Tistoj-Lopez v. Pedro — Court affirmed denial of an untimely motion challenging appointed post-conviction counsel

Case
Erasmo Eli Tistoj-Lopez v. David Pedro, Superintendent, Eastern Oregon Correctional Institution
Court
Oregon Court of Appeals
Judge
Kamins, Presiding Judge; Lagesen, Chief Judge; Pagán, Judge
Date Decided
October 28, 2026
Docket No.
A187064
Topics
Post-Conviction Relief; Appointed Counsel; Filing Deadlines; Abuse of Discretion
Source
Read the full opinion

Background

Erasmo Eli Tistoj-Lopez sought post-conviction relief in Umatilla County Circuit Court. During that proceeding, he filed a motion under Church v. Gladden asking the court to replace, or instruct, his court-appointed counsel.

Tistoj-Lopez filed the motion 11 days after the deadline established by the post-conviction court’s scheduling order. The court denied the motion as untimely and ultimately entered a judgment denying post-conviction relief. Tistoj-Lopez appealed, asserting a single assignment of error directed at the denial of his Church motion.

The Court’s Holding

The Oregon Court of Appeals held that the post-conviction court did not abuse its discretion by denying the Church motion as untimely. The appellate court observed that Tistoj-Lopez did not identify anything that prevented him from using the motion itself, or another accompanying motion, to argue that the late filing should be accepted or to request a continuance.

The court also rejected his argument that the absence of prejudice to the superintendent required acceptance of the late motion. Although a lack of prejudice might have permitted the post-conviction court to allow the filing, it did not eliminate the court’s discretion to deny it. Because denial was a legally permissible discretionary decision, the Court of Appeals affirmed.

Key Takeaways

  • A post-conviction court may enforce a scheduling-order deadline against an untimely Church motion.
  • A litigant seeking acceptance of a late filing should present reasons for the delay or request a continuance in the filing or an accompanying motion.
  • Lack of prejudice may support allowing a late motion, but it does not necessarily make denial an abuse of discretion.

Why It Matters

The decision underscores the importance of complying with scheduling orders in Oregon post-conviction proceedings, including when a petitioner raises concerns about appointed counsel under Church v. Gladden. It also illustrates the deferential nature of abuse-of-discretion review: an appellate court will not reverse merely because the trial court could permissibly have reached a different result.

The opinion is a nonprecedential memorandum opinion under ORAP 10.30 and may not be cited except as permitted by ORAP 10.30(1).

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