2017 ORS 34.680¹
Motion to deny petition
  • motion to strike
  • controverting replication
  • time to plead
  • construction and effect of pleadings

(1) The defendant may, before the writ issues, move to deny the petition on the grounds that the petition fails to state a claim for habeas corpus relief. The defendant may, at any time after the writ issues, move to dismiss the writ on the grounds that the pleadings, including the petition, the return, the replication, if any, and any supporting evidence, demonstrate that plaintiff has failed to state or establish a claim for habeas corpus relief.

(2) The plaintiff may move to strike the return or any allegation or defense in the return. The defendant may move to strike the replication or any new matter in the replication, or by proof controvert the same, as upon a direct denial or avoidance.

(3) The return and replication shall be made within such time as the court or judge shall direct, and the petition, return and replication shall be construed and have the same effect as in an action. [Amended by 1979 c.284 §74; 1991 c.884 §8]

Notes of Decisions

Mo­tion to strike is func­tional equivalent of demurrer. Lane v. Maass, 309 Or 671, 790 P2d 1137 (1990); Feller v. Wright, 103 Or App 575, 798 P2d 703 (1990)

Where mo­tion to dismiss writ is for failure to state claim and mo­tion is unsupported by evidentiary ma­te­ri­als, court should treat mo­tion as comparable to mo­tion to dismiss under ORCP 21 rather than as mo­tion for summary judg­ment. Dunn v. Hill, 211 Or App 590, 156 P3d 72 (2007)

Law Review Cita­tions

73 OLR 785 (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.