Back to Exhibit 6

POINT B: THE PETITIONER HAS PROVEN THAT HE WAS RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL, WHICH RESULTED IN HIS CONVICTION ON CASE FVA-06241.

FACTS:

1. The petitioner has a right under the 14^th Amendment to the United States Constitution to be provided Equal protection of the laws and Due process, and thus the petitioner is entitled to effective assistance of counsel and representation in a criminal defense. (The petitioner herein incorporates the “facts” and “argument and authority” contained in point: A; ¶ ¶, 1-13 of this brief).
    

2. In addition, the petitioner has proven in his Habeas Corpus petition that; not only was the petitioner extradited to the State of California, from Colorado, well over the 180 day speedy trial limit for bringing the petitioner to trial on FVA-06241, thus mandating dismissal of the case with prejudice; the petitioner also proved that he informed his court appointed attorney, “Sheryl Brzuska”, of this fact (Aff. ¶ ¶, 15-21); that Ms.Brzuska had COPIES of all the documents petitioner has attached to his Habeas petition (EXHIBIT: 1 through 9) in her possession and in her own discovery file for about a month prior to the petitioner’s motion to dismiss for I.A.D. violations, was heard (Aff. ¶ ¶, 22-23)
    

3. The petitioner has also proven that he even found and pointed out to Ms. Brzuska some very strong and relevant case law that would help prove that a “detainer” had indeed been filed against the petitioner on 1-21-97 and has asked Ms. Brzuska to use those said case law citations to help her research and to use as relevant law in the petitioner’s motion to dismiss. (Aff. ¶, 24)
    

4. In the courtroom on 12-14-98, just minutes before the petitioner’s motion to dismiss was read and ruled by the Superior Court judge,  Ms. Brzuska confessed to the petitioner matter-of-factly, that she had not searched for any evidence to support the motion to dismiss FVA-06241; she had not used the case law given to her by  petitioner, nor searched for any supporting law because she “had not had time”; and that she hadn’t even drafted her own “motion to dismiss” for the matter, but had instead simply signed her name to the motion to dismiss an attorney who had been kicked off the case several months before had drafted, and filed that instead . (Aff. ¶, 25). Petitioner has proven this.
    

5. The petitioner has also proven that as a result of Ms. Brzuska’s incompetence in preparing the said motion to dismiss, the Superior Court denied the petitioner’s motion to dismiss and the case was ordered to proceed to trial (Aff. ¶ ¶, 26-27). Thus this proves that if not for the petitioner’s counsel’s incompetence, this case FVA-06241 would have been dismissed with prejudice, and being dismissed, the petitioner, of course, would have never pled guilty, since there would’ve been nothing to plead guilty TO.

ARGUMENT AND AUTHORITY:

6. The California Supreme Court has made it very clear that in cases, such as the one at hand, where the petitioner ended up pleading guilty to a case that might have had a different result if not for counsel’s incompetence, Habeas Corpus relief must be given and the conviction vacated. Please see In re. Alvernaz, 2 Cal. 4^th 924, 934 (1992) (“It is well settled that where ineffective assistance of counsel results in the defendant’s decision to plead guilty, the defendant has suffered a constitutional violation giving rise to a claim for relief from the guilty plea.”) The Supreme Court also held that:” To demonstrate that a defendant has received constitutionally inadequate representation by counsel, he or she must show that (1) counsel’s representation was deficient… (2) Counsel’s deficient performance subjected the defendant to prejudice, i.e., there is a reasonable probability that, but for counsel’s failings, the RESULT would have been more favorable to the defendant.” In re. Alvernaz, supra, at 963 (internal citations omitted).
    

7. The petitioner has met BOTH prongs of that said test quoted above in Alvernaz, supra. First, there is no doubt that petitioner has proven that his counsel’s representation, as described above, was deficient. Failing to look for evidence, research the applicable laws, and using somebody else’s motion because she “had not had time” in over a month to do it herself, is prima facie incompetence. And the second prong of the test is met because the petitioner has shown undeniable prejudice in the fact that he ended up pleading guilty and being convicted to a 17 year sentence on this case, because his counsel did not properly investigate the facts and caused the petitioner to be denied his properly grounded motion to dismiss.
    

8. See In re.Clark, 5 Cal. 4^th 750, 766 (1993) (to establish ineffective counsel…”The petitioner must demonstrate that counsel knew or should have known that further investigation was necessary…Prejudice is established if there is a reasonable probability that a more favorable outcome would have resulted had the evidence been presented, i.e., a probability sufficient to undermine confidence in the outcome.”) The petitioner has met all of the above said requirements for establishing ineffective counsel on case FVA-06241, and thus the petitioner requests that this court order the petitioner’s guilty plea on FVA-06241 be VACATED on these said grounds, and REMANDED back to the Superior Court to be prepared for trial. See Glass V. Vaughn, 65 F.3d 13 (3^rd cir.1994) ( Granting of Habeas Corpus appropriate where trial counsel’s ineffective assistance of counsel in failing to investigate petitioner’s case led to fundamental miscarriage of justice).