                                                                                           OX


                       IN   THE    COURT      OF    CRIMINAL      APPEALS       DF    TEXAS


EX   PARTE,                                           $         URIT NO. LI-1 2701 24-U9A)
                                                      §         URIT    NO.    UI-1 271031 -U(A)
TTARRISON     OLIVER BAILEY,
                       APPLICANT,                     §         WRIT NO. hJ-1271032-U(A)


      MOTION    REQUESTING        AN    EN   BANC    REVIEW      BY    THE    COURT    F
           CONCLUSIONS OF LAU BY THE 2915T JUDICIAL cfiffl)*mTOF(CRfflllNALAPPEALS
                                              OWN    MOTION
                                                                                           DEC 18 2017
TO   THE   HONORABLE    JUSTICE         OF   SAID    COURT:

NOW COMES, Harrison Oliver Bailey, applicant in thiQeW¥bM£T3m:£^ing
respectfully request this court to                        conduct an         "en banc review"       on   it's

oum motion.based on the                following:

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

"-~ * hearing as apposed to counsel simply filing an affidavit,                                    because

      it allowed counsel to fabricate the fact's in the affidavit, and

      deny the allegations to secure a reputation.

2). Applicant never told his attorney Larry Finstrom not to do a inves

      tigation in this case, in fact applicant repeatedly made attempts

      to get finstrom to investigate the                        complainant's background for'. .: ;

      criminal arrest,        which was            what he      was hired to do.            Counsel claimed

      to had did a criminal background chech of the complainants,                                    and he

      claimed they all had no                criminal records.               After being sent to         pri

      son,    applicant retained a Houston Attorney                           [Randy Shafer]'to check

      the complainants criminal background, and discovered they all had

      criminal records,           which would have been                 used to challenge this

      case before a jury. It also showed that the                             defense counsel was not

      being truthful about this investigation of their backgrounds.


3). Applicant's issue's ;>presented in his habeas application uere not

      addressed by the fact-finder 'sr: ..his challenge, :-i>ias that his guilty


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

    awareness of the relevant circumstances,                      because he would have

    presented his case before a, jury had counsel investigated the

    complainant's backgrounds, and an investigator was not required

    to    do   that.


4). Applicant was incarcerated in the county jail for over six-months

    waiting on counsel to pull-up the criminal background of the com-

    plianants on his computor, because it would have proven applicants

    claim that the complainant's were prostitutes, and the he did have

    consentual sex with them,             but didn't pay them afterwards. Counsel *

    told applicant about all the publicity a trial would bring, and

    told him that he should think about it before deciding on what he

    wanted to do, because Mhe lied about the complainants not having

    any criminal       background."

5). Finstrom [defense counsel] never discussed securing an investigator

    or a psycho-sexual evaluation, nor visit him in jail to discuss a

    defensive      matter.


6). The fact-finder never denied the applicant's claim that his guilty

    plea was not intelligently made,                  nor address whether the          counsel

    had a duty to automatically investigate the complainant's criminal

    record (-s) and that actually didn't require an investigator.

Applicant      ask that    this   court order        a reversal     based on   the    issue's he

presented in this habeas application,                  because during the       six-months.tLn

jailnwaiting for trial, or counsel to come up with a defensive theory,

applicant repeatedly asked counsel to do a criminal background check on

the complainants, but he repeatedly said they didn't have any criminal

records   which was       later   found   to    be   not   true   and that's   what   is   being

challenged in this         proceeding.     Counsel's        unprofessional     error,.!was

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

  chosen to .present this case before a jury .Strickland \J Washington, 46 6

  U.S.at 691,104 S.Ct.at 2066, explains that counsel has a duty in every

  casetto make a reasonable investigation.                    Counsel stated in          the affida

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

  •f the complainant*s was a prostitute, but never told him him the oth

  ers were.      Applicant actually told his counsel that all the complaina^

  nts were prosetute's,          and he refused to pay them. This issue could 'in

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

  and not lettcounsel send and affidavit. The court deprived applicant;"' J

  his right to confrontation in this proceeding claiming the defence •

  counsel was credible,          but fact's will show that people consider the

  applicant as being credible also,                 and the     court based it decision on

  an unrelated issue,       not the      issue before the          court and       not properly

  resolve the       "he said,    she said" facts because the question                    in the   case

  was    never addressed,       "was applicant's guilty intelligently made" I

        The   prosecutor violated applicant right's by not disclosing discov

  ery    evidence   favorable     tD   the   defense.     The    state    habeas    court fact

  finders did not address the issue presented. Counsel claimed applicant

  told him not to hire          an investigator,         which    dosen't make       any since,      be-

, cause that was the reason counsel was retained.                        Applicant waited for

  over six-months for his counsel to                 pull up     the information on his com

  puter,      bat counsel:: claimed to had did a search,                 that end up blank,        but

• applicant recently paid [Randy Shafer],                 and attorney from          Houston Tex.

  to search for the       information,        and discovered that all              the   complaina-

• nts Had criminal .*|gotH'3tate and federal law support the fact that a

  guilty plea,      such as here in the case at bar,                   is not intelligently made

  when    information    favorable      to   the    defendant     is   not   disclosed.     The   . ,;\

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

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

court deny this habeas icorpus,             it will be a miscarriage of justice.

Applicant     respectfully ask that             the    court order   the court

to address the issues        presented,          and nothing    else,   because    there was

not reason for counsel not doing a criminal background check, and an

investigatior was not needed, his affidavit is friv&ous,                         and shold not

be   considered.


WHEREFORE PREMISIS CONSIDERED,              applicant pray that the court accept

this motion for en banc review,                 and reverse and remand this casetto

the trial court for further proceeding's based on the fact's presented

in   the   motion.

                                                                      RESPECTFULLY      SUBMITTED
                                                                                                         I
                                                                     ^flAAI/vfln 0-1^(1AjgT
                                    INMATE      DECLARATIO


I,   Harrison    Oliver   Bailey,    being       presently incarcerated in         the Texas

Depertment of Criminal Justice,                 at the Allen Polunsky Unit,         Polk    County

declare under penalty of perjury this                    jy"day of December 2017,         that

all claims      presented here      are   true        and correct.


                                                                      \&MiAM                        w:
                                                                     h7vrris0n   oliver    baile'
                                                                     tdcj- id.no# 1^33501
                                                                     allen   polunsky     unit
                                                                     3b72 f,m 350 south
                                                                     levingston, texas
                                                                                           77351




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