Holcomb v. Taylor

• Decision Date: 10 May 2017
• Docket Number: A156455
• Parties: Marc M. HOLCOMB, Petitioner-Appellant, v. Jeri TAYLOR, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent.
• Court: Oregon Court of Appeals

285 Or.App. 462

397 P.3d 517

Marc M. HOLCOMB, Petitioner-Appellant,

v.Jeri TAYLOR, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent.

A156455

Court of Appeals of Oregon.

Submitted November 6, 2015.

May 10, 2017

Jed Peterson and O'Connor Weber LLP filed the brief for appellant.

Frederick M. Boss, Deputy Attorney General, Anna M. Joyce, Solicitor General, and Carson L. Whitehead, Assistant Attorney General, filed the brief for respondent.

Before Duncan, Presiding Judge, and DeVore, Judge, and Flynn, Judge pro tempore.

FLYNN, J. pro tempore.

Petitioner appeals from a judgment dismissing his petition for post-conviction relief (PCR) for failing to satisfy the requirement that "affidavits, records or other documentary evidence supporting the allegations of the petition shall be attached to the petition." See ORS 138.580. As the Supreme Court has explained, the requirement means that a petitioner must support the petition for post-conviction relief with materials "that address each element of each asserted ground for relief and that, considered together, and if substantiated at the post-conviction hearing, would permit the post-conviction court to determine that the petitioner was entitled to post-conviction relief" on the alleged ground. Ogle v. Nooth , 355 Or. 570, 589, 330 P.3d 572 (2014).

Petitioner argues that his attachments—his own affidavits and the transcript of petitioner's criminal trial—support his claim, set out in paragraph 9.a.1 of the formal petition, that he was denied his constitutional right to counsel because his trial counsel failed "to adequately investigate, prepare and present Petitioner's claim that he acted in self-defense" when he shot two individuals, killing one of them.¹ The state responds that the attachments fail to support petitioner's claim because the trial transcript refutes petitioner's averments in ways that would preclude petitioner from proving his allegations.² We conclude that petitioner's attachments support the existence of facts that, "if substantiated," would permit the post-conviction court to determine that petitioner is entitled to relief on the alleged ground and that nothing in the trial transcript would preclude the post-conviction court from reaching that determination.

I. BACKGROUND

The relevant facts are undisputed and mostly procedural in nature. Petitioner was charged in a 29-count indictment that included the murder of one victim and the attempted murder of a second victim. State v. Holcomb , 213 Or.App. 168, 170-71, 159 P.3d 1271, rev. den. , 343 Or. 224, 168 P.3d 1155 (2007). In closing remarks to the jury, petitioner's criminal trial counsel argued that the evidence showed that the gun discharged while one victim was "wrestling" with petitioner and the other was "wailing on them" with a flashlight. However, counsel did not assert that petitioner had acted in self-defense or request a jury instruction that would have permitted the jury to acquit petitioner on that basis. The jury found petitioner guilty of murder and of multiple counts of attempted murder, burglary, and unlawful use of a weapon. On appeal, we reversed the judgment of conviction as to three counts.

Petitioner then filed a petition for post-conviction relief, in which he alleged various grounds for relief, including the ground that we consider on appeal—the allegation that petitioner was denied adequate and effective representation of counsel, in violation of the state and federal constitutions, by his counsel's failure "to adequately investigate, prepare and present Petitioner's claim that he acted in self-defense."³ Petitioner attached to the petition the transcripts from his criminal trial and sentencing hearing.

The state moved for partial summary judgment, contending that petitioner failed to satisfy the attachment requirement of ORS 138.580 because the claims were "without support." As to the self-defense allegations, the state argued that petitioner failed to satisfy the attachment requirement because petitioner identified no evidence or witnesses who "would have supported a self-defense defense." In response, petitioner submitted two affidavits, in which he averred that he "requested and wanted [his] trial attorneys to represent and present a case based on [his] claim of self-defense"; averred what the factual basis for that claim would have been; and averred that he was found guilty after his attorneys, instead, "put forth a defense that they fashioned over [petitioner's] objections."⁴

In reply, the state expanded the scope of its motion from a motion for partial summary judgment against some of plaintiff's allegations, on the basis that they were unsupported, to a motion for summary judgment as to all of petitioner's claims on the basis that they were "entirely without support and almost certainly can never be reasonably supported."⁵ The state argued that petitioner's affidavits failed to support his allegations regarding self-defense because the transcript showed that petitioner's trial counsel had put on the evidence that petitioner described as the basis for asserting the defense of self-defense. The post-conviction court granted the state's motion for summary judgment and dismissed all of petitioner's claims with prejudice.

On appeal, petitioner renews his contention that he provided "evidence supporting the allegations of the petition," at least as to the allegation that his trial counsel failed to "adequately investigate, prepare and present" petitioner's defense that he acted in self-defense. We agree.

II. APPLICABLE LAW

The requirement that a petitioner attach evidence to the petition is part of a list of requirements that a petition for post-conviction relief must meet. ORS 138.580. Those requirements include that "[t]he petition shall set forth specifically the grounds upon which relief is claimed" and that "[a]ffidavits, records or other documentary evidence supporting the allegations of the petition shall be attached to the petition"—the requirement at issue in this appeal. The attached "materials must support all elements of the asserted claims for relief." Ogle , 355 Or. at 580, 330 P.3d 572. Thus, before considering whether petitioner's evidence supported his allegations, we briefly consider the elements of petitioner's claim for relief.

A. Elements that a Petitioner's Attachments Must Support

When, as here, a petitioner asserts a claim of inadequate or ineffective assistance of counsel, "the petitioner must allege, and ultimately must prove, facts showing both that counsel failed to exercise reasonable professional skill and judgment and that the petitioner suffered prejudice as a result." Id. at 579, 330 P.3d 572 (citing Tru j illo v. Maass , 312 Or. 431, 435, 822 P.2d 703 (1991) (standard with respect to the Oregon Constitution) and Strickland v. Washington , 466 U.S. 668, 695, 104 S.Ct. 2052, 80 L Ed 2d 674 (1984) (standard with respect to the federal constitution)). Prejudice means that "counsel's acts or omissions had ‘a tendency to affect the result of the prosecution.’ " Ogle , 355 Or. at 590, 330 P.3d 572 (quoting Stevens v. State of Oregon , 322 Or. 101, 110, 902 P.2d 1137 (1995) (emphasis omitted)). As the court explained in Ogle , because "a petitioner must prove both elements of such a claim, both elements must be ‘support[ed]’ by the materials attached pursuant to ORS 138.580." Id. at 580, 330 P.3d 572 (brackets in original). Thus, for petitioner to support his claim that he was denied adequate or effective counsel by his attorneys' failure with respect to presenting a claim of self-defense, petitioner was required to attach material to support a determination that his counsel failed to exercise reasonable professional skill and judgment regarding the possible defense of self-defense and that the alleged failure had a tendency to affect the outcome of his prosecution.

B. Ogle's Construction of "Supporting" Attachments

In Ogle , the Supreme Court addressed two key aspects of the requirement that attachments "support" the allegations of the petition: how reliable the attached materials must be and what substantive content the attachments must include. 355 Or. at 576, 330 P.3d 572.

1. Reliable attachments can include the petitioner's affidavit.

With respect to reliability, the court held that the attached evidence need not meet "some particular standard of reliability" and, in particular, may include "the petitioner's own averments of fact." Id. at 589, 330 P.3d 572. The court rejected the state's argument that the supporting evidence must include more than the petitioner's own " ‘speculative’ averments as to criminal trial counsel's actions or the testimony that a witness would have given and the possible effect of those actions or that evidence on the outcome of the trial." Id. at 585, 330 P.3d 572.

In reaching that interpretive conclusion, the court emphasized two aspects of the procedural context in which the requirement falls. First, the attachment requirement of ORS 138.580 refers to materials that must be attached at "the time of filing the petition—before the petitioner has had the opportunity to engage in discovery and, indeed, when the petitioner may not yet be represented by counsel." Id . at 576, 330 P.3d 572.

Second, as originally enacted, ORS 138.580 allowed a petitioner to proceed to a hearing without attaching supporting materials if the petitioner was able to give a reason that he or she could not provide supporting evidence at the time of filing. Id . at 587, 330 P.3d 572. As the court explained, that ability to proceed in some cases without supporting attachments suggests that the purpose of the attachment requirement was not to provide a "vehicle for weeding out purportedly unfounded petitions," but "perhaps was to provide a bit of clarity to the ‘often illiterate and unintelligible’ pleadings filed by post-conviction petitioners." Id. (quoting Jack G. Collins and Carl R. Neil, The Oregon Postconviction–Hearing Act, 39 Or. L Rev 337,...