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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