Demos v. U.S. Secretary of Defense

Filing 3

ORDER OF DISMISSAL. Signed by Judge Claudia Wilken on 1/8/2013. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 1/8/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JOHN ROBERT DEMOS,
Petitioner,

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No. C 13-0017 CW (PR)
ORDER OF DISMISSAL

v.
U.S. SECRETARY OF DEFENSE,
Respondent.
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United States District Court
For the Northern District of California

Petitioner, a state prisoner incarcerated at the Clallam Bay
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Correctional Center in Washington, has filed a pro se petition for
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a writ of habeas corpus which he appears to bring pursuant to both
28 U.S.C. § 2241 and 28 U.S.C. § 2254.

According to the

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allegations in the petition, Petitioner was convicted of state

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charges of robbery and assault in Yakima County Superior Court,

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Washington, in 1974 and sentenced to twenty years in state prison.

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Additionally, he was tried and found guilty under the Uniform

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Military Code of Justice in two different United States Military

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courts in 1974 and 1978, and was sentenced to serve his time in a

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Washington state prison.

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Superior Court, Washington, of a crime for which he was sentenced

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to life in prison.

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Further, he was convicted in King County

In the present petition, Petitioner claims that his retention

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in state prison for the violation of military law is unlawful.

As

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noted, Petitioner apparently is attempting to bring this petition

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pursuant to both 28 U.S.C. § 2241 and 28 U.S.C. § 2254.

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this Court does not have jurisdiction over the petition under

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either statute.

However,

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Under 28 U.S.C. § 2241, a federal court has the authority to

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entertain a petition for a writ of habeas corpus brought by a

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petitioner who is within the court’s jurisdiction at the time the

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petition is filed.

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542 U.S. 426, 442 (2004) (“District courts are limited to granting

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habeas relief ‘within their respective jurisdictions.’” (quoting

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28 U.S.C. § 2241(a)).

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United States District Court
For the Northern District of California

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See 28 U.S.C. § 2241(a); Rumsfeld v. Padilla,

A federal petition for a writ of habeas

corpus made by a person in custody under the judgment and sentence
of a state court is properly filed in either the district of
confinement or the district of conviction.

28 U.S.C. § 2241(d).

Here, Petitioner neither was convicted nor is confined in
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California.

Thus, the Court does not have jurisdiction over the

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petition.

In its discretion, the Court could transfer the

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petition to the district court in Washington:
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Whenever a civil action is filed in a court . . . and
that court finds that there is a want of jurisdiction,
the court shall, if it is in the interest of justice,
transfer such action . . . to any other such court in
which the action could have been brought . . . .

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28 U.S.C. § 1631.

The Court is aware, however, that Petitioner is

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a frequent filer in numerous courts across the country, and that

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he recently has filed several other habeas petitions challenging

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his conviction.

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al., Case No. 1:12-cv-12398-PBS (D. Mass.) (filed Dec. 27, 2012);

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Demos v. U.S. Secretary of Defense, et al., Case No. 2:12-cv-

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07203-SD (E.D. Pa.) (filed Dec. 26, 2012); Demos v. Holder, et

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al., Case No. 1:12-cv-03715-CCB (D. Md.) (filed Dec. 18, 2012).

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Further, he currently has pending in the Western District of

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Washington a § 2241 petition that has been construed as a § 2254

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habeas petition because he is a state prisoner.

See, e.g., Demos v. U.S. Secretary of Defense, et

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See Demos v.

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Holder, et al., Case No. 2:12-cv-02137-JCC (W.D. Wa.) (filed Dec.

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10, 2012).

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Based on the above, the Court finds that it is not in the

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interest of justice to transfer the petition.

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petition is DENIED without prejudice and is DISMISSED for lack of

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jurisdiction.

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United States District Court
For the Northern District of California

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Accordingly, the

The Clerk of the Court shall terminate all pending motions in
the present action, enter judgment and close the file.
IT IS SO ORDERED.
Dated:

1/8/2013
CLAUDIA WILKEN
United States District Judge

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