"Petition for Writ of Mandamus" to the Florida Supreme Court

[iamfreeru2]

Hello,

I will be quite busy putting a "Petititon for Writ of Mandamus" together to be submitted to the Florida Supreme Court to compel the recording of a Notice of Contest of Lien by the Marion County Clerk of Court. The clerk has refused to file the Contest of Lien when the statute clearly states it is to be filed by the clerk of court (county recorder). The clerk refused to file it stating it is in regard to a federal notice of tax lien. Well, first off the notice is not a lien and the only way it could be an actual lien is to have a judgment registered with the DOR (Department of Revenue) in Tallahassee. If there is no judgment there is no lien. This should be a slam dunk. I have uploaded a letter I received from the AG of Florida, Charlie Crist that states "the agrieved individual may seek a mandmus order compelling the clerk to act." For those that would be intersted in the petititon I will be glad to upload it when it is finished. By the way it is not for me, but a friend and I am helping him with his education.

[futop]

iamfreeru2,

If I am wrong please correct me but aren't all "writs" common law? I posted this link in the "Libel in Review use" thread but I haven't gotten any responses. I can read it and have a decent understanding of it but implementation is lacking. But if it reads true then there would be heavy penalties if a suit was brought in the Admiralty jurisdiction and the clerk did not file papers. I just wanted to run this by you. I wish we could get some more input from anyone who is more knowledgeable concerning Admiralty.

www.wealth4freedom.com/law/Admiralty.htm

[Livefire]

futop,

The link you posted is correct.....The district courts of the US have exclusive jurisdiction in revenue cases...because according Benedicts Admiralty all revenue cases in the US are in admiralty altho they take on a civil nature.

If the notice of Federal lien isnt accompanied by a warrant of distraint filed in US District court....it's bogus and one can file the Libel in Review to make a restricted appearance to challenge its validity.

I dont believe the Florida SC has jurisdiction to enact such a writ as iamfree is attempting. Appropriate venue would be federal district court. I've attached a doc obtained thru the SavingToSuitors group on yahoo. Lots of great research and info on that file!! Kudos to David Merill and Lewis for their efforts!


TITLE 28 > PART IV > CHAPTER 85 > Sec. 1333. Prev | Next


Sec. 1333. - Admiralty, maritime and prize cases
The district courts shall have original jurisdiction, exclusive of the courts of the States, of:
(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.
(2) Any prize brought into the United States and all proceedings for the condemnation of property taken as prize


TITLE 28 > PART VI > CHAPTER 163 > Sec. 2463. Prev | Next

Sec. 2463. - Property taken under revenue law not repleviable All property taken or detained under any revenue law of the United States shall not be repleviable, but shall be deemed to be in the custody of the law and subject only to the orders and decrees of the courts of the United States having jurisdiction thereof.

[iamfreeru2]

Originally Posted by Livefire

futop,

The link you posted is correct.....The district courts of the US have exclusive jurisdiction in revenue cases...because according Benedicts Admiralty all revenue cases in the US are in admiralty altho they take on a civil nature.

If the notice of Federal lien isnt accompanied by a warrant of distraint filed in US District court....it's bogus and one can file the Libel in Review to make a restricted appearance to challenge its validity.

I dont believe the Florida SC has jurisdiction to enact such a writ as iamfree is attempting. Appropriate venue would be federal district court. I've attached a doc obtained thru the SavingToSuitors group on yahoo. Lots of great research and info on that file!! Kudos to David Merill and Lewis for their efforts!

TITLE 28 > PART IV > CHAPTER 85 > Sec. 1333. Prev | Next


Sec. 1333. - Admiralty, maritime and prize cases
The district courts shall have original jurisdiction, exclusive of the courts of the States, of:
(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.
(2) Any prize brought into the United States and all proceedings for the condemnation of property taken as prize


TITLE 28 > PART VI > CHAPTER 163 > Sec. 2463. Prev | Next

Sec. 2463. - Property taken under revenue law not repleviable All property taken or detained under any revenue law of the United States shall not be repleviable, but shall be deemed to be in the custody of the law and subject only to the orders and decrees of the courts of the United States having jurisdiction thereof.

The Florida SC is the appropriate venue in this matter. We are not doing the mandamus on the NOFTL, it is being done regarding the County Recorder not doing their job under Florida Statute, which is to record the Contest of Lien. If the IRS does not release the NOFTL at that point we will go into the federal district court under admiralty, but not until then. I never said we were contesting the NOFTL in the Florida SC. Read my post and understand what was stated. Where did I say we were contesting the NOFTL?

[Livefire]

Originally Posted by iamfreeru2

If the IRS does not release the NOFTL at that point we will go into the federal district court under admiralty, but not until then.

My friend,

That statement is like holding a gun to a complete stranger and telling the bad guy (IRS) "If you dont give me what I want, I'll shoot!!!" to which the bad guy replies go ahead and see if I care! Having said that, I think that Id concurrently would go after the IRS in admiralty. I hope you also can nail that clerk in a personal capacity for acting outside of their office, since they made the legal determination for you, stating a notice of federal lien is exempt. My prayers are with you on this.

[weishaupt1776]

18 USC 242 criminal complaint.

it's for aliens to the United States.

[iamfreeru2]

First off the mandamus is not for me. Second, all we are doing at this point is asking the court to compel the County Recorder to do his/her ministerial duty and that is record the documents they are required to record under the statute. I have complained myself on another issue regarding a document I wanted recorded and got the job done. This time I am helping a friend use the court and the law to compel performance. The Florida Statutes are clear and that's it. The one I am helping does not want to go into the federal district court at this point. I know what you guys are saying and if it were me that is what I would do, since it is not about me and someone else, I am helping the only way I can at the moment. I hope this clears things up for you.

[FrankBonin]

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FindLaw: State Resources: Arkansas: Primary Materials: Arkansas Court Opinions

Randall Thomas McARTY v . STATE of Arkansas

CR 93-1071 ___ S.W.2d ___

Supreme Court of Arkansas

Opinion delivered December 17, 1998

1. Criminal procedure -- writ of error coram nobis -- circuit court can entertain after judgment affirmed only with appellate permission. -- A circuit court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after the supreme court grants permission.

2. Criminal procedure -- writ of error coram nobis -- when appropriate. -- A writ of error coram nobis is an exceedingly narrow remedy, appropriate only when an issue was not addressed or could not have been addressed at trial because it was somehow hidden or unknown and would have prevented the rendition of the judgment had it been known to the trial court; the writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature; a presumption of regularity attaches to the criminal conviction being challenged, and the petition must be brought in a timely manner.

3. Criminal procedure -- writ of error coram nobis -- newly discovered evidence not in itself basis for. -- Newly discovered evidence in itself is not a basis for relief under coram nobis; a claim of newly discovered evidence must be addressed to the trial court in a motion for new trial made within the time in which anotice of appeal must be filed.

4. Criminal procedure -- petition to reinvest jurisdiction in trial court to consider petition for writ of error coram nobis denied -- no assertion of fundamental error. -- A petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis was denied where petitioner had not demonstrated that there was some fact extrinsic to the record that could not have been known at trial that would warrant issuance of a writ of error coram nobis ; there was clearly no assertion of fundamental error that required issuance of the writ.

5. Criminal procedure -- writ of error coram nobis -- every fact alleged as grounds was known at trial. -- Before a writ of error coram nobis may issue it must appear that the facts as alleged as grounds for its issuance are such as would have precluded the entry of the judgment had they been available at trial; here, every fact alleged as grounds was known at trial.

6. Criminal procedure -- writ of error coram nobis -- ineffective-assistance claim not in itself ground to grant. -- A claim of ineffective assistance of counsel in itself is not a ground to grant a writ of error coram nobis ; such claims are properly raised in a timely petition pursuant to Ark. R. Crim. P. 37.

Pro Se Petition for Leave to Proceed in Circuit Court with Petition for Writ of Error Coram Nobis ; denied.

Randall Thomas McArty , pro se.

No response.

In 1993, Randall Thomas McArty was found guilty of murder in the first degree and sentenced to life imprisonment. We affirmed. McArty v. State , 316 Ark. 35, 871 S.W.2d 346 (1994).

McArty now petitions this court to reinvest the trial court with jurisdiction to consider a petition for writ of error coram nobis in the case. The petition for leave to proceed in the trial court is necessary because the circuit court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Larimore v. State , 327 Ark. 271, 938 S.W.2d 818 (1997).

A writ of error coram nobis is an exceedingly narrow remedy, appropriate only when an issue was not addressed or could not have been addressed at trial because it was somehow hidden or unknown and would have prevented the rendition of the judgment had it beenknown to the trial court. Penn v. State , 282 Ark. 571, 670 S.W.2d 426 (1984), citing Troglin v. State , 257 Ark. 644, 519 S.W.2d 740 (1975). The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. A presumption of regularity attaches to the criminal conviction being challenged, Larimore , supra , citing United States v. Morgan , 346 U.S. 502, 512 (1954), and the petition must be brought in a timely manner. Penn, supra. Newly discovered evidence in itself is not a basis for relief under coram nobis . Larimore, supra ; Smith v. State , 301 Ark. 374, 784 S.W.2d 595 (1990). A claim of newly discovered evidence must be addressed to the trial court in a motion for new trial made within the time in which a notice of appeal must be filed. See A.R.Cr.P. 33.3; Penn, supra.

Petitioner claims that jurisdiction should be reinvested in the trial court to consider an error coram nobis petition on the ground that both his trial attorney and the prosecutor were aware of the results of a psychological evaluation which would have been helpful to the defense but chose to withhold it from the jury. He further contends that the jury was given an instruction which was not appropriate and that his trial attorney did not render the effective assistance of counsel guaranteed him by the Sixth Amendment.

The petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis is denied. Petitioner has not demonstrated that there was some fact extrinsicto the record which could not have been known at trial which would warrant issuance of a writ of error coram nobis . Indeed, he has failed to show that there was any evidence, relevant or otherwise, withheld by the prosecution inasmuch as he concedes that his attorney was aware of the psychological evaluation. There is clearly no assertion of fundamental error which requires issuance of the writ.

Before a writ of error coram nobis may issue it must appear that the facts as alleged as grounds for its issuance are such as would have precluded the entry of the judgment had they been available at trial. Larimore , supra . Here, every fact alleged as grounds was known at trial.

With respect to petitioner's claim that his attorney at trial was ineffective, a claim of ineffective assistance of counsel in itself is not a ground to grant a writ of error coram nobis . Such claims are properly raised in a timely petition pursuant to Ark. R. Crim. P. 37. See Williams v. Langston , 285 Ark. 444, 688 S.W.2d 285 (1985).

Petition denied.

Arnold, C.J., not participating.