Horath v. Nooth, A161794

• Decision Date: 05 December 2018
• Docket Number: A161794
• Citation: 433 P.3d 416,295 Or.App. 163
• Parties: Patrick Lee HORATH, Petitioner-Appellant, v. Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant-Respondent.
• Court: Oregon Court of Appeals

295 Or.App. 163

433 P.3d 416

Patrick Lee HORATH, Petitioner-Appellant,

v.Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant-Respondent.

A161794

Court of Appeals of Oregon.

Submitted November 14, 2017.

December 5, 2018

Jed Peterson and O’Connor Weber LLC filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General, filed the brief for respondent.

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

LAGESEN, P. J.

In 2010, petitioner pleaded guilty to one count of aggravated murder and was sentenced to life imprisonment with a 30-year minimum term of incarceration. In 2015, petitioner initiated this post-conviction proceeding—his second—in which he alleges four claims for relief: (1) inadequate and ineffective assistance of trial counsel (claim one); (2) prosecutorial misconduct (claim two); (3) actual innocence (claim three); and (4) inadequate assistance of post-conviction counsel in his previous post-conviction proceeding (claim four). On the superintendent’s motion for summary judgment, the post-conviction court dismissed the petition as untimely and successive, also ruling that petitioner’s claims of actual innocence, prosecutorial misconduct, and inadequate assistance were not legally proper bases for post-conviction relief and were subject to dismissal for that additional reason. For the reasons that follow, we reverse except as to the dismissal of the claim of inadequate assistance of post-conviction counsel.

"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 superintendent] was entitled to judgment as a matter of law." Putnam v. Angelozzi , 278 Or. App. 384, 388, 374 P.3d 994 (2016).

As noted, the post-conviction court’s primary basis for granting summary judgment was that the petition was untimely under ORS 138.510 and successive under ORS 138.550. In opposing the superintendent’s motion, petitioner did not dispute either that the petition was untimely or that it was successive. Instead, petitioner contended that he was entitled to pursue his claims under the escape clauses of ORS 138.510 and ORS 138.550, which permit a petitioner to pursue a ground for post-conviction relief in an untimely or successive petition if that ground for relief "could not reasonably have been raised" in a timely filed first petition for post-conviction relief. ORS 138.510(3) ; ORS 138.550(3).

To support his contention that the escape clauses excused his untimely, successive filing, petitioner submitted evidence showing that his lawyer in the previous post-conviction proceeding had dismissed it without his knowledge or permission, thereby resulting in his inability to pursue his claims in that timely filed first post-conviction proceeding. Although that evidence, if credited, could support a determination that petitioner could not reasonably have raised his asserted grounds for post-conviction relief in that prior, timely proceeding, see, e.g. , Winstead v. State of Oregon , 287 Or. App. 737, 403 P.3d 444 (2017) (where appointed post-conviction counsel failed to timely file post-conviction petition without alerting the petitioner to the dereliction, the petitioner could not reasonably have raised her claims in a timely filed petition in view of appointed counsel’s dereliction), the post-conviction court granted summary judgment to the superintendent because it found that petitioner’s claim was "simply not credible."

As the superintendent concedes, that ruling is erroneous. Under ORCP 47 C, at the summary judgment stage of the case, the post-conviction court was required to view the evidence "in a manner most favorable to" petitioner. It, therefore, was not permitted to discredit petitioner’s evidence. Moreover, as the superintendent also correctly concedes, petitioner’s evidence would allow an objectively reasonable fact finder to find that petitioner’s first petition was dismissed without his knowledge or consent, in a manner that could entitle him to the benefit of the escape clauses. See Winstead , 287 Or. App. at 743, 403 P.3d 444 (appointed counsel’s failure to timely file initial post-conviction petition as promised excused the petitioner’s untimely filing under the escape clause of ORS 138.510 ); Keerins v. Schiedler , 132 Or. App. 560, 562-64, 889 P.2d 385 (1995) (post-conviction petitioner was entitled to file an untimely petition pursuant to the ORS 138.510 escape clause where his attorney misinformed him that his direct criminal proceeding was still pending and therefore it was not time to file for post-conviction relief); Fine v. Zenon , 114 Or. App. 183, 187, 834 P.2d 509 (1992) (post-conviction petitioner was permitted to file an untimely petition under ORS 138.510 where untimeliness resulted, at least in part, from the petitioner’s lawyer’s violation of his professional duty to keep the petitioner informed about the status of his case).

Having acknowledged that error,¹ the superintendent also concedes that the dismissal of petitioner’s claim for inadequate and ineffective assistance of counsel must be reversed. With respect to the remaining three claims, however, the superintendent urges us to affirm the dismissals for various alternative reasons. We address those arguments in turn.

First, with respect to petitioner’s claim of actual innocence, the superintendent argues that we should affirm the dismissal on the ground that the post-conviction court was correct to...