Time: Sun Nov 24 04:44:28 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: 

"birds quacking," huh?
can't wait to hear the ducks singing!  :)

/s/ Paul Mitchell



At 10:54 PM 11/23/96 -0500, you wrote:
>At 08:32 PM 11/23/96 -0700, you wrote:
>>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. 
>
>        Got it.  I was thinking "interlocutory appeal", I
>thought the appellate decision was interlocutory, not
>the order.
>
>
>
> 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.
>
>        It does.  
>>
>>/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?
>
>        I want to go someplace like in those pictures
>I wrote to you about, sometime back.  Lots of waterfalls
>& lush foliage, jungle even, no Janet, no Linda, no Jon
>Stadtmiller on short wave . . . just peace and quiet &
>natural sounds like birds squacking.
>
>        But I'll meet you at the Vegas airport, by the 
>baggage claim.  I think my ticket's still in the mailbox,
>I'll tell you the flight when I get back.
>
>Your friend,
>Nancy        
>>
>>/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
>>>>===========================================================
>>>>
>>>>
>>>
>>>
>>
>>===========================================================
>>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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