Nolt v. Foxall

Filing 7

MEMORANDUM AND ORDER - Nolt's petition (Filing No. 1 ) is dismissed without prejudice. The court will enter Judgment in a separate document. The court will not issue a certificate of appealability. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAEL A. NOLT,
Petitioner,

8:16CV561

vs.
MARK FOXALL, State of Nebraska,
real Party in Interest;

MEMORANDUM
AND ORDER

Respondent.

This 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 person1 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.)2 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.)

1

The court infers that Nolt was convicted of possession of a firearm by a
prohibited person because Nolt lists his fifth conviction as “prohibited person.”
2

The Nebraska Department of Correctional Services Inmate Search Locator
reveals that Nolt is currently incarcerated at the Diagnostic and Evaluation Center
and was sentenced to life imprisonment.
http://dcs-inmatesearch.ne.gov/Corrections/InmateDisplayServlet?DcsId=85129

Rule 4 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.
I. Failure to Exhaust
It plainly appears from Nolt’s petition that he has failed to exhaust state
court remedies.3 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.)
A 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)).
3

See e.g., Allen v. Zavaras, 568 F.3d 1197 (10th Cir. 2009) (affirming
district court order dismissing sua sponte Petitioner’s habeas petition for failure to
exhaust where failure to exhaust was clear from the face of the petition).
2

The 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 is
frivolous.
II. Frivolous Claim
Nolt 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.4
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.)

Nolt 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
4

See generally U.S. Department of State, Bureau of Intelligence and Research,
Dependencies
and
Areas
of
Special
Sovereignty,
https://www.state.gov/s/inr/rls/10543.htm and Independent States in the World
https://www.state.gov/s/inr/rls/4250.htm.

3

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.
IT IS THEREFORE ORDERED that:
1.

Nolt’s petition (Filing No. 1) is dismissed without prejudice.

2.

The court will enter Judgment in a separate document.

3.

The court will not issue a certificate of appealability.

Dated this 3rd day of March, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

4