Greene v. Pedro

784                 October 30, 2024               No. 782

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

        SHANE VONDEL MICHAEL GREENE,
                  Plaintiff-Appellant,
                            v.
                    David PEDRO,
                   Superintendent,
        Eastern Oregon Correctional Institution,
                Defendant-Respondent.
            Umatilla County Circuit Court
                 23CV36724; A182914

  Eva J. Temple, Judge.
  Submitted September 13, 2024.
   Jedediah Peterson and Equal Justice Law filed the brief
for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Shannon T. Reel, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Chief Judge, and Egan, Judge.
  EGAN, J.
  Judgment dismissing writ of habeas corpus vacated and
remanded.
Nonprecedential Memo Op: 

 (2024)                             785

           EGAN, J.
         In this appeal from a judgment denying a pro se
petition for a writ of habeas corpus and dismissing the case,
plaintiff assigns error to the court’s failure to address his
motion for appointment of counsel. Defendant concedes the
error. We agree with and accept the concession. We vacate
the judgment and remand for the habeas court to rule on
the motion for appointment of counsel.1
         Under ORS 34.355, courts have discretionary and
implicit authority to appoint counsel for indigent petitioners
in habeas cases. Stelz v. Cain, 

, 

 (2023). Here, when plaintiff filed his habeas petition, he also filed a motion for appointment of counsel. The
court issued an order to show cause why the writ should not
be allowed, and it deferred ruling on the request for counsel until resolution of the order to show cause. Defendant
moved to deny the petition arguing that it failed to allege
facts that required immediate judicial scrutiny, and it failed
to allege a serious, immediate, and ongoing threat to plaintiff’s health or safety. The habeas court entered a general
judgment denying the petition as meritless and dismissed
the case. However, there is no indication that the court considered or ruled on the motion for appointment of counsel.
         As we explained in Stelz, 

, when
a plaintiff files a motion to appoint counsel in a habeas case,
the plaintiff is not entitled to have an attorney appointed,
but the plaintiff is entitled to “a ruling with sufficient explanation on the record in response to his motion to appoint
counsel.” That did not occur here. Therefore, like in Stelz, we
vacate the judgment of dismissal and remand for the habeas
court to rule on the motion for appointment of counsel and
make a record of its exercise of discretion.2
       Judgment dismissing writ of habeas corpus vacated
and remanded.

    1
      As authorized by ORS 2.570(2)(b), this matter is determined by a two-judge
panel.
    2
      Given our disposition on the first assignment of error, we decline to reach
the second assignment, in which plaintiff argues that the habeas court erred in
granting the motion to deny the petition.