Kenneth W. Gibbs v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Mar 24 2015, 9:00 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Kenneth W. Gibbs Gregory F. Zoeller
Michigan City, Indiana Attorney General of Indiana
Frances Barrow
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kenneth W. Gibbs, March 24, 2015
Appellant-Defendant, Court of Appeals Case No.
22A01-1407-MI-320
v. Appeal from the Floyd Superior
Court
Honorable Vicki L. Carmichael,
State of Indiana, et al., Special Judge
Appellee-Plaintiff Cause No. 22D01-1302-MI-001
Friedlander, Judge.
[1] Kenneth W. Gibbs appeals the denial of his petition for writ of habeas corpus,
thereby challenging (1) the denial of his petition for writ of habeas corpus, (2)
the revocation of his parole, (3) the calculation of credit time, (4) the failure to
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rule on his motion for name change, (5) the failure to rule on his Petition for
Nihil Dicit Judgment, and (6) the failure to rule on his Bill of Equity.
[2] We affirm.
[3] On March 12, 1984, Gibbs was sentenced to fifty years imprisonment following
his conviction of attempted murder in Floyd County, Indiana. He was released
to parole on July 2, 2006 and began serving parole in Kentucky. On June 18,
2007, a parole violation warrant was issued. The warrant was served upon
Gibbs on June 27, 2007 and he waived extradition on July 11 of that year. On
July 12, 2007, a parole revocation hearing was held in Kentucky, which was
followed on September 7, 2007 by a parole revocation hearing in Indiana.
Following the Indiana hearing, Gibbs’s parole was revoked. At the time of the
parole revocation hearing in Kentucky, Gibbs had 9632 days remaining on his
sentence.
[4] On February 27, 2013, Gibbs filed a Petition for Writ of Habeas Corpus in
Floyd Superior Court. At the time, Gibbs was incarcerated at the Miami
Correctional Facility in Miami County, Indiana. On March 18, 2013, Gibbs
filed an Affidavit of Fact Submitting Legal Notice Name Declaration,
Correction Proclamation and Publication (Name Declaration Notice), which
we will discuss in more detail below. On July 18, 2013, Gibbs filed a Petition
for Nihil Dicit Judgment, and on August 26, 2013 Gibbs filed a Bill of Equity.
[5] On June 25, 2014 the trial court entered an order on the various pleadings filed
by Gibbs. The court denied his writ of habeas corpus and affirmed the
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revocation of his parole and the calculation of credit time. The court did not
address Gibbs’s Name Declaration Notice, nor did it rule on his Petition for
Nihil Dicit Judgment or Bill of Equity.
1.
[6] Gibbs challenges the denial of his petition for writ of habeas corpus. Pursuant
to Ind. Code Ann. § 34-25.5-2-2(a)(1) (West, Westlaw current with legislation
of the 2015 First Regular Session of the 119th General Assembly effective
through February 23, 2015), a writ of habeas corpus may be granted by “the
circuit or superior courts of the county in which the person applying for the writ
may be restrained of his or her liberty, or by the judges of those courts[.]” Although
Gibbs was convicted in Floyd Superior Court, he was incarcerated in Miami County
at the Miami County Correctional Facility at the time he filed his petition.
Therefore, Floyd Superior Court, indeed any Floyd County court, lacked
jurisdiction to grant Gibbs’s petition for writ of habeas corpus. Therefore the trial
court did not err in denying the petition.
2.
[7] Gibbs challenges the revocation of his parole, arguing that the revocation court
did not conduct a preliminary hearing in a timely manner. Gibbs previously
raised precisely the same issue before in this court. In a memorandum decision,
this court rejected Gibbs’s argument as follows:
The issue of whether Gibbs–El’s parole hearing was held in a timely
manner as required by Indiana Code section 11–13–3–10 was
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expressly determined by the Miami Circuit Court in its October 5,
2010 order. That court properly determined that his parole hearing,
held on September 7, 2007, was held within sixty days of July 11,
2007, the date that Gibbs–El waived extradition. And there is nothing
in the record before us that would lead us to conclude that Gibbs–El
did not have a “full and fair opportunity to litigate the issue” in the
prior Miami Circuit Court proceedings.
For these reasons, Gibbs–El is collaterally estopped from raising his
claim that his parole should not have been revoked because of the
alleged untimeliness of his parole revocation hearing. And his case was
properly dismissed because his requests for monetary and injunctive
relief arise solely from that claim. Finally, Gibbs–El’s continued
attempts to relitigate this issue are frivolous; therefore, the trial court
did not err when it dismissed his case pursuant to Indiana Code
chapter 34–58–1.
Gibbs-El v. Hegewald, No. 49A02–1107–CT–747, slip op at 2 (Ind. Ct. App.
February 23, 2012), trans. denied. To the list of reasons that this argument is
without merit (i.e., collateral estoppel, frivolousness), we add res judicata.
“The doctrine of res judicata prevents the repetitious litigation of that which is
essentially the same dispute.” Ben–Yisrayl v. State, 738 N.E.2d 253, 258 (Ind.
2000), cert. denied, 534 U.S. 1164. If an issue was raised on direct appeal, but
decided adversely, it is res judicata. Williams v. State, 808 N.E.2d 652 (Ind.
2004).
[8] Gibbs’s repetitious challenge to the revocation of his parole is therefore barred
by the doctrine of res judicata. See Maxey v. State, 596 N.E.2d 908, 911 (Ind. Ct.
App. 1992) (“[i]t is imperative to an orderly judicial system that, at some point,
controversies end”).
3.
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[9] Gibbs contends the trial court erred in rejecting his claim that his credit time
was calculated incorrectly. In Indiana, a prisoner is placed into a “class” for the
purpose of earning credit time. It is undisputed that Gibbs was classified in
Class I. Inmates in Class I earn one day of credit time for every day
imprisoned. Ind. Code Ann. § 35–50–6–3 (West, Westlaw current with
legislation of the 2015 First Regular Session of the 119th General Assembly
effective through February 23, 2015).
[10] Gibbs’s original executed sentence was 50 years, or 18,262 days. He was
released with good-time credit after 25 years and placed on parole. Gibbs
seems to argue that after having earned credit time during the twenty-five-year
incarceration on his original sentence, he could not be ordered back to prison to
serve all or part of the remainder of his original sentence after his parole was
revoked. In effect, he contends that ordering him to serve the remainder of his
original sentence would deprive him of his earned credit time. This court has
rejected this construction of the meaning of I.C. § 35-50-6-1 (West, Westlaw
current with legislation of the 2015 First Regular Session of the 119th General
Assembly effective through February 23, 2015) in Harris v. State, 836 N.E.2d 267(Ind. Ct. App. 2005), trans. denied.
[11] In Harris, the defendant, after earning good-time credit of approximately six and
one-half years, was paroled after serving three and one-half years of his ten-year
sentence based upon having earned good-time credit. He subsequently was found
to have violated the conditions of parole, and parole was revoked and the remainder
of the original sentence reinstated. Harris argued that in so doing, the trial court
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deprived him of the credit time he had earned prior to his release on parole. We
rejected this argument, explaining:
[Harris’s] early release does not mean that Harris had completed his
sentence and was entitled to discharge. Rather, the credit time statutes
are only applied to determine when felons are eligible for parole.
While on parole, the parolee remains in legal custody because,
although parole is an amelioration of punishment it is, in effect, still
imprisonment.
Id. at 282 (internal citations to authority omitted). We further note that I.C. §
35-50-6-1(c) provides, “[a] person whose parole is revoked shall be imprisoned
for all or part of the remainder of the person’s fixed term.”
[12] Gibbs was originally sentenced to 18,262 days imprisonment. Records reveal
that he had 9632 days remaining on this sentence at the time of his parole
revocation hearing in Kentucky. Therefore, the trial court did not err in
concluding that he must serve the remaining 9632 days minus days served on
parole and minus credit time earned since the revocation.
4.
[13] Gibbs filed a Name Declaration Notice. The nature of this document may best
be gleaned from its final paragraph, which states:
WHEREFORE, the court submit petitioner’s attached Exhibits A
through H, for the record, on the record, and let the record show,
Petitioner as Ex Rel Washitaw Kenneth Willis Gibbs-El, is a Moorish
national aboriginal, indigenous natural person, and not a nom-de-
guerre, strawman [sic] or any other artificial corporate construct as
written in ALL CAPITAL LETTERS, by the unclean hands of others,
or for any other relief deemed just.
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Id. at 85. The referenced exhibits include (1) an “affidavit of fact” in which
Gibbs attests that he is an “Aboriginal/Indigenous, free sovereign Moor-natural
person of the land”, id. at 86; (2) a letter from Gibbs to the US Department of
Homeland Security asking to be registered as a Washitaw and Moorish
Sovereign; (3) a response from the US Department of Homeland Security
explaining that such was beyond its purview; (4) a document entitled “Legal
Notice! Name Declaration, Correction Proclamation and Publication” under
the letterhead of Moorish Devine and National Movement of the World, id. at
90; (5) a document entitled “Judicial Notice and Proclamation” declaring
Gibbs to be “a Noble of the Al Moroccan Empire (North America) In Propia
Persona”, id. at 91; (6) a Kentucky UCC Financing Statement identifying
“Kenneth Willis Jr.” as the “collateral record owner” and “Kenneth Willis
Gibbs Jr.” as the debtor, with the collateral identified as “all certificates of birth
document … as herein liened and claimed at a sum certain $100,000,000.00”,
id. at 100; (7) a hold-harmless and indemnity agreement between “Kenneth
Willis Gibbs” and “Kenneth Willis Gibbs-El”; and (8) a “Notice of Public
Records Correction” under the letterhead of the Moorish Devine and National
Movement of the World, purporting to provide public notice that “the former
name, Kenneth Willis Gibbs, is to be corrected on all records replace with the
name, Kenneth Willis Gibbs-El.
[14] Gibbs complains that the trial court failed to rule on his Name Declaration
Notice. Indeed, the trial court failed to mention it at all. We have scrutinized
this document and cannot find any indication that it is a request for trial court
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action. It appears to be merely what it purports to be: a declaration of Gibbs’s
change of names. As such, it neither solicited nor required trial court action,
and the trial court did not err in failing to act.
5.
[15] Gibbs contends the trial court erred in failing to grant his Petition for Nihil
Dicit1 Judgment, an arcane phrase describing a ruling whose modern equivalent
is a default judgment. In the petition, Gibbs noted that he had filed a petition
for writ of habeas corpus seeking his release and noting that he had received no
response from the prosecutor, Keith Henderson. In his Petition for Nihil Dicit
Judgment, he claimed, “[i]t’s clear from the filings Mr. Gibbs represented to
this court, seeking his immediate release from unlawful restraint, under his writ
of habeas corpus ad subjiciendum, the [Floyd County] prosecutor Keith
Henderson having filed no objection or response and acknowledging Mr.
Gibbs’s right to the relief requested.” Transcript at 110. He requested the
following relief:
[T]he Court enter an order granting Plaintiff’s Writ of Habeas Corpus
Ad Subjiciendum and Judgment entered against Defendant Keith
Henderson, Floyd County prosecutor, in proceeding in which he is in
Court that has not filed an answer; all error or pleading being waived,
court examines Petition for Writ of Habeas Corpus Ad Subjiciendum
1
“Nihil dicit” is a Latin phrase meaning “he says nothing.” Merriam Webster’s Online
Dictionary, available at http://www.merriam-webster.com/dictionary/nihil%20dicit (last visited on
March 13, 2015).
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seeking release of individual detained without process – State and
determine it stated a cause of action within Court’s jurisdiction to
grant the requested relief.
[16] Id. at 111. At the hearing, the prosecutor correctly pointed out that the Floyd
County Prosecutor’s Office was not a proper party in matters concerning
Gibbs’s parole and the appropriate calculation of Gibbs’s credit time. The
prosecutor also pointed out that Gibbs failed to provide enough copies of some
of the documents he filed and he did not follow local rules. As a result of these
shortcomings, the Floyd County Prosecutor’s Office was not served with
several of the matters filed by Gibbs. Under these circumstances, i.e., that the
Floyd County Prosecutor’s Office was not a proper party in the matters Gibbs
was pursuing and in any event the Floyd County Prosecutor’s Office was not
even served with several of the pleadings filed by Gibbs, Gibbs failed to
demonstrate that he was entitled to default judgment.
6.
[17] Gibbs contends that the trial court failed to rule on his Bill of Equity. The
pleading to which he refers is a seven-page, handwritten document designated
by the author as a “Complaint” and entitled “Bill of Equity”. Transcript at 113-
119. The body of the document is divided into seventeen numbered paragraphs
and a prayer for relief. It weaves together concepts and terminology related to
the law of personal property, trust law, bailments, secured transactions, agency,
and habeas corpus in such a way as to be nearly unintelligible. It culminates in
Paragraph 17, which purports to summarize the nature of Gibbs’s claim, as
follows:
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On July 11, 2013, since no one can be trustee of both the Cestui Que
Vie Trust Trust ([indecipherable]) Trust and the constructive trust case
# 22D01-1302-MI-000001). At the same time, the plaintiffs they did a
“Bait and Switch”[.] [P]laintiffs use the Cestui Que Vie Trust to create
a temporary constructive trust --- the case. The matter/case is a trust
apart from, but attached to the Cestui Que Vie Trust. The bonds are
added to the constructive trust, at clerk’s office in Floyd County. The
result under the Cestui Que Vie Trust/constructive trust wherever the
circumstances of this transaction were such that Mr. Gibbs-El who
takes the legal estate in property (personal property his body) cannot
also enjoy the beneficial interest (liberty without liability) without
necessarily violating the constructive trust by switching Mr. Gibbs-El’s
role --- from beneficiary to trustee, because no party can be both. At
the same time, i.e. within the same constructive trust case #22D01-
1302-MI-000001), some established principle or equity cannot be both
beneficiary & trustee over the same constructive trust case, so the
Floyd County Superior No. 1 Vicki Carmichael, Judge, immediately
raise a constructive trust and fasten it upon the conscience of Mr.
Gibbs-El the legal title owner, so as “to convert Mr. Gibbs-El into a
fiduciary trustee” (responsible for the liability and accounting for the
trust) for the plaintiffs (parties) who in equity are entitled to the
beneficial enjoyment.
Id. at 117-19. The relief he sought was set out in his prayer for relief as follows:
PRAYER FOR RELIEF, the third-party intervention Mr. Gibbs-El
request that his “Bill of Equity” is granted for the relief he seeks.
Order a judgment to entitle him to claim his body and that he recover
possession of the trust personal property (body/Mr. Gibbs-El held as
property constructive trust case #22D01-1302-MI-000001) [.] So Mr.
Gibbs-El now claimed his body (personal property) so he is collapsing
the Cestui Que Vie Trust which the plaintiffs have charged, as there is
now no “value” in it! The case is now dismissed and Mr. Gibbs-El is
to be immediately discharged from incarceration under constructive
case #22D01-1302-MI-000001.
Id. at 119.
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[18] As best we can tell, Gibbs’s Bill of Equity is the functional equivalent of a
petition for writ of habeas corpus, whereby Gibbs sought release utilizing a
novel amalgam of trust and property law, the gist of which frankly escapes us.
The law recognizes no grounds for release of a prisoner premised upon
principles of personal property law, trust law, bailments, and the like. Thus, on
the stated grounds, the Bill of Equity is entirely devoid of merit. Viewed as a
petition for writ of habeas corpus, it has no more merit than the petition
denominated as such that Gibbs filed and which we have already determined
was properly denied.
[19] Judgment affirmed.
Baker, J., and Najam, J., concur.
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