# Charles Anthony Malouff, Jr. v. State > Texas Court of Appeals, 3rd District (Austin) · March 9, 2015 URL: https://www.frixlaw.com/law-library/cases/4052493 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** March 9, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4052493 ## Opinion text SV.n: vr 'Te:x..-6 QIAp!BS k. !IJ\I.QUFFI JR. § AKA • CHART IE MUOQPF § v. § CASE NO. 03~13-00723-CR Ct+A~ A.. '(\1\A,t..<>oR"; J"f1lS". --.;;.;..~~ 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 ' 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 016"-> (1.. • .,;:- lkcF. Cbt>.Ovc.:r· i\.IMI\IJOtvt1'lQO\-Ti!JV Af!!Q(\q\t> ting in d dee-:i:·Sir-1:- a?kcl'Bs-tlf :J:'Ao.> C.GP4!2:r. 4'1.3.S tro~>.-..,.,.&' Fol:>l'llt$'.2." sy 'T1!E- -ni-1¢> ~oF~ ~ WAI'IT" o-t: .:roost>•€ nor-.. 6. Other than the above listed motion and application, Aff..-f'I'T" Appliea&t has .ne- other motions or applications currently pending concerning the judgement in this case. ' 7. The name and address of the trial judge who convicted ~aant is: />. A-NT Preliminary Hearing: Karen Sage 299th District Court 500 w. 10th st., Austin, TX 78701 Arraignment: Karen Sage Trial: Karen Sage Sentencing: Karen Sage Appeal: None 8. The name and address of each attorney who represented Applioant are as follows: J\qfls'l.I.A "' 7 Trial: Jackie Wood and Tamara Needles Sentencing: Jackie Wood and Tamara Needles Appeal: Arial Payan AIII/L.C'JMI. rJ I 9. AJ3j3±il-£ e£:..,.;& 1,6/'t>tltC.'::> "!""II T-ttC: ~ CGP A 'i-T . 'f'1. 3 3 GROUNDS I. MPts~"'~"' ~p 1 icant'sConviction Was Obtained In Violations Of The First, And Fourth Amendment's, Fifth, Sixth, Ninth, and Fourteenth Amendment's Right Of Due Process, And The Right To A Fair Trial Through The Inappropriate And ( 2) Professional Misconduct Of The Police, The Trial And Appellate Counsel, The Prosecutor, And The Trial Judge In Violations Of Texas Law, Federal Law, The American Bar Association, Model Rules Of Professional Conduct, And The Texas Code Of Judicial Conduct. II. ~~~~It Was Denied Effective Assistance Of Counsel Through Professional Misconduct, And The Failure Of Counsel To Conduct Sufficient Adversarial Testing Of Witnesses. A fPIBL.l-lwv r - C:riotJ> Appl±eant respectfully requests lieniency as to form and~ 1 ' rMvl;:l t.-\1/Vl I "!CD AVfii':'-J..II."'T' "\r..D cited case law. Applxcanl has -RE>- access to Texas Court Rules or ......... s Texas Case Law. All. case law in the F.C.I. Bastrop law library ~ Federal and Supreme Court law specific. 0\liER "ffi-A)ol- Pe~ .q1->D?J..I'I£.'i2, 1\.X:> ~E ""(fe>IZ. 'Rzv• DEC!> f$'-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== 1? t~tSMI% 10ia' 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;;J M'6'\.\..LIN1 ...-1-:, ~cr.~ • 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 •· •·'-..'[~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. '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:,. 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- :.(~:-: .- . ·._· 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'1.. ,_. Murder and other crimes; that Miller and Cook, police officers, and persons of public trust, and Graham had falsified their Grant time sheets and Miller and Cook falsified their police time sheets as well; that Miller admitted that he nor Cook had never read the Grant or any of the, approximately 100 Code of Federal Regulations that were mandated for NEPA review." (See Exhibit 5, 299th District Court Records, D-1-DC-13-904021-EXH-VOL027, page 359-363 and, Exhibit 2, June Monthly Report); that the Comptroller and the Department of Energy, the very people who managed the Grant and funds, had said there "was no evidence a crime had been committed"; that Applicant was physically on scene and visited with DOE auditors, Mike Guevara, and Justin Shepherd June 11, 2011 and personally showed them the connected electronics and installed alternator in the Wind Energy System at City Hall, and that Applicant and his company were actively engaged in the Grant process, and actively working with the Grantee, the City of Jonestown, and the DOE, to complete the grant, which still had over 82 days to go until the end of the contract, and that the Grant could have been extended up to ., .. _, '.,.,:" .... ... , ',',''," another year; that Carter did not personally observe Applicant's motorcycle in Mary Jo -~ . '.· -, ~ . Woodall's garage, but observed several motorcycles in the garage with no positive identification from over a block away, and the information she received from Miller and others was over a year old and stale; that Carter had almost a year to investigate the complaint but only took one ''i' day to do her surveillance on Woodall's home, and took no time to follow Applicant to see where he kept his motorcycle; that there were no exigent circumstances, that could have prevented Carter and Taylor from taking extra time, or requesting other assistance, to conduct a more thorough investigation in identifying the license numbers of the motorcycles parked at Woodall's, or simply waited the 82 days for the contract to expire, being they waited a year already, and at that time, found had nothing been done, and the subcontractor in default, they would then have probable cause for fraud, and they could have waited to submit their application · . Moll'i'i,sta.HE!i:lffi 51§ .93 until then; (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 Malouf! v. United States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate, Carter Transcript attachment). Taylor violated Texas Disciplinary Rules Of Professional Conduct Rnle 3.03 (a)(l), (C). The cumulative criminal conduct of Miller, Cook, and others, patently false and misleading statements, and material omissions, by these persons of public trust, including the prosecutor, would have caused a reasonable jurist to question the validity of the information without further investigation. 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). "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). The duty under Brady and the Rules of Professional Conduct applied. Giglio v United States, 405 U.S. 150, 154, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); Brady v. Maryland, 373 U.S. 83, S. Ct. 1194, 10 L. Ed. 2d 215 (1963); American Bar Association Model Rules of Professional Conduct; and Texas Disciplinary Rules Of Professional Conduct. - ._ ,.'. Although the state is obliged to prosecute with earnestness and vigor, it is as much its duty :'. . to refi"ain 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. Holly Taylor and Karen Sage overstepped their bounds of propriety and fairness. Berger v. United States, 295 U.S. 78, 88, 79 L. Ed. 1314, 55 S. Ct. 629 (1935). ~4s83.braHdtllil 57 &7 \'J -. Our Constitution places in the hands of the trial judge the responsibility for safeguarding the integrity of the jury trial. United States v. Bowen, No. 10·204, U.S. Dist. LEXIS 134434 (2013) WL., quoting United States v. Gainey, 380 U.S. 63, 68, 85 S. Ct. 754, 758, 13 LEd. 2d. 658 (1965). The trial court has inherent power to the extent necessary to deter, alleviate andcoun teract bad faith of the judicial process, this includes any reason the trial resulted in a miscarriage of justice. United States v. Scroggins, 379 F. 3d. 233 (5th Cir. 2004), vacated on other grounds, 534, U.S. 1112, 125 S. Ct. 1062, 160 L Ed. 2d. 1049 (2005). Had defense counsel and prosecutors not so flagrantly, and egregiously violated the Rules Of Professional Conduct, and the trial judge not so shamelessly violated the Rules Of Professional Conduct, and Judicial Canon Df Ethics, in this extraordinary case, in applying decisions that were an unreasonable ... application or contrary to clearly established Supreme Court law, there is a reasonable ' probability that the result of the proceeding would have been different, instead of an fundamentally unjust conviction. and sentence of 15 years (See Exhibit 1, Judgment of Conviction By Jury). United States v Schlup, 513 U.S., at 324, 115 S. Ct. 851, 130 L. Ed. 2d 808; United States v Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984); Strickland v Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Bell v Cone, 535 U. S. 685, 694-98, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002) ("The ultimate focus of the inquiry must be on the fundamental fairness of the proceeding whose result is being challenged"); Davis v Alaska, 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974) ("If counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process presumptively unreliable, and no specific showing of prejudice is required, because Applicant had been "denied the right of effective cross-examination" which is a constitutional error of the first magnitude and no amount of showing of want ofprejudice would cure it") Id., at 318, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (citing Smith v Illinois, 390 U.S. 129, 131, 19 L. Ed. 2d 956, 88 S. Ct. 748 (1968), and Brookhart v Janis, 384 U.S. 1, 3, 16 L. Ed. 2d 314, 86 S. Ct. 1245 (1966)); United States v Agurs, 427 U.S., at 110, 49 L. Ed. 2d 342, 96 S. Ct. 2392 ("prosecutorial misconduct should be evaluated not on the basis of culpability, but by . . its effect on the fairness of the trial"); If defense counsel's self-imposed "best friend" reliance qualifies for a conflict of interest, presumed prejudice applies. Culyer v Sullivan, 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980); Nix v Whiteside, 475, U.S. 157, 175, 106 S. Ct. 988, 89 L. Ed. 2d 123 (1986) (noting that under Strickland, the "benchmark" of the right to counsel is the ~'fairness of the adversary proceeding"); Kimmelman v Morrison, 477 U.S. 365, 374, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986) ("The essence of ineffective assistance claim that counsel's unprofessional enors so upset ' . ), i the adversarial balance between defense and prosecution that the trial was rendered unfair and . I. ' '.(' the verdict rendered suspect"); Murray v Carrier, 477 U.S. 478, 485, 106 s. Ct. 2639; 91 L. Ed. 2d (1986); Engle v Isaac, 456 U.S. 107, 129, 102 S. Ct. 1558, 71 L. Ed. 2d 7-83 (1982); Wainwright v Sykes, 433 U.S. 72, 87, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977); McCleskey v Zant, ···:· ... I 499 U.S. 467,494, IllS. Ct. 1454, 113 L. Ed. 2d 517 (1991). ·: . J (• Wherefore, Federal courts have the right to issue writs of habeas corpus based on state commitments; even .where state remedies have not been exhausted. In consideration of the totality of circumstances, and in the interest ofjustice, under the Due Process laws of the Fifth, Sixth, Ninth and Fourteenth Amendments to the Constitution, and in the prevention of the t .i furtherance of a miscarriage of justice, Applicant respectfully prays for injunctive relief, and moves the Honorable Court to VACATE the conviction and REMAND for a constitutionally valid fair trial, or any other relief deemed justified. . (. M6Hiel'afiffi:iffi 59 [,./ CLAIMS II. Applicant Was Denied Effective Assistance of Counsel Through Professional Misconduct And The Failure Of Counsel To Conduct Sufficient Adversarial Testing Of Witnesses. STANDARD OF REVIEW Petitioner's Application regarding this request, in the interest of justice, for extraordinary relief is associated with another extraordinary complex and complicated case already before the Court, Charlie Malouffv. United States, A-13-CV-S72LY (A-11-CR-647(1)-LY). The Fifth, Sixth, Ninth, and Fourteenth Amendment's to the Constitution guarantee to criminal defendants a right to due process and a f>~ir trial. The Sixth. Amendment guarantees to c I criminal defendants a right not only to counsel, but to the effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984) ("the right to counsel is the right to the effective assistance of counsel") (quoting McMann v. Richardson, 397 U.S. 7S9, 771, n. 14 (1970)). Pursuant to this constitutional mandate, a defendant is entitled to reasonably competent 1: . .. •'i" ~- .' and active assistance of counsel "at every critical stage of the proceedings against him." Childress v. Johnson, 103 F.3d 1221, 1226-1232 (CAS 1997) An ineffective assistance of counsel (lAC) allegation presented in a § 22S4 motion is ' ' properly analyzed under the two-prong analysis set forth in Strickland. United States v. Willis, 273 F.3d S92, S98 (CAS 2001) (held no procedural bar rule applicable to raising lAC claims under 28 U.S.C. Section 22S4, where claim is not based solely on record developed at trial). To prevail on a claim of lAC, a Movant must demonstrate counsel's performance was deficient, falling below an objective standard of reasonableness, and second, demonstrate that ·'. such deficiency caused him prejudice. Id. This means a Movant must show that counsel's ,· -· ., ' performance was outside the broad range of what is considered reasonable assistance and that M@~~a:aQy~ 6o ,. 6Z. . this deficient performance led to an unfair and unreliable conviction and sentence. United States v. Dovalina, 262 F.3d 472, 474 (CAS 2001). Constitutional Amendinents V and VI giv~ a suspect "a meaningful opportunity to present a complete defense ... " United States v. Scheffer, 523 U.S. 303, 329 (1998) (J. Stevens dissenting). "Few rights are more fundamental than that of an accused to present witnesses in his own defense ... " Taylor v. Illinois, 484 U.S. 400, 408 (1988). The Strickland analysis requires the district court to reweigh the evidence, and examine the . cumulative effect of the errors: In Strickland, we made clear that, to establish prejudice, a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence-in the outcome." In assessing prejudice, we reweigh the evidence ... !d. at 123 S. Ct. 2542. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the Court. United States v. Olano, 507 U.S. 725, 736, 123 L. Ed. 2d 508, 113 ,. ·' S. Ct. 1770 (993). Here we have three Officer's of the Court who made statements questioning the integrity " of the judicial process, and what they knew to be violations of the Rules of Professional Conduct, but failed to approach the Court, the Commission On Judicial Conduct, the American Bar Association, or the Texas Bar Association in accordance with the Model Rules Of Professional Conduct. The emails sent to the attorney's along with Counsel Payan's reply, on 03/21/2014 (see Exhibit 1, Judicial Misconduct) that "WE made" the statements is uncontroverted evidence supporting the materiality of error. Johnson v. United States, 520, U.S. 470, 137 L. Ed. 2d 718, 117 S. Ct. 1544 (1997). "The cumulative errors have seriously effected the fairness and integrity of the judicial proceedings." Id., at 469, 137, L. Ed. 2d 718, 117 S. Ct: 1544. · Mern6iitildanr 61 Under the Strickland standard, defendant must show that counsel's performance was objectively deficient and that prejudice resulted from that deficient performance. While courts are to give a certain deference to counsel's strategic decisions, courts are "not required to condone unreasonable decisions parading under the umbrella of strategy, or to fabricate tactical decisions on behalf of counsel when it appears on the face of the record that counsel made no strategic decision at all." Moore v. Johnson, 194 F.3d S86, 604 (CAS 1999); Richards v. Quarterman, S66 F.3d SS3, S64 (CAS 2009) (same). "Strickland's measure of deference 'must not be watered down into a disguised form of acquiescence."' Moore v. Johnson at 604. Defense against arbitrary law enforcement through the due process of the Fourteenth Amendment protects the Sixth Amendment right to confrontation. Duncan v. Louisiana, 391 U. S. 14S, 1S6, 20 L. Ed. 29, 491, 88 S. Ct. 1444 (1968). Sanders v. Ryder, 342 F.3d 991, 1000 (CA9 2003) describes the Strickland standard as follows: When we examine whether trial counsel gave effective assistance, we examine all aspects of counsel's performance at different stages, from pretrial proceedings through trial and sentencing. United States v. Leonti, 326 F.3d 1111, 1116-17 (9th Cir. 2003). Separate errors by counsel at trial and at sentencing should be analyzed together to see whether their cumulativeeffect deprived·the defendant ofhis right to effective assistance of counsel. See Villafuerte vs. Stewart, 111 F.3d 616, 632 (9th cir. 1997); Cooper v. Fitzharris, S86 F.2d 132S, 1333 (9th Cir. 1978). They are, in other words, not separate claims, but rather different aspects of a single claim of ineffective assistance of counsel. Cargle v. Mullin, 317 F.3d 1196, 1212 (CA10 2003), describes the Strickland analysis as follows: However, our decision to grant relief on ineffective assistance grounds is a function of the prejudice flowing from all of counsel's deficient performance, as Strickland directs it to be. See Strickland, 466 U.S. at 694-96, 104 S. Ct. 20S2 (repeatedly stating prejudice inquiry in aggregate terms of reasonable probability counsel's errors affected outcome of proceeding; see Fisher 282 F.3d at 1307-1311 (assessing prejudice from counsel's numerous shortcomings and omissions," and holding "these errors" had a "devastating impact on the defense."); Turner v. Duncan; 1S8 F.3d 449, .4S7 (9th Cir. 1998) ("it is appropriate to consider the cumulative impact of counsel's errors in assessing prejudice). -~1em5IttHtittnl- 62 }1 The overarching test for effective assistance of counsel is whether the defendant's attorney subjected the prosecution's case to meaningful adversarhil testing. Strickland 466 U.S. at 686 ("The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result."). The right to effective assistance of counsel is thus the· right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted - even if defense counsel may have made demonstrable errors - the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated. The premise of the adversarial system in which the defen,dant has an effective advocate for his side "underlies and gives meaning to the Sixth amendment. It is meant to ensure fairness in the adversary criminal process. Unless the accused receives effective assistance of counsel, a serious risk of injustice infects the trial itself." 1d. At 655: ARGUMENT In determining whether a defendant has received the effective assistance of counsel, courts look to "prevailing norms of practiceas reflected in American Bar Association (ABA) standards and the like," as guides "to determining what. is reasonable, but they are only guides." Strickland, Supra, 466 U.S. at 688. With respect to advising a client, "A lawyer should exert his best efforts to ensure that decisions of his client• are made only after the client has been informed of relevant considerations." ABA· Model ·Code. of· Professional Responsibility, Ethical Considerations 7-8 (1983); ABA Standards for Criminal'Justice: Defense Function 4-5.l(a) (3rd Ed. 1993) ("After informing himself or herself fully on the facts and law, defense counsel should advise the accused with complete candor concerning all aspects of the case, including a candid assessment of the probable outcome." The trial court has inherent power to the extent necessary to deter, alleviate and counteract bad faith of the judicial process, this includes any reason the trial resulted in a miscaniage of Msmeraaiilam 63 ,~;r justice. United States v. Scroggins, 379 F. 3d. 233 (5th Cir. 2004), vacated on other grounds, 534, U.S. 1112, 125 S. Ct. 1062, 160 L Ed. 2d. 1049 (2005). Had defense counsel and prosecutors not so flagrantly, and egregiously violated the Rules Of Professional Conduct, and the trial judge not so shamelessly violated the Rules· Of Professional Conduct, and Judicial Canon Of Ethics, in this extraordinary case, in applying decisions that were an unreasonable application or contrary to clearly established Supreme Court law, there is a reasonable probability that the result of the proceeding would have been different, instead of an fundamentally unjust conviction and sentence of 15 years (See Exhibit 1, Judgment of Conviction By Jury). United States v Schlup, 513 U.S., at 324, 115 S. Ct. 851, 130 L. Ed. 2d 808; United States v Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984); Strickland v Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Bell v ·~··,.-:. Cone, 535 U. S. 685, 694-98, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002) ("The ultimate focus of the inquiry must be on the fundamental fairness of the proceeding whose result is being challenged"); Davis v Alaska, 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974) ("'f counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process presumptively unreliable, and no specific showing ofprejudice is required, because Applicant had been "denied the right of effective cross-examination" which is a constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it") Id., at 318, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (citing Smith v Illinois, 390 U.S. 129, 131: 19 L. Ed. 2d 956, 88 S. Ct. 748 (1968), and Brookhart v Janis, 384 U.S. 1, 3, 16 L. Ed. 2d 314, 86 S. Ct. 1245 (1966)); United States v Agurs, 427 U.S., at 110, 49 L. Ed. 2d 342, 96 S. Ct. 2392 ("prosecutorial misconduct should be evaluated not on the basis of culpability, but by its effect on the fairness of the trial"); If defense counsel's self-imposed "best friend" reliance qualifies for a conflict of interest, presumed Ml\lmefiffiffilffi: 64 (;/I prejudice applies. Culyer v Sullivan, 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980); Nix v Whiteside, 475, U.S. 157, 175, 106 S. Ct. 988, 89 L. Ed. 2d 123 (1986) (noting that under Strickland, the "benchmark" of the right to counsel is the ''fairness of the adversary proceeding"); Kimmelman v Morrison, 477 U.S. 365, 374, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986) ("The es'sence of ineffective assistance claim that .counsel's unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect"); Murray v Carrier, 477 U.S. 478, 485, 106 s. Ct. 2639, 91 L. Ed. 2d (1986); Engle v Isaac, 456 U.S. 107, 129, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982); Wainwright v Sykes, 433 U.S. 72, 87, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977); McCleskey v Zant, 499 U.S. 467, 494, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991). :· 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 ·::· '·'· 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 Franks, Justice Blackmun recognized that a warrant could be invalidated if "a false statement is necessary to the finding of probable cause." After determining Travis County .·,:· - - ., District Attorney Investigator Lori Carter had made patently false statements and mislead the magistrate in statements and material omissions, in at least one portion of the search warrant affidavit, Sage should have granted a Frank's hearing. Taylor failure in candor to the tribunal also deprived Applicant of further demonstration of the necessity of a Frank's hearing. Brady trumps work product doctrine. Carter stated in her Juiy 15'\ 2011 Supplemental Report, Chief Stetar-Observations, she and ADA Holly Taylor were out gathering evidence and · ~iemCn ftHdttlil: 65. Cl "investigating" before they had any meaningful probable cause. From that point on, Holly Taylor left her role as a prosecutor and entered the role of "investigator" gathering evidence and providing legal advice to Carter. From that point on, Taylor herself was subject to cross- examination, and all of Taylor's notes, reports, recordings and other instruments used in gathering evidence and interviewing witnesses containing exculpatory evidence are subject to disclosure. Brady v. Maryland, 373 U.S. 83, S. Ct. 1194, 10 L. Ed. 2d 215 (1963). In Defendants Brief In Support Of A Court Finding Of Brady Violations, August 23, 2013 (see Clerks Record D-1-DC-13-904021_395, pages 244-249), Taylor continued to violate Applicants Fifth Amendment rights in violation of the Texas Disciplinary Rules Of Professional Conduct Rule 3.03 (a)(l), (C). The prosecutors who presented Carter and the application for the search and arrest warrants to Magistrate Judge Brown for his consideration, had the duty of candor to the tribunal, as prosecutors may not "in an ex parte proceeding, fail to disclose to the tribunal an unprivileged fact for which the lawyer reasonably believes should be known by that entity for it to make an informed decision." Holly Taylor violated the Texas Disciplinary Rules Of Professional Conduct Rule 3.03(a)(3)(c)(d),(g)(l),(h), and Lori Carter failed in her responsibilities, when they failed to inform the magistrate the information they were providing him, regarding an email dated 8129/2008 between Applicant and his "employees" (who were then students involved in a one day a week, Senior Design class project, at the University of Texas), Professor Ron Stearman, at home and at school, and Dana McCoy, and copied to Woodall, at the State Energy Conservation Office, stating "Guys, I will be doing some traveling in the immediate future (to rural Mexico with no phone or internet access). Should I not be around and you have something that needs addressing, please call Mary Jo direct at 512-826-5271. She knows exactly where we are, what I!we need, when and knows the whole complete picture. Her decisions are as good as mine." MemeFaH41iffi 66 &if> (See Exhibit 5, 299th District Court Records, D-1-DC-13-904021~EXH-VOL027, page 359- 363). The materially omitted part was the email was part of a three page email preceding it that started on 8/27/2008 at 3:40pm from Applicant to Richard Thompson, Project Manager, University of Texas Center for ElectroMechanics (CEM), and copied to Mary Jo Rowan; Todays Results Thank you for coming out to the turbine. Wind speed 15 mph; shaft 3.5"; 22 rpm; 48116 on the torque Followed by a direct email at 4:03pm from Thompson to CEM engineer, Brian Murphy; Please verify the produced power. I get 16 watts. Use my numbers below not Charlie's Followed by the forward at 4:41pm from Richard Thompson to Applicant and cc'd to CEM engineer, Brian Murphy; Please send me more data as it becomes available. For the numbers you wrote down for me, the generated power is 16 watts. This number will scale up linearly with increase wind turbine height, with increasing wind turbine diameter. This will go up exponentially with speed. Another important number is calculated wind turbine efficiency. Usually for VAXT this is in the range of 20% to 30%. Richard Followed by a direct email at 4:32pm from Murphy to Thompson; That's what I got. 16.4 watts . Followed by an email on 8/28/2008 at 0824 am, from Applicant to Mary Jo Rowan; Today's Results Per our conversation after this email. We have in the works a drive system that will multiply this figure by 80. This is low wind at 15 mph. The drive starts at 7.1 mph with resistance. This system can work individually or in series with another. This is16.4 watts per '. minute. Multiply that by 80 once we get new drive finalized. Figure 60 minutes per hour and MeHter!Hldtufi 67 h't using a 3 hour day calculation to work off of. I also figured 345 days per year allowing for no wind days. This will allow us +1- adjustments that should be close to accurate. Anything above that I will consider gravy. Charlie Malouff CM Energies Carter and Taylor omitted it was clear this was in the company's earliest stages of study and testing, and that Thompson and Murphy, who McCoy, Stearman, and the students had no idea of their roles or requests, were clearly interested in the technology and developments, and they were requiring more information as it became readily available. McCoy knew this was different business circumstances, that was temporary, arid related to Key Man issues that related .,., to a legal entity that just began university senior level class projects on studying the validity and feasibility of a new Vertical Axis Wind Turbine and the Company and professor would have been without anyone who knew what was happening with legal matters (Company's relationship to the University and as a corporation), when Applicant had to go to Mexico on short notice for four days, to an area where criminal activity of kidnappings and murder were at a high. This stale and irrelevant information was taken out of context and made to look like Mary Jo's . ,--, relationship with CM Energies was more than what it was. A reasonably trained investigator with common sense would have also recognized this after reading the related emails. : e. r,--. Dana McCoy, Applicant's daughter and president of the Company, knew this. McCoy kne~, through discussion of the problem with her and her just getting started in learning the business and her lack of knowledge of the industry along with the status of the study and testing stages at the University·of Texas, and with the approval of the company General Counsel, Mike '.i: Guevara, since there was no one qualified at that time, to assume authority to give direction and status of the company's immediate standing and project status in the event of tragic accident. MeffiOFaHEIHHf 68 . ·1/l McCoy, Carter and Taylor knew there were many transformations in organizational structure, and business operations, and this information was over one year old, inapplicable, and stale information, and Taylor and Carter failed to inform the magistrate of these material facts. Taylor and Carter had the obligation to inform the magistrate the Grant was a cost reimbursement grant, and the Grantee, the City of Jonestown, was. not allowed to profit any funds, but to receive the funds and pass the funds on to the appropriate sub-contractors to pe1form the work required in the contracted Deliverables, and the money was appropriately spent and documented; that the American Reinvestment and Recovery Act, ARRA, Stimulus Grants were to create jobs and stimulate the economy and that the sub-contractors to the grantees, for all of the award.ed grants were not only allowed, but encouraged to make a profit, and this was not only publicized on the Department of Energy and Comptroller websites, but the President of the United States made these assertions on national TV in support of the Act; that Miller was under ',.·.' investigation for: Falsifying time sheets on the Grant, falsifying his County time sheets, falsifying the time sheets of others; Providing the submissions Miller accused Applicant of falsifying to permitting agencies only to have them rejected because they were patently wrong and not in compliance with Grant requirements; That Miller, Thomas and Knapek were suspects in Theft of Trade Secrets, the Destruction of a Federally Funded Energy Project, lt:tdustrial Espionage in the theft of a laptop used for the Project that contained confidential and proprietary information that could be used by a competitor for economic gain, Attempted Murder and other crimes; That Miller and Cook and Graham had falsified their Grant time sheets and Miller and Cook falsified ··r: their police time sheets as well; that Miller admitted that he nor Cook had never read the Grant or any of the Code of Federal Regulations that were mandated for NEPA review; That the submission packets Miller and Cook submitted were rejected by the permitting agencies because Mememmdnm 6'il "]( they were done wrong and not in compliance with NEPA, or the Grant, or the contract with the City of Jonestown; That the Comptroller and the Department of Energy had said there was no evidence a crime had been committed; That Applicant and his company were actively engaged in the Grant process, and actively working with the Grantee, the City of Jonestown, to complete the grant, which still had over 80 days to go until the end of the contract, but could have been extended up to another year; That Carter did not personally observe Applicant's motorcycle in Mary Jo Woodall's garage, but observed several motorcycles in the garage with no positive identification from over a block away, and the information she received from Miller and others was over a year old and stale. Applicant spent over 20 of 29 honorable years in law enforcement attending and teaching similar courses, and the very subject matter Carter claims to have been trained in. (See Exhibit 1, Charlie Malouff Resume). There were no drugs or guns or danger of fire or bodily injury, other ' . -, " - ~ ' . ·' than what Carter might have induced, in this white collar case, where the money had been spent seven (7) months prior, and her primary suspect was actively engaged in both the business and trying to solve several Federal crimes, where Carter and Taylor could claim any sense of "exigency". "Impending departure does not create an immediacy, necessity or urgency." United States v Thompson, 700 F. 2d 944 (5 1h Cir. 1983). The Supreme Court stated, "Circumstances qualify as "exigent" when there is an imminent risk of death, or seii.ous injury, or danger that evidence will be immediately destroyed.'' Brigham City v Stewart, 547 U.S. 398, 403, 126 S. Ct. ~.-. 1943, 164 L. Ed. 2d 650 (2006). The only "exigent circumstance" was Carter, Miller and Taylor's . malicious , selective, and vindictive conduct to keep the Grant from completion, and ~ retaliate against Applicant under the color of authority. Carter had almost a year to investigate the complaint and only took one day to do her surveillance on Woodall's home, but took no time to follow Applicant to see where he kept his motorcycle, or that there were no exigent MeffieraHEIHHi ?Q 71- circumstances, as claimed by Carter, but defined by the courts, that could have prevented Carter and Taylor from takin& extra time, or requesting other assistance, to conduct a more thorough investigation in identifying the license numbers of the motorcycles parked at Woodall's, and verifying or distinguishing the truth in all of the hearsay, assumptions, beliefs, and personal opinions without factual basis provided by her "witnesses" and Carter and Taylor could have waited to submit their application until then. United States v Watts, 329 F. 3d 1282 (5th Cir. 2003); United States v Jacobsen, 466 U.S. 109, 104 S. Ct. 1652, 1657, 80 L. Ed. 2d 85 (1984); Byers v United States, 273 U.S. 28, 47 S. Ct. 248, 248, 71 L. Ed. 520 (1927); Thompson v Louisiana, 469 U.S. 17, !05 S. Ct. 409, 410, 83 L. Ed. 2d 246 (1984); Katz v United States, 389 U.S. 347, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576 (1967); United States v Ross, 456 U.S. 798, !02 S. Ct. 2157, 2173, 72 L. Ed. 2d 572 (1982); O'Connor v Ortega, 480 U.S. 709, 107 S. Ct. 1452, . '. 1499, 94 L. Ed. 2d 714 (1987); Colorado v Bertine, 479 U.S. 367, 107 S. Ct. 738, 93 L. Ed. 2d · 739 (1987); Schneckloth v Bustamante, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 91973); . I Coolidge v New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); Chambers v Maroney, 399 U.S. 42, 90S. Ct. 1975, 26 L. Ed. 2d 419 (1970); Chime/ v California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). (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 Malouf! v. United States, A-13-CV- 572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate, Carter Transcript attachment). ' The cumulative material patently false and misleading statements and material omissions, would have caused a reasonable jurist to question the validity of the information without further investigation. The duty under Brady applied. Giglio v United States, 405 U.S. 150, 154, 92 S. . ,-.·-· :I' Ct. 763, 31 L. Ed. 2d 104 (1972); Brady v. Maryland, 373 U.S. 83, S. Ct. 1194, lO L. Ed. 2d 215 (1963). Had they been candor with the magistrate and the tribunal there is a reasonable ~luitot aitdtifti71 probability the proceeding would have been different from the very beginning as each stage of their investigation was an unreasonable application of clearly established Supreme Court law. In a criminal prosecution is not that it shall win, but that justice shall be done. Holly Taylor overstepped her bounds of propriety and fairness. Bergerv. United States, 295 U.S. 78, 88, 79 L. Ed. 1314, 55 S. Ct. 629 (1935). Our Constitution places in the hands of the trial judge the responsibility for safeguarding the integ1ity of the jury trial. United States v. Bowen, No. 10-204, U.S. Dist. LEXIS 134434 (2013) WL., quoting United States v. Gainey, 380 U.S. 63, 68, 85 S. Ct. 754, 758, 13 LEd. 2d. 658 (1965). The trial court has inherent power to the extent necessary to deter, alleviate and counteract bad faith of the judicial process, this includes any reason the trial resulted in a miscarriage of justice. United States v. Scroggins, 379 F. 3d. 233 (5th Cir. 2004), vacated on other grounds, 534, U.S. 1112, 125 S. Ct. 1062, 160 LEd. 2d. 1049 (2005). 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. "Motives and consequences, not '";( formalities are the keys for determining whether a public official entered an agreement to accept a bribe, and the trier of fact is "quite capable of deciding the intent with which words were spoken or actions taken aw well as the reasonable construction given to them by the official and payor." United States v Evans, 504 U.S. 255, 274, 112 S. Ct. 1881, 119 L. Ed. 2d 57 (1992); United States v Whitfield, 590 F. 3d 325, 348-54 (5th Cir. 2009). In Whitfield two state judges argued the loan guarantees they received were made in the context of their electoral campaigns, and thus required special protection, but the court upheld a finding the payments were bribes. !d., 590 F. 3d at 353. Here, we have three independent Officers Of The Court, and one of them ."' ,· Mfiffi;;1fffim 72 being her "best friend" making statements, that under the Rules Of Professional Conduct, have to be taken as true, that Sage made " ... decisions for political contributions and votes." (See Exhibit 1, Judicial Misconduct and Austin American Statesman news articles) "Through promises to improperly employ his public influence, he has accepted ·his bribe." United States v Abbey, 560 F. 3d at 513, 520 (6'h Cir. 2009). The donor supports the candidate's election for all manner of possible reasons. See Buckley v. Valeo, 424 U.S. 1, 21, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976). Canon I of the Texas Code of Judicial Conduct states, "A judge should maintain and enforce high standards of conduct and personally observe those standards to preserve the integrity ofthe judiciary." The Texas Code of Judicial Conduct, Canon 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, (5)" A judge shall perform judicial duties without bias or prejudice." · Travis County 299th District Court Judge Karen Sage violated the Canon's of Judicial Ethics and Applicant's due process, because she had a personal and financial interest in the outcome of the case. (See Exhibit 1, Judicial Misconduct and photos of Sage's political candidate i ;•. website). '\ .. Statements, made by three independent Officers of the Court, regulated by the American Bar Association Rules of Professional Conduct, and the Texas Disciplinary Rules of Professional Conduct, can only be taken as true and support Sage's violations of Code of Judicial Conduct Canon 2: Avoiding Impropriety and the Appearance of Impropriety in All of the Judge's Activities (A) "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"; (B) "A judge shall Meitrotatldtint73 7 -:7·. not lend the prestige of judicial office to advance private interests of the judge or others"; Canon 3: Performing the Duties of Judicial Office hnpartially and Diligently (B)(2) "A judge should be faithful to the law and shall maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor, or fear of criticism"; Canon 4: Conducting the Judge's Extra-Judicial Activities to Minimize the Risk of Conflict with Judicial Obligations (A) Extra- Judicial Activities in General. A judge shall conduct all of the judges extrajudicial activities so . they do not: (1) "cast reasonable doubt on the judge's capacity to act impartially as a judge" and Canon 5: Refraining from Inappropriate Political Activity (1) "A judge orjudicial 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." --,,·. Sage's decisions to deny Frank's, mistrial, dismissal, and selective and vindictive prosecution motions after hearing. testimony of persons of public trust aqmit to violating the Constitution, Professional Rules of Conduct, and state and Federal laws are contrary to and involved an objectively unreasonable application of clearly established state and federal laws as determined by both Supreme Courts and the Constitutions of both Texas and the United States . . ... · Three independent Officers of the Court made statement's and observations that the trial judge, Karen Sage, was first clearly going to make decisions in favor of her "best friend" only to find out from that "best friend" Sage was concerned with getting political support from the local Democratic Party for her upcoming re-election only weeks away and by her decisions (See Exhibit 1, Judicial Misconduct web site photos), were obvious! y contradictory to the "understanding" of the trial counsel. This demonstration of their cumulative improper conduct, actuated by Sage's instinct of political survival, was not in the interests ofjustice. Henderson v. M_emeftl.fl:tittni 74 Perry, 399 F. Supp. 2d. 756, June 9, 2005 (Dist. Ct. 5th Cir) "A judge will, however, violate a defendant's due process rights if he (she) is biased against the defendant, or has an interest in the outcome of the case. Personal reward of getting votes and campaign contributions for re- election is having an "interest" in the case. According to the Texas Disciplinary Rules of Conduct, Rule 8.02, "A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualification or integrity of a judge." Rule 8.2 "Solely proscribes false or reckless statements questioning judicial qualifications or integrity." United States v. Nolen, 172 F. 3d. 362 (5th & 11th Cir. Dec. 2006). Applicant does not believe any of the three attorneys made those statements falsely or recklessly, therefore they must be taken as true. As such, judicial integrity over the fairness of Applicant's trial, and the eventual plea bargain agreement of Mary J o Woodall, based on the totality of circumstances of Applicant's trial, and Sages re- election, she would not have gotten a fair trial, is at issue because Mary J o Woodall never gave Applicant insider information, or provided Applicant with information that was not authorized by policy or law (See Exhibit 5, 299th District Court Records, D-l-DC-13-904021-EXH-VOL 12, Pam Groce testimony where she testified "I could have helped him write it" pages 22-23). -:· ,. The employees, including supervisors, of the Texas Comptroller, State Energy Office, all said Mary Jo was doing her job as proscribed by policy and law and there were numerous measures in place to detect any fraud or wrongdoing. (See ExhibitS, 299th District Court Records, D-1-DC- 13-904021-EXH-VOLUMES 23, 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)-LY) statement of Lisa Elledge). Not to mention, Martin Cano, the Chief of Enforcement for the Investigations Division, testified HE, along with an IT person, searched Mary Jo's work computer and a personal USB, in July, 2011 right after Taylor, functioning as an .• MemeratiE!Hffi 15 71 "investigator" and Carter, were informed Miller was a suspect in multiple felonies, and gave it all back to Mary Jo and allowed her to continue working because· there was "no evidence of wrongdoing", months before the application of the search warrant. Carter admits part of this in her Affidavit for Search Warrant, but omits the material and significant "no evidence of wrongdoing", again misleading the magistrate. The trial court heard the miginal complaint was filed by a Travis County Sheriffs Deputy who stood to lose his career if they were found involved in the criminal conduct noted above, and other police officers who also stood to lose his career if they were found involved in the criminal conduct noted above, their friends. It heard testimony and was presented evidence, the DA, investigators, Mayor, all furthered the efforts to cover over the investigation and avoid scrutiny by making patently false statements, omitting extensive material information and misleading the magistrate regarding Applicant, thus deflecting the initial investigation and suspending further investigation. Further evidence of Police Misconduct comes short! y after .the arrest of Applicant in the bad faith actions of the City of Jonestown and the Travis County ' District Attorney, in failing to preserve exculpatory evidence directly related to the predicate fraud crime, in the subsequent. destruction of the crime scene, the removal of the Wind Energy Systems at the Jonestown City Hall, the Waste Water Treatment Plant, and the CM Energies Wind Energy System located at its manufacturing facility, in the City of Taylor, Texas, '., •. approximately 35 miles away (See Exhibit 5, 299th District Court R«cords, 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)-LY) 2255 Motion to Vacate, Carter Transcript attachment, and Exhibit 1, City of Jonestown City Council Agenda's and Minutes). Bullock v. Carver, 297 F.3d 1036, 1056 (lOth Cir. 2002); Bohl, 25 F.3d at 909, 910; Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S. Ct. 333, 102 L. Ed. 2d Melfier!lfiffiiffi 7€! 7& .. ,,·. 281 (1988); California v. Trombetta, 467 U.S. 479, 488, 104 S. Ct. 2528 81 L. Ed. 2d 413 (1984). These acts protected the suspects, numerous memb rs of the Jonestown government, and the Allen's, personal friends of the Mayor. The trial court heard evidence the above mentioned conspirators all knew that Applicant was an honorably retir d officer with 29 years of experience in just such investigations. They reasonably expected th t with Applicant's background, any illegal activities they had engaged in would come to light. While the doctrine of separation of powers in a onstitutional scheme of government prohibit free judicial interference in the exercise of discreti nary powers of attorney's in criminal prosecutions, the judiciary has always borne the basic resrnsibility- for protecting individual's against unconstitutional invasions of their rights by the G vemment. United States v Johnson, 577 F. 2d. 1304, 1308 (5th Cir 1978); United States v Fal , 479 F.2d. 616, 624 (7th Cir. 1965), -' . quoting Stamler v Willis, 415 F 2d. 1365, 1369-70 (7th Cir. 1969), cert. denied sub. nom., !chord v Stamler, 399 U.S. 929, 90S. Ct. 2231, 26 L. Ed. 2d. 79 (1970). United States v Butler, 297 U.S. 1, 62-63, 56 S. Ct. 312, 80 L. Ed. 477 (1936); Marbu v Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803); Calder v Ball3 U.S. (3 Dall.) 386, 1 L. d. 648 (1798). See also A. Hamilton, Federalist Paper No. 78, reprinted in Cook( e) (ed.) The Fe; eralist 521, 524-25 (1961). This case falls into that rare situation in which the decision to prose ute was so abusive of this discretion ' '''' "( .:q I '' ' . -,' f because it encroached on Constitutional!~ protected rights ~d the judiciary must protect against . ...... ... ·. .... ... .. .. I . unconstitutional deprivations, not tum a blind eye for politifal favoritism . . Our Constitution places in the hands of the • ~rlaljud~e the responsibility for safeguarding , I the integrity of the jury trial. United States v. Bo;en, 20/13 U.S. DIST. LEXIS 134434 (Sept. . . .. ., • . I 2013) quoting United States v. Gainey, 380 U.S. 63, 68, ~5 ' S. Ct. 754, 758, 13 L Ed. 2d. 658 i . I I (1965). Under the Due Process clause of the Constitution, the accused in any criminal trail is · guaranteed the right to a fair and impartial tribunal. Nethery v. Collins, 993 F. 2d 1154, 1157 (5th Cir. 1993); In re Murchison, 349, U.S. 133, 136, 75 S. Ct 623, 99 L. Ed. 942 (1955); Bracy v. Gramley, 520 U.S. 899, 905, 117 S. Ct. 1793, 138 L. Ed. 2d 97 (1997) According to the Texas Disciplinary Rnles of Conduct, Rule 8.02· "A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualification or integrity of a judge." Rule 8.02 "Solely proscribes false or reckless statements questioning judicial qualifications or integrity." United States v. Nolen, 172 F. 3d. 362 (5th & lith Cir. Dec. 2006). The trial court has inherent power to the extent necessary to deter, alleviate and counteract bad faith of the judicial process, this includes any reason the trial resulted in a miscarriage of justice. United States v. Scroggins, 379 F. 3d. 233 (5th Cir. 2004), vacated on other grounds, 534; U.S. 1112, 125 S. Ct. 1062, 160 LEd. 2d. 1049 (2005). A "district court is obliged to take measures against unethical conduct occurring in ' connection with any proceeding before it." In re ProEducation Int'l, Inc., 587 F. 3d 296, 299- 300 (5th Cir. 2009). The Fifth Circuit has recognized the ABA Model Rules of Professional Conduct are the "national standard." In re ProEducation Int'l., 587 E 3d at 299. The Supreme Court of the United States has found decision makers are constitutionally unacceptable only when the decision maker has a direct personal, substantial, and pecuniary --,·. :o··. • ·' ·, interest in the outcome of the case. Baran v. Port of Beaumont, 57, F. 3d 436, 444 (5th Cir. 1995). "The Due Process Clause clearly requires a fair trial in a fair tribunal before a judge with no actual bias against the defendant or interest in the outcome of his particular case. " Bracy v. Metnm aiidu.tn 9 8 Gramley, 520, U.S. 899, 904-05, 117 S. Ct. 1793, 138 L. Ed. 2d 97 (1997); Buntion, 524 F.3d at 672; Samual v Warden, Avoyelles Corr. Ctr., 51 Fed. Appx. 483 (5th Cir. 2002). Multiple statements by three independent Officers of the Court regarding the trial judges decisions made in relation to her direct, personal and substantial pecuniary interest in her upcoming fund raising kick-off event and re-election only months away at the time of her decisions, clearly establishes "genuine questions concerning the judge's impartiality." Not only is this conduct unacceptable, but "our system of law has always endeavored to prevent even the probability of unfairness." Withrow v. Larkin, 411 U.S. 564, 579, :36 L. Ed. 2d 488, 93, S. Ct. 1689 (1973); In re Murchison, supra, at 136, 99 L. Ed. 942, 75 S. Ct. 623; Tumey v. Ohio, 273 U.S. 510, 523, 47 S. Ct. 437, 441, 71 L. Ed. 749 (1927); Liteky v. United States, 510 U.S. 540, 552, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994), and giving rise, based on the front page publicity ' .. by the Austin American Statesman throughout the course of the trial,. to the public perceptions of judicial integrity. Liljeberg, 486 U.S. at 865 n. 12, 108 S. Ct. at 2205 n. 12, 100 L. Ed. 2d at 875 n; Walberg v Israel, 766 F. 2d 1071 (7th Cir.), cert. denied, 474 U.S. 1013, 106 S. Ct. 546, 88 L. Ed. 2d 475 (1985). This appearance of impropriety has risen to the level of afundamental defect resulting in a complete miscarriage of justice. United States v. Couch, 896 F. 2d 78, 81 (5th Cir. 1990). "Justice must satisfy the appearance of justice." United States v. Diaz, 797 F. 2d 99 (2nd Cir. 1986), later app., 834 F. 2d 287 (2nd Cir. 1987), cert denied, 488 U.S. 818, 109 S. Ct. 57, 102 L. Ed. 2d 35 (1988). Violating Texas Disciplinary Rule of Professional Conduct Rule 8.03 (a) "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 lawyer's honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate disciplinary authority, and failure to do so ~ 8"/ when notified of the infraction by Appellate Counsel, Ariel Payan, who's wife works for the District Attorney, and who are personal friends with the prosecutor and her husband, in an already egregiously saturated case of attorney, prosecutor, and judiCial misconduct, has put the honesty, trustworthiness, and integrity of any meaningful appeal in jeopardy, and in this extraordinary case, reeks of the furtherance ofmore miscarriage ofjustice. According to the Board of Directors of the ·State Bar of Texas, Model Rules of Professional Conduct Rule 8.3 (1983), "A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question of that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate authority. Clemons v McNamee, U.S. Dist. LEXIS 36916, May 2008 (5th Cir.); 2012 Bankr LEXIS 2306, In Re Jarvis Adventure Bldg., LLC., May 2012 (5th Cir). Appellate Counsel, Ariel Payan, in an email dated 03/21114, stating ...... "Also I think you are misconstruing what WE told you about the "political" nature of the rulings on certain on your motions ... " admitting the attorneys did make the statements. It's not the after effect "out of context" but the, at-the-time, ( and circumstances, and the fact that they made them that is relevant. (See Exhibit 1, Judicial Misconduct email to Payan dated 5/26114). As a client, Applicant must be able to trust that his lawyer(s) will provide faithful and zealous representation. Howell v. State Bar of Texas, 843 F. 2d. 205, 1988 (5th Cir.). Failing to follow the clients orders to adversarially cross-examine prosecution witnesses, and having several material and exculpatory witnesses readily standing by to testify, then making a decision ., . to· rest without putting on a defense in such a high profile case, that made the front page of the papers daily, and that was inundated with police misconduct, selective prosecution, constitutional and civil rights violations because the lawyer(s), one of them being the "best friend" of the trail judge, believe the judge "has her back," who, unless was previously told so by that judge, would Meffiorafltltiffi 88 $l-- have no way to know how the judge's ruling could go, but made such a strong showing in the confidynce of that belief, shows a complete disregard for a clients welfare. That irresponsible and unethical conduct is not trail strategy. Especially when the judge, who personally witnesses the prosecution committing multiple and ongoing Brady violations, "reviewed all documents and records as well," listen's to arguments and the testimonies of the Government agents, in and out of the presence of the jury, admitting to multiple felonies, including the willful and intentional destruction of evidence that was unique and the most exonerating to Applicant, by the prosecution team, and other Constitutional and civil rights violations, and who continues to not stop the trial, except to go teach an ethics and integrity class at the University of Texas Law School, but rules against Applicant in motions that have clearly provided legal sufficiency in their claims, and there is still time to present the defense. Applicant was denied effective assistance of counsel through the failure of Counsel to conduct sufficient adversarial testing on witnesses who testified against him, and the failure to call exculpatory witnesses on behalf of the defense. As a result of trial counsel's expectation of favorable decisions from her "best friend", the trial judge, Applicant was denied effective assistance of counsel:through the failure of Counsel to conduct sufficient adversarial testing adversarial testing of: Travis County District Attorney Investigator, L6ri Carter, who admitted to violating Applicant's Miranda under oath, and who should have been tested her violation was not just questioning after Applicant invoked his right to remain· silent; but elicited statements through coercive threats, threatening to blow up the safes in a manor that lead Applicant to believe Mary Jo Woodall and her 10 year old grandson would be subjected to serious bodily injury. Travis County District Attorney Investigator, Lori Carter, testified she gave the SWAT Teams executing the warrants all of the floor plans and information regarding the occupants of Memartm:dttnt 81 · &;:}? the residences, and that Lori Carter had no clue that Mary Jo Woodall's 10 year old grandson was not at her residence, where he stayed over regularly to catch his school bus that stopped right in front of her house. And, Lori Carter, knowingly and intentionally, told the Williamson County SWAT Team the room they fire bombed with flash bangs, and caused $30,000 damage to, was the child's room. (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)- L Y) 2255 Motion to Vacate, Carter Transcript attachment). Travis County Dist1ict Attorney Investigator, Lori Carter, in regards to the search warrant and resulting evidence revolving around an investigation begun prior to this case; former CM Alternative Energies, Inc., employees Toby Miller, Dana McCoy, Michelle Cook, John Karlson, Eric Graham, Justin Shepherd, Paul Kuwumura, Aaron Knapek; Texas Comptroller employees, Pam Groce, Dub Taylor and Lisa Elledge; Assistant District Attorney Holly Taylor, who was functioning as an "investigator" after July 15th 2011, Jonestown Police Chief, John Stetar, and Jonestown Mayor, Deane Armstrong, DOE OIG Special Agent Rosemary Peterson, (see Charlie Malouf! v. United States, A-13-CV-572LY (A-11-CR-647(1)-LY} attached Jonestown Police Reports and Exhibit 2, related emails and photos) and DOE Program overseer's Barbara Alderson and David Boron.; And, exculpatory defense witnesses, Howard Reed, and Dan Dodson, who were readily available to testify but were never called because of the expectation of counsel's "best friend" to simply rule in her favor. (See Exhibit 1, Howard Reed Affidavit). Carter and Taylor misleadingly assert Miller first reported as a "concerned citizen" but then elevated his status to "Deputy Sheriff' in a move to bolster his credibility. What is omitted is Miller first reported as a Senior Deputy Sheriff for the Travis County Sheriff's Office in his first complaint to the Department of Energy, (See ExhibitS, 299th District Court Records, D-1- Mem:Otandum 82 '1rl DC-13-904021-EXH-VOL 27, DOE OIG Complaint, IGHl0-580, page 537) with the full intent of using his authority and exercising his credibility as a peace officer; in a "believe me before you believe him" portrayal to make his complaint and begin his trek to cover his personal crimes, but was later told there was no crime, and Carter, knowing this, intentionally withheld this significant omission, and continues to mask Miller's criminal conduct and questionable credibility. Counsel failed to continue adversarial testing on Carter's inexperience and reliance on others to conduct her investigation, her "research" and not "investigative" practices; her usage of stale, assumptions, speculations, hearsay and other not verified information; her knowledge of motorcycles; her relationship with the Gunslingers Motorcycle Club; lack of common sense in , .... '·' simple matters, such as, "drop shipping" as it is a standard and common business practice between suppliers and manufacturer's (see Exhibit 2, Drop Shipping/FOB instluctions from Grainger, Galls and Northern Safety & Industrial) and that Applicant or Central Texas Plastics committed no crime, or inappropriate business practice in ordering the Lexan blades from Crescent Plastics, the extruder; and that if she conducted a thorough investigation, as she portrayed, she would have known the original PVC blades priced and ordered for the Grant, were still in inventory in Taylor; and her lack of unbiased investigation in her failure to follow up with the USFWS, TARL, other permitting agencies; And, more importantly Carter, who claims to be a qualified Lead Investigator, who in her own words (see 299th District Court Records, D-1-DC- 13-904021-EXH-VOL017), has been an investigator for at least 14 years, but has never executed a search warrant or independently conducted her own investigation, but always had them handed to her by other investigators, officer's or agencies, who intentionally did not find the time to '·, ' ·\· simply drive up 12 miles from her office, to 4202 Harcourt Drive, off Parmer Lane and Mopac, less than 15 minutes from Carter's office, to Design's By Amalfi, the embroidery company MeffierEtHEltufl83 >f-7 whose credit card merchant account is under the business and trade name 'Sassie Lassy" and get copies of the receipts and invoices, that matched the invoices and receipts at the Comptroller's and DOE offices, along with an exculpatory and exonerating statement from Fred or Karen, the owners, that it was not lingerie as she portrayed, but a legitimate business expense in the embroidery of the CM Energies Jonestown Wind Project Logo (See Exhibit 2). Carter and Taylor both knew this being they reviewed Mary Jo's work product seized and copied by Martin Cano, and the invoices and receipts and justifications of the expenditures was all on file at the Comptroller as part of the audit processing of invoices and payments kept by Mary Jo and the Comptroller. On October 10 2011, Carter, submitted search warrant affidavits for the issue of warrants on the residence of Applicant, Mary-Jo Woodall and four other locations. The foundation information provided to the magistrate for all of the approximately 27 page affidavits is the same information. There are over 65 patently false and misleading statements and material omissions . on the search warrant affidavits. Here are a few of the material omissions: On p. 22 of the affidavit Carter states this affidavit is based on her personal knowledge and is true and correct. Carter's testimony in trial proved this to be false. It was not "her" personal knowledge, but mostly that of others, and she failed to independently substantiate or confirm information, but simply took their assumptions and beliefs as true. (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) On p. 8 Carter identifies Travis County Deputy Toby Miller. She states Miller made his initial report as a "concerned citizen" and not in his capacity as a Deputy. Throughout the document Carter refers to Miller as Deputy Miller. This elevated his status from concerned : hierirlu aridtrnr 84. -?iJ citizen to that of a Deputy Sheriff. Miller is identified in 24 of the 50 paragraphs in a way that highlights Miller's authority and position of public trust. Carter and Taylor intentionally omits from the magistrate, key material information regarding the conduct and credibility of witnesses and the integrity of her office. Carter and Taylor intentionally omit Miller contacted the Department of Energy to make a complaint and identified himself as a "Senior Deputy Sheriff' working for the Travis County Sheriff (see Exhibit 5, COURT REPORTERS RECORD, D~l-DC-13-904201_395 CLERKS RECORD Defense Exhibit 4) and not as a "concerned citizen." Carter omits Miller is minority shareholder with no standing or authority in CM Energies Public Venture Funds, LLC., a subsidiary company of CM Energies International, LLC and other than through the Trade name, CM Energies, not directly affiliated with CM Alternative Energies, Inc., a Texas C Corporation, where Miller was actually employed, part-time first for security, then part-time to the position of Operations Manager. (See Exhibit 2, Archie S. Rogers CM Alternative Energies, Inc., Employment Agreement-identical inform to Miller's, whose the Travis County District Attorney "'! is still withholding, and identical in form and conditional content to the other employees working the Jonestown Wind Project.) • ,-'1- Carter, Taylor, and Miller intentionally omitted informing the magistrate Miller was only a ·. minority investor, who signed a Membership Subscription Agreement (see Exhibit 2, Toby ., Miller CM Energies Public Venture Funds Membership Agreement) with CM Energies Public Venture Funds, LLC, knew that CM Energies was actually a recognition Trade name, set up similar to General Electric, USAA, Proctor and Gamble and others, where the parent company, in this case CM Energies International, LLC, was affiliated with shareholder ownership in, or wholly owned subsidiary companies, and the organization is . identified under one Trademark/Trade Name. Two examples of this are: USAA, whiCh is comprised of USAA M@Hi.Gra+!Ehim gs ?il Automotive Insurance, USAA Homeowner's Insurance, USAA Membership Services, USAA Bank and more but operates under the trade name and symbol, USAA. The other is General Electric. General Electric has GE Wind, GE Medical, GE Plastics GE Electric, broken down to light bulbs, medical research and other subsidiaries, but all of them are recognized by the GE symbol. The actual operational management from one organization, unless by contract, does not have authority over the other organizations. Miller and Carter knew this material fact at the time they presented the affidavit to the magistrate and yet they falsely and misleadingly implied Miller had management authority over all of CM Energies holdings. They failed to inform the magistrate Miller was not a shareholder, nor had appointed authority to represent himself as the Operations Manager for CM Energies as a whole, but only for CM Alternative Energies, Inc., the actual subcontractor for the City of Jonestown and the Jonestown Wind Project (See E~hibit 5, 2991h District Court Record D-1-DC- '. 13-904201_395, pages 161-163, States Exhibit 234 CLERKS RECORD). In addition, they materially omit Miller started his complaints on the same day he found out by the CM Alternative Energies, Inc., corporate counsel, Michael Guevara, that Miller had been caught falsifying grant timesheets for himself and several other employees. $ lUi'IH ~U~;.l(;€ C>fl GfU:x.JilD$ 0~ .4-c:::rv::~Ufo;l .1- l.U\1-? I - A ....., ~.-:s •t-'ce;IM- A p~u A~JC> ~lA" ... fA.{XR. ::r: I?E5(~UL.Ly !2£qi~r j\)at ID(L\ \)l-/ TV ~'1 1 Z>O ~-. 1" \ n ~· ~ T';l I~ Jl)Jf::> 617-f$12 CoJJS ;Oi!'R..qr;cq:s, '"' rit/ $. 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