Appeals

ORS 138.550
Availability of relief as affected by prior judicial proceedings


The effect of prior judicial proceedings concerning the conviction of petitioner which is challenged in the petition shall be as specified in this section and not otherwise:

(1)

The failure of petitioner to have sought appellate review of the conviction, or to have raised matters alleged in the petition at the trial of the petitioner, shall not affect the availability of relief under ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title). But no proceeding under ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title) shall be pursued while direct appellate review of the conviction of the petitioner, a motion for new trial, or a motion in arrest of judgment remains available.

(2)

When the petitioner sought and obtained direct appellate review of the conviction and sentence of the petitioner, no ground for relief may be asserted by petitioner in a petition for relief under ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title) unless such ground was not asserted and could not reasonably have been asserted in the direct appellate review proceeding. If petitioner was not represented by counsel in the direct appellate review proceeding, due to lack of funds to retain such counsel and the failure of the court to appoint counsel for that proceeding, any ground for relief under ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title) which was not specifically decided by the appellate court may be asserted in the first petition for relief under ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title), unless otherwise provided in this section.

(3)

All grounds for relief claimed by petitioner in a petition pursuant to ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title) must be asserted in the original or amended petition, and any grounds not so asserted are deemed waived unless the 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. However, any prior petition or amended petition which was withdrawn prior to the entry of judgment by leave of the court, as provided in ORS 138.610 (Pleadings), shall have no effect on petitioner’s right to bring a subsequent petition.

(4)

Except as otherwise provided in this subsection, no ground for relief under ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title) claimed by petitioner may be asserted when such ground has been asserted in any post-conviction proceeding prior to May 26, 1959, and relief was denied by the court, or when such ground could reasonably have been asserted in the prior proceeding. However, if petitioner was not represented by counsel in such prior proceeding, any ground for relief under ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title) which was not specifically decided in the prior proceedings may be raised in the first petition for relief pursuant to ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title). Petitioner’s assertion, in a post-conviction proceeding prior to May 26, 1959, of a ground for relief under ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title), and the decision of the court in such proceeding adverse to the petitioner, shall not prevent the assertion of the same ground in the first petition pursuant to ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title) if the prior adverse decision was on the ground that no remedy heretofore existing allowed relief upon the grounds alleged, or if the decision rested upon the inability of the petitioner to allege and prove matters contradicting the record of the trial which resulted in the conviction and sentence of the petitioner. [1959 c.636 §15]

Notes of Decisions

Collateral post-conviction relief is not available when the issues petitioner seeks to raise are issues which could reasonably have been raised by a direct appeal. Lerch v. Cupp, 9 Or App 508, 497 P2d 379 (1972), Sup Ct review denied

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)

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)

Completed Citations

Patton v. Cupp, 6 Or App 1, 485 P2d 644 (1971), Sup Ct review denied

§§ 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