Opinion
CASE NO. 3:18-CV-05830-BHS-DWC
10-18-2018
JOHN ROBERT DEMOS, Petitioner, v. STATE OF WASHINGTON, Respondent.
REPORT AND RECOMMENDATION Noting Date: November 2, 2018
Petitioner John Demos, a bar-order litigant, has filed an application to proceed in forma pauperis with a proposed 28 U.S.C. § 2241 habeas petition. Dkt. 1. Although Petitioner purports to proceed under § 2241, his petition challenges his state court conviction and therefore the proper basis for his habeas relief is 28 U.S.C. § 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).
As Petitioner has submitted no filing fee, the Court recommends that, pursuant to the Court's Order of March 13, 1997, the Clerk be directed to administratively close this matter. Moreover, Petitioner may not proceed with a second or successive habeas petition here unless and until the Ninth Circuit authorizes its filing. See 28 U.S.C. § 2244(b)(3)(A). A proposed Order is attached.
Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge. See 28 U.S.C. § 636(b)(1)(C). Accommodating the time limit imposed by Fed. R. Civ. P. 72(b), the clerk is directed to set the matter for consideration on November 2, 2018, as noted in the caption.
Dated this 18th day of October, 2018.
/s/_________
David W. Christel
United States Magistrate Judge