Appeals

ORS 138.510
Persons who may file petition for relief

  • time limit


(1)

Except as otherwise provided in ORS 138.540 (Petition for relief as exclusive remedy for challenging conviction), any person convicted of a crime under the laws of this state may file a petition for post-conviction relief pursuant to ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title).

(2)

A petition for post-conviction relief may be filed by one person on behalf of another person who has been convicted of aggravated murder and sentenced to death only if the person filing the petition demonstrates by a preponderance of the evidence that:

(a)

The person sentenced to death is unable to file a petition on the person’s own behalf due to mental incapacity or because of a lack of access to the court; and

(b)

The person filing the petition has a significant relationship with the person sentenced to death and will act in the best interest of the person on whose behalf the petition is being filed.

(3)

A petition pursuant to ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title) must be filed within two years of the following, unless the court on hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the original or amended petition:

(a)

If no appeal is taken, the date the judgment or order on the conviction was entered in the register.

(b)

If an appeal is taken, the date the appeal is final in the Oregon appellate courts.

(c)

If a petition for certiorari to the United States Supreme Court is filed, the later of:

(A)

The date of denial of certiorari, if the petition is denied; or

(B)

The date of entry of a final state court judgment following remand from the United States Supreme Court.

(4)

A one-year filing period shall apply retroactively to petitions filed by persons whose convictions and appeals became final before August 5, 1989, and any such petitions must be filed within one year after November 4, 1993. A person whose post-conviction petition was dismissed prior to November 4, 1993, cannot file another post-conviction petition involving the same case.

(5)

The remedy created by ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title) is available to persons convicted before May 26, 1959.

(6)

In any post-conviction proceeding pending in the courts of this state on May 26, 1959, the person seeking relief in such proceedings shall be allowed to amend the action and seek relief under ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title). If such person does not choose to amend the action in this manner, the law existing prior to May 26, 1959, shall govern the case. [1959 c.636 §§1,16,17; 1989 c.1053 §18; 1993 c.517 §1; 1999 c.1055 §7; 2007 c.292 §1]

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

Mental disorder does not constitute ground for relief justifying untimely filing of petition. Fisher v. Belleque, 237 Or App 405, 240 P3d 745 (2010), 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 filling 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)

Law Review Citations

68 OLR 270 (1989)

§§ 138.510 to 138.680

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)

Habeas corpus is a proper method of questioning the constitutionality of treatment accorded prisoners. Bekins v. Cupp, 274 Or 115, 545 P2d 861 (1976)

These sections afforded plain, speedy and adequate remedy in lower courts and state Supreme Court would not exercise original habeas corpus jurisdiction. Sweet v. Cupp, 640 F2d 233 (1981)

Post-conviction relief is not suspension of writ of habeas corpus; it provides different procedure but retains all necessary substantive and procedural advantages of the writ. Atkeson v. Cupp, 68 Or App 196, 680 P2d 772 (1984), Sup Ct review denied

Post-conviction relief under these sections is available to those convicted of DUII Class A traffic infractions to remedy constitutional violations. Evers v. State, 69 Or App 450, 685 P2d 1024 (1984)

Availability of post-conviction relief to persons convicted under state law but not to those convicted under municipal law does not violate Article I, section 20, or equal protection clause of Fourteenth Amendment, because persons convicted under municipal law do not constitute true class, and there is no discriminatory application of law. Hunter v. State of Oregon, 306 Or 529, 761 P2d 502 (1988)

Granting of delayed appeal authorized where necessary to rectify substantial denial of constitutional rights. State v. Macy, 316 Or 335, 851 P2d 579 (1993)

Federal constitutional principle requiring that facts that increase penalty for crime beyond statutory maximum be submitted to jury does not apply retroactively to afford post-conviction relief. Page v. Palmateer, 336 Or 379, 84 P3d 133 (2004)

State will retroactively apply new federal rule regarding constitutionality only if rule places certain kinds of conduct beyond proscription or if procedural rule affects fundamental fairness required for accurate conviction. Page v. Palmateer, 336 Or 379, 84 P3d 133 (2004)

Law Review Citations

68 OLR 269 (1989)


Source

Last accessed
Jun. 26, 2021