United States District Court, E.D. Arkansas, Pine Bluff Division
FINDINGS AND RECOMMENDATION
following recommended disposition has been sent to United
States District Judge Billy Roy Wilson. You may file written
objections to all or part of this Recommendation. If you do
so, those objections must: (1) specifically explain the
factual and/or legal basis for your objection; and (2) be
received by the Clerk of this Court within fourteen (14) days
of this Recommendation. By not objecting, you may waive the
right to appeal questions of fact.
James Wennerstein (“Wennerstein”) is in the
custody of the Arkansas Department of Correction
(“ADC”). He filed a complaint in the United
States District Court, District of Columbia, on October 24,
2018. Docket entry no. 1. The pleading was styled
“Complaint and Notice of Individual Secession With
Voluntary Relinquishment of Citizenship.” Noting that
Wennerstein's pleading included a request for his release
from confinement, the United States District Court for the
District of Columbia construed the pleading as a petition for
writ of habeas corpus. Accordingly, that Court transferred
the case to this Court due to Wennerstein's physical
presence in this jurisdiction. The complaint was served on
Wennerstein's custodian, respondent Wendy Kelley
19, 2019, Kelley filed a motion to dismiss and brief in
support. Docket entry nos. 21, 22. In it, Kelley contends
that this lawsuit is not a habeas corpus action and that
Wennerstein filed suit for the purpose of relinquishment of
citizenship. Kelley notes that Wennerstein is seeking habeas
corpus relief in a separate action filed in the United States
District Court for the Western District of Arkansas. See
Whitney v. Kelley, U.S.D.C. W.D. Ark. No. 5:19cv05054.
Kelley seeks dismissal of this action for failure to state a
claim for federal habeas corpus relief.
22, 2019, the Court notified Wennerstein of his opportunity
to submit a response to the motion to dismiss. Docket entry
no. 23. The Court invited Wennerstein to clarify the nature
of his claims, informing him that habeas corpus is reserved
for allegations that a conviction was obtained in violation
of the Constitution, laws, or treaties of the United States.
28 U.S.C. § 2254(a).
responded. Docket entry no. 24. In his response, he states
“the originating pleading was not intended to be a
petition for writ of habeas corpus, ” and “it was
and is plainly and clearly a notice of individual secession
and voluntary relinquishment of citizenship and should be
considered as nothing more or less than intended.”
Id. at 1, 2. He asks that the Court grant the
petition as well as award him compensation for his time and
response clarifies that he does not seek habeas corpus relief
in this action. As a result, the Court recommends that
Kelley's motion be granted to the extent
Wennerstein's petition could be read to assert a habeas
of the purported habeas corpus claim, however, does not
dispose of this action. If Wennerstein's petition seeks
an acknowledgment or order of voluntary relinquishment of
citizenship as he states, does it state a claim upon which
relief can be granted? The Court believes not. And while
there is no motion pending before the Court seeking to
dismiss such a claim, the Court has discretion to dismiss a
complaint sua sponte pursuant to 28 U.S.C.
§1915(d) if “it lacks an arguable basis in either
law or in fact.” Neitzke v. Williams, 490 U.S.
319, 325 (1989). Wennerstein cites no authority for the
proposition that a federal lawsuit is a means by which one
can relinquish or renounce citizenship. And the Court has
found no authority which grants federal jurisdiction to such
a case. Title 8 of the United States Code, § 1481(a),
sets forth the specific acts by which one may relinquish U.S.
citizenship. Filing a federal lawsuit seeking to voluntarily
relinquish one's citizenship is not one of those acts.
Additionally, although Wennerstein's petition is not a
model of clarity, it does not appear to allege that he has
taken any of the actions required by
§1481(a). Thus, acknowledging that sua
sponte dismissals are expressly disfavored, Nash v.
Black, 781 F.2d 665 (8th Cir. 1986), the Court,
nevertheless, is satisfied that this complaint lacks an
arguable basis in either law or fact, and is so lacking in
colorable merit that it must be considered frivolous. See
Haugen v. Sutherlin, 804 F.2d 490 (8th Cir. 1986);
Martin-Trigona v. Stewart, 691 F.2d 856 (8th Cir.
 Pursuant to 28 U.S.C. §
2253 and Rule 11 of the Rules Governing Section 2554 Cases in
the United States District Court, the Court must determine
whether to issue a certificate of appealability in the final
order. In § 2254 cases, a certificate of appealability
may issue only if the applicant has made a substantial
showing of the denial of a constitutional right. 28 U.S.C.
§ 2253(c)(1)-(2). The Court finds no issue on which
petitioner has made a substantial showing of a denial of a
constitutional right. Thus, the Court recommends the
certificate of appealability be denied.
Those actions are: obtaining naturalization in a foreign
state; taking an oath or making an affirmation of allegiance
to a foreign state; serving in the armed forces of a foreign
state if those forces are engaged in hostile acts against the
United States or serving as a commissioned or noncommissioned
officer; working under the government of a foreign state if
one has acquired the nationality of such foreign state or for
which the office or employment requires an oath, affirmation,
or declaration of allegiance; making a formal renunciation of
nationality before a diplomatic or consular officer of the
United States in a foreign state; making in the United States
a formal written renunciation of nationality in a form
prescribed by and before an officer designated by the
Attorney General, when the United States is at war and the
Attorney General approves the renunciation as not contrary to
the interests of national defense; or committing treason
against, attempting by force to overthrow, or bearing arms
against the United ...