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Tracy v. Nooth

Summarized by: 

Date Filed: 08-29-2012
Case #: A140606
Duncan, J. for the Court; Armstrong, P.J.; and Haselton, C.J.
Full Text Opinion: http://www.publications.ojd.state.or.us/Publications/A140606.pdf

Post-Conviction Relief: Under ORCP 55 (C)(2), a post-conviction court must issue a subpoena duces tecum to the party requesting it.

Tracy appealed the post-conviction court’s decision denying his motion requesting five subpoenas duces tecum for records relating to his post-conviction relief case. In his post-conviction case, Tracy was contending that he was denied adequate assistance of counsel. In support of his position, Tracy moved under ORCP 55 (C)(2) to subpoena evidence that was not offered by his counsel during trial. ORCP 55 (C)(2) mandates that a post-conviction court issue a subpoena duces tecum to the party requesting it. Nooth argued that any error by the post-conviction court was harmless. The Court of Appeals held that ORCP 55(C)(2) applies to post-conviction proceedings and as such the post-conviction judge erred in denying Tracy's motion. The error was not harmless. Reversed and remanded for further proceedings on the portion of petitioner's claims as to which the subpoenas were relevant, otherwise affirmed.