                                                                       WR-82,402-01
                                                        COURT OF CRIMINAL APPEALS
                                                                         AUSTIN, TEXAS
                                                        Transmitted 6/15/2015 7:28:52 AM
                         No. WR-82,402-01                 Accepted 6/15/2015 9:35:39 AM
                                                                          ABEL ACOSTA
                                                                                  CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS, AT AUSTIN
                                                           RECEIVED
                                                    COURT OF CRIMINAL APPEALS
                                                           6/15/2015
                 Ex parte Shahram Shakouri            ABEL ACOSTA, CLERK
                              Applicant
Habeas Corpus Proceeding under Article 11.07, et seq., C.Cr.P., in Case
Number W219-80595-07-HC from the 219th District Court of Collin County


         Notice of Filing Objections and
         Request for Stay in Proceedings
          Pending Resolution of Issues
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

     COMES NOW, Shahram Shakouri, Applicant in the above

styled and numbered cause, by and through John G. Jasuta, his

undersigned lead counsel, and respectfully files this “Notice of

Filing Objections and Request for Stay in Proceedings Pending

Resolution of Issues,” and would show the Court that on June 8,

2015, the habeas court entered its findings of fact and conclusions

of law, although they do not appear to have been forwarded to this

Court.

     The undersigned received the habeas court’s findings and

conclusions on June 8, 2015. On June 15, 2015, within 10 days
of his receipt of the findings and conclusions, the undersigned

filed, on behalf of Applicant, objections to the habeas court’s

Findings of Fact and Conclusions of Law in that court. A true and

correct copy of Applicant’s objections are attached as Exhibit “1”

to this document. Applicant would show the Court that the

findings and conclusions at issue are not supported by the habeas

record and fail to properly apply the law relating to the allegations

made and the evidence proffered.

                              Prayer

    WHEREFORE PREMISES CONSIDERED, Appellant prays this

Honorable Court to grant this request in all things and stay all

proceedings in this Court pending the convicting court’s resolution

of his objections. Additionally, in the event that the convicting

court refuses to withdraw its findings and conclusions, the

undersigned requests the Court to consider his objections when

ruling on the merits of this case.




                                 2
                        Respectfully submitted,



                        ____________________________________
                        John G. Jasuta
                        Attorney at Law
                        1801 East 51st Street, Suite 365-474
                        Austin, Texas 78723
                        Tel. 512-474-4747
                        Fax: 512-532-6282
                        eMail: lawyer1@johnjasuta.com
                        State Bar Card No. 10592300
                        Attorney for Shahram Shakouri
         Certificate of Compliance and Delivery
    This is to certify that: (1) this document, created using
WordPerfect™ X7 software, contains 332 words, excluding those
items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies
with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on
June 15, 2015, a true and correct copy of the above and foregoing
“Notice of Filing Objections and Request for Stay in Proceedings
Pending Resolution of Issues” was transmitted via the eService
function on the State's eFiling portal, to John Rolater, Jr.
(jrolater@co.collin.tx.us), counsel for the State of Texas.



                             ______________________________________
                             John G. Jasuta


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Exhibit “1”
                    No. W219-80595-07-HC

EX PARTE                        §    IN THE DISTRICT COURT
                                §
                                §    219th JUDICIAL DISTRICT
                                §
SHAHRAM SHAKOURI                §    COLLIN COUNTY, TEXAS


   Applicant’s Objections to the Habeas Court’s
     Findings of Fact and Recommendation

TO THE HONORABLE JUDGE OF SAID COURT:

    COMES NOW, Shahram Shakouri, Applicant in the above styled

and numbered cause, by and through his undersigned attorneys,

John G. Jasuta and David A. Schulman, and respectfully files these

objections to the to habeas court’s findings and recommendation,

and would respectfully show the Court as follows: A p p l i c a n t ’ s

habeas corpus application and memorandum in support were filed

with the District Clerk for filing on July 2, 2012. On April 3, 2012,

the habeas court entered an Order Designating Issues. The State

filed its answer to the application on August 18, 2014. On

June 8, 2015, the habeas court entered its “Findings of Fact

and Recommendation,” a copy of which was received by the
undersigned via eMail on that date. Pursuant to Rule 73.4(b)(2),1

Tex.R.App.Pro., these objections are timely if mailed or filed with

the District Clerk by June 18, 2015.

                                         I

                          General Objections

     Applicant’s habeas corpus application states facts which, if

true, would entitle him to relief. Applicant would show that the

habeas court’s findings and recommendation are not based on live

testimony taken at an evidentiary hearing, despite disputed fact

issues which were more appropriately resolved through such a

forum, especially given the time under consideration.

     Any findings made without a live evidentiary hearing

necessarily requires credibility determinations made upon

evidence taken without confrontation or cross examination and

without the judicial observation attendant to that choice.

Credibility choices made without live examination but, instead

upon prior judicial or legal relationships, act to insulate those who

routinely practice before the Court and create a non-level playing


 1
   “A party has ten days from the date he receives the findings to file objections,
but the trial court may, nevertheless, transmit the record to the Court of Criminal
Appeals before the expiration of the ten days.”

                                        2
field. It is for this reason that the credibility choices, and all

findings and recommendations which rest, even in part, upon

such flawed credibility choices, must be re-examined. In that the

entirety of the findings entered by this Court, except for those

factual findings supported by the record, rest upon credibility

choices made without resort to live evidence, subject to cross

examination, Applicant objects generally to all.

     Each and every finding relating to ineffective assistance of

counsel, from Finding 8 through Finding 36, relies on nothing but

counsel’s affidavit, fails to discuss the internal inconsistencies

within the affidavit of counsel, and has been made without regard

to any allegation of fact, except those made by trial counsel in his

affidavit.

                                 II

                     Specific Objections

   Findings Related to Applicant’s First Ground for Relief

                                 A

     Applicant objects to Findings of Fact numbers 8 through 14

specifically because they are the product of an acceptance of a

self-serving affidavit without Applicant having been afforded the


                                 3
opportunity to examine the maker of that affidavit in open court.

In Finding numbers 9 and 10 it is recognized that Applicant

proclaimed his innocence, but neither those findings or any

others, explain how the failure to file a motion to suppress, and

gain examination of the maker of the affidavit, assisted rather than

hindered Applicant.

    In Finding 14 the habeas court finds, sub silentio, that

counsel made a strategic choice to “forego challenging the warrant

and instead act to prove Applicant did not commit the acts,” but

such a choice, were it made, is per se unreasonable because the

“choice” did not have to be made as neither had to be foregone to

proceed on the other.    Given Applicant’s recognized assertions,

any making of the choice was deficient conduct. Finding 14 is

spurious and unsupported by the record or logic.

                                 B

    Findings 15 through19 are also based on a credibility choice

made through association and not examination of the facts of this

case. Finding 19 is a prime example, finding that Applicant has

produced no evidence to show that the lawyer is not acting

unreasonably, when counsel was not subjected to any


                                 4
interrogating technique other than requiring the placing by the

attorney alone, of his own untested memories on paper with an

eye to avoidance of the claim of ineffective assistance of counsel.

The reality is that Applicant absolutely produced evidence which,

if true, showed that trial counsel did “act unreasonably.” The

reality is also that the habeas court simply and summarily

rejected the allegations.

    Finding 17 states that the sexual images admitted at trial

corroborated the Complainant’s account, but does not explain this

finding. As there were no images depicting Applicant and the

Complainant in any sexual manner or using any device, Applicant

asserts the finding is unsupported. Without proof of ownership,

a disputed factual issue, there is no corroboration. Even if every

act was committed, the commission does not show ownership of

the sexual devices.

    Findings 18 and 19 are irrelevant because they do not seek to

resolve the issue of fact, that being why counsel failed to object to

the pornography, admittedly legal, found on the computer. Also,

the findings are incomplete, and therefore irrelevant, because they

do not show who owned the sexual items which Applicant claimed


                                 5
in the habeas corpus application, and to this day claims were

owned by the Complainant.

    Lastly, Findings 18 and 19 are based, to some degree, on the

assumption that counsel was faced, in deciding whether to object

to certain items not tied to Applicant, with a so-called “either or

choice.” Counsel’s opinion that he could better counter certain

evidence by arguing in no manner obviates the need for the

objection to the pornography and it in no manner excuses the

failure. Counsel should have done both, and his unexamined

assertion that he made a choice, and the Court’s findings based on

that assertion, demonstrates an unreasonable choice per se,

because it was a choice which did not have to be made.          In

admitting to making an unnecessary choice, counsel has admitted

to deficient conduct. Applicant objects to any other finding.

    Finding 18, that counsel did not choose to request a limiting

instruction, fails to address the fact that such a request would

have been without foundation since counsel failed to object to the

motion picture evidence. Findings 18 and 19 fail to address the

fact that counsel couldn’t request the limiting charge because of

his earlier unreasonable choice which did not have to be made,


                                6
and in that failure, are incomplete.      The factual assertion of

ineffective assistance of counsel, addressed in these findings, is

unresolved except as to it being admitted.

                                 C

    Findings 20 through 23 address an allegation of ineffective

assistance of counsel regarding a decision to request an election

by the State. The findings, including a recognition that such a

request is generally thought of as a matter of trial strategy, are

based entirely on the untested affidavit of trial counsel who was

not subjected to any examination regarding his assertions.

    Applicant alleged that the failure to request such an election

was an instance of deficient conduct and any examination into

that failure must include a component of whether, if a choice was

made, that choice was unreasonable. In this failure, the habeas

court’s findings are incomplete and, once again, merely accepting

of counsel’s assertion without any type of examination.

                                 D

    Findings 24 through 29 address the claim that counsel was

ineffective because he failed to request an instruction on the lesser

included offense of sexual assault. The findings seem to rely on


                                 7
counsel’s assertion that Applicant denied any offense whatsoever

and a belief that Applicant’s denial of any sexual assault

whatsoever made such an instruction inappropriate. However,

Findings 24 through 29 fail to address the factual allegations

made, specifically that the testimony of the Complainant failed to

show any threat of imminent harm, that the Complainant was

never placed in fear of serious bodily injury or that she was

compelled into sexual activity of any sort by any such threats. As

such, the contention was that the evidence from the Complainant

raised the issue of sexual assault and that counsel was deficient

in failing to rely on that evidence.    Whether or not Applicant

denied any offense whatsoever is irrelevant to the question

presented, which is whether counsel acted deficiently in failing to

request an instruction that was supported by the evidence. The

same is true as to any finding based on that denial.

    Findings 24 through 29 demonstrate, once again, how

reliance on untested affidavits of a self serving nature can lead the

court into incomplete, irrelevant and unsupported findings. That

Applicant denied any offense whatsoever in no manner prohibited

counsel from seeking, and obtaining, a charge on the lesser


                                 8
included offense of sexual assault. Findings 24 through 29 do

nothing to resolve the issue presented and, at best, avoid the

issue.

                                 E

    In Findings 30 through 33, the habeas court addresses an

allegation of ineffective assistance of counsel for failing to seek

limiting instructions regarding evidence of extraneous bad

conduct, but, once again, accepts without any type of cross

examination or other testing procedure, the self serving statements

of counsel. Counsel states, in his affidavit, that he did not wish to

draw additional attention to the evidence since he had dealt with

the allegations with medical, photographic and character evidence.

A decision by which counsel allowed evidence subject to limited

usage to be used without limitation in an effort to cause the jury

to not consider that evidence is patently ludicrous and per se

unreasonable.

    Finding 33 is that Applicant has adduced no evidence that

this strategic choice was unreasonable and unsupported. The

finding is especially unsupportable because the habeas court

afforded no forum by which counsel’s tale could be tested.


                                 9
     Acceptance of counsel’s excuse for his failure to protect his

client from unlimited use of evidence which could and should have

been properly limited without an examination of the bases for

counsel’s belief is not a proper resolution, as it does not

demonstrate that the failure was reasonable. Findings 30 through

33 do nothing to resolve the fact issue alleged, that counsel’s

actions were deficient and, if the product of choice, a choice which

was an unreasonable strategy, because they do not address the

issue.

                                  F

     Findings 34 through 40 relate to the allegation of ineffective

assistance of counsel for his failure to object during voir dire to the

efforts of the State to place evidence regarding issues at trial

before the venire.    Such findings are incomplete, as they do

nothing but accept counsel’s excuses for his admitted failure.

Counsel’s reasoning for his failure relies on shibboleths which

hold that lawyers who object too often can make a jury angry at

the objecting party. Such reasoning is only anecdotally supported,

if at all, yet the habeas court accepted that reasoning, without

subjecting trial counsel’s statements to any scrutiny. The Court


                                  10
finds, in Finding Number 37, that counsel discussed objections

with the venire, but this finding is completely irrelevant to the

question of why counsel, during voir dire, didn’t object to the

State’s conduct.

     There is no evidence that the habeas court, or any other

court, has ever actually seen anything supporting the idea that

juries will be angry with lawyers who object. Thus, the habeas

court should have considered how this “fact,” and the reliance

upon it by counsel, was or was not reasonable.          Instead, the

Court’s findings fail to consider any evidence except counsel’s

superstitions and, in so doing, failed to fully and fairly resolve the

factual issue raised.

                                  G

     Each of the Findings numbered 8 through 44 is completely

reliant upon the affidavit of trial counsel who, having been alleged

to have acted deficiently, provided an affidavit. No attempt was

made to examine counsel as to the accuracy of the assertions

within the affidavit, or any of the “facts” upon which counsel relied

in making the decisions the trial court to be the product of

strategy in Finding 41.     The assertions within trial counsel’s


                                 11
affidavit are unsupported in many instances and do not resolve

the issues presented. As such, the findings based thereon are

without support.

                                  II

 Findings Related to Applicant’s Second Ground for Relief

     The habeas court addresses Applicant’s second allegation,

that evidence was planted in his home by persons known to the

State, in Findings 45 through 89. Findings 45 through 49 recite

historical facts and are not objectionable. Findings 50 through 56

hold essentially, that the Complainant denied the allegation of

complicity in a conspiracy to inculpate Applicant. This denial, to

be expected, created a factual dispute in need of resolution.

     The findings are objectionable, because they do not resolve

the factual dispute, except by accepting as true the affidavit

proffered by the State, even by one accused of misdeeds within the

allegation, and rejecting as untrue all of the affidavits proffered by

Applicant. The same is true of Findings 57 through 64, dealing

with affidavits from others who are alleged to have participated in

the conspiracy against Applicant.




                                 12
    Findings 45 through 89 are, at their core, a recognition that

a factual dispute exists and that only by avoiding the dispute and

accepting the State’s evidence as true, can resolution be had

without resort to traditional truth finding methods prevalent in the

law, examination and cross examination.         Unlike the habeas

court’s determination of credibility of attorneys, both representing

the State and Applicant at trial, the credibility choices underlying

rejection of Applicant’s allegation with regard to the Complainant,

her friend and her son, have no bases in the long association of

the witness with the legal system and are, therefore, unsupported

and arbitrary.

    Findings 65 through 80 involve credibility choices regarding

the State’s employees, accused of impropriety. Applicant objects

to these findings because they are based on an assumption that

all State’s employees will tell the “truth and only the truth,” which

creates an almost insurmountable burden. This assumption, and

the findings based upon it, are not founded on any examination

and cross examination of the witnesses.

    Findings 65 through 80, that those accused of participating

in the conspiracy against Applicant, denied it and can be believed,


                                 13
is not the product of searching inquiry but, rather, assumptions

as to who will and who will not tell the truth. Applicant objects to

this incomplete resolution.

                                 III

  Findings Related to Applicant’s Third Ground for Relief

    Applicant objects to Findings 97 through 112 generally

because, once again, the findings are based on credibility choices

made without resort to in-person assessment of that credibility

through examination and cross examination.            Certainly the

Complainant denied the allegations made by Applicant’s witness.

The trial court rejects Applicant’s witness’ credibility only because

the Complainant stated he was not telling the truth instead of

recognizing that Mohammad R. Manteghinezad’s statement

(Exhibit “A,” Supplemental Memorandum), and the Complainant’s

denial, only served to create factual issues which required actual

adversarial fact finding.

    The assistant district attorneys who dealt with Manteghinezad

cannot and do not refute his statements. The habeas court’s

selection of who to believe and who to disbelieve, without in-



                                 14
person examination and cross examination, is arbitrary and

without support, and should be rejected.

    Applicant specifically objects to Findings 104 through 107

because they are irrelevant and the product of speculation on the

part of the habeas court. Applicant would point out that the

provenance of none of the affidavits procured by the State were

questioned by the habeas court, even those submitted by people

whose English was not that of a native speaker.

                          Conclusion

    Applicant alleged facts which, if true, would entitle him to

habeas corpus relief, and he should have been provided with an

opportunity to prove those allegations.        The habeas court’s

findings are not supported by the facts or the law, and only serve

to demonstrate the need for an evidentiary hearing.

                             Prayer

    WHEREFORE,         PREMISES       CONSIDERED,        Applicant,

Shahram Shakouri, respectfully prays that the habeas court will

withdraw its findings of fact, and instead find that Applicant has

alleged   facts   and provided   evidentiary   support   for   those

allegations, and that there exist controverted, previously


                                 15
unresolved facts material to the legality of the applicant’s

confinement,” and that Applicant is entitled him to have the

opportunity to prove his allegations in an evidentiary hearing.

                    Respectfully submitted:



John G. Jasuta                    David A. Schulman
Attorney at Law                   Attorney at Law
State Bar No. 10592300            State Bar No. 17833400
lawyer1@johnjasuta.com            zdrdavida@davischulman.com

             1801 East 51st Street, Suite 365-474
                    Austin, Texas 78723
                     Tel. 512-474-4747
                     Fax: 512-532-6282
                     Attorneys for Applicant




                               16
         Certificate of Compliance and Delivery

    This is to certify that: (1) this document, created using

WordPerfect™ X7 software, contains 2,746 words, excluding those

items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies

with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on

June 15, 2015, a true and correct copy of the above and foregoing

“Applicant’s Objections to the Habeas Court’s Findings of Fact and

Recommendation” was transmitted electronically to John Rolater

(jrolater@co.collin.tx.us), attorney of record for the State of Texas.



                             ______________________________________
                             John G. Jasuta




                                 17
