by Mark Wilson

The Supreme Court of Oregon held that an untimely post-conviction relief (“PCR”) action based on a new U.S. Supreme Court ruling is authorized under an “escape clause” to the statute of limitations. However, the Court then rejected the petitioner’s argument that the U.S. Supreme Court’s decision applies retroactively to him.

Esteban Chavez pleaded guilty to a 1999 Oregon drug charge. In discussing the plea agreement with Chavez, his trial attorney did not advise him of the immigration consequences of pleading guilty.

The plea petition that Chavez signed warned that his guilty plea may result in deportation. His attorney discounted that warning, however, telling him that she did not think he would be deported. His conviction became final on September 2, 1999.

Chavez applied to become a naturalized U.S. citizen in 2011. During that process, the Department of Homeland Security discovered that he was subject to deportation due to his 1999 drug conviction.

On November 4, 2011, Chavez filed a PCR proceeding, alleging that his attorney’s failure to correctly advise him of the immigration consequences of his guilty plea constituted ineffective assistance of counsel under Padilla v. Kentucky, 559 U.S. 356 (2010). The trial court granted the State’s motion to dismiss the PCR action as untimely, finding that Chavez reasonably could have anticipated Padilla. The court also concluded that Padilla did not apply retroactively to Chavez because his conviction became final before it was decided.

The Oregon Supreme Court held that the PCR petition fell within the escape clause to the statute of limitations. It affirmed, however, agreeing with the trial court that Padilla does not apply retroactively.

“Generally, cases invoking the escape clause fall into one of two categories,” the Court explained. “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.”

“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,” the Court further explained. “This case falls in the latter category.”

Citing Chaidez v. United States, 568 U.S. 342 (2013), the Court observed that “before Padilla, the ‘almost unanimous’ 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.” However, “Oregon was an exception to that rule.” Lyons v. Pearce, 694 P.2d 969 (Ore. 1985), Gonzalez v. Oregon, 134 P.3d 955 (Ore. 2006).

Four years after Gonzalez was decided, the U.S. Supreme Court issued Padilla, imposing “a higher requirement on counsel than” the Oregon Supreme Court “had done in Lyons in 1985 and in Gonzalez in 2006,” according to the Court.

Recognizing that it had rejected an untimely Padilla claim in Verduzco v. Oregon, 355 P.3d 902 (Ore. 2015), the Court found that Chavez’s case “arises in a different posture.”

“In this case, petitioner never asserted a claim that was virtually identical to the claim that the Court later decided in Padilla, as the petitioner in Verduzco did.” For that reason, the Court could not say as it did in Verduzco “that petitioner reasonably could have anticipated Padilla in 2011 because he had, in fact, anticipated it.”

Acknowledging that if the Court “did not anticipate Padilla’s holding when [it] decided Gonzalez in 2006,” it could “hardly say that petitioner should have anticipated it five years earlier in 2001.” Accordingly, the Court held “that his petition comes within the escape clause of ORS 138.510(3).”

Turning to the question of whether Padilla applies retroactively to cases that became final before it was decided, the Court observed that Chavez recognized “that Padilla announced a new federal constitutional rule that does not apply retroactively in federal court.” He asserted, however, that “as a matter of state law, Oregon’s 1959 post-conviction statute requires that all new state and federal constitutional rules apply retroactively in state post-conviction proceedings.”

After an extensive statutory construction analysis, the Court disagreed. “Considering the text and context of Oregon’s post-conviction statute,” the Court held “that ORS 138.530 does not require that all new constitutional rules be applied retroactively.”

Accordingly, the Court affirmed the decision of the Court of Appeals. See: Chavez v. Oregon, 438 P.3d 381 (Ore. 2019). 

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