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IN THE COURT OF CRIMINAL APPEALS OF TEXAS

EX PARTE, WRIT NO. U-1270124-U9A) WRIT NO. U-1271031-UCA) rTA-RRISON OLIVER BAILEY, APPLICANT, 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 i 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 com- plianants 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) 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 6 91,104 S.Ct.at 2066, explains that counsel has a duty in every i 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 i 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 I 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^da y Df December 2017, that all claims presented here are true and correct.

\ajuiw w: HffRRISON OLIVER BAILE* TDCJ ID.N0# K35501 ALLEN POLUNSKY UNIT 3872 F,M 35D SOUTH LEUINGSTDN, TEXAS 77351

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