Brown v. Miller

No. 693 July 30, 2025 335

This is a nonprecedential memorandum opinion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

STEPHEN LEE BROWN,

Plaintiff-Appellant,

v.

Jamie MILLER,

Superintendent,

Snake River Correctional Institution,

Defendant-Respondent.

Malheur County Circuit Court

24CV31243; A185242

Lung S. Hung, Judge.

Submitted June 9, 2025.

Jedediah Peterson and Equal Justice Law filed the brief

for appellant.

Dan Rayfield, Attorney General, Benjamin Gutman,

Solicitor General, and Jona J. Maukonen, Assistant Attorney

General, filed the brief for respondent.

Before Aoyagi, Presiding Judge, Egan, Judge, and Pagán,

Judge.

AOYAGI, P. J.

Affirmed.

336 Brown v. Miller

AOYAGI, P. J.

Petitioner appeals a judgment denying his motion

for court-appointed counsel and dismissing his pro se peti-

tion for a writ of habeas corpus. In his sole assignment of

error, he contends that the trial court abused its discretion

by denying his request for court-appointed counsel. For the

following reasons, we affirm.

ORS 34.355 provides discretionary and implicit

authority for trial courts to appoint counsel for indigent

petitioners in habeas cases. Steltz v. Cain, 325 Or App 560,

562, 529 P3d 284 (2023). It is a matter of discretion whether

to appoint counsel “because neither the Oregon Constitution

nor the United States Constitution guarantees counsel in

habeas cases, which are at their core, civil proceedings.” Id.

“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 per-

missible rulings on the matter.” Id. In this case, petitioner

contends that the trial court abused its discretion by fail-

ing to explain the reason for declining to appoint counsel.

See State v. Mayfield, 302 Or 631, 645, 733 P2d 438 (1987)

(describing ways that a court may err in exercising discre-

tion, including by failing to make a record reflecting the

exercise of discretion).

We are unpersuaded. Habeas relief is available

only in specific and limited circumstances. Penrod/Brown v.

Cupp, 283 Or 21, 28, 581 P2d 934 (1978). Here, the petition

itself demonstrated that habeas relief was unavailable to

petitioner because, as the trial court explained, the alleged

constitutional violations occurred months in the past and

were “no longer pending,” rendering the petition “insuf-

ficient to demonstrate a need for immediate judicial scru-

tiny.” Therefore, the trial court dismissed the petition with-

out prejudice and, in the same judgment, denied the motion

to appoint counsel. In context, the court clearly declined

to appoint counsel because petitioner had failed to state a

claim. Perhaps the court would have ruled differently had

it seen something in the petition suggesting a potentially

valid claim that just needed better development with the

Nonprecedential Memo Op: 342 Or App 335 (2025) 337

assistance of an attorney. But faced with a petition that

plainly failed to state a claim, the court declined to appoint

an attorney, and we cannot say that it abused its discre-

tion by doing so, or that the court needed to provide more

explanation under the circumstances. If trial courts were

required to appoint counsel in cases with facially meritless

petitions because of the possibility that a lawyer could root

out some alternative claim with merit, their discretionary

authority to appoint counsel in habeas cases would quickly

transform into a right to counsel, in contravention of the

statute and existing case law.

The trial court did not abuse its discretion in declin-

ing to appoint counsel because the petition failed to state a

claim.

Affirmed.