                               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"f<.                   §
                       A (4<     -s'l!A'I'B OF TEXAS
                            CI-/MZ..L.tE !JVlll L.ovff                             §

                                    ~ l"f'&::£ktt1Yr~ ;S:vPhfl'fl~~-r/:fl... 6cZIIt¥-
                                                        WR1'T fiF . 'ffi'<B.El'<S CelWUS ,
                                   MBM9&"ll'tfiYM IN . SIIPPOi'd' OF
                        SEEKING RELIEF FROM nJM FELONY CONVICTION UNDER CODE OF
                            CRIMINAL PROCEDURE, ARTICLE 4!4-.IJ, AS A RESULT OF
                          VIOLATIONS OF ARTICLE 1, SECTIONS 8, 9, AND 10 OF THE
                        TEXAS CONSTITUTION, AND THE FIRST, FOURTH, FIFTH, SIXT •~RD;:E::::C:::E-/~-E-D­
                                  NINTH, AND FOURTEENTH AMENDMENTS TO THE
                                        UNITED STATES CONSTITUTION·                        MAR 0 9 2015
                                                                                                                                            RD CIJVR; OFAPI'
                                                                                                                                         ~...:lli£E.€EY Dt<Yi ..1>1lS".
                                                                                                                                                 --.;;.;..~~

                                    TO THE HONORABLE JUDGE OF SAID COURT:

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

              the interest of justice, extraordinary relief from his conviction
    i~?.>u 1-11 o\l f, (:::~\41 e q'l"""'J> ou & Co" -0 '<.J..& "~=' 1ol-Q.(t J:-1-~)'J\1 1 () \q_{-101)"' oP Th>< 1:1!:> 111\0 RJ !UIJ:I.l- 1-li-W,., ~ 1!. r!f)
             l?vrsnaA:E to the Code ef Criminal ProeeGYre? Article 11 07, r:esyJ.-
  'In-'S A-134-IY'JOOI;;'!..- Rv<.-<!16 (!)\' R!ofl'. Cb,\JO\lvP THe 11.1<11!:> 016"-> (1.. • .,;:- lkcF. Cbt>.Ovc.:r· i\.IMI\IJOtvt1'lQO\-Ti!JV Af!!Q(\q\t>
              ting in d dee-:i:·Si<9H that was CulitLaL:I' te 1 er ifW€llVeS 'yg,~fla£;J.e
 C.ov()?l2.(/i}IJ91NiiJO '" -1-1.;!. \1\{.<Wi)-\.-arJII~!,UL f'~llf'e4-Mi1l'1 £ U&:z If* ijla;;rj c:t~¥<lnfil\~t<                                                 2J
              appJ,.;l-Gat-i-efl-ef, clearly established State afld Feseral law, _as_
 & I'~ {(e!(;,o<F!"~5 J.i-.e..Ccs.>r-1:- a<:L.q'-4--t;,,,. S:""fle.me>?kcl'Bs-tlf :J:'Ao.> C.GP4!2:r. 4'1.3.S tro~>.-..,.,.&' Fo<--
p •          de-t-e-rmit;ed-tly the Supreme Court of t-rr-e-um."t-ed-sta-t-e~-

                 low-i-ng-reasons: ·

            1.   ~ =~l;;          Conviction Was Obtained Iri Violations Of the First, And Fourth
                     Amendment's, Fifth, Sixth, Ninth, and Four-teenth Amendment's Right Of Due Process,
                     And The Right To A Fair Trial Through The Ip.appropriate And Professional
                     Misconduct Of The Police, The Trial AndApplillate Counsel, The Prosecutor and The
                     Trial Judge In Violations Of· Texas Law, Federal Law, The American Bar Association,
                     Model RuJes Of Professionat:C(Jndi.i'ct; The Texas Disciplinary Rules Of Professional
                     Conduct, And The Texas Code,Of.Judicial
                                                 • . .   . •
                                                                Conduct.· ·:. !'   ~


           "2... t1: Petitioner Was Denied Effecti~eAssi'stanceof Counsell'hrough Professional
                  '
                     Misconduct, And The Failure: Of Counsel To Conduct Sufficient Adversarial Testing Of
                     Witnesses.                                                                         ·
                                                                .. ,.r •.. , .                          . ,..   '.·

                                                                                 tlM=ELDmss' · · ·                              .-.,._
                       'i'his app-lisatioq.is timely beeaase i t is filed @rior--.to
                 ;Nevemeer 10, 2014, aeeerf!iREJ te Jeffer1 B. l(]le, Clerk..
          3.             The length of sentence is fifteen (15) years (Enhanced).

          4.             The nature of the crime is Securing Document By Deception,
                                                           Ali"i?~A-NT'
          5.            Other than this motion, Applioant filed, as a result of
                        professional misconduct and a CONFLICT OF INTEREST by
                        Appellate attorney M. Ariel Payan and in the prevention
                        of a furtherance of a miscarriage of justice, a Federal
                        Writ of Habeas Corpus under 28 USC§ 2254(d)(1), which
                        was Dismissed Without Prejudice to pursue State remedy.
                        (See Exhibit 1 ) PJ4P l..ltr1S1Z. 'i:>l:>l'llt$'.2."<::> sy 'T1!E- -ni-1¢> ~oF~
                        ~ WAI'IT" o-t: .:roost>•€ nor-..
          6.            Other than the above listed motion and application,
Aff..-<..:L..<>f'I'T"   Appliea&t has .ne- other motions or applications currently
                        pending concerning the judgement in this case.                                '

          7.            The name and address of the trial judge who convicted
                          ~aant   is:
                        />.  A-NT
               Preliminary Hearing:                               Karen Sage
                                                                  299th District Court
                                                                  500 w. 10th st.,
                                                                  Austin, TX 78701

               Arraignment:                                       Karen Sage

               Trial:                                             Karen Sage

               Sentencing:                                        Karen Sage

               Appeal:                                           None

          8.      The name and address of each attorney who represented
                  Applioant are as follows:
                  J\qfls'l.I.A "' 7
               Trial:                          Jackie Wood and Tamara Needles

               Sentencing:                                       Jackie Wood and Tamara Needles

               Appeal:                                           Arial Payan
                        AIII/L.C'JMI. rJ I
          9.            AJ3j3±il-<3aat has no future sentence to serve after completing
                        the sentence for the judgment being challenged.

       10.           This application is timely because it is filed prior to
                        -~~e v enaher 1 8, 2 81 4, according to Jeffer} D. K1le, Cler]c;..
                1"11€. CR'>£ 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 <Ar!Ve.:6-,                                      LA:>< ('ft 1'7~ A~-*-> t.-\1/Vl I "!CD
                                             AVfii':'-J..II."'T'
     "\r..D cited case law.                   Applxcanl has -RE>- access to Texas Court Rules or
                                                                                                                     ......... s
           Texas Case Law.                    All. case law in the F.C.I. Bastrop law library                         ~

                  Federal and Supreme Court law specific. 0\liER "ffi-A)ol- Pe~ .q1->D?J..I'I£.'i2, 1\.X:> ~E
  ""(<:Z::<...S :bog:_ P~Z<=>fe>IZ. 'Rz<%E,..)""n"'" .t\ U f'/2l>v• DEC!> f$'-1 Il-l.£ ~ "'Cpl)tlTr/1~ of'~~. f-k;i.,O.q'f u,. ,=t, .
                            Wherefore. ti:l.e WFit ef Ilaeeas eorp01s is a ;r=~ to a State
                                          11\'> >~1"?(£1'/le;I.Jl'"At.- \34:Ve.l==       <Z.tlll           .
                  commitment where the commitment is a result of a miscarriage of

           justice through violations of State and Federal laws, and the

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

           Constitution and the Fifth, Sixth, Ninth and Fourteenth Amendments

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

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

           prays for injunctive and declatory relief and moves the Honorable

           Court to VACATE the conviction and REMAND for a constitutionally
                   .:>1? t~tSMI% 10<111 PQ.t;}vt>ia' o" Gzo.mOS~ ACfVItf-. '"'noc.ef~Ce_/
           valid fair trial,~or any other relief deemed justified.

                     Executed on this 2~th day of oee~r, 201~.
                                                                    ~r;<.VA
                                                                              Respectfully Submitted,




                                                                                Charlie Malouff
                                                                                66989 179      i'I78'S'IO
                                                                               .p., 0. Bex 1 01 9 1-loi.. '"""-'/ ~                rlr<-"-'TY
                                                                                Baserop, 'FX 78662 'Z"i'i Ll'!-<f>;J
           M'6'\.\..LIN1 ...-1-:, ~cr.<£!'" 1,.. ;7uf't-6rl-                                             ~~<><1+511 ,u..e;- ')1{
                                                                                                                           /
                                                                                                                                    ·n5zo
           kPPliean~               M@moranetlm of Law and Facts is Incorporated and made
           a part hereof by reference and by attachment hereto.

                                                                   ( 3)
                                                                                                                                        :.
                                                                                                                                        i
                                STATEMENT OF THE CASE                                                                                   '
      Applicant was a subject of a Fraud By Deception investigation by the State of Texas,

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

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

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

time sheets on a federally funded energy grant. Miller, as a Senior Deputy Sheriff, knows that
                                                     .   -                 .                                            .
making patently false or misleading statements, material omissions, and providing only personal

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

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

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

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

Taylor, relied upon, but failed to verify,
                                    .-,.,
                                           or confirm, even after being told to their faces, by the

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

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

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

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

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

working on. (See Exhibit 2, photos and Exhibit 6, Charlie Malouffv. United States, A-13-CV-
                                     ~-, •   ,_ ':            •    •   ~   :'    ':•   ~   '       :• I    •




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

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

was the grant writer for the City of Jonestown's Jonestown Wind Project, that was under the
                                ..   ~       ·;.         --                            .       .      '"          ,-


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

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


Energy Conservation Office (SECO) up until the time of Applicant's arrest.
                                 .                                                                                              '
                                                                    ~48FesF~~;~ -~
                                 -..'•·(
                                                                            'I
                                                                  ... ,,,, .: .. ..,.-."
                                                                                                                                    j
                                                                                                                                        I
      Prior to the implementation of the actual Grant, while conducting a DOE mandated NEPA

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

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

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

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

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

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

Energy Systems)

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

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

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

Cook, both working on the Grant, in supposedly an off duty capacity, were caught falsifying
                                 "     '.
their time sheets to the Grant, their respective law enforcement agencies, and Grant time ·sheets

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

VOLUMES 1-27, COURT REPORTERS RECORD, D-1-DC-13-904201_395, pages 544-554
                                ·-(--'' .:~:::. ·.,.       ·,   .... - ·~:

CLERKS RECORD, and Exhibit 6, .Charlie Malouffv. United States, A-13-CV-572LY (A-11-
                                ·• . •·:.t.:Hjc,::                           ''~\:..        ·:- ..............                ··
CR-647(1)-LY) 2255 Motion to Vac,;ate, time sheet attachments). The conduct of both of these

persons of public trust, to cover their crimes, began a chain of events that has continually
                                 -     ..   ,     ·.--.~
                                                                 .'   .                     .   ""'•




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

of Travis County 299th District Judge, Karen Sage, " ... travesty ofjustice." (See Exhibit 5, 299th
                                  . '" ··· . ' ::{· ;; ';' ·.. ' ·. . \
District Court Records, D-1-DC-13-904021-EXH-VOLUMES 1-27).
                                                                          l .• ,        '



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

who worked for the City of Jonestown,
                                  .
                                      and Eric Graham
                                                  .. were caught falsifying time sheets to
                                  • '·                                       '     ,.   •              • >~ •



the Grant. Miller and Cook also falsified their respective department time sheets. (See Exhibit 5,
                                ·;··.,-•; ····1:.               ·, }.4@-fQQ)i~·Qufu-$.·


                                -~-!        -(.     ,·.
                                                                                                                "'"j'· .• :
299th     District    Court       Records,                       D-1-DC-13-904021-EXH-VOLUMES                                        1-27,   COURT

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

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

sheet attachments).

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

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

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

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

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

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

DC-13-904201_395 CLERKS RECORD, and Exhibit 6, Charlie Malouffv. United States, A-13-
                                                       '   ~.   ,. '           ....... .
CV-572LY (A -11-CR-647(1 )-LY) 2255 Motion to Vacate, Secret Meeting attachment) ..
                                      ..----       .       -.                                            .----.                  .


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

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

implementation of installation of the awarded.. Systems. This
                                                          .
                                                              prototype was constructed, and

tested at the manufacturer's facility in Taylor, Texas, and an official "site check" was conducted
                                      ·-·-·-:' -·---,                                                       --.•· ' .

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


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

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



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

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

904201_395, CLERKS RECORD).

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

terminated and management of the Project transitioned with the approval of the Grantee, the City
                              '                                                   Mlilm9ra;SE~Ym                        4r ··
                                                                                               f.,
                                                                                                                                                     )
of Jonestown. The same System that was tested in Taylor was taken down, moved over to, and

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

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

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

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

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

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

photos)

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

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

approximately $58,000 in damages and repairs. (See Exhibit 2, photos and Justin Shepherd
                                     '.
accounting documents, Exhibit 1, Dan Smith email, and Exhibit 3, Aaron Knapek email and
                                                                                             '       .. ,.
Diversified Technologies invoices).

      From the beginning this extraordinary, complex, and complicated case became irreparably
                                                    '   ..              ·~         ..,   .             /     .

plagued with incompetent and criminal employee conduct, and criminal conduct and cumulative
                                                                                                 '     (     .

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




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

Professional Conduct, the Texas Disciplinary Rules of Professional Conduct, the State
                                                        . "    . - :. •.'          --~       .·.,

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

Exhibit
  . 5, 299th District Court Records, D-1-DC-13-904021-EXH-VOLUMES
                                            .
                                                                  1-27, COURT
                                     :--:: .,   .                                  •.,       -~




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

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

Exhibit 2, emails and photos).


                                 "·-···


                                                                             ,7
        Between April2012 and October 2013, Travis County 299'h District Court Judge, Karen

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

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

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

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

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

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

CLERKS RECORD).

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

Holly Taylor, left her role as a prosecutor, and thereafter engaged in the role of "investigator"
                                   .~-                                  --    ...    -.: .
gathering evidence, interviewing witnesses, getting facts and information, giving legal advice,
                                                              -'   ~.     '                    '        .. _,'

and clearly functioning
                  .     as an investigator. (See
                                               .
                                                 Exhibit6, Charlie Malouffv. United States, A-
                                 """v        --.·y .. :··:,:'':' ··----         '             .. -lf: ·-: ·

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




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

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


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

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

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

learned and did thereafter, including giving advice to Carter on how to mislead the magistrate,
                                                                                     ··:- .. ';?

and navigate her investigation after committing multiple Constitutional violations.
                                                                                              '".,, ...

      Miller and Cook, peace officers and persons of public trust, were already involved as
                                                                                                   --    ..
suspects in an independent criminal investigation involving state and Federal law, obstructed
                                                                                    .,        _,~--       -;         ..

justice by their conduct in using Miller's friends, Lori Carter, and Greg Cox, to direct events
                                                              .-.( 1
                                                                        '.-              --                                   ! '

away from that investigation, and through the malicious deprivation of constitutional rights,
                                 •,.
portray Applicant as a criminally minded person to intentionally cover up those crimes to pnrsue

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

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

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

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

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

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

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

Misconduct and Bar Grievances)

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

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

constitutional rights of due process become unduly prejudiced.
                                                                                  r:: ...
      During the trial, and after the verdict, Applicant's trial and appellate counsel made
                                                                 ,·.
                                                                 '·

statements that demonstrated personal knowledge of inappropriate, unethical, and criminal
                                             c . . . ' : ..... -;' . "
                                           ~-'-                                      .~


conduct, in violation of the American Bar Association Model Rules of Professional Conduct;
                                 . ,,. ······1

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

Texas Penal Code, by the trial judge, Karen Sage, in her decisions to deny Frank's hearings,
                                                  '   ..               ·-·.
dismissal, mistrial, selective and vindictive prosecution, and other motions for pecuniary interest.

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

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

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


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

Grievances).
                                 V'.
       The totality of circumstances of police misconduct, prosecutorial misconduct, professional

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

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

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

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

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

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

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

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


                                                                                      . . ' ' "!                 ..


                                         PROCEDURAL NEXUS

       The AEDPA comprehensively overhauled habeas corpus legislation, including 28 USC
                                                                                                         .,-. .

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

 court's give deference to the State court's decision, unless "it was contrary to or involved an
                                                                                                        .,..., .. -.
unreasonable application of clearly established Federal law as determined by the Supreme Court
                                                     I :, ·' C            '      •• "' ., .', .

of the United States. Bell v Cone, 535 U.S. 685, 693, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002),
                                         .-,   ·:·   ..            . ..   .          -:-   . ,\              ~   '•"\




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

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

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

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

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

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

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



                                                                              (I:>
                                                          .. ,::; ·;_
                                                             -·_
                                                                                           .   .....,   ~-
                                                                                                                          ('•
      A State court decision will be contrary to established precedent if the State court confronts

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

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

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

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

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

the attention of the court.").

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

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

applies it to the facts of a particular State case. Williams v Taylor, 529 U.S. 363, 407, 120 S. Ct.
                                                  •   '   '   '          .''      "\      c     '        -           ~    '       '
                                                                                                                                                 ,..
1495, 1466 L. Ed. 2d 389 (2000); Bell, 535 U.S. at 694; Puckett v Epps, 641 F. 3d. 657, 663 (5th

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

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

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


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

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

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

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

      A court may dismiss an indictment if it perceives Constitutional error. It may draw on its
                                 •· •·'-.<·       ,., ' " .       r      ,             .• :. .
                                                                                                        .• ,,..i:.·                       _. .



supervisory powers to dismiss an indictment.   United. .States
                                        .... - .         . . v McKenzie,
                                                                    .
                                                                         678 F. 2d 629, 631 (5th

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

995 F. 2d 480, 486 (4th Cii. 1993); United States v Isgro, 974 F. 2d 1091, 1094 (9th Cir. 1992).
                                 5'                       \! ' •      I~ . • _'          •.     :•           . ..,



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


contact with the Grantee, SECO and through SECO, DOE, as DOE gave final approval or denial
                                                                  . ~1etH:BfaHEllHe·9-'
                                                                                        It
on ~lstages of the process. All changes in the Environmental Assessment and structural design

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

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

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

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

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

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

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

product supplied to the government comprises connercially available component parts says

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

as to its design.   "All products can eventually be broken down in to various off-the-shelf
                                                                      ... ' :·         -~   ' : -~    .;--:_         ' '

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

government mandated Buy American
                          -    !'.....
                                       and        structural design changes, and approved the process
                                        . .,_ __ ,.-
                                   ~--


                                                                          . -_ .. --,l.                        ~-.·.


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


Sole Source procurement and connercially available).
                                                    .                            ..                    \···
      The First, Fourth, Fifth, Sixth and Fourteenth Amendments to the United States

Constitution provide for the rights of all persons to enjoy freedom of speech, movement,
                                                                                            -, •,-         l    ~-




association and assembly, petition their government for redress of their grievances of deprivation
                                                                                  ....,              ._,       ..      '   .
of rights under the color of authority, to be secure in their persons, to be free from unreasonable
                                                                                        ---~--             ·-•·,rc- :·
searches and seizures, to enjoy privacy and be free from deprivation's of life liberty, and
                                                                '              ·~·'         ····r.\t~~:

property without due process of law.                Rosenberger v Rector & Visitor's of University of .
                                                                <.        ..    ~---         --       .., ;·_

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

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

1993); Davenport v Garcia, 834 S. W. 2d 4 (Tex. 1992); Chanel4, KGBT v Briggs, 759 S. W. 2d
                                                    ' Mffi'fierii'ftilttl'fl: 1Q                                                   ·   .
                                                                    tz.
939 (Tex. 1988); Connick v Meyers, 461 U.S. 138, 146, 103 S. Ct. 1684. 1689, 75 L. Ed. 2d 708

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

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

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

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

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

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

v Tibbetts, 646 F. 2d 193, 195 (5th Cir. 1981); United States                                            vJohnson, 577 F. 2d 1304, 1308 (5th
Cir. 1978) quoting Unites States v Berrios, 501 F. 2d 1207, 1211 (2"d Cir. 1974); American Bar

Association Model Rules Of Professional Conduct; Texas Disciplinary Rules Of Professional
                                                                  . -·
                                                                   ~-                    ~
                                                                                        ..      '! __ :    ~-
                                                                                                           -•        '


.Conduct.

      Government agents, including the police and prosecutor's, maliciously violate an
                                                   . ,.--'   ,.         •..   •'•        -                      ~-



individual's Constitutional rights when they knowingly and recklessly act to deprive a person of
                                 ~       -·:,.          ·-,--                           ··_- ·;._"'("-·.'

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

disregard encompasses providing false, and or materially misleading information for use jn an
                                         .   [""·

                                             '
affidavit in support of a search warrant, and includes omitting facts that are clearly critical to
                                  -       .. ' . : - ---· -- .
finding probable cause. Frank's liability attaches when the police and prosecutors manipulate
                                             1 •                                    -   ••




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

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

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

rather it implies the conscious doing of a wrong because of a dishonest purpose or moral
                                 .
                                 .f.
                                                                   .                    _.,.       _;·'
obliquity; it contemplates a state of mind affirmatively operating with furtive design or ill will."

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

2674, 2684, 57 L. Ed. 2d 667 {1978) (defining bad faith. in the law enforcement context to
                                      Metn&aiidam II'
                                                                                                  .      _,_.
include "reckless disregard for the truth."); United States v Reilly, 76 F. 3d 1271 (2"d Cir. 1995);

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

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

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

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

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

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

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

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

      It is the responsibility of the trial judge to oversee and maintain the integrity of the trial and
                                   0                                     ,

                                   r;_r                                  '                         · •. ·'   ,'I

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

has consistently found a breakdown in the adversarial process, due process, and right to a fair
                                                                                 . -... ,. ..       ·-·-. -'               .. ,'
trial when the trial judge has a direct financial interest in the outcome of the proceedings. Three
                                   ~.                                                      ,. -'     ,..         _,._             1 ,-

                                   -   '                                                        .. . .             .   '   '~



Officers of the Court who made statements regarding the integrity of the trial judge, but failed to
                                                         1      '   ~   •, ':'


approach the court is uncontroverted evidence supporting this materiality of error. (See Exhibit
                                                                                                                   ',
1, Judicial Misconduct, email attachment from Ariel Payan dated 3/21/14, and Bar Grievances)
                           .                                                     .-         .... -·~       --~   · .. ; i-. ·:.
                                                                                                                                            ,   '
Johnson v United States, 520 U.S. 470, 137 L. Ed. 2d 718, 117 S. Ct. 1544 (1997) (" .. and the

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




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

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

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

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


cannot be left merely to the stipulation of the parties." 315 U.S. ;tt 259; Chapman v California,
                                           ·,·,--.·j·.-                                              '       n             ··
                                                                                                                           :    ··•· ..•.
                                                                                                                                r,~




386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) (The Supreme Court said whether it appears
                                     ·~ · · Meffiei'lif!i;l\i-iH 12'·: ' · ·       ·
                                                          . \       . ·fy· ..
                                                                                  l!l-
                                                                                                           . -. i : ( ~
beyond a reasonable doubt that the error complained of did not contribute to the verdict

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

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

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

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

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

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

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

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

(1995); Harrington, 131 S. Ct. at 786 (quotingJackson v. Virginia,
                                                              .
                                                                   443 U.S. 307, 332, n. 5, 99 S.

Ct. 2781, 61 L. Ed. 2d 560 (1979); United States v Narisco, 446 F. Supp. 252 (ED Mich. 1977);
                                       -                                            ....
                                                                                                 .-    ' ''(        .
United States v Gainey, 380 U.S. 63, 68, 85 S. Ct. 754, 758, 13 L. Ed. 2d 658 (1965); Holloway v
                                                            ..   '

Arkansas, 435 U.S. 475, 484, 98 S. Ct. 1173, 1178, 55 L. Ed. 2d 426 (1978); Glasser v United
                                                                                                      ..
States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1992); Cuyler v Sullivan, 446 U.S. 335, 346,

100 S. Ct. 1708, 1717, 64 L. Ed. 2d 333 (1980); McCormick v United States, 500 U.S. 257, 273,
                                  '            .- •. ,_'                                   ---.'            ~(            c: ·;   •

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

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

Rules Of Professional Conduct; Texas Disciplinary Rules Of Professional Conduct; Texas
                                                                                           -,. ...,             -
Standards On Judicial Conduct.
                                                    . ,.,
      The United States Supreme Court has long held that the suppression of evidence favorable

to an accused violates due process of law,
                                       ,,__ --
                                               regardless of whether the prosecution suppresses

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

guilty are convicted, but when criminal trials are fair. And, when the State withholds from a
                                                                     1   ··    \             ·        ··•   .       r ·



criminal defendant evidenc.e that is material to his guilt or punishment, it violates his right to due
                                          · Meiffier!li!aflm B ·
                                                      n·
                                                                              iS'
process of law in violation of the Fourteenth Amendment. That evidence must be favorable to

the accused, because it is exculpatory or impeachable; it must have been suppressed by the State;
                                                                                                                                 '
and prejudice must have ensued. The government denies a defendant the opportunity to present

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

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

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

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

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

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

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



which a conviction obtained through the admitted or proved use by the state, knowingly or
                                         •"-'." ('   ..                       ., .·,.,. ;·

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

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

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

969, 35 S. Ct. 582 (1915); People v Mooney, 175 Cal. 666, 166 P. 999; People v Mooney, 176
                                '•                                            - •..            '
                                                                                                             ..
                                                                                                         ''<1''
                                                                                                                  '.


CaJ. 105, 167 P. 696, 177 Cal. 642, 171 P. 690.
                                                                                          • • ~ .        ·- •.    -~   : !



      The Travis County District Attorney Public Integrity Unit cannot, m good standing,
                                r. -.•.                                                                                              i;


consider itself a "Public Integrity" unit when it violates due process and fails to obey its own
                                                 .. ",.- .. , -',       ..    •• ,·, r,        -·
                                                                                                     .   -
                                                                                                         .
                                                                                                             ,]    ;: , '    !
                                                                                                                            .,

regulations. When the prosecutors leave their role as advocate and function as "investigators,"
                                ~                                       --    ~--.   (     .       ··.
defined as, persons who go out and get information, gather evidence, and interview witnesses,
                                                                                                         ...,._ .. ,

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

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


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

Texas and United States Constitution's, and who fail to recuse themselves, but use their color of
                                                          MemsFa£~·1~.
                                                                             1(,
                                                          .    "
 authority to isolate them from the adversarial testing process, the cumulative impact, in the

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

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

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

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

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

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

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

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

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




 New York, 360 U.S. 315, 320-321, 79 S. Ct. 1202, 3 L. Ed. 2d 1265 (1959); Berger v United
                                                                                                                      'r. -~
                                                                                                   -        ' ;
                                                                                                                                   : ..
 States, 295 U.S. 78, 55 S. Ct. 629, 79 L. Ed. 1314 (1935); Buckley v Fitzsimmons, 509 U.S. 259,
                                  . .... ,,
                                      '       "('
                                                                                              '
                                                                                                   .,, '         /·



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




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


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


 U.S. at 274 ... "lack of probable cause indicates a prosecutor is operating as- an investigator
                                         '        '        ,.
 instead of an advocate"); Burns, 500 U.S. at 496, Ill S. Ct. at 1944-45 (The Supreme Court
                                                                                    ,-,-.·             ,.    '_.,.


 definitely stated that a prosecutor is not entitled to absolute immunity for providing legal advice
                                   '                             .. , ;·                                     '


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




2003) ("no absolute immunity where prosec'(ltor is functioning as a police officer."); Rehberg v
                                                    :~.       ·~        ---- ....           . .,             r~·           ... ,
. Paulk, 598 F. 3d 1268 (5th Cir. 2010) ( Prosecutor loses cloak of immunity stepping out and
                                                        ...        ."                  ,._..            . ., __

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

. 273 ("investigative acts" such as "evidence gathering" and "witness interviewing" ... normally
                                                              .. :···'       .·      ,.---
performed by a detective or police officer are not entitled to immunity.); Donahoe v Apaio, 869
                                  . i  . . ' ',J>.'[~6fflii~lti: 15 ".

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

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

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

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

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

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

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

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

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

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

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

 as both the investigator and prosecutor, the criminal proceeding against a defendant is
                                 .    "\!\':'



prejudiced.
                                                                                                  <J ' (
                                                                      CLAIM
                                 i.                            . ''        ,".I



      I.      Applicant's Conviction Was Obtained In Violations of the First, Fifth, Sixth,
              and Fourteenth Amendm:tmt's Riglit Of Due Process, And The Right To A
              Fair Trial Through The Inappropriate And ,Professional Misconduct Of The
              Police, The Trial And Appellate·Counsel; The Prosecutor and The Trial Judge
              In Violations Of Texas Law, Federal Law, The American Bar Association,
              Model Rules Of ·Professional Condul:t( The Texas Disciplinary Rules Of
              Professional Conduct, And The Texas Code Of Judicial Conduct.
                                 .                         .     -·                    ..   "




                                                                                  '\   .', . . .

                               STANDARDS OF REVIEW
                                        .. -. ·.. ..                                            -,'   :    ~




              POLICE MISCONDUCT

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

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

· defined rights. A person acting under the "color of law" who invades personal liberty of another
                                                -·M!imeFaHEiHl'fna· ·
                                                                           ~~
                                                  :   ,•
 •knowing that invasion is in violation of state law has demonstrated bad faith and reckless

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

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

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

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

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

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

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

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

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

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




 unconstitutional."); Whiting v Taylor, 85 F. 3d 581, 585 n. 5 (11 1h Cir. 1996); Fikes v City of
                                    ,-.       -                                  ' .. .               ~   .                 .
                                    '     .                                      ·,         --                    ..    --
. Daphine, 79 F. 3d 1079 (11th Cir. 1996). Malicious conduct is an intentional pattern to deprive .

. Misuse of official powers acting in outrageous and systematic pattern of harassment, oppression,
                                                          .,_,. ''                          ..
 intimidation and bad faith, including cover up and retaliation are all violations of established
                                                                                                                  .    ~-    ·- --·           -,



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


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




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



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

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

 187 (1989).

        The relinquishment of a right to remain silent must have been voluntary in the sense that it
                                                  .. :.           . ,.,                                                         .       !':


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

·The sole concern of the Fifth Amendment on which Miranda is based is governmental coercion.
                                     · · •Memei'afiEliiffi: 17 ''I
                                                                                      l'f
 Coercive police activity is not voluntary within the meaning of the Due Process Clause of the

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

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

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

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

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

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

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

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

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

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

       FREE SPEECH

· Official reprisal for protected speech "offends the Constitution because it threatens to inhibit
                                                                            .' ' .   ..
exercise of the protected right." Crawford-El v Britton, 523 U.S. 574, 588, n. 10, 118 S. Ct.

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

Amendment prohibits government officials from subjecting an individual to retaliatory actions,
                                                                                      . ···.·.
including criminal prosecutions, for speaking out, id., at 592, 118 S. Ct. 1584, 140 L. Ed. 2d 759;

Perry v Sindermann, 408 U.S. 593, 597, 92S. Ct. 2694, 33 L. Ed. 2d 570 (1972).
                                                          '·
        INVALID SEARCH WARRANT
                                          ' ..
                                          . ''   .,
                                          '.
Evidence illegally and unconstitutionally obtain by use of an invalid search warrant must be

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

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

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

 1623 (1963); Fahey v Connecticut, 375 U.S. 85, 11 L. Ed. 2d 142, 84 S. Ct. 229 (1963); Beck v
                                             . · Memeffiflffiim lg
                                                               -z.D
 Ohio, 379 U.S. 89, 13 L. Ed. 2d 142, 84 S. Ct. 223 (1964); Duncan v Louisiana, 391 U.S. 145,

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

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

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

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

 (1978).

      PROFESSIONAL MISCONDUCT-PROSECUTOR

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

Disciplinary Rules of Professional Conduct outline the Special Responsibilities Of A

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




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

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

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


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


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

protective order of the tribunal; (g) When a prosecutor knows of new, credible and maierial
                                 .~-   ...
:evidence creating a reasonable likelihood that the convicted defendant did not commit an offense
                                                          ., ___   '



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

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

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

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


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

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

conviction. Brady v. Maryland, 373 U.S. 83, S. Ct. 1194, 10 L. Ed. 2d 215 (1963); United States
                                        . Msmetan;EtHm i9 --,,

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

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

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

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

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

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

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

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

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

        BRADY VIOLATIONS
                                                                                                  '!                 r ..
                                                                                             ',        I,'    .        ' (


       The prosecutor or police cannot                knowingly~ an~                                     intentionally, and in bad faith destroy
                                                  ··.:-.      '    ,-             . •,     ..
or prevent any opportunity for a defendant to exonerate himself with potentially exculpatory

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

Trombetta, 467 U.S. 479, 81 L. Ed. 2d 413, 104 S. Ct. 2528 (1984); Arizona v Youngblood, 488
                                                      ,.
U.S. 51, 102 L. Ed. 2d 281 109 S. Ct. 333 (1988); United States v Cooper, 983 F. 2d 928, 931

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

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



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


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


                               '
       PROFESSIONAL MISCONDUCT -COUNSEL
                                                                                                         ·,              ..
                                                                                                                   '-, , ..

       IAW the American Model Rules of Professional Conduct, and Texas Disciplinary Rules
                                                                                                        .•     1



of Professional Conduct, Rule 8.02 (a) A lawyer shall not make a statement that the lawyer
                                                       '             ;     -               " .                 ' I


knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications
                                  --        .
                                            ::. '··
                                                       .                   ..        --.

or integrity of a judge, adjudicatory official or public legal officer, or of a candidate for election
                                           • MeffisraaEl!HR :6Q ·· · · ·
                                                  •J.'"t-
 or appointment to judicial or legal office. And, (b) A lawyer who is a candidate for judicial

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

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

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

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

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

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

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

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

·these rules, knowingly assist or induce another to do so, or do so through the acts of another,
                                                                                      :. , -,
                                                                                                                      ···..
 whether or not such violation occurred in the course of a client-lawyer relationship. And, (3)
                                                  ~    ··.    \'   -   ·.            .. ·' ,·                . ·.,   .····-·   ,··

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

 imply an· ability to influence improperly a government agency or official. As Officers of the
                                                 ·- :·,''          l.


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


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

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

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

misrepresentation of the expected conduct of a trial judge or the trial counsel to throw away a
                                                                                       •. ,   .·.-    .          .    f,:,·
                                                             · ...
 clients rights to a fully engaged and meaningful defense and fair trial. United States v. Grieg,
                                                              '._,._        ..

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

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

· conduct a hearing once it has been alerted and certainly when it knows of the existence of an
                                        ......    \'     .
actual conflict of interest."). Armstrong v. State, 573 So. 2d 1329, 1335 (Miss. 1990). ("As an
                                                  .,..                               . -,-.. -,



                                                       ~- 1\.fenl8ntheii-uh                               21· ·:· ·
 actual conflict which adversely affected counsel's performance was shown, the trial court

 reasonably should have known the conflict existed.")

        JUDICIAL MISCONDUCT

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

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

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

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

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

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

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

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

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

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

left merely to the stipulation of the parties." 315 U.S. at 259; Chapman v California, 386 U.S.
                                                                                   ,,_ -,-,'    .....
 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) (The Supreme Court said whether it appears beyond a

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

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


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

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

listen to the voices of voters rather than the witnesses."); United States v Evans, 504 U.S. 255,
                                           '    .. ,
· 274, 112 S. Ct. 1881, 119 L. Ed. 2d 57 (1992); Schlup v Delo, 513 U.S. 298, 130 L. Ed. 2d 808,

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



(1992); Tumey v Ohio, 273 U.S. 510, 532, 71 L. Ed. 749, 47
                                                         .. ,
                                                              S. Ct. 437, 50 ALR 1243 (1927);
                                                                                                 ,_,.

Kyles v Whitley, 514 U.S. 419, 436-37, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995); Harrington,
                                               · . M8me'F!Hio€lt:iH! 22
                                                                 '1-""/
131 S. Ct. at 786 (quoting Jackson v Virginia, 443 U.S. 307, 332, n. 5, 99 S. Ct. 2781, 61 L. Ed.

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

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

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

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

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

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

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

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

Judicial Conduct.
                                 r.·              l         ....



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

the judge has a direct financial interest in the outcome of the proceedings. Tumey v. Ohio, 273
                                 -                ' ..             -                                  -.       [" ~.




U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749, 5 Ohio Law Abs. 159, 5 Ohio Law Abs. 185, 25 Ohio L.
                                                                                                               .'
Rep. 236. "His conduct will be controlled by the terms of the promise or the undertaking."

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

United States v Brewster, 408 U.S. 501, 526, 92 S. Ct. 2531, 33 L. Ed. 2d 507 (1972) ("The
                                                                                         "'           ,;
                                                                                         '·
illegal conduct is taking or agreeing to take money for a promise to act in a certain way."). (" ...
                                                               . . .   .                      .,      '
                                                                                                                       -'

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

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

United States, 527 U.S. 1,8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (the presence of a biased
                                                                                                               .. ·.::.,
decision-maker is a structural error subject to automatic reversal); Edwards v. Balisok, 520 U.S .
                                                                       .       •,


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


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



him."); Brecht v Abrahamson, 507 U.S. 619, 629-30, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993)
                                                  · Msmi:fflt.Hcittm. zei>
                                                                       '2.'5
                                            •::
(Trial errors that occur during the presentation of the case to the jury are subject to harmless-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

personally observe those standards so that the integrity and independence of the judiciary is
                                             c.·       .... -- ' •,        __    ,,_._   - . . . . . .!   •   '   ··,



preserved." Canon 2: Avoiding Impropriety and the Appearance of Impropriety in All of
                                                                                                 ''1''"

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

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

And, (B) A judge shall not lend the prestige of judicial office to advance the private interests of
                                  ~-'
                                  c
                                        .

the judge. Cannon 3(A): Performing the Duties .,of, ..Judicial
                                                       ,
                                                               Office Impartially and Diligently
                                                                            __




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

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

A judge shall not be swayed by partisan interests, public clamor of fear of criticism." And,
                                  .. · -           ·Mem6fflfithtm 2:<1-
                                                              -J..'-'
                                                                 . ~ . ··- ....
                                                                      '.
Canon 5: Refraining from Inappropriate PolitiCal Activity (1) A judge or judicial candidate

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

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

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

within the scope of the pledge.

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

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

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

United States.


                                  ~-.   ·.
                                        . ·'
                                             ~-.--.:   .   .       '

                                                                        ARGUMENT·

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

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

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

of Energy, from the issuance of the announcement
                                      .     .
                                                 of the Stimulus
                                                            .    Program until Applicant was
                                    -..       ·,

arrested on October 11, 2011.

      Miller, as a Senior Deputy Sheriff, knows that making patently false or misleading
                                             .. '· . ·... ... ,.                                         /    ;   '                ,.



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

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

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


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

Holly Taylor, relied upon, but failed to verify,
                                          .. ,.
                                                 or confirm, even
                                                             .  .
                                                                  after being told to their faces, by
                                                               •         1:,   •           ;   ·. ::    ·:. :._       . .   ., .



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

seen in a reflective photo, that clearly identifies her by her dark hair (Carter is a bleached
                                                                       M6ffiel'!ffl4:tm '25
                                                                               '27
blonde), wedding ring and jewelry (that she wore to conrt daily) taking the picture over by the

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

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

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

Applicant and on the part of SECO employee, Mary
          '
                                                        J;b Woodall, by Martin Cano, Chief of
                                                          (,




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

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

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

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

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

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

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

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

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

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

1993; the shield company was a Sole Source provid~r since 1998 and had been awarded
                                                      · -,iL Ur"-                            ·
successful contracts with the Department of Defense, FBI;             ut
                                                                Marshal's, U.S. Secret Service,
                                                         ,-~   r':     · -·r
U.S. Department of State, Diplomatic Security and international police organizations, including

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

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


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

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

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

Chief of Police, aggressively investigated bad cops and would have no qualms, conviction or not,
                                            MeHter!ltlffiml: 'Q,~              ,
                                              -z.'b
                                                           ,.'"
                                                              ·-·-;-. •'




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

was angry specifically at the vindictive prosecutorial and government misconduct involving

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

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

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

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

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

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




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

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

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

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

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

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

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

"Panama presentation" and Howard Reed Affidavit).
                                                             r :·
      Not only did Miller and McCoy know Applicants background, but Applicant provided CM

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




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

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

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

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

background and wore his medals and defining patches on
                                                     ,..
                                                         his motorcycle vest in the employees

presence, almost daily from the time he started with Shepherd and Eric Graham's, University of
                                            Met!iel'lll.Tclt!Hi 29
                                                 ~"l
Texas, class projects in 2008, until Applicant was arrestt!d on October 11, 2011. (See Exhibit 2,

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

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

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

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

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

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

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

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

Systems and were well aware of the large number 'of patent and Intellectual Property
                                                         '
infringement cases filed in Federal Court by American companies every year .
                                                           .;:_           .   '

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

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

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



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

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

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

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

opportunity to obtain and advantage over competitors who do not know or use it." N. At.
                                                         'q .      ~:·i

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

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

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

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

Applicant was working directly with Michael Guevara, CM Energies General Counsel, and
                                          MBH!ei'aHE!-effi· 28
                                              "$0
Robert McLauchan, CM Energies Intellectual Property Patent Attorney regarding the protection

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

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

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

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

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

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

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

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

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

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

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

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

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



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

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

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

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

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

City Attorney, who also knew Applicant was working with Guevara and McLauchlan, Guevara
                                         .. ~ .!' ., .   ! •••••



left their little group after seeing the. falsified time sheets, and Miller's email admitting to
                                               .. ,'.    __   ··-·-"
                                                              ·,.                i :,


breaking into City Hall and wishes to do Applicant harm. Guevara himself was called a "traitor"
                                                                       ::.,·.· ,-'
and other things by Miller after he disassociated himself with Miller, Karlson Cook, Graham,

McCoy and the others.      In addition, Applicant and Guevara were sent malicious emails
                                         .-Meffi:eit\f!Effiih 29
                                                 . . ??I.. ,
containing viruses by Miller. (See Exhibit 1, Applicant's Yahoo email screen sheets with three

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

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

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

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

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

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

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

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

pursued terminating Miller, Cook, Graham, K11rlson, and others, three times and again a month
                                                           i   1 '   • r ••• •• '



later.
                                                   ' .··
         On July 15, 2011, Travis County Assistant District Attorney, and prosecutor of the case,
                                                       .   ,\.



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

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

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

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

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

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

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

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

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

Professional Conduct and the Texas Disciplinary Rules of Professional Conduct, Rule 3.03(a)(l),
                                  ·...   :"'L:·:       .• •                    ··•'··

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

offered, through the advice and counsel to Carter, and in bad faith, and assisted Carter in making
                                  ..
patently false and misleading statements, and coaching her to make material omissions to the

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

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

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

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

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

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

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

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

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

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

and misrepresentation when they submitted patently false, and misleading information, and
                                .                      :) ~                 ..
knowingly, and intentionally omitted material exculpatory information to the magistrate in the

presentation of the search warrant affidavit to keep that magistrate from making an informed
                                    .. <               l    ·•.   i ,,

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

Responsibilities Of A Prosecutor (a) refrain from prosecuting a .charge that the prosecutor
                                                       ,..
knows is not supported by probable cause; (d) make timely disclosure to the defense of all

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

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

tribunal all unprivileged mitigating information known to the prosecutor, except when the
                                                       .     (    ''
prosecutor is relieved of his responsibility by a protective order of the tribunal; (g) When a

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




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

prosecutor shall: (1) promptly disclose that evidence to an appropriate court or authority, and
                                                   •MemElfilflatufi'B i .
                                                                   -~
(2)(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to

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

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

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

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

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

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

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

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

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

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

Applicant or Mary Jo Woodall committing an offense, and being innocent of the allegations, but
                                                             ,. ··-·... ,.            ; \


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

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


was not an employee of CM Alternative Energies, Inc., the subcontractor, or the City of
                                                   , ,
Jonestown, the Grantee, and who had not signed ~my government document. Taylor and Carter
                                              ...,,.
knew the City of Jonestown conducted its own independent due diligence and the Mayor, Deane
                                                   ._.,, .. .,         .,   .. -, .., .
Armstrong, knowingly and freely signed the Grant on behalf ofthe City. (See Exhibit 5, 299th

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

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

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

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

Sage, heard numerous testimonies, and examined numerous pieces of material exculpatory
                                            . ·.. "              •,,         -'


evidence. Sage heard numerous arguments of ongoing Brady violations and selective and
                                           ·Meffief!ifl'ffi:!Hi 32
                                                             -?t.-1
                                              ,-   .. .,..
                                                                                  .   ,! ' -
 vindictive prosecution. (See Exhibit 5, 299th District Court Records, D-1-DC-13-904021-EXH-

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

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

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

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

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

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

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

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

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

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

, RECORD, and D-1-DC-13-904201_395, pages 183-326 CLERKS RECORD).                                          Evidence is
                                                                . ;"-.        ..
 "material" within the meaning of Brady when there is a reasonable probability that had the

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

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

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

 33, 115 S. Ct. 1555, 1565, 131 L. Ed. 2d 490 (1995); United States v. Bagley, 473 U.S. 667, 674,
                                                         ·'    - ·····
 105 S. Ct. 3375, 3379, 87 L. Ed. 2d 481 (1985). Valdovinos v McGrath, 598 F. 3d 568 (9th Cir.
                                                         . , ,·.,.


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


 86, 67 L. Ed. 543, 43 S. Ct. 265; Frank v Mangum, 237 U.S. 309, 59 L. Ed. 969, 35 S. Ct. 582;
                                      -                  1       '~.          • ' ,--,'           ,.


 People v Mooney, 175 Cal. 666 .,P. 999; People v Mooney,
                                 __               '". -.. ,
                                                            176 Cal. 105, 167 P. 696, 177 Cal.

 171 P. 690.

      Taylor, Carter and Miller all allege Applicant committed fraud, creating Wind Energy
                                                         !" ·--'         ,-


 Systems that didn't work, even though there is ample proof the full size prototypes at The
                                        Meffi6ffitlditin jJ ·.:
                                                                                   ... -... ,..
University of Texas, JJ Pickle Research Center did, and the supervising professor, Ron Stearman

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

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

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

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

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

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

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

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

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

denied, 113 S. Ct. 107 (1992); United States v George Bohl, 25 F. 3d 904 (lOth Cir. 1994). (See
                                . ~ ,.1   '''


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

REPORTERS RECORD, D-1-DC-13-904201_395, pages 183-326 CLERKS RECORD, and

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

Motion to Vacate, and Exhibit 1, Jonestown City Couneil Agendas and Minutes).

      Sage heard testimony from the complainant, Travis County Deputy Sheriff, Toby Miller, a
                                                                                                  )



17-year deputy with the Travis County Sheriff's Office, who began his complaints ensuring he
                                                                                  >,.



was identified as a Senior Deputy Sheriff (See 299th District Court Records, D" 1-DC-13-
                               ,       ..    .  . ·- (. .. -      ~




904021-EXH-VOLUME027, pages 537-558), admitting to falsifying payroll time sheets to a
                                                              :I ' -       .. ,         i ·



Federal energy grant, and his Travis County Sheriffs Office time sheets. Sage heard Miller
                                      -:'    '.      r.: ,


admit he never read the Grant, or any of the Code of Federal Regulations associated with the
                                                              .                   .


mandatory NEPA Environmental Assessment (EA) and that he had no idea what the Grant
                                                ~   ..   -~       (   .   --                          .   -



requirements were, or what the contractual obligations of CM Alternative Energies, Inc., the sub-

contractor to the Grantee, the City of Jonestown was.                                    Additionally, Miller testified to using the
                                                         ·.Meffiel'iffie:li:l~ 3 4 •• .·
                                                                    ?'-
 National Crime Information Center (NCIC) computer, his Sheriff's uniform, and motorcycle for

 personal gain; illegally entering into a government building that he had no business in after

 closing; and his leadership role in trying to take away protected technology of another, and his

 trying to take over a wind energy company that he had no ownership control in, and when he

 failed, he used his position of authority to cover his crimes and initiate criminal prosecution

 against Applicant and co-defendant Mary Jo Woodall. (See Exhibit 5, 299th District Court

 Records, D-1-DC-13-904021-EXH-VOLUMES 8, pages 193-201 and 15, pages 16-22 COURT

 REPORTERS RECORD, D-1-DC-13-904201_395, pages 183-326 CLERKS RECORD).                                               In

 addition, Sage heard Miller initiated his complaints the day he found out, by the corporate

 attomey, Michael Guevara, Applicant caught Miller falsifying time sheets, and had put him

 under criminal investigation with the Grantee, the City of Jonestown. Miller admitted, under
                                                                                                          '.
                                                                                                               ':•
 oath, to conducting an investigation to build the predicate criminal case against Applicant. Miller
                                                          -- '.                                       ~


 did this under the color of authority, for personal gain, _and not authorized by either the Travis
                                            '    . '·-. ' . ; ·_' ~   '/     ' .

 County Sheriff's Office or the Travis County District Attomey' s Office. (See Exhibit 5, 299th

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

 RECORD, D-1-DC-13-904201_395, pages 183-326 CLERKS RECORD, and Exhibit 6, Charlie
                               :c\! , - ,-.--
 Malouffv. United States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate).
                                                                      . ..                                     .'


       Other significant testimony was from Travis County District Attomey Investigator, Lori

 Carter, who admitted, under oath, one reason she targeted Applicant was for his comments, "If I

 tell you I will have to kill you" made not as an assertion of fact, but in a popular sense, common
                                       :   ...               ··:··,·····
 in public opinion, used in a joking manner, not obscene, not defamatory, not words tantamount
                                   ., .    ' . .
 to an act otherwise criminal, not an impairment of some other constitutional right, not an

. incitement to lawless action, not calculated or likely to bring about imminent harm, and protected
                                                                                            ,.....,

 by the First Amendment of the Constitution. And, "I love my country, I despise my government"
                                   ·                              Mem:efftflffiiffi 3§
                                                                      ?7
also made not as an assertion of fact, but in a popular sense, common in public opinion, not

obscene, not defamatory, not words tantamount to an act otherwise criminal, not an impairment

of some other constitutional right, not an incitement to lawless action, not calculated or likely to

bring about imminent harm and protected by the First Amendment of the Constitution, but

twisted by Carter as "anti-government statements" during her investigation to bolster anger and

animosity towards Applicant. (See Exhibit 5, 299th District Court Records, D-1-DC-13-904021-

EXH-VOLUMES 16-19, COURT REPORTERS RECORD, D-1-DC-13-904201_395 CLERKS

RECORD, and Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY (A-11-CR-647(1)-

LY) 2255 Motion to Vacate).

      Not only did Carter admit to this in Applicant's trial, but Captain Gleason, Williamson

County Sheriff's Department SWAT Commander, who .conducted the raid on Applicant's co-

defendant's home on October 11th, 2011, testified to this in a hearing for Applicant's co-
                                                                    .   ,   .. - ,.,      -, .. :·.-·

defendant in June of 2012.
                                                                                               .    ,.          ·'-_ '   ..
      Carter admitted, under oath, to violating Applicants Fifth Amendment right to remain

silent when in custody.      (See Exhibit 5, Court Reporter's Record Travis D-1-DC-13-904021-
                                  :.(~:-:   .-   . ·._·     < --, . . , , . \ ....- '.

EXH-VOL 19, pages 85-120, and Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY
                                                   . . . . . ,-!_                              _.,-




(A-11-CR-647(1)-LY) 2255 Motion to Vacate, Supplemental Report).
                                                                                                .                   '
     Carter admitted to being told by numerous key personnel from the Texas Comptroller, and

the Travis County District Attorney's Forensic Auditor, months before the search warrant

affidavits were written, there was no evidence a crime had been committed. (See Exhibit 5,

299th District Court Records, D-1-DC-13-904021-EXH-VOLUMES 12 and 19, COURT

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

Malouf! v. United States, A-13-CV-572LY
                              '
                                        (A-11-CR-647(1)-LY)
                                             ,.    _,.-
                                                            Petitioner's Supplement    _____




Response Exhibit 4)
                                                          Mlffl'fe>t ~:tftdt!rit Ei6 -' • • •
                                                               1~
                                                                                               _· .. :   ....
        In a separate hearing for Mary Jo Woodall, Sage stated that she believed the "inappropriate

relationship" between Applicant and Woodall was simply a sexual relationship between long

time friends.    (See Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY (A-11-CR-

647(1)-L Y) Petitioner's Supplemental Response Exhibit 2)

        Sage heard the testimonies of these key personnel and others, examined material

exculpatory evidence, heard of multiple, ongoing, Brady violations and was presented evidence

of selective and vindictive prosecution, in and out of the presence of the jury. During these

Brady arguments, Holly Taylor had every opportunity to remedy her Professional Misconduct

and exercise her affirmative duty of candor to the tribunal, and admit that she was acting as an

"investigator" and not an advocate after July l5'h, and knew Applicant and Mary Jo Woodall did

not commit any crime, and submit the exculpatory evidence in her possession. Brady, 373 U.S. at

87, 83 S. Ct. at 1196-97; Texas Disciplinary Rules Of Professional Conduct Rules 3.8, 8.03 and
                                                              ..                         .
                                                                                     .   •!-


8.04.

        On July 15, 2011, Travis County Assistant District Attorney, Holly Taylor, left her role as

a prosecutor and thereafter engaged in the role of "investigator" gathering evidence, interviewing

witnesses, getting facts and information, giving legal advice, and clearly functioning as

investigator.. (See Exhibit 6, Charlie Malouf! v. United States, A-13-CV-572LY (A-11-CR-
                                                                                   ..,_, ...
647(1)-LY) 2255 Motion to Vacate, Supplemental Report Field Observations-Chief Stetar

attachment and Exhibit 2, reflective photo of Taylor taking photos of evidence). Clearly at that
                                            -l.-         '         ..   ,.\



time, Carter and Taylor lacked probable cause and Taylor was not in a position to claim to be an

advocate. All information and evidence gathered by Taylor after that date is subject to Brady

and cannot be hidden from the defense as work product.

        Under Brady, in order to ensure the accused a fair trial, a prosecutor has an affirmative
                                                     . , ... ; '·
                                                             . .              \.


duty under the Due Process Clause of the Fourteenth Amendment to tum over to the accused all
                                         Memerflftffiiffi 37 " ··
                                                   ..   ·~~                        ....
exculpatory or impeachment evidence, irrespective of the good faith, or bad faith of the

prosecutor, which is favorable to the defendant an is material to either guilt or punishment. This

includes the prevention of willful and intentional destruction of that exculpatory or impeachment

evidence. Those Wind Energy Systems with electrical systems in tact, impeachable evidence in

the fmm of Aaron Knapek's improper wiring setup and magnetic brake (see Exhibit 2, Aaron

Knapek City Hall and Waste Water Treatment Plant wiring and alternator photos), and capability

to be converted to working Wind Energy Systems with a correctly wired generator were

favorable to the accused because it was both exculpatory and impeaching; were suppressed and

destroyed by the State; as a result, prejudice ensued with the conviction. Brady v. Maryland, 373

U.S. 83, S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Evidence is "material" within the meaning of

Brady when there is a reasonable probability that had the evidence been disclosed, the result of

the proceeding would have been different Cone, 129 S. Ct., at 1783; United States v Jernigan,
                                                                           ._.,·
                           1
492 F. 3d 1050, 1053-54 (9 h Cir. 2007); Kyles v Whitley, 514 U.S. 419, 432-33, 115 S. Ct. 1555,

1565, 131 L. Ed. 2d 490 (1995); United States v. Bagley, 473 U.S. 667, 674, 105 S. Ct. 3375,

3379, 87 L. Ed. 2d 481 (1985). This duty attaches as soon as the information comes into the
                                        'J··-



prosecutors possession. On July 15'h, 2011, the first of an enormous amount of exculpatory and

impeachable information was collected by Holly Taylor herself, as portrayed in a reflective
                                                .. .   .· ,-.   .. ': --·,'   ', ;   ..,.. '       -   .


photo of her, clearly identified by her wedding ring and jewelry, taking photographs of evidence
                                        . ' ..                         '    ., '   ',.   ,-.


at the Jonestown Waste Water Treatment Plant, then directly delivered to Holly Taylor,
                                 --     '
functioning as an "investigator" by the Jonestown Chief of Police, John Stetar, and later her

taking pictures of the area around Fire Station 2. All exculpable and impeachable information

gathered by Taylor was mandated to be released to the defense and the crime scene and other

mate1ially relevant property involved  in the very case T<tylor was prosecuting was mandated to
                                   ,..
                                           ..
                                           ,_




be protected by Taylor and her office. In addition, Taylor, her supervisors Susan Oswalt and
                                            M6ffteffititffifn'38                               ·
Greg Cox all required candor, under the Rules of Professional Conduct, to the tribunals to

 disclose Taylor's conduct and dismiss her from prosecution as she was now an impeachable,

 exonerating or exculpable witness.

        Jackie Wood took over Applicant's case from Daniel H. Wannamaker in November 2011,

 who was removed because of a Conflict of Interest. She was appointed by, in her own words,

"my best friend", Karen Sage, the trial judge.

      During the first meeting with Wood, Applicant told her, in the presence of Tom Walsh, our

investigator, Katrina, her paralegal, and her then co-counsel, who Applicant does not recall her

name, as she did not stay long on the case, and was replaced by Tamara Needles, that Applicant

could not get a fair trial because of the relationship of Karen Sage, and Rosemary Lehmberg, the
                                                       '          ,,,           ·.,.,.

District Attorney, Kirk Watson, and other persons in the Capital Area Progressive Democrats.

(See Exhibit I, Capital Area Progressive Democrats).                                 Wood told Applicant not to worry

because Sage " .. .is my best friend."

      In almost one year of incarceration, Tamara Needles and Jackie Wood visited Applicant

either four or five times total, collectively amounting to about 1.5 hours of official visitation.

The Travis County Jail has the official visitation records and there are NO recorded visits at FCI

Bastrop. This was a capital crimes case that was over a month just on the prosecution side, and
                                   '   I   '   . -I'            I:~· '~~        -:r·,'

an expected up to six weeks of defense presentation.

      In Jackie Wood's last visit with Applicant in the Travis County Jail, just prior to trial, she

again told me Karen Sage was her "best friend" and "Karen has my back." While they may be
                                                                    .    ·-··
. "best friends", the way and meaning imposed on Applicant by Jackie Wood, was that Sage
                                                                         .          +''


would rule her decisions in favor of her "best friend." Applicant took it this way as Wood was so

confident in her negligence to visit with Applicant. to update on the case, or to identify and
                                                                  •. ,   - ! -~-:




address government witnesses, and relinquished government and defense exculpatory evidence,

                                                           il
or to go over what material evidence was missing, after having told Applicant "no one knows

more about this case than you do."

      Sage listened to Travis County District Attorney .Investigator, Lori Carter admit to

violating Applicant's Miranda and ''targeting" Applicant for free speech. Sage heard repeated

arguments of ongoing (and still ongoing) Brady violations, three major Constitutional violations.

      Sage, not in the presence of the jury, listened to other Government witnesses, some from

the Texas Comptroller including Martin Cano, Chief· of the law enforcement Criminal

Investigation Section who reviewed the grant, imd searched Mary Jo Woodall's work computer

and a personal USB storage device, and returned them to Woodall with a follow up report to

Cart~r,   "there was no evidence of wrongdoing" weeks before Carter applied for her warrants.
                                                  ,,   '·-,-,;.... ,.,·

(See Exhibit 6, Charlie Malouffv. United States, A-13-CVc572LY (A-11-CR-647(1)-LY) Cano

Transcript attachment).

      Sage heard the District Attorney's own forensic auditor, Robin Timmins, say there was no

crime, and that she had informed Carter and Taylor in late June, and again in September, months

before the application of the search warrant, she did not feel a crime had been committed. It was

then when "she got it" as described by Needles and Wood, and visibly observed by Applicant, by

Sage her throwing her head to the side and sitting back in her seat with a look of disgust.

(Courtroom security cameras should have that on tape). (See Exhibit 5, 299th District Court

Records, D-1-DC-13-904021-EXH-VOLUMES 12, 13 and 19, COURT REPORTERS

RECORD, D-1-DC-13-904201_395CLERKS RECORD, and Exhibit 6, Charlie Malouff v.
                                           . ..    '


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

Judicial Misconduct and Bar Grievances).

      On August 20th, Sage ruled. that Carter mislead the. magistrate (see Exhibit 6, Charlie
                                                    .....        ',•




Malouff v. United States, A-13-CV-572LY (A-11-CR-647(1)-LY) Petitioner's Supplemental
Response Exhibit 2). It was clear by the testimony of Carter and Miller, (in Sage's own words)

this was a " .. .travesty ofjustice."

      After determining Travis County District Attorney Investigator, Lori Carter, had made

patently false statements and mislead the magistrate in at least one portion of the search warrant

affidavit, Holly Taylor should have admitted her professional misconduct and Sage should have

granted a Frank's hearing.

      A search warrant may be voided and the fruits of the search excluded if the warrant

affidavit ,contained certain misrepresentations or omissions. Franks v Delaware, 438 U.S. 154,

171, 98 S. Ct. 2674, 2684, 57 L. Ed. 2d 667 (1978). A defendant must show that 1) "the alleged

misrepresentation or omissions were knowingly or recklessly made" and 2) "the result of
                                        ·-i-               '                          . -·,·-:·

excluding the alleged misrepresentation and including the alleged omissions would have been a

lack of probable cause for issuance of the warrants" United States v. Novaton 271 F.3d 968 (11th

01). In Frank's, Justice Blackmun recognized that a warrant could be invalidated if a "false

statement is necessary to the finding of probable cause."
                                               ··.-···         ....... ,.,_ ..

      Taylor's professional misconduct, and Sage's failure to grant a mistrial, or dismiss with

prejudice, and her rulings, and failures to rule on other motion's, compounded by Applicant's
                                                                                     ; (    ..
attomey' s expectation of favoritism, manifested an already ongoing miscarriage of justice, and

rendered Applicant's trial so fundamentally unfair it violated all rights of due process.
                                               f   •   •          •   •




      Making this already egregious and grotesquely unconstitutional situation worse, was the

irresponsible and unethical conduct of Needles and Wood in using "best friend" favoritism as an

excuse not to put on a defense. Jackie Wood violated Model Rules of Professional Conduct Rule
                                                                                 •. I • ' \':1 '

8.04 (a) (1) when she "personally and, through the acts of another," Tamara Needles, in

conference just prior to the Defense resting, violated Rule 8.04 (3) engaged in "conduct
                                                   .. ' ..
involving dishonesty, fraud, deceit and misrepresentation," again impressing on Applicant that
                                                   Metfiel'ttfiehfm 41
                                                                      q?
Karen Sage "got it!" and "Karen's got it!" and Wood's statement, "Karen's got my back!" and

both Wood and Needles saying "trust me" and "we should rest" violating Rule 8.04 (a) (5)

"state or imply an ability to influence improperly a government agency or official",

misrepresenting and deceiving Applicant into believing, as Sage's "best friend" they had already

arranged for favored decisions from Sage and that Applicant should throw away his opportunity

for a defense presentation that was "several weeks" worth of exculpatory witnesses and

evidence.

      During this conversation Applicant told both Wood and Needles he wanted to challenge

prosecution witnesses and at least have several of the Defense witnesses testify. (See Exhibit 1,

Howard Reed Affidavit). They continued to impress on Applicant Karen Sage "got it!" and
                                                       '
"Karen's got it!" and "Karen's got my back!" and "trust me" and "we should rest" There is no

ethical or responsible "trial strategy" in intentional deception and misrepresentation of the

expected conduct of a trial judge or the trial counsel to throw away a clients rights to a fully

engaged and meaningful defense and fair trial. As Officers of the Court, their statements and
                                                                        __   ,.

conduct can only be taken as "true". There can be no trial strategy justification here because this

conduct was so ill chosen it permeated the entire trial with obvious unfairness. Seigfried, v

Greer, 372 Fed. Appx. 536 (S'h Cir. 2010).

      Aside from the professional misconduct, Tamara Needles and Jackie Wood blatantly lied

and deceived Applicant in their fraudulent and misrepresented relationship between Jackie Wood

and Karen Sage, and Wood's expectation of decisions by Sage as her "best friend" regarding

Applicant and the case. (See Exhibit 1, Bar Grievances).

      Wood's and Needles words, confidence, and intent were conduct that was impressed and

implied in a manor that exhibited the confidence Sage would decide key judicial decisions in
                                          ' __i   .,            .-.,.


favor of her "best friend." This   inapp~opriate  reliance on the "best friend" relationship, based on
                                   ''      • . Meffiefaii:SRirl 42 .
                                                           J~
. the conduct of both Tamara Needles and Jackie Wood, stated below, falls on the unethical and

 irresponsible conduct of both attorneys and calls into question the integrity of both the trial judge

 and failness in the administration of justice.

       After the verdict, Jackie Wood told Applicant "Karen's decisions were political." Shortly

 thereafter, Ariel Payan was appointed, by Sage; as Applicant's appellate counsel. In a visit at the

 Travis County Jail, Payan hand delivered a letter dated October 22, 2013, and in a "let's cut to

 the chase" conversation, Payan told Applicant "my wife works for the prosecutor's office." "We

 are friends with Holly Taylor and I know her husband." And, "We all talk." And, "It's a close

 knit group." Payan then told me "The judge's decisions were political. Political and influenced

 to get contributions and votes for her upcoming re-election" And, "The judge is not likely to
                                   ._,.••                          ,   I                          •




 decide on something that can effect her election." (See Exhibit 1, Judicial Misconduct and Bar

 Grievances,). At that point, Payan was obligated under the American Bar Association Model

 Rules of Professional Conduct, and the Texas Disciplinary Rules Of Professional Conduct, to

 notify the trial court, or the Appellate Court, of the issues raised and conflicts of interest created
                                  ,.. ,.,   .,


 therein. United States v. Grieg, 967 F. 2d 1018 (5 1h Cir 1992); ("While we recognize that a trial
                                                                                 ''   t   •




 court does not always have an affirmative duty to inquire into the possibility of a conflict of

 interest, it does have a duty to conduct a hearing once it has been alerted and certainly when it
                                                 I'                                  '•·r


 knows of the existence of an actual conflict of interest."). Armstrong v. State, 573 So. 2d 1329,

 1335 (Miss. 1990). ("As an actual
                               ..
                                   conflict which adversely affected
                                                             ..
                                                                     counsel's performance was
                                                                             "




 shown, the trial court, who Wood implied by their relationship, the decisions were already made,
                                   ..                                            .            '

 reasonably should have known the conflict existed"). As of August 5'\ 2014, Payan has neither

 complained to the Tribunal, filed for a new trial, filed a report to the Bar Association, responded
                                                          ....                            ,,

 to, or requested information from Applicant, or stepped down as Applicant's appellant attorney,
                                                      . ·,.-<-

furthering Applicant's fears of being further prejudiced and not getting a fair appeal .
                                                         .·..~i6tntlr.ai1dtiin 43· :··'
                                                        ,..,
      Here we have an extraordinary case of rimltiple errors that created an extreme malfunction

in the justice system. The "best friend" of the trial judge failing to continue adversarial testing to

prosecution witnesses, after being instructed by Applicant to address exculpatory information,

including cross-examining the prosecutor, who after July 15th, 2011, left her role as advocate

and functioned as an "investigator" and was subject to cross-examination on the facts she was

given and not verified from that point on, and her giving legal advice to the police on material

omissions and misleading the magistrate. And, defense counsel's failing to put on any

meaningful defense or call exculpatory witnesses, (see Exhibit 1, Howard Reed Affidavit) who

were readily available to testify, because she was so confident in her relationship with the trial

judge, and that the judge would rule in her favor, complicated by the trial judge herself, who for
                                     -   ~-   '      ,
                                                  -.. '



pecuniary interest, in votes and contributions, in her upcoming re-election campaign only weeks

away, ruled against Applicant. Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749, 5

Ohio Law Abs. 159, 5 Ohio Law Abs. 185, 25 Ohio L. Rep. 236 ("the court has consistently

found a breakdown in the adversarial process when the judge has a direct financial interest in the

outcome of the proceedings." (See Exhibit 1, Judicial Misconduct Karen Sage for Judge). "his

conduct will be controlled by the terms of the promise or the undertaking." McCormick v United

States, 500 U.S. 257, 273, 111 S. Ct. 1807, 114 L. Ed. 2d 307 (1991); United States v Brewster,
                                     ____ ,,_..
                                 "
                                                          \'.           .. ,-"   -



408 U.S. 501, 526, 92 S. Ct. 2531, 33 L. Ed. 2d 507 (1972) ("The illegal conduct is taking or
                                                                                     ..
agreeing to take money for a promise to act in a certain way."). (" ... receipt of something of

value, "in exchange for an official act." United States v. Sun-Diamond Growers ofCal., 526 U.S.

398,404-05, 119 S. Ct. 1402, 143 L. Ed. 2d 576 (1999). Karen Sage stated," .. ..I have reviewed

all documents and records as well." (See Exhibit 5; 299th District Court Records, D-1-DC-13-

904021-EXH-VOL004, page 19). Karen Sage was presented with Defendants Brief in Support

of Materiality of Falsehoods and Omissions (see Exhibit 5, Clerk's Record D-1-DC-13-
                                                            ·~ienlBfaftdttm- 44
                                                                  ~}I
904021_395, pages 267-269); Defendants Brief in Support To Brady Violation (see Exhibit 5,

Clerk's Record D-1-DC-13-904021_395, pages 244-249 and Letter from Jonestown to the

Department of Energy and Holly Taylor, Travis County District Attorney, July 18, 2012 Gust

three days after Holly Taylor was told to her face by the Jonestown Chief of Police, John Stetar

that Toby Miller was a suspect in Attempted Murder and sabotaging the Jonestown Wind Project

and that there was an active police investigation under way) page 200); Defendants Brief in

Suppmt of Frank's Ruling (see Exhibit 5, Clerk's Record D-1-DC-13-904021_395, pages 240-

243); Defendants Motion to Suppress Evidence Due to Spoliation (see Exhibit 5, Clerk's Record

D-1-DC-13-904021_395, pages 179-181); Defendants Motion to Quash hnproper Complaint

(see Exhibit 5, Clerk's Record D-1-DC-13-904021_395, pages 186-188, and Exhibit 6, Charlie
                                 ~,                   -.            _.,                  ,.,   .


Malouff v. United States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate);
                                         -.;                                       ..,    '




Defendants Motion to Quash for Selective Prosecution (see Exhibit 5, Clerk's Record D-1-DC-

13-904021_395, pages 183-185); Defendants Motion to Suppress/Frank's Motion for Directed

Verdict and Motion to Suppress (see Exhibit 5, Clerk's Record D-1-DC-13-904021_395, pages

10-12), and as such Karen Sage was clearly the decision-maker. Neder v. United States, 527

U.S. 1,8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (the presence of a biased decision-maker is a

structural error subject to automatic reversal); Edwards v. Balisok, 520 U.S. 641, 647, 117 S. Ct.

1584, 137 L. Ed. 2d 906 (1997) ("A criminal defendant tried by a partial judge is entitled to have
                                                          --._.                          , ..,•.         ··,


his conviction set aside, no matter how strong the evidence .against him."); Brecht v
                                           •   ') •   r    '•        •    '   .,          ••   '   ,••   '   '   •!'



Abrahamson, 507 U.S. 619, 629-30, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993) (Trial errors that
                                                                '         I                                  ;•·•.




occur during the presentation of the case to the jury are subject to harmless-error analysis. "At
                                                                                         ..    --- '.

the other end of the spectrum of constitutional errors lies "structural defects" in the constitution

of the trial mechanism, which defy analysis by the "harmless-error" standard and require

automatic reversal." !d.); Johnson v United States, 520 U.S. 461, 469 117 S. Ct. 1544, 137 L. Ed.
                                          · Mef!ieF!tiitlttm 4:5 ·
                                                 ~~
2d 718 (1997); Rose v Clark, 478 U. S. 570, 577-78, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986)

("If the defendant had counsel and was tried ·by an impartial adjudicator, there is a strong

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

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

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

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

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

States v Ganim, 510 F. 3d 134, 147 (2"d Cir. 2007).

      Applicant shared the front page of the Austin American Statesman several times with the

District Attorney, Rosemary Lehmberg, who was arrested for DWI and was facing criminal

charges and impeachment, in addition to her personal battle with Rick Perry, the Governor of

Texas over his shutting down funding of the Public Integrity Unit and this case was a political

firebomb excuse as to why they had to have funding. (See Exhibit 1, Judicial Misconduct and

Austin American Statesman articles).

      Egregiously compounding these problems is the prosecutor, Holly Taylor, herself, who

almost two years before, left her role as prosecutor and functioned as an "investigator" and who

knew full well she was hiding exculpatory material evidence (see Exhibit 5, 299th District Court

Records, D-1-DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS RECORD, D-1-
                                                     I_~              :•        •·



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

CV-572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate, Carter Transcript attachment), failed·
                                             '
                                                     '_--,-                .,

to be candor with the tribunal at every stage of the proceeding beginning with the magistrate (see
                                          -· ,. r'·, .-,

Exhibit 5, Brief in Support To Brady Violation, Clerk's Record D-1-DC-13-904021'--395, pages
                                    7 '


244-249, Letter from Jonestown to the Department of Energy and Holly Taylor, Travis County

District Attorney, July 18, 2012 (just three days after Holly Taylor was told to her face by the
                                                     Memeftiflai:liR 4e
                                                              Lf-'6
                                             '   ~    -.
Jonestown Chief of Police, John Stetar that Toby Miller was a suspect in Attempted Murder and

sabotaging the Jonestown Wind Project and that there was an active police investigation under

way). (See Exhibit 6, Charlie Malouff v. United States, A-13-CV-572LY (A-11-CR-647(1 )-L Y)

2255 Motion to Vacate, Supplemental Report Field Observations-Chief Stetar and Jonestown

Police Reports). And, who completely ignored the facts that her primary complainant's were

already under criminal investigation in another jurisdiction for multiple felonies, and were

clearly attempting to cover up their crimes under the color of authority, then tried to hide behind

the work product doctrine, and she supported and encouraged the City of Jonestown to

maliciously destroy exculpatory physical evidence that could have only been proven in the Wind

Energy Systems they destroyed (See Exhibit 5, COURT REPORTERS RECORD, D-1-DC-13-

904201_395, page 200 CLERKS RECORD, Letter from Jonestown to the Department of Energy

and Holly Taylor, Travis County District Attorney, July 18,2012). Brady trumps work product
                                      ('

doctrine. Ex Parte Miles, 359 S.W.-3, 647 (Tex. Crim. App. 2012) (holding that the privilege

derived from the work product doctrine is not absolute, and the duty to reveal material
                                                                 ''-··

exculpatory evidence as dictated by Brady overrides the work-product privilege); see also

Hampton, 86 S.W. 3d at 612 (discussing the state has the duty to disclose police reports

containing material exculpatory information); Thomas v State, 837 S.W. 2d 106, 113-14 (Tex.

Crim. App. 1992). Carter stated in her July 15th, 2011 Supplemental Report, Chief Stetar- ·

Observations, she and ADA Holly Taylor were out gathering evidence and "investigating"

before they had any meaningful probable cause. This is substantiated by a reflective photo of
                                           . . . ·1   .




Holly Taylor (identified by her distinct wedding ring and jewelry) photographing an electric

meter out by the Jonestown Waste Water Treatment Plant. United States v. Buckley, 509 U.S. at
                                  -                          .

273, 113 S. Ct. at 2616. "The Supreme Court stated that a prosecutor neither is, nor should
                                ~t                . ·' ,·.
consider himself to be an advocate before he has probable cause to have anyone arrested, 509
U.S. at 274."; Broam v. Brogan, 320 F. 3d 1023, 1028 (9th Cir. 2003); Kalina v Fletcher, 522

U.S. 118, 127, 118 S. Ct. 502, 139 L. Ed. 2d 471 (1997) "The nature of the function performed,

not the identityof the actor who performed it."; Botello v Gammick, 413, F. 3d 971, 976 (9th Cir.

2005); Van de Kamp v Goldstein, 555 U.S. 335, 342, 129 S. Ct. 855, 172 L. Ed. 2d 706 (2009);

Jones v Cannon, 174 F. 3d 1271 (5th Cir. 1999).

      From that point on, Holly Taylor left her role as a prosecutor and entered the role of

"investigator" gathering evidence, as proven in her reflective photo of her photographing

evidence at the Jonestown Waste Water Treatment Plant, (see Exhibit 2, photos) and providing

legal advice to Carter. Taylor and all of her notes, reports, recordings and other instruments used

in gathering evidence and interviewing witnesses containing exculpatory evidence are subject to
                                      ,_   -·   ('



disclosure and cross-examination. Brady v. Maryland, 373 U.S. 83, S. Ct. 1194, 10 L. Ed. 2d

215 (1963); United States v. Burns, 500 U.S. at 496, IllS. Ct. at 1944-45; Botello v Gammick,
                                                                                                                         •.:

413, F. 3d 971, 976 (9th Cir. 2005); Van de Kamp v Goldstein, 555 U.S. 335, 342, 129 S. Ct.

855, 172 L. Ed. 2d 706 (2009). The fundamental fairness in the rightto adversarial testing, and a
                                      -              ......       '       -

fair trial, was lost when Holly Taylor was allowed. to prosecute the case and, when she should
                                                                                                        .,.,   r




have been subject to cross-examination, hid behind her cloak of advocate.

      The appointed appellate attorney, Ariel Payan, whose wife worked for the District
                                                                  ''···                                              I   ,''.




Attorney and who are friends with the prosecutor, further contributed to this fundamental
                                  .                           .
miscarriage ofjustice, because of his statements, and inside knowledge along with his failure to

properly bring these problems to the attention of the court (See Exhibit 1, Judicial Misconduct

and email to Payan 5/26/14), in violation of the American Bar Association and Texas

Disciplinary Rules 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 lawyers honesty, trustworthiness or fitness as a lawyer in other
                                          MsH'isfiiftatu¥1: 48 ·c·.
                                                                      '
                                                                                           s--g
                                                                                       . .. ,       .
                                                                      i       :-   '            .        - .. -...
respects, shall inform the appropriate disciplinary authority." And, (b) "a lawyer having

knowledge that a judge has committed a violation of applicable rules of judicial conduct that

raises a substantial question as to the judges fitness for office shall inform the appropriate

authority." (See Exhibit 1, Judicial Misconduct emails dated 3/21114, 5/10114, 5/22114 and

5/26114) All of these parties knew they were violating Applicant's right to due process, a fair

trial and appeal, and subsequently the same rights to Applicant's co-defendant Mary Jo Woodall,

but to save face, and because of their personal relationships, and a political self-preserving

attitude, none was willing to formally challenge the professional misconduct of the other.

      The statements, made by three independent Officers of the Court, regulated by the

American Bar Association Model Rules of Professional Conduct; Texas Code of Judicial

Conduct, and the Texas Disciplinary Rules Of Professional Conduct, can only be taken as true
                                          .I " .

and support Sage's violations of Texas Code of Judicial Conduct Canon 2(A)(B); Canon

3(B)(2); Canon 4(A)(l) and Canon S(l)(i) resulting in her making decisions contrary          to   and

involved 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.

      Combined, the statement's of three independent Officers of the Court regarding Karen
                                  ·-··       . r ··-:: .,<   ---~ ~   .... ,       ·,:,.
Sage's decision's based on "political" reasons for pecuniary interest, considering she was up for
                                 ~":




re-election, March, 2014 (See Exhibit 1, Judicial Misconduct), equate to a violation of the Texas

Code of Judicial Conduct, Canon 3, 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." And, (5) "A judge shall perform judicial duties without bias or
                                                       ..    ,--

prejudice."

      According to Rule 8.2 of the American Bar Association Model Rules of Professional

Conduct and the Texas Disciplinary Rules Of Professional Conduct Rule 8.02(a) "A lawyer shall
                                         Memerandtitir 49 ·
                                             S"""l
not make a statement the lawyer knows to be false or with reckless disregard as to its truth or

falsity concerning the qualification or integrity of a judge." These attorneys violated Rule

8.02(a) when they made the statements with reckless disregard as to their truth or falsity

concerning the integrity of Judge Karen Sage. (See Exhibit I, Judicial Misconduct and Bar

Grievances).

      As more withheld Discovery becomes available through Federal proceedings (See Exhibit

6, Charlie Malouffv. United States, A-13-CV-572LY (A-11-CR-647(1)-LY), the integrity of the

state proceedings will come under further question and suspicion.

      Applicant was convicted and sentenced to fifteen (15) years for Securing Document By

Deception. (See Exhibit I, Judgment Of Conviction By Jury)
                                 ,•
                                              ·.,r     .     ·.

      In Defendants Brief In Support Of A Court Finding Of Brady Violations, August 23, 2013

(See Exhibit 5, Clerks Record D-1-DC-13-904021_395, pages244-249), Taylor, Susan Oswalt,

Greg Cox, and the prosecutors in that office continued to violate Applicants Fifth Amendment

rights in violation. of the Texas Disciplinary Rules Of Professional Conduct Rule 3.03 (a)(l),

(C). 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.
                                       I,··                            .. .,
      Holly Taylor, Susan Oswalt, Greg Cox and the other prosecutors in her office, violated the

Texas Disciplinary Rules Of Professional Conduct Rule 3.03(a)(3)(c) and ABA Rules 3.8
                                         '.            •,   .,

Special Responsibilities Of A Prosecutor (a),(d),(g)(l),(h), and Lori Carter failed in her

responsibilities, as a police officer and person of public trust, when they failed to inform the

magistrate the information they were providing him, regarding an email dated 8/29/2008
                                         · Msmof&H~l:lffi. SQ
                                                     5"1---
                                                                                                   J
between Applicant and his "employees" (who were then studen~s involved in a one day a week,

Senior Design class project, at the University of Texas), Profess9r 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 !/we need,

when and knows the whole complete picture. Her decisions are as good as mine." (See Exhibit

5, 299th District Court Records, D-l-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;

             48/16 on the torque

Followed by a direct email at 4:03pm from Thompson t9 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 expotentially with speed.    Another important number is calculated wind

             turbine efficiency. Usually for VAXT this is in the range of 20% to 30%. Richard
                                           MeffiefttflER!Hi 51
                                                5'1
Followed by a direct email at 4:32pm from Murphy to Thompson;

               That's what I got. I6.4 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 minutesper hour and 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 Malouf!

               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
                                                        I','


they were requiring more information as it became readily available. McCoy knew this was

different business circumstances, that was temporary and related to Key Man issues that related

to a legal entity that just began 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
                                        Memmttnelttm 52
information was taken out of context and made to look like Mary Jo:s relationship with CM

Energies was more than what it was.

      Dana McCoy, Applicant's daughter and president of the Company, knew this. McCoy

knew, 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

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,

Mary Jo's role was, as ·a person of authority who was informed of the big picture, to give them

direction.

      Taylor, the prosecutors in her office, and Carter had the obligation to inform the

magistrate, but knowingly and intentionally omitted other material facts, such as, 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

perform 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 awarded grants were not only allowed, but encouraged to make a profit, and this was not
                                                I


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 and Cook

and Graham were under investigation for falsifying time sheets· on the Grant, and Miller for

involvement in Industrial Espionage in the theft ofa laptop used for the Project and contained

confidential and proprietary information, and his involvement in the s;1botaging of the windmills;

Miller and Cook, with McCoy and Guevara's approval, had provided the submissions Miller
                                    ~icurdrartdtinr. 53
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 the U.S. Fish and

Wildlife Service mandated structural design changes before they would allow NEPA permitting,

and those changes were made and approved by the Department of Energy and back down

through the Texas Comptroller to the City of Jonest9wn; that a corporation can use its profits as

it sees fit within .the bounds of the law; that ])ecause there were structural changes, common

sense would dictate that the new structure had to be tested; that since it was a cost reimbursement

grant, the costs for those changes were borne upon by the Grantee's subcontractor, CM

Alternative Energies, Inc.; that materials of significant less cost were ordered and delivered only

to be changed by the Mayor of Jonestown after the first Wind Energy System was installed; that
                                                     -,_.. ]!


Robin Timmons, the District Attorney's Forensic Auditor, accounted for all of the funds and
                                                        I'       '    )   .


informed Taylor and Carter, while money had shifted from one account to another and may have

had an outward appearance of impropriety, there was no actual crime, and given the

circumstances with the Fish and Wildlife mandate, and cost reimbursement requirements, the

bank check faces that indicated what the spent money was for, it was more than reasonable the

monies were shifted to accommodate material problems, not to mention CM Energies was

actively engaged in other than grant business; Carter and Taylor omitted material information to

the magistrate that all of the towers, bases and blades were built, painted, delivered, and installed

or sitting in the open yard at BABECO, in Taylor, TX; Carter and Taylor omitted Deane

Armstrong, the Mayor of Jonestown stopped all outdoor welding on the project due to all of the
                                                    :        '       ',       '

wildfires in and around Jonestown (See Exhibit 5, 299th District Court Records, D-1-DC-13-
                                                 . ·- ... r,' .·


904021cEXH-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) 2255Motion to Vacate, wildfire news attachment); Carter and Taylor submitted
                                     J91einftraflclt±m 5 4
                                                        {"Itt
patently false statements saying "The City of Jonestown did not receive any benefit from these

fraudulently obtained grant funds ... " when the City of Jonestown did receive what they paid fbr

when the Systems were installed, fully, or partially and that work was still in progress, and

materially omitted was the City was happy and in compliance and still had over 80 days left on a

working contract; And, mislead the magistrate when they said "nor did the representatives of the

City of Jones town that signed the Grant application financially benefit from the Grant" making it

sound like the City had no role or responsibility in procuring or receipt of the materials, or

obligation of the no-less-than $400,000 providing in-kind responsibility the City was, by

contract, responsible for, which is defined in Code of Federal Regulations, Title 2-Grants and

Agreements Volume: l Date 2014-01-01, Original Date:                          2014-01~01   Title: Section 200.96-
                                   ,. r                 ·-- :::~ ~.,- . i-·
Third-Party In-Kind Contributions; Grants and Agreements, Subtitle A-Office of Management

and Budget Guidance for Grants and Agreements. Reserved.                                   PART 200-UNIFORM

ADMINISTRATIVE           REQUIREMENTS,                  COST                  PRINCIPLES,       AND      AUDIT

REQUIREMENTS FOR FEDERAL AWARDS. Subpart A-Acronyms and Definitions. § 2 CFR

200.96-Third Party In-Kind Contributions as;
                                 " .r···-.


              Third-party in-kind contributions means the value of non-cash contributions (i.e.,

              property or services) that

              (a) Benefit a federally assisted project or program; and
                                     '             . ,. -· .
              (b) Are contributed by non-Federal third parties, without charge, and to a non-
                                                  ...
                  Federal entity under Federal award

when they said, "instead the project only became a financial burden for the City of Jonestown."

The City had no where near that amount of in-kind contribution (See Exhibit 5, Clerk's Record
                                ----         ,.          .   •.   "'"!'




D-l-DC-13-904021_395, pages 347-348); that Miller, Thomas and Knapek were suspects in

Theft of Trade Secrets, the Destruction of a Federally Funded Energy Project, Attempted
                                        MemeFaBCiffim 5)-.
                                                  >'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.
                                                     <'·

     In another material omission, Carter states in her affidavit she interviewed the Mayor of

Jonestown, Dean Armstrong, several times, but fails to inform the magistrate in late December

2008, Deane Armstrong, Mayor, and Dan Dodson, City Administrator, conducted due diligence

on behalf of the City of Jonestown, and went out to The University of Texas, JJ Pickle Center,
                                                           ··'.

where Applicant was entering into his third semester with the University, validating and testing

his prototype Wind Energy Systems, and met with Professor Stearman, who informed Armstrong

and Dodson the Systems were ready for commercialization. (See Exhibit 5, 299th District Court

Records, D-1-DC-13-904201_395, pages 164-172 CLERKS RECORD).
                                     ·. -~iemoritftdurn ·s6

                                .. '
                                                g~
      Carter knowingly and intentionally omitted Armstrong and Dodson physically inspected

the Wind Energy Systems at the Pickle Center and were happy with what they saw and what

Stearman had told them, prior to the City of Jonestown agreeing to do business with Applicant

(See Exhibit 6, Charlie Malouf{ v. United States,        A-l3~CV-572LY     (A-11-CR-647(1)-LY)

Exhibit l, Stearman correspondence, and Exhibit 2, letter from Jonestown to Mary-Jo Woodall,

SECO January 6, 2009).

      Carter knowingly and intentionally omitted more material facts that Miller and Michelle

Cook (another officer) were fired from the Jonestown Wind Project by the Jonestown City

Administrator for their role and conduct in an attempted hostile takeover and breech of

contractual responsibilities for the city's subcontractor (See Exhibit 6, Charlie Malouffv. United

States, A-l3-CV-572LY (A-ll-CR-647(1)-LY) Letter's from Jonestown and CMEI, and Exhibit

2, letter from Dan Dodson to Dana McCoy).

      Carter knowingly and intentionally omitted police reports for felonious conduct regarding

Miller and other witnesses as suspects who were mentioned in support of the affidavit.

Additionally, Carter and Taylor omit that other witnesses were part of the law enforcement

community such as, Dana McCoy, Applicant's daughter (Medicaid Fraud Investigator), and

Michelle Cook (police officer).

     Carter knowingly and intentionally omitted Miller and Cook were under investigation for

falsifying time cards to cover trysts (See Exhibit 5, 299th District Court Records, D-1-DC-13-
                                  -   ..... ,;.

904021-EXH-VOLUMES 16-19, COURT REPORTERS RECORD, D-l-DC-13-904201_395
                                                         ,·, .·

CLERKS RECORD, and Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY (A-ll-
                                            '· .
                                        .   '·
CR-647(1)-LY) attached Employee Time Sheets).

     Carter knowingly and intentionally omitted Miller and Cook worked and accounted for

their time on the Jonestown Wind Project while they were on duty for the Sheriffs .Office and
                                      · Memot !tfidttfl'i 87
                                                   ~'1
police dept. respectively. Miller was shown his time sheets for both the Grant and the Travis

County Sheriffs Office and admitted, under oath in trial that he falsified the documents. (See

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

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

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

Supplemental Response)

      Carter knowingly and intentionally omitted that Travis County District Attorney Public

Integrity Unit Supervisor, Greg Cox was aware of allegations Miller had committed felony

crimes and was suspect in others and was a friend of Miller who helped to shelter Miller form

criminal charges (See Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY (A-ll-CR-
                                                                -,~,,




647(1)-LY) attached Toby Miller Constable Facebook) .
                                       '·   '.   . •·,

      Carter knowingly and intentionally omitted that Chief of Police John Stetar approached

Carter and Holly Taylor (Ass. DA who left her role as a prosecutor and undertook the role as
                                 --·
                                ..

"investigator" (see Exhibit 6, Charlie Malouf! v. United States, A-13-CV-572LY (A-ll-CR-

647(1)-L Y) attached Field Observations-Chief Stetar, and Exhibit 2, reflective photo of Holly

Taylor taking photo of electric meter, clearly identified by her dark hair (Carter has bleached

blonde) and her wedding ring and jewelry, who know they were "obviously" investigating, twice

and informed them that Miller and Cook were suspects in an open criminal investigation

regarding espionage and sabotage of the Jonestown Wind Project, corruption, fraud, theft, and

moonlighting while on force time. These statements are on the Supplemental Police Report that

Lori Carter submitted to 299th District Court Judge, Karen Sage, who reviewed written reports
                                                                                  r

and other evidence for information the DA wanted redacted, but Applicant's co-defendant's
                                                              \l •   ~·   ::. .




attorney, Joe Turner, wanted on the record, in a hearing in June 2012. The copies of the


                                                   · Memerandttm 88
                                                         1'
 Supplemental Report pages are also on file in Exhibit 6, Charlie Malouffv. United States, A-13-

 CV-572LY (A-11-CR-647(1)-LY).

        Carter knowingly and intentionally omitted the material fact Chief Stetar also informed

 her, and Assistant DA Holly Taylor, another "key witness," Shelby Thomas, was an arson

 suspect for insurance fraud and a suspect with Miller in the theft of a computer associated with

 the wind project, and theft of surveillance cameras set up to catch the saboteurs (who had to be

 insiders due to the intimate knowledge required to incur the damage. (See Exhibit 6, Charlie

 Malouff v. United States, A-13-CV-572LY (A"11-CR-647(1)-LY) attached Jonestown Police

 Report, Insurance Claim, and associated emails).

       Carter knowingly and intentionally omitted the material fact that Stetar, at the time of the

 application for the affidavits, failed to properly investigate these crimes and additionally failed to

 investigate Paul Allen (the property caretaker), who claimed to know who had done the sabotage,

 and was in trouble with the City Manager, Dodson and the City Counsel for his failure. (See

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

 Motion to Vacate)

       Carter knowingly and intentionally omitted the fact Stetar was given evidence that Toby

Miller had slashed Petitioner's front motor cycle tire in such a way as to explode under heat and
                                                          ,.

 speed (see Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY (A-11-CR-647(1)-LY)

attached Jonestown Police Report), and Carter was given a copy of that report.

       Carter intentionally omitted her "surveillance" of Woodall's home and garage, in her

almost year long investigation was all conducted on one day and from a distance with no positive

identification of vehicles or persons. Carter but stated in her affidavit, she ''personally observed"

Applicants Harley Davidson in Woodall's garage.                Carter testified under oath in the 299th

District Court this was patently false, that she was over a block· away, and made only an
                                          Memora£E!Hffi 89
                                                  .ql,.        . ,.
 assumption because she saw a black motorcycle parked in the garage. And, she admitted she

 failed to tell the magistrate she had information that Applicant had not left his Harley in

 Woodall's garage in over a year. (Clerks Record, D-1-DC-13-904021_395, page 349, and

 Exhibit 2, photos of Applicant's motorcycle and motorcycles in Woodall's garage)

       Carter knowingly and intentionally omitted Applicant was not employed by the City of

 Jonestown, or CM Alternative Energies, Inc., at the time of the submission of the Grant, and that

· Dana McCoy had informed her that at the time, she was the President of the Company and

 actively participating in its operation, to include signing payroll and other corporate and Grant

· documents.

       Carter knowingly and intentionally omitted Miller never read the Grant or any of its

 requirements or any contract between the City of Jonestown and CM Alternative Energies, Inc.,

 and had no idea what the company was legally obligated to, and for a person who was supposed

 to be in a position of authority, had no idea about what he was talking about.. Miller, who made

 sure he was known in a position of public trust and authority as a deputy, knew this was relevant

 and material information for the magistrate (See Exhibit 5, 299th District Court Records, D-1-

 DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS RECORD, and D-1-DC-13-
                                                   ' • 'I'          ;_ ' '   •   ~


 904201_395 CLERKS RECORD).

       Had Carter informed the magistrate of these material omissions, and not made up patently

false and misleading statements in an overzealous and vindictive prosecution, the magistrate

 would have been left with serious doubt of the credibility of Miller and no probable cause.
                                   ,,- .. -   .,


When all of the patently false and materially misleading statements are taken away, and material

omissions revealed, the magistrate is left with these facts:

      1). Charlie Malouff and Mary Jo Woodall are long time friends who had sex and took trips

      together.
                                                   · Mem:erfl'iiaHHI: 90
                                                             41--
2). Charlie Malouff is an entrepreneur who had previous experience with the government,

including grant writing and award, and as a sole source contractor. (See Exhibit 5, 299th

District   Court     Records,    D-1-DC-13-904021-EXH-VOj:.,UMES            1-27,   COURT

REPORTERS RECORD, D-1-DC-13-904201_395 CLERKS RECORD, and Exhibit 2,

photos of Charlie Malouff's ballistic material and research and development projects).

3). Charlie Malouff had his technology studied and tested at a prestigious institution by

senior Aerospace Engineering students, grad students and professors who stated the

technology was ready for commercialization (See Exhibit 1, Stearman email and letter, and

Exhibit 2, photos)

4). The City of Jonestown did its due diligence and this was submitted to the DOE via the

Grant.
                                               ···''
5). The City of Jonestown and CM Energies complied with the Code of Federal

Regulations on Sole Source procurement (See Exhibit 2, Sole Source letter submitted in

Grant, and Exhibit 5, 299th District Court Records, D-1-DC-13-904021-EXH-VOLUME

24, pages 67. 94-96), and was in compliance in all stages of the Project.

6). The Project was under the direct and ongoing oversight of the. DOE at every stage of

the process, monitored by monthly reporting and onsite audits, which Applicant assisted in

and was physically present for, and the mandated design changes were required by Federal

officers for permit approval. (See Exhibit 2, before and after design changes, June 28, 2010

Monthly Report, and testimony in 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).

7). Miller, Cook, McCoy, Graham, Guevara and Karlson submitted unauthorized

Environmental Assessment packages for permitting and were rejected. (See Exhibit 5,
                                M€!msr!tll:dttm4l1
                                          13."
299th District Court Records, D-1-DC-13-904021-EXH-VOLUME027, page 242, Exhibit

266).

8). Miller, Cook, McCoy, and Karlson attempted a hostile take over of the Company and

Intellectual Property they had no "interest" in. (See Exhibit 6, Charlie Malouff v. United

States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate, Secret Meeting

transcripts).

9). After finding out Miller and Cook were falsifying timesheets, Guevara, who had done

nothing unethical or wrong, other than crossing Toby Miller and being accused of being a

"traitor" disassociated himself with them and continued on in the interest of the

Corporation as the General Counsel.

7). CM Energies was "ready to go" and implemented the process, in compliance,

immediately after award. (See Exhibit 2, photos, 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 Malouff v. United States, A-

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

8). The Project was first compromised by the criminal conduct of Miller, Cook, and others

and subsequently compromised by Aaron Knapek, at the expense of the subcontractor.

(See Exhibit 1, Dan Smith emails, Justin Shepherd accounting documents, and Exhibit 3,

Knapek emails and Diversified Technology invoices).

9). Applicant was actively engaged in international business development, making his

product, commercially available both prior to, and after the Grant submission (See Exhibit

1, "Panama" presentation, and Howard Reed Affidavit)
10). The Wind Energy System at Taylor sustained damage from a lightning strike and that

damage was considerably different and less than the sabotaged Systems in Jonestown (see

Exhibit 2, photos)

11). Mary Jo Woodall was authorized by policy ,and practice to assist with writing the

Grant and giving assistance in the Grant implementation. (See Exhibit 5, 299th District

Court Records, D-1-DC-13-904021-EXH-VOLUMES 1-27, and VOLUME 12, Pam Groce

Testimony page 22-25, and COURT REPORTERS RECORD, D-1-DC-13-904201_395

CLERKS RECORD)

12). Mary Jo Woodall had no direct involvement in the selection of the Jonestown Wind

Project and did not write the checks for any disbursements. These processes were

conducted and approved by multiples of others. (See Exhibit 5, 299th District Court

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

13). SECO personnel attended the study and testing of the System at The University of

Texas, met Applicant and the students, and were aware, at all levels of the Comptroller

administration, of the several year long relationship of Applicant and Mary J o Woodall.
                                             ! ••




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

14). The Grant was a cost reimbursement project and any. internal problems of the

subcontractor's were the subcontractors responsibility, and not the responsibility of

Grantee, the City of Jonestown, the Comptroller or DOE. And, there were no provisions

for cost overruns to be billed back to the Project.

15). The Project was cut short 82 days by the overzealous and vindictive conduct of the

prosecutor. (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
                                              -._ ·.· -·n


                                      Memeftffi<ktm 93
                                            1~
      RECORD, and Exhibit 6, Charlie Malouff v. United States, A-13-CV-572LY (A-ll-CR-

      647(1)-LY) 2255 Motion to Vacate).

      16). The prosecutor knew months before the application of the search warrants there

      was no crime, no probable cause, and the search warrant was invalid.

      Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial role to cross-examine Dub Taylor when prosecutors used the "Panama" Power Point

presentation showing a letter of support from Mary Jo Woodall in May of 2009. Counsel failed

to recall the next slide that showed a similar letter from Texas State Technical College (TSTC)

citing almost identical support from that institution for CM Energies continued development of

the Wind Energy Systems and a quotation from Dr. Ronald Stearman, saying the Wind Energy

Systems were ready for commercialization. (See Exhibit 1, "Panama" presentation and letter and

email from Stearman). And challenging Dub Taylor who, in his Police statement said, "They

come across that kind of stuff frequently and it is a problem· because it's an implied

endorsement." (See Exhibit 5, 299th District Court Record D-1-DC-13-904201_395, page 70,

CLERKS RECORD) Carter wrote, "Taylor stated he made Woodall aware and she would have

CM Energies remove it." Carter also wrote, "Taylor stated that in SECO Stimulus it was their

policy that a Grant Coordinator could deal directly with a subcontractor." (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, page 66~72, CLERKS RECORD).

      Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial role to continue cross-examination of Dub Taylor, who would have testified in 2008,

in San Antonio, he had dinner with Applicant and Mary Jo Woodall and learned of the

relationship. And, less than a month later, he was at the University of Texas JJ Pickle Center
                                ',•,                  1'   .



\)\lith Applicant and one of the class project students conducting studies on the sail of the Wind
Energy System and that he had spent most of the day climbing in and out of the wind tunnel

visiting with Professor Stearman, Applicant, and the students.

    Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial role to continue cross-examination of Pam Groce. According to the testimony of Pam

Groce, Contracts Manager for the Texas Comptroller, State Energy Conservation Office, in

299th District Court Records, D-1-DC-13-904021-EXH-VOLUMEOll, Page 139 stated,

"Decisions regarding In-kind and other legal go through the Legal Department and management

all the way up to Martin Hubert." On page 145, Groce states, "All of our projects are handled

on a reimbursement basis, so you have to incur the expense as the city or school district and then

you submit invoices to us and we'll pay you. We can do that throughout the process."

On page 146, in cross examination by Defense Counsel Wood, on line 10,

Q. "Let's talk about the Selection Committee. Now,l've heard 119 applications came in. Does

that sound right?"

A. "There was a bunch. "

Q. "Is that a good number?"

A. "I believe it."

On page 147, in cross examination by Wood, she asks;
                                      ..            ,. ..


Q. "Its been told that Mary Jo did the Selection Criteria. Is that true, she came up with the

Selection Criteria, or is that something you had used kind of in the past and just redid it for this

particular grant?

A. " I think we kind of pulled from several different ones and came up with-there were some

things specific to what the American Recover and Reinvestment Act dollars required, but yes, I

mean it was kind of a hodgepodge of several that we had done before.


                                            1s4emmandatn 95
Q:   "So, in other words, the Federal Government said, here's things we are looking for, that

should go in there?"

A. " Yes.,

Q. "So there was nothing in the Selection Criteria at that time that you had to believe that this

was being basically set up so Jonestown would win, right?"

A    "No, it was - I mean, you know, everything was weighted, you know, it had to have a good

solid team, the shovel ready, the in-kind, all of those things, you had to have the right stuff to get

the grade or score."

Continued in Volume 12, page 22:

Q. "Ms. Groce, I think I forgot to ask you, do you know of any law that prohibits anyone from
                                  '(   .

helping like the City of Jonestown to write their grant?"

A. "Write it, no. '

Q. "Is there any problem with the fact Charlie helped Jonestown out writing the grant?"



Q. "I'm sorry?"

A. "No. I could have helped him write it."

Court excused Ms. Groce.

        Adversarial testing at this stage should have continued for Ms. Groce to elaborate on her

statement. Elaboration as to the relationship of the grant writer, the sub-recipient (city or school
                                           ,.
district) the Comptroller, specifically the division handling the. American Recovery and

Reinvestment Act, and the Department of Energy and specifically more into Ms. Groce's, Mary

Jo's and the other grant coordinator's, in that office, and SECO in general, roles, responsibilities,

and personal associations with sub-recipients and grant writers.


                                                Memof!tllEH:!ffi 96
                                                    1$
        Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue cross-examination of Ms. Groce who should have been asked

about her personal relationship and babysitting with other subcontractor/grant writer's doing

business with her as their contract coordinator, to compare if it was any different than the

relationship Applicant had with Mary Jo Woodall.

      Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue cross-examination of Ms. Groce who should have been asked

about the trip to Amarillo where she was the one who introduced Applicant to Mr. Ken Starcher,

now Director of the West A & M University's Texas Alternative Energy Institute, originally

called the West Texas Wind Institute at a private dinner attended by Groce, Starcher, Applicant
                                                '·'    ,.,
and Mary Jo Woodall, specifically to introduce Starcherto Applicant and arrange for Starcher to

assist Applicant in understanding the Wind industry.

      Applicant was denied effective assistance of counsel because trial Counsel failed in her
                                                       ... ,          ,r


adversarial testing to continue cross-examination of Groce who should have been asked about a
                                1.'. '.


visit she coordinated with Starcher, to come down from Amarillo, to The University of Texas, JJ

Pickle Center, in Austin, on Saturday, January 19, 2009, to meet with Applicant and Dr.

Stearman to discuss commercialization of Applicant's Wind Energy Systems. (See Exhibit 1,

Ken Starcher correspondence).

      Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue cross-examination of Groce who should have been asked about
                                                  '.    '    ("   ~        '   .

Vaughn Nelson's dissatisfaction of being "out written" by Applicant on the Grant. (See Exhibit
                                .. ·
1, Howard Reed Affidavit). Nelson complained to Groce that he was upset because Applicant

out wrote him, and he could not see how he, as the then Director of West A&M University and

Starcher's boss, could not get higher on the list, only to be told that the independent Selection
                                          ~ietHafafteffim 97
                                                1i
 Committee, which Woodall had no part in the decision making, but unknown to Nelson, Groce

 did. (See 299th District Court Records, D-1-DC-13-904021-EXH-VOLUME 11 and12).

      Court records for the trial in the 299th District Court show Pam Groce and Lisa Elledge,

 SECO Supervisor and Woodall's boss, testified that the fact was that between the DOE, Texas

 Comptroller, and the City of Jonestown, sufficient safeguards were in place to effectively

 eliminate the type of fraud alleged in the warrant (See Exhibit 6, Charlie Malouf! v. United

 States, A-13-CV-572LY (A-11-CR-647(1)-LY) attached Compliance With Grant Documents

 and Lisa Elledge Supplemental Report, and Exhibit 5, 299th District Court Records, D-1-DC-13-

 90402l-EXH-VOLUME011).

      Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue cross-examination of Miller and McCoy. Miller and McCoy, both

persons of public trust, who knew Applicant had been convicted in 2006 for Unlawful Transfer

of A Firearm resulting from a case in Houston (See Exhibit 4, Pardon Petition and Eugene H.

. Williams, Jr. v United States) where Applicant was retaliated against by the FBI, through the

U.S. Attorney, in an attempt to cover up the failed roles and responsibilities of FBI Supervisory

Special Agent Mark Tilton, FBI Russian Desk Supervisor and FBI Regional SWAT Team

Leader, Houston, with the assistance of former Supervisory Agent Charlie Rasner (former FBI

HRT Team Member with Tilton), Applicant's supervisor on the Austin Joint Terrorist Task

Force, where Applicant was a Task Force Member.

      Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue cross-examination of Miller and McCoy were given copies of

Applicant's Pardon Petition, which contained detailed information regarding Applicants role in

investigating bad cops in the Central Texas area, being called up to Active Duty with the Coast

Guard after 9-11, the transfer of destructive devices to Houston in exigent and extraordinary
                                         ··Jt4em8rft.rn4Hm 98
                                                ,ql
circumstances, Applicant's catching a Russian Spy in the Houston Ship Channel, and Eugene

Williams, who was a former ATF Agent, and then current Operations Manager for the Cypress

Creek EMS and their Advanced Tactical Team (CCATT), which was the SWAT Paramedic

Team for the FBI Houston SWAT, and the personal criminal conduct of Williams, that Applicant

had nothing to do with, nor was anywhere near, but was individually charged and convicted as "a

present from the FBF' in an effort to protect Tilton's job. (See Exhibit 4, Pardon Petition).

      Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue cross-examination of Miller who knew that several of the bad cops

Applicant was investigating were friends of his, and several of the instructors at the CCATT

training were friends and associates of his in his Gunslinger's Motorcycle Club. Miller and

McCoy knew Applicant was upset with the Government, specifically, the AUSA and ATF who

blatantly lied about ATF and Federal agent participation in the classes and as instructors, and

nothing was done to Tilton or any other supervisor who all of the others who actually had their

fingers in destroying evidence and a crime scene had their charges dismissed.           They knew

Applicant was acting under the color of authority as a law enforcement officer and instructor and

in the public interest of safety in exigent circumstances, and Applicant felt Congress did not

intend for this law to be used against the police doing their official duties. (See Exhibit 4, Pardon

Petition, United States v James V. Vest, and Gene William's motion).

      Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue cross-examination of Miller and McCoy. Miller and McCoy, both

persons of public trust, knew news articles of Applicant was all over the internet (see Exhibit 4),

but Applicant was actively engaged in face to face meetings, with business cards, and continued

correspondence with his name and position on them, with government officials from the U.S.

Commerce Department, Texas Railroad Commission, Texas General Land Office, The
                                  . Mem:tira11ffiim 99
                                                /Di
University of Texas, Texas Tech University, West Texas A&M Wind Institute, the New Mexico

Governor's Office, United State Fish and Wildlife Service, United States Corps of Engineers and

others and was not afraid to put his name on documents he was authorized to sign. (See Exhibit

1, US Dept. of Education, Exhibit 3, letter to Taylor PD).

      Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue cross-examination of Miller and McCoy. Miller and McCoy, both

persons of public trust, knew Cook, Shepherd, Graham, Kuwumura, Knapek and others were not

"experts" as they so portrayed, but students just out of college and that Michelle Cook had
                                      I
experience in one archeological dig, while in college, but was familiar with rock and dirt

formations, as required for the Environmental Assessment, and Cook was by no means an
                                                              ,,._ ..

"expert" as they so reported, nor was she the "technical writer" but only a environmental

resource person with no authority to write on behalf of, or speak on behalf of the City of

Jonestown. (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, and Exhibit 2, letter from Dan Dodson to Dana McCoy)

      Applicant was denied effective assistance of counsel because trial Counsel failed in her
                                          ,-     ..
                                          ·•·.
adversarial testing to continue cross-examination of Miller and Carter. Miller and Carter, both
                                  0                   0




persons of public trust, knew engineer Fred Herber had not participated in any of the University

of Texas studies or testing and had not conducted any computerized or other accredited

engineering study on Applicant's design and therefore could only make assumptions. (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) .


                                               .Meffi6ftffifitiffi: 100·
                                                          fOV'.
                                                                                                   )
       Applicant was denied effective assistance of counsel because trial Counsel failed in her

 adversarial testing to continue cross-examination of Miller and McCoy who knew Applicant had

 aggressively pursued a Presidential Pardon that was hand carried to the White House in 2008,

 only to be turned away, not denied, because of a national news issue regarding Isaac Toussie and

 his father Robert giving the Republican Party almost $30,000 to get a pardon for his son, that

 broke the very day Applicant's Petition was delivered. (See Exhibit 4, Goeff Ross letter, Isaac

. Toussie article, and Pardon Petition). Miller and McCoy knew Applicant was still planning on

getting his Pardon with a different president, but in the mean time, was moving forward in an

attempt to be a productive member of society.

      Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue cross-examination of Miller and McCoy who knew Applicant had

built a successful ballistic shield and furniture company involved in international business and

his products protected the lives of U.S. Marshals and other police officers in several shooting

situations and Applicant had been involved in research and development grants and special

activities projects since 1993 with the Department of Defense· and the law enforcement

community, and was proud that it was his composition of ballistic materials that protected

President Bush's second swearing-in and his ballistic furniture designs were protecting the

Marshals and judges in the Federal Courthouses.       (See Exhibit 2, Charlie Malouff, AP&T

International photos).

       Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue to cross-examine McCoy who would have testified she told Carter

Applicant was involved in unsuccessful businesses, and thought she knew Applicants law

enforcement background, but that her statements were based on unsupported assumptions, as she

had no idea Applicant's ballistic shield company grossed in excess of $!Million dollars during
                                          MemofaHE!Hm 101
                                              [o ~
the time he was affiliated with the Company, and that was hardly the doings of an unsuccessful

company.    Or that Applicant had worked his way up to Chief of Police and the activities

involved in that career path (see Exhibit 1, McCoy Statement, Exhibit 4, Charlie Malouff Letters

of Appreciation and Recommendation, Exhibit 2, photos of Charlie Malouff ballistic furniture

and materials, and Exhibit 1, Charlie Malouff Resume and Letters of Commendation-

Appreciation) hardly the work of an incompetent police officer.        And, McCoy would have

testified she had only lived with Applicant during her junior year in high school, and had limited

contact with Applicant thereafter.

      Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue cross-examination of Miller and McCoy knew Applicant had been

blessed with the opportunity that one door had closed, but another opened in the form of wind

energy and his distinct design of a vertical axis Wind Energy System. (See Exhibit 2, photos and

Exhibit 1, University Of Texas Student Project Presentations)

      Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue cross-examination of Miller and McCoy knew Applicant spent

almost every day, 8-12 hours a day, for over a year, with students and professors and in wind

tunnel testing designing and studying and testing the design and capabilities and had working full

size prototypes at the UT JJ Pickle Center and that the testing was completed when one of the

full size working prototypes was generating energy and powering an iron, a TV, a computer and

other electronic devices and according to the professors, was ready for commercialization.

(Video and other exculpatory documents still withheld by Travis County District Attorney).

     Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue cross-examination of Miller and McCoy knew that Applicant had

worked with the professors and an expert (Ken Starcher) from the West Texas A& M Wind
                                          Memef!ffiffiuii •i 92
                                             fu   t/
Institute, who had come down on official business with Pam Groce of the Texas Comptroller,

State Energy Conservation Office (SECO), and stopped by and spent 4 hours with Applicant and

Dr. Stearman in instruction on design improvements and what was involved to make the Wind

Energy System both cost affordable and profitable. (See Exhibit 1, Ken Starcher Bio and January

2009 emails)

      Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue cross-examination of Miller and McCoy. Miller and McCoy, both

persons of public trust, knew Applicant was working with Howard Reed, as they had met him .

several times, and that Mexico was just starting its opening the doors to Renewable Energy to the

private sector in 2009, and that Reed did not have an airplane, and that Miller, who claimed to

once have been an instructor pilot, was working with Dr. Stearman in the possibilities of leasing

a Pilatus P-12, as it was determined by a cost analysis by McCoy, Miller and Applicant, it was

cheaper to lease the airplane than commercially flying more than four adults at one time, and

that the Reed ranch in Mexico had an airstrip, but no airplane. (See Exhibit 1, Howard Reed

Affidavit).
                            '
      Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue cross-examination of Miller and McCoy. Miller and McCoy, both

persons of public trust, knew Applicant was working with the owners of the Taylor facility,

whom both had met, in investment and the possible purchase of the facility. (See Exhibit 1, Big

Industrial, Taylor Building documents and Howard Reed Affidavit)

      Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue cross-examination of Miller and McCoy. Miller and McCoy, both

persons of public trust, knew Applicant was entertaining Bob Wilson and Don Stewart, Robyn

Wilson's (Robyn worked for the Texas Attorney General Public Integrity Unit and was on the
                                      Meffi.antndutn 103--
                                             Jt?j.~
CM Energies books as a part time security specialist) father and business partner respectively,

and that they had come down from Pennsylvania several times to entertain investing

approximately $40 Million into the Company, however, the ownership terms of the investment

and the requirement Applicant move the business to Pennsylvania were not acceptable to

ApplicanL (See Exhibit 1, Bob Wilson and Don Stewart emails).

      Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue cross-examination of Miller and McCoy. Miller and McCoy, both

persons of public trust, knew Robyn Wilson, who worked for the Texas Attorney General, Public

Integrity Unit, was aware of Applicant's relationship with Mary Jo Woodall and did not report

any conflict of interest to either her own agency, the Comptroller or the City of Jonestown.

      Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue cross-examination of Miller and McCoy. Miller and McCoy, both

persons of public trust, knew Applicant was not just relying on grant funds to fund his wind

business, but was actively engaged in seeking an investor he could work with, including Robyn

Wilson's father from Pennsylvania. (See Exhibit 1, Bob Wilson and Don Stewart emails).

      Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue cross-examination of McCoy, and McCoy, a person of public

trust, knew, as President of the Company, CM Alternative Energies, Inc., had applied for the

Governor's Emerging Technology Fund, but missed the deadline date, and was continuing

seeking other investment funding opportunities. (See Exhibit 1, Bob Wilson and Don Stewart

emails).

      Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue cross-examination of Miller and McCoy knew Applicant wore his

motorcycle vest with Coast Guard and law enforcement achievement pins and patches and was a
                                        Mem<'l1 antlttiR 184
                                             jtJ/J
proud Veteran and Honorably Retired Chief of Police. (See Exhibit 1, Charlie Malouff Resume,

and Exhibit 2, and motorcycle vest photos).

      Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue cross-examination of Miller and McCoy knew Applicant,

regardless of the conviction, was not a criminal minded person and had no issues about going

after bad cops and would go after them or anyone else who tampered with the Grant. (See

Exhibit 4, Exhibit 3, letter to Taylor PD, and Exhibit 2, photos).

      And had Counsel presented this information at trial, without the       n~liance   of her "best

friend" to make decisions in her favor, there is a reasonable probability that the result of the

proceeding would have been different.

      Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue to   cross~examine   Master Electrician, John Karlson. Had Counsel
                                                        '·,.,

continued to cross-examine Karlson he would have admitted he was angry because Applicant did

not use generators purchased from Hydrogen Appliances. The Grant required Buy American.

Hydrogen Appliances generators are made in Shanghi China. (See Exhibit 5, 299th District

Court Records, D-1-DC-13-904021-EXH-VOLUMES 9 and 11, COURT REPORTERS

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

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

Response, and Exhibit 3, Hydrogen Appliances web information and Shanghi generators).

      Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue to cross-examine Master Electrician, John Karlson. Had Counsel

continued cross-examination of Karlson and used a generator power chart created by Eric

Graham from Karlson's testing of the Wind Blue generators from the UT testing, on 09/:30/2009,

the court would have learned that by tying five of the generators together, the output would have
                                            Memor<'!Hcffiiii iQ5
                                                 lvl ·,.;
exceeded the 20KW required in the Grant (see Exhibit 3, John Karlson 9/30/2009 Power Data).

The Court would have also learned the inverters capable of handling that large load, were not

made in America, also disqualifying them from the Project. (See Exhibit 3, Shanghi PMA,

. Hydrogen Appliances, and Xantrex Inverters).

      Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue to cross-examine Master Electrician, John Karlson. Had Counsel

continued to cross-examine Karlson he would have testified he was given a copy of Applicant's

resume and no where on there does it say he worked for the CIA. (See Exhibit 3, John Karlson

Statement, and Exhibit 1, Charlie Malouff Resume).

       Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue to cross-examine Master Electrician, John Karlson.       Counsel

failed continued to cross-examine Karlson regarding his statements under oath and to the police

that were actually all hearsay, assumptions and opinions as he admitted in court he was just a

disgruntled employee who got caught helping Toby Miller commit crimes. (See Exhibit 5, 299th

District Court Records, D-1-DC-13-904021-EXH-VOLUMES 009 and 011).

       Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue to cross-examine Justin Shepherd, foriner UT student and Project

Manager. Had Counsel continued to cross-examine Shepherd, he would have testified, Miller

and Cooks Environmental Assessments were rejected and had to be completely redone. (See

Exhibit 2, Michelle Cook Environmental Assessment Submission)

      . Applicant was denied effective assistance. of counsel because trial Counsel failed in her
                                                   . :   ,__

adversarial testing to continue to cross-examine Shepherd who would have testified Michelle

Cook, Eric Graham, Aaron Knapek, Paul Kuwumura and himself were not "experts" as

portrayed by Carter in her Search Warrant, but were just out of college students with degrees and
                                         Memorandnm 106
                                               jp1/'
this was their first real job. And, he would have testified Michelle Cook was not the "technical

writer" Carter and Miller portrayed her as, but an environmental resource person, as she, in

college went on an archeological dig, one semester, and was the most familiar with rock and

sand formations and types. And, Cook had no authority to write or speak on behalf of the City of

Jonestown. (See Exhibit 2, Jonestown letter to McCoy andExhibit 6, Charlie Malouffv. United

States, A-l3-CV-572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate, and email to Dana

McCoy regarding Michelle Cook)

        Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue to cross-examine Shepherd who would have testified he was

physically intimidated by Miller, who showed up for work numerous times with his uniform or

always with his weapon exposed and told Shepherd to "stay out" of the permitting process, and

that he (Shepherd) had to complain to Applicant about Miller's conduct.

        Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue to cross-examine Shepherd who would have testified he, McCoy,

Miller, and Kuwumura all met Howard Reed during testing at the JJ Pickle Center and again in

Jonestown and they knew he was working on putting together projects for Mexico. (See Exhibit

1, Howard Reed Affidavit).

        Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue to cross-examine Shepherd who would have testified Reed didn't
                                                    .·.,.


have an airplane as alleged, but he and Miller, who claimed he was a former instructor pilot and

was trying to get the Company to pay for his re-licensing, with the hdp from Dr. Stearman were

looking into leasing a Pilatus P-12, as they researched it was cheaper to lease the plane than to
                                                                           '
pay commercial plane fair for more than four people at one time. (See Exhibit 1, Howard Reed

Affidavit).
                                         -MeHterflfldnm i tl''i' •
                                             /6 <(
       Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue to cross-examine Shepherd who would have testified he, as

Project Manager, met Dan Smith and the other owners of the facility in Taylor, several times,

and that they were looking into investing in the company, but always had a reason why they were

stalling, but also wanted Applicant to purchase the building as part of the investment. (See

Exhibit 1, Howard Reed Affidavit, Dan Smith emails and Big Industrial documents).

       Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue to cross-examine Shepherd who would have testified the damaged

System in Taylor was damaged differently than the ones at the Waterscape, where they were

sabotaged, and that whomever sabotaged the Systems had inside knowledge, and that he had

been involved in damage assessment of both situations. (See Exhibit 2, Side by Side photos).
                                                                          '

       Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue to cross-examine Shepherd who would have testified, as Project

Manager, he was responsible for all of the overtime scheduling incurred after Aaron Knapek

shorted out the inverters in the Waste Water Treatment Plant, and as the Project Manager who

kept the financial records, knew the total cost of repair was in excess of $58,000 that was the

responsibility of the Company and not the City of Jonestown. (See Exhibit 2, CM Energies

Promissory Notes and checks and Diversified Technology Invoices).

       Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue to cross-examine Shepherd who would have testified that he was
                                                                  :           .   .

responsible for invoices and receipts and keeping the Jonestown Wind Project finances separate
                                                   • • !   • -.       '



from the rest of CM Energies business, and that every time a new project other than the Grant

was implemented, new accounts were set up for independent accounting. And, .that once the

Grant funds were expended, CM Alternative Energies, Inc., reported any funds applied to the
                                         Metftei'fiftcl:tlm 10g
                                               j)/J
Jones town Wind Project, were loaned from CM Energies International, LLC, which was working

on international and other government contracts, and the funds were recorded under in-kind

contlibutions, as required by the Grant. (See Exhibit 1, Justin Shepherd emails, and Exhibit 2,

accounting documents).

        Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue to cross-examine Shepherd who would have testified he kept

accurate accounting of all funds and expenditures. (See Exhibit 2, Justin Shepherd accounting

documents).

       Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue to cross-examine Shepherd who would have testified as Project

Manager he was responsible for making sure video recordings were taken of all installed

processes and after the Systems were up at various times, to record performance in various wind
                                              '

conditions, and that the wind conditions at the Waste Water Treatment Plant were more violent

than at the Waterscape site, where the three Systems were vandalized. And, that the Waste Water

Treatment Plant was approximately 1;.\ mile away and was not touched. (See Exhibit 2, photos).
                                                         ·-;

       Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue to cross-examine Shepherd who would have testified Sassy Lassie

was the embroidery company that sewed the Company logos and there were receipts and

documentation on file addressing that, as invoices with that name were submitted to Jonestown,

the Comptroller, and DOE for reimbursement. (See Exhibit 2, Sassy Lassie documents).

       Applicant was denied effective assistance of counsel because trial Counsel failed in her
                                                  'I,
adversarial testing to continue to cross-examine
                                              ..
                                                 Shepherd
                                                   .
                                                          who would have testified Aaron

Knapek, the Project Electrical Engineer, who replaced Karlson, made stators and rotors capable

of outputting lOkW per stator (see Exhibit 2, photos and Exhibit 3, Knapek emails).
                                          MeiHBffihdain 189
                                                  i II
        Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue to cross-examine Shepherd who would have testified Knapek

shorted out the inverters at the Jonestown Waste Water Treatment Plant, right after installation in

March, 2011, and the damage was the responsibility of the subcontractor, CM Alternative

Energies, Inc., and not Jonestown, and all related costs of repair were borne on the Company.

Shepherd, as the Project Manager and responsible person for invoices an accounting, would have

testified Applicant put in over $58,000 of monies from CM Energies International, LLC., to CM

Alternative Energies, Inc., to fix the problem (see Exhibit 2, CM Energies Bank check faces and

Promissory Notes, Exhibit 1, Dan Smith emails, and Exhibit 5, 299th District Comt Records, D-

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

904201_395 CLERKS RECORD).

       Counsel failed in her adversarial testing to continue to cross-examine Shepherd who

would have testified that Knapek made a large magnetic brake and also shorted out all of the

stators and rotors in his wiring of the alternators in each of the Wind Energy Systems. Shepherd

would have testified that Knapek used sand and resin in making the stators and there was no way

to see what if his wiring was defective in other product. (See Exhibit 2, photos).

       Applicant was denied effective assistance· of counsel because trial Counsel failed in her

adversarial testing to continue to cross-examine Shepherd who would have testified he was

responsible for the bad decisions, as Project Manager, on the overtime and expenditures of

Knapek, Kuwumura, Shepherd and others in fixing the problem and that Applicant had put him

on supervised probation and removed Knapek and Kuwumura from their positions in the

Electrical Shop. (See Exhibit 1, Dan Smith and Fred Coulson email).

       Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing to continue to cross-examine Shepherd who would have testified Applicant
                                          · ~femeitafidtith, llO
                                                f I'V:
sought the help of Professor William Stapleton, EE Department, Texas State University, who

came out to Taylor and showed Shepherd, Cornelius, Price and Applicant what Knapek did

wrong. Shepherd would have testified Applicant and Cornelius, with Shepherd part time, spent 5

months fixing what Knapek did wrong, testing each phase of the rebuilding of the stators. (See

Exhibit 1, Howard Reed Affidavit).

           Applicant was denied effective assistance of counsel because trial counsel failed in her

adversarial testing to continue to cross-examine Justin Shepherd, and Lance Wedell who would

have testified Robyn Wilson, after Miller, Cook and the others had left the Company, came by

the Grant Office, in City Hall, one day at lunch time, while on duty for the Attorney General,

introduced herself to Dan Dodson, and informed Applicant, Dodson, Shepherd, and Wedell she
                                                         .   '

had just left Blue Bonnet Electric in Bastrop on a case, and that she had spent considerable time

with their CEO going over a new monitoring system they were introducing, and that Applicant

should call on him, and tell him she sent him, to discuss the possible integration of that system

into the Wind Energy Systems. (Follow-up email still being withheld by prosecutor in

violation of Brady).

           Applicant was denied effective assistance of counsel because trial counsel failed in her

adversarial testing to continue to cross-examine Lance Wedell, CM Energies, Director of

Marketing, and Jones town Alderman. Counsel failed in her adversarial testing to continue to

cross-examine Wedell who would have testified that he reported daily to Dan Dodson, the City

Administrator, and individually to other city councilmen, on the progress and problems of the

Project.

       Applicant was denied effective assistance of counsel because trial counsel failed in her

adversarial testing to continue to cross-examine Lance Wedell, who would have testified the

Mayor, Deane Armstrong, stopped all outdoor welding on the Project because she didn't want to
                                       ·Memautn:tltttn 11 f
be responsible for any wildfires that were already plaguing the area. Wedell would have also

testified in late May or early June of 2011, Shelby Thomas' house burnt down, and that Thomas'

house was less than 200 feet from Applicant's and approximately 6 houses down from

A1mstrong's. (See Exhibit 6, Charlie Malouff v. United States, A-13-CV-572LY (A-11-CR-

647(1)-LY) 2255 Motion to Vacate, Jonestown Police Reports, Jonestown and Leander wild fire

news reports and related emails).

       Applicant was denied effective assistance of counsel because trial counsel failed in her

adversarial testing to continue to cross-examine Lance Wedell who would have testified the

Mayor, Deane Armstrong, came in every day at 1100 and receive.d an update on all Project

activities.
                                    '·
      Applicant was denied effective assistance of counsel because trial counsel failed in her

adversarial testing to continue to cross-exarriine Lance Wedell who would have testified in his

position as a Jonestown Alderman, he was aware Jonestown Mayor, Deane Armstrong and City

Administrator, Dan Dodson, went out to the UT JJ Pickle Center when CM Energies was still
                                         .r
studying and testing the Wind Energy Systems, in early 2009, and were satisfied with their

meeting Professor Ron Stearman and his appraisal of the Systems.

      Applicant was denied effective assistance of counsel because trial counsel failed in her

adversarial testing to continue to cross-examine Lance Wedell who ·would have testified it was

his responsibility to photograph the Project, and he was also the Company Historian.

      Applicant was denied effective assistance of counsel because trial counsel failed in her

adversarial testing to continue to cross-examine Wedell who would have testified as Marketing

Director and Historian he was responsible for making sure video recordings were taken of all

installed processes and after the Systems were up at various times, to record performance in

various wind conditions, and that the wind conditions at the Waste Water Treatment Plant were
                                              ~
                                              WI
more violent than at the Waterscape site, where the three Systems were vandalized. And, that the

Waste Water Treatment Plant was approximately V<! mile away and was not touched. (See Exhibit

2, photos).

      Applicant was denied effective assistance of counsel because trial counsel failed in her

adversarial testing to continue to cross-examine Lance Wedell who would have testified that he

attended many meetings with Applicant, and City Managers from Elgin, Taylor, Bartlett, San

Marcos and other cities, and as part of the Marketing Program required in the Grant, he put on

several seminars and invited attendees from all across the state, including Comptroller and DOE

personnel, and these seminars were full each time. (Exculpatory videos and other data still

being withheld by prosecutor in violation of Brady).

      Applicant was denied effective assistance of counsel. because trial Counsel failed in her

adversarial testing to continue to cross-examine Lance Wedell who would have testified he was

there when Knapek shorted out the inverters at the Waste Water Treatment Plant and the

employees, including Wedell, spent the weekend in over time, flying in and out of Taylor getting

replacement inverters from the factory in Jackson, Mississippi and re-installing them at the

Waste Water Treatment Plant in time for a Utility inspection. (See Exhibit 2, CM Energies

Promissory Notes and checks, and Exhibit 3, Diversified Technologies Invoices and Knapek

admission).

      Applicant was denied effective assistance of counsel because trial counsel failed in her

adversarial testing to continue to cross-examine Lance Wedell who would have testified that

those expenditures were not the responsibility of the City or the Grant, but the subcontractor, and

that Knapek ended up creating a huge magnetic brake. (See Exhibit 2; photos).

      Applicant was denied effective assistance of counsel because trial counsel failed in her

adversarial testing to continue to cross-examine Lance Wedell who would have testified he was
                                          .~

                                                I i~
                                                   . •·
with Applicant, and Jack Mogab, Professor for International Business Development, Texas State

University, after a meeting with Amy Madison, President, San Marcos Chamber of Commerce,

and Professor William Stapleton, and Applicant presented Stapleton with two stators Knapek

made. And, Applicant had Stapleton, right there physically show Applicant, Wedell, and Mogab

what Knapek was did wrong with his wiring.          Wedell would have testified Applicant told

Stapleton that individually each stator was putting out over 8 KW and was capable of putting out

lOKW each. However, when stacking them together, they shorted out. There were three wires

in and three wires out. What was wrong? (See Exhibit 2, photos of rotors and stators). Wedell

would have testified that Stapleton simply turned one stator 20 degrees and showed Applicant

which of the three wires on the top stator went to the three wires on the bottom stator. Applicant

and Wedell were astounded. Wedell would have testified Stapleton said that was EE 101. And,

when Applicant asked how a person. with a Masters in EE with emphasis in Three Phase

Connectivity could mess it up, he simply said, "I don't know."

      Applicant was denied effective assistance of counsel because trial counsel failed in her

adversarial testing to continue to cross-examine Wedell who would have testified that shortly

thereafter, Applicant, and others, successfully tested stacked stators at BABECO, and were in

the process of fixing the Wind Energy System at City Hall when Applicant was arrested. (See

Exhibit 3, Update Stacked Power Email and Exhibit 1, Howard Reed Affidavit).

      Applicant was denied effective assistance of counsel because trial counsel failed in her

adversarial testing to continue to cross-examine Wedell who would have testified that he was the

Company Historian and video taped all steps in the permitting and installation process, including

issues with Aaron Knapek shorting out the inverters at the Waste Water Treatment Plant, and

alternator testing at Taylor and he met with Dan Dodson, Jonestown City Administrator daily
                                -.....                 ..,,,   '




                                          .Meffieffiat4t'tm 114
                                                !L"'
and at least several times a week with the Mayor, Deane Armstrong, to provide updates. (Photos

and video still being withheld by prosecutor in violation of Brady).

      Applicant was denied effective assistance of counsel because trial counsel failed in her

adversarial testing to continue to cross-examine Wedell who would have testified; in his role as

Alderman for Jonestown, that the City was putting pressure on the police chief to properly and

timely investigate the sabotage of the Wind Energy Systems and that the chief was friends with

Toby Miller and did not want to investigate the matter accordingly. (City documents still being

withheld by prosecutor in violation of Brady) (See Exhibit 6, Charlie Malouffv. United States,

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

Observations-Chief Stetar, and Exhibit 2, Jones town Police Reports)

      Applicant was denied effective assistance of counsel because trial counsel failed in her

adversarial testing to continue to cross-examine Wedell who would have testified that shortly

thereafter the City of Jonestown purchased approximately 15 outdoor game cameras, with night

vision and video applications, that were strategically placed by the City maintenance supervisor,

James Hererra, and Applicant in the City bucket truck, and someone stole all of the cameras,

including several placed higher than 30 feet in trees to, in an attempt to catch the vandals, and
                                                   ,.-, .--

this was officially reported to the Jonestown Police.
                                          ' '    ' r·.

      Applicant was denied effective assistance of counsel because trial counsel failed in her
                                  -                      .    .
adversarial testing to continue to cross-examine Wedell and Shepherd who would have testified

that shortly thereafter they were shown the photos of the suspect vehicles, Applicant's slashed

tire and Toby Miller, Aaron Knapek, and Shelby Thomas were named as suspects. (See Exhibit

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

Vacate, and Exhibit 2, Jonestown Police Reports).


                                          ·Mcm6iandurir 115"
                                                 111
                                                 . ,''       ·-'
        Applicant was denied effective assistance of counsel because trial counsel failed in her

adversarial testing to continue to cross-examine Wedell who would have testified that shortly

thereafter it was the laptop he used that was stolen from his desk inside City Hall, and it

contained confidential and proprietary information to the Wind Energy Systems, CM Energies

business and the Grant.

        Applicant was denied effective assistance of counsel because trial counsel failed in her

adversarial testing to continue to cross-examine Wedell and Shepherd who would have testified

that shortly thereafter all of the original PVC blades were purchased and sitting in the warehouse

in Taylor and that it was the Mayor who wanted the blades changed out to the Lexan blades,

which incurred an additional cost to CM Energies, as this was a cost reimbursement grant, but

the cost of taking down and putting up the new blades was not programed into the Grant.

        Applicant was denied effective assistance of counsel because trial counsel failed in her

adversarial testing to continue to cross-examine Wedell who would have testified that shortly

thereafter that as an Alderman for the City, he had an obligation, if he felt there was any fraud, to

inf01m the appropriate City officials. And, he didn't because there was no fraud and Applicant

was doing everything he could to prevent such an occurrence.

        Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing for not calling the Mayor of the City of Jonestown, or the Jonestown City

Attorney who were directly involved in the malicious destruction of the three standing Wind

Energy Systems (two in Jonestown and one in Taylor), complete with working electrical

components in them, in the preventi.on of Applicant proving there was no fraud. (See Exhibit 5,

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

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

Malouf! v. United States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate,
                                     Pvienillrtiitdahi 1 +6
                                               )16
Exhibit 1, Jonestown City Council Agendas and Minutes, and Exhibit 2, photos of electrical

works inside Wind Energy System bases).

      Applicant was denied effective assistance of counsel because trial Counsel failed in her

adversarial testing for not calling Howard Reed, who would have testified to:

      1. He has known Applicant since 1998

     2. He met Applicant when he was an active police officer at Sunset Valley

     3. He helped Applicant with his ballistic shield company look into doing business in

         Mexico around 1999

     4. He got involved with Applicant in wind energy in 2006

     5. He assisted Applicant with his business plans and ideas as Reed has a BBA in

         International Business, a JD in Law, an MBA in Business and was intimately involved

         with several venture capital firms

     6. He met the students and professors at The University of Texas at the JJ Pickle Research

         Center

     7. He observed class project testing and studies on full size prototypes and wind tunnel

         testing

     8. He had to pull the UT forklift at the Pickle Center out of the mud after it placed a full

         size prototype in position for free wind testing.

     9. He spoke to Professor Ron Stearman and the students who said the Wind Energy

         Systems were ready for commercial production and the purpose of their "future works"

         in their class projects was to provide technical information, including identification of

         risk factors and best options for Applicant to commercialize his Systems

     10. He was with Applicant in January 2011 when Applicant was arguing on the phone with

         Dana McCoy regarding Toby Miller falsifying timesheets
                                     MemotaHdHffi 117-
                                                 (;tf
II. He was aware Applicant's motorcycle tire was slashed and Toby Miller was the

    primary suspect

12. He was aware the United States Fish and Wildlife Service mandated design changes to

    get rid of the guy wires to get permit approval on the grant

13. He was directly involved in investment discussions with Big Industrial and the owners

   of the facility in Taylor CM Energies leased.

14. He was at the meeting with Applicant, the owners of the facility in Taylor and Vaughn

   Nelson, in Taylor and by his own admission, Vaughn Nelson said he had no

   experience with vertical axis wind mills, all he wanted was to sell his book and was

   upset Applicant "out wrote" him on the Grant

15. He brought Policarpio Gorodo, a representative of the Mexican Power Company from

   Mexico City, to Taylor where they watched the Wind Energy System there work, and

   this was just prior to Charlie Malouff getting arrested.

16. He formed CM Energies de Mexico shortly thereafter

17. He helped Applicant by starting to help raise capital, but was disrupted by Applicants

   arrest

18. He told prosecutor's during an interview the Wind Energy Systems worked

19. He told Applicant's attorneys he would testify on Applicant's behalf

20. He knows Applicant is not a flight risk and this is nothing more than an overzealous

   prosecution

21. He had no airplane as alleged and it was Toby Miller who wanted CM Energies to
                                                   ",   ..
   purchase a Pilatus P-12 so they could fly down to the ranch (see Exhibit 1, Howard

   Reed Affidavit).


                                    , ~feffiefMJ:dttm -118
           Applicant was denied effective assistance of counsel because trial counsel failed to

present Dan Dodson, former City Administrator, City of Jonestown, who was readily available to

testify and had he testified, he would have testified to:

      I.         He and the Mayor did their due diligence on behalf of the City of Jonestown,

                  early in 2009, when Applicant was still testing and conducting study's at the

                 University of Texas, Aerospace Engineering Department and at the JJ Pickle

                 Center, and both he and the mayor, Deane Armstrong, knew the status of the

                 company and the windmills, however, the professors out there said they were

                 ready for commercialization. In talking in depth with him, Applicant knew what

                 he needed to do to commercialize the systems.

      2.         Toby Miller and Michelle cook were police officers who worked the Grant. Toby

                 Miller was a Deputy with the Travis County Sheriff and Michelle Cook worked as

                 a paid reservist for the City of Jones town.

      3.         Michelle Cook got her job with Applicant through the Mayor.

     4.          Miller and Cook refused to iisten to Applicant, who was the designated Grant

                 Writer for the City, and took it upon themselves· to submit Environmental

                 Assessment packages on behalf of themselves and the company to the NEPA

                 permitting offices, only to have them rejected for being patently wrong and not in

                 compliance with NEPA, the Grant or by Contract, subjecting the City to forfeiture
                                                   .,    '·.
                 of standing

     5.          U.S. Fish and Wildlife mandated changes to Applicant's design to eliminate guy

                 wires before we could get permitted.

     6.          The Grant was a cost reimbursement grant.
                                                   ..
                                                  . ,.



                                             Meffiel'!!He!Hffi 119
                                                 Ill
      7.       Those changes were the responsibility of the subcontractor, not the City,

               Comptroller, or the DOE

      8.       Applicant did not get actively engaged in the company until after Miller started

               stirring up trouble.

      9.       Things calmed down after Applicant got rid of him

      10.      Lance Weddell was an Alderman and also workedfor Applicant and was a daily

               go between with me.

      11.      Aaron Knapek, the "Aggie" shorted out the electrical parts at the windmill

               installed at the waste water treatment plant.

      12.      The City had ongoing problems for over a month with Clay Harris and the DOE.

      13.      The problems were compounding and we got Lamar Smith involved

      14.      The project required Buy American which drove prices higher.

      15.      Toby ran around the Grant and City Hall in uniform

      16.      Michelle Cook falsified her time with the City and her grant timesheets and was

               put under internal investigation with the City.

      17.      The police chief was not qualified to investigate major crimes.

      18.      The City of Jonestown had wildfire all around us and the mayor didn't want any

               outdoor welding. All of the bases required welding.

      19.      He was aware Applicant use to go back and forth to Mexico

      20.      Applicant brought over several potential investors and international clients

      21.      The city could not profit on the grants

      22.      The issue with criminal conduct with Toby miller was sensitive because he was

an active deputy.


                                           Mernonlhdfifit.· 1'28
      While Dodson did not write an affidavit as to the above statements, most of what he would

have attested to is found in 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)-LY)

2255 Motion to Vacate, and Exhibit 1, Jonestown City Council Agendas and Minutes, and his

testimony would have substantiated government witness testimony from Comptroller personnel,

that the City and Subcontractor were in compliance with the Grant and law and this would have

been favorable to the defense.

      Applicant was denied effective assistance of counsel because trial counsel failed to follow

Applicant's demands to cross-examine John Karlson over every statement he made in his

Supplemental Police Report (see Exhibit 3) and have the District Attorney produce the "stack of

falsified fmms" prosecution witness, John Karlson, said Applicant made him sign, and go back

and cross-examine him regarding those forms.

      Further evidence of misconduct and Brady violations comes shortly after the arrest of

Petitioner in the bad faith actions of the City of Jonestown, the Travis County ~istrict Attorney,

and the U.S. Department of Energy in failing to preserve exculpatory and exonerating evidence

directly related to the predicate fraud crime, in the subsequent destruction of the crime scene, the

malicious removal of the Wind Energy Systems at 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 using a metal cutting saw and other tools to

completely destroy the one-of-a-kind in design, Wind Energy Systems and eliminating any

opportunity for Applicant to prove the Wind Energy Systems worked and there was no fraud.

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

Clerk's Record, D-1-DC-13-904021_395, and Exhibit 1, City of Jonestown City Council
                                    Memorantffim ·1 :61
                                                 u/3
Agenda's and Minutes). See Brady v. Maryland, 373 U.S. 83, S. Ct. 1194, 10 L. Ed. 2d 215

(1963); United States v. Agurs, 427 U.S. at 109-110, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976)

(Evidence must both possess and exculpatory value that was apparent before the evidence was

destroyed, and be of such a nature the defendant would be unable to obtain comparable evidence

by another reasonably available means); Bullock v. Carver, 297 F.3d 1036, 1056 (lOth Cir.

2002); United States v. Bohl, 25 F.3d at 904 (lOth Cir. May 1994); Arizona v. Youngblood, 488

U.S. 51, 57-58, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988); California v. Trombetta, 467 U.S. 479,

488, 104 S. Ct. 2528 81 L. Ed. 2d 413 (1984) (" ... when evidence has been destroyed in violation

of the Constitution, the Court must choose. between barring further prosecution or

suppressing .... the State's most probative evidence." Trombetta, 467 U.S. at 487.      See also

United States v. Fletcher, 801 F. 2d 1222, 1225 n.3 (lOth Cir. 1986)). The uniqueness of the

Wind Energy Systems, and being able to connect a duplicated generator of the intended design

was the only way to prove innocence, as the allegations were that the "Wind Energy Systems"

did not work, and to maliciously destroy exculpatory evidence irreparably violates Applicant's

due process rights under Brady and undermined the confidence in the outcome of the trial.

United States v. Bagley, 473 U.S. 667, 678, 87 L. Ed. 2d 481, 105, S. Ct. 3375; United States v.

Abello-Silva, 948 F. 2d 1168, 1179 (lOth Cir. 1991) (same), cert. denied, 113 S. Ct. 107 (1992).

      There are several cases the Supreme Court and in this circuit that exemplify situations

where police misconduct, abuse of power, or cover up of crimes violating state and federal law's,

and reckless disregard for constitutional rights were a major factor in the proceedings. United
                                                        . (·
States v. Causey (1999, CAS La) 185 F.3d 407, cert den (2000) 530 U.S. 1277, 120 S. Ct. 2747,

147 L. Ed. 2d 1010; Imbler v. Pachtman, 424 U.S. 409, 47 L. Ed. 128, 96 S. Ct. 984 (1976);

United States v Dise (1985, CA3 Pa) 763 F. 2d 586, cert den (1985) 474 U.S. 982, 88 L. Ed. 2d

341, 106 S. Ct. 388; United States v Martin, 615 F. 2d 318, 329 (5th Cir. 1980); lfnited States v
                                          1',4emgt:aDdnm·-122
                                                !Vi
Pope, 452 F. 3d 338 (5th Cir. 2006); Kingsland v City of Miami, 382 F. 3d. 1220, 1232 (llthCir.

2004); Whiting v Taylor, 85 F. 3d 581, 585 n.5 (11th Cir. 1996); Fikes v. City ofDaphine, 79 F.

3d 1079 (11th Cir. 1996); Connick v. Meyers, 461 U.S. 138, 146, 103 S. Ct. 1684, 1689, 75 L.

Ed. 2d 708 (1983); Rankin, 483, U.S. at 384, 107 S. Ct. at 2896; Morgan v Ford, 6 F. 3d 750,

754 (11th Cir. 1993), cert denied U.S. 114 S. Ct. 2708, 129 L. Ed. 2d 836 (1994); Bryson v City

of Waycross, 888 F. 2d. 1562, 1565 (11th Cir. 1989); Morales v. Stierheim, 848 F. 2d 1145, 1149

(11th Cir. 1988), cert denied, 489 U.S. 1013, 109 S. Ct. 1124, 103 L. Ed. 2d 187 (1989.

      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).

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

supervisory powers to dismiss an indictment. United States v McKenzie, 678 F. 2d 629, 631 (5th

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

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

     These proceedings and the cumulative conduct therein, in the totality of circumstances,
                                                   I i ·.
manifested a "miscarriage of justice." The fundamental, and prejudicial injustice resulted from

the cumulative conduct of the police admitting to covering up their own criminal conduct, the

defense and appellate counsel, and prosecutor who flagrantly, and egregiously, violated the

Rules Of Professional Conduct and the Constitution, and the trial judge, who herself shamelessly
                                          ~feworandttm      123
                                                 I t-7.
violated the Rules Of Professional Conduct, and Judicial Canon Of

Ethics, and the United States Constitution, for self-serving pee-

uniary interest   in the selective, and vindictive targeting, and

prosecution of Applicant for a crime he did not commit, and denied

Applicant the opportunity to exonerate himself in violation of

established Federal laws, and the United States Constitution.

     Further proof of Prosecutorial Misconduct in this miscarriage

of justice came on October 1st, 2014, in the testimony of Travis

County Assistant District Attorney, Holley Taylor, the State

Prosecutor, in an Evidentiary Hearing in the United States Dist-

rict Court, Western District of Texas, Austin, when she, after

being admonished by Judge Andrew Austin, for avoiding answers,

admitted, in addition to having been told by the Chief Enforce-

ment for the Texas Comptroller's Office,     The Texas Attorney Gen-

eral, the Department of Energy, and several prosecutor's in her

office who refused to take this case bacause it reeked of a dis-

gruntled cop who got caught committing crimes and retaliation, to

'functioning" as an investigator and not as a prosecutor,,   On July

15th, 2011 and then after, taking photos, gathering evidence, and

interviewing witnesses, before she had any meaningful evidence,

including reviewing the search warrant affidavit "several times·

before it was submitted to the 11\agistrate", and knowingly, and

intentionally knew it was drafted and submitted, inundated with

patently false, and misleading statements, and material omissions

designed to mislead the Magistrate.

     Further proof of Police Misconduct in this miscarriage of

justice came in the same Evidentiary Hearing when Travis County

                           MemGENlaum 1 24
                               I"V17
Sheriff's Senior Deputy, Toby Miller, admitted he got caught falsi-

fying time sheets on the Federal Grant ani he had a grudge against
Petitioner.

     Travis County District Attorney Investigator, Lori Carter,                                                            also
testified in the same Evidentuary Hearing and after bein3 ad-
monished by Judge Austin for avoiding questions, that Holly Taylor
was out "investigating" with he;: on July 15th, 2011 and continued

to investigate with her thereafter, and Carter intentionally vio-
lated Petitioner's Miranda Rights after he was arrested.

                                       CONCLUSION

     Wherefore, in consideration of the totality of circumstances
and in the interest of justice, under the Due Process laws of
Article 1, Sections 8, 9, and 10 of the Texas Constitution and
the Fourth, Fifth, Sixth, Ninth and Fourteenth Amendments to the
United States Constitution, and in the prevention of the further-
ance of a miscarriage of justice, Applicant respectfully prays
for injunctive and declatory relief and moves the Honorable Court
to VACATE the conviction and REMAND for a Constitutionally valid
         'i)tSfYJI>$ lUi'IH ~U~;.l(;€      C>fl GfU:x.JilD$             0~       .4-c:::rv::<-1   lVllflOc:!!...   C<!;.
and fair trial,Aor any other relief deemed justified.
     Under the penalty of perjury, I certify the statements, and
information contained herein, is true and factual to the best of
my knowledge
                  -z;g{.l.            ~IV]
     Dated this ~-eh- day of Oeeobex, 201f'.
                                                                   Respectfully Submitted,



                                                                         Charlie Malouff
                                                                         6{)089 119 i"171f5'1t?
                                ~!1!eeH~mte.eHretattft~:illtl:ti~!t"tt~1~2~55-
                               TABLE OF EXHIBITS



EXHIBIT 1

     +   MOTION TO REMOVE APPELLATE ATTORNEY

     +   LETTER TO CHIEF JUSTICE JONES

         *       ATTACHMENTS

     +   BAR GRIEVANCE AGAINST APPELLATE ATTORNEY

     +   2'254 REPORT       AND RECOMMENDA.ToiON

EXHITIT 2

     + § 2254 WRIT OF HABEAS CORPUS

     + WRIT EXHIBIT 1

             *   JUDICIAL MISCONDUCT COMPLAINT
                    0
                        JUDGEMENT OF CONVICTION

                    °   CHARLIE MALOUFF RESUME

             *   WOOD AND NEEDLES BAR GRIEVANCES

             *   ATTORNEY GENERAL COMPLAINT

             *   JONESTOWN CITY COUNCIL AGENDAS AND MINUTES

             *   PROFESSOR RON STEARMAN EMAIL AND LETTER

             *   THE UNIVERSITY OF TEXAS DYNAMIC TORQUE PRESENTATION

             *   THE UNIVERSITY OF TEXAS BLADE DESIGN .PRESENTATION

             *   CM ENERGIES INTERNATIONAL "PANAMA" PRESENTATION

             *   JONESTOWN POLICE REPORTS AND RELATED EMAILS
                    0
                        TOBY MILLER VIRUS EMAILS

             *   HOWARD REED AFFIDAVIT

                    ° CM ENERGIES de MEXICO
                    0
                        RENEWABLE ENERGY IN MEXICO 2009 PRESENTATION

             *   US DEPARTMENT OF EDUCATION

                                Melll9FaR€h!!R . f2   e
                                         t:2-ff
     * TEXAS STATE UNIVERSITY

     * KEN STARCHER BIO AND EMAILS FROM JANUARY 2009

     * BIG INDUSTRIAL, TAYLOR PROPERTY EMAILS AND RELATED

       CORRESPONDENCE

     *BOB WILSON·AND DON STEWART EMAILS



+ WRIT EXHIBIT 2

    * PROMISSORY NOTES AND CHECK FACES INCLUDING CHECKS TO

       PAY FOR AARON KNAPEK DAMAGE TO WIND PROJECT INVERTERS

    * GRANT PURCHASE ORDERS

    * BUY AMERICAN CERTIFICATION

    * CHARLIE MALOUFF CONSULTANT TIME SHEETS.

    * CM ENERGIES WEBcSITE

    *DOE SOLE SOURCE PROCUREMENT 10 CFR 600.236

    * FEDERAL ACQUISITION REGULATIONS-BUY AMERICAN AND

      COMMERCIALLY AVAILABLE

    * JONESTOWN LETTER TO DANA McCOY BREACH OF CONTRACT

      REGARDING TOBY MILLER, MICHELLE COOK AND ERIC GRAH,AM

    *ARCHIE S. ROGERS, CM ALTERNATIVE ENERGIES INC., PART-

      TIME EMPLOYMENT AGREEMENT

    * PATENT INFRINGEMENT

    * USFWS MANDATED DESIGN CHANGES

    *MICHELLE COOK AND TOBY MILLER'S INCORRECT, UNAUTHORIZED

      AND REJECTED EA SUBMISSION SAMPLE-ONE OF 36

    * ERIC GRAHAM'S FAA FORM LETTER SUBMISSION SAMPLE-ONE OF 36

    * JONESTOWN JUNE 28, 2010 EA MONTHLY REPORT SHOWING .

      PROGRESS AND RELEVANT CFR AND PUBLICATIONS
                   MomoraREltlm   1 27
     * TOBY MILLER CM ENERGIES PUBLIC VENTURE FUNDS, LLC

       MEMBERSHIP AGREEMENT-UNSIGNED   (SIGNED COPY STILL

       WITHHELD BY TRAVIS COUNTY DISTRICT ATTORNEY)

     * 4/15/2011 HOLLY TAYLOR NOTIFICATION TO COMPTROLLER,

       MARY JO WOODALL NOT INVOLVED IN ANY CRIMINAL ACTIVITY

     * INDUSTRY PRACTICE MANUFACTURE "DROP SHIPPING" FOB TERMS

     * PHOTOGRAPHS WITH CAPTIONS

     * SASSY LASSIE INVOICES SUBMITTED TO JONESTOWN, COMPT-

       ROLLER AND DOE

     * JUSTIN SHEPHERD ACCOUNTING DOCUMENTS



+ WRIT EXHIBIT 3

    * JOHN KARLSON POLICE STATEMENT

    *NOTARIZED KARLSON/GRAHAM SEPTEMBER 30, 2011 GENERATOR

      OUTPUT DATA FOR GRANT

    * XANTEX-INVERTER SUPPLIER (FOREIGN COMPANY)

    * SHANGHI PMA-SALES PRESENTATION (FOREIGN COMPANY)

    * HYDROGEN APPLIANCES--AMERICAN COMPANY SELLING CHINESE

      PMA GENERATORS AS MADE IN AMERICA

    * AARON KNAPEK RESUME

    * STACKED POWER EMAIL

    * CM ENERGIES INTERNATIONAL, LLC MOLD DESIGNS

    * AARON KNAPEK ADMISSION TO DESTROYING ELECTRICAL

      COMPONENTS AT JONESTOWN WASTE WATER TREATMENT PLANT

    *DIVERSIFIED TECHNOLOGY INVOICES FOR KNAPEK'S DAMAGE

    * LETTER TO TAYLOR PD



                   -Memo~andam   128
                        i3-o
     + WRIT EXHIBIT 4

            *   CHARLIE MALOUFF PARDON PETITION

            *   GOEFF ROSS LETTER

            *   ISAAC TOUSSIE ARTICLES

            *   GENE WILLIAMS

            *   AP&T INTERNATIONAL PHOTOS



     + WRIT EXHIBIT 5

            *   TRAVIS COUNTY 299th DISTRICT COURT RECORDS



     + WRIT EXHIBIT 6

            *   CHARLIE MALOUFF 2255 MOTION TO VACATE, RESPONSES AND

                ATTACHMENTS



EXHIBIT 3   '

     + SUPPRESSION HEARING TRANSCRIPTS

     + EVIDENTIARY HEARING TRANSCRIPTS
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