¶1concurring in part; dissenting in part.
¶2This case requires the court to determine the scope of the trial court’s statutory authority to dismiss sua sponte a petition for writ of habeas corpus. ORS 34.370 provides, in part:
“(6) The court may, on its own motion, enter a judgment denying a meritless petition brought under ORS 34.362.
“(7) As used in this section, ‘meritless petition’ means one which, when liberally construed, fails to state a claim upon which habeas corpus relief may be granted.”
¶3Under the statute, the court, on its own motion, may deny a meritless petition, not dismiss a meritless claim. If a petition states at least one valid claim for habeas corpus relief, it is not meritless and the court cannot deny it on its own motion. If the petition joins both valid and invalid claims for habeas corpus relief, the defendant may move, before the writ issues, to deny the petition for failure to state a claim for habeas corpus relief. ORS 34.680(1). Defendant may also move, after the writ issues, to dismiss the writ for failure to state a claim. However, the court has no authority to dismiss claims on its own motion.
¶4I concur with the majority that the court properly exercised its sua sponte authority to deny plaintiff’s first petition concerning mental health treatment. It is a “merit-less petition” -within the meaning of ORS 34.370(7).
¶5However, as the majority correctly observes, the second petition states adequate claims concerning denial of access to a fire escape and necessary medical care. Because the petition states at least one adequate claim, it is not a “merit-less petition” under ORS 34.370(7), even if it also alleges other legally insufficient claims. The court had no authority to deny the second petition on its own motion. The majority’s decision to remand only the claims regarding fire escape access and needed medical care is erroneous. Under ORS *31934.370(6), the court has no authority, on its own motion, to dismiss particular claims or allegations. As to the second petition, I would reverse and remand the dismissal order in its entirety.
¶6For these reasons, I dissent from the court’s disposition on the second petition.