Lopez-Minjarez v. Kelly

Court Affirms Denial of Post-Conviction Relief Where Counsel’s Errors Not Prejudicial

Defendant appealed the post-conviction court’s denial of relief from his conviction for felony murder. He asserted four assignments of error, claiming ineffective assistance of first trial counsel, retrial counsel, and appellate counsel. Defendant argued that first trial counsel prejudiced him by “opening the door” to previously excluded statements, retrial counsel proposed a legally incorrect jury instruction, and appellate counsel failed to assign error to the trial court’s refusal to instruct the jury on withdrawal.

The Court of Appeals held that defendant failed to demonstrate prejudice under Strickland v. Washington, 466 U.S. 668 (1984), or under Article I, section 11, of the Oregon Constitution. The excluded statements were consistent with defendant’s theory that his father alone committed the murder and were outweighed by other damaging evidence. The trial court properly declined to give a withdrawal instruction, and the erroneous instruction did not affect the outcome at retrial or on appeal. Appellate counsel’s strategy fell within professional discretion, and the record showed counsel did raise the withdrawal issue. Accordingly, the Court of Appeals concluded petitioner failed to show prejudice or error and AFFIRMED.