No. 117 February 22, 2024 119

IN THE COURT OF APPEALS OF THE

 STATE OF OREGON

RANDY E. WEST,

Petitioner-Appellant,

v.

Corey FHUERE, 

Superintendent, 

Oregon State Penitentiary,

Defendant-Respondent.

Marion County Circuit Court

21CV16229; A178313

Thomas M. Hart, Judge.

Submitted January 30, 2024.

Jedediah Peterson and O’Connor Weber, LLC, filed the 

brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and Jordan R. Silk, Assistant Attorney 

General, filed the brief for respondent.

Before Lagesen, Chief Judge, Hellman, Judge, and 

DeVore, Senior Judge.

DeVORE, S. J.

Affirmed.
120 West v. Fhuere

DeVORE, S. J.

Petitioner appeals a judgment dismissing his petition for post-conviction relief as untimely. Specifically, the 

post-conviction court dismissed on the ground that the petition was time-barred by ORS 138.510(4). That provision, 

“without exception, requires all post-conviction petitions 

challenging convictions that became final before August 5, 

1989, to have been filed no later than November 4, 1994.” 

Baker v. State of Oregon, 325 Or App 634, 635, 529 P3d 1015, 

vac’d and rem’d on other grounds, 371 Or 333 (2023).1 In this 

case, petitioner’s conviction became final on May 26, 1989. 

State v. West, 95 Or App 133, 769 P2d 807, rev den, 307 Or 611 

(1989) (affirming from the bench the trial court’s judgment 

of conviction and incarceration).2 Petitioner initially pursued timely post-conviction relief; the post-conviction court 

denied relief, and we affirmed. West v. Zenon, 106 Or App 

181, 807 P2d 348, rev den, 311 Or 427 (1991). Petitioner is 

now out of prison and is on parole. He filed the pertinent 

petition for relief in April 2021, nearly thirty years after his 

conviction became final. Thus, as the post-conviction court 

concluded, the petition is untimely because it was not filed 

before November 4, 1994, as required by ORS 138.510(4).

Seeking a different result, petitioner argues that 

the application of ORS 138.510(4) to his petition violates 

Article I, sections 23 and 10, of the Oregon Constitution 

because it would deprive him of habeas corpus relief and 

denies a remedy for an unconstitutional conviction, respectively, and violates due process. To that end, we reaffirm our 

prior holding in Baker that “the common law writ of habeas 

corpus has not been a remedy available to a person who is 

no longer in custody.” Baker, 325 Or App at 639. Accordingly, 

1 As we explained in Harlukowicz v. State, 328 Or App 468, 469 n 1, 537 P3d 

988 (2023), rev den, 371 Or 825 (2024), “[t]he Supreme Court vacated our decision in Baker and remanded on the petitioner’s unopposed motion under SB 321 

(2023), Oregon Laws 2023, chapter 368, section 1(5), which created a mechanism 

for people to pursue otherwise time-barred challenges to convictions based on 

nonunanimous verdicts.” Because the Supreme Court’s action of vacating and 

remanding our decision in Baker under SB 321 does not call into question our 

analysis in that decision, we reaffirm it here.

2 Petitioner asserts that his conviction did not become final until September 

1990. However, the record contains an appellate judgment entered in this court 

on Mary 26, 2989.
Cite as 331 Or App 119 (2024) 121

because petitioner is no longer in custody, he does not have a 

claim for habeas corpus, and thus the post-conviction court 

did not err in applying the statute of ultimate repose to petitioner’s untimely petition.

Finally, we reject petitioner’s argument that the 

escape clause of ORS 138.510(3) saves his petition. As we 

have explained, ORS 138.510(4) applies to bar the petition, 

and that provision does “not contain an escape clause permitting a delayed petition.” Mastne v. Schiedler, 180 Or App 

552, 555, 44 P3d 621 (2002); see also Baker, 325 Or App at 

639 (so noting). For those reasons, we affirm the judgment 

of the post-conviction court.

Affirmed.