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Requiring Oregon Prisoners to File Appeals Pro Se Abused Discretion

The Oregon Court of Appeals held that a lower court erred when it refused to appoint substitute counsel and required two prisoners to proceed pro se in state post-conviction relief (PCR) actions.

Under Oregon's Post-Conviction Hearings Act, ORS 138.510 to 138.680, prisoners may collaterally challenge their convictions and sentences. Indigent prisoners are eligible for appointed counsel under ORS 138.590.

The Oregon Supreme Court held in Church v. Gladden, 244 Or 308, 417 P2d 993 (1966), that a PCR petitioner who believes his counsel has "failed to follow any legitimate request" cannot “sit idly by and later complain,” but rather, "must inform the court at first opportunity of his attorney's failure and ask to have him replaced, or ask to have him instructed by the court to carry out petitioner's request."

The trial court appointed attorney Michael R. Mahony to represent James Knox in a PCR action. Mahony filed a formal petition but did not raise all the claims that Knox wanted raised.

Knox moved the court, pursuant to Church, requesting that "the court instruct Mahony to add those claims to the petition or to 'discharge' Mahony." During a hearing on the motion, Knox repeated his concerns and Mahony said he felt he needed to withdraw because he believed Knox was "just setting me up for bar complaints." The court did not take action on the Church motion and instructed Mahony to file a second amended petition. The judge then warned Knox "if you, through your actions, force Mr. Mahony to withdraw, then in all likelihood you will be on your own, you will not receive another attorney." Mahony then informed the court that he would be filing a motion to withdraw because Knox "is setting me up and…I have had it." The court said "okay" and lectured Knox again about engaging in actions that "make it impossible for your attorney to continue."

Mahony immediately moved to withdraw, arguing that there had "been an irreparable breakdown of the attorney/client relationship that cannot be repaired… it is clear to me (that petitioner) is setting me up for a bar complaint and/or lawsuit. Thus, it is impossible for me to be a zealous advocate for petitioner under these circumstances." Although the record does not indicate that Knox had done anything since the hearing to "make it impossible for [Mahony] to continue," the court granted Mahony's motion and required Knox to proceed pro se. The court denied Knox's motion for reconsideration and ultimately dismissed his PCR action.

Noting that it reviews decisions on motions to allow counsel to withdraw or to appoint substitute counsel for an abuse of discretion, the Oregon Court of Appeals first observed that "the circumstances in which a court may require a petitioner to proceed pro se after having been represented by appointed counsel have yet to be addressed in Oregon case law."

The court found that the Church hearing "colloquy between petitioner and the court suggest that the court has a general policy of ordering a petitioner to proceed pro se when the petitioner 'make[s] it impossible for [the original appointed] attorney to continue' without giving due consideration to facts presented in each case." The court concluded that this was an abuse of discretion, because "on this record, the court could not reasonably conclude that granting Mahony's motion to withdraw and ordering petitioner to proceed pro se, rather than substituting, another appointed counsel for Mahony, was necessary to achieve a fair, orderly, and efficient resolution of petitioner's post-conviction case." See: Knox v. Nooth, 244 Or App 57, 260 P.3d 562 (2011).

Robert Bailey was also appointed Mahony on a state PCR action and he also filed a Church motion "asking the trial court to replace Mahony or instruct Mahony to amend the petition." At a hearing, the court informed Bailey "that, if Mahony, did not represent him, petitioner's 'other option' was to represent himself." Bailey said "I don't want to go through this with somebody that I [have] to continually argue with over everything; over issues and exhibits that I might want to put in and other things like that."

The court told Bailey that it would allow Mahony to withdraw and he would then be pro se. In his motion to withdraw, Mahony claimed a "complete breakdown of the attorney/client relationship." The court granted his motion, finding that it was supported by good cause.

Bailey subsequently made several requests that the court appoint new counsel to represent him. The court denied his motions, stating that his two choices were to re-appoint Mahony or to proceed pro se. Bailey responded "I'll go by myself, I guess." At the PCR trial Bailey again requested appointment of substitute counsel and objected to being forced to proceed pro se. The court noted his objection for the record, refused to appoint substitute counsel and denied his PCR petition.

Applying Knox, the Court of Appeals concluded "that the trial court abused its discretion in denying petitioner's request for substitute counsel and requiring petitioner to proceed pro se." The court found that "indeed, it appears that, as in Knox, the trial court's decision was based on a general policy of requiring petitioners to proceed either with their first appointed counsel or pro se.

"The trial court's offer to reappoint Mahony was not an adequate response to petitioner's continuing requests for counsel." the court held. "Mahony had moved to withdraw… based on a 'complete breakdown in the attorney/client relationship…' Absent any evidence that the relationship had changed, the trial court erred by responding to petitioner's request for replacement counsel by offering to reappoint the same counsel. See: Bailey v. Nooth, 247 Or App 240, 269 P.3d 80 (2011).

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Related legal cases

Knox v. Nooth

Bailey v. Nooth