United States District Court, D. Nebraska
MICHAEL A. NOLT, Petitioner,
MARK FOXALL, State of Nebraska, real Party in Interest; Respondent.
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge
matter is before the court on initial review of Petitioner
Michael A. Nolt's (“Nolt”) Petition for Writ
of Habeas Corpus (“petition”) filed pursuant to
28 U.S.C. § 2254. (Filing No. 1.) In October
2016, Nolt was convicted of first degree murder, two counts
of use of a firearm to commit a felony, manslaughter, and
possession of a firearm by a prohibited person in the District
Court of Douglas County, Nebraska. (Id. at CM/ECF p.
1.) Nolt filed his petition on December 23, 2016.
(Id.) He admits in his petition that his sentencing
was scheduled for January 16, 2017.
(Id.) Nolt's claim is that the State of
Nebraska had no jurisdiction to prosecute him because he has
diplomatic immunity as “Ambassador” of the
“Holy See of the Freedom Church of Revelation”
from the foreign country of “YHWH.” (See
id. at CM/ECF pp. 3-5, 15, 47.)
of the Rules Governing Habeas Corpus Cases Under Section
2254 provides, “If it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district court, the judge must
dismiss the petition and direct the clerk to notify the
petitioner.” For the reasons discussed below, the court
will dismiss Nolt's petition without prejudice.
Failure to Exhaust
plainly appears from Nolt's petition that he has failed
to exhaust state court remedies. He states in his petition
that he has not filed a direct appeal or postconviction
action in the state appellate courts - nor could he since he
had yet to be sentenced at the time he filed his petition.
(Filing No. 1 at CM/ECF p. 6.)
habeas petitioner must first fairly present the merits of
each claim he or she wishes to litigate in federal court to
the state courts or the federal court is generally prohibited
from considering such a claim under the provisions of 28
U.S.C. § 2254(b)(1). A claim is properly presented when
the state courts are given a “ ‘fair
opportunity' to apply controlling legal principles to the
facts bearing upon [the claim].” Anderson v.
Harless, 459 U.S. 4, 6, (1982) (quoting Picard v.
Connor, 404 U.S. 270, 275, 277-78 (1971). In Nebraska, a
“fair opportunity” means that the merits of each
habeas claim must ultimately be presented to the Nebraska
Supreme Court. Akins v. Kenney, 410 F.3d 451, 454
(8th Cir. 2005) (holding that Nebraska law required habeas
petitioner to file a petition for further review with the
Nebraska Supreme Court in order to exhaust his available
state court remedies after his conviction was affirmed by the
Nebraska Court of Appeals; state rules indicated that such a
procedure was considered the ordinary process because mandate
could not issue until the 30-day period for filing such a
petition had lapsed) (citing O'Sullivan v.
Boerckel, 526 U.S. 838, 847 (1999) (requiring a
petitioner to exhaust one complete round of the State's
established appellate review process)).
court would normally allow a petitioner an opportunity to
show why his or her petition should not be dismissed for
failure to exhaust state court remedies but, in this case, it
also plainly appears from Nolt's petition that his claim
claims that he is entitled to diplomatic immunity pursuant to
federal law. Accordingly, he must show that he is an
“Ambassador” of a sovereign nation recognized by
the United States Department of State. “[I]n the United
States, recognition by the Department of State is necessary
to establish diplomatic status and to claim the commensurate
immunity.” 4 Am. Jur. 2d Ambassadors, Etc. § 8.
“YHWH's Country” is not recognized by the
United States Department of State.Nolt's petition shows
that the United States Department of Treasury granted the
“Holy See of the Freedom Church of Revelation” an
Employer Identification Number. (Filing No. 1 at CM/ECF
p. 49.) It did not recognize “Holy See of the
Freedom Church of Revelation” as a sovereign, foreign
nation. (See id. at CM/ECF p. 5.) Moreover, the
mailing address of the “Holy See of the Freedom Church
of Revelation” is in Arizona and its
“Declarations” were sworn to by “Judy
Goff” in Allen County, Indiana. (Id. at CM/ECF
pp. 30, 33, 47.)
also states in a “Declaration of Alienage”
attached to his petition that his citizenship is that of
“YHWH's County (sic); also known as the Kingdom of
God.” (Id. at p. 45.) He continues,
“Although I have been informed and believe that I was
born in or around the City of Fort Wayne, state of Indiana,
county of Allen, I have no allegiances to the United States
government.” (Id.) “A prisoner cannot
write his own get-out-of-jail-free card by making
declarations that amount to a renunciation of his obligation
to conform his conduct to the requirements of the
nation's criminal laws.” McCaskill v.
Terris, No. 4:15-CV-11335, 2015 WL 4065893, at *2 (E.D.
Mich. July 2, 2015), aff'd (Dec. 7, 2015)
(citing examples). The court finds that Nolt's claim is
frivolous but his petition will be dismissed without
prejudice in the event that he seeks to file a habeas
petition including cognizable claims after he exhausts his
state court remedies.
THEREFORE ORDERED that:
Nolt's petition (Filing No. 1) is dismissed
court will enter Judgment in ...