NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

:

GRACIANO TIRADO, : 

 :

Petitioner, :

:

v. :

:

STATE OF NEW JERSEY, et al., : 

 :

Respondents. :

 :

Civil No. 10-3408 (JAP)

OPINION

APPEARANCES:

GRACIANO TIRADO, Petitioner pro se

# 472386

New Jersey State Prison

Second and Cass Streets, P.O. Box 861

Trenton, New Jersey 08625

PISANO, District Judge

Petitioner, Graciano Tirado, a state prisoner presently

confined at the New Jersey State Prison in Trenton, New Jersey, 

brings this petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. Petitioner names the State of New Jersey and the

New Jersey Department of Corrections as the party respondents in

this matter.

Petitioner submitted the following motions in connection

with his habeas petition: (1) motion to amend parties, defendantrespondent; (2) motion to compel joinder of third-party as

necessary party; (3) motion to set aside judgment for lack of

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jurisdiction; and (4) motion for release of vessel or property. 

(Docket entry no. 1-2). Petitioner also filed, at a later time,

the following motions for relief: (5) motion for default judgment

(docket entry no. 5); (6) motion for preliminary injunction

(docket entry no. 6); (7) motion for summary judgment (docket

entry no. 8); (8) motion for a writ of habeas corpus ad

testificandum (docket entry no. 9); (9) motion to compel

defendants to serve answers (docket entry no. 10); and (10)

motion for judicial performance and clarification on cause

(docket entry no. 11). These motions are being considered on

the papers pursuant to Fed.R.Civ.P. 78.

For the reasons set forth below, the habeas petition will be

dismissed at this time, and Petitioners’ motions will be denied

as moot.

I. BACKGROUND

Petitioner filed this habeas petition on or about July 6,

2010. He paid the filing fee on July 15, 2010. Petitioner

alleges that he is challenging his New Jersey state court

conviction and sentence, entered on or about December 12, 2003,

before the Superior Court of New Jersey, Law Division, Middlesex

County. He was found guilty by jury trial on charges of murder

and possession of a weapon for an unlawful purpose. 

Petitioner filed a direct appeal before the Superior Court

of New Jersey, Appellate Division. He asserted claims of

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prosecutorial misconduct in attacking the credibility of defense

psychologists, and that his conviction for possession of a weapon

for an unlawful purpose should have been merged into the

conviction for murder. By Opinion filed on February 6, 2006, the

Appellate Division affirmed the conviction but remanded the

matter for amendment of the judgment of conviction to reflect the

merger of count two into count one. The Supreme Court of New

Jersey denied certification on April 28, 2006. Petitioner did

not file a writ of certiorari with the Supreme Court of the

United States.

On May 26, 2006, Petitioner filed a petition for postconviction relief (“PCR”) in state court, claiming that he was

denied effective assistance of trial and appellate counsel. The

PCR petition was denied on March 14, 2007, and Petitioner

appealed. The Appellate Division affirmed denial of the PCR

petition on July 17, 2009. The Supreme Court of New Jersey

denied certification on October 28, 2009.

On or about July 6, 2010, Petitioner timely filed this

habeas petition pursuant to 28 U.S.C. § 2254. Petitioner asserts

the following claims in his § 2254 habeas form:

(1) There was no “in rem” remedy available in state court.

(2) There is an absence of state corrective process in that

Petitioner was denied the opportunity to raise a matter of

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substance, namely, that his trial proceedings were not “inpropia

persona.”

(3) There is a controversy in law and equity.

(Petition at ¶¶ 12).

Petitioner refers to his Memorandum of Law in support of his

claims for habeas relief. The Court notes that Petitioner’s

memorandum and numerous applications and motions for relief are

incomprehensible, incoherent, delusional and contrived legal

arguments without any basis in law or fact. For instance,

Petitioner appears to bring this habeas action “in admiralty.” 

He states that he is a “man” and not a “person”, a “sovereign in

a collective capacity with other sovereigns,” and that his

sovereignty is not subject to New Jersey law. Further,

Petitioner seeks to remove his signature from any contract

affidavit or other adhesion because as a Christian he can make no

oath. He also claims that he is a “vessel” of the United States,

apparently to bring this action under admiralty law. Petitioner

is protesting the State of New Jersey’s “contract” or judgment of

conviction because it violates Article 1, Section 10 of the

United States Constitution. He denies the corporate existence of

the State of New Jersey, its courts, public defenders,

prosecutors and correctional department. In essence, Petitioner

appears to claim that the State of New Jersey had no jurisdiction

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to convict him and that his conviction is a void judgment and his

sentence should be vacated.

Petitioner further argues that his judgment of conviction is

null and void as the state court never acquired legal

jurisdiction because the “man” is immune and exempt from state

jurisdiction. He states that the “‘third party intervener’ for

petitioner, is not in co-business partnership with the ALL

CAPITAL NAME/VESSEL/ STRAW MAN/NOM DE GUERRE/IDEM SONAN/TIRADO,

GRACIANO/GRACIANO TIRADO, and the human of flesh and blood, man

is not the ‘person’ liable for such ‘counts/charges.’”

(Memorandum at ¶ 33). He asserts violations of the Thirteenth

Amendment and Fourteenth Amendment, human rights violations, that

the State of New Jersey lacked state legislative, territorial or

admiralty jurisdiction over the “locus quo.” These various

claims fail to allege any facts to support Petitioner’s contrived

legal arguments of non-jurisdiction.

Petitioner also claims that his continued custody at the New

Jersey State Prison constitutes cruel and unusual punishment in

violation of the Eighth Amendment, making general allegations of

air quality, lack of hot water, weight gain, and high blood

pressure. He asks that defendants cease and desist in collecting

debt from him. 

Petitioner moves to amend his petition to name the State of

New Jersey Legislature as a party respondent because the

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“Legislature are the visitors of all corporations founded by them

for public purposes.” He also moves to compel joinder of the

Legislative Counsel as a Third party necessary party. 

Petitioner’s motions to set aside judgment and to release the

vessel are construed as a petition for habeas relief since

Petitioner ultimately challenges his conviction and seeks release

from prison.

On August 16, 2010, Petitioner filed a motion for entry of

default against all respondents for failure to serve responsive

pleadings. (Docket entry no. 5). On September 17, 2010,

Petitioner filed a declaration in support of his request for

entry of default. (Docket entry no. 7).

On August 17, 2010, Petitioner filed a motion for a

preliminary injunction (docket entry no. 6), seeking an Order to

compel respondents to release him from illegal imprisonment and

desist from enforcing a void judgment against him. On September

30, 2010, Petitioner filed a motion for summary judgment, arguing

that respondents have defaulted. (Docket entry no. 8).

On October 22, 2010, Petitioner filed a motion for an Order

to show cause why judgment has not been entered against

respondents for failure to respond to his petition. (Docket

entry no. 9). On October 27, 2010, Petitioner filed a motion for

an Order directing respondents to file and serve answers. 

(Docket entry no. 10). Finally, on November 16, 2010, Petitioner

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filed a motion for judicial performance and clarification on

cause with respect to his habeas petition.

II. STANDARDS FOR SUA SPONTE DISMISSAL

A pro se pleading is held to less stringent standards than

more formal pleadings drafted by lawyers. Estelle v. Gamble, 429

U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). 

Thus, a pro se habeas petition and any supporting submissions

must be construed liberally and with a measure of tolerance. See

Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v.

Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989); United

States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert.

denied, 399 U.S. 912 (1970). Nevertheless, a federal district

court can dismiss a habeas corpus petition if it appears from the

face of the petition that the petitioner is not entitled to

relief. See Lonchar v. Thomas, 517 U.S. 314, 320 (1996); Siers

v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S.

1025 (1989). See also 28 U.S.C. §§ 2243, 2254, 2255.

Indeed, under statute, a court presented with a petition for

writ of habeas corpus “shall forthwith award the writ or issue an

order directing the respondent to show cause why the writ should

not be granted, unless it appears from the application that the

applicant or person detained is not entitled there.” 28 U.S.C.

§ 2243. Further, under Rule 4 of the Rules Governing Section

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2254 Cases in the United States District Court, a district court

may summarily dismiss a habeas petition, before the respondent

files an answer, “[i]f it plainly appears from the face of the

petition ... that the petitioner is not entitled to relief.” 

Rules Governing § 2254 Cases. Thus, “Federal courts are

authorized to dismiss summarily any habeas petition that appears

legally insufficient on its face.” McFarland, 512 U.S. at 856;

see also United States v. Thomas, 221 F.3d 430, 437 (3d Cir.

2000); Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985), cert.

denied, 490 U.S. 1025.

Moreover, “[h]abeas corpus petitions must meet heightened

pleading requirements.” McFarland v. Scott, 512 U.S. 849, 856

(1994). A petition must “specify all the grounds for relief” and

set forth “facts supporting each of the grounds thus specified.” 

See 28 U.S.C. § 2254 Rule 2(c) (amended Dec. 1, 2004), applicable

to § 2241 petitions through Habeas Rule 1(b).

III. DISCUSSION

Here, the Court finds that the Petition asserts claims for

habeas relief which are nothing more than a delusory contrivance

by Petitioner in an attempt to void his state judgment of

conviction. Petitioner contends that he is a sovereign, not

subject to New Jersey law; that he is a “man” and not a “person”

subject to in personam jurisdiction; and that he is a “man”

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immune and exempt from state jurisdiction. He further purports

to call himself a “vessel” or “straw man”, perhaps to assert that

the State of New Jersey had no jurisdiction over him under

admiralty law. 

These allegations are similar to some extent to the

“Redemptionist” theory, a practice followed by Moorish-American

citizens to evade the laws of this country. See Monroe v. Beard,

536 F.3d 198, 203 and nn. 3 and 4 (3d Cir. 2008). The United

States Court of Appeals for the Third Circuit noted that the

“Redemptionist” theory “propounds that a person has a split

personality: a real person and a fictional person called the

strawman.” Id. In particular, the Third Circuit discussed the

“redemptionist” theory in the context of a wide-spread criminal

scheme based on the scheme participants’ self-legitimization of

their names for the purposes of initiating fraudulent legal

transactions, by filing fraudulent UCC financing forms to perfect

security interests in property. Id. The Third Circuit 1

observed:

“Redemptionists claim that government has power only over

the strawman and not over the live person, who remains free

[and, thus,] individuals can free themselves by filing UCC

financing statements, thereby acquiring an interest in their

strawman. Thereafter, [pursuant to this “theory,”] the real

 While it is plain that Petitioner is trying to create a 1

fictional dichotomy to avoid his judgment of conviction, it does

not appear to the Court that Petitioner has ascribed to the

“redemptionist” theory so as to initiate fraudulent transactions

to harm government officials, as found in the Monroe case.

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person can demand that government officials pay enormous

sums of money to use the strawman’s name or, in the case of

prisoners, to keep him in custody. If government officials

refuse, [adherents of this scheme] file liens against

[government officials]. Adherents of this scheme also

advocate that [they] copyright their names to justify filing

liens against officials using their names in public records

such as indictments or court papers.

Id. 

Here, it is evident that Petitioner is attempting to void

his state court judgment of conviction by suggesting that he has

sovereign immunity as a “man” separate from the fictional entity

of Graciano Tirado, that there was no in personam jurisdiction

over the “man”, and that he cannot be held liable for the legal

consequences of the “straw man” Graciano Tirado. Essentially,

Petitioner is gratuitously asserting that state laws do not apply

to him.

This argument has absolutely no legal basis. Therefore, the

request for habeas relief must be summarily dismissed.

Alternatively, this Court finds that the habeas petition

must be dismissed for failure to exhaust state court remedies. A

state prisoner applying for a writ of habeas corpus in federal

court must first “exhaust[] the remedies available in the courts

of the State,” unless “there is an absence of available State

corrective process[] or ... circumstances exist that render such

process ineffective ... .” 28 U.S.C. § 2254(b)(1). See also 2

 Exhaustion of state remedies has been required for more 2

than a century, since the Supreme Court’s decision in Ex parte

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Rose v. Lundy, 455 U.S. 509, 515 (1982); Lambert v. Blackwell,

134 F.3d 506, 513 (3d Cir. 1997), cert. denied, 532 U.S. 919

(2001) (finding that “Supreme Court precedent and the AEDPA

mandate that prior to determining the merits of [a] petition, [a

court] must consider whether [petitioner] is required to present

[his or her] unexhausted claims to the [state’s] courts”).

The exhaustion requirement is intended to allow state courts

the first opportunity to pass upon federal constitutional claims,

in furtherance of the policies of comity and federalism. 

Granberry v. Greer, 481 U.S. 129 (1987); Rose, 455 U.S. at 516-

18. Exhaustion also has the practical effect of permitting

development of a complete factual record in state court, to aid

the federal courts in their review. Rose, 455 U.S. at 519.

A petitioner must exhaust state remedies by presenting his

federal constitutional claims to each level of the state courts

empowered to hear those claims, either on direct appeal or in

collateral post-conviction proceedings. See, e.g., O’Sullivan v.

Boerckel, 526 U.S. 838 (1999) (“requiring state prisoners [in

order to fully exhaust their claims] to file petitions for

discretionary review when that review is part of the ordinary

appellate review procedure in the State”); Ross v. Petsock, 868

Royall, 117 U.S. 241 (1886). The exhaustion doctrine was first

codified at 28 U.S.C. § 2254 in 1948, see Rose v. Lundy, 455 U.S.

509, 516-18 (1982), and was the subject of significant revisions

in the Antiterrorism and Effective Death Penalty Act (“AEDPA”),

Pub. L. 104-132, 110 Stat. 1217 (April 24, 1996).

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F.2d 639 (3d Cir. 1989); 28 U.S.C. § 2254(c) (“An applicant shall

not be deemed to have exhausted the remedies available in the

courts of the State, within the meaning of this section, if he

has the right under the law of the State to raise, by any

available procedure, the question presented.”) Once a

petitioner’s federal claims have been fairly presented to the

state’s highest court, the exhaustion requirement is satisfied. 

Picard v. Connor, 404 U.S. 270, 275 (1971); Castille v. Peoples,

489 U.S. 346, 350 (1989).

The petitioner generally bears the burden to prove all facts

establishing exhaustion. Toulson v. Beyer, 987 F.2d 984, 987 (3d

Cir. 1993). This means that the claims heard by the state courts

must be the “substantial equivalent” of the claims asserted in

the federal habeas petition. Picard, 404 U.S. at 275. Reliance

on the same constitutional provision is not sufficient; the legal

theory and factual predicate must also be the same. Id. at 277.

Where any available procedure remains for the applicant to

raise the question presented in the courts of the state, the

applicant has not exhausted the available remedies. 28 U.S.C. §

2254(c).

In the present case, Petitioner has failed to exhaust his

state court remedies with respect to the challenged state court

conviction and sentence on the grounds he attempts to raise

herein. Both on direct appeal and state PCR review, Petitioner’s

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present claims were not raised or presented to the New Jersey

state courts, at any level, for review. See State v. Tirado,

2005 WL 3736049 (N.J. Super. App. Div. Feb. 6, 2006); State v.

Tirado, 2009 WL 2059727 (N.J. Super. App. Div. July 17, 2009). 

Petitioner tries to overcome this exhaustion bar by arguing that

there is no “in rem” remedy available in state court, and that

there is an absence of state corrective process because his trial

proceeding were not “inpropia persona.” But these arguments are

fallacious and disingenuous at best. 

Therefore, as a matter of comity, it is best left to the New

Jersey courts to determine Petitioner’s constitutional claims and

other challenges to his conviction, which he raises herein,

because these claims have not yet been exhausted. Accordingly,

the Court is constrained to dismiss the entire petition, without

prejudice, for failure to exhaust as required under 28 U.S.C. 

§ 2254. See Rose, 455 U.S. at 510. 

Because the habeas petition is being dismissed at this time,

Petitioner’s motions filed with his petition, that is, (1) motion

to amend parties, defendant-respondent; (2) motion to compel

joinder of third-party as necessary party; (3) motion to set

aside judgment for lack of jurisdiction; and (4) motion for

release of vessel or property, (Docket entry no. 1-2); as well as

his later filed motions: (5) motion for default judgment (docket

entry no. 5); (6) motion for preliminary injunction (docket entry

no. 6); (7) motion for summary judgment (docket entry no. 8); (8)

motion for a writ of habeas corpus ad testificandum (docket entry

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no. 9); (9) motion to compel defendants to serve answers (docket

entry no. 10); and (10) motion for judicial performance and

clarification on cause (docket entry no. 11), will be denied as

moot.

Finally, the Court notes that Petitioner appears to be

asserting various claims under the Eighth Amendment with respect

to the conditions of his confinement as constituting cruel and

unusual punishment, namely, poor air quality, lack of hot water,

poor diet and medical care, and collection of debt from him.

These claims are more properly construed as an action under 42

U.S.C. § 1983, as they relate to Petitioner’s conditions of

confinement, and as such, these claims cannot be combined in this

habeas petition. However, Petitioner may file a separate § 1983

action and pay the applicable $350.00 filing fee, or submit an

application to proceed in forma pauperis under 28 U.S.C. 

§ 1915(a)(2), to the extent he wishes to redress these alleged

constitutional injuries by means of relief other than seeking his

release from prison. 

IV. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or

judge issues a certificate of appealability, an appeal may not be

taken from a final order in a proceeding under 28 U.S.C. § 2254. 

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)(2). “A petitioner satisfies this

standard by demonstrating that jurists of reason could disagree

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with the district court’s resolution of his constitutional claims

or that jurists could conclude the issues presented are adequate

to deserve encouragement to proceed further.” Miller-El v.

Cockrell, 1537 U.S. 322 (2003). “When the district court denies

a habeas petition on procedural grounds without reaching the

prisoner’s underlying constitutional claim, a COA should issue

when the prisoner shows, at least, that jurists of reason would

find it debatable whether the petition states a valid claim of

the denial of a constitutional right and that jurists of reason

would find it debatable whether the district court was correct in

its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484

(2000).

Here, jurists of reason would not find the court’s

procedural disposition of this case debatable. Moreover, for the

reasons discussed above, this Court’s review of the claims

advanced by Petitioner demonstrates that he has failed to make a

substantial showing of the denial of a constitutional right

necessary for a certificate of appealability to issue. Thus,

this Court declines to issue a certificate of appealability

pursuant to 28 U.S.C. § 2253(c)(2).

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V. CONCLUSION

For the foregoing reasons, this Court finds that the habeas

petition lacks merit and, alternatively, that Petitioner has

failed to exhaust his available state court remedies or to allege

facts sufficient to excuse failure to exhaust. Accordingly, the

Court will dismiss this § 2254 habeas petition without prejudice. 

No certificate of appealability will issue, insofar as petitioner

has failed to make a substantial showing of the denial of a

constitutional right pursuant to 28 U.S.C. § 2253(c)(2). 

Finally, Petitioner’s numerous motions will be denied as moot.

/s/ JOEL A. PISANO 

JOEL A. PISANO

United States District Judge

DATED: March 28, 2011

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