Rule 24.010.Post-conviction Relief—case Initiation; Defendant’s Motion, Demurrer, or Answer

Counsel appointed for a petitioner has 120 days from the date of appointment to do one of three things: file an amended petition, file a notice that the petitioner will proceed on the original petition, or, if counsel cannot plead a viable claim for relief or proceed on the original petition, file an affidavit under ORS 138.590(5). More time takes a motion, and the court grants it only on demonstrated good cause. Whichever document counsel files, counsel must attach proof of mailing showing it went to the petitioner before or at the same time as it went to the court.

Choosing to stand on the original petition carries weight. Counsel's written notice that the case will proceed on the petition the petitioner filed while self-represented counts as counsel's ORCP 17 C certification of that petition. It is a decision to adopt the document, not a way of leaving it alone.

The defendant waits during that window. In a case with court-appointed counsel, the defendant does not file an answer, demurrer, or motion until the petitioner has filed the notice, the amended petition, or the affidavit, or until the time for filing has run out. From the entry of that filing in the court register, or from the expiration of the time for filing, the defendant has 30 days. One motion is carved out of the wait: a motion to dismiss as time-barred or successive may be filed any time after appointed counsel has appeared. When counsel filed the petition, or when a self-represented petitioner did not seek appointment of counsel, the defendant has 30 days from the date the petition is entered in the court register, with no waiting period in front of it.

From there the exchange runs on short clocks. The petitioner has 30 days to respond to a demurrer or motion against the pleadings, and the defendant has 20 days to reply. If the court grants the demurrer or motion and it appears the petitioner can cure the defect, the court gives the petitioner 30 days to amend, with more time available for good cause. If the court denies the motion, the defendant has 14 days to answer. Every motion to extend one of these deadlines must show in its caption how many extensions have been requested, counting the current one, and a motion filed by the petitioner's counsel must state that the petitioner was told about it.