Hernandez-Zurita v. State

• Decision Date: 07 March 2018
• Docket Number: A161593
• Parties: Baltazar HERNANDEZ-ZURITA, Petitioner-Appellant, v. STATE of Oregon, Defendant-Respondent.
• Court: Oregon Court of Appeals

290 Or.App. 621

417 P.3d 548

Baltazar HERNANDEZ-ZURITA, Petitioner-Appellant,

v.STATE of Oregon, Defendant-Respondent.

A161593

Court of Appeals of Oregon.

Argued and submitted December 11, 2017.

March 7, 2018

Jason Weber argued the cause for appellant. With him on the brief was O'Connor Weber LLC.

Peenesh Shah, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

LAGESEN, P.J.

In 2009, petitioner pleaded guilty to one count of unlawful delivery of methamphetamine. The federal government then deported him to Mexico. Six years later, in 2015, he filed a petition for post-conviction relief in which he alleged that he received constitutionally inadequate assistance with regard to the plea. His petition admitted that it was untimely under the two-year limitation period in ORS 138.510(3) but asserted that it satisfied the "escape clause" of that statute, which permits a late filing if the grounds alleged in the petition "could not reasonably have been raised" within the limitation period. The delay, petitioner alleged, was attributable to the obstacles he faced in obtaining legal materials or legal counsel while in Mexico. Applying this court's precedent, the post-conviction court dismissed the petition, ruling that the grounds for relief in the petition were based on information that existed and was publicly available from the time that petitioner's conviction was entered and that, under controlling precedent, the fact that petitioner was unable to appreciate or reasonably failed to seek that information due to his personal circumstances was not sufficient to bring his petition within the escape clause. Although petitioner contends that that precedent was wrongly decided and has been called into question by a later Supreme Court decision, we decline to overrule it and, therefore, affirm.

I. BACKGROUND

The criminal charges underlying this post-conviction case were filed in December 2008, after police stopped petitioner's car for a traffic infraction and discovered methamphetamine during an ensuing search of the car. Petitioner was charged with one count of unlawful delivery of methamphetamine and one count of unlawful possession of methamphetamine, both felonies. The following month, he pleaded guilty to unlawful delivery and was sentenced to three months' probation; the charge of unlawful possession was dismissed. The judgment of conviction was entered in Washington County in January 2009, and petitioner did not appeal.

Petitioner, who was a Mexican citizen, was released immediately after sentencing into the custody of Immigration and Customs Enforcement (ICE), and he was deported to Mexico in March 2009. Petitioner eventually reentered the United States, and he was taken into ICE custody in September 2014.

In January 2015, petitioner initiated these post-conviction proceedings, alleging various grounds on which his trial counsel had been constitutionally deficient when representing him in connection with the drug charges. Petitioner acknowledged that his petition had not been filed within the two-year limitation period set forth in ORS 138.510(3), but he alleged that his delay in filing was excusable due to his circumstances after being deported. Specifically, he alleged that it would have been extraordinarily difficult for someone in his position—indigent, functionally illiterate, unable to speak English, and residing in a rural part of Mexico—to initiate post-conviction proceedings in Washington County. Additionally, he alleged, he had been in hiding during his time in Mexico because of threats on his life by a drug cartel, providing a further obstacle to his timely filing.

According to petitioner, it was not until after speaking with an immigration attorney, upon being taken into ICE custody in September 2014, that petitioner discovered the immigration consequences of his conviction for delivery of a controlled substance—namely, that the conviction would prevent him from obtaining asylum or gaining legal status in the United States. (Petitioner explained that he previously believed that he had been deported in 2009 as a consequence of his illegal entry into the United States, and not as a consequence of his conviction.)

Petitioner also attached to the petition two additional declarations describing obstacles that he faced in filing for post-conviction relief from Mexico. The first was from one of petitioner's friends, Marisela Reyna Mandujano, who described her efforts on petitioner's behalf to obtain information on filing for post-conviction relief, including efforts to obtain information from the Washington County Courthouse. The second declaration came from Eidar Gonzales, a private investigator who described his own efforts to obtain information about the post-conviction process, including contacting the Mexican consulate, contacting the United States Embassy in Mexico, emailing and calling attorneys in Mexico, and searching online for forms that would assist someone in filing for post-conviction relief. In the declaration, Gonzales opined that "it would be virtually impossible for a deported, Mexican born, Mexican educated, indigent, Spanish speaking only, 5th grade completed, functionally illiterate, 23 year old male residing in rural Mexico, without access to the internet to obtain any information concerning Post Conviction Relief or the process for initiating a Post-Conviction action in Washington County."

In response to the petition, the state moved to dismiss, pursuant to ORCP 21 A(9), on the ground that it was untimely. The state argued that petitioner's allegations concerning his particular circumstances—including his indigence, inability to understand English, and living situation in Mexico—were irrelevant to whether he reasonably could have filed his petition for purposes of ORS 138.510(3). Rather, the state contended, under well-established law applying the escape clause of that statute, "[t]he only issue is whether the information was available. Here, the information that forms the basis of this claim was available immediately after petitioner's conviction. The reasonableness of the petitioner's failure to file a claim within two years cannot trigger the escape clause under ORS 138.510(3)." The post-conviction court agreed with the state, ruling that the "case law right now is dead set against the Petitioner's position," and it entered a judgment dismissing his petition as untimely.

Petitioner now appeals that judgment. He concedes that the post-conviction court's observation about the case law was partially correct—at least with respect to certain Court of Appeals decisions, which he acknowledges have "refused to consider the individual circumstances of a petitioner when deciding whether he could reasonably have raised a claim during the statute of limitations period." But, he argues, those cases are inconsistent with, and have been overruled by, the Supreme Court's more recent pronouncement in Verduzco v. State of Oregon , 357 Or. 553, 571, 355 P.3d 902 (2015), which holds that "the question whether a claim reasonably could have been raised earlier will vary with the facts and circumstances of each claim."

II. ANALYSIS

A. Standard of Review

We review an ORCP 21 A(9) dismissal of a petition as untimely for errors of law. Zsarko v. Angelozzi , 281 Or. App. 506, 508, 385 P.3d 1239 (2016), rev. den. , 361 Or. 312, 393 P.3d 1174 (2017). "Our review * * * is limited to the face of the pleadings. In conducting that review, we assume the truth of all allegations in the [petition] and give [petitioner], as the nonmoving party, the benefit of all favorable inferences that could be drawn from those allegations." Kelly v. Lessner , 224 Or. App. 31, 33, 197 P.3d 52 (2008).

B. The Escape Clause

The timeliness of the petition in this case turns on the proper interpretation of the escape clause of ORS 138.510(3), which allows an untimely filing if the grounds for relief "could not reasonably have been raised" within the otherwise applicable two-year statute of limitations for post-conviction petitions. As petitioner's arguments recognize, our case law has supplied that clause with a well-defined meaning that conflicts with the one that petitioner urges us to adopt.

1. Pre- Verduzco cases

Much of our case law concerning the escape clause derives from the Supreme Court's decision in Bartz v. State of Oregon , 314 Or. 353, 839 P.2d 217 (1992). In Bartz , the Supreme Court considered the timeliness of a petitioner's claim that trial counsel failed to advise him of a possible statutory defense before the petitioner pleaded guilty. The petitioner alleged that his trial lawyer's dereliction, to which the petitioner also attributed his failure to meet the post-conviction filing deadline, demonstrated that he could not reasonably have raised his claim timely because he did not know about the statutory defense, and his lawyer's failure to discuss it with him, until after the expiration of the post-conviction limitations period. Rejecting that argument, the court held that the legislature had intended the escape clause to be "construed narrowly," 314 Or. at 359, 839 P.2d 217, and it held that the statutes relevant to the petitioner's possible defense were "reasonably available" to him by the mere fact that they had been published by the legislature. The court explained:

"Given the specific nature of Bartz's claim, the issue becomes whether the extant statutes pertaining to a particular criminal offense constitute information that is reasonably available to a defendant convicted of that offense. It is a basic assumption of the legal system that the ordinary means by which the legislature publishes and makes available its enactments are sufficient to inform persons of statutes that are relevant to them . See Dungey v. Fairview Farms, Inc. , 205 Or. 615, 621,

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