Charles Anthony Malouff, Jr. v. State

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QIAp!BS k. !IJ\I.QUFFI JR. §
AKA • CHART IE MUOQPF
§

v. § CASE NO. 03~13-00723-CR

Ct+A~ A.. '(\1\A,t..<>oR"; J"f<. §
A (4< -s'l!A'I'B OF TEXAS
CI-/MZ..L.tE !JVlll L.ovff §

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WR1'T fiF . 'ffi'1lS".
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TO THE HONORABLE JUDGE OF SAID COURT:

Charlie Malouff, pro se, hereby moves this Court to GRANT, in

the interest of justice, extraordinary relief from his conviction
i~?.>u 1-11 o\l f, (:::~\41 e q'l"""'J> ou & Co" -0 '<.J..& "~=' 1ol-Q.(t J:-1-~)'J\1 1 () \q_{-101)"' oP Th>< 1:1!:> 111\0 RJ !UIJ:I.l- 1-li-W,., ~ 1!. r!f)
l?vrsnaA:E to the Code ef Criminal ProeeGYre? Article 11 07, r:esyJ.-
'In-'S A-134-IY'JOOI;;'!..- Rv<.- 016"-> (1.. • .,;:- lkcF. Cbt>.Ovc.:r· i\.IMI\IJOtvt1'lQO\-Ti!JV Af!!Q(\q\t>
ting in d dee-:i:·Si<9H that was CulitLaL:I' te 1 er ifW€llVeS 'yg,~fla£;J.e
C.ov()?l2.(/i}IJ91NiiJO '" -1-1.;!. \1\{.r-1:- a<:L.q'-4--t;,,,. S:""fle.me>?kcl'Bs-tlf :J:'Ao.> C.GP4!2:r. 4'1.3.S tro~>.-..,.,.&' Fo<--
p • de-t-e-rmit;ed-tly the Supreme Court of t-rr-e-um."t-ed-sta-t-e~-

low-i-ng-reasons: ·

1. ~ =~l;; Conviction Was Obtained Iri Violations Of the First, And Fourth
Amendment's, Fifth, Sixth, Ninth, and Four-teenth Amendment's Right Of Due Process,
And The Right To A Fair Trial Through The Ip.appropriate And Professional
Misconduct Of The Police, The Trial AndApplillate Counsel, The Prosecutor and The
Trial Judge In Violations Of· Texas Law, Federal Law, The American Bar Association,
Model RuJes Of Professionat:C(Jndi.i'ct; The Texas Disciplinary Rules Of Professional
Conduct, And The Texas Code,Of.Judicial
• . . . •
Conduct.· ·:. !' ~

"2... t1: Petitioner Was Denied Effecti~eAssi'stanceof Counsell'hrough Professional
'
Misconduct, And The Failure: Of Counsel To Conduct Sufficient Adversarial Testing Of
Witnesses. ·
.. ,.r •.. , . . ,.. '.·

tlM=ELDmss' · · · .-.,._
'i'his app-lisatioq.is timely beeaase i t is filed @rior--.to
;Nevemeer 10, 2014, aeeerf!iREJ te Jeffer1 B. l(]le, Clerk..
 3. The length of sentence is fifteen (15) years (Enhanced).

4. The nature of the crime is Securing Document By Deception,
Ali"i?~A-NT'
5. Other than this motion, Applioant filed, as a result of
professional misconduct and a CONFLICT OF INTEREST by
Appellate attorney M. Ariel Payan and in the prevention
of a furtherance of a miscarriage of justice, a Federal
Writ of Habeas Corpus under 28 USC§ 2254(d)(1), which
was Dismissed Without Prejudice to pursue State remedy.
(See Exhibit 1 ) PJ4P l..ltr1S1Z. 'i:>l:>l'llt$'.2."<::> sy 'T1!E- -ni-1¢> ~oF~
~ WAI'IT" o-t: .:roost>•€ nor-..
6. Other than the above listed motion and application,
Aff..-<..:L..<>f'I'T" Appliea&t has .ne- other motions or applications currently
pending concerning the judgement in this case. '

7. The name and address of the trial judge who convicted
~aant is:
/>. A-NT
Preliminary Hearing: Karen Sage
299th District Court
500 w. 10th st.,
Austin, TX 78701

Arraignment: Karen Sage

Trial: Karen Sage

Sentencing: Karen Sage

Appeal: None

8. The name and address of each attorney who represented
Applioant are as follows:
J\qfls'l.I.A "' 7
Trial: Jackie Wood and Tamara Needles

Sentencing: Jackie Wood and Tamara Needles

Appeal: Arial Payan
AIII/L.C'JMI. rJ I
9. AJ3j3±il-<3aat has no future sentence to serve after completing
the sentence for the judgment being challenged.

10. This application is timely because it is filed prior to
-~~e v enaher 1 8, 2 81 4, according to Jeffer} D. K1le, Cler]c;..
1"11€. CR'>£ e£:..,.;& 1,<.>6/'t>tltC.'::> "!""II T-ttC: ~ CGP A 'i-T . 'f'1. 3 3

GROUNDS

I.
MPts~"'~"'
~p 1 icant'sConviction Was Obtained In Violations Of The
First, And Fourth Amendment's, Fifth, Sixth, Ninth, and
Fourteenth Amendment's Right Of Due Process, And The
Right To A Fair Trial Through The Inappropriate And
( 2)
 Professional Misconduct Of The Police, The Trial And
Appellate Counsel, The Prosecutor, And The Trial Judge
In Violations Of Texas Law, Federal Law, The American
Bar Association, Model Rules Of Professional Conduct,
And The Texas Code Of Judicial Conduct.

II. ~~~~It Was Denied Effective Assistance Of Counsel
Through Professional Misconduct, And The Failure Of
Counsel To Conduct Sufficient Adversarial Testing Of
Witnesses.
A fPIBL.l-lwv r - C:riotJ>
Appl±eant respectfully requests lieniency as to form and~ 1 '
rMvl;:l < ('ft 1'7~ A~-*-> t.-\1/Vl I "!CD
AVfii':'-J..II."'T'
"\r..D cited case law. Applxcanl has -RE>- access to Texas Court Rules or
......... s
Texas Case Law. All. case law in the F.C.I. Bastrop law library ~

Federal and Supreme Court law specific. 0\liER "ffi-A)ol- Pe~ .q1->D?J..I'I£.'i2, 1\.X:> ~E
""(<:Z::<...S :bog:_ P~Z<=>fe>IZ. 'Rz<%E,..)""n"'" .t\ U f'/2l>v• DEC!> f$'-1 Il-l.£ ~ "'Cpl)tlTr/1~ of'~~. f-k;i.,O.q'f u,. ,=t, .
Wherefore. ti:l.e WFit ef Ilaeeas eorp01s is a ;r=~ to a State
11\'> >~1"?(£1'/le;I.Jl'"At.- \34:Ve.l== 1? t~tSMI% 10<111 PQ.t;}vt>ia' o" Gzo.mOS~ ACfVItf-. '"'noc.ef~Ce_/
valid fair trial,~or any other relief deemed justified.

Executed on this 2~th day of oee~r, 201~.
~r;<.VA
Respectfully Submitted,

Charlie Malouff
66989 179 i'I78'S'IO
.p., 0. Bex 1 01 9 1-loi.. '"""-'/ ~ rlr<-"-'TY
Baserop, 'FX 78662 'Z"i'i Ll'!-;J
M'6'\.\..LIN1 ...-1-:, ~cr.<£!'" 1,.. ;7uf't-6rl- ~~<><1+511 ,u..e;- ')1{
/
·n5zo
kPPliean~ M@moranetlm of Law and Facts is Incorporated and made
a part hereof by reference and by attachment hereto.

( 3)
 :.
i
STATEMENT OF THE CASE '
Applicant was a subject of a Fraud By Deception investigation by the State of Texas,

between April 2011 and August 2013. The case was initiated by Travis County Sheriff's

Deputy, Toby Miller, a person of public trust; who made sure he was identified as a "Senior

Deputy Sheriff," and not as a "concerned citizen" and who was caught, by Applicant, falsifying

time sheets on a federally funded energy grant. Miller, as a Senior Deputy Sheriff, knows that
. - . .
making patently false or misleading statements, material omissions, and providing only personal

beliefs, and assumptions, to establish probable cause, and using his position of authority and

public trust to cover his own crimes and those others associated with him, violated criminal laws

and constitutional rights., Miller in this case, controlled most of the information Travis County
;.., .. - . - ., - ...., -.

District Attorney Investigator Lori'' Carter; ahd Travis County Assistant District Attorney, Holly

Taylor, relied upon, but failed to verify,
.-,.,
or confirm, even after being told to their faces, by the

Jonestown Chief of Police, while they were out "investigating" the case, and Holly Taylor is

seen in a reflective photo, that dearly identifies her by her dark hair (Carter is a bleached

blonde), wedding ring and jewelry (that she wore to court daily) taking the picture over by the

Waste Water Treatment Plant, that Miller was a suspect in an ongoing criminal investigation for

multiple felonies, including the sabotage of Wind Energy Systems in the very case they were

working on. (See Exhibit 2, photos and Exhibit 6, Charlie Malouffv. United States, A-13-CV-
~-, • ,_ ': • • ~ :' ':• ~ ' :• I •

572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate).

Applicant is the Patent (Pending) and Intellectual Property owner of the technology, and

was the grant writer for the City of Jonestown's Jonestown Wind Project, that was under the
.. ~ ·;. -- . . '" ,-

direct and ongoing control of the U.S. Department of Energy (DOE), with other significant

direction and oversight by the U.S. Fish and Wildlife Service, via the Texas Comptroller State
- ,-· -,,, ,· .. , .... '

Energy Conservation Office (SECO) up until the time of Applicant's arrest.
. '
~48FesF~~;~ -~
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... ,,,, .: .. ..,.-."
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 Prior to the implementation of the actual Grant, while conducting a DOE mandated NEPA

Environmental Impact Study that was downgraded to an Environmental Assessment, the U. S.

Fish and Wildlife Service (USFWS) mandated design changes on the proposed Wind Energy

Systems requiring the elimination of gny wires, used to secure the original design, to get

approved NEPA permitting. These mandated changes were approved by the USFWS in the

Environmental Assessment permitting process; and submitted to the DOE through SECO, where

the design was approved at each stage of review. ·(See Exhibit 2, drawings and photos of Wind

Energy Systems)

In 2010, while working on a Federally funded Distributed Renewable Energy Grant under

the American Recovery and Reinvestment Act (ARRA), specifically, the Jonestown Wind
,, ., .

Project, Travis County Sheriff's Deputy, Toby Miller, and Jonestown Police Officer, Michelle

Cook, both working on the Grant, in supposedly an off duty capacity, were caught falsifying
" '.
their time sheets to the Grant, their respective law enforcement agencies, and Grant time ·sheets

of other employees (See Exhibit 5, 299th District Court Records, D-1-DC-13-904021-EXH-

VOLUMES 1-27, COURT REPORTERS RECORD, D-1-DC-13-904201_395, pages 544-554
·-(--'' .:~:::. ·.,. ·, .... - ·~:

CLERKS RECORD, and Exhibit 6, .Charlie Malouffv. United States, A-13-CV-572LY (A-11-
·• . •·:.t.:Hjc,:: ''~\:.. ·:- .............. ··
CR-647(1)-LY) 2255 Motion to Vac,;ate, time sheet attachments). The conduct of both of these

persons of public trust, to cover their crimes, began a chain of events that has continually
- .. , ·.--.~
.' . . ""'•

compounded egregious behavior on multiple levels, and has resulted in a complete, in the words

of Travis County 299th District Judge, Karen Sage, " ... travesty ofjustice." (See Exhibit 5, 299th
. '" ··· . ' ::{· ;; ';' ·.. ' ·. . \
District Court Records, D-1-DC-13-904021-EXH-VOLUMES 1-27).
l .• , '

It was during this Environmental Assessment Miller, Michelle Cook, another police officer

who worked for the City of Jonestown,
.
and Eric Graham
.. were caught falsifying time sheets to
• '· ' ,. • • >~ •

the Grant. Miller and Cook also falsified their respective department time sheets. (See Exhibit 5,
·;··.,-•; ····1:. ·, }.4@-fQQ)i~·Qufu-$.·

-~-! -(. ,·.
"'"j'· .• :
299th District Court Records, D-1-DC-13-904021-EXH-VOLUMES 1-27, COURT

REPORTERS RECORD, D-1-DC-13-904201_395 CLERKS RECORD, and Exhibit 6, Charlie

Malouffv. United States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate, time

sheet attachments).

In an attempt to cover up his actions, Miller led an attempt to steal trade secrets of the

Intellectual Property of the Wind Energy Systems, and conduct a hostile take over the

subcontractor company that he had no shareholder, or director, interest in, and the Project, that

he was not a signer on, or responsible party to. (See Exhibit 2, CM Energies Public Venture

Funds Toby Miller Membership Subscription Agreement, Exhibit 5, 299th District Court

Records, D-1-DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS RECORD, D-1-

DC-13-904201_395 CLERKS RECORD, and Exhibit 6, Charlie Malouffv. United States, A-13-
' ~. ,. ' ....... .
CV-572LY (A -11-CR-647(1 )-LY) 2255 Motion to Vacate, Secret Meeting attachment) ..
..---- . -. .----. .

The Grantee, the City of Jonestown, SECO and DOE were all aware that with the

structural design changes, a prototype System had to be built and tested prior to the

implementation of installation of the awarded.. Systems. This
.
prototype was constructed, and

tested at the manufacturer's facility in Taylor, Texas, and an official "site check" was conducted
·-·-·-:' -·---, --.•· ' .

by SECO personnel. This site check included inspection of the subcontractor's manufacturing
. ' -- ·,

facility, and all of the materials ordered, including 8 pallets of the original blade material and

delivered and ready for Project implementation. (See Exhibit 2, SECO Site Check photos). All
-·.· .. - ... ........
-
' -

of this was recorded and on file at SECO and DOE (See Exhibit 5, 299th District Court Records,

D-1-DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS RECORD, D-1-DC-13-
.·' --·

904201_395, CLERKS RECORD).

Shortly thereafter, Miller, Cook, Graham and others involved in the hostile take over were

terminated and management of the Project transitioned with the approval of the Grantee, the City
' Mlilm9ra;SE~Ym 4r ··
f.,
)
of Jonestown. The same System that was tested in Taylor was taken down, moved over to, and

installed at the Jonestown Waste Water Treatment Plant, in compliance with the Grant, and the

local Utility. All of this was reported timely to SECO and DOE. All of this was done within the

timelines of the first Deliverables mandated in the Grant. (See Exhibit 5, 299th District Court

Records, D-1-DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS RECORD, D-1-

DC-13-904201_395 CLERKS RECORD, Exhibit 6, Charlie Malouffv. United States, A-13-CV-

572LY (A-11-CR-647 (1 )-L Y) 2255 Motion to Vacate, Secret Meeting attachment, and Exhibit 2,

photos)

It was during this process one of the CM Energies employees, Aaron Knapek, the electrical

engineer on the Project, short circuited the inverters on the Wind Energy System and caused

approximately $58,000 in damages and repairs. (See Exhibit 2, photos and Justin Shepherd
'.
accounting documents, Exhibit 1, Dan Smith email, and Exhibit 3, Aaron Knapek email and
' .. ,.
Diversified Technologies invoices).

From the beginning this extraordinary, complex, and complicated case became irreparably
' .. ·~ .., . / .

plagued with incompetent and criminal employee conduct, and criminal conduct and cumulative
' ( .

errors from persons of public trust, which included the police, officers of the court, and the
. (' '

judiciary, that violated state law, Federal law, the American Bar Association Model Rules of

Professional Conduct, the Texas Disciplinary Rules of Professional Conduct, the State
. " . - :. •.' --~ .·.,

Commission on Judicial Conduct, and the State of Texas and United States Constitutions. (See
... - '.'

Exhibit
. 5, 299th District Court Records, D-1-DC-13-904021-EXH-VOLUMES
.
1-27, COURT
:--:: ., . •., -~

REPORTERS RECORD, and D-1-DC-13-904201_395 CLERKS RECORD, Exhibit 6, Charlie

Malouffv. United States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate, and

Exhibit 2, emails and photos).

"·-···

,7
 Between April2012 and October 2013, Travis County 299'h District Court Judge, Karen

Sage, heard numerous testimonies, and arguments of the prosecutor knowingly and intentionally

hiding and destroying exculpatory evidence and a crime scene and examined numerous other

pieces of material exculpatory evidence. Sage also heard numerous arguments for Frank's

hearings, of ongoing Brady violations, mistrial, dismissal, prosecutorial misconduct, and

selective and vindictive prosecution. (See Exhibit 5, 299th District Court Records, D-1-DC-13-

904021-EXH-VOLUMES 1-27, COURT REPORTERS RECORD, and D-1-DC-13-904201_395

CLERKS RECORD).

On July 15, 2011, Travis County Assistant District Attorney, and prosecutor of the case,

Holly Taylor, left her role as a prosecutor, and thereafter engaged in the role of "investigator"
.~- -- ... -.: .
gathering evidence, interviewing witnesses, getting facts and information, giving legal advice,
-' ~. ' ' .. _,'

and clearly functioning
. as an investigator. (See
.
Exhibit6, Charlie Malouffv. United States, A-
"""v --.·y .. :··:,:'':' ··---- ' .. -lf: ·-: ·

13-CV-572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate, and Supplemental" Report Field
. '
., (,·
., _ _. ;·

Observations-Chief Stetar attachment and Exhibit 2, photo of Taylor taking photos). At that

time, Travis County District Attorney Investigator, Lori Carter, and Taylor clearly lacked
.,

probable cause, and Taylor was n~;-~n a position t~ _cl~ to be an advocate. Holly Taylor,

functioning as an "investigator" from that point on, should not have. been able to hide behind a

cloak of immunity as advocate, and should have been subject to cross-examination on what she

learned and did thereafter, including giving advice to Carter on how to mislead the magistrate,
··:- .. ';?

and navigate her investigation after committing multiple Constitutional violations.
'".,, ...

Miller and Cook, peace officers and persons of public trust, were already involved as
-- ..
suspects in an independent criminal investigation involving state and Federal law, obstructed
., _,~-- -; ..

justice by their conduct in using Miller's friends, Lori Carter, and Greg Cox, to direct events
.-.( 1
'.- -- ! '

away from that investigation, and through the malicious deprivation of constitutional rights,
•,.
portray Applicant as a criminally minded person to intentionally cover up those crimes to pnrsue

their own agendas. (See Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY (A-11-

CR-647(1)-LY) 2255 Motion to Vacate, Toby Miller for Constable)

Complicating this already outrageous injustice, Applicant's Trial Counsel was so confident

in her "my best friencf' relationship with the trial judge, and "trust me" "Karen's got my back"

in her quest to not conduct further adversarial testing of prosecution witnesses, or put on defense

witnesses, and instead "rest," along with co-counsel's demonstrated confidence in that

relationship, they failed in their roles as advoca.tes to the defense. (See Exhibit 1, Judicial

Misconduct and Bar Grievances)

The court is supposed to be the instrument to advance the ends of justice. When the trial

judge, for personal pecuniary interest, turns a blind eye, the trial, and the fundamental

constitutional rights of due process become unduly prejudiced.
r:: ...
During the trial, and after the verdict, Applicant's trial and appellate counsel made
,·.
'·

statements that demonstrated personal knowledge of inappropriate, unethical, and criminal
c . . . ' : ..... -;' . "
~-'- .~

conduct, in violation of the American Bar Association Model Rules of Professional Conduct;
. ,,. ······1

Texas Code of Judicial Conduct, the Texas Disciplinary Ru1es Of Professional Conduct, and the

Texas Penal Code, by the trial judge, Karen Sage, in her decisions to deny Frank's hearings,
' .. ·-·.
dismissal, mistrial, selective and vindictive prosecution, and other motions for pecuniary interest.

As the inappropriate conduct of counsel and the trial judge, which could not have been

discovered previously through the exercise of due diligence, was exposed by the statements by,

trial counsel, Jackie Wood, and Tamara Needles and further compounded by statements from
\ ...... ., '

appointed appellate counsel, Aria! Payan (See Exhibit 1, Judicial Misconduct and Bar

Grievances).
V'.
 The totality of circumstances of police misconduct, prosecutorial misconduct, professional

misconduct and lack of responsibility of counsel, and self- serving, pecuniary interests of the trial

judge for political preservation, supported by over 4000 pages of Court Records in two courts, in

addition to formal complaints to the Commission on Judicial Conduct, the Texas Attorney

General, the Texas State Bar Association, the Department of Justice Office Of Professional

Responsibility, front page news paper articles from the Austin American Statesman, and the re-

election website of the trial judge, Karen Sage (see Exhibit 1, Judicial Misconduct complaints

and news clippings), the integrity and the fundamental fairness of the state proceedings, and

· constitutional rights of the Applicant, has come under question and suspicion.

. . ' ' "! ..

PROCEDURAL NEXUS

The AEDPA comprehensively overhauled habeas corpus legislation, including 28 USC
.,-. .

2254, subsections 2254 (d)(1). It is presumed a State court's findings are correct and Federal

court's give deference to the State court's decision, unless "it was contrary to or involved an
.,..., .. -.
unreasonable application of clearly established Federal law as determined by the Supreme Court
I :, ·' C ' •• "' ., .', .

of the United States. Bell v Cone, 535 U.S. 685, 693, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002),
.-, ·:· .. . .. . -:- . ,\ ~ '•"\

Federal courts have the right to issue writs of habeas corpus based on state commitments,
···,

even where state remedies have not been exhausted. Minnesota v Barber, 136 U.S. 313, 34 L.
.. ·, ~-- ·' .

Ed. 455, 10 S. Ct. 862, 3 Inters. Com. Rep. 185 (1886); Minnesota v Brundage, 180 U.S. 499, 45

L. Ed. 639, 21 S. Ct. 455 (1886); Ex-parte Royall, 117 U.S. 241, 29 L. Ed. 868, 6 S. Ct. 734; Re

Wood, 140 U.S. 278, 35 L. Ed. 505, 11 S. Ct. 738 (1891); Cook v Hart, 146 U.S. 183, 36 L. Ed.

934, 13 S. Ct. 40; Markuson v Boucher, 175 U.S. 184, 44 L. Ed. 124, 20 S. Ct. 76; Davis v

Burke, 179,27 S. Ct. 459; Yick Wo v Hopkins, 118 U.S. 356,30 L. Ed. 220, 6 S. Ct. 1064 (1886)

(I:>
.. ,::; ·;_
-·_
. ....., ~-
('•
 A State court decision will be contrary to established precedent if the State court confronts

a set of facts that are materially indistinguishable from a decision of the United States Supreme

Court and nevertheless arrives at a result different from the Supreme Court precedent. Wooten v

Thaler, 598, F. 3d. 215, 218 (5th Cir.), cert. denied, 131 S. Ct. 294, 178, LEd. 2d 193 (2010);

United States v Olano, 507 U.S. 725, 736, 123 L. Ed. 2d 508, 113 S. Ct. 1770 (1993) ("Plain

errors or defects affecting substantial rights may be noticed although they were not brought to

the attention of the court.").

A state court decision involves an unreasonable application of Supreme Court precedent if

the State court identifies the correct legal rule from Supreme Court cases, but unreasonably

applies it to the facts of a particular State case. Williams v Taylor, 529 U.S. 363, 407, 120 S. Ct.
• ' ' ' .'' "\ c ' - ~ ' '
,..
1495, 1466 L. Ed. 2d 389 (2000); Bell, 535 U.S. at 694; Puckett v Epps, 641 F. 3d. 657, 663 (5th

Cir. 2011). See also Price v Vincent, 538 U.S. 634, 641, 123 S. Ct. 1848, 155 L. Ed. 2d 877
., .- .

(2003); Brecht v Abrahamson, 507 U.S. 619, 638, n. 9, 113 S. Ct. 1710, 123 L. Ed. 2d 353

(1993); Tumey v Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749, 5 Ohio Law Abs. 159, 5 Ohio
.. ..~ . .

Law Abs. 1"85, 25 Ohio L. Rep. 236; Neder v United States, 527 U.S. 1,8, 119 S. Ct. 1827, 144

L. Ed. 2d 35 (1999); Edwards v Balisok, 520 U.S. 641, 647, 117 S. Ct. 1584, 137 L. Ed. 2d 906

(1997); Johnson v United States, 520 U.S. 461,469, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997);
·-'-• •..-.·

Rose v Clark, 478 U.S. 570, 577-78, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986).

A court may dismiss an indictment if it perceives Constitutional error. It may draw on its
•· •·'-.<· ,., ' " . r , .• :. .
.• ,,..i:.· _. .

supervisory powers to dismiss an indictment. United. .States
.... - . . . v McKenzie,
.
678 F. 2d 629, 631 (5th

Cir. 1982; United States v Holloway, 74 F. 3d 249, 253 (11th Cir. 1992); United States v Mills,
. .. .
' ' . ' .;

995 F. 2d 480, 486 (4th Cii. 1993); United States v Isgro, 974 F. 2d 1091, 1094 (9th Cir. 1992).
5' \! ' • I~ . • _' •. :• . ..,

The subcontractor to the Grant, CM Alternative Energies, Inc., was, at all times, in direct
·,. .• .

contact with the Grantee, SECO and through SECO, DOE, as DOE gave final approval or denial
. ~1etH:BfaHEllHe·9-'
It
on ~lstages of the process. All changes in the Environmental Assessment and structural design

were performed pursuant to federal officers direct orders or to comprehensive and detailed

regulations, such as, NEPA and the Code of Federal Regulations (CFR). Jefferson County v

Acker, 527 U.S. 423, 431, 119 S. Ct. 2069, 144 L. Ed. 2d 408 (1999); Durham v Lockheed

Martin Corp., 445 F. 3d 1247, 1251 (9th Cir. 2006); Watson vPhillip Morris Cos., 420 F. 3d 852,

855-56 (8'h Cir. 2005). In addition, requirements of the American Reinvestment and Recovery

Act (ARRA) required Buy American and the materials had to be "colnmercially available." (See

Exhibit 2, definitions of connercially available) According to the Fifth Circuit, the fact that a

product supplied to the government comprises connercially available component parts says

nothing about whether the finished product resulted from the exercise of government discretion

as to its design. "All products can eventually be broken down in to various off-the-shelf
... ' :· -~ ' : -~ .;--:_ ' '

components." Miller v Diamond Shamrock Co., 275 F. 3d 414, 420 (5'h Cir. 2001). Here the
. ' .-., .. ,.

government mandated Buy American
- !'.....
and structural design changes, and approved the process
. .,_ __ ,.-
~--

. -_ .. --,l. ~-.·.

and end product at each stage of the Project. (See Exhibit 2, Code of Federal Regulations on
.- . .' .·· . ~ -. . .

Sole Source procurement and connercially available).
. .. \···
The First, Fourth, Fifth, Sixth and Fourteenth Amendments to the United States

Constitution provide for the rights of all persons to enjoy freedom of speech, movement,
-, •,- l ~-

association and assembly, petition their government for redress of their grievances of deprivation
...., ._, .. ' .
of rights under the color of authority, to be secure in their persons, to be free from unreasonable
---~-- ·-•·,rc- :·
searches and seizures, to enjoy privacy and be free from deprivation's of life liberty, and
' ·~·' ····r.\t~~:

property without due process of law. Rosenberger v Rector & Visitor's of University of .
<. .. ~--- -- .., ;·_

Virginia, 515 U.S. 819, 833, 115 S. Ct. 2510, 132L. Ed. id 700 (1995); Pope v Illinois, 481 U.S.

497, 509, 956 L. Ed. 2d 439, 107 S. Ct. 1918 (1987); E.g. Ex Parte Tucci, 859 S.W. 2d 1 (Tex.
.. .. .

1993); Davenport v Garcia, 834 S. W. 2d 4 (Tex. 1992); Chanel4, KGBT v Briggs, 759 S. W. 2d
' Mffi'fierii'ftilttl'fl: 1Q · .
tz.
939 (Tex. 1988); Connick v Meyers, 461 U.S. 138, 146, 103 S. Ct. 1684. 1689, 75 L. Ed. 2d 708

(1983); Rankin, 483 U.S. at 384, 107 S. Ct. at 2896; Morgan v Ford, 6 F. 3d 750, 754 (nth Cir.

1993), cert. denied, _U.S._ 114 S. Ct. 2708, 129 L. Ed. 2d 83() (1994); Bryson v City of

Waycross, 888 F. 2d 1145, 1149 (lith Cir. 1988), cert denied, 489 U.S. 1013, 109 S. Ct. 1124,

103 L. Ed. 2d 187 (1989); Spano v New York, 360 U.S. 315, 320-321, 79 S. Ct. 1202, 3 L. Ed. 2d

1265 (1959); United States v Gainey, 380 U.S. 63, 68, 85 S. Ct. 754, 758, 13 L. Ed. 2d 658

(1965); Berger v United States, 295 U.S. 78, 55 S. Ct. 629, 79 L. Ed. 1314 (1935); United States

v Tibbetts, 646 F. 2d 193, 195 (5th Cir. 1981); United States vJohnson, 577 F. 2d 1304, 1308 (5th
Cir. 1978) quoting Unites States v Berrios, 501 F. 2d 1207, 1211 (2"d Cir. 1974); American Bar

Association Model Rules Of Professional Conduct; Texas Disciplinary Rules Of Professional
. -·
~- ~
.. '! __ : ~-
-• '

.Conduct.

Government agents, including the police and prosecutor's, maliciously violate an
. ,.--' ,. •.. •'• - ~-

individual's Constitutional rights when they knowingly and recklessly act to deprive a person of
~ -·:,. ·-,-- ··_- ·;._"'("-·.'

those rights, and when they misuse their official powers, and cause grievous injuries. Reckless

disregard encompasses providing false, and or materially misleading information for use jn an
. [""·

'
affidavit in support of a search warrant, and includes omitting facts that are clearly critical to
- .. ' . : - ---· -- .
finding probable cause. Frank's liability attaches when the police and prosecutors manipulate
1 • - ••

material representations, omissions and inferences thatthe issuing judge will draw from. Non-

affiants are also at fault for the material omissions and false and. misleading information
.., . . . ·c

appearing in a warrant application. "Bad faith" "is not simply bad judgment or negligence, but

rather it implies the conscious doing of a wrong because of a dishonest purpose or moral
.
.f.
. _.,. _;·'
obliquity; it contemplates a state of mind affirmatively operating with furtive design or ill will."

Black's Law Dictionary 139 (6'hed. 1990). Franks v Delaware, 438 U.S. 154, 171, 98 S. Ct.

2674, 2684, 57 L. Ed. 2d 667 {1978) (defining bad faith. in the law enforcement context to
Metn&aiidam II'
. _,_.
include "reckless disregard for the truth."); United States v Reilly, 76 F. 3d 1271 (2"d Cir. 1995);

United States v DeQuasie, 244 F. Supp. 2d 658 (41h Cir. 2009); United States v Hodson, 543 F.

3d 286 (61h Cir. June 2008); United States v Senak, 477 F. 2d 304 (1973, Ca 7 Ind), 477 F. 2d

304, cert denied, 414 U.S. 856, 38 L. Ed. 2d 105, 94 S. Ct. 157 (1973); United States v Classic,

313 U.S. 299, 615 S. Ct. 1031, 85 L. Ed. 1368, reh. den., (1941), 314 U.S. 707, 62, S. Ct. 51, 86

L. Ed. 565 (1941); Screws v United States, 325 U.S. 91, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945);

United States v Schafer, 384 F. Supp. 496 (1974, DC Ohio); United States v Flemming, 399 F.

Supp. 77, (1975, ED Mo), rev'd on other grounds, (1975, CAS Mo), 526 F. 2d 191, cert. dismd,

423 U.S. 1082, 47 L. Ed. 2d 93, 96 S. Ct. 872 (1976).

It is the responsibility of the trial judge to oversee and maintain the integrity of the trial and
0 ,

r;_r ' · •. ·' ,'I

ensure a defendant receives the~ light to a fair trial, However, the United States Supreme Court

has consistently found a breakdown in the adversarial process, due process, and right to a fair
. -... ,. .. ·-·-. -' .. ,'
trial when the trial judge has a direct financial interest in the outcome of the proceedings. Three
~. ,. -' ,.. _,._ 1 ,-

- ' .. . . . ' '~

Officers of the Court who made statements regarding the integrity of the trial judge, but failed to
1 ' ~ •, ':'

approach the court is uncontroverted evidence supporting this materiality of error. (See Exhibit
',
1, Judicial Misconduct, email attachment from Ariel Payan dated 3/21/14, and Bar Grievances)
. .- .... -·~ --~ · .. ; i-. ·:.
, '
Johnson v United States, 520 U.S. 470, 137 L. Ed. 2d 718, 117 S. Ct. 1544 (1997) (" .. and the

cumulative errors seriously effected the fairness and integrity of the judicial proceedings." Id., at
~

469, 137 L. Ed. 2d 718, 117 S. Ct. 1544. The Court has found that anunbiased decision maker is

not an option in any fair trial, and creates such an error that taints any conviction with

constitution infirmity and requires automatic reversal. Young v United Sates, 315 U.S. 257,
·_;.

258, 259, 86 L. Ed. 832, 834, 835, 62 S. Ct. 510 ("the proper administration of criminal law
. ., .. ,. . ' .

cannot be left merely to the stipulation of the parties." 315 U.S. ;tt 259; Chapman v California,
·,·,--.·j·.- ' n ··
: ··•· ..•.
r,~

386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) (The Supreme Court said whether it appears
·~ · · Meffiei'lif!i;l\i-iH 12'·: ' · · ·
. \ . ·fy· ..
l!l-
. -. i : ( ~
beyond a reasonable doubt that the error complained of did not contribute to the verdict

obtained." Id., at 24, 17 L. Ed. 2d 705, 87 S. Ct. 824; Neder v United States, 527 U.S. 1, 144 L.

Ed. 2d 35, 119 S. Ct. 1827 (1999) ("critical issues of fact where there is the importance of

protecting the right to have a jnry resolve critical issues of fact when there is a special danger

that elected judges may listen to the voices of voters rather than the witnesses."); United States v

Evans, 504 U.S. 255, 274, 112 S. Ct. 1881, 119 L. Ed. 2d 57 (1992); Schlup v Delo, 513 U.S.

298, 130 L. Ed. 2d 808, 115 S. Ct. 851( 1995); Sawyer v Whitley, 505 U.S. 333, 120 L. Ed. 2d

269, 112 S. Ct. 2514 (1992); Tumey v Ohio, 273 U.S. 510, 532, 71 L. Ed. 749, 47 S. Ct. 437, 50

ALR 1243 (1927); Kyles v Whitley, 514 U.S. 419, 436-37, 115 S. Ct. 1555, 131 L. Ed. 2d 490

(1995); Harrington, 131 S. Ct. at 786 (quotingJackson v. Virginia,
.
443 U.S. 307, 332, n. 5, 99 S.

Ct. 2781, 61 L. Ed. 2d 560 (1979); United States v Narisco, 446 F. Supp. 252 (ED Mich. 1977);
- ....
.- ' ''( .
United States v Gainey, 380 U.S. 63, 68, 85 S. Ct. 754, 758, 13 L. Ed. 2d 658 (1965); Holloway v
.. '

Arkansas, 435 U.S. 475, 484, 98 S. Ct. 1173, 1178, 55 L. Ed. 2d 426 (1978); Glasser v United
..
States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1992); Cuyler v Sullivan, 446 U.S. 335, 346,

100 S. Ct. 1708, 1717, 64 L. Ed. 2d 333 (1980); McCormick v United States, 500 U.S. 257, 273,
' .- •. ,_' ---.' ~( c: ·; •

1115 S. Ct. 1807, 114 L. Ed. 2d 307 (1991); United States v Sun-Diamond Growers of Cal, 526
.-·--- .;:;.::.

U.S. 398, 404-405, 119 S. Ct. 1402, 143 L. Ed. 2d 576 (1999); American Bar Association Model

Rules Of Professional Conduct; Texas Disciplinary Rules Of Professional Conduct; Texas
-,. ..., -
Standards On Judicial Conduct.
. ,.,
The United States Supreme Court has long held that the suppression of evidence favorable

to an accused violates due process of law,
,,__ --
regardless of whether the prosecution suppresses

evidence in good or bad faith. According to the Supreme Court, society wins no only when the
., ·: ,-

guilty are convicted, but when criminal trials are fair. And, when the State withholds from a
1 ·· \ · ··• . r ·

criminal defendant evidenc.e that is material to his guilt or punishment, it violates his right to due
· Meiffier!li!aflm B ·
n·
iS'
process of law in violation of the Fourteenth Amendment. That evidence must be favorable to

the accused, because it is exculpatory or impeachable; it must have been suppressed by the State;
'
and prejudice must have ensued. The government denies a defendant the opportunity to present

a meaningful defense when it, directly or through its prosecution team, under its control,

intentionally disposes of potentially exculpable evidence. Brady v. Maryland, 373 U.S. 83, S.

Ct. 1194, 10 L. Ed. 2d 215 (1963). Cone, 129 S. Ct., at 1783; United States v Jernigan, 492 F. 3d

1050, 1053-54 (9th Cir. 2007); Kyles v Whitley, 514 U.S. 419, 432-33, 115 S. Ct. 1555, 1565,

131 L. Ed. 2d 490 (1995); UnitedStates v. Bagley, 473 U.S. 667, 674, 105 S. Ct. 3375, 3379, 87

L. Ed. 2d 481 (1985). Valdovinos v McGrath, 598 F. 3d 568 (9'h Cir. 2020); United States v

George Bohl, 25 F. 3d 904 (](fhCir. 1994). The denial by a state of any judicial process by
/ I.

which a conviction obtained through the admitted or proved use by the state, knowingly or
•"-'." (' .. ., .·,.,. ;·

unknowingly, of perjured testimony, and the suppression of impeaching evidence is a deprivation

·of liberty without due process of law in violation of the Fourteenth Amendment Moore v

Dempsey, 261 U.S. 86, 67 L. Ed. 543, 43 S. Ct. 265; Frank v Mangum, 237 U.S. 309, 59 L. Ed.
' ..

969, 35 S. Ct. 582 (1915); People v Mooney, 175 Cal. 666, 166 P. 999; People v Mooney, 176
'• - •.. '
..
''<1''
'.

CaJ. 105, 167 P. 696, 177 Cal. 642, 171 P. 690.
• • ~ . ·- •. -~ : !

The Travis County District Attorney Public Integrity Unit cannot, m good standing,
r. -.•. i;

consider itself a "Public Integrity" unit when it violates due process and fails to obey its own
.. ",.- .. , -', .. •• ,·, r, -·
. -
.
,] ;: , ' !
.,

regulations. When the prosecutors leave their role as advocate and function as "investigators,"
~ -- ~--. ( . ··.
defined as, persons who go out and get information, gather evidence, and interview witnesses,
...,._ .. ,

give legal advice in the submission of patently false and misleading statements to a magistrate,

are less than candor to the tribunal, and knowingly, and intentionally participate, and condone
... ' "

transgressions against Court Rules, executive rules, state and federal laws, and connands of the

Texas and United States Constitution's, and who fail to recuse themselves, but use their color of
MemsFa£~·1~.
1(,
. "
 authority to isolate them from the adversarial testing process, the cumulative impact, in the

totality of circumstances, create an extreme malfunction in the State criminaljustice system and

manifest the proceeding into a fundamental miscarriage of justice. Gideon v Wainwright, 372

U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963); Brecht v Abrahamson, 507 U.S. 619, 629-30,

113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993); Rosev Clark, 478 U.S. 570, 577-78, 106 S. Ct. 3101,

92 L. Ed. 2d 460 (1986); Johnson v Zerbst, 304 U.S. 458, 468 (1938); Duncan v Louisiana, 391

U.S. 145, 156, 20 L. Ed. 29, 491, 88 S. Ct. 1444 (1968) ("defense against arbitrary law

enforcement is due process of Fourteenth Amendment protection of Sixth Amendment rights to

confrontation."); Walter V Schafer, Federalism and State Criminal Procedure, 70 Harv. L. Rev.

1, 8 (1956); Galvan v Press, 347 U.S. 522, 530, 74 S. Ct. 737, 98 L. Ed. 911 (1954); Spano v
,•

New York, 360 U.S. 315, 320-321, 79 S. Ct. 1202, 3 L. Ed. 2d 1265 (1959); Berger v United
'r. -~
- ' ;
: ..
States, 295 U.S. 78, 55 S. Ct. 629, 79 L. Ed. 1314 (1935); Buckley v Fitzsimmons, 509 U.S. 259,
. .... ,,
' "('
'
.,, ' /·

273, 113 S. Ct. 2606, 125 L. Ed. 2d 209 (1993) ("The actions of a prosecutor are not absolutely
. ' -.' ~

immune -merely they are performed by a prosecutor." "A prosecutor neither is, nor should
~ . ~- . '. .- ..

consider himself to be an advocate before he has probable cause to have anyone arrested." 509
·, .·-

U.S. at 274 ... "lack of probable cause indicates a prosecutor is operating as- an investigator
' ' ,.
instead of an advocate"); Burns, 500 U.S. at 496, Ill S. Ct. at 1944-45 (The Supreme Court
,-,-.· ,. '_.,.

definitely stated that a prosecutor is not entitled to absolute immunity for providing legal advice
' .. , ;· '

to police officers. Burns, 500 U.S. at 492-96); Broam v Bogan, 320 F. 3d 1023, 1028 (9th Cir.
' ·- ·:··-, ."•, ---~--:

2003) ("no absolute immunity where prosec'(ltor is functioning as a police officer."); Rehberg v
:~. ·~ ---- .... . ., r~· ... ,
. Paulk, 598 F. 3d 1268 (5th Cir. 2010) ( Prosecutor loses cloak of immunity stepping out and
... ." ,._.. . ., __

performing investigative functions."); Cousins, 5(j8 F. 3d at 1068, citing Buckley, 509 U.S. at
T·- ...

. 273 ("investigative acts" such as "evidence gathering" and "witness interviewing" ... normally
.. :···' .· ,.---
performed by a detective or police officer are not entitled to immunity.); Donahoe v Apaio, 869
. i . . ' ',J>.'[~6fflii~lti: 15 ".

il
 F. Supp. 2d 1020 (9th Cjr. 2012) citing Burns, 500 U.S. 478,486, 11l S. Ct. 1934, 114 L. Ed. 2d

547 (1991) ("The nature of the function performed"); Forrester v White, 484 U.S. 219, 229, 108

S. Ct. 538, 98 L. Ed. 2d 555 (1998) ("holding the natu~e of the function performed, not the

identity of the actor who performed it."); Kalina vFletcher, 522 U.S. 118, 127, 18 S. Ct. 502,

139 L. Ed. 2d 471 (1997); Van de Kamp v Goldstein, 555 U.S. 335, 342, 129 S. Ct. 855, 172 L.

Ed. 2d 706 (2009); Botello v Gammick, 413 F. 3d 971, 976 (9th Cir. 2005) ("immunity does not

attach to all actions taken by a prosecutor merely by virtue of title ... not to actions better

described as administrative or investigative."); United States v Bowen, U.S. Dist. LEXIS 134434

_(2013); Hadley v Caspari, 1994 U.S. Dist. LEXIS 586, at *3 n. 1 (W.D. Mo. Jan. 19, 1994),

rev;d on other grounds, 36 F. 3d 51 (8th Cir. 1994) (quoting Vasquez v Hillery, 474 U.S. 254,
._, .. ··,·-

263 (1986)) An investigator is subject to adversarial cross-examination. When a prosecutor acts

as both the investigator and prosecutor, the criminal proceeding against a defendant is
. "\!\':'

prejudiced.

'2.'5
•::
(Trial errors that occur during the presentation of the case to the jury are subject to harmless-

error analysis. "At the other end of the spectrum of constitutional errors lies "structural defects"

in the constitution of the trial mechanism, which defy analysis by the "harmless-error" standard

and require automatic reversal." ld.); Johnson v United States, 520 U.S. 461, 469 117 S. Ct.

1544, 137 L. Ed. 2d 718 (1997); Rose v Clark, 478 U.S. 570, 577-78, 106 S. Ct. 3101, 92 L. Ed.

2d 460 (1986) ("If the defendant had counsel and was tried by an impartial adjudicator, there is a

strong presumption that any other errors that may have occurred are subject to harmless-error

analysis."); Tumey 273 U.S. at 523. 'It is sufficient if the public official understood he or she

was expected to exercise some influence on the payer's behalf as the opportunities arose."

United States v. Abbey, 560 F. 3d 513, 518 (6th Cir. 2009); United States v Jefferson, 674 F. 3d
, ....

332, 358~59 (4th Cir. 2012); Ryan v United States, 688 F. 3d 845, 852 (7th Cir. 2012); United
. '

States v Ganim, 510 F. 3d 134, 147 (2nd Cir. 2007). The Texas Code of Judicial Conduct,

Canon 1: Upholding the lnt~grity and Independence of the Judiciary states, "An

independent and honorable judiciary is indispensable to the justice of our society. A judge

should participate in establishing, maintaining, and enforcing high standards of conduct, and

personally observe those standards so that the integrity and independence of the judiciary is
c.· .... -- ' •, __ ,,_._ - . . . . . .! • ' ··,

preserved." Canon 2: Avoiding Impropriety and the Appearance of Impropriety in All of
''1''"

the Judge's Activities (A.) states, A judge shall comply with the law and should act at all times

in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

And, (B) A judge shall not lend the prestige of judicial office to advance the private interests of
~-'
c
.

the judge. Cannon 3(A): Performing the Duties .,of, ..Judicial
,
Office Impartially and Diligently
__

states, the judicial duties of a judge take precedence over all the judge's other activities. Cannon

3(B)(2) states, a judge should be faithful to the law and maintain professional competence in it.

A judge shall not be swayed by partisan interests, public clamor of fear of criticism." And,
.. · - ·Mem6fflfithtm 2:<1-
-J..'-'
. ~ . ··- ....
'.
Canon 5: Refraining from Inappropriate PolitiCal Activity (1) A judge or judicial candidate

shall not: (i) make pledges or promises of conduct in office regarding pending .or impending

cases, specific classes of cases, specific classes of litigants, or specific propositions of law that

would suggest to a reasonable person that the judge is predisposed to a probable decision in cases

within the scope of the pledge.

The integrity of the judiciary is to refrain from conduct, which result in her making

decisions contrary to and involved umeasonable application of clearly established state and

federal laws as determined by both Supreme Courts, and the Constitutions of both Texas, and the

United States.

~-. ·.
. ·'
~-.--.: . . '

ARGUMENT·

Travis County Sheriff's Deputy, Toby Miller, a person of public trust, who made sure he

was identified as a "Senior Deputy Sheriff," who was caught by .Applicant falsifying time sheets

on a Federally funded energy grant, that was under the constant oversight of the U.S. Department

of Energy, from the issuance of the announcement
. .
of the Stimulus
. Program until Applicant was
-.. ·,

arrested on October 11, 2011.

Miller, as a Senior Deputy Sheriff, knows that making patently false or misleading
.. '· . ·... ... ,. / ; ' ,.

statements, material omissions and providing only personal beliefs, and assumptions, twisted for

self-serving needs, to establish probable cause, violated criminal laws and constitutional rights.

In this case it was Miller who controlled most of the information his personal friend, Travis
. ~ . . . ' ..

County District Attorney Investigator Lori Carter, and Travis County Assistant District Attorney,

Holly Taylor, relied upon, but failed to verify,
.. ,.
or confirm, even
. .
after being told to their faces, by
• 1:, • ; ·. :: ·:. :._ . . ., .

the Jones town Chief of Police, while they were out "investigating" the case, (Holly Taylor is

seen in a reflective photo, that clearly identifies her by her dark hair (Carter is a bleached
M6ffiel'!ffl4:tm '25
'27
blonde), wedding ring and jewelry (that she wore to conrt daily) taking the picture over by the

Waste Water Treatment Plant), that Miller was a suspect in an ongoing criminal investigation for

multiple felonies, including Attempted Murder and the sabotage of Wind Energy Systems in the

very case they were working on. They were told there was no evidence of a crime on both

Applicant and on the part of SECO employee, Mary
'
J;b Woodall, by Martin Cano, Chief of
(,

Investigations, Texas Comptroller, and also by their OWn forensic analyst, Robin Timmins, all

months prior to securing the search warrants. (See Exhibit 5, 299th District Court Records, D-1-

DC-13-904021-EXH-VOLUMES 1-21, COURT REPORTERS RECORD, D-1-DC-13-

904201_395 CLERKS RECORD, Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY

(A-11-CR-647(1)-LY) 2255 Motion to Vacate, Supplemental Report Field Observations-Chief

Stetar attachment, and Exhibit 2, Promissory Notes and bank check faces).

Miller knew Applicant was a 29 year, decorated, and Honorably Retired Chief of Police

and Military Veteran. Miller knew Applicant had created and developed a ballistic shield and

, custom furniture company back in 1998 and was involved with that company until 2006; was

involved in grants and research and development projects with the Department of Defense since

1993; the shield company was a Sole Source provid~r since 1998 and had been awarded
· -,iL Ur"- ·
successful contracts with the Department of Defense, FBI; ut
Marshal's, U.S. Secret Service,
,-~ r': · -·r
U.S. Department of State, Diplomatic Security and international police organizations, including

Hong Kong, Singapore, Germany, Canada and Japan; Miller knew, through reading Applicant's

Pardon Petition, that was hand carried to the White House in December of 2008, and not denied,
;.,;

but simply turned away, because a fellow named Isaac Toussie (See Exhibit 2, photos and

Exhibit 4, Pardon Petition and Toussie articles) made the national news when it was alleged his

father paid approximately $28,000 to get his son a pardon; that Applicant, prior to becoming a

Chief of Police, aggressively investigated bad cops and would have no qualms, conviction or not,
MeHter!ltlffiml: 'Q,~ ,
-z.'b
,.'"
 ·-·-;-. •'

about putting Miller, Cook and others behind bars for theit'criminal conduct. And, that Applicant

was angry specifically at the vindictive prosecutorial and government misconduct involving

blatant lies from Houston AUSA, Jimmy Kitchens and theATF regarding ATF and FBI roles in

the training in Houston where Applicant, under the color of authority, provided authorized less

lethal device (flash bangs) training aids for sanctioned, and accredited law enforcement training,

and the Govermnent's vindictive prosecution ("a present from the FBF') of Applicant in

. covering up the negligent conduct of FBI Supervisory Special Agent Mark Tilton, with the help

of his friend, Austin FBI Supervisory Agent Charlie Rasriet,_, in his failures regarding Applicant's
('

catching a Russian Spy in the Houston Ship Channel in 2001, and Tilton's failure to resolve the

Gene Williams issue, as the FBI SWAT Team Leader, before Williams blew the foot off of a co-

worker while horse playing. Miller knew Applicant was actively engaged in continuing his quest

to get a pardon; is not a criminally minded person; and was actively engaged in the development

of the Wind Energy business to turn it into an international business. (See Exhibit 4, Pardon

Petition, Charlie Malouff Resume, Charlie Malouff Commendation Letters and Letters of

Appreciation, Goeff Ross letter, Gene Williams Motion and United States v Vest, and Exhibit 1,

"Panama presentation" and Howard Reed Affidavit).
r :·
Not only did Miller and McCoy know Applicants background, but Applicant provided CM

Energies employees, Lance Wedell, Justin Shepherd, Aaron Knapek, John Karlson, and Paul
A• ,. •

Kuwumara with a copy of his resume so they would know Applicant's background as it applied

to his knowledge of the workings of the Government. Nb where in Applicant's resume or during

any time in association with these persons, did Applicant ever say he worked for the CIA. In

addition, Miller, McCoy, Cook and the employees all knew Applicant was proud of his

background and wore his medals and defining patches on
,..
his motorcycle vest in the employees

presence, almost daily from the time he started with Shepherd and Eric Graham's, University of
Met!iel'lll.Tclt!Hi 29
~"l
Texas, class projects in 2008, until Applicant was arrestt!d on October 11, 2011. (See Exhibit 2,

Applicants motorcycle vest and patches photo and, Exhibit' 1, Charlie Malouff Resume).

Miller, McCoy, Karlson, Wedell, Shepherd, Cook, Graham, Knapek, other CM Energies

employees and Deane Armstrong, Jones town Mayor, -and Dan Dodson, Jonestown City

Administrator, knew Applicant was the owner of the Intellectual Property and patent's pending

design of the Wind Energy System. Miller knew all employees, including himself signed not

only a Confidentiality and Non-Compete Agreement, but also a Trade Secrets Confidentiality

Agreement as well. Miller, McCoy, Karlson and others all knew Applicant was protective of the

technology that gave him an advantage over others from the studies and development of the

Systems and were well aware of the large number 'of patent and Intellectual Property
'
infringement cases filed in Federal Court by American companies every year .
.;:_ . '

Miller, McCoy, Karlson and others knew they were not owners of the technology, had no
,--

rights to any of the Intellectual Property, nor were they members CM Energies International,

LLC. Miller, Karlson and others knew McCoy was president the majority shareholder to CM
·.r· !

Alternative Energies, Inc., a Texas Corporation where they were part-time employees, and they

had no shares, and no authority to speak or act on behalf of the Company when they tried their

"secret" takeover of the Wind Project. "A trade secret is -any formula, pattern, device or

compilation of information which is used in one's business, and which gives the owner an

opportunity to obtain and advantage over competitors who do not know or use it." N. At.
'q . ~:·i

Instruments, Inc. v Haber, 188 F. 3d 38, 44 (2nd Cir. 1999). Miller, McCoy, Karlson, Guevara

and others were all informed by Applicant that at any given time in the United States there are
. ',.,. ...

over 1600 patent infringement cases on file in the Federal courts, and they all knew the extent

and measures Applicant took to guard the secrecy of the intricacies of the Systems. They knew

Applicant was working directly with Michael Guevara, CM Energies General Counsel, and
MBH!ei'aHE!-effi· 28
"$0
Robert McLauchan, CM Energies Intellectual Property Patent Attorney regarding the protection

of the designs and commercialization. They knew between 2009 and 2010, Applicant taught

them the value of the information to the business and the competitors. They knew Applicant

spent every day for several years developing the information and was out at the University of

Texas, JJ Pickle Research Center every day, all day long, with student projects and conducting

his own independent testing and study's. And, more importantly, they were taught by Applicant,

once in someone's possession, the ease or difficulty with which the information could be

properly or improperly acquired or duplicated by others. Not only were they taught this, but they

used it against Applicant in their attempt to take control of Applicant's Intellectual Property.

(See Exhibit 5, 299th District Court Records, D-1-DC-13-904021-EXH-VOLUMES 1-27,

COURT REPORTERS RECORD, D-1-DC-13-904201_395 CLERKS RECORD, Exhibit 6,

Charlie Malouf! v. United States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255 Motion to
,., .·

Vacate, Secret Meeting attachment). They knew the Grant was specifically written for

Applicant's Wind Energy Systems. They also admitted, they had not read the Grant or any of
.. . I

the Code of Federal Regulations required to be in compliance with the Grant. (See Exhibit 5,

299th District Court Records, D-1-DC-13-904021-EXH-VOLUMES 1-27, COURT

REPORTERS RECORD,' D-1-DC-13-904201_395, pages 47-50 CLERKS RECORD, and

Exhibit 6, Charlie Malouf! v. United States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255
'"\' .

Motion to Vacate). They knew while Guevara attended their "secret" meeting with Dan Dodson,

City Attorney, who also knew Applicant was working with Guevara and McLauchlan, Guevara
.. ~ .!' ., . ! •••••

left their little group after seeing the. falsified time sheets, and Miller's email admitting to
.. ,'. __ ··-·-"
·,. i :,

breaking into City Hall and wishes to do Applicant harm. Guevara himself was called a "traitor"
::.,·.· ,-'
and other things by Miller after he disassociated himself with Miller, Karlson Cook, Graham,

McCoy and the others. In addition, Applicant and Guevara were sent malicious emails
.-Meffi:eit\f!Effiih 29
. . ??I.. ,
containing viruses by Miller. (See Exhibit 1, Applicant's Yahoo email screen sheets with three

unopened emails containing viruses sent from Miller). Applicant got the first virus email from

Miller shortly after the Wind Energy Systems were sabotaged and it was detected by Kaspersky

Anti-Virus. The email was addressed to Applicant and to Mike Guevara. Applicant immediately

notified Guevara and instructed him not to open any emails from Miller.

While McCoy was the president and majority shareholder of CM Alternative Energies,

. Inc., and was licensed to market and manufacture the Wind Energy Systems, her participation in

the illegal take over was the wrong way to address contractual and corporate responsibilities.

She compounded this when she told Applicant she would sever the parent-child relationship if he

pursued terminating Miller, Cook, Graham, K11rlson, and others, three times and again a month
i 1 ' • r ••• •• '

later.
' .··
On July 15, 2011, Travis County Assistant District Attorney, and prosecutor of the case,
. ,\.

Holly Taylor, left her role as a prosecutor, and thereafter engaged in the role of "investigator"

gathering evidence, proven by a reflective photo of Taylor taking photographs, interviewing

witnesses, getting facts and information, giving legal advice to police officers, and clearly

functioning as an investigator. (See Exhibit 6, Charlie Malouf! v. United States, A-13-CV-

572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate, Supplemental Report Field Observations-
·' '''')

Chief Stetar attachment, and Exhibit 2, photos of Taylor photographing evidence). At that time,

Travis County District Attorney Investigator, Lori Carter, and Taylor clearly lacked probable

cause and Taylor was not in a position to claim to be an advocate.

Taylor, as the prosecutor, violated the American Bar Association Model Rules of

Professional Conduct and the Texas Disciplinary Rules of Professional Conduct, Rule 3.03(a)(l),
·... :"'L:·: .• • ··•'··

(3j(b)(c)(d) when she repeatedly said she did know she was withholding Brady material and

offered, through the advice and counsel to Carter, and in bad faith, and assisted Carter in making
..
patently false and misleading statements, and coaching her to make material omissions to the

magistrate to secure multiple search warrants. (See Exhibit 5, 299th District Court Records, D-1-

DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS RECORD, D-1-DC-13-

904201_395 CLERKS RECORD, and Exhibit 6, Charlie Malouffv. United States, A-13-CV-

572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate).

Taylor ignored her duty of candor to the tribunal, as prosecutors may not, "in an ex parte

proceeding, fail to disclose to the tribunal an unprivileged fact which the lawyer reasonably

believes should be known by that entity for it to make an informed decision." And Rule 8.04

(a)(1),(2),(4) when she herself, and in the assistance of another, Lori Carter, and other

prosecutors involved in this case, including Susan Oswalt and Greg Cox, knowingly violated

these Rules, and knowingly and intentionally engaged in conduct involving dishonesty, deceit,

and misrepresentation when they submitted patently false, and misleading information, and
. :) ~ ..
knowingly, and intentionally omitted material exculpatory information to the magistrate in the

presentation of the search warrant affidavit to keep that magistrate from making an informed
.. < l ·•. i ,,

decision. And American Bar Association Rules of Professional Conduct Rule 3.8 Special

Responsibilities Of A Prosecutor (a) refrain from prosecuting a .charge that the prosecutor
,..
knows is not supported by probable cause; (d) make timely disclosure to the defense of all

evidence or information known to the prosecutor that tends to negate the guilt of the accused or

mitigates the offense, and, in connection with sentencing, disclose to the defense and to the

tribunal all unprivileged mitigating information known to the prosecutor, except when the
. ( ''
prosecutor is relieved of his responsibility by a protective order of the tribunal; (g) When a

prosecutor knows of new, credible and material evidence creating a reasonable likelihood that
'. ,;,,

the convicted defendant did not commit an offense of which the defendant was convicted, the

prosecutor shall: (1) promptly disclose that evidence to an appropriate court or authority, and
•MemElfilflatufi'B i .
-~
(2)(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to

determine whether the defendant was convicted of an offense that the defendant did not commit,

and (h) When a prosecutor knows of clear and convincing evidence establishing that a defendant

in the prosecutor's jurisdiction was convicted of an offense that the defendant did not commit,

the prosecutor shall seek to remedy the conviction. Holly Taylor knew when she was functioning

as an "investigator" when she was caught in a reflective photo taking the picture over by the

Waste Water Treatment Plant before Jonestown Chief of Police; John Stetar caught them

"investigating" in his jurisdiction, and also having been told by officials from other government

organizations, who were more familiar with the policies, procedures and contractual obligations

under the Grant, and law, and who knew that further investigation, such as, talking to Applicant,

or any of Applicant's employees, other than the ones w?o were fired, would result in neither the

Applicant or Mary Jo Woodall committing an offense, and being innocent of the allegations, but
,. ··-·... ,. ; \

because of her pride, maliciously continued to violate Applicant's constitutional rights.

Taylor and Carter singled out Applicant, who at the time of the submission of the Grant,
. .,

was not an employee of CM Alternative Energies, Inc., the subcontractor, or the City of
, ,
Jonestown, the Grantee, and who had not signed ~my government document. Taylor and Carter
...,,.
knew the City of Jonestown conducted its own independent due diligence and the Mayor, Deane
._.,, .. ., ., .. -, .., .
Armstrong, knowingly and freely signed the Grant on behalf ofthe City. (See Exhibit 5, 299th

District Court Records, D-l-DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS
:··· .

RECORD, D-1-DC-13-904201_395 CLERKS RECORD, and Exhibit 6, Charlie Malouf! v.

United States, A-13-CV-572LY (A-ll~CR-647(1)-LY) 2255 Motion to Vacate).

Between April 2012 and August 2013, Travis County 299th District Court Judge, Karen

Sage, heard numerous testimonies, and examined numerous pieces of material exculpatory
. ·.. " •,, -'

evidence. Sage heard numerous arguments of ongoing Brady violations and selective and
·Meffief!ifl'ffi:!Hi 32
-?t.-1
,- .. .,..
. ,! ' -
 vindictive prosecution. (See Exhibit 5, 299th District Court Records, D-1-DC-13-904021-EXH-

VOLUMES 1-27, COURT REPORTERS RECORD, D-1-DC-13-904201_395, pages 183-326

CLERKS RECORD, and Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY (A-11-

CR-647(1)-LY) 2255 Motion to Vacate, Supplemental Report). Sage heard arguments that there

were three standing Wind Energy Systems, one in Taylor, Texas and two in the City of

Jonestown (see Exhibit 2, photos) that an exculpatory and exonerating 20 Kilowatt generator

could have been put in and connected to the grid, and demonstrated that the Wind Energy

Systems worked as proposed, but the City of Jonestown and the Travis County District Attorney

maliciously took a metal cutting saw and cut them down and destroyed them, so that there was

no physical way for Applicant to prove his innocence, a violation of Brady. (See Exhibit 5, 299th
·~:· .,,,, .·. - , ..

District Court Records, D-1-DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS

, RECORD, and D-1-DC-13-904201_395, pages 183-326 CLERKS RECORD). Evidence is
. ;"-. ..
"material" within the meaning of Brady when there is a reasonable probability that had the

evidence been disclosed, the result of the proceeding would have been different. Brady v.

Maryland, 373 U.S. 83, S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Cone, 129 S. Ct., at 1783; United

States v Jernigan, 492 F. 3d 1050, 1053-54 (9th Cir. 2007); Kyles v Whitley, 514 U.S. 419, 432-

33, 115 S. Ct. 1555, 1565, 131 L. Ed. 2d 490 (1995); United States v. Bagley, 473 U.S. 667, 674,
·' - ·····
105 S. Ct. 3375, 3379, 87 L. Ed. 2d 481 (1985). Valdovinos v McGrath, 598 F. 3d 568 (9th Cir.
. , ,·.,.

2020); United States v George Bohl, 25 F. 3d 904 (lOth Cir. 1994); Moore v Dempsey, 261 U.S.
, -r··

86, 67 L. Ed. 543, 43 S. Ct. 265; Frank v Mangum, 237 U.S. 309, 59 L. Ed. 969, 35 S. Ct. 582;
- 1 '~. • ' ,--,' ,.

People v Mooney, 175 Cal. 666 .,P. 999; People v Mooney,
__ '". -.. ,
176 Cal. 105, 167 P. 696, 177 Cal.

171 P. 690.

Taylor, Carter and Miller all allege Applicant committed fraud, creating Wind Energy
!" ·--' ,-

Systems that didn't work, even though there is ample proof the full size prototypes at The
Meffi6ffitlditin jJ ·.:
... -... ,..
University of Texas, JJ Pickle Research Center did, and the supervising professor, Ron Stearman

(see Exhibit 1, Stearman letter and email to Mary Jo Woodall and Howard Reed Affidavit) said

they worked and were ready for commercialization, but they knowingly and intentionally, and in

bad faith destroyed these distinct and exclusive design Systems depriving Applicant of any

opportunity to exonerate himself with this potentially exculpatory evidence, and thus prejudiced

Applicant. California v Trombetta, 467 U.S. 479, 81 L. Ed. 2d 413, 104 S. Ct. 2528 (1984);

Arizona v Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281 109 S. Ct. 333 (1988); United States v

Cooper, 983 F. 2d 928, 931 (9 1h Cir. 1993); United States v Fletcher, 801 F. 2d 1222, 1225 n. 3

(10'h Cir. 1986); United States v. Bagley, 473 U.S. 667, 674, 105 S. Ct. 3375, 3379, 87 L. Ed. 2d

481 (1985); United States v Abello-Silva, 948 F. 2d 1168, 1179 (lO'h Cir. 1991) (same), cert
.. ·...., ·;···

denied, 113 S. Ct. 107 (1992); United States v George Bohl, 25 F. 3d 904 (lOth Cir. 1994). (See
. ~ ,.1 '''

Exhibit 5, 299th District Court Records, D-1-DC-13-904021-EXH-VOLUMES 1-27, COURT

REPORTERS RECORD, D-1-DC-13-904201_395, pages 183-326 CLERKS RECORD, and

Exhibit 6, Charlie Malouf! v. United States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255
" . ..
. -..--,.

Motion to Vacate, and Exhibit 1, Jonestown City Couneil Agendas and Minutes).

Sage heard testimony from the complainant, Travis County Deputy Sheriff, Toby Miller, a
)

17-year deputy with the Travis County Sheriff's Office, who began his complaints ensuring he
>,.

was identified as a Senior Deputy Sheriff (See 299th District Court Records, D" 1-DC-13-
, .. . . ·- (. .. - ~

904021-EXH-VOLUME027, pages 537-558), admitting to falsifying payroll time sheets to a
:I ' - .. , i ·

Federal energy grant, and his Travis County Sheriffs Office time sheets. Sage heard Miller
-:' '. r.: ,

admit he never read the Grant, or any of the Code of Federal Regulations associated with the
. .

mandatory NEPA Environmental Assessment (EA) and that he had no idea what the Grant
~ .. -~ ( . -- . -

requirements were, or what the contractual obligations of CM Alternative Energies, Inc., the sub-

contractor to the Grantee, the City of Jonestown was. Additionally, Miller testified to using the
·.Meffiel'iffie:li:l~ 3 4 •• .·
?'-
 National Crime Information Center (NCIC) computer, his Sheriff's uniform, and motorcycle for

personal gain; illegally entering into a government building that he had no business in after

closing; and his leadership role in trying to take away protected technology of another, and his

trying to take over a wind energy company that he had no ownership control in, and when he

failed, he used his position of authority to cover his crimes and initiate criminal prosecution

against Applicant and co-defendant Mary Jo Woodall. (See Exhibit 5, 299th District Court

Records, D-1-DC-13-904021-EXH-VOLUMES 8, pages 193-201 and 15, pages 16-22 COURT

REPORTERS RECORD, D-1-DC-13-904201_395, pages 183-326 CLERKS RECORD). In

addition, Sage heard Miller initiated his complaints the day he found out, by the corporate

attomey, Michael Guevara, Applicant caught Miller falsifying time sheets, and had put him

under criminal investigation with the Grantee, the City of Jonestown. Miller admitted, under
'.
':•
oath, to conducting an investigation to build the predicate criminal case against Applicant. Miller
-- '. ~

did this under the color of authority, for personal gain, _and not authorized by either the Travis
' . '·-. ' . ; ·_' ~ '/ ' .

County Sheriff's Office or the Travis County District Attomey' s Office. (See Exhibit 5, 299th

District Court Records, D-1-DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS
' -' . .

RECORD, D-1-DC-13-904201_395, pages 183-326 CLERKS RECORD, and Exhibit 6, Charlie
:c\! , - ,-.--
Malouffv. United States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate).
. .. .'

Other significant testimony was from Travis County District Attomey Investigator, Lori

Carter, who admitted, under oath, one reason she targeted Applicant was for his comments, "If I

tell you I will have to kill you" made not as an assertion of fact, but in a popular sense, common
: ... ··:··,·····
in public opinion, used in a joking manner, not obscene, not defamatory, not words tantamount
., . ' . .
to an act otherwise criminal, not an impairment of some other constitutional right, not an

. incitement to lawless action, not calculated or likely to bring about imminent harm, and protected
,.....,

by the First Amendment of the Constitution. And, "I love my country, I despise my government"
· Mem:efftflffiiffi 3§
?7
also made not as an assertion of fact, but in a popular sense, common in public opinion, not

obscene, not defamatory, not words tantamount to an act otherwise criminal, not an impairment

of some other constitutional right, not an incitement to lawless action, not calculated or likely to

bring about imminent harm and protected by the First Amendment of the Constitution, but

twisted by Carter as "anti-government statements" during her investigation to bolster anger and

animosity towards Applicant. (See Exhibit 5, 299th District Court Records, D-1-DC-13-904021-

EXH-VOLUMES 16-19, COURT REPORTERS RECORD, D-1-DC-13-904201_395 CLERKS

RECORD, and Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY (A-11-CR-647(1)-

LY) 2255 Motion to Vacate).

Not only did Carter admit to this in Applicant's trial, but Captain Gleason, Williamson

County Sheriff's Department SWAT Commander, who .conducted the raid on Applicant's co-

defendant's home on October 11th, 2011, testified to this in a hearing for Applicant's co-
. , .. - ,., -, .. :·.-·

defendant in June of 2012.
. ,. ·'-_ ' ..
Carter admitted, under oath, to violating Applicants Fifth Amendment right to remain

silent when in custody. (See Exhibit 5, Court Reporter's Record Travis D-1-DC-13-904021-
:.(~:-: .- . ·._· < --, . . , , . \ ....- '.

EXH-VOL 19, pages 85-120, and Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY
. . . . . ,-!_ _.,-

(A-11-CR-647(1)-LY) 2255 Motion to Vacate, Supplemental Report).
. '
Carter admitted to being told by numerous key personnel from the Texas Comptroller, and

the Travis County District Attorney's Forensic Auditor, months before the search warrant

affidavits were written, there was no evidence a crime had been committed. (See Exhibit 5,

299th District Court Records, D-1-DC-13-904021-EXH-VOLUMES 12 and 19, COURT

REPORTERS RECORD, D-1-DC-13-904201_395 CLERKS RECORD, and Exhibit 6, Charlie

Malouf! v. United States, A-13-CV-572LY
'
(A-11-CR-647(1)-LY)
,. _,.-
Petitioner's Supplement _____

Response Exhibit 4)
Mlffl'fe>t ~:tftdt!rit Ei6 -' • • •
1~
_· .. : ....
 In a separate hearing for Mary Jo Woodall, Sage stated that she believed the "inappropriate

relationship" between Applicant and Woodall was simply a sexual relationship between long

time friends. (See Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY (A-11-CR-

647(1)-L Y) Petitioner's Supplemental Response Exhibit 2)

Sage heard the testimonies of these key personnel and others, examined material

exculpatory evidence, heard of multiple, ongoing, Brady violations and was presented evidence

of selective and vindictive prosecution, in and out of the presence of the jury. During these

Brady arguments, Holly Taylor had every opportunity to remedy her Professional Misconduct

and exercise her affirmative duty of candor to the tribunal, and admit that she was acting as an

"investigator" and not an advocate after July l5'h, and knew Applicant and Mary Jo Woodall did

not commit any crime, and submit the exculpatory evidence in her possession. Brady, 373 U.S. at

87, 83 S. Ct. at 1196-97; Texas Disciplinary Rules Of Professional Conduct Rules 3.8, 8.03 and
.. .
. •!-

8.04.

On July 15, 2011, Travis County Assistant District Attorney, Holly Taylor, left her role as

a prosecutor and thereafter engaged in the role of "investigator" gathering evidence, interviewing

witnesses, getting facts and information, giving legal advice, and clearly functioning as

investigator.. (See Exhibit 6, Charlie Malouf! v. United States, A-13-CV-572LY (A-11-CR-
..,_, ...
647(1)-LY) 2255 Motion to Vacate, Supplemental Report Field Observations-Chief Stetar

attachment and Exhibit 2, reflective photo of Taylor taking photos of evidence). Clearly at that
-l.- ' .. ,.\

time, Carter and Taylor lacked probable cause and Taylor was not in a position to claim to be an

advocate. All information and evidence gathered by Taylor after that date is subject to Brady

and cannot be hidden from the defense as work product.

Under Brady, in order to ensure the accused a fair trial, a prosecutor has an affirmative
. , ... ; '·
. . \.

duty under the Due Process Clause of the Fourteenth Amendment to tum over to the accused all
Memerflftffiiffi 37 " ··
.. ·~~ ....
exculpatory or impeachment evidence, irrespective of the good faith, or bad faith of the

prosecutor, which is favorable to the defendant an is material to either guilt or punishment. This

includes the prevention of willful and intentional destruction of that exculpatory or impeachment

evidence. Those Wind Energy Systems with electrical systems in tact, impeachable evidence in

the fmm of Aaron Knapek's improper wiring setup and magnetic brake (see Exhibit 2, Aaron

Knapek City Hall and Waste Water Treatment Plant wiring and alternator photos), and capability

to be converted to working Wind Energy Systems with a correctly wired generator were

favorable to the accused because it was both exculpatory and impeaching; were suppressed and

destroyed by the State; as a result, prejudice ensued with the conviction. Brady v. Maryland, 373

U.S. 83, S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Evidence is "material" within the meaning of

Brady when there is a reasonable probability that had the evidence been disclosed, the result of

the proceeding would have been different Cone, 129 S. Ct., at 1783; United States v Jernigan,
._.,·
1
492 F. 3d 1050, 1053-54 (9 h Cir. 2007); Kyles v Whitley, 514 U.S. 419, 432-33, 115 S. Ct. 1555,

1565, 131 L. Ed. 2d 490 (1995); United States v. Bagley, 473 U.S. 667, 674, 105 S. Ct. 3375,

3379, 87 L. Ed. 2d 481 (1985). This duty attaches as soon as the information comes into the
'J··-

prosecutors possession. On July 15'h, 2011, the first of an enormous amount of exculpatory and

impeachable information was collected by Holly Taylor herself, as portrayed in a reflective
.. . .· ,-. .. ': --·,' ', ; ..,.. ' - .

photo of her, clearly identified by her wedding ring and jewelry, taking photographs of evidence
. ' .. ' ., ' ',. ,-.

at the Jonestown Waste Water Treatment Plant, then directly delivered to Holly Taylor,
-- '
functioning as an "investigator" by the Jonestown Chief of Police, John Stetar, and later her

taking pictures of the area around Fire Station 2. All exculpable and impeachable information

gathered by Taylor was mandated to be released to the defense and the crime scene and other

mate1ially relevant property involved in the very case T'1.. ,_.
Murder and other crimes; that Miller and Cook, police officers, and persons of public trust, and

Graham had falsified their Grant time sheets and Miller and Cook falsified their police time

sheets as well; that Miller admitted that he nor Cook had never read the Grant or any of the,

approximately 100 Code of Federal Regulations that were mandated for NEPA review." (See

Exhibit 5, 299th District Court Records, D-1-DC-13-904021-EXH-VOL027, page 359-363 and,

Exhibit 2, June Monthly Report); that the Comptroller and the Department of Energy, the very

people who managed the Grant and funds, had said there "was no evidence a crime had been

committed"; that Applicant was physically on scene and visited with DOE auditors, Mike

Guevara, and Justin Shepherd June 11, 2011 and personally showed them the connected

electronics and installed alternator in the Wind Energy System at City Hall, and that Applicant

and his company were actively engaged in the Grant process, and actively working with the

Grantee, the City of Jonestown, and the DOE, to complete the grant, which still had over 82

days to go until the end of the contract, and that the Grant could have been extended up to
., .. _, '.,.,:" .... ...
, ',','',"

another year; that Carter did not personally observe Applicant's motorcycle in Mary Jo
-~ . '.· -, ~ .

Woodall's garage, but observed several motorcycles in the garage with no positive identification

from over a block away, and the information she received from Miller and others was over a

year old and stale; that Carter had almost a year to investigate the complaint but only took one
''i'

day to do her surveillance on Woodall's home, and took no time to follow Applicant to see

where he kept his motorcycle; that there were no exigent circumstances, that could have

prevented Carter and Taylor from taking extra time, or requesting other assistance, to conduct a

more thorough investigation in identifying the license numbers of the motorcycles parked at

Woodall's, or simply waited the 82 days for the contract to expire, being they waited a year

already, and at that time, found had nothing been done, and the subcontractor in default, they

would then have probable cause for fraud, and they could have waited to submit their application
· . Moll'i'i,sta.HE!i:lffi 51§
.93
until then; (See Exhibit 5, 299th District Court Records, D-1-DC-13-904021-EXH-VOLUMES

1-27, COURT REPORTERS RECORD, D-1-DC-13-904201_395 CLERKS RECORD, and

Exhibit 6, Charlie Malouf! v. United States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255

Motion to Vacate, Carter Transcript attachment). Taylor violated Texas Disciplinary Rules Of

Professional Conduct Rnle 3.03 (a)(l), (C).

The cumulative criminal conduct of Miller, Cook, and others, patently false and misleading

statements, and material omissions, by these persons of public trust, including the prosecutor,

would have caused a reasonable jurist to question the validity of the information without further

investigation. Fair play is the essence of due process. Galvan v Press, 347, U.S. 522, 530, 74 S.

Ct. 737, 98 L. Ed. 911 (1954). "The deep-rooted feeling that the police must obey the law while

enforcing the law; that in the end life and liberty can be as much endangered from illegal
. ,····

methods used to convict those thought to be criminals as from the actual criminals themselves."

Spano v New York, 360 U.S. 315, 320-21, 79 S. Ct. 1202, 3 L. Ed. 2d 1265 (1959). The duty

under Brady and the Rules of Professional Conduct applied. Giglio v United States, 405 U.S.

150, 154, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972); Brady v. Maryland, 373 U.S. 83, S. Ct. 1194,

10 L. Ed. 2d 215 (1963); American Bar Association Model Rules of Professional Conduct; and

Texas Disciplinary Rules Of Professional Conduct.
- ._ ,.'.

Although the state is obliged to prosecute with earnestness and vigor, it is as much its duty
:'. .
to refi"ain from improper methods calculated to produce a wrongful conviction as it is to use ever

legitimate means to bring about a just,,. one. Cone v Bell. 129 S. Ct. 1769, 1782, 173 L. Ed. 2d

701 (2009). In a criminal prosecution is not that it shall win, but that justice shall be done. Holly

Taylor and Karen Sage overstepped their bounds of propriety and fairness. Berger v. United

States, 295 U.S. 78, 88, 79 L. Ed. 1314, 55 S. Ct. 629 (1935).

~4s83.braHdtllil 57
&7 \'J -.
 Our Constitution places in the hands of the trial judge the responsibility for safeguarding

the integrity of the jury trial. United States v. Bowen, No. 10·204, U.S. Dist. LEXIS 134434

(2013) WL., quoting United States v. Gainey, 380 U.S. 63, 68, 85 S. Ct. 754, 758, 13 LEd. 2d.

658 (1965).

The trial court has inherent power to the extent necessary to deter, alleviate andcoun teract

bad faith of the judicial process, this includes any reason the trial resulted in a miscarriage of

justice. United States v. Scroggins, 379 F. 3d. 233 (5th Cir. 2004), vacated on other grounds,

534, U.S. 1112, 125 S. Ct. 1062, 160 L Ed. 2d. 1049 (2005). Had defense counsel and

prosecutors not so flagrantly, and egregiously violated the Rules Of Professional Conduct, and

the trial judge not so shamelessly violated the Rules Of Professional Conduct, and Judicial

Canon Df Ethics, in this extraordinary case, in applying decisions that were an unreasonable
...
application or contrary to clearly established Supreme Court law, there is a reasonable
'

probability that the result of the proceeding would have been different, instead of an

fundamentally unjust conviction. and sentence of 15 years (See Exhibit 1, Judgment of

Conviction By Jury). United States v Schlup, 513 U.S., at 324, 115 S. Ct. 851, 130 L. Ed. 2d

808; United States v Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984);

Strickland v Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Bell v

Cone, 535 U. S. 685, 694-98, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002) ("The ultimate focus of

the inquiry must be on the fundamental fairness of the proceeding whose result is being

challenged"); Davis v Alaska, 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974) ("If counsel

entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has

been a denial of Sixth Amendment rights that makes the adversary process presumptively

unreliable, and no specific showing of prejudice is required, because Applicant had been

"denied the right of effective cross-examination" which is a constitutional error of the first
magnitude and no amount of showing of want ofprejudice would cure it") Id., at 318, 39 L. Ed.

2d 347, 94 S. Ct. 1105 (citing Smith v Illinois, 390 U.S. 129, 131, 19 L. Ed. 2d 956, 88 S. Ct. 748

(1968), and Brookhart v Janis, 384 U.S. 1, 3, 16 L. Ed. 2d 314, 86 S. Ct. 1245 (1966)); United

States v Agurs, 427 U.S., at 110, 49 L. Ed. 2d 342, 96 S. Ct. 2392 ("prosecutorial misconduct

should be evaluated not on the basis of culpability, but by
. . its effect on the fairness of the trial");

If defense counsel's self-imposed "best friend" reliance qualifies for a conflict of interest,

presumed prejudice applies. Culyer v Sullivan, 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708

(1980); Nix v Whiteside, 475, U.S. 157, 175, 106 S. Ct. 988, 89 L. Ed. 2d 123 (1986) (noting that

under Strickland, the "benchmark" of the right to counsel is the ~'fairness of the adversary

proceeding"); Kimmelman v Morrison, 477 U.S. 365, 374, 106 S. Ct. 2574, 91 L. Ed. 2d 305

(1986) ("The essence of ineffective assistance claim that counsel's unprofessional enors so upset
' . ), i

the adversarial balance between defense and prosecution that the trial was rendered unfair and
. I. '
'.('

the verdict rendered suspect"); Murray v Carrier, 477 U.S. 478, 485, 106 s. Ct. 2639; 91 L. Ed.

2d (1986); Engle v Isaac, 456 U.S. 107, 129, 102 S. Ct. 1558, 71 L. Ed. 2d 7-83 (1982);

Wainwright v Sykes, 433 U.S. 72, 87, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977); McCleskey v Zant,
···:· ... I

499 U.S. 467,494, IllS. Ct. 1454, 113 L. Ed. 2d 517 (1991).
·: . J (•

Wherefore, Federal courts have the right to issue writs of habeas corpus based on state

commitments; even .where state remedies have not been exhausted. In consideration of the

totality of circumstances, and in the interest ofjustice, under the Due Process laws of the Fifth,

Sixth, Ninth and Fourteenth Amendments to the Constitution, and in the prevention of the
t .i

furtherance of a miscarriage of justice, Applicant respectfully prays for injunctive relief, and

moves the Honorable Court to VACATE the conviction and REMAND for a constitutionally

valid fair trial, or any other relief deemed justified.
. (.

M6Hiel'afiffi:iffi 59
[,./
 CLAIMS

II. Applicant Was Denied Effective Assistance of Counsel Through Professional
Misconduct And The Failure Of Counsel To Conduct Sufficient Adversarial Testing
Of Witnesses.

STANDARD OF REVIEW

Petitioner's Application regarding this request, in the interest of justice, for extraordinary

relief is associated with another extraordinary complex and complicated case already before the

Court, Charlie Malouffv. United States, A-13-CV-S72LY (A-11-CR-647(1)-LY).

The Fifth, Sixth, Ninth, and Fourteenth Amendment's to the Constitution guarantee to

criminal defendants a right to due process and a f>~ir trial. The Sixth. Amendment guarantees to
c I
criminal defendants a right not only to counsel, but to the effective assistance of counsel. See

Strickland v. Washington, 466 U.S. 668, 686 (1984) ("the right to counsel is the right to the

effective assistance of counsel") (quoting McMann v. Richardson, 397 U.S. 7S9, 771, n. 14

(1970)). Pursuant to this constitutional mandate, a defendant is entitled to reasonably competent
1: . .. •'i" ~- .'

and active assistance of counsel "at every critical stage of the proceedings against him."

Childress v. Johnson, 103 F.3d 1221, 1226-1232 (CAS 1997)

An ineffective assistance of counsel (lAC) allegation presented in a § 22S4 motion is
' '

properly analyzed under the two-prong analysis set forth in Strickland. United States v. Willis,

273 F.3d S92, S98 (CAS 2001) (held no procedural bar rule applicable to raising lAC claims

under 28 U.S.C. Section 22S4, where claim is not based solely on record developed at trial).

To prevail on a claim of lAC, a Movant must demonstrate counsel's performance was

deficient, falling below an objective standard of reasonableness, and second, demonstrate that
·'.
such deficiency caused him prejudice. Id. This means a Movant must show that counsel's
,· -· ., '

performance was outside the broad range of what is considered reasonable assistance and that
M@~~a:aQy~ 6o
,. 6Z. .
this deficient performance led to an unfair and unreliable conviction and sentence. United States

v. Dovalina, 262 F.3d 472, 474 (CAS 2001).

Constitutional Amendinents V and VI giv~ a suspect "a meaningful opportunity to present

a complete defense ... " United States v. Scheffer, 523 U.S. 303, 329 (1998) (J. Stevens

dissenting). "Few rights are more fundamental than that of an accused to present witnesses in his

own defense ... " Taylor v. Illinois, 484 U.S. 400, 408 (1988).

The Strickland analysis requires the district court to reweigh the evidence, and examine the .

cumulative effect of the errors:

In Strickland, we made clear that, to establish prejudice, a "defendant must show
that there is a reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence-in the outcome." In assessing prejudice,
we reweigh the evidence ... !d. at 123 S. Ct. 2542.

Plain errors or defects affecting substantial rights may be noticed although they were not brought

to the attention of the Court. United States v. Olano, 507 U.S. 725, 736, 123 L. Ed. 2d 508, 113
,. ·'

S. Ct. 1770 (993).

Here we have three Officer's of the Court who made statements questioning the integrity
"
of the judicial process, and what they knew to be violations of the Rules of Professional Conduct,

but failed to approach the Court, the Commission On Judicial Conduct, the American Bar

Association, or the Texas Bar Association in accordance with the Model Rules Of Professional

Conduct. The emails sent to the attorney's along with Counsel Payan's reply, on 03/21/2014 (see

Exhibit 1, Judicial Misconduct) that "WE made" the statements is uncontroverted evidence

supporting the materiality of error. Johnson v. United States, 520, U.S. 470, 137 L. Ed. 2d 718,

117 S. Ct. 1544 (1997). "The cumulative errors have seriously effected the fairness and integrity

of the judicial proceedings." Id., at 469, 137, L. Ed. 2d 718, 117 S. Ct: 1544.

· Mern6iitildanr 61
 Under the Strickland standard, defendant must show that counsel's performance was

objectively deficient and that prejudice resulted from that deficient performance.

While courts are to give a certain deference to counsel's strategic decisions, courts
are "not required to condone unreasonable decisions parading under the umbrella of
strategy, or to fabricate tactical decisions on behalf of counsel when it appears on the face
of the record that counsel made no strategic decision at all." Moore v. Johnson, 194 F.3d
S86, 604 (CAS 1999); Richards v. Quarterman, S66 F.3d SS3, S64 (CAS 2009) (same).
"Strickland's measure of deference 'must not be watered down into a disguised form of
acquiescence."' Moore v. Johnson at 604.

Defense against arbitrary law enforcement through the due process of the Fourteenth

Amendment protects the Sixth Amendment right to confrontation. Duncan v. Louisiana, 391 U.

S. 14S, 1S6, 20 L. Ed. 29, 491, 88 S. Ct. 1444 (1968).

Sanders v. Ryder, 342 F.3d 991, 1000 (CA9 2003) describes the Strickland standard as

follows:

When we examine whether trial counsel gave effective assistance, we examine all
aspects of counsel's performance at different stages, from pretrial proceedings through
trial and sentencing. United States v. Leonti, 326 F.3d 1111, 1116-17 (9th Cir. 2003).
Separate errors by counsel at trial and at sentencing should be analyzed together to see
whether their cumulativeeffect deprived·the defendant ofhis right to effective assistance
of counsel. See Villafuerte vs. Stewart, 111 F.3d 616, 632 (9th cir. 1997); Cooper v.
Fitzharris, S86 F.2d 132S, 1333 (9th Cir. 1978). They are, in other words, not separate
claims, but rather different aspects of a single claim of ineffective assistance of counsel.

Cargle v. Mullin, 317 F.3d 1196, 1212 (CA10 2003), describes the Strickland analysis as

follows:

However, our decision to grant relief on ineffective assistance grounds is a function
of the prejudice flowing from all of counsel's deficient performance, as Strickland directs
it to be. See Strickland, 466 U.S. at 694-96, 104 S. Ct. 20S2 (repeatedly stating prejudice
inquiry in aggregate terms of reasonable probability counsel's errors affected outcome of
proceeding; see Fisher 282 F.3d at 1307-1311 (assessing prejudice from counsel's
numerous shortcomings and omissions," and holding "these errors" had a "devastating
impact on the defense."); Turner v. Duncan; 1S8 F.3d 449, .4S7 (9th Cir. 1998) ("it is
appropriate to consider the cumulative impact of counsel's errors in assessing prejudice).

-~1em5IttHtittnl- 62

}1
 The overarching test for effective assistance of counsel is whether the defendant's attorney

subjected the prosecution's case to meaningful adversarhil testing. Strickland 466 U.S. at 686

("The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so

undermined the proper functioning of the adversarial process that the trial cannot be relied on as

having produced a just result.").

The right to effective assistance of counsel is thus the· right of the accused to
require the prosecution's case to survive the crucible of meaningful adversarial testing.
When a true adversarial criminal trial has been conducted - even if defense counsel may
have made demonstrable errors - the kind of testing envisioned by the Sixth Amendment
has occurred. But if the process loses its character as a confrontation between
adversaries, the constitutional guarantee is violated. The premise of the adversarial
system in which the defen,dant has an effective advocate for his side "underlies and gives
meaning to the Sixth amendment. It is meant to ensure fairness in the adversary criminal
process. Unless the accused receives effective assistance of counsel, a serious risk of
injustice infects the trial itself." 1d. At 655:

ARGUMENT

In determining whether a defendant has received the effective assistance of counsel, courts

look to "prevailing norms of practiceas reflected in American Bar Association (ABA) standards

and the like," as guides "to determining what. is reasonable, but they are only guides."

Strickland, Supra, 466 U.S. at 688. With respect to advising a client, "A lawyer should exert his

best efforts to ensure that decisions of his client• are made only after the client has been informed

of relevant considerations." ABA· Model ·Code. of· Professional Responsibility, Ethical

Considerations 7-8 (1983); ABA Standards for Criminal'Justice: Defense Function 4-5.l(a) (3rd

Ed. 1993) ("After informing himself or herself fully on the facts and law, defense counsel should

advise the accused with complete candor concerning all aspects of the case, including a candid

assessment of the probable outcome."

The trial court has inherent power to the extent necessary to deter, alleviate and counteract

bad faith of the judicial process, this includes any reason the trial resulted in a miscaniage of

Msmeraaiilam 63
,~;r
justice. United States v. Scroggins, 379 F. 3d. 233 (5th Cir. 2004), vacated on other grounds,

534, U.S. 1112, 125 S. Ct. 1062, 160 L Ed. 2d. 1049 (2005). Had defense counsel and

prosecutors not so flagrantly, and egregiously violated the Rules Of Professional Conduct, and

the trial judge not so shamelessly violated the Rules· Of Professional Conduct, and Judicial

Canon Of Ethics, in this extraordinary case, in applying decisions that were an unreasonable

application or contrary to clearly established Supreme Court law, there is a reasonable

probability that the result of the proceeding would have been different, instead of an

fundamentally unjust conviction and sentence of 15 years (See Exhibit 1, Judgment of

Conviction By Jury). United States v Schlup, 513 U.S., at 324, 115 S. Ct. 851, 130 L. Ed. 2d

808; United States v Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984);

Strickland v Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Bell v
·~··,.-:.

Cone, 535 U. S. 685, 694-98, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002) ("The ultimate focus of

the inquiry must be on the fundamental fairness of the proceeding whose result is being

challenged"); Davis v Alaska, 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974) ("'f counsel

entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has

been a denial of Sixth Amendment rights that makes the adversary process presumptively

unreliable, and no specific showing ofprejudice is required, because Applicant had been "denied

the right of effective cross-examination" which is a constitutional error of the first magnitude

and no amount of showing of want of prejudice would cure it") Id., at 318, 39 L. Ed. 2d 347, 94

S. Ct. 1105 (citing Smith v Illinois, 390 U.S. 129, 131: 19 L. Ed. 2d 956, 88 S. Ct. 748 (1968),

and Brookhart v Janis, 384 U.S. 1, 3, 16 L. Ed. 2d 314, 86 S. Ct. 1245 (1966)); United States v

Agurs, 427 U.S., at 110, 49 L. Ed. 2d 342, 96 S. Ct. 2392 ("prosecutorial misconduct should be

evaluated not on the basis of culpability, but by its effect on the fairness of the trial"); If defense

counsel's self-imposed "best friend" reliance qualifies for a conflict of interest, presumed
Ml\lmefiffiffilffi: 64
(;/I
prejudice applies. Culyer v Sullivan, 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980);

Nix v Whiteside, 475, U.S. 157, 175, 106 S. Ct. 988, 89 L. Ed. 2d 123 (1986) (noting that under

Strickland, the "benchmark" of the right to counsel is the ''fairness of the adversary

proceeding"); Kimmelman v Morrison, 477 U.S. 365, 374, 106 S. Ct. 2574, 91 L. Ed. 2d 305

(1986) ("The es'sence of ineffective assistance claim that .counsel's unprofessional errors so upset

the adversarial balance between defense and prosecution that the trial was rendered unfair and

the verdict rendered suspect"); Murray v Carrier, 477 U.S. 478, 485, 106 s. Ct. 2639, 91 L. Ed.

2d (1986); Engle v Isaac, 456 U.S. 107, 129, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982);

Wainwright v Sykes, 433 U.S. 72, 87, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977); McCleskey v Zant,

499 U.S. 467, 494, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991).
:·

A search warrant. may be voided and the fruits of the search excluded if the warrant

affidavit contained certain misrepresentations or omissions. Franks v Delaware, 438 U.S. 154,

171, 98 S. Ct. 2674, 2684, 57 L. Ed. 2d 667 (1978) A defendant must show that 1) "the alleged

misrepresentation or omissions were knowingly or recklessly made" and 2) "the result of
·::· '·'·

excluding the alleged misrepresentation and including the alleged omissions would have been a

lack of probable cause for issuance of the warrants" United States v. Novaton 271 F.3d 968 (11th

01). In Franks, Justice Blackmun recognized that a warrant could be invalidated if "a false

statement is necessary to the finding of probable cause." After determining Travis County
.·,:· - - .,

District Attorney Investigator Lori Carter had made patently false statements and mislead the

magistrate in statements and material omissions, in at least one portion of the search warrant

affidavit, Sage should have granted a Frank's hearing. Taylor failure in candor to the tribunal

also deprived Applicant of further demonstration of the necessity of a Frank's hearing.

Brady trumps work product doctrine. Carter stated in her Juiy 15'\ 2011 Supplemental

Report, Chief Stetar-Observations, she and ADA Holly Taylor were out gathering evidence and
· ~iemCn ftHdttlil: 65.
Cl
"investigating" before they had any meaningful probable cause. From that point on, Holly

Taylor left her role as a prosecutor and entered the role of "investigator" gathering evidence and

providing legal advice to Carter. From that point on, Taylor herself was subject to cross-

examination, and all of Taylor's notes, reports, recordings and other instruments used in

gathering evidence and interviewing witnesses containing exculpatory evidence are subject to

disclosure. Brady v. Maryland, 373 U.S. 83, S. Ct. 1194, 10 L. Ed. 2d 215 (1963).

In Defendants Brief In Support Of A Court Finding Of Brady Violations, August 23, 2013

(see Clerks Record D-1-DC-13-904021_395, pages 244-249), Taylor continued to violate

Applicants Fifth Amendment rights in violation of the Texas Disciplinary Rules Of Professional

Conduct Rule 3.03 (a)(l), (C). The prosecutors who presented Carter and the application for the

search and arrest warrants to Magistrate Judge Brown for his consideration, had the duty of

candor to the tribunal, as prosecutors may not "in an ex parte proceeding, fail to disclose to the

tribunal an unprivileged fact for which the lawyer reasonably believes should be known by that

entity for it to make an informed decision."

Holly Taylor violated the Texas Disciplinary Rules Of Professional Conduct Rule

3.03(a)(3)(c)(d),(g)(l),(h), and Lori Carter failed in her responsibilities, when they failed to

inform the magistrate the information they were providing him, regarding an email dated

8129/2008 between Applicant and his "employees" (who were then students involved in a one

day a week, Senior Design class project, at the University of Texas), Professor Ron Stearman, at

home and at school, and Dana McCoy, and copied to Woodall, at the State Energy Conservation

Office, stating "Guys, I will be doing some traveling in the immediate future (to rural Mexico

with no phone or internet access). Should I not be around and you have something that needs

addressing, please call Mary Jo direct at 512-826-5271. She knows exactly where we are, what

I!we need, when and knows the whole complete picture. Her decisions are as good as mine."
MemeFaH41iffi 66
&if>
(See Exhibit 5, 299th District Court Records, D-1-DC-13-904021~EXH-VOL027, page 359-

363). The materially omitted part was the email was part of a three page email preceding it that

started on 8/27/2008 at 3:40pm from Applicant to Richard Thompson, Project Manager,

University of Texas Center for ElectroMechanics (CEM), and copied to Mary Jo Rowan;

Todays Results

Thank you for coming out to the turbine. Wind speed 15 mph; shaft 3.5"; 22 rpm; 48116

on the torque

Followed by a direct email at 4:03pm from Thompson to CEM engineer, Brian Murphy;

Please verify the produced power. I get 16 watts. Use my numbers below not Charlie's

Followed by the forward at 4:41pm from Richard Thompson to Applicant and cc'd to

CEM engineer, Brian Murphy;

Please send me more data as it becomes available. For the numbers you wrote down for

me, the generated power is 16 watts. This number will scale up linearly with increase wind

turbine height, with increasing wind turbine diameter. This will go up exponentially with speed.

Another important number is calculated wind turbine efficiency. Usually for VAXT this is in the

range of 20% to 30%. Richard

Followed by a direct email at 4:32pm from Murphy to Thompson;

That's what I got. 16.4 watts

. Followed by an email on 8/28/2008 at 0824 am, from Applicant to Mary Jo Rowan;

Today's Results

Per our conversation after this email. We have in the works a drive system that will

multiply this figure by 80. This is low wind at 15 mph. The drive starts at 7.1 mph with

resistance. This system can work individually or in series with another. This is16.4 watts per
'.
minute. Multiply that by 80 once we get new drive finalized. Figure 60 minutes per hour and
MeHter!Hldtufi 67
h't
using a 3 hour day calculation to work off of. I also figured 345 days per year allowing for no

wind days. This will allow us +1- adjustments that should be close to accurate. Anything above

that I will consider gravy.

Charlie Malouff

CM Energies

Carter and Taylor omitted it was clear this was in the company's earliest stages of study

and testing, and that Thompson and Murphy, who McCoy, Stearman, and the students had no

idea of their roles or requests, were clearly interested in the technology and developments, and

they were requiring more information as it became readily available. McCoy knew this was

different business circumstances, that was temporary, arid related to Key Man issues that related
.,.,

to a legal entity that just began university senior level class projects on studying the validity and

feasibility of a new Vertical Axis Wind Turbine and the Company and professor would have

been without anyone who knew what was happening with legal matters (Company's relationship

to the University and as a corporation), when Applicant had to go to Mexico on short notice for

four days, to an area where criminal activity of kidnappings and murder were at a high. This

stale and irrelevant information was taken out of context and made to look like Mary Jo's
. ,--,
relationship with CM Energies was more than what it was. A reasonably trained investigator

with common sense would have also recognized this after reading the related emails.
: e. r,--.

Dana McCoy, Applicant's daughter and president of the Company, knew this. McCoy

kne~, through discussion of the problem with her and her just getting started in learning the

business and her lack of knowledge of the industry along with the status of the study and testing

stages at the University·of Texas, and with the approval of the company General Counsel, Mike
'.i:

Guevara, since there was no one qualified at that time, to assume authority to give direction and

status of the company's immediate standing and project status in the event of tragic accident.
MeffiOFaHEIHHf 68 .
·1/l
 McCoy, Carter and Taylor knew there were many transformations in organizational

structure, and business operations, and this information was over one year old, inapplicable, and

stale information, and Taylor and Carter failed to inform the magistrate of these material facts.

Taylor and Carter had the obligation to inform the magistrate the Grant was a cost

reimbursement grant, and the Grantee, the City of Jonestown, was. not allowed to profit any

funds, but to receive the funds and pass the funds on to the appropriate sub-contractors to

pe1form the work required in the contracted Deliverables, and the money was appropriately spent

and documented; that the American Reinvestment and Recovery Act, ARRA, Stimulus Grants

were to create jobs and stimulate the economy and that the sub-contractors to the grantees, for all

of the award.ed grants were not only allowed, but encouraged to make a profit, and this was not

only publicized on the Department of Energy and Comptroller websites, but the President of the

United States made these assertions on national TV in support of the Act; that Miller was under
',.·.'

investigation for:

Falsifying time sheets on the Grant, falsifying his County time sheets, falsifying the time

sheets of others; Providing the submissions Miller accused Applicant of falsifying to permitting

agencies only to have them rejected because they were patently wrong and not in compliance

with Grant requirements; That Miller, Thomas and Knapek were suspects in Theft of Trade

Secrets, the Destruction of a Federally Funded Energy Project, lt:tdustrial Espionage in the

theft of a laptop used for the Project that contained confidential and proprietary information that

could be used by a competitor for economic gain, Attempted Murder and other crimes; That

Miller and Cook and Graham had falsified their Grant time sheets and Miller and Cook falsified
··r:

their police time sheets as well; that Miller admitted that he nor Cook had never read the Grant

or any of the Code of Federal Regulations that were mandated for NEPA review; That the

submission packets Miller and Cook submitted were rejected by the permitting agencies because
Mememmdnm 6'il
"](
they were done wrong and not in compliance with NEPA, or the Grant, or the contract with the

City of Jonestown; That the Comptroller and the Department of Energy had said there was no

evidence a crime had been committed; That Applicant and his company were actively engaged

in the Grant process, and actively working with the Grantee, the City of Jonestown, to complete

the grant, which still had over 80 days to go until the end of the contract, but could have been

extended up to another year; That Carter did not personally observe Applicant's motorcycle in

Mary Jo Woodall's garage, but observed several motorcycles in the garage with no positive

identification from over a block away, and the information she received from Miller and others

was over a year old and stale.

Applicant spent over 20 of 29 honorable years in law enforcement attending and teaching

similar courses, and the very subject matter Carter claims to have been trained in. (See Exhibit 1,

Charlie Malouff Resume). There were no drugs or guns or danger of fire or bodily injury, other
' . -, " -
~ ' .
·'
than what Carter might have induced, in this white collar case, where the money had been spent

seven (7) months prior, and her primary suspect was actively engaged in both the business and

trying to solve several Federal crimes, where Carter and Taylor could claim any sense of

"exigency". "Impending departure does not create an immediacy, necessity or urgency." United

States v Thompson, 700 F. 2d 944 (5 1h Cir. 1983). The Supreme Court stated, "Circumstances

qualify as "exigent" when there is an imminent risk of death, or seii.ous injury, or danger that

evidence will be immediately destroyed.'' Brigham City v Stewart, 547 U.S. 398, 403, 126 S. Ct.
~.-.

1943, 164 L. Ed. 2d 650 (2006). The only "exigent circumstance" was Carter, Miller and

Taylor's
. malicious , selective, and vindictive conduct to keep the Grant from completion, and
~

retaliate against Applicant under the color of authority. Carter had almost a year to investigate

the complaint and only took one day to do her surveillance on Woodall's home, but took no time

to follow Applicant to see where he kept his motorcycle, or that there were no exigent
MeffieraHEIHHi ?Q
71-
circumstances, as claimed by Carter, but defined by the courts, that could have prevented Carter

and Taylor from takin& extra time, or requesting other assistance, to conduct a more thorough

investigation in identifying the license numbers of the motorcycles parked at Woodall's, and

verifying or distinguishing the truth in all of the hearsay, assumptions, beliefs, and personal

opinions without factual basis provided by her "witnesses" and Carter and Taylor could have

waited to submit their application until then. United States v Watts, 329 F. 3d 1282 (5th Cir.

2003); United States v Jacobsen, 466 U.S. 109, 104 S. Ct. 1652, 1657, 80 L. Ed. 2d 85 (1984);

Byers v United States, 273 U.S. 28, 47 S. Ct. 248, 248, 71 L. Ed. 520 (1927); Thompson v

Louisiana, 469 U.S. 17, !05 S. Ct. 409, 410, 83 L. Ed. 2d 246 (1984); Katz v United States, 389

U.S. 347, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576 (1967); United States v Ross, 456 U.S. 798, !02 S.

Ct. 2157, 2173, 72 L. Ed. 2d 572 (1982); O'Connor v Ortega, 480 U.S. 709, 107 S. Ct. 1452,
. '.

1499, 94 L. Ed. 2d 714 (1987); Colorado v Bertine, 479 U.S. 367, 107 S. Ct. 738, 93 L. Ed. 2d ·

739 (1987); Schneckloth v Bustamante, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 91973);
. I

Coolidge v New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); Chambers v

Maroney, 399 U.S. 42, 90S. Ct. 1975, 26 L. Ed. 2d 419 (1970); Chime/ v California, 395 U.S.

752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). (See Exhibit 5, 299th District Court Records, D-1-

DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS RECORD, D-1-DC-13-

904201_395 CLERKS RECORD, and Exhibit 6, Charlie Malouf! v. United States, A-13-CV-

572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate, Carter Transcript attachment).
'

The cumulative material patently false and misleading statements and material omissions,

would have caused a reasonable jurist to question the validity of the information without further

investigation. The duty under Brady applied. Giglio v United States, 405 U.S. 150, 154, 92 S.
. ,-.·-· :I'

Ct. 763, 31 L. Ed. 2d 104 (1972); Brady v. Maryland, 373 U.S. 83, S. Ct. 1194, lO L. Ed. 2d 215

(1963). Had they been candor with the magistrate and the tribunal there is a reasonable
~luitot aitdtifti71
probability the proceeding would have been different from the very beginning as each stage of

their investigation was an unreasonable application of clearly established Supreme Court law.

In a criminal prosecution is not that it shall win, but that justice shall be done. Holly Taylor

overstepped her bounds of propriety and fairness. Bergerv. United States, 295 U.S. 78, 88, 79 L.

Ed. 1314, 55 S. Ct. 629 (1935).

Our Constitution places in the hands of the trial judge the responsibility for safeguarding

the integ1ity of the jury trial. United States v. Bowen, No. 10-204, U.S. Dist. LEXIS 134434

(2013) WL., quoting United States v. Gainey, 380 U.S. 63, 68, 85 S. Ct. 754, 758, 13 LEd. 2d.

658 (1965).

The trial court has inherent power to the extent necessary to deter, alleviate and counteract

bad faith of the judicial process, this includes any reason the trial resulted in a miscarriage of

justice. United States v. Scroggins, 379 F. 3d. 233 (5th Cir. 2004), vacated on other grounds,

534, U.S. 1112, 125 S. Ct. 1062, 160 LEd. 2d. 1049 (2005).

The court is supposed to be the instrument to advance the ends of justice. When the trial

judge, for personal pecuniary interest, turns a blind eye, the trial, and the fundamental

constitutional rights of due process become unduly prejudiced. "Motives and consequences, not
'";(

formalities are the keys for determining whether a public official entered an agreement to accept

a bribe, and the trier of fact is "quite capable of deciding the intent with which words were

spoken or actions taken aw well as the reasonable construction given to them by the official and

payor." United States v Evans, 504 U.S. 255, 274, 112 S. Ct. 1881, 119 L. Ed. 2d 57 (1992);

United States v Whitfield, 590 F. 3d 325, 348-54 (5th Cir. 2009). In Whitfield two state judges

argued the loan guarantees they received were made in the context of their electoral campaigns,

and thus required special protection, but the court upheld a finding the payments were bribes. !d.,

590 F. 3d at 353. Here, we have three independent Officers Of The Court, and one of them
."' ,· Mfiffi;;1fffim 72
being her "best friend" making statements, that under the Rules Of Professional Conduct, have

to be taken as true, that Sage made " ... decisions for political contributions and votes." (See

Exhibit 1, Judicial Misconduct and Austin American Statesman news articles) "Through

promises to improperly employ his public influence, he has accepted ·his bribe." United States v

Abbey, 560 F. 3d at 513, 520 (6'h Cir. 2009). The donor supports the candidate's election for all

manner of possible reasons. See Buckley v. Valeo, 424 U.S. 1, 21, 96 S. Ct. 612, 46 L. Ed. 2d

659 (1976).

Canon I of the Texas Code of Judicial Conduct states, "A judge should maintain and

enforce high standards of conduct and personally observe those standards to preserve the

integrity ofthe judiciary."

The Texas Code of Judicial Conduct, Canon 3 (B)(2) states, "A judge should be faithful to

the law and maintain professional competence in it. A judge shall not be swayed by partisan

interests, public clamor of fear of criticism." And, (5)" A judge shall perform judicial duties

without bias or prejudice." ·

Travis County 299th District Court Judge Karen Sage violated the Canon's of Judicial

Ethics and Applicant's due process, because she had a personal and financial interest in the

outcome of the case. (See Exhibit 1, Judicial Misconduct and photos of Sage's political candidate
i ;•.

website).
'\ ..

Statements, made by three independent Officers of the Court, regulated by the American

Bar Association Rules of Professional Conduct, and the Texas Disciplinary Rules of Professional

Conduct, can only be taken as true and support Sage's violations of Code of Judicial Conduct

Canon 2: Avoiding Impropriety and the Appearance of Impropriety in All of the Judge's

Activities (A) "A judge shall comply with the law and should act at all times in a manner that

promotes public confidence in the integrity and impartiality of the judiciary"; (B) "A judge shall
Meitrotatldtint73
7 -:7·.
not lend the prestige of judicial office to advance private interests of the judge or others"; Canon

3: Performing the Duties of Judicial Office hnpartially and Diligently (B)(2) "A judge should be

faithful to the law and shall maintain professional competence in it. A judge shall not be swayed

by partisan interests, public clamor, or fear of criticism"; Canon 4: Conducting the Judge's

Extra-Judicial Activities to Minimize the Risk of Conflict with Judicial Obligations (A) Extra-

Judicial Activities in General. A judge shall conduct all of the judges extrajudicial activities so .

they do not: (1) "cast reasonable doubt on the judge's capacity to act impartially as a judge" and

Canon 5: Refraining from Inappropriate Political Activity (1) "A judge orjudicial candidate

shall not: (i) "make pledges or promises of conduct in. office regarding pending or impending

cases, specific classes of cases, specific classes of litigants, or specific propositions of law that
'
would suggest to a reasonable person that the judge is predisposed to a probable decision in

cases within the scope of the pledge."
--,,·.

Sage's decisions to deny Frank's, mistrial, dismissal, and selective and vindictive

prosecution motions after hearing. testimony of persons of public trust aqmit to violating the

Constitution, Professional Rules of Conduct, and state and Federal laws are contrary to and

involved an objectively unreasonable application of clearly established state and federal laws as

determined by both Supreme Courts and the Constitutions of both Texas and the United States .
. ... ·
Three independent Officers of the Court made statement's and observations that the trial

judge, Karen Sage, was first clearly going to make decisions in favor of her "best friend" only to

find out from that "best friend" Sage was concerned with getting political support from the local

Democratic Party for her upcoming re-election only weeks away and by her decisions (See

Exhibit 1, Judicial Misconduct web site photos), were obvious! y contradictory to the

"understanding" of the trial counsel. This demonstration of their cumulative improper conduct,

actuated by Sage's instinct of political survival, was not in the interests ofjustice. Henderson v.
M_emeftl.fl:tittni 74
Perry, 399 F. Supp. 2d. 756, June 9, 2005 (Dist. Ct. 5th Cir) "A judge will, however, violate a

defendant's due process rights if he (she) is biased against the defendant, or has an interest in

the outcome of the case. Personal reward of getting votes and campaign contributions for re-

election is having an "interest" in the case.

According to the Texas Disciplinary Rules of Conduct, Rule 8.02, "A lawyer shall not

make a statement that the lawyer knows to be false or with reckless disregard as to its truth or

falsity concerning the qualification or integrity of a judge." Rule 8.2 "Solely proscribes false or

reckless statements questioning judicial qualifications or integrity." United States v. Nolen, 172

F. 3d. 362 (5th & 11th Cir. Dec. 2006). Applicant does not believe any of the three attorneys

made those statements falsely or recklessly, therefore they must be taken as true. As such,

judicial integrity over the fairness of Applicant's trial, and the eventual plea bargain agreement

of Mary J o Woodall, based on the totality of circumstances of Applicant's trial, and Sages re-

election, she would not have gotten a fair trial, is at issue because Mary J o Woodall never gave

Applicant insider information, or provided Applicant with information that was not authorized

by policy or law (See Exhibit 5, 299th District Court Records, D-l-DC-13-904021-EXH-VOL

12, Pam Groce testimony where she testified "I could have helped him write it" pages 22-23).
-:· ,.

The employees, including supervisors, of the Texas Comptroller, State Energy Office, all said

Mary Jo was doing her job as proscribed by policy and law and there were numerous measures in

place to detect any fraud or wrongdoing. (See ExhibitS, 299th District Court Records, D-1-DC-

13-904021-EXH-VOLUMES 23, 1-27, COURT REPORTERS RECORD, D-1-DC-13-

904201_395 CLERKS RECORD, Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY
' ..
(A-11-CR-647(1)-LY) statement of Lisa Elledge). Not to mention, Martin Cano, the Chief of

Enforcement for the Investigations Division, testified HE, along with an IT person, searched

Mary Jo's work computer and a personal USB, in July, 2011 right after Taylor, functioning as an
.• MemeratiE!Hffi 15
71
"investigator" and Carter, were informed Miller was a suspect in multiple felonies, and gave it

all back to Mary Jo and allowed her to continue working because· there was "no evidence of

wrongdoing", months before the application of the search warrant. Carter admits part of this in

her Affidavit for Search Warrant, but omits the material and significant "no evidence of

wrongdoing", again misleading the magistrate.

The trial court heard the miginal complaint was filed by a Travis County Sheriffs Deputy

who stood to lose his career if they were found involved in the criminal conduct noted above,

and other police officers who also stood to lose his career if they were found involved in the

criminal conduct noted above, their friends. It heard testimony and was presented evidence, the

DA, investigators, Mayor, all furthered the efforts to cover over the investigation and avoid

scrutiny by making patently false statements, omitting extensive material information and

misleading the magistrate regarding Applicant, thus deflecting the initial investigation and

suspending further investigation. Further evidence of Police Misconduct comes short! y after .the

arrest of Applicant in the bad faith actions of the City of Jonestown and the Travis County
'

District Attorney, in failing to preserve exculpatory evidence directly related to the predicate

fraud crime, in the subsequent. destruction of the crime scene, the removal of the Wind Energy

Systems at the Jonestown City Hall, the Waste Water Treatment Plant, and the CM Energies

Wind Energy System located at its manufacturing facility, in the City of Taylor, Texas,
'., •.

approximately 35 miles away (See Exhibit 5, 299th District Court R«cords, D-1-DC-13-904021-

EXH-VOLUMES 1-27, COURT REPORTERS RECORD, D-1-DC-13-904201_395 CLERKS

RECORD, Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY (A-11-CR-647(1)-LY)

2255 Motion to Vacate, Carter Transcript attachment, and Exhibit 1, City of Jonestown City

Council Agenda's and Minutes). Bullock v. Carver, 297 F.3d 1036, 1056 (lOth Cir. 2002); Bohl,

25 F.3d at 909, 910; Arizona v. Youngblood, 488 U.S. 51, 57-58, 109 S. Ct. 333, 102 L. Ed. 2d
Melfier!lfiffiiffi 7€!
7& .. ,,·.
281 (1988); California v. Trombetta, 467 U.S. 479, 488, 104 S. Ct. 2528 81 L. Ed. 2d 413

(1984). These acts protected the suspects, numerous memb rs of the Jonestown government, and

the Allen's, personal friends of the Mayor. The trial court heard evidence the above mentioned

conspirators all knew that Applicant was an honorably retir d officer with 29 years of experience

in just such investigations. They reasonably expected th t with Applicant's background, any

illegal activities they had engaged in would come to light.

While the doctrine of separation of powers in a onstitutional scheme of government

prohibit free judicial interference in the exercise of discreti nary powers of attorney's in criminal

prosecutions, the judiciary has always borne the basic resrnsibility- for protecting individual's

against unconstitutional invasions of their rights by the G vemment. United States v Johnson,

577 F. 2d. 1304, 1308 (5th Cir 1978); United States v Fal , 479 F.2d. 616, 624 (7th Cir. 1965),
-' .

quoting Stamler v Willis, 415 F 2d. 1365, 1369-70 (7th Cir. 1969), cert. denied sub. nom., !chord

v Stamler, 399 U.S. 929, 90S. Ct. 2231, 26 L. Ed. 2d. 79 (1970). United States v Butler, 297

U.S. 1, 62-63, 56 S. Ct. 312, 80 L. Ed. 477 (1936); Marbu v Madison, 5 U.S. (1 Cranch) 137, 2

L. Ed. 60 (1803); Calder v Ball3 U.S. (3 Dall.) 386, 1 L. d. 648 (1798). See also A. Hamilton,

Federalist Paper No. 78, reprinted in Cook( e) (ed.) The Fe; eralist 521, 524-25 (1961). This case

falls into that rare situation in which the decision to prose ute was so abusive of this discretion
' '''' "( .:q I '' ' . -,' f

because it encroached on Constitutional!~ protected rights ~d the judiciary must protect against
. ...... ... ·. .... ... .. .. I .

unconstitutional deprivations, not tum a blind eye for politifal favoritism .

. Our Constitution places in the hands of the
•
~rlaljud~e the responsibility for safeguarding
, I

the integrity of the jury trial. United States v. Bo;en, 20/13 U.S. DIST. LEXIS 134434 (Sept.
. . .. ., • . I

2013) quoting United States v. Gainey, 380 U.S. 63, 68, ~5
'
S. Ct. 754, 758, 13 L Ed. 2d. 658
i .

I I
(1965).
 Under the Due Process clause of the Constitution, the accused in any criminal trail is ·

guaranteed the right to a fair and impartial tribunal. Nethery v. Collins, 993 F. 2d 1154, 1157 (5th

Cir. 1993); In re Murchison, 349, U.S. 133, 136, 75 S. Ct 623, 99 L. Ed. 942 (1955); Bracy v.

Gramley, 520 U.S. 899, 905, 117 S. Ct. 1793, 138 L. Ed. 2d 97 (1997)

According to the Texas Disciplinary Rnles of Conduct, Rule 8.02· "A lawyer shall not

make a statement that the lawyer knows to be false or with reckless disregard as to its truth or

falsity concerning the qualification or integrity of a judge." Rule 8.02 "Solely proscribes false or

reckless statements questioning judicial qualifications or integrity." United States v. Nolen, 172

F. 3d. 362 (5th & lith Cir. Dec. 2006).

The trial court has inherent power to the extent necessary to deter, alleviate and counteract

bad faith of the judicial process, this includes any reason the trial resulted in a miscarriage of

justice. United States v. Scroggins, 379 F. 3d. 233 (5th Cir. 2004), vacated on other grounds,

534; U.S. 1112, 125 S. Ct. 1062, 160 LEd. 2d. 1049 (2005).

A "district court is obliged to take measures against unethical conduct occurring in
'
connection with any proceeding before it." In re ProEducation Int'l, Inc., 587 F. 3d 296, 299-

300 (5th Cir. 2009). The Fifth Circuit has recognized the ABA Model Rules of Professional

Conduct are the "national standard." In re ProEducation Int'l., 587 E 3d at 299.

The Supreme Court of the United States has found decision makers are constitutionally

unacceptable only when the decision maker has a direct personal, substantial, and pecuniary
--,·. :o··. • ·' ·,

interest in the outcome of the case. Baran v. Port of Beaumont, 57, F. 3d 436, 444 (5th Cir.

1995).

"The Due Process Clause clearly requires a fair trial in a fair tribunal before a judge with

no actual bias against the defendant or interest in the outcome of his particular case. " Bracy v.

Metnm aiidu.tn 9 8
Gramley, 520, U.S. 899, 904-05, 117 S. Ct. 1793, 138 L. Ed. 2d 97 (1997); Buntion, 524 F.3d at

672; Samual v Warden, Avoyelles Corr. Ctr., 51 Fed. Appx. 483 (5th Cir. 2002).

Multiple statements by three independent Officers of the Court regarding the trial judges

decisions made in relation to her direct, personal and substantial pecuniary interest in her

upcoming fund raising kick-off event and re-election only months away at the time of her

decisions, clearly establishes "genuine questions concerning the judge's impartiality." Not only

is this conduct unacceptable, but "our system of law has always endeavored to prevent even the

probability of unfairness." Withrow v. Larkin, 411 U.S. 564, 579, :36 L. Ed. 2d 488, 93, S. Ct.

1689 (1973); In re Murchison, supra, at 136, 99 L. Ed. 942, 75 S. Ct. 623; Tumey v. Ohio, 273

U.S. 510, 523, 47 S. Ct. 437, 441, 71 L. Ed. 749 (1927); Liteky v. United States, 510 U.S. 540,

552, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994), and giving rise, based on the front page publicity
' ..
by the Austin American Statesman throughout the course of the trial,. to the public perceptions of

judicial integrity. Liljeberg, 486 U.S. at 865 n. 12, 108 S. Ct. at 2205 n. 12, 100 L. Ed. 2d at 875

n; Walberg v Israel, 766 F. 2d 1071 (7th Cir.), cert. denied, 474 U.S. 1013, 106 S. Ct. 546, 88 L.

Ed. 2d 475 (1985).

This appearance of impropriety has risen to the level of afundamental defect resulting in

a complete miscarriage of justice. United States v. Couch, 896 F. 2d 78, 81 (5th Cir. 1990).

"Justice must satisfy the appearance of justice." United States v. Diaz, 797 F. 2d 99 (2nd Cir.

1986), later app., 834 F. 2d 287 (2nd Cir. 1987), cert denied, 488 U.S. 818, 109 S. Ct. 57, 102 L.

Ed. 2d 35 (1988).

Violating Texas Disciplinary Rule of Professional Conduct Rule 8.03 (a) "A lawyer having

knowledge that another lawyer has committed a violation of applicable rules of professional

conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as

a lawyer in other respects shall inform the appropriate disciplinary authority, and failure to do so
~
8"/
when notified of the infraction by Appellate Counsel, Ariel Payan, who's wife works for the

District Attorney, and who are personal friends with the prosecutor and her husband, in an

already egregiously saturated case of attorney, prosecutor, and judiCial misconduct, has put the

honesty, trustworthiness, and integrity of any meaningful appeal in jeopardy, and in this

extraordinary case, reeks of the furtherance ofmore miscarriage ofjustice.

According to the Board of Directors of the ·State Bar of Texas, Model Rules of

Professional Conduct Rule 8.3 (1983), "A lawyer who knows that another lawyer has committed

a violation of the Rules of Professional Conduct that raises a substantial question of that lawyer's

honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate

authority. Clemons v McNamee, U.S. Dist. LEXIS 36916, May 2008 (5th Cir.); 2012 Bankr

LEXIS 2306, In Re Jarvis Adventure Bldg., LLC., May 2012 (5th Cir). Appellate Counsel, Ariel

Payan, in an email dated 03/21114, stating ...... "Also I think you are misconstruing what WE

told you about the "political" nature of the rulings on certain on your motions ... " admitting the

attorneys did make the statements. It's not the after effect "out of context" but the, at-the-time,
(

and circumstances, and the fact that they made them that is relevant. (See Exhibit 1, Judicial

Misconduct email to Payan dated 5/26114).

As a client, Applicant must be able to trust that his lawyer(s) will provide faithful and

zealous representation. Howell v. State Bar of Texas, 843 F. 2d. 205, 1988 (5th Cir.). Failing to

follow the clients orders to adversarially cross-examine prosecution witnesses, and having

several material and exculpatory witnesses readily standing by to testify, then making a decision
., .

to· rest without putting on a defense in such a high profile case, that made the front page of the

papers daily, and that was inundated with police misconduct, selective prosecution, constitutional

and civil rights violations because the lawyer(s), one of them being the "best friend" of the trail

judge, believe the judge "has her back," who, unless was previously told so by that judge, would
Meffiorafltltiffi 88
$l--
have no way to know how the judge's ruling could go, but made such a strong showing in the

confidynce of that belief, shows a complete disregard for a clients welfare. That irresponsible

and unethical conduct is not trail strategy. Especially when the judge, who personally witnesses

the prosecution committing multiple and ongoing Brady violations, "reviewed all documents and

records as well," listen's to arguments and the testimonies of the Government agents, in and out

of the presence of the jury, admitting to multiple felonies, including the willful and intentional

destruction of evidence that was unique and the most exonerating to Applicant, by the

prosecution team, and other Constitutional and civil rights violations, and who continues to not

stop the trial, except to go teach an ethics and integrity class at the University of Texas Law

School, but rules against Applicant in motions that have clearly provided legal sufficiency in

their claims, and there is still time to present the defense.

Applicant was denied effective assistance of counsel through the failure of Counsel to

conduct sufficient adversarial testing on witnesses who testified against him, and the failure to

call exculpatory witnesses on behalf of the defense.

As a result of trial counsel's expectation of favorable decisions from her "best friend", the

trial judge, Applicant was denied effective assistance of counsel:through the failure of Counsel to

conduct sufficient adversarial testing adversarial testing of:

Travis County District Attorney Investigator, L6ri Carter, who admitted to violating

Applicant's Miranda under oath, and who should have been tested her violation was not just

questioning after Applicant invoked his right to remain· silent; but elicited statements through

coercive threats, threatening to blow up the safes in a manor that lead Applicant to believe Mary

Jo Woodall and her 10 year old grandson would be subjected to serious bodily injury.

Travis County District Attorney Investigator, Lori Carter, testified she gave the SWAT

Teams executing the warrants all of the floor plans and information regarding the occupants of
Memartm:dttnt 81 ·
&;:}?
the residences, and that Lori Carter had no clue that Mary Jo Woodall's 10 year old grandson

was not at her residence, where he stayed over regularly to catch his school bus that stopped

right in front of her house. And, Lori Carter, knowingly and intentionally, told the Williamson

County SWAT Team the room they fire bombed with flash bangs, and caused $30,000 damage

to, was the child's room. (See Exhibit 5, 299th District Court Records, D-1-DC-13-904021-

EXH-VOLUMES 16-19, COURT REPORTERS RECORD, D-1-DC-13-904201_395 CLERKS

RECORD, and Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY (A-11-CR-647(1)-

L Y) 2255 Motion to Vacate, Carter Transcript attachment).

Travis County Dist1ict Attorney Investigator, Lori Carter, in regards to the search warrant

and resulting evidence revolving around an investigation begun prior to this case; former CM

Alternative Energies, Inc., employees Toby Miller, Dana McCoy, Michelle Cook, John Karlson,

Eric Graham, Justin Shepherd, Paul Kuwumura, Aaron Knapek; Texas Comptroller employees,

Pam Groce, Dub Taylor and Lisa Elledge; Assistant District Attorney Holly Taylor, who was

functioning as an "investigator" after July 15th 2011, Jonestown Police Chief, John Stetar, and

Jonestown Mayor, Deane Armstrong, DOE OIG Special Agent Rosemary Peterson, (see Charlie

Malouf! v. United States, A-13-CV-572LY (A-11-CR-647(1)-LY} attached Jonestown Police

Reports and Exhibit 2, related emails and photos) and DOE Program overseer's Barbara

Alderson and David Boron.; And, exculpatory defense witnesses, Howard Reed, and Dan

Dodson, who were readily available to testify but were never called because of the expectation of

counsel's "best friend" to simply rule in her favor. (See Exhibit 1, Howard Reed Affidavit).

Carter and Taylor misleadingly assert Miller first reported as a "concerned citizen" but

then elevated his status to "Deputy Sheriff' in a move to bolster his credibility. What is omitted

is Miller first reported as a Senior Deputy Sheriff for the Travis County Sheriff's Office in his

first complaint to the Department of Energy, (See ExhibitS, 299th District Court Records, D-1-
Mem:Otandum 82
'1rl
DC-13-904021-EXH-VOL 27, DOE OIG Complaint, IGHl0-580, page 537) with the full intent

of using his authority and exercising his credibility as a peace officer; in a "believe me before you

believe him" portrayal to make his complaint and begin his trek to cover his personal crimes, but

was later told there was no crime, and Carter, knowing this, intentionally withheld this

significant omission, and continues to mask Miller's criminal conduct and questionable

credibility.

Counsel failed to continue adversarial testing on Carter's inexperience and reliance on

others to conduct her investigation, her "research" and not "investigative" practices; her usage of

stale, assumptions, speculations, hearsay and other not verified information; her knowledge of

motorcycles; her relationship with the Gunslingers Motorcycle Club; lack of common sense in
, ....
'·'
simple matters, such as, "drop shipping" as it is a standard and common business practice

between suppliers and manufacturer's (see Exhibit 2, Drop Shipping/FOB instluctions from

Grainger, Galls and Northern Safety & Industrial) and that Applicant or Central Texas Plastics

committed no crime, or inappropriate business practice in ordering the Lexan blades from

Crescent Plastics, the extruder; and that if she conducted a thorough investigation, as she

portrayed, she would have known the original PVC blades priced and ordered for the Grant, were

still in inventory in Taylor; and her lack of unbiased investigation in her failure to follow up with

the USFWS, TARL, other permitting agencies; And, more importantly Carter, who claims to be

a qualified Lead Investigator, who in her own words (see 299th District Court Records, D-1-DC-

13-904021-EXH-VOL017), has been an investigator for at least 14 years, but has never executed

a search warrant or independently conducted her own investigation, but always had them handed

to her by other investigators, officer's or agencies, who intentionally did not find the time to
'·, ' ·\·
simply drive up 12 miles from her office, to 4202 Harcourt Drive, off Parmer Lane and Mopac,

less than 15 minutes from Carter's office, to Design's By Amalfi, the embroidery company
MeffierEtHEltufl83
>f-7
 whose credit card merchant account is under the business and trade name 'Sassie Lassy" and get

copies of the receipts and invoices, that matched the invoices and receipts at the Comptroller's

and DOE offices, along with an exculpatory and exonerating statement from Fred or Karen, the

owners, that it was not lingerie as she portrayed, but a legitimate business expense in the

embroidery of the CM Energies Jonestown Wind Project Logo (See Exhibit 2). Carter and

Taylor both knew this being they reviewed Mary Jo's work product seized and copied by Martin

Cano, and the invoices and receipts and justifications of the expenditures was all on file at the

Comptroller as part of the audit processing of invoices and payments kept by Mary Jo and the

Comptroller.

On October 10 2011, Carter, submitted search warrant affidavits for the issue of warrants

on the residence of Applicant, Mary-Jo Woodall and four other locations. The foundation

information provided to the magistrate for all of the approximately 27 page affidavits is the same

information. There are over 65 patently false and misleading statements and material omissions

. on the search warrant affidavits. Here are a few of the material omissions:

On p. 22 of the affidavit Carter states this affidavit is based on her personal knowledge

and is true and correct. Carter's testimony in trial proved this to be false. It was not "her"

personal knowledge, but mostly that of others, and she failed to independently substantiate or

confirm information, but simply took their assumptions and beliefs as true. (See Exhibit 5, 299th

District Court Records, D-1-DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS

RECORD, D-1-DC-13-904201_395 CLERKS RECORD)

On p. 8 Carter identifies Travis County Deputy Toby Miller. She states Miller made his

initial report as a "concerned citizen" and not in his capacity as a Deputy. Throughout the

document Carter refers to Miller as Deputy Miller. This elevated his status from concerned

: hierirlu aridtrnr 84.
-?iJ
citizen to that of a Deputy Sheriff. Miller is identified in 24 of the 50 paragraphs in a way that

highlights Miller's authority and position of public trust.

Carter and Taylor intentionally omits from the magistrate, key material information

regarding the conduct and credibility of witnesses and the integrity of her office. Carter and

Taylor intentionally omit Miller contacted the Department of Energy to make a complaint and

identified himself as a "Senior Deputy Sheriff' working for the Travis County Sheriff (see

Exhibit 5, COURT REPORTERS RECORD, D~l-DC-13-904201_395 CLERKS RECORD

Defense Exhibit 4) and not as a "concerned citizen." Carter omits Miller is minority shareholder

with no standing or authority in CM Energies Public Venture Funds, LLC., a subsidiary

company of CM Energies International, LLC and other than through the Trade name, CM

Energies, not directly affiliated with CM Alternative Energies, Inc., a Texas C Corporation,

where Miller was actually employed, part-time first for security, then part-time to the position of

Operations Manager. (See Exhibit 2, Archie S. Rogers CM Alternative Energies, Inc.,

Employment Agreement-identical inform to Miller's, whose the Travis County District Attorney
"'!

is still withholding, and identical in form and conditional content to the other employees working

the Jonestown Wind Project.)
• ,-'1-

Carter, Taylor, and Miller intentionally omitted informing the magistrate Miller was only a
·.

minority investor, who signed a Membership Subscription Agreement (see Exhibit 2, Toby
.,
Miller CM Energies Public Venture Funds Membership Agreement) with CM Energies Public

Venture Funds, LLC, knew that CM Energies was actually a recognition Trade name, set up

similar to General Electric, USAA, Proctor and Gamble and others, where the parent company,

in this case CM Energies International, LLC, was affiliated with shareholder ownership in, or

wholly owned subsidiary companies, and the organization is . identified under one

Trademark/Trade Name. Two examples of this are: USAA, whiCh is comprised of USAA
M@Hi.Gra+!Ehim gs
?il
Automotive Insurance, USAA Homeowner's Insurance, USAA Membership Services, USAA

Bank and more but operates under the trade name and symbol, USAA. The other is General

Electric. General Electric has GE Wind, GE Medical, GE Plastics GE Electric, broken down to

light bulbs, medical research and other subsidiaries, but all of them are recognized by the GE

symbol. The actual operational management from one organization, unless by contract, does not

have authority over the other organizations.

Miller and Carter knew this material fact at the time they presented the affidavit to the

magistrate and yet they falsely and misleadingly implied Miller had management authority over

all of CM Energies holdings. They failed to inform the magistrate Miller was not a shareholder,

nor had appointed authority to represent himself as the Operations Manager for CM Energies as

a whole, but only for CM Alternative Energies, Inc., the actual subcontractor for the City of

Jonestown and the Jonestown Wind Project (See E~hibit 5, 2991h District Court Record D-1-DC-
'.
13-904201_395, pages 161-163, States Exhibit 234 CLERKS RECORD). In addition, they

materially omit Miller started his complaints on the same day he found out by the CM

Alternative Energies, Inc., corporate counsel, Michael Guevara, that Miller had been caught

falsifying grant timesheets for himself and several other employees.
<'·

In another material omission, Carter states in her affidavit she interviewed the Mayor of

Jonestown, Dean Armstrong, several times, but fails to inform the magistrate in late December

2008, Deane Armstrong, Mayor, and Dan Dodson, City Administrator, conducted due diligence

on behalf of the City of Jonestown, and went out to The University of Texas, JJ Pickle Center,
··'.

where Applicant was entering into his third semester with the University, validating and testing

his prototype Wind Energy Systems, and met with Professor Stearman, who informed Armstrong

and Dodson the Systems were ready for commercialization. (See Exhibit 5, 299th District Court

Records, D-1-DC-13-904201_395, pages 164-172 CLERKS RECORD).
·. -~iemoritftdurn ·s6

.. '
g~
 Carter knowingly and intentionally omitted Armstrong and Dodson physically inspected

the Wind Energy Systems at the Pickle Center and were happy with what they saw and what

Stearman had told them, prior to the City of Jonestown agreeing to do business with Applicant

(See Exhibit 6, Charlie Malouf{ v. United States, A-l3~CV-572LY (A-11-CR-647(1)-LY)

Exhibit l, Stearman correspondence, and Exhibit 2, letter from Jonestown to Mary-Jo Woodall,

SECO January 6, 2009).

Carter knowingly and intentionally omitted more material facts that Miller and Michelle

Cook (another officer) were fired from the Jonestown Wind Project by the Jonestown City

Administrator for their role and conduct in an attempted hostile takeover and breech of

contractual responsibilities for the city's subcontractor (See Exhibit 6, Charlie Malouffv. United

States, A-l3-CV-572LY (A-ll-CR-647(1)-LY) Letter's from Jonestown and CMEI, and Exhibit

2, letter from Dan Dodson to Dana McCoy).

Carter knowingly and intentionally omitted police reports for felonious conduct regarding

Miller and other witnesses as suspects who were mentioned in support of the affidavit.

Additionally, Carter and Taylor omit that other witnesses were part of the law enforcement

community such as, Dana McCoy, Applicant's daughter (Medicaid Fraud Investigator), and

Michelle Cook (police officer).

Carter knowingly and intentionally omitted Miller and Cook were under investigation for

falsifying time cards to cover trysts (See Exhibit 5, 299th District Court Records, D-1-DC-13-
- ..... ,;.

904021-EXH-VOLUMES 16-19, COURT REPORTERS RECORD, D-l-DC-13-904201_395
,·, .·

CLERKS RECORD, and Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY (A-ll-
'· .
. '·
CR-647(1)-LY) attached Employee Time Sheets).

Carter knowingly and intentionally omitted Miller and Cook worked and accounted for

their time on the Jonestown Wind Project while they were on duty for the Sheriffs .Office and
· Memot !tfidttfl'i 87
~'1
police dept. respectively. Miller was shown his time sheets for both the Grant and the Travis

County Sheriffs Office and admitted, under oath in trial that he falsified the documents. (See

Exhibit 5, 299th District Court Records, D-1-DC-13-904021-EXH-VOLUMES l-27, COURT

REPORTERS RECORD, D-l-DC-13-904201_395 CLERKS RECORD, and Exhibit 6, Charlie

Malouf! v. United States, A-13-CV-572LY (A-ll-CR-647(1)-LY) 2255 Motion to Vacate,

Supplemental Response)

Carter knowingly and intentionally omitted that Travis County District Attorney Public

Integrity Unit Supervisor, Greg Cox was aware of allegations Miller had committed felony

crimes and was suspect in others and was a friend of Miller who helped to shelter Miller form

criminal charges (See Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY (A-ll-CR-
-,~,,

647(1)-LY) attached Toby Miller Constable Facebook) .
'· '. . •·,

Carter knowingly and intentionally omitted that Chief of Police John Stetar approached

Carter and Holly Taylor (Ass. DA who left her role as a prosecutor and undertook the role as
--·
..

"investigator" (see Exhibit 6, Charlie Malouf! v. United States, A-13-CV-572LY (A-ll-CR-

647(1)-L Y) attached Field Observations-Chief Stetar, and Exhibit 2, reflective photo of Holly

Taylor taking photo of electric meter, clearly identified by her dark hair (Carter has bleached

blonde) and her wedding ring and jewelry, who know they were "obviously" investigating, twice

and informed them that Miller and Cook were suspects in an open criminal investigation

regarding espionage and sabotage of the Jonestown Wind Project, corruption, fraud, theft, and

moonlighting while on force time. These statements are on the Supplemental Police Report that

Lori Carter submitted to 299th District Court Judge, Karen Sage, who reviewed written reports
r

and other evidence for information the DA wanted redacted, but Applicant's co-defendant's
\l • ~· ::. .

attorney, Joe Turner, wanted on the record, in a hearing in June 2012. The copies of the

· Memerandttm 88
1'
 Supplemental Report pages are also on file in Exhibit 6, Charlie Malouffv. United States, A-13-

CV-572LY (A-11-CR-647(1)-LY).

Carter knowingly and intentionally omitted the material fact Chief Stetar also informed

her, and Assistant DA Holly Taylor, another "key witness," Shelby Thomas, was an arson

suspect for insurance fraud and a suspect with Miller in the theft of a computer associated with

the wind project, and theft of surveillance cameras set up to catch the saboteurs (who had to be

insiders due to the intimate knowledge required to incur the damage. (See Exhibit 6, Charlie

Malouff v. United States, A-13-CV-572LY (A"11-CR-647(1)-LY) attached Jonestown Police

Report, Insurance Claim, and associated emails).

Carter knowingly and intentionally omitted the material fact that Stetar, at the time of the

application for the affidavits, failed to properly investigate these crimes and additionally failed to

investigate Paul Allen (the property caretaker), who claimed to know who had done the sabotage,

and was in trouble with the City Manager, Dodson and the City Counsel for his failure. (See

. Exhibit 6, Charlie Malouff v. United States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255

Motion to Vacate)

Carter knowingly and intentionally omitted the fact Stetar was given evidence that Toby

Miller had slashed Petitioner's front motor cycle tire in such a way as to explode under heat and
,.

speed (see Exhibit 6, Charlie Malouffv. United States, A-13-CV-572LY (A-11-CR-647(1)-LY)

attached Jonestown Police Report), and Carter was given a copy of that report.

Carter intentionally omitted her "surveillance" of Woodall's home and garage, in her

almost year long investigation was all conducted on one day and from a distance with no positive

identification of vehicles or persons. Carter but stated in her affidavit, she ''personally observed"

Applicants Harley Davidson in Woodall's garage. Carter testified under oath in the 299th

District Court this was patently false, that she was over a block· away, and made only an
Memora£E!Hffi 89
.ql,. . ,.
 assumption because she saw a black motorcycle parked in the garage. And, she admitted she

failed to tell the magistrate she had information that Applicant had not left his Harley in

Woodall's garage in over a year. (Clerks Record, D-1-DC-13-904021_395, page 349, and

Exhibit 2, photos of Applicant's motorcycle and motorcycles in Woodall's garage)

Carter knowingly and intentionally omitted Applicant was not employed by the City of

Jonestown, or CM Alternative Energies, Inc., at the time of the submission of the Grant, and that

· Dana McCoy had informed her that at the time, she was the President of the Company and

actively participating in its operation, to include signing payroll and other corporate and Grant

· documents.

Carter knowingly and intentionally omitted Miller never read the Grant or any of its

requirements or any contract between the City of Jonestown and CM Alternative Energies, Inc.,

and had no idea what the company was legally obligated to, and for a person who was supposed

to be in a position of authority, had no idea about what he was talking about.. Miller, who made

sure he was known in a position of public trust and authority as a deputy, knew this was relevant

and material information for the magistrate (See Exhibit 5, 299th District Court Records, D-1-

DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS RECORD, and D-1-DC-13-
' • 'I' ;_ ' ' • ~

904201_395 CLERKS RECORD).

Had Carter informed the magistrate of these material omissions, and not made up patently

false and misleading statements in an overzealous and vindictive prosecution, the magistrate

would have been left with serious doubt of the credibility of Miller and no probable cause.
,,- .. - .,

When all of the patently false and materially misleading statements are taken away, and material

omissions revealed, the magistrate is left with these facts:

1). Charlie Malouff and Mary Jo Woodall are long time friends who had sex and took trips

together.
· Mem:erfl'iiaHHI: 90
41--
2). Charlie Malouff is an entrepreneur who had previous experience with the government,

including grant writing and award, and as a sole source contractor. (See Exhibit 5, 299th

District Court Records, D-1-DC-13-904021-EXH-VOj:.,UMES 1-27, COURT

REPORTERS RECORD, D-1-DC-13-904201_395 CLERKS RECORD, and Exhibit 2,

photos of Charlie Malouff's ballistic material and research and development projects).

3). Charlie Malouff had his technology studied and tested at a prestigious institution by

senior Aerospace Engineering students, grad students and professors who stated the

technology was ready for commercialization (See Exhibit 1, Stearman email and letter, and

Exhibit 2, photos)

4). The City of Jonestown did its due diligence and this was submitted to the DOE via the

Grant.
···''
5). The City of Jonestown and CM Energies complied with the Code of Federal

Regulations on Sole Source procurement (See Exhibit 2, Sole Source letter submitted in

Grant, and Exhibit 5, 299th District Court Records, D-1-DC-13-904021-EXH-VOLUME

24, pages 67. 94-96), and was in compliance in all stages of the Project.

6). The Project was under the direct and ongoing oversight of the. DOE at every stage of

the process, monitored by monthly reporting and onsite audits, which Applicant assisted in

and was physically present for, and the mandated design changes were required by Federal

officers for permit approval. (See Exhibit 2, before and after design changes, June 28, 2010

Monthly Report, and testimony in Exhibit 5, 299th District Court Records, D-1-DC-13-

904021-EXH-VOLUMES 1-27, COURT REPORTERS RECORD, and D-1-DC-13-

904201_395 CLERKS RECORD).

7). Miller, Cook, McCoy, Graham, Guevara and Karlson submitted unauthorized

Environmental Assessment packages for permitting and were rejected. (See Exhibit 5,
M€!msr!tll:dttm4l1
13."
299th District Court Records, D-1-DC-13-904021-EXH-VOLUME027, page 242, Exhibit

266).

8). Miller, Cook, McCoy, and Karlson attempted a hostile take over of the Company and

Intellectual Property they had no "interest" in. (See Exhibit 6, Charlie Malouff v. United

States, A-13-CV-572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate, Secret Meeting

transcripts).

9). After finding out Miller and Cook were falsifying timesheets, Guevara, who had done

nothing unethical or wrong, other than crossing Toby Miller and being accused of being a

"traitor" disassociated himself with them and continued on in the interest of the

Corporation as the General Counsel.

7). CM Energies was "ready to go" and implemented the process, in compliance,

immediately after award. (See Exhibit 2, photos, Exhibit 5, 299th District Court Records,

D-1-DC-13-904021-EXH-VOLUMES 1-27, COURT REPORTERS RECORD, D-1-DC-

13-904201_395 CLERKS RECORD, and Exhibit 6, Charlie Malouff v. United States, A-

13-CV-572LY (A-11-CR-647(1)-LY) 2255 Motion to Vacate)

8). The Project was first compromised by the criminal conduct of Miller, Cook, and others

and subsequently compromised by Aaron Knapek, at the expense of the subcontractor.

(See Exhibit 1, Dan Smith emails, Justin Shepherd accounting documents, and Exhibit 3,

Knapek emails and Diversified Technology invoices).

9). Applicant was actively engaged in international business development, making his

product, commercially available both prior to, and after the Grant submission (See Exhibit

1, "Panama" presentation, and Howard Reed Affidavit)
10). The Wind Energy System at Taylor sustained damage from a lightning strike and that

damage was considerably different and less than the sabotaged Systems in Jonestown (see

Exhibit 2, photos)

11). Mary Jo Woodall was authorized by policy ,and practice to assist with writing the

Grant and giving assistance in the Grant implementation. (See Exhibit 5, 299th District

Court Records, D-1-DC-13-904021-EXH-VOLUMES 1-27, and VOLUME 12, Pam Groce

Testimony page 22-25, and COURT REPORTERS RECORD, D-1-DC-13-904201_395

CLERKS RECORD)

12). Mary Jo Woodall had no direct involvement in the selection of the Jonestown Wind

Project and did not write the checks for any disbursements. These processes were

conducted and approved by multiples of others. (See Exhibit 5, 299th District Court

Records, D-1-DC-13-904021-EXH-VOLUMES 1-27).

13). SECO personnel attended the study and testing of the System at The University of

Texas, met Applicant and the students, and were aware, at all levels of the Comptroller

administration, of the several year long relationship of Applicant and Mary J o Woodall.
! ••

(See Exhibit 5, 299th District Court Records, D-1-DC-13-904021-EXH-VOLUMES 1-27).

14). The Grant was a cost reimbursement project and any. internal problems of the

subcontractor's were the subcontractors responsibility, and not the responsibility of

Grantee, the City of Jonestown, the Comptroller or DOE. And, there were no provisions

for cost overruns to be billed back to the Project.

15). The Project was cut short 82 days by the overzealous and vindictive conduct of the

prosecutor. (See Exhibit 5, 299th District Court Records, D-1-DC-13-904021-EXH-

VOLUMES 1-27, COURT REPORTERS RECORD, D-1-DC-13-904201_395 CLERKS
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