ORS 34.330
Who may not prosecute writ


A person may not prosecute a writ of habeas corpus if:

(1)

The person is imprisoned or restrained by virtue of process issued by a court of the United States, or a judge, commissioner or other officer thereof, in cases where such courts, or judges or officers thereof, have exclusive jurisdiction under the laws of the United States, or have acquired exclusive jurisdiction by the commencement of actions, suits or other proceedings in such court, or before such commissioner or other officer.

(2)

The person is imprisoned or restrained by virtue of the judgment of a competent tribunal of civil or criminal jurisdiction, or by virtue of an execution issued upon such judgment.

(3)

Except as provided in ORS 138.530 (When relief must be granted), the person is eligible to obtain post-conviction relief pursuant to ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title).

(4)

The person is eligible to seek judicial review of a final order of the State Board of Parole and Post-Prison Supervision under ORS 144.335 (Appeal from order of board to Court of Appeals) but the person fails to seek judicial review of the order in a timely manner.

(5)

The person seeks judicial review of a final order of the board under ORS 144.335 (Appeal from order of board to Court of Appeals) but the Court of Appeals:

(a)

Summarily affirms the order of the board on the grounds that the person failed to present a substantial question of law;

(b)

Otherwise disposes of the judicial review on the merits of the petitioner’s issues on judicial review; or

(c)

Dismisses the judicial review because of a procedural defect. [Amended by 1959 c.636 §22; 2001 c.661 §2; 2003 c.576 §311; 2007 c.411 §2]

Source: Section 34.330 — Who may not prosecute writ, https://www.­oregonlegislature.­gov/bills_laws/ors/ors034.­html.

Notes of Decisions

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

Despite abolition of “civil death,” writ of habeas corpusremains available where no other timely process is available to convicted prisoners for challenging unlawful imprisonment, unlawful restraint or other deprivation of rights requiring immediate judicial scrutiny. Penrod/Brown v. Cupp, 283 Or 21, 581 P2d 934 (1978)

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)

Prior to 1983, persons who were found to be insane were not convicted and therefore were not eligible for post-conviction relief; since 1983, post-conviction relief is clearly available to persons under PSRB’s jurisdiction because verdict of guilty except for insanity is conviction, and therefore habeas corpus is not available. Mueller v. Benning, 314 Or 615, 841 P2d 640 (1992)

Court is not required to convert defective habeas corpuspetition alleging post-conviction relief claim into petition for post-conviction relief. Perry v. Zenon, 127 Or App 682, 874 P2d 89 (1994)

34.010
Former writ of certiorari as writ of review
34.020
Who may obtain review
34.030
Jurisdiction to grant writ
34.040
When allowed
34.050
Plaintiff’s undertaking
34.060
To whom directed
34.070
Stay of proceedings
34.080
Issuance and service of writ
34.090
Order for further return
34.100
Power of court on review
34.102
Review of decisions of municipal corporations
34.105
Definitions for ORS 34.105 to 34.240
34.110
When and to whom writ issued
34.120
Courts having jurisdiction
34.130
Petition for writ
34.140
Direction and service of writ
34.150
Peremptory and alternative writs
34.160
Allowance of peremptory writ in first instance
34.170
Answer or motion to dismiss by defendant
34.180
Failure to answer or move for dismissal
34.190
Other pleadings
34.200
Allowance and trial in Supreme Court
34.210
Recovery of damages
34.220
Recovery as a bar
34.230
Imposition of fine
34.240
Appeal
34.250
Certain mandamus proceedings under Supreme Court’s original jurisdiction
34.310
Purpose of writ
34.320
Courts having jurisdiction
34.330
Who may not prosecute writ
34.340
Petition
34.350
Application by district attorney
34.355
Appointment of counsel
34.360
Contents of petition when person challenges authority for confinement
34.362
Contents of petition when person challenges conditions of confinement or deprivation of rights while confined
34.365
Filing petition of prisoner without payment of filing fees
34.370
Order to show cause
34.380
Warrant in lieu of writ
34.390
Order for arrest of person having custody
34.400
Execution of warrant
34.410
Criminal offense by person having custody
34.421
Contents of writ
34.430
Defect of form
34.440
Who may serve writ
34.450
Payment of charges when service is on person other than sheriff or other officer
34.460
Manner of service
34.470
Service when officer or other person hides or refuses admittance
34.480
Proof of service
34.490
Duty to obey writ
34.500
When return must be made
34.520
Sickness of person
34.530
Requiring return and production of party by order
34.540
Contents of return
34.550
Warrant in case of refusal or neglect to obey writ
34.560
Failure of sheriff to return writ
34.570
Precept commanding bringing of prisoner
34.580
Inquiry into cause of imprisonment
34.590
Discharge when no legal cause for restraint is shown
34.600
When party to be remanded
34.610
Grounds for discharge of prisoner in custody under order or civil process
34.620
Inquiry into legality of certain judgments and process not permitted
34.630
Proceedings where commitment for criminal offense is legal, or party probably is guilty
34.640
Custody of party pending proceedings
34.650
Notice to third persons
34.660
Notice to district attorney
34.670
Replication following return
34.680
Motion to deny petition
34.690
Requiring production of person after writ issued
34.695
Conduct of hearing
34.700
Judgment
34.710
Appeal
34.712
Summary affirmation of judgment on appeal
34.720
Imprisonment after discharge
34.730
Forfeiture for refusing copy of order or process
34.740
Amendment of petition or action against public body when wrong remedy sought
34.810
Scire facias and quo warranto
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