2017 ORS 34.330¹
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]

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)

Notes of Decisions

Availability of relief under writ of habeas corpus is not defeated by transfer of custody from one correc­tional facility to an­oth­er while matter is pending. Clemman v. Wright, 109 Or App 325, 819 P2d 327 (1991); McGee v. Johnson, 161 Or App 384, 984 P2d 341 (1999)

Law Review Cita­tions

14 WLJ 55 (1977)

1 Legislative Counsel Committee, CHAPTER 34—Writs, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors034.­html (2017) (last ac­cessed Mar. 30, 2018).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 34, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano034.­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.