United States District Court, S.D. Indiana, Indianapolis Division
ORDER DISCUSSING PETITION FOR A WRIT OF HABEAS
CORPUS
Hon.
William T. Lawrence, Senior Judge.
Petitioner
Menes Ankh-El[1] brings this petition for a writ of habeas
corpus challenging his state conviction for burglary,
forgery, and driving while suspended. Ankh-El now seeks a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. For
the reasons that follow, Ankh-El's petition for a writ of
habeas corpus is denied and a certificate of
appealability will not issue.
I.
Factual History
Federal
habeas review requires the Court to “presume that the
state court's factual determinations are correct unless
the petitioner rebuts the presumption by clear and convincing
evidence.” Perez-Gonzalez v. Lashbrook, 904
F.3d 557, 562 (7th Cir. 2018); see 28 U.S.C. §
2254(e)(1). On direct appeal, the Indiana Court of Appeals
summarized the relevant facts and procedural history as
follows:
In January of 2012, Bank of America acquired a foreclosed
home located at 2401 West 39th Street, Indianapolis, Marion
County, Indiana (the Property), through a sheriff's sale.
Because Bank of America utilized Bank of New York Mellon to
service its mortgage rights, Bank of New York Mellon is also
listed on the Sheriff's Deed. The Sheriff's Deed was
stamped by the Marion County Assessor on February 10, 2012,
and filed with the Marion County Recorder on February 13,
2012.
Shortly after procuring the Property, Bank of America engaged
Integrated Asset Services “to manage, market, and sell
the [P]roperty.” (Tr. p. 148). Integrated Asset
Services assigned the Property listing to one of its real
estate brokers, Mark Forcum (Forcum). It was Forcum's
responsibility to prepare, market, and sell the Property.
Under ideal circumstances, the Property would have been
valued between $700, 000 and $800, 000; however, given its
condition following the foreclosure, Forcum agreed to list
the Property for $325, 000. Pursuant to his obligations, in
addition to showing the Property to prospective buyers,
Forcum paid the utility bills; he ensured that the lawn was
mowed and the Property was otherwise maintained; and he
conducted weekly inspections, during which he verified that
the house was secure.
On April 16, 2012, Forcum drove past the Property and noticed
that a red flag was hanging from the gate at the end of the
driveway. The next day, he returned to the Property to
conduct his weekly inspection. Upon arrival, he observed a
lawn mower and mowing trailer in the driveway and initially
assumed that the regular mowing crew was working on the yard.
However, he grew concerned when he noticed that two men were
standing on a second-floor balcony because the mowing crew
would have no reason to enter the residence. When Forcum
exited his vehicle, one of the men on the
balcony-Ankh-El-inquired into Forcum's presence. Forcum
explained that he is a real estate broker, and, in response,
Ankh-El identified himself as the new owner of the Property.
Knowing this could not be the case given his exclusive
listing rights, Forcum returned to his vehicle and drove away
from the Property while calling the Indianapolis Metropolitan
Police Department (IMPD).
Forcum waited at the end of the long driveway until IMPD
officers arrived. Forcum apprised the officers of his concern
that there was an individual squatting on the Property, and
he provided the officers with his credentials and a copy of
the listing agreement which identified him as the agent
responsible for selling the Property. Thereafter, the
officers proceeded down the driveway and observed Ankh-El and
another male standing outside. The officers identified
themselves and explained the nature of their visit. Ankh-El
informed the officers that he had recently purchased the
property for $250, 000, and he acted perplexed as to why
there would be any indication that the Property was still
listed for sale. When asked for proof of his ownership,
Ankh-El stated that he had such documentation at another
location, so he locked the doors to the house and drove away
from the Property while the officers and Forcum waited for
him to return. During Ankh-El's absence, one of the
officers contacted the Marion County Assessor's Office,
which reported that the current owner of record for the
Property was Bank of New York Mellon. A short while later,
Ankh-El drove up to the Property on a black Yamaha
motorcycle. Ankh-El provided the officers with an
identification card with his name and photograph, which
identified him as a “Moorish National” and listed
his birthplace as Marion County, Indiana. (State's Exh.
13). Ankh-El admitted that he had created the identification
card himself and explained some of the history of the Moorish
people; specifically, he “talked about [how] the laws
of [the] land [do not] apply to Moorish Nationals.”
(Tr. p. 216).
In addition, Ankh-El tendered a document to the officers
entitled “FREEHOLD IN DEED.” (State's Exh.
1). According to Ankh-El, this deed, which he had created
himself, evidenced his ownership rights in the Property. The
homemade deed, stated, in part:
I, Menes Ankh-El, being in propria persona, sui juris, am a
Free Moorish American National of Al Moroc (America) North,
Central, South America and Adjoining Islands anciently
referred to as Amexem, and I am part and parcel to the Land
of my ancient Foremothers, and Fathers (Moabites/Moroccans)
by birthright and inheritance as an aboriginal, indigenous
and de jure natural citizen of the Continental United States
of America Republic. Therefore, by the power and authority
vested in me by right of birth and right of soil, retaining
all substantive unalienable rights and immunities in the
Organic United States of America Republic Constitution, I,
Menes Ankh-El, am claiming FREEHOLD IN DEED of the abandoned
and unoccupied [Property]. (State's Exh. 1). Immediately
preceding his signature, the Freehold in Deed contained a
declaration that “I, Menes Ankh-El, am NOT a citizen
governed under Naturalization or Immigration, NOT a 14th
Amendment ‘Person' or ‘U.S. Citizen', NOT
subject to statutory, colorable law jurisdiction of the
United States in the corporate monopoly of the federal,
State, local, and municipal governments(s) [sic].”
(State's Exh. 1). Ankh-El filed his Freehold in Deed with
the Marion County Recorder on March 28, 2012.
Based on Ankh-El's self-created documents, the officers
determined that he was unlawfully occupying the Property and
placed him under arrest. A subsequent inspection of the
Property revealed that Ankh-El, after gaining access to the
house, had changed all of the locks and had mounted multiple
“No Trespassing” signs. (State's Exh. 6). He
had also moved a number of his personal belongings, including
a set of bolt cutters, into a third floor bedroom, and his
laptop was plugged into an outlet. At the jail, Ankh-El was
fingerprinted, and his fingerprints matched the criminal
record of Wendell Brown. A review of Wendell Brown's
record from the Bureau of Motor Vehicles (BMV) revealed that
his driver's license was suspended.
On August 30, 2012, the State filed an amended Information,
charging Ankh-El (i.e., Wendell Brown) with Count I,
burglary, a Class C felony, I.C. § 35-43-2-1 (2011);
Count II, forgery, a Class C felony, I.C. § 35-43-5-2(b)
(2011); Count III, theft, a Class D felony, I.C. §
35-43-4-2(a) (2011); Count IV, trespass, a Class A
misdemeanor, I.C. § 35-43-2-2(a)(4) (2011); and Count V,
driving while suspended, a Class A misdemeanor, I.C. §
9-24-19-2 (2012).
After the charges were filed, Ankh-El elected to represent
himself and began filing a multitude of motions. Several of
his motions sought dismissal based on the claim that the
trial court lacked both personal and subject matter
jurisdiction. Specifically, Ankh-El asserted that the trial
court lacked authority under the United States Constitution
to hear the case, and he further insisted that he is neither
a citizen of the United States or Indiana, nor a party to a
contract with the State of Indiana. Essentially, he insisted
that as a “Private Moorish American National Man,
” he is not subject to the power of the courts or the
laws of this state. (Appellant's App. p. 28). Ankh-El
also sought dismissal due to lack of evidence, arguing, in
part, that he was rightfully entitled to claim the Property
under the doctrine of adverse possession. Additionally,
Ankh-El claimed that the trial court violated his right to
assistance of counsel and the Vienna Convention by refusing
to allow his “Consuls” to address the trial court
on his behalf. (Appellant's App. p. 27). He also accused
the trial court of committing perjury, and he alleged that
the trial court had exhibited extreme prejudice by failing to
rule on motions and by preventing the State from responding
to his motions. In a few motions, Ankh-El alleged that he was
entitled to a default judgment because the trial court and
the State had failed to respond to his various motions
regarding the trial court's lack of jurisdiction, as well
as other accusations by Ankh-El against the State and trial
court, including treason, fraud and “[b]arratry.”
(Appellant's App. p. 30). Furthermore, Ankh El challenged
the validity of the charging Information, positing that the
Information does not clearly identify the owner of the
Property and that it includes other vague references. Ankh-El
additionally argued that the Information failed to properly
identify him because he has “a Nationality which is
Moorish American [and] for the [I]nformation to designate
[him] as a black male and as WENDELL BROWN© [sic] is
denationalization and violation of the 13th Amendment
prohibitions of slavery and involuntary servitude.”
(Appellant's App. p. 42). While the trial court denied
several of these motions, the record is unclear as to whether
it actually issued rulings as to the rest.
On July 24, 2013, the trial court conducted a jury trial. At
the close of the evidence, the jury returned a guilty verdict
on all Counts. On August 2, 2013, the trial court held a
sentencing hearing. The trial court merged Count III, theft
as a Class D felony, and Count IV, trespass as a Class A
misdemeanor, into Count I and entered a judgment of
conviction on Count I, burglary as a Class C felony; Count
II, forgery as a Class C felony; and Count V, driving while
suspended as a Class A misdemeanor. For Count I and Count II,
the trial court imposed concurrent sentences of four years,
with two years executed through Community Corrections and two
years suspended with one year of probation for each Count. As
to Count V, the trial court ordered Ankh-El to serve a
one-year term in Community Corrections, concurrent with his
sentence for Counts I and II.
On November 1, 2013, Ankh-El filed his Notice of Appeal. On
May 12, 2014, this court dismissed Ankh-El's appeal with
prejudice because it was not timely filed. On June 2, 2014,
Ankh-El filed a petition for rehearing, which we denied on
June 23, 2014. On August 26, 2014, Ankh-El filed a Demand for
Acceptance of Belated Petition to Transfer, which the Indiana
Supreme Court granted on September 12, 2014. On May 26, 2015,
the supreme court granted Ankh-El's petition to transfer.
In its order, the supreme court noted that Ankh El had filed
a response with our court to show cause why his appeal should
not have been dismissed due to an untimely Notice of Appeal,
but the response was incorrectly filed under a different
appeal initiated by Ankh-El and, therefore, was likely not
reviewed. Moreover, Ankh-El submitted an order from the trial
court that extended the time for filing his Notice of Appeal
to November 2, 2013, likely in accordance with Indiana Trial
Rule 72(E); thus, his November 1, 2013 Notice of Appeal was
actually timely. Accordingly, the supreme court vacated our
dismissal of Ankh-El's appeal and our denial of his
petition for rehearing and remanded the case to our court for
further proceedings.
On
direct appeal of the convictions at issue in this case,
Ankh-El raised the following claims: (1) whether the trial
court had subject matter jurisdiction over this case; (2)
whether the trial court denied his the right to counsel in
violation of the Sixth Amendment to the United States
Constitution; (3) whether the State presented sufficient
evidence to support the convictions; (4) whether the charging
information was defective; and (5) whether the trial court
committed fundamental error by exhibiting prejudice. On
November 22, 2016, The Indiana Court of Appeals affirmed
Ankh-El's convictions. Ankh-El sought transfer to the
Indiana Supreme Court where he argued: (1) that the Indiana
Court of Appeals failed to properly order transcripts, a
replacement for an alleged stolen deposition, and complete
replacement for trial court clerk's record; (2) the
Indiana Court of Appeals ignored evidence of fundamental
error; (3) the Indiana Court of Appeals failed to consider
any of Petitioner's jurisdictional arguments; (4) the
evidence was insufficient; and (5) whether the charging
information was defective. The Indiana Supreme Court denied
transfer on June 1, 2017.
Ankh-El
filed his petition for a writ of habeas corpus on November
20, 2017. The respondent field a Return to Order to Show
Cause on February 23, 2018, arguing that Ankh-El had filed a
mixed petition which included unexhausted claims, and
therefore, the petition should be dismissed without
prejudice. On December 7, 2018, the Court issued dismissing
Ground Three of the petition, on Ankh-El's request, and
ordered the respondent to address Ankh-El's remaining
claims. The respondent has done so and Ankh-El has replied.
II.
Applicable Law
A
federal court may grant habeas relief only if the petitioner
demonstrates that he is in custody “in violation of the
Constitution or laws . . . of the United States.” 28
U.S.C. § 2254(a). The Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) directs how the
Court must consider petitions for habeas relief under §
2254. “In considering habeas corpus petitions
challenging state court convictions, [the Court's] review
is governed (and greatly limited) by AEDPA.” Dassey
v. Dittmann, 877 F.3d 297, 301 (7th Cir. 2017) (en banc)
(citation and quotation marks omitted). “The standards
in 28 U.S.C. § 2254(d) were ...