Oatney v. Kelly

“[A] trial counsel perform[s] inadequately [when they] fail to move to suppress [evidence]…used in violation of [an] immunity promised by [a] district attorney.” Oatney v. Premo, 275 Or App 185, 187 (2015).

Petitioner appealed from a post-conviction court's judgment that set aside an aggravated-murder conviction and death sentence, but did not include his requested provisions restricting the admissibility of certain evidence on retrial. Petitioner assigned error to the court's omission of the requested provisions from its judgment. On appeal, Petitioner argued that the "doctrines of issue preclusion, claim preclusion, and law of the case…prevent[ed] the state from relitigating the admissibility of the evidence that petitioner sought to exclude." As concluded in Petitioner's first appeal: “[a] trial counsel perform[s] inadequately [when they] fail to move to suppress [evidence]…used in violation of [an] immunity promised by [a] district attorney.” Oatney v. Premo, 275 Or App 185, 187 (2015). The Court of Appeals concluded that "the admissibility of evidence on retrial of the charges against petitioner was not, and could not have been, a subject of post-conviction relief." Accordingly, the Court held that the post-conviction court did not err in refusing to include the provisions requested by Petitioner. Affirmed.