Demos v. State of Washington

UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA JOHN ROBERT DEMOS, JR., CASE NO. C22-388 BHS Petitioner, ORDER DECLINING TO ADOPT 9 v. REPORT & RECOMMENDATION STATE OF WASHINGTON, 11 Respondent.

13 This matter comes before the Court on the Report and Recommendation (“R&R”) of the Honorable David W. Christel, United States Magistrate Judge, Dkt. 2, and Petitioner’s objections to the R&R, Dkt. 3.

16 In March 2022, Petitioner, a bar-ordered litigant, filed a motion for leave to proceed in forma pauperis (“IFP”) and an application to file a successive petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Dkts. 1, 1-1. On April 4, 2022, Judge Christel issued the instant R&R, recommending that the Court dismiss the case without prejudice because Petitioner did not move the appropriate court of appeals for an order authorizing the district court to consider his successive petition. Dkt. 2. The R&R further recommends that a certificate of appealability be denied. Id. Petitioner objects, arguing that when a second or successive habeas petition is mistakenly submitted to the district court, the Ninth Circuit rules requires the district court to refer it to the court of appeals.

3 Dkt. 3.

4 The district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3).

8 The R&R is correct that a district court does not have jurisdiction to consider a second or successive petition absent authorization from the court of appeals. Burton v. 10 Stewart, 549 U.S. 147, 152 (2007) (per curiam). But the Ninth Circuit Rules dictate that “[i]f an application for authorization to file a second or successive section 2254 petition or section 2255 motion is mistakenly submitted to the district court, the district court shall refer it to the court of appeals.” 9th Cir. R. 22-3(a). The Court will therefore refer Petitioner’s motion to the Ninth Circuit under this Rule.

15 The Court having considered the R&R, Petitioner’s objections, and the remaining record, does hereby find and order as follows: 17 (1) The Court DECLINES to adopt the R&R; 18 (2) Petitioner’s motion to proceed in forma pauperis, Dkt. 1, and application 19 for leave to file second or successive petition under 28 U.S.C. § 2254, Dkt.

20 1-1, are REFERRED to the Ninth Circuit Court of Appeals; 21 (3) This case is DISMISSED without prejudice; and \\ 1 (4) The Clerk shall close this case and transfer all documents to the Ninth 2 Circuit Court of Appeals.

3 Dated this 3rd day of May, 2022.

A BENJAMIN H. SETTLE United States District Judge