Brenner v. Nooth

In a post-conviction relief proceeding, an ineffective assistance of counsel claim must be based on evidence that would have been admissible at the defendant’s criminal trial.

Defendant, the superintendent of the Snake River Correctional Institution, appealed an order of post-conviction relief that was granted on the basis that Petitioner was prejudiced by ineffective assistance of counsel at his criminal trial. Defendant argued that key evidence offered by Petitioner in support of his claim of inadequate assistance of counsel would have been inadmissible at his criminal trial, and therefore, the post-conviction court erred in granting relief based in part on that evidence. In a post-conviction relief proceeding, an ineffective assistance of counsel claim must be based on evidence that would have been admissible at the defendant’s criminal trial. The Court of Appeals held that under the admissibility requirements set out in State v. Brown, 297 Or 404 (1984), and State v. O’Key, 321 Or 285 (1995), the evidence was "scientific" in nature and was inadmissible at the criminal trial. The Court concluded that the post-conviction court erred in granting petitioner post-conviction relief because Petitioner had not been prejudiced at trial. Reversed and remanded.