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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