Newton v. Kelly

A post-conviction claim of actual innocence requires an "exacting standard of proof" from the defendant. Reeves v. Nooth, 432 P3d 1105 (2018). Defense counsel does not render inadequate assistance just because they did not predict that the United States Supreme Court would later decide that conviction by a nonunanimous jury was unconstitutional. Smith v. Kelly, 508 P3d 77 (2022).

Appellant was charged and convicted of 26 crimes committed against his then wife. Appellant applied for post-conviction relief (PCR), and the lower court granted the superintendent’s motion for summary judgment. Appellant assigned error, arguing that the superintendent had failed to prove that there were “no genuine issues of material fact[,]” and that summary judgment was therefore inappropriate. Bean v. Cain, 497 P3d 1273 (2021). 

First, the Appellant argued that he was actually innocent of the crimes charged. As evidence, Appellant’s former wife declared that he had not caused her long-term injury and that her testimony had been tainted by previous traumas and threats from Child Protective Services. The Court found that this evidence fell far short of the “exacting standard of proof” required for a claim of actual innocence. Reeves v. Nooth, 432 P3d 1105 (2018).

Secondly, Appellant argued that summary judgment was inappropriate because he was convicted by a nonunanimous jury, a practice later held unconstitutional. The Court found that Appellant’s defense counsel did not render inadequate assistance just because they did not predict that the United States Supreme Court would “augur an about-face[.]” Smith v. Kelly, 508 P3d 77 (2022). Further, because “the record does not indicate whether the jury that convicted them was, in fact, nonunanimous,” petitioner was “therefore not entitled to relief.” Mandell v. Miller, 326 Or App 807, 811 (2023). 

Affirmed.