Bartz v. State of Oregon ( 1992 )

BUTTLER, P. J.,

dissenting.

Article I, section 23, of the Oregon Constitution¹ allows suspension of the writ of habeas corpus only in time of rebellion or invasion. After the Post-Conviction Relief Act, ORS 138.510 to ORS 138.680 (PCHA) was enacted in 1959, relief under that act became

“the exclusive means, after judgment rendered upon a conviction for a crime, for challenging the lawfulness of such judgment or the proceedings upon which it is based. * * * With the exception of habeas corpus, all common law post-conviction remedies, including the motion to correct the record, coram nobis, the motion for relief in the nature of coram nobis and the motion to vacate the judgment, are abolished in criminal cases.” ORS 138.540(1).

Not only were all common law post-conviction remedies abolished, but ORS 34.330, relating to habeas corpus relief, was amended to deny habeas corpus relief to any person entitled to post-conviction relief.

In Atkeson v. Cupp, 68 Or App 196, 199, 680 P2d 722 rev den 297 Or 546 (1984), we held that post-conviction relief supersedes, but does not suspend, the writ of habeas corpus, because it provides, in substance, the same relief that was available by a writ of habeas corpus. We said that we were not persuaded that following the procedures for post-conviction relief rather than habeas corpus “deprives [a petitioner] of any significant practical or legal advantage.” We said that our view is supported by ORS 138.530(2), which provides:

“Whenever a person petitions for relief under [the Post Conviction Relief Act, the Act] shall not be construed to deny relief where such relief would have been available prior to [the Act] under the writ of habeas corpus * * *.”

We pointed to legislative commentary indicating that that section was intended “to ensure that post-conviction relief will be as broad as habeas corpus relief and thereby avoid constitutional problems.” Atkeson v. Cupp, supra, 68 Or App at 199.

When PCHA became law, at the time of our decision in Atkeson and until the enactment of Or Laws 1989, ch 1053, §§ 19 and 20, on August 5,1989, there was no time limitation on the filing of a petition for post-conviction relief, as is also true for a writ of habeas corpus. Petitioner is among those who could have sought habeas corpus relief before the enactment of PCHA. Because he failed to file his petition for post-conviction relief timely, he is not only denied relief under PCHA, but is also foreclosed from seeking a writ of habeas corpus. Billings v. Maass, 86 Or App 66, 738 P2d 222 (1987). For that reason, the 120-day limitation on the filing of a petition for post-conviction relief deprives petitioner of a “significant practical advantage” that otherwise would have been available to him by a -writ of habeas corpus; therefore, it effectively suspends the writ as to him and to others similarly situated, in violation of Article I, section 23.

I also disagree with the majority’s acceptance of defendant’s argument that ORS 138.510(2) provides a “safety valve” to petitioners who fail to file a timely petition. Presumably, the maj ority believes that that ‘ ‘interpretation’ ’ of that subsection takes the edge off of the deprivation of petitioner’s right to post-conviction relief. However, the language of the subsection makes the availability of any extraordinary relief expressly contingent on the filing of an original timely petition. The majority appears to say that that subsection would have been available to petitioner if he had not failed to appeal from his conviction. However, plaintiffs claim of ineffective assistance of trial counsel could not have been litigated on direct appeal, even if defendant had not pled guilty, which he did.

Accordingly, I dissent.

1 Or Const, Art I, § 23 provides:

“The privilege of the writ of habeas corpus shall not be suspended unless in case of rebellion, or invasion the public safety require it. ” (Emphasis in original.)