Marcus v. Reyes

Opinion

No. 836 September 2, 2026 667

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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

DAVID ABRAHAM MARCUS,

Petitioner-Appellant,

v.

Erin REYES, Superintendent,

Two Rivers Correctional Institution, Defendant-Respondent. Umatilla County Circuit Court 19CV05979; A187326

Claudia M. Burton, Senior Judge. Submitted July 10, 2026. Margaret Huntington and Equal Justice Law filed the brief for appellant. Section B of the brief was prepared by appellant.

Ryan Kahn, Assistant Attorney General, waived appearance for respondent.

Before Lagesen, Chief Judge, and Egan, Judge.* EGAN, J. Affirmed.

_____________

* Determined by a two-judge department as authorized by ORS 2.570(2)(b).

668 Marcus v. Reyes

EGAN, J. Petitioner appeals from an amended judgment denying post-conviction relief. Appointed counsel filed a brief pursuant to ORAP 5.90 and State v. Balfour, 311 Or 434, 814 P2d 1069 (1991). The brief contains a Section B. See ORAP 5.90(1)(b). We affirm.

Petitioner pled guilty to kidnapping and attempted rape and was sentenced to 90 and 24 months’ incarceration, to be served concurrently, and 36 months of post-prison supervision.

In his petition for post-conviction relief, petitioner claimed that counsel was ineffective, that his due process rights were violated, and cumulative error. Specifically, petitioner claimed in his trial memorandum and declaration that trial counsel failed to provide him with discovery; investigate his allegations of police misconduct surrounding his arrest; and provide advice regarding the admissibility of his notebooks and the availability of renunciation as an affirmative defense to an attempt crime. As a result, he alleges that his plea was not knowing, intelligent, and voluntary . After a trial at which petitioner testified, the post- conviction court found that petitioner’s testimony was not credible and that trial counsel’s declaration was credible. The post-conviction court made findings regarding petitioner ’s underlying factual allegations, concluded that petitioner ’s claims were without merit, and denied relief.

In Section B of the Balfour brief, petitioner contends that the post-conviction court erred in denying relief on the ineffective assistance claim. He argues that trial counsel failed to adequately investigate and present exculpatory evidence regarding his mental health history as well as his mental health at the time of the offense. Specifically, he contends that a change in his medication around that time caused him to experience drastic and deleterious side effects related to impulse control and hypersexuality, and that as a result he engaged in various out-of-character behaviors— including the offense conduct—around that time. That argument , however, was not before the post-conviction court.

Nonprecedential Memo Op: 352 Or App 667 (2026) 669

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. See Brock v. Wright, 98 Or App 323, 326, 778 P2d 999 (1989) (“In post-conviction proceedings , we are bound to uphold findings of fact if they are supported by evidence in the record.”); see also Newmann v. Highberger, 330 Or App 229, 234, 543 P3d 172, rev den, 372 Or 588 (2024) (“The post-conviction court’s finding on petitioner’s credibility binds us on appeal * * *.”). With respect to the issue raised in the Section B brief in particular , there is no arguably meritorious argument for considering that unpreserved matter for the first time on appeal. See Newmann, 330 Or App at 233 (recognizing the general rule that arguments not made to the post-conviction court in support of a claim will not be considered for the first time on appeal).

Affirmed.