Demos v. Montana Department of Corrections

Filing 3

FINDINGS AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by John Robert Demos. The Petition should be DISMISSED, a certificate of appealability should be DENIED, and the Court should CERTIFY that any appeal would not be taken in good faith. Objections to F&R due by 1/22/2010. Signed by Magistrate Carolyn S Ostby on 1/5/2010. Copy mailed to Demos. (TAG, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BILLINGS DIVISION _____________________________________________ JOHN ROBERT DEMOS, Petitioner, vs. FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE Cause No. CV 09-169-BLG-RFC-CSO

MONTANA DEPARTMENT OF CORRECTIONS, Respondent. _____________________________________________ This matter is before the Court on a petition for writ of habeas corpus filed by Petitioner Demos, a Washington state prisoner proceeding pro se, pursuant to 28 U.S.C. § 2254. Demos did not pay the $5.00 filing fee or move to proceed in forma pauperis, but there is no need to delay resolution of this action on that basis. 28 U.S.C. § 2241(a) authorizes the federal district courts to grant writs of habeas corpus "within their respective jurisdictions." Demos asserts that "Montana is nothing more than a token for the State of
FIN D IN G S AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE / PAGE 1

Washington." Pet. (doc. 1) at 1. Montana, however, has not convicted Demos of any crime. This Court plainly lacks jurisdiction over the

petition. The action should be dismissed. Transfer to cure want of jurisdiction would not be in the interest of justice. 28 U.S.C. § 1631. Demos has filed many meritless actions in this Court. He has filed more than 530 actions in other federal district courts. U.S. Party/Case Index, http://pacer.uspci.uscourts.gov (Dec. 31, 2009). Additionally, because jurisdiction is plainly lacking, any appeal from the District Court's disposition would be taken in bad faith. For the same reason, a certificate of appealability is not warranted.

Based on the foregoing, the Court enters the following: R EC O M M E N D A T I O N 1. The Petition (doc. 1) should be DISMISSED. 2. A certificate of appealability should be DENIED. 3. The District Court should CERTIFY that any appeal from its disposition would be taken in bad faith, pursuant to Fed. R. App. P. 24(a)(4)(B). 4. The District Court should direct the Clerk to enter a judgment of
FIN D IN G S AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE / PAGE 2

dismissal. NOTICE OF RIGHT TO OBJECT TO FINDINGS & RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT Pursuant to 28 U.S.C. § 636(b)(1), Petitioner may serve and file written objections to this Findings and Recommendations within fourteen (14) calendar days of the date entered as indicated on the Notice of Electronic Filing. A district judge will make a de novo determination of those portions of the Findings and Recommendations to which objection is made. The district judge may accept, reject, or modify, in whole or in part, the Findings and Recommendations. Failure to timely file written objections may bar a de novo determination by the district judge. Petitioner must immediately file a "Notice of Change of Address" if his mailing address changes while this action remains pending in this Court. Failure to do so may result in dismissal of his case without notice to him. DATED this 5th day of January, 2010. /s/ Carolyn S. Ostby United States Magistrate Judge

FIN D IN G S AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE / PAGE 3