Availability of relief as affected by prior judicial proceedings
Source:
Section 138.550 — Availability of relief as affected by prior judicial proceedings, https://www.oregonlegislature.gov/bills_laws/ors/ors138.html.
Notes of Decisions
Questions relating to duration of sentence are cognizable in a post-conviction proceeding even though they could have been raised on appeal. DeBolt v. Cupp, 19 Or App 545, 528 P2d 601 (1974), Sup Ct review denied
Where, subsequent to imposition of sentence for conviction of misdemeanor, trial court added condition of probation that petitioner reimburse county for certain expenses of his trial, petitioner was not barred from bringing proceeding under this section challenging the condition. Stacey v. State of Oregon, 30 Or App 1075, 569 P2d 640 (1977)
Where, upon appeal to circuit court from DUII conviction in justice court, plaintiff failed to renew request for jury trial despite actual knowledge that question was pending before Supreme Court, failure to do so barred assertion of constitutional error in post-conviction relief petition. Boyer v. State, 43 Or App 629, 603 P2d 1228 (1979)
Where petitioner claims that post-conviction relief is unavailable and trial court’s dismissal of petition for writ of habeas corpus was error, question of whether issue could reasonably have been raised on direct appeal thereby barring petitioner from obtaining post-conviction relief must be litigated first. Twitty v. Maass, 95 Or App 715, 770 P2d 963 (1989), on reconsideration 96 Or App 631, 773 P2d 1336 (1989)
Where claim in habeas corpus proceeding was based on constitutional principle articulated after petitioner’s direct appeal, claim would be considered in post-conviction proceeding and court did not err in dismissing petition. Twitty v. Maass, 96 Or App 631, 773 P2d 1336 (1989)
Petitioner was not entitled to post-conviction relief for trial counsel’s failure to obtain interpreter because petitioner was granted delayed appeal in which petitioner can challenge criminal trial court’s rulings. Solic v. Zenon, 108 Or App 360, 815 P2d 716 (1991), Sup Ct review denied
This section does not allow raising issue that could have been raised at trial or upon direct appeal when petitioner does not argue that counsel at trial was incompetent or that petitioner was excusably unaware of facts that could have provided basis for challenge made in post-conviction relief proceedings. Franklin v. State of Oregon, 109 Or App 274, 819 P2d 739 (1991), Sup Ct review denied
Petitioner’s claims that petitioner could not have known of inadequacies in representation at trial due to first post-conviction counsel’s neglect do not provide grounds for post-conviction relief. Miller v. Maass, 117 Or App 610, 845 P2d 933 (1993), Sup Ct review denied
Issues raisable at trial are reviewable on direct appeal only if preserved at trial, and are raisable on post-conviction relief only if not preserved at trial. Goodwin v. State of Oregon, 125 Or App 359, 866 P2d 466 (1993), Sup Ct review denied
Where constitutional issue could reasonably have been raised at trial but was not raised, defendant was not entitled to assert issue to obtain post-conviction relief, distinguishing Wells v. Peterson, 315 Or 233, 844 P2d 192 (1992). Palmer v. State of Oregon, 318 Or 352, 867 P2d 1368 (1994). But see Strasser v. State of Oregon, 368 Or 238, 489 P3d 1025 (2021)
Prohibition against assertion of post-conviction relief grounds that petitioner could have, but did not, raise on direct appeal applies to both constitutional and statutory grounds for relief. Walton v. Thompson, 196 Or App 335, 102 P3d 687 (2004), Sup Ct review denied
“Hearing” on subsequent petition refers to hearing within meaning of ORS 138.620. Ware v. Hall, 342 Or 444, 154 P3d 118 (2007)
“Affidavits, records or other documentary evidence supporting the allegations” means documents that tend to verify, corroborate or substantiate assertions that petitioner seeks to prove. Ogle v. Nooth, 254 Or App 665, 298 P3d 32 (2013), aff’d 355 Or 570, 330 P3d 572 (2014)
Where, following 2008 United States Supreme Court ruling that state courts may apply new federal constitutional rules retroactively in state post-conviction proceedings, petitioner brought second post-conviction petition for relief based on grounds petitioner had raised but not won in first petition, second petition is barred because escape clause of this section permits petitioner to raise only those grounds that petitioner could not reasonably have raised earlier. Verduzco v. State of Oregon, 357 Or 553, 355 P3d 902 (2015); Kinkel v. Persson, 276 Or App 427, 367 P3d 956 (2016), aff’d 363 Or 1, 417 P3d 401 (2018)
Under evidence that demonstrated that petitioner was indigent and not represented by counsel in direct appellate review proceeding, factual issue existed as to whether post-conviction claim was barred under this section, which precluded rendition of summary judgment. Putnam v. Angelozzi, 278 Or App 384, 374 P3d 994 (2016)
Where petitioner asserted certain pro se claims before post-conviction court, despite being represented by counsel, and court refused to consider claims because they were not asserted through counsel, petitioner would be barred from pursuing claims in subsequent petition. Bogle v. State, 363 Or 455, 423 P3d 715 (2018)
Requirement that petitioner’s grounds for post-conviction relief are waived if grounds are raised in “subsequent” petition does not bar petitioner from filing “amended” petition to include grounds that were not in petition at trial but were actually litigated by implied consent. Ogle v. Nooth, 365 Or 771, 453 P3d 1274 (2019)
Defendant not barred from asserting issue to obtain post-conviction relief if defendant did not obtain appeal of conviction and sentence; overruling Lerch v. Cupp, 9 Or App 508, 497 P2d 379 (1972). Strasser v. State of Oregon, 368 Or 238, 489 P3d 1025 (2021)
COMPLETED CITATIONS: Patton v. Cupp, 6 Or App 1, 485 P2d 644 (1971), Sup Ct review denied
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