SERCOMBE, P.J.

Ryan T. O'Connor, Portland, argued the cause for appellant. With him on the briefs was O'Connor Weber LLP.

Jeff J. Payne, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Sercombe, Presiding Judge, and Hadlock, Chief Judge, and Tookey, Judge.

SERCOMBE, P.J.In 1993, at 15 years old, petitioner and his twin brother murdered an elderly couple. Petitioner was waived into adult court and, based on a stipulated facts trial, was convicted of one count of aggravated murder, one count of murder, and one count of first-degree robbery. Following a sentencing hearing, the trial court sentenced petitioner to an indeterminate life sentence on the aggravated murder conviction, an 800-month term of imprisonment, to be served concurrently with the life sentence, on the murder conviction, and a 36-month term of imprisonment, to be served consecutively to the aggravated murder and murder sentences, on the first-degree robbery conviction. In 2013, following the United States Supreme Court's decision in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), petitioner filed a successive petition for post-conviction relief. The superintendent filed a motion for summary judgment, asserting that the petition was successive and untimely and, therefore, "barred by both ORS 138.510(3) and ORS 138.550(3)." The post-conviction court agreed and, accordingly, granted the motion for summary judgment and dismissed the petition. Petitioner appeals the resulting judgment and, on appeal, we conclude, as we did in Kinkel v. Persson , 276 Or.App. 427, 367 P.3d 956, rev. allowed , 359 Or. 525, 379 P.3d 514 (2016), and Cunio v. Premo , 284 Or.App. 698, 395 P.3d 25 (2017), that the statutory rule against successive petitions bars petitioner from raising the grounds for relief set forth in his petition in this case. Accordingly, we affirm the judgment of the post-conviction court.

As noted, based on acts committed when he was 15 years old, petitioner was convicted of aggravated murder, murder, and first-degree robbery. We affirmed the trial court's judgment without opinion on direct appeal, and the Supreme Court denied review. See State v. White , 139 Or.App. 136, 911 P.2d 1287, rev. den. , 323 Or. 691, 920 P.2d 550 (1996). In 1997, petitioner sought post-conviction relief, requesting that the judgment of conviction be set aside and the sentences be vacated. Among other things, petitioner asserted that defense counsel was inadequate for failing to object to the sentence as "illegal and unauthorized." He also claimed that "[t]he trial court was in error for imposing a life sentence and 836 month[s] on petitioner[,] a remanded juvenile. The sentence violates the Eighth Amendment protection against Cruel and Unusual punishment." The post-conviction court denied relief and, on appeal from the post-conviction judgment, we, again, affirmed without opinion and the Supreme Court, again, denied review. See White v. Thompson , 163 Or.App. 416, 991 P.2d 63 (1999), rev. den. , 327 Or. 607, 994 P.2d 132 (2000). Petitioner later filed a second unsuccessful petition for post-conviction relief. We summarily affirmed the judgment in that case, and the Supreme Court entered an order denying review.

In 2012, the Board of Parole and Post-Prison Supervision held a prison term hearing and issued an order establishing petitioner's prison term on the life sentence imposed for the aggravated murder conviction. See State ex rel. Engweiler v. Felton , 350 Or. 592, 629, 260 P.3d 448 (2011) ("[P]risoners sentenced for aggravated murder are entitled to a parole hearing at which the board must either set a release date or explain why it has chosen not to do so."). As petitioner set out in his petition for post-conviction relief, the board "set a prison term of 288 months on the conviction for Aggravated Murder."

Also in 2012, the United States Supreme Court decided Miller , in which it held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without the possibility of parole for juvenile offenders." 567 U.S. at 479, 132 S.Ct. at 2469. The Court explained:

"Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking

into account the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. * * * And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it."

Id. at 477–78, 132 S.Ct. at 2468.

In his petition in this case, petitioner claimed that he had been denied adequate assistance of trial counsel in a number of ways, including that counsel failed to "object to, as unconstitutionally disproportionate punishment, the imposition of the 800-month sentence on the Murder conviction that would likely greatly exceed the sentence on the more serious charge of Aggravated Murder," and failed to "object to the constitutionality of the 800-month sentence on the grounds that it constituted a de facto sentence of Life without the possibility of parole." He also asserted that he had received inadequate and ineffective assistance of post-conviction counsel and was, therefore, deprived of the "ability to fully challenge the validity of his sentences in subsequent proceedings." Petitioner acknowledged that the petition was successive but noted that ORS 138.550"allows for successive petitions when 'the court on hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the initial or amended petition.' " He asserted that he could not reasonably have raised the ground for relief set forth in the petition prior to, among other things, the Supreme Court's decision in Miller .

The superintendent filed a motion for summary judgment asserting, among other things, that the petition was time barred under ORS 138.510(3) and did not fall within the escape clause under that statute. Furthermore, the superintendent asserted that the grounds for relief in the petition either had been or could have been raised in the original petition for post-conviction relief and, therefore, the successive petition was barred under ORS 138.550(3). The post-conviction court held a hearing on the motion and, ultimately, agreed with the superintendent that the petition was untimely and successive and that petitioner had "not demonstrated * * * that [any of his] allegations qualify for any escape clause." Accordingly, the court granted the superintendent's motion for summary judgment and dismissed the petition.

On appeal, in his first assignment of error, petitioner contends that the trial court erred when it denied him relief on his claim of inadequate and ineffective assistance of trial counsel. In particular, he asserts that the 1995 judgment in his criminal case imposed a de facto life sentence without the possibility of release. He asserts that he is entitled to relief because his sentences "violate the ban on cruel and unusual punishments in Article I, section 16, of the Oregon Constitution, [and] * * * the Eighth Amendment to the United States Constitution," and the 800-month sentence for murder is "disproportionate to a life sentence with the possibility of release" for aggravated murder. Furthermore, he contends that his late and successive petition for post-conviction relief satisfies the escape clauses in ORS 138.510 and ORS 138.550 because (1) he "could not reasonably have anticipated the rule from Miller and thus * * * could not have raised the grounds for relief here in a timely post-conviction proceeding" and (2) he could not reasonably have raised his disproportionality challenge until after the board's 2012 order setting his prison term on the aggravated murder sentence. The superintendent responds, in part, that the petition is untimely and successive and that petitioner's claims are barred in light of ORS 138.510 and ORS 138.550. He also asserts that, even if petitioner's claims were not barred, they would nevertheless fail on the merits. Because it is dispositive, we address the question whether ORS 138.550 precludes petitioner from obtaining relief on the grounds raised in his petition.

The state post-conviction relief act provides "that post-conviction petitions must be filed within two years after the challenged conviction becomes final, ORS 138.510(3), and it also bars successive petitions, ORS 138.550(3)." Verduzco v. State of Oregon , 357 Or. 553, 561, 355 P.3d 902 (2015). However, both of those procedural bars "contain identically worded 'escape clauses.' " Id . Under the escape clauses, "[e]ssentially, if [a] petitioner could not reasonably have raised the grounds for relief alleged in his [successive] petition either in a timely fashion or in the first petition, then those state procedural bars do not prevent petitioner from pursuing the grounds for relief alleged in his second post-conviction petition." Id.

In Verduzco , the Oregon Supreme Court interpreted and applied ORS 138.550. As the court explained, under ORS 138.550(2), if a petitioner

"has appealed from a judgment of conviction and if the petitioner could have raised a ground for relief on direct appeal, then the petitioner cannot raise that ground for relief in a post-conviction petition 'unless such ground was not asserted and could not reasonably have been asserted in the direct appellate review proceeding.' "

Id . at 565, 355 P.3d 902 (quoting ORS 138.550(2) ). Similarly, under ORS 138.550(3), "all grounds for relief must be raised in the original or amended petition for post-conviction relief unless the post-conviction court 'on hearing a subsequent petition finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition.' " Id. (quoting ORS 138.550(3) ).

"Those two statutory provisions 'express a complete thought' and, read together, 'express the legislature's determination that, when a petitioner has appealed and also has filed a post-conviction petition, the petitioner must raise all grounds for relief that reasonably could be asserted.' A 'failure to do so will bar a petitioner from later raising an omitted ground for relief.' "

Kinkel , 276 Or.App. at 440, 367 P.3d 956 (quoting Verduzco , 357 Or. at 565, 355 P.3d 902 ).

In Verduzco , the petitioner filed a successive petition for post-conviction relief, claiming that counsel in his underlying criminal proceeding had been ineffective for failing to advise him of the immigration consequences of pleading guilty to distribution of a controlled substance. In an earlier unsuccessful post-conviction petition, the petitioner had alleged essentially the same grounds for relief. Thereafter, the United States Supreme Court had decided Padilla v. Kentucky , 559 U.S. 356, 369, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), in which it held that, "when the deportation consequence [of a conviction] is truly clear, as it was in this case, the duty to give correct advice is equally clear," and the failure to give such advice amounts to a violation of the Sixth Amendment to the United States Constitution. In support of his successive petition, the petitioner contended that he could not have raised his current claims for relief until after the Court announced its decision in Padilla . Thus, he asserted, the change in the law brought his claims within the escape clauses in ORS 138.510 and ORS 138.550. Verduzco , 357 Or. at 561, 355 P.3d 902. The Oregon Supreme Court rejected that assertion, concluding that it need not decide whether the petitioner reasonably could have earlier raised his claims because the petitioner had, in fact, raised his constitutional claims in his earlier petition for post-conviction relief. Id . at 573, 355 P.3d 902.

Because the petitioner had earlier raised those claims, the court concluded that he could not "claim that he could not reasonably have raised them." Id . As the court explained, "[t]he escape clause does not preclude petitioner from relitigating only those grounds for relief that he was certain he could win when he filed his first post-conviction petition." Id.

"In other words, the fact that, in an earlier appeal or petition for post-conviction relief, a petitioner unsuccessfully raised a ground for relief that would have been successful under later case law does not bring a claim for relief within the escape clauses of ORS 138.550(2) and (3). On the contrary, the fact that a petitioner earlier raised the same ground for relief demonstrates that that ground for relief could reasonably have been raised on appeal or in a first petition for post-conviction relief."

Kinkel , 276 Or. App. at 442, 367 P.3d 956 (emphasis added); see Hardin v. Popoff , 279 Or.App. 290, 304 n. 10, 379 P.3d 593, rev. den. , 360 Or. 465, 384 P.3d 151 (2016) ("Our analysis simply requires us to ask whether a claim could reasonably have been raised, not whether that claim could have been raised fruitfully.").

As noted, in this case, petitioner asserts, in part, that he is entitled to relief from the 1995 judgment because the sentence imposed, particularly, the 800-month murder sentence, is a de facto life sentence that constitutes cruel and unusual punishment in violation of the Eighth Amendment and Article I, section 16. Furthermore, he asserts that he could not have raised that challenge earlier because Miller announced a new rule that he could not have reasonably anticipated. However, with respect to this challenge to his sentence, as in Verduzco , Kinkel , and Cunio , petitioner cannot successfully assert that he could not have raised his claim earlier because he, in fact, earlier challenged his sentence on that basis. As discussed above, in his original petition for post-conviction relief, petitioner asserted that the sentences imposed on him in the 1995 judgment violated "the prohibition against cruel and unusual punishment secured by the Eighth Amendment [to] the United States Constitution." In particular, he asserted that the "life" and "836 month" sentences imposed on him, "a remanded juvenile," violated the "Eighth Amendment protection against Cruel and Unusual punishment." As in Cunio , having raised that claim in his original post-conviction petition, he cannot now assert that he could not have earlier challenged his sentence as violating the constitutional provision on cruel and unusual punishment. See Cunio , 284 Or.App. at 709, 395 P.3d 25.

As noted, petitioner also claims that the 800-month sentence for murder is vertically disproportionate to the sentence for aggravated murder, and asserts that he could not have raised that challenge before the parole board established a release date on his aggravated murder sentence in 2012, and, therefore, it falls within the escape clauses in ORS 138.510 and ORS 138.550. We are unpersuaded. As petitioner notes, his vertical proportionality challenge "involves a comparison between the sentence for murder and the sentence for aggravated murder." However, his sentence on each conviction was set forth in the 1995 judgment in this case and those sentences have not changed in the years since they were imposed. Thus, a challenge based on the premise that the 800-month sentence for murder is vertically disproportionate to an indeterminate life sentence for aggravated murder could have been raised at that time. See Cunio , 284 Or.App. at 706 n. 7, 395 P.3d 25. Furthermore, to the extent that his challenge is based on the board's decision, as the state correctly notes, petitioner cannot challenge the board's decision in post-conviction relief. See id. ; see also ORS 138.530(1) ; ORS 138.540(2). Accordingly, we reject petitioner's assertion that his vertical disproportionality challenge to his sentences could not have been raised earlier.

In a second assignment of error, petitioner asserts that the court erred when it denied relief on his claim of inadequate or ineffective assistance of post-conviction counsel. In particular, he asserts that his procedural default should be excused based on the inadequacy of counsel in his original post-conviction proceeding. That is, he asserts that he "satisfies the escape clauses in the [Post-Conviction Hearing Act] if he proves that his * * * counsel unreasonably failed to raise a ground for relief in a prior post-conviction proceeding." We reject that contention.

First, as we recently reiterated in Cunningham v. Premo , 278 Or.App. 106, 124, 373 P.3d 1167, rev. den. , 360 Or. 422, 383 P.3d 857 ; 360 Or. 751, 388 P.3d 715 (2016), cert. den. , ––– U.S. ––––, 137 S.Ct. 1332, 197 L.Ed.2d 525, 2017 WL 1040930 (Mar. 20, 2017), "the adequacy of post-conviction counsel may not be challenged in a later post-conviction proceeding." Furthermore, in support of his argument, petitioner relies on the United States Supreme Court's decision in Martinez v. Ryan , 566 U.S. 1, 17, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), in which the Court held that,

"[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral

proceeding, there was no counsel or counsel in that proceeding was ineffective."

However, as we explained in Cunningham , the Court's decision in Martinez "applies narrowly to procedurally barred claims of ineffective trial counsel in federal habeas corpus petitions, where barred claims will only be reviewed upon demonstration of cause and prejudice for the procedural default, or that a failure to review the claim will result in the fundamental miscarriage of justice." Cunningham , 278 Or.App. at 124, 373 P.3d 1167. That is a very different standard than that set forth in ORS 138.550(3). Thus, in Cunningham , we "decline[d] to extend the Supreme Court's rationale in Martinez to post-conviction claims that are barred as successive, and conclude[d] that petitioner may not avail himself of the escape clause based on his claim that former post-conviction counsel was inadequate." Id. at 124-25, 373 P.3d 1167. Accordingly, petitioner's contention that he can satisfy the escape clauses based on his claim that his former post-conviction counsel was inadequate is unavailing.

In sum, the post-conviction court did not err in granting the superintendent's motion for summary judgment and dismissing petitioner's claims as improperly successive pursuant to ORS 138.550(3).

Affirmed.