Johnson v. Miller

329 Or. App. 226

Opinion

226 November 15, 2023 No. 606

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

IN THE COURT OF APPEALS OF THE STATE OF OREGON

RICHARD HENRY JOHNSON, JR., Plaintiff-Appellant, v. Jamie MILLER, Superintendent, Snake River Correctional Institution, Defendant-Respondent. Malheur County Circuit Court 23CV12171; A181287

Lung S. Hung, Judge. Submitted October 6, 2023. Richard Henry Johnson, Jr. filed the brief pro se. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Joanna Hershey, Assistant Attorney General filed the brief for respondent. Before Shorr, Presiding Judge, and Mooney, Judge, and Pagan, Judge. Affirmed. Nonprecedential Memo Op: 329 Or App 226 (2023) 227

Plaintiff appeals from a judgment dismissing his petition for a writ of habeas corpus. Plaintiff’s petition included six claims for relief, which alleged that his under- lying conviction and sentence were unlawful as a result of lack of subject matter jurisdiction, lack of personal jurisdic- tion, an invalid arrest warrant, prosecutorial misconduct (two claims), and a material variance between indictments. The court granted the superintendent’s motion to deny the petition, explaining that plaintiff’s claims “either challenge the lawfulness of the underlying judgment or the proceed- ings to which it was based. Such challenge is not appropri- ate for habeas corpus since timely alternate remedies exist, such as post-conviction relief and the appeals process.” On appeal, plaintiff advances arguments regarding the merits of his claims. The superintendent responds that the law is well settled that habeas is not a means of collat- erally attacking the underlying conviction in this circum- stance, and that the court did not err in dismissing the peti- tion. See ORS 138.540(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 ren- dered upon a conviction for a crime, for challenging the law- fulness of such judgment or the proceedings upon which it is based.”); Mora v. Maass, 120 Or App 173, 176, 851 P2d 1154 (1993), aff’d by an equally divided court, 319 Or 570, 877 P2d 641 (1994) (“[P]ost-conviction relief is the sole method for collaterally challenging the lawfulness of a criminal convic- tion and sentence.”). We agree with the superintendent and affirm the judgment of dismissal. Affirmed.