Vega-Arrieta v. Blewett

416 March 6, 2024 No. 161

IN THE COURT OF APPEALS OF THE
STATE OF OREGON

DAVID DANIEL VEGA-ARRIETA,
Petitioner-Appellant,
v.
Tyler BLEWETT,
Superintendent,
Two Rivers Correctional Institution,
Defendant-Respondent.
Umatilla County Circuit Court
17CV42589; A174808

J. Burdette Pratt, Senior Judge.
Argued and submitted September 15, 2022.
Margaret V. Huntington argued the cause for appellant.
Also on the briefs was O’Connor Weber LLC.
Rebecca M. Auten, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
HELLMAN, J.
Affirmed.

Church v. Gladden
Cite as 331 Or App 416 (2024) 417
418 Vega-Arrieta v. Blewett

HELLMAN, J.
Petitioner appeals a judgment denying his petition
for post-conviction relief from several counts of first-degree
sex crimes against a minor. On appeal, he raises four assign-
ments of error. The first alleges that the court erred in deny-
ing his motion for substitution of counsel under Church v.
Gladden, 244 Or 308, 417 P2d 993 (1966). The remaining
three assignments of error allege that the post-conviction
court erred in denying his claims for relief grounded on con-
tentions of inadequate and ineffective trial counsel. We con-
clude that the court did not err in denying relief on those
grounds. Accordingly, we affirm.
We review a post-conviction court’s judgment on a
petition for post-conviction relief for legal error and accept
the court’s supported implicit and explicit factual findings.
Green v. Franke, 357 Or 301, 312, 350 P3d 188 (2015). At issue
in this matter are parallel claims of inadequate and ineffec-
tive assistance of trial counsel under Article I, section 11, of
the Oregon Constitution and the Sixth Amendment to the
United States Constitution. The standards for assessing the
performance of counsel under both constitutions are “func-
tionally equivalent.” Johnson v. Premo, 361 Or 688, 699, 339
P3d 431 (2017). Under Article I, section 11, a petitioner must
prove two elements: first, that trial counsel failed to exer-
cise reasonable professional skill and judgment, and second,
that the petitioner suffered prejudice from counsel’s inade-
quacy. Id. Prejudice under the state constitution is demon-
strated when a petitioner shows that counsel’s failure had
a “tendency to affect the result of his trial.” Id. Under the
Sixth Amendment, a petitioner must prove that counsel pro-
vided constitutionally deficient representation which preju-
diced him. Strickland v. Washington, 466 US 668, 694, 104
S Ct 2052, 80 L Ed 2d 674 (1984). Prejudice under the fed-
eral constitution is demonstrated when there is a “reason-
able probability that, but for counsel’s [deficiency], the result
of the proceeding would have been different.” Id. When a
post-conviction court has “determined that petitioner failed
to prove both elements of an inadequate assistance claim[,]”
we will affirm the post-conviction court’s decision unless
“the petitioner persuades this court that the post-conviction
Cite as 331 Or App 416 (2024) 419

court committed reversible error with respect to its rulings
as to each element.” Austin v. Premo, 280 Or App 481, 486,
380 P3d 1253, rev den, 360 Or 697 (2016).
The relevant facts are as follows. The criminal pro-
ceedings began after R reported to his neighbor, Matsuura,
that petitioner had been sexually abusing him. R reported
the abuse after Matsuura witnessed R lying face down and
humping a hole in the ground between Matsuura and R’s
trailer park homes. When Matsuura confronted R about
this, R stated that he was doing what he learned from peti-
tioner. After she reported the incident to R’s mother, the
police and CARES NW began an investigation in which R
reported that petitioner had sexually abused him. During
the investigation, the police conducted a forensic analysis
of petitioner’s computer and found pornography on it. At the
conclusion of the investigation, the state charged petitioner
with several counts of first-degree sexual abuse of R.
Petitioner elected to have a bench trial. Counsel’s1
defense for petitioner was two-fold. Counsel first argued
that R fabricated the allegations against petitioner because
of the compromising situation that Matsuura had caught
him in. Counsel also argued that R would have contracted
Herpes Simplex Virus-2 (HSV2), if the allegations of sex-
ual abuse were true, because petitioner was diagnosed with
that virus. R’s medical and forensic examination did not
show that R had signs or symptoms of HSV2, but he was not
formally tested for it.
R testified at the bench trial. R testified that he
was 10 years old when the abuse began and that it occurred
about three times per week over seven months. Regarding
Matsuura’s witnessing of R humping the ground, R stated that
he did not remember Matsuura finding him on the ground as
she testified, but that he told her about the abuse on a sep-
arate occasion. The state also introduced R’s CARES video
interview and had R’s mother testify to corroborate some of
his statements. An investigating officer testified about the
forensic search of petitioner’s computer, including a descrip-
tion of the pornography as involving same-sex encounters.

1
Petitioner was represented by two attorneys at trial.
420 Vega-Arrieta v. Blewett

Petitioner’s trial counsel called Matsuura as a wit-
ness during the bench trial. Matsuura testified to witness-
ing R hump the ground with his pants down, and that R
was embarrassed and scared. Matsuura testified that R told
her that he was being touched or humped by petitioner at
home when R’s mother was not around. She further testified
that R asked her not to tell his mother about the incident
because he was afraid that petitioner would beat him and
his mother up. Matsuura reported the abuse to R’s mother
about a month later when R was comfortable talking about
it with her.
Counsel then called Dr. Fahey to testify in support
of the HSV2 theory. Dr. Fahey testified that, based on lit-
erature reviews, repetitive sexual contact would make it
more likely that someone would transmit HSV2 to some-
one else, regardless of age. Dr. Fahey opined that, if peti-
tioner had sexually abused R three times a week over seven
months, there was a greater than 50 percent chance that R
would also have contracted HSV2. On cross-examination,
Dr. Fahey admitted that he was only knowledgeable on the
risk of HSV2 transmission between adults and that he was
not qualified to provide opinions about the risk of HSV2
transmission from adults to children.
During closing argument, petitioner’s counsel argued
to the court that R was so embarrassed about being caught
with his pants down humping the ground by Matsuura that
he fabricated the abuse to deflect attention from his actions.
Counsel also attempted to highlight inconsistencies in R’s
testimony and conflicts between R’s and Matsuura’s testi-
monies. Counsel further argued that children could still get
HSV2, and that the decision from R’s doctors not to test him
for it shed reasonable doubt on petitioner’s guilt.
The trial court, relying on R’s testimony, found peti-
tioner guilty on all counts and sentenced petitioner to 300
months in prison. We affirmed petitioner’s convictions on
direct appeal, and the Supreme Court denied review. State v.
Vega-Arrieta, 279 Or App 609, 381 P3d 1049 (2016), rev den,
360 Or 762 (2017).
Cite as 331 Or App 416 (2024) 421

Petitioner then filed for post-conviction relief. In
a petition drafted by post-conviction counsel, petitioner
claimed that his trial attorneys provided inadequate and
ineffective assistance for calling Matsuura as an adverse
witness and for failing to properly investigate the HSV2
transmission theory. The petition also made a separate
claim of cumulative error. Petitioner’s counseled petition for
relief did not include several claims that petitioner wanted
his attorney to raise.
Because counsel had not included all the claims
that petitioner wanted, petitioner filed a Church motion,
which is a mechanism for post-conviction petitioners to
“notify the post-conviction court that counsel has failed to
raise certain grounds for relief and to ask the court to either
replace counsel or instruct counsel to raise those grounds
for relief.” Bogle v. State of Oregon, 363 Or 455, 471, 423
P3d 715 (2018). In his motion, petitioner requested that the
post-conviction court order counsel to: (1) attach an affida-
vit from a qualified expert on infectious diseases to support
the contention that trial counsel were ineffective for relying
on Dr. Fahey for the HSV2 theory; (2) raise a claim that
the testimony from a police detective about a forensic report
of petitioner’s computer was inadmissible hearsay; and
(3) raise a claim that trial counsel were ineffective for failing
to object to the admission of the detective’s testimony about
the pornography found on petitioner’s computer, because it
prejudiced him by showing a predisposition to sexual attrac-
tion to people of the same sex. In a written response to the
motions, post-conviction counsel stated: “After reviewing
[p]etitioner’s Church claims, pursuant to [Rules of Profes-
sional Conduct (RPC)] 3.1, I will not file an Amended Petition
to include those claims.” The post-conviction court then held
a hearing on petitioner’s motion.
At the hearing, the court gave counsel an opportu-
nity to explain his decision not to raise the claims petitioner
wanted him to. Counsel explained in some detail about why
petitioner’s claims lacked merit. In response to petitioner’s
request to attach an affidavit from an expert qualified in
infectious diseases, counsel stated that he was not able to
include such an affidavit because none of the experts he
422 Vega-Arrieta v. Blewett

contacted were willing or able to provide the information
petitioner was hoping for. In response to the request to raise
the hearsay claim, counsel stated that the testimony was
not hearsay because the detective testified about his own
observations. Lastly, in response to petitioner’s request to
raise the claim that trial counsel should have objected to
the testimony from the detective about the pornography
on petitioner’s computer, counsel stated that the trial law-
yers “probably should have” objected to it, but that, in post-
conviction counsel’s view, the failure to object “didn’t rise
to a constitutional magnitude.” Counsel explained that “the
[s]tate would have a strong argument that [the pornogra-
phy] showed a predisposition to petitioner being attracted to
males,” and that, even if objected to, the testimony “would
have been admissible even if the [c]ourt balanced [for prej-
udice] under [OEC] 403.” Counsel further stated that, had
petitioner’s trial lawyers objected, the “case would have
been appealed at the same time as [State v.] Williams, 357
Or 1, 346 P3d 466 (2015)] [in which] a little girl’s panties
were admissible to show a predisposition.” So, according to
post-conviction counsel, petitioner would not have been suc-
cessful in his challenge to the detective’s testimony because
petitioner would not have been able to show prejudice.
The court denied petitioner’s Church motion because
it did not find any basis to instruct counsel to raise the
claims or to provide petitioner with a new lawyer. The court
noted that petitioner, proceeding through an interpreter,
agreed that counsel should continue to represent him in the
case. The court then denied petitioner relief on all grounds
alleged in the counseled petition. This appeal followed.
In his first assignment of error, petitioner contends
that the post-conviction court erred when it denied his Church
motion for substitution of counsel. He argues that counsel
became “oppositional” during the Church hearing to the
claims petitioner wanted to raise. Citing Lopez v. Nooth, 287
Or App 731, 403 P3d 484 (2017), petitioner argues that coun-
sel’s “oppositional” responses to petitioner’s claims required
the court to appoint substitute counsel for petitioner.
Petitioner’s argument that counsel’s oppositional
statements during the Church hearing warranted substitution
Cite as 331 Or App 416 (2024) 423

is unpreserved because he did not raise that ground for sub-
stitution of counsel to the post-conviction court. “[A]s a gen-
eral rule, arguments not made to the post-conviction court in
support of a claim will not be considered on appeal.” Pohlman
v. Cain, 312 Or App 676, 680, 493 P3d 1095, rev den, 368 Or
787 (2021) (Church argument unpreserved because the peti-
tioner raised it for the first time on appeal); see also ORAP
5.45(1) (“No matter claimed as error will be considered on
appeal unless the claim of error was preserved in the lower
court.”). Indeed, we have declined to address similar argu-
ments from post-conviction petitioners who argued that the
post-conviction court erred in handling their Church motion
or that their post-conviction counsel became oppositional
to them because the petitioners raised those claims for the
first time on appeal and did not raise the issue to the post-
conviction court. Pohlman, 312 Or App at 680-81; Newmann
v. Highberger, 330 Or App 229, 233, ___ P3d ___ (2024);
Bacon v. Cain, 327 Or App 673, 679, 536 P3d 634 (2023);
Chrisco v. Blewett, 313 Or App 622, 623, 491 P3d 832 (2021),
rev den, 369 Or 211 (2022).
Here, petitioner made his Church motion to deter-
mine whether counsel’s decision not to raise the additional
claims for post-conviction relief constituted “a failure to
exercise reasonable professional skill and judgment” such
that it warranted a court instruction to counsel to raise
them or provide petitioner with a new attorney. Bogle, 363
Or at 476. The motion necessarily did not reference counsel’s
statements about the merits of the claims that petitioner
wanted him to raise because those only arose during the
hearing on petitioner’s motion.
In Lopez, we set forth guidance for post-conviction
counsel on how to professionally and ethically respond to
a court’s inquiries about why certain claims cannot be
included in a post-conviction petition. 287 Or App 731. We
stated that counsel may “indicate to the post-conviction
court that counsel has reviewed the [claims petitioner seeks
to raise], and pursuant to the [RPC] 3.1, has declined to
amend the petition [for relief] to include them.” Id. at 736
(footnote omitted). And we reversed when counsel went
beyond that to provide details and reasons as to the merits
424 Vega-Arrieta v. Blewett

of each claim in a way that placed counsel “in an adversarial
role, assuming the role of opposing counsel.” Id.
If counsel’s response oversteps in a way that imper-
missibly reveals confidences or becomes oppositional to the
petitioner, that provides a new and separate reason to sub-
stitute counsel. Id. As such, that becomes a new claim that
a petitioner must raise to the post-conviction court. Thus,
to have preserved a claim for replacement of counsel based
on counsel’s oppositional statements as opposed to his claim
based on counsel’s refusal to raise certain claims, petitioner
needed to have objected to counsel’s response on the record.
Such an objection could have occurred in court after counsel
made the alleged oppositional statements or in writing any
time before the court ruled on the post-conviction petition.2
See, e.g., Lopez, 287 Or App at 733 (the petitioner preserved
claim that his counsel’s response became oppositional to the
claims petitioner wanted counsel to raise because the peti-
tioner moved to have counsel substituted after the Church
hearing and before the post-conviction court ruled on the
petition for relief). Any objection would need to be sufficient
to alert the post-conviction court that petitioner took issue
with counsel’s statements, explain why those statements
amounted to counsel becoming oppositional, and that the
statements warrant substitution of counsel. By taking those
steps, a petitioner presents the post-conviction court with
the opportunity to develop a record on the issue, decide the
merits of the claim, and take corrective action if necessary.
We note that there is a tension between our opinion
in Lopez and the Supreme Court’s later decision in Bogle.
Lopez suggests that the most counsel should say in response
2
We recognize the reality that, for a variety of reasons, a post-conviction
petitioner may not personally be in a position to make an immediate, ful-
ly-formed objection to an attorney’s oppositional statements. A petitioner has no
reason to anticipate that counsel will become oppositional and thus no reason to
prepare for such an event. Further, once counsel becomes oppositional, barring
intervention from the court, a petitioner is effectively left on their own to raise
the issue. Many petitioners would be hard-pressed to know precisely what to say
if the hearing takes such an unexpected turn. This may be even more true for
petitioners, like petitioner in this case, who are proceeding through an inter-
preter or who otherwise encounter different barriers in the court system. We thus
reaffirm that a subsequent Church motion made in writing after the hearing and
before the post-conviction court issues its decision would also preserve the issue
for appellate review, as occurred in Lopez.
Cite as 331 Or App 416 (2024) 425

to a Church motion is that counsel has reviewed the claims
and declines to raise them under RPC 3.1. Our opinion in
Lopez rested, in part, on our then-understanding of the law
that if the petitioner brought a Church motion, and the post-
conviction court did not either instruct counsel to raise the
claim or provide substitute counsel, the petitioner would
not be barred from raising the claim in a successive post-
conviction petition. 287 Or App at 735-36. Because of our
determination of the role that Church motions played in the
post-conviction litigation framework, we focused on the rela-
tive merits of the claim itself and did not venture too far into
questions about counsel’s representation or strategic choice
of claims to litigate.
However, in Bogle, the Supreme Court determined
that an unsuccessful Church motion would not allow a peti-
tioner to bring a subsequent post-conviction petition on the
claims set forth in that motion. 363 Or at 458. Instead, the
Supreme Court determined that a Church motion was solely
for the “petitioner to seek to have counsel raise the [disputed]
grounds for relief in the current post-conviction case.” Id.
Under that framework, the post-conviction court’s evaluation
of a Church motion involves a question of whether petition-
er’s complaint about counsel is “legitimate”; that is, whether
“counsel’s failure to raise the ground for relief constitutes
a failure to exercise reasonable professional skill and judg-
ment.” Id. The Supreme Court also reiterated the longstand-
ing rule that counsel can “decline to assert a ground for relief
even if it is supported by fact and law in order for focus on
more promising grounds for relief.” Id. at 473.
Although a Church motion does not raise a question
of constitutional adequacy or effectiveness of counsel, Bogle
requires the petitioner to demonstrate a “legitimate com-
plaint” about counsel, which requires the post-conviction
court to intervene in the attorney-client relationship. And
although the question was whether counsel was “suitable”
under the state statutes for appointed post-conviction coun-
sel, Bogle equated the analysis to one of substitution of coun-
sel in criminal cases. 363 Or at 471-72. The inquiry about a
legitimate complaint or suitable counsel is, in effect, then a
question of whether counsel has breached their duty to the
426 Vega-Arrieta v. Blewett

client. In those circumstances, the attorney-client privilege
can give way to the extent necessary for counsel to respond
to the accusations. Longo v. Premo, 355 Or 525, 539, 355 P3d
1152 (2014) (interpreting OEC 503(4)(c)).
Bogle’s framing of the question, and its subsequent
answer, suggests that counsel may, and sometimes must,
disclose more than we permitted in Lopez in response to a
petitioner’s Church motion. 363 Or at 472-73. Consequently,
Bogle suggests that the portion of our opinion in Lopez
prohibiting the disclosure of confidences may no longer be
correct. Indeed, we have remanded to the post-conviction
court with instructions to conduct a “Bogle hearing,” when
the record indicated that one did not occur, indicating that
we also understood Bogle to require a more fully developed
record than we approved of in Lopez. E.g., Lobo v. Cain, 310
Or App 314, 484 P3d 1104, rev den 368 Or 513 (2021). If that
is the case, a petitioner who makes a Church motion may
unknowingly place themselves in a position to permit dis-
closures of confidences.
However, other text in Bogle indicates that the
Supreme Court may not have expected the post-conviction
court to conduct a trial-like hearing on the suitability of
post-conviction counsel’s representation in the context of
a Church motion. As mentioned above, Bogle refers to the
standards for determining substitution of counsel at trial,
which does not involve a contemporaneous in-depth exam-
ination of counsel’s representation. See 363 Or at 472 (citing
State v. Davidson, 252 Or 617, 619-20, 451 P2d 481 (1969)
and State v. Langley, 314 Or 247, 258, 839 P2d 692 (1992)).
Moreover, the impracticality of holding such a hearing in
the middle of an existing post-conviction hearing suggests
that is not what the Supreme Court had in mind in Bogle.
Although the Supreme Court did not provide explicit
guidance for counsel in responding to Church motions,
the opinion can fairly be read to suggest that counsel can
best respond to a Church motion by explaining that, after
investigation and research, counsel made a strategic deci-
sion to assert the grounds raised in the petition, instead of
other grounds that the petitioner wanted counsel to raise.
Based on existing law, it would also seem that the amount
Cite as 331 Or App 416 (2024) 427

of detail that counsel provides in that explanation would
vary depending on the circumstances and could still cross
the line into oppositional under Lopez if it became advocacy
against the client, 287 Or App at 736, or resulted in disclo-
sure of confidences that were unnecessary to address the
issues raised by the client, Longo, 355 Or at 539.
We need not draw any bright lines or conclusively
resolve the tension between Lopez and Bogle in this case
because at no point during or after the Church hearing did
petitioner alert the post-conviction court that he believed
counsel became oppositional to him. Absent that kind of
objection, the only issues before the post-conviction court
were the arguments contained within petitioner’s Church
motion. Therefore, as in Bacon, Newmann, Chrisco, and
Pohlman, the post-conviction court did not have the oppor-
tunity to rule on the claim that petitioner presents to us.
Petitioner thus did not preserve his claim that the post-
conviction court erred in denying his Church motion on the
ground that counsel became oppositional to him.
We now turn to petitioner’s remaining three assign-
ments of error. In his second assignment of error, peti-
tioner contends that the post-conviction court erred when it
denied petitioner’s claim that trial counsel was ineffective
for calling an adverse witness, Matsuura, without a better
understanding of what her testimony would be. The post-
conviction court made a factual finding, which is supported
by evidence in the record, that Matsuura’s testimony was
essential to petitioner’s defense theory that R fabricated the
allegations against petitioner to deflect attention from the
embarrassing circumstance in which Matsuura caught R.
Although Matsuura’s testimony may not have been exactly
what counsel hoped for, calling a necessary witness does
not demonstrate an “absence or suspension of professional
skill and judgment.” Gorham v. Thompson, 332 Or 560,
567, 34 P3d 161 (2001); Johnson, 361 Or at 699. Further,
given that Matsuura’s testimony allowed counsel to argue a
defense to the charges, petitioner has not demonstrated how
the decision to call her was prejudicial. Therefore, the post-
conviction court did not err when it determined that peti-
tioner did not prove inadequate or ineffective representation
428 Vega-Arrieta v. Blewett

under either the state or federal constitution based on their
decision to call Matsuura as a witness.
In his third assignment of error, petitioner argues
that the post-conviction court erred when it denied petition-
er’s claim that trial counsel was ineffective for failing to
investigate the defense theory regarding HSV2 transmis-
sion and calling Dr. Fahey to testify to a science in which
he does not have expertise. Even if it was not an exercise of
reasonable professional skill and judgment to call an expert
who could not support the defense theory, petitioner has not
demonstrated prejudice. In the end, Dr. Fahey’s testimony
did not support the defense theory, but neither did it under-
mine it. The trial court specifically stated that it was relying
on the victim’s testimony to reach its verdict, and petitioner
has not demonstrated how Dr. Fahey’s testimony affected
the way in which the trial court would have judged the vic-
tim’s credibility. Thus, petitioner has not demonstrated that
any alleged deficiencies in his trial counsel’s performance
had a “tendency to affect the result of his trial,” Johnson,
361 Or at 699 (prejudice standard for Oregon constitution),
or a “reasonable probability that, but for counsel’s [alleged
deficiency], the result of the proceeding would have been dif-
ferent.” Strickland, 466 US at 694 (prejudice standard for
federal constitution). Accordingly, the post-conviction court
did not err in denying this claim for relief.
In his fourth assignment of error, petitioner con-
tends that the post-conviction court erred in denying his
claim alleging cumulative error. The post-conviction court
properly rejected that claim because Oregon courts have
not recognized a cumulative error theory of relief. Monica
v. Myers, 319 Or App 376, 386-87, 510 P3d 238, rev den,
370 Or 212 (2022) (citing Farmer v. Premo, 283 Or App 731,
754 n 13, 390 P3d 1054 (2017), rev’d on other grounds, 363
Or 679, 427 P3d 170 (2018)). Even if our courts recognized
cumulative error as a ground for relief, we would reject peti-
tioner’s arguments because, as noted above, petitioner did
not demonstrate that he suffered prejudice from his trial
counsel’s alleged deficient performance, and there would be
no prejudice to accumulate.
Affirmed.