Oatney v. Kelly, A163685
| Decision Date | 01 November 2017 |
| Docket Number | A163685 |
| Citation | 407 P.3d 958,288 Or.App. 550 |
| Parties | Billy Lee OATNEY, Jr., Petitioner-Appellant, v. Brandon KELLY, Superintendent, Oregon State Penitentiary, Defendant-Respondent. |
| Court | Oregon Court of Appeals |
288 Or.App. 550
407 P.3d 958
Billy Lee OATNEY, Jr., Petitioner-Appellant,
v.
Brandon KELLY, Superintendent, Oregon State Penitentiary, Defendant-Respondent.
A163685
Court of Appeals of Oregon.
Argued and submitted June 16, 2017.
November 1, 2017
Daniel J. Casey argued the cause and filed the briefs for appellant.
Timothy A. Sylwester, 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 Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
ARMSTRONG, P. J.
Petitioner was convicted of aggravated murder and sentenced to death. After his conviction and sentence were affirmed on appeal in State v. Oatney, 335 Or. 276, 66 P.3d 475 (2003), cert. den., 540 U.S. 1151, 124 S.Ct. 1148, 157 L.Ed.2d 1045 (2004), petitioner sought post-conviction relief on a number of grounds. Those grounds included that his trial counsel had provided him with constitutionally deficient legal representation by failing to seek to exclude at petitioner's criminal trial statements and testimony by petitioner's co-conspirator in the murder, Johnston, that the state allegedly had obtained in violation of an immunity agreement with petitioner. The post-conviction court denied relief, but we reversed its decision on appeal because we concluded that petitioner was entitled to post-conviction relief on his first claim for trial counsels' failure to seek to exclude Johnston's statements and testimony. Oatney v. Premo, 275 Or.App. 185, 223, 369 P.3d 387 (2015), rev. den., 359 Or. 847, 383 P.3d 850 (2016).
On remand from our decision, petitioner sought to have the post-conviction court include in its judgment granting post-conviction
relief a provision prohibiting Johnston from testifying for the state on retrial of the charges against petitioner and excluding as evidence on retrial (1) Johnston's testimony at the first trial, (2) all out-of-court statements made by...
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State v. Oatney
...v. Premo , 275 Or. App. 185, 369 P.3d 387 (2015), rev. den. , 359 Or. 847, 383 P.3d 850 (2016) ( Oatney II ), and Oatney v. Kelly , 288 Or. App. 550, 407 P.3d 958 (2017), rev. den. , 362 Or. 508, 424 P.3d 723 (2018) ( Oatney III ).The victim was murdered in 1996. Defendant was ultimately ch......