Time: Sun Nov 24 04:44:28 1996
To: Nancy Lord <defense@macon.mindspring.com>
From: Paul Andrew Mitchell [address in tool bar]
Subject: Petition for Leave to Appeal and for Mandamus
Cc:
Bcc:
"birds quacking," huh?
can't wait to hear the ducks singing! :)
/s/ Paul Mitchell
At 10:54 PM 11/23/96 -0500, you wrote:
>At 08:32 PM 11/23/96 -0700, you wrote:
>>At 09:38 PM 11/23/96 -0500, you wrote:
>>>At 07:33 PM 11/23/96 -0700, you wrote:
>>>>>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
>>>
>>>Paul,
>>> I just called -- no answer. This is great, very concise
>>>to the point. But I'm unclear on why Stewart's orders are
>>>"interlocutory" - - he's the trial judge right?
>>
>>Interlocutory is inter-locution:
>>during the proceeding and prior
>>to final judgment. Since appellate
>>courts usually have jurisdiction only
>>over final judgments, you must petition
>>for leave to appeal an interlocutory
>>matter.
>
> Got it. I was thinking "interlocutory appeal", I
>thought the appellate decision was interlocutory, not
>the order.
>
>
>
> Also, Mandamus lies At Law
>>to compel a judge's obedience to
>>due process of law, and it lies
>>before final judgment if the judge's
>>negligence is egregious and/or goes
>>to a fundamental Right. Remember,
>>due process of Law is a fundamental
>>Right under the Fifth Amendment.
>>
>>I hope this helps.
>
> It does.
>>
>>/s/ Paul Mitchell
>>
>>
>>>
>>> Have you checked the Alabama rules of procedure?
>>
>>No, we didn't have time to get
>>a copy to me. I don't think it
>>really matters anyhow, since at
>>are invoking the Law side of the
>>court.
>>
>>>That's what can knock you out of the water on something
>>>like this if it's not done absolutely perfectly.
>>
>>See "substance prevails over form."
>>
>> I honestly
>>>don't know what rule to invoke to file an appeal before a
>>>final judgment is issued.
>>
>>The rule is common law here,
>>so we can dispense with the
>>particulars of specific procedural
>>rules. Typically, the brief is
>>titled "Petition for Leave to
>>Appeal Interlocutory Order."
>>
>>/s/ Paul Mitchell
>>
>>
>> Interesting concept. Keep me
>>>posted.
>>
>>Will do. Are you busy tomorrow for
>>dinner? How about a riverboat on
>>the Mississippi, with plenty of time
>>to lounge as the water flows gently
>>by the mossy shore?
>
> I want to go someplace like in those pictures
>I wrote to you about, sometime back. Lots of waterfalls
>& lush foliage, jungle even, no Janet, no Linda, no Jon
>Stadtmiller on short wave . . . just peace and quiet &
>natural sounds like birds squacking.
>
> But I'll meet you at the Vegas airport, by the
>baggage claim. I think my ticket's still in the mailbox,
>I'll tell you the flight when I get back.
>
>Your friend,
>Nancy
>>
>>/s/ Paul Mitchell
>>
>>>
>>>Nancy
>>>
>>>
>>>>>
>>>>>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
>>>>>
>>>>
>>>>===========================================================
>>>>Paul Andrew, Mitchell, B.A., M.S.: pmitch@primenet.com
>>>>ship to: c/o 2509 N. Campbell, #1776, Tucson, Arizona state
>>>>===========================================================
>>>>
>>>>
>>>
>>>
>>
>>===========================================================
>>Paul Andrew, Mitchell, B.A., M.S.: pmitch@primenet.com
>>ship to: c/o 2509 N. Campbell, #1776, Tucson, Arizona state
>>===========================================================
>>
>>
>
>
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