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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