Actual Innocence is not a basis for post-conviction relief

Are the courts are blind to the law? Does this prove once again that the Clackamas County Circuit Court and the Oregon Justice system, and the Oregon attorney generals office , is making a statement that the criminal justice system is running deep with corruption? Judge Maurer and HARDY MYERS Attorney General appear to be going out of their way to prove once again, that there is no real justice in Oregon. Cover up the criminal acts of a DA who uses criminal tactics to gain conviction. Lets add this to the list as another Pam Gaston, Goldsmith cover ups.

This is a post conviction case in which the Petitioner-Appellant sought reversal of his Judgment of Conviction of Assault in the Fourth Degree entered December 19, 2002. There, Petitioner-Appellant was tried and found guilty by the court. Petitioner appeals from the Order Denying Post-Conviction Relief by the Clackamas County Circuit Court entered November 19,2004. The court ruled that ORS 138.530 (1) was the exclusive remedy and that Petitioner-

Appellant’s “Actual Innocence” is not a basis for post-conviction relief.

_________________________________The appeal was filed___________________________

Statement of Case.. . . . . . .. .. . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . 1.

Statutory Basis for Appeal . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . .. . . . . . . . . 1.

Notice of Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . .. . . . . . . 1.

Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.

Preservation of Error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . .1.

Question for Decision on Appeal. . . . . . . . . . . . . . .. . . . . . . . . . . . .. . . . . . . . 1.

Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .. . . . 1.

Statement of Facts . . . . . . . . . . . . . . . . . . . . .. .. . . . . . . . . . . .. . . .. . . . . . . . 2.

Assignment of Error Number 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-7

Argument. . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-7

Recent Law Changes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7-9

Conclusion. . . . . . . . . . . . . . . . . .. . . . .. . . . .. . . . . . . . . .. . . . . . . . . . . . . 9

Excerpt of Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . 10

106 SCt 2595 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . .. . 5

72 SCt 205. 25 ALR2d 1396 (1952). . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

112 SCt 2572 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . 5

97 SCt 2319 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 5

99 SCt 2781 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 5

104 SCt 3154 (1984) . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . .. .. . . . . . 6

100 SCt 2382 [(1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . .. 6

108 SCt 1981 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . .. 6

58 SCt 149 (1937) . . . . . . . . .. . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . 6

107 SCt 2095 (1987). . . . . . . . . . . . . . . . .. . . . . . . .. . . .. . . . . . . . . . . . .6

201 P 445 (1921). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . .. . 7

State v. Turner, 296 Or 451, 456, 676 P2d 873 (1984). . . . . . . . . . . . . . . .7

Stewart v. State, 3 Or.App. 620, 475 P2d 600 (1970). . . . . . . . . . . . . . . . 7

8 LEd 2d 758, 763 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Blakely v. Washington . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . 8

158 LEd2d 177 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

US Constitution, 8th Amendment . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . 2, 5

US Constitution, 5th Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 6

US Constitution, 14th Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 6

ORS 138.220 . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . .. . . . . . . . 1

ORS 138.530(1) . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . 1

ORS 138.530(1)(a). . .. . . . . . . . . . .. . . . . . . . . .. . .. . . . . . . . . . . . . . . . . . 1, 2

ORS 138.530. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . 3

ORS 138.010. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . 3

ORS 138.540. . . . . . . . . . . . . . . . . . . . .. . . . . . . . . .. . . . . . . . . .. .. . . . . . 3

ORS 133.010. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . 3

2004. The court ruled that ORS 138.530 (1) was the exclusive remedy and that Petitioner-

Appellant’s “Actual Innocence” was not a basis for post-conviction relief.

Notice of Appeal was filed on January 19, 2005. Jurisdiction for this appeal is under ORS 138.650.

Petitioner-Appellant filed a memorandum pre-trial asserting he was entitled to post-conviction relief based upon a substantial denial of his state and federal constitutional rights. He alleged in the memorandum that ORS 138.530(1) (a) establishes a United States and Oregon constitutional right to assert “actual innocence” as a post-conviction ground for relief. He asserted the same arguments orally before the court on a number of occasions including Opening Statement:

Counsel: Yes your Honor. In this particular matter, the defendant was convicted of Domestic Violence back in the year proceeding his wife’s death. His wife testified for the State, but some time later on, on her death bed at the hospital, she made certain remarks to - certain statements to her brother and to her son about her wish to clear her conscience about the falsehoods she’d made at trial *** You’re going to have to deal with [this] from a legal standpoint, is whether in fact actual innocence would be a basis for post-conviction relief. Trans pg 3 ln 10-24.

The Court conducted a pre-trial hearing and refused to void the prior conviction.

Petitioner-Appellant is seeking post-conviction relief for wrongful conviction of domestic violence, i.e. an assault on his wife. Actual innocence of a crime is not currently a ground for relief under ORS 138.530(1), Oregon’s Post-Conviction Relief Statute. A false conviction is a substantial denial of 8th Amendment United States Constitutional rights in the proceeding that resulted in his conviction. Actual innocence should be a ground for Post-Conviction relief. Petitioner-Appellant argues for an extension of Oregon law based upon Federal 8th Amendment jurisprudence.

Mr. Stark, the Petitioner-Appellant filed a Petition For Post-Conviction Relief requesting

reversal of his conviction of Assault IV. The basis for the charge was his wife’s deathbed recantation

made in the presence of himself and other witnesses ten months after trial. His wife was the chief witness at trial and conviction was based upon her explanations of her injuries.

The Affiants allege that Mrs. Stark, recanted her statements at trial which implicated the Petitioner. (ER 4-9) The Post-Conviction Judge was the same Judge who heard the Court Trial. He noted that there was some physical evidence, i.e. blood, that supported her testimony at trial.

The Trial Court erred in denying the Defendant’s Petition to use actual innocence as a

grounds for post- conviction relief. It entered the attached Order denying Relief at a hearing prior to the trial and ruled orally that actual innocence was not a ground for relief stating:

“…the law is very clear, Chapter 138 is an exclusive mechanism for redress of claimed Constitutional failings within the conduct of a criminal proceeding that results in conviction. There has been no showing of any Constitutional failing in the conduct of the underlying criminal prosecution that resulted in the conviction at issue here. Nor any of the other subsections being implicated here that would provide a mechanism for the Court to allow the relief requested as a matter of statutory construction. Tran Pg. 30, Line 25 to Pg. 31, Line 9.

Petitioner is entitled to post-conviction relief if he shows by a preponderance of the evidence that there was a substantial denial of his constitutional rights in the proceeding that resulted in his conviction. ORS 138.530(1) (a) provides that post-conviction relief shall be granted when petitioner establishes:

conviction, or in the appellate review thereof, of petitioner’s rights under the Constitution of the United States, or under the Constitution of the

Historically, the precise situation presented here was addressed by the Writ of Error Coram Nobis.

“Whenever the writ of coram nobis has been recognized to invoke the jurisdiction of a trial court, it has been only under very unusual circumstances, and then only if it appears from the petition that the facts tendered as a basis for a new trial would have prevented the judgment entered, and also that the facts tendered were unknown at the time of the trial and it was through no lack of diligence or reasonable care on the part of the defendant that they were not permitted.” State v. Poierier, 212 Or 369, 374, 320 P2d 255 (1958).

That writ was abolished by ORS 138.010 and ORS 138.540. The possibility that this procedural Lacuna might deprive one of any relief in this kind of circumstance has proved troubling to the Oregon Supreme Court. In Poicrier, id., at 373, the Court, after noting the statutory abolition of the writ (ORS 133.010):

*** recognized that, in unusual situations, where there is no adequate statutory procedure provided, a writ in the nature of coram nobis may be issued out of a trial court to provide an adequate post conviction remedy. * * * [The jurisdiction of trial courts to entertain a motion in the nature of the writ of coram nobis lies only in unusual situations when no adequate post conviction procedure and remedy has been provided by statute.” (emphasis added).

Subsequently, in 1959, ORS 138.540 abolished both the writ and any writ in the nature of coram nobis. In that light, the court, still troubled by the same lacuna in the statutory scheme, was presented, in Anderson v. Gladden, 234 Or 614, 383 P2d 985 (1963), with a petition for post-

conviction relief which contended, inter alia, that the petitioner was entitled to a new trial “because

of newly discovered evidence that there was perjury in his first trial.” Id., at 625. the court held:

“As a general rule, habeas corpus (or its statutory counterpart in post-conviction proceedings) does not provide relief from a conviction resulting

from a mistake of fact, where proof of the jury’s mistake must depend on the credibility of newly discovered evidence.

“The prospect of a court holding itself powerless to remedy a manifestly erroneous conviction obviously would not adorn the administration of justice. We do not, therefore, say that executive clemency is the only remedy available when newly discovered evidence proves the innocence of a prisoner. That hypothetical state of affairs, however, is not before us. We leave open the question whether newly discovered evidence can ever give rise to any kind of common-law judicial relief. * * *

“* * * It is not necessary to decide, therefore, what sort of relief might lie if there were convincing evidence that an innocent person wrongfully had been imprisoned.” Id., at 625-7.

The question that was avoided in Anderson – because the facts in that case were insufficient to require an answer -- and which has not been addressed since then, is squarely raised in the present case. Here, the court is presented with convincing evidence of the innocence of the petitioner. The affidavits clearly spell out Mrs. Stark’s intention that she clear her conscience before her death. Anderson left the question open, and strongly suggested that the courts probably do have such

inherent power. The majority opinion of the United States Supreme Court, in Herrera v. Collins, 506 US___ 113 SCt 853, 122 LEd2d 203 (1993), assumed -- without actually deciding -- that such was the case. Justice Rehnquist, writing for the majority, assumed “for the sake of argument,” that federal habeas corpus relief would be available. 122 LEd2d at 227. A majority of the Court -- six of the justices -- agreed with that assumption, not merely as a rhetorical device but as a fundamental

proposition of law. Justice O’Connor, in a concurring opinion joined by Justice Kennedy, wrote:

“I cannot disagree with the fundamental legal principle that executing the innocent is inconsistent with the Constitution. Regardless of the verbal formula employed -- ‘contrary to contemporary standards of decency, post, at ___ 122 LEd2d, at 235 (dissenting opinion) (relying on Ford v. Wainwright, 477 US 399. 406, 91 LEd2d 335, 106 SCt 2595 (1986), ‘shocking to the conscience,’ post, at ___ , 122 LEd2d, at 235 (relying on Rochin v. California, 342 US 165, 172, 96 LEd 183, 72 SCt 205. 25 ALR2d 1396 (1952) ) . or offensive to a ‘‘“principle of justice so rooted in the traditions and conscience of our people as to be ranked as 4.

fundamental”’’ ante, at ___ , 122 LEd2d at 221 (opinion of the Court) (quoting Medina v. California, 505 US ___ , ___ , 120

LEd2d 353, 112 SCt 2572 (1992) in turn quoting Patterson v. New York, 432 US 197, 202, 53 LEd2d 281, 97 SCt 2319 (1977)) -- the execution of a legally and factually innocent person would be a constitutionally intolerable event.”Id.. at 228.

“In voting to affirm, I assume that a persuasive showing of ‘actual innocence’ made after trial, even though made after the expiration of the time provided for by law for the presentation of newly discovered evidence, would render unconstitutional the execution of petitioner in this case. To be entitled to relief, however, petitioner would, at the very least be required to show that based on proffered newly discovered evidence and the entire record before the jury that convicted him, ‘no rational trier of fact could [find] proof of guilt beyond a reasonable doubt.’ Jackson v. Virginia, 443 US 307, 324, 61 LEd2d 560, 99 SCt 2781 (1979) .“Id.. at 235.

“We really are being asked to decide whether the Constitution forbids the execution of a person who has been validly convicted and sentenced but who, nonetheless, can prove his innocence with newly discovered evidence. * * * I do not see how the answer can be anything but ‘yes.’” Id., at 236.

Echoing the opinion of Justice O’Connor, Justice Blackmun identified the Eighth

Amendment prohibition against cruel and unusual punishment as one source of Constitutional

“This proscription is not static but rather reflects evolving standards of decency. [citations omitted] * * * I think it is crystal clear that the execution of an innocent person is ‘at odds with contemporary standards of fairness and decency.’ Spaziano v. Florida, 468 US 447, 465, 82 LEd2d 340, 104 SCt 3154 (1984) . Indeed, it is at odds with any standard of decency that I can imagine. * *

“I believe it contrary to any standard of decency to execute someone who is actually innocent. Because the Eighth Amendment applies to questions of guilt or innocence, Beck v. Alabama, 447 US [626] , at 638, 65 LEd2d 392~ 100 SCt 2382 [(1980)1, and to persons upon whom a valid sentence of death has been imposed, Johnson v. Mississippi. 486 US [578]. at 590, 100 LEd2d 575, 108 SCt 1981 ((1988)] I also believe that petitioner may raise an Eighth Amendment challenge to his punishment on the grounds that he is actually

“The Due Process Clause of the Fifth Amendment provides that ‘No person shall . . . be deprived of life, liberty, or property, without due process of law . . . . ‘ This Court has held that the Due Process Clause protects individuals against two types of Government action. So-called ‘substantive due process’ prevents the government from engaging in conduct that shocks the conscience, ‘ Rochin v. California, [supra, at 172] , or interferes with rights ‘implicit in the concept of ordered liberty, ‘ Palko v. Connecticut, 302 US 319, 325--326, 82 LEd2d 288. 58 SCt 149 (1937) . “

“[The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This ‘liberty’ is not a series of isolated points It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.”

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 US 833 , 848 , 120 LEd2d 674, 112 5Ct 2791 (1992), quoting Poe v. Uliman, 367 US 497, 543, 6 LEd2d 989, 81 SCt 1752 (1961) (Harlan, J, dissenting from dismissal on jurisdictional grounds. )

However it may be characterized (see Herrera, id., at 228, O’Connor, J, concurring, quoted above), the conviction and incarceration of a factually innocent person is entirely arbitrary and wholly purposeless. Such a conviction is equally shocking to the conscience, Herrera, supra, at 240, and cannot withstand scrutiny under the guarantees of the Fourteenth Amendment.

The Oregon Constitution provides similar guarantees. Article I, section 16, provides:

“Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense.” The test of whether a punishment is cruel and unusual under the Oregon Constitution is “whether the given sentence is so disproportionate to the offense as to shock the conscience of fair-minded men.” State v. Ronnlger, 7 Or App 447, 461, 492 P2d 298 (1971) ; see Sustar v. County

Court for Marion County, 101 Or 657, 665, 201 P 445 (1921) ; Cannon v. Gladden, 203 Or 629, 632, 281 P2d 233 (1955) ; State v. Turner, 296 Or 451, 456, 676 P2d 873 (1984).

The brief above notes that at one time, pre-statutory repeal of the Writ of Qurom Nobis, actual innocence was available as a defense. The trend has been to re-examine case-law to see if the original intent of the founders of the Constitution has been met. Newly discovered evidence proving a man’s innocence (albeit post conviction and procedurally inadmissible in violation of state statutory

law) makes any punishment of the alleged crime cruel and unusual. Stewart v. State, 3 Or.App. 620 citing Robinson v. California, 370 US 660, 666, 82 S Ct. 1417, 8 L Ed 2d 758, 763 (1992) gives credence to this argument. In Robinson the court noted that, in using human knowledge, law making criminal a state of being such as a disease or in this case innocence would be cruel and unusual punishment.

Accepting such a proposition is not foreign to the United States criminal court system. In the last few years the United States Supreme Court has confirmed the notion that fundamental constitutional rights take precedent over contrary state legislative statutes. Blakely v. Washington — and Crawford v. Washington, 541 US 36, 124 SCt 1354, 156 LEd2d 177 (2004) are the two leading cases in this area. Blakely deals with the right to trial by jury and the fact-finding processes. Crawford deals with the right to confrontation and the adversary process. Each case addresses the primacy of the respective rights and the corollary, guaranteed procedures. In addition, each case unequivocally expresses that state law may not abridge those rights.

Specifically, the Blakely decision restricts State sentencing guidelines unless the punishment is

based on facts found beyond a reasonable doubt or otherwise admitted and relied upon by a unanimous jury. The Blakely court clearly guarantees the right to trial by jury over numerous, contrary arguments. In conclusion, the decision “reflected not just respect for longstanding precedent, but the need to give intelligible content to the fundamental constitutional right of jury trial. That right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure.” [Emphasis Added].

The right to a jury trial being fundamental. Justice Scalia used very strong language in support of fundamental rights throughout his opinion. According to Justice Scalia the fundamental nature of the right to jury trial trumps secondary considerations

The Crawford opinion mirrors Blakely in that respect, but deals with state restrictions on the right of confrontation. In Crawford, the State argued that Washington’s hearsay law created an adequate legal scheme for testing the reliability and trustworthiness necessary under Ohio v. Roberts, 488 US 56, 100 SCt 2531, 65 LEd2d 597 (1980). The Supreme Court of the United States disagreed. The Crawford court noted, as in Blakely that certain fundamental rights cannot be replaced by State legislatures.

Crawford and Blakely set a high standard for state legislatures and limit unconstitutional provisions. Crawford and Blakely set firm and necessary precedent applicable to the current situation. In addition, each case is factually comparable. Crawford and Blakely each addresses fundamental constitutional rights, and unconstitutional state interpretation, limitation, and provision upon those rights under state law. Each case addresses constitutional, procedural guarantees meant to protect the respective fundamental rights. And finally, each stands for the proposition that States

may not abridge fundamental rights even with the intent of efficient and expeditious court administration. We propose that the current Oregon law, as it stands, unconstitutionally restricts defendant his right to attack his unlawful conviction under the Constitution of the United States of America.

In the present case, petitioner was convicted by perjured testimony. Any punishment imposed therefore is per se disproportionate, and, perforce, must shock the conscience of any and all fair-minded people.

John Tyner | Oregon Criminal Defense Lawyer, Portland, Hillsboro DUI ...

Oregon criminal ... the Hillsboro offices of Oregon criminal defense lawyer John J. ... Hillsboro criminal defense attorney John J. Tyner

This case was taken to the United States Supreme Court where a student of law working in the United States Supreme Court made the decision for a United States Supreme Court Judge not to hear this case because it could cause the Justice System to collapse from all of the cases that involves actual innocents as a reason of not guilty. Proving once and for all the Justice System is not about innocents it is about power and power over the people not by or for the people.

Steven L. Maurer Judge

"Actual Innocence is a crime"