Stewart v. Miller

328 Or. App. 133

• Court: Court of Appeals of Oregon
• Decided: September 13, 2023
• Docket: A177915
• Status: Unpublished

Opinion

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). Submitted August 8, affirmed September 13, 2023, petition for review denied January 12, 2024 (371 Or 825)

KEITH JOHN STEWART, Petitioner-Appellant, v. Jamie MILLER, Superintendent, Snake River Correctional Institution, Defendant-Respondent. Malheur County Circuit Court 20CV03693; A177915

J. Burdette Pratt, Senior Judge. Jedediah Peterson and O’Connor Weber LLC filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Ryan Kahn, Assistant Attorney General, filed the brief for respondent. Before Lagesen, Chief Judge, and Kamins, Judge, and Kistler, Senior Judge. LAGESEN, C. J. Affirmed. 134 Stewart v. Miller

LAGESEN, C. J. Petitioner appeals a judgment denying his petition for post-conviction relief from his 2016 conviction for first- degree assault. On appeal, we accept the post-conviction court’s supported implicit and explicit factual findings and review for legal error. Green v. Franke, 357 Or 301, 312, 350 P3d 188 (2015). Applying that standard of review, we affirm. In 2016, a jury convicted defendant of first-degree assault. Following the United States Supreme Court’s 2020 decision in Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020), petitioner brought this post- conviction proceeding. He contends that trial counsel was inadequate and ineffective, in violation of his rights under Article I, section 11, of the Oregon Constitution, and the Sixth Amendment to the United States Constitution, in two respects: (1) by failing to object to the trial court’s instruc- tion that the jury could return a nonunanimous verdict and by failing to have the jury polled, and (2) by failing to move for a mistrial after a juror might have seen petitioner in restraints. Given the timing of his conviction, petitioner’s Ramos-based claims fail under our case law. Aaron v. Kelly, 325 Or App 262, 266, 528 P3d 1215 (2023) (trial counsel was not inadequate or ineffective in 2017 for failing to foresee Ramos); Smith v. Kelly, 318 Or App 567, 569-70, 508 P3d 77 (2022), rev den, 370 Or 822 (2023) (trial counsel was not inad- equate or ineffective in 2015 for failing to foresee Ramos). As for petitioner’s mistrial claim, the post-conviction court denied relief after crediting counsel’s explanation of the advice she provided to petitioner, and petitioner’s ensu- ing decision not to move for a mistrial; the court rejected petitioner’s version of events, to the extent that it conflicted with counsel’s. Based on those factual findings, the post- conviction court concluded that trial counsel’s handling of the potential mistrial motion was reasonable and comported with constitutional standards. See Strickland v. Washington, 466 US 668, 694, 104 S Ct 2052, 80 L Ed 2d 674 (1984) (stat- ing standard for ineffective assistance of counsel claim under the Sixth Amendment). The post-conviction court’s factual Nonprecedential Memo Op: 328 Or App 133 (2023) 135

findings about counsel’s handling of the potential mistrial motion are supported by the record and bind us on appeal. Johnson v. Premo, 361 Or 688, 699, 399 P3d 431 (2017) (stat- ing standard governing claim of inadequate assistance of counsel under Article I, section 11); Green, 357 Or at 312. Those facts demonstrate that counsel exercised reasonable professional skill and judgment in her advice to petitioner regarding the potential mistrial motion. Petitioner’s claim that counsel’s performance fell below state and federal con- stitutional standards therefore fails. Affirmed.