Barbera v. State of Oregon

Misrepresentation by an attorney regarding post-conviction time-lines does not allow for an excuse in timely filing of petitions for post-conviction relief. Moreover, petitions for post-conviction relief do not require a notary signature.

Defendant appealed a judgment dismissing his petition for post-conviction relief because the two-year time limit expired before the petition was filed. Defendant contends that the post-conviction court erred in not allowing him to use the “escape clause” located in ORS 138.510(3) wherein Defendant would have grounds to file the petition after the two year limit if those “'grounds for relief asserted could not reasonably have been raised' in a timely-filed petition.” Defendant claims that his trial lawyer had misinformed him regarding his availability for post-conviction relief and that because he did not have access to a notary while incarcerated in Pennsylvania, he was “physically prevented” from filing the petition in a timely manner. This Court had previously decided that a lawyer's misrepresentation regarding time-lines of post-conviction relief does not excuse the Defendant from filing within the two-year time period. Moreover, this Court pointed out that a petition for post-conviction relief is not statutorily required to have a notary, undermining the defendant's claim of being “physically prevented” in filing his petition. AFFIRMED.