Johnson v. Miller

No. 37               January 8, 2025                  417

   This is a nonprecedential memorandum opinion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

             MARTIN ALLEN JOHNSON,
                  Plaintiff-Appellant,
                            v.
                   Jamie MILLER,
                   Superintendent,
          Snake River Correctional Institution,
                Defendant-Respondent.
             Malheur County Circuit Court
                 23CV27819; A182239

  Lung S. Hung, Judge.
  Submitted December 13, 2024.
   Jedediah Peterson and Equal Justice Law filed the brief
for appellant. Martin A. Johnson filed the supplemental
brief pro se.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Leigh A. Salmon, Assistant Attorney
General, filed the brief for respondent.
  Before Tookey, Presiding Judge, Kamins, Judge, and
Nakamoto, Senior Judge.
  KAMINS, J.
  Affirmed.
418                                         Johnson v. Miller

        KAMINS, J.
          In this appeal from a judgment dismissing a pro
se petition for a writ of habeas corpus, petitioner raises
one assignment of error through counsel and three pro se
assignments of error. Reviewing for abuse of discretion,
Steltz v. Cain, 

, 

 (2023),
we affirm.
         Petitioner’s first pro se assignment of error provides
no basis for reversal, because it does not assign error to a
trial court ruling. Likewise, his second pro se assignment of
error provides no basis for reversal, because it raises arguments regarding documents and material not contained
within this record. In his third pro se assignment of error,
petitioner challenges the trial court’s failure to rule on his
motion to reconsider. However, the trial court was divested
of jurisdiction to rule on that motion when petitioner filed
a notice of appeal several days after filing his motion to
reconsider.
         Lastly, through counsel, petitioner argues that the
“trial court erred in denying [his] motion for appointment
of counsel.” The trial court ruled on petitioner’s motion
to appoint counsel and provided a reason—the motion “is
denied because the petitioner has failed to state a claim.”
Petitioner argues that the trial court “abused its discretion
because the purported reason for denial [of the motion to
appoint counsel] is not consistent with the purpose of [ORS
34.355].” However, in such cases, ORS 34.355 provides courts
with discretionary and implicit authority to appoint counsel
for indigent petitioners. Steltz, 

. Petitioner
argues that the trial court’s decision to not appoint counsel,
on the basis that “the petitioner has failed to state a claim,”
was at odds with ORS 34.355, because, in petitioner’s view,
one purpose of the statute is to enable a petitioner to present their claim more effectively to the court. However, as
the state accurately points out, there is no state or federal
constitutional right to counsel in habeas cases, Steltz, 

, and petitioner’s interpretation of ORS 34.355
“would effectively create a right to counsel despite the legislature’s contrary decision” to make appointment of counsel
discretionary.
Nonprecedential Memo Op: 

 (2025)           419

        We affirm the trial court’s ruling, because the trial
court did not abuse its discretion and provided petitioner
with a sufficient explanation on the record.
        Affirmed.