138.540
Petition for relief as exclusive remedy for challenging conviction; when
petition may not be filed; abolition or availability of other remedies. (1) Except as otherwise provided
in ORS 138.510 to 138.680, a petition pursuant to ORS 138.510 to 138.680 shall
be the exclusive means, after judgment rendered upon a conviction for a crime,
for challenging the lawfulness of such judgment or the proceedings upon which
it is based. The remedy created by ORS 138.510 to 138.680 does not replace or
supersede the motion for new trial, the motion in arrest of judgment or direct
appellate review of the sentence or conviction, and a petition for relief under
ORS 138.510 to 138.680 shall not be filed while such motions or appellate
review remain available. With the exception of habeas corpus, all common law
post-conviction remedies, including the motion to correct the record, coram
nobis, the motion for relief in the nature of coram nobis and the motion to
vacate the judgment, are abolished in criminal cases.
(2) When a person
restrained by virtue of a judgment upon a conviction of crime asserts the
illegality of the restraint upon grounds other than the unlawfulness of such
judgment or the proceedings upon which it is based or in the appellate review
thereof, relief shall not be available under ORS 138.510 to 138.680 but shall
be sought by habeas corpus or other remedies, if any, as otherwise provided by
law. As used in this subsection, such other grounds include but are not limited
to unlawful revocation of parole or conditional pardon or completed service of
the sentence imposed. [1959 c.636 §4]
Notes of Decisions
Cited in
70
cases (
17 in the last 5 years), 1961–2026 · leading case:
Boone v. Wright, 822 P.2d 719 (Or. Ct. App. 1991).
Boone v. Wright, 822 P.2d 719 (Or. Ct. App. 1991).
· cites it 8× “540(1) provides, in relevant part: "Except as otherwise provided in [the Act], a petition pursuant to [the Act] shall be the exclusive means, after judgment rendered upon a conviction for a crime, for challenging the lawfulness of such judgment or the proceedings upon which it…”
Penrod v. Cupp, 581 P.2d 934 (Or. 1978).
· cites it 4× “It is also consistent with the legislative assumption in enacting the Post-Conviction Hearing Act that habeas corpus was one remedy available to a convicted person who "asserts the illegality of his restraint upon grounds other than the unlawfulness” of the judgment of…”
State v. Jacob, 145 P.3d 212 (Or. Ct. App. 2006).
· cites it 10× “222 (relating to appellate review and correction of presentence investigation reports in criminal cases) control in this case. In particular, defendant argues that the 1983 gun minimum sentence does not count for purposes of his current sentencing because the conviction…”
Teague v. Palmateer, 57 P.3d 176 (Or. Ct. App. 2002).
· cites it 2× “See ORS 138.540(1). See generally Jack G. Collins and Carl R.”
State v. Jacob, 180 P.3d 6 (Or. 2008).
· cites it 5× “The court concluded that *185 that statutory context, specifically ORS 138.540(1), 6 demonstrated that the legislature did not intend to allow a defendant to collaterally attack an arguably constitutionally infirm judgment in a proceeding under ORS 161.”
Matter of Pers. Restraint of Runyan, 853 P.2d 424 (Wash. 2000).
· cites it 2× “Or. Rev. Stat. § 138.540 (1) (1991). The 120-day time limit only applies to petitions under the PCHA, while our own 1-year time limit applies to all postconviction collateral relief, including petitions for a writ of habeas corpus.”
Bartz v. State of Oregon, 839 P.2d 217 (Or. 1992).
· cites it 2× “ORS 138.540 (1); State v. Threet, 294 Or 1 , 6 n 3, 653 P2d 960 (1982).”
Owens v. Maass, 918 P.2d 808 (Or. 1996).
· cites it 2× “510 (1991) provided, in part: "(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.”
Mueller v. Benning, 841 P.2d 640 (Or. 1992).
· cites it 2× “330(3); ORS 138.540(1). ORS 34.330(3) provides: “The following persons shall not be allowed to prosecute the writ [of habeas corpus]: {* * * * * “(3) Except as provided in ORS 138.”
State v. Ramoz, 483 P.3d 615 (Or. 2021).
“See ORS 138.540(1) (providing that post-conviction relief does not “replace or supersede the motion for new trial * * * or direct appellate review”).”
Steltz v. Cain, 529 P.3d 284 (Or. Ct. App. 2023).
“The habeas court specifically found that the major- ity of the petition was “unintelligible,” the claims attacking prior criminal proceedings were barred by ORS 138.540, and that the claims for medical care did not allege what treatments were being denied or allege deliberate…”
Velasco v. State, 426 P.3d 114 (Or. Ct. App. 2018).
· cites it 2× “510(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.”
— Or. Rev. Stat. § 138.540(1) — 46 cases
Boone v. Wright, 822 P.2d 719 (Or. Ct. App. 1991).
“540(1) provides, in relevant part: "Except as otherwise provided in [the Act], a petition pursuant to [the Act] shall be the exclusive means, after judgment rendered upon a conviction for a crime, for challenging the lawfulness of such judgment or the proceedings upon which it…”
Teague v. Palmateer, 57 P.3d 176 (Or. Ct. App. 2002).
“See ORS 138.540(1). See generally Jack G. Collins and Carl R.”
State v. Jacob, 180 P.3d 6 (Or. 2008).
“The court concluded that *185 that statutory context, specifically ORS 138.540(1), 6 demonstrated that the legislature did not intend to allow a defendant to collaterally attack an arguably constitutionally infirm judgment in a proceeding under ORS 161.”
State v. Jacob, 145 P.3d 212 (Or. Ct. App. 2006).
“222 (relating to appellate review and correction of presentence investigation reports in criminal cases) control in this case. In particular, defendant argues that the 1983 gun minimum sentence does not count for purposes of his current sentencing because the conviction…”
Mueller v. Benning, 841 P.2d 640 (Or. 1992).
“330(3); ORS 138.540(1). ORS 34.330(3) provides: “The following persons shall not be allowed to prosecute the writ [of habeas corpus]: {* * * * * “(3) Except as provided in ORS 138.”
— Or. Rev. Stat. § 138.540(2) — 11 cases
Penrod v. Cupp, 581 P.2d 934 (Or. 1978).
“It is also consistent with the legislative assumption in enacting the Post-Conviction Hearing Act that habeas corpus was one remedy available to a convicted person who "asserts the illegality of his restraint upon grounds other than the unlawfulness” of the judgment of…”
Bartz v. State of Oregon, 839 P.2d 217 (Or. 1992).
“ORS 138.540 (1); State v. Threet, 294 Or 1 , 6 n 3, 653 P2d 960 (1982).”
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