138.590
Petitioner may proceed as a financially eligible person. (1) Any petitioner who is unable
to pay the expenses of a proceeding pursuant to ORS 138.510 to 138.680 or to
employ suitable counsel possessing skills and experience commensurate with the
nature of the conviction and complexity of the case for the proceeding may
proceed as a financially eligible person pursuant to this section upon order of
the circuit court in which the petition is filed.
(2) If the
petitioner wishes to proceed as a financially eligible person, the person shall
file with the petition an affidavit stating inability to pay the expenses of a
proceeding pursuant to ORS 138.510 to 138.680, including, but not limited to,
the filing fee required by ORS 138.560, or to employ suitable counsel for such
a proceeding. The affidavit shall contain a brief statement of the petitioner’s
assets and liabilities and income during the previous year. If the circuit
court is satisfied that the petitioner is unable to pay such expenses or to
employ suitable counsel, it shall order that the petitioner proceed as a
financially eligible person. If the court finds that a petitioner who has been
sentenced to death is not competent to decide whether to accept or reject the
appointment of counsel, the court shall appoint counsel to represent the
petitioner. However, when a circuit court orders petitioner’s case transferred
to another circuit court as provided in ORS 138.560 (4), the matter of
petitioner’s proceeding as a financially eligible person shall be determined by
the latter court.
(3) If a
petitioner who has been sentenced to death qualifies for the appointment of
counsel under this section but rejects the appointment, the court shall
determine, after a hearing if necessary, whether the petitioner rejected the
offer of counsel and made the decision with an understanding of its legal
consequences. The court shall make appropriate findings on the record.
(4) In the order
to proceed as a financially eligible person, the circuit court shall appoint
suitable counsel to represent petitioner. Counsel so appointed shall represent
petitioner throughout the proceedings in the circuit court. The court may not
substitute one appointed counsel for another except pursuant to the policies,
procedures, standards and guidelines of the Oregon Public Defense Commission.
(5) If counsel
appointed by the circuit court determines that the petition as filed by
petitioner is defective, either in form or in substance, or both, counsel may
move to amend the petition within 15 days following counsel’s appointment, or
within a further period as the court may allow. The amendment shall be
permitted as of right at any time during this period. If appointed counsel
believes that the original petition cannot be construed to state a ground for
relief under ORS 138.510 to 138.680, and cannot be amended to state a ground
for relief, counsel shall, in lieu of moving to amend the petition, inform the
petitioner and notify the circuit court of counsel’s belief by filing an
affidavit stating the belief and the reasons therefor with the clerk of the
circuit court. This affidavit does not constitute a ground for denying the
petition prior to a hearing upon its sufficiency, but the circuit court may
consider the affidavit in deciding upon the sufficiency of the petition at the
hearing.
(6) When a
petitioner has been ordered to proceed as a financially eligible person, the
expenses which are necessary for the proceedings upon the petition in the
circuit court and the compensation to appointed counsel for petitioner as
provided in this subsection shall be paid by the executive director of the
Oregon Public Defense Commission from funds available for the purpose. At the
conclusion of proceedings on a petition pursuant to ORS 138.510 to 138.680, the
executive director shall determine and pay, as provided by the policies,
procedures, standards and guidelines of the Oregon Public Defense Commission,
the amount of expenses of petitioner and compensation for the services of
appointed counsel in the proceedings in the circuit court.
(7) If the
executive director of the Oregon Public Defense Commission denies, in whole or
in part, expenses and compensation submitted for review and payment, the person
who submitted the payment request may appeal the decision to the presiding
judge of the circuit court. The presiding judge or the designee of the
presiding judge shall review the executive director’s decision for abuse of
discretion. The decision of the presiding judge or the designee of the
presiding judge is final.
(8)(a) When a
petitioner has been authorized to proceed as a financially eligible person, all
court fees in the circuit court, except for the filing fee required by ORS
138.560, are waived.
(b) When a
petitioner is allowed to file a petition without payment of the fee required by
ORS 138.560 due to inability to pay, the fee is not waived but may be drawn
from, or charged against, the petitioner’s trust account if the petitioner is
an adult in custody in a correctional facility.
(9)
Notwithstanding any other provision of this chapter, a court may not appoint as
counsel for a petitioner who has been sentenced to death a counsel who
previously represented the petitioner at trial or on automatic and direct
review in the case resulting in the death sentence unless the petitioner and
the counsel expressly request continued representation. [1959 c.636 §9; 1961
c.480 §3; 1963 c.600 §9; 1973 c.836 §279a; 1979 c.867 §4; 1981 s.s. c.3 §127;
1983 c.763 §17; 1987 c.320 §46; 1989 c.1053 §7; 1991 c.827 §2; 1995 c.657 §5;
1999 c.1055 §8; 2001 c.962 §30; 2003 c.261 §§5,6; 2003 c.449 §§8,45; 2019 c.213
§24; 2023 c.281 §31]
138.600 [1959 c.636 §10; repealed by 1997
c.872 §6]
Notes of Decisions
Cited in
52
cases (
10 in the last 5 years), 1969–2025 · leading case:
Miller v. Baldwin, 32 P.3d 234 (Or. Ct. App. 2001).
Miller v. Baldwin, 32 P.3d 234 (Or. Ct. App. 2001).
· cites it 24× “Petitioner has filed a motion for a delayed appeal from a judgment denying his petition for post-conviction relief.”
Bogle v. State, 423 P.3d 715 (Or. 2018).
· cites it 5× “" The res judicata provisions were among "the most important [provisions of] the act.”
Murray v. Giarratano, 492 U.S. 1 (1989).
· cites it 4× “1988); Ore. Rev. Stat. § 138.590(3) (1987). Under the Anti-Drug Abuse Act of 1988, attorneys will be appointed in federal habeas corpus actions involving a challenge to a death sentence.”
Knox v. Nooth, 260 P.3d 562 (Or. Ct. App. 2011).
· cites it 19× “After the criminal case had concluded, petitioner filed a pro se petition for post-conviction relief and an affidavit under ORS 138.590 seeking to proceed as an indigent person and asking the trial court to appoint counsel for him.”
Lopez v. Nooth, 403 P.3d 484 (Or. Ct. App. 2017).
· cites it 4× “This court need not delineate all the contours of what is “suitable” counsel for purposes of ORS 138.590. It is sufficient, for purposes of this case, to state that suitable counsel, at a minimum, is one who has not advocated against his client to the degree that occurred here,…”
Ware v. Hall, 154 P.3d 118 (Or. 2007).
· cites it 7× “ORS 138.590 authorizes indigent petitioners to file a request for appointed counsel simultaneously with the petition and authorizes trial courts to appoint counsel when appropriate; ORS 138.”
Kumar v. Schiedler, 876 P.2d 808 (Or. Ct. App. 1994).
· cites it 12× “[3] The relevant provisions are contained in ORS 138.590 and ORS 138.620. ORS 138.590 provides, in part: "(2) If the petitioner wishes to proceed as an indigent person, the person shall file with the petition an affidavit stating inability to pay the expenses of a proceeding…”
Ogle v. Nooth, 330 P.3d 572 (Or. 2014).
· cites it 3× “The court also noted that, under ORS 138.590, even an affidavit filed by a petitioner’s counsel, averring that a petition can be neither construed nor amended to state a claim for relief, is not a “ground for denying a petition prior to a hearing on its sufficiency.”
Baldeagle v. Lampert, 59 P.3d 545 (Or. Ct. App. 2002).
· cites it 6× “Except as otherwise provided in ORS 138.590, the petitioner shall pay a $25 filing fee at the time of filing a petition under this section.”
Johnson v. Avery, 393 U.S. 483 (1969).
· cites it 2× “L. Rev. 514 ; Uelmen, Post-Conviction Relief for Federal Prisoners Under 28 U.”
Elkins v. Thompson, 25 P.3d 376 (Or. Ct. App. 2001).
· cites it 4× “He contends that the standard for providing a hearing in criminal cases also should apply in post-conviction proceedings, because he has a statutory right to post-conviction counsel, ORS 138.590, inherent in which is the right to “suitable counsel.”
Davis v. Armenakis, 948 P.2d 327 (Or. Ct. App. 1997).
· cites it 4× “It also sanctioned petitioner’s counsel, pursuant to ORS 138.590(5), limiting her court-appointed compensation to fees attributable only to reviewing, rather than pursuing, petitioner’s shackling claim, which the court concluded was frivolous.”
— Or. Rev. Stat. § 138.590(1) — 6 cases
Miller v. Baldwin, 32 P.3d 234 (Or. Ct. App. 2001).
“Petitioner has filed a motion for a delayed appeal from a judgment denying his petition for post-conviction relief.”
Bogle v. State, 423 P.3d 715 (Or. 2018).
“" The res judicata provisions were among "the most important [provisions of] the act.”
— Or. Rev. Stat. § 138.590(2) — 5 cases
Bogle v. State, 423 P.3d 715 (Or. 2018).
“" The res judicata provisions were among "the most important [provisions of] the act.”
Kumar v. Schiedler, 876 P.2d 808 (Or. Ct. App. 1994).
“[3] The relevant provisions are contained in ORS 138.590 and ORS 138.620. ORS 138.590 provides, in part: "(2) If the petitioner wishes to proceed as an indigent person, the person shall file with the petition an affidavit stating inability to pay the expenses of a proceeding…”
— Or. Rev. Stat. § 138.590(3) — 3 cases
Murray v. Giarratano, 492 U.S. 1 (1989).
“1988); Ore. Rev. Stat. § 138.590(3) (1987). Under the Anti-Drug Abuse Act of 1988, attorneys will be appointed in federal habeas corpus actions involving a challenge to a death sentence.”
— Or. Rev. Stat. § 138.590(4) — 15 cases
Lopez v. Nooth, 403 P.3d 484 (Or. Ct. App. 2017).
“This court need not delineate all the contours of what is “suitable” counsel for purposes of ORS 138.590. It is sufficient, for purposes of this case, to state that suitable counsel, at a minimum, is one who has not advocated against his client to the degree that occurred here,…”
Knox v. Nooth, 260 P.3d 562 (Or. Ct. App. 2011).
“After the criminal case had concluded, petitioner filed a pro se petition for post-conviction relief and an affidavit under ORS 138.590 seeking to proceed as an indigent person and asking the trial court to appoint counsel for him.”
Bogle v. State, 423 P.3d 715 (Or. 2018).
“" The res judicata provisions were among "the most important [provisions of] the act.”
Miller v. Baldwin, 32 P.3d 234 (Or. Ct. App. 2001).
“Petitioner has filed a motion for a delayed appeal from a judgment denying his petition for post-conviction relief.”
— Or. Rev. Stat. § 138.590(5) — 9 cases
Davis v. Armenakis, 948 P.2d 327 (Or. Ct. App. 1997).
“It also sanctioned petitioner’s counsel, pursuant to ORS 138.590(5), limiting her court-appointed compensation to fees attributable only to reviewing, rather than pursuing, petitioner’s shackling claim, which the court concluded was frivolous.”
Ware v. Hall, 154 P.3d 118 (Or. 2007).
“ORS 138.590 authorizes indigent petitioners to file a request for appointed counsel simultaneously with the petition and authorizes trial courts to appoint counsel when appropriate; ORS 138.”
— Or. Rev. Stat. § 138.590(6) — 1 case
— Or. Rev. Stat. § 138.590(7) — 1 case
— Or. Rev. Stat. § 138.590(8) — 1 case
— Or. Rev. Stat. § 138.590(8)(b) — 1 case
— Or. Rev. Stat. § 138.590(a) — 1 case
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