Thomas William Bonnie, Appellant, v. Clarence T. Gladden, Appellee, 377 F.2d 555 (9th Cir. 1967)

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US Court of Appeals for the Ninth Circuit - 377 F.2d 555 (9th Cir. 1967) May 25, 1967
Rehearing Denied July 3, 1967

Appeal from the United States District Court for the District of Oregon; Gus J. Solomon, Judge.

Howard R. Lonergan, Portland, Or., for appellant.

Robert Y. Thornton, Atty. Gen., David H. Blunt, Asst. Atty. Gen., Salem, Or., for appellee.

Before BROWNING, DUNIWAY, and ELY, Circuit Judges.


Thomas William Bonnie was convicted and sentenced under the Oregon Contribution of Delinquency Statute O.R.S. 167.210. He sought habeas corpus relief in federal district court, presenting a substantial argument that as interpreted by the Supreme Court of Oregon in State v. Stone, 111 Or. 227, 226 P. 430 (1924), the Oregon statute lacks legally fixed standards of guilt and is therefore void under the Fourteenth Amendment. Giaccio v. State of Pennsylvania, 382 U.S. 399, 402-403, 86 S. Ct. 518, 15 L. Ed. 2d 447 (1966). The district court denied relief.

While his appeal was pending in this court, Bonnie completed his sentence and was discharged from confinement without condition or restriction. In light of this development we are without power to deal with the merits of Bonnie's claim under the interpretation of the "in custody" requirement of 28 U.S.C. § 2241(c) (1) (1964) adopted in Parker v. Ellis, 362 U.S. 574, 80 S. Ct. 909, 4 L. Ed. 2d 963 (1963).

The case must therefore be remanded to the district court with instructions to vacate the order appealed from and dismiss the application for habeas corpus.

So ordered.