Barrett v. Peters

No. 66 October 20, 2016 445
IN THE SUPREME COURT OF THE
STATE OF OREGON
JACOB HENRY BARRETT,
Respondent on Review,
v.
Colette PETERS,
Director,
Oregon Department of Corrections,
Petitioner on Review.
(CC 13C20437; CA A155789; SC S063743 (Control))
JACOB HENRY BARRETT,
Respondent on Review,
v.
Colette PETERS,
Director,
Oregon Department of Corrections,
Petitioner on Review,
and
Greg JONES,
Karin Potts, and Jana Russell,
Defendants.
(CC 13C23141; CA A156271; SC S063744)
En Banc
On review from the Court of Appeals.*
Argued and submitted June 14, 2016.
Jona J. Maukonen, Assistant Attorney General, Salem,
argued the cause and filed the brief for petitioner on review.
Also on the brief were Ellen F. Rosenblum, Attorney General,
and Paul L. Smith, Deputy Solicitor General.
Nadia H. Dahab, Stoll Stoll Berne Lokting & Shlachter,
P.C., Portland, argued the cause and filed the brief for
respondent on review.
______________
*  Appeal from Marion County Circuit Court, Courtland Geyer, Judge. 274 Or
App 237, 360 P3d 638 (2015); 274 Or App 251, 360 P3d 646 (2015).
446 Barrett v. Peters
WALTERS, J.
The decisions of the Court of Appeals are affirmed. The
judgments of the circuit court are reversed, and the cases
are remanded to the circuit court for further proceedings.
Case Summary: Petitioner, an Oregon inmate transferred to and confined
in Florida under the Interstate Corrections Compact (ICC), ORS 421.245, filed
two petitions for writ of habeas corpus in Oregon. The trial court dismissed both
petitions for failure to state a claim, and the Court of Appeals reversed. Held: (1)
Inmates incarcerated outside of Oregon as the result of transfer under the ICC
are permitted to file claims for habeas corpus in Oregon; (2) petitioner alleged
cognizable violations of the state and federal constitutions; (3) the Director of
the Oregon Department of Corrections was a proper defendant in the habeas
proceedings.
The decisions of the Court of Appeals are affirmed. The judgments of the
circuit court are reversed, and the cases are remanded to the circuit court for
further proceedings.
Cite as 360 Or 445 (2016) 447
WALTERS, J.
Petitioner is an inmate who committed aggravated
murder in Oregon and who was convicted, sentenced, and
incarcerated in Oregon; however, pursuant to the Interstate
Corrections Compact (ICC), ORS 421.245, Oregon trans-
ferred petitioner to an institution in the state of Florida.
Thereafter, petitioner filed, in Oregon, two separate petitions
for writ of habeas corpus alleging, among other things, that
the terms of his confinement in Florida violate his rights
under the state and federal constitutions. We conclude, as
did the Court of Appeals, that petitioner’s transfer to and
confinement in Florida do not prohibit him from bringing
those constitutional claims. We affirm the decisions of the
Court of Appeals. Barrett v. Peters, 274 Or App 237, 250, 360
P3d 638 (2015); Barrett v. Peters, 274 Or App 251, 254, 360
P3d 646 (2015). We reverse the contrary judgments of the
circuit court.
I. BACKGROUND
Petitioner committed aggravated murder in Oregon
and was convicted and sentenced to life in prison. Oregon
transferred petitioner to the state of Florida pursuant to
the ICC, ORS 421.245, and petitioner later filed two peti-
tions for writ of habeas corpus in Oregon pursuant to ORS
34.310 and ORS 34.362, naming the Director of the Oregon
Department of Corrections (ODOC) as defendant. In his
first habeas petition, petitioner alleged that the terms and
conditions of his confinement in Florida violate his rights
under the Oregon Constitution, specifically, his rights under
Article I, sections 2, 3, and 13, to the free exercise of reli-
gion and to be free from “unnecessary rigor.” Petitioner also
alleged that he had “made defendant aware of the denial of
the right of free exercise” and had filed a formal grievance
with ODOC, which it had denied. In addition, petitioner
alleged that the conditions of his confinement violate the
Due Process Clause of the Fourteenth Amendment to the
United States Constitution.1
1
Petitioner also alleged other violations that we do not address. First, peti-
tioner alleged that the lack of pretransfer notice and a hearing before ODOC vio-
lated his right to due process of law under the federal constitution. The trial court
concluded that that claim was meritless, and petitioner did not assign that ruling
as error in the Court of Appeals or raise it on review. We therefore do not address
448 Barrett v. Peters
In his second habeas petition, petitioner alleged
that, by transferring him to and confining him in the State
of Florida, defendant had denied him “timely and meaning-
ful rehabilitative treatment and programming” in violation
of the Eighth and Fourteenth Amendments to the United
States Constitution, as well as his Oregon constitutional
right to be free from “unnecessary rigor.” Petitioner asserted
that defendant “was in a position of authority,” “opted to take
no action” in response to his requests to transfer, and “knew
or should have known” that petitioner was being confined in
violation of his constitutional rights.
Before the trial court, defendant2 moved to “deny”
petitioner’s first habeas petition for failure to state a claim.
ORS 34.370. The state argued that the director was not a
proper defendant because she did not have physical custody
of petitioner and because she did not control the conditions
of confinement in Florida. The trial court agreed with the
state and dismissed petitioner’s first habeas petition with
prejudice. Subsequently, the trial court, acting sua sponte,
dismissed petitioner’s second petition for the same reasons
that it had dismissed petitioner’s first petition.
Petitioner appealed to the Court of Appeals, and
that court reversed both trial court decisions. Barrett v.
Peters, 274 Or App 237 at 250; Barrett v. Peters, 274 Or App
251 at 254. In its decision as to petitioner’s first petition, the
Court of Appeals held that an Oregon inmate incarcerated
out of state pursuant to the ICC retains the right to peti-
tion for a writ of habeas corpus in Oregon to remedy alleged
unconstitutional conditions of confinement and that peti-
tioner had properly named the Director of ODOC as defen-
dant. Barrett v. Peters, 274 Or App 237 at 247. In reaching
that conclusion, the court relied on this court’s decision in
Barrett v. Belleque, 344 Or 91, 100, 176 P3d 1272 (2008),3 that
it. Second, petitioner alleged that the terms and conditions of his confinement
violate the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42
USC sections 2000cc to 2000cc-5. We do not address that violation, because the
state did not separately challenge it in the trial court or the Court of Appeals.
2
Throughout the remainder of this opinion, we will refer to defendant, the
Director of the ODOC, as “the state.”
3
The petitioner in this case was also the petitioner in Barrett v. Belleque, but
the cases are not related. We will refer to that case as Barrett v. Belleque through-
out this opinion.
Cite as 360 Or 445 (2016) 449
“ ‘[t]he terms of the ICC * * * supplement the ordinary habeas
jurisdictional analysis.’ ” Barrett v. Peters, 274 Or App 237 at
244. In the case involving petitioner’s second petition, the
Court of Appeals relied on its decision involving petitioner’s
first petition and again reversed the trial court judgment.
Barrett v. Peters, 274 Or App 251 at 254.
The state sought review of both cases in this court,
raising three issues: (1) whether Oregon law permits an
inmate confined outside of Oregon pursuant to the ICC to file
a petition for a writ of habeas corpus in Oregon; (2) whether
petitioner alleged cognizable habeas corpus claims in con-
testing the conditions of his confinement in Florida; and
(3) whether petitioner properly named the Director of ODOC
as defendant in these cases. This court granted review and
consolidated the two cases.
II. ANALYSIS
We begin with the first question on review, which is,
as noted, whether inmates incarcerated outside of Oregon
as the result of transfer under the ICC, ORS 421.245, are
entitled to seek a writ of habeas corpus under ORS 34.310.
For the reasons that follow, we conclude that they are.
A.  Oregon law permits petitioner to bring a claim for habeas
relief.
Under the habeas statutes, when an inmate alleges
deprivations of state or federal constitutional rights that are
of the type that “would require immediate judicial scrutiny,”
and “it also appears to the court that no other timely rem-
edy is available to the prisoner,” the inmate has the right to
petition for a writ of habeas corpus to remedy the alleged
deprivations. Penrod/Brown v. Cupp, 283 Or 21, 28, 581 P2d
934 (1978); ORS 34.310; ORS 34.362. ORS 34.310 provides,
in part:
“Every person imprisoned or otherwise restrained of lib-
erty, within this state, * * * may prosecute a writ of habeas
corpus to inquire into the cause of such imprisonment or
restraint, and if illegal, to be delivered therefrom.”
The state argues from the text of that statute that,
to qualify for habeas relief, a person must be confined within
450 Barrett v. Peters
Oregon’s geographic boundaries. The state contends that
the phrase “within this state” is a reference to Oregon’s geo-
graphic boundaries. The “within this state” requirement for
habeas relief was part of the Oregon session laws enacted
in 1862, General Statutes of Oregon, chapter VII, title III,
section 597, page 152 (1862), and was later included in the
Deady Code, General Laws of Oregon, Civil Code, chap-
ter VII, title III, section 597, page 300 (Deady 1945-1864).
The state contends that, when the legislature enacted those
laws, “within” was defined as “[i]n the inner part, as the
space within the walls of a house,” and as “[i]n the limits
or compass of; not beyond; used of place and time.” Noah
Webster, 2 An American Dictionary of the English Language
114 (1828). Therefore, the state argues, when the legisla-
ture originally drafted the “within this state” requirement,
it would have understood that phrase to mean inside the
geographic boundaries of the State of Oregon.
Petitioner does not contend otherwise. Rather, peti-
tioner contends that he is entitled to seek habeas relief for
two alternative reasons: First, because the “restraint” to
which ORS 34.310 refers includes constructive restraint;
and second, because the ICC supplements the habeas stat-
utes and preserves petitioner’s right to participate in any
proceedings in which he could have participated if he were
incarcerated in Oregon, including habeas proceedings. We
find petitioner’s second, alternative argument persuasive for
the following reasons.
The ICC permits the transfer of Oregon inmates
to states and territories that are parties to that compact
and specifically addresses the rights of transferred inmates.
Article IV, section 5, of the ICC provides that “[t]he fact of
confinement in a receiving state shall not deprive any inmate
so confined of any legal rights” that the inmate would have
had if confined within the sending state.4 Article IV, section
8, grants a transferred inmate the right to participate in
any action or proceeding in which the inmate could have
participated if confined in the sending state. It provides that
4
The “[r]eceiving state” is the “state party to [the ICC] to which an inmate
is sent for confinement other than a state in which conviction * * * was had.” ORS
421.245, Art II, § 3. The “[s]ending state” is the “state party to [the ICC] in which
conviction * * * was had.” Id. at § 2.
Cite as 360 Or 445 (2016) 451
“[a]ny inmate confined pursuant to the terms of this
compact shall have any and all rights to participate in and
derive any benefits or incur or be relieved of any obliga-
tions or have such obligations modified or the status of the
inmate changed on account of any action or proceeding in
which the inmate could have participated if confined in any
appropriate institution of the sending state located within
such state.”
ORS 421.245, Art IV, § 8. In Barrett v. Belleque, this court
construed those two provisions of the ICC as “supple-
ment[ing] the ordinary habeas jurisdictional analysis.” 344
Or at 100.
The petitioner in Barrett v. Belleque was impris-
oned in Oregon when he filed his claim for habeas relief. Id.
at 93. The trial court reached the merits of the petitioner’s
claim and denied it. Id. The Court of Appeals affirmed. Id.The petitioner then sought review in this court, but, before
the court could act, the state transferred the petitioner to
an Oklahoma prison under the ICC. Id. The state moved to
dismiss review on the grounds that the matter had become
moot. The state argued that neither the petitioner nor his
custodian was “within this state,” as ORS 34.310 requires;
they were, the state asserted, “in Oklahoma.” Id. at 100.
This court concluded that the case was not moot and reached
the merits of the petitioner’s claims, “to the extent that they
* * * affect[ed] his current incarceration in Oklahoma.” Id. at
101. The court reasoned as follows:
“The terms of the ICC, however, supplement the ordi-
nary habeas jurisdictional analysis. Petitioner commit-
ted his crimes in Oregon, was convicted and sentenced in
Oregon, and is serving an ‘Oregon’ sentence. Under the
ICC, petitioner cannot be deprived of any legal rights that
he would have enjoyed in Oregon. See ORS 421.24[5], Art
IV(5) (so stating).”
Id. at 100.
The state argues that our decision in Barrett v.
Belleque turned not on an interpretation of the habeas
statute, ORS 34.310, or on an interpretation of the ICC,
ORS 421.245, but on the well-settled principle, articulated
in Anderson v. Britton, that “the function of habeas corpus
452 Barrett v. Peters
cannot be defeated by a transfer of custody after a rul-
ing in the trial court and pending appeal to [the supreme
court].” 212 Or 1, 5, 318 P2d 291 (1957), superseded by stat-
ute on other grounds as explained in Delaney v. Gladden,
232 Or 306, 374 P2d 746 (1962). But this court did not cite
Anderson in Barrett v. Belleque, and for good reason. In
Anderson, the petitioner had been transferred, not out of
state, but from the county jail to the state penitentiary.
Thus, the court in Anderson was not required to confront
the issue presented in Barrett v. Belleque and the state’s
very different argument there that petitioner’s claim was
moot because he was not longer “within the state,” as ORS
34.310 requires. In Barrett v. Belleque, this court held, as
a necessary response to that argument, that the ICC sup-
plements ORS 34.310 and permits out of state prisoners
to challenge the terms of their confinement by means of a
habeas corpus proceeding.
Barrett v. Belleque is precedent that we are required
to follow, and we therefore conclude that petitioner is per-
mitted to challenge the terms and conditions of his confine-
ment in Florida in this action.
B.  Petitioner alleged cognizable violations of the Oregon
Constitution.
The next question that the state poses is whether
petitioner brings a cognizable habeas claim for violation
of his rights under the state and federal constitutions by
alleging that the terms and conditions of his confinement
in Florida are unconstitutional. To state a claim for habeas
corpus, a petitioner must plead
“facts in support of a claim that the person is deprived of a
constitutional right that requires immediate judicial atten-
tion and for which no other timely remedy is practicably
available to the plaintiff.”
ORS 34.362. The state argues that petitioner’s allega-
tions are legally insufficient for three interrelated reasons:
(1) Even if the ICC supplements habeas corpus jurisdic-
tion and permits inmates who are not confined “within
this state” to bring a habeas claim, the ICC does not grant
inmates the right to challenge conditions of confinement
Cite as 360 Or 445 (2016) 453
in a receiving state because those conditions do not meet
the standards of sending states—instead, the ICC grants
receiving states the right to set conditions of confinement
that they determine are appropriate and requires that all
inmates be treated equally according to those conditions;
(2) even if the ICC grants inmates the right to challenge
the conditions of confinement imposed by receiving states,
that right is a statutory right and not a constitutional right;
and (3) the Oregon Constitution does not apply in receiving
states, and conditions of confinement imposed by receiving
states are not the result of Oregon state action.
The state draws its arguments from the ICC, par-
ticularly ORS 421.245, Article IV, section 5. The first sen-
tence of section 5 provides:
“All inmates who may be confined in an institution pur-
suant to the provisions of this compact shall be treated in
a reasonable and humane manner and shall be treated
equally with such similar inmates of the receiving state as
may be confined in the same institution.”
The second sentence provides:
“The fact of confinement in a receiving state shall not
deprive any inmate so confined of any legal rights which
said inmate would have had if confined in an appropriate
institution of the sending state.”
According to the state, the first sentence of section 5 makes
inmates transferred under the ICC subject to the rules and
disciplinary authority of the receiving state; the second gov-
erns other rights that an inmate may have—for example,
rights related to the validity of the inmate’s conviction, the
length of a sentence, good-time credits, and parole. In sup-
port of that interpretation, the state cites cases in which
courts have held that the ICC does not grant inmates the
right to application of the sending state’s disciplinary, vis-
itation, classification, and grooming policies. See Vigue v.
Underwood, 139 SW3d 168, 171-72 (Ky Ct App 2004) (con-
cluding that ICC does not require application of disciplinary
rules of sending state); Daye v. State, 171 Vt 475, 481-82, 769
A2d 630 (2000) (same); Glick v. Holden, 889 P2d 1389, 1392-
93 (Utah Ct App 1995) (same).
454 Barrett v. Peters
We need not decide, in this case, whether we agree
with those holdings. In this case, petitioner does not allege
that he is entitled to have the state of Florida apply Oregon
disciplinary rules or policies; rather, he alleges that the
conditions under which he is confined in Florida violate
his rights under the state and federal constitutions. As the
Court of Appeals correctly explained in its opinion regard-
ing petitioner’s first petition, “the issue in this case is not
whether the ICC require[s] [the receiving state] to adhere
to Oregon’s policies or to comply with Oregon’s constitutional
standards; the issue is whether [petitioner] lost the right to
be incarcerated under conditions that comply with Oregon
constitutional standards, by virtue of his transfer to [the
receiving state].” Barrett v. Peters, 274 Or App 237 at 244
(emphasis in original). The answer to that question is “no.”
The second sentence of ORS 421.245, Article IV, section 5,
specifically provides that the fact of confinement in a receiv-
ing state “shall not deprive any inmate so confined of any
legal rights which said inmate would have had if confined in
an appropriate institution of the sending state.” Even if that
sentence does not grant an inmate the right to have partic-
ular administrative rules of the sending state apply in the
receiving state, it at least guarantees that the transferred
inmate will retain, and not lose, constitutional rights. See
Johnson v. State, 442 A2d 1362, 1367 (Del 1982) (“a legiti-
mate and reasonable basis for transferring an inmate does
not justify the denial to him of an opportunity to exercise a
constitutional right”); In re Sheryl S., 1991 WL 61396, at *2
(Conn Super Ct Apr 12, 1991) (transferred inmate retains
constitutional right to be present at hearings on petition of
juvenile neglect).
That the Oregon legislature did not intend the ICC
to deprive transferred inmates of their constitutional rights
is a proposition supported not only by the text of that stat-
ute, but also by its legislative history. See State v. Gaines,
346 Or 160, 171, 206 P3d 1042 (2009) (holding legisla-
tive intent is interpreted by examining text, context, and
any helpful legislative history). When the ICC was before
the House Judiciary Committee in 1979, Representative
Lombard asked Committee Counsel whether, in the event
that the sending state had a provision or legal right that
Cite as 360 Or 445 (2016) 455
the receiving state did not have, the receiving state would
be required to provide those rights to transferred inmates.
Tape Recording, House Committee on Judiciary, HB 2070,
Feb 2, 1979, Tape 6, Side 1 (comments of Rep Kip Lombard).
Committee Counsel responded that the “bill states that
they maintain their legal rights.” Id. (comments of Dennis
Bromka). Later, Chairman Gardner asked a representative
of the Oregon Corrections Division whether correctional
facilities would scrutinize the prisoners to be exchanged to
avoid conflicts between the rules of the sending and receiv-
ing states. Id. (comments of Chairman James Gardner).
The Corrections representative responded that they would
and added that “the key thing to remember” was that “most
of these transfers are voluntary in nature and most of the
prisoners want to be closer to their families.” Id. (comments
of Thomas Toombs). It does not appear that the legislature
intended that inmates transferred under the ICC would
be required to endure treatment that violated the Oregon
Constitution.
Thus, even if the ICC does not grant a transferred
inmate the right to conditions of confinement that accord
with Oregon statutory or administrative standards, a ques-
tion that we do not decide, the ICC does not deprive a trans-
ferred inmate of the right to conditions of confinement that
accord with constitutional requirements. Relatedly, the fact
that the ICC permits a transferred inmate to challenge the
violation of constitutional rights does not make an inmate’s
constitutional challenge a statutory claim.5 We conclude
that a transferred inmate retains the right to challenge
unconstitutional conditions in a habeas proceeding, and we
reject the state’s argument that such a right is a statutory
right.
We turn next to the state’s arguments that the
Oregon Constitution does not apply outside of Oregon and
that the conditions of confinement imposed by Florida offi-
cials do not constitute Oregon state action. Those arguments
indicate a misunderstanding of the nature of petitioner’s
5
Although, as the Court of Appeals noted, petitioner’s claim that the terms
and conditions of his confinement violate RLUIPA may be a statutory claim,
Barrett v. Peters, 274 Or App 237 at 242 n 8, we do not address that question. The
state did not raise it in the trial court or in the Court of Appeals. Id.456 Barrett v. Peters
claims. Petitioner alleges state action by Oregon officials in
Oregon; he alleges that the state continues to confine peti-
tioner in Florida with knowledge of the terms and conditions
of his confinement there. Even if the Oregon Constitution
does not apply in Florida, and even if Oregon has no direct
control over the conditions of petitioner’s confinement in
Florida, the Oregon Constitution does apply in Oregon and
Oregon has direct control over petitioner’s placement in a
Florida facility.6 ORS 421.245, Article IV, section 3, pro-
vides that inmates transferred under ICC “shall at all time
be subject to the jurisdiction of the sending state and may
at any time be removed therefrom.” If Oregon officials are
knowingly confining petitioner in a facility where his state
or federal constitutional rights are being violated, those offi-
cials are engaging in state action that is subject to challenge
in a habeas proceeding in Oregon.
6
Petitioner also argues that the Oregon Constitution applies to Florida offi-
cials who act as agents of the State of Oregon in Florida in setting the terms and
conditions of petitioner’s confinement. Petitioner first notes that Oregon constitu-
tional rights are individual rights vis-à-vis the government that may be violated
no matter where the violation occurs. See State v. Davis, 313 Or 246, 253-54, 834
P2d 1008 (1992) (acts of Mississippi officers and Oregon officers in arresting and
questioning defendant in Mississippi subject to Oregon constitutional challenge).
Secondly, petitioner argues that the acts of Oregon employees or agents can con-
stitute Oregon state action. See State v. Tucker, 330 Or 85, 90, 997 P2d 182 (2000)
(private tow truck operator acting at request of officer must act within bounds of
Oregon Constitution); State v. Sines, 359 Or 41, 51-52, 379 P3d 502 (2016) (private
individuals acting as agents of the state engage in state action for purposes of
Article I, section 9).
The problem with petitioner’s argument in this case, however, is that the par-
ties dispute whether Florida officials are acting as Oregon’s agents in setting the
terms and conditions of petitioner’s confinement. Petitioner argues that the ICC
makes receiving states the agents of sending states for all purposes and points
to the provisions of the ICC that provide that when Oregon officials transfer an
inmate to another state, the receiving state acts “solely as agent for the sending
state.” ORS 421.245, Art IV, § 1. In addition, petitioner contends that the ICC
grants Oregon officials, among other things, “access, at all reasonable times,”
to the out-of-state institution, id. at § 2; the right, “at any time,” to remove the
inmate from the receiving state, id. at § 3; the authority to authorize and conduct
hearings to which the inmate is entitled by the laws of Oregon, id. at § 6; and the
authority to receive regular reports from the receiving state in order to review
the inmate’s records, id. at § 4. In contrast, the state contends that, under the
ICC, the receiving state controls day-to-day conditions of confinement, including
discipline, and cites ORS 421.425, Article IV, section 5, for that proposition. ORS
421.425, Art IV, § 5 (receiving state will treat inmate in “reasonable and humane
manner” and “equally with” other inmates); Daye, 171 Vt at 481; Glick, 889 P2d at
1393. Because we decide this case on an alternative ground, we need not resolve
that dispute.
Cite as 360 Or 445 (2016) 457
C.  The Director of ODOC is a proper defendant.
The final question on review is whether the Director
of ODOC is a proper defendant in a petition for a writ of
habeas corpus by an inmate held out of state pursuant to
the ICC. The state contends that the director is not a proper
defendant because she is not petitioner’s physical custodian,
and because she does not control the day-to-day conditions
of petitioner’s confinement in Florida. Petitioner argues that
the director is the “officer or person by whom [petitioner]
is imprisoned or restrained,” and that she is therefore an
appropriate defendant under the habeas statutes. ORS
34.360. For the following reasons, we agree with petitioner.
ORS 34.362 provides that a petition for a writ of
habeas corpus must “[c]omply with [the] requirements of
ORS 34.360(1), (3), (4), and (5)[.]” ORS 34.360(1) specifies
that the petition must state the “officer or person by whom
the party is imprisoned or restrained.” That individual is the
appropriate defendant in a habeas proceeding, whether he
or she has physical, or only constructive, custody of the peti-
tioner. That interpretation of the habeas statute is consis-
tent with our holding in Anderson. 212 Or at 6. In that case,
we acknowledged that “ordinarily,” a habeas claim “must
be against the one having physical custody of the plaintiff.”
Id. at 5. Even so, we concluded that, despite the plaintiff’s
transfer from the jail to the penitentiary, the plaintiff had
appropriately named the sheriff as the defendant in his peti-
tion because, “for the purpose of [the] proceeding[,] plaintiff
remain[ed] constructively in the custody of the sheriff pend-
ing determination of the appeal.” Id. at 6.
Transfer out of state pursuant to the ICC is another
circumstance in which the legal or constructive custodian
is the proper defendant in a petition for habeas relief. The
transferred inmate remains “subject to the jurisdiction of
the sending state.” ORS 421.245, Art IV, § 3. At any time,
the sending state may remove the transferred inmate from
the receiving state. Id. Thus, although a transferred inmate
is in the physical custody of the receiving state, the sending
state retains sole authority to remove petitioner from the
conditions about which he complains. As Church explains in
his Treatise on the Writ of Habeas Corpus, the writ of habeas
458 Barrett v. Peters
corpus “is directed to a person detaining another, command-
ing him to produce the body of the person detained.” William
S. Church, A Treatise on the Writ of Habeas Corpus § 87, 137
(2d ed 1893). Historically, the person physically detaining
the inmate was the proper defendant, because that person
alone had the authority to “bring [the detainee] before the
judge to explain and justify, if he could, the fact of impris-
onment.” Id. §  88 at 140. In this case, that person is the
Director of ODOC, despite the fact that she does not have
physical custody of petitioner, and we conclude that peti-
tioner properly named her as the defendant in his petitions.
Lastly, we address the state’s argument that the
director is not the proper defendant because she lacks con-
trol over the conditions about which petitioner complains.
Just as it did in making its argument that petitioner failed to
allege a cognizable violation of his constitutional rights, the
state misses the thrust of petitioner’s argument. Petitioner’s
argument is not that he is entitled to habeas relief because
the Florida prison has different policies and programming
than Oregon prisons. His argument, instead, is that the
rules and institutional policies in place in the Florida prison
give rise to violations of the state and federal constitutional
rights to which he remains entitled. Although the state may
be correct that the director has no authority to control the
conditions of confinement in out-of-state prisons, a question
that we do not decide, we do not agree that the director lacks
the ability to remedy petitioner’s constitutional complaints.
The director retains the right to remove petitioner from the
receiving state and return him to Oregon, or, alternatively,
to transfer petitioner to a state that is also party to the ICC
but whose institutional rules and policies will not give rise
to constitutional violations. In that respect, the director
does control the conditions of petitioner’s confinement. But,
regardless, the defendant in a habeas proceeding need not
have direct control over the immediate, allegedly uncon-
stitutional, conditions of confinement; the defendant need
only have a custodial relationship with the petitioner. ORS
34.360(1).
In summary, we conclude that (1) inmates incarcer-
ated outside of Oregon as the result of transfer under the
ICC, ORS 421.245, are permitted to file claims for habeas
Cite as 360 Or 445 (2016) 459
corpus in Oregon; (2) petitioner alleged cognizable violations
of the state and federal constitutions; and (3) the Director of
ODOC is the proper defendant in petitioner’s habeas peti-
tions. Those conclusions require that we remand to the cir-
cuit court for further proceedings.
The decisions of the Court of Appeals are affirmed.
The judgments of the circuit court are reversed, and the cases
are remanded to the circuit court for further proceedings.