OSBORNE v. CAIN (2022)

Petitioner appeals from a judgment denying his petition for post-conviction relief. Petitioner was convicted of attempted second-degree assault, third-degree assault, and unlawful use of a weapon after he and another person attacked the victim with a knife. He sought post-conviction relief on the ground that trial counsel was constitutionally deficient in failing to call a witness at trial who, according to petitioner, would have testified that petitioner did not have a knife. The post-conviction court denied relief on that claim, as well as on petitioner's related claim that he suffered cumulative error, and petitioner assigns error to that denial. We affirm.

Our review is for legal error, accepting the post-conviction court's factual findings if there is evidence to support them. Montez v. Czerniak, 355 Or. 1, 8, 322 P.3d 487, adh'd to as modified on recons., 355 Or. 598, 330 P.3d 595 (2014) (citing Peiffer v. Hoyt, 339 Or. 649, 660, 125 P.3d 734 (2005)). The post-conviction court found that the state and trial counsel had both made efforts to find the witness but had been unable to locate her in part because she was houseless; those findings are supported by the record. The post-conviction court thus concluded that petitioner had not proved that trial counsel failed to make reasonable efforts to find the witness, upon which his claim of ineffective assistance of counsel depends. The court further concluded that petitioner had failed to prove prejudice, because petitioner did not provide admissible evidence of what the witness's testimony would have been had she been located. The post-conviction court's legal conclusions are supported by the facts upon which they rely and it therefore correctly rejected petitioner's claim for relief.¹ We therefore affirm.

Affirmed.

FOOTNOTES

1.   Petitioner separately assigns error to the post-conviction court's conclusion that he had not suffered cumulative error, but petitioner combines argument on that assignment with his first assignment of error because, according to petitioner, they present the same legal question. As we understand it, his cumulative error claim is part of his argument that he suffered prejudice. Because we reject his first claim of error, we also reject his second.

PER CURIAM