560 April 26, 2023 No. 218

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

ADAM STELTZ,

Plaintiff-Appellant,

v.

Brad CAIN, 

Superintendent, 

Snake River Correctional Institution,

Defendant-Respondent.

Malheur County Circuit Court

20CV30653; A175037

Erin K. Landis, Judge.

Argued and submitted September 21, 2022.

Harrison Latto argued the cause and filed the briefs for 

appellant.

Joanna L. Jenkins, Assistant Attorney General, argued 

the cause for respondent. Also on the brief were Ellen F. 

Rosenblum, Attorney General, and Benjamin Gutman, 

Solicitor General.

Before Shorr, Presiding Judge, and Mooney, Judge, and 

Pagán, Judge.

PAGÁN, J.

Judgment dismissing writ of habeas corpus vacated and 

remanded.
Cite as 325 Or App 560 (2023) 561

PAGÁN, J.

In this appeal from a judgment dismissing a petition for writ of habeas corpus, plaintiff assigns error to the 

habeas court’s denial of his motion to appoint counsel to 

assist his petition. Although we agree with defendant that, 

in general, a person seeking habeas corpus is not guaranteed assistance of counsel by statute or constitution, because 

the record in this case does not demonstrate that the habeas 

court exercised its discretion with respect to the motion to 

appoint counsel, we vacate the judgment and remand for 

further proceedings.

To begin, we are not addressing the merits of plaintiff’s various claims for habeas relief. Although we briefly 

describe those claims here, we do so only for context. The 

relevant facts of this case are procedural.

In August 2020, plaintiff sought habeas relief, 

alleging what we understand to be defects in several criminal cases underlying his current imprisonment, as well 

as denial of medical treatment for kidney pain, bone pain, 

and abnormal back conditions. Along with the petition for 

habeas corpus, plaintiff also filed a “Motion for Appointment 

of Counsel” pursuant to ORS 34.355 and ORS 34.365, supported by plaintiff’s trust account statement.

The court ordered defendant to show cause why 

the writ of habeas corpus should not issue. Defendant later 

requested an extension to reply due to “attorney error.” The 

extension was granted. In its response, defendant argued 

that post-conviction relief, not habeas corpus, was the 

exclusive remedy for addressing the alleged defects in the 

underlying criminal cases. Moreover, defendant argued that 

plaintiff’s claims for medical care “fail to state a claim for 

relief,” because they did not allege that defendant was failing to treat serious medical needs.

The habeas court specifically found that the majority of the petition was “unintelligible,” the claims attacking 

prior criminal proceedings were barred by ORS 138.540, 

and that the claims for medical care did not allege what 

treatments were being denied or allege deliberate indifference to serious medical needs. Neither the order nor the 
562 Steltz v. Cain

general judgment dismissing the petition for habeas relief 

addressed plaintiff’s motion for appointment of counsel.

About two weeks later, plaintiff again filed a motion 

for counsel “for help of fileing [sic] an amended complaint for 

habeas. I asked for this at the time of fileing,” and included 

a declaration in support, referencing a previous habeas 

action. The habeas court did not address the second motion 

for appointment of counsel.

At issue in this appeal is the habeas court’s discretion under statute to appoint an attorney. In relevant part, 

ORS 34.355 provides:

“If counsel is appointed by a court to represent, in an 

initial proceeding by habeas corpus or on appeal as provided in ORS 34.710, a person who is imprisoned or otherwise restrained of liberty by virtue of a charge or conviction 

of crime and who is determined to be financially eligible 

for appointed counsel at state expense, the public defense 

services executive director shall determine compensation 

for counsel and costs and expenses of the person in the proceeding or on appeal.”

We have interpreted ORS 34.355 as providing “discretionary and implicit authority” for the court to appoint 

counsel for indigent petitioners in habeas cases. Combs v. 

Baldwin, 161 Or App 270, 276, 984 P2d 366 (1999). We recognized that authority as discretionary because neither the 

Oregon Constitution nor the United States Constitution 

guarantees counsel in habeas cases, which are at their core, 

civil proceedings. Id. at 275.

The consequence of the discretionary authority 

provided to the habeas court is that we, as an appellate 

court, will not disturb the lower court’s ruling on a motion 

to appoint counsel if that decision is within the spectrum of 

legally permissible rulings on the matter. See State v. Pilon, 

321 Or App 460, 466, 516 P3d 1181 (2022). A trial court can 

also abuse its discretion when a “decision is not supported by 

reason and evidence or when a court fails to exercise its discretion or to consider all relevant circumstances in making 

its decision.” State v. Farmer, 210 Or App 625, 640, 152 P3d 

904, rev den, 342 Or 645 (2007); see also State v. Mayfield, 

302 Or 631, 645, 733 P2d 438 (1987) (“The judge errs if the 
Cite as 325 Or App 560 (2023) 563

judge fails to exercise discretion, refuses to exercise discretion or fails to make a record which reflects an exercise of 

discretion.”).

In this case, the record shows that plaintiff filed the 

request for appointment of counsel contemporaneously with 

his petition for habeas corpus relief. From that information, 

all we can reliably infer is that the habeas court abused its 

discretion by failing to or refusing to exercise its discretion 

to appoint counsel for plaintiff or to deny the motion.

Defendant contends that controlling law already 

explains that a trial court is not required to consider or 

respond to a motion for appointment of counsel in habeas 

cases. See Bates v. Czerniak, 187 Or App 8, 12-13, 66 P3d 519, 

rev den, 335 Or 422 (2003). We disagree. In Bates, we concluded that it was not plain error for the trial court to fail to 

respond to a motion for appointment of counsel in a habeas 

petition. Id. However, for several reasons, Bates, although 

nominally discussing ORS 34.355, was not addressing the 

same question that we address today and is therefore not 

dispositive of this case. In Bates, the specific question was 

whether the trial court erred when it failed to sua sponte

convert the plaintiff’s habeas action to a post-conviction 

relief (PCR) action. 187 Or App at 10. We concluded that 

because the trial court was not required to treat the plaintiff’s habeas action as a PCR action, any error in failing to 

do so was not plain. Id. at 12. As a consequence, because 

there was no obligation to treat the petition as a PCR action, 

there was no concomitant obligation to appoint counsel, as 

required under the PCR statutes. Id. at 12. We then considered whether the plaintiff’s argument for appointment 

of counsel under the PCR statutes could have alternatively 

been considered as plain error in the habeas context and 

concluded any error under the habeas statutes was not 

plain. Id. at 13.

We reject defendant’s contention that plaintiff did 

not preserve his claim with respect to his motion to appoint 

counsel. We were not asked in Bates to consider whether filing a motion for appointment of counsel was sufficient to 

preserve the issue for appellate review, and thus analyzed 

it only for plain error. But in the context of habeas corpus 
564 Steltz v. Cain

petitions, and the statutory time frames for the court and 

defendant to respond, a plaintiff is generally afforded no 

other opportunity to raise the issue. See ORS 34.370 (establishing time for rulings on habeas actions). And owing to 

the speed with which a writ of habeas corpus triggers judicial scrutiny, motion practice other than a motion to strike 

under ORS 34.680 is inappropriate in habeas actions. Bedell 

v. Schiedler, 307 Or 562, 566, 770 P2d 909 (1989). Although 

plaintiff filed only the single motion for appointment of counsel with the court prior to the judgment, he was presented 

no other opportunity to raise the issue, nor did he have an 

opportunity to object to any procedural defect. Cf. Peeples v. 

Lampert, 345 Or 209, 224, 191 P3d 637 (2008) (the petitioner 

did not request findings despite at least two opportunities 

to do so, thus claimed procedural error was unpreserved);

Jaimez v. Rosales, 323 Or App 741, 743, 525 P3d 92 (2023) 

(failure to request findings for matter of court discretion 

foreclosed appellate review of alleged procedural defect). 

And although the error plaintiff assigned in this case is procedural, as opposed to substantive, sometimes procedural 

defects are excused from traditional preservation requirements.1 See, e.g., State v. McLaughlin, 307 Or App 368, 369, 

476 P3d 987 (2020) (preservation not required when error 

appeared for first time in the judgment); State v. Rhamy, 294 

Or App 784, 785, 431 P3d 103 (2018) (same).

In this case the habeas court was presented with 

a motion to appoint counsel at the time plaintiff filed the 

writ of habeas corpus. Plaintiff renewed that request after 

the court entered judgment on the petition.2

 Thus, the court 

1 Our cases addressing abuse of discretion distinguish procedural errors 

from substantive errors. For instance, a trial court could award attorney fees 

that were substantively permissible, but without making special findings—a procedural error. Absent preservation of the procedural error, we would typically 

not review a claimed procedural error. See, e.g., Jaimez, 323 Or App at 743. This 

case does not lend itself to such distinction between procedural and substantive 

errors, in part because ORS 34.355 does not provide a mechanism for a litigant 

to request findings as does ORCP 68 C, and in part because the habeas court did 

not create even the minimally adequate record required for substantive appellate 

review.

2 At oral argument on appeal defendant suggested that the later motion to 

appoint counsel was irrelevant, because plaintiff had no right to amend the petition. We express no opinion on whether plaintiff could have amended the petition or moved for reconsideration after the court issued judgment but note that 

plaintiff could have amended the petition under ORCP 23 A before defendant’s 
Cite as 325 Or App 560 (2023) 565

was presented with a motion that required an exercise of 

discretion. To be sure, plaintiff was not entitled to have an 

attorney appointed, but he was entitled to a ruling with sufficient explanation on the record in response to his motion 

to appoint counsel. See Mayfield, 302 Or at 645. Failure to 

rule on the motion was an abuse of discretion by the habeas 

court. Id. We therefore vacate the judgment and remand for 

the habeas court to rule on the motion and make a record 

of its exercise of discretion. See State v. Kacin, 237 Or App 

66, 73, 240 P3d 1099 (2010) (trial court “must * * * supply 

enough information to enable appellate courts to engage in 

meaningful review of the court’s exercise of discretion”).

Judgment dismissing writ of habeas corpus vacated 

and remanded.

response, or after defendant’s response with consent of defendant or with leave of 

the court before the court issued judgment. See Taylor v. Peters, 274 Or App 477, 

480 n 5, 361 P3d 54 (2015), aff’d, 360 Or 460, 383 P3d 279 (2016) (noting that had 

the defendant raised a certain argument below, the plaintiff “may have been able 

to amend the petition under ORCP 23 to make the necessary allegations”).