Bean v. Cain

529

Submitted February 4, reversed and remanded September 15, 2021

DANIEL CHRISTOPHER BEAN,

Petitioner-Appellant,

v.

Brad CAIN,

Superintendent,

Snake River Correctional Institution,

Defendant-Respondent.

Malheur County Circuit Court

17CV38858; A170546

497 P3d 1273

Petitioner appeals a judgment entered after the post-conviction court granted

summary judgment in favor of the superintendent on the basis that petitioner’s

claims were untimely. On appeal, petitioner argues that he demonstrated a gen-

uine issue of material fact with respect to the application of the ORS 138.510

“escape clause,” because the record reflects that petitioner’s retained counsel did

not timely file the post-conviction petition as petitioner had reasonably expected.

Held: Petitioner was entitled to assume that retained counsel would meet the

most basic of professional obligations by filing the petition within the two-year

filing period, and a trier of fact could infer that petitioner was unable to deter-

mine until January 2016—the date that petitioner alleges that he learned of

counsel’s mistake—that no post-conviction proceeding had been initiated. That

would toll the application of the statute of limitations until January 2016, mak-

ing his petition timely.

Reversed and remanded.

Lung S. Hung, Judge.

Jedediah Peterson and O’Connor Weber LLC filed the

brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Erin K. Galli, Assistant Attorney

General, filed the brief for respondent.

Before Lagesen, Presiding Judge, and James, Judge, and

Kamins, Judge.

LAGESEN, P. J.

Reversed and remanded.

530 Bean v. Cain

LAGESEN, P. J.

Petitioner appeals a judgment entered after the

post-conviction court granted summary judgment in favor

of the superintendent on the basis that petitioner’s claims

were untimely. See ORS 138.510(3) (providing that a post-

conviction petition “must be filed within two years of the

[date that the conviction became final], unless the court

on hearing a subsequent petition finds grounds for relief

asserted which could not reasonably have been raised in the

original or amended petition”). As explained below, we con-

clude that petitioner demonstrated a genuine issue of mate-

rial fact with respect to the application of the ORS 138.510

“escape clause,” which allows petitioners to file what might

otherwise appear to be untimely claims for relief if those

claims could not reasonably have been raised within the

statute of limitations. Accordingly, we reverse and remand.

We review a post-conviction court’s grant of sum-

mary judgment to determine “whether the court correctly

concluded that there are no genuine issues of material fact

and that [the superintendent] was entitled to judgment

as a matter of law.” Putnam v. Angelozzi, 278 Or App 384,

388, 374 P3d 994 (2016). A movant is entitled to summary

judgment if, viewing the evidence in the record in the light

most favorable to the opposing party, the pleadings, deposi-

tions, affidavits, declarations and admissions on file show

that there is no genuine issue as to any material fact and

that the moving party is entitled to prevail as a matter of

law. McDonnell v. Premo, 309 Or App 173, 183, 483 P3d 640

(2021) (citing ORCP 47 C).

Viewing the record in the light most favorable to

petitioner, the nonmoving party, it reflects the following

facts pertinent to the issue before us. Petitioner was con-

victed of multiple sexual offenses and judgment was entered

in October 2010. He appealed, this court affirmed, and the

appellate judgment was entered on August 29, 2013.

Meanwhile, in the spring of 2013, petitioner had

retained counsel, Celuch, to file a post-conviction petition

on his behalf when the appeal was final. As it turned out,

Celuch mistakenly believed that another attorney was rep-

resenting petitioner in post-conviction proceedings (based

Cite as 314 Or App 529 (2021) 531

on correspondence related to a different set of charges), and

Celuch allowed the two-year deadline to lapse without fil-

ing a petition. Petitioner, who is and was incarcerated, last

spoke with Celuch in February 2013; petitioner’s family

attempted to contact Celuch in June 2015, but Celuch did

not return the calls. In January 2016, petitioner learned of

Celuch’s mistake and that no petition had been filed on his

behalf.

On September 11, 2017, just over four years after

the appellate judgment issued, petitioner filed a pro se peti-

tion for post-conviction relief; he was then appointed coun-

sel and counsel filed an amended petition. Petitioner alleged

that he could not reasonably have raised his claims within

the two-year limitations period because he retained counsel

but then counsel let the statute-of-limitations period expire.

The superintendent moved for summary judgment,

arguing that petitioner could not demonstrate that his

claims could not have been filed within the two-year filing

period. The post-conviction court expressed concern with

Celuch’s representation of petitioner but concluded that it

did not excuse the late filing. The court explained:

“Petitioner was aware of the statute of limitation, was

aware of how to hire an attorney and was aware of how to

file a petition. Nothing prevented the claim from being filed

timely. If active misrepresentation by an attorney does not

create an exception, [as the court held in Brown v. Baldwin,

131 Or App 356, 360, 885 P2d 707 (1994), rev den, 320 Or

507 (1995),] the court cannot see how negligence could. Or

put another way, neither affects the information available

to a petitioner.”

Although we appreciate the post-conviction court’s

effort to reconcile this case with Brown, we ultimately dis-

agree with the court’s reading of our case law. Although

that law is admittedly difficult to work with, an attorney’s

negligence can affect the application of the escape clause of

ORS 138.510(3) when it concerns what factual information

is “reasonably available” to a petitioner. See Bartz v. State of

Oregon, 314 Or 353, 359, 839 P2d 217 (1992).

In Brown, the post-conviction petitioner filed a late

petition and argued that the delay was reasonable because

532 Bean v. Cain

his previous attorney had incorrectly told him to wait three

years before filing the petition. We rejected that argument

on the ground that the reasonableness of the petitioner’s reli-

ance on the advice of his lawyer was “irrelevant to the Bartz

analysis” because “Bartz makes it clear that the applicabil-

ity of the escape clause turns on whether the information

existed or was reasonably available to the petitioner, and

not on whether the petitioner’s failure to seek the informa-

tion was reasonable.” Id. at 361 (emphasis omitted). But the

information at issue in Brown was the applicable statute of

limitation, which was “embodied in statutes that were pub-

lished and made available to the public by ordinary means.”

131 Or App at 360-61.

This case involves a different type of situation. The

reasonableness of petitioner’s ability to file a timely petition

does not turn on statutory information about the applicable

limitations period but rather on facts related to the status of

his legal proceedings. As we explained in Winstead v. State

of Oregon, 287 Or App 737, 740, 403 P3d 444 (2017), when

a petitioner is represented by counsel, it is “reasonable for

petitioner to assume that [that] counsel would meet the most

basic of professional obligations—filing the petition within

the two-year filing period[.]”

In this case, petitioner hired an attorney for that

very purpose and, as in Winstead, it was reasonable for peti-

tioner to believe that counsel would meet his basic profes-

sional obligations by filing the petition. Therefore, the crit-

ical question is not whether the statute of limitations was

known to petitioner, but instead the question is when peti-

tioner was aware of the fact that counsel was not going to

meet that basic obligation. More specifically, because this

appeal arises from a grant of summary judgment, the crit-

ical question is whether a reasonable factfinder could infer

that trial counsel’s failure to meet his basic professional

obligation to timely file a post-conviction petition was infor-

mation that was not reasonably available to petitioner.

For that reason, this case is more like Keerins v.

Schiedler, 132 Or App 560, 562-64, 889 P2d 385 (1995), than

it is like Brown. In Keerins, the petitioner delayed filing his

post-conviction petition because his lawyer incorrectly told

Cite as 314 Or App 529 (2021) 533

him that it was not yet time to file the petition because his

direct appeal was still pending. We held that the escape

clause applied because the status of an appeal is not the

sort of information that was reasonably available to the

petitioner. Id. at 564. We reached a similar conclusion, on

similar facts, in Fine v. Zenon, 114 Or App 183, 187, 834

P2d 509 (1992). There, we concluded that the escape clause

would apply where, assuming the truth of the petitioner’s

allegations, the petitioner’s attorney did not inform him of

the date that our court had granted his motion to dismiss

his appeal because the petitioner was entitled to rely on

counsel “to keep him abreast of procedural developments.”

Id.

As was true in Keerins and Fine, the fact that

retained counsel has or has not filed a petition is not the

type of information that is by its nature reasonably avail-

able to a petitioner, particularly without the cooperation of

that retained counsel, as is alleged to be the case here. On

this record, and in view of Winstead’s recognition that a peti-

tioner is entitled “to assume that [his] counsel would meet

the most basic of professional obligations—filing the peti-

tion within the two-year filing period,” a trier of fact could

infer that petitioner was unable to determine until January

2016—the date that petitioner alleges that he learned of

Celuch’s mistake—that no post-conviction proceeding had

been initiated. That would toll the application of the stat-

ute of limitations until January 2016, making his peti-

tion timely. See Canales-Robles v. Laney, 314 Or App 413,

421-24, 498 P3d 343 (2021) (describing the tolling effect of

the escape clause and explaining that the two-year statute

of limitations does not start to run until the necessary infor-

mation regarding a petitioner’s claims becomes reasonably

available to the petitioner). Therefore, the superintendent

was not entitled to judgment as a matter of law.

Reversed and remanded.