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Gardner v. Wilkins

United States Court of Appeals, Tenth Circuit

October 24, 2013

EDSON GARDNER, Uintah Indian Descendant, Plaintiff/Counter-Defendant-Appellant,
v.
MICHAEL W. WILKINS, Uintah County Clerk-Auditor, Defendant-Counterclaimant – Appellee, and STATE OF UTAH, Defendant EDSON GARDNER, Petitioner - Appellant,
v.
JUDGE G. A. PETRY, Respondent - Appellee,

(D.C. Nos. 2:12-CV-00474-TC and 2:11-CV-01206-DN) (D. Utah)

Before BRORBY, LUCERO, and O'BRIEN, Circuit Judges.

ORDER AND JUDGMENT[*]

Terrence L. O'Brien, United States Circuit Judge

We here consider Edson Gardner's two pro se appeals. In the first appeal, No. 12-4156, he challenges the district court's dismissal of his complaint to enjoin Utah from collecting taxes from him because he lives and works on Indian land. The second appeal, No. 12-4158, is from the dismissal of his 28 U.S.C. § 2241 petition for a writ of habeas corpus in which he names as defendant the judge who fined him for a speeding ticket received while driving on Indian land.

Litigation regarding Gardner's Indian status is a road well-traveled. He does not claim to be a member of a federally recognized tribe. Rather, he claims only to be a descendant of a former member, as are many other Americans. Despite his best efforts in federal, state, and tribal court, this heritage does not entitle him to Indian status whether or not he lives and works on the reservation. See Gardner v. United States, 25 F.3d 1056 (10th Cir. 1994) (unpublished); State v. Gardner, 827 P.2d 980 (Utah Ct. App. 1992); Gardner v. Ute Tribal Court, 36 F.App'x 927 (10th Cir. 1992) (unpublished) (where Gardner alleged he was in the custody of the Ute tribal court based on the court's letters admonishing him against the unauthorized practice of law and forbidding him from practicing in the tribal court because he lacked a law license and was not a member of a federally recognized tribe.).

Nonetheless, Indian status is the basis for both of his complaints. The defendants in both cases moved for judgment on the pleadings because Gardner had already litigated Utah's authority over him and lost. Gardner, 25 F.3d 1056, 1994 WL 170780 at *3 ("The State of Utah does not have jurisdiction over crimes committed by Indians in Indian Country. However, states do have jurisdiction in Indian country over crimes committed by non-Indians against non-Indians, as well as over victimless crimes committed by non-Indians.") (citation omitted).

The motions to dismiss were granted in both cases. The complaint associated with Appeal No. 12-4156 was dismissed because the claims had been previously litigated. The petition associated with Appeal No. 12-4158 was dismissed without reaching the merits because the district court lacked jurisdiction: Gardner did not name a proper custodian or claim he was in custody (as that term is generously interpreted), he did not exhaust his administrative remedies, and his claims were not the proper subject of a § 2241 challenge – all necessary elements of any petition. See Maleng v. Cook, 490 U.S. 488, 490 (1989) (noting § 2241 allows United States district courts jurisdiction only from persons who are in custody); Capps v. Sullivan, 13 F.3d 350, 354 n.2 (10th Cir. 1993) ("No statutory exhaustion requirement applies to § 2241, but case law holds that although section 2241 establishes jurisdiction in the federal court to consider pre-trial habeas corpus petitions, federal courts should abstain from the exercise of that jurisdiction if the issues raised in the petition may be resolved either by trial on the merits in the state court or by other state procedures available to the petitioner.") (quotations omitted); Brace v. United States, 634 F.3d 1167 (10th Cir. 2011) ("A § 2255 motion . . . is generally the exclusive remedy for a federal prisoner seeking to attack[ ] the legality of detention . . . .") (quotations omitted).

In both appeals, Gardner's briefs ignore the unassailable reasons for the courts' dismissals of his claims.[1] Because Gardner is appearing pro se, we construe his pleadings liberally but "our role is not to act as his advocate." See Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009). Pro se status "does not excuse the obligation of any litigant to comply with the fundamental requirements of the Federal Rules of Civil and Appellate Procedure" and ...


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