Ballinger v. Nooth

Pursuant to ORCP 71 B(1)(a), a petitioner's response to a motion for summary judgment, in a post conviction relief case, must address the merits of the defendant's motion for summary judgment and cannot rely solely on the allegations in the post conviction relief petition.

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.