ORS 138.510
Persons who may file petition for relief

  • time limit


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).


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:


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


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.


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:


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


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


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


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


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


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.


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.


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]

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

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 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)

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)

Law Review Citations

68 OLR 270 (1989)

Definitions for ORS 138.010 to 138.310
Mode of review
Statutes applicable to appeals
Who may appeal
Parties designated “appellant” and “respondent”
Appeal by defendant
Appeal by state
Appeal from judgment of conviction and sentence of death
Appeal from judgment involving violation
Appeal from judgment or order deciding special statutory proceeding
Time within which appeal must be taken
Service and filing of notice of appeal
Content requirements for certain notices of appeal
Signature to notice of appeal
Appeal by defendant
Appeal by state
Failure to file brief by appellant
Summary affirmation
Joint motion to vacate and remand
Court of Appeals certification of appeal to Supreme Court in lieu of disposition
Determination on appeal
Time within which certain appeals must be decided
Notice to parties concerning modified judgment or order or supplemental judgment
Order staying execution of sentence
Stay of judgment or order on appeal by state
Delivery of defendant under sentence of imprisonment to intake center
Notice to court below when public defense services executive director certifies costs, expenses or compensation
Public Defense Services Commission to provide representation for prisoner in proceeding before appellate court
Appointment of counsel and furnishing of transcript for appellant without funds
Waiver of counsel
Persons who may file petition for relief
Relief which court may grant
Dismissal of meritless petition
Frivolous petition or response
When relief must be granted
Petition for relief as exclusive remedy for challenging conviction
Availability of relief as affected by prior judicial proceedings
Procedure upon filing petition for relief
Who shall be named as defendant
Access to confidential jury records
Petitioner may proceed as a financially eligible person
Disclosure of witness information
Appearance by communication device
Victim testimony
Victim’s rights
Evidence of events occurring at trial of petitioner
Summary affirmation of judgment
Remand for reconsideration of judgment or order
Admissibility, at new trial, of testimony of witness at first trial
Short title
Automatic stay of sentence of death for federal appeal and state post-conviction relief
Commencement of DNA testing proceedings
Motion for DNA testing
Appointed counsel
Test results
Appeal of court order
Effect of setting aside conviction on plea agreement
Entry of unidentified profile into DNA databases
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