Summary
In Allen v. Maass, 124 Or. App. 195, 859 P.2d 1205 (1993), we held that a court's improper sua sponte dismissal of a habeas corpus petition alleging claims that could have been addressed on direct appeal or in post-conviction proceedings was harmless error.
Summary of this case from Perry v. ZenonOpinion
93C-10202; CA A78634
Argued and submitted August 4, 1993.
Affirmed October 20, 1993.
Appeal from Circuit Court, Marion County, Albin W. Norblad, Judge.
Garrett A. Richardson, Multnomah Defenders, argued the cause and filed the brief for appellant.
Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.
Before Deits, Presiding Judge, and Riggs and Durham, Judges.
PER CURIAM
Affirmed.
Plaintiff appeals from a judgment sua sponte denying his petition for a writ of habeas corpus. ORS 34.370(6); ORS 34.710. His petition alleged that his confinement was illegal because he was improperly sentenced. We affirm.
Under ORS 34.370(6), a court may deny, sua sponte, a meritless petition brought under ORS 34.362. However, a petition brought under ORS 34.362 can only challenge conditions of confinement. The court improperly denied plaintiff's petition, which challenged the authority for his confinement under ORS 34.360.
Although the sua sponte denial under ORS 34.370(6) was improper, the error was harmless. Under ORS 34.330(3), habeas corpus relief is not available for issues that could have been addressed in post-conviction proceedings. The alleged error in plaintiff's sentence could have been challenged in a post-conviction proceeding or on direct appeal.
Affirmed.