Gilbert v. United States of America

Filing 11

ORDER of Dismissal. ORDERED that the habeas corpus application pursuant to 28 U.S.C. § 2241 is denied and the action dismissed as legally frivolous. FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. FURTHER ORDERED that any pending motions 1 2 8 9 are denied as moot, by Judge Lewis T. Babcock on 8/10/12.(lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-01637-BNB
WALTER LEE GILBERT,
Applicant,
v.
UNITED STATES OF AMERICA,
Respondent.

ORDER OF DISMISSAL

Applicant, Walter Lee Gilbert, is a prisoner in the custody of the United States
Bureau of Prisons (BOP) who currently is incarcerated at the United States Penitentiary,
Administrative Maximum. He filed pro se an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (ECF No. 7) on August 1, 2012. He has paid the $5.00
filing fee for a habeas corpus action.
The Court must construe the habeas corpus application liberally because Mr.
Gilbert is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The Court, however, should not act as
a pro se litigant’s advocate. See Hall, 935 F.2d at 1110. For the reasons stated below,
the application will be denied and the action dismissed.
In the application, which is verbose and generally unintelligible, Mr. Gilbert
asserts as his first claim that he is a “vessel” over which the Court has exercised
“admiralty jurisdiction” by placing a “maritime lien” against him in order to keep him in

custody. ECF No. 7 at 11. In his second claim, he apparently alleges that the Court
lacks either actual or constructive possession over him, and in his third claim he asserts
this case is moot because it fails to present an actual case or controversy. Documents
interspersed throughout the application, e.g., extrajudicial killing, affidavits for oath of
renunciation and certificate of death, warrant for removal, and memorandum of record,
fail to clarify Mr. Gilbert’s individual claims.
In the “Extrajudicial Killing” Mr. Gilbert alleges that the federal government “has
knowingly used the ‘color of law’ in acts of extrajudicial killing, by torture of the applicant
herein, causing the sovereign Walter Lee Gilbert to be bound by a political, spiritual, and
economical question within a democratic form of government.” Id. at 4. He purports to
renounce his United States citizenship in the “Affidavit for Oath of Renunciation,” id. at
5, and, in the “Affidavit for Certificate of Death,” he purports to announce his death by
declaring, inter alia, that the “artificial person, strawman corporation, moral person, body
politic, vessel Walter Lee Gilbert [is] dissolved nunc pro tunc to the date of birth.” Id. at
6. The application is similarly bizarre throughout.

As relief, Mr. Gilbert seeks a

“Warrant for Removal,” id. at 7-10, to the State of Mississippi. Id. at 9.
Mr. Gilbert’s attempts to effect his release from the custody of the BOP by
alleging that he has relinquished his United States citizenship or by declaring himself
dead are legally frivolous. Mr. Gilbert is entitled to no relief on his claims as a matter of
law. A claim is frivolous if it “lacks an arguable basis either in law or fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). A legally frivolous claim rests on “an indisputably
meritless legal theory,” such as a claim that a non-existent legal interest has been
infringed. Id. at 327. In addition, a claim is factually frivolous if it depicts “fantastic or
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delusional scenarios,” id. at 328, or where “the facts alleged rise to the level of the
irrational or the wholly incredible.” Denton v. Hernandez, 504 U.S. 25, 33 (1992). Rule
4 of the Rules Governing Section 2254 Cases in the United States District Court
authorizes a district court to conduct an initial screening of petitions and to dismiss
unworthy requests for habeas corpus relief. See Rule 4. Rule 4 has also been found to
permit sua sponte dismissal of a habeas petition that raises legally frivolous claims or
factual allegations that are palpably incredible or false. See, e.g., Mayle v. Felix, 545
U.S. 644, 655 (2005) (citing Advisory Committee’s Note on Habeas Corpus Rule 4
which requires the petition “to state facts that point to a real possibility of a constitutional
error”); see also Montero v. Bush, 107 Fed. App’x 180, 181 (10th Cir. Aug. 11, 2004)
(unpublished opinion) (dismissing a petition brought pursuant to § 2241 as “fantastic[,]
delusional and factually frivolous.”). The Court finds that Mr. Gilbert’s claims rest on “an
indisputably meritless legal theory.” Neitzke, 490 U.S. at 327.
The Court also finds that Mr. Gilbert’s apparent challenge to his criminal
conviction based upon admiralty jurisdiction rests on an "indisputably meritless legal
theory." Id. Admiralty jurisdiction is limited to torts that take place on navigable waters
and arise in the course of traditional maritime activities. See, e.g., Petersen v. C & O
Ry. Co., 784 F.2d 732, 736 (6th Cir. 1986). Moreover, similar claims based upon
admiralty jurisdiction have been routinely stricken or dismissed by other courts as
frivolous and legally unenforceable. See, e.g., Smith v. Mpire Holdings, LLC, 2010 WL
455271, at *2 (M.D. Tenn. Feb. 1, 2010) (unpublished decision) (collecting cases in
which the courts dismissed filings based on admiralty jurisdiction as frivolous).
Therefore, the application will be denied and the action dismissed as legally frivolous.
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Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this order would not be taken in good faith and therefore in forma pauperis status
will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Mr. Gilbert files a notice of appeal he must also pay the full $455.00 appellate
filing fee or file a motion to proceed in forma pauperis in the United States Court of
Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the habeas corpus application pursuant to 28 U.S.C. § 2241 is
denied and the action dismissed as legally frivolous. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this 10th day of

August

, 2012.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK
Senior Judge, United States District Court

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