Opinion
Submitted on record December 3, 1970
Affirmed December 24, 1969, Rehearing denied January 29, 1970 Denied by Supreme Court March 17, 1970
IN BANC
Appeal from Circuit Court, Marion County.
DOUGLAS L. HAY, Judge.
J. Marvin Kuhn, Deputy Public Defender, Salem, filed the brief for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem. Jim G. Russell, Assistant Attorney General, Salem, filed the brief for respondent. With him on the brief were Lee Johnson, Attorney General, and Jacob B. Tanzer, Solicitor General, Salem.
IN BANC
Appeal from Circuit Court, Marion County.
DOUGLAS L. HAY, Judge.
On appellant's petition for rehearing filed January 13, 1970.
J. Marvin Kuhn, Deputy Public Defender, Salem, for the petition. With him on the petition was Gary D. Babcock, Public Defender, Salem.
AFFIRMED.
Petitioner appeals from an order sustaining a demurrer to his amended petition for post-conviction relief. The petition alleges nine causes of action. No reason is stated or apparent as to why the first eight of them were not raised in the unsuccessful direct appeal which defendant previously took to the Oregon Supreme Court. State v. Bias, 248 Or. 24, 432 P.2d 312 (1967).
ORS 138.550(2) provides in part:
"When the petitioner sought and obtained direct appellate review of his conviction and sentence, no ground for relief may be asserted * * * unless such ground was not asserted and could not reasonably have been asserted in the direct appellate review proceeding * * *."
Since the petition states no reasons why these eight points were not raised on direct appeal, the demurrer was properly sustained as to them. Cain v. Gladden, 247 Or. 462, 430 P.2d 1015 (1967).
The ninth cause of action in the petition for post-conviction relief purports to be based upon the doctrine concerning police lineups enunciated by the United States Supreme Court in United States v. Wade, 388 U.S. 218, 87 S Ct 1926, 18 L Ed 2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S Ct 1951, 18 L Ed 2d 1178 (1967). The Wade opinion was handed down on June 12, 1967, while petitioner's direct appeal ( State v. Bias, supra) was pending. Even assuming, for the sake of argument, that because of the timing Bias could not reasonably have asserted the Wade-Gilbert doctrine on his direct appeal, and that the facts involved were within the Wade-Gilbert doctrine, he states no ground for relief. The Wade-Gilbert doctrine is applicable only to lineups conducted after June 12, 1967. Stovall v. Denno, 388 U.S. 293, 87 S Ct 1967, 18 L Ed 2d 1199 (1967). Petitioner was arrested, tried, convicted and sentenced over nine months prior to the time the Wade and Gilbert opinions were handed down. The demurrer was also properly sustained as to the ninth cause of action.
Affirmed.
ON PETITION FOR REHEARING
Petitioner appealed from an order entered in the Circuit Court, Marion County, Douglas L. Hay, J., sustaining a demurrer to his amended petition for post-conviction relief. The Court of Appeals, 1 Or. App. 510, affirmed, and the defendant filed a petition for rehearing. On rehearing the Court of Appeals, Schwab, C. J., held that where defendant's petition for postconviction relief stated no reason why the cause of action was not raised in his unsuccessful direct appeal previously taken, demurrer to such cause of action was properly sustained.
Petition denied.
REHEARING DENIED.
Appellant has filed a petition for rehearing contending that we were in error in holding that his ninth cause of action did not state grounds for relief. In his brief on appeal, appellant argued that his ninth cause of action was "not res judicata because the decisions in Wade and Gilbert reflected a change in the law while petitioner's direct appeal was pending." We dealt with this cause of action on the ground raised. Appellant, in his petition for rehearing, cites Stovall v. Denno, 388 U.S. 293, 87 S Ct 1967, 18 L Ed 2d 1199 (1967), and Foster v. California, 394 U.S. 440, 89 S Ct 1127, 22 L Ed 2d 402 (1969), in support of his new contention that his ninth cause of action states grounds for relief independent of the doctrine announced in Wade and Gilbert. Even if we assume that this newly-raised proposition is correct, the result must be the same. Appellant's ninth cause of action is defective for the same reason as the other eight causes of action — it states no reason why the point was not raised on direct appeal. Cain v. Gladden, 247 Or. 462, 430 P.2d 1015 (1967).
United States v. Wade, 388 U.S. 218, 87 S Ct 1926, 18 L Ed 2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S Ct 1951, 18 L Ed 2d 1178 (1967).
The petition for rehearing is denied.