Cunningham v. Premo

Under ORS 138.550(3), a subsequent petition for post-conviction relief may not contain successive claims which could reasonably have been made in the previous petition.

Cunningham petitioned for post-conviction relief for a third time; one of the claims in this petition was that his rights under the Confrontation Clause of the U.S. Constitution were violated. The post-conviction court denied the claims under ORS 138.550(3), which bars successive post-conviction relief petitions. The court found that Cunningham’s claims “could reasonably have been raised” in prior petitions. Cunningham appealed the ruling that his claims were procedurally barred. He argued that the first claim could not reasonably have been made because it was based on Crawford v. Washington, 541 US 36, 124 S Ct 1354, 158 L Ed 2d 177 (2004), which was decided after his first two petitions. He also argued that he had only recently found evidence that the prosecutor had withheld material evidence at trial in violation of his due process rights under Brady v. Maryland, 373 US 83, 83 S Ct 1194, 10 L Ed 2d 215 (1963). The Court of Appeals found that Cunningham could reasonably have made the Brady claim in a previous petition because the post-conviction court found that he had the sufficient evidence to make the Brady claim at the time of his first petition. Affirmed.