Rose v. Cupp , 23 Or. App. 355 ( 1975 )

FORT, J.

Petitioner, an inmate in the Oregon State Penitentiary, appeals from an order of the circuit court of Marion County sustaining a demurrer to his petition for writ of habeas corpus.

In his petition, he alleges that on November 13, 1974, while in the custody of the defendant, he was informed that he was being sent to Alabama as a witness in a trial there. That day, without receiving a hearing or an opportunity to consult with an attorney, petitioner was transported to Alabama against his will. Upon his arrival there petitioner learned that instead of being a witness he was going to be tried for murder, for which he was eventually convicted. He was then returned to Oregon to serve the remainder of his sentence.

Petitioner also alleges that he has been informed by prison authorities that he is going to be sent to North Carolina, again without benefit of extradition proceedings, to stand trial there. He seeks an order to prevent this transfer unless proper extradition proceedings are followed.

We must first decide whether habeas corpus is an appropriate remedy by which petitioner may obtain the relief he seeks. At the time petitioner filed this writ, the repeal of the civil death statute by the 1975 legislature, Oregon Laws 1975, ch 781, had not become effective; thus he contends a petition for habeas corpus was the only procedure open to him.

Now, however, the new statute is effective. Section 1 thereof provides:

“Except as otherwise provided by law, a person convicted of a felony does not suffer civil death or disability, or sustain loss of civil rights or forfeiture of estate or property, but retains all of his rights, political, civil and otherwise, including, but not limited to, the right to vote, to hold, receive and transfer property, to enter into contracts, including contracts of marriage, and to maintain and defend civil actions, suits or proceedings.”

Thus, there is now available to this petitioner, should he be threatened with what he contends would be an unlawful transfer to another state, an appropriate civil remedy.

Here there is no existing condition which can be remedied by the writ. Petitioner makes no allegation about the present conditions of his confinement, nor does he point to any way that a writ of habeas corpus will effectively remedy his concern over possible transfer to'North Carolina without extradition. He does not contend that his present confinement in Oregon is itself unlawful.

In DeFunis v. Odegaard, 416 US 312, 94 S Ct 1704, 40 L Ed 2d 164 (1974), the court decided that the case was moot because the plaintiff at the time of decision on appeal was already assured of receiving all the relief which he had initially sought. Petitioner here concedes that the courts of this state can afford him no relief from the earlier transfer to Alabama and his conviction there for murder. The only relief currently sought relates to his claim of threat of transfer without extradition to North Carolina for prosecution there.

In Oregon we think it clear that the legislature by its repeal of civil death statutes and the granting of the rights enumerated in Oregon Laws 1975, ch 781, did not intend that the writ of habeas corpus should be extended beyond its historic role in order to provide an alternate remedy. Brooks v. Gladden, 226 Or 191, 358 P2d 1055, cert denied 366 US 974, 81 S Ct 1942, 6 L Ed 2d 1263 (1961); Slopak v. Cupp, 14 Or App 512, 513 P2d 531, Sup Ct review denied (1973).

In Barnett v. Gladden, 237 Or 76, 390 P2d 614, cert denied 379 US 947, 85 S Ct 445, 13 L Ed 2d 545 (1964), the Oregon Supreme Court considered the impact on habeas corpus rights in Oregon of the enactment of other subsequent legislation, the Oregon Post-Conviction Hearing Act (OES 138.510-138.680). The court said:

“While the post-conviction statute supersedes the statutory right of habeas corpus, the relief afforded by habeas corpus for denial of constitutional rights is retained.” 237 Or at 84.

Accordingly, we conclude that where there is a civil remedy available, and there is no present or past denial of a prisoner’s constitutional rights, such remedy must be pursued. Petitioner now has available to him an adequate civil remedy, as by way of a suit for injunction, to challenge the alleged threatened violation of his right to extradition proceedings prior to his transfer for prosecution of a criminal charge in a sister state.

Affirmed.