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IN THE COURT OF CRIMINAL APPEALS OF TEXAS

EX PARTE,

rTA-RRISON OLIVER BAILEY,

APPLICANT,

WRIT NO. U-1270124-U9A)

WRIT NO. U-1271031-UCA)

WRIT NO. U-1271032-UCA)

MOTION REQUESTING AN EN BANC REVIEW BY THE COURT fREjGE&sEBn'W

CONCLUSIONS OF LAU BY THE 291 ST JUDICIAL C(EfflfURTOffCRtftllNALAPPEALS

OWN MOTION

DEC 18 2017

TO THE HONORABLE JUSTICE OF SAID COURT:

NOW COMES, Harrison Oliver Bailey, applicant in thiS^^^sa^^Q^P^ng

respectfully request this court to conduct an "en banc review" on it's

own motion.based on the following:

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

.i~ * hearing as opposed to counsel simply filing an affidavit, because

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

deny the allegations to secure a reputation.

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

tigation in this case, in fact applicant repeatedly made attempts

to get finstrom to investigate the complainant's background for-. ] '.. '

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

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

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

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

the complainants criminal background, and discovered they all had

criminal records, which would have been used to challenge this

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

being truthful about this investigation of their backgrounds.

3). Applicant's issue's ppresented in his habeas application were not

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

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

awareness of the relevent circumstances, because he would have

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presented his case before a jury had counsel investigated the i

complainant's backgrounds, and an investigator was not required

to do that. '

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

waiting on counsel to pull-up the criminal background of the complianants an his computor, because it would have proven applicants

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

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

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

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

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

any criminal background."

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

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

defensive matter.

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

plea was not intelligently made, nor address whether the counsel

had a duty to automatically investigate the complainant's criminal

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

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

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

jail,"i waiting for trial, or counsel to come up with a defensive theory,

applicant repeatedly asked counsel to do a criminal background check on

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

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

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

(2)

1
deficient, and prejudiced the outcome, because applicant would have

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

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

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casetto make a reasonable investigation. Counsel stated in the affida

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

of the complainant's was a prostitute, but never told him him the oth

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

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

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

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

his right to confrontation in this proceeding claiming the defence •

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

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

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

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

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

The prosecutor violated applicant right's by not disclosing discov

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

finders did not address the issue presented. Counsel claimed applicant

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

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

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

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

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

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

* nts Had criminal. ^Both* state and federal law support the fact that a

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

when information favorable to the defendant is not disclosed. The • -a

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

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

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

Applicant respectfully ask that the court order the court i

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

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

investigatior was not needed, his affidavit is frivious, and shold not

be considered.

WHEREFORE PREMISI5 CONSIDERED, applicant pray that the court accept

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

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

inthemotion.

RESPECTFULLY SUBMITTED

J§m\MoO.^J*,.'W:

INMATE DECLARATION

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

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

declare under penalty of perjury this js^day Df December 2017, that

all claims presented here are true and correct.

(4)

\ajuiw

HffRRISON OLIVER BAILE*

TDCJ ID.N0# K35501

ALLEN POLUNSKY UNIT

3872 F,M 35D SOUTH

LEUINGSTDN, TEXAS

77351

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