State of Oregon v. Hernandez-Zurita

"The 'reasonableness of a petitioner's failure to act on information that is available is simply not enough to trigger the escape clause of ORS 138.510(3).'" Fisher v. Belleque, 237 Or App 405, 411, 240 P3d 745 (2010), rev den, 349 Or 601 (2011).

Petitioner appealed the post-conviction court's judgment of dismissal of his petition for post-conviction relief. Petitioner assigned error to the court's failure to take into account Verduzco v. State of Oregon, 357 Or 553, 571, 355 P3d 902 (2015), which held that "the question whether a claim reasonably could have been raised earlier will vary with the facts and circumstances of each claim." Petitioner argued on appeal that the lower court should have taken the specific facts of his situation into account when determining if the so called "escape clause" of ORS 138.510(3) applied to his case. In response, the State argued that Oregon case law clearly holds that if information regarding post-conviction relief is available to a defendant at the time of their conviction, the escape clause is not applicable. "The 'reasonableness of a petitioner's failure to act on information that is available is simply not enough to trigger the escape clause of ORS 138.510(3).'" Fisher v. Belleque, 237 Or App 405, 411, 240 P3d 745 (2010), rev den, 349 Or 601 (2011). The Court of Appeals held that Verduzco did not change the pre-established standard set by the Court of Appeals because Verduzco did not change the meaning of ORS 138.510(3). Affirmed.