by Mark Wilson

The Supreme Court of Oregon clarified, and dramatically restricted, the so-called “Church motion” practice in post-conviction relief (“PCR”) cases. 

PCR is the exclusive collateral remedy for Oregon prisoners to challenge their convictions and sentences. Indigent PCR petitioners are entitled to the appointment of counsel. 

A PCR petitioner may obtain relief by proving ineffective assistance of trial counsel in the underlying criminal proceeding. Any ground for relief that is not raised in a PCR action is deemed waived, unless it could not reasonably have been raised in the initial action. ORS 138.550(3). 

In Church v. Gladden, 417 P.2d 993 (Ore. 1966), the Oregon Supreme Court held that a prisoner could not bring a second PCR proceeding to raise claims that counsel refused to raise in his first PCR proceeding. That is, “petitioner could not sit idly by and later complain,” the Court instructed. “He must inform the court at first opportunity of his attorney’s failure and ask” the court to replace counsel or instruct him “to carry out petitioner’s request.” This broad language has spawned far-reaching “Church motion” litigation in PCR proceedings in recent years as illustrated by the case of Tracey Bogle. 

Bogle pleaded guilty to burglary and assault and was sentenced to probation. He agreed to a 72-month prison term if his probation was revoked. Bogle inevitably violated his probation, it was revoked, and he was sentenced to the agreed-upon prison term. 

He then filed a PCR petition, alleging that he was denied effective assistance of counsel during the plea proceedings. Court-appointed PCR counsel refused to certify the merit of several claims that Bogle wanted him to allege in the third amended petition. Nevertheless, counsel included those pro se claims in the petition, pursuant to Church. 

Following a hearing, the PCR court struck each of Bogie’s pro se claims. The Oregon Supreme Court subsequently issued Johnson v. Premo, 333 P.3d 288 (Ore. 2014), clarifying that Church does not authorize a represented PCR petitioner to assert pro se grounds for relief. “Nothing in Church sanctions the sort of hybrid representation that permits a post­conviction petitioner to be represented by counsel and, at the same time, flood the court with pro se motions and with other requests for relief any time the petitioner disagrees with counsel’s prosecution of the case,” the Court instructed. 

Undeterred by Johnson, Bogle filed a second series of pro se Church motions to: supplement the record, disqualify the judge, separate consolidated PCR cases, compel counsel to question witnesses, allow new pro se claims, and amend the petition to include a prosecutorial misconduct claim. Only two motions asserted pro se claims that had not been addressed during the first Church hearing. Only one motion asked the court to order counsel, pursuant to Church, to raise the new grounds. 

The PCR court held a second hearing on Bogle’s motions. Concluding that Church did not ‘‘authorize a separate kind of motion practice” and a represented litigant cannot file pro se matters under Johnson, the court denied Bogie’s Church motions. The court subsequently denied PCR and dismissed the action. 

The Oregon Supreme Court affirmed, first concluding that the purpose of a Church motion is much narrower than PCR petitioners and courts have understood in recent years. A Church motion does not authorize represented PCR petitioners to raise any issues they want, the Court instructed. Rather, the motion is used only to inform the PCR court that counsel refuses to raise a claim and to ask the court to appoint substitute counsel who will raise that claim or instruct counsel to do so.

“A proper Church motion is, essentially, a motion for substitution of counsel or for the less drastic remedy of instruction of counsel,” the Court explained. Noting that PCR “counsel — like all counsel — must exercise reasonable professional skill and judgment,” the Court ruled that “to prevail on a Church motion, a petitioner must show that counsel has failed to raise a ground for relief and, in doing so, has failed to exercise reasonable professional skill and judgment.”

The PCR court’s inquiry is not whether the claim has merit. Rather, given that strategic reasons may exist for not raising a claim, the court must determine whether the petitioner has established that counsel failed to exercise reasonable professional skill and judgment in choosing which claims to raise. 

If the Church motion is denied, the petitioner may move to dismiss counsel, proceed pro se, and raise the requested claims, the Court explained. Otherwise, the petitioner can continue with current counsel and appeal the denial of the Church motion “just as a defendant can challenge the denial of a motion for substitution of counsel in a criminal case.”

Finally, “the process established by Church ... should not lead to serial pro se filings,” the Court instructed. PCR courts may “establish a rule requiring petitioners to raise all such concerns in a single filing and within a specific time period following counsel’s filing of the petition, with an exception for good cause.”

Applying this standard, the Court held that Bogle’s Church motions were properly denied because he did not establish that “counsel’s failure to raise a ground for relief constitutes a failure to exercise reasonable professional skill and judgment.” See: Bogle v. State, 423 P.3d 715 (Ore. 2018). 

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