When Clients Want to File

Latest revision as of 14:44, March 28, 2015

If clients haven’t heard or read about post-conviction relief prior to serving a custody sentence, they quickly hear about it once they’re in custody. They often call trial counsel to ask about filing for PCR. Although post-conviction is a complicated and strange hybrid of civil and criminal law and trial and appellate practice, many clients will be eligible for PCR counsel and will not have to handle the entire case pro se. The goal is to advise clients about how to file a timely and proper petition so that a PCR attorney can be appointed. The PCR attorney will file an amended petition after reviewing the case.

Is the filing deadline one year or two?

Clients need to file their PCR petition as soon as possible within one year of the date their judgment of conviction was entered (if there has been an appeal, within one year of the date the appeal is final; if SCOTUS cert was sought, within one year of the denial). It is helpful to remind clients that their conviction occurs—usually—at sentencing, not at a later probation violation hearing when they get revoked (unless there is a claim against PV counsel).

Many clients hear that the statute of limitations for state PCR is two years, which is correct. However, the statute of limitations for a federal habeas corpus action (taken after state post-conviction is complete) is only one year, and this federal SOL tolls when state PCR is filed. So, if longer than one year has passed, the client can still file for state PCR but will almost certainly not be able to later obtain federal relief. Filing within one year helps protect their ability to later get federal review.

Where should clients file PCR petitions?

Clients in DOC custody must file their PCR case in the county where they are incarcerated. The rare client incarcerated out of state files in Marion County. If the client is already released on parole, their case is filed in the county where they were previously incarcerated. All other out-of-custody clients file in the county court where they were convicted and sentenced.

Clients in ICE custody, unlike DOC clients, file in the county where they were convicted and sentenced.

What is included and how does a client to file a petition?

The client must mail the original petition and all supporting documents, plus two copies, to the clerk of court in the county where they are filing. This has become more complicated due to mandatory e-filing in some counties, however, courts still appear to be accepting hard copies of pro se petitions. The client does not need to serve the defendant.

Who is the defendant?

In PCR, the client is the Plaintiff-Petitioner. Who the defendant is depends on the client’s custody status. For DOC-custody clients, the defendant is the superintendent of the prison where the client is incarcerated. The superintendent will be represented by the Oregon DOJ. For example, clients at SRCI would file a case against “Mark Nooth, Superintendent, Snake River Correctional Institution” and would file in Malheur County Circuit Court. For out-of-custody clients and clients in ICE custody, the State of Oregon is the defendant. The State is represented by the county DA’s office where the case is filed. Clients should not expect the defense to respond to their pro se petition if the court appoints PCR counsel. Defense counsel usually waits until PCR counsel is involved before filing a response to any pleadings.

What should the petition should say?

Unless a client can retain a PCR attorney, they will file their original petition pro se. For incarcerated clients, forms are available in the prison law library. Out-of-custody clients can find forms at the county courthouse in the civil department.

Most of these forms contain blanks to fill in procedural information about their underlying case (dates of conviction, charges, sentence, dates of appeal, etc.). The form will also have space for the client to explain their substantive claims. This petition does not need to include legal arguments or citations but should be specific about the issues it raises (attorney error, illegal sentence, constitutional violation, etc.). PCR counsel will file an amended petition after reviewing the case to add or modify issues.

The client must certify the petition before they file it, so they should make arrangements to sign it before a notary (available in prison libraries). The client needs to certify that the facts they have included that are within their personal knowledge are correct and that any documents they have attached are authentic.

How can clients obtain a PCR attorney?

Clients should include a specific request for counsel and an affidavit of indigence with their pro se petition. This request should include a request to waive the filing fee (currently $252). The affidavit should include a statement of their assets, debts, and income from the previous year and that they cannot afford to pay the expenses of a PCR case.

Once their petition is filed and indigence determined, the court will appoint PCR counsel, who will have an opportunity to file an amended petition after they review the case to include any issues the attorney finds, to federalize issues and to ensure that the necessary documents are attached.

OCDLA member Emily Elison practices law in Portland. She serves on the Web Governance Committee and is a member of the Oregon Post-Conviction Consortium. This article will also appear in the forthcoming April-May 2015 issue of The Oregon Defense Attorney.