Ogle v. Nooth
254 Or. App. 665
| Or. Ct. App. | 2013Background
- Petitioner Duncan was convicted of second-degree assault constituting domestic violence, possession of methamphetamine, and two counts of endangering the welfare of a minor, with a 76-month sentence and 36 months’ post-prison supervision.
- Duncan filed an informal petition for post-conviction relief in 2010 and a formal petition in February 2011 claiming ineffective assistance of counsel in four respects.
- The petition attached the indictment, judgment, and trial transcripts; the state moved to dismiss for failure to state a claim and for failing to attach ORS 138.580 documentation.
- At a hearing, the state argued Duncan must attach supportive documents (e.g., affidavits from witnesses, hospital records) to establish a prima facie case for each claim.
- The post-conviction court granted the motion to dismiss, concluding that Duncan did not supply admissible documentary evidence to support the claims.
- Duncan timely appealed, contending that the attachments were sufficient to satisfy ORS 138.580 and that the court erred in dismissing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What does ORS 138.580 require as documentary evidence? | Duncan: attachments tend to support allegations, not require admissible evidence. | State: attachments must be admissible evidence proving prima facie claims for each issue. | Documentary evidence need only tend to verify allegations. |
| Must a petitioner attach evidence proving each element of a claim? | Duncan satisfied by affidavits showing corroboration of claims. | State requires prima facie evidence for each element, including witness, records, and cross-examination specifics. | No; attachments may corroborate assertions without proving all elements at once. |
| Is adherence to ORS 138.580 a dispositive gatekeeping step before discovery and full merits? | Attachments should permit development and discovery, not prematurely dismiss. | State contends rigid, prima facie attachment is necessary to proceed. | The attachment requirement is mandatory but not a rigid prima facie hurdle; allows development. |
| Is the petition subject to appeal when the post-conviction court dismisses for 138.580 noncompliance? | Dismissal can be appealed when not based on meritless grounds. | State argues no appeal if merits are not reached. | Disposition permitted; dismissal on 138.580 grounds is appealable where proper. |
Key Cases Cited
- State v. Gaines, 346 Or 160 (2009) (guides statutory interpretation and context in ORS 138.580)
- Young v. Hill, 347 Or 165 (2009) (post-conviction pleading requirements and appealability)
- Horn v. Hill, 180 Or App 139 (2002) (standard for reviewing post-conviction legal conclusions)
- Pedroso v. Nooth, 251 Or App 688 (2012) (appealability and petition dismissal context in ORS 138.525)
- Billings v. Gates, 323 Or 167 (1996) (pleading requirements and factual basis for relief)