Ogle v. Nooth

424 P.3d 759, 292 Or. App. 387
Court of Appeals of Oregon·Decided June 13, 2018·No. A160243·Published·Cited by 3 cases

Opinion

DEHOOG, P.J.

*388Defendant (the superintendent) appeals a judgment granting post-conviction relief to petitioner,1 arguing that the post-conviction court erred in granting relief on a basis that petitioner did not allege in his amended petition for relief. We agree with the superintendent and reverse.

We begin by briefly reviewing the statutes governing post-conviction relief. To initiate post-conviction proceedings, a petitioner must file a petition for relief "set[ting] forth specifically the grounds upon which relief is claimed and *** stat[ing] clearly the relief desired." ORS 138.580. Upon receiving the defendant's response to the petition, the court must hold a hearing "on the issues raised." ORS 138.620(1). "If the petition states a ground for relief, the court shall decide the issues raised ***. The burden of proof of facts alleged in the petition shall be upon the petitioner to establish such facts by a preponderance of the evidence." ORS 138.620(2). If the petitioner satisfies that burden and thereby establishes one or more of the grounds for relief set forth in ORS 138.530(1), the post-conviction court must grant relief.

Collectively, those statutes limit post-conviction relief to "only *** claims that actually have been alleged in the petition or amended petition." Bowen v. Johnson , 166 Or. App. 89, 93, 999 P.2d 1159, rev. den. , 330 Or. 553, 10 P.3d 943 (2000). As a result, a post-conviction court errs if it grants relief on a basis that the petitioner did not allege in the operative petition. See, e.g. , Leyva-Grave-De-Peralta v. Blacketter , 232 Or. App. 441, 448, 223 P.3d 411 (2009), rev. den. , 348 Or. 114, 228 P.3d 1213 (2010).

Thus, this case turns on what it means, under our case law, for a claim "actually [to] have been alleged in the petition or amended petition." Bowen , 166 Or. App. at 93, 999 P.2d 1159. That is, we must determine whether, as petitioner maintains, the allegations in the petition here encompass the basis on which the post-conviction court granted relief, or *389rather, as the superintendent contends, the court impermissibly granted relief on a basis that the allegations did not encompass. In making that determination, we review the post-conviction court's grant of relief for legal error, Abbott v. Baldwin , 178 Or. App. 289, 291, 36 P.3d 516 (2001), rev. den. , 334 Or. 75, 45 P.3d 449, cert. den. , 537 U.S. 901, 123 S.Ct. 217, 154 L.Ed.2d 174 (2002), and accept the court's findings of historical fact if they are supported by evidence in the record, Green v. Franke , 357 Or. 301, 312, 350 P.3d 188 (2015).

In petitioner's underlying trial, a jury convicted him of assault in the second degree, ORS 163.175, among other offenses. In his amended petition for post-conviction relief, petitioner alleged that he had received inadequate and ineffective assistance of trial counsel under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. Specifically, petitioner alleged that his trial attorney performed deficiently in failing to "employ[ ] an *761investigator to investigate the charges against [petitioner] and call[ ] the relevant witnesses to testify on his behalf." Petitioner amplified that allegation as follows:

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Ogle v. Nooth, 424 P.3d 759, 292 Or. App. 387 (Or. Ct. App. 2018).

424 P.3d 759 (Ogle v. Nooth) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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