Bailey, Harrison Oliver Iv ( 2017 )

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IN THE COURT OF CRIMINAL APPEALS DF TEXAS
EX PARTE, $ URIT NO. LI-1 2701 24-U9A)
§ URIT NO. UI-1 271031 -U(A)
TTARRISON OLIVER BAILEY,
APPLICANT, § WRIT NO. hJ-1271032-U(A)
MOTION REQUESTING AN EN BANC REVIEW BY THE COURT F
CONCLUSIONS OF LAU BY THE 2915T JUDICIAL cfiffl)*mTOF(CRfflllNALAPPEALS
OWN MOTION
DEC 18 2017
TO THE HONORABLE JUSTICE OF SAID COURT:
NOW COMES, Harrison Oliver Bailey, applicant in thiQeW¥bM£T3m:£^ing
respectfully request this court to conduct an "en banc review" on it's
oum motion.based on the following:
1). The habeas Court denied applicant motion(s) requesting a live ':•• , •-
"-~ * hearing as apposed to counsel simply filing an affidavit, because
it allowed counsel to fabricate the fact's in the affidavit, and
deny the allegations to secure a reputation.
2). Applicant never told his attorney Larry Finstrom not to do a inves
tigation in this case, in fact applicant repeatedly made attempts
to get finstrom to investigate the complainant's background for'. .: ;
criminal arrest, which was what he was hired to do. Counsel claimed
to had did a criminal background chech of the complainants, and he
claimed they all had no criminal records. After being sent to pri
son, applicant retained a Houston Attorney [Randy Shafer]'to check
the complainants criminal background, and discovered they all had
criminal records, which would have been used to challenge this
case before a jury. It also showed that the defense counsel was not
being truthful about this investigation of their backgrounds.
3). Applicant's issue's ;>presented in his habeas application uere not
addressed by the fact-finder 'sr: ..his challenge, :-i>ias that his guilty
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1
plea was not knowingly or intelligently made with sufficient
awareness of the relevant circumstances, because he would have
presented his case before a, jury had counsel investigated the
complainant's backgrounds, and an investigator was not required
to do that.
4). Applicant was incarcerated in the county jail for over six-months
waiting on counsel to pull-up the criminal background of the com-
plianants on his computor, because it would have proven applicants
claim that the complainant's were prostitutes, and the he did have
consentual sex with them, but didn't pay them afterwards. Counsel *
told applicant about all the publicity a trial would bring, and
told him that he should think about it before deciding on what he
wanted to do, because Mhe lied about the complainants not having
any criminal background."
5). Finstrom [defense counsel] never discussed securing an investigator
or a psycho-sexual evaluation, nor visit him in jail to discuss a
defensive matter.
6). The fact-finder never denied the applicant's claim that his guilty
plea was not intelligently made, nor address whether the counsel
had a duty to automatically investigate the complainant's criminal
record (-s) and that actually didn't require an investigator.
Applicant ask that this court order a reversal based on the issue's he
presented in this habeas application, because during the six-months.tLn
jailnwaiting for trial, or counsel to come up with a defensive theory,
applicant repeatedly asked counsel to do a criminal background check on
the complainants, but he repeatedly said they didn't have any criminal
records which was later found to be not true and that's what is being
challenged in this proceeding. Counsel's unprofessional error,.!was
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deficient, and prejudiced the outcome, because applicant would have
chosen to .present this case before a jury .Strickland \J Washington, 46 6
U.S.at 691,104 S.Ct.at 2066, explains that counsel has a duty in every
casetto make a reasonable investigation. Counsel stated in the affida
vit he presented-jto the fact-finders that, applicant told him that one
•f the complainant*s was a prostitute, but never told him him the oth
ers were. Applicant actually told his counsel that all the complaina^
nts were prosetute's, and he refused to pay them. This issue could 'in
have been proven had the court conducted a live evidentiary hearing,
and not lettcounsel send and affidavit. The court deprived applicant;"' J
his right to confrontation in this proceeding claiming the defence •
counsel was credible, but fact's will show that people consider the
applicant as being credible also, and the court based it decision on
an unrelated issue, not the issue before the court and not properly
resolve the "he said, she said" facts because the question in the case
was never addressed, "was applicant's guilty intelligently made" I
The prosecutor violated applicant right's by not disclosing discov
ery evidence favorable tD the defense. The state habeas court fact
finders did not address the issue presented. Counsel claimed applicant
told him not to hire an investigator, which dosen't make any since, be-
, cause that was the reason counsel was retained. Applicant waited for
over six-months for his counsel to pull up the information on his com
puter, bat counsel:: claimed to had did a search, that end up blank, but
• applicant recently paid [Randy Shafer], and attorney from Houston Tex.
to search for the information, and discovered that all the complaina-
• nts Had criminal .*|gotH'3tate and federal law support the fact that a
guilty plea, such as here in the case at bar, is not intelligently made
when information favorable to the defendant is not disclosed. The . ,;\
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state habeas court findings, are erroneous because the issues that
were presented..'was not addressed by the fact-finders, and if this
court deny this habeas icorpus, it will be a miscarriage of justice.
Applicant respectfully ask that the court order the court
to address the issues presented, and nothing else, because there was
not reason for counsel not doing a criminal background check, and an
investigatior was not needed, his affidavit is friv&ous, and shold not
be considered.
WHEREFORE PREMISIS CONSIDERED, applicant pray that the court accept
this motion for en banc review, and reverse and remand this casetto
the trial court for further proceeding's based on the fact's presented
in the motion.
RESPECTFULLY SUBMITTED
I
^flAAI/vfln 0-1^(1AjgT
INMATE DECLARATIO
I, Harrison Oliver Bailey, being presently incarcerated in the Texas
Depertment of Criminal Justice, at the Allen Polunsky Unit, Polk County
declare under penalty of perjury this jy"day of December 2017, that
all claims presented here are true and correct.
\&MiAM w:
h7vrris0n oliver baile'
tdcj- id.no# 1^33501
allen polunsky unit
3b72 f,m 350 south
levingston, texas
77351
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