2017 ORS 138.550¹
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 However, any prior petition or amended petition which was withdrawn prior to the entry of judgment by leave of the court, as provided in ORS 138.610 (Pleadings), shall have no effect on petitioner’s right to bring a subsequent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 (Hearing). 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), Sup Ct review allowed

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

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 (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 138, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano138.­html (2017) (last ac­cessed Mar. 30, 2018).
 
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.