Appeals

ORS 138.580
Petition


The petition shall be certified by the petitioner. Facts within the personal knowledge of the petitioner and the authenticity of all documents and exhibits included in or attached to the petition must be sworn to affirmatively as true and correct. The Supreme Court, by rule, may prescribe the form of the certification. The petition shall identify the proceedings in which petitioner was convicted and any appellate proceedings thereon, give the date of entry of judgment and sentence complained of and identify any previous post-conviction proceedings that the petitioner has undertaken to secure a post-conviction remedy, whether under ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title) or otherwise, and the disposition thereof. The petition shall set forth specifically the grounds upon which relief is claimed and shall state clearly the relief desired. All facts within the personal knowledge of the petitioner shall be set forth separately from the other allegations of fact and shall be certified as provided in this section. Except as provided in rules adopted under ORS 1.002 (Supreme Court), affidavits, records or other documentary evidence supporting the allegations of the petition shall be attached to the petition. Argument, citations and discussion of authorities shall be omitted from the petition but may be submitted in a separate memorandum of law. [1959 c.636 §8; 1991 c.885 §1; 1993 c.517 §4; 2015 c.119 §2]

Notes of Decisions

Court may not act sua sponte to grant relief on grounds not specified in petition. Bowen v. Johnson, 166 Or App 89, 999 P2d 1159 (2000), Sup Ct review denied

Provision that argument, citations and discussion of authorities "may" be submitted in separate memorandum of law does not prohibit court from requiring submission of trial memorandum. Phan v. Morrow, 185 Or App 628, 60 P3d 1111 (2003)

Content of attachments to petition must aid or advance allegations of petition so that, if true and offered in admissible form, would permit court to rule for petitioner. Ogle v. Nooth, 355 Or 570, 330 P3d 572 (2014)

Attachments to petition are not held to particular standard of reliability other than petitioner's own certification of accuracy. Ogle v. Nooth, 355 Or 570, 330 P3d 572 (2014)

§§ 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