Bogle v. Nooth
Bogle v. Nooth
Opinion of the Court
Petitioner appeals from a judgment dismissing his petition for post-conviction relief. At the time that he filed the petition, petitioner already was litigating a post-conviction case involving the same underlying convictions. The post-conviction court dismissed the petition under ORCP 21 A(3) on the ground “that there is another action pending between the same parties for the same cause” and, alternatively, on the ground that ORS 138.550(3)
We affirm. Petitioner did not dispute the applicability of ORCP 21 A(3) below and, consequently, his unpre-served contention that the trial court erred by applying that provision in the context of a post-conviction proceeding does not provide grounds for reversal.
Affirmed.
ORS 138.550(3) provides:
“All grounds for relief claimed by petitioner in a petition pursuant to ORS 138.510 to 138.680 must be asserted in the original or amended petition, and any grounds not so asserted are deemed waived unless the court on hearing a subsequent petition finds grounds for relief asserted therein which could not reasonably have been raised in the original or amended petition. However, any prior petition or amended petition which was withdrawn prior to the entry of judgment by leave of the court, as provided in ORS 138.610, shall have no effect on petitioner’s right to bring a subsequent petition.”
Petitioner does not suggest that it was plain error for the post-conviction court to apply ORCP 21 A(3) in the context of a post-conviction proceeding, and it was not plain error. As petitioner acknowledges, the Oregon Rules of Civil Procedure apply to post-conviction proceedings unless the post-conviction statutes provide otherwise. Young v. Hill, 347 Or 165, 170-71, 218 P3d 125 (2009). We see no obvious indication in the post-conviction statutes that the legislature intended that the “another action pending” bar of ORCP 21 A(3) would not apply to post-conviction proceedings and, in particular, see no indication that the legislature intended to permit post-conviction petitioners to pursue multiple,
It is not clear if and how the prohibition on successive petitions in ORS 138.550(3) applies where, as here, a previously filed petition remains pending and has not been litigated to final judgment.
Reference
- Full Case Name
- TRACEY BOGLE v. Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant-Respondent
- Cited By
- 2 cases
- Status
- Published