                                                                                           OX



                         IN    THE    COURT      OF    CRIMINAL     APPEALS      OF   TEXAS


EX    PARTE,                                                      WRIT   NO.   U-1270124-U9A)

                                                                  WRIT   NO.   U-1271031-UCA)
rTA-RRISON     OLIVER    BAILEY,
                         APPLICANT,                               WRIT   NO.   U-1271032-UCA)



       MOTION REQUESTING AN EN BANC REVIEW BY THE COURT fREjGE&sEBn'W
             CONCLUSIONS OF LAU BY THE 291 ST JUDICIAL C(EfflfURTOffCRtftllNALAPPEALS
                                                  OWN   MOTION
                                                                                          DEC 18 2017
TO    THE    HONORABLE    JUSTICE          OF   SAID    COURT:


NOW COMES, Harrison Oliver Bailey, applicant in thiS^^^sa^^Q^P^ng
respectfully request this court to                        conduct an        "en banc review"          on    it's

own motion.based          on    the    following:

1).    The habeas Court denied applicant motion(s)                              requesting a live ':i;            .-

.i~ * hearing as opposed 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 Shaferl'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 ppresented in his habeas application were not

       addressed by the fact-finder *s,:.,his challenge, :.-. was that his guilty


                                                           (1)
                                                                                                      1
    plea was         not knowingly or       intelligently made with sufficient
                                              t



    awareness of the relevent circumstances,                       because he    would have
                                              i

    presented his case before a jury had counsel investigated the
                                              i




    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 an 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 ha 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.iira

jail,"i waiting 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

                                              (2)
  deficient,       and prejudiced the           outcome,     because applicant would have

  chosen to present this case before a jury .Strickland \l Washing ton, ^66

  U.S.at 6 91,104 S.Ct.at 2066,                explains that counsel has a duty in every
                                                  i

  casetto make a reasonable investigation.                     Counsel stated in               the affida

  vit he presented -j to the fact-finders that,                     applicant told him that one

  of 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 V;

  have been proven had the court conducted a live evidentiary hearing,

  and not let'tcounsel send and affidavit. The court deprived applicant."i -

  his    right to confrontation in this proceeding claiming the                                defence •

  counsel was       credible,      but fact's will show that pepple 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      to   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. ^Both* state 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    • -a

                                                      (3)
state    habeas court   findings,        are1 erroneous       because   the    issues    that

were presented..'was     not addressed1 by             the fact-finders,      and if this
                                            i

                                            i
court deny this habeas icorpus,            i;t will be a miscarriage of justice.

Applicant       respectfully ask that the court order the court
                                            i




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 frivious,                         and shold not

be    considered.


WHEREFORE PREMISI5 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

inthemotion.

                                                                     RESPECTFULLY        SUBMITTED
                                                                                                         I
                                                                    J§m\MoO.^J*,.'W:
                                   INMATE       DECLARATION


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 js^da y Df December 2017, that
all    claims   presented   here   are    true    and    correct.


                                                                     \ajuiw                         w:
                                                                    HffRRISON    OLIVER    BAILE*
                                                                    TDCJ ID.N0# K35501
                                                                    ALLEN     POLUNSKY    UNIT
                                                                    3872 F,M 35D SOUTH
                                                                    LEUINGSTDN, TEXAS
                                                                                           77351




                                                 (4)
