Demos v. State of Washington

5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT TACOMA 7 JOHN ROBERT DEMOS, JR., 8 Plaintiff, C22-102 TSZ 9 v. ORDER 10 STATE OF WASHINGTON, 11 Defendant.

THIS MATTER comes before the Court on the Report and Recommendation (“R&R”) of the Honorable J. Richard Creatura, United States Magistrate Judge, docket no. 2. Having reviewed the R&R and Petitioner’s objections, docket no. 3, the Court enters the following Order.

Discussion Petitioner John Demos, Jr., a state prisoner, filed a motion for leave to proceed in forma pauperis (“IFP”), docket no. 1, and a proposed “petition for a writ of certiorari,” docket no. 1-1. Although the Clerk docketed the petition as a proposed complaint under 42 U.S.C. § 1983, Petitioner challenges only the validity of his state conviction. See Docket no. 1-1. The R&R concludes that docket no. 1-1 must be construed as a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Docket no. 2 at 2. Petitioner is under pre-filing bar orders in multiple courts, including this Court. See, e.g., Demos v. Storrie, 507 U.S. 290, 290–91 (1993). An Order of this Court provides for the return without filing of any petition that seeks an extraordinary writ pursuant to 28 U.S.C. §§ 1651, 2253 or 2254, unless accompanied by the requisite filing fee. See Demos v. Stanley, MC97-0031-JLW (W.D. Wash. Mar. 13, 1997).

7 The Court has carefully considered Petitioner’s objections to the R&R, docket no. 3. Petitioner challenges the constitutionality of the pre-filing bar order, but he does not contest the R&R’s conclusion that he seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court agrees with the R&R that Petitioner’s purported complaint is properly construed as a petition for a writ of habeas corpus. Therefore, Petitioner improperly filed his § 2254 petition because he did not pay the filing fee.

13 Conclusion 14 For the foregoing reasons, the Court ORDERS: 15 (1) The Report and Recommendation, docket no. 2, is ADOPTED. The proposed petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, docket no. 1- 1, is DISMISSED without prejudice.

18 (2) Petitioner’s motion to proceed IFP, docket no. 1, is DENIED as moot.

19 (3) A certificate of appealability is DENIED.

20 (4) The Clerk is directed to CLOSE this case and to send a copy of this Order to all counsel of record, to petitioner pro se, and to Judge Creatura.

1 IT IS SO ORDERED.

2 Dated this 9th day of March, 2022.

3 A 4 Thomas S. Zilly United States District Judge