Demos v. United States of America, No. 1:2010cv00015 - Document 3 (D. Mont. 2010)

Court Description: FINDINGS AND RECOMMENDATIONS re 2 MOTION for Leave to Proceed in forma pauperis, 1 Petition for Writ of Habeas Corpus filed by John Robert Demos. Demos's motion to proceed in forma pauperis should be DENIED and the Petition should be DISMISS ED. A certificate of appealability should be DENIED. The Court should CERTIFY that any appeal from its disposition would be taken in bad faith. Objections to F&R due by 3/12/2010. Signed by Magistrate Carolyn S Ostby on 2/23/2010. Copy mailed to Demos. (TAG, )

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Demos v. United States of America Doc. 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BILLINGS DIVISION _____________________________________________ JOHN ROBERT DEMOS, Cause No. CV 10-15-BLG-RFC-CSO Petitioner, vs. FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE THE UNITED STATES, et al., Respondents. _____________________________________________ Once again, a matter comes before the Court on a petition for writ of habeas corpus filed by Petitioner Demos, a Washington state prisoner proceeding pro se. On this occasion, Demos invokes 28 U.S.C. § 1651. Demos claims to be an immigration and military detainee. He is not. He is serving a prison sentence under a judgment imposed by a court of the State of Washington. The federal court in the District of Montana lacks jurisdiction to take any action with respect to Demos’s custody. Because Demos’s petition is frivolous, it is not in the interest of justice to transfer his petition to the appropriate district in Washington. FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE / PAGE 1 Dockets.Justia.com The action should be dismissed. Additionally, any appeal from the District Court’s disposition would be taken in bad faith. For the same reason, a certificate of appealability is not warranted. Based on the foregoing, the Court enters the following: RECOMMENDATION 1. Demos’s motion to proceed in forma pauperis (doc. 2) should be DENIED and the Petition (doc. 1) should be DISMISSED. 2. A certificate of appealability should be DENIED. 3. The District Court should CERTIFY that any appeal from its disposition would be taken in bad faith, pursuant to Fed. R. App. P. 24(a)(4)(B). 4. The District Court should direct the Clerk to enter a judgment of dismissal. NOTICE OF RIGHT TO OBJECT TO FINDINGS & RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT Pursuant to 28 U.S.C. § 636(b)(1), Petitioner may serve and file written objections to this Findings and Recommendations within fourteen FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE / PAGE 2 (14) calendar days of the date entered as indicated on the Notice of Electronic Filing. A district judge will make a de novo determination of those portions of the Findings and Recommendations to which objection is made. The district judge may accept, reject, or modify, in whole or in part, the Findings and Recommendations. Failure to timely file written objections may bar a de novo determination by the district judge. Petitioner must immediately file a “Notice of Change of Address” if his mailing address changes while this action remains pending in this Court. Failure to do so may result in dismissal of his case without notice to him. DATED this 23rd day of February, 2010. /s/ Carolyn S. Ostby United States Magistrate Judge FINDINGS AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE / PAGE 3

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