FILED: June 9, 2004

IN THE COURT OF APPEALS OF THE STATE OF OREGON

DAVID DURHAM,

Appellant,

v.

JOAN PALMATEER,
Superintendent,
Oregon State Penitentiary,

Respondent.

00C18480; A113423

Appeal from Circuit Court, Marion County.

Joseph C. Guimond, Judge.

Submitted on record and briefs April 14, 2004.

George W. Kelly filed the briefs for appellants.

Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Kelly Knivila, Assistant Attorney General, filed the brief for respondent. Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Kathleen Cegla, Assistant Attorney General, filed the supplemental brief.

Before Landau, Presiding Judge, and Armstrong and Brewer, Judges.

PER CURIAM

Appeal dismissed.

PER CURIAM

In 1984, plaintiff was convicted of, and sentenced for, murder, felon in possession of a weapon, and burglary in the first degree. In 1992, the Board of Parole and Post-Prison Supervision (board) issued an order establishing plaintiff's projected parole release date according to the procedures and standards set out in ORS 144.079, which was enacted after plaintiff committed his crimes. On judicial review, this court affirmed without opinion, Durham v. Board of Parole, 126 Or App 175, 868 P2d 1372 (1994), and the Supreme Court denied review, Durham v. Board of Parole, 319 Or 149, 877 P2d 86 (1994).

Plaintiff then sought a writ of habeas corpus, asserting that, under Nulph v. Faatz, 27 F3d 451 (9th Cir 1994)--decided after the board issued its 1992 order--he is entitled to a determination of his parole release date under the law as it existed at the time he committed his crimes. The trial court dismissed the writ.

Plaintiff appeals, again contending that the board erred by determining his parole release date under ORS 144.079. Pursuant to ORAP 8.45, the state has notified the court that the board has now recalculated plaintiff's parole release date pursuant to the law in effect at the time he committed his crimes. Because recalculation of his parole release date in that manner was the only relief that plaintiff sought, we conclude that the case is moot.

Appeal dismissed.


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