Opinion
Case No. C20-0606-RSL-MAT
04-30-2020
JOHN ROBERT DEMOS JR, Petitioner, v. DONALD R HOLBROOK, Respondent.
REPORT AND RECOMMENDATION
Bar-order litigant John Demos, a state prisoner who is currently incarcerated at the Washington State Penitentiary in Walla Walla, Washington, has filed an application to proceed in forma pauperis with a proposed 28 U.S.C. § 2241 habeas petition through which he seeks immediate release in light of the COVID-19 pandemic. Dkt. 1.
The Court recommends that this action be dismissed without prejudice. Section 2241 provides the authority for granting habeas relief to a person "who is not in custody pursuant to a state court judgment" but, rather, who is in custody for some other reason, such as pretrial detention or awaiting extradition. White v. Lambert, 370 F.3d 1002, 1006 (9th Cir. 2004), overruled on other grounds by Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc); see also Stow v. Murashige, 389 F.3d 880, 886 (9th Cir. 2004); McNeely v. Blanas, 336 F.3d 822, 824 & n. 1 (9th Cir. 2003). In contrast, when a prisoner is in custody pursuant to a state court judgment, 28 U.S.C. § 2254 constitutes his only habeas remedy for any challenge to his detention, regardless of the nature of such a challenge. White, 370 F.3d at 1009-10. Because it is apparent from petitioner's submissions that he is in custody pursuant to a state court judgment, this action cannot proceed under § 2241.
Petitioner should not be granted leave to file an amended petition under § 2254. An Order of this Court provides for the return without filing of any petition by petitioner that seeks an extraordinary writ pursuant to 28 U.S.C. §§ 1651, 2253 or 2254, unless accompanied by the filing fee. See Demos v. Stanley, MC97-0031-JLW (W.D. Wash. Mar. 13, 1997). Petitioner has not paid the filing fee. Moreover, petitioner may not proceed with a second or successive habeas petition here unless and until the Ninth Circuit authorizes its filing, which it has not done. See 28 U.S.C. § 2244(b)(3)(A).
For these reasons, the Court recommends that this action be DISMISSED without prejudice and that petitioner's application to proceed in forma pauperis, Dkt. 1, be DENIED as moot. A proposed order accompanies this Report and Recommendation.
Objections to this Report and Recommendation, if any, should be filed with the Clerk and served upon all parties to this suit within twenty-one (21) days of the date on which this Report and Recommendation is signed. Failure to file objections within the specified time may affect your right to appeal. Objections should be noted for consideration on the District Judge's motions calendar for the third Friday after they are filed. Responses to objections may be filed within fourteen (14) days after service of objections. If no timely objections are filed, the matter will be ready for consideration by the District Judge on May 22 , 2020 . / / /
Dated this 30th day of April, 2020.
/s/_________
Mary Alice Theiler
United States Magistrate Judge