Hayward v. Premo

Under ORS 138.525, dismissing a meritless petition is not appealable and an untimely petition must allege facts that, if supported by evidence, would establish that the grounds for relief could not reasonably have been raised timely.

Hayward appealed the post-conviction court’s judgment dismissing his latest petition for post-conviction relief on the ground that it was untimely and improperly successive, contrary to both ORS 138.510(3), which requires a post-conviction petition to be filed within two years of the completion of the direct appeal process, and ORS 138.550, which requires all grounds for relief to be asserted in a petitioner’s first post-conviction proceeding. Hayward agreed his petition was untimely and improperly successive, but he further argued that he alleged sufficient facts in the petition to entitle him to invoke the “escape clauses” pursuant to ORS 138.510(3) and ORS 138.550(3). Premo argued that the judgment dismissing the petition was not appealable. The Court held that a judgment dismissing a meritless petition is not appealable. ORS 138.525(3). A meritless petition is one that fails to state a claim upon which post-conviction relief may be granted. ORS 138.525(2). The Court also held that an untimely petition must allege facts that, if supported by evidence, would establish that the grounds for relief could not reasonably have been raised timely. Morrow v. Maass, 109 Or App 694, 695 (1991). In this case, the petition was not meritless, but Hayward did not allege facts that would establish that the grounds for relief could not reasonably have been raised timely. Affirmed.