Back to Exhibit 6

POINT D: PRESSURING THE PETITIONER TO PLEAD GUILTY TO HIS CRIMINAL CASE FVA-06241 BY THREATENING TO USE ‘PRIOR CONVICTIONS’ ON CASES AND CRIMES THAT DID NOT OCCUR UNTIL AFTER THE CRIMES ALLEGED IN FVA-06241 OCCURRED, WAS AN EX POST FACTO LAW APPLICATION, IN VIOLATION OF PETITIONER’S RIGHTS UNDER THE UNITED STATES CONSTITUTION.

FACTS:

1. The petitioner has proven that allegedly in case no. FVA-06241, occurred on a date NO LATER than 8-20-96 (EXHIBIT: 1, attached to petitioner’s Habeas Corpus, is a warrant of arrest for case No. FVA-06241, thus proving that those said crimes had occurred on 7-27-96, PRIOR to 8-20-96). The petitioner has also proven that none of his Colorado crime allegations were alleged to have been committed until the date of 9-4-96 and after (Aff. p, 2).
    

2. Thus when the crime alleged in FVA-06241 had been committed, there were no “prior convictions” in Colorado because the said Colorado crimes had not yet occurred. Thus using the Colorado convictions to attempt to “strike out” the petitioner in his California case FVA-06241, is a retro-active application. Such a retro active application violates Ex-post facto laws. (Please see Ground: 4 of the petitioner’s Habeas Corpus petition for more facts and details). Also once the petitioner had pled guilty in this said case, he was given an aggravated sentence based on these said fictitious Colorado “prior convictions” (Habeas Corpus petition, Ground: 4).

ARGUMENT AND AUTHORITY:

3. Using the petitioner’s said Colorado convictions (which were based on crimes that had not yet been committed when the California case, FVA-06241 occurred) to pressure the petitioner into entering a guilty plea by threatening to use the Colorado convictions as “priors” to “strike him out” and give him a “life sentence” violated Ex-post facto law, and the petitioner entering a guilty plea based on such misinformation, makes his said guilty plea “unintelligently and unknowingly made” since the petitioner did not (as a layman), and could not, know “all of the elements” of the TRUE nature of the offense, and the TRUE possible penalties.
    

4. The Colorado Supreme Court has defined “Ex-Post Facto” laws as follows: “Ex-Post Facto laws are defined variously as: Every law that makes an action done before the passing of the law, and which was INNOCENT WHEN DONE, criminal, and punishes such action; every law that AGGRAVATES A CRIME or makes it GREATER than it was, WHEN COMMITTED; every law that CHANGES THE PUNISHMENT, and inflicts a GREATER PUNISHMENT, than the law annexed to the crime, WHEN COMMITTED, in order to convict the offender.” Myers V. District Court, 518 P.2d 836 (1974). This holding comports with Article 1, ss 8 of the U.S. Constitution which reads “No Bill of attainder or Ex-post facto law shall be passed.”
    

5. By using the petitioner’s Colorado convictions (crimes which had been committed AFTER the alleged crimes in FVA-06241 occurred) to aggravate his California case and to strike the petitioner out under the three strikes law, and threaten to give him a life sentence (when at most he should have only been facing a second strike and an 85% completion of sentence, at most), violated Ex-Post Facto laws because it “aggravated a crime” and “made it greater than it was…WHEN COMMITTED”. It is not the DATE OF CONVICTION that makes a “prior conviction” lawful for use to aggravate the penalty of a subsequent crime, it is THE DATE THE OFFENSE OCCURRED and was COMMITTED that determines whether or not a prior conviction is being applied retro-actively. The Supreme Court in Zaragoza V. Department of Rev., 702 P.2d 274 (Colo. 1985) held that: (“the time at which the OFFENSE WAS COMMITTED governs Ex-Post Facto character of law. Whether a law is Ex-Post Facto or not relates, in criminal cases, to the DATE the offense was COMMITTED”); People V. Bielecki, 964 P.2d 598 (Colo. App. 1998) (“The Ex-Post Facto clause is violated when a statute punishes as a crime conduct which was innocent when done, makes more onerous the punishment for a crime after its commission, or deprives a defendant of a defense that was available at the time the crime was committed”).
    

6. Not only did the California district Attorney’s office violate Ex-Post Facto law by using the petitioner’s said Colorado convictions (for crimes that had not even been COMMITTED when the alleged California crime was committed) and to threaten to USE those said fictitious Colorado “priors” to strike the petitioner out under the three strike law if he didn’t “take the deal” and plead guilty, violated Ex-Post Facto law prohibitions.  And actually USING the said Colorado convictions to AGGRAVATE the petitioner’s sentence on FVA-06241 after he pled guilty UNDER the fictitious threats, violated Ex-Post Facto law as well. Additionally, the fact that petitioner’s attorney did not see and prevent these said Ex-Post Facto law applications in this case caused the petitioner prejudice, and constituted INNEFFECTIVE ASSISTANCE OF COUNSEL, as the petitioner had no way of KNOWING (while being threatened with all types of sentence aggravations and excessive sentences based on the said fictitious Colorado “priors”). And thus because of all the above, the petitioner’s pleas in both FVA-06241 and FVA-10530 ;( FVA-10530 is include because the plea was entered as part of the “deal” made with FVA-06241) were unknowingly and unintelligently made.
    

7. “The crucial decision to reject a proffered plea bargain and proceed to trial SHOULD NOT be made by a defendant encumbered “with a grave MISCONCEPTION as to the VERY NATURE of the PROCEEDINGS and POSSIBLE CONSEQUENCES.” In re.Alvernaz, supra, Cal.4^th 924, 936 (1992). And that is exactly what has happened in the case at hand – when the petitioner pled guilty to FVA-06241 and FVA-10530 he had been misled by  unlawful threats of severe punishments from the D.A.(with his attorney saying nothing) and thus had a “misconception as to the VERY NATURE of the proceedings and POSSIBLE CONSEQUENCES.” And for those reasons his guilty pleas on cases FVA-06241 and FVA-10530 must be VACATED and withdrawn, and the petitioner allowed to plead anew based on the TRUE “nature” oh his case, and the TRUE “possible consequences” of the charges against him (this time without the unlawful Ex-Post Facto application of the petitioner’s Colorado “convictions” to “aggravate” the California case FVA-06241. The plea in FVA-10530 must be vacated as well since it was made in conjunction with, and as part of, the plea agreement made in FVA-06241).
    

8. In conjunction with the said Ex-Post-Facto/retroactive use of petitioner’s Colorado cases in attempts to threaten the petitioner with more severe punishment on FVA-06241 and FVA-10530, he has proven all of the following circumstances, each of which invalidate these said guilty pleas: a) Ex-Post facto law violation; b) coerced guilty pleas; c) unintelligently made guilty pleas; d) and ineffective assistance of counsel. For all these reasons separately, and combined, the petitioner requests the court to VACATE the said guilty pleas entered on cases FVA-06241 and FVA- 10530, VACATE the sentence and conviction, and allow the petitioner to plead anew.