Opinion
85-0487; CA A39437
Argued and submitted October 22, 1986.
Appeal dismissed December 31, 1986.
Appeal from the Circuit Court, Marion County, Richard D. Barber, Judge.
Jay R. Jackson, Salem, argued the cause and filed the brief for appellant.
Scott McAlister, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia Linder, Solicitor General, Salem.
Before Warden, Presiding Judge, and Van Hoomissen and Young, Judges.
PER CURIAM
Appeal dismissed.
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.2d 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.