Canales-Robles v. Laney

413

Argued and submitted February 17, reversed and remanded September 9, 2021

HECTOR FERNANDO CANALES-ROBLES,

Petitioner-Appellant,

v.

Garrett LANEY,

Superintendent,

Oregon State Correctional Institution,

Defendant-Respondent.

Marion County Circuit Court

16CV21742; A169555

498 P3d 343

Petitioner appeals from a judgment dismissing his post-conviction relief peti-

tion as time-barred. Petitioner does not dispute that he filed his post-conviction

petition outside of the statutory two-year time limit, but argues that his late filing

should be excused under the statutory “escape clause” because he was deprived

of all legal materials necessary to file his petition while housed in the custody of

the Oregon Youth Authority (OYA). The state argues that defendant had access

to the necessary materials and that, even if he did not, the escape clause does not

excuse the 23-month delay in filing after petitioner was transferred to an adult

facility that did have the necessary materials. Held: The trial court erred in dis-

missing the petition as untimely. The record reflects that petitioner was told that

the OYA facility lacked any legal materials and, even though OYA later obtained

some legal materials, there is no indication that petitioner was ever informed

of the change. Viewed in the light most favorable to petitioner, the record con-

tains a genuine issue of material fact about whether petitioner reasonably could

have raised the grounds in his petition. Moreover, although there was a 23-month

delay after petitioner was transferred to the adult facility with the necessary

materials, the record also contains a genuine issue of material fact about whether

the two-year time limit to file was tolled until petitioner arrived at that facility.

Reversed and remanded.

Lindsay R. Partridge, Judge.

Kenneth A. Kreuscher argued the cause and filed the

brief for appellant.

Jordan R. Silk, Assistant Attorney General, argued the

cause for respondent. Also on the brief were Frederick M.

Boss, Deputy Attorney General, and Benjamin Gutman,

Solicitor General.

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

Kamins, Judge.

414 Canales-Robles v. Laney

KAMINS, J.

Reversed and remanded.

Cite as 314 Or App 413 (2021) 415

KAMINS, J.

Petitioner appeals from a judgment dismissing

his post-conviction relief petition as time barred. ORS

138.510(3). Petitioner does not dispute that he filed his post-

conviction petition outside of the statutory two-year time

limit, but argues that his late filing should be excused under

the statutory “escape clause” because he was deprived of all

legal materials while housed in the custody of the Oregon

Youth Authority. The trial court granted the state’s motion

for summary judgment because, assuming that the depri-

vation of legal materials could excuse a late filing, peti-

tioner waited almost two years after he was transferred to

an adult facility before he filed his post-conviction petition.

Because there is a factual dispute as to whether petitioner

reasonably could have asserted any available grounds for

relief within the statute of limitations, we reverse.

I. STANDARD OF REVIEW

In post-conviction proceedings, a movant is entitled

to summary judgment if, “viewing the evidence in the record

in the light most favorable to the opposing party,” “the plead-

ings, depositions, 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, 182-83,

483 P3d 640 (2021) (internal quotation marks omitted). We

state the facts in accordance with that standard.

II. BACKGROUND

When petitioner was 17 years old, he committed

several crimes, including attempted murder, robbery, and

assault. Petitioner had not completed high school and had

limited proficiency in English, requiring the assistance

of an interpreter during his criminal trial. After the jury

convicted him, petitioner was placed in the custody of the

Oregon Youth Authority (OYA) and housed at MacLaren

Youth Correctional Facility.

With the assistance of counsel, petitioner unsuccess-

fully appealed his conviction. His appellate attorney sent a

letter to MacLaren informing petitioner that he had lost his

416 Canales-Robles v. Laney

appeal and that the attorney-client representation was now

terminated. The letter further informed petitioner that he

had three steps available to him: (1) appeal his conviction

to the United States Supreme Court; (2) file a petition for

post-conviction relief in state court; (3) file a federal habeas

corpus petition. Petitioner spoke to his appellate attorney on

the telephone and asked for a packet of information on what

he understood to be the first step: appealing to the United

States Supreme Court. The attorney advised that he did

not have such a packet but would instead provide petitioner

with information on how to file a petition for post-conviction

relief. Petitioner’s attorney then sent petitioner a blank tem-

plate of a post-conviction relief petition that provided, in its

entirety:

“Petitioner believes that the conviction and imprisonment

from the proceedings described above was, and is, illegal.

Petitioner was substantially denied his rights in violation

of ORS 138.530 as follows.”

This text was followed by sections labeled “First Claim for

Relief” and “Second Claim for Relief” containing blank lines

for petitioner to fill in his claims.

Petitioner asked to use the law library and was

informed that “MacLaren does not have a law library.” At

that time, not only did MacLaren not have a law library,

but it also did not have a directory of attorneys, any stat-

utes (including ORS chapter 138, governing post-conviction

relief), or any case law (including cases relating to challenges

to criminal convictions). About a year and one-half after peti-

tioner’s conviction became final, the Oregon Youth Authority

adopted a “legal assistance policy” that required offenders

to have access to ORS chapter 138, which concerns direct

criminal appeals and petitions for post-conviction relief, and

a directory of attorneys, although it did not require that a

facility provide access to any other statutes, case law, or the

United States Constitution. Despite this OYA policy shift,

petitioner did not see ORS chapter 138 or the attorney direc-

tory at MacLaren, and the record does not indicate that the

youth there were made aware of the change in policy.

In August 2014, over four years after his conviction

became final, petitioner was transferred to the custody of

Cite as 314 Or App 413 (2021) 417

the Oregon Department of Corrections, where he had access

to legal materials. Approximately 23 months later, in July

2016, petitioner filed the instant petition for post-conviction

relief. In response, the superintendent moved for sum-

mary judgment, arguing that the petition was time-barred

because it was filed over six years after petitioner’s convic-

tion became final, well beyond the two-year limit provided

in ORS 138.510(3). Petitioner opposed the motion, arguing

that the lack of legal materials at MacLaren meant that his

claims “could not reasonably have been raised” during that

time period, thus qualifying him for a statutory exception

to the statute of limitations. See ORS 138.510(3). The trial

court granted the superintendent’s motion for summary

judgement:

“[L]ooking at the facts most favorable to the petitioner is

I do have someone that at the time of conviction was 17, it

would appear that had limited English skills.

“* * * * *

“I would also take it that at MacLaren that there were

legal materials—or a lack of legal materials * * *[.]

“* * * * *

“My concern about this, though, is if part of the reason-

ableness equation involves the fact that for a significant

period at the beginning of the incarceration * * * we have is

him being [at an adult prison] for 23 months without filing

something.

“And despite the fact that I am concerned about his

age and English skills and access to materials while at

MacLaren, it seems to me that waiting 23 months after

you get to [prison] to file a petition does not come within the

term of reasonableness.

“Now, I’m not saying that had he filed this on August 2nd,

2014, that would be too late. But certainly there is a period

there where it’s no longer reasonable to wait and file the

petition or not initiate the petition.

“So given the fact that there’s 23 months after he’s

[transferred] from MacLaren and he had been advised by

[his appellate attorney] that he had this post-conviction

process available to him well before that date, I can’t find

that it would be reasonable to wait till July 1st, 2016, in

order to file the petition.”

418 Canales-Robles v. Laney

On appeal, petitioner does not dispute that he filed

his petition more than two years after the date his criminal

conviction became final. He contends, however, that until he

was transferred to the Oregon Department of Corrections,

he did not have access to any legal materials and therefore

could not reasonably have raised the claims in his petition.

Because he filed the petition within two years of the trans-

fer, petitioner argues the filing was timely under the stat-

utory “escape clause.” The state responds that petitioner

was on notice of any available grounds for relief because he

was present at his criminal trial and his appellate attorney

informed him of the possibility of filing for post-conviction

relief. The state further contends that, even if the petitioner

could not have raised his claims while he was housed at

MacLaren, he could have raised them sooner than nearly

two years after his transfer.

III. ANALYSIS

To resolve this dispute, we must first determine

whether a complete lack of access to legal materials renders

post-conviction grounds for relief unavailable for purposes

of the statutory escape clause. If we conclude that the peti-

tion qualifies for the escape clause, we must then determine

whether the petition was untimely filed as a matter of law

on the record before us.

A. Triggering the Escape Clause

ORS 138.510(3) provides:

“A petition pursuant to ORS 138.510 to 138.680 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.”

The second part of the sentence is known as the “escape

clause,” allowing petitioners to escape the consequences of

an untimely filing if the claims for relief could not reason-

ably have been raised within the statute of limitations.

Generally, the escape clause allows for the filing of

an untimely petition in two circumstances: (1) “the applica-

ble law is established within the two-year limitation period,

and the question is whether the petitioner reasonably could

Cite as 314 Or App 413 (2021) 419

have asserted that available legal ground for relief” or

(2) “a new constitutional rule is announced after the two-

year limitation period expired, and the question is whether

that ‘new rule’ reasonably could have been raised within the

limitations period.” Chavez v. State of Oregon, 364 Or 654,

658, 438 P3d 381 (2019). In either case, “the availability of

information forming the grounds for post-conviction relief

is the statute’s focus.” Fisher v. Belleque, 237 Or App 405,

409, 240 P3d 745 (2010), rev den, 349 Or 601 (2011) (empha-

sis added). The escape clause “is meant to be construed

narrowly” and is limited to only those claims based on

information—either facts or law—that was not reasonably

available. Bartz v. State of Oregon, 314 Or 353, 359, 839 P2d

217 (1992); but see Gutale v. State of Oregon, 364 Or 502, 514,

435 P3d 728 (2019) (observing that Bartz did not “define just

how narrowly to construe the escape clause”).

This case involves the first type of escape clause

claim—that factual circumstances allegedly prevented

a petitioner from bringing a claim. In Bartz, the seminal

case on the first type of escape clause claim, the petitioner

argued that his attorney’s failure to inform him of a statu-

tory defense rendered it reasonable that he did not learn of

that ground for relief during the limitations period. 314 Or

at 356-57. The Oregon Supreme Court rejected that argu-

ment because, the publication of a statute by the legisla-

ture is usually sufficient to make it “reasonably available”

as a ground for relief to a post-conviction petitioner. Id. at

359-60; see also Perez-Rodriguez v. State of Oregon, 364 Or

489, 496, 435 P3d 746 (2019) (“[T]he public nature of the

law made the legal basis for the petitioner’s claim in Bartz

reasonably available to him.”). Despite petitioner’s personal

lack of knowledge of its existence, the ground for relief was

reasonably available because, “it is a basic assumption of

the legal system that the ordinary means by which the leg-

islature publishes and makes available its enactments is

sufficient to inform persons of statutes that are relevant to

them.” Bartz, 314 Or at 369.

We have never confronted a case that successfully

undermined the basic presumption that a post-conviction

petitioner has access to statutes that are generally avail-

able to the public. In Stahlman v. Mills, a petitioner who was

420 Canales-Robles v. Laney

incarcerated in a federal correctional institution outside

Oregon alleged that those facilities did not contain Oregon

statutes or case law. 238 Or App 606, 609-10, 243 P3d 786

(2010), rev den, 349 Or 654 (2011). Because the applicable fed-

eral and Oregon regulations provided the petitioner the abil-

ity to obtain the relevant statutes and case law, however, we

concluded any grounds for relief were reasonably available

to him. Id. at 611-13. Our focus in Stahlman on the actual

availability of the legal materials “implied that the outcome

might have been different if the petitioner alleged that he

had been denied access through those established adminis-

trative channels.” Hernandez-Zurita v. State of Oregon, 290

Or App 621, 631 n 1, 417 P3d 548 (2018), vac’d, 365 Or 194,

451 P3d 236 (2019) (citing Stahlman, 238 Or App at 612).1

We left open the possibility “that basic assumptions about

the availability of published laws and cases might yield in

the face of evidence that laws and information presumed

to be generally available in accordance with the presump-

tion recognized in Bartz were not, in fact, made available.”

Hernandez-Zurita, 290 Or App at 631 n 1.

This case presents that scenario. It is undisputed

that, during some or all of the statute of limitations, peti-

tioner was in state custody, incarcerated in a facility that

did not contain any legal materials. Unlike the general pub-

lic, petitioner was denied access to Oregon statutes. This

lack of availability was a condition shared by all persons

housed at MacLaren at that time and a deprivation caused

by the state. Unlike in Stahlman, this record is devoid of any

evidence of a mechanism for petitioner to obtain the neces-

sary materials to file a post-conviction petition. And also

unlike the petitioner in Stahlman, petitioner affirmatively

requested use of a law library and was told that the facility

lacked any legal materials.2

1

Although we recognize that, in Hernandez-Zurita v. State of Oregon, 365 Or

194, 451 P3d 236 (2019), the Supreme Court vacated our decision for reconsider-

ation in light of Gutale v. State of Oregon, 364 Or 502, 435 P3d 728 (2019), and

Perez-Rodriguez, 364 Or at 489, after which the case was jointly dismissed by the

parties, we discuss it as persuasive authority. See State v. Sassarini, 300 Or App

106, 125 n 1, 452 P3d 457 (2019) (looking to prior vacated decision insofar as it is

“helpful”).

2

The state points out that the Oregon Youth Authority eventually imple-

mented a policy that all facilities must have ORS chapter 138 and a directory of

attorneys, apparently suggesting that those limited materials would be sufficient

Cite as 314 Or App 413 (2021) 421

The state argues that petitioner’s attorney put peti-

tioner on notice of the availability of post-conviction relief

and provided him with a blank form petition. Contrary to

the state’s position, however, the question is not whether

petitioner was aware of the availability of post-conviction

relief, it is whether the grounds for relief contained in

that petition were reasonably available to him. See White

v. Premo (S065188), 365 Or 1, 6, 443 P3d 597 (2019), cert

dismissed, ___ US ___, 140 S Ct 993, 206 L Ed 389 (2020)

(“[A]s used in the escape clauses * * *, the term ‘grounds’

means the legal rule asserted as a basis for a claim, not

the general nature of the claim.”). The only information con-

tained in the blank form was a citation to ORS chapter 138,

a statute that petitioner did not have. Although petitioner

possessed a blank form, he had no access to anything to fill

in those blanks, including any information on what grounds

for relief were even available in a post-conviction proceeding,

let alone which grounds applied to him. Although petitioner

would have been on notice of the events that occurred at his

criminal trial, and the need to file for post-conviction relief,

taking the facts in the light most favorable to petitioner,

there is a dispute of fact as to whether he was deprived of

the opportunity to determine what grounds of relief were

available to him.

B. Impact of the Escape Clause on the Statute of Limitations

That petitioner has qualified for the escape clause

does not end the inquiry. We still must determine whether

the petition was timely given that petitioner did not file until

23 months after he was transferred from MacLaren. The

trial court concluded that, even assuming petitioner’s time

at MacLaren triggered the escape clause, it was unreason-

able for him to wait nearly two years after his transfer to file

the petition. Petitioner argues that the statute does not con-

tain a “reasonableness” requirement, but rather functions

to file a post-conviction petition. However, the undisputed facts demonstrate that

MacLaren did not have any materials for years and nothing in the record indi-

cates that the acquisition of ORS chapter 138, if it occurred, was publicized or

otherwise made available to the MacLaren population. Indeed, petitioner testi-

fied that he was not aware of the addition of any legal materials. On this record,

in the light most favorable to petitioner, it is disputed that these materials were

available to the offenders at MacLaren.

422 Canales-Robles v. Laney

like a discovery rule, that is, that the statute of limita-

tions did not start to run at all until he was transferred

to adult custody and he was able to discover the available

grounds for relief. The state does not appear to defend the

trial court’s rationale, but rather responds that the statute

explicitly provides that petitioner’s claims run from the date

his conviction became final, and no discovery rule applies.

In order to resolve this dispute, we must construe

ORS 138.510 “examining the text and context of [the statute],

with the goal of determining legislative intent.” Schaefer v.

Oregon Aviation Board, 312 Or App 316, 332, 495 P3d 1267,

adh’d to as modified on recons, 313 Or App 725, 492 P3d 782

(2021) (quoting State v. Gaines, 346 Or 160, 171, 206 P3d

1042 (2009)). Again, the text of ORS 138.510(3) provides that

a petition “must be filed within two years of the [date a con-

viction becomes final], unless the court on hearing a subse-

quent petition finds grounds for relief asserted which could

not reasonably have been raised in the original or amended

petition.”

By its use of the word “unless,” the statute creates

an exception to the requirement that all post-conviction

petitions must be filed within two years of the date of con-

viction. See State v. He Quan Chan, 113 Or 168, 172-73, 232

P 619 (1925) (stating that the word “unless,” has “the same

legal effect” as “except”). That exception encompasses any

“ground[ ] for relief asserted which could not reasonably

have been raised.” See ORS 138.510(3). Thus, based on the

plain text of the statute, the two-year statute of limitations

does not run against grounds that could not reasonably

have been raised. Put another way, the statute of limita-

tions is tolled during the time period that a claim could not

reasonably be raised. See State v. Ashcroft, 260 Or App 1, 3

n 1, 316 P3d 355 (2013), rev den, 355 Or 380 (2014) (observ-

ing the definition of “toll” as “(Of a time period, esp. a stat-

utory one) to stop the running of; to abate <toll the limita-

tions period>” (quoting Black’s Law Dictionary 1625 (9th ed

2009))). Accordingly, in the event that a new claim becomes

available, and that claim qualifies for the escape clause, the

period of time that the claim was unavailable does not count

against the statute of limitations.

Cite as 314 Or App 413 (2021) 423

As the Supreme Court has recognized, that “stan-

dard is very similar to the standard for a discovery rule.”

Gutale, 364 Or at 512. The discovery rule is “a rule of inter-

pretation of statutes of limitation that has the effect of toll-

ing the commencement of such statutes under certain cir-

cumstances.” Rice v. Rabb, 354 Or 721, 725, 320 P3d 554

(2014). For purposes of the escape clause, the circumstance

tolling the commencement of the statute of limitations is the

unavailability of a ground for relief. The statute of limita-

tions does not commence until that ground of relief becomes

available, if it ever does. See Gutale, 364 Or at 512 (compar-

ing the escape clause to the discovery rule in a negligence

cause where “the statute of limitations does not begin” until

the injury is or should have been discovered). As relevant

to petitioner, the statute of limitations did not begin to run

until he was transferred to an adult facility and gained

access to the legal materials that made the grounds for

relief available to him.

The state does not provide a different textual inter-

pretation, but rather argues that the plain text of the por-

tion of the statute that does not contain the escape clause is

unambiguous that the triggering date of the statute of lim-

itations is the finality of the criminal conviction. However,

as described above, the unambiguous plain language of the

escape clause undermines the state’s argument. A petition

must be filed within two years of the finality of the crimi-

nal conviction “unless the court * * * finds grounds for relief

asserted which could not reasonably have been raised in the

original or amended petition.” ORS 138.510(3) (emphasis

added). In that circumstance, the triggering date is not the

finality of the conviction but the point at which the grounds

could be reasonably raised.

The state’s reliance on Benitez-Chacon v. State of

Oregon, 178 Or App 352, 37 P3d 1035 (2001), rev den, 334 Or

76 (2012), as explicitly rejecting the applicability of a discov-

ery rule to ORS 138.510 is misplaced. There, the petitioner

argued that her attorney failed to make her aware of infor-

mation contained in publicly available statutes. Id. at 354.

Relying on Bartz and Brown, we concluded that the public

nature of those statutes meant that the grounds for relief

424 Canales-Robles v. Laney

were “reasonably available” to petitioner and she therefore

did not qualify for the escape clause. Id. at 357. Petitioner

attempted to circumvent the availability of her claim for

relief by making a similar argument to the petitioner in

Bartz: that the statute should not begin to run at all until

she was aware of her injury, that is, the legal basis for her

ineffective assistance claim. Benitez-Chacon, 178 Or App at

357. We rejected that argument, observing that the statute

“could not be more plain” in providing that the statute of

limitations runs from the date a judgment becomes final,

not the discovery of an injury. Id. at 358.

What we did not do in Benitez-Chacon is address

the exception to that rule: when the statute of limitations is

tolled for purposes of the escape clause. Indeed, we recog-

nized as much in Benitez-Chacon, observing that the escape

clause “encompass[es] a form of a ‘discovery rule’ ” by allow-

ing a late petition on grounds that could not reasonably have

been raised. Id. at 359. That “form of discovery rule” encom-

passed by the escape clause did not help petitioner there

because she did not qualify for the escape clause in the first

place, not because the statute of limitations runs against

unavailable claims. Id. at 359.

On this record, in the light most favorable to peti-

tioner, there is a genuine dispute of fact over whether the

grounds for relief were not reasonably available to him—

thus tolling the statute of limitations—during the time

that he was deprived of all legal materials. If that time is

removed from the calculation, petitioner filed his petition

within the two-year statute of limitations.

Reversed and remanded.