Demos v. State of Washington ( 2022 )

1 2 3 4 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. 12 THIS MATTER comes before the Court on the Report and Recommendation 13 (“R&R”) of the Honorable J. Richard Creatura, United States Magistrate Judge, docket 14 no. 2. Having reviewed the R&R and Petitioner’s objections, docket no. 3, the Court 15 enters the following Order. 16 Discussion 17 Petitioner John Demos, Jr., a state prisoner, filed a motion for leave to proceed in 18 forma pauperis (“IFP”), docket no. 1, and a proposed “petition for a writ of certiorari,” 19 docket no. 1-1. Although the Clerk docketed the petition as a proposed complaint under 20 42 U.S.C. § 1983, Petitioner challenges only the validity of his state conviction. See 21 Docket no. 1-1. The R&R concludes that docket no. 1-1 must be construed as a petition 22 1 for a writ of habeas corpus under 28 U.S.C. § 2254. Docket no. 2 at 2. Petitioner is 2 under pre-filing bar orders in multiple courts, including this Court. See, e.g., Demos v. 3 Storrie, 507 U.S. 290, 290–91 (1993). An Order of this Court provides for the return 4 without filing of any petition that seeks an extraordinary writ pursuant to 28 U.S.C. 5 §§ 1651, 2253 or 2254, unless accompanied by the requisite filing fee. See Demos v. 6 Stanley, MC97-0031-JLW (W.D. Wash. Mar. 13, 1997). 7 The Court has carefully considered Petitioner’s objections to the R&R, docket 8 no. 3. Petitioner challenges the constitutionality of the pre-filing bar order, but he does 9 not contest the R&R’s conclusion that he seeks a writ of habeas corpus pursuant to 10 28 U.S.C. § 2254. The Court agrees with the R&R that Petitioner’s purported complaint 11 is properly construed as a petition for a writ of habeas corpus. Therefore, Petitioner 12 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 16 proposed petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, docket no. 1- 17 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 21 to all counsel of record, to petitioner pro se, and to Judge Creatura. 22 1 IT IS SO ORDERED. 2 Dated this 9th day of March, 2022. 3 A 4 Thomas S. Zilly United States District Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22