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Case 1:13-cv-00050-SLR Document 4 Filed 09/20/13 Page 1 of 3 PageID #: 13

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF DELAWARE


JOHN ROBERT DEMOS,

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

Case 1:13-cv-00050-SLR Document 4 Filed 09/20/13 Page 2 of 3 PageID #: 14

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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Case 1:13-cv-00050-SLR Document 4 Filed 09/20/13 Page 3 of 3 PageID #: 15

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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