that he could not reasonably have raised on direct appeal. See ORS 138.550(2) ( ); Palmer v. State of Oregon, 318 Or 352, 354, 867 P2d 1368 (1994) ( ). Palmer identifies a number of examples: A post-conviction court can consider arguments not made at trial where counsel was incompetent or guilty of bad faith, where the right subsequently sought to be asserted was not generally recognized to be in existence at the time of trial; where
counsel was excusably unaware of facts which would have disclosed a basis for the assertion of the right; and where duress or coercion prevented assertion of the right. 318 Or at 357-58.
To prevail on his claims regarding the effectiveness of counsel under Article I, section 11, of the Oregon Constitution, ...
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