Time: Sat Nov 23 20:30:34 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 09:38 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. 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. /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? /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 >>=========================================================== >> >> > >
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