Allen v. Maass

859 P.2d 1205, 124 Or. App. 195, 1993 Ore. App. LEXIS 1756

Opinion

PER CURIAM

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 plaintiffs 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 plaintiffs sentence could have been challenged in a post-conviction proceeding or on direct appeal.

Affirmed.