Opinion
C. A. 4:24-858-RMG-TER
03-15-2024
Zannie J. Lotharp, #35081-057, a/k/a Zannie Jay Lotharp, Petitioner, v. Warden M. Joseph, Respondent.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III., UNITED STATES MAGISTRATE JUDGE.
Petitioner, a federal prisoner, proceeding pro se, brings this action pursuant to 28 U.S.C. § 2241 for habeas relief. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(c), D.S.C., the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the District Court. For the reasons that follow, the undersigned recommends that the Petition be denied.
DISCUSSION
Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings and motion to proceed in forma pauperis pursuant to the procedural provisions of 28 U.S.C. § 1915 and the Anti-Terrorism and Effective Death Penalty Act of 1996. The review has been conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995)(en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The Petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per curiam); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, the petition is subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Department of Social Services, 901 F.2d 387, 390-91 (4th Cir. 1990).
Furthermore, this court is charged with screening Petitioner's lawsuit to determine if “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4 of Rules Governing Section 2254 Cases in the United States District Courts. Following the required initial review, it is recommended that the Petition should be summarily dismissed as Petitioner has failed to state a claim upon which relief could be granted as Petitioner's argument ground is frivolous.
The Rules Governing Section 2254 Cases are also applicable to Section 2241 cases. See Rule 1(b) of Rules Governing Section 2254 Cases.
Petitioner alleges he is in custody unlawfully in violation of the United Nations Declaration on the Rights of Indigenous Peoples. (ECF No. 1 at 1). Petitioner is serving a sentence out of the United States District Court for the Middle District of North Carolina. (ECF No. 1 at 2). Petitioner contends he is contesting the “legality of the restraint on liberty and unlawful imprisonment.” (ECF No. 1 at 2). Petitioner states this is the first time he is raising the issue and has not raised it to the BOP or to the § 2255 court. (ECF No. 1). This is the third such frivolous § 2241 action filed by Petitioner. See Lotharp v. Joseph, No. 4:23-cv-4769-RMG; Lotharp v. Joseph, No. 4:24-cv-136-RMG. Petitioner requests as relief “discharge from unlawful imprisonment.” (ECF No. 1 at 8).
Petitioner asserts that he is a “National but not a citizen of the United States and not subject to the jurisdiction thereof.” (ECF No. 1-1 at 2). Later, Petitioner attaches a document showing he was born in North Carolina (ECF No. 1-1 at 38). Petitioner also asserts he is not a person. (ECF No. 1-1 at 3).
“Petitioner's assertions appear to be based, at least in part, on the “redemptionist” theory or the related “sovereign citizen” theory, which are frivolous legal theories that have been consistently rejected by federal courts.” Nunez v. D.T.C., No. 4:13-cv-244-TMC, 2013 WL 5409219, at *3 (D.S.C. Sept. 25, 2013)(citing Monroe v. Beard, 536 F.3d 198, 203 n. 4 (3d Cir.2008)). A prisoner's attempt “to avoid the consequences of his criminal conviction” based on the redemptionist theory, has been recognized as “legally frivolous.” Ferguson-El v. Virginia, 2011 WL 3652327, at *3 (E.D.Va. August 18, 2011); Rufus v. Warden, Coffee Corr. Facility, No. 6:20-CV-01104-MBS-KFM, 2020 WL 5371157, at *2 (D.S.C. May 20, 2020)(collecting cases), report and recommendation adopted sub nom., 2020 WL 5366056 (D.S.C. Sept. 4, 2020), aff'd as modified sub nom. 854 Fed.Appx. 546 (4th Cir. 2021).
Petitioner's argument that he is not a person and has a right to a nationality is legally frivolous and fails to state a cognizable claim under § 2241.
RECOMMENDATION
Accordingly, it is recommended that the Petition in this case be denied and dismissed without prejudice and without requiring the respondent to file a return.
IT IS SO ORDERED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).