Time: Sat Nov 23 19:32:07 1996
To: Nancy Lord
From: Paul Andrew Mitchell [address in tool bar]
Subject: Petition for Leave to Appeal and for Mandamus
Cc: 
Bcc: 

>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
>
>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
>
      


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