386 January 31, 2024 No. 48

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

DAVID L. HILL, JR.,

Petitioner-Appellant,

v.

Jamie MILLER, 

Snake River Correctional Center,

Defendant-Respondent.

Malheur County Circuit Court

21CV06055; A177440

Lung S. Hung, Judge.

Argued and submitted October 31, 2023.

Margaret Huntington argued the cause for appellant. 

On the opening brief were Lindsey Burrows and O’Connor 

Weber LLC. Also on the reply brief was O’Connor Weber, 

LLC.

Jordan R. Silk, Assistant Attorney General, argued 

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

Rosenblum, Attorney General, and Benjamin Gutman, 

Solicitor General.

Before Lagesen, Chief Judge, and Tookey, Judge, and 

Kamins, Judge.

LAGESEN, C. J.

Reversed and remanded.
Cite as 330 Or App 386 (2024) 387
388 Hill v. Miller

LAGESEN, C. J.

Petitioner appeals a judgment dismissing his postconviction petition as untimely, ORS 138.510(3), and successive, ORS 138.550(3).1

 The post-conviction court concluded that the ground for relief raised in the petition was 

one that petitioner could not reasonably have raised within 

two years of the date that his conviction was final, or in his 

previous petitions for post-conviction relief, such that petitioner was entitled to the benefit of the escape clauses in 

both ORS 138.510 and ORS 138.550. The court nevertheless 

dismissed the petition. Relying on our decision in CanalesRobles v. Laney, 314 Or App 413, 422, 498 P3d 343 (2021), 

which construed the escape clause of ORS 138.510 as a tolling provision, the post-conviction court determined that 

the petition was untimely because petitioner waited more 

than two years to file it after the ground for relief asserted 

became available to petitioner. Although the post-conviction 

court’s decision was correct under our decision in CanalesRobles, under a subsequent decision of the Supreme Court, 

Ingle v. Matteucci, 371 Or 413, 537 P3d 895 (2023), petitioner’s demonstration that his ground for relief falls within the 

1 ORS 138.510(3) provides:

“A petition pursuant to ORS 138.510 to 138.680 must be filed within two 

years of the following, unless the court on hearing a subsequent petition finds 

grounds for relief asserted which could not reasonably have been raised in 

the original or amended petition:

“(a) If no appeal is taken, the date the judgment or order on the conviction was entered in the register.

“(b) If an appeal is taken, the date the appeal is final in the Oregon 

appellate courts.

“(c) If a petition for certiorari to the United States Supreme Court is 

filed, the later of:

“(A) The date of denial of certiorari, if the petition is denied; or

“(B) The date of entry of a final state court judgment following remand 

from the United States Supreme Court.”

ORS 138.550(3) provides:

“All grounds for relief claimed by petitioner in a petition pursuant to ORS 

138.510 to 138.680 must be asserted in the original or amended petition, and 

any grounds not so asserted are deemed waived unless the court on hearing a 

subsequent petition finds grounds for relief asserted therein which could not 

reasonably have been raised in the original or amended petition. However, 

any prior petition or amended petition which was withdrawn prior to the 

entry of judgment by leave of the court, as provided in ORS 138.610, shall 

have no effect on petitioner’s right to bring a subsequent petition.”
Cite as 330 Or App 386 (2024) 389

relevant escape clause or clauses is sufficient to allow him 

to pursue that ground for relief. We therefore reverse and 

remand.

STANDARD OF REVIEW

We review a post-conviction court’s ruling on a 

motion to dismiss a petition for legal error, assuming the 

truth of the allegations in the petition and its attachments. 

Ingle, 371 Or at 416; Zsarko v. Angelozzi, 281 Or App 506, 508, 

382 P3d 1239 (2016), rev den, 361 Or 312 (2017). Pertinent to 

this case, we review for legal error a post-conviction court’s 

determination that either the ORS 138.510 escape clause or 

the ORS 138.550 escape clause permits a petitioner to pursue a ground for post-conviction relief that was not alleged 

in a timely-filed initial petition for relief. See Ingle, 371 Or at 

445-46 (so reviewing).

FACTUAL AND PROCEDURAL BACKGROUND

We state the relevant facts in accordance with our 

standard of review. Petitioner entered a stipulated plea 

agreement with the state. Under the terms of the plea 

agreement, he was entitled to credit for time served starting on the date of his arrest, June 2, 2008. That credit 

would reduce his time in the custody of the Department of 

Corrections (DOC) by 17.2 months, resulting in a total of 

144 months’ incarceration in DOC custody. At sentencing, 

the court reminded petitioner that, under the terms of the 

agreement, petitioner’s sentence would be “not one day more 

[or] one day less” than the agreed-upon term. The court then 

entered a judgment reflecting the court’s intention that petitioner’s total term of incarceration include credit for time 

served since June 2, 2008.

Petitioner sought post-conviction relief in 2010 and 

2011. He did not raise any issue regarding the credit-fortime-served component of his sentence in the 2010 and 2011 

petitions, and he did not obtain any relief as a result of those 

petitions.

On or around March 23, 2015, DOC notified petitioner that it could not honor the part of the agreement 

allowing for credit for time served. Nearly six years later, on 
390 Hill v. Miller

February 9, 2021, petitioner filed the instant post-conviction 

proceeding, alleging that trial counsel was inadequate and 

ineffective for allowing him to enter the plea involving an 

agreed-upon sentence that was not enforceable.

The superintendent moved to dismiss, arguing that 

the petition was (a) untimely under ORS 138.510(3); and (b) 

successive under ORS 138.550(3). The post-conviction court 

granted the motion, ruling that petitioner’s ground for relief 

fell within the escape clauses of both statutes but that petitioner’s delay in seeking relief meant that his request was 

untimely under Canales-Robles.

Specifically, with respect to ORS 138.550(3), the 

post-conviction court determined that petitioner’s ground for 

relief could not reasonably have been raised by petitioner’s 

post-conviction lawyers before petitioner received the notice 

from DOC. Thus, the petition fell within the escape clause 

of ORS 138.550(3). See Perez v. Cain, 367 Or 96, 113, 473 

P3d 540 (2020) (whether escape clause of ORS 138.550(3) 

applies turns on whether ground for relief was reasonably 

available to petitioner’s prior post-conviction counsel). With 

respect to ORS 138.510(3), the post-conviction court concluded, for the same reason, that the ground for relief was 

not available to petitioner within the two-year period following the date his conviction became final. See Ingle, 371 Or 

at 446-47 (whether escape clause of ORS 138.510(3) applies 

turns on whether, in the circumstances that confronted the 

petitioner, the petitioner reasonably could have raised the 

ground for relief within the two-year window). Nonetheless, 

following our construction of the escape clause as a tolling 

provision in Canales-Robles and Bean v. Cain, 314 Or App 

529, 497 P3d 1273 (2021), which applied the tolling analysis 

set forth in Canales-Robles, the post-conviction court determined that the petition was not timely because petitioner 

filed it more than two years after the date on which he had 

notice of the fact that DOC would not effectuate the sentence in the manner intended by petitioner, the state, and 

the sentencing court. Petitioner appealed.

On appeal, in his opening and reply briefs, petitioner 

first argues that Canales-Robles was wrongly decided, to the 

extent that it treated the escape clause in ORS 138.510(3) 
Cite as 330 Or App 386 (2024) 391

as a tolling provision. Petitioner further argues that he 

is entitled to the benefit of the escape clauses under both 

ORS 138.510(3) and ORS 138.550(3) because he could not 

reasonably have raised his credit-for-time-served claim in 

a timely petition under ORS 138.510(3) or in his previous 

post-conviction petitions, regardless of the amount of time it 

took him to seek relief.

In the answering brief, the superintendent argues 

that Canales-Robles is correct and that the post-conviction 

court correctly dismissed the petition as time-barred. 

Alternatively, the superintendent argues that the judgment of dismissal should be affirmed on the alternative 

ground that petitioner is not entitled to the benefit of the 

ORS 138.550 escape clause. The superintendent’s theory 

is that the legal basis and the facts supporting the DOC’s 

determination that it would not give effect to the sentencing court’s intended sentence would have been available to 

counsel who investigated the legality of the sentence, such 

that petitioner could have raised the issue in his initial postconviction proceeding.

After briefing was completed in this case, the 

Supreme Court decided Ingle. In Ingle, the court interpreted 

the escape clause of ORS 138.510(3). In that case, the petitioner had not filed his petition for post-conviction within two 

years of the date his conviction became final, as required by 

ORS 138.510(3). Ingle, 371 Or at 415. At issue was whether 

the petitioner’s mental illness, which petitioner alleged had 

prevented him from seeking post-conviction relief within 

the two-year limitations period, entitled him to the benefit 

of the ORS 138.510(3) escape clause. Id.

The Supreme Court concluded that if petitioner 

could prove the allegations about how his mental illness 

affected his ability to file for post-conviction relief, then petitioner would be entitled to the benefit of the escape clause. 

Id. at 416. Notably, the court did not require the petitioner to 

demonstrate that he filed his post-conviction petition within 

two years of the date on which his mental illness was no longer an impediment to filing. The court also did not otherwise 

construe the escape clause to function as a tolling provision.
392 Hill v. Miller

On the contrary, the court explained that ORS 

138.510(3) “includes a limitations period and an exception 

to that period.” Id. at 415. Rejecting arguments by the state 

analogizing ORS 138.510(3) to other statutes of limitations, 

and related rules regarding claim accrual and tolling, the 

court observed that ORS 138.510(3) “does not contain a tolling provision; instead, it has an escape clause.” Id. at 432 

n 4. The court also observed that “there is no statute of ultimate repose for [post-conviction] claims.” Id. Ultimately, the 

court explained that principles applicable to other statutes 

of limitations do not apply to the limitations period in ORS 

138.510(3). Id. Rather, if a petitioner demonstrates that the 

escape clause applies to a particular ground for relief, then 

ORS 138.510(3) does not bar a petition asserting that ground 

for relief:

“The state’s effort to compare the statute of limitations for 

post-conviction petitions to other statutes of limitations 

is understandable, but the statute of limitations for postconviction petitions is unique. It does not work the same 

way as other statutes of limitations, because its limitations 

period starts to run from a specific date—when a conviction becomes final—and that date is independent of when 

a claim ‘accrues’ in the sense that a plaintiff knows or has 

reason to know of a claim. That is, the post-conviction 

statute does not have an ordinary discovery accrual rule; 

instead, it has an escape clause, which is broad enough to 

cover both circumstances where a petitioner did not know 

or have reason to know of their ground for relief and circumstances where a petitioner was incapable of taking the 

steps necessary to raise their ground for relief within the 

limitations period.”

Id.

After the Supreme Court issued its decision, petitioner then submitted a memorandum of additional authorities. Petitioner notes both that the Supreme Court rejected 

the notion that the escape clause in ORS 138.510(3) is a 

tolling provision and, further, that the Post-Conviction 

Hearings Act (PCHA) does not impose a “statute of ultimate 

repose for such claims” that fall within the escape clause. 

Petitioner asserts that, under Ingle, he is entitled to pursue his claim because it is not one that reasonably could 
Cite as 330 Or App 386 (2024) 393

have been raised within the limitations period or within one 

of his two prior post-conviction petitions. Petitioner argues 

further that “[i]f petitioner could not reasonably have raised 

his ground for relief [within] the two years following [the] 

date” his conviction became final, then “his petition is not 

time-barred,” because, under Ingle, there is no statute of 

ultimate repose for pursuing a post-conviction claim that 

falls within an escape clause.

In response, the superintendent argues that the 

Supreme Court’s decision in Ingle does not displace our decision in Canales-Robles. The superintendent reasons that the 

Supreme Court did not address explicitly whether a petitioner eligible to invoke the escape clauses of ORS 138.510(3) 

and ORS 138.550(3) must do so within two years of the date 

the ground for relief became available to the petitioner. In 

the superintendent’s view, this means that Ingle does not 

displace our decision in Canales-Robles. The superintendent 

argues further that, to depart from our holding in CanalesRobles that the escape clause of ORS 138.510(3) operates as 

a tolling provision, we must conclude that our interpretation of the escape clause as a tolling provision was plainly 

wrong. The superintendent asserts that, notwithstanding 

Ingle, Canales-Robles is not plainly wrong.

ANALYSIS

As framed by the parties’ arguments and the postconviction court’s ruling, this case presents two issues: 

(1) whether the facts alleged by petitioner establish that his 

post-conviction counsel could not reasonably have raised his 

claim related to credit for time served in petitioner’s previous post-conviction petitions, so as to entitle him to the benefit of the escape clauses; and (2) if so, whether petitioner was 

required to file for post-conviction relief within two years of 

the date he became aware of the potential ground for relief.

On the first issue, we agree with the post-conviction 

court that the facts alleged by petitioner demonstrate that 

the asserted ground for relief was not reasonably available 

to petitioner, or his prior post-conviction lawyers, until DOC 

alerted petitioner in 2015 that it would not honor the stipulated plea agreement. Because that was long after petitioner 
394 Hill v. Miller

filed his first two petitions, the ground could not have been 

reasonably raised in the first two petitions.

Arguing otherwise, the superintendent posits that 

the ground was reasonably available to petitioner’s prior postconviction lawyers because, in the superintendent’s view, 

petitioner’s post-conviction lawyers could have researched 

the law and determined that petitioner’s plea agreement 

was not one that could be implemented in a lawful way. We 

are not persuaded. As long as the state had not indicated to 

petitioner that it would not honor the terms of the sentence 

imposed as part of the stipulated plea agreement, petitioner 

did not have a viable claim for post-conviction relief. It is 

difficult to conceive of what, exactly, petitioner’s claim would 

have been before DOC alerted petitioner that he would not 

get credit for time served; an anticipatory claim based on 

the theory that the state might not honor the agreement 

would likely not have been justiciable.

The remaining question is whether petitioner 

was required to file for relief within two years of discovering the basis for his claim. On that question, the parties 

and the post-conviction court assumed that ORS 138.510 

imposes a two-year limitation period in this context, where 

a petitioner has filed previous petitions for post-conviction 

relief and is seeking to avoid the successive-petition bar of 

ORS 138.550(3) by demonstrating that a ground for relief 

“could not reasonably have been raised in” the prior petition or petitions. ORS 138.550(3). That assumption is subject to question. There is no indication in the text of ORS 

138.550(3) or ORS 138.510(3) that the legislature intended 

to impose a time limitation for successive petitions asserting 

post-conviction claims that could not reasonably have been 

raised in a prior post-conviction proceeding. Ordinarily, “[i]t 

is not our role to add limitations that the legislature itself 

did not include.” PGE v. Alfalfa Solar I, LLC, 323 Or App 

531, 537, 524 P3d 124, rev den, 371 Or 308 (2023) (citing 

ORS 174.010).

Nevertheless, for purposes of this decision, we 

assume, as the parties have, that ORS 138.510(3) has some 

application to successive petitions filed under the escape 

clause of ORS 138.550(3). At this stage of the proceeding, 
Cite as 330 Or App 386 (2024) 395

ORS 138.510(3), as construed in Ingle, required only that 

petitioner allege facts showing that he could not reasonably have raised his claim within two years of the date his 

conviction became final, something petitioner did here. As 

explained above, Ingle held that a petitioner satisfies the 

ORS 138.510(3) escape clause with respect to a ground for 

relief by demonstrating that the petitioner could not reasonably have raised the ground for relief within two years of the 

date the petitioner’s conviction became final, nothing more, 

nothing less. 471 Or at 446. The court was clear that ORS 

138.510 does not have a tolling provision but, instead, has 

an escape clause that operates as an exception to the limitations period, not as something that affects the running of 

the limitations period. Id. at 415. And the court was clear 

that the legislature did not impose an outer time limit—a 

statute of ultimate repose—on post-conviction claims. Id. at 

432 n 4.

To the extent our decision in Canales-Robles holds 

that the escape clause of ORS 138.510(3) operates as a tolling provision, we overrule it.2

 That interpretation of the 

ORS 138.510(3) escape clause is irreconcilable with Ingle.

3

Our holding in Canales-Robles explicitly construed the ORS 

138.510(3) escape clause as a tolling provision, holding that, 

as a result of the escape clause, “the statute of limitations 

is tolled during the time period that a claim could not reasonably have been raised.” 314 Or App at 422. Similarly, 

2 Because this opinion overrules our existing precedent, the panel specifically advised all members of the court of the effect of its decision, but neither the 

chief judge nor a majority of the regularly elected or appointed judges referred, 

under ORS 2.570(5), the cause to be considered en banc.

3 The superintendent argues that, because Ingle did not address the specific 

issues resolved in Canales-Robles, it does not supply a basis for us to conclude 

that the Supreme Court has displaced our decision in Canales-Robles. We disagree. See State v. McKnight, 293 Or App 274, 281, 426 P3d 669, rev den, 363 Or 

817 (2018) (examining whether prior Court of Appeals decision was “irreconcilable or fundamentally unworkable” with subsequent Supreme Court decision to 

determine whether it should be overruled in light of subsequent Supreme Court 

decision). Unlike the situation addressed in McKnight, in which a subsequent 

Supreme Court decision was at odds with some, but not all, of our reasoning 

in support of our prior interpretation of a statute, in Ingle, the Supreme Court 

issued a statutory interpretation that is different from the one that we issued in 

Canales-Robles. The Ingle interpretation binds us. Mastriano v. Board of Parole, 

342 Or 684, 692-93, 159 P3d 1151 (2007) (explaining that “an authoritative interpretation of [a] statute by [the Supreme Court] *** ordinarily should be controlling if the statute is unchanged in any pertinent way”).
396 Hill v. Miller

we reasoned that “[t]he statute of limitations does not commence until [a] ground [for] relief becomes available, if it 

ever does.” Id. at 423. That construction of the escape clause 

cannot be reconciled with the Supreme Court’s conclusion 

in Ingle that ORS 138.510 does not have a tolling provision.

We recognize that this means that some postconviction claims might be filed long after the petitioner’s 

conviction becomes final, and long after a ground for relief 

became available to the petitioner. But, as the Supreme 

Court recognized in Ingle, “the bar for establishing that 

the escape clause applies is high,” something that will limit 

the number of such claims. 371 Or at 444. Beyond that, the 

choice whether to impose time limitations on claims that fall 

within either the ORS 138.510(3) escape clause or the ORS 

138.550(3) escape clause is a choice that belongs to the legislature, not the courts: “In the construction of a statute, the 

office of the judge is simply to ascertain and declare what 

is, in terms or in substance, contained therein, not to insert 

what has been omitted, or to omit what has been inserted.” 

ORS 174.010

In sum, the post-conviction court correctly concluded that the facts alleged by petitioner, if proved, would 

entitle petitioner to the benefit of the escape clauses of both 

ORS 138.510(3) and ORS 138.550(3). The post-conviction 

court erred, however, when it determined that petitioner’s 

failure to seek relief within two years of discovering the 

basis for relief required dismissal. Although the court’s reasoning was correct under our decision in Canales-Robles, we 

must overrule Canales-Robles because it is irreconcilable 

with Ingle. To the extent ORS 138.510(3) has any application on these facts, under Ingle, petitioner was required to 

demonstrate simply that the ground for relief could not reasonably have been raised within two years of the date his 

conviction became final, a standard satisfied by the pleadings here.

Reversed and remanded.