Eklof v. Steward

Under ORS 138.550(3) it is the petitioner's duty to submit evidence that the grounds for relief asserted could not have been reasonably raised in the original petition.

Petitioner appealed a judgment that denied Petitioner post-conviction relief. This was Petitioner’s second petition for post-conviction relief, the first petition was made in 1999. Petitioner appealed on three grounds: 1) that the prosecution withheld material evidence, 2) that Petitioner’s trial counsel was inadequate and ineffective, and 3) that Petitioner’s post-conviction lawyer was inadequate and ineffective. The Court upheld the denial on the first claim because the Petitioner did not provide enough evidence to show that the claim could not have reasonably been made during the 1999 appeal for post-conviction relief. The escape clause of ORS 138.550(3) requires Petitioner to show that the facts which were the basis for Petitioner’s relief could not have been discovered sooner. The burden rested on Petitioner to supply enough evidence, and Petitioner did not submit any evidence of what was known to Petitioner and lawyer at the time of the 1999 proceeding. The Court upheld the denial of the second claim because the trial counsel could not have known about the change in the law that happened in 2011 while practicing in 1995, and thus acted with a reasonable exercise of skill and judgment. The Court upheld the denial of the third claim because Petitioner did not properly challenge that the denial of Petitioner’s claim was the fault of the post-conviction attorney. Affirmed.