138.510
Persons who may file petition for relief; time limit. (1) Except as otherwise provided
in ORS 138.540, any person convicted of a crime under the laws of this state
may file a petition for post-conviction relief pursuant to ORS 138.510 to
138.680.
(2) A petition
for post-conviction relief may be filed by one person on behalf of another
person who has been convicted of aggravated murder and sentenced to death only
if the person filing the petition demonstrates by a preponderance of the
evidence that:
(a) The person
sentenced to death is unable to file a petition on the person’s own behalf due
to mental incapacity or because of a lack of access to the court; and
(b) The person
filing the petition has a significant relationship with the person sentenced to
death and will act in the best interest of the person on whose behalf the
petition is being filed.
(3) A petition
pursuant to ORS 138.510 to 138.680 must be filed within two years of the
following, unless the court on hearing a subsequent petition finds grounds for
relief asserted which could not reasonably have been raised in the original or
amended petition:
(a) If no appeal
is taken, the date the judgment or order on the conviction was entered in the
register.
(b) If an appeal
is taken, the date the appeal is final in the Oregon appellate courts.
(c) If a petition
for certiorari to the United States Supreme Court is filed, the later of:
(A) The date of
denial of certiorari, if the petition is denied; or
(B) The date of
entry of a final state court judgment following remand from the United States
Supreme Court.
(4) A one-year
filing period shall apply retroactively to petitions filed by persons whose
convictions and appeals became final before August 5, 1989, and any such
petitions must be filed within one year after November 4, 1993. A person whose
post-conviction petition was dismissed prior to November 4, 1993, cannot file
another post-conviction petition involving the same case.
(5) The remedy
created by ORS 138.510 to 138.680 is available to persons convicted before May
26, 1959.
(6) In any
post-conviction proceeding pending in the courts of this state on May 26, 1959,
the person seeking relief in such proceedings shall be allowed to amend the
action and seek relief under ORS 138.510 to 138.680. If such person does not
choose to amend the action in this manner, the law existing prior to May 26,
1959, shall govern the case. [1959 c.636 §§1,16,17; 1989 c.1053 §18; 1993 c.517
§1; 1999 c.1055 §7; 2007 c.292 §1]
Note: Sections 1 and 2, chapter 368,
Oregon Laws 2023, provide:
Sec. 1. (1) Notwithstanding ORS 138.510
(3) and (4), at any time before December 30, 2024, a person may file a petition
for post-conviction relief under ORS 138.510 to 138.680 claiming, as grounds
for relief, that the person was convicted of a criminal offense as the result
of a nonunanimous jury verdict.
(2) ORS 138.550
does not apply to petitions for post-conviction relief described in this
section.
(3)(a)
Notwithstanding ORS 138.530, in a post-conviction relief proceeding claiming,
as grounds for relief, that the person was convicted of a criminal offense as
the result of a nonunanimous jury verdict, the petitioner has the burden of
proving, by a preponderance of the evidence, that the conviction resulted from
a nonunanimous jury verdict.
(b) Evidence that
a jury verdict was nonunanimous is limited to:
(A) A verdict
form;
(B) A written
jury poll;
(C) An audio or
video recording of the trial; or
(D) A transcript
of the trial.
(c) Notwithstanding
paragraph (b) of this subsection, if a recording or transcript of the trial
reflects that the jury was polled after issuing the verdict, but either does
not indicate or is ambiguous concerning whether the verdict was unanimous, the
court may order a review in camera of the file of the district attorney, the
defense attorney or the court, relating to the underlying conviction, and may
consider any evidence concerning the jury’s verdict within the file or files
that the court determines to be credible.
(d) This
subsection applies to petitions for post-conviction relief filed on or after
the effective date of this 2023 Act [July 18, 2023].
(4)
Notwithstanding ORS 138.520, if post-conviction relief is granted under this
section, the court shall vacate the judgment as to the specific conviction that
resulted from the nonunanimous jury verdict, or grant such other relief as
stipulated by the parties.
(5) A petitioner
with an appeal pending in an appellate court on the effective date of this 2023
Act, from a judgment on a petition under ORS 138.510 to 138.680, may by motion
seek leave of the appellate court to vacate the judgment and remand to the circuit
court so that the petitioner may file an amended petition indicating the
petitioner’s intent to proceed under the provisions of this section. Upon the
receipt of such a motion, the appellate court may vacate the judgment and
remand to the circuit court if:
(a) The petition
asserted as grounds for relief either that the petitioner was convicted of a
criminal offense as the result of a nonunanimous jury verdict, or that counsel
was ineffective for a reason related to the petitioner’s conviction resulting
from a nonunanimous jury verdict; and
(b) The motion
described in this subsection is filed within 90 days after the effective date
of this 2023 Act.
(6) If a judgment
of conviction is vacated on the grounds that the person was convicted of a
criminal offense as the result of a nonunanimous jury verdict, upon retrial, if
the trial court determines that evidence other than witness testimony that was
previously admitted during the trial that resulted in the nonunanimous guilty
verdict is unavailable because the evidence was lawfully destroyed or otherwise
rendered unavailable through no fault of the state or the defendant, or that
the evidence is unavailable despite reasonable efforts to preserve the
evidence:
(a) The state may
present in the state’s case in chief or rebuttal case, and the defendant may
present in the defendant’s case in chief, a transcript or portion thereof, a
recording of the prior proceeding or portion thereof, or any other previously
admitted exhibit, concerning the unavailable evidence from the previous trial.
(b) The court
shall instruct the jury:
(A) That the
evidence is unavailable;
(B) That the jury
may not attribute the unavailability to the state or the defendant, or fault
either party for failing to produce the unavailable evidence; and
(C) That the jury
may not speculate as to why the evidence is unavailable.
(c) The court may
not instruct the jury pursuant to ORS 10.095 (7) or (8) regarding the
transcripts, recordings of the prior proceeding or exhibits described in
paragraph (a) of this subsection.
(7) Except as
otherwise provided in this section, all provisions of ORS 138.510 to 138.680
apply to petitions for post-conviction relief described in this section.
(8) As used in
this section, “conviction” includes a finding of guilty except for insanity.
[2023 c.368 §1]
Sec. 2. (1) Section 1 of this 2023 Act is
repealed on January 2, 2026.
(2) The repeal of
section 1 of this 2023 Act does not affect:
(a) A petition or
amended petition for post-conviction relief described in section 1 of this 2023
Act filed within the time limitations described in section 1 of this 2023 Act.
(b) A retrial
resulting from the vacating of a conviction pursuant to section 1 of this 2023
Act. [2023 c.368 §2]
Notes of Decisions
Cited in
428
cases (
75 in the last 5 years), 1961–2026 · leading case:
Owens v. Maass, 918 P.2d 808 (Or. 1996).
Owens v. Maass, 918 P.2d 808 (Or. 1996).
· cites it 121× “At the time that petitioner's convictions became final on appeal, ORS 138.510 (1991) provided, in part: "(1) Except as otherwise provided in ORS 138.”
Bartz v. State of Oregon, 839 P.2d 217 (Or. 1992).
· cites it 49× “510(2), aprovision of the Post-Conviction Hearing Act (PCHA), ORS 138.510 to 138.680. As amended in 1989, ORS 138.”
Ingle v. Matteucci, 501 P.3d 23 (Or. Ct. App. 2021).
· cites it 69× “” 3 At the time Bartz was decided, the applicable escape clause was codified in subsection (2) of ORS 138.510. Although the escape clause was renumbered as subsection (3) pursuant to later amendments to ORS 138.”
Eklof v. Steward, 385 P.3d 1074 (Or. 2016).
· cites it 20× “510(3) provides: “A petition pursuant to ORS 138.510 to 138.680 must be filed within two years of the following, unless the court on hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the original or amended petition:…”
Ingle v. Matteucci, 537 P.3d 895 (Or. 2023).
· cites it 59× “3 Thus, as discussed above, the statute of limitations includes a two-year limitations period and an escape clause. The two-year limitations period begins to run on the date a person’s conviction becomes final, and that date depends 3 ORS 138.”
Teague v. Palmateer, 57 P.3d 176 (Or. Ct. App. 2002).
· cites it 36× “330(3), in turn, provides that a person who is eligible to obtain post-conviction relief pursuant to ORS 138.510 to 138.680 may not prosecute a writ of habeas corpus.”
Gutale v. State, 435 P.3d 728 (Or. 2019).
· cites it 29× “550(2) ("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 to 138.680 which was not…”
Watkins v. Ackley, 523 P.3d 86 (Or. 2022).
· cites it 12× “” Cite as 370 Or 604 (2022) 607 concerns the so-called “retroactivity”2 of the constitutional rule announced in Ramos in a post-conviction proceeding under ORS 138.510 to 138.680. The Court of Appeals certified the appeal to this court, as provided in ORS 19.”
Boone v. Wright, 822 P.2d 719 (Or. Ct. App. 1991).
· cites it 30× “Because the legislature neither expressed its intention that the new 120-day Statute of Limitations for post-conviction actions, ORS 138.510, be applicable to judgments on convictions entered before the effective date (August 5, 1989) nor provided a grace period within which…”
Boone v. Wright, 836 P.2d 727 (Or. 1992).
· cites it 15× “Before 1989, the Post-Conviction Hearing Act (PCHA), ORS 138.510 to 138.680, imposed no time limit for persons convicted of crimes to file petitions for post-conviction relief.”
Verduzco v. State of Oregon, 355 P.3d 902 (Or. 2015).
· cites it 13× “State of Oregon, 314 Or 353, 358 , 839 P2d 217 (1992), that “the exception in ORS 138.510 [(3)] does not require the filing of a timely ‘original or amended’ petition as a prerequisite to the filing of an untimely petition.”
Stevens v. Bispham, 851 P.2d 556 (Or. 1993).
· cites it 10× “Finally, with all other avenues of relief exhausted, the person is entitled to attack collaterally the conviction and sentence under Oregon's post-conviction relief law, ORS 138.510 et seq., on the ground, inter alia, that the person's counsel did not provide constitutionally…”
— Or. Rev. Stat. § 138.510(1) — 13 cases
Boone v. Wright, 822 P.2d 719 (Or. Ct. App. 1991).
“Because the legislature neither expressed its intention that the new 120-day Statute of Limitations for post-conviction actions, ORS 138.510, be applicable to judgments on convictions entered before the effective date (August 5, 1989) nor provided a grace period within which…”
— Or. Rev. Stat. § 138.510(2) — 62 cases
Owens v. Maass, 918 P.2d 808 (Or. 1996).
“At the time that petitioner's convictions became final on appeal, ORS 138.510 (1991) provided, in part: "(1) Except as otherwise provided in ORS 138.”
Bartz v. State of Oregon, 839 P.2d 217 (Or. 1992).
“510(2), aprovision of the Post-Conviction Hearing Act (PCHA), ORS 138.510 to 138.680. As amended in 1989, ORS 138.”
Boone v. Wright, 836 P.2d 727 (Or. 1992).
“Before 1989, the Post-Conviction Hearing Act (PCHA), ORS 138.510 to 138.680, imposed no time limit for persons convicted of crimes to file petitions for post-conviction relief.”
Boone v. Wright, 822 P.2d 719 (Or. Ct. App. 1991).
“Because the legislature neither expressed its intention that the new 120-day Statute of Limitations for post-conviction actions, ORS 138.510, be applicable to judgments on convictions entered before the effective date (August 5, 1989) nor provided a grace period within which…”
— Or. Rev. Stat. § 138.510(2)(a) — 6 cases
Stevens v. Bispham, 851 P.2d 556 (Or. 1993).
“Finally, with all other avenues of relief exhausted, the person is entitled to attack collaterally the conviction and sentence under Oregon's post-conviction relief law, ORS 138.510 et seq., on the ground, inter alia, that the person's counsel did not provide constitutionally…”
Boone v. Wright, 836 P.2d 727 (Or. 1992).
“Before 1989, the Post-Conviction Hearing Act (PCHA), ORS 138.510 to 138.680, imposed no time limit for persons convicted of crimes to file petitions for post-conviction relief.”
— Or. Rev. Stat. § 138.510(2)(b) — 7 cases
Stevens v. Bispham, 851 P.2d 556 (Or. 1993).
“Finally, with all other avenues of relief exhausted, the person is entitled to attack collaterally the conviction and sentence under Oregon's post-conviction relief law, ORS 138.510 et seq., on the ground, inter alia, that the person's counsel did not provide constitutionally…”
Owens v. Maass, 918 P.2d 808 (Or. 1996).
“At the time that petitioner's convictions became final on appeal, ORS 138.510 (1991) provided, in part: "(1) Except as otherwise provided in ORS 138.”
— Or. Rev. Stat. § 138.510(3) — 95 cases
Ingle v. Matteucci, 501 P.3d 23 (Or. Ct. App. 2021).
“” 3 At the time Bartz was decided, the applicable escape clause was codified in subsection (2) of ORS 138.510. Although the escape clause was renumbered as subsection (3) pursuant to later amendments to ORS 138.”
Ingle v. Matteucci, 537 P.3d 895 (Or. 2023).
“3 Thus, as discussed above, the statute of limitations includes a two-year limitations period and an escape clause. The two-year limitations period begins to run on the date a person’s conviction becomes final, and that date depends 3 ORS 138.”
Gutale v. State, 435 P.3d 728 (Or. 2019).
“550(2) ("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 to 138.680 which was not…”
Teague v. Palmateer, 57 P.3d 176 (Or. Ct. App. 2002).
“330(3), in turn, provides that a person who is eligible to obtain post-conviction relief pursuant to ORS 138.510 to 138.680 may not prosecute a writ of habeas corpus.”
Eklof v. Steward, 385 P.3d 1074 (Or. 2016).
“510(3) provides: “A petition pursuant to ORS 138.510 to 138.680 must be filed within two years of the following, unless the court on hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the original or amended petition:…”
— Or. Rev. Stat. § 138.510(3)(a) — 12 cases
Verduzco v. State of Oregon, 355 P.3d 902 (Or. 2015).
“State of Oregon, 314 Or 353, 358 , 839 P2d 217 (1992), that “the exception in ORS 138.510 [(3)] does not require the filing of a timely ‘original or amended’ petition as a prerequisite to the filing of an untimely petition.”
Ingle v. Matteucci, 537 P.3d 895 (Or. 2023).
“3 Thus, as discussed above, the statute of limitations includes a two-year limitations period and an escape clause. The two-year limitations period begins to run on the date a person’s conviction becomes final, and that date depends 3 ORS 138.”
Ingle v. Matteucci, 501 P.3d 23 (Or. Ct. App. 2021).
“” 3 At the time Bartz was decided, the applicable escape clause was codified in subsection (2) of ORS 138.510. Although the escape clause was renumbered as subsection (3) pursuant to later amendments to ORS 138.”
— Or. Rev. Stat. § 138.510(3)(b) — 15 cases
Eklof v. Steward, 385 P.3d 1074 (Or. 2016).
“510(3) provides: “A petition pursuant to ORS 138.510 to 138.680 must be filed within two years of the following, unless the court on hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the original or amended petition:…”
Teague v. Palmateer, 57 P.3d 176 (Or. Ct. App. 2002).
“330(3), in turn, provides that a person who is eligible to obtain post-conviction relief pursuant to ORS 138.510 to 138.680 may not prosecute a writ of habeas corpus.”
Ingle v. Matteucci, 501 P.3d 23 (Or. Ct. App. 2021).
“” 3 At the time Bartz was decided, the applicable escape clause was codified in subsection (2) of ORS 138.510. Although the escape clause was renumbered as subsection (3) pursuant to later amendments to ORS 138.”
— Or. Rev. Stat. § 138.510(4) — 8 cases
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