Rahm v. Keeney

730 P.2d 1297 (1986) 83 Or.App. 266

Bruce R. RAHM, Appellant,
v.
J.C. KEENEY, Superintendent, Oregon State Penitentiary, Respondent.

85-0487; CA A39437.

Court of Appeals of Oregon.

Argued and Submitted October 22, 1986. Decided December 31, 1986.

Jay R. Jackson, Salem, argued the cause and filed the brief for appellant.

Scott McAlister, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia Linder, Sol. Gen., Salem.

Before WARDEN, P.J., and VAN HOOMISSEN and YOUNG, JJ.

PER CURIAM.

Petitioner appeals from a denial of his petition for a writ of habeas corpus, by which he challenged the validity and enforceability of a detainer lodged against him in Oregon by Florida. At oral argument, his counsel advised us that he had been paroled from the Oregon State Penitentiary (OSP). If in custody at all, petitioner is in the custody of his parole officer and the Parole Board, none of whom are parties to this case. The only defendant is the Superintendent of OSP. Any order that could issue to him to produce petitioner would be ineffective, because he has no custody of petitioner. Therefore, this appeal must be dismissed. White v. Gladden, 209 Or. 53, 63, 303 P.3d 226 (1956); cf. Anderson v. Britton, 212 Or. 1, 318 P.2d 291 (1957) (sheriff retained constructive custody of prisoner who had been transferred to penitentiary, pending appeal).

Appeal dismissed.