Bartz v. State of Oregon
825 P.2d 657
Or. Ct. App.
1992
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*1 Argued July submitted January affirmed reconsideration denied February 19, (313 209) April for review allowed

RUSSELL BARTZ, B. Appellant, STATE OF OREGON, Respondent. CA A67398)

(90-CV-0091-TM; 825 P2d 657 *2 and filed the cause Bend, argued K. Chappell, Steven for appellant. brief Salem, General, Attorney Assistant Sylwester, A.

Timothy brief were him on the With cause for respondent. argued Linder, L. General, and Virginia Attorney Frohnmayer, Dave General, Salem. Solicitor and and Rossman Buttler, Judge, Presiding

Before Muniz, Judges. De MUNIZ,

DE J.

Buttler, J.,P. dissenting. MUNIZ,

DE J. petition Petitioner’s relief was ground dismissed on it was not filed. He appeals grounds. on two First, he contends that he was filing excused from his within the (PCHA). period Hearing in the Post-Conviction Act He also imposing period contends that a limitation denies him due process impermissibly suspends the writ of affirm. charged rape degree

Petitioner was with in the first rape degree. and two counts of in the 163.375; third plea negotiations, pled guilty 163.355. Pursuant to to one rape degree placed probation. count of in the third and was appeal. other two counts were dismissed. He did not Consequently, his conviction became final when it was register September entered in the 14, 1989. ORS 138.510(2)(a). twenty-five days One hundred and later, on February 6,1990, he filed a

alleging process that he was denied due and effective assis- counsel, tance of of a because his trial counsel did not inform him potential statutory defense under ORS 163.345 before he *3 pled guilty. petition, alleged:

In his “The grounds for relief set forth above not were reason- ably discovered by 25, 1990, Petitioner until January was more than days after the date judgment the ’’ conviction was in register. entered the (Emphasis supplied.) Although hearing the court conducted a on petitioner’s ground the merits of that the claims, it denied petition was barred the Statute of Limitations. provides: ORS 138.510

“(1) as otherwise in Except provided PCHA], any person convicted of a crime under the laws of may this state file a for petition pursuant [the act].

“(2) A petition pursuant to must [the PCHA] be filed within hearing unless the court on days following, subsequent grounds asserted which finds for relief could not reasonably have been raised in the or original amended petition: “(a) taken, judgment If appeal no is the date the or * * *” register. on the

order conviction was entered (Emphasis supplied.) ORS 138.510.1 Petitioner contends that in ORS exception 138.510(2) circumstances, his, such as where he encompasses “did could not have known of the not know reasonably ’’ facts or law rise to the giving right Defendant that failure to make responds petitioner’s effort to the lawfulness of his conviction within the question him period precludes invoking 138.510(2). in ORS testified that his trial counsel failed to him

advise of a defense available under possible 163.345.2 He discovered that when he potential defense con- sulted new about an attorney alleged probation violation. that, then, He contends until he “had no reason to question trial counsel’s advice or discover the defense that statutory Therefore, had been available to him.” he claims that “grounds for relief asserted petition] [in the could not rea- have been raised” in a sonably petition. disagree.

Petitioner did not from his of con appeal judgment The viction. PCHA was not intended to provide a second Delaney Gladden, 306, 232 Or appeal. 308, 374 P2d 746 (1962), cert Maass, den 372 US 945 McClure v. (1963); 110 119, 124, 821 P2d App Once convic petitioner’s final, tion became responsibility investigating the grounds for a collateral attack on his conviction rested solely Maass, with him. McClure v. supra, at 124. Petitioner has and no evidence was at alleged, presented hearing, the 120 after the days entry his conviction in the he was register, prevented or dissuaded 5,1989, August provided post-convic Until that a ‘ ’’ tion relief could be filed ‘without limit in time. new limitation became effective August §§ 1989. Or Laws ch 22. ORS 163.345 *4 any prosecution “In ORS ORS ORS 163.385 or under solely incapacity ORS 163.395 in which the lack of consent due to to victim’s was age, being specified reason of than a it is a defense that the actor

consent less years alleged was less than three older than the victim at the time of the offense.” express opinion petitioner’s no claim that this defense was on the merits of applicable in his criminal case. any way, examining from the issues that he wants to raise correctly that, now. law, trial court concluded as a matter of allege petitioner prove “grounds failed to * * * or that the reasonably relief could raised” asserted have been days entry judgment. the within after petitioner that, if Next, contends his case is not statutory exception, 120-day the the within limitation is process him unconstitutional, because it denies due and impermissibly suspends writ of Defendant 138.510(2) responds provides in that the ORS a safety reasonable valve for relief and that the 120-day permissible procedural is a limitation. limitation Oregon 23, Constitution not be privilege

“The writ of habeas shall rebellion, public suspended in case or invasion the unless safety require it.” correctly that the substance of habeas observes post-conviction process. through relief is available 138.530(2) provides:

ORS PCHA, petitions a for relief under person

“Whenever relief relief act] shall not be construed to where such PCHA], prior have [enactment would been to it nor shall be construed corpus, under writ of pardon or any powers clemency provided of executive affect 199, Or Cupp, law.” also Atkeson v. by the See P2d 722 138.530(2) impose legislative intent not to indicates ORS in procedural relief barriers substantive have been in would case which However, the amend- PCHA was enacted. available before 138.510(2) a limitation include ment of ORS legislative period, to divorce substance intent evinces 138.510(2) Ostensibly, procedure ORS PCHA. 138.510(2), procedural with its conflict. ORS ORS give specificprovision. We to the effect limitation, is the more 138.510(2), is the more recently provision. specific 174.020; enacted and more (1990); 794 P2d McDonnell, State

619 Heltzel, Comm., 23, 27, 251 Pub. 197 Or P2d Anderson v. Util. (1952). 482 (7th

In United 262 F2d 10 Cir Randolph, States v. 1958), (1959), a federal habeas corpus cert den 359 US because he had failed file a petitioner was denied relief therefore, post-conviction relief, and had not exhausted his state remedies. In that that holding default did not on his procedural impermissibly infringe right to federal habeas the court said: corpus, may

“The law is well settled that a attach state reason- able time rights.” limitations on the assertion of federal F2d at 12. reasonable time

Imposing limitations the assertion of federal does not violate the Due Process Clause of the rights Louisiana, Fourteenth Michel v. 350 US 91, 97, Amendment. 76 S L Ed Ct in the Constitution

Nothing Oregon prohibits legislature from reasonable time limitations placing of availability Gladden, post-conviction Delaney supra. imposes only conditions procedural on a claim for relief. It does not dilute the post-conviction PCHA, and, substance of the it not therefore, does imper- the writ missibly of habeas suspend corpus.

Affirmed.

BUTTLER, J., dissenting. P. I, Oregon Constitution1 in time of only allows writ of habeas suspension corpus Act, rebellion or invasion. After the Post-Conviction Relief (PCHA) in 1959, ORS 138.510 to ORS 138.680 was enacted act relief under that became means, judgment upon

“the exclusive after rendered con- crime, challenging such viction for the lawfulness of * * * judgment proceedings upon or the which it is based. corpus, post- With the of habeas all common law remedies, including the motion to correct conviction record, nobis, coram the motion for relief in the nature 1 Const, § Art of privilege suspended “The shall not be unless writ ” rebellion, public safety require (Emphasis original.)

case of or invasion the it. judgment, are to vacate nobis and the motion coram 138.540(1). in criminal cases.” abolished only remedies abol- law were all common Not relating was to habeas ished, but ORS any person entitled relief to amended post-conviction relief. Cupp, P2d 722 196, 199, 680 In Atkeson v. (1984), that we held rev den 297 Or 546 supersedes, corpus, suspend, the writ of habeas but does provides, was substance, relief that the same it because that we were not We said a writ of following procedures persuaded petitioner] [a corpus “deprives *6 than habeas relief rather advantage.” legal any significant practical that our We said 138.530(2), by supported view is under Post for relief person petitions a “Whenever to Act, not be construed Act] Relief shall Conviction to prior relief would have been relief where such * * *.” the writ of habeas under [the Act] commentary indicating legislative that that pointed to “to ensure was intended section thereby avoid App relief and habeas will be as broad as Cupp, supra, problems.” Atkeson v. constitutional at 199. decision law, at the time of our became When PCHA 1989, ch Or Laws until the enactment of in Atkeson and August §§ limitation was no time 5,1989, there 19 and post-conviction filing is also as of among corpus. is those for a writ of habeas true sought before the enact- relief could have who ment of PCHA. Because post- petition file his he failed to only timely, relief under denied relief he is conviction seeking a writ of PCHA, is also foreclosed but Billings P2d Maass, Or filing of a a on the reason, For that deprives petitioner of relief advantage” have practical would “significant that otherwise corpus; therefore, it him a -writof available to been similarly effectively suspends him and to others as to the writ 23. situated, in violation acceptance disagree majority’s I also with the 138.510(2) provides argument that ORS defendant’s timely petition. “safety petitioners who fail to file a valve” ‘ ’ maj ‘interpretation’ Presumably, ority believes that that edge deprivation of that subsection takes the off of the petitioner’s right However, lan- guage availability of the subsection extraor- makes dinary expressly contingent filing original on the anof majority petition. appears say that that subsec- petitioner tion would have been available to if he had not appeal plaintiffs However, failed to from his conviction. claim of ineffective assistance of trial counsel could not have litigated appeal, pled been on direct even if defendant had not guilty, which he did.

Accordingly, I dissent.