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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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 JOHN ROBERT DEMOS, Petitioner, 5 6 7 8 9 No. C 13-0017 CW (PR) ORDER OF DISMISSAL v. U.S. SECRETARY OF DEFENSE, Respondent. ________________________________/ 10 United States District Court For the Northern District of California Petitioner, a state prisoner incarcerated at the Clallam Bay 11 Correctional Center in Washington, has filed a pro se petition for 12 13 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 14 allegations in the petition, Petitioner was convicted of state 15 charges of robbery and assault in Yakima County Superior Court, 16 Washington, in 1974 and sentenced to twenty years in state prison. 17 Additionally, he was tried and found guilty under the Uniform 18 Military Code of Justice in two different United States Military 19 courts in 1974 and 1978, and was sentenced to serve his time in a 20 Washington state prison. 21 Superior Court, Washington, of a crime for which he was sentenced 22 to life in prison. 23 Further, he was convicted in King County In the present petition, Petitioner claims that his retention 24 in state prison for the violation of military law is unlawful. As 25 noted, Petitioner apparently is attempting to bring this petition 26 pursuant to both 28 U.S.C. § 2241 and 28 U.S.C. § 2254. 27 this Court does not have jurisdiction over the petition under 28 either statute. However, 1 Under 28 U.S.C. § 2241, a federal court has the authority to 2 entertain a petition for a writ of habeas corpus brought by a 3 petitioner who is within the court’s jurisdiction at the time the 4 petition is filed. 5 542 U.S. 426, 442 (2004) (“District courts are limited to granting 6 habeas relief ‘within their respective jurisdictions.’” (quoting 7 28 U.S.C. § 2241(a)). 8 9 United States District Court For the Northern District of California 10 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 11 California. Thus, the Court does not have jurisdiction over the 12 petition. In its discretion, the Court could transfer the 13 petition to the district court in Washington: 14 15 16 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 . . . . 17 18 28 U.S.C. § 1631. The Court is aware, however, that Petitioner is 19 a frequent filer in numerous courts across the country, and that 20 he recently has filed several other habeas petitions challenging 21 his conviction. 22 al., Case No. 1:12-cv-12398-PBS (D. Mass.) (filed Dec. 27, 2012); 23 Demos v. U.S. Secretary of Defense, et al., Case No. 2:12-cv- 24 07203-SD (E.D. Pa.) (filed Dec. 26, 2012); Demos v. Holder, et 25 al., Case No. 1:12-cv-03715-CCB (D. Md.) (filed Dec. 18, 2012). 26 Further, he currently has pending in the Western District of 27 Washington a § 2241 petition that has been construed as a § 2254 28 habeas petition because he is a state prisoner. See, e.g., Demos v. U.S. Secretary of Defense, et 2 See Demos v. 1 Holder, et al., Case No. 2:12-cv-02137-JCC (W.D. Wa.) (filed Dec. 2 10, 2012). 3 Based on the above, the Court finds that it is not in the 4 interest of justice to transfer the petition. 5 petition is DENIED without prejudice and is DISMISSED for lack of 6 jurisdiction. 7 8 9 United States District Court For the Northern District of California 10 11 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 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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