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


                             #  #  #


Return to the Table of Contents for

Alabama v. Kemp