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Demos v. State

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


June 23, 2010

JOHN ROBERT DEMOS, JR, PETITIONER,
v.
STATE OF WASHINGTON, ET AL., RESPONDENTS.

The opinion of the court was delivered by: J. Phil Gilbert U. S. District Judge

MEMORANDUM AND ORDER

GILBERT, District Judge

Petitioner John Robert Demos, Jr., currently an inmate at the Stafford Creek Correctional Center located in Aberdeen, Washington*fn1 filed an action concerning his Washington State conviction. He also filed a motion to proceed in forma pauperis (Doc. 2) pursuant to 28 U.S.C. § 1915.

Petitioner styled his action as one "to take supervisory control." He contended that there is a split in the circuit courts concerning the issue of when the Speedy Trial Act commences. For relief, Petitioner sought to "certify this issue to the U.S. Supreme Court to prevent a grave miscarriage of justice." It was unclear whether the Court should characterize this action as one arising under 28 U.S.C. § 2254 or one seeking relief under 42 U.S.C. § 1983. Regardless of how the Court characterized the action, however, the undersigned determined that it should be dismissed.

To the extent Petitioner sought habeas relief, the action was dismissed because this Court lacked subject matter jurisdiction to entertain it. Neither Petitioner nor his immediate custodian are located in this district. See 28 U.S.C. § 2241(a) (writs of habeas corpus may be granted by district courts within their respective jurisdiction); see also Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004) (usually, the named custodian must reside in the geographical confines of the federal district where the habeas petition is filed).

To the extent Petitioner sought relief under § 1983, this Court determined that he was barred from proceeding in forma pauperis under the "three strikes" provision of 28 U.S.C. § 1915(g). A review of court records on the U.S. PACER Case Locator, Civil Party Search, revealed that Plaintiff, while incarcerated, had filed hundreds of civil actions with courts located throughout the United States. Several of these counted as "strikes" for purposes of 28 U.S.C. § 1915(g).*fn2 Furthermore, the allegations of the complaint did not indicate that Plaintiff wass under "imminent danger of serious physical injury." 28 U.S.C. § 1015(g).

Plaintiff filed "a notice of appeal or, in the alternative, a request for a Certificate of Appealability" (Doc. 5). To the extent Petitioner seeks habeas relief, he may not proceed on appeal without a certificate of appealability. 28 U.S.C. § 2253(c)(1). Title 28 U.S.C. § 2253(c)(2) provides that a certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." Further, § 2253(c)(3) provides: "The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2)."

The Court finds that Petitioner has not made "a substantial showing of the denial of a constitutional right." Accordingly, construing the notice of appeal as a motion for a certificate of appealability, the motion for a certificate of appealability is DENIED.

Additionally, with respect to Plaintiff's § 1983 claims, the Court notes that Petitioner has not paid the full appellate filing fees nor filed a motion to proceed in forma pauperis on appeal. Construing the notice of appeal as a motion to proceed in forma pauperis on appeal, the motion to proceed in formra pauperis on appeal is DENIED because (as noted above) Petitioner has previously acquired "three strikes" under 28 U.S.C. § 1915(g) and he is not under imminent danger of serious physical injury.

IT IS SO ORDERED.


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