Gordon v. Keeney

PER CURIAM

In this post-conviction case, petitioner asserts that his counsel at his criminal trial provided ineffective assistance. He admits that he could have raised that claim in a previous post-conviction case but alleges that he could not reasonably have raised it, because his counsel in the first post-conviction case also provided ineffective assistance. Petitioner is incorrect. Counsel’s alleged derelictions are not relevant to whether the claims could reasonably have been raised at the time of the first petition for post-conviction relief. See ORS 138.550(3).

On appeal, the state also takes the position that petitioner should be able to raise incompetency of previous post-conviction counsel if the failure to raise claims in the earlier case was the result of inadequate representation by the original post-conviction counsel. The state is also incorrect. Its argument is simply an attempt to give the trial court jurisdiction over claims of ineffective post-conviction representation. The trial court correctly dismissed the petition, because the legislature has not granted it that jurisdiction. ORS 138.530(1); Hetrick v. Keeney, 77 Or App 506, 713 P2d 688, rev den 300 Or 722 (1986).

Affirmed.