FILED: July 22, 1998

IN THE COURT OF APPEALS OF THE STATE OF OREGON

ROBERT G. MERRILL,

Appellant,

v.

DAN JOHNSON, Superintendent,
Snake River Correctional Institution,

Respondent.

(97-05-28770M; CA A99905)

In Banc

Appeal from Circuit Court, Malheur County.

W. D. Cramer, Jr., Judge.

Submitted on record and briefs June 16, 1998; resubmitted in banc July 8, 1998.

Bob Pangburn filed the brief for appellant.

Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and John T. Bagg, Assistant Attorney General, filed the brief for respondent.

PER CURIAM

Affirmed.

Warren, J., dissenting.

PER CURIAM

Plaintiff, an inmate at the Snake River Correctional Institution, appeals the denial of his petition for a writ of habeas corpus. The issue that plaintiff raises is the same as the issue decided by this court in Weidner v. Armenakis, 154 Or App 12, ___ P2d ___ (1998), withdrawn by order July 13, 1998. On remand from the Supreme Court, we have withdrawn the opinion in Weidner because the case became moot while the appeal was pending. We now readopt and reaffirm our reasoning in Weidner and therefore affirm the trial court's denial of petitioner's petition for a writ of habeas corpus.

Affirmed.

WARREN, J., dissenting.

I dissent for the reasons given in my dissent in Weidner v. Armenakis, 154 Or App 12, ___ P2d ____ withdrawn by order July 7, 1998, which I now readopt.

Edmonds, Armstrong and Wollheim, JJ., join in this dissent.


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