Cavitt v. Coursey

Under ORS 138.580, "documentary evidence" is satisfied by an affidavit in support of a Petitioner's claim for post-conviction, and is enough evidence to support a claim for relief in Petitioner's claim for post-conviction relief.

Cavitt appealed the post-conviction court's ruling that dismissed his three claims for post-conviction relief. Specifically, for Cavitt's second claim, the post-conviction court found that he lacked sufficient evidence, as well as had a meritless claim under ORS 138.580. The State filed a motion to dismiss, claiming that Cavitt had not produced sufficient documentary evidence, specifically, he had not specified any prejudice from the trial counsel's failure to appeal. In response, Cavitt filed an affidavit stating that his trial counsel had told him that "he was making arguments to preserve issues for appeal," when in fact he had not. On appeal, Cavitt argued that the post-conviction court erred in dismissing his claim because his trial counsel had provided constitutionally inadequate service by failing to file an appeal as he had requested. The State conceded that Cavitt's claims for post-conviction relief and affidavit in support of his motion were adequate documentary evidence under ORS 138.580. Further, the State agreed that the lower court erred in dismissing Cavitt's second claim. Reversed and remanded on second claim; otherwise affirmed.