Demos v. U.S. Secretary of Defense

Filing 7

MEMORANDUM AND ORDER - This matter is dismissed without prejudice. A separate judgment will be entered in accordance with this Memorandum and Order. The court will not issue a certificate of appealability in this matter. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN ROBERT DEMOS,
Petitioner,
v.
U.S. SECRETARY OF DEFENSE,
Respondent.

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8:13CV12

MEMORANDUM
AND ORDER

This matter is before the court on initial review of Petitioner John Robert
Demos’s (“Petitioner”) Petition for Writ of Habeas Corpus brought pursuant to 28
U.S.C. § 2254 (“Petition”). For the reasons discussed below, his Petition will be
dismissed.
I. BACKGROUND
Petitioner alleges that his place of confinement is Clallam Bay Correctional
Center, located in Clallam Bay, Washington. Petitioner is challenging a 1978
conviction imposed by the United States Military Court. He alleges that he was held
in contempt of court because he refused to reveal top secret information about
extraterrestrials, Stone Mountain, and British nuclear capability. (Filing No. 1 at
CM/ECF pp. 4-5.)
Demos is a frequent filer, and has a long history of filing frivolous and
vexatious lawsuits. The United States District Court for the District of Massachusetts
recently noted that “Demos has filed hundreds of cases throughout the country, and
has been deemed to be an abusive litigant. He has been enjoined in a number of
courts, and is a three-strikes litigant pursuant to 28 U.S.C. § 1915(g). The PACER
records reveal that Demos has filed at least 130 other habeas petitions.” Demos v.
United States Secretary of Defense, C.A. No. 12-12398-PBS, 2013 WL 80167 (D.
Mass. Jan. 3, 2013).

II. ANALYSIS
This court does not have jurisdiction over the Petition. District courts “are
limited to granting habeas relief within their respective jurisdictions.” Rumsfeld v.
Padilla, 542 U.S. 426, 442 (2004) (quotation omitted). In a habeas proceeding, “the
proper Respondent is the warden of the facility where the prisoner is being held.” Id.
at 435. “The plain language of the habeas statute confirms the general rule that for
core habeas petitions challenging present physical confinement, jurisdiction lies in
only one district: the district of confinement.” Id. at 443.
Petitioner does not allege, nor does the record show, that the State of Nebraska
has any involvement in Petitioner’s current confinement. Petitioner challenges his
current confinement in a prison located in the State of Washington. Therefore, this
court does not have jurisdiction over his Petition. The Court, could, in its discretion,
transfer the Petition to the Western District of Washington. See 28 U.S.C. § 1631
(“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.”).
However, given Petitioner’s litigation history, and the implausible nature of his
allegations, it is not in the interest of justice to transfer the Petition. Accordingly, the
Petition will be denied and this action will be dismissed for lack of jurisdiction.
III. Certificate of Appealability
A petitioner cannot appeal an adverse ruling on his petition for writ of habeas
corpus under § 2254 unless he is granted a certificate of appealability. 28 U.S.C.
§ 2253(c)(1); Fed. R. App. P. 22(b)(1). A certificate of appealability cannot be granted
unless the petitioner “has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). To make such a showing, “[t]he petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. Daniel, 529 U.S. 473, 484 (2000).

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In this case, Demos has failed to make a substantial showing of the denial of a
constitutional right. The court is not persuaded that the issues raised in the Petition are
debatable among reasonable jurists, that a court could resolve the issues differently,
or that the issues deserve further proceedings. Accordingly, the court will not issue
a certificate of appealability in this case.
IT IS THEREFORE ORDERED that:
1.

This matter is dismissed without prejudice.

2.
A separate judgment will be entered in accordance with this
Memorandum and Order.
3.

The court will not issue a certificate of appealability in this matter.

DATED this 19th day of March, 2013.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge

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of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
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court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases
to work or directs the user to some other site does not affect the opinion of the court.

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