Farmer v. Premo

Under the Oregon Constitution, petitioners who seek “post-conviction relief stemming from a claim of inadequate assistance of appellate counsel for failing to assert a claimed error must establish that a competent appellate counsel would have asserted the claim” in order to establish deficient performance.

The State appealed from a judgment granting Petitioner relief on a number of claims and remanding the case for a new trial. The State argued that Petitioner failed to establish that he was entitled to relief on any of the claims. Petitioner alleged claims of inadequate assistance of counsel, direct due process violations, and claims of prosecutorial misconduct. Under the Oregon Constitution, petitioners who seek “post-conviction relief stemming from a claim of inadequate assistance of appellate counsel for failing to assert a claimed error must establish that a competent appellate counsel would have asserted the claim” in order to establish deficient performance. A post-conviction court considering inadequate representation must “evaluate the reasonableness of trial counsel’s ‘skill and judgment’ under the circumstances existing at the time of the challenged act or omission” and must not “’second guess’ an attorney’s handling of a case ‘with the benefit of hindsight.’” To overcome the presumption of effective assistance of counsel, a petitioner must show that the omitted issue was “clearly stronger than issues that counsel did present.” The post-conviction court used the incorrect legal analysis when it granted Petitioner’s claims for relief. Reversed as to the grant of post-conviction relief and order for new trial.