Time: Sat Nov 23 19:32:07 1996
To: Nancy Lord
From: Paul Andrew Mitchell [address in tool bar]
Subject: Petition for Leave to Appeal and for Mandamus
Cc:
Bcc:
>Date: Sat, 23 Nov 1996 19:18:36
>To: Mike Kemp
>From: Paul Andrew Mitchell [address in tool bar]
>Subject: Petition for Leave to Appeal and for Mandamus
>
>William Michael, Kemp, Sui Juris
>c/o 2108 Lookout Street
>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
>
>
>
> Petition for Mandamus & Leave to Appeal: Page 1 of 6
>
>prosecutor to reveal the "nature and cause of the accusation"
>
>alleged in the indictment as filed in the instant case;
>
> (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
>
>
>
> Petition for Mandamus & Leave to Appeal: Page 2 of 6
>
>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.
>
> 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,
>
>
>
>
>____________________________________
>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
>
>
>
>
>___________________________________
>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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