Barrett v. Peters

No. 66 October 20, 2016 445

IN THE SUPREME COURT OF THE

STATE OF OREGON

JACOB HENRY BARRETT,

Respondent on Review,

v.

Colette PETERS,

Director,

Oregon Department of Corrections,

Petitioner on Review.

(CC 13C20437; CA A155789; SC S063743 (Control))

JACOB HENRY BARRETT,

Respondent on Review,

v.

Colette PETERS,

Director,

Oregon Department of Corrections,

Petitioner on Review,

and

Greg JONES,

Karin Potts, and Jana Russell,

Defendants.

(CC 13C23141; CA A156271; SC S063744)

En Banc

On review from the Court of Appeals.*

Argued and submitted June 14, 2016.

Jona J. Maukonen, Assistant Attorney General, Salem,

argued the cause and filed the brief for petitioner on review.

Also on the brief were Ellen F. Rosenblum, Attorney General,

and Paul L. Smith, Deputy Solicitor General.

Nadia H. Dahab, Stoll Stoll Berne Lokting & Shlachter,

P.C., Portland, argued the cause and filed the brief for

respondent on review.

______________

*  Appeal from Marion County Circuit Court, Courtland Geyer, Judge. 274 Or

App 237, 360 P3d 638 (2015); 274 Or App 251, 360 P3d 646 (2015).

446 Barrett v. Peters

WALTERS, J.

The decisions of the Court of Appeals are affirmed. The

judgments of the circuit court are reversed, and the cases

are remanded to the circuit court for further proceedings.

Case Summary: Petitioner, an Oregon inmate transferred to and confined

in Florida under the Interstate Corrections Compact (ICC), ORS 421.245, filed

two petitions for writ of habeas corpus in Oregon. The trial court dismissed both

petitions for failure to state a claim, and the Court of Appeals reversed. Held: (1)

Inmates incarcerated outside of Oregon as the result of transfer under the ICC

are permitted to file claims for habeas corpus in Oregon; (2) petitioner alleged

cognizable violations of the state and federal constitutions; (3) the Director of

the Oregon Department of Corrections was a proper defendant in the habeas

proceedings.

The decisions of the Court of Appeals are affirmed. The judgments of the

circuit court are reversed, and the cases are remanded to the circuit court for

further proceedings.

Cite as 360 Or 445 (2016) 447

WALTERS, J.

Petitioner is an inmate who committed aggravated

murder in Oregon and who was convicted, sentenced, and

incarcerated in Oregon; however, pursuant to the Interstate

Corrections Compact (ICC), ORS 421.245, Oregon trans-

ferred petitioner to an institution in the state of Florida.

Thereafter, petitioner filed, in Oregon, two separate petitions

for writ of habeas corpus alleging, among other things, that

the terms of his confinement in Florida violate his rights

under the state and federal constitutions. We conclude, as

did the Court of Appeals, that petitioner’s transfer to and

confinement in Florida do not prohibit him from bringing

those constitutional claims. We affirm the decisions of the

Court of Appeals. Barrett v. Peters, 274 Or App 237, 250, 360

P3d 638 (2015); Barrett v. Peters, 274 Or App 251, 254, 360

P3d 646 (2015). We reverse the contrary judgments of the

circuit court.

I. BACKGROUND

Petitioner committed aggravated murder in Oregon

and was convicted and sentenced to life in prison. Oregon

transferred petitioner to the state of Florida pursuant to

the ICC, ORS 421.245, and petitioner later filed two peti-

tions for writ of habeas corpus in Oregon pursuant to ORS

34.310 and ORS 34.362, naming the Director of the Oregon

Department of Corrections (ODOC) as defendant. In his

first habeas petition, petitioner alleged that the terms and

conditions of his confinement in Florida violate his rights

under the Oregon Constitution, specifically, his rights under

Article I, sections 2, 3, and 13, to the free exercise of reli-

gion and to be free from “unnecessary rigor.” Petitioner also

alleged that he had “made defendant aware of the denial of

the right of free exercise” and had filed a formal grievance

with ODOC, which it had denied. In addition, petitioner

alleged that the conditions of his confinement violate the

Due Process Clause of the Fourteenth Amendment to the

United States Constitution.1

1

Petitioner also alleged other violations that we do not address. First, peti-

tioner alleged that the lack of pretransfer notice and a hearing before ODOC vio-

lated his right to due process of law under the federal constitution. The trial court

concluded that that claim was meritless, and petitioner did not assign that ruling

as error in the Court of Appeals or raise it on review. We therefore do not address

448 Barrett v. Peters

In his second habeas petition, petitioner alleged

that, by transferring him to and confining him in the State

of Florida, defendant had denied him “timely and meaning-

ful rehabilitative treatment and programming” in violation

of the Eighth and Fourteenth Amendments to the United

States Constitution, as well as his Oregon constitutional

right to be free from “unnecessary rigor.” Petitioner asserted

that defendant “was in a position of authority,” “opted to take

no action” in response to his requests to transfer, and “knew

or should have known” that petitioner was being confined in

violation of his constitutional rights.

Before the trial court, defendant2 moved to “deny”

petitioner’s first habeas petition for failure to state a claim.

ORS 34.370. The state argued that the director was not a

proper defendant because she did not have physical custody

of petitioner and because she did not control the conditions

of confinement in Florida. The trial court agreed with the

state and dismissed petitioner’s first habeas petition with

prejudice. Subsequently, the trial court, acting sua sponte,

dismissed petitioner’s second petition for the same reasons

that it had dismissed petitioner’s first petition.

Petitioner appealed to the Court of Appeals, and

that court reversed both trial court decisions. Barrett v.

Peters, 274 Or App 237 at 250; Barrett v. Peters, 274 Or App

251 at 254. In its decision as to petitioner’s first petition, the

Court of Appeals held that an Oregon inmate incarcerated

out of state pursuant to the ICC retains the right to peti-

tion for a writ of habeas corpus in Oregon to remedy alleged

unconstitutional conditions of confinement and that peti-

tioner had properly named the Director of ODOC as defen-

dant. Barrett v. Peters, 274 Or App 237 at 247. In reaching

that conclusion, the court relied on this court’s decision in

Barrett v. Belleque, 344 Or 91, 100, 176 P3d 1272 (2008),3 that

it. Second, petitioner alleged that the terms and conditions of his confinement

violate the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42

USC sections 2000cc to 2000cc-5. We do not address that violation, because the

state did not separately challenge it in the trial court or the Court of Appeals.

2

Throughout the remainder of this opinion, we will refer to defendant, the

Director of the ODOC, as “the state.”

3

The petitioner in this case was also the petitioner in Barrett v. Belleque, but

the cases are not related. We will refer to that case as Barrett v. Belleque through-

out this opinion.

Cite as 360 Or 445 (2016) 449

“ ‘[t]he terms of the ICC * * * supplement the ordinary habeas

jurisdictional analysis.’ ” Barrett v. Peters, 274 Or App 237 at

244. In the case involving petitioner’s second petition, the

Court of Appeals relied on its decision involving petitioner’s

first petition and again reversed the trial court judgment.

Barrett v. Peters, 274 Or App 251 at 254.

The state sought review of both cases in this court,

raising three issues: (1) whether Oregon law permits an

inmate confined outside of Oregon pursuant to the ICC to file

a petition for a writ of habeas corpus in Oregon; (2) whether

petitioner alleged cognizable habeas corpus claims in con-

testing the conditions of his confinement in Florida; and

(3) whether petitioner properly named the Director of ODOC

as defendant in these cases. This court granted review and

consolidated the two cases.

II. ANALYSIS

We begin with the first question on review, which is,

as noted, whether inmates incarcerated outside of Oregon

as the result of transfer under the ICC, ORS 421.245, are

entitled to seek a writ of habeas corpus under ORS 34.310.

For the reasons that follow, we conclude that they are.

A.  Oregon law permits petitioner to bring a claim for habeas

relief.

Under the habeas statutes, when an inmate alleges

deprivations of state or federal constitutional rights that are

of the type that “would require immediate judicial scrutiny,”

and “it also appears to the court that no other timely rem-

edy is available to the prisoner,” the inmate has the right to

petition for a writ of habeas corpus to remedy the alleged

deprivations. Penrod/Brown v. Cupp, 283 Or 21, 28, 581 P2d

934 (1978); ORS 34.310; ORS 34.362. ORS 34.310 provides,

in part:

“Every person imprisoned or otherwise restrained of lib-

erty, within this state, * * * may prosecute a writ of habeas

corpus to inquire into the cause of such imprisonment or

restraint, and if illegal, to be delivered therefrom.”

The state argues from the text of that statute that,

to qualify for habeas relief, a person must be confined within

450 Barrett v. Peters

Oregon’s geographic boundaries. The state contends that

the phrase “within this state” is a reference to Oregon’s geo-

graphic boundaries. The “within this state” requirement for

habeas relief was part of the Oregon session laws enacted

in 1862, General Statutes of Oregon, chapter VII, title III,

section 597, page 152 (1862), and was later included in the

Deady Code, General Laws of Oregon, Civil Code, chap-

ter VII, title III, section 597, page 300 (Deady 1945-1864).

The state contends that, when the legislature enacted those

laws, “within” was defined as “[i]n the inner part, as the

space within the walls of a house,” and as “[i]n the limits

or compass of; not beyond; used of place and time.” Noah

Webster, 2 An American Dictionary of the English Language

114 (1828). Therefore, the state argues, when the legisla-

ture originally drafted the “within this state” requirement,

it would have understood that phrase to mean inside the

geographic boundaries of the State of Oregon.

Petitioner does not contend otherwise. Rather, peti-

tioner contends that he is entitled to seek habeas relief for

two alternative reasons: First, because the “restraint” to

which ORS 34.310 refers includes constructive restraint;

and second, because the ICC supplements the habeas stat-

utes and preserves petitioner’s right to participate in any

proceedings in which he could have participated if he were

incarcerated in Oregon, including habeas proceedings. We

find petitioner’s second, alternative argument persuasive for

the following reasons.

The ICC permits the transfer of Oregon inmates

to states and territories that are parties to that compact

and specifically addresses the rights of transferred inmates.

Article IV, section 5, of the ICC provides that “[t]he fact of

confinement in a receiving state shall not deprive any inmate

so confined of any legal rights” that the inmate would have

had if confined within the sending state.4 Article IV, section

8, grants a transferred inmate the right to participate in

any action or proceeding in which the inmate could have

participated if confined in the sending state. It provides that

4

The “[r]eceiving state” is the “state party to [the ICC] to which an inmate

is sent for confinement other than a state in which conviction * * * was had.” ORS

421.245, Art II, § 3. The “[s]ending state” is the “state party to [the ICC] in which

conviction * * * was had.” Id. at § 2.

Cite as 360 Or 445 (2016) 451

“[a]ny inmate confined pursuant to the terms of this

compact shall have any and all rights to participate in and

derive any benefits or incur or be relieved of any obliga-

tions or have such obligations modified or the status of the

inmate changed on account of any action or proceeding in

which the inmate could have participated if confined in any

appropriate institution of the sending state located within

such state.”

ORS 421.245, Art IV, § 8. In Barrett v. Belleque, this court

construed those two provisions of the ICC as “supple-

ment[ing] the ordinary habeas jurisdictional analysis.” 344

Or at 100.

The petitioner in Barrett v. Belleque was impris-

oned in Oregon when he filed his claim for habeas relief. Id.

at 93. The trial court reached the merits of the petitioner’s

claim and denied it. Id. The Court of Appeals affirmed. Id.

The petitioner then sought review in this court, but, before

the court could act, the state transferred the petitioner to

an Oklahoma prison under the ICC. Id. The state moved to

dismiss review on the grounds that the matter had become

moot. The state argued that neither the petitioner nor his

custodian was “within this state,” as ORS 34.310 requires;

they were, the state asserted, “in Oklahoma.” Id. at 100.

This court concluded that the case was not moot and reached

the merits of the petitioner’s claims, “to the extent that they

* * * affect[ed] his current incarceration in Oklahoma.” Id. at

101. The court reasoned as follows:

“The terms of the ICC, however, supplement the ordi-

nary habeas jurisdictional analysis. Petitioner commit-

ted his crimes in Oregon, was convicted and sentenced in

Oregon, and is serving an ‘Oregon’ sentence. Under the

ICC, petitioner cannot be deprived of any legal rights that

he would have enjoyed in Oregon. See ORS 421.24[5], Art

IV(5) (so stating).”

Id. at 100.

The state argues that our decision in Barrett v.

Belleque turned not on an interpretation of the habeas

statute, ORS 34.310, or on an interpretation of the ICC,

ORS 421.245, but on the well-settled principle, articulated

in Anderson v. Britton, that “the function of habeas corpus

452 Barrett v. Peters

cannot be defeated by a transfer of custody after a rul-

ing in the trial court and pending appeal to [the supreme

court].” 212 Or 1, 5, 318 P2d 291 (1957), superseded by stat-

ute on other grounds as explained in Delaney v. Gladden,

232 Or 306, 374 P2d 746 (1962). But this court did not cite

Anderson in Barrett v. Belleque, and for good reason. In

Anderson, the petitioner had been transferred, not out of

state, but from the county jail to the state penitentiary.

Thus, the court in Anderson was not required to confront

the issue presented in Barrett v. Belleque and the state’s

very different argument there that petitioner’s claim was

moot because he was not longer “within the state,” as ORS

34.310 requires. In Barrett v. Belleque, this court held, as

a necessary response to that argument, that the ICC sup-

plements ORS 34.310 and permits out of state prisoners

to challenge the terms of their confinement by means of a

habeas corpus proceeding.

Barrett v. Belleque is precedent that we are required

to follow, and we therefore conclude that petitioner is per-

mitted to challenge the terms and conditions of his confine-

ment in Florida in this action.

B.  Petitioner alleged cognizable violations of the Oregon

Constitution.

The next question that the state poses is whether

petitioner brings a cognizable habeas claim for violation

of his rights under the state and federal constitutions by

alleging that the terms and conditions of his confinement

in Florida are unconstitutional. To state a claim for habeas

corpus, a petitioner must plead

“facts in support of a claim that the person is deprived of a

constitutional right that requires immediate judicial atten-

tion and for which no other timely remedy is practicably

available to the plaintiff.”

ORS 34.362. The state argues that petitioner’s allega-

tions are legally insufficient for three interrelated reasons:

(1) Even if the ICC supplements habeas corpus jurisdic-

tion and permits inmates who are not confined “within

this state” to bring a habeas claim, the ICC does not grant

inmates the right to challenge conditions of confinement

Cite as 360 Or 445 (2016) 453

in a receiving state because those conditions do not meet

the standards of sending states—instead, the ICC grants

receiving states the right to set conditions of confinement

that they determine are appropriate and requires that all

inmates be treated equally according to those conditions;

(2) even if the ICC grants inmates the right to challenge

the conditions of confinement imposed by receiving states,

that right is a statutory right and not a constitutional right;

and (3) the Oregon Constitution does not apply in receiving

states, and conditions of confinement imposed by receiving

states are not the result of Oregon state action.

The state draws its arguments from the ICC, par-

ticularly ORS 421.245, Article IV, section 5. The first sen-

tence of section 5 provides:

“All inmates who may be confined in an institution pur-

suant to the provisions of this compact shall be treated in

a reasonable and humane manner and shall be treated

equally with such similar inmates of the receiving state as

may be confined in the same institution.”

The second sentence provides:

“The fact of confinement in a receiving state shall not

deprive any inmate so confined of any legal rights which

said inmate would have had if confined in an appropriate

institution of the sending state.”

According to the state, the first sentence of section 5 makes

inmates transferred under the ICC subject to the rules and

disciplinary authority of the receiving state; the second gov-

erns other rights that an inmate may have—for example,

rights related to the validity of the inmate’s conviction, the

length of a sentence, good-time credits, and parole. In sup-

port of that interpretation, the state cites cases in which

courts have held that the ICC does not grant inmates the

right to application of the sending state’s disciplinary, vis-

itation, classification, and grooming policies. See Vigue v.

Underwood, 139 SW3d 168, 171-72 (Ky Ct App 2004) (con-

cluding that ICC does not require application of disciplinary

rules of sending state); Daye v. State, 171 Vt 475, 481-82, 769

A2d 630 (2000) (same); Glick v. Holden, 889 P2d 1389, 1392-

93 (Utah Ct App 1995) (same).

454 Barrett v. Peters

We need not decide, in this case, whether we agree

with those holdings. In this case, petitioner does not allege

that he is entitled to have the state of Florida apply Oregon

disciplinary rules or policies; rather, he alleges that the

conditions under which he is confined in Florida violate

his rights under the state and federal constitutions. As the

Court of Appeals correctly explained in its opinion regard-

ing petitioner’s first petition, “the issue in this case is not

whether the ICC require[s] [the receiving state] to adhere

to Oregon’s policies or to comply with Oregon’s constitutional

standards; the issue is whether [petitioner] lost the right to

be incarcerated under conditions that comply with Oregon

constitutional standards, by virtue of his transfer to [the

receiving state].” Barrett v. Peters, 274 Or App 237 at 244

(emphasis in original). The answer to that question is “no.”

The second sentence of ORS 421.245, Article IV, section 5,

specifically provides that the fact of confinement in a receiv-

ing state “shall not deprive any inmate so confined of any

legal rights which said inmate would have had if confined in

an appropriate institution of the sending state.” Even if that

sentence does not grant an inmate the right to have partic-

ular administrative rules of the sending state apply in the

receiving state, it at least guarantees that the transferred

inmate will retain, and not lose, constitutional rights. See

Johnson v. State, 442 A2d 1362, 1367 (Del 1982) (“a legiti-

mate and reasonable basis for transferring an inmate does

not justify the denial to him of an opportunity to exercise a

constitutional right”); In re Sheryl S., 1991 WL 61396, at *2

(Conn Super Ct Apr 12, 1991) (transferred inmate retains

constitutional right to be present at hearings on petition of

juvenile neglect).

That the Oregon legislature did not intend the ICC

to deprive transferred inmates of their constitutional rights

is a proposition supported not only by the text of that stat-

ute, but also by its legislative history. See State v. Gaines,

346 Or 160, 171, 206 P3d 1042 (2009) (holding legisla-

tive intent is interpreted by examining text, context, and

any helpful legislative history). When the ICC was before

the House Judiciary Committee in 1979, Representative

Lombard asked Committee Counsel whether, in the event

that the sending state had a provision or legal right that

Cite as 360 Or 445 (2016) 455

the receiving state did not have, the receiving state would

be required to provide those rights to transferred inmates.

Tape Recording, House Committee on Judiciary, HB 2070,

Feb 2, 1979, Tape 6, Side 1 (comments of Rep Kip Lombard).

Committee Counsel responded that the “bill states that

they maintain their legal rights.” Id. (comments of Dennis

Bromka). Later, Chairman Gardner asked a representative

of the Oregon Corrections Division whether correctional

facilities would scrutinize the prisoners to be exchanged to

avoid conflicts between the rules of the sending and receiv-

ing states. Id. (comments of Chairman James Gardner).

The Corrections representative responded that they would

and added that “the key thing to remember” was that “most

of these transfers are voluntary in nature and most of the

prisoners want to be closer to their families.” Id. (comments

of Thomas Toombs). It does not appear that the legislature

intended that inmates transferred under the ICC would

be required to endure treatment that violated the Oregon

Constitution.

Thus, even if the ICC does not grant a transferred

inmate the right to conditions of confinement that accord

with Oregon statutory or administrative standards, a ques-

tion that we do not decide, the ICC does not deprive a trans-

ferred inmate of the right to conditions of confinement that

accord with constitutional requirements. Relatedly, the fact

that the ICC permits a transferred inmate to challenge the

violation of constitutional rights does not make an inmate’s

constitutional challenge a statutory claim.5 We conclude

that a transferred inmate retains the right to challenge

unconstitutional conditions in a habeas proceeding, and we

reject the state’s argument that such a right is a statutory

right.

We turn next to the state’s arguments that the

Oregon Constitution does not apply outside of Oregon and

that the conditions of confinement imposed by Florida offi-

cials do not constitute Oregon state action. Those arguments

indicate a misunderstanding of the nature of petitioner’s

5

Although, as the Court of Appeals noted, petitioner’s claim that the terms

and conditions of his confinement violate RLUIPA may be a statutory claim,

Barrett v. Peters, 274 Or App 237 at 242 n 8, we do not address that question. The

state did not raise it in the trial court or in the Court of Appeals. Id.

456 Barrett v. Peters

claims. Petitioner alleges state action by Oregon officials in

Oregon; he alleges that the state continues to confine peti-

tioner in Florida with knowledge of the terms and conditions

of his confinement there. Even if the Oregon Constitution

does not apply in Florida, and even if Oregon has no direct

control over the conditions of petitioner’s confinement in

Florida, the Oregon Constitution does apply in Oregon and

Oregon has direct control over petitioner’s placement in a

Florida facility.6 ORS 421.245, Article IV, section 3, pro-

vides that inmates transferred under ICC “shall at all time

be subject to the jurisdiction of the sending state and may

at any time be removed therefrom.” If Oregon officials are

knowingly confining petitioner in a facility where his state

or federal constitutional rights are being violated, those offi-

cials are engaging in state action that is subject to challenge

in a habeas proceeding in Oregon.

6

Petitioner also argues that the Oregon Constitution applies to Florida offi-

cials who act as agents of the State of Oregon in Florida in setting the terms and

conditions of petitioner’s confinement. Petitioner first notes that Oregon constitu-

tional rights are individual rights vis-à-vis the government that may be violated

no matter where the violation occurs. See State v. Davis, 313 Or 246, 253-54, 834

P2d 1008 (1992) (acts of Mississippi officers and Oregon officers in arresting and

questioning defendant in Mississippi subject to Oregon constitutional challenge).

Secondly, petitioner argues that the acts of Oregon employees or agents can con-

stitute Oregon state action. See State v. Tucker, 330 Or 85, 90, 997 P2d 182 (2000)

(private tow truck operator acting at request of officer must act within bounds of

Oregon Constitution); State v. Sines, 359 Or 41, 51-52, 379 P3d 502 (2016) (private

individuals acting as agents of the state engage in state action for purposes of

Article I, section 9).

The problem with petitioner’s argument in this case, however, is that the par-

ties dispute whether Florida officials are acting as Oregon’s agents in setting the

terms and conditions of petitioner’s confinement. Petitioner argues that the ICC

makes receiving states the agents of sending states for all purposes and points

to the provisions of the ICC that provide that when Oregon officials transfer an

inmate to another state, the receiving state acts “solely as agent for the sending

state.” ORS 421.245, Art IV, § 1. In addition, petitioner contends that the ICC

grants Oregon officials, among other things, “access, at all reasonable times,”

to the out-of-state institution, id. at § 2; the right, “at any time,” to remove the

inmate from the receiving state, id. at § 3; the authority to authorize and conduct

hearings to which the inmate is entitled by the laws of Oregon, id. at § 6; and the

authority to receive regular reports from the receiving state in order to review

the inmate’s records, id. at § 4. In contrast, the state contends that, under the

ICC, the receiving state controls day-to-day conditions of confinement, including

discipline, and cites ORS 421.425, Article IV, section 5, for that proposition. ORS

421.425, Art IV, § 5 (receiving state will treat inmate in “reasonable and humane

manner” and “equally with” other inmates); Daye, 171 Vt at 481; Glick, 889 P2d at

1393. Because we decide this case on an alternative ground, we need not resolve

that dispute.

Cite as 360 Or 445 (2016) 457

C.  The Director of ODOC is a proper defendant.

The final question on review is whether the Director

of ODOC is a proper defendant in a petition for a writ of

habeas corpus by an inmate held out of state pursuant to

the ICC. The state contends that the director is not a proper

defendant because she is not petitioner’s physical custodian,

and because she does not control the day-to-day conditions

of petitioner’s confinement in Florida. Petitioner argues that

the director is the “officer or person by whom [petitioner]

is imprisoned or restrained,” and that she is therefore an

appropriate defendant under the habeas statutes. ORS

34.360. For the following reasons, we agree with petitioner.

ORS 34.362 provides that a petition for a writ of

habeas corpus must “[c]omply with [the] requirements of

ORS 34.360(1), (3), (4), and (5)[.]” ORS 34.360(1) specifies

that the petition must state the “officer or person by whom

the party is imprisoned or restrained.” That individual is the

appropriate defendant in a habeas proceeding, whether he

or she has physical, or only constructive, custody of the peti-

tioner. That interpretation of the habeas statute is consis-

tent with our holding in Anderson. 212 Or at 6. In that case,

we acknowledged that “ordinarily,” a habeas claim “must

be against the one having physical custody of the plaintiff.”

Id. at 5. Even so, we concluded that, despite the plaintiff’s

transfer from the jail to the penitentiary, the plaintiff had

appropriately named the sheriff as the defendant in his peti-

tion because, “for the purpose of [the] proceeding[,] plaintiff

remain[ed] constructively in the custody of the sheriff pend-

ing determination of the appeal.” Id. at 6.

Transfer out of state pursuant to the ICC is another

circumstance in which the legal or constructive custodian

is the proper defendant in a petition for habeas relief. The

transferred inmate remains “subject to the jurisdiction of

the sending state.” ORS 421.245, Art IV, § 3. At any time,

the sending state may remove the transferred inmate from

the receiving state. Id. Thus, although a transferred inmate

is in the physical custody of the receiving state, the sending

state retains sole authority to remove petitioner from the

conditions about which he complains. As Church explains in

his Treatise on the Writ of Habeas Corpus, the writ of habeas

458 Barrett v. Peters

corpus “is directed to a person detaining another, command-

ing him to produce the body of the person detained.” William

S. Church, A Treatise on the Writ of Habeas Corpus § 87, 137

(2d ed 1893). Historically, the person physically detaining

the inmate was the proper defendant, because that person

alone had the authority to “bring [the detainee] before the

judge to explain and justify, if he could, the fact of impris-

onment.” Id. §  88 at 140. In this case, that person is the

Director of ODOC, despite the fact that she does not have

physical custody of petitioner, and we conclude that peti-

tioner properly named her as the defendant in his petitions.

Lastly, we address the state’s argument that the

director is not the proper defendant because she lacks con-

trol over the conditions about which petitioner complains.

Just as it did in making its argument that petitioner failed to

allege a cognizable violation of his constitutional rights, the

state misses the thrust of petitioner’s argument. Petitioner’s

argument is not that he is entitled to habeas relief because

the Florida prison has different policies and programming

than Oregon prisons. His argument, instead, is that the

rules and institutional policies in place in the Florida prison

give rise to violations of the state and federal constitutional

rights to which he remains entitled. Although the state may

be correct that the director has no authority to control the

conditions of confinement in out-of-state prisons, a question

that we do not decide, we do not agree that the director lacks

the ability to remedy petitioner’s constitutional complaints.

The director retains the right to remove petitioner from the

receiving state and return him to Oregon, or, alternatively,

to transfer petitioner to a state that is also party to the ICC

but whose institutional rules and policies will not give rise

to constitutional violations. In that respect, the director

does control the conditions of petitioner’s confinement. But,

regardless, the defendant in a habeas proceeding need not

have direct control over the immediate, allegedly uncon-

stitutional, conditions of confinement; the defendant need

only have a custodial relationship with the petitioner. ORS

34.360(1).

In summary, we conclude that (1) inmates incarcer-

ated outside of Oregon as the result of transfer under the

ICC, ORS 421.245, are permitted to file claims for habeas

Cite as 360 Or 445 (2016) 459

corpus in Oregon; (2) petitioner alleged cognizable violations

of the state and federal constitutions; and (3) the Director of

ODOC is the proper defendant in petitioner’s habeas peti-

tions. Those conclusions require that we remand to the cir-

cuit court for further proceedings.

The decisions of the Court of Appeals are affirmed.

The judgments of the circuit court are reversed, and the cases

are remanded to the circuit court for further proceedings.