William Jones
10000 Mount High Blvd.
Nowhere, California
Private Attorney

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

William Jones                ) CASE NO.  ____________________
                             )
     Petitioner,             ) MEMORANDUM OF DECISION
                             ) (Findings of fact;
v.                           ) Conclusions of law)
                             ) FRCP Rule 52(a)
STATE OF NEVADA,             ) 28 USC 2243
COUNTY OF CLARK,             )
MICHAEL A. MILLER,           )
DAVID SMITH,                 )
BECKY E. HASSALER, and       )
JAMESON R. KISSINGER,        )
                             )
     Respondents.            ) 
                             ) 
_____________________________)__________________________________

1.  COMES NOW THE ABOVE-ENTITLED COURT OF RECORD, TO review the record, summarily determine the facts, and dispose of the matter as law and justice require.

CONTENTS

	Summary								Page  2
	Analysis
	  Jurisdiction	of this Court				Page  3
         Exhaustion of Administrative Procedure	Page  6
         Comity							Page  9
	  Petition							Page 11
	Findings of fact						Page 12
	Conclusions of law						Page 13
	Conclusion Summary						Page 14

SUMMARY

2.  Oliver Wendell Holmes once wrote, "I long have said there is no such thing as a hard case.  I am frightened weekly, but always when you walk up to the lion and lay hold, the hide comes off and the same old donkey of a question of law is underneath. 

3.  Duty falls upon this court of record to lay hold of the lion, unhide the underlying question of law, and dispose of the matter as law and justice require.

4.  On February 29, 2000, William Jones, a People of the United States, filed in the above-entitled court of record a PETITION FOR WRIT OF HABEAS CORPUS BY A PEOPLE IN STATE CONSTRUCTIVE CUSTODY (#1).  The petition invites this court’s inquiry into the following:

A.  The cause of the restraint,

B.  The jurisdictional basis of the restraint,

C.  Prosecutorial vindictiveness,

D.  Reasonable apprehension of restraint of liberty,

E.  Strict compliance with statutory requirements, and

F.  Diminishment of rights.

5.  The Petition presented issues of both fact and law.  It did not appear from the application that the applicant was not entitled thereto; therefore this court ordered the respondents to show cause why the writ should not be granted.  Explicit return instructions were included as part of the Order to Show Cause to enable the respondents to fulfill the order.

6.  All respondents were duly served with the Petition and Order to Show Cause.  The record shows that no respondent made any return, no respondent requested more time to answer, and no respondent provided any objection to the proceedings.  

ANALYSIS

JURISDICTION OF THIS COURT

7.  It is the duty of any court to determine whether it has jurisdiction even though that question is not raised, in order for the exercise of jurisdiction to constitute a binding decision that the court has jurisdiction.

8.  We fulfill that duty by examining the sovereign power creating the court.

9.  But, first, what is a court?  It is the person and suit of the sovereign; the place where the sovereign sojourns with his regal retinue, wherever that may be.

9.  Further, a court is an agency of the sovereign created by it directly or indirectly under its authority, consisting of one or more officers, established and maintained for the purpose of hearing and determining issues of law and fact regarding legal rights and alleged violations thereof, and of applying the sanctions of the law, authorized to exercise its powers in the course of law at times and places previously determined by lawful authority.

10.  The source of the authority is acknowledged by the Preamble in the Constitution for the United States of America.  The People of the United States, acting in sovereign capacity, “ordain and establish this Constitution for the United States of America”.  The Constitution contains nothing that would diminish the sovereign power of the People, and no state may presume to do so.

11.  Further, the United States of America (and each member state) is a Republic, which means that the People may act either directly or through their representatives.  Here the sovereign People is acting directly.

12.  Beyond ordaining and establishing the Constitution, what are the powers of the People?  The People retain all powers to self-determine and exercise rights; the essence of the People’s sovereignty distills to this:  The decree of the sovereign makes law.

13.  Some have argued that the People have relinquished sovereignty through various contractual devices in which rights were not expressly reserved.  However, that does not hold.  The People retain all rights of sovereignty at all times.

14.  The exercise of sovereignty by the People is further clarified when one considers that the Constitutional government agencies have no genuine sovereign power of their own, but must rely upon such authority as is granted by the People.  

15.  In the Petition Keithley identifies himself as “a People of the United States.”  As such he decrees the law for this court, and, ultimately, for this court as a court of record.

16.  This, then, is the sovereign power by which this court is created.

17.  The Constitution for the United States of America mandates that, “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;...”  

18.  This is a case in law, i.e., proceeding according to the common law in a court of record.  This case arises under the Constitution and the Laws of the United States.  It follows that “the judicial power” of [the People of] the United States “shall extend” to this case.

EXHAUSTION OF
ADMINISTRATIVE PROCEDURE

19.  Ordinarily, exhaustion of state administrative procedures is a requirement before a court of another jurisdiction will review the proceedings of the state courts.  This is founded upon the principle of comity.

20.  The courts of the United States and the courts of the various states are independent of each other.  Federal courts have no supervisory powers over state judicial proceedings, state court system, or trial judges.  Thus, federal courts have no general power to correct errors of law that may occur from time to time in the course of state proceedings. 

21.  However, the two courts are not foreign to each other; they form one system of jurisprudence, which constitutes the law of the land and should be considered as courts of the same country, having jurisdiction partly different and partly concurrent, and as a matter of comity one of such courts will not ordinarily determine a controversy of which another of such courts has previously obtained jurisdiction.  In cases of apparent conflict between state and federal jurisdiction, the federal courts are the exclusive judges over their jurisdiction in the matter.

22.  But federal intervention is only proper to correct errors of constitutional dimension, which occurs when a state court arbitrarily or discriminatorily applies state law.

23.  The rule of comity does not go to the extent of relieving federal courts from the duty of proceeding promptly to enforce rights asserted under the federal Constitution, and all considerations of comity must give way to the duty of a federal court to accord a citizen of the United States his right to invoke the court’s powers and process in the defense or enforcement of his rights.

24.  As to the principle of exhaustion of state remedies, the petitioner is not founding the petition on that principle as embodied in 28 USC 2254.  The basis is addressed further below.  However, because the magistrate-judge has highlighted the point in his report to the court, it is again addressed here.

25.  In Friske v. Collins, the Court’s view was that exhaustion was not a “rigid and inflexible” rule, but could be deviated from in “special circumstances.”  In addition to the class of “special circumstances” developed in the early history of the exhaustion rule, exhaustion was not required where procedural obstacles make theoretically available processes unavailable, where the available state procedure does not offer swift vindication of the petitioner’s rights, and where vindication of the federal right requires immediate action.

26.  Exhaustion today is a rule rooted in the relationship between the national and state judicial systems.  The rule is consistent with the writ’s extraordinary character, but it must be balanced by another characteristic of the writ, to wit:  its object of providing “a swift and imperative remedy in all cases of illegal restraint upon personal liberty.”  That is, it “is not [a rule] defining power but one which relates to the appropriate exercise of power.”

27.  The Court noted that where resort to state remedies has failed to afford a full and fair adjudication of the federal contentions raised, either because the state affords no remedy or because in the particular case the remedy afforded by state laws proves in practice unavailable or seriously inadequate, a federal court should entertain a petition for habeas corpus; otherwise a petitioner would be remediless.  In such a case the applicant should proceed in the federal district court before resorting to the Supreme Court by petition for habeas corpus.

28.  The Nevada Revised Statutes provide as follows:

NRS 34.430 Return and answer: Service and filing; contents; signature and verification.

1.  Except as otherwise provided in subsection 1 of NRS 34.745, the respondent shall serve upon the petitioner and file with the court a return and an answer that must respond to the allegations of the petition within 45 days or a longer period fixed by the judge or justice.

29.  28 USC 2243 provides as follows:

Sec. 2243. Issuance of writ; return; hearing; decision.
  A court, justice or judge entertaining an application for a 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 thereto.
  The writ, or order to show cause shall be directed to the person having custody of the person detained.  It shall be returned within three days unless for good cause additional time, not exceeding twenty days, is allowed.

30.  The state standard, 45 days, when compared to the federal standard, 3 days, does not offer swift vindication of the petitioner’s rights where vindication of the federal right requires immediate action.  This is particularly so when one considers that the petitioner is suffering an ongoing loss of liberty, and will lose his liberty because of arbitrary exercise of state power.  The state has been duly served, and the state has not made, and apparently cares not to make, a return.  This question of timeliness constitutes a special circumstance justifying deviation from the exhaustion rule.  Exhaustion is not required where procedural obstacles make theoretically available processes unavailable, where the available state procedure does not offer swift vindication of the petitioner’s rights, and where vindication of the federal right requires immediate action.

31.  The magistrate’s report also acknowledges that, “Until the case is resolved in the district court, Keithley will be unable to present his claims to the Nevada Supreme Court.”  This delay and lack of timeliness is a further special circumstance.  In the interim, Keithley would be required to lose his liberty because of the lack of swift state vindication of his rights.

COMITY

32.  Comity is one court giving full faith and credit to the judicial proceedings of another court provided that such proceedings do not violate its own rules.  Though comity is not mandated, it is encouraged by Article IV, Section 1 of the U.S. Constitution.

33.  However, comity does not mean that one court involuntarily gives up its jurisdiction to another court.  Comity does not mean that one court must respect the improprieties of another court.  Comity does not mean that one court must submit to the whim of another court.  Further, comity cannot enter the equation when the question before the courts concerns which of the two courts has jurisdiction regarding the vindication of the rights of the petitioner.  The protection of the petitioner’s rights from encroachment by the state is the innate responsibility of the federal courts.

34.  Habeas corpus has been called “The Great Writ of Liberty.”  Historically, that is a side issue.  In the early days habeas corpus was not connected with the idea of liberty.  It was a useful device in the struggle for control between common law and equity courts.  By the middle of the fifteenth century, the issue of habeas corpus, together with privilege, was a well established way to remove a cause from an inferior court where the defendant could show some special connection with one of the central courts which entitled him to have his case tried there.  In the early seventeenth century The Five Knights’ Case involved the clash between the Stuart claims of prerogative and the common law, and was, in the words of one of the judges, “the greatest cause that I ever knew in this court”.  Over the centuries the writ became a viable bulwark between the powers of government and the rights of the people in both England and the United States.

35.  In the United States habeas corpus exists in two forms:  common law and statutory.  The petitioner has chosen habeas corpus at common law in a court of record.  The Constitution for the United States of America acknowledges the Peoples’ right to the common law of England as it was in 1789.  What is that common law?  It does not consist of absolute, fixed and inflexible rules, but broad and comprehensive principles based on justice, reason, and common sense....  

36.  The common law is also the Magna Carta as authorized by the Confirmatio Cartarum, if the accused so demands.

37.  The Confirmatio Cartarum succinctly says, “...our justices, sheriffs, mayors, and other ministers, which under us have the laws of our land to guide, shall allow the said charters pleaded before them in judgement in all their points, that is to wit, the Great Charter as the common law and the Charter of the forest, for the wealth of our realm.”  In other words, the King’s men must allow the Magna Carta to be pleaded as the common law if the accused so wishes it.

38.  Magna Carta says, “Henceforth the writ which is called Praecipe shall not be served on any one for any holding so as to cause a free man to lose his court.”  In this case, the free man’s court is the court of record of William Jones, as above entitled.

39.  The Constitution for the United States of America, Article III, Section 2-1, says, “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States...”  The judicial power is thusly extended to this habeas corpus case at law in the above-entitled court of record.

40.  The above-entitled court of record, invoking the extension of the judicial power of the United States, and upon a case in law is proceeding according to the common law as sanctioned by the Constitution, and considering the matter that has arisen under the Constitution and laws of the United States.

41.  As stated above, the rule of comity does not go to the extent of relieving federal courts from the duty of proceeding promptly to enforce rights asserted under the federal Constitution, and all considerations of comity must give way to the duty of a federal court to accord a citizen of the United States his right to invoke the court’s powers and process in the defense or enforcement of his rights.

42.  This court accepts the duty obligation to proceed promptly to enforce rights asserted under the federal Constitution.  Thus, this court has the subject matter jurisdiction to examine and act upon the Petition for habeas corpus.

43.  Further, the parties were duly served personally with a copy of the Petition and the Writ of Habeas Corpus, Order to Show Cause, thus this court has in personam jurisdiction.

PETITION

44.  Both Title 28 of the United States Code and the Nevada Revised Statutes acknowledge that it is not the responsibility of the petitioner to know by what claim or authority the state acts, but that the petitioner may inquire as to the cause of the restraint.

45.  Petitioner has requested an inquiry into the cause of restraint, but none of the respondents has returned any statement of cause of the restraint.  Therefore, this court may presume that there is neither legal nor lawful cause of restraint.  

46.  Petitioner has isolated five points upon which he bases his petition:

A.  The lack of cause of the restraint,
B.  The lack of jurisdictional basis of the restraint,
C.  Prosecutorial vindictiveness,
D.  Reasonable apprehension of restraint of liberty,
E.  Strict compliance with statutory requirements, and
F.  Diminishment of rights.

Because the respondents have made no return, this court must rule solely upon the evidence before it, as provided by the petitioner.  Seneca wrote, “"He who decides a case with the other side unheard, though he decide justly, is himself unjust."  Mindful of the wisdom of Seneca, we proceed.

47.  This court has taken judicial notice of the Federal Rules of Civil Procedure, Title 28, United States Code, insofar as it is not repugnant to the common law.  FRCP Rule 55 regarding default is applied here.

48.  The record shows that the Petition was filed, a Writ of Habeas Corpus, Order to Show Cause issued, the Petition and Writ were duly served upon the respondents, no return was filed, and a notice of default was filed.  Further, the record shows that in a later state proceeding the state court and the judge of the state court were cognizant of the Petition and Writ, so no claim may be made that the state court was unaware of this court’s proceedings, nor may the respondents claim they were unaware of the consequences for failure to make a return on the order to show cause.

49.  Simply stated, the parties against whom a judgment for affirmative relief is sought have failed to plead or otherwise defend as provided by these rules and that fact has been made to appear by affidavit in accordance with FRCP Rule 55(a).

FINDINGS OF FACT

THEREFORE, BASED UPON THE RECORD BEFORE THIS COURT,

50.  THE COURT FINDS that William Jones is one of the People as contemplated in the Preamble in the Constitution for the United States of America.

51.  THE COURT FINDS that the above-entitled court is a COURT OF RECORD.

52.  THE COURT FINDS that all respondents were duly served and court personnel were apprised of the petitioner’s claims and the writ.  All respondents had full notice and fair opportunity to argue their cause, and did not so do.

53.  THE COURT FINDS that the respondents have not presented any legal or lawful cause of the restraint of William Jones.

54.  THE COURT FINDS that the respondents have not presented any jurisdictional basis for the restraint of William Jones.  The court of the Respondents did not fulfill the duty to determine whether it has jurisdiction even though that question is not raised, in order for the exercise of jurisdiction to constitute a binding decision that the court has jurisdiction.

55.  THE COURT FINDS that the respondents have not presented any evidence to prove the absence of prosecutorial vindictiveness by the respondents against William Jones.

56.  THE COURT FINDS THAT William Jones has a reasonable apprehension of future restraint of liberty arising from the same facts.
57.  THE COURT FINDS THAT strict compliance with statutory requirements were not met by the respondents.

58.  THE COURT FINDS THAT William Jones has suffered an unlawful and illegal diminishment of rights.

CONCLUSIONS OF LAW

59.  FURTHER, THE COURT CONCLUDES THAT this, the above entitled court, has the sovereign authority to proceed as a court of record with jurisdiction to act in the instant case and subject matter.

60.  FURTHER, THE COURT CONCLUDES THAT because all respondents were duly served and court personnel were apprised of the petitioner’s Petition and Writ, and because all respondents had full notice and fair opportunity to argue their cause and did not so do, and because none of the aforementioned persons made a return, objection, or motion, the above-entitled court has acquired in personam jurisdiction of each of the respondents.

61.  FURTHER, THE COURT CONCLUDES THAT because the respondents have not presented any legal or lawful cause of, or any jurisdictional basis for the restraint of William Jones, the respondents do not have any legal or lawful cause against or  jurisdiction over William Jones.

62.  FURTHER, THE COURT CONCLUDES THAT because the respondents have not presented any evidence to prove the absence of prosecutorial vindictiveness by the respondents against William Jones, and because the burden of proof is upon the respondents when evidence of prosecutorial vindictiveness has been presented, as a matter of law the respondents have committed prosecutorial vindictiveness against William Jones.

63.  FURTHER, THE COURT CONCLUDES THAT strict compliance with statutory requirements were not met by the respondents, William Jones was denied due process, there is a reasonable probability that he will be denied due process, and there is a reasonable probability that William Jones will be subjected to future restraint of liberty arising from the same facts.

64.  FURTHER, THE COURT CONCLUDES THAT because William Jones has suffered an unlawful and illegal diminishment of rights William Jones will be subjected to further unlawful and illegal diminishment of rights.

CONCLUSION SUMMARY

65.  The respondents, namely STATE OF NEVADA, COUNTY OF CLARK, MICHAEL A. MILLER, DAVID SMITH, BECKY E. HASSALER, and JAMESON R. KISSINGER, by their default (their failure to return the writ of habeas corpus), have failed to prove their jurisdiction; therefore they each and all of them shall abate at law all proceedings in and relating to Las Vegas Justice Court Case No. 02F20706X, and Clark County District Court Case No. C‑189444.

66.  None of the Respondents is an infant or incompetent.  None of the Respondents has appeared in the proceedings.

67.  Default judgment to be entered by this court in accordance with Federal Rules of Civil Procedure, Rule 55(b)(2).  No damages are awarded; no costs are awarded; no attorneys’ fees are awarded. 

WITNESS:  the SEAL of the COURT this 14th day of April, 2003.

							THE COURT
							By

                      
							_____________________________
							Attornatus Privatus