Background - Petitioner was convicted (theft) on April 8, 2011; appellate counsel failed to file a timely notice of appeal. - Petitioner initiated post-conviction proceedings by affidavit of indigency on August 14, 2012; the court appointed counsel before any pro se petition was filed. - Appointed counsel represented he would file a petition by March 1, 2013, but did not; counsel ultimately filed a petition in May 2013 (more than two years after conviction). - State moved for summary judgment under ORS 138.510(3), arguing the petition was untimely because it was filed outside the two-year period. - Post-conviction court granted summary judgment for the state; petitioner appealed, arguing the statutory exception for claims that "could not reasonably have been raised in the original or amended petition" applies because counsel’s appointment precluded a timely pro se filing. ### Issues | Issue | Plaintiff's Argument | Defendant's Argument | Held | |---|---|---|---| | Whether petition untimely under ORS 138.510(3) | Petitioner: appointment of counsel before any pro se petition was filed made it unreasonable to have raised claims earlier; counsel’s failure to file is not attributable to petitioner | State: petition was filed after two-year statutory deadline and thus barred | Court: Reversed — exception applies because petitioner reasonably could not have raised claims earlier where counsel was appointed and failed to file timely petition | ### Key Cases Cited Verduzco v. State of Oregon, 357 Or 553 (2015) (timeliness exception turns on whether petitioner reasonably could have raised claims earlier) Church v. Gladden, 244 Or 308 (1966) (counsel’s failure to pursue claims does not automatically excuse timeliness unless petitioner lacked opportunity to alert court) Johnson v. Premo, 355 Or 866 (2014) (clarifies Church: petitioner must bring counsel’s omission to court at first opportunity to avoid waiver) Evitts v. Lucey, 469 U.S. 387 (1985) (due process requires effective assistance on first appeal as of right) * Shipman v. Gladden, 253 Or 192 (1969) (failure of counsel to timely file requested appeal is incompetence and denial of due process)