Holcomb v. Taylor

FLYNN, J. pro tempore Petitioner appeals from a judgment dismissing his petition for post-conviction relief (PCR) for failing to satisfy the requirement that “affidavits, records or other documentary evidence supporting the allegations of the petition shall be attached to the petition.” See ORS 138.580. As the Supreme Court has explained, the requirement means that a petitioner must support the petition for post-conviction relief with materials “that address each element of each asserted ground for relief and that, considered together, and if substantiated at the post-conviction hearing, would permit the post-conviction court to determine that the petitioner was entitled to post-conviction relief’ on the alleged ground. Ogle v. Nooth, 355 Or 570, 589, 330 P3d 572 (2014). Petitioner argues that his attachments—his own affidavits and the transcript of petitioner’s criminal trial— support his claim, set out in paragraph 9.a.l of the formal petition, that he was denied his constitutional right to counsel because his trial counsel failed “to adequately investigate, prepare and present Petitioner’s claim that he acted in self-defense” when he shot two individuals, killing one of them.1 The state responds that the attachments fail to support petitioner’s claim because the trial transcript refutes petitioner’s averments in ways that would preclude petitioner from proving his allegations.2 We conclude that petitioner’s attachments support the existence of facts that, “if substantiated,” would permit the post-conviction court to determine that petitioner is entitled to relief on the alleged ground and that nothing in the trial transcript would preclude the post-conviction court from reaching that determination. — 465 — I. BACKGROUND The relevant facts are undisputed and mostly procedural in nature. Petitioner was charged in a 29-count indictment that included the murder of one victim and the attempted murder of a second victim. State v. Holcomb, 213 Or App 168, 170-71, 159 P3d 1271, rev den, 343 Or 224 (2007). In closing remarks to the jury, petitioner’s criminal trial counsel argued that the evidence showed that the gun discharged while one victim was “wrestling” with petitioner and the other was “wailing on them” with a flashlight. However, counsel did not assert that petitioner had acted in self-defense or request a jury instruction that would have permitted the jury to acquit petitioner on that basis. The jury found petitioner guilty of murder and of multiple counts of attempted murder, burglary, and unlawful use of a weapon. On appeal, we reversed the judgment of conviction as to three counts. Petitioner then filed a petition for post-conviction relief, in which he alleged various grounds for relief, including the ground that we consider on appeal—the allegation that petitioner was denied adequate and effective representation of counsel, in violation of the state and federal constitutions, by his counsel’s failure “to adequately investigate, prepare and present Petitioner’s claim that he acted in self-defense.”3 Petitioner attached to the petition the transcripts from his criminal trial and sentencing hearing. The state moved for partial summary judgment, contending that petitioner failed to satisfy the attachment requirement of ORS 138.580 because the claims were “without support.” As to the self-defense allegations, the state argued that petitioner failed to satisfy the attachment requirement because petitioner identified no evidence or — 466 — witnesses who “would have supported a self-defense defense.” In response, petitioner submitted two affidavits, in which he averred that he “requested and wanted [his] trial attorneys to represent and present a case based on [his] claim of self-defense”; averred what the factual basis for that claim would have been; and averred that he was found guilty after his attorneys, instead, “put forth a defense that they fashioned over [petitioner’s] objections.”4 In reply, the state expanded the scope of its motion from a motion for partial summary judgment against some of plaintiffs allegations, on the basis that they were unsupported, to a motion for summary judgment as to all of petitioner’s claims on the basis that they were “entirely without support and almost certainly can never be reasonably supported.”5 The state argued that petitioner’s affidavits failed to support his allegations regarding self-defense because the transcript showed that petitioner’s trial counsel had put on the evidence that petitioner described as the basis for asserting the defense of self-defense. The post-conviction court granted the state’s motion for summary judgment and dismissed all of petitioner’s claims with prejudice. On appeal, petitioner renews his contention that he provided “evidence supporting the allegations of the petition,” at least as to the allegation that his trial counsel failed to “adequately investigate, prepare and present” petitioner’s defense that he acted in self-defense. We agree. — 467 — II. APPLICABLE LAW The requirement that a petitioner attach evidence to the petition is part of a list of requirements that a petition for post-conviction relief must meet. ORS 138.580. Those requirements include that “[t]he petition shall set forth specifically the grounds upon which relief is claimed” and that “[a]ffidavits, records or other documentary evidence supporting the allegations of the petition shall be attached to the petition”—the requirement at issue in this appeal. The attached “materials must support all elements of the asserted claims for relief.” Ogle, 355 Or at 580. Thus, before considering whether petitioner’s evidence supported his allegations, we briefly consider the elements of petitioner’s claim for relief. A. Elements that a Petitioner’s Attachments Must Support When, as here, a petitioner asserts a claim of inadequate or ineffective assistance of counsel, “the petitioner must allege, and ultimately must prove, facts showing both that counsel failed to exercise reasonable professional skill and judgment and that the petitioner suffered prejudice as a result.” Id. at 579 (citing Truillo v. Maass, 312 Or 431, 435, 822 P2d 703 (1991) (standard with respect to the Oregon Constitution) and Strickland v. Washington, 466 US 668, 695, 104 S Ct 2052, 80 L Ed 2d 674 (1984) (standard with respect to the federal constitution)). Prejudice means that “counsel’s acts or omissions had ‘a tendency to affect the result of the prosecution.’” Ogle, 355 Or at 590 (quoting Stevens v. State of Oregon, 322 Or 101, 110, 902 P2d 1137 (1985) (emphasis omitted)). As the court explained in Ogle, because “a petitioner must prove both elements of such a claim, both elements must be ‘support [ed] ’ by the materials attached pursuant to ORS 138.580.” Id. at 580 (brackets in original). Thus, for petitioner to support his claim that he was denied adequate or effective counsel by his attorneys’ failure with respect to presenting a claim of self-defense, petitioner was required to attach material to support a determination that his counsel failed to exercise reasonable professional skill and judgment regarding the possible defense of self-defense and that the alleged failure had a tendency to affect the outcome of his prosecution. — 468 — B. Ogle’s Construction of “Supporting” Attachments In Ogle, the Supreme Court addressed two key aspects of the requirement that attachments “support” the allegations of the petition: how reliable the attached materials must be and what substantive content the attachments must include. 355 Or at 576. 1. Reliable attachments can include the petitioner’s affidavit. With respect to reliability, the court held that the attached evidence need not meet “some particular standard of reliability” and, in particular, may include “the petitioner’s own averments of fact.” Id. at 589. The court rejected the state’s argument that the supporting evidence must include more than the petitioner’s own “'speculative’ averments as to criminal trial counsel’s actions or the testimony that a witness would have given and the possible effect of those actions or that evidence on the outcome of the trial.” Id. at 585. In reaching that interpretive conclusion, the court emphasized two aspects of the procedural context in which the requirement falls. First, the attachment requirement of ORS 138.580 refers to materials that must be attached at “the time of filing the petition—before the petitioner has had the opportunity to engage in discovery and, indeed, when the petitioner may not yet be represented by counsel.” Id. at 576. Second, as originally enacted, ORS 138.580 allowed a petitioner to proceed to a hearing without attaching supporting materials if the petitioner was able to give a reason that he or she could not provide supporting evidence at the time of filing. Id. at 587. As the court explained, that ability to proceed in some cases without supporting attachments suggests that the purpose of the attachment requirement was not to provide a “vehicle for weeding out purportedly unfounded petitions,” but “perhaps was to provide a bit of clarity to the 'often illiterate and unintelligible’ pleadings filed by post-conviction petitioners.” Id. (quoting Jack G. Collins and Carl R. Neil, The Oregon Postconviction-Hearing Act, 39 Or L Rev 337, 351 (1960)). Although the legislature — 469 — later amended the statute to make the attachment requirement mandatory, the court could discern no intent to impose a heightened standard of reliability for the attachments. Id. at 588. Thus, the evidence that a petitioner attaches to the petition need not meet “some particular standard of reliability.” Id. at 589. 2. Attachments need not “prove” the allegations. With respect to the substantive content of the attachments, the court concluded that “support” means that the materials “must aid or advance the allegations of the petition,” but need not be sufficient to “prove the allegations of the petition.” Id. at 581-82. By way of example, Ogle explains, to support an ineffective assistance of counsel claim based on the fact that the petitioner’s lawyer failed to call to testify an available, identified, willing alibi witness, a petitioner could attach an affidavit stating that the witness would testify to an alibi for the petitioner on the night of the crime. Id. at 582. Although the affidavit, itself, might be inadmissible, it would support the allegations of the petition, because “[i]t would include facts that, if proved at the hearing through the testimony of the identified witness, would permit the trial court to rule in the petitioner’s favor.” Id. As is clear from Ogle’s example, it is possible for a petitioner to “support” a claim that counsel was ineffective for failing to take (or taking) a particular action merely with information that counsel acted as alleged and information of how the trial could have proceeded if counsel had acted as the petitioner alleged counsel should have acted. 3. Attachments considered together As Ogle summarizes, ORS 138.580 requires the petitioner to “attach materials, including the petitioner’s own averments of fact, that address each element of each asserted ground for relief and that, considered together, and if substantiated at the post-conviction hearing, would permit the post-conviction court to determine that the petitioner was entitled to post-conviction relief’ on the alleged ground. Id. at 589. The court’s application of that test provides additional guidance for when a petitioner’s affidavit, “considered together” with the other materials, will be insufficient to — 470 — support an allegation. In particular, that guidance comes from the contrast between the alleged omission that the court determined to be supported by the petitioner’s affidavit and the alleged omissions that the court determined to be unsupported given the attached transcript of the criminal trial. First, the court considered the petitioner’s allegation that his trial counsel was ineffective with regard to petitioner’s defense of self-defense by failing to meet with and prepare a witness. Id. at 591. The petitioner supported that allegation with an affidavit in which he averred that the witness gave a statement to the police saying that she saw the victim hit the petitioner before the petitioner hit the victim and that, if trial counsel had gone over the police reports with the witness prior to trial, “she would have [had] her memory refreshed and she would have testified to the events in chronological order.” Id. at 591-92 (brackets in Ogle). He also attached the transcript of his criminal trial, which showed that the witness, instead, testified that she saw the victim hit the petitioner after the petitioner hit the victim. Id. at 591. Finally, the petitioner averred that it “was important to [his] claim of self-defense” that the witness testify to the chronology that she had given to police. Id. at 592. Those attachments supported the claim, the court explained, because “they included information that, if true and offered at the hearing in admissible form, would have permitted the post-conviction court to conclude that petitioner was entitled to post-conviction relief based on criminal trial counsel’s performance in regard to [the witness’s] testimony and the resulting prejudice to petitioner’s defense of self-defense.” Id. (footnote omitted). The court reached a different conclusion, however, with respect to the petitioner’s allegations that “his criminal trial counsel was ineffective as to his defense that he did not cause the victim serious physical injury.” Id. at 592-93. The factual premise of those allegations was that an initial x-ray of the victim’s jaw diagnosed an abscessed tooth, but that, two and a half weeks later, the diagnosis was changed to a jaw fracture. Id. at 593. Based on that premise, the petition alleged that counsel performed inadequately in “failing to adequately investigate the victim’s hospital records prior to — 471 — trial,” “failing to present evidence to the jury of the victim’s medical records,” and “failing to cross-examine [the victim’s treatment provider] regarding the victim’s abscessed tooth.” Id. The petitioner attached an affidavit in which he averred that if the jury had seen the medical records, or if his attorney had questioned the doctor about the discrepancy and delay in diagnoses, the jury would not have found that the petitioner caused the victim serious physical injury. Id. The court concluded that the petitioner’s averments did not support the claim, because the attached transcript “demonstrate [d] that the victim and [the doctor] acknowledged and explained to the jury the reasons for, and the significance of, the successive diagnoses that petitioner averred would be shown by the medical records.” Id. at 594. In other words, the post-conviction court did not err in dismissing the petitioner’s claims as to his defense that he did not cause the victim serious physical injury, because the court could not have concluded at a hearing that the petitioner was entitled to post-conviction relief based on his criminal trial counsel’s failure to make the jury aware of the diagnosis discrepancy or failure to demand on cross-examination that the doctor explain the discrepancy when the transcript showed that the jury was aware of the supposed diagnosis discrepancy and that the doctor was able to explain the discrepancy. See Stoeckert v. Nooth, 269 Or App 335, 340 n 2, 344 P3d 136 (2015) (describing Ogle as concluding that the attachments contradicted the petitioner’s claims). III. APPLICATION OF OGLE TO THIS CASE That close examination of Ogle allows us to resolve the parties’ dispute regarding whether petitioner’s materials regarding an available claim of self-defense satisfied the supporting-evidence requirement of ORS 138.580, as construed in Ogle. Petitioner contends that his supporting materials are sufficient because his affidavits aver facts that, if true, show that petitioner had a viable defense of self-defense to the charges against him, that his attorneys knew that he wanted to rely on that defense, that his attorneys did not present that defense, and that he was ultimately convicted of charges to which that defense could have been asserted. We agree. — 472 — As set out above, petitioner’s materials included his affidavits. In the first affidavit, petitioner averred that he “personally addressed the trial court and asked that [he] be allowed to defend [himself]” in order to present the claim of self-defense and that he “requested and wanted [his] trial attorneys” to present the defense of self-defense. In his second affidavit, petitioner explained in more detail the evidence that had been identified and presented in support of a viable self-defense claim: “Based on the reputation of John and Dean * * * I was hoping to purchase drugs from them at some point. In doing so I revealed that John and Dean * * * were drug dealers to their mother. Dean * * * became upset and attacked me and during the struggle John * * * picked up a flash light and tried to hit me but ended [up] hitting Dean * * * in the face. Dean * * * saw I had a gun and came after me trying to get the gun. During [the] struggle over the gun it went it [sic] off and mortally wounded Dean * * *. John * * * then came after me and fearing for my life I shot him.” Those averments constitute “support” for petitioner’s claim of ineffective assistance of counsel, as Ogle construed that requirement, because the averments, “if true and offered at the hearing in admissible form, would have permitted the post-conviction court to conclude” that petitioner had a viable claim of self-defense that his attorneys failed to present, and to conclude “that petitioner was entitled to post-conviction relief based on criminal trial counsel’s performance” in that regard “and the resulting prejudice to petitioner.” See Ogle, 355 Or at 592. The state does not specifically dispute that the aver-ments, “if true,” permit a determination that petitioner’s criminal trial counsel failed to present a viable defense of self-defense. However, the state contends that, when petitioner’s averments are compared to the attached record from petitioner’s criminal trial, the only conclusion is that petitioner cannot prevail at the post-conviction relief hearing on his claim that his trial counsel were ineffective in failing to pursue a defense of self-defense. Specifically, the state argues that the transcript shows that petitioner’s trial counsel presented in closing argument the “exact narrative” that petitioner describes as the “factual basis of the self-defense — 473 — claim”; that, because the record shows that petitioner “affirmatively waived” the right to testify in his own defense, it shows that there was no “testimony that trial counsel could have presented to the jury in order to support a claim of self-defense” and that the transcript “directly refutes” petitioner’s averment “that he wished to pursue a theory of self-defense.” We do not share the state’s view that the transcript precludes petitioner from succeeding on his claim. Based on the guidance supplied by Ogle, we conclude that the passages to which the state points in the transcript at most create a basis for a dispute of fact; they would not preclude the post-conviction court from finding petitioner’s averments to be true at the post-conviction relief hearing and, on that basis, concluding that petitioner’s criminal trial counsel were ineffective in failing to pursue a defense of self-defense. First, we reject the state’s argument that petitioner’s trial counsel could not have been ineffective in failing to present a defense of self-defense because counsel presented “that exact narrative,” for another purpose, in closing argument. We emphasize that this is not a case in which the transcript precludes petitioner’s averment from being proven, such as by demonstrating that trial counsel did take precisely the action that petitioner alleges trial counsel failed to take. Petitioner averred that his counsel failed to present the defense that defendant was acting in self-defense when he shot the victims, and the transcript does not show otherwise. Rather, although the transcript shows that petitioner’s criminal counsel argued the facts that, petitioner avers, would have supported a defense of self-defense, the transcript also confirms that petitioner’s counsel did not argue that those facts permitted the jury to find that petitioner acted in self-defense. It appears that counsel decided to present those facts in an attempt to convince the jury that the shootings were accidental, and the post-conviction court ultimately may determine that petitioner’s counsel made a reasonable tactical decision to forgo a defense of self-defense. But that is not the kind of determination that can be made at this stage of the proceedings. At the attachment stage, which can occur before the petitioner has any opportunity for discovery, the question is not whether petitioner — 474 — will be able to prove his allegation. See Ogle, 355 Or at 586. Petitioner’s averments sufficiently support his allegations because “if substantiated at the post-conviction hearing,” those averments would permit the post-conviction court to determine that petitioner’s trial counsel’s failure to present the factual narrative as a claim of self-defense constituted a failure to exercise reasonable professional skill and judgment, and would permit the post-conviction court to determine that the failure to present a self-defense claim tended to affect the result of the trial. Next, we reject the state’s argument that petitioner’s waiver of the right to testify means that there was no “testimony that trial counsel could have presented to the jury in order to support a claim of self-defense.” Nothing in the record suggests that petitioner would not have testified had an entirely different defense case been pursued and presented. Moreover, nothing in the record suggests that petitioner’s self-defense narrative could have been advanced only through petitioner’s testimony. Indeed, as the state otherwise highlights, even without petitioner’s testimony, petitioner’s trial counsel were able to argue a factual narrative that was very similar to the narrative that petitioner avers could have been presented as evidence that defendant committed the charged offenses in self-defense. Thus, nothing about his waiver of the right to testify would preclude the post-conviction court from determining that petitioner’s counsel were ineffective in failing to pursue a defense of self-defense. See Johnson v. Premo, 277 Or App 225, 241, 370 P3d 553 (2016) (rejecting state’s argument that the petitioner’s failure to testify at trial demonstrated that he could not have been prejudiced by counsel’s failure to advance the petitioner’s theory of defense, because counsel could have reasonably advanced that theory of defense without the petitioner’s testimony). Finally, we reject the state’s argument that the trial transcript “directly refutes” petitioner’s averment “that he wished to pursue a theory of self-defense.” In support of its argument, the state emphasizes that the transcript contains “no record of petitioner requesting permission to present a self-defense claim pro se” and that the transcript reveals that petitioner agreed with his trial counsel’s advice that the court should not instruct the jury on the defense of — 475 — self-defense. With respect to petitioner’s averment that he “personally addressed the trial court and asked that [he] be allowed to defend [himself]” to assert a claim of self-defense, petitioner does not aver that he made that request on the record at the time of trial, i.e., during proceedings recorded by the attached transcript. Thus, the absence of such a request in the trial transcript would not preclude a reasonable factfinder from believing petitioner’s averment. Similarly, petitioner’s statement, after both parties had rested their cases, that he agreed at that time to forgo the self-defense jury instruction, does not preclude the post-conviction court from determining that petitioner’s counsel failed to exercise reasonable professional skill and judgment before that point in investigating, preparing and presenting a defense of self-defense. Nor would it preclude the post-conviction court from determining that petitioner was prejudiced by that earlier deficient performance. While petitioner’s ultimate consent to forgo the jury instruction may be relevant for the factfinder to consider, it is not such an unexplainable discrepancy that a reasonable factfinder would be precluded from determining that petitioner has proven his claim of ineffective assistance.6 Moreover, to the extent that the state is suggesting that a petitioner’s consent to counsel’s theory of defense precludes a determination that counsel failed to “adequately investigate, prepare and present” a different defense, we know of no authority for that proposition. Indeed, our cases make clear that a petitioner’s choice to follow a particular trial strategy is “not dispositive” of whether counsel provided effective assistance. Montez v. Czerniak, 237 Or App 276, 304, 239 P3d 1023 (2010), aff’d, 355 Or 1, 322 P3d 487, adh’d — 476 — to as modified on recons, 355 Or 598, 330 P3d 595 (2014) (discussing significance of the petitioner’s choice to present evidence that he had previously been lodged on death row). We explained in Montez that the petitioner could prove that counsel was ineffective if the petitioner’s choice regarding the trial strategy “was the result of bad advice” and that, even if the petitioner proposed the strategy, an attorney’s duty can “include trying to persuade a client against implementing an ill-advised litigation strategy.” Id. The dissent alights on an argument that the state raised below but does not pursue on appeal—that the trial transcript shows a factual scenario in which “the notion of a self-defense defense” is “fantastical.” 285 Or App at 493-94 (DeVore, J., dissenting). Even if it were appropriate for this court to affirm the PCR court on a basis that the state does not argue on appeal, the fact-intensive analysis on which the dissent embarks illustrates why the argument is one to be addressed by the PCR court after a hearing. The dissent’s analysis crafts an argument for why the PCR court should ultimately determine that a defense of self-defense would have been unsuccessful, and thus that petitioner’s trial counsel were not ineffective in failing to investigate and pursue that defense. However, the question at the attachment stage is not whether the petitioner should prevail on his claim for post-conviction relief, but whether the attached information, “if true and offered at the hearing in admissible form, would have permitted the PCR court to conclude” that petitioner’s trial counsel were ineffective in failing to investigate and pursue self-defense. See Ogle, 355 Or at 592 (emphasis added; footnote omitted). Here, petitioner’s affidavits describe a factual scenario significantly different from that to which the trial witnesses testified—a factual scenario that would permit the PCR court to determine that petitioner’s trial counsel were ineffective in failing to investigate and pursue a defense of self-defense. When the record that was created at the trial is the product of the defenses that counsel did not investigate and pursue, it is an exercise of circular reasoning to rely on that trial record to determine whether counsel provided effective assistance when they failed to investigate or pursue a defense of self-defense. — 477 — Reversed and remanded as to dismissal of claim alleging failure to adequately investigate, prepare and present petitioner’s defense of self-defense; otherwise affirmed. Footnotes [1] The petition alleged several other grounds for post-conviction relief, and the court dismissed all claims. On appeal, petitioner advances no argument as to how his attachments supported a ground for relief other than counsels’ alleged failure to present a defense of self-defense, and we address the court’s ruling only as to that alleged ground for relief. See State v. Dawson, 277 Or App 187, 190, 369 P3d 1244, rev den, 359 Or 847 (2016) (declining to consider appellant’s argument when it was “inadequately developed”). [2] We refer to defendant as “the state” throughout the opinion. [3] The right to counsel under Article I, section 11, of the Oregon Constitution is referred to as the right to “adequate” assistance of counsel, while the right under the Sixth Amendment to the United States Constitution is referred to as “effective” assistance of counsel. Although the relevant constitutional provisions “are ‘worded differently,’ they ‘embody similar objectives.’” Green v. Franke, 357 Or 301, 311, 350 P3d 188 (2015) (quoting Krummacher v. Gierloff, 290 Or 867, 871, 627 P2d 458 (1981)). [4] There appears to be no dispute that the post-conviction court considered petitioner’s affidavits in ruling on the sufficiency of his attachments, ever though they were not filed with the petition. See Ogle, 355 Or at 586, (post-conviction court has discretion to allow the petitioner to amend the petition or to allow additional time to meet the attachment requirement). [5] Petitioner did not object below and does not argue on appeal that the state could not obtain summary judgment on a claim that it did not challenge in the initial motion. Cf. Eklof v. Steward, 360 Or 717, 736, 385 P3d 1074 (2016) (holding that it was improper for Court of Appeals to affirm PCR court’s grant of summary judgment on an alternative ground not “raised in the motion” or even argued by the state on appeal). However, the state does not argue on appeal that the scope of the summary judgment motion was expanded beyond petitioner’s alleged failure to support his claims as required by ORS 138.580. To the extent that an analytical distinction exists between that ground for summary judgment and the additional ground that the dissent identifies, see 285 Or App at 481-83, Eklof prevents this court from affirming on the basis of a ground not raised in the motion or argued on appeal. [6] Neither the Supreme Court in Ogle nor this court in subsequent opinions has addressed whether the petitioner must supplement his or her averments when the state identifies a potential discrepancy between the petitioner’s aver-ments and the record of the criminal trial. We need not address that question in this case, because the state’s motion for summary judgment raised only a generic challenge to the sufficiency of the petitioner’s attachments; the state waited until its answering brief on appeal to contend that petitioner’s attachments are insufficient in light of his agreement to forgo the self-defense jury instruction. “In opposing the state’s summary judgment motion, petitioner was required to address issues raised in the motion, but only those issues.” Eklof 360 Or at 736 (emphasis in original).