# Notice of Filing Objections and

Request for Stay in Proceedings Pending Resolution of Issues

No. WR-82,402-01 IN THE COURT OF CRIMINAL APPEALS OF TEXAS, AT AUSTIN



### Ex parte Shahram Shakouri

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

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 WR-82,402-01 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 6/15/2015 7:28:52 AM Accepted 6/15/2015 9:35:39 AM

ABEL ACOSTA CLERKof his receipt o f the findings and co nclusions, the u ndersigned filed, on behalf of Applicant, objections to the habeas court’s Findings of F act and Conclusions of Law in that c ourt. A true and correct copy of Applicant’s o bjections are attached as Exhibit “1”

to this document. A pplicant would show the Cour t th at the findings and conclusions at issue are not supported by t he habeas record and fail to p roperly apply the law relating to the allegations made and the evidence proffered. 

### Prayer

W H E R E F O R E P R E M I S E S C O N S I D E R E D , A p p e l l a n t p r a y s t h i s Honorable Court to grant this request in all things and stay all proceedings in this Co u r t p e nd ing t he c o nvic t ing court’s resolution of his objections. A dditionally, in the event t hat th e convicting

court refuses to withdraw its findings an d co nclusions, the undersigned r e quests the Court to consider his objections when ruling on the merits of this case.

2Respectfully 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 i s t o certify that: (1) t his document, created using WordPerfectTM X7 software, contains 332 w ords, e xcluding 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 a nd correct copy of the above and foregoing “Notice of Filing Objections and Request f or Stay in Proceedings Pending Resolution of Issues” was transmitted via the eS ervice function on th e S t ate'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”

## Applicant’s Objections to the H abeas Court’s Findings of Fact and Recommendation

No. W219-80595-07-HC EX PARTE

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

TO THE HONORABLE JUDGE OF SAID COURT: C O MES N OW , Shahr a m Shak o u r i, A p p lic a nt i n t he ab o v e s t yle d

an d numbered cause, by and through his undersigned attorneys, John G. Jasuta and David A. Schulman, a nd respectfully files these

o b jections to the to habeas court’s findings and recommendatio n , 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 f iled with the District Clerk f o r filing on July 2, 2012. On April 3, 2012, the ha b eas court entered an Order Designating I ssues. The State filed i ts an swer to the application on August 18, 2 014. On June 8 , 2 015, t he habeas court entered its “Findings of Fact and Recommendation,” a copy of which was r e ceived by theundersigned v ia eMail on that date. Pursuant to Rule 7 3.4(b)(2), 1 Tex.R.App.Pro., these objections are timely if mailed or f iled with the District Clerk by June 18, 2015. I 

### General Objections Applicant’s habeas corp u s application states facts which, if t ru e, wo uld e ntitle him to relief. Applicant would show that the habeas court’s f

indings and recommendation are not based on live testimony taken at an evidentiary hearing, despite d isp u t ed f act issues which were m ore appropriately resolved t hrou g h such a forum, especially given the time under consideration. Any findings made without a live evidentiary hearing necessarily requires credib i lity determinations made upon evidence taken without confrontation or cross ex amination and without the judicial o bservation attendant to that choice. Credibility choices made wi t h o ut live examination but, instead upon prior judicial or legal r elationships, act to insulate t hose w ho routinely p ractice before the Court and create a non-level playing

1 “A party has ten d ays from the d ate he receives the findings to file objections, but the trial court may, nevertheless, transmit the record to the C ourt of Criminal Appeals before the expiration of the ten days.” 2field. It is for this reason that the credib i l ity choices, and all f i n dings and r ecommendations w hich r est, even in part, u p on such flawed credibility choices, must be re-examined. In that the entirety of the f

i ndings e ntered by this Court, except for those fact ual f

indings supported by the record, r est upon credibility choices m ad e without resort to live evidence, s ubject to cross examination, Applicant objects generally to all. Each and e very f

indin g relating to ineffective assistance of counsel, from Finding 8 through Finding 3 6, relies on nothing but counsel’s affidavit, fails to discuss t he internal inconsistencies within t he affidavit of counsel, and has been made without regard to any allegation of fact, except t hose m ade by trial counsel in his affidavit. I I



### 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 accept an ce o f a self-serving affidavit without A pplicant having been afforded the

3opportunity to examine the maker of that affidavit in open court. In Finding numbers 9 and 10 it i s recognized that Applicant p r ocl aimed his innocence, but neither those findings or any others, explain how the failure to file a motion to suppress, and gain examination o f t he maker of t he affidavit, assisted rather t han hindered Applicant. In F inding 14 the habeas court finds, sub sile ntio , t hat counsel made a strategic choice to “forego challenging the warrant and instead act to prove Applicant did not co m m i t the acts,” but such a ch o ice, were it made, is per se unreasonable because the “choice” did not have to b e m ade as neither had t o be foregone to p r oceed on the other. Given Applicant’s recognized a ssertions, any m ak i n g o f the choice was deficient conduct. Finding 14 is spurious and unsupported by the record or logic. B Findings 1 5 through19 a re also based on a credibility choice made through association a nd not examination of the facts of this

case. F inding 1 9 is a prime example, f i n d in g that Applicant has produced no evidence to show that t he lawyer is not acting unreasonably, when counsel was not subjected to any

4i nterrogating technique other than requiring the placing by th e attorney al o ne, o f his own untested memories on paper with an eye to avoidance of the claim of ineffective assistance of coun sel. The reality is that Applicant absolutely produced evidence which, if true, showed that t rial counsel did “act unreasonably.” The reality is also that the habeas court simply and s ummarily rejected the allegations. Finding 17 states t h at the sexual images admitted at t rial corroborated the C o mplainant’s account, but does not e xplain this finding. As there w ere no images depicting App li cant and the Complainant in any sexual manner or using any device, Applicant asserts the finding is unsupported. Without proof of ownershi p,

a disputed factual issue, there is no c orroboration. Even if every act was committed, the commission does not show ownership of the sexual devices. Findings 18 and 19 are irrelevant b ecause they do not seek to resolve t he issue of fact, that being why counsel f ailed to object to the pornography, admittedly legal, found on t he computer. Also, the findings are incomplete, and therefore irrelevant, b ecause t hey do not show who owned the sexual items which Applicant claimed

5i n t h e habeas corpus application, and t o this day c laims wer e owned by the Complainant. Lastly, Findings 18 a nd 19 are based, to some degree, on the assumption t hat counsel was faced, in deciding w hether to object to certain items not tied to Applicant, with a so -cal l ed “either or choice.” Counsel’s opinion that he could better counter certain evidence by arguing in no manner o bviates the need for the objection to t he pornography and it in no manner excuses the failur e. Counsel s hould have done both, and his unexamined assertion that he m ade a choice, and the Court’s findings b ased on that assertion, demonstrates an u nreasonable choice per se , b ecau se it was a choice which did not have to b e made. In admitting to making an unnecessary c hoice, counsel has admitted to deficient conduct. Applicant objects to any other finding. Finding 18, that counsel did not choose t o r equest a limiting inst ruction, f

ails 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 an d 19 fail t o address the fact that counsel c ouldn’t requ est the limiting charge because of his earlier unreasonable choice which did not have to be made,

6and in that f ailure, are inco mplete. The factual assertion of ineffect ive assistance of c ounsel, addressed in these f indings, is unresolved except as to it being admitted. C Fin di ngs 20 through 23 address an allegation of ineffective assistance of counsel regarding a d ecision to request an election by t he S tat e. The findings, including a recognition that such a request is generally t hought of as a matter of trial s trategy, a re based en t i r ely on the untested affidavit of trial c ounsel who was not subjected to any examination regarding his assertions. Applicant alleged that the failure to request such an election

was an in st an ce of deficient conduct and any examination into that failure must include a component o f w hether, if a choice was made, that choice was unreason ab l e. 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

7counsel’s assertion t hat Applicant denied any offense whatsoever and a b elief t hat Applicant’s denial of any sexual assault whatsoever m ade such a n instruction inappropriate. However, Findings 24 through 29 fail to address t h e factual allegations made, specifically t hat the t estimony of the Complainant failed to show any threat of imminent harm, that the Complainant was

never placed in fear of serious bodily injury o r that she was compelled into sexual activity of a ny sort by any such threats. As such, the contention was that the e vidence f rom the Complainant raised the issue o f sexual assault and that counsel was deficient in failing to rely on t hat evidence. Whether or not Applicant denied a ny offense w hatsoever is irrel evant to t he question presented, which is whether counsel acted deficiently in f ailing to request a n instruction that was supported by the evi d ence. The same is true as to any finding based on that denial. Fin di n g s 24 t hrough 29 demonstrate, once again, how reliance on untested affidavits of a s elf s erving nature c an lead the court into incomplete, irrelevant and u nsupported findings. That Applicant denied any offense whatsoever in no manner prohibited counsel from seeking, and obtaining, a charge o n the lesser

8included offense of sexual assau lt. Findings 24 through 29 do nothing to r esolve the issue p resented a nd, at best, avoid the issue. E In Findings 30 through 33, the habeas court addresses an allegation of ineffective assistance o f counsel for failing to seek limiting instructions regarding evi d ence of extraneous b ad conduct, b ut, once a gain, accepts wi t h o u t any type of cross

e x a m inat ion o r o t he r t e s t i ng p r o c e d u r e , t he s e l f s e r v ing s t at e m e nt s of counsel. Counsel states, in his affidavit, that he did not wish to draw additional attention to the evidence since he had dealt with t he alle gat io ns wit h m e d ic al, p ho t o gr ap hic a nd c ha r a c t e r e v id e nc e . A decision by which counsel allowed evidence subject t o limited usage to be used without limitation in an effort to cause the jury to not co n si d er t hat evidence is patently ludicrous and per se unreasonable. Finding 33 is that A pplicant has a ddu ced no evidence t hat this strategic choice w as unreasonable a n d unsupported. The finding is especially u nsupportable because the habeas court afforded no forum by which counsel’s tale could be tested.

9A cceptance of counsel’s excuse for his failure to protect h i s client from unlimited u se of evidence which could and should have been p roperly limited wi t h out an examination of the bases for counsel’s belief is not a proper r esolution, as it does not demonstrate that the f ailure was r easonable. F indings 30 through 33 do nothing to resolve the fact i ssue alleged, that c ounsel’s actions were deficient a nd, if the product o f choice, a choice which

was an unreasonable st rategy, because they do not address the issue. F Findings 34 through 40 relate to t he allegation of ineffect ive assistance of counsel f or his failure to object d uring voir dire to the efforts o f the State t o p lace evidence regard i ng i ssues at t rial bef o re the venire. Such findings are incomplete, as they do nothing b ut accept counsel’s excuses for his admitted failure. Counsel’s reasoning for his failure r elies on shibboleths which hold t hat lawyers who o bject too often can make a jury angry at the objecting party. Such reasoning is o nly anecdotally supported, if at all, yet the h a beas court accepted that r easoning, without subject i ng trial counsel’s statements to any scrutiny. The Court

1 0finds, in Finding Number 37, that counsel discussed objections with t he venire, but this finding is complet ely irrelevant to the question of why counsel, during voir dire, didn’t o bject to the State’s conduct. There is no evidence that t he habeas court, or any other court, has ever a c tually seen any t h ing supporting the idea t hat juries will be angry with l awy ers who object. Thus, the habeas court should have considered how this “fact,” and the reliance upon it b y counsel, was or was not reasonable. I nstead, the Court’s fin d in gs fail to consider any e vidence except c ounsel’s superstitions and, in so doing, f ailed to fully and f

airly resolve the factual issue raised. G E ach of t he Findings numbered 8 through 44 is completely reliant upon the a ffidavit of trial c ounsel who, having been alleged to have acted deficiently, provided an af fi d avit. No attempt was made to ex am i n e counsel as to the accuracy of the assertions within the affidavit, or any of the “facts” upon w hich counsel relied in making the d ecisions the trial court to be the product of strategy in Finding 4 1. The assert i o n s wi thin trial c ounsel’s

1 1affidavit are u nsupported in m any instances and do not resolve the issues presented. As such, the findings based thereon a re without support. I I Findings Related to Applicant’s Second Ground for Relief The habeas court add r esses Applicant’s second allegation, that eviden ce was p lanted in his home by persons known to the State, in Findings 4 5 through 89. Findings 45 through 49 recite historical facts and are not objectionable. F indings 50 through 56 hold essen t i al ly, 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 findi ng s are objectionable, because they do not resolve the factu al d ispute, except by accepting as true the affidavit proffered by the State, e ven by one accused of m isdeeds within the allegation, and rejecting as untrue all of the affidavits proffered by Applicant. The same is true of Fi n dings 5 7 through 6 4, dealing with affidavits from others who a re alleged to have participated in the conspiracy against Applicant.

1 2Findings 45 through 89 are, at their core, a recognition t hat

a factual dispute exists and that only by avoiding t he dispute and accepting the State’s evi d ence as t rue, can resolution be had without r esort to traditional truth finding methods prevalent in the law, examinatio n 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 r egard to the Complainant, her friend and her son, have no bases in th e l o n g association of the witness with the legal system a nd are, t herefore, unsupported and arbitrary. Findings 65 through 80 involve credibility choices regarding the State’s employees, accused of impropriety. Applicant objects to these f

i nd ings because they are based on an assumption t hat all State’s employees will tell the “truth and only t he truth,” which creates an almost insurmountable b urden. This assumption, and the f indings based upon it, are not f ounded o n any examination and cross examination of the witnesses. Findings 65 t h rough 80, that those accused of participating in the conspiracy a gainst Applicant, denied it and can be believed,

1 3i s not the product of searching inquiry but, rather, assum p t i o n s

as t o who will a nd who will not tell the truth. Applicant objects to this incomplete resolution. III F indings Related to Applicant’s Third Ground for Relief Applicant objects to Findings 9 7 through 112 generally because, once again, t he findings a re based on credibility choices made without resort to in-person assessment o f that credibility through examination and cross examination. C er t ai n ly the Complainant denied the allegations made by Applicant’s witness. The t rial 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 st at ement (Exhibit “A,” Supplemental Memorandum), and the Complainant’s denial, only served to create factual issues which required actual adversarial fact finding. The a s s is t a nt d is t r ic t at t o r neys w ho d e alt wi t h M an t e g hine za d cannot a nd do not r efute his statements. The habeas court’sselection of who to believe and who to disbelieve, without in1 4person e xaminat i o n and cross examination, is arbitrary and without support, and should be rejected. Applicant s pecifically objects to Fi n d in gs 1 04 through 107 because t hey are irrelevant and the product o f s peculation on the part of the habeas court. Appl i can t wo u ld point out that the provenance of none of t h e a ffidavits procured by the State were questioned by the h abeas court, even t hose submitted by people whose English was not that of a native speaker. 

### Conclusion Applicant alleged facts which, if t rue, would entitle him to habeas corpus relief, and he should have been provided with an opportunity to prove those allegations. T he habeas court’s findings are not supported b y the facts or the law, and only serve to demonstrate the need for an evidentiary hearing. 

### Prayer WHEREFORE, P REMISES CONSIDERED, Applicant, Shahram Shakouri, r espectfully prays that the h abeas c ourt will withdraw its findings of fact, and instead find that Applicant has alleged facts and provided evident i ar y s upport for those allegations, and that t h er e exist controverted, previously

1 5unresolved f

act s material to t he legality of the applicant’s confinement,” and that Applicant i s entitled him to have the opportunity to prove his allegations in an evidentiary hearing. Respectfully submitted:

John G. Jasuta Attorney at Law State Bar No. 10592300 lawyer1@johnjasuta.com David A. Schulman Attorney at Law State Bar No. 17833400 zdrdavida@davischulman.com 1801 East 51st Street, Suite 365-474 Austin, Texas 78723 Tel. 512-474-4747 Fax: 512-532-6282 Attorneys for Applicant

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### Certificate of Compliance and Delivery

This is to certify that: (1) this document, creat ed using WordPerfectTM X7 software, contains 2 ,746 words, excluding those items permit t ed by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies with Rul es 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on June 15, 2015, a true a nd correct copy of t he above and foregoing “Applicant’s Objections to the Habeas Court’s Findings of F act and Recommendation” w as transmitted electronically to John Rolater (jrolater@co.collin.tx.us), attorney of record for the State of Texas.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ John G. Jasuta

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