75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 954
 
                         House Bill 2283
 
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
  Presession filed (at the request of Attorney General Hardy
  Myers for Department of Justice)
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
 
  Prevents post-conviction relief court from granting relief
based on new federal constitutional rule unless United States
Supreme Court holds rule must be applied retroactively. Imposes
time limit for asserting claims based on rule required to be
applied retroactively.
 
                        A BILL FOR AN ACT
Relating to retroactivity of new rules of federal law; creating
  new provisions; and amending ORS 138.510 and 138.530.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 138.530 is amended to read:
  138.530. (1) Post-conviction relief pursuant to ORS 138.510 to
138.680 shall be granted by the court when one or more of the
following grounds is established by the petitioner:
  (a) A substantial denial in the proceedings resulting in
petitioner's conviction, or in the appellate review thereof, of
petitioner's rights under the Constitution of the United States,
or under the Constitution of the State of Oregon, or both, and
which denial rendered the conviction void.
  (b) Lack of jurisdiction of the court to impose the judgment
rendered upon petitioner's conviction.
  (c) Sentence in excess of, or otherwise not in accordance with,
the sentence authorized by law for the crime of which petitioner
was convicted; or unconstitutionality of such sentence.
  (d) Unconstitutionality of the statute making criminal the acts
for which petitioner was convicted.
  (2) Whenever a person petitions for relief under ORS 138.510 to
138.680, ORS 138.510 to 138.680 shall not be construed to deny
relief where such relief would have been available prior to May
26, 1959, under the writ of habeas corpus, nor shall it be
construed to affect any powers of executive clemency or pardon
provided by law.
  (3) ORS 138.510 to 138.680 shall not be construed to limit the
original jurisdiction of the Supreme Court in habeas corpus as
provided in the Constitution of this state.
   { +  (4) Unless the United States Supreme Court issues a
decision holding that a new federal constitutional rule must be
applied retroactively by state courts, a court may not grant
 
relief under ORS 138.510 to 138.680 based on a new federal
constitutional rule that is announced after:
  (a) If no appeal is taken, the date the judgment of conviction
is entered in the register.
  (b) If an appeal is taken, the date the appeal is final in the
Oregon appellate courts.
  (c) If a petition for certiorari to the United States Supreme
Court is filed, the later of:
  (A) The date of denial of certiorari, if the petition is
denied; or
  (B) The date of entry of a final state court judgment following
remand from the United States Supreme Court. + }
  SECTION 2. ORS 138.510 is amended to read:
  138.510. (1) Except as otherwise provided in ORS 138.540, any
person convicted of a crime under the laws of this state may file
a petition for post-conviction relief pursuant to ORS 138.510 to
138.680.
  (2) A petition for post-conviction relief may be filed by one
person on behalf of another person who has been convicted of
aggravated murder and sentenced to death only if the person
filing the petition demonstrates by a preponderance of the
evidence that:
  (a) The person sentenced to death is unable to file a petition
on the person's own behalf due to mental incapacity or because of
a lack of access to the court; and
  (b) The person filing the petition has a significant
relationship with the person sentenced to death and will act in
the best interest of the person on whose behalf the petition is
being filed.
  (3) A petition pursuant to ORS 138.510 to 138.680 must be filed
within two years of the following, unless the court on hearing a
subsequent petition finds grounds for relief asserted which could
not reasonably have been raised in the original or amended
petition:
  (a) If no appeal is taken, the date the judgment   { - or order
on the - }  { +  of + } conviction   { - was - }  { +  is + }
entered in the register.
  (b) If an appeal is taken, the date the appeal is final in the
Oregon appellate courts.
  (c) If a petition for certiorari to the United States Supreme
Court is filed, the later of:
  (A) The date of denial of certiorari, if the petition is
denied; or
  (B) The date of entry of a final state court judgment following
remand from the United States Supreme Court.
  (4) A one-year filing period shall apply retroactively to
petitions filed by persons whose convictions and appeals became
final before August 5, 1989, and any such petitions must be filed
within one year after November 4, 1993. A person whose
post-conviction petition was dismissed prior to November 4, 1993,
cannot file another post-conviction petition involving the same
case.
  (5) The remedy created by ORS 138.510 to 138.680 is available
to persons convicted before May 26, 1959.
    { - (6) In any post-conviction proceeding pending in the
courts of this state on May 26, 1959, the person seeking relief
in such proceedings shall be allowed to amend the action and seek
relief under ORS 138.510 to 138.680. If such person does not
choose to amend the action in this manner, the law existing prior
to May 26, 1959, shall govern the case. - }
   { +  (6) If a petitioner seeks relief under ORS 138.510 to
138.680 based on a new federal constitutional rule that the
United States Supreme Court has held must be applied
retroactively by state courts, the petitioner must file a
petition or an amended petition that asserts a claim based on the
new rule within 180 days of the United States Supreme Court
decision or within the time allowed under subsection (3) of this
section, whichever is later. + }
  SECTION 3.  { + The amendments to ORS 138.510 and 138.530 by
sections 1 and 2 of this 2009 Act apply to petitions for
post-conviction relief filed on or after the effective date of
this 2009 Act. + }
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