Demos v. United States of America

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA JOHN ROBERT DEMOS, JR., CASE NO. 2:22-cv-00768-DGE Petitioner, ORDER ADOPTING THE REPORT 12 v. AND RECOMMENDATION (DKT.

NO. 5) 13 UNITED STATES OF AMERICA et al., 14 Respondent.

16 This matter comes before the Court on the Report and Recommendation (“R&R”) of the Honorable J. Richard Creatura, United States Magistrate Judge. (Dkt. No. 5.) Having reviewed the R&R and Petitioner’s Objections (Dkt. No. 6), the Court enters the following Order.

19 I. DISCUSSION 20 Petitioner John Demos, Jr., a state prisoner, filed what the Clerk construed as a Proposed Petition for Writ of Habeas Corpus on June 2, 2022. (Dkt. No. 1.) Petitioner subsequently filed two applications to proceed in forma pauperis indicating he would like to file a petition for writ of habeas corpus under 28 U.S.C. § 2254. (Dkt. Nos. 3, 4.) As the initial filing was difficult to understand, the R&R concluded that Petitioner’s filing should be construed as a petition for a writ of habeas corpus. (Dkt. No. 5 at 1) (citing Dkt. No. 3 at 1.)

3 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). The Court has carefully considered Petitioner’s Objections to the R&R. (Dkt. No. 6.) Petitioner 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 filing is properly construed as a petition for a writ of habeas corpus.

11 Therefore, Petitioner improperly filed his § 2254 petition because he did not pay the filing fee.

12 II. CONCLUSION 13 For the foregoing reasons, the Court ORDERS: 14 (1) The Court adopts the Report and Recommendation (Dkt. No. 5).

15 (2) Petitioner’s federal habeas matter is administratively closed.

16 (3) A certificate of appealability is denied in this case.

17 (4) The Clerk is directed to send a copy of this Order to Judge Creatura.

18 Dated this 21st day of July 2022.

A David G. Estudillo 21 U nited States District Judge