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


                             #  #  #


Return to the Table of Contents for

Alabama v. Kemp