WR-82,402-01 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 6/15/2015 7:28:52 AM No. WR-82,402-01 Accepted 6/15/2015 9:35:39 AM ABEL ACOSTA CLERK IN THE COURT OF CRIMINAL APPEALS OF TEXAS, AT AUSTIN RECEIVED COURT OF CRIMINAL APPEALS 6/15/2015 Ex parte Shahram Shakouri ABEL ACOSTA, CLERK Applicant Habeas Corpus Proceeding under Article 11.07, et seq., C.Cr.P., in Case Number W219-80595-07-HC from the 219th District Court of Collin County
Notice of Filing Objections and Request for Stay in Proceedings Pending Resolution of Issues TO THE HONORABLE COURT OF CRIMINAL APPEALS:
COMES NOW, Shahram Shakouri, Applicant in the above
styled and numbered cause, by and through John G. Jasuta, his
undersigned lead counsel, and respectfully files this “Notice of
Filing Objections and Request for Stay in Proceedings Pending
Resolution of Issues,” and would show the Court that on June 8,
2015, the habeas court entered its findings of fact and conclusions
of law, although they do not appear to have been forwarded to this
Court.
The undersigned received the habeas court’s findings and
conclusions on June 8, 2015. On June 15, 2015, within 10 days of his receipt of the findings and conclusions, the undersigned
filed, on behalf of Applicant, objections to the habeas court’s
Findings of Fact and Conclusions of Law in that court. A true and
correct copy of Applicant’s objections are attached as Exhibit “1”
to this document. Applicant would show the Court that the
findings and conclusions at issue are not supported by the habeas
record and fail to properly apply the law relating to the allegations
made and the evidence proffered.
Prayer
WHEREFORE PREMISES CONSIDERED, Appellant prays this
Honorable Court to grant this request in all things and stay all
proceedings in this Court pending the convicting court’s resolution
of his objections. Additionally, in the event that the convicting
court refuses to withdraw its findings and conclusions, the
undersigned requests the Court to consider his objections when
ruling on the merits of this case.
2 Respectfully submitted,
____________________________________ John G. Jasuta Attorney at Law 1801 East 51st Street, Suite 365-474 Austin, Texas 78723 Tel. 512-474-4747 Fax: 512-532-6282 eMail: lawyer1@johnjasuta.com State Bar Card No. 10592300 Attorney for Shahram Shakouri Certificate of Compliance and Delivery This is to certify that: (1) this document, created using WordPerfect™ X7 software, contains 332 words, excluding those items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on June 15, 2015, a true and correct copy of the above and foregoing “Notice of Filing Objections and Request for Stay in Proceedings Pending Resolution of Issues” was transmitted via the eService function on the State's eFiling portal, to John Rolater, Jr. (jrolater@co.collin.tx.us), counsel for the State of Texas.
______________________________________ John G. Jasuta
3 Exhibit “1” No. W219-80595-07-HC
EX PARTE § IN THE DISTRICT COURT § § 219th JUDICIAL DISTRICT § SHAHRAM SHAKOURI § COLLIN COUNTY, TEXAS
Applicant’s Objections to the Habeas Court’s Findings of Fact and Recommendation
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Shahram Shakouri, Applicant in the above styled
and numbered cause, by and through his undersigned attorneys,
John G. Jasuta and David A. Schulman, and respectfully files these
objections to the to habeas court’s findings and recommendation,
and would respectfully show the Court as follows: A p p l i c a n t ’ s
habeas corpus application and memorandum in support were filed
with the District Clerk for filing on July 2, 2012. On April 3, 2012,
the habeas court entered an Order Designating Issues. The State
filed its answer to the application on August 18, 2014. On
June 8, 2015, the habeas court entered its “Findings of Fact
and Recommendation,” a copy of which was received by the undersigned via eMail on that date. Pursuant to Rule 73.4(b)(2),1
Tex.R.App.Pro., these objections are timely if mailed or filed with
the District Clerk by June 18, 2015.
I
General Objections
Applicant’s habeas corpus application states facts which, if
true, would entitle him to relief. Applicant would show that the
habeas court’s findings and recommendation are not based on live
testimony taken at an evidentiary hearing, despite disputed fact
issues which were more appropriately resolved through such a
forum, especially given the time under consideration.
Any findings made without a live evidentiary hearing
necessarily requires credibility determinations made upon
evidence taken without confrontation or cross examination and
without the judicial observation attendant to that choice.
Credibility choices made without live examination but, instead
upon prior judicial or legal relationships, act to insulate those who
routinely practice before the Court and create a non-level playing
1 “A party has ten days from the date he receives the findings to file objections, but the trial court may, nevertheless, transmit the record to the Court of Criminal Appeals before the expiration of the ten days.”
2 field. It is for this reason that the credibility choices, and all
findings and recommendations which rest, even in part, upon
such flawed credibility choices, must be re-examined. In that the
entirety of the findings entered by this Court, except for those
factual findings supported by the record, rest upon credibility
choices made without resort to live evidence, subject to cross
examination, Applicant objects generally to all.
Each and every finding relating to ineffective assistance of
counsel, from Finding 8 through Finding 36, relies on nothing but
counsel’s affidavit, fails to discuss the internal inconsistencies
within the affidavit of counsel, and has been made without regard
to any allegation of fact, except those made by trial counsel in his
affidavit.
II
Specific Objections
Findings Related to Applicant’s First Ground for Relief
A
Applicant objects to Findings of Fact numbers 8 through 14
specifically because they are the product of an acceptance of a
self-serving affidavit without Applicant having been afforded the
3 opportunity to examine the maker of that affidavit in open court.
In Finding numbers 9 and 10 it is recognized that Applicant
proclaimed his innocence, but neither those findings or any
others, explain how the failure to file a motion to suppress, and
gain examination of the maker of the affidavit, assisted rather than
hindered Applicant.
In Finding 14 the habeas court finds, sub silentio, that
counsel made a strategic choice to “forego challenging the warrant
and instead act to prove Applicant did not commit the acts,” but
such a choice, were it made, is per se unreasonable because the
“choice” did not have to be made as neither had to be foregone to
proceed on the other. Given Applicant’s recognized assertions,
any making of the choice was deficient conduct. Finding 14 is
spurious and unsupported by the record or logic.
B
Findings 15 through19 are also based on a credibility choice
made through association and not examination of the facts of this
case. Finding 19 is a prime example, finding that Applicant has
produced no evidence to show that the lawyer is not acting
unreasonably, when counsel was not subjected to any
4 interrogating technique other than requiring the placing by the
attorney alone, of his own untested memories on paper with an
eye to avoidance of the claim of ineffective assistance of counsel.
The reality is that Applicant absolutely produced evidence which,
if true, showed that trial counsel did “act unreasonably.” The
reality is also that the habeas court simply and summarily
rejected the allegations.
Finding 17 states that the sexual images admitted at trial
corroborated the Complainant’s account, but does not explain this
finding. As there were no images depicting Applicant and the
Complainant in any sexual manner or using any device, Applicant
asserts the finding is unsupported. Without proof of ownership,
a disputed factual issue, there is no corroboration. Even if every
act was committed, the commission does not show ownership of
the sexual devices.
Findings 18 and 19 are irrelevant because they do not seek to
resolve the issue of fact, that being why counsel failed to object to
the pornography, admittedly legal, found on the computer. Also,
the findings are incomplete, and therefore irrelevant, because they
do not show who owned the sexual items which Applicant claimed
5 in the habeas corpus application, and to this day claims were
owned by the Complainant.
Lastly, Findings 18 and 19 are based, to some degree, on the
assumption that counsel was faced, in deciding whether to object
to certain items not tied to Applicant, with a so-called “either or
choice.” Counsel’s opinion that he could better counter certain
evidence by arguing in no manner obviates the need for the
objection to the pornography and it in no manner excuses the
failure. Counsel should have done both, and his unexamined
assertion that he made a choice, and the Court’s findings based on
that assertion, demonstrates an unreasonable choice per se,
because it was a choice which did not have to be made. In
admitting to making an unnecessary choice, counsel has admitted
to deficient conduct. Applicant objects to any other finding.
Finding 18, that counsel did not choose to request a limiting
instruction, fails to address the fact that such a request would
have been without foundation since counsel failed to object to the
motion picture evidence. Findings 18 and 19 fail to address the
fact that counsel couldn’t request the limiting charge because of
his earlier unreasonable choice which did not have to be made,
6 and in that failure, are incomplete. The factual assertion of
ineffective assistance of counsel, addressed in these findings, is
unresolved except as to it being admitted.
C
Findings 20 through 23 address an allegation of ineffective
assistance of counsel regarding a decision to request an election
by the State. The findings, including a recognition that such a
request is generally thought of as a matter of trial strategy, are
based entirely on the untested affidavit of trial counsel who was
not subjected to any examination regarding his assertions.
Applicant alleged that the failure to request such an election
was an instance of deficient conduct and any examination into
that failure must include a component of whether, if a choice was
made, that choice was unreasonable. In this failure, the habeas
court’s findings are incomplete and, once again, merely accepting
of counsel’s assertion without any type of examination.
D
Findings 24 through 29 address the claim that counsel was
ineffective because he failed to request an instruction on the lesser
included offense of sexual assault. The findings seem to rely on
7 counsel’s assertion that Applicant denied any offense whatsoever
and a belief that Applicant’s denial of any sexual assault
whatsoever made such an instruction inappropriate. However,
Findings 24 through 29 fail to address the factual allegations
made, specifically that the testimony of the Complainant failed to
show any threat of imminent harm, that the Complainant was
never placed in fear of serious bodily injury or that she was
compelled into sexual activity of any sort by any such threats. As
such, the contention was that the evidence from the Complainant
raised the issue of sexual assault and that counsel was deficient
in failing to rely on that evidence. Whether or not Applicant
denied any offense whatsoever is irrelevant to the question
presented, which is whether counsel acted deficiently in failing to
request an instruction that was supported by the evidence. The
same is true as to any finding based on that denial.
Findings 24 through 29 demonstrate, once again, how
reliance on untested affidavits of a self serving nature can lead the
court into incomplete, irrelevant and unsupported findings. That
Applicant denied any offense whatsoever in no manner prohibited
counsel from seeking, and obtaining, a charge on the lesser
8 included offense of sexual assault. Findings 24 through 29 do
nothing to resolve the issue presented and, at best, avoid the
issue.
E
In Findings 30 through 33, the habeas court addresses an
allegation of ineffective assistance of counsel for failing to seek
limiting instructions regarding evidence of extraneous bad
conduct, but, once again, accepts without any type of cross
examination or other testing procedure, the self serving statements
of counsel. Counsel states, in his affidavit, that he did not wish to
draw additional attention to the evidence since he had dealt with
the allegations with medical, photographic and character evidence.
A decision by which counsel allowed evidence subject to limited
usage to be used without limitation in an effort to cause the jury
to not consider that evidence is patently ludicrous and per se
unreasonable.
Finding 33 is that Applicant has adduced no evidence that
this strategic choice was unreasonable and unsupported. The
finding is especially unsupportable because the habeas court
afforded no forum by which counsel’s tale could be tested.
9 Acceptance of counsel’s excuse for his failure to protect his
client from unlimited use of evidence which could and should have
been properly limited without an examination of the bases for
counsel’s belief is not a proper resolution, as it does not
demonstrate that the failure was reasonable. Findings 30 through
33 do nothing to resolve the fact issue alleged, that counsel’s
actions were deficient and, if the product of choice, a choice which
was an unreasonable strategy, because they do not address the
F
Findings 34 through 40 relate to the allegation of ineffective
assistance of counsel for his failure to object during voir dire to the
efforts of the State to place evidence regarding issues at trial
before the venire. Such findings are incomplete, as they do
nothing but accept counsel’s excuses for his admitted failure.
Counsel’s reasoning for his failure relies on shibboleths which
hold that lawyers who object too often can make a jury angry at
the objecting party. Such reasoning is only anecdotally supported,
if at all, yet the habeas court accepted that reasoning, without
subjecting trial counsel’s statements to any scrutiny. The Court
10 finds, in Finding Number 37, that counsel discussed objections
with the venire, but this finding is completely irrelevant to the
question of why counsel, during voir dire, didn’t object to the
State’s conduct.
There is no evidence that the habeas court, or any other
court, has ever actually seen anything supporting the idea that
juries will be angry with lawyers who object. Thus, the habeas
court should have considered how this “fact,” and the reliance
upon it by counsel, was or was not reasonable. Instead, the
Court’s findings fail to consider any evidence except counsel’s
superstitions and, in so doing, failed to fully and fairly resolve the
factual issue raised.
G
Each of the Findings numbered 8 through 44 is completely
reliant upon the affidavit of trial counsel who, having been alleged
to have acted deficiently, provided an affidavit. No attempt was
made to examine counsel as to the accuracy of the assertions
within the affidavit, or any of the “facts” upon which counsel relied
in making the decisions the trial court to be the product of
strategy in Finding 41. The assertions within trial counsel’s
11 affidavit are unsupported in many instances and do not resolve
the issues presented. As such, the findings based thereon are
without support.
Findings Related to Applicant’s Second Ground for Relief
The habeas court addresses Applicant’s second allegation,
that evidence was planted in his home by persons known to the
State, in Findings 45 through 89. Findings 45 through 49 recite
historical facts and are not objectionable. Findings 50 through 56
hold essentially, that the Complainant denied the allegation of
complicity in a conspiracy to inculpate Applicant. This denial, to
be expected, created a factual dispute in need of resolution.
The findings are objectionable, because they do not resolve
the factual dispute, except by accepting as true the affidavit
proffered by the State, even by one accused of misdeeds within the
allegation, and rejecting as untrue all of the affidavits proffered by
Applicant. The same is true of Findings 57 through 64, dealing
with affidavits from others who are alleged to have participated in
the conspiracy against Applicant.
12 Findings 45 through 89 are, at their core, a recognition that
a factual dispute exists and that only by avoiding the dispute and
accepting the State’s evidence as true, can resolution be had
without resort to traditional truth finding methods prevalent in the
law, examination and cross examination. Unlike the habeas
court’s determination of credibility of attorneys, both representing
the State and Applicant at trial, the credibility choices underlying
rejection of Applicant’s allegation with regard to the Complainant,
her friend and her son, have no bases in the long association of
the witness with the legal system and are, therefore, unsupported
and arbitrary.
Findings 65 through 80 involve credibility choices regarding
the State’s employees, accused of impropriety. Applicant objects
to these findings because they are based on an assumption that
all State’s employees will tell the “truth and only the truth,” which
creates an almost insurmountable burden. This assumption, and
the findings based upon it, are not founded on any examination
and cross examination of the witnesses.
Findings 65 through 80, that those accused of participating
in the conspiracy against Applicant, denied it and can be believed,
13 is not the product of searching inquiry but, rather, assumptions
as to who will and who will not tell the truth. Applicant objects to
this incomplete resolution.
III
Findings Related to Applicant’s Third Ground for Relief
Applicant objects to Findings 97 through 112 generally
because, once again, the findings are based on credibility choices
made without resort to in-person assessment of that credibility
through examination and cross examination. Certainly the
Complainant denied the allegations made by Applicant’s witness.
The trial court rejects Applicant’s witness’ credibility only because
the Complainant stated he was not telling the truth instead of
recognizing that Mohammad R. Manteghinezad’s statement
(Exhibit “A,” Supplemental Memorandum), and the Complainant’s
denial, only served to create factual issues which required actual
adversarial fact finding.
The assistant district attorneys who dealt with Manteghinezad
cannot and do not refute his statements. The habeas court’s
selection of who to believe and who to disbelieve, without in-
14 person examination and cross examination, is arbitrary and
without support, and should be rejected.
Applicant specifically objects to Findings 104 through 107
because they are irrelevant and the product of speculation on the
part of the habeas court. Applicant would point out that the
provenance of none of the affidavits procured by the State were
questioned by the habeas court, even those submitted by people
whose English was not that of a native speaker.
Conclusion
Applicant alleged facts which, if true, would entitle him to
habeas corpus relief, and he should have been provided with an
opportunity to prove those allegations. The habeas court’s
findings are not supported by the facts or the law, and only serve
to demonstrate the need for an evidentiary hearing.
WHEREFORE, PREMISES CONSIDERED, Applicant,
Shahram Shakouri, respectfully prays that the habeas court will
withdraw its findings of fact, and instead find that Applicant has
alleged facts and provided evidentiary support for those
allegations, and that there exist controverted, previously
15 unresolved facts material to the legality of the applicant’s
confinement,” and that Applicant is entitled him to have the
opportunity to prove his allegations in an evidentiary hearing.
Respectfully submitted:
John G. Jasuta David A. Schulman Attorney at Law Attorney at Law State Bar No. 10592300 State Bar No. 17833400 lawyer1@johnjasuta.com zdrdavida@davischulman.com
1801 East 51st Street, Suite 365-474 Austin, Texas 78723 Tel. 512-474-4747 Fax: 512-532-6282 Attorneys for Applicant
16 Certificate of Compliance and Delivery
This is to certify that: (1) this document, created using
WordPerfect™ X7 software, contains 2,746 words, excluding those
items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies
with Rules 9.4 (i)(2)(B) and 9.4 (i)(3), Tex.R.App.Pro.; and (2) on
June 15, 2015, a true and correct copy of the above and foregoing
“Applicant’s Objections to the Habeas Court’s Findings of Fact and
Recommendation” was transmitted electronically to John Rolater
(jrolater@co.collin.tx.us), attorney of record for the State of Texas.