Hernandez-Nunez v. Blewett

Submitted January 12, affirmed February 9, petition for review denied June 2, 2022 (369 Or 785)

MANUEL HERNANDEZ-NUNEZ, Petitioner-Appellant, v. Tyler BLEWETT, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent. Umatilla County Circuit Court 18CV05798; A174207 502 P3d 1216

J. Burdette Pratt, Senior Judge. Jedediah Peterson and O’Connor Weber LLC filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Adam Holbrook, Assistant Attorney General, filed the brief for respondent. Before James, Presiding Judge, and Lagesen, Chief Judge, and Kamins, Judge. PER CURIAM Affirmed.

534 Hernandez-Nunez v. Blewett

PER CURIAM In this post-conviction case, petitioner argues that his trial counsel failed to exercise reasonable professional skill and judgment in response to the prosecutor’s closing argument. Petitioner acknowledges that his trial counsel lodged a successful objection during closing, and later unsuc- cessfully moved for a mistrial. But, according to petitioner, trial counsel’s argument was insufficient and counsel should have responded differently. A discussion of the context of the prosecutor’s closing arguments and the parties’ competing arguments on appeal would not benefit the bench, the bar, or the public. In short, regardless of whether trial counsel performed deficiently in failing to respond to the prosecutor’s closing in the way that petitioner contends, we agree with the post-conviction court’s conclusion that petitioner was not prejudiced by any such failure. Even if the additional arguments had been made, petitioner would not have been entitled to a mistrial or obtained an additional curative ruling that could have tended to affect the jury’s verdict. See generally Blaylock v. Laney, 313 Or App 519, 522, 494 P3d 1000 (2021) (describ- ing the prejudice standard under Article I, section 11, of the Oregon Constitution and comparable standard governing the determination of prejudice under the Sixth Amendment to the United States Constitution). Affirmed.