- Court: Oregon Court of Appeals
- Area(s) of Law: Post-Conviction Relief
- Date Filed: 12-27-2012
- Case #: A146788
- Judge(s)/Court Below: Nakamoto, J. for the Court; and Haselton, C. J.
- Full Text Opinion
Petitioner Terry Alfred Ballinger (Ballinger) appealed the post-conviction relief court's decision in favor of Defendant Mark Nooth (Nooth). Ballinger was convicted of first-degree sodomy and first-degree sexual assault. Ballinger applied for post-conviction relief arguing ineffective assistance of counsel. Nooth, the Superintendent of the Snake River Correctional Facility, filed a motion for summary judgment. Ballinger's attorney, Mahony, informed the court that Ballinger would not render a response to Nooth's motion. However, Mahony did not inform Ballinger of the summary judgement motion. The post-conviction relief court granted Nooth's motion for summary judgment because Ballinger had "elected not to respond." Ballinger then filed a motion for relief of judgment on the grounds that Mahony had failed to inform him of the summary judgment motion. The post-conviction relief court denied Ballinger's motion because Ballinger did not address the merits of Nooth's summary judgement motion. The Oregon Court of Appeals affirmed the post-conviction relief court's ruling, holding that Ballinger had failed to assert a legal basis to refute Nooth's motion for summary judgment. Affirmed.