Perez v. Cain

                                      96

 Argued and submitted March 6, decision of Court of Appeals and judgment of
                  circuit court affirmed October 1, 2020


                 ERNIE JUNIOR PEREZ,
                   Petitioner on Review,
                             v.
                        Brad CAIN,
                     Superintendent,
            Snake River Correctional Institution,
                  Respondent on Review.
         (CC 16CV29849) (CA A164434) (SC S067002)
                                  

    Petitioner sought post-conviction relief, advancing constitutional claims
founded on the interpretation of a statute governing waiver of juveniles to adult
court in State v. J. C. N.-V., 

, 

 (2016). Petitioner argues
that, although his petition was successive and untimely, he could not reasonably have raised his claims earlier—and that he therefore satisfied the relevant exceptions allowing successive and untimely claims in ORS 138.510(3)
and ORS 138.550(3)—because J. C. N.-V. was a surprising and novel decision.
Held: (1) Petitioner could reasonably have raised his claims in his first post-conviction petition; and (2) petitioner’s age was not a factor under the successive petitions bar when petitioner was represented by counsel in his first post-conviction relief proceeding.
    The decision of the Court of Appeals and the judgment of the circuit court
are affirmed.



   En Banc
   On review from the Court of Appeals.*
   Jedediah Peterson, O’Connor Weber LLC, Portland,
argued the cause and filed the brief for petitioner on review.
   Ryan Kahn, Assistant Attorney General, Salem, argued
the cause and filed the brief for respondent on review. Also
on the brief were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
   GARRETT, J.
   The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
______________
    * On appeal from the Malheur County Circuit Court, Erin K. Landis, Judge.

, 

 (2019).
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 (2020)                                     97

        GARRETT, J.
         Petitioner pleaded guilty in 2005 to two aggravated
murders that he had committed at the age of 14. In 2016,
he filed a petition for post-conviction relief raising constitutional claims premised on this court’s interpretation of ORS
419C.349, a statute governing when a juvenile defendant can
be waived into adult court, in State v. J. C. N.-V., 

,

 (2016). The post-conviction court concluded that
petitioner’s claims were barred by the claim preclusion rule
in ORS 138.550(3) because petitioner could reasonably have
raised those claims in an earlier petition that he had filed
in 2008. For similar reasons, the post-conviction court held
that the claims were barred by the statute of limitations set
out in ORS 138.510(3). The Court of Appeals affirmed. Perez
v. Cain, 

, 

 (2019).
         We allowed review to address petitioner’s argument
that his claims could not reasonably have been raised prior
to this court’s decision in J. C. N.-V., so as to allow him to
escape the application of the statute of limitations in ORS
138.510(3) and the claim preclusion bar in ORS 138.550(3).
As explained below, we conclude that petitioner’s claims are
barred by ORS 138.550(3) because he has failed to show that
he could not reasonably have raised those claims at the time
of his 2008 petition. We therefore affirm the decision of the
Court of Appeals and the judgment of the post-conviction
court.
                     I. BACKGROUND
         In 2005, petitioner broke into a home; during the
home invasion he shot and killed two people. At the time,
he was 14 years old. Because of his age, proceedings against
him were initiated in juvenile court. The state sought to
waive him into adult court on multiple charges of aggravated murder. See ORS 419C.352 (2005) (permitting a youth
under 15 years of age to be waived into adult court when the
youth is alleged to have committed certain crimes, including
aggravated murder). As part of a plea agreement, petitioner
stipulated to a waiver to adult court; the juvenile court found
that the criteria for waiver set out in ORS 419C.349(3) - (4)
(2005) were satisfied, including that petitioner “at the time
of the alleged offense was of sufficient sophistication and
98                                                              Perez v. Cain

maturity to appreciate the nature and quality of the conduct involved.” ORS 419C.349(3) (2005). The juvenile court
based its conclusion on a waiver study by the Marion County
Juvenile Department, which had evaluated petitioner based
on the criteria set out in an appendix to the United States
Supreme Court’s decision in Kent v. United States, 

, 

, 

 (1966).1
         Petitioner entered a guilty plea to four counts of
aggravated murder.2 He was sentenced to two terms of life
with the possibility of parole after 30 years, with 20 years
of the second sentence to be served consecutive to the first.
The Court of Appeals affirmed his convictions and sentence
without opinion in 2007. State v. Perez, 

, 

 (2007). Petitioner did not seek review in this court.
         In 2008, petitioner filed a timely petition for post-conviction relief, initiating a proceeding in which he was
represented by counsel. Petitioner alleged, among other
things, that his trial counsel had been inadequate and ineffective in advising him to stipulate to the waiver to adult
court. However, he did not raise a claim that the juvenile
court had applied the wrong standard in permitting the
waiver. In 2011, the post-conviction court granted relief in
part, modifying a provision in the original judgment, but
otherwise denied relief.
         In 2016, this court decided J. C. N.-V. Shortly thereafter, petitioner filed a second petition for post-conviction
relief. He alleged that the trial court had violated Article I,
section 20, of the Oregon Constitution and the Equal
Protection and Due Process Clauses of the United States
Constitution by failing to conduct a waiver analysis
     1
       In Kent, the Supreme Court held that a “waiver decision implicated the
juvenile’s due process rights” and “appended to its decision a set of criteria that
juvenile courts in the District of Columbia had used in deciding waiver issues[.]”
J. C. N.-V., 

. The Marion County Juvenile Department’s waiver
study applied those criteria to the available information about petitioner and his
crimes.
     2
       The four charges of aggravated murder represented two theories of aggravated murder for each victim. After petitioner entered a guilty plea, the trial
court, based on State v. Barrett, 

, 

 (2000), overruled in part
on other grounds by Martinez v. Cain, 

, 

 (2020), merged the
four counts into two convictions.
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consistent with that required by this court’s decision in
J. C. N.-V.3
         The superintendent filed a motion to dismiss, arguing that the petition was successive and therefore barred
by the claim preclusion rule found in ORS 138.550(3). That
statute provides that
    “[a]ll grounds for relief claimed by petitioner in a [petition
    for post-conviction relief] must be asserted in the original
    or amended petition, and any grounds not so asserted are
    deemed waived unless the court on hearing a subsequent
    petition finds grounds for relief asserted therein which
    could not reasonably have been raised in the original or
    amended petition.”
In addition, the superintendent argued that the petition was
untimely and therefore barred by the statute of limitations
found in ORS 138.510(3).4 ORS 138.510(3) provides, as pertinent here, that a petition for post-conviction relief
    “must be filed within two years of the following, unless the
    court on hearing a subsequent petition finds grounds for
    relief asserted which could not reasonably have been raised
    in the original or amended petition:
       “(a) If no appeal is taken, the date the judgment or
    order on the conviction was entered in the register.
        “(b) If an appeal is taken, the date the appeal is final
    in the Oregon appellate courts.”

    3
      Petitioner also alleged that his trial counsel was inadequate and ineffective in failing to argue for a waiver determination consistent with J. C. N.-V. In
the Court of Appeals, petitioner conceded that that claim was without merit,
and he has not sought to have the post-conviction court’s dismissal of that claim
reversed.
    4
      The superintendent also argued that petitioner’s Article I, section 20,
equal protection, and due process claims were barred by Palmer v. State of
Oregon, 

, 

 (1994), because those arguments could
have been raised in the juvenile court. The post-conviction court also cited
Palmer as a basis for dismissing the petition for relief and, although the
Court of Appeals did not expressly rely on Palmer, some of its reasoning could
be understood as concluding that petitioner’s claim was barred by Palmer, as
well as by ORS 138.510(3) and ORS 138.550(3). See Perez, 

(“[T]he undisputed facts tend to suggest that petitioner’s claim is one that reasonably could have been raised at the time of the underlying juvenile court proceedings.”). In this court, both parties have focused on ORS 138.510(3) and ORS
138.550(3); because we affirm the post-conviction court based on ORS 138.550(3),
we do not address Palmer.
100                                                              Perez v. Cain

Petitioner conceded that his petition was successive and
untimely. He argued, however, that his new claims were
covered by the exceptions in both ORS 138.510(3) and
ORS 138.550(3)—which we have referred to as the “escape
clause[s],” Bartz v. State of Oregon, 

, 

 (1992) (internal quotation marks omitted)—that allow
“grounds for relief” to be raised if they “could not reasonably
have been raised in the original or amended petition.” He
argued that he could not reasonably have raised his claims
prior to this court’s 2016 decision in J. C. N.-V.
        The post-conviction court concluded that the petition was successive and untimely, and it held that the escape
clauses did not apply. It therefore dismissed the petition for
post-conviction relief.
         Petitioner appealed, assigning error to, among other
things, the post-conviction court’s dismissal of the case. He
argued that the escape clauses applied to his claims because
they rested on a legal principle—the interpretation of ORS
419C.349 in J. C. N.-V.—that was not reasonably available
to him at the time of his appeal or first post-conviction
petition.5
         The superintendent responded that petitioner could
have raised his escape-clause argument at the time of his
first post-conviction proceeding and within two years of his
conviction becoming final. The superintendent argued that,
prior to J. C. N.-V., “no appellate authority foreclosed the
argument that the Supreme Court endorsed in that case,”
and all of the statutory construction principles and materials relied on in J. C. N.-V. were available to petitioner before
that case was decided.
         The Court of Appeals affirmed. Perez, 

. In reaching that conclusion, the Court of Appeals gave
substantial weight to the waiver study on which the trial
court had relied in waiving petitioner into adult court, noting that the study had conducted the type of analysis that

    5
      In both the post-conviction court and the Court of Appeals, petitioner, by
choice, represented himself. The Court of Appeals solicited an amicus brief to
assist in its consideration of the escape clause issue. In this court, petitioner is
represented by counsel.
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this court said was required in J. C. N.-V. 

. The
Court of Appeals reasoned that
    “[t]he waiver study put at issue the application of the Kent
    criteria, making it reasonably possible for petitioner to
    raise any issues regarding the juvenile court’s inquiry
    under those criteria long before the Supreme Court’s decision in J. C. N.-V.; in fact, given that the waiver study was
    based on the Kent criteria, it is not wholly implausible to
    think that, but for petitioner’s stipulation to the waiver
    into adult court, the court would have conducted ‘the kind
    of inquiry contemplated by the Kent criterion’ that the
    J. C. N.-V. court held is required.”

. The Court of Appeals also noted that petitioner’s
first post-conviction proceeding occurred contemporaneously with the juvenile court proceedings in J. C. N.-V. 

The Court of Appeals therefore concluded that petitioner’s
claims did not fall within the escape clauses. 

        Petitioner filed a petition for review, arguing that
the Court of Appeals had erred in its application of the
escape clauses.6 We allowed the petition for review. We now
affirm the decision of the post-conviction court, although
based on reasoning somewhat different than that of the
Court of Appeals.
                              II. ANALYSIS
        We begin—and, because it is dispositive, end—with
the claim preclusion bar contained in ORS 138.550(3):
        “All grounds for relief claimed by petitioner in a petition pursuant to ORS 138.510 to 138.680 must be asserted
    in the original or amended petition, and any grounds not
    so asserted are deemed waived unless the court on hearing a subsequent petition finds grounds for relief asserted
    therein which could not reasonably have been raised in the
    original or amended petition.”
Because this is petitioner’s second petition for post-conviction
relief, ORS 138.550(3) prevents him from raising any claims

    6
      Petitioner also asked this court to address whether retroactivity principles
precluded relief on his claims. In light of our conclusion that the post-conviction
court properly dismissed those claims under ORS 138.550(3), we do not reach
that argument.
102                                                              Perez v. Cain

that he could have brought in his first post-conviction petition, unless the claim “could not reasonably have been
raised” in the earlier petition. To obtain consideration of any
claims in this new petition, petitioner must show that that
exception applies to the claim.
          As he did below, petitioner argues that the escape
clause applies in this case because petitioner’s claims rest,
in part, on this court’s decision in J. C. N.-V. Petitioner contends that this court’s decision in J. C. N.-V. was novel and
surprising, and that it established legal principles that could
not reasonably have been anticipated at the time of petitioner’s first post-conviction petition. In addition, petitioner
argues that, because he was 14 at the time of the original
waiver and 18 at the time of the expiration of the statute of
limitations, his youth should factor into the analysis.7
         The first strand of argument implicates three recent
decisions of this court which, together, demarcate when a
new judicial pronouncement may give a post-conviction petitioner the ability to satisfy the escape clause. To address
petitioner’s argument, we review those cases and the principles that they establish.
A.    The Escape Clause
         The first of those cases is Verduzco v. State of
Oregon, 

, 

 (2015). In Verduzco, the
petitioner brought a claim of ineffective assistance of counsel, arguing that his trial counsel had performed deficiently
by failing to advise him of the immigration consequences of
his guilty plea. 

. In making that claim, the petitioner relied on the then-recent decision of the United States
Supreme Court in Padilla v. Kentucky, 

, 

, 

 (2010), which held that the failure to
advise a defendant of clear deportation consequences may
constitute ineffective assistance of counsel.
    7
      Petitioner also argues that his claim could not be raised in his initial post-conviction proceeding because it would have been barred by Palmer. That argument is unpreserved, and we do not address it other than by noting that if any
of petitioner’s claims were barred by Palmer in that proceeding—because petitioner “reasonably could have been expected to raise” that issue in the trial court,
Palmer, 318 Or at 358—the claim would be barred by Palmer in this proceeding
as well.
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         However, the petitioner had filed a previous post-conviction petition, shortly before Padilla was decided, in
which he had raised the same claim. Verduzco, 

. We held that ORS 138.550(3) barred the Padilla
claim made in the new petition. In reaching that conclusion,
we reviewed the text, context, and legislative history of the
escape clause to ORS 138.550(3) and adopted as our own an
analysis set out in a prior Court of Appeals decision:
   “ ‘The touchstone is not whether a particular question is
   settled, but whether it reasonably is to be anticipated so
   that it can be raised and settled accordingly. The more
   settled and familiar a constitutional or other principle on
   which a claim is based, the more likely the claim reasonably should have been anticipated and raised. Conversely, if
   the constitutional principle is a new one, or if its extension
   to a particular statute, circumstance, or setting is novel,
   unprecedented, or surprising, then the more likely the
   conclusion that the claim reasonably could not have been
   raised.’ ”
Verduzco, 

 (quoting Long v. Armenakis, 

, 

 (2000)) (emphases in original). However, we did not apply that analysis to the petitioner’s claim in Verduzco because the petitioner had raised
the same claim in an earlier petition. We reasoned that the
escape clause did not apply because, “[h]aving raised those
grounds for relief in his first post-conviction petition, [the
petitioner] cannot claim that he could not reasonably have
raised them [in that petition].” 

.
          Chavez v. State of Oregon, 

, 

(2019), like Verduzco, concerned a claim that the petitioner’s trial counsel had failed to provide specific advice about
the deportation consequences of a guilty plea. In Chavez,
the claim was brought in an untimely, but not successive,
petition, so the only procedural bar to relief was the statute
of limitations in ORS 138.510(3). 

. The statute of limitations had expired in 2001—two years after the
petitioner’s conviction became final, in 1999. 

. As
in Verduzco, the question before this court was whether the
petitioner’s claim qualified for the escape clause because
the petitioner could not reasonably have raised the claim
earlier.
104                                                 Perez v. Cain

         To determine whether the petitioner could reasonably have raised his claim during the statute of limitations period, we reviewed the state of the law with respect
to petitioner’s claim between 1999 and 2001. Chavez, 

. In Lyons v. Pearce, 

, 

(1985), we had held, under the Oregon Constitution, that
a defense attorney has a duty to advise noncitizen clients
that a guilty plea may result in deportation. But we had not
held, as Padilla ultimately would in 2010, that more specific
advice about the immigration consequences of the plea was
sometimes required. At the time that the statute of limitations on the petitioner’s claim expired, no Oregon appellate
decision had addressed whether the Oregon Constitution or
the Sixth Amendment imposed that “higher requirement on
counsel,” 

, although this court would subsequently hold that the Oregon Constitution did not impose
such a requirement, in Gonzalez v. State of Oregon, 

, 

 (2006).
         We observed, however, that although no Oregon
decision had addressed the issue, “the ‘almost unanimou[s]’
rule before Padilla was that a Sixth Amendment inadequate
assistance claim based on the failure to advise a defendant
of the immigration consequences of a guilty plea was simply
not cognizable.” Chavez, 

 (quoting Chaidez v.
United States, 

, 

, 

 (2013)) (alteration in Chavez). That is, most courts to consider the issue not only had rejected the rule adopted by the
Supreme Court in Padilla but had rejected the more modest requirement—a general warning about deportation—
that this court had imposed in Lyons. Chavez, 

.
          Under those circumstances, we explained, the petitioner’s claim could not reasonably have been raised in 2001:
   “It is certainly true, as the state notes, that some litigants
   were raising similar claims before Padilla. However, those
   claims did not meet with success in the federal courts, and
   the question is not whether such a claim conceivably could
   have been raised. Rather, it is whether it reasonably could
   have been raised. As this court recognized in Verduzco,
   when the underlying principle is ‘novel, unprecedented, or
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    surprising,’ and not merely an extension of settled or familiar rules, the more likely it becomes that the ground for
    relief could not reasonably have been asserted.”

 (citations omitted). Because, as of 2001, the rule
ultimately announced in Padilla had been roundly rejected
by numerous appellate courts, we concluded that the petitioner’s claim based on Padilla could not reasonably have
been raised within the statute of limitations.
         We next addressed the meaning of the escape clauses
in White v. Premo (S065188), 

, 

 (2019).
White involved an Eighth Amendment challenge, based on
Miller v. Alabama, 

, 

, 

 (2012), to a de facto life-without-parole sentence imposed
in 1995 on a juvenile defendant who was convicted of murder.8 The challenge was raised in a petition that was both
untimely and successive, and the petitioner had appealed his
original sentence, so the escape clauses of ORS 138.510(3),
ORS 138.550(2),9 and ORS 138.550(3) were all at issue. The
question was whether, as the petitioner argued, his Eighth
Amendment argument based on Miller could not reasonably
have been raised in his previous requests for appellate and
post-conviction relief.
         To answer that question, we reviewed the state of
Eighth Amendment jurisprudence regarding juveniles at
the time of the petitioner’s trial through to the present. We
noted, first, that in Stanford v. Kentucky, 

, 

, 

 (1989), the Supreme Court had
rejected an Eighth Amendment challenge to the execution
of juvenile offenders older than 15. Further,
    “Stanford remained the law until 12 years after petitioner’s conviction and eight years after petitioner’s first post-conviction petition, when in 2005, the Court decided Roper

    8
      On the same date, we decided White v. Premo (S065223), 

, 

 (2019), which involved substantially the same legal issues, in the context of
an analogous post-conviction challenge by the petitioner’s twin brother.
    9
      ORS 138.550(2) provides, in pertinent part, that
    “[w]hen the petitioner sought and obtained direct appellate review of the conviction and sentence of the petitioner, no ground for relief may be asserted
    by petitioner in a petition for relief … unless such ground was not asserted
    and could not reasonably have been asserted in the direct appellate review
    proceeding.”
106                                               Perez v. Cain

   [v. Simmons, 

, 

, 

   (2005),] and held that the Eighth Amendment categorically
   prohibits states from putting juveniles to death.”

White, 365 Or at 8. We then observed that, subsequently,
in Graham v. Florida, 

, 

, 

 (2010), the Supreme Court had held that the Eighth
Amendment also categorically prohibits sentencing juvenile
offenders to life without parole for nonhomicide offenses.
Finally, we recounted that in 2012, in Miller, the Court had
extended the principles of Graham and Roper to juveniles
convicted of homicide, holding that, although the Eighth
Amendment does not categorically bar life-without-parole
sentences, it does “require[ ] the sentencer ‘to take into
account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.’ ” White, 365 Or at 9 (quoting Miller, 

).
        In light of that context, we were
   “not convinced that petitioner reasonably could have
   asserted a Miller claim at the time of his direct appeal
   or his earlier post-conviction proceeding. At those times,
   the Court had not yet held that juveniles typically possess
   traits that make them less blameworthy than adults, and
   certainly had not held that mandatory life-without-parole
   sentences for juveniles who commit homicide violate the
   Eighth Amendment.”

White, 365 Or at 11. As in Chavez, we noted that “the statutory question is not whether a claim conceivably could have
been raised, but, rather, whether it reasonably could have
been raised,” White, 365 Or at 11, and we held that Miller,
like Padilla, was a “ ‘novel, unprecedented, [and] surprising’ ” decision given the state of the case law at the time of
the earlier proceedings, White, 365 Or at 11 (quoting Chavez,

) (alteration in White).
         Verduzco, Chavez, and White guide our analysis
here. In each of those cases, we looked to the state of the law
at the time of the petitioner’s earlier opportunity to raise the
claim in order to determine whether the claim could reasonably have been raised at that time. If controlling case law
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at the time would have precluded the claim—for example,
as Stanford likely would have barred a Miller claim prior
to 2005—that circumstance would counsel a conclusion
that the claim could not reasonably have been raised at the
time. But we have never held that the existence of a controlling decision precluding the claim is absolutely necessary to show that the claim could not reasonably have been
raised. In Chavez, there was no controlling case precluding
an Oregon petitioner from raising a Padilla claim during
the statute-of-limitations period, but we nevertheless held
that such a claim could not reasonably have been raised, in
light of the near-unanimous consensus against such a claim
in other jurisdictions.
B.   State v. J. C. N.-V.
         Thus, to evaluate petitioner’s argument in this
case—that the rule that we adopted in J. C. N.-V. was so
novel and surprising that a petitioner in 2008 could not reasonably have advanced an argument based on it—we examine the state of the case law and legal principles at that time,
as well as the basis of our ultimate decision in J. C. N.-V.
         The text at issue in J. C. N.-V. was the requirement
in ORS 419C.349 that, before a juvenile can be waived into
adult court, the juvenile court must find that “[t]he youth
at the time of the alleged offense was of sufficient sophistication and maturity to appreciate the nature and quality
of the conduct involved.” That text was enacted as “part of
a 1985 statute that both lowered the age when a juvenile
might be waived into adult court and adopted more stringent standards for all waivers,” J. C. N.-V., 

, and
it was codified at ORS 419C.349(3) at the time of petitioner’s
waiver hearing and when this court decided J. C. N.-V.10 See
Or Laws 2019, ch 635, § 3e (amending the statute such that
the text in question now appears at ORS 419C.349(2)(a)).
        Between 1985 and 2008, when petitioner filed his
first post-conviction petition, neither this court nor the
Court of Appeals had interpreted the phrase “sufficient
sophistication and maturity to appreciate the nature and
    10
       All references in this opinion to ORS 419C.349(3) refer to the text of the
statute at the time of those events.
108                                                              Perez v. Cain

quality of the conduct involved.”11 The first appellate decision to interpret that phrase was State v. J. C. N.-V., 

, 

 (2015), rev’d, 

, 

 (2016), in which the en banc Court of Appeals considered
whether the juvenile court misapplied ORS 419C.349 when
it waived a 13-year-old youth to adult court after finding
that he possessed average sophistication and maturity for
his age. The Court of Appeals held that the juvenile court
did not err, concluding that
    “[t]he text, context, and legislative history of ORS
    419C.349(3) reflect the legislature’s intent to allow waiver
    for those youths who, by nature of their sophistication and
    maturity, understand what they are doing in a physical
    sense and understand that their actions are wrong or will
    likely have criminal consequences.”

J. C. N.-V., 

. In reaching that conclusion, the
Court of Appeals focused on the phrase “nature and quality
of the conduct,” and relied on, among other indicia, its “wellworn legal meaning in the context of criminal capacity,”

, dating back to its use to describe the common-law standard for the insanity defense in M’Naghten’s Case,
10 Clark & Fin 200, 8 Eng Rep 718 (1843). Two judges dissented, stating that they would have held “that waiver was
intended to apply only to those ‘exceptional cases’ in which
the court had considered the youth’s developmental capacity.” 

 (Egan, J., dissenting).
         This court allowed review and reversed. In interpreting ORS 419C.349(3), we examined numerous sources of
context. We noted that “the words ‘nature and quality’ may
well have roots in the M’Naghten rule” but that, “although
M’Naghten and other common-law criminal capacity cases
referred almost uniformly to a capacity to ‘know’ the nature
and wrongfulness of the conduct, the Oregon legislature,

    11
       In State ex rel Juv. Dept. v. Reed, 

, 501 n 6, 

(1993), rev den, 

 (1994), the Court of Appeals concluded, on de novo
review, that the youth at issue in that case “understood the nature and quality of
his conduct.” But the Court of Appeals simply stated that conclusion, which was
not contested in that case, without explaining what it understood the analysis
to entail. Similarly, in State ex rel Juv. Dept. v. George, 

, 260 n 3,

 (1993), the Court of Appeals accepted without elaboration the youth’s
concession that “he understood the nature and quality of his criminal conduct.”
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in enacting ORS 419C.349(3), chose a different word—
‘appreciate.’ ” J. C. N.-V., 

.
         We also looked to the Supreme Court’s decision in
Kent, which had held that a “waiver decision implicated the
juvenile’s due process rights,” J. C. N.-V., 

, and
had “appended to its decision a set of criteria that juvenile
courts in the District of Columbia had used in deciding
waiver issues, hinting that due process would be served if
juvenile courts based their waiver decisions on such criteria.” 

 We concluded that portions of ORS 419C.349,
including the words “sophistication and maturity” in ORS
419C.349(3) (2015), were drawn from Kent, J. C. N.-V., 

, which suggested “that the legislature intended
that a court look for indicia of adult-like mental, social and
emotional development as it relates to a youth’s ability to
‘appreciate the nature and quality of the conduct involved.’ ”

 (quoting ORS 419C.439(3) (2015)).
         We also examined other common law and statutory
context, along with legislative history from 1983, 1985, and
1995. J. C. N.-V., 

. We concluded that “the
legislature intended to have a trial court determine, from
the evidence presented, whether the youth in question has
sufficient adult-like mental, social and emotional capabilities to appreciate the relevant conduct, its consequences and
criminality.” 

.
          Petitioner argues that this court’s decision in
J. C. N.-V. was novel, unprecedented and surprising. He
points first to the fact that, before the decisions in J. C. N.-V.,
no appellate decision had interpreted the key phrase in
ORS 419C.439(3). Petitioner argues that, before J. C. N.-V.,
interpretation of ORS 419C.439(3) could have been informed
by either M’Naghten or Kent, and that even Kent would not
have suggested that “indicia of adult-like mental, social
and emotional development,” J. C. N.-V., 

, were
required.
         We agree with petitioner that the meaning of ORS
419C.439(3) was not settled by any appellate decision prior
to J. C. N.-V., but that circumstance falls short of what is
necessary to bring a claim within the escape clause. As we
explained in Verduzco, “ ‘[t]he touchstone is not whether a
110                                                           Perez v. Cain

particular question is settled, but whether it reasonably is to
be anticipated so that it can be raised and settled accordingly.’ ”

 (quoting Long, 

) (emphases
in original). Thus, the absence of a settled answer to a legal
question is insufficient, on its own, to make a claim one that
could not reasonably have been raised at an earlier time.12
         We recognize that, if petitioner had raised his
claims in 2008, a litigant opposing those claims could have
argued that they were premised on an interpretation of ORS
419C.439(3) that was not supported by M’Naghten or Kent.
He would not, at the time, have had access to an appellate
decision that would conclusively resolve the meaning of
ORS 419C.439(3) in his favor. But the fact that there may
be a reasonable argument against a legal position does not
mean that the position cannot reasonably be advanced. A
claim reasonably can be raised even if it is not guaranteed
to succeed.
         To the extent that petitioner suggests that J. C. N.-V.
interpreted ORS 419C.439(3) in a surprising manner that
did not follow from Kent or the other interpretive materials
relied on in the decision—such that the possible success of
the argument could not reasonably be anticipated—we disagree. As this court explained in J. C. N.-V., the Kent factors
    “required a court to consider ‘the sophistication and maturity of the juvenile’ as an independent criterion relevant
    to a waiver decision, indicating that the court should consider the full panoply of a youth’s capabilities that indicate ‘maturity’ and ‘sophistication.’ Based on the ordinary
    meaning of those terms, those capabilities would be the
    capabilities of normal adults that evidence heightened
    worldliness and discernment. Because those terms were
    used to determine, among other things, whether a youth
    was sufficiently blameworthy to stand trial as an adult, it
    seems logical that they would include adult-like traits that
    relate to traditional notions of blameworthiness beyond
    those necessary to establish criminal responsibility, such as
    capacities for premeditation and planning, impulse control,

    12
       We note that whether a claim reasonably could have been raised is distinct
from the question, relevant in inadequate assistance of counsel cases, of whether
counsel’s failure to advocate for a position “fell below an objective standard of
reasonableness.” Strickland v. Washington, 

, 

,

 (1984).
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    independent judgment, and a more hardened personality
    and outlook. Given our understanding that the statutory
    phrase ‘sophistication and maturity’ came from the Kent
    criteria, it is logical to understand the phrase as requiring an inquiry into the extent to which a juvenile’s mental,
    social and emotional developmental capabilities indicate
    adult-like capabilities indicative of blameworthiness.”
J. C. N.-V., 

 (footnote omitted). That is,
J. C. N.-V. itself explained that its interpretation of the statute followed logically from the legislature’s use of a phrase
drawn from the Kent criteria.
          This case thus differs markedly from those in which
we have held that an intervening change in case law was
sufficiently novel or surprising that a petitioner’s claim
based on the change in law could not reasonably have been
asserted earlier. In Padilla, the Supreme Court issued a
holding at odds with the conclusion previously reached by
“[a]ll 10 federal appellate courts to consider the question”
and “[a]ppellate courts in almost 30 States.” Chaidez, 

. Miller represented the culmination of a dramatic
and rapid shift in the Supreme Court’s treatment of Eighth
Amendment claims by juvenile defendants. Between 2005
and 2012, governing case law developed from Stanford’s rule
that execution of juveniles was constitutionally permissible
to Miller’s holding that, even in homicide cases, “a lifetime
in prison is a disproportionate sentence for all but the rarest of children[.]” Montgomery v. Louisiana, 

, 

, 

 (2016). In contrast,
J. C. N.-V. interpreted a longstanding statute for the first
time, based on interpretive materials and tools that were
readily available in 2008.13
     13
        The Court of Appeals relied on the fact that the waiver study presented to
the juvenile court in petitioner’s case cited Kent and conducted an analysis based
on Kent principles. The Court of Appeals may well be correct that “it is not wholly
implausible to think that, but for petitioner’s stipulation to the waiver into adult
court, the court would have conducted ‘the kind of inquiry contemplated by the
Kent criterion’ that the J. C. N.-V. court held is required,” 

 (quoting J. C. N.-V., 

), but that observation is more pertinent to the merits
of petitioner’s claims than to the question whether he could have raised them in his
2008 post-conviction proceeding. We do not rest our decision on the fact that the
“waiver study put at issue the application of the Kent criteria,” 

 All of the materials relied on in J. C. N.-V. were reasonably available to an attorney who wanted
to make the argument, regardless of whether Kent was cited in a document in the
juvenile court.
112                                               Perez v. Cain

          Petitioner also argues that, even if the question
was an open one for purposes of appeal in 2008, his claims
still could not reasonably have been raised because the rule
adopted in J. C. N.-V. was contrary to the standard practice in juvenile courts at the time (and petitioner reads
J. C. N.-V. to so imply). Assuming arguendo that petitioner’s
premise is correct, we still conclude that petitioner could
reasonably have raised his claims. The question under ORS
138.550(3) is not whether a claim based on J. C. N.-V. could
reasonably have been raised in the juvenile court proceeding, but whether it could reasonably have been raised in his
2008 post-conviction proceeding. Had that post-conviction
court rejected a claim based on its construction of ORS
419C.439(3), nothing would have prevented petitioner from
filing an appeal, see ORS 138.650 (permitting an appeal of a
post-conviction judgment), and, for reasons we have already
discussed, nothing in the state of the case law at that time
justifies a conclusion that petitioner could not reasonably
have argued for the interpretation of ORS 419C.439(3) that
we later adopted in J. C. N.-V. The judicial process does not
conclude at the trial level, and an inquiry into what claims
reasonably could have been raised cannot rest on a contrary
assumption.
C. Petitioner’s Age
          Petitioner also argues that the escape clause
analysis should take into account his age. Because he was
17 or 18 at the time of his first petition for post-conviction
relief, petitioner argues that we should consider the fact that
“his status as a youth would have made it even more difficult to comprehend the significance of the statute or understand the ways in which he was prejudiced by its application to him.” In support of that argument, he relies on our
decision in Gutale v. State of Oregon, 

, 

 (2019). The superintendent argues that the argument is
unpreserved, and that, in any event, petitioner’s age at the
time plays no role in the analysis.
        Petitioner was represented by counsel in his first
post-conviction proceeding. As we have explained,
   “[i]n Verduzco, Eklof [v. Steward, 

, 

   (2016)], and our other cases applying the escape clause to
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   the bar on successive petitions, we have considered whether
   a ground for relief reasonably could have been raised from
   the point of view of counsel. As noted, ORS 138.550(3) codifies claim preclusion principles: It addresses the question
   of whether a petitioner who already has litigated a petition
   for post-conviction relief may return to court and litigate a
   second time, and it provides that a petitioner may not do so
   where counsel reasonably could have raised the grounds at
   issue in that prior litigation.”
Gutale, 

 (citation omitted). Under ORS
138.550(3), as in Verduzco and White, we analyze whether a
claim reasonably could have been raised from counsel’s perspective; petitioner’s age and other personal characteristics
have no role in the analysis. Gutale carved out an exception
to that general rule, and did so by expressly contrasting the
circumstances in that case with those present here:
   “By contrast, when the bar on successive petitions does
   not apply, the inquiry under the escape clause to the statute of limitations is whether a petitioner reasonably could
   have raised a ground for relief before any litigation has
   occurred. The focus of the reasonableness inquiry is therefore the petitioner, rather than an attorney representing
   the petitioner.”
364 Or at 518-19. That is, to the extent that Gutale made
the petitioner the subject of the reasonableness inquiry, it
did so only for the escape clause in ORS 138.510(3), and in
a case where the petitioner had not been represented by
counsel in either an appeal or a prior post-conviction proceeding. Here, as in White and Verduzco, petitioner was
represented by counsel in his first post-conviction proceeding, and the appropriate question is whether he reasonably
could, through counsel, have raised the claims. Accordingly,
petitioner’s age at the time of his first post-conviction petition cannot alter the above analysis.
                     III.   CONCLUSION
        For the reasons given above, we reject petitioner’s
argument that he could not reasonably have raised his
post-conviction claims in his first post-conviction petition.
Because those claims could have been raised in the prior
post-conviction proceeding, they “are deemed waived” and
114                                            Perez v. Cain

cannot be raised in this proceeding. ORS 138.550(3). The
post-conviction court therefore correctly dismissed petitioner’s second petition.
        The decision of the Court of Appeals and the judgment of the circuit court are affirmed.