Murphy v. Miller

Opinion

538 August 26, 2026 No. 810

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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

TYRONE NEIL MURPHY,

Petitioner-Appellant,

v.

Jamie MILLER, Superintendent,

Snake River Correctional Institution, Defendant-Respondent. Malheur County Circuit Court 22CV35483; A186577

J. Burdette Pratt, Senior Judge. Argued and submitted on June 30, 2026. Tyrone N. Murphy argued the cause and filed the briefs pro se.

Erin K. Galli, Assistant Attorney General, argued the cause for respondent. Also on the brief were Dan Rayfield, Attorney General, and Benjamin Gutman, Interim Deputy Attorney General.

Before Egan, Presiding Judge, Jacquot, Judge, and Armstrong, Senior Judge.

EGAN, P J. Affirmed.

Nonprecedential Memo Op: 352 Or App 538 (2026) 539

EGAN, P. J. Petitioner appeals from a judgment denying post-

conviction relief following his convictions based on guilty pleas to two counts of first-degree sodomy, ORS 163.405, entered after this court reversed his prior convictions and remanded for a new trial because the verdicts were nonunanimous. See State v. Murphy, 307 Or App 844, 846, 478 P3d 1018 (2020), rev den, 368 Or 168 (2021). On appeal, petitioner raises seven assignments of error. We reject each assignment and affirm.

Petitioner first contends that the post-conviction court erred by failing to rule on what he characterizes as a standalone claim of prosecutorial misconduct. According to petitioner, the prosecutor committed cumulative misconduct during the original criminal trial by misstating the law governing forcible compulsion, misrepresenting facts, denigrating petitioner, and appealing to juror prejudice. As a threshold matter, however, preservation is lacking.

Preservation is lacking because the operative amended petition did not plead a freestanding claim for post-conviction relief based on prosecutorial misconduct. Rather, the allegations concerning the prosecutor’s conduct were pleaded in support of petitioner’s theory that his later guilty plea was coerced. The post-conviction court expressly stated that it would not consider claims raised in petitioner’s pro se memorandum that were not pleaded in the amended petition. The court also did not make a ruling on any independent prosecutorial-misconduct claim.

In post-conviction proceedings, we review for legal error and are bound by supported findings of historical fact. Green v. Franke, 357 Or 301, 312, 350 P3d 188 (2015). But “[w]ithout a ruling, there can be no error.” Shoup v. Wal- Mart Stores, Inc., 171 Or App 357, 369, 15 P3d 588 (2000), aff’d in part, rem’d in part, 335 Or 164 (2003). Because petitioner neither obtained nor identifies a ruling on a standalone prosecutorial-misconduct claim, the first assignment of error affords no basis for reversal.

Petitioner’s second assignment of error fares no better . He argues that his trial counsel rendered constitutionally 540 Murphy v. Miller

inadequate assistance by failing to advise him of a potential former-jeopardy or double-jeopardy defense following reversal of his original convictions. Specifically, petitioner contends that cumulative prosecutorial misconduct during the first trial barred reprosecution under State v. Kennedy, 295 Or 260, 276, 666 P2d 1316 (1983). Again, however, the amended petition did not plead a distinct inadequateassistance claim premised on counsel’s failure to pursue a former-jeopardy or double-jeopardy defense, and the post- conviction court did not rule on such a theory. As with the first assignment, preservation principles therefore control the outcome. See ORAP 5.45(1); Shoup, 171 Or App at 369. Even setting preservation aside, the post-conviction court made no findings concerning the prosecutor’s intent, indifference , or any other factual predicates relevant to the Kennedy analysis. Under those circumstances, petitioner has not demonstrated reversible error.

The third assignment concerns petitioner’s claim that his guilty plea was coerced. Unlike the first two assignments , respondent concedes preservation. We review the post-conviction court’s determination regarding the validity of a guilty plea for legal error and are bound by supported findings of fact. Kinkel v. Lawhead, 240 Or App 403, 414, 246 P3d 746, rev den, 350 Or 408 (2011).

Here, the post-conviction court expressly found that petitioner “did not prove that his plea was coerced.” The court further found that petitioner “has not proven that he would have rejected the plea offer and proceeded to the second jury trial but for the unlawful coercion being applied to him.” Most significantly, the court found petitioner not credible.

Those findings are supported by evidence in the record. Petitioner signed a plea petition stating that his physical and mental health were “presently satisfactory.” He acknowledged at the plea hearing that he had reviewed the plea petition with counsel, understood it, and had no further questions. He also expressly denied that anyone had pressured or coerced him into pleading guilty. The plea agreement reduced petitioner’s exposure substantially, resolving numerous charges in exchange for guilty pleas to two counts and a stipulated sentence of 204 months. Although

Nonprecedential Memo Op: 352 Or App 538 (2026) 541

petitioner argues that prosecutorial misconduct, fear of a lengthy sentence, concerns involving a corrections officer , and deteriorating health compelled his plea, the post- conviction court was entitled to reject that testimony and did so. Under Kinkel and Britton v. Slater, 165 Or App 46, 48, 994 P2d 1203 (2000), we are bound by those supported credibility determinations and factual findings. The court therefore did not err in rejecting petitioner’s coercion claim.

Petitioner next argues that the post-conviction court erred in denying relief on his claim that ORS 163.405 is unconstitutionally vague. Preservation is not disputed. Constitutional challenges are reviewed for legal error, while supported findings of historical fact remain binding. Green, 357 Or at 312; State v. Meyers, 321 Or App 17, 19, 514 P3d 1147 (2022).

The post-conviction court found that petitioner knowingly relinquished his challenge to the statute when he entered his guilty plea. The record supports that determination . Petitioner’s trial counsel averred that he discussed the pending constitutional challenge and other potential motions with petitioner before petitioner accepted the plea offer. As respondent correctly notes, a guilty plea ordinarily waives nonjurisdictional defenses. Blain v. Cain, 327 Or App 584, 590, 536 P3d 623 (2023), rev den, 372 Or 22 (2024). Petitioner contends that the plea itself was invalid and therefore could not effect a waiver, but that argument depends on the same coercion theory that the post-conviction court permissibly rejected.

In all events, petitioner has not established that ORS 163.405 is unconstitutional. Although he argues that the statutory definition of forcible compulsion fails to provide adequate notice and invites arbitrary enforcement, respondent correctly observes that this court previously rejected a vagueness challenge to the statute in State v. Luttrell, 93 Or App 772, 774, 764 P2d 554 (1988), rev den, 308 Or 79 (1989). Petitioner points to no Oregon appellate authority holding the current statute unconstitutional. As he cites no authority, much of his argument ultimately concerns the sufficiency of the evidence in his underlying criminal case, an issue that was resolved adversely to him on direct appeal. Murphy, 307 542 Murphy v. Miller

Or App at 845. For similar reasons, his Article I, section 8, of the Oregon Constitution challenge is unpersuasive. The post- conviction court did not err in denying relief on that claim.

We turn to petitioner’s remaining assignments together because they share a common procedural defect. In his fifth assignment, petitioner argues that the post- conviction court failed to rule on a claim of actual innocence. In his sixth and seventh assignments, he contends that the court failed to address claims concerning the adequacy of his post-conviction counsel. As with the first two assignments , preservation is dispositive.

The amended petition did not plead a freestanding actual-innocence claim, and the post-conviction court expressly declined to consider claims raised outside the pleadings and did not rule on any actual-innocence claim. Accordingly, petitioner cannot establish reversible error. Shoup, 171 Or App at 369. The same is true of the sixth and seventh assignments. The amended petition did not plead claims challenging post-conviction counsel’s performance, and petitioner identifies no ruling by the post-conviction court addressing such theories.

In addition to failing to identify any ruling addressing petitioner’s theory, respondent correctly notes that those assignments were not meaningfully developed in petitioner ’s opening brief. See Waldorf v. Premo, 301 Or App 572, 584, 457 P3d 298 (2019), rev den, 366 Or 451 (2020). To the extent petitioner attempted to elaborate on those claims in his reply brief, arguments raised for the first time in reply generally will not be considered. State v. Thomas, 324 Or App 114, 119, 524 P3d 969 (2023). The post-conviction court therefore committed no reversible error with respect to assignments five through seven.

In sum, petitioner has not demonstrated that the post-conviction court erred in denying post-conviction relief. The first, second, fifth, sixth, and seventh assignments of error are unpreserved because the claims were not pleaded, and no rulings were obtained. The third assignment fails because the post-conviction court’s supported findings establish that petitioner’s guilty plea was voluntary. The

Nonprecedential Memo Op: 352 Or App 538 (2026) 543

fourth assignment fails because petitioner knowingly relinquished his constitutional challenge when he pleaded guilty and, in any event, has not established that ORS 163.405 is unconstitutional.

Affirmed.