Oregon Prisoners Must Attach Evidence to Petitions for Post-Conviction Release

On June 12, 2014, the En Banc Oregon Supreme Court held that a post-conviction relief (PCR) petitioner must attach an affidavit or other evidence, supporting every element of every claim asserted in the petition.

Oregon first enacted its Post-Conviction Hearing Act (PCHA) in 1959. Those procedures remain substantially the same today.

ORS 138.580(1959) required that “affidavits, records or other documentary evidence supporting the allegations of the (PCR) petition shall be attached to the petition,” or the petitioner was required to explain why they were unable to attach those documents. This was not “a vehicle for weeding out purportedly unfounded petitions,” the Court found. “Instead, its purpose, perhaps, was to provide a bit of clarity to the ‘often illiterate and unintelligible’ pleadings filed by post-conviction petitioners.”

In 1993, Oregon lawmakers eliminated the attachment requirement exception. The amendment was to ensure that prisoners “would not have the out that they currently have that they could just explain why they didn’t do it,” testified Assistant Attorney General Brenda Peterson.

The “attachment requirement of ORS 138.580 is mandatory.” Yet, “the PCHA does not expressly provide for any particular sanction or remedy for failure to” satisfy the requirement.

On October 18, 2010, Keith Ogle, Sr., filed a pro se per petition and attached the indictment, judgment and criminal trial transcripts to the petition. Court-appointed PCR counsel later filed an amended petition, alleging that Ogle was denied effective assistance of trial counsel in four ways. He criticized counsel’s questioning of a key witness and investigation and cross- examination related to the severity of the victim’s injuries. Counsel again attached the indictment, judgment and trial transcript to the amended petition.

The state moved to dismiss for failure to comply with the attachment requirement of ORS 138.580. The State argued that Ogle was required to attach to his petition: (1) an affidavit from the witness, averring to how she would have testified differently; (2) the victim’s medical records; and (3) “a document setting out the victim’s treatment provider’s answers to the questions that” Ogle believed counsel should have asked.

Ogle responded to the State’s motion by submitting two affidavits of his own. The State asserted, however, that it was “insufficient for a petitioner to attach merely his or her own affidavit including ‘speculative’ averments.”

The PCR court granted the State’s motion to dismiss, concluding that Ogle “failed to comply with the attachment requirement of ORS 138.580.” The Court of Appeals reversed. See: Ogle v. Nooth, 254 Or App 665,298 P.3d 32 (2013).

The Oregon Supreme Court ultimately held that ORS 138.580 requires a petitioner to “attach some evidence supporting each element of each asserted claim for relief.” However, that statute “does not require a post-conviction petitioner to attach evidence that meets some particular standard of reliability.” Nor does it “require that such attachments prove the truth of the petitioner’s allegations. Rather, ORS 138.580 requires a petitioner to attach materials, including the petitioner’s own averments of fact, that address each element of each asserted ground for relief and that, considered together, and if substantiated at the post-conviction hearing, would permit the post-conviction court to determine that the petitioner was entitled to post-conviction relief on that ground.”

Dismissal will not always “be the appropriate remedy when attachments are insufficient under ORS 138.580,” the Court suggested. “When the state challenges the sufficiency of attachments under ORS 138.580, the trial court, in its discretion, may respond by allowing or ordering the petitioner to provide further materials before deciding whether to dismiss those claims.”

See: Ogle v. Nooth, 355 Or 570, (2014)(En Banc).

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