Oregon Supreme Court Explains PCR ‘Escape Clause’ Availability for Untimely Filed Petitions
by Mark Wilson
The Oregon Supreme Court held that an untimely post-conviction relief (“PCR”) proceeding may be filed if the legal and factual basis for a claim could not have been accessed, and a reasonable person would not have thought to investigate the existence of that claim within the applicable two-year statute of limitations.
In a companion case issued the same day (see below), the Court drew a line between those cases that fall within the so-called “escape clause” in ORS 138.510(3) and those that do not.
Somalia refugee Abdalla Dahir Gutale arrived in the U.S. as a teenager in 2003. When Gutale was 20 years old, he was charged with several Oregon crimes for having sex with a 16-year-old girl in April 2010.
Gutale pleaded guilty to a misdemeanor sex crime, and the remaining charges were dismissed. Under Padilla v. Kentucky, 559 U.S. 356 (2010), Gutale’s trial attorney was required to inform him of the potential immigration consequences of his guilty plea. However, neither trial counsel nor the court gave Gutale any indication that his plea exposed him to any immigration consequences, even when he stated, on the record, that he was pleading guilty because he wished to travel and to become a U.S. citizen. Gutale’s conviction was entered on June 3, 2010.
Two years later, Immigration and Customs Enforcement (“ICE”) agents detained Gutale and initiated deportation proceedings against him on June 4, 2012. It wasn’t until then that Gutale discovered he could be deported as a result of his 2010 misdemeanor sex abuse conviction.
In May 2013, Gutale filed an Oregon PCR proceeding, alleging that his trial counsel was ineffective for failing to advise him of the immigration consequences of his 2010 guilty plea. The State moved to dismiss the proceeding as barred by the two-year statute of limitations imposed by ORS 138.510(3).
Gutale argued that he did not know trial counsel had been ineffective until he was subjected to deportation proceedings and learned, at that time, that he had pleaded guilty to a deportable offense. He also argued that he had no reason to suspect that he would suffer immigration consequences or that his attorney had failed to provide him with legally required advice.
The trial court acknowledged that if Gutale’s claims were true, he would have a strong ineffective assistance of counsel claim under Padilla. Nevertheless, the court dismissed the action, concluding that the information underlying Gutale’s claim “would have been available” to him because Padilla “already had been decided.”
The Oregon Supreme Court reversed, holding that “being reasonably available means more than just that a petitioner could have found the law if he or she had looked. Instead, a ground for relief is reasonably available only if there was a reason for the petitioner to look for it.
Oregon’s Post-Conviction Hearing Act is a collateral appeal that provides “the primary mechanism by which a person who has been convicted of a crime may allege constitutional errors that were not, and could not have been, raised during the underlying criminal proceeding or on direct appeal,” the Court explained. “Those errors frequently involve allegations that counsel was unconstitutionally ineffective and inadequate in his or her handling of the criminal case,” the Court added.
Under ORS 138.510(3), PCR claims must be brought within two years of the date that the conviction becomes final. The statute contains an “escape clause,” however, allowing a petitioner to bring a “ground for relief ... which could not reasonably have been raised” within the two-year limitations period.
Given that Gutale’s conviction became final on June 3, 2010, his May 2013 PCR proceeding was filed beyond the two-year statute of limitations. The question, then, is whether the ORS 138.510(3) “escape clause” authorizes his untimely action.
A claim “could not reasonably have been raised earlier if the ground for relief was not known and was not reasonably available,” the Court instructed. “That is true for both the factual and legal basis for a ground for relief.”
The Court rejected the State’s argument that Gutale’s action was untimely because people are presumed to know the law. “Being reasonably available means more than just that a petitioner could have found the law if he or she had looked,” the Court instructed.
“Instead, a ground for relief is reasonably available only if there was a reason for the petitioner to look for it.”
The Court ultimately concluded that the governing standard “is very similar to” the “discovery rule” standard in other contexts. It “requires assessing both whether the petitioner reasonably could have accessed the ground for relief and whether a reasonable person in petitioner’s situation would have thought to investigate the existence of that” claim.
Importantly, the Court found it significant that Gutale was an unrepresented petitioner. “Although counsel may be responsible for knowing that there may be immigration consequences to a criminal conviction,” the Court did “not presume that to be the case for an individual petitioner, unless there is a factual basis for concluding that the petitioner knew that there may be immigration consequences to his or her conviction.”
Applying that standard, the Court held that Gutale’s PCR action came within the “escape clause” because “he might have found the ineffective assistance of his counsel if he had looked for it, but he had no reason to look for it before being detained by ICE.”
Accordingly, the Court held that the trial court improperly granted the State’s motion to dismiss because there was no factual record establishing that Gutale “had information about the immigration consequences of his conviction” within the two-year limitations period. See: Gutale v. State, 435 P.3d 728 (Ore. 2019).
Mental Health Issue
On the same day, the Oregon Supreme Court issued its decision in a companion case brought by Ricardo Perez-Rodriguez who immigrated to the United States from Argentina as a six-year-old boy in 1977.
Perez-Rodriguez was a lawful permanent resident when he went to a hospital emergency room on August 27, 2011. He began acting erratically in the waiting room and attacked and injured a security guard who was attempting to assist him.
When police arrived and read Perez-Rodriguez his Miranda rights, he said “I didn’t do anything wrong” and “I hear voices, and I wish I wouldn’t listen to them.”
On January 6, 2012, Perez-Rodriguez pleaded guilty to felony attempted second-degree assault. The trial court did not inform Perez-Rodriguez that his conviction could result in potential immigration consequences, as required by ORS 135.385(2)(d).
However, his plea petition warned that there may be deportation consequences if he was not a U.S. citizen.
During sentencing, trial counsel informed the court that Perez-Rodriguez “unfortunately has had a long history of suffering from significant mental health problems and on this date was not on his normal prescribed medication.”
The trial court ultimately imposed a 36-month prison term and 36-month post-prison supervision term. The court ordered a mental health evaluation and that Perez-Rodriguez stay on his psychiatric medication as conditions of supervision. Perez-Rodriguez’s conviction became final on February 16, 2012.
In June 2014, ICE sent Perez-Rodriguez a Notice to Appear, charging him with deportability based on his 2012 attempted assault conviction, which constituted an “aggravated felony” under 8 U.S.C. § 1227(a)(2)(A)(iii). Perez-Rodriguez was taken into custody for purposes of deportation on August 26, 2014.
In June 2015, Perez-Rodriguez filed a PCR action, alleging that trial counsel was ineffective for failing to advise him of the immigration consequences of his guilty plea, in violation of Padilla. He claimed that his attorney told him only that he should “keep his fingers crossed.”
While acknowledging that his petition was untimely, Perez-Rodriguez alleged that his case fell within the escape clause of ORS 138.510(3) “because his mental health conditions interfered with his ability to understand that he had a post-conviction claim.” He offered evidence that he suffers from schizoaffective disorder, including “hallucinations, paranoia, delusions, and disorganized speech and thinking.” He also suffers from borderline intellectual functioning, which is defined as “below average cognitive ability (generally an IQ of 70-85).”
Nevertheless, the trial court granted the State’s motion to dismiss, finding that “petitioner has failed to establish good cause” for filing an untimely petition.
The Supreme Court affirmed the dismissal, distinguishing the case from Gutale. “In this case, but not in Gutale, petitioner was told at the time of his plea that there might be immigration consequences to his conviction, even though he was not told that there certainly would be immigration consequences,” the Court found. “Unlike the petitioner in Gutale, petitioner in this case alleges facts putting him on notice of potential immigration consequences for his criminal conviction.”
Given that he was told of the risk of immigration consequences at the time of his conviction, the Court found that “it was incumbent on him to determine what those immigration consequences might be and whether his trial counsel had failed to accurately communicate those consequences to him.”
The Court declined to decide whether a PCR petitioner’s mental illness and intellectual disability may ever justify applying the escape clause because “the parties’ arguments on that question are significantly underdeveloped” and “the question is not an easy one.”
While acknowledging that “courts frequently consider mental illness or intellectual capacity as part of a statutory or common-law tolling rule” when applying statutes of limitations, the Court found that it need not resolve that question in the present case.
“Even if a petitioner’s mental illness and intellectual disability could justify applying the escape clause,” the Court found that Perez-Rodriguez’s “allegations here would not justify applying the escape clause in this case.”
Based on the facts asserted in Perez-Rodriguez’s declarations, the Court concluded that he “had a sufficient understanding of his legal interests that, when he was told that his conviction could lead to deportation, it was incumbent on him to determine what the actual immigration consequences of his conviction would be, even if that meant seeking the advice of a lawyer.
Doing so would have led petitioner to discover the error that he now alleges was made by his trial counsel.”
Accordingly, the Court affirmed the Court of Appeals’ decision denying his petition for PCR. See: Perez-Rodriguez v. State, 435 P.3d 746 (Ore. 2019).
Related legal case
Perez-Rodriguez v. State
|Cite||435 P.3d 746 (Ore. 2019)|
|Level||State Supreme Court|