Watkins v. Ackley

370 Or. 604

523 P.3d 86

Jacob Keith WATKINS, Petitioner-Appellant,

v.Richard ACKLEY, Superintendent, Deer Ridge Correctional Institution, Defendant-Respondent.

CC 20CV27534 (SC S068825)

Supreme Court of Oregon.

Argued and Submitted May 12, 2022.

December 30, 2022

Ryan T. O'Connor, O'Connor Weber LLC, Portland, argued the cause and filed the brief for appellant.

Rebecca M. Auten, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Chris Perdue, Assistant Attorney General.

Rosalind M. Lee, Portland, filed the brief for amicus curiae Oregon Criminal Defense Lawyers Association.

Aliza Kaplan, Portland, filed the brief for amicus curiae Criminal Justice Reform Clinic at Lewis & Clark Law School. Also on the brief were Michaela C. Gore, Laney B. Ellisor, Colin Bradshaw, and Bijal Patel.

Anna Sortun, Portland, filed the brief for amici curiae Latino Network, Don't Shoot Portland, NAACP Corvallis-Albany Branch #1118, NAACP Eugene-Springfield Branch #1119, NAACP Salem-Keizer Branch #1166, NAACP Portland Chapter 1120B, Black Millennial Movement, Unite Oregon, Immigrant and Refugee Community Organization, and Urban League of Portland.

Before Walters, Chief Justice, and Balmer, Flynn, Duncan, Nelson, and Garrett, Justices, and Baldwin, Senior Judge, Justice pro tempore.^**

BALMER, J.

In Ramos v. Louisiana , ––– U.S. ––––, 140 S Ct 1390, 206 L Ed 2d 583 (2020), the United States Supreme Court held that the Sixth Amendment to the United States Constitution requires that a jury reach a unanimous guilty verdict to convict a defendant of a crime. Since that decision, this court, as the highest court in one of two jurisdictions that have permitted criminal defendants to be convicted by nonunanimous juries,¹ has been dealing with its implications. Until now, we have considered questions about Ramos ’s effect only in cases that have come before us on direct appeal and review—that is, cases that were still pending on appeal when Ramos was decided—meaning that any violation of the rule announced in Ramos could be raised before the judgment of conviction became final. See, e.g. , State v. Williams , 366 Or. 495, 466 P.3d 55 (2020) (defendant's conviction based on nonunanimous jury verdict was plain error, and court's exercise of discretion to review the error and reverse the conviction was warranted); State v. Ulery , 366 Or. 500, 464 P.3d 1123 (2020) (same); State v. Flores Ramos , 367 Or. 292, 478 P.3d 515 (2020) (although jury instruction that defendant could be convicted on nonunanimous jury verdict was constitutional error, defendant was not entitled to reversal of conviction when jury's guilty verdict was unanimous; convictions based on nonunanimous verdicts must be reversed). Today, we consider the effect of Ramos in a case that comes to us in a different posture: an appeal from a trial court's rejection of a post-conviction petitioner's challenge to convictions that were obtained through nonunanimous verdicts. Petitioner raised the issue as soon as Ramos was decided—but years after the challenged convictions had become final. The issue on appeal thus concerns the so-called "retroactivity"² of the constitutional rule announced in Ramos in a post-conviction proceeding under ORS 138.510 to 138.680.

The Court of Appeals certified the appeal to this court, as provided in ORS 19.405. This court accepted the certification, and we now hold that, when a petitioner seeks post-conviction relief, on Sixth Amendment grounds, from a judgment of conviction which was based on a nonunanimous verdict and which became final before the Supreme Court's Ramos decision issued, the petitioner is entitled to relief—assuming that none of the procedural defenses in the Post-Conviction Hearings Act have been raised and sustained. That is so because convicting a defendant on a nonunanimous jury verdict amounts to a "substantial denial in the proceedings resulting in petitioner's conviction *** of petitioner's rights under the Constitution of the United States *** which denial rendered the conviction void," for which post-conviction relief "shall be granted." ORS 138.530(1)(a).³

I. HISTORICAL FACTS

In 2011, petitioner was convicted of four felonies, all based on verdicts that were not unanimous. At that time, the prevailing understanding was that a nonunanimous guilty verdict did not violate a criminal defendant's Sixth Amendment right to a jury trial, Apodaca v. Oregon , 406 U.S. 404, 92 S Ct 1628, 32 L Ed 2d 184 (1972), and petitioner did not raise any objection to the nonunanimous verdicts in the trial court, in his unsuccessful direct appeal, or in the trial and appeal of his first, unsuccessful post-conviction petition. But after the Supreme Court announced in Ramos that the Sixth Amendment prohibited criminal convictions based on nonunanimous verdicts, petitioner filed a second post-conviction petition, raising claims that (1) his convictions based on nonunanimous verdicts violated his Sixth Amendment right to a jury trial; (2) because of the discriminatory origins of Oregon's constitutional provisions allowing conviction by a nonunanimous verdict, his conviction by a nonunanimous jury also violated his rights under the Equal Protection Clause of the Fourteenth Amendment; (3), (4) his trial and appellate counsel had each been constitutionally inadequate in failing to raise challenges to the nonunanimous guilty verdicts in anticipation of a change in the Supreme Court's view of the constitutionality of such verdicts; and (5) the trial court's instruction that the jury could convict on nonunanimous verdicts constituted structural error.

The state moved for summary judgment on all five claims.⁴ The state argued that petitioner's equal protection claim was barred by the statute of limitations and other procedural bars in the Post-Conviction Hearing Act (PCHA), ORS 138.510 to 138.680,⁵ but it notably did not raise those procedural bars against petitioner's remaining claims. On the inadequate assistance of counsel claims, the state argued that, given the state of the law at the time of petitioner's trial and appeal, counsel had not been constitutionally deficient in failing to challenge the constitutionality of petitioner's convictions by nonunanimous verdicts and, in any event, petitioner had not been prejudiced by counsels’ failure to raise such challenges. And on the two claims that relied directly on Ramos — the first and fifth claims just outlined—the state argued that: (1) under then-applicable federal analysis, the rule announced in Ramos would not apply "retroactively" to convictions that already were final when that case was decided because the rule is neither a new substantive rule of constitutional law nor a new "watershed" rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding;⁶ and (2) under Page v. Palmateer , 336 Or. 379, 386, 84 P.3d 133 (2004), that, at least for new rules of criminal procedure that are drawn from the United States Constitution, federal retroactivity analysis applies in petitioner's state post-conviction proceeding.⁷

Petitioner conceded that the two inadequate assistance claims could not be sustained but resisted the motion for summary judgment as it applied to the remaining claims, arguing, on various grounds, that post-conviction relief is available in Oregon for petitioners whose convictions were obtained in violation of the rule announced in Ramos , even for convictions that became final before the Ramos decision issued. The post-conviction court granted the state's motion for summary judgment, briefly explaining that, in its view, (1) the rule in Ramos "does not apply retroactively to cases on collateral review"; and (2) petitioner had not produced evidence sufficient to create an issue of fact as to whether he could not have reasonably raised his equal protection claim at an earlier time or proceeding.

Petitioner filed a notice of appeal and then moved jointly with the state for certification of the appeal to this court, as provided in ORS 19.405 and ORAP 10.10. As noted, the Court of Appeals granted that motion and certified the appeal, and this court accepted the Court of Appeals’ certification.

Before this court, petitioner challenges only the post-conviction court's refusal to grant relief on his first claim—the claim that, because his convictions were based on nonunanimous jury verdicts, they were obtained in violation of the Sixth Amendment, which is applicable to defendants under the Fourteenth Amendment, as decided in Ramos . Because the import of Ramos is undeniable and the state has not argued that some other bar to relief (such as the res judicata bars set out in ORS 138.550 ) applies,⁸ the issue before this court is a narrow one: Did the post-conviction court err in denying relief for that constitutional violation, based on its conclusion that the rule of Ramos "does not apply retroactively" to convictions that already were final when Ramos issued?

II. LEGAL BACKDROP

On the question whether a convicted person can obtain retroactive relief in post-conviction for the state's violation of a federal constitutional rule that was not judicially recognized until after the person was convicted, Oregon law is not clear. Much of the confusion stems from uncertainty about whether and how the federal "retroactivity" doctrine is binding in state court proceedings. As we described in Chavez v. State , 364 Or. 654, 664-68, 438 P.3d 381 (2019), the federal retroactivity doctrine evolved in the context of federal habeas corpus proceedings at a time when the United States Supreme Court was both expanding the list of federal constitutional rights that were applicable to the states and thus could be raised in federal habeas, and removing procedural barriers that had prevented federal habeas petitioners from raising "new" constitutional...