Funkhouser v. Smith

                                    812

 Submitted November 30, 2021, affirmed January 5, petition for review denied
                        July 28, 2022 (

)


              JOHNATHAN FUNKHOUSER,
                    Petitioner-Appellant,
                              v.
                       Doug SMITH,
                      Superintendent,
         Eastern Oregon Youth Correctional Facility,
                  Defendant-Respondent.
                Marion County Circuit Court
                   19CV31001; A174085
                                

   Claudia M. Burton, Judge.
   Jedediah Peterson filed the brief for appellant. Also on
the brief was O’Connor Weber LLC.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Ryan Kahn, Assistant Attorney
General, filed the brief for respondent.
  Before Kamins, Presiding Judge, and Lagesen, Chief Judge,
and Landau, Senior Judge.
   PER CURIAM
   Affirmed.
Cite as 

 (2022)                             813

        PER CURIAM
         Petitioner appeals a judgment dismissing his petition for post-conviction relief as untimely following the post-conviction court’s grant of summary judgment to the superintendent. It is undisputed the petition was not timely filed.
Petitioner nonetheless contends that the trial court erred
when it determined that he had not submitted sufficient
evidence to give rise to a dispute of fact as to whether his
untimely filing was salvaged by the escape clause of ORS
138.510(3). We affirm.
         ORS 138.510 allows for the filing of an untimely
post-conviction petition if the grounds asserted “could not
reasonably have been raised” within the applicable limitations period. ORS 138.510(3). Within the context of this case,
a ground “could not reasonably have been raised” timely for
purposes of ORS 138.510(3) if the ground (1) was not known
within the limitations period; and (2) was not reasonably
available to be known within the limitations period. Gutale
v. State of Oregon, 

, 

 (2019). The
statute places the burden on a post-conviction petitioner to
demonstrate that the escape clause applies to an otherwise
untimely filing. Hernandez-Zurita v. State of Oregon, 

, 

 (2018), vac’d and rem’d,

, 

 (2019). Because of the placement
of the burden, to withstand the superintendent’s motion for
summary judgment, petitioner had to come forward with
evidence that, viewed in his favor, would permit a reasonable factfinder to find that petitioner’s grounds could not
reasonably have been raised within the limitations period.
ORCP 47 C; Two Two v. Fujitec America, Inc., 

, 

 (2014); Woodroffe v. State of Oregon, 

, 

 (2018) (stating summary judgment
standard).
         Here, although petitioner filed a response to the
superintendent’s motion for summary judgment, he did not
submit any evidence in opposition to it to address the applicability of the escape clause. Petitioner acknowledges that
fact on appeal, but points us to petitioner’s original pro se
petition, which petitioner signed under penalty of perjury.
He argues that two sworn allegations are sufficient to allow
814                                     Funkhouser v. Smith

a finding that the grounds for relief in his petition could not
reasonably have been raised timely.
         We disagree. As for his first asserted ground for
relief in the amended petition filed by counsel—that
trial counsel pressured him into entering a guilty plea—
petitioner alleges no facts that would allow the finding that
the ground was not known, and was not reasonably available to petitioner.
          As for the second ground for relief—that trial counsel unreasonably failed “to investigate or find information
as to the true identity of the alleged perpetrator,” petitioner
argues that two sworn allegations in the pro se petition for
relief would allow a finding that the ground falls within the
escape clause: (1) that petitioner had “new evidence of actual
innocence” and (2) that “[i]n the last two months I learned
of [the] true perpetrator who has recently been arrested; he
is the father of the victim.” The difficulty for petitioner is
that those allegations do not engage with the escape clause
standard; in particular, the allegations do not address why
the information about the alternative perpetrator was not
reasonably available earlier, such that petitioner could have
pursued his claim within the limitations period. As a result,
they would not allow a reasonable factfinder to make a nonspeculative inference that the standard is met. In particular, because they do not address the point, they do not allow
for a nonspeculative inference that petitioner did not know
about counsel’s allegedly deficient investigation within the
limitations period, or that the information about the scope
of trial counsel’s investigation of other suspects is something
that was not reasonably available to him during the limitations period.
          That the allegations in the pro se petition do not
address the escape clause standard with respect to the ineffective assistance of counsel claim makes some sense in the
procedural context of the case. The pro se petition did not
assert that trial counsel was inadequate or ineffective for
not investigating the victim’s father as an alternative suspect, so the application of the escape clause to that ground
for relief was not at issue. Rather, petitioner alleged a freestanding claim of innocence in the pro se petition: that he
Cite as 

 (2022)                             815

had new evidence of innocence and wanted an opportunity
to prove it.
         On appeal, petitioner does not appear to pursue
his freestanding claim. Nevertheless, covering the bases,
we assume without deciding a freestanding claim of actual
innocence is legally-cognizable, see generally Reeves v. Nooth,

, 

 (2018), rev den, 

(2019), and that petitioner has not abandoned that claim.
Petitioner’s allegations still remain insufficient to allow an
inference that the actual innocence claim was not reasonably available to petitioner within the limitations period.
That petitioner’s alternative suspect had been arrested
shortly before he filed the petition does not make it inferable that evidence of that suspect’s guilt was not reasonably
available at an earlier time. In fact, as the superintendent
observes, the predicate of petitioner’s claim of inadequate
and ineffective assistance of counsel is that trial counsel was
unreasonable for not unearthing the information about the
alternative suspect at the time of petitioner’s claim, a theory
that appears incompatible—at least superficially—with the
notion that the information underlying petitioner’s claim of
actual innocence was not reasonably available during the
limitations period.
        Affirmed.