Time: Sun Nov 24 07:06:58 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: At 09:00 AM 11/24/96 -0500, you wrote: >At 04:46 AM 11/24/96 -0700, you wrote: >>"birds quacking," huh? >>can't wait to hear the ducks singing! :) >> > I think I said "Squacking" & then lost >the s somehow. Sorry. :) Now I'm REALLY confused. Did you mean "bird squacking", or "birds quacking." There is a difference, you know!! :-)) /s/ Paul Mitchell > >Nancy >>/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 >>>>=========================================================== >>>> >>>> >>> >>> >> >>=========================================================== >>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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