Almanza-Garcia v. Miller

337 Or. App. 103

Opinion

No. 938 December 26, 2024 103

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

IN THE COURT OF APPEALS OF THE STATE OF OREGON

FRANCISCO ALMANZA-GARCIA, Petitioner-Appellant,

v.

Jamie MILLER, Superintendent,

Snake River Correctional Institution, Defendant-Respondent. Malheur County Circuit Court 20CV36944; A182843

Erin K. Landis, Judge. Submitted November 8, 2024. Jason Weber and Equal Justice Law filed the brief for appellant.

Ryan Kahn, Assistant Attorney General, waived appearance for respondent. Before Lagesen, Chief Judge, and Egan, Judge. EGAN, J. Affirmed.

104 Almanza-Garcia v. Miller

EGAN, J. Petitioner appeals a judgment denying him post-

conviction relief. His appointed counsel filed a brief pursuant to ORAP 5.90 and State v. Balfour, 311 Or 434, 814 P2d 1069 (1991). The brief does not contain a Section B. See ORAP 5.90(1)(b). We affirm.1 In 2007, after a bench trial, petitioner was convicted of two counts of first-degree rape and one count of first-degree sodomy. We reversed and remanded. State v. Almanza-Garcia, 242 Or App 350, 351, 255 P3d 613 (2011). In 2012, after a second trial, a jury found petitioner guilty of the same charges. The trial court sentenced petitioner to 900 months in prison.

In the post-conviction court, relying on Ramos v. Louisiana, 590 US 83, 140 S Ct 1390, 206 L Ed 2d 583 (2020), petitioner argued, among other things, that his jury instructions allowed for nonunanimous verdicts. However, the verdicts in petitioner’s case were unanimous. For that reason, the post-conviction court dismissed the petition. Having reviewed the record, including the post-conviction court file and the transcript of the hearings, and having reviewed the Balfour brief, we have identified no arguably meritorious issues.

Affirmed.

1 As authorized by ORS 2.570(2)(b), this matter is determined by a two-judge panel. See, e.g., State v. Yother, 310 Or App 563, 484 P3d 1098 (2021) (deciding matter submitted through Balfour process by two-judge panel); Ballinger v. Nooth, 254 Or App 402, 295 P3d 115 (2012), rev den, 353 Or 747 (2013) (same).