Time: Sun Nov 24 07:06:58 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 09:00 AM 11/24/96 -0500, you wrote:
>At 04:46 AM 11/24/96 -0700, you wrote:
>>"birds quacking," huh?
>>can't wait to hear the ducks singing! :)
>>
> I think I said "Squacking" & then lost
>the s somehow. Sorry. :)
Now I'm REALLY confused.
Did you mean "bird squacking",
or "birds quacking."
There is a difference, you know!! :-))
/s/ Paul Mitchell
>
>Nancy
>>/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
>>>>===========================================================
>>>>
>>>>
>>>
>>>
>>
>>===========================================================
>>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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