Opinion
A178615
08-28-2024
SIMON CORONA, Petitioner-Appellant, v. Erin REYES, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent.
Jedediah Peterson and Equal Justice Law filed the brief for appellant. Simon C. Corona filed the supplemental brief pro se. Jedediah Peterson and Equal Justice Law filed the supplemental brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Ryan Kahn, Assistant Attorney General, filed the brief for respondent.
This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).
Submitted August 1, 2024.
Umatilla County Circuit Court 20CV05168; Daniel J. Hill, Judge.
Jedediah Peterson and Equal Justice Law filed the brief for appellant. Simon C. Corona filed the supplemental brief pro se. Jedediah Peterson and Equal Justice Law filed the supplemental brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Ryan Kahn, Assistant Attorney General, filed the brief for respondent.
Before Lagesen, Chief Judge, Kamins, Judge, and Balmer, Senior Judge.
Affirmed.
BALMER, S. J.
Petitioner appeals from a judgment denying him post-conviction relief. After a jury trial in 2006, petitioner was convicted of multiple sex crimes, and he was sentenced to a lengthy period of incarceration. In 2008, we affirmed without issuing an opinion. State v. Corona, 222 Or.App. 330, 194 P.3d 193, rev den, 345 Or. 503 (2008). Petitioner filed for post-conviction relief in 2009, but the post-conviction court denied relief. In January 2020, petitioner filed a pro se petition for post-conviction relief arguing, among other things, that trial counsel, appellate counsel, and post-conviction counsel were ineffective and inadequate. Appointed counsel filed a notice pursuant to ORS 138.590(5) that the petition could not be amended to state a ground for relief. Counsel averred that "[although it was possible that petitioner may have been able to pursue a Ramos claim, the trial transcript reveals all unanimous jury verdicts." After a hearing on the sufficiency of the petition, the post-conviction court dismissed it, and the court later clarified that the petition was dismissed as time-barred and successive. We affirm.
ORS 138.590(5) provides in part that if "appointed counsel believes that the original petition cannot be construed to state a ground for relief under ORS 138.510 to 138.680, and cannot be amended to state a ground for relief, counsel shall, in lieu of moving to amend the petition, inform the petitioner and notify the circuit court of counsel's belief by filing an affidavit stating the belief and the reasons therefor with the clerk of the circuit court."
In Ramos v. Louisiana, 590 U.S. 83, 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 a jury to reach a unanimous verdict to convict someone of a felony.
We accept the post-conviction court's supported implicit and explicit factual findings and review for legal error. Green v. Franke, 357 Or. 301, 312, 350 P.3d 188 (2015). We review the post-conviction court's dismissal of a petition for legal error. Hill v. Miller, 330 Or.App. 386, 389, 543 P.3d 772 (2024). On appeal, petitioner argues that the postconviction court erred in dismissing the petition because, although the jury verdicts were unanimous, the petition could have been amended to argue that his trial counsel was ineffective in failing to object to a nonunanimous jury instruction.
Assuming without deciding that that argument was preserved, we conclude that the post-conviction court did not err in dismissing the petition. Petitioner does not argue that the untimeliness of the claims asserted in his petition should have been excused under the "escape clauses" in ORS 138.510(3) and ORS 138.550(3). Instead, he argues that the petition could have been amended to assert a Ramos claim or an ineffective assistance of counsel claim based on the failure to raise the Ramos issue. Although petitioner could not reasonably have raised those claims before Ramos, in this instance, allowing the amendment would have been futile because, as petitioner acknowledges, his jury verdicts were unanimous. See Eklof v. Persson, 369 Or. 531, 542, 508 P.3d 468 (2022) ("justice does not require futile amendments to be allowed"); see also Mandell v. Miller, 326 Or.App. 807, 811, 533 P.3d 815, rev den, 371 Or. 476 (2023) ("[W]e conclude that post-conviction petitioners cannot prove that a Ramos violation was consequential in their case when the record does not indicate whether the jury that convicted them was, in fact, nonunanimous, and are therefore not entitled to relief"). We therefore reject the argument that the postconviction court erred in dismissing the petition. In addition, having reviewed the arguments in petitioner's pro se supplemental brief, we reject them without discussion.
ORS 138.510(3) provides in part that a post-conviction petition must be filed within two years following the date a 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." ORS 138.550(3) provides in part that any grounds for relief not asserted in the original or amended petition 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." It is questionable whether ORS 138.510(3) applies in the successive petition context. See Hill, 330 Or.App. at 394-95.
Affirmed.