Petitioner appeals the dismissal of his petition for a writ of habeas corpus. At oral argument, petitioner’s counsel advised us that petitioner is no longer in defendant’s custody. Given that fact, any order requiring defendant to deliver petitioner to the court or release him would be futile. This appeal, therefore, must be dismissed. Rahm v. Keeney, 83 Or App 266, 730 P2d 1297 (1986).

Appeal dismissed.