Supreme-El v. Director, Department of Corrections, No. 3:2014cv00052 - Document 27 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 3/2/2015. (sbea, )
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Supreme-El v. Director, Department of Corrections Doc. 27 r; IN THE UNITED FOR THE STATES DISTRICT R -32US COURT EASTERN DISTRICT OF VIRGINIA CLiRK, U.S. DISTRtCT COURT Richmond Division RICHMOND. VA METAPHYZIC EL-ECTROMAGNETIC SUPREME-EL, Petitioner, Civil Action No. V. DIRECTOR, 3:14CV52 DEPARTMENT OF CORRECTIONS, Respondent. MEMORANDUM OPINION Metaphyzic proceeding El-Ectroraagnetic pro se, ("§ 2254 Petition," submitted ECF No. in the Circuit Court of On December 1, Recommendation 2014, various subparts, Supreme-El also Objections. the 28 Virginia U.S.C. § 2254 inmate petition challenging his 2013 convictions Magistrate that the Judge Court ("Circuit Court"). issued a grant Report filed No. a thirty-four Motion 26.) pages. For For Leave the reasons (ECF to Amend that and Respondent's Supreme-El has filed eight objections, spanning (ECF a a the City of Norfolk recommending Motion to Dismiss. 6) Supreme-El, No. with 25.) Specific follow, the Motion for Leave to Amend Specific Objections will be granted, Supreme-El's objections will be overruled, and the action will be dismissed. Dockets.Justia.com BACKGROUND I. The Magistrate Judge made the following findings recommendations: While Supreme-El lists seventeen claims for relief, the majority of his claims contest the Commonwealth of Virginia's and the Circuit Court's jurisdiction to prosecute and convict "Moorish-American." follows:^ Claim 1: him because of Supreme-El's "AA222141-TRUTH A-1: his status as a claims are as Moorish American Credentials registered with the Department of Justice and Library of Congress." (§ 2254 Pet. 6.) Claim 2: "Free Moorish-American Constitution (Zodiac Birthrights of (Id. Claim 3: Zodiac Constitution and the Moorish Americans)." at 7.) "Vienna Convention on Relations, 23 U.S.T. 3227; 1961) Articles 29, 30, Diplomatic (April 18th, 31." (I^ at 9.) Claim 4: "Convention Immunities of on the U.S.T. (b) ." Claim 5: 1418, Privileges and United Nations, 21 (I^ at 11.) "Treaty of 1787 A.D., Morocco and Article Peace 4, and and 1836 the United Section 11(a), Friendship, of A.D., Between States." (Id. at 11-A.) Claim 6: "United States Constitution, Article section 2; Article 6; Amendment (Liberty Clause); Amendment 3 5 9 (Reservation of the Rights of People)." (Id. Supreme-El's consistent method at 11-B.) use of of capitalization correction. The defies Court any corrects the capitalization and punctuation in Supreme-El's submissions when appropriate for clarity. The Court also adds underlining to citations to court cases. For some of Supreme-El's claims, the Court simply lists the document or treaty that Supreme-El asserts deprived the Circuit Court of jurisdiction. and "Title Claim 7: 18 U.S.C. Part 1, Chapter 7, Section 112 (1116(b) [)]; Protection of Foreign Officials, Official Guests, and Internationally Protected Persons." (Id. at 11-C.) Claim 8: "Rights of {E/CN.4/sub. Indigenous 2/1994/2/Add.l Claim 9: "Universal Declaration of Human Rights." (Id. at 11-E.) "Hagans v. Lavine, 415 U.S. 528 (1974). A lower court cannot decide a conflict (Updated 2007)." Claim 10 Peoples, (1994) (Id. at 11-D.) between state and federal laws, in a proceeding." (Id. at 11-G.) "Dred Scott v. Sandford, 60 U.S. (19 Claim 11 Howard[)] 393 (1857). Held that Negroes-slave or free—were not included and were not intended to be included in the category of citizen." (Id. at 11H.) "United State." Claim 12 "22 Claim 13 States Supreme ( ^ at ll-I.) U.S.C. Act. 254A, 'Diplomatic of Relations ( ^ at ll-I.) "Sundry Free Moors Act, Claim 14 Court—Acts 1790." (Id. at 11-J.) "26 Claim 15 U.S.C. Residing 7701(A)(39) Outside the 'Persons United States.'" (Id.) Claim 16 "Simmons v. Commonwealth, 89 Va. 156, 15 S.E. 386 (1892)." ( ^ at 11-K. ) Claim 17 "Deprived of the right to a fair trial, 5th, (Id. A. 6th, 9th at 11-M.) Amendment Violation." Procedural History After a bench trial, the Circuit Court convicted Supreme-El of possession of a schedule I or II controlled substance, possession of a firearm by a convicted felon, possession of a firearm while committing possession of a schedule I or II controlled substance, resisting arrest/intimidation, and carrying a concealed weapon. Supreme-El was sentenced to twenty years and twenty-four months of incarceration. Commonwealth v. Supreme, Nos. CR12001251-00 through 04, at 1-2 (Va. Cir. Ct. Feb. 28, 2013.) Supreme-El appealed, arguing, inter alia, that "the trial court erred in denying his motion to dismiss because the court lacked jurisdiction over the charges due to his nationality, heritage, and immigration status." Supreme v. Commonwealth, No. 0141-13-1, at 1 (Va. Ct. App. Oct. 30, 2013.) The Court of Appeals of Virginia denied his appeal as frivolous. Id. at 1, 4. During the pendency of his direct appeal, on August 13, 2013, Supreme-El filed a petition for writ of habeas corpus in the Supreme Court of Virginia raising similar claims challenging the jurisdiction of the Circuit Court. Petition for Writ of Habeas Corpus at 1, Supreme-El v. 131274 of (Va. Dir. of the Dep't of filed Aug. 13, 2013.)^ Virginia found "that the Corr. , No. The Supreme Court claims attacking the petitioner's new convictions are frivolous" and dismissed the petition. Supreme-El v. Dir. of the Dep't of Corr., No. 131274, at 1 (Va. Oct. 31, 2013). B. Analysis In order to obtain federal habeas relief, at a minimum, a petitioner must demonstrate that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996 further circumscribed this Court's authority to grant relief by way of a writ of habeas corpus. Specifically, "[s]tate court factual determinations are presumed to be correct and may be rebutted only by clear and convincing evidence." Gray v. Branker, 529 F.3d 220, 228 {4th Cir. 2008) (citing 28 U.S.C. § 2254(e)(1)). Additionally, under 28 U.S.C. § 2254(d), a federal court may not grant a writ of habeas corpus based on any claim that was adjudicated on the merits in state court unless the adjudicated claim: ^ Because Supreme-El's claims clearly lack merit, the Court assumes without deciding that Supreme-El raised the same claims in his state habeas petition as in his § 2254 are Petition. exhausted review. for Thus, the the Court purposes assumes of his federal claims habeas (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence State court proceeding. 28 U.S.C. that the believes the state that substantially Landrigan, 550 V. Taylor, 1. court's determination 529 U.S. 362, 410 State Law Error enter book 386 (1892) the as determination was was higher threshold." U.S. 465, 473 (2007) the . alleged defined . . unreasonable—a Schriro v. (citing Williams (2000)). Supreme-El argues that Commonwealth, 89 Va. 56, the [Circuit indictments in Va. incorrect (Claim 16) In Claim Sixteen, violation of "Simmons v. S.E. in § 2254(d). The Supreme Court has emphasized question "is not whether a federal court whether but presented Code in Court] the 17.1-124." failed court[']s (§ 2254 in 15 to order Pet. 11-K.) The Circuit Court's alleged error provides no basis for federal habeas corpus relief. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[I]t is not the province of a federal habeas court to reexamine state- court determinations on state-law questions."); Lewis V. Jeffers, 497 U.S. 764, 780 (1990) (citing cases for the proposition that "federal habeas corpus relief does not lie for errors of state law"). Accordingly, i t is RECOMMENDED that Claim 16 be DISMISSED. 2. Moorish American Claims (Claims 1 through 15) In his many claims, Supreme-El contends that the Commonwealth of Virginia lacked jurisdiction to prosecute him and the Circuit Court lacked jurisdiction to convict him because of his status as a Moorish that . ^ aptly American,^ . . the "' [I] t Moorish is American well-recognized Nation . . . [is a] The United States District Court for New Jersey summarized the beliefs that underpin Supreme- E l ' s claims: Two concepts, which may or may not operate as interrelated, color the issues at hand. One of these concepts underlies ethnic/religious identification movement certain groups of individuals who refer themselves as "Moors," while the of to other concept provides the basis for another movement of certain groups of individuals [Sovereign Citizens/Redemptionists], which frequently produces these individual's denouncement of United States citizenship, self-declaration of other, imaginary "citizenship" and accompanying selfdeclaration of equally imaginary "diplomatic immunity." It ethnic does not roots convictions, hand-in-hand appear that one's Moorish (or Moorish religious or both) with have any reason to go one's adhesion to the sovereign citizenship movement (or with one's professing the theory of redemptionism, or with one's practice of "paper terrorism," claims of selfgranted "diplomatic immunity," etc.) However, and unfortunately enough, certain groups of individuals began merging these concepts by building on their alleged ancestry in ancient Moors . . . for the purposes of committing criminal offenses and/or initiating frivolous legal actions on their self-granted "diplomatic immunity," which these individuals deduce either from self-granted "Moorish citizenship" their correspondingly-produced "Moorish" multitude under documents of the individuals other, law, keep ... equally bases, creating their and from homemade or from a non-cognizable which in these order to notorious organization[ ] of scofflaws and ne'er-dowells who attempt to benefit from the protections of federal and state law while simultaneously proclaiming their independence from and total lack of responsibility under those same laws.'" Abdullah, 2012 WL 2916738, at *5 {first alteration in original) (quoting Murakush Caliphate, Summarized, relief Supreme-El because his 790 F. claims Supp. 2d at 272). entitlement conviction to violates Moorish American laws and several treaties habeas purported between the United States and the Moors (Claims 1, 2, 5, 14); because of his status as a diplomat, his conviction violates the Fifth, Sixth, and Ninth Amendments, United States statutes, and United Nations human rights resolutions (Claims 3, 4, 6, 7, 8, 9, 13, and 15); and his conviction violates several Supreme Court cases (Claims 10, 11, and 12). Supreme-El's claims are conclusory and lack any clear argument demonstrating that the cited authority entitles him to federal habeas relief. See Sanders v. United States, 373 U.S. 1, 19 (1963) (finding denial of habeas action appropriate where it "stated only bald legal conclusions with no supporting factual allegations"). Moreover, as discussed below, Supreme-El fails to demonstrate that the cited statutes, cases, or treaties exempt him from the jurisdiction of the Virginia courts. Cf. Johnson-El v. The United States, No. 281-78, 1980 WL 99703, at *1 (Ct. C1. July 18, 1980) (finding "Moorish-American Zodiac Great Seal Constitution; the Moroccan Treaty of 1787 . . . the United Nations Charter . . . Scott v. Sandford, 60 U.S. and (19 the Howard) 393 [F]ourteenth (1857) . . . articles [A]mendment of the I and III Constitution; and his claimed Cherokee Indian ancestry" failed to exempt the plaintiff from being subject to federal law) . The Court of Appeals of Virginia aptly summarized and rejected Supreme-El's claims: support their allegations of "diplomatic immunity." Abdullah V. New Jersey, No. 12-4202 (RBK) , 2012 WL 2916738, at *2-3 (D.N.J. July 16, 2012) (quoting Murakush Caliphate of Amexem Inc. v. F. Supp. 2d 241, 245 (D.N.J. 2011). New Jersey, 790 Appellant was convicted of [various offenses] . He argues that the trial court erred in denying his motion to dismiss [the charges against him] because the court lacked jurisdiction over the charges due to his nationality, heritage, and immigration status. [ ] "The term jurisdiction embraces several concepts including subject matter jurisdiction, which is the authority granted through constitution or statute to adjudicate a class of cases or controversies; territorial jurisdiction, that is, authority over persons, things, or occurrences located in a defined geographic area . . . Morrison v. Bestler, 239 Va. 166, 169, 387 S.E.2d 753, 755 (1990). Code § 19.2-244 provides: Except as otherwise provided by law, the prosecution of a criminal case shall be had in the county or city in which the offense was committed. . . . "On appeal, *we review the evidence in the light most favorable to the Commonwealth, granting to i t all reasonable inferences fairly deducible therefrom.'" Archer v. Commonwealth, 2 6 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin V. Commonwea 11h, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the evidence proved that on February 15, 2012, a bail recovery agent found appellant in a public library located in Norfolk, Virginia. Officer Ortiz investigated and a physical struggle ensued. Appellant was arrested, and Ortiz recovered a firearm, a knife, and controlled substances from a pocket of appellant's jacket. Appellant moved to dismiss the charges because he is of the Moorish Science Temple subject to the jurisdiction of a member and not American courts. Appellant was arrested for the criminal offenses while in Norfolk, and the Circuit Court of the City of Norfolk had jurisdiction over the criminal charges. There is no exception for members of the Moorish Science Temple from the laws of the Commonwealth of Virginia. The trial court did not err in denying appellant's motion to dismiss. Supreme, No. 1041-13-1, at 1-2 (first omission in original) (footnote omitted). "First, to the extent that [Supreme-El] is asserting that state courts lack jurisdiction to prosecute Moorish-Americans, that argument has been repeatedly rejected." El v. Mayor of City of New York, No. 13-CV-4079 (SLT) (CLP) , 2014 WL 4954476, at *5 (E.D.N.Y. Sept. 30, 2014) (citation omitted); see Bond V. N.C. Dep't of Corr., No. 3:14-cv-379-FDW, 2014 WL 5509057, at *1 (W.D.N.C. Oct. 31, 2014) (explaining that "courts have repeatedly rejected arguments . . . by individuals who claim that they are not subject to the laws of the . . . individual States by virtue of their 'Moorish American' citizenship"). "Regardless of an individual's claimed status of descent, be i t as a *sovereign citizen,' a 'secured-party creditor,' or a 'flesh-and-blood human being,' that person is not beyond the jurisdiction of the courts. These theories should be rejected summarily, however they are presented." United States v. Benabe, 654 F.3d 753, 767 (7th Cir. 2011) ; see United States F. App'x 193, 194 (4th Cir. 2012) citizenship nor the heritage of v. White, 480 ("Neither the a defendant constitutes a key ingredient to a . . . court's jurisdiction in criminal prosecutions . . . ."), Contrary to Supreme-El's assertion, his "'purported status as a Moorish-American citizen does not enable him to consequence.'" violate 2014 . . . state WL 4954476, laws at *5 without (omission in original) (citation omitted) (internal quotation marks omitted) . Thus, "the argument that a person is entitled to ignore the laws of the [Commonwealth of Virginia] by claiming membership in the MoorishAmerican nation is without merit . . . ." Id. (omission in original) (citation omitted) (internal quotation marks omitted). In the first group of claims, Supreme-El cites to his status as a diplomat to support his argument that the Virginia courts lacked jurisdiction to criminally prosecute him. For example, Supreme-El explains that "Moorish Americans are a [n] internationally protected people possessing freehold by inheritance status" and that he "is Autochthon a diplomat Yamassee Government." {§ (Jurisconsultus) Native 2254 Pet. 6.) of American In Claims 3 the Muurish and 4, he cites the "Vienna Convention on Diplomatic Relations" and the "Convention on Privileges and Immunities of the United Nations" for the proposition that as a diplomat "he shall not be liable to any form of arrest or detention." (Id. at 9, 11.) In Claim 6, SupremeEl argues and Ninth that the Circuit Court violated the Fifth Amendments, as well as Articles 3 and 6, because it "lacked personal jurisdiction over the Petitioner as a jurisconsultus of a foreign nation, and also lacked jurisdiction over the subject matter , . . ." U.S.C. (Id. Part because (Id. he "he at 11-B.) In Claim 7, he cites "Title 18 1, chapter 7, section 112 (1116(b) [)]" is at 11-C.) is a American an internationally protected person." In Claim 13, he contends that because "member of the Autochthon Yamassee Native Muurish Government" and a "Muurish Jurisconsultus," the state courts violated "22 U.S.C. 254A 'Diplomatic Relations Act'" by prosecuting him. (Id. at ll-I.) Finally, in Claim 15, Supreme-El argues that he resides outside of the United States, thus, "26 U.S.C. 7701(A)(39)" provides him with immunity from prosecution. (Id. at 11-J.) First, the record demonstrates that Supreme-El was born in Norfolk, Virginia; thus, he is a citizen of the United States. Psychological Evaluation at 2, Commonwealth v. Supreme, No. CR12001251-00 through -04 (Va. Cir. Ct. filed May 24, 2012) . Supreme-El was arrested and convicted of crimes occurring in Norfolk, Virginia. Hence, to the extent he argues entitlement to diplomatic or consular immunity prosecution, Supreme-El fails to from criminal allege facts demonstrating that, citizen, a diplomat or as that a the United States laws he cites he strip is the Virginia courts of jurisdiction over him or his crimes. See Pitt-Bey v. District of Columbia, 942 A.2d 1132, 1135-36 (D.C. 2008). (rejecting notion that Moorish Americans " [are] diplomatic staff representative[s] of a sovereign nation"). Second, despite Supreme-El's belief that he has consular status as a Moorish American, Moorish Americans, like all "[t]he law is clear that citizens of the United 10 States, are subject to the laws of the jurisdiction in which they reside." Jones-El v. South Carolina, No. 5:13-CV-01851, 2014 WL 958302, at *8 {D.S.C. March 11, 2014) (quoting Smith ex rel Bey v. Kelly, No. 12-CV2319 (JS) (AKT) , 2012 WL 1898944, at *2 (E.D.N.Y. May 24, 2012)); see United States v. 954 (7th Cir. 2 003) James, 328 F.3d 953, ("Laws of the United States apply to all persons within its borders.") Additionally, in Claims 8 and 9, Supreme-El argues that the Virginia courts violated "Article 39 of Rights of Indigenous Peoples," because "Moorish nationals operate through a fee simple absolute estate lien," (§ 2254 Declaration hindered Pet. of 11-D), Human Petitioner in and violated the Rights" his because official "Universal "officers duties" and "deprived the Petitioner of his nationality," through an arbitrary arrest and detention (id. at 11-E). Supreme-El fails to demonstrate that the "Rights of Indigenous Peoples" and "Universal Declaration of Human Rights" entitle him to federal habeas relief. See Bey v. Ohio, No. 1: ll-CV-01048, 2011 WL 4007719, at *2 (N.D. Ohio Sept. 9, 2011) (explaining that the "'Universal Declaration of Humans Rights'" . . . and "'Rights of Indigenous Peoples 1994' . . . are not recognized by United States courts as legally binding"). Accordingly, it is RECOMMENDED that Claims 3, 4, 6, 7, 8, 9, 13, and 15 be DISMISSED. Supreme-El also cites several "laws" and a treaty purportedly governing Moorish Americans citizens. In Claim 2, he alleges that he is "bound to the Zodiac Constitution." (§ 2254 Pet. 7.) In Claim 1, SupremeEl contends that his state conviction should vacated based on purported violations of the 222141-TRUTH A-1: Moorish American Credentials," at 6), and later describes this "as the be "AA(id. Petitioner's freehold by inheritance status, AA222141 TRUTH A-1" (id. at 11-B) . In Claims 5 and 14, Supreme-El cites the Treaty of Peace and Friendship (id. at 11-A) , and the Sundry Free Moors Act (id. at 11-J) , to demonstrate that the state courts lacked jurisdiction over his criminal prosecution. Notwithstanding Supreme-El's personal subscription to the Zodiac Constitution and freehold "AA-222141-TRUTH A-1," and his belief that the Treaty of Peace and Friendship between Morocco and the United States and the Moors Sundry Act of 1790 deprive the 11 state courts of jurisdiction over him, courts have soundly rejected these claims. First, Supreme-El fails to demonstrate freehold that the "AA-222141-TRUTH Zodiac A-1" Constitution provide a and basis for federal habeas review. See Headen-El v. Keller, No. 1:11CV590, 2011 WL 3568282, at *2 (M.D.N.C. Aug. 15, 2011) ("The fact that a group claiming to be *Moorish Americans' has written documents that might support" the idea that the court lacks jurisdiction to prosecute and imprison them "does not establish a valid claim.") Further, the "Moroccan-American Treaty of Peace and Friendship, ratified by President Andrew Jackson on January 28, 1837 . . . . [, a]s its title indicates, ... is [a treaty] of 'Peace and Friendship' between the sovereign states of Morocco and the United States .... It does not contain language suggesting that the United States, or any state or territory therein, does not have jurisdiction over a person violating the law within its jurisdiction." Pitt-Bey, 942 A. 2d at 1136 (providing background of the Moroccan-American Treaty of Peace and Friendship and explaining that "this treaty has no bearing on" jurisdiction); see, e.g., Wilkerson v. Godzan, No. 2:14cv731-MHT, 2014 WL 5112085, at *3 (M.D. Ala. Oct. 10, 2014) (explaining that "court [s] lack [ ] subject matter jurisdiction to enforce '[t]he Zodiac Constitution' or the 'Treaties of Peace and Friendship'"); Jones-El, 2014 WL 958302, at *8 (rejecting habeas claims under the Zodiac Constitution and Treaty of Peace and Friendship as "completely frivolous, whether raised under § 2254, § 2241, or by way of civil complaint"); El Ameen Bey v. Stumpf, 825 F. Supp. 2d 537, 558 (D.N.J. 2007) (holding Treaty of Peace and Friendship has no impact on jurisdiction of courts). Finally, "the Moors Sundry Act of 1790 appears to be a South Carolina law granting special immunity from 'Black Codes' subjects of Bey v. to South Carolina the Sultan of Morocco Santander Consumer USA, residents . Inc., . . irrelevant." Accordingly, and 14 be the it "South Id. is Carolina , . were Khepera- No. WDQ-11-1269, 2012 WL 1965444, at *7 (D. Md. May 30, 2012) . Supreme-El's § 2254 Petition concerns his conviction, who . Because Virginia statute is Supreme-El's claims lack merit. RECOMMENDED that Claims 1, 2, 5, DISMISSED. 12 In Claims 10, 11, and 12, Supreme-El cites two Supreme Court cases and general "Supreme Court-Acts of State" (§ 2254 Pet. 11-1) , for the proposition that the state courts lacked jurisdiction over him. Supreme-El fails to explain, and the Court fails to discern, how these cases entitle to him to federal habeas relief. See Sanders, 373 U.S. at 19 (finding denial of habeas action appropriate where it "stated only bald legal conclusions with no supporting factual allegations"). 415 In Claim 10, Supreme-El cites Hagans v. Lavine, U.S. 528 (1974) for the proposition that "[a] lower court cannot decide a conflict between state and federal laws, in a proceeding." (§ 2254 Pet. 11-G.) The Court fails to discern any conflict between state and federal laws in Supreme-El's § 2254 Petition. Next, in Claim 11, Supreme-El cites Scott v. Sandford, 60 U.S. 393 of United the (1857), Negroes-slave to assert that he is not a States or because free-were not the case included citizen "[h]eld and were that not intended to be included in the category of citizen." (§ 2254 Pet. at 11-H.) Contrary to Supreme-El's assertion, the ratification of the Fourteenth Amendment in 1868 overruled Scott and provides, in relevant part, that " [a]11 persons born or naturalized in the United States . . . are citizens of the United States and of the State wherein they reside." U.S. Const, amend XIV. Finally, in Claim 12, Supreme-El cites general "United States Supreme Court - Acts of State" but fails to provide any cognizable legal argument for his claim. {§ 2254 Pet. 11-1.) Accordingly, it is RECOMMENDED that Claims 10, 11, and 12 be DISMISSED. 3. Court Constitutional Claim (Claim 17) In Claim 17, Supreme-El argues that "deprived [him] of the right to a 5th,^ 6th,® 11-M.) ^ 9th® Amendment violation." the Circuit fair trial, (§ 2254 Pet. Supreme-El argues: Because Supreme-El is a state prisoner, Amendment applies any due process the Fifth through the Fourteenth Amendment to claim. The Fourteenth Amendment states, in relevant part: "No State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const, amend, XIV, § 1. 13 Judge Everett A. Martin, Jr. showed bias and discrimination against the Petitioner's nationality, indigenous status, customs, and deprived the Petitioner effective legal remedies himself in propia persona one's one's to sui of represent juris (in proper person, as a matter own right) in violation of of law, the Virginia Canons of Judicial Conduct . . . ; The Rights of Indigenous Peoples, Article 39; The 5th, 6th, and 9th Amendments. The Petitioner was removed from the courtroom after speaking under a calm and intelligent tone, and tried in his absence. (Id. at alleges 11-M.) First, to that the Circuit the extent Supreme-El Court judge lacked jurisdiction to prosecute Supreme-El, such lacks merit for the reasons previously Moreover, Rights a claim stated. any claim under Virginia judicial canons or of Indigenous Peoples provides basis for federal habeas review. at 780; Bey, 2011 WL 4007719, no cognizable See Lewis, 4 97 U.S. at *2. The Court doubts Supreme-El actually raises a claim of constitutional dimension. Nevertheless, the Court addresses his undeveloped claim that the Circuit Court violated his constitutional rights by removing him from the courtroom during his trial. "The and the Confrontation Due Process Clause Clause of of the the Sixth Amendment Fifth Amendment together guarantee a defendant charged with a felony the right to be present at all critical stages of his trial." United States v. Rolle, 204 F.3d 133, 136 (4th Cir. 2000) . Thus, a defendant has a constitutional right "to be present at all stages of the ® trial where his might "In all criminal prosecutions, enjoy the right . . witnesses against him . ® absence . . frustrate the the accused shall to be confronted with the . ." U.S. Const, amend. VI. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." U.S. Const, amend. IX. to Supreme-El fails to explain, discern, how the Ninth and the Court fails Amendment federal habeas r e l i e f . 14 entitles him to fairness of the proceedings." California, 422 Nevertheless, V. Evatt, U.S. 806, limitations 72 F.3d Id. (citing Faretta v. 819 exist on 421, 432 n.l5 this (4th (1975)). right. Cir. Bell 1995). A criminal defendant "may waive his right to be present either *by consent or at times even by misconduct.'" United States 2011) 105 v. (quoting Benabe, 654 Snyder v. F.3d 753, 768 Massachusetts, (7th Cir. 291 U.S. 97, (1934)). "A defendant can lose his right to be present at trial if, after he has been warned by the trial judge that he will be removed if he continues his disruptive behavior, conducting he nevertheless himself in a disorderly, the court disruptive, that his on with him in the Bell, U.S. 72 337, F.3d at 343 432 (1970)). insists manner on so and disrespectful of trial cannot be carried courtroom." (quoting Illinois v. However, »[a] Allen, 397 defendant who has lost his right to be present can always regain it as soon as he 'is willing to comport himself consistently with the decorum and respect inherent in the concepts of courts and judicial proceedings.'" Id. at 769 (citing Allen, 397 U.S. at 343). The record demonstrates "clear support for the [Circuit Court's] determination that, through [his] tandem campaign of obstreperous interruptions and frivolous legal arguments" Supreme-El waived his right to be present at trial. Id. at 769. On the day of trial, Supreme-El repeatedly espoused his Moorish American views in response to simple questions asked of him by the Circuit Court. The Court admonished Supreme-El that the Circuit Court had already handled those matters at a prior hearing and stated that "I'm not going to revisit that," (Nov. 14, 2012 Tr. 6), and warned that "[t]his is not the time for a speech." (Nov. 14, 2012 Tr. 11.) instructed Supreme-El times, and Supreme-El (Nov. 14, 2012 Tr. When to "have a refused and 15-16), the the Circuit Court seat, sir," three continued arguing, Circuit Court warned Supreme-El to " [p]lease be quiet," and then gave him a "last warning." (Nov. 14, 2012 Tr. 16.) Supreme-El continued to argue, and the Circuit Court found Supreme-El in contempt and sentenced him to ten days 15 in jail. (Nov. 14, 2012 Tr. 16.) Supreme-El refused to be quiet and the following exchange took place: THE COURT: Mr. Supreme-El, if you do not be quiet, you will be put in the lockup, and the trial will be conducted in your absence. THE DEFENDANT: I do not consent to an ex parte hearing. THE COURT: Well, then, please be quiet so we can proceed. THE DEFENDANT: Listen. The only way that you can proceed- THE COURT: Don't tell me to "listen," Mr. Supreme-El. Be quiet. THE DEFENDANT: You are superseding your authority -THE COURT: I understand you think that. Be quiet. THE DEFENDANT: You are binded by Article 6 -- THE COURT: Take him to lockup. We'll conduct the trial with him in the lockup. I find the defendant will not stop talking. (Nov. 14, 2012 Tr. 17.) The Circuit Court then removed Supreme-El from the courtroom but directed counsel to inquire of Supreme-El whether "he wishes to cease his speeches and wishes (Nov. to 14, sit 2012 here Tr. and listen 17-18.) to The the evidence." Circuit Court subsequently brought Supreme-El back into the courtroom and gave him many more chances to assure the Circuit Court that appropriately. interrupting and (Nov. 14, 2012 Tr. he would conduct Supreme-El refused refused to promise to 18-23.) himself to be stop quiet. The Circuit Court directed that Supreme-El "be taken into the lockup," and then insured that the audio system worked in the lockup so Supreme-El could hear the testimony in the courtroom. (Nov. that 14, 2012 counsel Tr. could 23.) The discuss Circuit the after each witness testified. case (Nov. Court with 14, directed his 2012 Tr. client 24.) Despite Supreme-El's contention that he "was removed from the courtroom after speaking under a calm and intelligent tone" (§ 2254 Pet. 11-M) , his purported "intelligent tone" has no bearing on the 16 inquiry. Instead, the Circuit Court appropriately removed Supreme-El from the courtroom. Supreme-El continuously interrupted the Circuit Court and refused to appropriately answer questions, despite repeated warnings by the Circuit Court regarding his behavior. See Bell, 72 F.3d warned Supreme-El at 432. that "he When the would be Circuit removed Court from the courtroom if he continued his antics, [Supreme-El] disregarded the trial judge and refused to remain quiet." Id. Thus, "[t]he trial judge responded to [Supreme-El's] refusal to curtail his antics in the only sensible manner, removal from the courtroom." Id. at n.ll. Supreme-El fails to demonstrate that his removal from rights. the courtroom violated his Accordingly, constitutional it is RECOMMENDED that Claim 17 be DISMISSED. C. Motion to Amend On June 20, 2014, Supreme-El filed a Motion for Leave to File an Amended Petition (ECF No. 22), that had no accompanying amended petition, but instead, attempted to tack four new claims to his § 2254 Petition (ECF Nos. 22-1, 22-2, 22-3.) Supreme-El's proposed new claims are as follows: Claim 18: "Rights 39 . . of . Indigenous Ineffective (ECF No. 22-1, at 1.) "Brady v. Maryland, 373 Claim 19: Peoples Assistance U.S. of Article Counsel." 83, 87 (1963) Evidence was suppressed by the prosecution." ECF No. of No. Claim 21: 22-2, "Denial Claim 20: at 1.) 22-3, at 1.) self-representation." (ECF "Lack of due process of law 5th Amendment." (ECF No. 22-4, at 1.) "Under Rule 15(a) leave to amend shall be given freely, absent bad faith, undue prejudice to the opposing party, or futility of amendment." United States V. Pittman, (citations RECOMMENDED However, 209 omitted). that the F.3d 314, As 317 explained Motion to (4th Cir. below, Amend be 2000) it is GRANTED. it is also RECOMMENDED that Claims 18 through 21 be DISMISSED for lack of merit. 17 1. Ineffective Assistance To demonstrate ineffective assistance of counsel, a convicted defendant must show first, that counsel's representation was deficient and, second, that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984) . To satisfy the deficient performance prong of Strickland, the convicted defendant must "'strong presumption' that counsel's tactics fall 'within the wide range professional assistance.'" Burch v. F.3d 577, U.S. at 588 {4th Cir. 689). defendant The to "show 2001) component there is the strategy and of reasonable Corcoran, 273 (quoting Strickland, prejudice that overcome 466 requires a a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. In analyzing ineffective assistance of counsel claims, it is not necessary to determine whether counsel performed deficiently if the claim is readily dismissed for lack of prejudice. Id. at 697. In Claim 18, Supreme-El claims that "counsel proved to be ineffective by not being competent to represent the Petitioner under the protection of international laws and his own Constitution (Free Moorish-Zodiac Constitution)" and for failing to advance Supreme-El's nonsensical arguments about the Circuit Court's lack of jurisdiction. (ECF No. 22-1, at 1.) Supreme-El fails to demonstrate any deficiency of counsel or resulting prejudice. Counsel wisely eschewed making the frivolous arguments Supreme-El advances. Accordingly, i t is RECOMMENDED that Claim 18 be DISMISSED. 2. Alleged Brady Claim In Claim 19, Supreme-El suggests that the Commonwealth suppressed evidence "favorable to the Petitioner" in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963). (ECF No. 22-2, at 1.) Brady and its progeny "require[ ] a court to vacate a conviction and order a new trial if it finds that the prosecution suppressed materially exculpatory evidence." United States V. King, 628 F.3d 693, 18 701 {4th Cir. 2011) . Accordingly, in order to obtain relief under Brady, a litigant must "{!) identify the existence of evidence favorable to the accused; (2) show that the government suppressed the evidence; and {3) demonstrate that the suppression was material." Id. (citing Monroe v. Angelone, 323 P.3d 286, 299 {4th Cir. 2003)). Supreme-El fails to demonstrate Commonwealth suppressed material evidence. Supreme-El suggests that the Commonwealth "documents [that] confirmed Diplomatic Agent of the on he the Petitioner Autochthon American Muurish Government at 1.) As demonstrate that . . . that the Instead, suppressed Yamassee ." is a Native (ECF No. 22-2, previously discussed, Supreme-El fails to entitlement to diplomatic immunity based his Moorish American status. Thus, the documents alleges that the Commonwealth suppressed had no bearing on his criminal prosecution, and no Brady violation occurred. Accordingly, i t is RECOMMENDED that Claim 19 be DISMISSED. 3. Denial of Self-Representation In Claim 20, Supreme-El argues that the Circuit Court denied him his right to self-representation although he waived the right to counsel. (ECF No. 223, at 1.) Supreme-El states: "The Petitioner timely, knowingly and intelligently signed a detailed form, 6months before trial, waiving his right to a lawyer, the form was signed before several hearings took place." (Id.) Supreme-El contends that the "UCC" form he signed, "reserve [d] his right and to not be liable for anything unknown in signing thereof. The denial of this right constitutes a structural defect." (Id.) First, the Court fails to discern how a "UCC" document waived his right to counsel. Supreme-El also advances no argument demonstrating that the Circuit Court appointed counsel over his objection or that a constitutional violation occurred. Nevertheless, Supreme-El's claim lacks merit as the record demonstrates Supreme-El's clear inability to represent himself during the criminal trial. Although a criminal defendant generally has the right to waive his constitutional right to counsel and defend himself pro se, a defendant's "right to selfrepresentation is not absolute." United States v. Frazier-El, (citation 204 F.3d omitted). 553, 559 Rather, 19 a (4th "trial Cir. judge 2000) may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct" because the "right of self-representation is not a license to abuse the dignity of the courtroom." Faretta v. California, 422 U.S. 806, 834 n.46 (1975); see Martinez v. Court of Appeal of California, Fourth Appellate Dist., 528 U.S. 152, 162 (2000) (explaining that a self-representation . . trial . even judge may over the "terminate defendant's objection-if necessary" and that "the government's interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant's interest in acting as his own lawyer"); see also Frazier-El, 204 F.3d at 559 (holding that when a defendant "manipulate[s] the mutual exclusivity of the rights to counsel self-representation" and ascribe a 'constitutional the primacy' to court the "must right to counsel because this right serves both the individual and collective good, as opposed to only the individual interests served representation" 107 F.3d 1091, by protecting (quoting 1102 United (4th Cir. the right States v. of self- Singleton, 1997))). As detailed previously, prior to trial, SupremeEl repeatedly refused to comply with the Court's directives or appropriately answer the Court's questions. Supreme-El's obstreperous attempts to pursue lacked the frivolous defense that the jurisdiction to try or convict Circuit Court him, rendered him unable to adequately represent himself or present the best possible defense. See United States v. Brunson, 482 F. App'x 811, 818 (4th Cir. 2012) (finding that "the district court had sufficient grounds to revoke [defendants'] pro se status and appoint full-time "disruptive and repeated assertions counsel" based on their ongoing obstructive conduct," including "that the district court did not have jurisdiction"); Frazer-El, 204 F.3d at 559-60 (finding no constitutional violation of selfrepresentation when Moorish American defendant insisted upon making "meritless and irrelevant" arguments that "he was not subject to the jurisdiction of a . . . court"). Additionally, Supreme-El's instant "assertion of his right to proceed without counsel , . . suggest [s] more a manipulation of the system than an unequivocal desire to invoke his right of self-representation." Id. at 560. In light of Supreme-El's conduct prior to trial, the Circuit Court 20 appropriately refused to allow him to proceed pro se. Thus, Claim 2 0 lacks merit. Accordingly, it is RECOMMENDED that Claim 2 0 be DISMISSED. 4. Due Process Violation In Claim 21, Supreme-El claims that his "due process rights [were] violated by the Norfolk Police Department['s]" failure to "contact the Department of State, after Minister/Jurisconsultus, Supreme-El presented foreign public documents, notifying them of his diplomatic status." (ECF No. 22-4, 1.) Because Supreme-El fails to establish any entitlement to diplomatic status, he demonstrates no due process error by the arresting officers. Claim 21 lacks merit, and i t is RECOMMENDED that i t be DISMISSED. (Report and Recommendation entered Dec. 1, 2014) (alterations in original). II. STANDARD OF REVIEW FOR REPORT AND RECOMMENDATION "The magistrate makes only a The recommendation has responsibility to make court." 1993) Estrada v. a no presumptive final Witkowski, (citing Mathews v. recommendation to this court. Weber, weight, and determination remains 816 F. 423 Supp. U.S. 408, 261, the with this 410 270-71 (D.S.C. (1976)). This Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which filing district objection of is objections judge to made." to focus a 28 U.S.C. magistrate's attention on those § 636(b)(1). report enables issues—factual legal—that are at the heart of the parties' dispute." Arn, 474 U.S. 140, 147 (1985). "The the and Thomas v. When reviewing the magistrate's 21 recommendation, 28 U.S.C. this Court § 636(b)(1). III. Supreme-El subparts. short has SUPREME-EL'S filed Supreme-El's on merit. baseless, and Objections 4, and 7, are absurd The 8. long reiterates his § 2254 dispenses with argument in Virginia courts of reasonably In 6, that heritage, his diplomatic 1, Judge's conclusion failing to claim of state habeas relief. Magistrate advancing fail For the these Supreme-El that the arguments his and any other to same law (Obj. by and in failed 4.) not objects Circuit indictments erred vein, status, deprive reason, in the counsel any form. 7, and 8 will be overruled. Objection enter similar jurisdiction. eschewed Objections 3, 4, a merely conclusion residence somewhere outside of the United States, frivolous his objections American and of but from five variety verbiage, mostly indisputable immunity a on quickly These Moorish diplomatic with arguments Court Judge's purported to objections Supreme-El and Magistrate Supreme-El's entitlement 6, OBJECTIONS objections amendments. 3, the eight Instead, nonsensical, Petition attack "may also receive further evidence." the to to Court's order state the alleged book a Magistrate error in stated only a claim for federal Supreme-El vaguely states that "tt]he finding 22 the state trial court's indictment and grand jury proceeding to be in conflict with the 5th Amendment." argument for (Id.) this Supreme-El conclusion. provides Thus, no Objection supporting 1 will be overruled. In erred Objection in his 2, Supreme-El conclusion removed Supreme-El that from the claims the that Circuit courtroom. Magistrate Court Judge appropriately Supreme-El's continued assertions that he was not disruptive are wholly belied by the record. Supreme-El incorrectly also concluded contends that Supreme-El the courtroom from the lockup, to hear." (Id. at 6.) that the could Magistrate hear and states that he the Judge audio of "was not able Supreme-El fails to articulate how this alters the Magistrate Judge's conclusion that Supreme-El waived his right refusal the to Circuit Circuit that his rights. present to comport opportunities the be himself Court's to correct the Supreme-El's persistent appropriately during trial, his warnings and obstreperous actions. from Supreme-El provision behavior, fails courtroom violated his to despite of many warranted demonstrate constitutional Objection 2 will be overruled. In Objection 5, Supreme-El argues that the Magistrate Judge incorrectly concluded waive trial. extensive Court's removal at his right to a that "the lawyer form was a the 'UCC Petitioner signed to form, ' and erred in concluding that the manipulation of the system was the basis for 23 the waiver." signed a (Id^ at 11.) "'Trial Lawyer Waiver form' UCC form. (Id.) himself. Court the record clearly demonstrates that the reasonably refused to allow him to represent Objection 5 will be overruled. Supreme-El has also Specific Objections. "written brief filed a Motion for Leave setting forth a concise statement [for his motion], the authorities upon which [he] relies" For that reason alone, to Amend should be denied. Nevertheless, Supreme-El's objections thirteen new of the along with a Amend facts citation in violation of Local Rules for the Eastern District of Virginia Loc. Civ. R. 7(F). to Supreme-El failed to file an accompanying and supporting reasons of 6 months in advance" not a No matter what form Supreme-El signed to waive his right to counsel, Circuit Supreme-El now clarifies that he See E.D. the Va. Supreme-El's Motion's the Court has reviewed and finds them without merit IV. CONCLUSION Supreme-El's Motion for Leave to Amend Specific Objections (ECF No. 26) will be granted. Supreme-El's Objections will be ^ Supreme-El's amended objections are even more frivolous than his first eight. Supreme-El resurrects arguments from his § 2254 Petition, but now claims that Magistrate Judge erred by failing because to of consider the Circuit Court's lack of jurisdiction his consular status, his freehold by inheritance status, an express trust, treaties, unalienable birthrights, membership in a foreign state and a mission, his residence outside of the United States, or inapplicable case law. 24 overruled. adopted. The Report and Recommendation will be accepted and The Motion to Dismiss Supreme-El's Motion for (ECF No. Summary Judgment Motion to Amend 16) will be granted. (ECF No. (ECF No. 20) 22) will be will be denied. Supreme-El's granted. Supreme-El's claims and the action will be dismissed. The Court will deny a certificate of appealability. An appropriate Final Order will accompany this Memorandum Opinion. /s/ AA Date: Richmond, Virgini KODerc a. fayne Senior United States District Judge 25
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