Perez v. Cain

Decision Date22 May 2019
Docket NumberA164434
Citation297 Or.App. 617,444 P.3d 506
Parties Ernie Junior PEREZ, Petitioner-Appellant, v. Brad CAIN, Superintendent, Snake River Correctional Institution, Defendant-Respondent.
CourtOregon Court of Appeals

Ernie Junior Perez filed the briefs pro se.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jonathan N. Schildt, Assistant Attorney General, filed the briefs for respondent.

Jedediah Peterson, O’Connor Weber LLC, Christa Obold Eshleman, and Youth, Rights & Justice filed the joint brief amicus curiae for O’Connor Weber LLC and Youth, Rights & Justice.

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


The question presented by this post-conviction appeal is whether petitioner’s claim that a juvenile court "must find that [a] youth possesses sufficient adult-like intellectual, social and emotional capabilities to have an adult-like understanding of the significance of his or her conduct, including its wrongfulness and its consequences for the youth, the victim and others" in order to waive a youth into adult court under ORS 419C.349, as required under State v. J. C. N.-V. , 359 Or. 559, 597, 380 P.3d 248 (2016), is one that he reasonably could have raised in his earlier post-conviction proceeding initiated in 2009. Petitioner, who is representing himself in this proceeding, contends that a claim that the juvenile court erroneously failed to apply the waiver standard articulated in J. C. N.-V. could not reasonably have been raised until the Supreme Court decided J. C. N.-V. in 2016, and, therefore, he should be permitted to go forward with that claim in this successive post-conviction proceeding under the escape clause of ORS 138.550(3). The post-conviction court concluded otherwise and dismissed the petition.

To obtain a fuller perspective on the question presented, we requested amicus briefing from O’Connor Weber LLC, a law firm with considerable expertise in Oregon post-conviction law, and from Youth, Rights & Justice, an organization with considerable expertise in Oregon juvenile law. They joined forces and submitted a thoughtful amicus brief, for which we are appreciative. Petitioner and the superintendent then submitted additional responsive briefing, for which we are grateful as well.

Having considered the briefing by all parties, we conclude, for the reasons that follow, that petitioner has not put forth sufficient facts to demonstrate that his J. C. N.-V. claim could not reasonably have been raised in his original post-conviction petition. We therefore affirm the judgment of the post-conviction court dismissing the petition.


Although this case was resolved on a motion to dismiss filed by defendant, the superintendent of the Snake River Correctional Institution, both parties submitted evidentiary exhibits to the post-conviction court in connection with the motion, and the superintendent noted to the court that it had "discretion to convert this motion to dismiss to a motion for summary judgment under ORCP 47 C to the extent that the motion is accompanied by exhibits pertaining to matters outside the pleadings." Because the post-conviction court indicated that it considered all the materials submitted by the parties, we conclude that it is appropriate to view the court’s ruling as a summary judgment ruling and review it under that standard of review. Consistent with that standard, stated below, we state the facts in the light most favorable to petitioner, the nonmoving party.

In 2005, at the age of 14, petitioner was involved in a home invasion during which he shot and killed two people. Assisted by counsel, petitioner entered a plea agreement, under which he stipulated to waiver into adult court and then pleaded guilty to four counts of aggravated murder. Accepting the stipulated waiver to adult court, the juvenile court found, as it was required to do under ORS 419C.349(3),1 that "youth at the time of the offense was of sufficient sophistication and maturity to appreciate the nature and quality of the conduct involved." In making that determination, the court relied on a "waiver study" completed by the Marion County Juvenile Department, which included an individual assessment of petitioner. Identifying its methodology, the study explained that it adhered to the criteria approved in Kent v. United States , 383 U.S. 541, 86 S. Ct. 1045, 16 L.Ed. 2d 84 (1966) :

"In considering waiver, this study follows the criteria developed by the Judge of the Juvenile Court of the District of Columbia in connection with the Judges of the U.S. Court and the U.S. Attorney and representatives of the Bar which was published as an appendix to the Kent decision [and] ORS 419C.349."

As the Supreme Court explained in J. C. N.-V. , in Kent , the United States Supreme Court "appended to its decision a set of criteria that juvenile courts in the District of Columbia had used in deciding waiver issues, hinting that due process would be served if juvenile courts based their waiver decisions on such criteria."

J. C. N.-V. , 359 Or. at 582, 380 P.3d 248. Our legislature drew the finding required by ORS 419C.349(3) from the Kent criteria, making it "logical to understand [that provision] as requiring an inquiry into the extent to which a juvenile’s mental, social and emotional developmental capabilities indicate adult-like capabilities indicative of blameworthiness." Id . at 584, 380 P.3d 248.

After his convictions became final in 2007—following an attempted appeal2petitioner filed a petition for post-conviction relief in early 2009. In that petition, petitioner alleged claims of inadequate and ineffective assistance of both trial and appellate counsel. Although one ground for relief alleged that trial counsel "erroneously advised petitioner to stipulate to *** a remand hearing to adult court and forgo the protections of a juvenile waiver hearing under ORS 419C.352," petitioner did not allege that the juvenile court had applied the wrong legal standard in accepting his stipulated waiver to adult court. In December 2011, the post-conviction court granted the petition in part, ordering a modification of petitioner’s sentence, but otherwise denied post-conviction relief.

On May 26, 2016, the Supreme Court decided J. C. N.-V. , 359 Or. 559, 380 P.3d 248. Thereafter, petitioner filed the instant petition. He alleges that, in view of J. C. N.-V. , the juvenile court’s acceptance of his stipulated waiver violated Article I, section 20, of the Oregon Constitution and the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution.3 The post-conviction court dismissed the petition on the superintendent’s motion, concluding that the new petition was both untimely and successive. In so doing, the court rejected petitioner’s contention that he was entitled to the benefit of the "escape clauses" of ORS 138.510(3)4 and ORS 138.550(3),5 which allow for the filing of an untimely or successive petition asserting grounds that "could not reasonably have been raised" in a timely filed initial petition.

On appeal, petitioner does not dispute that the petition is both untimely and successive. Instead, he contends that his asserted grounds for relief could not reasonably have been raised within the two-year limitations period for seeking post-conviction relief once his convictions were final, and also could not reasonably have been raised in his first post-conviction proceeding, entitling him to the benefit of the statutory escape clauses. Pointing to the fact that the Supreme Court’s decision in J. C. N.-V. supplies the foundation for his claims, petitioner argues that he could not reasonably have raised them until 2016, after the Supreme Court issued its decision in J. C. N.-V . Petitioner’s central thesis is that J. C. N.-V. so changed the law regarding waivers to adult court under ORS 419C.349 that he could not reasonably have raised his challenge to the juvenile court’s acceptance of his stipulated waiver until after the decision was issued, and thus could not have raised his claim in his first post-conviction proceeding.

In response, the superintendent, relying on our decision in Hardin v. Popoff , 279 Or. App. 290, 304, 379 P.3d 593, rev. den. , 360 Or. 465, 384 P.3d 151 (2016), asserts that the decision in J. C. N.-V. did not alter the law in a way that was "novel, unprecedented, or surprising" and, therefore, cannot serve as a basis for invoking the escape clauses. In the superintendent’s view, the legal principles stated in J. C. N.-V. are ones, as a general matter, that petitioner reasonably could have anticipated and raised in a timely filed post-conviction petition. The superintendent argues that J. C. N.-V. turned on a straightforward application of Oregon’s statutory construction principles—an examination of text, context, and legislative history—all of which would have been available to petitioner at the time of his original petition for post-conviction relief. In essence, because the principles that drove the decision in J. C. N.-V. are ones that were, in theory, available to be argued at the time of petitioner’s original post-conviction proceeding, a claim that the juvenile court erred by not applying those principles reasonably could have been raised before the decision in J. C. N.-V. as a matter of law and, thus, are ones that reasonably could have been raised in timely filed post-conviction petitions even before the Supreme Court’s decision in 2016. The superintendent also points out that petitioner was litigating his first post-conviction proceeding at the same time that the youth in J. C. N.-V. was litigating the proper interpretation of the waiver standard in the juvenile court and then in the Court of Appeals.

Amici urge a less categorical approach. They argue that "whether a claim ‘reasonably could have been raised’ in a timely or earlier petition depends on the circumstances...

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1 cases
  • Perez v. Cain
    • United States
    • Supreme Court of Oregon
    • October 1, 2020
    ...held that the claims were barred by the statute of limitations set out in ORS 138.510(3). The Court of Appeals affirmed. Perez v. Cain , 297 Or. App. 617, 444 P.3d 506 (2019).We allowed review to address petitioner's argument that his claims could not reasonably have been raised prior to th......

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