Perez v. Cain, SC S067002

• Court: Supreme Court of Oregon
• Citation: 367 Or. 96,473 P.3d 540
• Docket Number: SC S067002
• Parties: Ernie Junior PEREZ, Petitioner on Review, v. Brad CAIN, Superintendent, Snake River Correctional Institution, Respondent on Review.
• Decision Date: 01 October 2020

367 Or. 96
473 P.3d 540

Ernie Junior PEREZ, Petitioner on Review,
v.
Brad CAIN, Superintendent, Snake River Correctional Institution, Respondent on Review.

SC S067002

Supreme Court of Oregon, En Banc.

Argued and submitted March 6, 2020
October 1, 2020

Jedediah Peterson, O'Connor Weber LLC, Portland, argued the cause and filed the brief for petitioner on review.

Ryan Kahn, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

GARRETT, J.

473 P.3d 541

367 Or. 97

Petitioner pleaded guilty in 2005 to two aggravated murders that he had committed at the age of 14. In 2016, he filed a petition for post-conviction relief raising constitutional claims premised on this court's interpretation of ORS 419C.349, a statute governing when a juvenile defendant can be waived into adult court, in State v. J. C. N.-V. , 359 Or. 559, 380 P.3d 248 (2016). The post-conviction court concluded that petitioner's claims were barred by the claim preclusion rule in ORS 138.550(3) because petitioner could reasonably have raised those claims in an earlier petition that he had filed in 2008. For similar reasons, the post-conviction court 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 this court's decision in J. C. N.-V. , so as to allow him to escape the application of the statute of limitations in ORS 138.510(3) and the claim preclusion bar in ORS 138.550(3). As explained below, we conclude that petitioner's claims are barred by ORS 138.550(3) because he has failed to show that he could not reasonably have raised those claims at the time of his 2008 petition. We therefore affirm the decision of the Court of Appeals and the judgment of the post-conviction court.

I. BACKGROUND

In 2005, petitioner broke into a home; during the home invasion he shot and killed two people. At the time, he was 14 years old. Because of his age, proceedings against him were initiated in juvenile court. The state sought to waive him into adult court on multiple charges of aggravated murder. See ORS 419C.352 (2005) (permitting a youth under 15 years of age to be waived into adult court when the youth is alleged to have committed certain crimes, including aggravated murder). As part of a plea agreement, petitioner stipulated to a waiver to adult court; the juvenile court found that the criteria for waiver set out in ORS 419C.349(3) - (4) (2005) were satisfied, including that petitioner "at the time of the alleged offense was of sufficient sophistication and

367 Or. 98

maturity to appreciate the nature and quality of the conduct involved." ORS 419C.349(3) (2005). The juvenile court based its conclusion on a waiver study by the Marion County Juvenile Department, which had evaluated petitioner based on the criteria set out in an appendix to the United States Supreme Court's decision in Kent v. United States , 383 U.S. 541, 565, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966).¹

Petitioner entered a guilty plea to four counts of aggravated murder.² He was sentenced to two terms of life with the possibility of parole after 30 years, with 20 years of the second sentence to be served consecutive to the first. The Court of Appeals affirmed his convictions and sentence without opinion in 2007. State v. Perez , 214 Or. App. 571, 166 P.3d 607 (2007). Petitioner did not seek review in this court.

In 2008, petitioner filed a timely petition for post-conviction relief, initiating a proceeding in which he was represented by counsel. Petitioner alleged, among other things, that his trial counsel had been inadequate and

473 P.3d 542

ineffective in advising him to stipulate to the waiver to adult court. However, he did not raise a claim that the juvenile court had applied the wrong standard in permitting the waiver. In 2011, the post-conviction court granted relief in part, modifying a provision in the original judgment, but otherwise denied relief.

In 2016, this court decided J. C. N.-V . Shortly thereafter, petitioner filed a second petition for post-conviction relief. He alleged that the trial court had violated Article I, section 20, of the Oregon Constitution and the Equal Protection and Due Process Clauses of the United States Constitution by failing to conduct a waiver analysis

367 Or. 99

consistent with that required by this court's decision in J. C. N.-V .³

The superintendent filed a motion to dismiss, arguing that the petition was successive and therefore barred by the claim preclusion rule found in ORS 138.550(3). That statute provides that

"[a]ll grounds for relief claimed by petitioner in a [petition for post-conviction relief] must be asserted in the original or amended petition, and any grounds not so asserted are deemed waived unless the court on hearing a subsequent petition finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition."

In addition, the superintendent argued that the petition was untimely and therefore barred by the statute of limitations found in ORS 138.510(3).⁴ ORS 138.510(3) provides, as pertinent here, that a petition for post-conviction relief

"must be filed within two years of the following, unless the court on hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the original or amended petition:

"(a) If no appeal is taken, the date the judgment or order on the conviction was entered in the register.

"(b) If an appeal is taken, the date the appeal is final in the Oregon appellate courts."

367 Or. 100

Petitioner conceded that his petition was successive and untimely. He argued, however, that his new claims were covered by the exceptions in both ORS 138.550(3) and ORS 138.510(3) —which we have referred to as the "escape clause[s]," Bartz v. State of Oregon , 314 Or. 353, 359, 839 P.2d 217 (1992) (internal quotation marks omitted)—that allow "grounds for relief" to be raised if they "could not reasonably have been raised in the original or amended petition." He argued that he could not reasonably have raised his claims prior to this court's 2016 decision in J. C. N.-V.

The post-conviction court concluded that the petition was successive and untimely, and it held that the escape clauses did not apply. It therefore dismissed the petition for post-conviction relief.

Petitioner appealed, assigning error to, among other things, the post-conviction court's dismissal of the case. He argued that the escape clauses applied to his claims because they rested on a legal principle—the interpretation of ORS 419C.349 in J. C. N.-V. —that was not reasonably available to him

473 P.3d 543

at the time of his appeal or first post-conviction petition.⁵

The superintendent responded that petitioner could have raised his escape-clause argument at the time of his first post-conviction proceeding and within two years of his conviction becoming final. The superintendent argued that, prior to J. C. N.-V. , "no appellate authority foreclosed the argument that the Supreme Court endorsed in that case," and all of the statutory construction principles and materials relied on in J. C. N.-V. were available to petitioner before that case was decided.

The Court of Appeals affirmed. Perez , 297 Or. App. 617, 444 P.3d 506. In reaching that conclusion, the Court of Appeals gave substantial weight to the waiver study on which the trial court had relied in waiving petitioner into adult court, noting that the study had conducted the type of analysis that

367 Or. 101

this court said was required in J. C. N.-V. Id. at 625-26, 444 P.3d 506. The Court of Appeals reasoned that

"[t]he waiver study put at issue the application of the Kent criteria, making it reasonably possible for petitioner to raise any issues regarding the juvenile court's inquiry under those criteria long before the Supreme Court's decision in J. C. N.-V. ; in fact, given that the waiver study was based on the Kent criteria, it is not wholly implausible to think that, but for petitioner's stipulation to the waiver into adult court, the court would have conducted ‘the kind of inquiry contemplated by the Kent criterion’ that the J. C. N.-V . court held is required."

Id. at 626, 444 P.3d 506. The Court of Appeals also noted that petitioner's first post-conviction proceeding occurred contemporaneously with the juvenile court proceedings in J. C. N.-V. Id . The Court of Appeals therefore concluded that petitioner's claims did not fall within the escape clauses. Id.

Petitioner filed a petition for review, arguing that the Court of Appeals had...