Peed v. Hill

Decision Date07 February 2007
Docket Number05064487M; A131686.
Citation210 Or. App. 704,153 P.3d 125
PartiesThomas Evan PEED, Petitioner-Appellant, v. Jean HILL, Superintendent, Snake River Correctional Institution, Defendant-Respondent.
CourtOregon Court of Appeals

James N. Varner, Dundee, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Jennifer S. Lloyd, Attorney-In-Charge, Collateral Remedies and Capital Appeals, filed the brief for respondent.

Before EDMONDS, Presiding Judge, and HASELTON and WOLLHEIM,* Judges.

HASELTON, J.

Petitioner appeals from a judgment dismissing his petition for post-conviction relief. We affirm, without discussion, the trial court's disposition of petitioner's claims predicated on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). See Miller v. Lampert, 340 Or. 1, 125 P.3d 1260 (2006); Lutz v. Hill, 205 Or.App. 252, 134 P.3d 1003, rev. den., 341 Or. 140, 139 P.3d 258 (2006). We write only to address petitioner's claims predicated on Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In particular, we conclude that (1) Crawford did not announce a new "watershed rule" of criminal procedure and, thus, does not apply on collateral review; and (2) the post-conviction court correctly rejected petitioner's alternative claim that his criminal defense counsel were constitutionally inadequate for failing to raise a Crawford-like challenge to the admission of hearsay statements at the time of petitioner's trial in 1998 and in his ensuing appeal. Accordingly, we affirm.

The material procedural circumstances are undisputed. In January 1998, petitioner was tried and convicted of multiple sex offenses following a jury trial in Josephine County Circuit Court. Petitioner appealed; we reversed one of his convictions but affirmed the others, State v. Peed, 168 Or.App. 236, 4 P.3d 82 (2000); and the appellate judgment issued in 2000. Petitioner subsequently filed a petition for post-conviction relief, which was denied, and the appellate judgment affirming that disposition issued in 2003.1

On March 8, 2004, the United States Supreme Court decided Crawford. In June 2005, petitioner brought this action. As pertinent to our review, the operative formal petition for post-conviction relief included the following allegations:

"This petition is not being filed within two years of the date that Petitioner's appeal was final in the Oregon appellate courts because the specific claims asserted herein could not reasonably have been raised in the original or amended petition because they are based upon the holdings of the United States Supreme Court in * * * Crawford v. Washington * * *. The claims asserted herein were not recognized at the time of Petitioner's original petition, and controlling law at the time of Petitioner's original petition would have barred the claims asserted herein, making the assertion of said claims a futile act, which the law does not require.

"* * * * *

"Petitioner's convictions are void because Petitioner's rights of confrontation and cross-examination under Article I, § 11 of the Oregon Constitution and the 6th Amendment to the United States Constitution, made applicable to the states by the 14th Amendment to the United States Constitution, were substantially denied when the trial court erroneously admitted hearsay statements by declarants whom Petitioner had no opportunity to confront or cross-examine.

"* * * * *

"Petitioner's convictions are void because Petitioner's right to adequate and effective assistance of trial counsel, to a fair and impartial trial, and to Due Process of Law, Fundamental Fairness, and Equal Protection of the Laws under Article I, §§ 10, 11 and 20 of the Oregon Constitution and the 5th, 6th, and 14th Amendments to the United States Constitution * * * were substantially denied in the following manner:

"* * * * *

"b. Trial counsel failed to adequately challenge the violation of Petitioner's constitutional rights of confrontation and cross-examination when the trial court erroneously admitted hearsay statements of declarants whom Petitioner had no opportunity to confront or cross-examine.

"* * * * *

"Petitioner's right to adequate and effective assistance of appellate counsel, to a fair and impartial appeal, and to Due Process of Law, Fundamental Fairness, and Equal Protection of the Laws under Article I, §§ 10, 11 and 20 of the Oregon Constitution, and the 5th, 6th and 14th Amendments to the United States Constitution * * * were substantially denied in the following manner:

"* * * * * "b. Appellate counsel failed to assign error to the violation of Petitioner's constitutional rights of confrontation and cross-examination when the trial court erroneously admitted hearsay statements of declarants whom Petitioner had no opportunity to confront or cross-examine."

Defendant moved to dismiss the formal petition as failing to state a claim for post-conviction relief. ORCP 21 A(8). With respect to petitioner's Crawford-based allegations defendant argued that (1) those allegations were precluded by both the two-year statute of limitations of ORS 138.510(3)2 and the "successive petition" bar of ORS 138.550(3);3 and (2) in all events, Crawford is not retroactively applicable.

Petitioner responded that ORS 138.510(3) and ORS 138.550(3) were not preclusive because Crawford departed so dramatically from controlling precedent at the time of the criminal proceedings, particularly Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), that petitioner's Crawford-based allegations "could not reasonably have been raised in the original or amended petition." ORS 138.510(3); ORS 138.550(3). Further, invoking the analysis of Bockting v. Bayer, 399 F.3d 1010, opinion amended on denial of panel reh'g, 408 F.3d 1127 (9th Cir.2005), cert. granted sub nom Whorton v. Bockting, ___ U.S. ___, 126 S.Ct. 2017, 164 L.Ed.2d 778 (2006), petitioner contended that Crawford announced a new "watershed rule" of criminal procedure that must be given effect in collateral proceedings.

The trial court granted the motion to dismiss, adopting each of defendant's arguments: "Successive petition filed too late. ORS 138.510(3). * * * Moreover, petitioner's claims either were or could have been raised in his original petition. * * * Crawford * * * [is] not retroactive."

On appeal, the parties reiterate their arguments. We reject petitioner's claim that the admission of testimonial hearsay at his trial violated his confrontation rights, rendering his convictions void. ORS 138.530(1)(a). As explained below, we conclude that, consistently with the strictures of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), Crawford did not announce a retroactively applicable "watershed rule" of criminal procedure.

The retroactive applicability of newly announced federal constitutional rules to Oregon post-conviction relief proceedings is governed by the federal retroactivity principles expressed in Teague and elaborated in, inter alia, Schriro. See Miller, 340 Or. at 7, 125 P.3d 1260; Page v. Palmateer, 336 Or. 379, 84 P.3d 133, cert. den., 543 U.S. 866, 125 S.Ct. 205, 160 L.Ed.2d 110 (2004). The United States Supreme Court has summarized the federal retroactivity methodology as follows:

"First, the court must determine when the defendant's conviction became final. Second, it must ascertain the legal landscape as it then existed, and ask whether the Constitution, as interpreted by the precedent then existing, compels the rule. That is, the court must decide whether the rule is actually `new.' Finally, if the rule is new, the court must consider whether it falls within either of the two exceptions to nonretroactivity [set out in Teague]."

Beard v. Banks, 542 U.S. 406, 411, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004) (citations and internal quotation marks omitted).

Here, as noted, petitioner's convictions became final in 2000, four years before Crawford. Further, we do not understand the parties to dispute that the rule announced in Crawford was, in fact, "new" — and we share that understanding. In Teague, the Court explained, "[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." 489 U.S. at 301, 109 S.Ct. 1060 (emphasis in original). Here, Crawford, far from being "dictated" by then-existing precedent, viz., Roberts, dramatically deviated from, and effectively disavowed, that precedent. See Murillo v. Frank, 402 F.3d 786, 790 (7th Cir.2005) (Crawford "assuredly (and explicitly) jettisoned the Roberts standard"); Lave v. Dretke, 444 F.3d 333, 335 (5th Cir.2006) ("Because Crawford changed the test for the admissibility of certain out-of-court statements, it imposes new obligations on state and federal courts and qualifies as a new rule of criminal procedure."); accord Crawford, 541 U.S. at 75, 124 S.Ct. 1354 (Rehnquist, C. J., dissenting) ("In choosing the path it does, the Court of course overrules Ohio v. Roberts [.]").4

Thus, the analysis devolves to the third step of the federal retroactivity analysis, viz., whether the new procedural rule falls within either of the Teague exceptions to the bar against retroactive application. Here, only the second of those exceptions — for rules that "require[ ] the observance of those procedures that * * * are implicit in the concept of ordered liberty," Teague, 489 U.S. at 307, 109 S.Ct. 1060 (internal quotation marks omitted; ellipsis in original) — is arguably implicated.5

Very recently, in Miller, the Oregon Supreme Court cogently described the content and contours of the second Teague exception:

"The plurality in Teague explained * * * that the second exception includes only those watershed rules of criminal procedure that `"alter our...

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