ERNEST HAROLD BAKER III v. PEDRO (2026)

This is a post-conviction case in which appointed counsel filed a declaration under ORS 138.590(5) stating that counsel did “not believe the original petition can be construed to state a ground for relief under ORS 138.510 to 138.680, or that it can be amended to state a ground for relief.” The post-conviction court held a hearing on the declaration after directing petitioner to show cause why the petition “should not be denied as meritless under ORS 138.525 for failing to state a claim on which post-conviction relief may be granted.” Following the hearing, the court dismissed the petition.

Petitioner appealed. On appeal, counsel for petitioner submitted a brief pursuant to ORAP 5.90 and State v. Balfour, 311 Or 434, 814 P2d 1069 (1991); the brief includes a Section B brief from petitioner. We then directed the parties show cause why the appeal should not be dismissed for lack of jurisdiction on the ground that, under the circumstances, the post-conviction court's dismissal of the petition qualified as a dismissal of the petition as “meritless” within the meaning of ORS 138.525(3), making the judgment unappealable under that statute. In response, the state argues that we should treat the judgment as one dismissing the petition as meritless and dismiss the appeal for lack of jurisdiction. Petitioner, responding through counsel, argues that the judgment should not be treated as one dismissing the petition as meritless and, accordingly, that ORS 138.525(3) does not bar this appeal.

We conclude that the judgment is not appealable under ORS 138.525(3). Although neither party points to it, in Gilderson v. Taylor, 289 Or App 496, 410 P3d 1112 (2017), rev den, 362 Or 794 (2018), we addressed a case in an identical procedural posture. The petitioner's counsel had filed an affidavit under ORS 138.590(5) akin to the one filed by petitioner's counsel here, and the post-conviction court held a hearing on it. We explained that the “purpose of the hearing triggered by the affidavit was for the court to evaluate whether the petition stated grounds for post-conviction relief (or could be amended to do so) after hearing from counsel and petitioner on that point.” Id. at 498-99. We further explained that “[u]nder those circumstances, the court's dismissal of the petition necessarily was for failure to state a claim upon which relief may be granted because that was the only question before the court.” Id. at 499. Finally, we explained that “a dismissal of a post-conviction petition for failure to state a claim is, as a matter of law, a dismissal of the petition as meritless.” Id.; see Perkins v. Fhuere, 374 Or 575, 582, 581 P3d 961 (2025) (explaining that a judgment dismissing a post-conviction petition for failure to state a claim is a judgment dismissing the petition as meritless, which means that such a judgment is not appealable under ORS 138.525(3)).

Although neither party pointed to Gilderson, petitioner nonetheless argues that we should reach a different result than we reached there, both out of concerns of fairness to the petitioner and out of concerns for potential ethical conundrums for post-conviction counsel. While those concerns are understandable, some do not appear likely to be realized and, regardless, we are not in a position to rewrite the statutory scheme to address them.

For example, petitioner argues that it would be improper to treat a judgment as dismissing a petition as meritless when that judgment follows from the filing of an ORS 138.590(5) affidavit, as distinct from when the judgment follows from the filing of a motion to dismiss by the state. Apart from lacking a textual anchor in the relevant statutes, that argument overlooks the facts that (1) ORS 138.590(5) precludes dismissal based on the declaration alone but provides instead that the court may consider the declaration at a hearing; and (2) ORS 138.525(1) explicitly empowers a post-conviction court to dismiss a petition as meritless on its own motion. The process contemplated by those provisions is the process followed by the post-conviction court here. After receiving the ORS 138.590(5) declaration, the court scheduled a hearing directing petitioner to show cause why the petition should not be dismissed as meritless. Following that hearing, the court, acting on its own accord, dismissed the petition. That the state itself did not file a motion does not alter the fact that the petition was dismissed as meritless under the provisions of ORS 138.525.

Petitioner additionally argues that, where post-conviction counsel has filed a declaration under ORS 138.590(5), treating a judgment of dismissal as an unappealable dismissal of a meritless petition would make it unethical for counsel to employ the ORS 138.590(5) process. Petitioner suggests that employing the process would require a post-conviction lawyer to impermissibly argue against the interests of the client. In addition, petitioner reasons, it would mean that the use of the process would cut off a petitioner's appeal rights, thereby depriving the petitioner of the opportunity to exhaust state court remedies in advance of seeking federal habeas relief.

We are not persuaded that the filing of the affidavit contemplated by ORS 138.590(5) puts a lawyer impermissibly at odds with a client. In that regard, the ORS 138.590(5) process is very similar to the ORAP 5.90/Balfour process in this court. Although the process no doubt puts counsel in the position of carefully walking a tightrope, we are not persuaded that it crosses the line as a matter of course into advocacy against a client simply because it may lead to a post-conviction court's own-motion dismissal of a post-conviction petition.

As to the potential consequences for federal habeas review, that argument falters because a petitioner whose petition is dismissed as meritless has exhausted state court remedies. In fact, the United States District Court for the District of Oregon has dismissed federal habeas petitions as untimely where the petitioner pursued an appeal of a post-conviction petition that was dismissed as meritless and, as a result of the appeal, failed to file a habeas petition within the applicable limitations period. See, e.g., Codon v. Cain, 2023 WL 2676834, *1 (D Or March 29, 2023) (holding that, because a judgment dismissing a post-conviction petition as meritless is not appealable, the time for seeking federal habeas relief runs from the date the judgment is entered and is not tolled during the pendency of an appeal; collecting similar cases); see also Ramirez v. Yates, 571 F3d 993, 999 (9th Cir 2009) (holding that a state prisoner's appeal of a non-appealable judgment or order does not toll the time for filing a petition for federal habeas relief). In view of those decisions, petitioner's argument that the lack of an appeal will effectively bar the petitioner from seeking federal habeas relief is not convincing. Rather, those decisions indicate that a petitioner whose petition is dismissed as meritless may seek federal habeas relief, provided the petition is timely filed.

In sum, for the foregoing reasons, the judgment before us is a judgment dismissing the post-conviction petition as meritless for purposes of ORS 138.525. For that reason, it is not appealable and this appeal must be dismissed.

Appeal dismissed.

LAGESEN, C. J.