escape clause in Oregon

2023As this court has observed, “could” “connotes capability, as opposed to obligation.” Verduzco, 357 Or at 566 (so stating regarding the escape clause in ORS 138.550(3) for successive petitions (internal quotation marks omitted)).

2023Cite as 371 Or 413 (2023) 425 The escape clause also uses the word “reasonably.” As this court has explained regarding the escape clause in ORS 138.550(3) for successive petitions, “the adverb ‘reasonably’ modifies the phrase, ‘could * * * have raised.’ ” Verduzco, 357 Or at 566 (omission in original).

2026Compare Gutale, 364 Or at 512-13 (holding that it was error to dismiss the petition as a mat- ter of law, because the allegations, if proved, were sufficient to establish that the petitioner was not on notice to inves- tigate a claim of inadequate assistance relating to collat- eral immigration consequences, such that the escape clause would apply), with Perez-Rodriguez v. State of Oregon, 364 452 Criado v. Reyes Or 489, 497, 435 P3d 746 (2019) (concluding that the escape clause did not apply as a matter of law, where petitioner was put on notice at his plea hearing that a conviction could hav

2026Compare Gutale, 364 Or at 512-13 (holding that it was error to dismiss the petition as a mat- ter of law, because the allegations, if proved, were sufficient to establish that the petitioner was not on notice to inves- tigate a claim of inadequate assistance relating to collat- eral immigration consequences, such that the escape clause would apply), with Perez-Rodriguez v. State of Oregon, 364 452 Criado v. Reyes Or 489, 497, 435 P3d 746 (2019) (concluding that the escape clause did not apply as a matter of law, where petitioner was put on notice at his plea hearing that a conviction could hav

2026See, e.g., Bean v. Cain, 314 Or App 529, 531-31 , 497 P3d 1273 (2021) (discussing case law holding that attorney’s negligent advice regarding lim- itations period for seeking post-conviction relief is not a basis for applying the escape clause to the limitations period).

2026See, e.g., Bean v. Cain, 314 Or App 529, 531-31 , 497 P3d 1273 (2021) (discussing case law holding that attorney’s negligent advice regarding lim- itations period for seeking post-conviction relief is not a basis for applying the escape clause to the limitations period).

2026Compare Gutale, 364 Or at 512-13 (holding that it was error to dismiss the petition as a mat- ter of law, because the allegations, if proved, were sufficient to establish that the petitioner was not on notice to inves- tigate a claim of inadequate assistance relating to collat- eral immigration consequences, such that the escape clause would apply), with Perez-Rodriguez v. State of Oregon, 364 452 Criado v. Reyes Or 489, 497, 435 P3d 746 (2019) (concluding that the escape clause did not apply as a matter of law, where petitioner was put on notice at his plea hearing that a conviction could hav

2026Compare Gutale, 364 Or at 512-13 (holding that it was error to dismiss the petition as a mat- ter of law, because the allegations, if proved, were sufficient to establish that the petitioner was not on notice to inves- tigate a claim of inadequate assistance relating to collat- eral immigration consequences, such that the escape clause would apply), with Perez-Rodriguez v. State of Oregon, 364 452 Criado v. Reyes Or 489, 497, 435 P3d 746 (2019) (concluding that the escape clause did not apply as a matter of law, where petitioner was put on notice at his plea hearing that a conviction could hav

2024As we have explained, ORS 138.510(4) applies to bar the petition, and that provision does “not contain an escape clause per- mitting a delayed petition.” Mastne v. Schiedler, 180 Or App 552, 555 , 44 P3d 621 (2002); see also Baker, 325 Or App at 639 (so noting).

2024As we have explained, ORS 138.510(4) applies to bar the petition, and that provision does “not contain an escape clause per- mitting a delayed petition.” Mastne v. Schiedler, 180 Or App 552, 555 , 44 P3d 621 (2002); see also Baker, 325 Or App at 639 (so noting).

2016See Cain v. Gladden, 247 Or 462, 464 , 430 P2d 1015 (1967) (discussing what a post-conviction petitioner must allege to invoke an escape clause under ORS 138.550); see also Eklof v. Steward, 273 Or App 789 , 794 n 4, 359 P3d 570 (2015), rev allowed, 359 Or 525 (2016) (examining Cain and explaining that, although Cain addressed the ORS 138.550(2) escape clause, under Verduzco v. State of Oregon, 357 Or 553, 566 , 355 P3d 902 (2015), it was appropriate to look to Cain in construing the ORS 138.550(3) escape clause).

2016See Cain v. Gladden, 247 Or 462, 464 , 430 P2d 1015 (1967) (discussing what a post-conviction petitioner must allege to invoke an escape clause under ORS 138.550); see also Eklof v. Steward, 273 Or App 789 , 794 n 4, 359 P3d 570 (2015), rev allowed, 359 Or 525 (2016) (examining Cain and explaining that, although Cain addressed the ORS 138.550(2) escape clause, under Verduzco v. State of Oregon, 357 Or 553, 566 , 355 P3d 902 (2015), it was appropriate to look to Cain in construing the ORS 138.550(3) escape clause).

2023Case law For additional guidance regarding when the escape clause applies, we turn to several of our cases involving the clause, including our first case construing the clause, Bartz v. State of Oregon, 314 Or 353 , 839 P2d 217 (1992), and our most recent cases construing it, Gutale, and Perez-Rodriguez.

2023Case law For additional guidance regarding when the escape clause applies, we turn to several of our cases involving the clause, including our first case construing the clause, Bartz v. State of Oregon, 314 Or 353 , 839 P2d 217 (1992), and our most recent cases construing it, Gutale, and Perez-Rodriguez.

2023The Court of Appeals rejected that argument, holding that whether the escape clause applies “ ‘turns on whether the information [neces- sary to raise the ground for relief at issue] existed or was reasonably available to the petitioner, and not on whether the petitioner’s failure to seek the information was reasonable.’ ” Fisher, 237 Or App at 410 (quoting Brown v. Baldwin, 131 Or App 356, 361 , 885 P2d 707 (1994) (emphasis in Brown)).

2023The Court of Appeals rejected that argument, holding that whether the escape clause applies “ ‘turns on whether the information [neces- sary to raise the ground for relief at issue] existed or was reasonably available to the petitioner, and not on whether the petitioner’s failure to seek the information was reasonable.’ ” Fisher, 237 Or App at 410 (quoting Brown v. Baldwin, 131 Or App 356, 361 , 885 P2d 707 (1994) (emphasis in Brown)).

2021Petitioners have relied on the escape clause where their untimely claims involve “newly discovered facts” or “changes in the law.” Verduzco v. State of Oregon, 357 Or 553, 566 , 355 P3d 902 (2015); see also Eklof v. Steward, 360 Or 717, 734 , 385 P3d 1074 (2016) (considering whether peti- tion based on newly discovered Brady evidence fell within escape clause); Chavez v. State of Oregon, 364 Or 654, 663 , 438 P3d 381 (2019) (determining that petition based on new 446 Ingle v. Matteucci law announced in Padilla v. Kentucky, 559 US 356 , 130 S Ct 1473 , 176 L Ed 2d 284 (2010), fell within escape

2021Petitioners have relied on the escape clause where their untimely claims involve “newly discovered facts” or “changes in the law.” Verduzco v. State of Oregon, 357 Or 553, 566 , 355 P3d 902 (2015); see also Eklof v. Steward, 360 Or 717, 734 , 385 P3d 1074 (2016) (considering whether peti- tion based on newly discovered Brady evidence fell within escape clause); Chavez v. State of Oregon, 364 Or 654, 663 , 438 P3d 381 (2019) (determining that petition based on new 446 Ingle v. Matteucci law announced in Padilla v. Kentucky, 559 US 356 , 130 S Ct 1473 , 176 L Ed 2d 284 (2010), fell within escape

2026See Ingle, 371 Or at 446 (“If a petitioner’s mental impairments are so severe—both in terms of degree and duration—that it would be unreasonable to expect the petitioner to have taken the steps necessary to raise a ground for relief, even with available assistance, then the escape clause applies.”); Canales-Robles v. Laney, 314 Or App 413, 419-21 , 498 P3d 343 (2021), overruled on other grounds by Hill v. Miller, 330 Or App 386 , 395, 543 P3d 772 (2024) (concluding that, if the state in fact deprived the petitioner of access to all legal materials, the escape clause would apply).

2026See Ingle, 371 Or at 446 (“If a petitioner’s mental impairments are so severe—both in terms of degree and duration—that it would be unreasonable to expect the petitioner to have taken the steps necessary to raise a ground for relief, even with available assistance, then the escape clause applies.”); Canales-Robles v. Laney, 314 Or App 413, 419-21 , 498 P3d 343 (2021), overruled on other grounds by Hill v. Miller, 330 Or App 386 , 395, 543 P3d 772 (2024) (concluding that, if the state in fact deprived the petitioner of access to all legal materials, the escape clause would apply).

2022On review, the peti- tioner relied on Gutale to argue that his young age when the first petition was filed (17 or 18 years old) should have been considered in the escape-clause analysis, because “his status as a youth would have made it even more difficult to comprehend the significance of the statute [regarding try- ing juveniles as adults] or understand the ways in which he was prejudiced by its application to him.” Id. at 112 .

2022The court explained that “to the extent that Gutale made the petitioner the subject of the 146 Aponte v. State of Oregon reasonableness inquiry, it did so only for the escape clause in ORS 138.510(3), and in a case where the petitioner had not been represented by counsel in either an appeal or a prior post-conviction proceeding.” Id. at 113 .

2025See Cunningham v. Premo, 278 Or App 106 , 124- 25, 373 P3d 1167 , rev den, 360 Or 237 ; 360 Or 422 ; 360 Or 751 (2016), cert den, 580 US 1202 (2017) (“[P]etitioner may not avail himself of the escape clause based on his claim that former post-conviction counsel was inadequate.”) Petitioner next asserts that the Brady claim was not available during his initial PCR proceeding because the report was difficult to access without assistance from counsel and it was not clear that the report would be excul- patory.

2025See Cunningham v. Premo, 278 Or App 106 , 124- 25, 373 P3d 1167 , rev den, 360 Or 237 ; 360 Or 422 ; 360 Or 751 (2016), cert den, 580 US 1202 (2017) (“[P]etitioner may not avail himself of the escape clause based on his claim that former post-conviction counsel was inadequate.”) Petitioner next asserts that the Brady claim was not available during his initial PCR proceeding because the report was difficult to access without assistance from counsel and it was not clear that the report would be excul- patory.

2023Based on Gutale and the leg- islative history of ORS 138.510(3), which establishes that the legislature intended the escape clause to apply in “extraor- dinary circumstances,” Judge Tookey would have held that, “in certain circumstances, a petitioner’s mental illness is rel- evant to—and can justify application of—the escape clause.” Ingle, 315 Or App at 432 (Tookey, J., dissenting).

2023He would have further held that, when invoking the escape clause, “a petitioner must allege not only the existence of a mental ill- ness but also some additional fact or facts about how, due to that mental illness, a reasonable person in the petitioner’s situation would not have thought to investigate the existence of the asserted ground for relief during the limitation period.” Id. at 433 .

2026See Ingle, 371 Or at 446 (“If a petitioner’s mental impairments are so severe—both in terms of degree and duration—that it would be unreasonable to expect the petitioner to have taken the steps necessary to raise a ground for relief, even with available assistance, then the escape clause applies.”); Canales-Robles v. Laney, 314 Or App 413, 419-21 , 498 P3d 343 (2021), overruled on other grounds by Hill v. Miller, 330 Or App 386 , 395, 543 P3d 772 (2024) (concluding that, if the state in fact deprived the petitioner of access to all legal materials, the escape clause would apply).

2026See Ingle, 371 Or at 446 (“If a petitioner’s mental impairments are so severe—both in terms of degree and duration—that it would be unreasonable to expect the petitioner to have taken the steps necessary to raise a ground for relief, even with available assistance, then the escape clause applies.”); Canales-Robles v. Laney, 314 Or App 413, 419-21 , 498 P3d 343 (2021), overruled on other grounds by Hill v. Miller, 330 Or App 386 , 395, 543 P3d 772 (2024) (concluding that, if the state in fact deprived the petitioner of access to all legal materials, the escape clause would apply).

2023The state argued that, under Court of Appeals case law—including Fisher v. Belleque, 237 Or App 405 , 240 P3d 745 (2010), rev den, 349 Or 601 (2011)—petitioner’s mental impairments were irrele- vant to whether the escape clause applied.

2023The state argued that, under Court of Appeals case law—including Fisher v. Belleque, 237 Or App 405 , 240 P3d 745 (2010), rev den, 349 Or 601 (2011)—petitioner’s mental impairments were irrele- vant to whether the escape clause applied.

2018App. at 743 , 403 P.3d 444 (appointed counsel's failure to timely file initial post-conviction petition as promised excused the petitioner's untimely filing under the escape clause of ORS 138.510 ); Keerins v. Schiedler , 132 Or.

2010In contrast, in Keerins v. Schiedler, 132 Or App 560, 562-64, 889 P2d 385 (1995), we held that the escape clause did apply.

2016See Cain v. Gladden, 247 Or 462, 464 , 430 P2d 1015 (1967) (discussing what a post-conviction petitioner must allege to invoke an escape clause under ORS 138.550); see also Eklof v. Steward, 273 Or App 789 , 794 n 4, 359 P3d 570 (2015), rev allowed, 359 Or 525 (2016) (examining Cain and explaining that, although Cain addressed the ORS 138.550(2) escape clause, under Verduzco v. State of Oregon, 357 Or 553, 566 , 355 P3d 902 (2015), it was appropriate to look to Cain in construing the ORS 138.550(3) escape clause).

2016See Cain v. Gladden, 247 Or 462, 464 , 430 P2d 1015 (1967) (discussing what a post-conviction petitioner must allege to invoke an escape clause under ORS 138.550); see also Eklof v. Steward, 273 Or App 789 , 794 n 4, 359 P3d 570 (2015), rev allowed, 359 Or 525 (2016) (examining Cain and explaining that, although Cain addressed the ORS 138.550(2) escape clause, under Verduzco v. State of Oregon, 357 Or 553, 566 , 355 P3d 902 (2015), it was appropriate to look to Cain in construing the ORS 138.550(3) escape clause).

2023The state1 moved to dismiss the petition, assert- ing that petitioner’s mental impairments were irrelevant to 1 At the trial-court level, a person who brings a post-conviction case is the “petitioner” and the adverse party is the “defendant.” ORS 138.570; see, e.g., Bogle v. State of Oregon, 363 Or 455, 467-69 , 423 P3d 715 (2018) (discussing the “peti- tioner” and the “defendant”).

2023The state1 moved to dismiss the petition, assert- ing that petitioner’s mental impairments were irrelevant to 1 At the trial-court level, a person who brings a post-conviction case is the “petitioner” and the adverse party is the “defendant.” ORS 138.570; see, e.g., Bogle v. State of Oregon, 363 Or 455, 467-69 , 423 P3d 715 (2018) (discussing the “peti- tioner” and the “defendant”).