Simmons v. Miller ( 2023 )

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This is a nonprecedential memorandum opinion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.