Simmons v. Miller

329 Or. App. 195

• Court: Court of Appeals of Oregon
• Decided: November 15, 2023
• Docket: A181079
• Status: Unpublished

Opinion

No. 598 November 15, 2023 195

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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

LEVI DANE SIMMONS, Plaintiff-Appellant, v. Jamie MILLER, Superintendent, Snake River Correctional Institution, Defendant-Respondent. Malheur County Circuit Court 23CV08926; A181079

Lung S. Hung, Judge. Submitted October 6, 2023. Jason Weber and O’Connor Weber LLC filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Denise G. Fjordbeck, Assistant Attorney General, filed the brief for respondent. Before Ortega, Presiding Judge, and Powers, Judge, and Hellman, Judge. ORTEGA, P. J. Reversed and remanded. 196 Simmons v. Miller

ORTEGA, P. J. Plaintiff filed a petition for writ of habeas corpus along with an affidavit of indigence, a motion for appoint- ment of counsel, a motion for waiver of fees and costs, a memo in support of the petition, and eight exhibits. That same day, the court issued a limited judgment in the amount of $281 for the filing fee owed by plaintiff, and it later entered a judg- ment dismissing the petition on the ground that plaintiff’s challenge was not appropriate for habeas corpus because alternative remedies existed. The court did not enter any order or otherwise respond to plaintiff’s request for counsel. Defendant concedes that, in light of our subsequent deci- sion in Steltz v. Cain, 325 Or App 560, 529 P3d 284 (2023), the court erred in failing to make any record of its exercise of discretion not to appoint counsel, and that the judgment must be reversed and remanded. We agree, accept the con- cession of error, and reverse and remand. Reversed and remanded.