Persons who may file petition for relief
- time limit
Source:
Section 138.510 — Persons who may file petition for relief; time limit, https://www.oregonlegislature.gov/bills_laws/ors/ors138.html.
Notes of Decisions
Any person who is convicted of a crime may seek relief under this section, whether or not he is in custody, regardless of whether his conviction is for a felony or misdemeanor. Morasch v. State, 261 Or 299, 493 P2d 1364 (1972)
“Laws of this state” means laws enacted by state, not municipality; those convicted under municipal ordinance are not convicted under laws of this state. Hunter v. State of Oregon, 306 Or 529, 761 P2d 502 (1988)
Filing of timely petition is not required in order for untimely petition to be “subsequent petition” asserting relief that could not reasonably have been raised in original or amended petition. Fine v. Zenon, 114 Or App 183, 834 P2d 509 (1992)
“Subsequent petition” means post-conviction petition filed after expiration of applicable limitation period of this section. Fine v. Zenon, 114 Or App 183, 834 P2d 509 (1992)
Where Court of Appeals decided after period for seeking post-conviction relief had expired that language in sentencing guidelines was unconstitutionally vague, defendants could not file for relief. Mora v. Maass, 120 Or App 173, 851 P2d 1154 (1993), aff’d 319 Or 570, 877 P2d 641 (1994)
Petitioner who neglected to appeal Parole Board order sustaining 15 year minimum sentence may not challenge parole consideration date in habeas corpus proceeding where date was set at expiration of minimum sentence and petitioner could not demonstrate other grounds for relief. Sager v. Board of Parole, 121 Or App 607, 856 P2d 329 (1993), Sup Ct review denied
Where correct information is available from other sources, receipt of erroneous advice does not make information type that could not reasonably have been raised during 120-day period. Brown v. Baldwin, 131 Or App 356, 885 P2d 707 (1994), Sup Ct review denied
One-year limit for filing post-conviction petition relating to conviction becoming final before August 5, 1989, is consistent with right of habeas corpus, notwithstanding lack of escape clause. Wallis v. Baldwin, 152 Or App 295, 954 P2d 192 (1998), Sup Ct review denied
Where late petition seeks relief based on change in law or new legal pronouncement, grounds for relief could “reasonably have been raised” earlier if legal principle underlying change or pronouncement was sufficiently settled and familiar that defendant could have anticipated and raised issue in timely manner. Long v. Armenakis, 166 Or App 94, 999 P2d 461 (2000), Sup Ct review denied
Where all alleged grounds for relief challenge constitutionality of procedure leading to conviction and do not challenge constitutionality of procedure leading to probation revocation, limitations period begins to run upon entry of “judgment or order on the conviction,” and limitations period does not run and does not begin to run again by court’s subsequent entry of judgment on probation revocation. Zsarko v. Angelozzi, 281 Or App 506, 385 P3d 1239 (2016), Sup Ct review denied
Appointment of post-conviction counsel who failed to timely file petition on petitioner’s behalf created situation in which grounds asserted by pro se petitioner in petition could not “reasonably have been raised in the original or amended petition.” Winstead v. State of Oregon, 287 Or App 737, 403 P3d 444 (2017)
Where information forming basis for grounds for appeal was publicly available, petitioner’s personal circumstances that hindered access to information did not provide “escape clause” that would have permitted late filing untimely petition for post-conviction relief, because grounds alleged in petition were not grounds that could not reasonably have been raised at time of entry of conviction. Hernandez-Zurita v. State of Oregon, 290 Or App 621, 417 P3d 548 (2018)
Where petitioner stated at sentencing that petitioner was pleading guilty so that petitioner could travel and become United States citizen, and neither trial counsel nor court informed petitioner that plea may subject petitioner to immigration consequences, petition for post-conviction fell within escape clause to statute of limitations because ground for relief was not reasonably available until petitioner was detained by Immigration and Customs Enforcement (ICE) after statute of limitations expired, and petitioner had no reason to investigate ground for relief available under Padilla v. Kentucky until ICE detention. Gutale v. State of Oregon, 364 Or 502, 435 P3d 728 (2019)
Standard for determining availability of escape clause provided by this section requires assessing whether petitioner reasonably could have accessed ground for relief and whether reasonable person in petitioner’s situation would have thought to investigate existence of that ground for relief. Gutale v. State of Oregon, 364 Or 502, 435 P3d 728 (2019); Aponte v. State of Oregon, 320 Or App 141, 512 P3d 868 (2022), Sup Ct review denied
Where petitioner brought claim diverse from Padilla v. Kentucky five years before Padilla, petitioner could not have anticipated Padilla and therefore petitioner’s claim falls within escape clause of this section. Chavez v. State, 364 Or 654, 438 P3d 381 (2019)
Claim for post-conviction relief is not barred where legal basis for claim is based on recent decision of United States Supreme Court, even if similar type of claim was earlier raised; petitioner could not reasonably have asserted grounds for relief in previous proceedings because “grounds” refers to particular legal rule asserted as basis for claim, not general type of claim. White v. Premo, 365 Or 1, 443 P3d 597 (2019)
Because phrase “could not reasonably have been raised” in this section requires determination of “reasonable,” which requires consideration of circumstances, court must consider petitioner’s ability to raise ground for relief under circumstances that existed during limitations period, and thus court may consider petitioner’s severe mental impairments in deciding whether so-called “escape clause” under this section allows petitioner’s untimely filing of petition for post-conviction relief. Ingle v. Matteucci, 371 Or 413, 537 P3d 895 (2023)
Law Review Citations
68 OLR 270 (1989)
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