Middleton v. Premo

Under ORS 138.550(2), “post-conviction relief is available only if the ground for relief ‘was not asserted and could not reasonably have been asserted in the direct appellate review proceeding.’”

Petitioner appealed the post-conviction court's finding that “petitioner’s Church claims related to DNA evidence were not cognizable.” Petitioner asserted that the post-conviction court erred when it found that the claims could be raised on direct appeal and that his counsel ineffectively assisted him. On appeal, Petitioner argued that the court mistakenly believed that Petitioner did not understand the process and that his claim was one of insufficient evidence. In response, Defendant argued that the post-conviction court “reasonably construed” the DNA argument and that, even if the DNA argument was misconstrued, the error was harmless. Under ORS 138.550(2), “post-conviction relief is available only if the ground for relief ‘was not asserted and could not reasonably have been asserted in the direct appellate review proceeding.’” The Court held that post-conviction relief is available because the post-conviction court used its discretion based on a misunderstanding of Petitioner’s notice. Vacated and remanded.