ORS 138.530¹
When relief must be granted
  • executive clemency or pardon powers and original jurisdiction of Supreme Court in habeas corpus not affected

(1) Post-conviction relief pursuant to ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title) shall be granted by the court when one or more of the following grounds is established by the petitioner:

(a) A substantial denial in the proceedings resulting in petitioner’s conviction, or in the appellate review thereof, of petitioner’s rights under the Constitution of the United States, or under the Constitution of the State of Oregon, or both, and which denial rendered the conviction void.

(b) Lack of jurisdiction of the court to impose the judgment rendered upon petitioner’s conviction.

(c) Sentence in excess of, or otherwise not in accordance with, the sentence authorized by law for the crime of which petitioner was convicted; or unconstitutionality of such sentence.

(d) Unconstitutionality of the statute making criminal the acts for which petitioner was convicted.

(2) Whenever a person petitions for relief under ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title), ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title) shall not be construed to deny relief where such relief would have been available prior to May 26, 1959, under the writ of habeas corpus, nor shall it be construed to affect any powers of executive clemency or pardon provided by law.

(3) ORS 138.510 (Persons who may file petition for relief) to 138.680 (Short title) shall not be construed to limit the original jurisdiction of the Supreme Court in habeas corpus as provided in the Constitution of this state. [1959 c.636 §§3,5]

Notes of Decisions

In General

Imposi­tion of sen­tence not including jail time does not excuse failure to advise defendant of max­i­mum possible sen­tence. Gaffey v. State of Oregon, 55 Or App 186, 637 P2d 634 (1981)

This sec­tion does not permit bringing sec­ond post-con­vic­­tion pro­ceed­ing alleging incompetence of counsel in first pro­ceed­ing as ground for post-con­vic­­tion relief. Hetrick v. Keeney, 77 Or App 506, 713 P2d 688 (1986), Sup Ct review denied

Trial court’s failure to comply with ORS 135.395 (Determining accuracy of plea) did not constitute basis for post-con­vic­­tion relief under this sec­tion. Dockery v. Maass, 99 Or App 219, 781 P2d 1230 (1989), Sup Ct review denied

“Funda­mental fairness” is neither independent grounds for relief nor basis for affording relief where per­son reconsiders foregoing ap­peal and peti­tioner was not entitled to relief where codefendant had prevailed in overturning con­vic­­tion. Hunter v. Maass, 106 Or App 438, 808 P2d 723 (1991), 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)

To demonstrate prejudice of constitu­tional magnitude, peti­tioner must show that act or omission had tendency to affect result of pros­e­cu­­tion. Ashley v. Hoyt, 139 Or App 385, 912 P2d 393 (1996)

Policy is for Oregon courts to apply federal retroac­tivity rules to newly announced federal constitu­tional principles as grounds for post-con­vic­­tion relief. Teague v. Palmateer, 184 Or App 577, 57 P3d 176 (2002), Sup Ct review denied

Substantial Denial of Constitu­tional Rights

Delay in imposi­tion of enhanced penalty does not constitute denial of right of speedy trial. Long v. Cupp, 6 Or App 289, 487 P2d 674 (1971)

In determining whether guilty plea was voluntarily made, record must show that accused intelligently and understandingly made plea. Ferren v. Cupp, 7 Or App 353, 490 P2d 208 (1971), Sup Ct review denied

When peti­tioner’s challenge is based on voluntariness of his guilty plea, court may take testimony as well as consider trial court record. Ferren v. Cupp, 7 Or App 353, 490 P2d 208 (1971), Sup Ct review denied

Pleading guilty without being advised as to parole ineligibility raises no constitu­tional issue. Jones v. Cupp, 7 Or App 415, 490 P2d 1038 (1971)

Because peti­tioner’s sen­tence was increased prior to his commit­ment in execu­tion of judg­ment, no double jeopardy was involved. Scharbrough v. Cupp, 7 Or App 596, 490 P2d 529 (1971), Sup Ct review denied

Claim that juror supplied in­for­ma­­tion not in evidence to other jurors during delibera­tions did not allege and prove that constitu­tional viola­tion was ma­te­ri­al factor leading to con­vic­­tion. Koennecke v. State of Oregon, 122 Or App 100, 857 P2d 148 (1993), Sup Ct review denied

Right to Counsel

The state has the burden of showing the communica­tion to peti­tioner of the right of “free” counsel or his independent knowledge thereof. Harris v. Cupp, 6 Or App 400, 487 P2d 1402 (1971), Sup Ct review denied

In evaluating the competence of defendant’s pre­vi­ous counsel, the court will apply a test of reasonable competence under the circumstances. Rook v. Cupp, 18 Or App 608, 526 P2d 605 (1974), Sup Ct review denied

Peti­tion alleging failure by counsel to object to an improper com­ment, to cross-examine or at a min­i­mum to impeach a witness on a critical fact and to argue effectively was sufficient to state a cause of ac­tion. Hussick v. State, 19 Or App 915, 529 P2d 938 (1974), Sup Ct review denied

Defense counsel’s failure to investigate defendant’s alibi was arguably a derelic­tion of duty, but it was not prejudicial where court in post-con­vic­­tion pro­ceed­ing found that alibi testimony would not have been credible. Howe v. Cupp, 55 Or App 247, 637 P2d 933 (1981), Sup Ct review denied

Peti­tioner failed to prove decision to waive counsel was influenced by fact that counsel had not informed him that life sen­tence upon con­vic­­tion of mur­der would also include imposi­tion of mandatory min­i­mum term. Twitty v. Maass, 105 Or App 387, 805 P2d 706 (1991)

Relief Must Be Granted Under This Sec­tion If Defendant Proves By Preponderance of Evidence That

(1) neither trial judge nor counsel advised defendant of dangerous offender statute; and (2) defendant was not otherwise aware of statute’s potential effect before entry of plea. Meyers v. Maass, 106 Or App 32, 806 P2d 695 (1991)

Where de­fense counsel requested one acquittal-first jury instruc­tion about lesser included of­fenses and failed to object to two others, assistance of counsel was inadequate. Aikens v. Maass, 122 Or App 321, 858 P2d 148 (1993), Sup Ct review denied

Where counsel offered erroneous advice on matter playing significant role in decision to accept plea bargain, counsel was inadequate. Long v. State of Oregon, 130 Or App 198, 880 P2d 509 (1994)

Misleading defendant as to right to testify was denial of effective counsel. Ashley v. Hoyt, 139 Or App 385, 912 P2d 393 (1996)

Where de­fense attorney has pre­vi­ously acted as prosecutor against defendant, prejudice is presumed only if cases have substantial connec­tion. Smart v. Maass, 148 Or App 431, 939 P2d 1184 (1997), Sup Ct review denied

Failure of trial counsel to make adequate investiga­tion does not entitle defendant to post-con­vic­­tion relief absent showing that failure tended to affect result of trial. Carias v. State of Oregon, 148 Or App 540, 941 P2d 571 (1997)

Lack of Jurisdic­tion

Late filing of an in­for­ma­­tion in a habitual crim­i­nal pro­ceed­ing does not raise the issue of jurisdic­tion. Long v. Cupp, 6 Or App 289, 487 P2d 674 (1971)

“Jurisdic­tion” under this sec­tion refers to jurisdic­tion over defendant and charged of­fense and invalidity of orders and con­vic­­tions supporting charge does not deprive trial court of jurisdic­tion. Franklin v. State of Oregon, 109 Or App 274, 819 P2d 739 (1991), Sup Ct review denied

Excessive or Unconstitu­tional Sentence

The legislative intent in the enact­ment of this statute was not to es­tab­lish a new ground for collateral relief, but rather to codify a ground for relief pre­vi­ously available in habeas corpuspro­ceed­ings. Long v. Cupp, 6 Or App 289, 487 P2d 674 (1971)

A mere irregularity in sen­ten­cing is not a basis for relief. Long v. Cupp, 6 Or App 289, 487 P2d 674 (1971)

Sentence imposed pursuant to former statute authorizing a sen­tence for an indeterminate term for certain sex offenders was not unconstitu­tionally imposed. DeBolt v. Cupp, 19 Or App 545, 528 P2d 601 (1974), Sup Ct review denied

When case has been remanded to trial court for correc­tion of judg­ment, peti­tioner may not assert challenges to judg­ment that were not raised in peti­tion. State v. Henderson, 146 Or App 81, 932 P2d 577 (1997)

Post-prison supervision is part of sen­tence and therefore subject to challenge for lawfulness through post-con­vic­­tion relief even though supervision might not yet be in effect. Lattymer v. Thompson, 170 Or App 160, 12 P3d 535 (2000), Sup Ct review denied

Where sen­tence resulted from stipulated sen­ten­cing agree­ment, peti­tioner may not seek relief on basis that sen­tence exceeds max­i­mum allowed by law. Haney v. Schiedler, 202 Or App 51, 120 P3d 1225 (2005)

Completed Cita­tions

O’Neal v. Cupp, 6 Or App 91, 485 P2d 1119 (1971), Sup Ct review denied; Patton v. Cupp, 6 Or App 1, 485 P2d 644 (1971), Sup Ct review denied

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)

1 Legislative Counsel Committee, CHAPTER 138—Conviction Relief, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors138.­html (2019) (last ac­cessed May 16, 2020).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2019, Chapter 138, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano138.­html (2019) (last ac­cessed May 16, 2020).
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent. Currency Information