William Michael Kemp, Sui Juris c/o 2108 General Delivery Gadsden, Alabama state zip code exempt In Propria Persona Under Protest, Necessity, and by Special Visitation all rights reserved CIRCUIT COURT OF ETOWAH COUNTY ALABAMA STATE Ex Parte ) Case No. #CC-95-1083 ) William Michael Kemp ) APPLICATION FOR EXTRAORDINARY ) WRIT OF HABEAS CORPUS: ________________________________) Alabama Statute 15-21-8 To the Honorable Judge of this Court: APPLICATION FOR THE EXTRAORDINARY WRIT OF HABEAS CORPUS COMES NOW Richard Hamilton Hayward, Relator, and files this His APPLICATION FOR THE EXTRAORDINARY WRIT OF HABEAS CORPUS on behalf of William Michael Kemp, Citizen of Alabama state (hereinafter "Applicant") and here proceeds to secure the release of your Applicant, who is presently restrained of His liberty as the result of the issuance of a BOND, a true copy of which is attached and marked "Exhibit A", the same having been issued on or about September 8, 1995, on authority of Judge William W. Cardwell of Circuit Court of Etowah County Alabama. Applicant will show that your Applicant is entitled to Habeas Corpus relief, and that the Judgment of the underlying Circuit Court, as is further delineated hereinbelow, is void for want of jurisdiction and is otherwise tainted, as is further set forth in detail and at length hereinbelow, as follows: Application for Extraordinary Writ of Habeas Corpus: Page 1 of 13 I. JURISDICTION 1. As jurisdictional authority for this Application for the Extraordinary Writ of Habeas Corpus, your Applicant relies upon the Constitution and laws of, and for, the United States of America, and especially the federal Bill of Rights; the Constitution and laws of, and for, Alabama state, especially the Bill of Rights as stated therein; the ancient Common Law respecting Writs of Habeas Corpus; the Alabama Statutes and Code of Criminal Procedure respecting Habeas Corpus, Alabama Statutes 15-21-1 thru 15-21-34, including, but not limited to, lawful provisions respecting your Applicant's Right to the effective assistance of Counsel. See Sixth Amendment, in particular. 2. Collectively, these fundamental Constitutional, Common and statutory laws are binding on this Court and, inter alia, provide that: 15-21-1. Persons entitled to prosecute writ: Generally. Any person who is imprisoned or restrained of his liberty in the state of Alabama on any criminal charge or accusation or under any other pretense whatever may prosecute a writ of habeas corpus according to the provisions of this chapter to inquire into the cause of such imprisonment or restraint. II. APPLICANT IS RESTRAINED OF HIS LIBERTY AND IS "IN CUSTODY." 3. Your Applicant is presently restrained of His liberty by virtue of His being released from actual custody arising from His arrest on September 8, 1995, pursuant to a bond as stated above. 4. Applicant's release from actual custody of the Sheriff, pursuant to the terms of the bond, continues from the day of His arrest to the present. For a copy of the bond, see Exhibit A. Application for Extraordinary Writ of Habeas Corpus: Page 2 of 13 5. For purposes of the Extraordinary Writ of Habeas Corpus, your Applicant is constructively "in custody," as distinguished from being in actual custody, and is therefore entitled to judicial review as to the propriety of the present restraint, via the Great Writ. 6. The United States Supreme Court has ruled that a release on a recognizance bond constitutes custody. Quoting from Hensley v. Municipal Court, 411 U.S. 345, 36 L.Ed.2d 294, 93 S.Ct. 1571, the United States Supreme Court has stated that, for purposes of the Writ of Habeas Corpus, the defendant was "in custody," although he had been released on his own recognizance. 7. The Hensley court, quoting from Jones v. Cunningham, 371 U.S. 236, 9 L.Ed.2d 285, 83 S.Ct. 373, 92 ALR 2d 675, at page 240, observed that the defendant is subject to restraints "not shared by the public generally ...." III. RELATOR AUTHORIZED TO PETITION FOR RELIEF 8. Richard Hamilton Hayward, Relator, has signed the instant Application and contemplates lodging the same with the Clerk of this Court, in the belief that this Court will grant Relator's previously filed Request for Leave to File this Application. Further, Applicant seeks hereby to file and present this Application to this Honorable Court, pursuant to the authority of Alabama Statute 15-21-4, to wit: "Application for a writ of habeas corpus must be made by petition, signed either by the party himself for whose benefit it is intended or by some other person on his behalf ...." Application for Extraordinary Writ of Habeas Corpus: Page 3 of 13 IV. RELATOR'S REQUEST FOR CONSIDERATION 9. Relator requests the consideration of this Court as to Applicant proceeding In Propria Persona, without the aid of licensed counsel, pursuant to the rule of law established in Hughes v. Rowe, 449 U.S. 5, 9; 101 S.Ct. 173, 176 (1980). V. BACKGROUND 10. A review of the known relevant facts respecting this application for the Extraordinary Writ of Habeas Corpus are as follows: a. On September 8, 1995, at approximately 2:00 p.m., your Applicant was confronted by uniformed officers who appeared at Applicant's residence; Applicant was arrested and taken into custody; and officers then entered, and then began to search, Applicant's residence; and, b. The search apparently produced items which were seized and taken by officers from the scene; there was no evidence of a search warrant or inventory of items seized which was left at the residence by officers; and, c. On September 8, 1995, a search warrant was obtained at approximately 3:00 p.m.; and, d. Applicant made bail and was released from custody on September 8, 1995; and, e. On or about September 11, 1995, Applicant appeared at the Sheriff's office and there obtained: (1) the search warrant, writ portion only together with the affidavit of Judge William Cardwell; (2) Police Report; and (3) arrest warrant which was absent any evidence of an affidavit in support; and, f. A proceeding of some undetermined description was held in September of 1995 before a District Judge in which the Judge apparently ruled in favor of "probable cause"; and, g. Applicant was arraigned by the Judge's entering a plea of "Not Guilty" for Him; and, h. On November 11, 1996, a jury trial was held before Circuit Judge Donald W. Stewart, resulting in the conviction of Applicant of the lesser included offense of simple possession of a controlled substance; and, Application for Extraordinary Writ of Habeas Corpus: Page 4 of 13 i. On November 25, 1996, after being convicted by a trial on the merits, Applicant was sentenced to twelve (12) months in the Etowah County Jail and fined $1,000.00, plus costs of court; and, j. On November 25, 1996, Applicant caused to be filed with the Alabama Court of Criminal Appeals His Petition for Writ of Mandamus, and the same was denied by that court on December 2, 1996; and, k. On December 5, 1996, Applicant caused to be filed with the Circuit Court His post-judgment Motion to Set Aside the jury verdict, and the same was set for hearing on January 7, 1997; and, l. On January 6, 1997, Applicant filed His Petition seeking removal of the State action to the District Court of the United States; and, m. On January 10, 1997, by ORDER of the United States District Court [sic], Applicant's Petition for Removal was denied and the case was remanded to the Alabama Circuit Court; and, n. As of this date, no hearing has been held or re-scheduled on Applicant's post-trial Motion to Set Aside. VI. APPLICATION FOR THE EXTRAORDINARY WRIT OF HABEAS CORPUS 11. Richard Hamilton Hayward, Relator, on this Application for the Extraordinary Writ of Habeas Corpus, requests of this Honorable Court that this Application be in all things granted, and further requests this Honorable Court to issue the Extraordinary Writ of Habeas Corpus directed to the Sheriff of Etowah County, Alabama state, and/or any other person into whose custody, actual or constructive, your Applicant has been or may be remanded, to produce the Person and Body of your Applicant, in and before this Honorable Court at a date and time certain, in a manner consistent with the Rule of Law established by Alabama Statute 15-21-14, establishing a date and time certain for a hearing on the relief requested by this Application so that a statutorily sufficient adjudicatory hearing may be held to Application for Extraordinary Writ of Habeas Corpus: Page 5 of 13 determine the propriety, if any there be, for the restraint upon the Person and liberty of the Applicant herein. Upon information and belief, the Person of Applicant is not presently accused of any misdemeanor nor is He presently under any felony indictment or other felony charges related to the instant or other matters, except for the charge(s) from which this proceeding arose. 12. In strict compliance with the requisites of an Application for the Extraordinary Writ of Habeas Corpus, as set forth in Alabama Statute 15-21-4 pertaining to the contents and requisites of a Writ of Habeas Corpus, Richard Hamilton Hayward, Relator, hereby states as follows: a. That this Application for the Extraordinary Writ of Habeas Corpus, after being signed by Relator and then lodged with the Clerk of this Court, pending a judicial grant of leave to file, and upon presentation by Relator, Relator represents that this Application is being made on behalf of Applicant, who is presently illegally restrained of His liberty and is presently in the constructive custody of the Sheriff of Etowah County, Alabama state, by virtue of a bond now at issue and is presently released on the said bond, as is further delineated hereinabove; and b. That Applicant is being restrained of His liberty by virtue of a "BOND", a true copy of which is attached and marked "Exhibit A", the same being issued on or about September 8, 1995, on authority of Judge William W. Cardwell of the Circuit Court of Etowah County, Alabama state; and c. That the restraint of Applicant herein complained of arises from a warrant for the arrest of Applicant issued on September 8, 1995, alleging to arise from violations of the laws of the State of Alabama respecting possession of controlled and/or illegal substances; and d. A true copy of said warrant for the arrest of Applicant is attached hereto and marked "Exhibit B"; and e. That this Application contains a request for relief, as is set forth below; and f. That this Application is verified by the oath of the Relator herein, Richard Hamilton Hayward, to the effect that the allegations in this Application are true and correct, according to the belief of Relator. Application for Extraordinary Writ of Habeas Corpus: Page 6 of 13 VII. SPECIFIC ERRORS IN JUDICIAL PROCEDURES WHICH HAVE RESULTED IN THE ILLEGAL RESTRAINT OF LIBERTY ERROR ONE APPLICANT'S RIGHTS TO DUE PROCESS OF LAW WERE VIOLATED IN THAT THE WARRANT FOR SEIZURE AND ARREST AT ISSUE WERE, AND ARE, FATALLY DEFECTIVE AS A MATTER OF LAW. 13. The underlying warrant for seizure of property and arrest of Applicant was fatally defective, due to the absence of a sufficient and lawful affidavit in support thereof. 14. The underlying warrant for seizure of property and arrest of Applicant was fatally defective, due to the untimely manner in which the warrant was obtained, in that said warrant was obtained after the arrest and seizure were effected. 15. Because of these material defects, evidence seized by fatally defective warrants was admitted against Applicant at trial and thus prejudiced His Right to due process of law. ERROR TWO APPLICANT'S DUE PROCESS RIGHTS WERE VIOLATED, IN THAT THE COURT HAS FAILED TO AFFORD TO APPLICANT A PROPER JUDICIAL DETERMINATION OF A WAIVER OF COUNSEL AND, AS A RESULT, APPLICANT DID NOT KNOWINGLY, INTENTIONALLY, VOLUNTARILY AND INTELLIGENTLY WAIVE HIS RIGHT TO COUNSEL, PURSUANT TO RIGHTS GUARANTEED TO HIM UNDER THE FIFTH AND SIXTH AMENDMENTS TO CONSTITUTION FOR THE UNITED STATES OF AMERICA, AND THE CORRESPONDING PROVISIONS OF THE CONSTITUTION FOR ALABAMA STATE. 16. As background for this section, Applicant was attached by a WARRANT which was issued after the arrest and search on September 8, 1995. 17. During hearings held before the District and Circuit Courts of Alabama, your Applicant was asked if He wanted Counsel, to which, reportedly, Applicant's answer was that Applicant did not want a licensed member of the State Bar of Alabama to represent Him in the trial of the charges then pending. Application for Extraordinary Writ of Habeas Corpus: Page 7 of 13 18. Upon information and belief, Relator asserts that your Applicant was, at that time and is now, incompetent as to, and thus incapable of, comprehending the meaning of the term "Right of Counsel", as said term applies to a civil and/or criminal trial or pre-trial hearing which he was immediately and without reasonable or sufficient notice required to respond and defend. 19. Then defendant, and here your Applicant, is a 47 year old male who is in an altogether understandably precarious physical condition, having serious physical and medical disabilities, who is not a lawyer and has no legal training and who does not (Relator has reason to believe) comprehend the full meaning of His right(s) to Counsel or, for that matter, His other Rights to a fair and full adversarial hearing in the adjudication of the criminal allegations pending, and their implications. 20. Under the circumstances presented here, in the face of a medical condition generally described above, the Defendant and now your Applicant was merely asked by the District Court and the Circuit Court if he wanted Counsel. 21. Under those questionable conditions, the implication arising from these proceedings is that Applicant had the capacity to discern the full significance of the question and its import as it would affect His liberty. Apparently, the Court considered Him not only competent to answer the question, but did in fact accept His response as being entirely valid and sufficient, as a matter of law, but failed entirely to make an adequate record of that transaction which judicially determined the validity of the alleged waiver. Application for Extraordinary Writ of Habeas Corpus: Page 8 of 13 22. On the contrary, Relator suggests that this record presents circumstances which are not the stuff of which the legal concept of a knowing and intelligent waiver of Counsel is prudently made. In point of fact, Relator proffers that a high probability of a denial of Counsel is evidenced by the present state of record arising from the several proceedings, including trial on the merits. In said proceedings, Applicant was subjected to repeated hearings covering technical matters which were, apparently and clearly (as is now evidenced by the results), not within His capabilities or experience, and which could not possibly have resulted from a knowing and intelligent waiver of His Right to the effective assistance of Counsel during His defense. All of the proceedings were made in adjudication of the property and liberty of the Defendant, and now here your Applicant. 23. On information and belief Relator states that both the pre-trial hearing court as well as the trial court failed to make meaningful inquiry into the limits on Applicant's ability, knowledge, intelligence and cognizance of the dangers to which Applicant was subjecting Himself. 24. Accordingly, Relator here asserts that the District and Circuit Courts' failure to procure a knowing and intelligent waiver of Applicant's Right to Counsel violated Applicant's due process rights and rendered the pre-trial proceedings and trial, conviction, judgment, and sentence of the Trial Court to be entirely void as being absent jurisdiction and in denial of Applicant's fundamental Right to fair hearings consistent with the well established standards of due process of law. Application for Extraordinary Writ of Habeas Corpus: Page 9 of 13 ARGUMENT AND AUTHORITIES WITH REGARD TO TRIAL COURT ERROR THREE a. APPLICANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL CANNOT BE WAIVED, EXCEPT WITH A KNOWING, INTELLIGENT AND COMPETENT WAIVER MADE AND EVIDENT UPON THE RECORD OF THE PROCEEDINGS. 25. The Sixth Amendment to the United States Constitution states in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right to ... have the assistance of Counsel for his defence." 26. The United States Supreme Court has held in Johnson v. Zerbst, 304 U.S. 458, that: "... the sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving [one] of his life or his liberty. A court jurisdiction at the beginning of trial may be lost in the courts of the proceedings due to a failure to complete the court - as the Sixth Amendment requires -- by providing counsel for an accused who is unable to obtain counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty is at stake. If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed. The judgment of the conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus." See Johnson supra. 27. Further from Johnson v. Zerbst: "This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for the determination to appear upon the record." See Johnson supra at 465. b. CONTRARY TO THE GUIDELINES OF SETTLED LAW, THE TRIAL COURT FAILED AFFIRMATIVELY TO MAKE OR INQUIRE INTO THE EXTENT THAT YOUR APPLICANT WAS FULLY AND PROPERLY AWARE OF HIS RIGHT TO COUNSEL, AND FURTHER DENIED AN ADEQUATE RECORD FOR THE PURPOSE OF REVIEW. Application for Extraordinary Writ of Habeas Corpus: Page 10 of 13 28. Even though Applicant was noticeably without assistance of Counsel, and despite the court's posing the naked question as to Applicant's desire for Counsel, the trial court never fully and properly advised Applicant of the possible consequences and the implications which awaited Him as a result of the nature and requirements of the pre-trial hearings, and the trial in chief. 29. Apparently, the trial court failed to make any determination beyond that of a naked question and its cursory answer, thus leaving the court and the record devoid of either an affirmative attempt to discern Applicant's comprehension of the question or the implications, including incarceration, which may have, and in this case probably would have been, resulted from an absence of proper Counsel. 30. The District and Circuit Courts failed to make a sufficient record of the proceedings capable of plenary review of the issues surrounding Applicant's Right to Counsel. VIII. SUMMARY 31. Relator has herein made a prima facie case for issuance of the Extraordinary Writ of Habeas Corpus, meeting the threshold requirements for issuance of the Great Writ as set forth in Alabama Statute 15-21-4.32. 32. Thusly, Relator has invoked the duty of an authorized court to issue the Extraordinary Writ of Habeas Corpus forthwith, pursuant to Alabama Statute 15-21-8, in that: ... [T]he judge to whom the application for a writ of habeas corpus is made must grant the same without delay, unless it appears from the petition itself or from the documents thereunto annexed that the person imprisoned or restrained is not entitled to the benefit of the writ under the provisions of this chapter. Application for Extraordinary Writ of Habeas Corpus: Page 11 of 13 RELIEF REQUESTED Wherefore, all premises considered, Richard Hamilton Hayward, Relator on behalf of your Applicant, respectfully requests, on the prima facie showing, as is set forth in this Application for the Extraordinary Writ of Habeas Corpus, that this honorable Court grant the following relief: (1) Issue, forthwith, the Extraordinary Writ of Habeas Corpus; and, (2) Authorize the issuance of a reasonable and prudent personal recognizance appearance bond, pending a statutorily sufficient adjudicatory hearing on the Extraordinary Writ of Habeas Corpus; and, (3) Fix a date and time certain at which a statutorily sufficient adjudicatory hearing may be held in a dispositive determination of the propriety of the present restraint upon the liberty of your Applicant; and, (4) Issue any and all other and added relief to which Applicant may show Himself to be, or is otherwise, justly entitled at law, or in equity, and which this Court deems to be just and proper in this action. Thank you very much for your consideration. Dated: March 22, 1997 Respectfully submitted, /s/ Mike Kemp __________________________________________________ William Michael Kemp, Sui Juris Citizen of Alabama state (expressly not a citizen of the United States) All Rights Reserved without Prejudice Application for Extraordinary Writ of Habeas Corpus: Page 12 of 13 VERIFICATION STATE OF ALABAMA ) ) COUNTY OF ETOWAH ) Before me, the undersigned authority, on this day personally appeared Richard Hamilton Hayward who, after being duly sworn, did depose and state: "My name is Richard Hamilton Hayward, I am over twenty-one (21) years of age, have never been convicted of a felony or a crime of moral turpitude, and I am competent to make this affidavit. I am the Relator in the foregoing Application for the Extraordinary Writ of Habeas Corpus, and all statements, allegations, denials and attachments contained therein are true and correct, to the best of My current information, knowledge and belief." /s/ Rich Hayward ________________________________ Richard Hamilton Hayward Given under my hand and seal this ____ day of March, 1997 ______________________________________________ Notary Public, in and for the State of Alabama __________________________________________ Name of Notary (printed) Application for Extraordinary Writ of Habeas Corpus: Page 13 of 13 # # #
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Alabama v. Kemp