138.550
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 to 138.680. But no
proceeding under ORS 138.510 to 138.680 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 to 138.680 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 to 138.680 which was not specifically
decided by the appellate court may be asserted in the first petition for relief
under ORS 138.510 to 138.680, unless otherwise provided in this section.
(3) All grounds
for relief claimed by petitioner in a petition pursuant to ORS 138.510 to
138.680 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petition or amended petition which was withdrawn prior to the entry of judgment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, 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
to 138.680 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 to
138.680 which was not specifically decided in the prior proceedings may be
raised in the first petition for relief pursuant to ORS 138.510 to 138.680.
Petitioner’s assertion, in a post-conviction proceeding prior to May 26, 1959,
of a ground for relief under ORS 138.510 to 138.680, 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 to
138.680 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
Cited in
206
cases (
45 in the last 5 years), 1961–2026 · leading case:
Bogle v. State, 423 P.3d 715 (Or. 2018).
Bogle v. State, 423 P.3d 715 (Or. 2018).
· cites it 34× “2d 970 (1963), with respect to ORS 138.550(2), another res judicata provision of the PCHA, " '[t]he state is not obliged to provide a forum to hear and rehear cases that have already reached a lawful termination.”
Strasser v. State of Oregon, 489 P.3d 1025 (Or. 2021).
· cites it 44× “550(2), in the context of ORS 138.550 as a whole. Before we do so, we note that ORS 138.”
Eklof v. Steward, 385 P.3d 1074 (Or. 2016).
· cites it 17× “State of Oregon, 357 Or 553, 565 , 355 P3d 902 (2015) (ORS 138.550 “places the burden on the petitioner to show that an omitted ground for relief comes within the escape clause”).”
Teague v. Palmateer, 57 P.3d 176 (Or. Ct. App. 2002).
· cites it 30× “2d 1368 (1994) (construing ORS 138.550(1)); North v. Cupp, 254 Or. 451, 455-57 , 461 P.”
Verduzco v. State of Oregon, 355 P.3d 902 (Or. 2015).
· cites it 30× “If a petitioner has appealed from a judgment of conviction and if the petitioner could have raised a ground for relief on direct appeal, then the petitioner cannot raise that ground for relief in a post-conviction petition “unless such ground was not asserted and could not…”
Watkins v. Ackley, 523 P.3d 86 (Or. 2022).
· cites it 12× “Because the import of Ramos is undeniable and the state has not argued that some other bar to relief (such as the res judicata bars set out in ORS 138.550) applies,8 the issue before this court is a narrow one: Did the post- conviction court err in denying relief for that…”
Ogle v. Nooth, 453 P.3d 1274 (Or. 2019).
· cites it 25× “ORS 138.550 as a whole addresses the relationship between prior proceedings and later proceedings.”
Gutale v. State, 435 P.3d 728 (Or. 2019).
· cites it 20× “Linden's full statement concerning the escape clause language is as follows: "ORS 138.550, which is not amended by this bill, allows that PCR grounds for relief that were not raised in the original or amended petition 'are deemed waived unless the court on hearing a subsequent…”
Kinkel v. Persson, 367 P.3d 956 (Or. Ct. App. 2016).
· cites it 37× “550 because “petitioner has previously sought post-conviction relief, and the issue he now attempts to raise * * * could ‘reasonably have been raised’ in the previous post-conviction action; indeed, *** the very same issue was previously raised by petitioner on [direct] appeal.”
Ingle v. Matteucci, 537 P.3d 895 (Or. 2023).
· cites it 28× “510 for untimely petitions was imported from the escape clause in ORS 138.550 for successive petitions, (1) the former should be construed the same as the latter and (2) the latter does not allow for consideration of a petitioner’s mental condition.”
Eklof v. Persson, 508 P.3d 468 (Or. 2022).
· cites it 13× “The state objected, arguing that judicially noticeable facts demonstrated that petitioner could rea- sonably have brought her claims in her prior petition for post-conviction relief, so the claims violated ORS 138.550(3)’s bar on successive petitions.”
Kinkel v. Persson, 417 P.3d 401 (Or. 2018).
· cites it 11× “In this post-conviction proceeding, petitioner argues that, because he was a juvenile when he committed his crimes, the Eighth Amendment prohibits the imposition of an aggregate sentence that is the functional equivalent of a life sentence without the possibility of parole.”
— Or. Rev. Stat. § 138.550(1) — 33 cases
Strasser v. State of Oregon, 489 P.3d 1025 (Or. 2021).
“550(2), in the context of ORS 138.550 as a whole. Before we do so, we note that ORS 138.”
Teague v. Palmateer, 57 P.3d 176 (Or. Ct. App. 2002).
“2d 1368 (1994) (construing ORS 138.550(1)); North v. Cupp, 254 Or. 451, 455-57 , 461 P.”
— Or. Rev. Stat. § 138.550(2) — 59 cases
Strasser v. State of Oregon, 489 P.3d 1025 (Or. 2021).
“550(2), in the context of ORS 138.550 as a whole. Before we do so, we note that ORS 138.”
Kinkel v. Persson, 417 P.3d 401 (Or. 2018).
“In this post-conviction proceeding, petitioner argues that, because he was a juvenile when he committed his crimes, the Eighth Amendment prohibits the imposition of an aggregate sentence that is the functional equivalent of a life sentence without the possibility of parole.”
Kinkel v. Persson, 367 P.3d 956 (Or. Ct. App. 2016).
“550 because “petitioner has previously sought post-conviction relief, and the issue he now attempts to raise * * * could ‘reasonably have been raised’ in the previous post-conviction action; indeed, *** the very same issue was previously raised by petitioner on [direct] appeal.”
— Or. Rev. Stat. § 138.550(3) — 111 cases
Bogle v. State, 423 P.3d 715 (Or. 2018).
“2d 970 (1963), with respect to ORS 138.550(2), another res judicata provision of the PCHA, " '[t]he state is not obliged to provide a forum to hear and rehear cases that have already reached a lawful termination.”
Eklof v. Steward, 385 P.3d 1074 (Or. 2016).
“State of Oregon, 357 Or 553, 565 , 355 P3d 902 (2015) (ORS 138.550 “places the burden on the petitioner to show that an omitted ground for relief comes within the escape clause”).”
Teague v. Palmateer, 57 P.3d 176 (Or. Ct. App. 2002).
“2d 1368 (1994) (construing ORS 138.550(1)); North v. Cupp, 254 Or. 451, 455-57 , 461 P.”
Ogle v. Nooth, 453 P.3d 1274 (Or. 2019).
“ORS 138.550 as a whole addresses the relationship between prior proceedings and later proceedings.”
Verduzco v. State of Oregon, 355 P.3d 902 (Or. 2015).
“If a petitioner has appealed from a judgment of conviction and if the petitioner could have raised a ground for relief on direct appeal, then the petitioner cannot raise that ground for relief in a post-conviction petition “unless such ground was not asserted and could not…”
— Or. Rev. Stat. § 138.550(4) — 1 case
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