Michael Joseph Kearns ____________

Name

 

________________________

Prison Number

 

_____________________________________________________________

Place of Confinement

 

 

United States District Court San Antonio, Bexar County, Texas ____________

 

 

Case No (to be supplied by the Clerk of Court)

 

 

Michael Joseph Kearns,

 

 

v.

 

United States

 

( If movant has a sentence to be served in the future under a federal judgment which he wishes to attack, he should file a motion in the federal court which entered the judgment.)

 

 

PETITION FOR WRIT OF HABEAS CORPUS IN THE NATURE OF A

MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE BY

A PERSON IN FEDERAL CUSTODY

 

INSTRUCTIONS -- READ CAREFULLY

 

(1) This motion must be legibly handwritten or typewritten, signed by the movant penalty of perjury. Any false statement of a material fact may serve as the basis for prosecution and conviction for perjury. All questions must be answered concisely in the proper space on the form.

 

(2) Additional pages are not permitted except with respect to the facts which

you rely upon to support your grounds for relief. No citation of authorities need be furnished. If briefs or arguments are submitted, they should be submitted in the form of a separate memorandum.

 

(3) Upon receipt, your motion will be filed if it is proper order. No fee is required with this motion,

 

(4) If you do not have the necessary funds for transcripts, counsel, appeal and other costs connected with a motion of this type you may request permission to proceed in form pauperis, in which event you must execute the declaration on the last page, setting information establishing your inability to pay the costs. If you wish to proceed in forma pauperis, you must have an authorized officer at the penal institution complete the certificate as to the amount of money and securities on deposit to your credit in any account in the institution. The amount of money and securities on deposit to your credit in any account in the institution.

 

(5) Only judgments entered by one court may be challenged in a single motion. If you seek to challenge judgments entered by different judges or divisions either in the same district or in different districts, you must file separate motions as to each judgment.

 

(6) Your attention is directed to the fact that you must include all grounds for relief and all facts supporting such grounds for relief in the motion you file seeking relief from any judgment of conviction.

 

(7) When the motion is fully completed, the original and two copies must be mailed to the Clerk of the United States District Court whose address is 655 E Durango,________

San Antonio, Texas ____________

(8) Motions which do not conform to these instructions will be returned with a notation as to the deficiency. Jurisdiction in invoked pursuant to the Judiciary Act of 1789, 1 STAT 73 and Amendment Number One of the Constitution for the United States of America in my right to redress of grievance against the government.

 

PETITION

 

STATEMENTS FOR PETITION FOR WRIT OF HABEAS CORPUS

 

I, Michael Joseph Kearns, applicant, hereby files this Petition for Writ of Habeas Corpus. In support of this Petition, applicant shows the Court the following:

Waiver of Objections

During the trial, Monday, January 29, 1996, at approximately 10:30 AM o'clock, the Judge called a sidebar conference to talk to this accused. At the sidebar conference, attended by all the attorneys and this accused, the Judge said he was going to waive any and all my objections. I queried the Judge as to, did he mean constitutional and administrative as well as judicial procedural objections and the Judge responded with the same statement, he was going to waive all my objections, but he wanted my participation in the "trial." When I returned to my seat, the assistance of counsel appointed by the Court told me, "The Judge just wrote you a blank check."

Consolidation Statement

The Judge initially made a distinction between those accused's with standby/advisory assistance of counsel and those accused's represented by assistance of counsel, when he said that when any of the accused's had any objection it would apply to the others within their respective group.

However, as the proceeding went along the Judge applied any objection made by anyone to all the accused's of both groups.

This Petitioner would invoke any and all objections made by any of the accused's during any of the proceedings in the complained of cause.

 

Error Standard Statement

Because the Judge waived all objections of any kind to this accused during a sidebar discussion on January 29, 1996, this Court is under a mandate to inspect the entire record four error that is not complained of but is in the form of fundamental, harmful, plain, and/or reversible error.

 

Ineffective Assistance of Counsel Statement

This statement applies to each and every Ground contained herein that references or claims Ineffective Assistance of Counsel.

This Court must recognize that;

- The Fifth Circuit has stated that standby assistance of counsel does not meet the Sixth Amendment of the Constitution for the United States of America guarantee for assistance of counsel;

- The proper standards for attorney [assistance of counsel] performance is that of reasonably effective assistance;

- Defense [assistance of counsel] counsel had duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process;

- Actual or constructive denial of assistance of counsel altogether is legally presumed to result in prejudice;

- Since fundamental fairness is central concern of writ of habeas corpus, no special standards ought to apply to claims of ineffective assistance of counsel made in habeas proceedings.

- Except for the assistance of counsel's unprofessional errors and lack of reasonable professional judgment, the result of the proceeding would have been different.

Jurisdiction Statement

Jurisdiciton is invoked from the Common Law, the saving to suitor Clause of the Judiciary Act of 1789, 1 Stat 77, ".... (a) saving to suitors in all cases, the right of a common law remedy, when the common law is competent to give it,....", Amendment Number One of the Constitution for the united States of America for my right to redress my grievance against the government and the Judge has authority to grant the Writ under the Judiciary Act of 1789, 1 Stat 73, now codified under the All Writs Act, 28 USC 1651(a)

 

1. Name and location of court which entered the judgment of conviction under attack United States District Court, San Antonio, Bexar County, Texas ____________________________________

2. Date of judgment of conviction ___May 16, 1995_____________________________________

 

3. Length of sentence 51 months - 3 yr. S.R, Sentencing Judge Prado ______

 

4. Nature of offense or offenses for which you were convicted __________________________

your 18 USC 1341, 371, 2_______________________________________________

 

5. What was your plea? (Check one)

(a) Not guilty ( )

(b) Guilty ( )

(c) Nolo contendere ( )

If you entered a guilty plea to one count or indictment, and a not guilty

plea to another count or indictment, give details: ___________________________________

NO PLEA - WHATSOEVER - STOOD MUTE ________________________________________________________________________________

6. Kind of trial: (check one)

(a) Jury ( X )

(b) Judge only ( )

 

7. Did you testify at the trial? Yes ( ) No ( X )

 

8. Did you appeal from the judgment of conviction? Yes ( ) No ( X )

 

9. If you did appeal, answer the following:

(a) Name of court __________________________________________________________________

(b) Result _________________________________________________________________________

(c) Date of result __________________________________________________________________

 

10. Other than a direct appeal from the judgment of conviction and sentence, have you previously filed any petitions, applications or motions with respect to this judgment in any federal court? Yes ( X ) No ( )

 

11. If your answer to 10 was "yes," give the following information:

(a) (1) Name of court ___United States Distrct Court - San Antonio, Texas________

(2) Nature of proceeding ___Petition for Writ of Habeas Corpus_________________

__________________________________________________________________________

(3) Grounds raised ___________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

 

(4) Did you receive an evidentiary hearing on your petition, application or motion? Yes ( ) No ( X )

(5) Result __construed as 28 USC 2255 motion and dismissed as procedurally barred under the new 1 year limitation of the __

(6) Date of result _______March 26, 1998______________________________________

 

(b) As to any second petition, application or motion give the same information:

(1) Name of court __United States District Court, Washington, D.C.___________

(2) Nature of proceeding ____Petition for Judicial Review and Petition for Declaratory Judgment_____Case No. 98-1560_______________________________

(3) Grounds raised __the court was petitioned to make certain declarations regarding the court, the judge, and the action in th United States District Court, San Antonio, Texas, Case No. SA-95-CR-201____________________________________________________________________________________________________________________________________________________________________________

(4) Did you receive an evidentiary hearing on your petition, application or motion? Yes ( ) No ( X )

(5) Result __Petition construed as Writ of Habeas Corpus and transferred to the United States District Court, Texarkana, Texas____________________________

(6) Date of result ____________________________________________________________

(c) As to any third petition, application or motion, give the same information:

(1) Name of court ____________________________________________________________

(2) Nature of proceeding ______________________________________________________

___________________________________________________________________________

(3) Grounds raised ___________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

 

(4) Did you receive an evidentiary hearing on your petition, application or motion? Yes ( ) No ( )

(5) Result ____________________________________________________________________

(6) Date of result _____________________________________________________________

 

(d) Did you appeal, to an appellate federal court having jurisdiction, the result of action taken on any petition, application or motion?

(1) First petition, etc. Yes ( ) No ( )

(2) Second petition, etc. Yes ( ) No ( )

(3) Third petition, etc. Yes ( ) No ( )

(e) If you did not appeal from the adverse action on any petition, application or motion, explain briefly why you did not:

_______________________________________________________________________________

_______________________________________________________________________________

 

12. State concisely every ground on which you claim that you are being held unlawfully. Summarize briefly the facts supporting each ground. If necessary, you may attach pages stating additional grounds and facts support the same.

 

CAUTION: If you fail to set forth all grounds in this motion, you may be barred from presenting additional grounds at a later date.

 

For your information, the following is a list of the most frequently raised grounds for relief in these proceedings. Each statement preceded by a letter constitutes a separate ground for possible relief. You may raise any grounds which you have other than those listed. However, you should raise in this motion all available grounds (relating to this conviction) on which you base your allegations that you are being held in custody unlawfully.

 

If you select one or more of these grounds for relief, you must allege facts in support of the ground or grounds which you choose. Do no check any of the grounds listed below. The petition will be returned to you if you merely check (a) through (j) or any one of these grounds.

 

(a) Conviction obtained by plea of guilty which was unlawfully induced or not made voluntarily or with understanding of the nature of the charge and the consequences of the plea.

(b) Conviction obtained by use of coerced confession.

(c) Conviction obtained by use of evidence gained pursuant to an constitutional search and seizure.

(d) Conviction obtained by use of evidence obtained pursuant to an unlawful arrest.

(e) Conviction obtained by a violation of the privilege against self-incrimination.

(f) Conviction obtained by the unconstitutional failure of the prosecution to disclose to the defendant evidence favorable to the defendant.

(g) Conviction obtained by a violation of the protection against double jeopardy.

(h) Conviction obtained by action of a grand or petit jury which was unconstitutionally selected and impaneled.

(i) Denial of effective assistance of counsel.

(j) Denial of right of appeal.

NOTE: If Petitioner asserts denial of effective assistance of counsel (ground "i"), he must describe with particularity the factual basis for his claim (e.g., lawyer failed to raise insanity defense), and he must describe the prejudice allegedly suffered as a result of the denial of effective assistance of counsel (e.g., convicted of crime that Petitioner lacked the mental capacity to commit).

 

Ground One - THE TRIAL COURT LACKED JURISDICTION BY AND WHEN THE INDICTMENT WAS AMENDED AS SET FORTH IN GROUNDS HEREINAFTER.

Facts: The Indictment was amended in a material way. and when the Indictment was so amended, the trial court lacked jurisdiction.

 

Ground Two - THAT THE REMOVAL OF BILLY MACK O'NEILL MANDATED THAT HE BE SEVERED FROM THE TRIAL SO THAT HE COULD BE CALLED AS A DEFENSE WITNESS.

Facts: Billy Mack O'Neill was the central figure in the conspiracy pursuant to the Indictment and when he was removed therefrom because he was the only one who could and would testify to the falsity to the statement in paragraph number 7, which states in part, "..., which they knew could not and would no be negotiated for money, payment or funds ...."

 

Ground Three - THAT THE INDICTMENT WAS IMPERMISSIBLE AMENDED BY THE REMOVAL OF BILLY MACK O'NEILL AS A CONSPIRATOR BUT LEFT IN THE INDICTMENT AS AN AIDER AND ABETTER OF THE CONSPIRACY AND AN AIDER AND ABETTER OF THE SUBSTANTIVE COUNTS.

Facts: Self-explanatory.

 

Ground Four - TRIAL COURT LACKED JURISDICTION BECAUSE THE INDICTMENT WAS AMENDED IN SUBSTANCE BY THE REMOVAL OF ONE OF THE CONSPIRATORS FROM THE CONSPIRACY COUNT OF THE INDICTMENT.

Facts: The removal of Billy Mack O'Neill from the Conspiracy Count in the Indictment but leaving him in the Manner and Means as the central figure and the groups of Overt Acts for each substantive Count was either a literal, constructive or implicit amendment of the Indictment.

 

Ground Five - THE INDICTMENT FAILED TO ALLEGE THAT THE CERTIFIED MONEY ORDERS OR THE CERTIFIED BANKERS CHEQUES WERE DISHONORED BY THE DRAWEE IN COUNTS 2 THROUGH 15 - AND THE COURTS INSTRUCTIONS FAILED TO EXPLAIN THIS MATERIAL FACT TO THE JURY.

Facts: The Texas Business and Commerce Code (Uniform Commercial Code (UCC)) is the controlling law within Texas on negotiable instruments and the lack of any mention of the said UCC and it's provisions within the Indictment tainted the whole process.

 

Ground Six - THE AMENDED INDICTMENT BROADENED THE CHARGES AND CULPABILITY AGAINST THE REMAINING DEFENDANTS AFTER BILLY MACK O'NEILL WAS STRUCK FROM THE CONSPIRACY COUNT IN THE INDICTMENT.

Facts: When Billy Mack O'Neill was struck from the Conspiracy Count of the Indictment and the Manner and Mean along with the Overt Acts stayed the same, the other defendants naturally assumed more culpability than the grand jury imparted to them.

 

Ground Seven - AMENDMENT OF THE INDICTMENT BY STRIKING BILLY MACK O'NEILL FROM THE CONSPIRACY COUNT TOOK AWAY THE INTENT OF THE GRAND JURY WHEN THEY VOTED FOR A TRUE BILL TO PASS THE CONSPIRACY COUNT TO THE PETIT JURY WITH ALL THE ALLEGED ACCUSED

Facts: Billy Mack O'Neill was removed from the Conspiracy Count of the Indictment. The original Indictment voted on by the grand jury assigned a quantity of culpability to the alleged acts of the accuses. When Billy Mack O'Neill was made the central figure by paragraph number 8 of the Manner and Means, the greater amount of culpability was assigned to him. With his removal and not changing the total amount of overt acts and culpability, common sense tells one that the other accused had more culpability placed on them than the grand jury assigned to them, in other words the charges were broadened as to the rest of the accused.

Facts: The intent of the grand jury was to assign a quantity of culpability to Billy Mack O'Neill because of his actions as mentioned in paragraph number 8 of the Indictment. That intent of the grand jury was taken away when Billy Mack O'Neill was removed from the Conspiracy Count.

 

Ground Eight - REMOVAL OF BILLY MACK O'NEILL FROM THE LIST OF THE DEFENDANTS AT THE BEGINNING OF THE CONSPIRACY COUNT WHILE LEAVING HIM WITHIN THE TEXT OF THE CONSPIRACY COUNT AS A CONSPIRATOR WHO WAS STILL THE PRINCIPAL ENTITY, BUT EXEMPTED HIM FROM THE CONSPIRACY HE WAS INHERENTLY INVOLVED IN, AS HIS ALTER EGO, ALTERED THE INTENT OF THE GRAND JURY.

Facts: Billy Mack O'Neill filed a d.b.a. with the Victoria County Recorder's Office listing O.M.B., W.D. McCall and Associates as a name he was doing business as a sole proprietor. O.M.B., W.D. McCall and Associates was Billy Mack O'Neill's alter ego. Billy Mack O'Neill was responsible for everything done by his alter ego. It stands to reason, if you are going to remove Billy Mack O'Neill from the Conspiracy, you also have to remove his alter ego from the same Conspiracy or you have not really removed him from the Conspiracy Count, just exempted him from consideration by the jury for his alleged conduct. And thus altered the intent of the grand jury.

 

Ground Nine - THAT THE REMOVAL OF BILLY MACK O'NEILL AND O.M.B., W.D. MCCALL AND ASSOCIATES FROM THE INDICTMENT AS A CONSPIRATOR REQUIRED AN INSTRUCTION ON MULTIPLE CONSPIRACIES.

Facts: Billy Mack O'Neill was removed from the Conspiracy Count of the Indictment. Billy Mack O'Neill was the central figure pursuant to paragraph number 8 of the Manner and Means of the Indictment. From paragraph number 8 the single conspiracy alleged revolved around Billy Mack O' O'Neill. The removal of Billy Mack O'Neill would require an instruction to the jury on multiple conspiracies.

 

Ground Ten - AFTER THE REMOVAL OF BILLY MACK O'NEILL - O.M.B., W.D. MCCALL AND ASSOCIATES FROM THE INDICTMENT AT THE COMMENCEMENT OF THE TRIAL - THE INDICTMENT AND THE AMALGAMATED JURY INSTRUCTIONS TO THE PETIT JURY WITH ALL THE ALLEGED DEFENDANTS FAILED TO EXPLAIN HOW THE JURY WAS TO PERCEIVE AND UTILIZE THE INTEGRATED REFERENCING OF THE OVERT ACTS TO THE SUBSTANTIVE COUNTS.

Facts: The Indictment did not reference any of the Overt Acts to the substantive counts. The jury instructions did not instruct the jury to draw up a referencing chart so they could see what Overt Acts went with what substantive counts. The jury did not draw up a referencing chart to have a clear understanding of what Overt Acts were involved with what substantive counts. It was necessary for the jury to have a uniform unanimous verdict and having a uniform unanimous verdict was impossible without a referencing chart. A verdict that was not uniform and unanimous violated the guarantees of the Constitution for the United States of America.

 

Ground Eleven - THAT THE REMOVAL OF BILLY MACK O'NEILL - O.M.B., W.D. MCCALL AND ASSOCIATES FROM THE CONSPIRACY COUNT OF THE INDICTMENT CREATED TWO INTERPRETATIONS - ONE WHICH STATED AN OFFENSE AND ONE WHICH DID NOT.

Facts: Counts 3 and 7 only list one individual therein. Yet in each of those two Counts, your petitioner was charged with and convicted of aiding and abetting, an impossibility. One cannot aid and abett oneself.

 

Ground Twelve - THE REMOVAL OF BILLY MACK O'NEILL FROM THE CONSPIRACY COUNT IN THE INDICTMENT CONSTITUTED A MATERIAL AMENDMENT OF THE INDICTMENT.

Facts: Billy Mack O'Neill was removed from the Conspiracy Count in the instant Indictment. The Indictment can only be amended in form only not in substance. The amendment of the instant Indictment was a material amendment and not permitted.

 

Ground Thirteen - THAT THE COURT FAILED TO INSTRUCT THE JURY ON THE REQUIREMENT OF FINDING UNIFORM UNANIMOUS VERDICTS OF GUILT FROM THE MULTIPLE SELECTION OF CHOICES AVAILABLE TO THEM BY THE STRUCTURING OF THE INDICTMENT AND THE REMOVAL OF BILLY MACK O'NEILL AND O.M.B., W.D. MCCALL AND ASSOCIATES FROM THE CONSPIRACY COUNT.

Facts: The Indictment was structured in such a way the jury could and did assign any one of a multiple choice means of finding guilt without the selection being uniform and unanimous for each accused and each element of each offense. The problem was compounded when Billy Mack O'Neill was removed from the Conspiracy Count. There was no instruction of any kind regarding the requirement of finding a uniform unanimous verdict of guilt.

 

Ground Fourteen - THAT THE DISMISSAL OF BILLY MACK O'NEILL AND THE AMALGAMATED INSTRUCTION TO THE JURY DENIED YOUR PETITIONER A FAIR TRIAL.

Facts: The substantive crime is the object of the agreement to conspire to commit that crime, in the instant case that substantive crime was mail fraud. Conspiracy to commit mail fraud requires that one overt act be committed in order to accomplish some object or purpose of the conspiracy. After Billy Mack O'Neill was withdrawn/dismissed from the conspiracy count, but left in the Manner and Means and the Overt Acts associated with the conspiracy, the jury could and did assign the one overt act necessary for conviction to Billy Mack O'Neill eventhough he was removed therefrom. Once Billy Mack O'Neill was removed, nothing in the conspiracy count could be assigned to him to convict the others. The court failed to instruct the jury that the accused's left in the Conspiracy Count could not be in a conspiracy with Billy Mack O'Neill and none of the requirements of the offense of conspiracy could be assigned to him.

 

Ground Fifteen - THAT THE INSTRUCTION TO THE JURY FAILED TO INSTRUCT THAT BILLY MACK O'NEILL COULD NOT BE USED AS AN AIDER AND ABETTER TO THE CONSPIRACY AS WELL AS BEING EXEMPTED FROM THE CONSPIRACY AND THE OVERT ACTS THERETO.

Facts: The instructions to the jury failed to instruct the jury that Billy Mack O'Neill could not be used as an aider and abetter to the conspiracy as he had been exculpated from the requisite scienter and mens rea of the conspiracy. This failure allowed the jury the option to assign culpability to Billy Mack O'Neill and denied this accused the correct instruction to the jury on this important point. The harm and prejudice to this accused was that he could be convicted contrary to the law.

 

Ground Sixteen - THAT THE INSTRUCTIONS TO THE JURY FAILED TO INSTRUCT THAT MICHAEL JOSEPH KEARNS AND CLARENCE RAY MIKOLAJCZYK COULD NOT AID AND ABET THEMSELVES IN THE SUBSTANTIVE COUNTS.

Facts: Michael Joseph Kearns is the only individual named in Counts 3 and 7 and Clarence Ray Mikolajczyk was the only individual named in Counts 14 and 15. Michael Joseph Kearns and Clarence Ray Mikolajczyk were found guilty in these Counts of Aiding and Abetting, however the elements of aiding and abetting require that the aider and abetter assist or encourage a principal

or someone else who actually committed the said offense. It is impossible to aid and abett oneself and the jury was not instructed properly on this point.

 

Ground Seventeen - THAT THE INSTRUCTION TO THE JURY FAILED TO INSTRUCT THE JURY THAT IN COUNT ONE THEY COULD NOT USE BILLY MACK O'NEILL AS THE "ONE" CONSPIRATOR, DURING THE EXISTENCE OF THE CONSPIRACY WHO KNOWINGLY COMMITTED AN OVERT ACT DESCRIBED IN THE INDICTMENT.

Facts: Billy Mack O'Neill was the central figure in the conspiracy pursuant to paragraph number 8 of the Manner and Means. He was also the "ONE" to most likely knowingly commit the overt act required for the conspiracy. However, Billy Mack O'Neill was removed from the conspiracy so he could not be the individual to commit the necessary overt act for a conspiracy to exist and the jury was never instructed on this point.

 

Ground Eighteen - THAT THE INSTRUCTIONS TO THE JURY FAILED TO INSTRUCT THE JURY ON THE ELEMENTS OF AIDING AND ABETTING A CONSPIRACY - AND - ON THE ELEMENTS OF CONSPIRING TO AID AND ABET THE COMMISSION OF A SUBSTANTIVE COUNT IN THE INDICTMENT.

A. THAT THE INSTRUCTIONS TO THE JURY FAILED TO INSTRUCT THE JURY ON THE ELEMENTS OF AIDING AND ABETTING A CONSPIRACY.

B. THAT THE INSTRUCTIONS TO THE JURY FAILED TO INSTRUCT THE JURY ON THE ELEMENTS OF CONSPIRING TO AID AND ABET THE COMMISSION OF A SUBSTANTIVE COUNT IN THE INDICTMENT.

A. Facts: The same words used in Counts 2 - 15 to charge aiding and abetting were used in Count 1, confusing the jury so that the jury could actually believe your petitioner was aiding and abetting the alleged conspiracy. The Court failed to instruct the jury as to Count 1 was not charging aiding and abetting the conspiracy.

B. Facts: With the same words used in Counts 2 - 15 as were used in Count 1, the jury was confused as to whether the government was alleging "conspiracy to aid and abet" or "aiding and abetting a conspiracy." To add to the confusion, Counts 3 and 7, wherein the actual charge of "aiding and abetting" was made, the jury could actually think I was charged with "aiding and abetting a conspiracy I had with myself to aid and abet the commission of the substantive offense" or the jury could have thought I was charged with "aiding and abetting a conspiracy I had with myself to aid and abet the conspiracy I had with myself to commit the substantive offense."

 

Ground Nineteen - THAT THE REMOVAL OF BILLY MACK O'NEILL FROM THE LIST OF CONSPIRATORS ALONG WITH AN IMPROPER INDICTMENT USING UNKNOWN CO-CONSPIRATORS - WITHOUT A BILL OF PARTICULARS OR ANY INSTRUCTION FROM THE COURT TAINTED THE JUDICIAL PROCESS AND MANDATES PLAIN ERROR AND A REVERSAL OF ALL CHARGES AND ALL COUNTS.

Facts: Paragraph 1 of Count 1 of the instant Indictment alleges UNKNOWN OTHERS in the alleged conspiracy. Billy Mack O'Neill, as the central figure in the conspiracy was removed therefrom and therefore the jury had to assign culpability that the grand jury assigned to Billy Mack O'Neill to one of the UNKNOWN OTHERS in Count 1. However, conspiracy to commit mail fraud requires that all the names of the co-conspirators and their individual overt acts be set forth in the indictment or a bill of particulars for the indictment. When the Court failed to follow the dictum for a mail fraud conspiracy case the Court committed plain error and this accused was prejudiced thereby. The only relief to rectify this egregious harm is a reversal with prejudice.

 

Ground Twenty - THAT THE INSTRUCTIONS TO THE JURY THAT THE GOVERNMENT WAS NOT REQUIRED TO PROVE THE ABSENCE OF GOOD FAITH WAS PLAIN ERROR AND MANDATES AN AUTOMATIC REVERSAL.

Facts: The Court instructed the jury in part, "Neither is the government required to prove the absence of good faith." However, case law says that statement just the opposite, "Good faith is a complete defense to mail fraud charge," and "Government must prove lack of good faith beyond reasonable doubt in mail fraud trial." This constitutes plain error and mandates reversal.

 

Ground Twenty One - THE ASSISTANCE OF COUNSEL PROVIDED BY THE COURT WAS INEFFECTIVE, BECAUSE, THE ASSISTANCE OF COUNSEL WAS STANDBY AND MADE WITHOUT A DETAILED INQUIRY AND EDUCATED EFFORT BY THE COURT AS TO THIS ACCUSED'S KNOWLEDGE, ABILITY TO PRESENT HIMSELF AND KNOWING WAIVER OF ASSISTANCE OF COUNSEL AND THAT WAIVER, IF ANY WAS VOLUNTARY AND KNOWLEDGEABLE.

Facts: The Court appointed Joe Mike Egan as standby/advisory assistance of counsel for this accused for this matter. This accused never made a voluntary knowledgeable waiver of any of his rights, especially effective meaningful assistance of counsel. The Court never made an informative educated inquiry as to this accused's expertise in the technical matters of the Federal Court rules and procedures. This accused was harmed and prejudiced by the failure of the standby/advisory assistance of counsel to meet the requirements of the Article of Amendment Number Six of the Constitution and this is plain error and requires reversal.

 

Ground Twenty Two - THAT ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, EVENTHOUGH, HE, BY HIS OWN ADMISSION LACKED KNOWLEDGE OF THE COMPLEX SUBJECT OF NEGOTIABLE INSTRUMENTS, HE DID NOT REMOVE HIMSELF FROM THE CASE, NOR, DID HE ASK THE COURT TO APPOINT AN EXPERT ON NEGOTIABLE INSTRUMENTS TO ADVISE HIM REGARDING THIS COMPLEX SUBJECT.

Facts: The Court appointed Joe Mike Egan as the standby/advisory assistance of counsel in the instant case for this accused. Mr. Egan admitted to this accused that he didn't know anything about negotiable instruments. This accused brought this information to the attention of the Court and requested assistance of counsel who was knowledgeable in the area of negotiable instruments. Mr. Egan did not remove himself from the case nor did he request an expert in the area of negotiable instruments be appointed to help him with this case. The harm and prejudice to this accused is the instant case is replete with error because of the lack of knowledge on the part of the assistance of counsel and his performance was less than professional and did not meet the standards as set forth by the Constitution and the Supreme Court of the United States. This amounts to plain error and requires reversal with prejudice.

 

Ground Twenty Three - THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, BY HIS OWN ADMISSION, HE DIDN'T HAVE ANY KNOWLEDGE REGARDING THE COMPLEX SUBJECT OF NEGOTIABLE INSTRUMENTS AND FAILED TO ESTABLISH FOR THE JURY THAT THE CERTIFIED MONEY ORDERS AND THE CERTIFIED BANKERS CHEQUES WERE NEGOTIABLE INSTRUMENTS.

Facts: Joe Mike Egan was appointed by the Court as this accused's assistance of counsel. Joe Mike Egan, by his own admission, had no knowledge of the complex subject of the case, i.e. negotiable instruments. Joe Mike Egan failed to establish the Certified Money Orders and the Certified Bankers Cheques were negotiable instruments pursuant to the law of the realm on negotiable instruments, the Texas Business and Commerce Code (Uniform Commercial Code (UCC)). Joe Mike Egan failed to render adequate legal assistance and that failure was plain error and requires reversal with prejudice.

 

Ground Twenty Four - THE ASSISTANCE OF CO W COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE NEVER DID GET THE "GIST" OF THE INDICTMENT AS STATED IN PARAGRAPH NUMBER 7 OF THE MANNER AND MEANS OF THE INDICTMENT.

Facts: Joe Mike Egan was appointed as standby/advisory assistance of counsel in the instant case. Joe Mike Egan never did get the "gist" or the heart of the Indictment as stated in Paragraph Number 7 of the Manner and Means of the Indictment. Because he never did get the "gist" of the Indictment, he failed to adequately and professionally attack the Indictment. Understanding the "gist" of the Indictment requires knowledge and investigation into the facts to determine just exactly what the government is trying to say. This lack of understanding the "gist" prejudiced this accused to the point he did not know specifically what the government was trying to say to launch an attack on the Indictment to defeat the false allegations contained therein. This amounts to plain error on the part of the standby assistance of counsel and requires reversal with prejudice.

 

Ground Twenty Five - THE ASSISTANCE OF COUNSEL PROVIDED BY THE COURT WAS INEFFECTIVE, BECAUSE WHILE HE NEVER DID UNDERSTAND THE "GIST" OF THE INDICTMENT, THAT LACK OF UNDERSTANDING WOULD PREVENT HIM FROM KNOWING THAT MATERIAL EXCULPATORY FACTS WERE WITHHELD FROM THE GRAND JURY.

Facts: The lack of knowledge on the part of the standby/advisory assistance of counsel carried over into his not knowing from the structure of the Indictment what material exculpatory facts were withheld from the grand jury and his use of those facts in attacking the Indictment. United States Code sections and the Letter of Credit issued to this accused by O.M.B., W.D. McCall and Associates missing from the Indictment should have indicated a lack of good faith on the part of the prosecutor and lead to the attack on the Indictment. Such lack of knowledge and attack on the Indictment is plain error and shows this assistance of counsel's lack of professionalism and except for this lack on his part the outcome of the trial would have been different.

 

Ground Twenty Six - THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, WITHOUT UNDERSTANDING THE "GIST" OF THE INDICTMENT, THE COUNSEL COULD NOT MOVE FOR SEVERANCE OF BILLY MACK O'NEILL FROM THE TRIAL SO HE COULD BE CALLED AS A DEFENSE WITNESS TO DISPUTE THE STATEMENT IN PARAGRAPH NUMBER 7 OF THE MANNER AND MEANS.

Facts: Because Joe Mike Egan, the court appointed standby/advisory assistance of counsel could not and did not move for severance of Billy Mack O'Neill from the trial to offer exculpatory evidence regarding the truth of the statement in Paragraph Number 7 of the Manner and Means of the Indictment. This violated the standards set forth in Stricklin, is plain error and requires reversal with prejudice. Had the assistance of counsel had the knowledge and professional expertise the Constitution requires, the outcome of the trial would have been different.

 

Ground Twenty Four - THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE NEVER DID GET THE "GIST" OF THE INDICTMENT AS STATED IN PARAGRAPH NUMBER 7 OF THE MANNER AND MEANS OF THE INDICTMENT.

Facts: Joe Mike Egan was appointed as standby/advisory assistance of counsel in the instant case. Joe Mike Egan never did get the "gist" or the heart of the Indictment as stated in Paragraph Number 7 of the Manner and Means of the Indictment. Because he never did get the "gist" of the Indictment, he failed to adequately and professionally attack the Indictment. Understanding the "gist" of the Indictment requires knowledge and investigation into the facts to determine just exactly what the government is trying to say. This lack of understanding the "gist" prejudiced this accused to the point he did not know specifically what the government was trying to say to launch an attack on the Indictment to defeat the false allegations contained therein. This amounts to plain error on the part of the standby assistance of counsel and requires reversal with prejudice.

 

Ground Twenty Five - THE ASSISTANCE OF COUNSEL PROVIDED BY THE COURT WAS INEFFECTIVE, BECAUSE WHILE HE NEVER DID UNDERSTAND THE "GIST" OF THE INDICTMENT, THAT LACK OF UNDERSTANDING WOULD PREVENT HIM FROM KNOWING THAT MATERIAL EXCULPATORY FACTS WERE WITHHELD FROM THE GRAND JURY.

Facts: The lack of knowledge on the part of the standby/advisory assistance of counsel carried over into his not knowing from the structure of the Indictment what material exculpatory facts were withheld from the grand jury and his use of those facts in attacking the Indictment. United States Code sections and the Letter of Credit issued to this accused by O.M.B., W.D. McCall and Associates missing from the Indictment should have indicated a lack of good faith on the part of the prosecutor and lead to the attack on the Indictment. Such lack of knowledge and attack on the Indictment is plain error and shows this assistance of counsel's lack of professionalism and except for this lack on his part the outcome of the trial would have been different.

 

Ground Twenty Six - THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, WITHOUT UNDERSTANDING THE "GIST" OF THE INDICTMENT, THE COUNSEL COULD NOT MOVE FOR SEVERANCE OF BILLY MACK O'NEILL FROM THE TRIAL SO HE COULD BE CALLED AS A DEFENSE WITNESS TO DISPUTE THE STATEMENT IN PARAGRAPH NUMBER 7 OF THE MANNER AND MEANS.

Facts: Because Joe Mike Egan, the court appointed standby/advisory assistance of counsel could not and did not move for severance of Billy Mack O'Neill from the trial to offer exculpatory evidence regarding the truth of the statement in Paragraph Number 7 of the Manner and Means of the Indictment. This violated the standards set forth in Stricklin, is plain error and requires reversal with prejudice. Had the assistance of counsel had the knowledge and professional expertise the Constitution requires, the outcome of the trial would have been different.

 

Ground Twenty Seven - THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE FAILED TO HIRE AN INVESTIGATOR, DEMAND THE COURT HIRE AN INVESTIGATOR, OR INVESTIGATE HIMSELF AS TO ALL THE FACTS OF THE CASE AND ALL INSTANCES OF THE USE OF THE CERTIFIED MONEY ORDERS AND CERTIFIED BANKERS CHEQUES TO DETERMINE WHETHER OR NOT ANY WERE DISHONORED, AND WHETHER THERE WERE INSTANCES OF THEIR USE THAT WAS NOT CHARGED AND WHY.

Facts: Joe Mike Egan was the court appointed standby/advisory assistance of counsel in the instant case. Joe Mike Egan did not investigate the facts or the law concerning the case. Joe Mike Egan never investigated the state law on negotiable instruments nor it's application to this case specifically whether or not the said instruments were ever dishonored or not. This lack of investigation violates the dictum of the Constitution and is plain error and requires reversal with prejudice. Had the assistance of counsel investigated the matter, the outcome of the trial would have been different.

 

Ground Twenty Eight - THE ASSISTANCE OF COUNSEL PROVIDED BY THE COURT WAS INEFFECTIVE, BECAUSE, HIS LACK OF KNOWLEDGE ON NEGOTIABLE INSTRUMENTS PROHIBITED HIM FROM UNDERSTANDING THE USE OF AND THE RELIANCE UPON THE TEXAS BUSINESS AND COMMERCE CODE (UNIFORM COMMERCIAL CODE (UCC)) BY THE ACCUSED AND THAT RELIANCE AMOUNTED TO GOOD FAITH, ON THE PART OF THIS ACCUSED.

Facts: Joe Mike Egan's lack of understanding on negotiable instruments precluded him from knowing that the law of the realm on the subject was in fact the Texas Business and Commerce Code and this accused's reliance thereon amounted to good faith and Mr. Egan's failure in this area of the case amounted to ineffectiveness on his part, was plain error and demands reversal with prejudice.

 

Ground Twenty Nine - THE ASSISTANCE OF COUNSEL PROVIDED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE DID NOT OBJECT TO THE DISMISSAL OF BILLY MACK O'NEILL FROM COUNT ONE, CONSPIRACY, OF THE INDICTMENT, BECAUSE THE DISMISSAL CHANGED THE GOVERNMENTS THEORY OF THE CASE FROM A SINGLE CONSPIRACY TO THAT OF MULTIPLE CONSPIRACIES.

Facts: Billy Mack O'Neill was the central figure pursuant to Paragraph Number 8 of the Manner and Means of the Indictment. Billy Mack O'Neill was withdrawn/dismissed from Count One of the Indictment. The change of the theory of the case changed the action of the grand jury and the assistance of counsel's failure to object was ineffective, amounted to plain error and demands reversal with prejudice.

 

Ground Thirty - THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, THE ASSISTANCE OF COUNSEL DID NOT OBJECT TO A MATERIAL AMENDMENT OF THE INDICTMENT WITHOUT DISMISSAL OF THE INDICTMENT AND RE-PRESENTMENT TO THE GRAND JURY FOR A SUPERSEDING INDICTMENT.

Facts: The assistance of counsel failed to object to the amendment of the Indictment with the removal of Billy Mack O'Neill from Count One thereof. The said amendment caused the Indictment to be a product that was not of the grand jury and therefore re-presentment was necessary. Failure of the assistance of counsel to object to this amendment of the Indictment was ineffective and was ineffective because the lack of objection allowed an Indictment that denied this accused his due process to be used to prosecute him. This is plain error and demands reversal with prejudice. Except for the ineffectiveness of the assistance of counsel, the outcome of this matter would have been different.

 

Ground Thirty One - THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, THE ASSISTANCE OF COUNSEL DID NOT OBJECT TO THE BROADENING OF THE INDICTMENT AS TO THIS ACCUSED BY THE DISMISSAL OF BILLY MACK O'NEILL FROM COUNT ONE OF THE INDICTMENT AND DEMANDING THE INDICTMENT BE DISMISSED FOR BROADENING OF THE CHARGES AGAINST THIS ACCUSED.

Facts: Joe Mike Egan was appointed by the Court as standby/advisory assistance of counsel in the instant case for this accused. The Indictment was amendment by the withdrawal/dismissal of Billy Mack O'Neill from Count One of the Indictment. Count One of the Indictment was also broadened to this accused when this amendment occurred. The lack of objection to this broadening was ineffectiveness on the part of this assistance of counsel as this accused was denied his due process rights. Had the assistance of counsel been professional and effective the outcome of this matter would have been different.

 

Ground Thirty Two - THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE FAILED TO INFORM THE COURT ABOUT THE EXISTENCE OF A PERSONAL ASSET, WORTH FAR IN EXCESS OF THE ANOINT OF THE LETTER OF CREDIT, THAT COULD BE USED TO DISCHARGE ANY CIVIL OBLIGATION THIS ACCUSED MAY HAVE HAD UNDER THE U.C.C. UPON ANY CERTIFIED MONEY ORDERS HE SIGNED AS MAKER.

Facts: Joe Mike Egan was appointed by the Court as standby/advisory assistance of counsel in the instant case for this accused. The accused has a personal asset worth far in excess of the amount of the Letter of Credit issued by O.M.B., W.D. McCall and Associates to this accused. The failure of the assistance of counsel to present this fact to the court was ineffectiveness and denied this accused his due process rights. But for the ineffectiveness of the assistance of counsel the outcome of this case would have been different.

 

Ground Thirty Three - THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE DID NOT OBJECT TO THE GOVERNMENT CHANGING IT'S THEORY OF THE CASE BY THE WITHDRAWAL/DISMISSAL OF BILLY MACK O'NEILL AS A CONSPIRATOR IN COUNT ONE OF THE INDICTMENT.

Facts: Joe Mike Egan was appointed standby/advisory assistance of counsel to this accused by the Court in the instant matter. Billy Mack O'Neill was withdrawn/dismissed from Count One of the Indictment. The assistance of counsel did not object to the withdrawal/dismissal of Billy Mack O'Neill from Count One because of the government changing it's theory of the case. This denial of effective meaningful assistance of counsel and also denial of this accused's due process rights under the Constitution. The outcome of the matter would have been different except for the ineffectiveness of the assistance of counsel.

 

Ground Thirty Four - THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, THE INDICTMENT FAILED TO ALLEGE THE CERTIFIED MONEY ORDERS AND THE CERTIFIED BANKERS CHEQUES WERE DISHONORED BY THE DRAWEE AS REQUIRED BY THE TEXAS BUSINESS AND COMMERCE CODE BEFORE ANY ACTION CAN BE TAKEN THEREON, AND THE ASSISTANCE OF COUNSEL FAILED TO OBJECT TO THIS DISREGARD OF STATE LAW AND DEMAND A DISMISSAL WITH PREJUDICE.

Facts: Joe Mike Egan was appointed by the Court as assistance of counsel to the accused in the instant matter. Texas state law, the Texas Business and Commerce Code (Uniform Commercial Code (UCC)) is the governing law in Texas on negotiable instruments. Under Texas law the negotiable instrument has to be dishonored by the drawee before any action thereof can be taken. The instant Indictment failed to allege that the said negotiable instruments had been dishonored by the drawee. The failure of Mr. Egan to this disregard of governing state law on the subject was ineffective and also violated this accused's due process rights guaranteed to him. These denials tainted the process and made the outcome of the proceeding not a reliable test of the adversary process. Had the assistance of counsel been effective, the outcome of the proceeding would have been different.

 

Ground Thirty Five - THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE FAILED TO DEMAND A GOOD FAITH EVIDENTIARY HEARING PRIOR TO TRIAL FOR THE PURPOSE OF ESTABLISHING GOOD FAITH ON THE PART OF THE ACCUSED, THE ELEMENTS OF GOOD FAITH, THE EXISTENCE OF THE LETTER OF CREDIT FROM BILLY MACK O'NEILL AND THE PERSONAL ASSET, WORTH FAR IN EXCESS THE VALUE OF THE LETTER OF CREDIT, PLEDGED TO GUARANTEE THE LETTER OF CREDIT, ALL IN GOOD FAITH.

Facts: Joe Mike Egan was appointed by the Court as standby/advisory assistance of counsel to the accused in the instant matter. Joe Mike Egan knew of the existence of the Letter of Credit and it's value, along with the personal asset pledged to the guarantee of the said Letter of Credit. Joe Mike Egan did not demand a good faith evidentiary hearing prior to trial or at any time for that matter to establish good faith and set forth the elements of that good faith. The failure of Mr. Egan to establish the good faith of this accused and it's elements is ineffectiveness and plain error. The outcome of the proceeding would have been different except for the ineffectiveness of the assistance of counsel. In addition, this accused's due process rights were violated by Mr. Egan

 

Ground Thirty Six - THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE DID NOT DEMAND THE COURT DISMISS THE INDICTMENT AFTER THE MATERIAL AMENDMENT OF THE INDICTMENT BECAUSE THE MATERIAL AMENDMENT CAUSED THE COURT TO LOSE JURISDICTION OF THE MATTER, IF IT IN FACT EVER HAD ANY.

Facts: Joe Mike Egan was appointed by the Court as standby/advisory assistance of counsel to this accused in the instant matter. The Indictment imparts jurisdiction of the criminal matter to the Court. The Indictment was amended in a material manner and the Court lost any jurisdiction it may have had on the matter. Mr. Egan failed to object to and demand the dismissal of the Indictment once the Court lost the jurisdiction it gained from the Indictment. This inaction amounts to ineffectiveness and also denial of due process to this accused. But for the ineffectiveness of the assistance of counsel, the outcome of the matter would have been different.

 

Ground Thirty Seven - THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, WHEN THE INDICTMENT FAILED TO ALLEGE THE CERTIFIED MONEY ORDERS AND THE CERTIFIED BANKERS CHEQUES WERE DISHONORED, PURSUANT TO TEXAS STATE LAW, INDICATED THIS INFORMATION WAS WITHHELD FROM THE GRAND JURY AND THE ASSISTANCE OF COUNSEL FAILED TO CHALLENGE THE GRAND JURY PROCEEDINGS FOR THE OMISSION OF THIS MATERIAL FACT.

Facts: Joe Mike Egan was appointed by the Court as standby/advisory assistance of counsel to this accused in the instant matter. The Indictment failed to allege that the negotiable instruments were dishonored pursuant- to Texas state law. Without this important allegation in the Indictment, the assistance of counsel knew or should have known the information regarding the Texas state law requirements was withheld from the grand jury. The assistance of counsel failed to object to this withholding of material facts from the grand jury and demand a dismissal of the Indictment. This failure of Mr. Egan to object to the withholding of this important material facts from the grand jury and the demand to dismiss the Indictment is ineffectiveness on his part. This withholding of material facts from the grand jury also amounted to denial of due process guaranteed to him.

 

Ground Thirty Eight - THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, WHEN THE INDICTMENT FAILED TO ALLEGE VIOLATIONS OF STATE LAW REGARDING NEGOTIABLE INSTRUMENTS, THE ASSISTANCE OF COUNSEL FAILED TO HAVE THE JUDGE INSTRUCT THE JURY AS TO THE APPLICABILITY OF STATE LAW TO NEGOTIABLE INSTRUMENTS.

Facts: Joe Mike Egan was appointed by the Court as standby/advisory assistance of counsel to this accused in the instant matter. The Indictment failed to allege that the negotiable instruments were dishonored pursuant to Texas state law. The jury instructions did not contain any reference to the requirement under Texas state law for the negotiable instruments to be dishonored by the drawee before any action can be taken thereon. The assistance of counsel failed to demand this requirement under Texas state law be made a part of the jury instructions concerning the said instruments. This failure represented ineffectiveness and prejudiced this accused by not informing the jury that they had to consider the requirements of Texas state law regarding the said negotiable instruments. This accused was also denied his due process rights when this requirement was not placed before the jury and jury could convict him without considering the correct law on the subject. This failure on the part of the assistance of counsel was error and requires reversal with prejudice.

 

Ground Thirty Nine - THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE FAILED TO EDUCATE THE JURY, AND THEN HAVE PROPER JURY INSTRUCTIONS, REGARDING THE DOCTRINES OF ALTER EGO AND THE INSTRUMENTALITY RULE.

Facts: Joe Mike Egan was appointed by the Court as standby/advisory assistance of counsel for this accused in the instant matter. Billy Mack O'Neill was the central figure pursuant to Paragraph Number 8 of the Manner and Means of the Indictment. O.M.B., W.D. McCall and Associates was a name registered by Billy Mack O'Neill as a "d.b.a.". O.M.B., W.D. McCall and Associates was not a corporation but a sole proprietorship and as such was Billy Mack O'Neill's alter ego and would qualify under the Instrumentality Rule. The failure of the assistance of counsel to educate the jury as to these two very important concepts and then have the jury instructions reflect these doctrines was ineffectiveness on the part of the assistance of counsel. This failure on the part of the assistance of counsel also denied this accused the due process rights guaranteed to him. The harm and prejudice committed on this accused was that the jury could not see that eventhough Billy Mack O'Neill was withdrawn/dismissed from Count One of the Indictment, he was effectively left in as his alter ego with culpability assigned to the alter ego but not to him. This allowed this accused to be found to have a conspiracy with Billy Mack O'Neill but not with Billy Mack O'Neill. This error requires reversal with prejudice.

 

Ground Forty - THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, WITH THE POSSIBILITY OF MULTIPLE CONSPIRACIES EXISTING, HE DID NOT DEMAND A JURY INSTRUCTION ON MULTIPLE CONSPIRACIES.

Facts: Joe Mike Egan was appointed by the Court as standby/advisory assistance of counsel for this accused in the instant matter. The Indictment raised the possibility of multiple conspiracies. There was no instruction to the jury on multiple conspiracies. The failure of the assistance of counsel to demand the jury be instructed was ineffective on his part and set the stage for a possible re-trial on any other possible conspiracies within the language of the Indictment. The error could result in an other trial in violation of the double jeopardy clause of the Constitution. This error requires reversal with prejudice.

 

Ground Forty One - THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE FAILED TO MAKE SURE THE JURY UNDERSTOOD THE HODGEPODGE OF OVERT ACTS AND COUNTS IN THE INDICTMENT.

Facts: Joe Mike Egan was appointed by the Court as standby/advisory assistance of counsel for this accused in the instant matter. The Indictment fails to make any referencing to the Overt Acts and place those Overt Acts with any of Counts 2 through 15. The failure of the assistance of counsel to make sure the jury understood what they had voted guilty on was ineffective on his part and prejudiced this accused by having a jury vote on Counts they did not fully understand. Not only was this a denial of effective meaningful assistance of counsel but also denial of due process rights guaranteed to this accused by allowing the jury to not fully understand what it was they were doing. Except for this ineffectiveness on the part of this assistance of counsel the outcome of the proceeding would have been different. This error requires reversal with prejudice.

 

Ground Forty Two - THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE DID NOT DEMAND A VERDICT FORM THAT WAS CONSISTENT WITH THE LAW, INDICTMENT AND THE FACTS.

Facts: Joe Mike Egan was appointed by the Court as standby/advisory assistance of counsel for this accused in the instant matter. The Verdict Form in this cause did not reflect the law, the Indictment, or the facts. The assistance of counsel did not demand the correct verdict form be used by the jury. This is very easily shown by the fact, I was convicted of aiding and abetting in Counts 3 and 7, wherein I was the only named individual and there was no one named as the principal. Convicting without a principal for the offense of aiding and abetting, which requires a principal or some other person to commit an offense, is an impossibility. It was ineffectiveness on the part of the assistance of counsel to not demand a verdict form that would make sure the jury properly assigned culpability according to the law and the facts. This error requires reversal with prejudice. Had the assistance of counsel been effective and meaningful the outcome of this proceeding would have been different.

 

Ground Forty Three - THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE DID NOT MAKE SURE THE JURY WAS INSTRUCTED AS TO BILLY MACK O'NEILL'S REMOVAL/DISMISSAL FROM COUNT ONE AS AN ACCUSED AND YET STILL LEFT IN THE MANNER AND MEANS OF THE CONSPIRACY AS THE CENTRAL FIGURE, PARAGRAPH NO. 8., AND THE OVERT ACTS, WHERE HE AND/OR HIS ALTER EGO IS MENTIONED IN EVERY GROUP OF OVERT ACTS THAT MAKE UP EACH OF COUNTS 2 - 15.

Facts: Joe Mike Egan was appointed by the Court as standby/advisory assistance of counsel for this accused in the instant matter. Billy Mack O'Neill was removed/dismissed from Count One of the Indictment. Billy Mac O'Neill's alter ego and Billy Mack O'Neill were left in the text of Count One in the Manner and Means and the Overt Acts. There was no instruction to the jury as to how this all happened and what the jury was to think and how it was to assign culpability, i.e., the jury was confused. The assistance of counsel failed to demand the jury be instructed as to how Billy Mack O'Neill could be removed/dismissed from the Count One and yet he and his alter ego still left in the on the text of the Manner and Means and the Overt Acts. This failure on the part of the assistance of counsel caused the denial of this accused's right to effective meaningful assistance of counsel and the denial of the due process rights guaranteed to this accused. The harm and prejudice suffered by this accused is the denial of basic rights guaranteed to him by the Constitution. Had it not been for the ineffectiveness of the assistance of counsel the out come of this proceeding would have been different.

 

Ground Forty Four - THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE ALLOWED WITHOUT OBJECTION, AN INDICTMENT THAT CREATED TWO INTERPRETATIONS, ONE WHICH STATED AN OFFENSE AND ONE WHICH DID NOT STATE AN OFFENSE.

Facts: Joe Mike Egan was appointed by the Court as standby/advisory assistance of counsel for this accused in the instant matter. The Indictment alleged in Counts 3 and 7 the offense of aiding and abetting. The Indictment did not allege in Counts 3 and 7 who the principal was that this accused aided and abetted. No jury instruction was given explaining how this could happen and what the jury was to do in this situation. The jury was confused and didn't know what to do and the assistance of counsel lacked the professional expertise to demand a jury instruction on this particular matter. This error by the assistance of counsel constituted denial of effective meaningful assistance of counsel to this accused. This error also constituted denial of the due process rights of this accused. The harm and prejudice suffered by this accused was that he was convicted by a confused jury of an offense that was an impossibility in the law. These denials require reversal with prejudice.

 

Ground Forty Five - THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE FAILED TO HAVE THE COURT INSTRUCT THE JURY ON THE REQUIREMENT OF FINDING UNIFORM UNANIMOUS VERDICTS OF GUILT FROM THE MULTIPLE SELECTION OF CHOICES AVAILABLE TO THEM BY THE STRUCTURING OF THE INDICTMENT AND THE REMOVAL OF BILLY MACK O'NEILL AND O.M.B., W.D. MCCALL AND ASSOCIATES FROM THE CONSPIRACY COUNT.

Facts: Joe Mike Egan was appointed by the Court as standby/advisory assistance of counsel for this accused in the instant matter. The Indictment used the same words in Count One concerning aiding and abetting as it used in Counts 2 through 15 to allege aiding and abetting. This word use occurred in five different paragraphs of Count One. There are seven different interpretations of the words so used available to the jury to consider. The failure of the assistance of counsel to have the Court instruct the jury that they have to agree on only one interpretation in order to find guilt was ineffectiveness on the part of the assistance of counsel. The harm and prejudice suffered by this accused was that he could be found guilty without the uniform unanimous verdict required by the Constitution. This error also amounted to the denial of the due process rights guaranteed to this accused. All the different variations of this matter are laid out in the attached Memorandum of Law. This amounts to plain error and requires reversal with prejudice. The outcome of this proceeding would have been different except for the ineffectiveness of the assistance of counsel.

 

Ground Forty Six - THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE FAILED TO OBJECT TO THE USE OF THE INDICTMENT AS EVIDENCE AGAINST THIS ACCUSED.

Facts: Joe Mike Egan was appointed by the Court as standby/advisory assistance of counsel for this accused in the instant matter. The Indictment named Billy Mack O'Neill as the central figure in paragraphs no. 2 and 8 of the Manner and Means. When Billy Mack O'Neill was not to be found guilty of the overt acts then the overt acts became mere allegations of guilt and as such evidence on their own volition, independent of the actor of the evidence. Because Billy Mack O'Neill was removed/dismissed from Count One of the Indictment voided the mutual mens rea as only one party was being charged with the conspiracy, an impossibility. The failure of the assistance of counsel to object to the use of the Indictment as evidence against this accused was ineffectiveness and denial of his due process rights to be confronted by the witnesses against him. The harm and prejudice to this accused was the denial of constitutionally protected rights which is prima facie prejudice to this accused. Except for the ineffectiveness of the assistance of counsel, the out come would have been different. This error requires reversal with prejudice.

 

Ground Forty Seven - THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE FAILED TO MAKE SURE THE JURY UNDERSTOOD BILLY MACK O'NEILL COULD NOT BE USED AS AN AIDER AND ABETTER OF THE CONSPIRACY.

Facts: Joe Mike Egan was appointed by the Court as standby/advisory assistance of counsel for this accused in the instant matter. Billy Mack O'Neill was removed/dismissed from Count One of the Indictment, yet he was left in the text of the Manner and Means and the Overt Acts of the Conspiracy. The jury could have conceived Billy Mack O'Neill as an aider and abetter to the conspiracy and thus he could be the ONE guilty within the Overt Acts as the requisite entity to fulfill the obligation of the element as setforth to the jury. The harm and prejudice to this accused is that the jury could have assigned any small measure of culpability to Billy Mack O'Neill, when the Court said he could have none, to aid in the finding of guilt on this accused for Billy Mack O'Neill's role as the central figure. In addition to the denial of effective meaningful assistance of counsel by the assistance of counsel's failure to make sure the jury understood and was properly instructed as to Billy Mack O'Neill not being allowed any culpability whatsoever in the finding of guilt for this accused, the assistance of counsel also denied this accused his due process rights in that the jury misplaced culpability in finding guilt to this accused. This error requires reversal with prejudice. Except for the ineffectiveness of the assistance of counsel the out come of the proceeding would have been different.

 

Ground Forty Eight - THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE FAILED TO OBJECT TO THE COURT'S FAILURE TO INSTRUCT THE JURY THAT THE LONE INDIVIDUAL NAMED IN COUNTS 3 AND 7, THIS ACCUSED, COULD NOT BE CHARGED WITH AND CONVICTED OF A CHARGE, AIDING AND ABETTING, WHICH REQUIRES A PRINCIPAL.

Facts: Joe Mike Egan was appointed by the Court as standby/advisory assistance of counsel for this accused in the instant matter. The Indictment named this accused as the sole individual in Counts 3 and 7. In Counts 3 and 7 this accused was charged with aiding and abetting. Aiding and abetting requires a principal to commit an offense. One cannot aid and abet himself, it is an impossibility in the law. The assistance of counsel failed to have the jury instructed as to this requirement of the law. The assistance of counsel also failed to have the Verdict Form have a place on it for these Counts to name the principal of the substantive offense. The failure of the assistance of counsel to properly instruct the Court on the requirement to properly instruct the jury was ineffectiveness on his part. This failure on the part of the assistance of counsel also denied this accused his due process rights because his ineffectiveness allowed this accused to be convicted of an offense that is an impossibility. Except for the ineffectiveness of the assistance of counsel the out come of the proceeding would have been different.

 

Ground Forty Nine - THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE, HE FAILED TO HAVE THE JURY MAKE A DETERMINATION WHETHER THIS ACCUSED CONSPIRED TO AID AND ABET THE CONSPIRACY HE HAD WITH HIMSELF OR THIS ACCUSED AIDED AND ABETTED THE CONSPIRACY TO AID AND ABET HIMSELF IN THE COMMISSION OF A SUBSTANTIVE CRIME.

Facts: Joe Mike Egan was appointed by the Court as standby/advisory assistance of counsel for the accused in the instant matter. The Indictment used the same words in more than one place to charge or attempt to charge different offenses. To say the least, the jury was confused. A confused jury cannot be assumed to make the right choice in the law to find guilt. The assistance of counsel failed to have the Court properly instruct the jury so as to avoid confusion as to what the grand jury really charged and meant by the words used by them. This failure amounted to ineffectiveness on the part of the assistance of counsel and also constituted denial of effective meaningful assistance of counsel to this accused. This failure further caused the denial of the due process rights of this accused in that he could be convicted by a confused jury. The harm and prejudice is that the jury made the wrong choice and did not convict pursuant to the law or the Constitution. Except for the ineffectiveness of the assistance of counsel the out come of the proceeding would have been different.

 

Ground Fifty - THE ASSISTANCE OF COUNSEL PROVIDED BY THE COURT WAS INEFFECTIVE, BECAUSE, BY FAILING TO MAKE TIMELY OBJECTIONS AND DEMANDS ON THE COURT, HE ALLOWED THE STANDARD OF REVIEW TO SHIFT FROM HARMLESS ERROR TO THE STANDARD OF PLAIN ERROR.

Facts: Joe Mike Egan was appointed by the Court as standby/advisory assistance of counsel for the accused in the instant matter. Joe Mike Egan failed to make timely objections to such items as the Indictment and the Jury Instructions, to name a couple. The failure to make timely objections and demands on the court caused the standard of review to shift from harmless error to the tougher standard of plain error. This error was ineffectiveness and also constituted denial of due process and the harm and prejudice suffered by the accused was egregious. Had the assistance of counsel done his job in the light of Stricklin the outcome of the proceeding would have been different.

 

Ground Fifty-one THE ASSISTANCE OF COUNSEL APPOINTED BY THE COURT WAS INEFFECTIVE, BECAUSE HE DID NOT OBJECT TO THE USE OF INSTRUMENTS NOT PART OF THE ALLEGED CONSPIRACY, FOR WHICH NO PROPERTY, MONEY OR FUNDS WAS SOUGHT, TO BE ADDED TO THE AMOUNT OF "LOSS" FOR THE CALCULATION OF SENTENCE.

Facts: Joe Mike Egan was appointed by the Court as the assistance of counsel for this accused. At the conclusion of the trial, during the sentencing phase, a report known as the Pre-Sentence Report is filed with the Court by the Pre-Trial Services. In the PSR filed for this accused two instruments were added into the report, in paragraph number 33, for which there was no testimony or evidence entered into the record of the Court in the instant complained of cause. This addition of these two instruments and the lack of objection by the assistance of counsel raised the amount of time this accused would have to spend in custody by almost double. Because there was no such evidence or testimony during the trial, the assistance of counsel should have known that these two instruments were not part and parcel of the same alleged conspiracy as alleged in the Indictment. It was ineffective assistance of counsel not to make the objection and to see that evidence and items not part of the trial nor part of the alleged conspiracy were not added to the amount of "loss" to figure how much time was to be spent by this accused in custody.

 

13. If any of the grounds listed in 12A, B, C, and D were not previously presented, state briefly what grounds were not so presented, and give your reasons for not presenting them: _____________________________________________________________________________

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____________________________________________________________________________________

____________________________________________________________________________________

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14. Do you have any petition or appeal now pending in any court as to the judgment under attack? Yes ( ) No ( )

15. Give the name and address, if known, of each attorney who represented you in the following stages of the judgment attacked herein:

(a) At preliminary hearing ________________________________________________________

_______________________________________________________________________________

(b) At arraignment and plea _______________________________________________________

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(c) At trial _______________________________________________________________________

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(d) At sentencing _________________________________________________________________

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(e) On appeal ____________________________________________________________________

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(f) In any post-conviction proceeding _____________________________________________

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(g) On appeal from any adverse ruling in a post-conviction proceeding _____________

_______________________________________________________________________________

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16. Were you sentenced on more than one count of an indictment, or on more than one indictment, in the same court and at approximately the same time?

Yes ( ) No ( )

 

17. Do you have any future sentence to serve after you complete the sentence imposed by the judgment under attack? Yes ( ) No ( )

(a) If so, give name and location of court which imposed sentence to be served in the future: ________________________________________________________________________

_______________________________________________________________________________

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(b) And give date and length of sentence to be served in the future: _________________

_______________________________________________________________________________

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(c) Have you filed, or do you contemplate filing, any petition attacking

the judgment which imposed the sentence to be served in the future?

Yes ( ) No ( )

 

Conclusion and Demand

 

This Petitioner has shown this Court lacked subject matter jurisdiction over this Petitioner and the actions against him because none of the activity complained of occurred on land where the United States of America had exclusive legislative jurisdiction and the Court is not situated on land wherein it has authority to conduct criminal prosecutions and this petitioner was charged with a code violation that is inapplicable to him and the Comprehensive Crime Control Act of 1984 under which this petitioner was allegedly sentenced was not valid ab nitio, plus this petitioner had shown enough instances of due process violations and ineffective assistance of counsel to demand this Court dismiss the action with prejudice and order the immediate release of this petitioner and any other said relief this Court find necessary in the interest of justice.

Presented without prejudice.

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Signature of Petitioner