Brown v. Miller

460                 November 27, 2024              No. 852

   This is a nonprecedential memorandum opinion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

              STEPHEN LEE BROWN,
                  Plaintiff-Appellant,
                            v.
                   Jamie MILLER,
                   Superintendent,
          Snake River Correctional Institution,
                Defendant-Respondent.
             Malheur County Circuit Court
                 24CV17383; A184547

  Erin K. Landis, Judge.
  Submitted October 11, 2024.
   Jedediah Peterson and Equal Justice Law, filed the brief
for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Denise G. Fjordbeck, Assistant
Attorney General, filed the brief for respondent.
  Before Lagesen, Chief Judge, and Egan, Judge.
  LAGESEN, C. J.
  Judgment dismissing writ of habeas corpus vacated and
remanded.
Nonprecedential Memo Op: 

 (2024)                           461

           LAGESEN, C. J.
         In this appeal from a judgment dismissing a pro se
petition for a writ of habeas corpus, 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. In response
to the court’s order to show cause why the writ should not
be allowed, defendant moved to deny the petition arguing
that plaintiff failed to allege that he was currently subject
to the conditions of which he complained, and that plaintiff
failed to allege the kind of injury required for habeas relief.
The habeas court granted the motion and entered a general
judgment of dismissal. 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.
       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.