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Miller v. Cupp

September 10, 1973

ANDREW MILLER, APPELLANT,
v.
CUPP, RESPONDENT



Appeal from Circuit Court, Marion County. Val D. Sloper, Judge. No. 77837.

Robert J. Thorbeck, Salem, for appellant.

Lee Johnson, Attorney General, John W. Osburn, Solicitor General, and William R. Canessa, Assistant Attorney General, Salem, for respondent.

Langtry, Presiding Judge, and Foley and Thornton, Judges.

Langtry

Petitioner appeals from dismissal of his habeas corpus proceeding, contending that the court should have heard on the merits his complaints which formed the basis of the proceeding regardless of his failure to plead such cause as he had. In a previous case involving the same petitioner, State v. Miller, 1 Or App 460, 462,

460 P2d 874 (1969), Sup Ct review denied (1970), we noted:

"* * * Defendant was a difficult person for an attorney or a court to deal with. He constantly demanded concessions to which he was not entitled * * *."

The record in the instant proceeding indicates that if there has been any change in petitioner since then it is that he has become more difficult. He is serving sentences in the Oregon State Penitentiary for a sodomy conviction (the appeal of which is the case noted above) and a conviction on a multiple-count indictment for burglary, concealing stolen property, larceny, and larceny from a building, all dating prior to 1970. An appeal of the latter case was dismissed while it was pending in the Oregon Supreme Court.

In the instant proceeding Mr. Miller filed a petition for a writ of habeas corpus and an alternative writ was issued. A proper return was made by the defendant, Superintendent of the Oregon State Penitentiary. The trial court then, after appointment for petitioner of an experienced attorney, attempted to get the petitioner to file a replication which would frame issues for a hearing. Petitioner appeared in the court several times during this process. He also personally prepared and filed numerous documents with the court. In the hearings and documents his complaints and the remedies that he sought constantly shifted so that it was virtually impossible for the court to understand what he was seeking.

From the time he filed his petition on September 11, 1972 until notice of appeal on February 13, 1973, petitioner filed 25 written documents, each demanding some kind of action by the court. Included

among these, all filed in the habeas corpus proceeding, were motions for transcript of a previous habeas corpus proceeding which he had commenced and which had been terminated, two denominated as mandamus proceedings against his attorney, and numerous complaints against the Superintendent of the penitentiary and several named guards and medical personnel therein. These complaints run through allegations of failure to accord him freedom of speech and opportunity for reformation, failure to supply him with medical aid and law books and materials to his satisfaction, failure to have access to voluminous boxes of legal papers he has accumulated, and accusations of intimidation and harassment by prison personnel. Besides specific complaints a thread runs through most of his statements in open court and some of the documents to the effect that he considers his convictions on the multiple-count indictment to be void on their face. The basis for this claim is the holding in State v. Woolard, 259 Or 232, 484 P2d 314, 485 P2d 1194 (1971). If this is petitioner's chief complaint, a major difficulty presented to the trial court in isolating it was that ...


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