Ankh El v. Butts

          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 ...