Cunio v. Premo

Under ORS 138.550, a petitioner may not revive a claim for relief on the same grounds raised in an earlier petition, even if new case law would make the argument successful.

Petitioner appealed the post-conviction court's grant of summary judgment and dismissal of his petition. On appeal, Petitioner argued that because his second successive petition was based on an U.S. Supreme Court case that had not been written until after his first two appeals, the claims satisfied the escape clauses in ORS 138.510 and 138.550. Under ORS 138.550(3), "all grounds for relief must be raised in the original or amended petition for post-conviction relief unless the post-conviction court 'on hearing a subsequent petitions finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition.'" The post-conviction court concluded that Petitioner was barred from bringing the current petition because he had actually raised the same arguments in earlier petitions. The Court of Appeals cited Kinkel v. Persson, 276 Or App 427 (2016), where the Oregon Supreme Court held a petitioner may not argue that a claim could not have reasonably been raised in an earlier petition when the petitioner had, in fact, raised that claim in the earlier petition. Petitioners may not revive earlier claims, even if new case law would have changed the result. Affirmed.