Charles Anthony Malouff, Jr. v. State

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QIAp!BS k. !IJ\I.QUFFI JR. §

AKA • CHART IE MUOQPF

§

v. § CASE NO. 03~13-00723-CR

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A (4< -s'l!A'I'B OF TEXAS

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WR1'T fiF . 'ffi'<B.El'<S CelWUS ,

MBM9&"ll'tfiYM IN . SIIPPOi'd' OF

SEEKING RELIEF FROM nJM FELONY CONVICTION UNDER CODE OF

CRIMINAL PROCEDURE, ARTICLE 4!4-.IJ, AS A RESULT OF

VIOLATIONS OF ARTICLE 1, SECTIONS 8, 9, AND 10 OF THE

TEXAS CONSTITUTION, AND THE FIRST, FOURTH, FIFTH, SIXT •~RD;:E::::C:::E-/~-E-D­

NINTH, AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION· MAR 0 9 2015

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TO THE HONORABLE JUDGE OF SAID COURT:

Charlie Malouff, pro se, hereby moves this Court to GRANT, in

the interest of justice, extraordinary relief from his conviction

i~?.>u 1-11 o\l f, (:::~\41 e q'l"""'J> ou & Co" -0 '<.J..& "~=' 1ol-Q.(t J:-1-~)'J\1 1 () \q_{-101)"' oP Th>< 1:1!:> 111\0 RJ !UIJ:I.l- 1-li-W,., ~ 1!. r!f)

l?vrsnaA:E to the Code ef Criminal ProeeGYre? Article 11 07, r:esyJ.-

'In-'S A-134-IY'JOOI;;'!..- Rv<.-<!16 (!)\' R!ofl'. Cb,\JO\lvP THe 11.1<11!:> 016"-> (1.. • .,;:- lkcF. Cbt>.Ovc.:r· i\.IMI\IJOtvt1'lQO\-Ti!JV Af!!Q(\q\t>

ting in d dee-:i:·Si<9H that was CulitLaL:I' te 1 er ifW€llVeS 'yg,~fla£;J.e

C.ov()?l2.(/i}IJ91NiiJO '" -1-1.;!. \1\{.<Wi)-\.-arJII~!,UL f'~llf'e4-Mi1l'1 £ U&:z If* ijla;;rj c:t~¥<lnfil\~t< 2J

appJ,.;l-Gat-i-efl-ef, clearly established State afld Feseral law, _as_

& I'~ {(e!(;,o<F!"~5 J.i-.e..Ccs.>r-1:- a<:L.q'-4--t;,,,. S:""fle.me>?kcl'Bs-tlf :J:'Ao.> C.GP4!2:r. 4'1.3.S tro~>.-..,.,.&' Fo<--

p • de-t-e-rmit;ed-tly the Supreme Court of t-rr-e-um."t-ed-sta-t-e~-

low-i-ng-reasons: ·

1. ~ =~l;; Conviction Was Obtained Iri Violations Of the First, And Fourth

Amendment's, Fifth, Sixth, Ninth, and Four-teenth Amendment's Right Of Due Process,

And The Right To A Fair Trial Through The Ip.appropriate And Professional

Misconduct Of The Police, The Trial AndApplillate Counsel, The Prosecutor and The

Trial Judge In Violations Of· Texas Law, Federal Law, The American Bar Association,

Model RuJes Of Professionat:C(Jndi.i'ct; The Texas Disciplinary Rules Of Professional

Conduct, And The Texas Code,Of.Judicial

• . . . •

Conduct.· ·:. !' ~

"2... t1: Petitioner Was Denied Effecti~eAssi'stanceof Counsell'hrough Professional

'

Misconduct, And The Failure: Of Counsel To Conduct Sufficient Adversarial Testing Of

Witnesses. ·

.. ,.r •.. , . . ,.. '.·

tlM=ELDmss' · · · .-.,._

'i'his app-lisatioq.is timely beeaase i t is filed @rior--.to

;Nevemeer 10, 2014, aeeerf!iREJ te Jeffer1 B. l(]le, Clerk..

3. The length of sentence is fifteen (15) years (Enhanced).

4. The nature of the crime is Securing Document By Deception,

Ali"i?~A-NT'

5. Other than this motion, Applioant filed, as a result of

professional misconduct and a CONFLICT OF INTEREST by

Appellate attorney M. Ariel Payan and in the prevention

of a furtherance of a miscarriage of justice, a Federal

Writ of Habeas Corpus under 28 USC§ 2254(d)(1), which

was Dismissed Without Prejudice to pursue State remedy.

(See Exhibit 1 ) PJ4P l..ltr1S1Z. 'i:>l:>l'llt$'.2."<::> sy 'T1!E- -ni-1¢> ~oF~

~ WAI'IT" o-t: .:roost>•€ nor-..

6. Other than the above listed motion and application,

Aff..-<..:L..<>f'I'T" Appliea&t has .ne- other motions or applications currently

pending concerning the judgement in this case. '

7. The name and address of the trial judge who convicted

~aant is:

/>. A-NT

Preliminary Hearing: Karen Sage

299th District Court

500 w. 10th st.,

Austin, TX 78701

Arraignment: Karen Sage

Trial: Karen Sage

Sentencing: Karen Sage

Appeal: None

8. The name and address of each attorney who represented

Applioant are as follows:

J\qfls'l.I.A "' 7

Trial: Jackie Wood and Tamara Needles

Sentencing: Jackie Wood and Tamara Needles

Appeal: Arial Payan

AIII/L.C'JMI. rJ I

9. AJ3j3±il-<3aat has no future sentence to serve after completing

the sentence for the judgment being challenged.

10. This application is timely because it is filed prior to

-~~e v enaher 1 8, 2 81 4, according to Jeffer} D. K1le, Cler]c;..

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GROUNDS

I.

MPts~"'~"'

~p 1 icant'sConviction Was Obtained In Violations Of The

First, And Fourth Amendment's, Fifth, Sixth, Ninth, and

Fourteenth Amendment's Right Of Due Process, And The

Right To A Fair Trial Through The Inappropriate And

( 2)

Professional Misconduct Of The Police, The Trial And

Appellate Counsel, The Prosecutor, And The Trial Judge

In Violations Of Texas Law, Federal Law, The American

Bar Association, Model Rules Of Professional Conduct,

And The Texas Code Of Judicial Conduct.

II. ~~~~It Was Denied Effective Assistance Of Counsel

Through Professional Misconduct, And The Failure Of

Counsel To Conduct Sufficient Adversarial Testing Of

Witnesses.

A fPIBL.l-lwv r - C:riotJ>

Appl±eant respectfully requests lieniency as to form and~ 1 '

rMvl;:l <Ar!Ve.:6-, LA:>< ('ft 1'7~ A~-*-> t.-\1/Vl I "!CD

AVfii':'-J..II."'T'

"\r..D cited case law. Applxcanl has -RE>- access to Texas Court Rules or

......... s

Texas Case Law. All. case law in the F.C.I. Bastrop law library ~

Federal and Supreme Court law specific. 0\liER "ffi-A)ol- Pe~ .q1->D?J..I'I£.'i2, 1\.X:> ~E

""(<:Z::<...S :bog:_ P~Z<=>fe>IZ. 'Rz<%E,..)""n"'" .t\ U f'/2l>v• DEC!> f$'-1 Il-l.£ ~ "'Cpl)tlTr/1~ of'~~. f-k;i.,O.q'f u,. ,=t, .

Wherefore. ti:l.e WFit ef Ilaeeas eorp01s is a ;r=~ to a State

11\'> >~1"?(£1'/le;I.Jl'"At.- \34:Ve.l== <Z.tlll .

commitment where the commitment is a result of a miscarriage of

justice through violations of State and Federal laws, and the

Due Process laws of Article 1, Sections 8, 9, and 10 of the Texas

Constitution and the Fifth, Sixth, Ninth and Fourteenth Amendments

to the United States Constitution, and in the prevention of the

furtherance of a miscarriage of justice, ~:1~~ respectfully

prays for injunctive and declatory relief and moves the Honorable

Court to VACATE the conviction and REMAND for a constitutionally

.:>1? t~tSMI% 10<111 PQ.t;}vt>ia' o" Gzo.mOS~ ACfVItf-. '"'noc.ef~Ce_/

valid fair trial,~or any other relief deemed justified.

Executed on this 2~th day of oee~r, 201~.

~r;<.VA

Respectfully Submitted,

Charlie Malouff

66989 179 i'I78'S'IO

.p., 0. Bex 1 01 9 1-loi.. '"""-'/ ~ rlr<-"-'TY

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kPPliean~ M@moranetlm of Law and Facts is Incorporated and made

a part hereof by reference and by attachment hereto.

( 3)

:.

i

STATEMENT OF THE CASE '

Applicant was a subject of a Fraud By Deception investigation by the State of Texas,

between April 2011 and August 2013. The case was initiated by Travis County Sheriff's

Deputy, Toby Miller, a person of public trust; who made sure he was identified as a "Senior

Deputy Sheriff," and not as a "concerned citizen" and who was caught, by Applicant, falsifying

time sheets on a federally funded energy grant. Miller, as a Senior Deputy Sheriff, knows that

. - . .

making patently false or misleading statements, material omissions, and providing only personal

beliefs, and assumptions, to establish probable cause, and using his position of authority and

public trust to cover his own crimes and those others associated with him, violated criminal laws

and constitutional rights., Miller in this case, controlled most of the information Travis County

;.., .. - . - ., - ...., -.

District Attorney Investigator Lori'' Carter; ahd Travis County Assistant District Attorney, Holly

Taylor, relied upon, but failed to verify,

.-,.,

or confirm, even after being told to their faces, by the

Jonestown Chief of Police, while they were out "investigating" the case, and Holly Taylor is

seen in a reflective photo, that dearly identifies her by her dark hair (Carter is a bleached

blonde), wedding ring and jewelry (that she wore to court daily) taking the picture over by the

Waste Water Treatment Plant, that Miller was a suspect in an ongoing criminal investigation for

multiple felonies, including the sabotage of Wind Energy Systems in the very case they were

working on. (See Exhibit 2, photos and Exhibit 6, Charlie Malouffv. United States, A-13-CV-

~-, • ,_ ': • • ~ :' ':• ~ ' :• I •

572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate).

Applicant is the Patent (Pending) and Intellectual Property owner of the technology, and

was the grant writer for the City of Jonestown's Jonestown Wind Project, that was under the

.. ~ ·;. -- . . '" ,-

direct and ongoing control of the U.S. Department of Energy (DOE), with other significant

direction and oversight by the U.S. Fish and Wildlife Service, via the Texas Comptroller State

- ,-· -,,, ,· .. , .... '

Energy Conservation Office (SECO) up until the time of Applicant's arrest.

. '

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I

Prior to the implementation of the actual Grant, while conducting a DOE mandated NEPA

Environmental Impact Study that was downgraded to an Environmental Assessment, the U. S.

Fish and Wildlife Service (USFWS) mandated design changes on the proposed Wind Energy

Systems requiring the elimination of gny wires, used to secure the original design, to get

approved NEPA permitting. These mandated changes were approved by the USFWS in the

Environmental Assessment permitting process; and submitted to the DOE through SECO, where

the design was approved at each stage of review. ·(See Exhibit 2, drawings and photos of Wind

Energy Systems)

In 2010, while working on a Federally funded Distributed Renewable Energy Grant under

the American Recovery and Reinvestment Act (ARRA), specifically, the Jonestown Wind

,, ., .

Project, Travis County Sheriff's Deputy, Toby Miller, and Jonestown Police Officer, Michelle

Cook, both working on the Grant, in supposedly an off duty capacity, were caught falsifying

" '.

their time sheets to the Grant, their respective law enforcement agencies, and Grant time ·sheets

of other employees (See Exhibit 5, 299th District Court Records, D-1-DC-13-904021-EXH-

VOLUMES 1-27, COURT REPORTERS RECORD, D-1-DC-13-904201_395, pages 544-554

·-(--'' .:~:::. ·.,. ·, .... - ·~:

CLERKS RECORD, and Exhibit 6, .Charlie Malouffv. United States, A-13-CV-572LY (A-11-

·• . •·:.t.:Hjc,:: ''~\:.. ·:- .............. ··

CR-647(1)-LY) 2255 Motion to Vac,;ate, time sheet attachments). The conduct of both of these

persons of public trust, to cover their crimes, began a chain of events that has continually

- .. , ·.--.~

.' . . ""'•

compounded egregious behavior on multiple levels, and has resulted in a complete, in the words

of Travis County 299th District Judge, Karen Sage, " ... travesty ofjustice." (See Exhibit 5, 299th

. '" ··· . ' ::{· ;; ';' ·.. ' ·. . \

District Court Records, D-1-DC-13-904021-EXH-VOLUMES 1-27).

l .• , '

It was during this Environmental Assessment Miller, Michelle Cook, another police officer

who worked for the City of Jonestown,

.

and Eric Graham

.. were caught falsifying time sheets to

• '· ' ,. • • >~ •

the Grant. Miller and Cook also falsified their respective department time sheets. (See Exhibit 5,

·;··.,-•; ····1:. ·, }.4@-fQQ)i~·Qufu-$.·

-~-! -(. ,·.

"'"j'· .• :

299th District Court Records, D-1-DC-13-904021-EXH-VOLUMES 1-27, COURT

REPORTERS RECORD, D-1-DC-13-904201_395 CLERKS RECORD, and Exhibit 6, Charlie

Malouffv. United States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate, time

sheet attachments).

In an attempt to cover up his actions, Miller led an attempt to steal trade secrets of the

Intellectual Property of the Wind Energy Systems, and conduct a hostile take over the

subcontractor company that he had no shareholder, or director, interest in, and the Project, that

he was not a signer on, or responsible party to. (See Exhibit 2, CM Energies Public Venture

Funds Toby Miller Membership Subscription Agreement, Exhibit 5, 299th District Court

Records, D-1-DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS RECORD, D-1-

DC-13-904201_395 CLERKS RECORD, and Exhibit 6, Charlie Malouffv. United States, A-13-

' ~. ,. ' ....... .

CV-572LY (A -11-CR-647(1 )-LY) 2255 Motion to Vacate, Secret Meeting attachment) ..

..---- . -. .----. .

The Grantee, the City of Jonestown, SECO and DOE were all aware that with the

structural design changes, a prototype System had to be built and tested prior to the

implementation of installation of the awarded.. Systems. This

.

prototype was constructed, and

tested at the manufacturer's facility in Taylor, Texas, and an official "site check" was conducted

·-·-·-:' -·---, --.•· ' .

by SECO personnel. This site check included inspection of the subcontractor's manufacturing

. ' -- ·,

facility, and all of the materials ordered, including 8 pallets of the original blade material and

delivered and ready for Project implementation. (See Exhibit 2, SECO Site Check photos). All

-·.· .. - ... ........

-

' -

of this was recorded and on file at SECO and DOE (See Exhibit 5, 299th District Court Records,

D-1-DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS RECORD, D-1-DC-13-

.·' --·

904201_395, CLERKS RECORD).

Shortly thereafter, Miller, Cook, Graham and others involved in the hostile take over were

terminated and management of the Project transitioned with the approval of the Grantee, the City

' Mlilm9ra;SE~Ym 4r ··

f.,

)

of Jonestown. The same System that was tested in Taylor was taken down, moved over to, and

installed at the Jonestown Waste Water Treatment Plant, in compliance with the Grant, and the

local Utility. All of this was reported timely to SECO and DOE. All of this was done within the

timelines of the first Deliverables mandated in the Grant. (See Exhibit 5, 299th District Court

Records, D-1-DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS RECORD, D-1-

DC-13-904201_395 CLERKS RECORD, Exhibit 6, Charlie Malouffv. United States, A-13-CV-

572LY (A-11-CR-647 (1 )-L Y) 2255 Motion to Vacate, Secret Meeting attachment, and Exhibit 2,

photos)

It was during this process one of the CM Energies employees, Aaron Knapek, the electrical

engineer on the Project, short circuited the inverters on the Wind Energy System and caused

approximately $58,000 in damages and repairs. (See Exhibit 2, photos and Justin Shepherd

'.

accounting documents, Exhibit 1, Dan Smith email, and Exhibit 3, Aaron Knapek email and

' .. ,.

Diversified Technologies invoices).

From the beginning this extraordinary, complex, and complicated case became irreparably

' .. ·~ .., . / .

plagued with incompetent and criminal employee conduct, and criminal conduct and cumulative

' ( .

errors from persons of public trust, which included the police, officers of the court, and the

. (' '

judiciary, that violated state law, Federal law, the American Bar Association Model Rules of

Professional Conduct, the Texas Disciplinary Rules of Professional Conduct, the State

. " . - :. •.' --~ .·.,

Commission on Judicial Conduct, and the State of Texas and United States Constitutions. (See

... - '.'

Exhibit

. 5, 299th District Court Records, D-1-DC-13-904021-EXH-VOLUMES

.

1-27, COURT

:--:: ., . •., -~

REPORTERS RECORD, and D-1-DC-13-904201_395 CLERKS RECORD, Exhibit 6, Charlie

Malouffv. United States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate, and

Exhibit 2, emails and photos).

"·-···

,7

Between April2012 and October 2013, Travis County 299'h District Court Judge, Karen

Sage, heard numerous testimonies, and arguments of the prosecutor knowingly and intentionally

hiding and destroying exculpatory evidence and a crime scene and examined numerous other

pieces of material exculpatory evidence. Sage also heard numerous arguments for Frank's

hearings, of ongoing Brady violations, mistrial, dismissal, prosecutorial misconduct, and

selective and vindictive prosecution. (See Exhibit 5, 299th District Court Records, D-1-DC-13-

904021-EXH-VOLUMES 1-27, COURT REPORTERS RECORD, and D-1-DC-13-904201_395

CLERKS RECORD).

On July 15, 2011, Travis County Assistant District Attorney, and prosecutor of the case,

Holly Taylor, left her role as a prosecutor, and thereafter engaged in the role of "investigator"

.~- -- ... -.: .

gathering evidence, interviewing witnesses, getting facts and information, giving legal advice,

-' ~. ' ' .. _,'

and clearly functioning

. as an investigator. (See

.

Exhibit6, Charlie Malouffv. United States, A-

"""v --.·y .. :··:,:'':' ··---- ' .. -lf: ·-: ·

13-CV-572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate, and Supplemental" Report Field

. '

., (,·

., _ _. ;·

Observations-Chief Stetar attachment and Exhibit 2, photo of Taylor taking photos). At that

time, Travis County District Attorney Investigator, Lori Carter, and Taylor clearly lacked

.,

probable cause, and Taylor was n~;-~n a position t~ _cl~ to be an advocate. Holly Taylor,

functioning as an "investigator" from that point on, should not have. been able to hide behind a

cloak of immunity as advocate, and should have been subject to cross-examination on what she

learned and did thereafter, including giving advice to Carter on how to mislead the magistrate,

··:- .. ';?

and navigate her investigation after committing multiple Constitutional violations.

'".,, ...

Miller and Cook, peace officers and persons of public trust, were already involved as

-- ..

suspects in an independent criminal investigation involving state and Federal law, obstructed

., _,~-- -; ..

justice by their conduct in using Miller's friends, Lori Carter, and Greg Cox, to direct events

.-.( 1

'.- -- ! '

away from that investigation, and through the malicious deprivation of constitutional rights,

•,.

portray Applicant as a criminally minded person to intentionally cover up those crimes to pnrsue

their own agendas. (See Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY (A-11-

CR-647(1)-LY) 2255 Motion to Vacate, Toby Miller for Constable)

Complicating this already outrageous injustice, Applicant's Trial Counsel was so confident

in her "my best friencf' relationship with the trial judge, and "trust me" "Karen's got my back"

in her quest to not conduct further adversarial testing of prosecution witnesses, or put on defense

witnesses, and instead "rest," along with co-counsel's demonstrated confidence in that

relationship, they failed in their roles as advoca.tes to the defense. (See Exhibit 1, Judicial

Misconduct and Bar Grievances)

The court is supposed to be the instrument to advance the ends of justice. When the trial

judge, for personal pecuniary interest, turns a blind eye, the trial, and the fundamental

constitutional rights of due process become unduly prejudiced.

r:: ...

During the trial, and after the verdict, Applicant's trial and appellate counsel made

,·.

'·

statements that demonstrated personal knowledge of inappropriate, unethical, and criminal

c . . . ' : ..... -;' . "

~-'- .~

conduct, in violation of the American Bar Association Model Rules of Professional Conduct;

. ,,. ······1

Texas Code of Judicial Conduct, the Texas Disciplinary Ru1es Of Professional Conduct, and the

Texas Penal Code, by the trial judge, Karen Sage, in her decisions to deny Frank's hearings,

' .. ·-·.

dismissal, mistrial, selective and vindictive prosecution, and other motions for pecuniary interest.

As the inappropriate conduct of counsel and the trial judge, which could not have been

discovered previously through the exercise of due diligence, was exposed by the statements by,

trial counsel, Jackie Wood, and Tamara Needles and further compounded by statements from

\ ...... ., '

appointed appellate counsel, Aria! Payan (See Exhibit 1, Judicial Misconduct and Bar

Grievances).

V'.

The totality of circumstances of police misconduct, prosecutorial misconduct, professional

misconduct and lack of responsibility of counsel, and self- serving, pecuniary interests of the trial

judge for political preservation, supported by over 4000 pages of Court Records in two courts, in

addition to formal complaints to the Commission on Judicial Conduct, the Texas Attorney

General, the Texas State Bar Association, the Department of Justice Office Of Professional

Responsibility, front page news paper articles from the Austin American Statesman, and the re-

election website of the trial judge, Karen Sage (see Exhibit 1, Judicial Misconduct complaints

and news clippings), the integrity and the fundamental fairness of the state proceedings, and

· constitutional rights of the Applicant, has come under question and suspicion.

. . ' ' "! ..

PROCEDURAL NEXUS

The AEDPA comprehensively overhauled habeas corpus legislation, including 28 USC

.,-. .

2254, subsections 2254 (d)(1). It is presumed a State court's findings are correct and Federal

court's give deference to the State court's decision, unless "it was contrary to or involved an

.,..., .. -.

unreasonable application of clearly established Federal law as determined by the Supreme Court

I :, ·' C ' •• "' ., .', .

of the United States. Bell v Cone, 535 U.S. 685, 693, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002),

.-, ·:· .. . .. . -:- . ,\ ~ '•"\

Federal courts have the right to issue writs of habeas corpus based on state commitments,

···,

even where state remedies have not been exhausted. Minnesota v Barber, 136 U.S. 313, 34 L.

.. ·, ~-- ·' .

Ed. 455, 10 S. Ct. 862, 3 Inters. Com. Rep. 185 (1886); Minnesota v Brundage, 180 U.S. 499, 45

L. Ed. 639, 21 S. Ct. 455 (1886); Ex-parte Royall, 117 U.S. 241, 29 L. Ed. 868, 6 S. Ct. 734; Re

Wood, 140 U.S. 278, 35 L. Ed. 505, 11 S. Ct. 738 (1891); Cook v Hart, 146 U.S. 183, 36 L. Ed.

934, 13 S. Ct. 40; Markuson v Boucher, 175 U.S. 184, 44 L. Ed. 124, 20 S. Ct. 76; Davis v

Burke, 179,27 S. Ct. 459; Yick Wo v Hopkins, 118 U.S. 356,30 L. Ed. 220, 6 S. Ct. 1064 (1886)

(I:>

.. ,::; ·;_

-·_

. ....., ~-

('•

A State court decision will be contrary to established precedent if the State court confronts

a set of facts that are materially indistinguishable from a decision of the United States Supreme

Court and nevertheless arrives at a result different from the Supreme Court precedent. Wooten v

Thaler, 598, F. 3d. 215, 218 (5th Cir.), cert. denied, 131 S. Ct. 294, 178, LEd. 2d 193 (2010);

United States v Olano, 507 U.S. 725, 736, 123 L. Ed. 2d 508, 113 S. Ct. 1770 (1993) ("Plain

errors or defects affecting substantial rights may be noticed although they were not brought to

the attention of the court.").

A state court decision involves an unreasonable application of Supreme Court precedent if

the State court identifies the correct legal rule from Supreme Court cases, but unreasonably

applies it to the facts of a particular State case. Williams v Taylor, 529 U.S. 363, 407, 120 S. Ct.

• ' ' ' .'' "\ c ' - ~ ' '

,..

1495, 1466 L. Ed. 2d 389 (2000); Bell, 535 U.S. at 694; Puckett v Epps, 641 F. 3d. 657, 663 (5th

Cir. 2011). See also Price v Vincent, 538 U.S. 634, 641, 123 S. Ct. 1848, 155 L. Ed. 2d 877

., .- .

(2003); Brecht v Abrahamson, 507 U.S. 619, 638, n. 9, 113 S. Ct. 1710, 123 L. Ed. 2d 353

(1993); Tumey v Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749, 5 Ohio Law Abs. 159, 5 Ohio

.. ..~ . .

Law Abs. 1"85, 25 Ohio L. Rep. 236; Neder v United States, 527 U.S. 1,8, 119 S. Ct. 1827, 144

L. Ed. 2d 35 (1999); Edwards v Balisok, 520 U.S. 641, 647, 117 S. Ct. 1584, 137 L. Ed. 2d 906

(1997); Johnson v United States, 520 U.S. 461,469, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997);

·-'-• •..-.·

Rose v Clark, 478 U.S. 570, 577-78, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986).

A court may dismiss an indictment if it perceives Constitutional error. It may draw on its

•· •·'-.<· ,., ' " . r , .• :. .

.• ,,..i:.· _. .

supervisory powers to dismiss an indictment. United. .States

.... - . . . v McKenzie,

.

678 F. 2d 629, 631 (5th

Cir. 1982; United States v Holloway, 74 F. 3d 249, 253 (11th Cir. 1992); United States v Mills,

. .. .

' ' . ' .;

995 F. 2d 480, 486 (4th Cii. 1993); United States v Isgro, 974 F. 2d 1091, 1094 (9th Cir. 1992).

5' \! ' • I~ . • _' •. :• . ..,

The subcontractor to the Grant, CM Alternative Energies, Inc., was, at all times, in direct

·,. .• .

contact with the Grantee, SECO and through SECO, DOE, as DOE gave final approval or denial

. ~1etH:BfaHEllHe·9-'

It

on ~lstages of the process. All changes in the Environmental Assessment and structural design

were performed pursuant to federal officers direct orders or to comprehensive and detailed

regulations, such as, NEPA and the Code of Federal Regulations (CFR). Jefferson County v

Acker, 527 U.S. 423, 431, 119 S. Ct. 2069, 144 L. Ed. 2d 408 (1999); Durham v Lockheed

Martin Corp., 445 F. 3d 1247, 1251 (9th Cir. 2006); Watson vPhillip Morris Cos., 420 F. 3d 852,

855-56 (8'h Cir. 2005). In addition, requirements of the American Reinvestment and Recovery

Act (ARRA) required Buy American and the materials had to be "colnmercially available." (See

Exhibit 2, definitions of connercially available) According to the Fifth Circuit, the fact that a

product supplied to the government comprises connercially available component parts says

nothing about whether the finished product resulted from the exercise of government discretion

as to its design. "All products can eventually be broken down in to various off-the-shelf

... ' :· -~ ' : -~ .;--:_ ' '

components." Miller v Diamond Shamrock Co., 275 F. 3d 414, 420 (5'h Cir. 2001). Here the

. ' .-., .. ,.

government mandated Buy American

- !'.....

and structural design changes, and approved the process

. .,_ __ ,.-

~--

. -_ .. --,l. ~-.·.

and end product at each stage of the Project. (See Exhibit 2, Code of Federal Regulations on

.- . .' .·· . ~ -. . .

Sole Source procurement and connercially available).

. .. \···

The First, Fourth, Fifth, Sixth and Fourteenth Amendments to the United States

Constitution provide for the rights of all persons to enjoy freedom of speech, movement,

-, •,- l ~-

association and assembly, petition their government for redress of their grievances of deprivation

...., ._, .. ' .

of rights under the color of authority, to be secure in their persons, to be free from unreasonable

---~-- ·-•·,rc- :·

searches and seizures, to enjoy privacy and be free from deprivation's of life liberty, and

' ·~·' ····r.\t~~:

property without due process of law. Rosenberger v Rector & Visitor's of University of .

<. .. ~--- -- .., ;·_

Virginia, 515 U.S. 819, 833, 115 S. Ct. 2510, 132L. Ed. id 700 (1995); Pope v Illinois, 481 U.S.

497, 509, 956 L. Ed. 2d 439, 107 S. Ct. 1918 (1987); E.g. Ex Parte Tucci, 859 S.W. 2d 1 (Tex.

.. .. .

1993); Davenport v Garcia, 834 S. W. 2d 4 (Tex. 1992); Chanel4, KGBT v Briggs, 759 S. W. 2d

' Mffi'fierii'ftilttl'fl: 1Q · .

tz.

939 (Tex. 1988); Connick v Meyers, 461 U.S. 138, 146, 103 S. Ct. 1684. 1689, 75 L. Ed. 2d 708

(1983); Rankin, 483 U.S. at 384, 107 S. Ct. at 2896; Morgan v Ford, 6 F. 3d 750, 754 (nth Cir.

1993), cert. denied, _U.S._ 114 S. Ct. 2708, 129 L. Ed. 2d 83() (1994); Bryson v City of

Waycross, 888 F. 2d 1145, 1149 (lith Cir. 1988), cert denied, 489 U.S. 1013, 109 S. Ct. 1124,

103 L. Ed. 2d 187 (1989); Spano v New York, 360 U.S. 315, 320-321, 79 S. Ct. 1202, 3 L. Ed. 2d

1265 (1959); United States v Gainey, 380 U.S. 63, 68, 85 S. Ct. 754, 758, 13 L. Ed. 2d 658

(1965); Berger v United States, 295 U.S. 78, 55 S. Ct. 629, 79 L. Ed. 1314 (1935); United States

v Tibbetts, 646 F. 2d 193, 195 (5th Cir. 1981); United States vJohnson, 577 F. 2d 1304, 1308 (5th

Cir. 1978) quoting Unites States v Berrios, 501 F. 2d 1207, 1211 (2"d Cir. 1974); American Bar

Association Model Rules Of Professional Conduct; Texas Disciplinary Rules Of Professional

. -·

~- ~

.. '! __ : ~-

-• '

.Conduct.

Government agents, including the police and prosecutor's, maliciously violate an

. ,.--' ,. •.. •'• - ~-

individual's Constitutional rights when they knowingly and recklessly act to deprive a person of

~ -·:,. ·-,-- ··_- ·;._"'("-·.'

those rights, and when they misuse their official powers, and cause grievous injuries. Reckless

disregard encompasses providing false, and or materially misleading information for use jn an

. [""·

'

affidavit in support of a search warrant, and includes omitting facts that are clearly critical to

- .. ' . : - ---· -- .

finding probable cause. Frank's liability attaches when the police and prosecutors manipulate

1 • - ••

material representations, omissions and inferences thatthe issuing judge will draw from. Non-

affiants are also at fault for the material omissions and false and. misleading information

.., . . . ·c

appearing in a warrant application. "Bad faith" "is not simply bad judgment or negligence, but

rather it implies the conscious doing of a wrong because of a dishonest purpose or moral

.

.f.

. _.,. _;·'

obliquity; it contemplates a state of mind affirmatively operating with furtive design or ill will."

Black's Law Dictionary 139 (6'hed. 1990). Franks v Delaware, 438 U.S. 154, 171, 98 S. Ct.

2674, 2684, 57 L. Ed. 2d 667 {1978) (defining bad faith. in the law enforcement context to

Metn&aiidam II'

. _,_.

include "reckless disregard for the truth."); United States v Reilly, 76 F. 3d 1271 (2"d Cir. 1995);

United States v DeQuasie, 244 F. Supp. 2d 658 (41h Cir. 2009); United States v Hodson, 543 F.

3d 286 (61h Cir. June 2008); United States v Senak, 477 F. 2d 304 (1973, Ca 7 Ind), 477 F. 2d

304, cert denied, 414 U.S. 856, 38 L. Ed. 2d 105, 94 S. Ct. 157 (1973); United States v Classic,

313 U.S. 299, 615 S. Ct. 1031, 85 L. Ed. 1368, reh. den., (1941), 314 U.S. 707, 62, S. Ct. 51, 86

L. Ed. 565 (1941); Screws v United States, 325 U.S. 91, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945);

United States v Schafer, 384 F. Supp. 496 (1974, DC Ohio); United States v Flemming, 399 F.

Supp. 77, (1975, ED Mo), rev'd on other grounds, (1975, CAS Mo), 526 F. 2d 191, cert. dismd,

423 U.S. 1082, 47 L. Ed. 2d 93, 96 S. Ct. 872 (1976).

It is the responsibility of the trial judge to oversee and maintain the integrity of the trial and

0 ,

r;_r ' · •. ·' ,'I

ensure a defendant receives the~ light to a fair trial, However, the United States Supreme Court

has consistently found a breakdown in the adversarial process, due process, and right to a fair

. -... ,. .. ·-·-. -' .. ,'

trial when the trial judge has a direct financial interest in the outcome of the proceedings. Three

~. ,. -' ,.. _,._ 1 ,-

- ' .. . . . ' '~

Officers of the Court who made statements regarding the integrity of the trial judge, but failed to

1 ' ~ •, ':'

approach the court is uncontroverted evidence supporting this materiality of error. (See Exhibit

',

1, Judicial Misconduct, email attachment from Ariel Payan dated 3/21/14, and Bar Grievances)

. .- .... -·~ --~ · .. ; i-. ·:.

, '

Johnson v United States, 520 U.S. 470, 137 L. Ed. 2d 718, 117 S. Ct. 1544 (1997) (" .. and the

cumulative errors seriously effected the fairness and integrity of the judicial proceedings." Id., at

~

469, 137 L. Ed. 2d 718, 117 S. Ct. 1544. The Court has found that anunbiased decision maker is

not an option in any fair trial, and creates such an error that taints any conviction with

constitution infirmity and requires automatic reversal. Young v United Sates, 315 U.S. 257,

·_;.

258, 259, 86 L. Ed. 832, 834, 835, 62 S. Ct. 510 ("the proper administration of criminal law

. ., .. ,. . ' .

cannot be left merely to the stipulation of the parties." 315 U.S. ;tt 259; Chapman v California,

·,·,--.·j·.- ' n ··

: ··•· ..•.

r,~

386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) (The Supreme Court said whether it appears

·~ · · Meffiei'lif!i;l\i-iH 12'·: ' · · ·

. \ . ·fy· ..

l!l-

. -. i : ( ~

beyond a reasonable doubt that the error complained of did not contribute to the verdict

obtained." Id., at 24, 17 L. Ed. 2d 705, 87 S. Ct. 824; Neder v United States, 527 U.S. 1, 144 L.

Ed. 2d 35, 119 S. Ct. 1827 (1999) ("critical issues of fact where there is the importance of

protecting the right to have a jnry resolve critical issues of fact when there is a special danger

that elected judges may listen to the voices of voters rather than the witnesses."); United States v

Evans, 504 U.S. 255, 274, 112 S. Ct. 1881, 119 L. Ed. 2d 57 (1992); Schlup v Delo, 513 U.S.

298, 130 L. Ed. 2d 808, 115 S. Ct. 851( 1995); Sawyer v Whitley, 505 U.S. 333, 120 L. Ed. 2d

269, 112 S. Ct. 2514 (1992); Tumey v Ohio, 273 U.S. 510, 532, 71 L. Ed. 749, 47 S. Ct. 437, 50

ALR 1243 (1927); Kyles v Whitley, 514 U.S. 419, 436-37, 115 S. Ct. 1555, 131 L. Ed. 2d 490

(1995); Harrington, 131 S. Ct. at 786 (quotingJackson v. Virginia,

.

443 U.S. 307, 332, n. 5, 99 S.

Ct. 2781, 61 L. Ed. 2d 560 (1979); United States v Narisco, 446 F. Supp. 252 (ED Mich. 1977);

- ....

.- ' ''( .

United States v Gainey, 380 U.S. 63, 68, 85 S. Ct. 754, 758, 13 L. Ed. 2d 658 (1965); Holloway v

.. '

Arkansas, 435 U.S. 475, 484, 98 S. Ct. 1173, 1178, 55 L. Ed. 2d 426 (1978); Glasser v United

..

States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1992); Cuyler v Sullivan, 446 U.S. 335, 346,

100 S. Ct. 1708, 1717, 64 L. Ed. 2d 333 (1980); McCormick v United States, 500 U.S. 257, 273,

' .- •. ,_' ---.' ~( c: ·; •

1115 S. Ct. 1807, 114 L. Ed. 2d 307 (1991); United States v Sun-Diamond Growers of Cal, 526

.-·--- .;:;.::.

U.S. 398, 404-405, 119 S. Ct. 1402, 143 L. Ed. 2d 576 (1999); American Bar Association Model

Rules Of Professional Conduct; Texas Disciplinary Rules Of Professional Conduct; Texas

-,. ..., -

Standards On Judicial Conduct.

. ,.,

The United States Supreme Court has long held that the suppression of evidence favorable

to an accused violates due process of law,

,,__ --

regardless of whether the prosecution suppresses

evidence in good or bad faith. According to the Supreme Court, society wins no only when the

., ·: ,-

guilty are convicted, but when criminal trials are fair. And, when the State withholds from a

1 ·· \ · ··• . r ·

criminal defendant evidenc.e that is material to his guilt or punishment, it violates his right to due

· Meiffier!li!aflm B ·

n·

iS'

process of law in violation of the Fourteenth Amendment. That evidence must be favorable to

the accused, because it is exculpatory or impeachable; it must have been suppressed by the State;

'

and prejudice must have ensued. The government denies a defendant the opportunity to present

a meaningful defense when it, directly or through its prosecution team, under its control,

intentionally disposes of potentially exculpable evidence. Brady v. Maryland, 373 U.S. 83, S.

Ct. 1194, 10 L. Ed. 2d 215 (1963). Cone, 129 S. Ct., at 1783; United States v Jernigan, 492 F. 3d

1050, 1053-54 (9th Cir. 2007); Kyles v Whitley, 514 U.S. 419, 432-33, 115 S. Ct. 1555, 1565,

131 L. Ed. 2d 490 (1995); UnitedStates v. Bagley, 473 U.S. 667, 674, 105 S. Ct. 3375, 3379, 87

L. Ed. 2d 481 (1985). Valdovinos v McGrath, 598 F. 3d 568 (9'h Cir. 2020); United States v

George Bohl, 25 F. 3d 904 (](fhCir. 1994). The denial by a state of any judicial process by

/ I.

which a conviction obtained through the admitted or proved use by the state, knowingly or

•"-'." (' .. ., .·,.,. ;·

unknowingly, of perjured testimony, and the suppression of impeaching evidence is a deprivation

·of liberty without due process of law in violation of the Fourteenth Amendment Moore v

Dempsey, 261 U.S. 86, 67 L. Ed. 543, 43 S. Ct. 265; Frank v Mangum, 237 U.S. 309, 59 L. Ed.

' ..

969, 35 S. Ct. 582 (1915); People v Mooney, 175 Cal. 666, 166 P. 999; People v Mooney, 176

'• - •.. '

..

''<1''

'.

CaJ. 105, 167 P. 696, 177 Cal. 642, 171 P. 690.

• • ~ . ·- •. -~ : !

The Travis County District Attorney Public Integrity Unit cannot, m good standing,

r. -.•. i;

consider itself a "Public Integrity" unit when it violates due process and fails to obey its own

.. ",.- .. , -', .. •• ,·, r, -·

. -

.

,] ;: , ' !

.,

regulations. When the prosecutors leave their role as advocate and function as "investigators,"

~ -- ~--. ( . ··.

defined as, persons who go out and get information, gather evidence, and interview witnesses,

...,._ .. ,

give legal advice in the submission of patently false and misleading statements to a magistrate,

are less than candor to the tribunal, and knowingly, and intentionally participate, and condone

... ' "

transgressions against Court Rules, executive rules, state and federal laws, and connands of the

Texas and United States Constitution's, and who fail to recuse themselves, but use their color of

MemsFa£~·1~.

1(,

. "

authority to isolate them from the adversarial testing process, the cumulative impact, in the

totality of circumstances, create an extreme malfunction in the State criminaljustice system and

manifest the proceeding into a fundamental miscarriage of justice. Gideon v Wainwright, 372

U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963); Brecht v Abrahamson, 507 U.S. 619, 629-30,

113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993); Rosev Clark, 478 U.S. 570, 577-78, 106 S. Ct. 3101,

92 L. Ed. 2d 460 (1986); Johnson v Zerbst, 304 U.S. 458, 468 (1938); Duncan v Louisiana, 391

U.S. 145, 156, 20 L. Ed. 29, 491, 88 S. Ct. 1444 (1968) ("defense against arbitrary law

enforcement is due process of Fourteenth Amendment protection of Sixth Amendment rights to

confrontation."); Walter V Schafer, Federalism and State Criminal Procedure, 70 Harv. L. Rev.

1, 8 (1956); Galvan v Press, 347 U.S. 522, 530, 74 S. Ct. 737, 98 L. Ed. 911 (1954); Spano v

,•

New York, 360 U.S. 315, 320-321, 79 S. Ct. 1202, 3 L. Ed. 2d 1265 (1959); Berger v United

'r. -~

- ' ;

: ..

States, 295 U.S. 78, 55 S. Ct. 629, 79 L. Ed. 1314 (1935); Buckley v Fitzsimmons, 509 U.S. 259,

. .... ,,

' "('

'

.,, ' /·

273, 113 S. Ct. 2606, 125 L. Ed. 2d 209 (1993) ("The actions of a prosecutor are not absolutely

. ' -.' ~

immune -merely they are performed by a prosecutor." "A prosecutor neither is, nor should

~ . ~- . '. .- ..

consider himself to be an advocate before he has probable cause to have anyone arrested." 509

·, .·-

U.S. at 274 ... "lack of probable cause indicates a prosecutor is operating as- an investigator

' ' ,.

instead of an advocate"); Burns, 500 U.S. at 496, Ill S. Ct. at 1944-45 (The Supreme Court

,-,-.· ,. '_.,.

definitely stated that a prosecutor is not entitled to absolute immunity for providing legal advice

' .. , ;· '

to police officers. Burns, 500 U.S. at 492-96); Broam v Bogan, 320 F. 3d 1023, 1028 (9th Cir.

' ·- ·:··-, ."•, ---~--:

2003) ("no absolute immunity where prosec'(ltor is functioning as a police officer."); Rehberg v

:~. ·~ ---- .... . ., r~· ... ,

. Paulk, 598 F. 3d 1268 (5th Cir. 2010) ( Prosecutor loses cloak of immunity stepping out and

... ." ,._.. . ., __

performing investigative functions."); Cousins, 5(j8 F. 3d at 1068, citing Buckley, 509 U.S. at

T·- ...

. 273 ("investigative acts" such as "evidence gathering" and "witness interviewing" ... normally

.. :···' .· ,.---

performed by a detective or police officer are not entitled to immunity.); Donahoe v Apaio, 869

. i . . ' ',J>.'[~6fflii~lti: 15 ".

il

F. Supp. 2d 1020 (9th Cjr. 2012) citing Burns, 500 U.S. 478,486, 11l S. Ct. 1934, 114 L. Ed. 2d

547 (1991) ("The nature of the function performed"); Forrester v White, 484 U.S. 219, 229, 108

S. Ct. 538, 98 L. Ed. 2d 555 (1998) ("holding the natu~e of the function performed, not the

identity of the actor who performed it."); Kalina vFletcher, 522 U.S. 118, 127, 18 S. Ct. 502,

139 L. Ed. 2d 471 (1997); Van de Kamp v Goldstein, 555 U.S. 335, 342, 129 S. Ct. 855, 172 L.

Ed. 2d 706 (2009); Botello v Gammick, 413 F. 3d 971, 976 (9th Cir. 2005) ("immunity does not

attach to all actions taken by a prosecutor merely by virtue of title ... not to actions better

described as administrative or investigative."); United States v Bowen, U.S. Dist. LEXIS 134434

_(2013); Hadley v Caspari, 1994 U.S. Dist. LEXIS 586, at *3 n. 1 (W.D. Mo. Jan. 19, 1994),

rev;d on other grounds, 36 F. 3d 51 (8th Cir. 1994) (quoting Vasquez v Hillery, 474 U.S. 254,

._, .. ··,·-

263 (1986)) An investigator is subject to adversarial cross-examination. When a prosecutor acts

as both the investigator and prosecutor, the criminal proceeding against a defendant is

. "\!\':'

prejudiced.

<J ' (

CLAIM

i. . '' ,".I

I. Applicant's Conviction Was Obtained In Violations of the First, Fifth, Sixth,

and Fourteenth Amendm:tmt's Riglit Of Due Process, And The Right To A

Fair Trial Through The Inappropriate And ,Professional Misconduct Of The

Police, The Trial And Appellate·Counsel; The Prosecutor and The Trial Judge

In Violations Of Texas Law, Federal Law, The American Bar Association,

Model Rules Of ·Professional Condul:t( The Texas Disciplinary Rules Of

Professional Conduct, And The Texas Code Of Judicial Conduct.

. . -· .. "

'\ .', . . .

STANDARDS OF REVIEW

.. -. ·.. .. -,' : ~

POLICE MISCONDUCT

Under the "color of law" an officer abuses his official power to access police station,

police car, and police radio to further his cover up execution of crimes with the intent to deprive

,' .- ....··

· defined rights. A person acting under the "color of law" who invades personal liberty of another

-·M!imeFaHEiHl'fna· ·

~~

: ,•

•knowing that invasion is in violation of state law has demonstrated bad faith and reckless

. disregard for constitutional rights. United States v. Causey, (1999 CAS La) 185 F. 3d 407, cert

den (2000) 530 U.S. 1277, 120 S. Ct. 2747, 147 L. Ed. 2d 1010; Imbler v Pachtman, 424 U.S.

409, 47 L. Ed. 128, 96 S. Ct. 984(1976); United States v Dise (1985, CA 3 Pa) 763 F. 2d 586,

cert den (1985) 474 U.S. 982, 88 L. Ed. 2d 341, 106 S. Ct. 388; United States v Johnstone (1997,

CA3 NJ) 107 F. 3d 200; United States v George Bohl, 25 F. 3d 904 (lO'h Cir. 1994); United

States v Martin, 615 F. 2d 318, 329 (5th Cir. 1980) ("Recklessness can in some circumstances be

inferred directly from the omission itself'); United States v Pope, 452 F. 3d 338 (5th Cir. 2006)

("A reasonably well trained officer in the circumstances at issue would have known the search

was illegal despite the magistrates authorization."); Kingsland v City of Miami, 382 F. 3d. 1220,

.- -·- . ,. . . ' ..... .

. •. 1232 (11th Cir. 2004) ("Falsifying facts to establish probable cause is patently

• - f" • :

unconstitutional."); Whiting v Taylor, 85 F. 3d 581, 585 n. 5 (11 1h Cir. 1996); Fikes v City of

,-. - ' .. . ~ . .

' . ·, -- .. --

. Daphine, 79 F. 3d 1079 (11th Cir. 1996). Malicious conduct is an intentional pattern to deprive .

. Misuse of official powers acting in outrageous and systematic pattern of harassment, oppression,

.,_,. '' ..

intimidation and bad faith, including cover up and retaliation are all violations of established

. ~- ·- --· -,

Federal law and violations of the Constitution. Connick v Meyers, 461 U.S. 138, 146, 103 S. Ct.

. ..... -- '. ..-.·· ~ , ..

. 1684, 1689, 75 L. Ed. 2d 708 (1983); Rankin, 483 U.S., at 384, 107 S. Ct. at 2896; Morgan v

'!,

.; . r• ''

•Ford, 6 F. 3d 750, 754 (11th Cir. 1993), cert deni~d U.S. 114 S. Ct. 2708, 129 L. Ed. 2d 836

-~, .. ·..

•

· (1994); Bryson v City of Waycross, 888 F. 2d 1562, 1565 (11 1h Cir. 1989); Morales v Stierheim,

848 F. 2d 1145, 1149 (11 1h Cir. 1988), cert denied, 489 U.S. 1013, 109 S. Ct. 1124, 103 L. Ed. 2d

187 (1989).

The relinquishment of a right to remain silent must have been voluntary in the sense that it

.. :. . ,., . !':

· was the product of a free and deliberate choice rather than intimidation, coercion or deception.

·The sole concern of the Fifth Amendment on which Miranda is based is governmental coercion.

· · •Memei'afiEliiffi: 17 ''I

l'f

Coercive police activity is not voluntary within the meaning of the Due Process Clause of the

·Fourteenth Amendment. Miranda v Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694

(1966); Colorado v Connelly, 497 U.S. 157, 169, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986); United

States v Mulligan, 178 F. 3d 334, 341 (5th Cir. 1999); Lego v Twomey, 404 U.S. 477,483-484,92

S. Ct. 619, 30 L. Ed. 2d 618 (1972).

Under the fruits of the poisonous tree doctrine, "all evidence derived from the exploitation

of an illegal search or seizure must be suppressed." United States v Rivas, 157 F. 3d 364, 368 (5 1h

. Cir. 1998). "The deep-rooted feeling that the police must obey the law while enforcing the law;

that in the end life and liberty can be as much endangered from illegal methods used to convict

·those thought to be criminals as from the actual criminals themselves." Spano v New York, 360

U.S. 315, 320-21, 79 S. Ct. 1202, 3 L. Ed. 2d 1265 (1959).

FREE SPEECH

· Official reprisal for protected speech "offends the Constitution because it threatens to inhibit

.' ' . ..

exercise of the protected right." Crawford-El v Britton, 523 U.S. 574, 588, n. 10, 118 S. Ct.

1584, 140 L. Ed. 2d 759 (1998), and the law is settled that as a general matter the First

Amendment prohibits government officials from subjecting an individual to retaliatory actions,

. ···.·.

including criminal prosecutions, for speaking out, id., at 592, 118 S. Ct. 1584, 140 L. Ed. 2d 759;

Perry v Sindermann, 408 U.S. 593, 597, 92S. Ct. 2694, 33 L. Ed. 2d 570 (1972).

'·

INVALID SEARCH WARRANT

' ..

. '' .,

'.

Evidence illegally and unconstitutionally obtain by use of an invalid search warrant must be

suppressed. Mapp v Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684, 84ALR 2d 933, reh

den 368 U.S. 871, 7 L. Ed. 2d 72, 82 S. Ct. 23 (1961); Escobedo v Illinois, 378 U.S. 478, 12 L.

. . -· .

. Ed. 2d 977, 84 S. Ct. 1758 (1964); Ker v California, 374 U.S. 23, 10 L. Ed. 2d 726, 83 s'. Ct.

.·- ·.

1623 (1963); Fahey v Connecticut, 375 U.S. 85, 11 L. Ed. 2d 142, 84 S. Ct. 229 (1963); Beck v

. · Memeffiflffiim lg

-z.D

Ohio, 379 U.S. 89, 13 L. Ed. 2d 142, 84 S. Ct. 223 (1964); Duncan v Louisiana, 391 U.S. 145,

20 L. Ed. 2d 491, 88 S. Ct. 1444, reb den. 392 U.S. 947, 20 L. Ed. 2d 1412, 88 S. Ct. 2270

. (1968); Chimel v California, 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034, reb den 396 U.S.

869, 24 L. Ed. 2d 124, 90S. Ct. 36 (1969); Von Cleefv New Jersey, 395 U.S. 814, 23 L. Ed. 2d

728, 89 S. Ct. 2051 (1969); Franks v Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674

(1978).

PROFESSIONAL MISCONDUCT-PROSECUTOR

The American· Bar Association Model Rnles of Professional Conduct and Texas

Disciplinary Rules of Professional Conduct outline the Special Responsibilities Of A

Prosecutor. In accordance with (lAW) these rules a prosecutor shall, under Rule 3.8 (a) refrain

. ,.. . ,-

·from prosecuting a charge that the prosecutor knows is not supported by probable cause; (d)

make timely disclosure to the defense of all evidence or information known to the prosecutor that

" ..

tends to negate the guilt of the accused or mitigates the offense, and, in connection with

~. '.

sentencing; disclose to the defense and to the tribunal all unprivileged mitigating information

·-- '

known to the prosecutor, except when the prosecutor is relieved of his responsibility by a

protective order of the tribunal; (g) When a prosecutor knows of new, credible and maierial

.~- ...

:evidence creating a reasonable likelihood that the convicted defendant did not commit an offense

., ___ '

of which the defendant was convicted, the prosecutor shall: (1) promptly disclose that evidence

to an appropriate court or authority, and (2)(ii) undertake further investigation, or make

reasonable efforts to cause an investigation, to determine whether the defendant was convicted of

an offense that the defendant did not commit, and (h) When a prosecutor knows of clear and

'·. .. ' . ' -·-··.

convincing evidence establishing that a defendant in the prosecutor's jurisdiction was convicted

of an offense that the defendant did not commit, the prosecutor shall seek to remedy the

conviction. Brady v. Maryland, 373 U.S. 83, S. Ct. 1194, 10 L. Ed. 2d 215 (1963); United States

. Msmetan;EtHm i9 --,,

. • . ' •. ' •. ' . f : - . '~'

v. Burns, 500 U.S. at 496, 111 S. Ct. at 194445; Botello v Gammick, 413, F. 3d 971, 976 (9th

Cir. 2005); Van de. Kamp v Goldstein, 555 U.S. 335, 342, 129 S. Ct. 855, 172 L. Ed. 2d 706

· (2009). Fair play is the essence of due process. Galvan v Press, 347, U.S. 522, 530, ·74 S. Ct.

737, 98 L. Ed. 911 (1954); Giglio v United States, 405 U.S. 150, 154, 92 S. Ct. 763, 31 L. Ed.

2d 104 (1972). Although the state is obliged to prosecute with earnestness and vigor, it is as

much its duty to refrain from improper methods calculated to produce a wrongful conviction as it

is to use ever legitimate means to bring about a just one. Cone v Bell. 129 S. Ct. 1769, 1782, 173

L. Ed. 2d 701 (2009). In a criminal prosecution is not that it shall win, but that justice shall be

done. Berger v. United States, 295 U.S. 78, 88, 79 L. Ed. 1314, 55 S. Ct. 629 (1935).

BRADY VIOLATIONS

'! r ..

', I,' . ' (

The prosecutor or police cannot knowingly~ an~ intentionally, and in bad faith destroy

··.:-. ' ,- . •, ..

or prevent any opportunity for a defendant to exonerate himself with potentially exculpatory

evidence. Brady v. Maryland, 373 U.S. 83, S. Ct. 1194, 10 L. Ed. 2d 215 (1963); California v

i''; ,.· ..-.. ',·,

Trombetta, 467 U.S. 479, 81 L. Ed. 2d 413, 104 S. Ct. 2528 (1984); Arizona v Youngblood, 488

,.

U.S. 51, 102 L. Ed. 2d 281 109 S. Ct. 333 (1988); United States v Cooper, 983 F. 2d 928, 931

(9th Cir. 1993); United States v Fletcher, 801 F. 2d 1222, 1225 n. 3 (lOth Cir. 1986); United

' •'

States v. Bagley, 473 U.S. 667, 674, 105 S. Ct. 3375, 3379, 87 L. Ed. 2d 481 (1985); United

: . . ,.-,· ,!,, .... ' ('

States v Abello-Silva, 948 F. 2d 1168, 1179 (lOth Cir. 1991) (same), cert denied, 113 s; Ct. 107

':·

' ..

. ... ·····

(1992); United States v George Bohl, 25 F. 3d 904 (lOth Cir. 1994).

~-

'

PROFESSIONAL MISCONDUCT -COUNSEL

·, ..

'-, , ..

IAW the American Model Rules of Professional Conduct, and Texas Disciplinary Rules

.• 1

of Professional Conduct, Rule 8.02 (a) A lawyer shall not make a statement that the lawyer

' ; - " . ' I

knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications

-- .

::. '··

. .. --.

or integrity of a judge, adjudicatory official or public legal officer, or of a candidate for election

• MeffisraaEl!HR :6Q ·· · · ·

•J.'"t-

or appointment to judicial or legal office. And, (b) A lawyer who is a candidate for judicial

. office shall comply with the applicable provisions of the Texas Code of Judicial Conduct. And,

,_,

Rule 8.03 (a) Except as permitted in paragraphs (c) or (d), a lawyer having knowledge that

another lawyer has committed a violation of applicable rules of professional conduct that raises a

. substantial question as to that lawyers honesty, trustworthiness or fitness as a lawyer in other

respects, shall inform the appropriate disciplinary authority. And, (b) Except as permitted in

paragraphs (c) or (d), a lawyer having knowledge that a judge has committed a violation of

applicable rules of judicial conduct that raises a substantial question as to the judges fitness for

office shall inform the appropriate authority. And, Rule 8.04 (a) A lawyer shall not: (1) violate

·these rules, knowingly assist or induce another to do so, or do so through the acts of another,

:. , -,

···..

whether or not such violation occurred in the course of a client-lawyer relationship. And, (3)

~ ··. \' - ·. .. ·' ,· . ·., .····-· ,··

engage in conduct involving dishonesty, fraud, deceit or misrepresentation. And, (5) state or

., ..

imply an· ability to influence improperly a government agency or official. As Officers of the

·- :·,'' l.

Court, their statements and conduct can only be taken as "true". There can be no trial strategy

...... l \ •..

justification when the conduct was so ill chosen it permeated the entire trial with obvious

unfairness. Seigfried, v Greer, 372 Fed. Appx. 536 (5th Cir. 2010).

There is no ethical or responsible "trial strategy" in intentional deception and

misrepresentation of the expected conduct of a trial judge or the trial counsel to throw away a

•. , .·.- . . f,:,·

· ...

clients rights to a fully engaged and meaningful defense and fair trial. United States v. Grieg,

'._,._ ..

967 F. 2d 1018 (5th Cir 1992); ("While we recognize that a trial court does not always have an

,.. ,;.-, ' ,.r:..,,.

affirmative duty to inquire into the possibility of a conflict of interest, it does have a duty to

·.... , ' ' ..

· conduct a hearing once it has been alerted and certainly when it knows of the existence of an

...... \' .

actual conflict of interest."). Armstrong v. State, 573 So. 2d 1329, 1335 (Miss. 1990). ("As an

.,.. . -,-.. -,

~- 1\.fenl8ntheii-uh 21· ·:· ·

actual conflict which adversely affected counsel's performance was shown, the trial court

reasonably should have known the conflict existed.")

JUDICIAL MISCONDUCT

It is the responsibility of the trial judge to oversee and maintain the integrity of the trial and

ensure a defendant receives their right to a fair trial. However, the United States Supreme Court

has consistently found a breakdown in the adversarial process, due process, and right to a fair

trial when the trial judge has a direct financial interest in the outcome of the proceedings.

Johnson v United States, 520 U.S. 470, 137 L. Ed. 2d 718, 117 S. Ct. 1544 (1997) (" .. and the

cumulative errors seriously effected the fairness and integrity of thejudicial proceedings." !d., at

469, 137 L. Ed. 2d 718, 117 S. Ct. 1544. The CoUrt has found that an unbiased decision maker is

not an option in any fair trial, and creates such an error that taints any conviction with

constitution infirmity and requires automatic reversal. Young v United Sates, 315 U.S. 257, 258,

259, 86 L. Ed. 832, 834, 835, 62 S. Ct. 510 ("the proper administration of criminal law cannot be

left merely to the stipulation of the parties." 315 U.S. at 259; Chapman v California, 386 U.S.

,,_ -,-,' .....

18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) (The Supreme Court said whether it appears beyond a

reasonable doubt that the error complained of did not contribute to the verdict obtained." !d., at

. ·'· ..

24, 17 L. Ed. 2d 705, 87 S. Ct. 824; Neder v United States, 527 U.S. 1, 144 L. Ed. 2d 35, 119 S.

. .. - . -

Ct. 1827 (1999) ("critical issues of fact where there is the importance of protecting the right to

have a jury resolve critical issue_s of fact ~hen there is a special danger that elected judges may

listen to the voices of voters rather than the witnesses."); United States v Evans, 504 U.S. 255,

' .. ,

· 274, 112 S. Ct. 1881, 119 L. Ed. 2d 57 (1992); Schlup v Delo, 513 U.S. 298, 130 L. Ed. 2d 808,

115 S. Ct. 851( 1995); Sawyer v Whitley, 505 U.S. 333, 120 L. Ed. 2d 269, 112 S. Ct. 2514

., ....., {' . ,. . ,'I .

(1992); Tumey v Ohio, 273 U.S. 510, 532, 71 L. Ed. 749, 47

.. ,

S. Ct. 437, 50 ALR 1243 (1927);

,_,.

Kyles v Whitley, 514 U.S. 419, 436-37, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995); Harrington,

· . M8me'F!Hio€lt:iH! 22

'1-""/

131 S. Ct. at 786 (quoting Jackson v Virginia, 443 U.S. 307, 332, n. 5, 99 S. Ct. 2781, 61 L. Ed.

2d 560 (1979); United States v Narisco, 446 F. Supp. 252 (ED Mich. 1977); United States v

Gainey, 380 U.S. 63, 68, 85 S. Ct. 754, 758, 13 L. Ed. 2d 658 (1965); Holloway vArkansas, 435

U.S. 475, 484, 98 S. Ct. 1173, 1178, 55 L. Ed. 2d 426 (1978);Glasser v United States, 315 U.S.

60, 62 S. Ct. 457, 86L. Ed. 680 (1992); Cuyler v Sullivan, 446 U.S. 335, 346, 100 S. Ct. 1708,

1717, 64 L. Ed. 2d 333 (1980); McCormick v United States, 500 U.S. 257, 273, 1115 S. Ct. 1807,

114 L. Ed. 2d 307 (1991); United States v Sun-Diamond Growers of Cal, 526 U.S. 398, 404-405,

119 S. Ct. 1402, 143 L. Ed. 2d 576 (1999); American Bar Association Model Rules Of

Professional Conduct; Texas Disciplinary Rules Of Professional Conduct; Texas Standards On

Judicial Conduct.

r.· l ....

The Supreme Court has consistently found a breakdown in the adversarial process when

the judge has a direct financial interest in the outcome of the proceedings. Tumey v. Ohio, 273

- ' .. - -. [" ~.

U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749, 5 Ohio Law Abs. 159, 5 Ohio Law Abs. 185, 25 Ohio L.

.'

Rep. 236. "His conduct will be controlled by the terms of the promise or the undertaking."

McCormick v United States, 500 U. S. 257, 273, 111 S. Ct. 1807, 114 L. Ed. 2d 307 (1991);

. '·-'., • f.

····-{ ..

United States v Brewster, 408 U.S. 501, 526, 92 S. Ct. 2531, 33 L. Ed. 2d 507 (1972) ("The

"' ,;

'·

illegal conduct is taking or agreeing to take money for a promise to act in a certain way."). (" ...

. . . . ., '

-'

receipt of something of value, "in exchange for an official act." United States v. Sun-Diamond

Growers of Cal., 526 U.S. 398, 404-05, 119 S. Ct. 1402, 143 L. Ed. 2d 576 (1999). Neder v.

United States, 527 U.S. 1,8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (the presence of a biased

.. ·.::.,

decision-maker is a structural error subject to automatic reversal); Edwards v. Balisok, 520 U.S .

. •,

641, 647, 117 S. Ct. 1584, 137 L. Ed. 2d 906 (1997) ("A criminal defendant tried by a partial

•• r .,_ '

judge is entitled to have his conviction set aside, no matter how strong the evidence against

' ' ~

him."); Brecht v Abrahamson, 507 U.S. 619, 629-30, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993)

· Msmi:fflt.Hcittm. zei>

'2.'5

•::

(Trial errors that occur during the presentation of the case to the jury are subject to harmless-

error analysis. "At the other end of the spectrum of constitutional errors lies "structural defects"

in the constitution of the trial mechanism, which defy analysis by the "harmless-error" standard

and require automatic reversal." ld.); Johnson v United States, 520 U.S. 461, 469 117 S. Ct.

1544, 137 L. Ed. 2d 718 (1997); Rose v Clark, 478 U.S. 570, 577-78, 106 S. Ct. 3101, 92 L. Ed.

2d 460 (1986) ("If the defendant had counsel and was tried by an impartial adjudicator, there is a

strong presumption that any other errors that may have occurred are subject to harmless-error

analysis."); Tumey 273 U.S. at 523. 'It is sufficient if the public official understood he or she

was expected to exercise some influence on the payer's behalf as the opportunities arose."

United States v. Abbey, 560 F. 3d 513, 518 (6th Cir. 2009); United States v Jefferson, 674 F. 3d

, ....

332, 358~59 (4th Cir. 2012); Ryan v United States, 688 F. 3d 845, 852 (7th Cir. 2012); United

. '

States v Ganim, 510 F. 3d 134, 147 (2nd Cir. 2007). The Texas Code of Judicial Conduct,

Canon 1: Upholding the lnt~grity and Independence of the Judiciary states, "An

independent and honorable judiciary is indispensable to the justice of our society. A judge

should participate in establishing, maintaining, and enforcing high standards of conduct, and

personally observe those standards so that the integrity and independence of the judiciary is

c.· .... -- ' •, __ ,,_._ - . . . . . .! • ' ··,

preserved." Canon 2: Avoiding Impropriety and the Appearance of Impropriety in All of

''1''"

the Judge's Activities (A.) states, A judge shall comply with the law and should act at all times

in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

And, (B) A judge shall not lend the prestige of judicial office to advance the private interests of

~-'

c

.

the judge. Cannon 3(A): Performing the Duties .,of, ..Judicial

,

Office Impartially and Diligently

__

states, the judicial duties of a judge take precedence over all the judge's other activities. Cannon

3(B)(2) states, a judge should be faithful to the law and maintain professional competence in it.

A judge shall not be swayed by partisan interests, public clamor of fear of criticism." And,

.. · - ·Mem6fflfithtm 2:<1-

-J..'-'

. ~ . ··- ....

'.

Canon 5: Refraining from Inappropriate PolitiCal Activity (1) A judge or judicial candidate

shall not: (i) make pledges or promises of conduct in office regarding pending .or impending

cases, specific classes of cases, specific classes of litigants, or specific propositions of law that

would suggest to a reasonable person that the judge is predisposed to a probable decision in cases

within the scope of the pledge.

The integrity of the judiciary is to refrain from conduct, which result in her making

decisions contrary to and involved umeasonable application of clearly established state and

federal laws as determined by both Supreme Courts, and the Constitutions of both Texas, and the

United States.

~-. ·.

. ·'

~-.--.: . . '

ARGUMENT·

Travis County Sheriff's Deputy, Toby Miller, a person of public trust, who made sure he

was identified as a "Senior Deputy Sheriff," who was caught by .Applicant falsifying time sheets

on a Federally funded energy grant, that was under the constant oversight of the U.S. Department

of Energy, from the issuance of the announcement

. .

of the Stimulus

. Program until Applicant was

-.. ·,

arrested on October 11, 2011.

Miller, as a Senior Deputy Sheriff, knows that making patently false or misleading

.. '· . ·... ... ,. / ; ' ,.

statements, material omissions and providing only personal beliefs, and assumptions, twisted for

self-serving needs, to establish probable cause, violated criminal laws and constitutional rights.

In this case it was Miller who controlled most of the information his personal friend, Travis

. ~ . . . ' ..

County District Attorney Investigator Lori Carter, and Travis County Assistant District Attorney,

Holly Taylor, relied upon, but failed to verify,

.. ,.

or confirm, even

. .

after being told to their faces, by

• 1:, • ; ·. :: ·:. :._ . . ., .

the Jones town Chief of Police, while they were out "investigating" the case, (Holly Taylor is

seen in a reflective photo, that clearly identifies her by her dark hair (Carter is a bleached

M6ffiel'!ffl4:tm '25

'27

blonde), wedding ring and jewelry (that she wore to conrt daily) taking the picture over by the

Waste Water Treatment Plant), that Miller was a suspect in an ongoing criminal investigation for

multiple felonies, including Attempted Murder and the sabotage of Wind Energy Systems in the

very case they were working on. They were told there was no evidence of a crime on both

Applicant and on the part of SECO employee, Mary

'

J;b Woodall, by Martin Cano, Chief of

(,

Investigations, Texas Comptroller, and also by their OWn forensic analyst, Robin Timmins, all

months prior to securing the search warrants. (See Exhibit 5, 299th District Court Records, D-1-

DC-13-904021-EXH-VOLUMES 1-21, COURT REPORTERS RECORD, D-1-DC-13-

904201_395 CLERKS RECORD, Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY

(A-11-CR-647(1)-LY) 2255 Motion to Vacate, Supplemental Report Field Observations-Chief

Stetar attachment, and Exhibit 2, Promissory Notes and bank check faces).

Miller knew Applicant was a 29 year, decorated, and Honorably Retired Chief of Police

and Military Veteran. Miller knew Applicant had created and developed a ballistic shield and

, custom furniture company back in 1998 and was involved with that company until 2006; was

involved in grants and research and development projects with the Department of Defense since

1993; the shield company was a Sole Source provid~r since 1998 and had been awarded

· -,iL Ur"- ·

successful contracts with the Department of Defense, FBI; ut

Marshal's, U.S. Secret Service,

,-~ r': · -·r

U.S. Department of State, Diplomatic Security and international police organizations, including

Hong Kong, Singapore, Germany, Canada and Japan; Miller knew, through reading Applicant's

Pardon Petition, that was hand carried to the White House in December of 2008, and not denied,

;.,;

but simply turned away, because a fellow named Isaac Toussie (See Exhibit 2, photos and

Exhibit 4, Pardon Petition and Toussie articles) made the national news when it was alleged his

father paid approximately $28,000 to get his son a pardon; that Applicant, prior to becoming a

Chief of Police, aggressively investigated bad cops and would have no qualms, conviction or not,

MeHter!ltlffiml: 'Q,~ ,

-z.'b

,.'"

·-·-;-. •'

about putting Miller, Cook and others behind bars for theit'criminal conduct. And, that Applicant

was angry specifically at the vindictive prosecutorial and government misconduct involving

blatant lies from Houston AUSA, Jimmy Kitchens and theATF regarding ATF and FBI roles in

the training in Houston where Applicant, under the color of authority, provided authorized less

lethal device (flash bangs) training aids for sanctioned, and accredited law enforcement training,

and the Govermnent's vindictive prosecution ("a present from the FBF') of Applicant in

. covering up the negligent conduct of FBI Supervisory Special Agent Mark Tilton, with the help

of his friend, Austin FBI Supervisory Agent Charlie Rasriet,_, in his failures regarding Applicant's

('

catching a Russian Spy in the Houston Ship Channel in 2001, and Tilton's failure to resolve the

Gene Williams issue, as the FBI SWAT Team Leader, before Williams blew the foot off of a co-

worker while horse playing. Miller knew Applicant was actively engaged in continuing his quest

to get a pardon; is not a criminally minded person; and was actively engaged in the development

of the Wind Energy business to turn it into an international business. (See Exhibit 4, Pardon

Petition, Charlie Malouff Resume, Charlie Malouff Commendation Letters and Letters of

Appreciation, Goeff Ross letter, Gene Williams Motion and United States v Vest, and Exhibit 1,

"Panama presentation" and Howard Reed Affidavit).

r :·

Not only did Miller and McCoy know Applicants background, but Applicant provided CM

Energies employees, Lance Wedell, Justin Shepherd, Aaron Knapek, John Karlson, and Paul

A• ,. •

Kuwumara with a copy of his resume so they would know Applicant's background as it applied

to his knowledge of the workings of the Government. Nb where in Applicant's resume or during

any time in association with these persons, did Applicant ever say he worked for the CIA. In

addition, Miller, McCoy, Cook and the employees all knew Applicant was proud of his

background and wore his medals and defining patches on

,..

his motorcycle vest in the employees

presence, almost daily from the time he started with Shepherd and Eric Graham's, University of

Met!iel'lll.Tclt!Hi 29

~"l

Texas, class projects in 2008, until Applicant was arrestt!d on October 11, 2011. (See Exhibit 2,

Applicants motorcycle vest and patches photo and, Exhibit' 1, Charlie Malouff Resume).

Miller, McCoy, Karlson, Wedell, Shepherd, Cook, Graham, Knapek, other CM Energies

employees and Deane Armstrong, Jones town Mayor, -and Dan Dodson, Jonestown City

Administrator, knew Applicant was the owner of the Intellectual Property and patent's pending

design of the Wind Energy System. Miller knew all employees, including himself signed not

only a Confidentiality and Non-Compete Agreement, but also a Trade Secrets Confidentiality

Agreement as well. Miller, McCoy, Karlson and others all knew Applicant was protective of the

technology that gave him an advantage over others from the studies and development of the

Systems and were well aware of the large number 'of patent and Intellectual Property

'

infringement cases filed in Federal Court by American companies every year .

.;:_ . '

Miller, McCoy, Karlson and others knew they were not owners of the technology, had no

,--

rights to any of the Intellectual Property, nor were they members CM Energies International,

LLC. Miller, Karlson and others knew McCoy was president the majority shareholder to CM

·.r· !

Alternative Energies, Inc., a Texas Corporation where they were part-time employees, and they

had no shares, and no authority to speak or act on behalf of the Company when they tried their

"secret" takeover of the Wind Project. "A trade secret is -any formula, pattern, device or

compilation of information which is used in one's business, and which gives the owner an

opportunity to obtain and advantage over competitors who do not know or use it." N. At.

'q . ~:·i

Instruments, Inc. v Haber, 188 F. 3d 38, 44 (2nd Cir. 1999). Miller, McCoy, Karlson, Guevara

and others were all informed by Applicant that at any given time in the United States there are

. ',.,. ...

over 1600 patent infringement cases on file in the Federal courts, and they all knew the extent

and measures Applicant took to guard the secrecy of the intricacies of the Systems. They knew

Applicant was working directly with Michael Guevara, CM Energies General Counsel, and

MBH!ei'aHE!-effi· 28

"$0

Robert McLauchan, CM Energies Intellectual Property Patent Attorney regarding the protection

of the designs and commercialization. They knew between 2009 and 2010, Applicant taught

them the value of the information to the business and the competitors. They knew Applicant

spent every day for several years developing the information and was out at the University of

Texas, JJ Pickle Research Center every day, all day long, with student projects and conducting

his own independent testing and study's. And, more importantly, they were taught by Applicant,

once in someone's possession, the ease or difficulty with which the information could be

properly or improperly acquired or duplicated by others. Not only were they taught this, but they

used it against Applicant in their attempt to take control of Applicant's Intellectual Property.

(See Exhibit 5, 299th District Court Records, D-1-DC-13-904021-EXH-VOLUMES 1-27,

COURT REPORTERS RECORD, D-1-DC-13-904201_395 CLERKS RECORD, Exhibit 6,

Charlie Malouf! v. United States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255 Motion to

,., .·

Vacate, Secret Meeting attachment). They knew the Grant was specifically written for

Applicant's Wind Energy Systems. They also admitted, they had not read the Grant or any of

.. . I

the Code of Federal Regulations required to be in compliance with the Grant. (See Exhibit 5,

299th District Court Records, D-1-DC-13-904021-EXH-VOLUMES 1-27, COURT

REPORTERS RECORD,' D-1-DC-13-904201_395, pages 47-50 CLERKS RECORD, and

Exhibit 6, Charlie Malouf! v. United States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255

'"\' .

Motion to Vacate). They knew while Guevara attended their "secret" meeting with Dan Dodson,

City Attorney, who also knew Applicant was working with Guevara and McLauchlan, Guevara

.. ~ .!' ., . ! •••••

left their little group after seeing the. falsified time sheets, and Miller's email admitting to

.. ,'. __ ··-·-"

·,. i :,

breaking into City Hall and wishes to do Applicant harm. Guevara himself was called a "traitor"

::.,·.· ,-'

and other things by Miller after he disassociated himself with Miller, Karlson Cook, Graham,

McCoy and the others. In addition, Applicant and Guevara were sent malicious emails

.-Meffi:eit\f!Effiih 29

. . ??I.. ,

containing viruses by Miller. (See Exhibit 1, Applicant's Yahoo email screen sheets with three

unopened emails containing viruses sent from Miller). Applicant got the first virus email from

Miller shortly after the Wind Energy Systems were sabotaged and it was detected by Kaspersky

Anti-Virus. The email was addressed to Applicant and to Mike Guevara. Applicant immediately

notified Guevara and instructed him not to open any emails from Miller.

While McCoy was the president and majority shareholder of CM Alternative Energies,

. Inc., and was licensed to market and manufacture the Wind Energy Systems, her participation in

the illegal take over was the wrong way to address contractual and corporate responsibilities.

She compounded this when she told Applicant she would sever the parent-child relationship if he

pursued terminating Miller, Cook, Graham, K11rlson, and others, three times and again a month

i 1 ' • r ••• •• '

later.

' .··

On July 15, 2011, Travis County Assistant District Attorney, and prosecutor of the case,

. ,\.

Holly Taylor, left her role as a prosecutor, and thereafter engaged in the role of "investigator"

gathering evidence, proven by a reflective photo of Taylor taking photographs, interviewing

witnesses, getting facts and information, giving legal advice to police officers, and clearly

functioning as an investigator. (See Exhibit 6, Charlie Malouf! v. United States, A-13-CV-

572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate, Supplemental Report Field Observations-

·' '''')

Chief Stetar attachment, and Exhibit 2, photos of Taylor photographing evidence). At that time,

Travis County District Attorney Investigator, Lori Carter, and Taylor clearly lacked probable

cause and Taylor was not in a position to claim to be an advocate.

Taylor, as the prosecutor, violated the American Bar Association Model Rules of

Professional Conduct and the Texas Disciplinary Rules of Professional Conduct, Rule 3.03(a)(l),

·... :"'L:·: .• • ··•'··

(3j(b)(c)(d) when she repeatedly said she did know she was withholding Brady material and

offered, through the advice and counsel to Carter, and in bad faith, and assisted Carter in making

..

patently false and misleading statements, and coaching her to make material omissions to the

magistrate to secure multiple search warrants. (See Exhibit 5, 299th District Court Records, D-1-

DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS RECORD, D-1-DC-13-

904201_395 CLERKS RECORD, and Exhibit 6, Charlie Malouffv. United States, A-13-CV-

572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate).

Taylor ignored her duty of candor to the tribunal, as prosecutors may not, "in an ex parte

proceeding, fail to disclose to the tribunal an unprivileged fact which the lawyer reasonably

believes should be known by that entity for it to make an informed decision." And Rule 8.04

(a)(1),(2),(4) when she herself, and in the assistance of another, Lori Carter, and other

prosecutors involved in this case, including Susan Oswalt and Greg Cox, knowingly violated

these Rules, and knowingly and intentionally engaged in conduct involving dishonesty, deceit,

and misrepresentation when they submitted patently false, and misleading information, and

. :) ~ ..

knowingly, and intentionally omitted material exculpatory information to the magistrate in the

presentation of the search warrant affidavit to keep that magistrate from making an informed

.. < l ·•. i ,,

decision. And American Bar Association Rules of Professional Conduct Rule 3.8 Special

Responsibilities Of A Prosecutor (a) refrain from prosecuting a .charge that the prosecutor

,..

knows is not supported by probable cause; (d) make timely disclosure to the defense of all

evidence or information known to the prosecutor that tends to negate the guilt of the accused or

mitigates the offense, and, in connection with sentencing, disclose to the defense and to the

tribunal all unprivileged mitigating information known to the prosecutor, except when the

. ( ''

prosecutor is relieved of his responsibility by a protective order of the tribunal; (g) When a

prosecutor knows of new, credible and material evidence creating a reasonable likelihood that

'. ,;,,

the convicted defendant did not commit an offense of which the defendant was convicted, the

prosecutor shall: (1) promptly disclose that evidence to an appropriate court or authority, and

•MemElfilflatufi'B i .

-~

(2)(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to

determine whether the defendant was convicted of an offense that the defendant did not commit,

and (h) When a prosecutor knows of clear and convincing evidence establishing that a defendant

in the prosecutor's jurisdiction was convicted of an offense that the defendant did not commit,

the prosecutor shall seek to remedy the conviction. Holly Taylor knew when she was functioning

as an "investigator" when she was caught in a reflective photo taking the picture over by the

Waste Water Treatment Plant before Jonestown Chief of Police; John Stetar caught them

"investigating" in his jurisdiction, and also having been told by officials from other government

organizations, who were more familiar with the policies, procedures and contractual obligations

under the Grant, and law, and who knew that further investigation, such as, talking to Applicant,

or any of Applicant's employees, other than the ones w?o were fired, would result in neither the

Applicant or Mary Jo Woodall committing an offense, and being innocent of the allegations, but

,. ··-·... ,. ; \

because of her pride, maliciously continued to violate Applicant's constitutional rights.

Taylor and Carter singled out Applicant, who at the time of the submission of the Grant,

. .,

was not an employee of CM Alternative Energies, Inc., the subcontractor, or the City of

, ,

Jonestown, the Grantee, and who had not signed ~my government document. Taylor and Carter

...,,.

knew the City of Jonestown conducted its own independent due diligence and the Mayor, Deane

._.,, .. ., ., .. -, .., .

Armstrong, knowingly and freely signed the Grant on behalf ofthe City. (See Exhibit 5, 299th

District Court Records, D-l-DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS

:··· .

RECORD, D-1-DC-13-904201_395 CLERKS RECORD, and Exhibit 6, Charlie Malouf! v.

United States, A-13-CV-572LY (A-ll~CR-647(1)-LY) 2255 Motion to Vacate).

Between April 2012 and August 2013, Travis County 299th District Court Judge, Karen

Sage, heard numerous testimonies, and examined numerous pieces of material exculpatory

. ·.. " •,, -'

evidence. Sage heard numerous arguments of ongoing Brady violations and selective and

·Meffief!ifl'ffi:!Hi 32

-?t.-1

,- .. .,..

. ,! ' -

vindictive prosecution. (See Exhibit 5, 299th District Court Records, D-1-DC-13-904021-EXH-

VOLUMES 1-27, COURT REPORTERS RECORD, D-1-DC-13-904201_395, pages 183-326

CLERKS RECORD, and Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY (A-11-

CR-647(1)-LY) 2255 Motion to Vacate, Supplemental Report). Sage heard arguments that there

were three standing Wind Energy Systems, one in Taylor, Texas and two in the City of

Jonestown (see Exhibit 2, photos) that an exculpatory and exonerating 20 Kilowatt generator

could have been put in and connected to the grid, and demonstrated that the Wind Energy

Systems worked as proposed, but the City of Jonestown and the Travis County District Attorney

maliciously took a metal cutting saw and cut them down and destroyed them, so that there was

no physical way for Applicant to prove his innocence, a violation of Brady. (See Exhibit 5, 299th

·~:· .,,,, .·. - , ..

District Court Records, D-1-DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS

, RECORD, and D-1-DC-13-904201_395, pages 183-326 CLERKS RECORD). Evidence is

. ;"-. ..

"material" within the meaning of Brady when there is a reasonable probability that had the

evidence been disclosed, the result of the proceeding would have been different. Brady v.

Maryland, 373 U.S. 83, S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Cone, 129 S. Ct., at 1783; United

States v Jernigan, 492 F. 3d 1050, 1053-54 (9th Cir. 2007); Kyles v Whitley, 514 U.S. 419, 432-

33, 115 S. Ct. 1555, 1565, 131 L. Ed. 2d 490 (1995); United States v. Bagley, 473 U.S. 667, 674,

·' - ·····

105 S. Ct. 3375, 3379, 87 L. Ed. 2d 481 (1985). Valdovinos v McGrath, 598 F. 3d 568 (9th Cir.

. , ,·.,.

2020); United States v George Bohl, 25 F. 3d 904 (lOth Cir. 1994); Moore v Dempsey, 261 U.S.

, -r··

86, 67 L. Ed. 543, 43 S. Ct. 265; Frank v Mangum, 237 U.S. 309, 59 L. Ed. 969, 35 S. Ct. 582;

- 1 '~. • ' ,--,' ,.

People v Mooney, 175 Cal. 666 .,P. 999; People v Mooney,

__ '". -.. ,

176 Cal. 105, 167 P. 696, 177 Cal.

171 P. 690.

Taylor, Carter and Miller all allege Applicant committed fraud, creating Wind Energy

!" ·--' ,-

Systems that didn't work, even though there is ample proof the full size prototypes at The

Meffi6ffitlditin jJ ·.:

... -... ,..

University of Texas, JJ Pickle Research Center did, and the supervising professor, Ron Stearman

(see Exhibit 1, Stearman letter and email to Mary Jo Woodall and Howard Reed Affidavit) said

they worked and were ready for commercialization, but they knowingly and intentionally, and in

bad faith destroyed these distinct and exclusive design Systems depriving Applicant of any

opportunity to exonerate himself with this potentially exculpatory evidence, and thus prejudiced

Applicant. California v Trombetta, 467 U.S. 479, 81 L. Ed. 2d 413, 104 S. Ct. 2528 (1984);

Arizona v Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281 109 S. Ct. 333 (1988); United States v

Cooper, 983 F. 2d 928, 931 (9 1h Cir. 1993); United States v Fletcher, 801 F. 2d 1222, 1225 n. 3

(10'h Cir. 1986); United States v. Bagley, 473 U.S. 667, 674, 105 S. Ct. 3375, 3379, 87 L. Ed. 2d

481 (1985); United States v Abello-Silva, 948 F. 2d 1168, 1179 (lO'h Cir. 1991) (same), cert

.. ·...., ·;···

denied, 113 S. Ct. 107 (1992); United States v George Bohl, 25 F. 3d 904 (lOth Cir. 1994). (See

. ~ ,.1 '''

Exhibit 5, 299th District Court Records, D-1-DC-13-904021-EXH-VOLUMES 1-27, COURT

REPORTERS RECORD, D-1-DC-13-904201_395, pages 183-326 CLERKS RECORD, and

Exhibit 6, Charlie Malouf! v. United States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255

" . ..

. -..--,.

Motion to Vacate, and Exhibit 1, Jonestown City Couneil Agendas and Minutes).

Sage heard testimony from the complainant, Travis County Deputy Sheriff, Toby Miller, a

)

17-year deputy with the Travis County Sheriff's Office, who began his complaints ensuring he

>,.

was identified as a Senior Deputy Sheriff (See 299th District Court Records, D" 1-DC-13-

, .. . . ·- (. .. - ~

904021-EXH-VOLUME027, pages 537-558), admitting to falsifying payroll time sheets to a

:I ' - .. , i ·

Federal energy grant, and his Travis County Sheriffs Office time sheets. Sage heard Miller

-:' '. r.: ,

admit he never read the Grant, or any of the Code of Federal Regulations associated with the

. .

mandatory NEPA Environmental Assessment (EA) and that he had no idea what the Grant

~ .. -~ ( . -- . -

requirements were, or what the contractual obligations of CM Alternative Energies, Inc., the sub-

contractor to the Grantee, the City of Jonestown was. Additionally, Miller testified to using the

·.Meffiel'iffie:li:l~ 3 4 •• .·

?'-

National Crime Information Center (NCIC) computer, his Sheriff's uniform, and motorcycle for

personal gain; illegally entering into a government building that he had no business in after

closing; and his leadership role in trying to take away protected technology of another, and his

trying to take over a wind energy company that he had no ownership control in, and when he

failed, he used his position of authority to cover his crimes and initiate criminal prosecution

against Applicant and co-defendant Mary Jo Woodall. (See Exhibit 5, 299th District Court

Records, D-1-DC-13-904021-EXH-VOLUMES 8, pages 193-201 and 15, pages 16-22 COURT

REPORTERS RECORD, D-1-DC-13-904201_395, pages 183-326 CLERKS RECORD). In

addition, Sage heard Miller initiated his complaints the day he found out, by the corporate

attomey, Michael Guevara, Applicant caught Miller falsifying time sheets, and had put him

under criminal investigation with the Grantee, the City of Jonestown. Miller admitted, under

'.

':•

oath, to conducting an investigation to build the predicate criminal case against Applicant. Miller

-- '. ~

did this under the color of authority, for personal gain, _and not authorized by either the Travis

' . '·-. ' . ; ·_' ~ '/ ' .

County Sheriff's Office or the Travis County District Attomey' s Office. (See Exhibit 5, 299th

District Court Records, D-1-DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS

' -' . .

RECORD, D-1-DC-13-904201_395, pages 183-326 CLERKS RECORD, and Exhibit 6, Charlie

:c\! , - ,-.--

Malouffv. United States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate).

. .. .'

Other significant testimony was from Travis County District Attomey Investigator, Lori

Carter, who admitted, under oath, one reason she targeted Applicant was for his comments, "If I

tell you I will have to kill you" made not as an assertion of fact, but in a popular sense, common

: ... ··:··,·····

in public opinion, used in a joking manner, not obscene, not defamatory, not words tantamount

., . ' . .

to an act otherwise criminal, not an impairment of some other constitutional right, not an

. incitement to lawless action, not calculated or likely to bring about imminent harm, and protected

,.....,

by the First Amendment of the Constitution. And, "I love my country, I despise my government"

· Mem:efftflffiiffi 3§

?7

also made not as an assertion of fact, but in a popular sense, common in public opinion, not

obscene, not defamatory, not words tantamount to an act otherwise criminal, not an impairment

of some other constitutional right, not an incitement to lawless action, not calculated or likely to

bring about imminent harm and protected by the First Amendment of the Constitution, but

twisted by Carter as "anti-government statements" during her investigation to bolster anger and

animosity towards Applicant. (See Exhibit 5, 299th District Court Records, D-1-DC-13-904021-

EXH-VOLUMES 16-19, COURT REPORTERS RECORD, D-1-DC-13-904201_395 CLERKS

RECORD, and Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY (A-11-CR-647(1)-

LY) 2255 Motion to Vacate).

Not only did Carter admit to this in Applicant's trial, but Captain Gleason, Williamson

County Sheriff's Department SWAT Commander, who .conducted the raid on Applicant's co-

defendant's home on October 11th, 2011, testified to this in a hearing for Applicant's co-

. , .. - ,., -, .. :·.-·

defendant in June of 2012.

. ,. ·'-_ ' ..

Carter admitted, under oath, to violating Applicants Fifth Amendment right to remain

silent when in custody. (See Exhibit 5, Court Reporter's Record Travis D-1-DC-13-904021-

:.(~:-: .- . ·._· < --, . . , , . \ ....- '.

EXH-VOL 19, pages 85-120, and Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY

. . . . . ,-!_ _.,-

(A-11-CR-647(1)-LY) 2255 Motion to Vacate, Supplemental Report).

. '

Carter admitted to being told by numerous key personnel from the Texas Comptroller, and

the Travis County District Attorney's Forensic Auditor, months before the search warrant

affidavits were written, there was no evidence a crime had been committed. (See Exhibit 5,

299th District Court Records, D-1-DC-13-904021-EXH-VOLUMES 12 and 19, COURT

REPORTERS RECORD, D-1-DC-13-904201_395 CLERKS RECORD, and Exhibit 6, Charlie

Malouf! v. United States, A-13-CV-572LY

'

(A-11-CR-647(1)-LY)

,. _,.-

Petitioner's Supplement _____

Response Exhibit 4)

Mlffl'fe>t ~:tftdt!rit Ei6 -' • • •

1~

_· .. : ....

In a separate hearing for Mary Jo Woodall, Sage stated that she believed the "inappropriate

relationship" between Applicant and Woodall was simply a sexual relationship between long

time friends. (See Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY (A-11-CR-

647(1)-L Y) Petitioner's Supplemental Response Exhibit 2)

Sage heard the testimonies of these key personnel and others, examined material

exculpatory evidence, heard of multiple, ongoing, Brady violations and was presented evidence

of selective and vindictive prosecution, in and out of the presence of the jury. During these

Brady arguments, Holly Taylor had every opportunity to remedy her Professional Misconduct

and exercise her affirmative duty of candor to the tribunal, and admit that she was acting as an

"investigator" and not an advocate after July l5'h, and knew Applicant and Mary Jo Woodall did

not commit any crime, and submit the exculpatory evidence in her possession. Brady, 373 U.S. at

87, 83 S. Ct. at 1196-97; Texas Disciplinary Rules Of Professional Conduct Rules 3.8, 8.03 and

.. .

. •!-

8.04.

On July 15, 2011, Travis County Assistant District Attorney, Holly Taylor, left her role as

a prosecutor and thereafter engaged in the role of "investigator" gathering evidence, interviewing

witnesses, getting facts and information, giving legal advice, and clearly functioning as

investigator.. (See Exhibit 6, Charlie Malouf! v. United States, A-13-CV-572LY (A-11-CR-

..,_, ...

647(1)-LY) 2255 Motion to Vacate, Supplemental Report Field Observations-Chief Stetar

attachment and Exhibit 2, reflective photo of Taylor taking photos of evidence). Clearly at that

-l.- ' .. ,.\

time, Carter and Taylor lacked probable cause and Taylor was not in a position to claim to be an

advocate. All information and evidence gathered by Taylor after that date is subject to Brady

and cannot be hidden from the defense as work product.

Under Brady, in order to ensure the accused a fair trial, a prosecutor has an affirmative

. , ... ; '·

. . \.

duty under the Due Process Clause of the Fourteenth Amendment to tum over to the accused all

Memerflftffiiffi 37 " ··

.. ·~~ ....

exculpatory or impeachment evidence, irrespective of the good faith, or bad faith of the

prosecutor, which is favorable to the defendant an is material to either guilt or punishment. This

includes the prevention of willful and intentional destruction of that exculpatory or impeachment

evidence. Those Wind Energy Systems with electrical systems in tact, impeachable evidence in

the fmm of Aaron Knapek's improper wiring setup and magnetic brake (see Exhibit 2, Aaron

Knapek City Hall and Waste Water Treatment Plant wiring and alternator photos), and capability

to be converted to working Wind Energy Systems with a correctly wired generator were

favorable to the accused because it was both exculpatory and impeaching; were suppressed and

destroyed by the State; as a result, prejudice ensued with the conviction. Brady v. Maryland, 373

U.S. 83, S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Evidence is "material" within the meaning of

Brady when there is a reasonable probability that had the evidence been disclosed, the result of

the proceeding would have been different Cone, 129 S. Ct., at 1783; United States v Jernigan,

._.,·

1

492 F. 3d 1050, 1053-54 (9 h Cir. 2007); Kyles v Whitley, 514 U.S. 419, 432-33, 115 S. Ct. 1555,

1565, 131 L. Ed. 2d 490 (1995); United States v. Bagley, 473 U.S. 667, 674, 105 S. Ct. 3375,

3379, 87 L. Ed. 2d 481 (1985). This duty attaches as soon as the information comes into the

'J··-

prosecutors possession. On July 15'h, 2011, the first of an enormous amount of exculpatory and

impeachable information was collected by Holly Taylor herself, as portrayed in a reflective

.. . .· ,-. .. ': --·,' ', ; ..,.. ' - .

photo of her, clearly identified by her wedding ring and jewelry, taking photographs of evidence

. ' .. ' ., ' ',. ,-.

at the Jonestown Waste Water Treatment Plant, then directly delivered to Holly Taylor,

-- '

functioning as an "investigator" by the Jonestown Chief of Police, John Stetar, and later her

taking pictures of the area around Fire Station 2. All exculpable and impeachable information

gathered by Taylor was mandated to be released to the defense and the crime scene and other

mate1ially relevant property involved in the very case T<tylor was prosecuting was mandated to

,..

..

,_

be protected by Taylor and her office. In addition, Taylor, her supervisors Susan Oswalt and

M6ffteffititffifn'38 ·

Greg Cox all required candor, under the Rules of Professional Conduct, to the tribunals to

disclose Taylor's conduct and dismiss her from prosecution as she was now an impeachable,

exonerating or exculpable witness.

Jackie Wood took over Applicant's case from Daniel H. Wannamaker in November 2011,

who was removed because of a Conflict of Interest. She was appointed by, in her own words,

"my best friend", Karen Sage, the trial judge.

During the first meeting with Wood, Applicant told her, in the presence of Tom Walsh, our

investigator, Katrina, her paralegal, and her then co-counsel, who Applicant does not recall her

name, as she did not stay long on the case, and was replaced by Tamara Needles, that Applicant

could not get a fair trial because of the relationship of Karen Sage, and Rosemary Lehmberg, the

' ,,, ·.,.,.

District Attorney, Kirk Watson, and other persons in the Capital Area Progressive Democrats.

(See Exhibit I, Capital Area Progressive Democrats). Wood told Applicant not to worry

because Sage " .. .is my best friend."

In almost one year of incarceration, Tamara Needles and Jackie Wood visited Applicant

either four or five times total, collectively amounting to about 1.5 hours of official visitation.

The Travis County Jail has the official visitation records and there are NO recorded visits at FCI

Bastrop. This was a capital crimes case that was over a month just on the prosecution side, and

' I ' . -I' I:~· '~~ -:r·,'

an expected up to six weeks of defense presentation.

In Jackie Wood's last visit with Applicant in the Travis County Jail, just prior to trial, she

again told me Karen Sage was her "best friend" and "Karen has my back." While they may be

. ·-··

. "best friends", the way and meaning imposed on Applicant by Jackie Wood, was that Sage

. +''

would rule her decisions in favor of her "best friend." Applicant took it this way as Wood was so

confident in her negligence to visit with Applicant. to update on the case, or to identify and

•. , - ! -~-:

address government witnesses, and relinquished government and defense exculpatory evidence,

il

or to go over what material evidence was missing, after having told Applicant "no one knows

more about this case than you do."

Sage listened to Travis County District Attorney .Investigator, Lori Carter admit to

violating Applicant's Miranda and ''targeting" Applicant for free speech. Sage heard repeated

arguments of ongoing (and still ongoing) Brady violations, three major Constitutional violations.

Sage, not in the presence of the jury, listened to other Government witnesses, some from

the Texas Comptroller including Martin Cano, Chief· of the law enforcement Criminal

Investigation Section who reviewed the grant, imd searched Mary Jo Woodall's work computer

and a personal USB storage device, and returned them to Woodall with a follow up report to

Cart~r, "there was no evidence of wrongdoing" weeks before Carter applied for her warrants.

,, '·-,-,;.... ,.,·

(See Exhibit 6, Charlie Malouffv. United States, A-13-CVc572LY (A-11-CR-647(1)-LY) Cano

Transcript attachment).

Sage heard the District Attorney's own forensic auditor, Robin Timmins, say there was no

crime, and that she had informed Carter and Taylor in late June, and again in September, months

before the application of the search warrant, she did not feel a crime had been committed. It was

then when "she got it" as described by Needles and Wood, and visibly observed by Applicant, by

Sage her throwing her head to the side and sitting back in her seat with a look of disgust.

(Courtroom security cameras should have that on tape). (See Exhibit 5, 299th District Court

Records, D-1-DC-13-904021-EXH-VOLUMES 12, 13 and 19, COURT REPORTERS

RECORD, D-1-DC-13-904201_395CLERKS RECORD, and Exhibit 6, Charlie Malouff v.

. .. '

United States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate, and Exhibit 1,

Judicial Misconduct and Bar Grievances).

On August 20th, Sage ruled. that Carter mislead the. magistrate (see Exhibit 6, Charlie

..... ',•

Malouff v. United States, A-13-CV-572LY (A-11-CR-647(1)-LY) Petitioner's Supplemental

Response Exhibit 2). It was clear by the testimony of Carter and Miller, (in Sage's own words)

this was a " .. .travesty ofjustice."

After determining Travis County District Attorney Investigator, Lori Carter, had made

patently false statements and mislead the magistrate in at least one portion of the search warrant

affidavit, Holly Taylor should have admitted her professional misconduct and Sage should have

granted a Frank's hearing.

A search warrant may be voided and the fruits of the search excluded if the warrant

affidavit ,contained certain misrepresentations or omissions. Franks v Delaware, 438 U.S. 154,

171, 98 S. Ct. 2674, 2684, 57 L. Ed. 2d 667 (1978). A defendant must show that 1) "the alleged

misrepresentation or omissions were knowingly or recklessly made" and 2) "the result of

·-i- ' . -·,·-:·

excluding the alleged misrepresentation and including the alleged omissions would have been a

lack of probable cause for issuance of the warrants" United States v. Novaton 271 F.3d 968 (11th

01). In Frank's, Justice Blackmun recognized that a warrant could be invalidated if a "false

statement is necessary to the finding of probable cause."

··.-··· ....... ,.,_ ..

Taylor's professional misconduct, and Sage's failure to grant a mistrial, or dismiss with

prejudice, and her rulings, and failures to rule on other motion's, compounded by Applicant's

; ( ..

attomey' s expectation of favoritism, manifested an already ongoing miscarriage of justice, and

rendered Applicant's trial so fundamentally unfair it violated all rights of due process.

f • • • •

Making this already egregious and grotesquely unconstitutional situation worse, was the

irresponsible and unethical conduct of Needles and Wood in using "best friend" favoritism as an

excuse not to put on a defense. Jackie Wood violated Model Rules of Professional Conduct Rule

•. I • ' \':1 '

8.04 (a) (1) when she "personally and, through the acts of another," Tamara Needles, in

conference just prior to the Defense resting, violated Rule 8.04 (3) engaged in "conduct

.. ' ..

involving dishonesty, fraud, deceit and misrepresentation," again impressing on Applicant that

Metfiel'ttfiehfm 41

q?

Karen Sage "got it!" and "Karen's got it!" and Wood's statement, "Karen's got my back!" and

both Wood and Needles saying "trust me" and "we should rest" violating Rule 8.04 (a) (5)

"state or imply an ability to influence improperly a government agency or official",

misrepresenting and deceiving Applicant into believing, as Sage's "best friend" they had already

arranged for favored decisions from Sage and that Applicant should throw away his opportunity

for a defense presentation that was "several weeks" worth of exculpatory witnesses and

evidence.

During this conversation Applicant told both Wood and Needles he wanted to challenge

prosecution witnesses and at least have several of the Defense witnesses testify. (See Exhibit 1,

Howard Reed Affidavit). They continued to impress on Applicant Karen Sage "got it!" and

'

"Karen's got it!" and "Karen's got my back!" and "trust me" and "we should rest" There is no

ethical or responsible "trial strategy" in intentional deception and misrepresentation of the

expected conduct of a trial judge or the trial counsel to throw away a clients rights to a fully

engaged and meaningful defense and fair trial. As Officers of the Court, their statements and

__ ,.

conduct can only be taken as "true". There can be no trial strategy justification here because this

conduct was so ill chosen it permeated the entire trial with obvious unfairness. Seigfried, v

Greer, 372 Fed. Appx. 536 (S'h Cir. 2010).

Aside from the professional misconduct, Tamara Needles and Jackie Wood blatantly lied

and deceived Applicant in their fraudulent and misrepresented relationship between Jackie Wood

and Karen Sage, and Wood's expectation of decisions by Sage as her "best friend" regarding

Applicant and the case. (See Exhibit 1, Bar Grievances).

Wood's and Needles words, confidence, and intent were conduct that was impressed and

implied in a manor that exhibited the confidence Sage would decide key judicial decisions in

' __i ., .-.,.

favor of her "best friend." This inapp~opriate reliance on the "best friend" relationship, based on

'' • . Meffiefaii:SRirl 42 .

J~

. the conduct of both Tamara Needles and Jackie Wood, stated below, falls on the unethical and

irresponsible conduct of both attorneys and calls into question the integrity of both the trial judge

and failness in the administration of justice.

After the verdict, Jackie Wood told Applicant "Karen's decisions were political." Shortly

thereafter, Ariel Payan was appointed, by Sage; as Applicant's appellate counsel. In a visit at the

Travis County Jail, Payan hand delivered a letter dated October 22, 2013, and in a "let's cut to

the chase" conversation, Payan told Applicant "my wife works for the prosecutor's office." "We

are friends with Holly Taylor and I know her husband." And, "We all talk." And, "It's a close

knit group." Payan then told me "The judge's decisions were political. Political and influenced

to get contributions and votes for her upcoming re-election" And, "The judge is not likely to

._,.•• , I •

decide on something that can effect her election." (See Exhibit 1, Judicial Misconduct and Bar

Grievances,). At that point, Payan was obligated under the American Bar Association Model

Rules of Professional Conduct, and the Texas Disciplinary Rules Of Professional Conduct, to

notify the trial court, or the Appellate Court, of the issues raised and conflicts of interest created

,.. ,., .,

therein. United States v. Grieg, 967 F. 2d 1018 (5 1h Cir 1992); ("While we recognize that a trial

'' t •

court does not always have an affirmative duty to inquire into the possibility of a conflict of

interest, it does have a duty to conduct a hearing once it has been alerted and certainly when it

I' '•·r

knows of the existence of an actual conflict of interest."). Armstrong v. State, 573 So. 2d 1329,

1335 (Miss. 1990). ("As an actual

..

conflict which adversely affected

..

counsel's performance was

"

shown, the trial court, who Wood implied by their relationship, the decisions were already made,

.. . '

reasonably should have known the conflict existed"). As of August 5'\ 2014, Payan has neither

complained to the Tribunal, filed for a new trial, filed a report to the Bar Association, responded

.... ,,

to, or requested information from Applicant, or stepped down as Applicant's appellant attorney,

. ·,.-<-

furthering Applicant's fears of being further prejudiced and not getting a fair appeal .

.·..~i6tntlr.ai1dtiin 43· :··'

,..,

Here we have an extraordinary case of rimltiple errors that created an extreme malfunction

in the justice system. The "best friend" of the trial judge failing to continue adversarial testing to

prosecution witnesses, after being instructed by Applicant to address exculpatory information,

including cross-examining the prosecutor, who after July 15th, 2011, left her role as advocate

and functioned as an "investigator" and was subject to cross-examination on the facts she was

given and not verified from that point on, and her giving legal advice to the police on material

omissions and misleading the magistrate. And, defense counsel's failing to put on any

meaningful defense or call exculpatory witnesses, (see Exhibit 1, Howard Reed Affidavit) who

were readily available to testify, because she was so confident in her relationship with the trial

judge, and that the judge would rule in her favor, complicated by the trial judge herself, who for

- ~- ' ,

-.. '

pecuniary interest, in votes and contributions, in her upcoming re-election campaign only weeks

away, ruled against Applicant. Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749, 5

Ohio Law Abs. 159, 5 Ohio Law Abs. 185, 25 Ohio L. Rep. 236 ("the court has consistently

found a breakdown in the adversarial process when the judge has a direct financial interest in the

outcome of the proceedings." (See Exhibit 1, Judicial Misconduct Karen Sage for Judge). "his

conduct will be controlled by the terms of the promise or the undertaking." McCormick v United

States, 500 U.S. 257, 273, 111 S. Ct. 1807, 114 L. Ed. 2d 307 (1991); United States v Brewster,

____ ,,_..

"

\'. .. ,-" -

408 U.S. 501, 526, 92 S. Ct. 2531, 33 L. Ed. 2d 507 (1972) ("The illegal conduct is taking or

..

agreeing to take money for a promise to act in a certain way."). (" ... receipt of something of

value, "in exchange for an official act." United States v. Sun-Diamond Growers ofCal., 526 U.S.

398,404-05, 119 S. Ct. 1402, 143 L. Ed. 2d 576 (1999). Karen Sage stated," .. ..I have reviewed

all documents and records as well." (See Exhibit 5; 299th District Court Records, D-1-DC-13-

904021-EXH-VOL004, page 19). Karen Sage was presented with Defendants Brief in Support

of Materiality of Falsehoods and Omissions (see Exhibit 5, Clerk's Record D-1-DC-13-

·~ienlBfaftdttm- 44

~}I

904021_395, pages 267-269); Defendants Brief in Support To Brady Violation (see Exhibit 5,

Clerk's Record D-1-DC-13-904021_395, pages 244-249 and Letter from Jonestown to the

Department of Energy and Holly Taylor, Travis County District Attorney, July 18, 2012 Gust

three days after Holly Taylor was told to her face by the Jonestown Chief of Police, John Stetar

that Toby Miller was a suspect in Attempted Murder and sabotaging the Jonestown Wind Project

and that there was an active police investigation under way) page 200); Defendants Brief in

Suppmt of Frank's Ruling (see Exhibit 5, Clerk's Record D-1-DC-13-904021_395, pages 240-

243); Defendants Motion to Suppress Evidence Due to Spoliation (see Exhibit 5, Clerk's Record

D-1-DC-13-904021_395, pages 179-181); Defendants Motion to Quash hnproper Complaint

(see Exhibit 5, Clerk's Record D-1-DC-13-904021_395, pages 186-188, and Exhibit 6, Charlie

~, -. _., ,., .

Malouff v. United States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate);

-.; .., '

Defendants Motion to Quash for Selective Prosecution (see Exhibit 5, Clerk's Record D-1-DC-

13-904021_395, pages 183-185); Defendants Motion to Suppress/Frank's Motion for Directed

Verdict and Motion to Suppress (see Exhibit 5, Clerk's Record D-1-DC-13-904021_395, pages

10-12), and as such Karen Sage was clearly the decision-maker. Neder v. United States, 527

U.S. 1,8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (the presence of a biased decision-maker is a

structural error subject to automatic reversal); Edwards v. Balisok, 520 U.S. 641, 647, 117 S. Ct.

1584, 137 L. Ed. 2d 906 (1997) ("A criminal defendant tried by a partial judge is entitled to have

--._. , ..,•. ··,

his conviction set aside, no matter how strong the evidence .against him."); Brecht v

• ') • r '• • ' ., •• ' ,•• ' ' •!'

Abrahamson, 507 U.S. 619, 629-30, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993) (Trial errors that

' I ;•·•.

occur during the presentation of the case to the jury are subject to harmless-error analysis. "At

.. --- '.

the other end of the spectrum of constitutional errors lies "structural defects" in the constitution

of the trial mechanism, which defy analysis by the "harmless-error" standard and require

automatic reversal." !d.); Johnson v United States, 520 U.S. 461, 469 117 S. Ct. 1544, 137 L. Ed.

· Mef!ieF!tiitlttm 4:5 ·

~~

2d 718 (1997); Rose v Clark, 478 U. S. 570, 577-78, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986)

("If the defendant had counsel and was tried ·by an impartial adjudicator, there is a strong

presumption that any other errors that may have occurred are subject to harmless-error

analysis."); Tumey 273 U.S. at 523. 'It is sufficient if the public official understood he or she

was expected to exercise some influence on the payer's behalf as the opportunities arose."

·United States v. Abbey, 560 F. 3d 513, 518 (6th Cir. 2009); United States v Jefferson, 674 F. 3d

332, 358-59 (4th Cir. 2012); Ryan v United States, 688 F. 3d 845, 852 (7th Cir. 2012); United

States v Ganim, 510 F. 3d 134, 147 (2"d Cir. 2007).

Applicant shared the front page of the Austin American Statesman several times with the

District Attorney, Rosemary Lehmberg, who was arrested for DWI and was facing criminal

charges and impeachment, in addition to her personal battle with Rick Perry, the Governor of

Texas over his shutting down funding of the Public Integrity Unit and this case was a political

firebomb excuse as to why they had to have funding. (See Exhibit 1, Judicial Misconduct and

Austin American Statesman articles).

Egregiously compounding these problems is the prosecutor, Holly Taylor, herself, who

almost two years before, left her role as prosecutor and functioned as an "investigator" and who

knew full well she was hiding exculpatory material evidence (see Exhibit 5, 299th District Court

Records, D-1-DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS RECORD, D-1-

I_~ :• •·

DC-13-904201_395 CLERKS RECORD, and Exhibit 6, Charlie Malouffv. United States, A-13-

CV-572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate, Carter Transcript attachment), failed·

'

'_--,- .,

to be candor with the tribunal at every stage of the proceeding beginning with the magistrate (see

-· ,. r'·, .-,

Exhibit 5, Brief in Support To Brady Violation, Clerk's Record D-1-DC-13-904021'--395, pages

7 '

244-249, Letter from Jonestown to the Department of Energy and Holly Taylor, Travis County

District Attorney, July 18, 2012 (just three days after Holly Taylor was told to her face by the

Memeftiflai:liR 4e

Lf-'6

' ~ -.

Jonestown Chief of Police, John Stetar that Toby Miller was a suspect in Attempted Murder and

sabotaging the Jonestown Wind Project and that there was an active police investigation under

way). (See Exhibit 6, Charlie Malouff v. United States, A-13-CV-572LY (A-11-CR-647(1 )-L Y)

2255 Motion to Vacate, Supplemental Report Field Observations-Chief Stetar and Jonestown

Police Reports). And, who completely ignored the facts that her primary complainant's were

already under criminal investigation in another jurisdiction for multiple felonies, and were

clearly attempting to cover up their crimes under the color of authority, then tried to hide behind

the work product doctrine, and she supported and encouraged the City of Jonestown to

maliciously destroy exculpatory physical evidence that could have only been proven in the Wind

Energy Systems they destroyed (See Exhibit 5, COURT REPORTERS RECORD, D-1-DC-13-

904201_395, page 200 CLERKS RECORD, Letter from Jonestown to the Department of Energy

and Holly Taylor, Travis County District Attorney, July 18,2012). Brady trumps work product

('

doctrine. Ex Parte Miles, 359 S.W.-3, 647 (Tex. Crim. App. 2012) (holding that the privilege

derived from the work product doctrine is not absolute, and the duty to reveal material

''-··

exculpatory evidence as dictated by Brady overrides the work-product privilege); see also

Hampton, 86 S.W. 3d at 612 (discussing the state has the duty to disclose police reports

containing material exculpatory information); Thomas v State, 837 S.W. 2d 106, 113-14 (Tex.

Crim. App. 1992). Carter stated in her July 15th, 2011 Supplemental Report, Chief Stetar- ·

Observations, she and ADA Holly Taylor were out gathering evidence and "investigating"

before they had any meaningful probable cause. This is substantiated by a reflective photo of

. . . ·1 .

Holly Taylor (identified by her distinct wedding ring and jewelry) photographing an electric

meter out by the Jonestown Waste Water Treatment Plant. United States v. Buckley, 509 U.S. at

- .

273, 113 S. Ct. at 2616. "The Supreme Court stated that a prosecutor neither is, nor should

~t . ·' ,·.

consider himself to be an advocate before he has probable cause to have anyone arrested, 509

U.S. at 274."; Broam v. Brogan, 320 F. 3d 1023, 1028 (9th Cir. 2003); Kalina v Fletcher, 522

U.S. 118, 127, 118 S. Ct. 502, 139 L. Ed. 2d 471 (1997) "The nature of the function performed,

not the identityof the actor who performed it."; Botello v Gammick, 413, F. 3d 971, 976 (9th Cir.

2005); Van de Kamp v Goldstein, 555 U.S. 335, 342, 129 S. Ct. 855, 172 L. Ed. 2d 706 (2009);

Jones v Cannon, 174 F. 3d 1271 (5th Cir. 1999).

From that point on, Holly Taylor left her role as a prosecutor and entered the role of

"investigator" gathering evidence, as proven in her reflective photo of her photographing

evidence at the Jonestown Waste Water Treatment Plant, (see Exhibit 2, photos) and providing

legal advice to Carter. Taylor and all of her notes, reports, recordings and other instruments used

in gathering evidence and interviewing witnesses containing exculpatory evidence are subject to

,_ -· ('

disclosure and cross-examination. Brady v. Maryland, 373 U.S. 83, S. Ct. 1194, 10 L. Ed. 2d

215 (1963); United States v. Burns, 500 U.S. at 496, IllS. Ct. at 1944-45; Botello v Gammick,

•.:

413, F. 3d 971, 976 (9th Cir. 2005); Van de Kamp v Goldstein, 555 U.S. 335, 342, 129 S. Ct.

855, 172 L. Ed. 2d 706 (2009). The fundamental fairness in the rightto adv

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