Opinion
A181452
10-30-2024
HILMI HAMMAD ELADEM, Petitioner-Appellant, v. Josh HIGHBERGER, Superintendent, Oregon State Correctional Institution, Defendant-Respondent.
Jason Weber and Equal Justice Law fled the brief for appellant. Section B of the brief was prepared by appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rebecca M. Auten, Assistant Attorney General, fled 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This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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 on September 13, 2024.
Marion County Circuit Court 20CV24483; Jodie A. Bureta, Judge.
Jason Weber and Equal Justice Law fled the brief for appellant. Section B of the brief was prepared by appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rebecca M. Auten, Assistant Attorney General, fled the brief for respondent.
Before Lagesen, Chief Judge, and Egan, Judge.
EGAN, J.
Petitioner appeals from a judgment denying him post-conviction relief. His appointed counsel filed a brief pursuant to ORAP 5.90 and State v. Balfour, 311 Or. 434, 814 P.2d 1069 (1991). The brief contains a Section B. See ORAP 5.90(1)(b). We affirm.
As authorized by ORS 2.570(2)(b), this matter is determined by a two-judge panel. See, e.g., State v. Yother, 310 Or.App. 563, 484 P.3d 1098 (2021) (deciding matter submitted through Balfour process by two-judge panel); Ballinger v. Nooth, 254 Or.App. 402, 295 P.3d 115 (2012), rev den, 353 Or. 747 (2013) (same).
In 2014, petitioner was convicted of multiple sex crimes and sentenced to 930 months in prison. In the postconviction court, relying on Ramos v. Louisiana, 590 U.S. 83, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020), petitioner argued that his due process rights were violated because his jury instructions allowed for nonunanimous verdicts. However, the verdicts in petitioner's case were unanimous. In the postconviction court, the superintendent moved for summary judgment. The post-conviction court granted the motion and entered a general judgment dismissing the petition.
On appeal, in Section B of his brief, petitioner renews his challenge to the jury instructions, and he also argues that his trial counsel was ineffective. Having reviewed the record, including the post-conviction court file and the transcript of the hearings, and having reviewed the Balfour brief, including the arguments in Section B, and the superintendent's response to those arguments, we have identified no arguably meritorious issues. See State v. Flores Ramos, 367 Or. 292, 333-34, 478 P.3d 515 (2020) (concluding that, as to unanimous guilty verdicts, the trial court's instruction to the jury that it could return nonunanimous guilty verdicts was harmless beyond a reasonable doubt); Mandell v. Miller, 326 Or.App. 807, 811, 533 P.3d 815, rev den, 371 Or. 476 (2023) ("[P]ost-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."); Smith v. Kelly, 318 Or.App. 567, 569, 508 P.3d 77 (2022), rev den, 370 Or. 822 (2023) (holding that defense counsel's pre-Ramos failure to object to nonunanimous jury instructions did not constitute a failure to exercise reasonable professional skill and judgment).
Affirmed.