Demos v. US Secretary of Defense

Filing 4

MEMORANDUM ORDER - dismissing re 2 Petition for Writ of Habeas Corpus relief under 28 U.S.C. 2241 filed by John Robert Demos, Jr. (CASE CLOSED). Signed by Judge Sue L. Robinson on 9/19/13. (rwc)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

JOHN ROBERT DEMOS,

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Petitioner,
v.

UNITED STATES SECRETARY
OF DEFENSE,
Respondent.

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) Civ. No. 13-50-SLR
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MEMORANDUM ORDER
At Wilmington this

I~ day of September, 2013, having reviewed the

above captioned case pursuant to Rule 4,28 U.S.C. foil. § 2254;
IT IS ORDERED that petitioner John Robert Demos' ("petitioner") pro se motion
for habeas corpus relief under 28 U.S.C. § 2241 (0.1. 2) is DISMISSED for lack of
jurisdiction, for the reasons that follow:
1. Background. Petitioner is presently confined at Clallam Bay Correction
Center in Clallam Bay, Washington. (0.1. 2 at 1) Petitioner is challenging his June
1978 conviction in the Kings County Superior Court of Seattle, Washington for first
degree burglary and attempted rape. He is serving a life sentence for those crimes.

(0.1. 2 at 2) As noted by the United States District Court for the District of
Massachusetts, "the PACER records reveal that [petitioner] has filed at least 130 other
habeas applications in courts throughout the United States. See Demos v. United
States Secretary of Defense, 2013 WL 80167 (D.Mass. Jan. 3,2013).
2. Although not entirely clear, petitioner's instant § 2241 motion appears to
allege that (1) the state court in which he was tried and convicted was actually a military

court; (2) the court lacked in personam and subject matter jurisdiction over his case
because he is a civilian, not a soldier; (3) his right to be protected against double
jeopardy has been violated; (4) the government engaged in vindictive prosecution; and
(5) there was insufficient evidence to sustain his conviction.

3. Standard of Review. A district court judge may summarily dismiss a request
for habeas relief if it plainly appears from the face of the motion and any exhibits
annexed to it that the petitioner is not entitled to relief. See Rules 1 and 4, 28 U.S.C.
foil. § 2254 (Rule 4, which authorizes summary dismissal of § 2254 petitions, is
applicable to § 2241 petitions under Rule 1(b)). Federal district courts may only grant
petitions for writs of habeas corpus "within their respective jurisdictions." 28 U.S.C. §
2241 (a). The Supreme Court has interpreted this phrase to require "nothing more than
that the court issuing the writ have jurisdiction over the custodian" of the petitioner. See
Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-95 (1973) ("The writ
... does not act upon the prisoner who seeks relief, but upon the person who holds him
in what is alleged to be unlawful custody."). Thus, a state prisoner challenging the
constitutionality or legality of his custody that is the result of a state court judgment of
conviction must file a petition for the writ of habeas corpus pursuant to 28 U.S.C. §
2254 in a judicial district which can acquire in personam jurisdiction over the petitioner's
warden or custodian. See Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004). In turn, a
state prisoner challenging his present physical confinement that is not the result of a
state court conviction (e.g., pre-trial detention) must file a 28 U.S.C. § 2241 petition in
the district of confinement, because that is where the person with immediate custody of
the petitioner (Le., the warden) is located. See id. at 435,442.

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4. Discussion.

Petitioner's current incarceration is not the result of a judgment

of conviction issued in the State of Delaware. Moreover, petitioner is presently confined
in the State of Washington, and this court is located in the State of Delaware. Thus,
whether petitioner's instant habeas request is construed as a challenge to his
underlying conviction or as a challenge to his present physical confinement, it is clear
that this court cannot consider his § 2241 motion because it does not have jurisdiction
over his custodian. Accordingly, summary dismissal of petitioner's § 2241 motion is
appropriate.
5. Additionally, given petitioner's extensive and frivolous litigation history, the
court declines to transfer the case to the Western District of Washington because such
a transfer would not be in "furtherance of justice." 28 U.S.C. § 2241 (d); 28 U.S.C.

§ 1631.
6. The court declines to issue a certificate of appealability. See 28 U.S.C. §
22S3(c)(2); United States v. Eyer, 113 F.3d 470 (3d Cir. 1997); 3rd Cir. LAR 22.2
(2011).
IT IS FURTHER ORDERED that petitioner's motion for leave to proceed in forma
pauperis (0.1. 2) is GRANTED for the limited purpose of issuing this memorandum
order.
IT IS FURTHER ORDERED that the clerk of the court shall close the case and
mail a copy of this memorandum order to petitioner at his address of record.

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