Chavez v. State

364 Or. 654

438 P.3d 381

Esteban CHAVEZ, Petitioner on Review,

v.STATE of Oregon, Respondent on Review.

CC 111114537 (SC S064968)

Supreme Court of Oregon.

Argued and submitted March 8, 2018, at the University of Oregon School of Law, Eugene, Oregon.

April 4, 2019

Steven E. Benson, Portland, argued the cause and filed the brief for petitioner on review.

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

Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn and Nelson, Justices, and Kistler and Brewer, Senior Justices pro tempore.^**

KISTLER, S. J.

In 1999, petitioner pled guilty to delivering cocaine. In 2011, he initiated this post-conviction proceeding. Relying on Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), he alleged that his trial attorney failed to advise him about the immigration consequences of his guilty plea in violation of the Sixth Amendment. The trial court dismissed the petition both because it was untimely and because Padilla does not apply retroactively. The Court of Appeals affirmed the post-conviction court’s judgment on the latter ground. Chavez v. State of Oregon , 283 Or.App. 788, 391 P.3d 801 (2017). On review, petitioner challenges both grounds that the trial court identified for dismissing his petition. We hold that, although the petition was timely, the only retroactivity argument that petitioner raises on review—that Oregon’s post-conviction statutes require that all new constitutional rules be applied retroactively—is not well taken. Accordingly, we affirm the Court of Appeals decision and the trial court’s judgment.

Because the trial court granted the state’s motion to dismiss the petition for post-conviction relief, we assume that the allegations in the petition are true and state the facts consistently with those allegations. In 1999, petitioner was charged with possessing and delivering cocaine. Before trial, the district attorney offered petitioner a plea deal: If petitioner would plead guilty to delivering a controlled substance, the state would dismiss the possession charge and recommend a light sentence. In discussing the plea with petitioner, petitioner’s lawyer did not advise him of the immigration consequences of pleading guilty to delivering a controlled substance. However, as part of the plea deal, petitioner did read and sign a plea petition, which recited:

"I know that if I am not a United States citizen, my plea may result in my deportation from the USA, or denial of naturalization, or exclusion from future admission to the United States."

Petitioner’s attorney discounted that warning; she advised him that she "did not think [he] would be deported as a result of his guilty plea." Finally, petitioner alleges that he "has no recollection" whether the trial judge discussed the immigration consequences of his plea with him before he pled guilty to delivering a controlled substance. Petitioner did not appeal from the resulting judgment of conviction, which became final on September 2, 1999.

In 2011, petitioner applied to become a naturalized United States citizen. In processing his application, the Department of Homeland Security discovered that he had been convicted of delivering a controlled substance and, as a result, was subject to deportation. On November 4, 2011, petitioner filed his first petition for post-conviction relief. He alleged that the Court’s 2010 decision in Padilla demonstrated that his trial attorney’s advice fell below the standard that the Sixth Amendment requires. Specifically, petitioner alleged that his attorney was constitutionally deficient because she did not advise him that, if he pled guilty to delivering a controlled substance, he would almost certainly be deported.

The state moved to dismiss the petition, and the trial court granted the motion. The trial court reasoned that the petition was time-barred because petitioner reasonably could have anticipated Padilla and alternatively that Padilla did not apply retroactively to decisions that became final before it was decided. The Oregon Court of Appeals affirmed the trial court’s judgment, reasoning that the argument that petitioner advanced for applying Padilla retroactively could not be reconciled with the Court of Appeals and this court’s decisions. Chavez , 283 Or.App. at 796-99, 391 P.3d 801.

On review, the parties raise two issues. The first is whether the two-year statute of limitations in ORS 138.510(3)(a) bars petitioner’s Sixth Amendment claim. The second is whether, if it does not, the Court’s 2010 decision in Padilla applies retroactively to a conviction that became final in 1999. We begin with the first issue.

I. STATUTE OF LIMITATIONS

ORS 138.510(3) provides:

"A petition pursuant to ORS 138.510 to 138.680 must be filed within two years of the [date that the challenged conviction became final], 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."

As this court has explained, that subsection contains both a limitations period within which a post-conviction petition must be filed (two years from the date that the conviction became final) and an escape clause (the limitation period does not apply if the grounds for relief asserted in the petition could not reasonably have been raised within the limitations period). See Bartz v. State of Oregon , 314 Or. 353, 357-58, 839 P.2d 217 (1992).

Because petitioner filed this petition for post-conviction relief approximately 12 years after his conviction became final, ORS 138.510(3) bars his petition unless the ground for relief asserted in the petition comes within the escape clause. Generally, cases invoking the escape clause fall into one of two categories. In one, the applicable law is established within the two-year limitation period, and the question is whether the petitioner reasonably could have asserted that available legal ground for relief. Compare Gutale v. State of Oregon , 364 Or. 502, 519-20, 435 P.3d 728 (2019) (holding that, even though Padilla had been decided when the petitioner pled guilty, a reasonable trier of fact could find that the petitioner was not on notice that he should investigate the possibility of adverse immigration consequences within the two-year limitations period), with Bartz , 314 Or. at 359-60, 839 P.2d 217 (holding that the petitioner should have discovered within the limitations period a statutory defense to the charge to which he pled guilty). In the other category, a new constitutional rule is announced after the two-year limitation period expired, and the question is whether that "new rule" reasonably could have been raised within the limitations period. See Verduzco v. State of Oregon , 357 Or. 553, 355 P.3d 902 (2015).

This case falls in the latter category. Petitioner argues that, when he pled guilty in 1999, the accepted understanding was that failing to warn a defendant about the collateral consequences of a guilty plea, such as the possibility of deportation, did not constitute inadequate assistance for the purposes of the Sixth Amendment. Rather, a lawyer would fall below the standard that the Sixth Amendment required only if he or she failed to warn a defendant about the direct consequences of a plea, such as the maximum sentence that could be imposed as a result of the plea. The state responds that, as a matter of state constitutional law, this court required lawyers to advise their clients about the immigration consequences of a guilty plea as early as 1985 and that, before the Court decided Padilla in 2010, petitioners seeking post-conviction and habeas relief had argued that their lawyers violated the Sixth Amendment by failing to advise them of the immigration consequences of their pleas. In considering the parties’ arguments, we first describe briefly the state of the law before Padilla and then turn to the question whether petitioner’s Sixth Amendment claim reasonably could have been raised within two years of September 2, 1999, the date his conviction became final.

In 2006, this court explained that the Sixth Amendment required defense counsel to advise their clients of the direct but not the collateral consequences of a guilty plea. Gonzalez v. State of Oregon , 340 Or. 452, 457-58, 134 P.3d 955 (2006). As petitioner notes, the direct consequences of a plea include the maximum and mandatory minimum sentences that can be imposed as a result of the plea while the collateral consequences include deportation, the loss of a license to practice a profession, the termination of parental rights, and the like. Id. (citing Gabriel J. Chin and Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas , 87 Cornell L. Rev. 697, 699-701 (2002) ). As a result, before Padilla , the "almost unanimou[s]" rule was that a defense counsel’s failure to advise a client about the immigration consequences of a guilty plea did not provide a basis for seeking state post-conviction or federal habeas relief. Chaidez v. United States , 568 U.S. 342, 350, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013).

Oregon was an exception to that rule. In 1985, this court held that lawyers will fall below the standard that the Oregon Constitution requires if they fail to warn clients who are not United States citizens that a guilty plea "may result" in deportation and other adverse immigration consequences. Lyons v. Pearce , 298 Or. 554, 567, 694 P.2d 969 (1985). In 2006, this court reaffirmed Lyons . Gonzalez , 340 Or. at 459, 134 P.3d 955.¹ Specifically, it considered and rejected a claim that, in light of changes to federal immigration law in 1996, the Oregon Constitution now required lawyers to warn their clients that deportation was a virtual certainty if they pled guilty to certain enumerated crimes. Id. This court instead reaffirmed that it was...