William Michael, Kemp, Sui Juris
c/o General Delivery
Gadsden, Alabama state
zip code exempt
In Propria Persona
Under Protest, Necessity,
and by Special Visitation
all rights reserved
ALABAMA COURT OF CRIMINAL APPEALS
SIXTEENTH APPELLATE DISTRICT
STATE OF ALABAMA ) Case No. _______________________
) 16th Cir. Case #CC-95-1083-DWS
Plaintiff )
) PETITION FOR LEAVE TO APPEAL
v. ) FROM INTERLOCUTORY ORDER,
) AND FOR WRIT OF MANDAMUS
WILLIAM MICHAEL KEMP [sic], ) At law:
) Substance prevails over form.
Defendant ) Authorities: Amendments IV, VI
) and Supremacy Clause in the
) Constitution for the
______________________________) United States of America
COMES NOW William Michael, Kemp, Sui Juris, Citizen of Alabama
state and Defendant in the above entitled action (hereinafter
"Defendant"), to petition this honorable Court for a Writ of
Mandamus to the Circuit Court, and for leave to appeal four
issues:
(1) the interlocutory Order of Circuit Judge Donald W.
Stewart to proceed to trial without first determining, as a
matter of law, whether the search and seizure of Defendant's
private property were reasonable, in light of the fact that no
valid warrant was issued prior to said search and seizure;
(2) the interlocutory Order of Circuit Judge Donald W.
Stewart to proceed with trial without first ordering the
prosecutor to reveal the "nature and cause of the accusation"
alleged in the indictment as filed in the instant case;
Petition for Mandamus & Leave to Appeal:
Page 1 of 6
(3) the judicial determination by Judge Donald W. Stewart
that Defendant waived one or more of Defendant's fundamental
rights, when the record in the instant case fails to exhibit any
knowing, intentional, and voluntary acts to that end, done with
sufficient awareness of the relevant circumstances and likely
consequences; and
(4) the Circuit Court's failure to schedule a hearing
specifically to address Defendant's routine motion to continue
the matter, pending preparation of Defendant's recently selected
counsel to assist with his defense prior to sentencing.
GROUNDS IN SUPPORT OF PETITION
Defendant submits that the actions of the Circuit Court of
Etowah County, Alabama state, have deprived defendant of His
fundamental Rights to enjoy due process of law, to be secure
against unreasonable search and seizures, to know the exact
nature and cause of the accusation(s) made against Him, including
the specific, unambiguous identity of the plaintiff and specific
unambiguous identification of the proper defendant, and to have
effective assistance of Counsel for His defense.
Defendant submits that the Circuit Court of Etowah County,
Alabama state, was denied jurisdiction to proceed over the
subject matter in the first instance, because no valid warrant
was issued prior to the search and seizure of Defendant's private
property in the instant case, and unrebutted evidence shows that
there was no lawful cause for the initial action by the police.
The State of Alabama's practice of obtaining search warrants
after the fact is unconstitutional on its face and invalidates
all such warrants. See Fourth Amendment to the Constitution for
the United States of America.
Petition for Mandamus & Leave to Appeal:
Page 2 of 6
Defendant argues that He is entitled to a Writ of Mandamus
to be served upon Circuit Judge Donald Stewart, compelling said
Judge to require the Prosecutor in the instant case to produce a
proper and lawful Bill of Particulars, detailing the exact nature
and cause of the accusation(s) alleged against Defendant in the
indictment as previously filed in the instant case, and as
previously served upon Defendant. In addition to all other
pertinent information, this Bill must properly name the plaintiff
and properly name the accused, as must all process.
Defendant submits that the Circuit Court of Etowah County,
Alabama state, failed to honor the due process of law when it
determined, incorrectly, that the Defendant had waived one or
more of Defendant's fundamental Rights in the instant case
without any knowing, intentional and voluntary acts to that end,
done with sufficient awareness of the relevant circumstances and
likely consequence. See Brady v. U.S., 397 U.S. 742 at 748
(1970). Acquiescence in the loss of fundamental Rights is never
presumed. See Ohio Bell v. Public Utilities Commission, 301 U.S.
292.
Finally, Defendant submits that the Circuit Court of Etowah
County, Alabama state, was arbitrary and capricious when it
failed to schedule a hearing specifically to address Defendant's
Motion, previously filed in the instant case, to Continue the
matter, pending preparation of Defendant's recently selected
counsel to assist with His defense prior to sentencing.
Petition for Mandamus & Leave to Appeal:
Page 3 of 6
The fundamental Right to effective assistance of Counsel is
so important and fundamental that, if a trial court should fail
to ensure that a criminal Defendant is afforded effective
assistance of Counsel at every step in the proceedings, the Court
ousts itself of jurisdiction. See Johnson v. Zerbst, 304 U.S.
458, 468 (1938).
Defendant submits that the Constitution for the United
States of America, as lawfully amended (hereinafter "U.S.
Constitution"), the laws of the United States (federal
government), and the treaties of the United States (federal
government), are all as much a part of the law of every Union
state as its own local laws and local constitution. This is a
fundamental principle in our system of complex national policy.
See Hauenstein v. Lynham, 100 U.S. 483, 489-490 (1880).
This principle is particularly applicable in the case of a
Citizen of Alabama state who is not also a federal citizen.
Confer at "federal citizenship" in Black's Law Dictionary, Sixth
Edition. A person who is a federal citizen is necessarily a
citizen of the particular state in which s/he resides; but a
Person may be a Citizen of a particular state and not a federal
citizen. To hold otherwise would be to deny Alabama state the
highest exercise of its sovereignty -- the right to declare who
are its state Citizens. See State v. Fowler, 41 La. Ann., 380, 6
S. 602 (1889). The Alabama Supreme Court has held as follows:
There are, then, under our republican form of government,
two classes of citizens, one of the United States and one of
the state. One class of citizenship may exist in a person,
without the other, as in the case of a resident of the
District of Columbia; but both classes usually exist in the
same person.
[Gardina v. Board of Registrars, 160 Ala. 155]
[48 S. 788, 791 (1909), emphasis added]
Petition for Mandamus & Leave to Appeal:
Page 4 of 6
Alabama state is a member, in good standing, of the Union
also known as the United States of America. Confer at "Union" in
Bouvier's Law Dictionary (any edition). The "United States" and
the "United States of America" are distinct legal entities, not
one and the same. Alabama state is one of the United States of
America.
RELIEF REQUESTED
Wherefore, Defendant petitions this honorable court for a
Writ of Mandamus to Circuit Court Judge Donald W. Stewart, for
leave to appeal the interlocutory Orders of said judge, and for
any other relief which this court deems just and proper, under
the circumstances.
VERIFICATION
I, William Michael, Kemp, Sui Juris, hereby declare, under
penalty of perjury, under the laws of the United States of
America, without the "United States," and under knowledge of the
law forbidding false witness before God and men, attest and
affirm that I have read the foregoing and know the contents
thereof, and that the same is true of My own knowledge, except
those matters herein alleged on information and belief, and as to
those matters, I believe them to be true, so help me God,
pursuant to 28 U.C.C. 1746(1).
Executed on November 22, 1996
Respectfully submitted,
/s/ Mike Kemp
____________________________________
William Michael, Kemp, Sui Juris
Citizen of Alabama state
(expressly not a federal citizen)
Petition for Mandamus & Leave to Appeal:
Page 5 of 6
PROOF OF SERVICE
I, William Michael, Kemp, Sui Juris, hereby certify, under
penalty of perjury, under the laws of the United States of
America, without the "United States", that I am at least eighteen
years of age, a Citizen of one of the United States of America,
and that I personally served the following document(s):
PETITION FOR LEAVE TO APPEAL
FROM INTERLOCUTOR ORDER, AND
FOR WRIT OF MANDAMUS
by placing one true and correct copy of said document(s) in the
first class United States Mail, with postage prepaid and properly
addressed to the following:
James E. Hedgspeth, Jr.
District Attorney
16th Judicial Circuit
Etowah County Offices
800 Forrest Avenue
Gadsden, Alabama state
Clerk of Court
Circuit Court of Etowah County
Etowah County Court House
800 Forrest Avenue
Gadsden, Alabama state
Executed on November 22, 1996
copy filed by facsimile transmission and United States Mail this
day with the Clerk of the Court of Criminal Appeals
/s/ Mike Kemp
___________________________________
William Michael, Kemp
Citizen of Alabama state
All Rights Reserved without Prejudice
Petition for Mandamus & Leave to Appeal:
Page 6 of 6
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Alabama v. Kemp