Miller v. Maass

769 P.2d 788 (1989)

95 Or.App. 445

Norman E. MILLER, Appellant, v. Fred MAASS, Superintendent, Oregon State Penitentiary, Respondent.

87-C-11122; CA A46906.

Court of Appeals of Oregon.

March 8, 1989.

Petition for review filed June 15, 1988.

Former opinion filed May 11, 1988.

David B. Kuhns, Salem, for petition.

Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.

On appellant's petition for review filed June 15, 1988.

Former opinion filed May 11, 1988, 91 Or. App. 186, 754 P.2d 632.

RICHARDSON, Presiding Judge.

Petitioner sought a writ of habeas corpus, alleging that his parole release date had been extended under ORS 144.125(3) and that he was denied constitutionally required treatment for the severe emotional condition that the Board of Parole identified as the basis for extending his term. See Ohlinger v. Watson, 652 F.2d 775 (9th Cir.1980). He requested immediate release from incarceration or an order that defendant provide him a comprehensive treatment program. The trial court addressed the merits of the request but denied petitioner relief and dismissed the petition for the writ. He appealed, and we affirmed. 91 Or. App. 186, 754 P.2d 632 (1988). Petitioner has filed a petition for review, ORAP 10.10, which we treat as a petition for reconsideration.

In Keenan v. Peterson, 307 Or. 323, 767 P.2d 441 (1989), the court reiterated the criteria discussed in Penrod/Brown v. Cupp, 283 Or. 21, 581 P.2d 934 (1978), for determining if a writ of habeas corpus should be allowed. The court said that, if the petition does not allege a type of harm redressable by habeas corpus relief, ORS 34.700, the writ should be dismissed without reaching the merits. The petition for the writ here does not allege a type of harm *789 entitling petitioner to habeas corpus relief. It should have been dismissed on that basis. The trial court dismissed it on the merits. We allow the petition for reconsideration, withdraw our former opinion and affirm the judgment but on a different basis. Dismissal was proper under Keenan v. Peterson, supra.

Reconsideration allowed; former opinion withdrawn; affirmed.