Bailey v. Nooth

Pursuant to ORS 138.590, a petitioner has a right to appointed counsel in post-conviction relief case. A trial court can deny a motion for substitution of counsel and order a petitioner to proceed pro se, only if necessary to achieve a fair, orderly, and efficient resolution of petitioner’s post-conviction case.

Bailey filed a petition for post-conviction relief and was appointed an attorney. Bailey then requested, and the attorney refused, to amend the petition to include additional claims. Bailey asked the court for substitute council or to order the attorney to amend the petition. The trial court gave Bailey the option of keeping his attorney, or appearing pro se. Bailey chose to amend his own petition and renewed his request for substitute counsel. The trial court gave Bailey the same options, and he agreed to appear pro se. The trial court granted his attorney’s motion to withdraw for good cause. Bailey continued to ask for a new attorney until he decided to appeal his conviction on the grounds the trial court did not properly provide substitute counsel. The Court of Appeals agreed with Bailey. The Court held that in post-conviction relief cases the only circumstances that warrant requiring a petitioner to proceed pro se are those necessary to achieve a fair, orderly, and efficient resolution of petitioner’s post-conviction case. In this case, the Court could not reasonably conclude that denying Bailey’s request for new counsel achieved a fair, orderly, and efficient resolution of Bailey’s post-conviction case. Reversed and remanded.