Eklof v. Steward

No. 80 December 22, 2016 717

IN THE SUPREME COURT OF THE

STATE OF OREGON

KARLYN EKLOF,

Petitioner on Review,

v.

Heidi STEWARD,

Superintendent,

Coffee Creek Correctional Facility,

Respondent on Review.

(CC C120242CV; CA A154212; SC S063870)

En Banc

On review from the Court of Appeals.*

Argued and submitted September 23, 2016.

Jason Weber, O’Connor Weber LLC, Portland, argued the

cause and filed the brief for petitioner on review.

Timothy A. Sylwester, Assistant Attorney General,

Salem, argued the cause and filed the brief for respondent on

review. Also on the brief were Ellen F. Rosenblum, Attorney

General, and Benjamin Gutman, Solicitor General.

Janis C. Puracal, Oregon Innocence Project, Portland,

Mathew W. dos Santos, American Civil Liberties Union

Foundation of Oregon, Portland, and Rankin Johnson IV,

Oregon Criminal Defense Lawyers Association, Portland,

filed the brief for those amici curiae. Also on the brief were

Steven T. Wax, Alice B. Kaplan, and Erik Blumenthal.

BREWER, J.

The decision of the Court of Appeals is reversed. The

judgment of the circuit court is reversed, and the case is

remanded to that court for further proceedings.

______________

*  Appeal from Washington County Circuit Court, Thomas W. Kohl, Judge.

273 Or App 789 (2015).

718 Eklof v. Steward

Case Summary: Petitioner, who was convicted of aggravated murder, filed

a successive petition for post-conviction relief, alleging that the prosecution

withheld exculpatory materials in violation of Brady v. Maryland, 373 US 83,

83 S Ct 1194, 10 L Ed 2d 215 (1963). The state moved for summary judgment,

arguing that petitioner had not sufficiently pleaded that her claim fell within

the escape clauses of ORS 138.510 and ORS 138.550, which require petitions for

post-conviction relief to be filed within specified timelines unless the grounds for

relief could not reasonably have been raised earlier. Held: The trial court erred

in granting the state’s motion for summary judgment. Petitioner alleged that the

Brady materials were not known to any counsel representing her until 2012. The

state’s motion challenged only petitioner’s allegations, arguing that it would have

been possible for petitioner to have discovered the Brady materials earlier. The

existence of numerous factual issues concerning whether petitioner reasonably

could have discovered the materials earlier precluded summary judgment.

The decision of the Court of Appeals is reversed. The judgment of the circuit

court is reversed, and the case is remanded to that court for further proceedings.

Cite as 360 Or 717 (2016) 719

BREWER, J.

Under Brady v. Maryland, 373 US 83, 87, 83 S Ct

1194, 10 L Ed 2d 215 (1963), a prosecutor’s withholding of

favorable evidence from a criminal defendant “violates due

process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the

prosecution.” Petitioner in this successive action for post-

conviction relief—who is serving a sentence of life impris-

onment without the possibility of parole for aggravated

murder—seeks review of a Court of Appeals decision that

upheld summary judgment for the state on the ground that

petitioner’s Brady violation claim was barred as a matter

of law under ORS 138.510(3) and ORS 138.550(3).1 Eklof

v. Steward, 273 Or App 789, 359 P3d 570 (2015). Petitioner

asserts that she is entitled to pursue her Brady violation

claim despite the bars against untimely and successive peti-

tions set out in those statutes, and that the trial court erred

in concluding that her petition was barred as a matter of

law.2 As explained below, we conclude that the trial court

erred in granting the state’s motion for summary judgment

on petitioner’s Brady violation claim. Accordingly, we reverse

and remand.

1

ORS 138.510(3) provides, in part:

“A petition pursuant to ORS 138.510 to 138.680 must be filed within two

years of the following, 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:

“(a)  If no appeal is taken, the date the judgment or order on the convic-

tion was entered in the register.

“(b) If an appeal is taken, the date the appeal is final in the Oregon

appellate courts.”

ORS 138.550(3) provides:

“All grounds for relief claimed by petitioner in a petition pursuant to ORS

138.510 to 138.680 must be asserted in the original or amended petition, and

any grounds not so asserted are deemed waived unless the court on hearing a

subsequent petition finds grounds for relief asserted therein which could not

reasonably have been raised in the original or amended petition. However,

any prior petition or amended petition which was withdrawn prior to the

entry of judgment by leave of the court, as provided in ORS 138.610, shall

have no effect on petitioner’s right to bring a subsequent petition.”

2

Petitioner also argues that the trial court erred in granting summary judg-

ment as to an inadequate assistance of counsel claim concerning a jury instruc-

tion; we reject that argument without discussion.

720 Eklof v. Steward

I.  FACTS AND PROCEDURAL HISTORY

Petitioner was convicted of aggravated murder

in 1995, based on the theory that she and an accomplice,

Jeffrey Tiner, murdered James Salmu. See generally State

v. Tiner, 340 Or 551, 135 P3d 305 (2006), cert den, 549 US

1169 (2007) (describing evidence underlying Tiner’s aggra-

vated murder conviction). The Court of Appeals affirmed

petitioner’s conviction without opinion. State v. Eklof, 154 Or

App 448, 960 P2d 397 (1998), rev den, 328 Or 331 (1999). In

1999, shortly after her conviction became final, petitioner

filed her first action for post-conviction relief; her petition

in that case, which did not assert a Brady violation claim,

ultimately was dismissed.

In 2012, petitioner again sought post-conviction

relief in the present action. In her second amended petition,

which is at issue here, petitioner alleged, in pertinent part:

“John Distabile and David Tiner were key witnesses

against Petitioner in case no. 109404750 (Lane County) [in

which petitioner was convicted of aggravated murder].

“* * * * *

“On March 1, 201[2], attorney Andy Simrin (Attorney

for Petitioner’s co-defendant Jeffrey Tiner) mailed to coun-

sel for this Petitioner a computer ‘thumb drive’ contain-

ing copies of four exhibits from the post-conviction case of

Jeffrey Tiner, who had also been convicted of murdering

James Salmu. Those exhibits included the prosecution file

for the case against this Petitioner, the prosecution file

for the case against Jeffrey Tiner, California Department

of Justice records relating to David Tiner’s criminal his-

tory (David Tiner is the brother of co-defendant Jeffrey

Tiner) and NCIC records relating to David Tiner’s criminal

history.

“Among the materials in the prosecution file for the

case against Jeffrey Tiner was a set of police reports that

would have been valuable in impeaching John Distabile if

they had been disclosed to Petitioner’s attorneys in case no.

109404750 (Lane County).

“The Distabile impeachment materials described in the

preceding paragraph were never disclosed to any attorney

working on behalf of Petitioner until Mr. Simrin caused

Cite as 360 Or 717 (2016) 721

them to be delivered to Petitioner’s attorney in this post-

conviction proceeding.

“David Tiner’s criminal history was never disclosed

to any attorney working on behalf of Petitioner until

Mr. Simrin caused them to be delivered to Petitioner’s

attorney in this post-conviction proceeding.

“David Tiner’s criminal history would have had

impeachment value if it had been disclosed to Petitioner’s

attorneys in case no. 109404750.”

Based on those allegations, petitioner claimed that

there had been a substantial denial of her due process rights

under the Fourteenth Amendment to the United States

Constitution. Petitioner further alleged that she previously

had sought post-conviction relief in the 1999 action, that

relief had been denied in that action, and that the Brady

violation claim in this action could not reasonably have been

raised in the 1999 action.

In support of her Brady violation claim in this

case, petitioner submitted the trial transcript and other

materials related to her underlying criminal case, as well

as police reports concerning John Distabile and records

of David Tiner’s criminal history that, she asserted, had

been withheld by the prosecution in her criminal case.

The police reports indicated that, when Distabile initially

was interviewed about the murder, he gave a somewhat

different account from his testimony at petitioner’s crimi-

nal trial; thus, the earlier account could have been offered

to impeach Distabile’s trial testimony. In addition, the

materials related to David Tiner’s criminal history could

have been offered at petitioner’s criminal trial to impeach

Tiner’s testimony. See generally Strickler v. Greene, 527 US

263, 281-82, 119 S Ct 1936, 144 L Ed 2d 286 (1999) (hold-

ing that Brady applies not only to exculpatory information

withheld from defendant, but also to favorable impeach-

ment information).

The state filed an answer to the petition in which

it alleged as “affirmative defenses” that this action was

barred under the two-year limitations period prescribed by

ORS 138.510(3)(b), and was barred as a successive petition

722 Eklof v. Steward

by ORS 138.550(3).3 The state then sought summary judg-

ment, asserting, as pertinent here, that petitioner’s Brady

violation claim was barred: (1) under ORS 138.510(3)(b), on

the ground that she reasonably could have raised that claim

within two years after the criminal judgment was final; and

(2) under ORS 138.550(3), on the ground that she could have

raised the claim in her original post-conviction action. The

state explained that there were no genuine issues of mate-

rial fact and that it was entitled to judgment as a matter of

law, because

“petitioner has not alleged any ultimate facts demonstrat-

ing that she was reasonably unable, when she first sought

post-conviction relief, to discover that impeachment mate-

rial was allegedly withheld by a prosecutor or not made

available to petitioner’s underlying defense counsel in

1995.”

In her response to the motion, petitioner reiter-

ated that the state had withheld materials from her crim-

inal trial counsel that would have been useful in impeach-

ing Distabile and David Tiner. Petitioner pointed out that

she and Jeffrey Tiner had been tried separately and that

different prosecutors had handled their respective cases.4

Petitioner submitted evidence that her criminal trial coun-

sel had not been provided with the Brady materials, and that

information about David Tiner’s criminal history would not

have been reasonably available to her post-conviction coun-

sel from other sources in the 1999 action. Petitioner there-

fore asserted that she could not reasonably have obtained

3

Although the state labeled those defenses as affirmative defenses, and, gen-

erally speaking, statute of limitations defenses are affirmative defenses on which

a defendant bears the burden of persuasion, see T.R. v. Boy Scouts of America, 344

Or 282, 299, 181 P3d 758 (2008) (so noting), the parties and the trial court prop-

erly treated the question of whether petitioner’s claim was barred under either of

those statutes as a matter on which she would ultimately bear that burden. See

generally Verduzco v. State, 357 Or 553, 565, 355 P3d 902 (2015) (ORS 138.550

“places the burden on the petitioner to show that an omitted ground for relief

comes within the escape clause”).

4

Petitioner has asked this court to take judicial notice of the case registers in

her underlying criminal case, as well as in Jeffrey Tiner’s case, and the state has

not objected. See OEC 201(b)(2) (court may take judicial notice of sources whose

accuracy cannot reasonably be questioned). We therefore take judicial notice of

the fact that petitioner and Jeffrey Tiner were tried separately, and indeed, that

Jeffrey Tiner was not tried until 2000, after petitioner’s conviction became final.

Cite as 360 Or 717 (2016) 723

the Brady materials before Jeffrey Tiner’s counsel informed

her of their existence in 2012.

In a reply memorandum, the state again urged that

“petitioner has not pleaded any ultimate facts showing why

she was supposedly unable, until 2012, to discover what

was in the prosecutor’s Tiner file. Even more importantly,

petitioner has not submitted any evidence proving that she

was unable, until 2012, to discover what was in the prose-

cutor’s file.”

The state asserted that petitioner had had “ample oppor-

tunity” to seek the Tiner file, and that it was “self-evident”

that it would have been possible for petitioner’s first post-

conviction counsel to have subpoenaed the prosecutor’s

Tiner file and reviewed it for information that might have

been helpful to petitioner’s first post-conviction action. The

state argued that petitioner had not shown that her counsel

in the first post-conviction action could not have discovered

the materials and asserted a timely Brady claim.

The trial court granted the state’s motion for sum-

mary judgment without elaboration and entered a general

judgment for the state, in which it concluded that there were

no genuine issues of material fact and that the state was

entitled to judgment as a matter of law.

On appeal, petitioner argued that the trial court

had erred in granting the state’s motion for summary judg-

ment, asserting that the Brady materials at issue were not

reasonably available to petitioner until they were provided

to her in 2012. In response, the state pointed out that, in its

answer to the petition, it had not admitted that the Brady

materials had not been provided to petitioner prior to 2012.

However, the state further stated that it had assumed, for

purposes of summary judgment, that “those records were

not properly disclosed to her and that she suffered prejudice,

as she had alleged.”

As it had before the trial court, the state urged

that, under the identically-worded escape clauses in ORS

138.510(3)(b) (setting limitation period as two years after

criminal judgment becomes final) and ORS 138.550(3) (bar-

ring claims that were not asserted in the original or amended

724 Eklof v. Steward

petition for post-conviction relief), petitioner had not shown

that her claim could not reasonably have been raised in her

first post-conviction action. The state noted, in particular,

that petitioner had not presented evidence that the District

Attorney’s office had actively concealed the file, and the

state opined that, if counsel had used “reasonable diligence,”

the Brady materials could have been discovered. Again, con-

sistently with its argument before the trial court, the state

asserted that the escape clauses under ORS 138.510(3)(b)

and ORS 138.550(3) were not available “where the informa-

tion always existed and was readily available to [petitioner]

but her counsel just did not think to inquire about it.”

The Court of Appeals affirmed the grant of sum-

mary judgment on petitioner’s Brady claim, but on a differ-

ent ground than the state had asserted in its motion before

the trial court. The Court of Appeals observed that, under

Verduzco, petitioner bore the burden of proving that her

claim fell within a statutory escape clause. See 360 Or at

722 n 3, above. It therefore opined:

“Consequently, to withstand the state’s motion for sum-

mary judgment petitioner had the burden of coming for-

ward with admissible evidence that would permit a reason-

able factfinder to find that the escape clause applied to the

Brady claim. * * * * *

“Petitioner did not meet that burden here. The sum-

mary judgment record contains a significant evidentiary

gap: Petitioner submitted no evidence regarding what was

known to petitioner and her post-conviction lawyer at the

time of the 1999 post-conviction proceeding.5 Petitioner

did not submit an affidavit from her 1999 post-conviction

lawyer, or any other evidence about what facts that law-

yer knew during the 1999 post-conviction case. Petitioner

also did not submit her own affidavit, or any other evi-

dence about what she herself knew during the 1999 post-

conviction proceeding.

“__________

“5  We note that the petition adequately pleaded that the

Brady ground for relief falls within the escape clause; it

alleged that the facts underlying petitioner’s claim were not

disclosed to any lawyer representing petitioner until 2012.

However, once the state tested those pleadings by moving

Cite as 360 Or 717 (2016) 725

for summary judgment, petitioner was required to come

forward with evidence that would permit a reasonable fact-

finder to find that petitioner had proved those allegations.”

273 Or App at 794, 794 n 5.

The Court of Appeals did not address the parties’

arguments before the trial court and on appeal concerning

whether the Brady claim reasonably could have been raised

in the original petition. The court explained:

“In the light of our conclusion that the summary judg-

ment record would not permit a reasonable factfinder to

find that petitioner and her post-conviction lawyer did not

know the facts on which her Brady claim depends, we do not

address the parties’ competing arguments as to whether

and what extent a post-conviction petitioner who does not

discover the facts underlying a Brady claim until after a

first post-conviction proceeding must demonstrate that she

affirmatively investigated whether the prosecution might

have violated its Brady obligations in order to demonstrate

that the Brady claim could not reasonably have been raised

in the original petition, or their competing arguments as to

whether due process would permit a state to impose that

type of investigatory obligation on a petitioner.”

Id. at 795 n 7. Petitioner sought review in this court, which

we allowed.

II.  POST-CONVICTION RELIEF

AND BRADY CLAIMS

Under the Post-Conviction Hearing Act, a peti-

tioner who has been convicted of a crime may obtain collat-

eral relief if the petitioner establishes “[a] substantial denial

in the proceedings resulting in petitioner’s conviction * * *

under the Constitution of the United States, or under the

Constitution of the State of Oregon, or both, and which denial

rendered the conviction void.” ORS 138.530(1)(a). However,

“[w]hen a criminal defendant fails to raise an issue at trial

that the defendant reasonably could have been expected to

raise, the defendant cannot obtain post-conviction relief on

that ground unless the defendant alleges and proves that

the failure to raise the issue was due to one (or more) of a

few narrowly drawn exceptions.” Palmer v. State, 318 Or 352,

358, 867 P2d 1368 (1994). One such exception is triggered

726 Eklof v. Steward

where a claim was not raised in the petitioner’s underlying

criminal prosecution due to inadequate assistance of coun-

sel. Id. Other exceptions include “where the right subse-

quently sought to be asserted was not generally recognized

to be in existence at the time of trial,” and “where counsel

was excusably unaware of facts that would have disclosed a

basis for the assertion of the right.” Id. at 357 (quoting North

v. Cupp, 254 Or 451, 456-57, 461 P2d 271 (1969)).

The gravamen of a Brady violation claim that is first

raised in a post-conviction action is a species of the third

category mentioned above: that trial counsel was excusably

unaware of evidence favorable to the defense because the

state had breached its obligation to disclose such evidence

to the defense. See, e.g., State v. McDonnell, 313 Or 478, 500,

837 P2d 941 (1992) (“if the state has knowledge of evidence

favorable to the defense or exculpatory in nature, the state

is under an affirmative due process obligation to make it

available to the defense”). When Brady materials are not

discovered until more than two years after a criminal defen-

dant’s conviction has become final, or until after the criminal

defendant has already litigated an action for post-conviction

relief, then ORS 138.510(3) and ORS 138.550(3) come into

play.

As noted, ORS 138.510(3) provides:

“A petition pursuant to ORS 138.510 to 138.680 must

be filed within two years of the following, 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:

“(a)  If no appeal is taken, the date the judgment or

order on the conviction was entered in the register.

“(b)  If an appeal is taken, the date the appeal is final

in the Oregon appellate courts.

“(c)  If a petition for certiorari to the United States

Supreme Court is filed, the later of:

“(A)  The date of denial of certiorari, if the petition is

denied; or

“(B)  The date of entry of a final state court judgment

following remand from the United States Supreme Court.”

Cite as 360 Or 717 (2016) 727

(Emphasis added.) And, as further noted, ORS 138.550(3)

provides:

“All grounds for relief claimed by petitioner in a peti-

tion pursuant to ORS 138.510 to 138.680 must be asserted

in the original or amended petition, and any grounds not

so asserted are deemed waived unless the court on hear-

ing a subsequent petition finds grounds for relief asserted

therein which could not reasonably have been raised in the

original or amended petition. However, any prior petition

or amended petition which was withdrawn prior to the

entry of judgment by leave of the court, as provided in ORS

138.610, shall have no effect on petitioner’s right to bring a

subsequent petition.”

(Emphasis added.)

This court has held that a petitioner who files a late

or successive petition for post-conviction relief that is sub-

ject to ORS 138.510(3) or ORS 138.550(3),5 must allege and

ultimately demonstrate that the grounds for relief asserted

in the petition could not reasonably have been raised in a

timely initial action. See Verduzco, 357 Or 553, 561, 355 P3d

902 (2015) (“if petitioner could not reasonably have raised

the grounds for relief alleged in his second petition either

in a timely fashion or in the first petition, then those state

procedural bars do not prevent petitioner from pursuing the

grounds for relief alleged in his second post-conviction peti-

tion”). Moreover, this court has interpreted ORS 138.550(3)

as “plac[ing] the burden on the petitioner to show that an

omitted ground for relief comes within the escape clause.”

Id. at 565 (citing Cain v. Gladden, 247 Or 462, 464, 430 P2d

1015 (1967)). Cain, in turn, upheld the dismissal of a petition

for post-conviction relief on the ground that the petitioner

had “failed to allege in his petition facts to demonstrate

that the * * * grounds for relief could not reasonably have

been asserted in the direct appellate review.” 247 Or at 464

(emphasis added).6

5

As a practical matter, successive post-conviction actions often are barred

both under ORS 138.510(3) and ORS 138.550(3).

6

Our interpretation of the escape clause in ORS 138.550 drew from the same

line of cases that this court relied on in Palmer.

728 Eklof v. Steward

To summarize the governing principles: If a post-

conviction petitioner alleges that, during the course of her

criminal prosecution, the state had knowledge of evidence

favorable to the defense or exculpatory in nature, but failed

to disclose that evidence in violation of the Brady rule, the

petitioner must plead, and ultimately prove, that her crim-

inal trial counsel “ ‘was excusably unaware of facts that

would have disclosed a basis for the assertion of the right’ ”

on direct appeal. Palmer, 318 Or at 357 (quoting North 254

Or at 456-57). Stated differently, a Brady violation claim,

like most other post-conviction claims, must have been

raised in the direct criminal proceeding unless counsel was

excusably unaware of it. See, e.g., State v. Longo, 341 Or 580,

599-600, 148 P3d 892 (2006), cert den, 552 US 835 (2007)

(analyzing Brady claim in context of direct criminal appeal).

That is so regardless of whether a post-conviction action is

timely, untimely under ORS 138.510(3), or successive under

ORS 138.550(3). If a post-conviction petition is untimely or

successive, however, the petitioner must further plead and

prove not only that her criminal trial counsel was excusably

unaware of the basis for the Brady claim, but also that the

claim could not reasonably have been raised either within

the two-year period set out in ORS 138.510 or in the original

action for post-conviction relief.

With that framework in mind, we turn to the ques-

tion whether the state was entitled to summary judgment

on petitioner’s Brady violation claim in this case. Initially,

we note that the parties have focused in part on whether

petitioner’s first post-conviction counsel reasonably could

have discovered David Tiner’s prior convictions by searching

for records in other jurisdictions. That focus is misplaced.

As discussed, the gravamen of a Brady claim is that excul-

patory evidence was withheld by the prosecution. The fact

that exculpatory evidence comes to light after a conviction

becomes final does not, in and of itself, give rise to any post-

conviction claim, much less a Brady claim. It might form

the basis for a Brady claim if the evidence was known to

the prosecution; it also might form the basis for a claim of

inadequate assistance of trial counsel if counsel reason-

ably should have discovered it. But the question here is not

whether counsel reasonably should have discovered David

Cite as 360 Or 717 (2016) 729

Tiner’s prior convictions as of 1999, but whether counsel

reasonably should have discovered that the prosecutor had

withheld information pertaining to those convictions as well

as the police reports concerning Distabile.

With that preface in mind, we turn to the parties’

primary dispute, which concerns whether the trial court

and the Court of Appeals properly applied the summary

judgment standards in ORCP 47 C.

III.  SUMMARY JUDGMENT STANDARDS

ORCP 47 C provides:

“The court shall grant the motion if the pleadings, depo-

sitions, 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. No genuine issue as to a material fact exists if, based

upon the record before the court viewed in a manner most

favorable to the adverse party, no objectively reasonable

juror could return a verdict for the adverse party on the

matter that is the subject of the motion for summary judg-

ment. The adverse party has the burden of producing evi-

dence on any issue raised in the motion as to which the

adverse party would have the burden of persuasion at trial.

The adverse party may satisfy the burden of producing evi-

dence with an affidavit or a declaration under section E of

this rule.”

When a party seeks summary judgment, a court must view

the pleadings, as well as any “depositions, affidavits, dec-

larations and admissions” that the parties have submitted

in support of or in opposition to the summary judgment

motion, in the light most favorable to the non-moving party.

ORCP 47 C.

In Two Two v. Fujitec America, Inc., 355 Or 319,

324, 325 P3d 707 (2014), this court observed that, under

ORCP 47 C, “the party opposing summary judgment has

the burden of producing evidence on any issue ‘raised in the

motion’ as to which [that party] would have the burden of

persuasion at trial.” (Emphasis added.) Because it plays a

prominent role in our analysis, we describe the facts and

holding in that case in some detail.

730 Eklof v. Steward

In Two Two, the plaintiffs had asserted negligence

and strict liability claims concerning a faulty elevator, and

the defendant sought summary judgment on both claims.

Id. at 321. At issue was whether the trial court, and sub-

sequently the Court of Appeals, had correctly disposed of

the negligence claim on the ground that an expert affidavit

submitted in opposition to the summary judgment motion

(although addressing whether the defendant had been neg-

ligent in the manner alleged) had failed to demonstrate that

there was a genuine issue of material fact as to causation.

Id. at 323-24. This court noted that, in its motion, the defen-

dant had raised issues of fact concerning whether it had

properly modernized, inspected, and maintained the eleva-

tor, whether it was in control of the elevator at the time of the

incident giving rise to the claim, and whether the doctrine

of res ipsa loquitur was applicable. Id. at 324. The defendant

did not, however, “raise in the motion” the issue whether its

alleged negligence had been the cause of the plaintiffs’ inju-

ries. Id. at 325. Rather, it “first raised the issue of causation

as a basis for summary judgment in its reply memorandum.”

Id.

In reversing judgment for the defendant, this court

stated:

“Parties seeking summary judgment must raise by motion

the issues on which they contend they are entitled to pre-

vail as a matter of law. Parties opposing summary judg-

ment have the burden of producing evidence that creates a

material issue of fact as to those issues, but only as to those

issues.”

Id. at 326 (emphasis added).

As explained below, in light of the foregoing author-

ities, we conclude that both the trial court and the Court

of Appeals erred in applying the summary judgment stan-

dards in this case, albeit in different ways. We first examine

the trial court’s rationale for granting summary judgment

in favor of the state.

A.  The Trial Court’s Summary Judgment Ruling

The issue that was raised in the state’s summary

judgment motion and decided by the trial court is whether

Cite as 360 Or 717 (2016) 731

petitioner sufficiently “alleged” that she could not reason-

ably have raised her Brady claim during her first post-

conviction action. We reiterate that point with emphasis:

The state’s summary judgment motion only challenged the

sufficiency of petitioner’s pleadings as to whether her claim

fell within the escape clauses of ORS 138.510(3)(b) and ORS

138.550(3). In its motion, the state did not challenge peti-

tioner’s ability to prove what she had pleaded; instead, it

merely challenged the sufficiency of petitioner’s pleading.

It is true that, in its reply to petitioner’s response to the

motion, the state asserted that “it would have been possible

for petitioner’s first post-conviction counsel to have subpoe-

naed the prosecutor’s Tiner file and reviewed it,” and argued

that “petitioner has not submitted any evidence that she

was unable, until 2012, to discover what was in the prosecu-

tor’s file.” However, that issue was not “raised in the motion”

for summary judgment. See Two Two, 355 Or at 325 (issue

raised in movant’s reply memorandum was not “raised in

the motion” for summary judgment). Thus, the only issue

properly before the trial court on summary judgment was

whether petitioner had sufficiently pleaded that her Brady

claim fell within a statutory escape clause.

The allegations that petitioner pleaded in support

of her Brady violation claim were straightforward, and can

be summarized as follows: (1) The District Attorney’s office

had knowledge or possession of evidence that petitioner

could have used in her criminal trial to impeach two of the

state’s witnesses against her; (2) the District Attorney’s

office failed to provide that evidence to petitioner’s crimi-

nal trial counsel in violation of her due process rights;

(3) petitioner’s counsel were unaware of the evidence until it

was disclosed to petitioner’s counsel in 2012 by an attorney

who represented a different petitioner, in a different, albeit

factually related, post-conviction action; and (4) petitioner

could not reasonably have raised her Brady violation claim

in her first post-conviction action.

As described above, the state’s summary judg-

ment motion rested on two premises: (1) the factual asser-

tion that “it would have been possible for petitioner’s first

post-conviction counsel to have subpoenaed the prosecutor’s

732 Eklof v. Steward

Jeffrey Tiner file and reviewed it for information that might

have been helpful to petitioner’s first post-conviction pro-

ceeding”; and (2) the legal proposition that the failure of peti-

tioner’s first post-conviction counsel to request and examine

the Jeffrey Tiner file precluded petitioner from asserting in

a subsequent action that the Brady claim “could not reason-

ably have been raised in the original or amended petition.”

Even though its summary judgment motion was

based solely on the ground that petitioner’s pleadings were

insufficient to bring her Brady violation claim within the

escape clauses of ORS 138.510(3)(b) and ORS 138.550(3),

the state’s first premise rested on the factual assertion that,

if petitioner’s counsel had sought to examine the District

Attorney’s file in the Jeffrey Tiner case in her first post-

conviction action, counsel would have been able to do so

and would have discovered the Brady materials that had

been withheld from petitioner during her criminal case. But

there is no basis in the record for that assertion. Although

it is possible, as a factual matter, that the Brady materials

were located in the Jeffrey Tiner file in 1999 and that, upon

request, the District Attorney’s office would have disclosed

them to petitioner’s post-conviction counsel, the state did not

raise those issues as factual matters for resolution on sum-

mary judgment. Rather, the state’s motion (which focused

exclusively on petitioner’s allegations) called for the court to

presume that in 1999, the Brady materials were in the same

location where there were later discovered in 2012, and that

the District Attorney’s office that had failed to disclose them

in 1995 would have disclosed them in 1999 if petitioner’s

counsel specifically had sought to review materials from

the Jeffrey Tiner file. Given the limited basis of the state’s

challenge, it was inappropriate for the court to make that

presumption.

That leads us to the second point. The state’s

remaining premise—that, as a matter of law, the failure of

petitioner’s first post-conviction counsel to seek access to the

Jeffrey Tiner file precluded petitioner from asserting in this

action that the Brady claim could not reasonably have been

raised in the first action—also did not provide an appropri-

ate ground for summary judgment on the record before us.

Cite as 360 Or 717 (2016) 733

In some post-conviction cases, where the question is

whether a claim reasonably could have been raised in a prior

action, the issue will be a legal one, capable of resolution on

summary judgment. For example, a common issue in succes-

sive post-conviction actions is whether counsel in an earlier

post-conviction action reasonably could have been expected

to raise a claim that later appellate case law demonstrated

would have been viable. See, e.g., Verduzco, 357 Or at 571

(addressing whether ineffective assistance of counsel claim

could have been raised in earlier post-conviction proceed-

ing, based on counsel’s alleged failure to provide sufficient

information about immigration consequences of guilty

plea).7 Whether such a claim “reasonably could have been

raised earlier will vary with the facts and circumstances of

each claim.” Id. But, because such a question generally will

involve an assessment of the state of the law at a given point

in time, it may lend itself to resolution by summary judg-

ment because there may well be “no genuine issue as to any

material fact and * * * the moving party is entitled to prevail

as a matter of law.” ORCP 47 C.

The same is not necessarily true of a Brady viola-

tion claim. As discussed, the gravamen of such a claim is

that the state had an obligation to disclose, but did not dis-

close, evidence that was material either to guilt or to pun-

ishment in a petitioner’s criminal case. Whether a petitioner

reasonably could have been expected to raise a Brady viola-

tion claim in a timely initial post-conviction action often will

depend on who knew what, and when. That is, the resolution

of such an issue can depend on “the facts and circumstances

of each claim.” Verduzco, 357 Or at 571. But, where, as here,

petitioner alleged that no counsel who represented her knew

7

On that issue, this court held:

“The touchstone is not whether a particular question is settled, but

whether it reasonably is to be anticipated so that it can be raised and settled

accordingly. The more settled and familiar a constitutional or other principle

on which a claim is based, the more likely the claim reasonably should have

been anticipated and raised. Conversely, if the constitutional principle is a

new one, or if its extension to a particular statute, circumstance, or setting is

novel, unprecedented, or surprising, then the more likely the conclusion that

the claim reasonably could not have been raised.”

Id. at 571 (quoting Long v. Armenakis, 166 Or App 94, 101, 999 P2d 461, rev den,

330 Or 361 (2000)).

734 Eklof v. Steward

of the Brady materials until 2012, and nothing in the record

indicates that she or her counsel had information that might

have revealed the existence of the materials before then,

the trial court had no basis on which to decide, as a matter

of law, that counsel reasonably should have known of the

claim.

In this case, there is much that is not known (and

that cannot be presumed as a matter of law) about the

nature of the alleged Brady violation that could be perti-

nent to the issue whether petitioner’s first post-conviction

counsel reasonably should have discovered the basis for the

claim. Among those factual questions are: Where were the

allegedly exculpatory materials located when petitioner’s

first post-conviction case was pending? Were those materi-

als made available to Jeffrey Tiner’s criminal defense team

in 1999, or were they made public in the course of Jeffrey

Tiner’s trial in 2000? Did petitioner’s first post-conviction

counsel have any information that would have revealed

that the state had the evidence at issue during petitioner’s

criminal prosecution? The answers to those questions—and

others—could have a bearing on whether petitioner’s Brady

violation claim could “reasonably have been raised in the

original or amended petition.” However, again, the state’s

motion did not put those factual matters at issue, and the

trial court therefore had no basis to conclude as a matter

of law that petitioner’s counsel in the first post-conviction

action reasonably could have asserted a Brady violation

claim. It follows that the trial court erred in determining

that there existed no genuine issue of material fact, and

that the state was entitled to judgment as a matter of law.

The Court of Appeals nevertheless affirmed the

trial court’s summary judgment ruling, albeit on a differ-

ent ground. Accordingly, we turn to that court’s rationale for

affirmance.

B.  The Court of Appeals’ Rationale

The Court of Appeals, relying on Verduzco for the

proposition that petitioner bore the burden of establishing

that her Brady violation claim fell within a statutory escape

clause, concluded that, “to withstand the state’s summary

Cite as 360 Or 717 (2016) 735

judgment motion,” petitioner was required, but failed to,

“come forward with admissible evidence that would permit

a reasonable factfinder to find that the escape clause applied

to the Brady claim.” 273 Or App at 794. More particularly,

the Court of Appeals held that petitioner was required to, but

did not, submit evidence in response to the state’s summary

judgment motion regarding “what facts [her post-conviction]

lawyer knew during the 1999 post-conviction proceeding”

and “what she herself knew during the 1999 post-conviction

proceeding.” Id.

In reaching that conclusion, the Court of Appeals

erred in applying the “raised in the motion” provision of

ORCP 47 C. Here, defendant’s summary judgment motion

on the Brady claim asserted only one ground, namely, that

petitioner had not “alleged any ultimate facts demonstrating

that she was reasonably unable, when she first sought post-

conviction relief, to discover that impeachment material was

allegedly withheld by a prosecutor or not made available to

petitioner’s underlying defense counsel in 1995.” That is, the

state’s sole challenge to petitioner’s Brady claim was that,

as alleged, that claim was insufficient to trigger the escape

clause of either ORS 138.510(3) or ORS 138.550(3).

Among petitioner’s allegations were her assertions

that the Brady materials “were never disclosed to any attor-

ney working on behalf of Petitioner until Mr. Simrin caused

them to be delivered to Petitioner’s attorney in this post-

conviction proceeding.” Because the state challenged only

petitioner’s allegations and not her ability to prove those

allegations, the state did not “raise in the motion” the issue

whether petitioner would be able to meet her burden of

proving that none of the attorneys who had represented her

before 2012 had knowledge of the Brady materials.8 Nor did

the state’s motion raise the other issue cited by the Court

of Appeals—that petitioner was required to allege, and

submit an affidavit in support of such allegation, that she

personally lacked knowledge of the Brady violation at the

8

In Ogle v. Nooth, 355 Or 570, 330 P3d 572 (2014), this court discussed the

requirement in ORS 138.580 that materials supporting a post-conviction claim

must be attached to the petition. The trial court proceedings in this case occurred

before Ogle was decided, and no issue has been raised as to whether petitioner’s

filing complied with ORS 138.580. We therefore do not address that issue.

736 Eklof v. Steward

time of her original post-conviction action. 273 Or App at

794. In short, the state’s argument in the post-conviction

court, which it reiterated before the Court of Appeals, had

nothing to do with what petitioner or her counsel actually

knew about the Brady materials at the time of the first post-

conviction action. Rather, the state’s premise was that peti-

tioner reasonably could have raised the Brady claim in the

first action if her counsel had sought access to the Jeffrey

Tiner file from the District Attorney’s office in 1999.

Under Outdoor Media Dimensions Inc. v. State of

Oregon, 331 Or 634, 659-60, 20 P3d 180 (2001), an appel-

late court may affirm a trial court’s ruling on an alterna-

tive basis if, among other things, it can conclude that the

record is materially “the same one that would have been

developed had the prevailing party raised the alternative

basis for affirmance below.” That criterion is of particular

importance where, as here, the opposing party had no rea-

son to adduce evidence on an issue that was not raised in the

summary judgment motion. See, e.g., Petock v. Asante, 351

Or 408, 425, 268 P3d 579 (2011) (rejecting alternative basis

for affirming summary judgment because the court could

not conclude that the record was materially the same one

that would have been developed had the defendant raised

the alternative basis for affirmance in its summary judg-

ment motion). In opposing the state’s summary judgment

motion, petitioner was required to address issues raised in

the motion, but only those issues. Two Two, 355 Or at 326.

Because it would have been improper for the trial court to

grant summary judgment based on the ground that the

Court of Appeals identified, that ground did not provide an

alternative basis to affirm on appeal. We therefore conclude

that the Court of Appeals’ rationale for upholding the trial

court’s ruling does not withstand scrutiny.9

9

That said, we recognize that there may be viable arguments in this type of

case that failure to disclose information to defense attorneys does not constitute

a Brady violation because the criminal defendant or defense counsel knew the

information from other sources. See, e.g., United States v. Agurs, 427 US 97, 103,

96 S Ct. 2392, 49 L Ed 2d 342 (1976) (Brady applies to “information which had

been known to the prosecution but unknown to the defense”). Similarly, a post-

conviction petitioner’s own personal knowledge of the basis for a Brady violation

claim that she failed to communicate to post-conviction counsel may defeat an

argument that she falls within the escape clauses of ORS 138.510(3) or ORS

138.550(3). We cannot conclude, however, that a post-conviction petitioner is

Cite as 360 Or 717 (2016) 737

The decision of the Court of Appeals is reversed.

The judgment of the circuit court is reversed, and the case

is remanded to that court for further proceedings.

required, in her initial pleading, to rebut every possible defense to a claim, or to

negate such a defense in response to a motion for summary judgment, when the

moving party has not raised the issue.