Lobo v. Cain

A post-conviction court must assess whether, the failure to include within the amended petition, petitioner’s additional claims, “counsel has failed to exercise reasonable professional skill and judgment.” Bogle v. State of Oregon, 363 Or 455, 473, 423 P3d 715 (2018).

Petitioner appealed a denial of post-conviction relief and argued the trial court erred by not holding a hearing on Petitioner’s motion pursuant Church v. Gladden, 244 Or 308, 417 P2d 993 (1966) and by not making the required inquiry under Bogle v. State of Oregon, 363 Or 455, 423 P3d 715 (2018). The Superintendent conceded that the lower court’s failure to inquire under Bogle was an error, however, the error was harmless. A post-conviction court must assess whether, the failure to include within the amended petition, petitioner’s additional claims, “counsel has failed to exercise reasonable professional skill and judgment.” Bogle v. State of Oregon, 363 Or 455, 473, 423 P3d 715 (2018). The Court held because the lower court failed to assess Petitioner’s additional claims, the court erred. The Court reasoned the error was not harmless because of the preclusive effect in post-conviction proceedings and thus it was likely that reasonable counsel would include even claims with a low likelihood of success. Reversed in part and remanded for further proceedings consistent with this opinion; otherwise affirmed.