Demos v. Warden

Filing 5

ORDER DISMISSING CASE. This case is dismissed without prejudice to re-filing in the Eastern District of Washington. The clerk shall close the file. Signed by Judge Stefan R. Underhill on 7/30/2015.(Pollack, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JOHN ROBERT DEMOS,
Petitioner,

No. 3:15-cv-1105 (SRU)

v.
WARDEN,
Respondent.
ORDER
John Robert Demos, who is currently confined at the Washington State Penitentiary in
Walla Walla, Washington, filed this petition under 28 U.S.C. § 2254 for a writ of habeas corpus.
A writ of habeas corpus must be directed to the “custodian” of a detainee. See 28 U.S.C. § 2243
(“The writ, or order to show cause[,] shall be directed to the person having custody of the person
detained.”). The “custodian” of the detainee is the official in charge of the facility that has dayto-day control over him and can “produce the actual body.” See Yi v. Maugans, 24 F.3d 500, 507
(3d Cir. 1994); see also Guerra v. Meese, 786 F.2d 414, 416 (D.C. Cir. 1986). That custodian,
therefore, is the warden at the facility where the petitioner is confined, because a “prisoner . . . is
under the control of a warden and confined in a prison, and . . . is seeking, in a habeas corpus
action, to be released from precisely that form of confinement.” Billiteri v. United States Bd. of
Parole, 541 F.2d 938, 948 (2d Cir. 1976).
This court does not have personal jurisdiction over the warden of the Washington State
Penitentiary, because the warden of a facility in Washington cannot be served with process (and
therefore cannot be served with a writ of habeas corpus) in the state of Connecticut. No writ may
issue where there is no personal jurisdiction over the custodian. Accordingly, this case is
dismissed without prejudice to re-filing in the Eastern District of Washington.

So ordered.
Dated at Bridgeport, Connecticut, this 30th day of July 2015.

/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge

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