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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JOHN ROBERT DEMOS,                                                   )
)
Petitioner,                                                          )
)
v.                                                                   )   C.A. No.  12-12398-PBS
)
U.S. SECRETARY OF DEFENSE,                                           )
)
Respondent.                                                          )
)
MEMORANDUM AND ORDER
January  3,  2013
Saris, U.S.D.J.
I.    INTRODUCTION
On December  26,  2012, petitioner John Robert Demos
(“Demos”), a state prisoner confined at the Clallam Bay
Correctional Center in Clallam Bay, Washington, filed his self-
prepared habeas petition purportedly under  28 U.S.C.  §  2241.
Demos challenges his June,  1978 state criminal conviction in the
King County Superior Court of Seattle, Washington, for first
degree attempted rape and first degree burglary.    He was
sentenced to an indeterminate sentence of  240 months to life in
prison.
In the instant petition, Demos argues, inter alia, that he
is a Native American and therefore the trial court was without
jurisdiction over him.    He also contends he was prosecuted under
The Old Territorial Remington Code rather than the Model Penal
Code.    Additionally, he contends his appointed counsel lacked a
license to practice law and had a conflict of interest.




Notably, Demos is a frequent filer in numerous courts across
this country.1    Recently, Demos has filed several other habeas
petitions challenging his conviction on other grounds.    See,
e.g., Demos v. U.S. Secretary of Defense, et al., Civil Action
No.  2:12-cv-07203-SD  (E.D. PA  (Philadelphia)(filed Dec.  26,
2012); Demos v. Holder, et al., Civil Action No.  1:12-cv-03715-
CCB  (D. Md.  (Baltimore))(filed Dec.  18,  2012); Demos v. The State
of Washington, Civil Action No.  1:12-cv-01737-CCB  (D. Md.
(Baltimore))(filed June  7,  2012)(alleging, inter alia, that he is
a Native American entitled to the full protection of the
“Diplomatic Immunity Act” and the  “Sovereignty Act”); Demos v.
Fraker, Civil Action No.  2:12-cv-01111-JCC  (W.D. WA
(Seattle))(filed June  27,  2012).    See also Demos v. Holder, et
al., Civil Action No.  2:12-cv-02137-JCC  (W.D. WA  (Seattle))
(§  2241 petition filed December  10,  2012  (construed as a  §  2254
habeas petition because Demos is a state prisoner)).
II.    DISCUSSION
A.    Screening of the Petition
The petition has not been served so that the Court may
review the petition to determine whether the respondent should be
required to reply.    See  28 U.S.C.  §  2243.    Rule  4 of the Rules
1Demos has filed hundreds of cases throughout the country,
and has been deemed to be an abusive litigant.    He has been
enjoined in a number of courts, and is a three-strikes litigant
pursuant to  28 U.S.C.  §  1915(g).    The PACER records reveal that
Demos has filed at least  130 other habeas petitions.
2




Governing Section  2254 Proceedings  (applicable to both  §  2254
petitions and  §  2241 petitions at the Court’s discretion),2
provides that if it  “plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief
in the district court,” the Court  “must dismiss the petition and
direct the clerk to notify the petitioner.”    Rule  4; McFarland v.
Scott,  512 U.S.  849,  856  (1994)(habeas petition may be dismissed
if it appears to be legally insufficient on its face); Mahoney v.
Vondergritt,  938 F.2d  1490,  1494  (1st Cir.  1991)(upholding Rule  4
summary dismissal of  §  2254 petition).    A petition for a writ of
habeas corpus may also be summarily dismissed if it fails to set
forth facts that give rise to a cause of action under federal
law.    Marmol v. Dubois,  855 F. Supp.  444,  446  (D. Mass.  1994);
See Allen v. Perini,  424 F.2d  134,  141  (6th Cir.  1970)(noting
that federal district courts have a duty to screen habeas
petitions and eliminate burden on respondents caused by ordering
an unnecessary answer or return), cert. denied,  400 U.S.  906
(1970).    For the reasons stated below, the Court denies the
petition without prejudice and dismisses this action.
B.    Lack of Jurisdiction
Under  28 U.S.C.  §  2241, a federal court has the authority to
2See Rule  1(b) of the Rules Governing Habeas Corpus Cases
Under Section  2254; see also Phelps v. Reynoso, App. No.  07-1080
(1st Cir.  2007)(district court acted within its discretion by
applying Rule  4 of the Rules Governing Habeas Corpus Cases Under
Section  2254 to  §  2241 petition); Boutwell v. Keating,  399 F.3d
1203,  1211 n.2  (10th Cir.  2005)(same).
3




entertain a petition for a writ of habeas corpus brought a
petitioner who is within the court’s jurisdiction at the time the
petition is filed.    See  28 U.S.C.  §  2241(a); Rumsfeld v. Padilla,
542 U.S.  426,  442  (2004)(“District courts are limited to granting
habeas relief  ‘within their respective jurisdictions.’”  (quoting
28 U.S.C.  §  2241(a)); see also Padilla,  542 U.S. at  447
(“Whenever a  §  2241 habeas petitioner seeks to challenge his
present physical custody within the United States, he should name
his warden as respondent and file the petition in the district of
confinement.”).    Unless a statute explicitly states otherwise,
“for core habeas petitions challenging present physical
confinement, jurisdiction lies in only one district: the district
of confinement.”    Padilla,  542 U.S. at  443.3
Here, it is unclear why Demos filed his habeas petition in
this Court where his claims have no connection to the
Commonwealth of Massachusetts or this District Court.    In any
event, Demos challenges his present physical confinement in a
prison located within the State of Washington.    Thus, this Court
is without jurisdiction over the present petition.4
3The reason that the proper respondent is deemed to be the
individual with the day to day control over a petitioner is
because  “[t]he writ of habeas corpus does not act upon the
prisoner who seeks relief, but upon the person who holds him in
what is alleged to be unlawful custody.”    Braden v.  30th Judicial
Circuit Court of Kentucky,  410 U.S.  484,  494-95  (1973).
4This is true notwithstanding that the instant petition
could be construed as one pursuant to  28 U.S.C.  §  2254  (as Demos
is challenging a judgment of a state court).    In any case, this
4




The Court, could, in its discretion, transfer Demos’s
petition to the Western District of Washington:                        “Whenever a
civil action is filed in a court  ... and that court finds that
there is a want of jurisdiction, the court shall, if it is in the
interest of justice, transfer such action  ....  ”                     28 U.S.C.
§  1631  (emphasis added).    Here, given Demos’s litigation history
and the fact that he recently has filed other petitions in the
State of Washington, it is not in the interest of justice to
transfer Demos’s petition.    Accordingly, this petition will be
denied and this action will be dismissed for lack of
jurisdiction.
III.    CONCLUSION
Based on the foregoing, it is hereby Ordered that this
petition is DENIED WITHOUT PREJUDICE and this action is DISMISSED
in its entirety.5
SO ORDERED.
/s/ Patti B. Saris
PATTI B. SARIS
UNITED STATES DISTRICT JUDGE
Court declines to construe this action as a  §  2254 habeas
petition because it appears that Demos intended this matter to be
a  §  2241 petition and not a  §  2254 petition, as evidenced by his
handwritten notation in the caption of the template  §  2254 form
(AO  241).
5Demos failed to pay the  $5.00 filing fee for this petition
or to seek a waiver of the filing fee.    In light of this
Memorandum and Order, this Court need not pursue the filing fee
issue further.
5

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