FIRST JUDICIAL DISTRICT COURT COUNTY OF SANTA FE STATE OF NEW MEXICO No.

D-101-CV-2011-03927 STATE OF NEW MEXICO, Plaintiff, vs.

CARLOS FIERRO, Defendant/Petitioner, vs. JOSEPH GARCIA, WARDEN, Respondent.

FIRST AMENDED PETITION FOR HABEAS CORPUS Defendant Carlos Fierro, through his attorney, Ray Twohig, pursuant to Rule 5802, submits this petition for habeas corpus to challenge the constitutionality of his conviction. The grounds for this petition are 1. Defendant/Petitioner was, at the time of filing of this petition, a minimum

security prisoner at the Central New Mexico Correctional Facility, Los Lunas, New Mexico by virtue of the conviction entered in this Court in this case, and Respondent Joseph Garcia is its warden. As a minimum custody prisoner, Defendant/Petitioner was housed at the Farm. He has since been released on parole, and resides in California. 2. This proceeding is an extension of the criminal prosecution, and is

opposed by the State of New Mexico. The First Judicial District Attorney prosecuted and 1

obtained the convictions which are challenged in this proceeding. No prior habeas corpus proceedings have been filed by or on behalf of Mr. Fierro, and no prior exhaustion is required. A post judgment motion seeking to amend the judgment was filed in this proceeding, but was later withdrawn. 3. On November 26, 2008, Mr. Fierro was arrested and charged in a criminal

complaint filed in the Magistrate Court for Santa Fe County with one count of vehicular homicide and one count of leaving the scene of an accident involving death. On February 4, 2009, a Criminal Information was filed in this Court containing the same charges. These offenses arose out of an accident on November 26, 2008 in which a pedestrian was killed. 4. On October 2, 2009, a jury returned a verdict of guilty of vehicular

homicide, but was unable to reach a verdict on the second charge of leaving the scene of an accident involving death, resulting in a mistrial on that charge. On November 13, 2009, very shortly before a scheduled hearing on Defendants Motion for New Trial challenging the Courts mid-deliberation change of jury instructions on the elements of vehicular homicide, Mr. Fierro pled no contest to leaving the scene of an accident and agreed not to appeal the vehicular homicide conviction. He was sentenced to nine years of incarceration, with two years suspended, for a sentence of seven years, which he is presently serving pursuant to the Judgment, Sentence and Commitment entered on November 20, 2009. Pursuant to the plea agreement, Defendant was to be credited for all time served under electronic monitoring and confinement. The Judgment and sentence ultimately entered did not include all such time.

6.

Mr. Fierro was represented by the firm of Bowles and Crow, and by Robert

Gorence as second chair counsel and, to a more limited extent in a non trial capacity, by Colin Hunter. Counsel were retained by Mr. Fierros family soon after his arrest, and continued in the case until after the entry of the Judgment. Mr. Bowles was lead counsel. 7. Attorneys Bowles and Gorence were, in combination, a highly experienced

federal prosecution team, both having worked extensively in the United States Attorneys office for the District of New Mexico. Mr. Gorence had been a criminal defense lawyer for a number of years, and had considerable experience and success in defending criminal cases, including high visibility and complex criminal cases. Mr. Bowles had substantially less experience as a criminal defense lawyer with very few state criminal defenses behind him when retained, and, for that reason, successfully recommended to Mr. Fierros family that Mr. Gorence be retained as part of the defense team. Mr. Crow was less experienced, but an able lawyer. As Mr. Bowles partner, he had a limited role in this case. 8. Mr. Bowles was primarily responsible to coordinate and prepare the

defense of the criminal charges and to take the lead role in trial. Two other lawyers were to assist in the defense, with responsibilities designated by Mr. Bowles. Mr. Bowles was ineffective in this role, which limited the effectiveness of the other lawyers. The deficiencies combined to render constitutionally ineffective assistance of counsel to Defendant Fierro, and included the following:

I. 9.

MEDIA Mr. Fierro was soundly and repeatedly excoriated in the local media in the

Santa Fe area, where the jury pool would be drawn. The family of the deceased pedestrian, who are professional political operatives with experience in media relations, realized that a media campaign would be important and, together with a professional media and political consultant , worked along with inaccurate leaks from the Santa Fe Police Department to manipulate public opinion about the accident. They were very effective in convincing the news media to portray Mr. Fierro in a highly negative and inflammatory manner, motivated significantly by a presumed relationship to Governor Richardson and other public figures as well as the identity of his passenger. The headlines characterized him as a killer, said his case was high profile, said he was politically influential, that he killed, impaled, struck the pedestrian, and otherwise was grossly intoxicated and painted him as clearly guilty. They promoted the view that a double standard of political influence was involved before the facts and evidence were known in order to deter decision makers in his case from ruling in his favor. Substantial additional false information was repeated, such as dual citizenship, substantial property ownership and financial wealth that would influence the process. The media was at its worst, consistently selecting fragments out of context to characterize Mr. Fierro negatively and maintaining the story of the case in repeated segments for lengthy periods while labeling the deceased and his family as nonpolitical and misstating many known facts. Bloggers compounded the damage from the false labeling with anonymous commentary used by Santa Fe Police Department and others close to the

case to justify politicizing and sensationalizing the case in unprecedented ways in this area. 10. Mr. Fierro urged his attorneys to accept the assistance of people who

were willing to help guide the appropriate response and correct the inaccurate claims in the aggressive public media campaign being conducted against him. Since causation was the critical issue in the case, had the media been balanced or at least offset by the attorneys by readily avialble means, a fairer trial would have been possible. Despite many requests by Mr. Fierro, his attorneys virtually shut out the media and even alienated some reporters unnecessarily. Their occasional comments were random and poorly structured, resulting in little public awareness of the causation issue prior to trial, a deficiency which continued during the trial. This was a serious shortcoming in this very high visibility case, and was a mistake which experienced criminal defense attorneys dont normally make because it is common knowledge among defense lawyers that the information, true or false, which the prosecution and police place in the public arena, will have an influence on the jury pool which will be difficult to ferret out during voir dire, and impossible to eliminate during trial II. 11. ACCIDENT RECONSTRUCTION The Santa Fe Police Department modified its accident reconstruction in

the case once it became evident that any driver in Mr. Fierros position likely could not have avoided this accident. Upon learning this, the Santa Fe Police Department leadership removed officers and experienced investigators and accident reconstructionists from the case, and replaced them with less experienced officers who were willing to slant the case to strengthen the prosecution of Defendant Fierro by 5

ignoring key physical evidence and witness statements. The substitute police investigation was virtually indefensible, and the first one was shielded from the defense, the evidence being suppressed in violation of the rule long ago established in Brady v. Maryland, 373 U.S. 83 (1963) and later expanded in Kyles v. Whitley, 514 U.S. 419 (1994) and applied in federal habeas corpus to police in New Mexico withholding evidence in Smith v. Secretary, New Mexico Department of Corrections, 50 F.3d 801 (10th Cir. 1995). Though Mr. Fierro and his family learned some information outside of the discovery process about this shift, and informed defense counsel, this critical area was not followed up on nor effectively developed by defense counsel prior to trial, and not effectively demonstrated at trial. Had this been done, the original investigator could have easily been called upon to explain his conclusions, his statement could have been taken prior to trial, and motions could have been filed concerning the issue to compel full disclosure. In the absence of adequate pretrial preparation by the defense lawyers, Mr. Fierros uncle located a qualified lighting expert to identify the deficiencies in lighting, the visual picture a driver in Mr. Fierros position would see and to review the States analysis and calculations. This whole area, central to the case, did not get meaningful attention by defense counsel, despite repeated urging by Mr. Fierros family members and friends. The defense attorneys failed multiple times to meet or speak with the expert, mark Green, to coordinate his pretrial interview, and failed to pay him for the work he did despite payment of ample fees by Defendant and his family. 12. Bowles and associates did not interview the States final accident

reconstructionist and probe his conclusions, nor did they interview the original accident reconstructionist. Their failure to do so prevented them from being fully aware of the 6

Santa Fe police manipulation of the evidence, and thus they were ineffective in exposing it and demonstrating its importance to the central issue in the case. Because the Defense did not develop this area in any meaningful way, and due to the fact that the Santa Fe Police reconstruction was so deficient, the State did not call any reconstructionist to testify at trial, and neither did the defense. Moreover, they failed to provide sufficient information to their initially retained accident reconstructionist and lost him because of their inattention. Thereafter, when another accident reconstructionist, was located by Mr. Fierros family and made available repeatedly to Mr. Bowles and his cocounsel, they failed to meet with him and consult with him on the case as any reasonably competent attorney would do, until moments before his testimony. They were thus unprepared to effectively present his conclusions. Mr. Fierro and his family met with the witness, but counsel got involved too late in this central aspect of the case. They made him available for a prosecution interview very late, and ineffectively presented his testimony at trial due to lack of preparation time with the witness. Finally, a very important witness, Mark Green, a lighting and visual expert, was not made available for prosecution interview due to neglect of the defense team, and defense counsel were forced to abandon him as a witness on a pretext justification, despite his substantial importance to the causation issue. Major facets of the accident reconstruction area were omitted from the trial of this case. The State was relieved. One trial prosecutor was later overheard to say, Thank God they didnt challenge the investigation. He was rightit was not effectively challenged, and could have been with very little real preparation, the retention of and full cooperation with a highly qualified accident reconstructionist shortly after counsel was retained should have been followed 7

by development and implementation of a strategy which sought to present the truth, and which placed the issue at the center of the case through presentation of evidence of these various components of causation. A. 13. LIGHTING

The accident occurred on a moonless night in an area where several

streetlights were burned out and visibility was limited. A videotape was taken by Mr. Fierros uncle showing the lighting as it was that night which demonstrated the inability to view pedestrians in the roadway. This was done only a few days after the accident, was provided to Bowles & Associates then apparently not turned over to the State, and reportedly lost by Bowles office. The level of lighting is a key factor in reconstruction of the accident. Though efforts were made to obtain City of Santa Fe records concerning the lighting complaints and repairs, etc, that information was not developed because the defense team started late, and failed to seek information from PNM rather than the City until several months after they had been made aware of the lighting issue. So, when Mr, Vick, the sole testifying defense accident reconstructionist, testified as a witness, he was undermined effectively by the State concerning the lighting, as well as his limited opinions which had not been discussed with him. His testimony, as a result, was underdeveloped, focused on the wrong issue, and consequently failed to have an effective impact on the jury. B. 14. VEHICLE PATH, ACCIDENT DETAILS AND SPEED

This area was inadequately developed through expert analysis. This left

the prosecution to try the case without putting on any expert, and left prosecutors open to argue speculative theories. A capable defense preparation would have made 8

available police reports, witness statements of the prosecution witnesses, blood spatter evidence, bodily injury reports, medical evidence, and full police reports to an experienced defense expert reconstructionist. Such an expert would have testified to key conclusions demonstrating that Mr. Fierros driving was not a cause of the accident, and would have refuted the SFPD accident reconstruction as without any basis. The difficulty of seeing the pedestrian in dark clothing under poor lighting on a moonless night was compounded by his inattentiveness (he was walking backwards and talking on a cell phone) as well as the awkward path necessary to navigate this area with new low medians which cant be detected easily at night, and which are struck frequently by motorists in the area. The lack of early and effective focus on reconstruction in this causation case led to a poor presentation which engendered misunderstandings by the jury. Had Defense counsel focused effectively in this area, it is likely that there would have been no conviction for vehicular homicide. III. 15. LACK OF INVESTIGATION Bowles, et al. retained former New Mexico State Police officer, now

private investigator, Larry Trujillo as an investigator for the case. Mr. Trujillos investigations stopped short of what was necessary to fully defend this case. He is a very capable investigator who did not receive sufficient direction to follow up and develop defense witnesses. Many leads were reported to Mr. Bowles by various people, but not followed up through detailed scene and witness investigation. Yet, it was evident to Mr. Vick that the prosecution investigation was biased, notions were premature, insufficient and lacked in proof of Mr. Fierros guilt or innocence. The focus of pretrial investigation and negotiation, as directed by Mr. Bowles, was on assisting federal 9

agents and others in developing evidence against then-Governor Richardson and other democrats. These democrats had no role in this accident, but the defense team apparently believed that Mr. Fierro could benefit in some fashion by assisting the Federal Investigation of Governor Richardson, and apparently worked to persuade him to do so. IV. 16. LEVEL OF INTOXICATION Mr. Fierro did not dispute that he was drinking, but seriously disputed the

blood alcohol level which was reported, and the related quantity of alcohol he allegedly consumed. The blood draw was problematic and could have been challenged, but was not. Portions of a video which was shown repeatedly on television after being released by police but never was fully reviewed by Bowles & Associates, but were admitted in part in evidence. The entire video was not shown to the jury by the defense, which would have demonstrated Mr. Fierros relative sobriety and cast doubt on the level of intoxication claimed by the State. V. 17. CHANGE OF VENUE A change of venue from Santa Fe County was sought without sufficient

evidence being developed or produced in order to obtain one. Moreover, the attorneys sought a change to Rio Arriba County, where publicity was virtually the same as in Santa Fe County. VI. 18. WITNESSES AND TRIAL PREPARATION The State listed close to eighty (80) witnesses and few were researched

or looked into sufficiently to enable effective cross-examination. The defense attorneys did not press for a meaningful witness list in order to enable adequate preparation. A 10

great deal of the cross examination was done without any preparation, or based on limited preparation at the last minute, or while in trial. This meant that defense testimony could not be effectively developed and that the defense case was exceedingly weak because the weaknesses in the prosecution case had not been effectively exploited. Defense counsel failed to investigate witnesses whom defendant and his family advised them had exculpatory information. Had they done so, and exploited that evidence, they would have been able to effectively demonstrate the cover-up within the police department, the withholding of evidence, and the cause of the accident. 19. Mr. Fierro could not locate nor afford other attorneys and when the

relationship between him and Bowles became so strained due to surprisingly poor communication and preparation, and his repeated demands for more funds without any accounting of funds which had been paid, that Bowles resigned as counsel and stopped preparing. Nonetheless, he did not move to withdraw, but instead ultimately tried the case despite many efforts by Mr. Fierro and his family to change counsel. In particular, Mr. Fierro requested that co-counsel, Robert Gorence, take the lead role. Because of his friendship with Mr. Bowles and also because he was retained in the more limited capacity as second chair, and was unprepared to try the case in that role, Mr. Gorence declined to do so. VII. 20. THE TRIAL, INCLUDING PROSECUTORIAL MISCONDUCT The trial was an unmitigated disaster because of the lack of preparation

and a seriously deteriorated and dysfunctional relationship between Bowles and Fierro. Mr. Bowles expected the continuance he sought prior to trial to be granted and, when it 11

was denied, he simply was not prepared to try the case when it began. Mr. Fierro did not know he would testify until the jury was so advised during voir dire. There had been no final discussion with him concerning whether or not he should testify. The right to testify or not belongs exclusively to the client, not to the attorney, yet in this case, the attorneys made the decision without consulting with Mr. Fierro because of the strained relationship between them, the inadequate preparation time and the urgency which resulted from denial of the continuance motion. Surprisingly, although there was a full weekend between the testimony of the previous witness and Mr. Fierros testimony, there was virtually no time spent preparing him for that very important part of the trial. Incredibly, despite the very substantial array of possible defense witnesses, only two defense witnesses were called, Mr. Vick and Defendant Carlos Fierro. Most incredibly, despite his background, not a single character witness was sought nor developed by the defense, nor offered to support Mr. Fierro. Explanations by Bowles for these failures were contrived and not genuine, since the lack of preparation was the primary reason. These were not strategic decisions, but rather further examples of ineffective assistance of counsel due to lack of trial preparation. 21. Defense counsel were so unfamiliar with the evidence that they failed to

recognize that prosecutors were using damage to the car as an argument to demonstrate high speed, even though that damage was known to have been caused during towing when the car was dropped. 22. Defense counsel refused to subpoena tapes from the jail and hospital

which would have shown that officers were not present during the blood draw, as claimed. 12

23.

Defense counsel failed to investigate the possibility of or retain

toxicologists who, based on the amount Mr. Fierro ate and drank that night, could have testified that his blood alcohol level was below the legal limit. 24. Defense counsel failed to retain a jury consultant, and failed to investigate

jurors, reviewing jury questionnaires only briefly before voir dire began. Had they done so, they would have discovered that the juror who later became the jury foreman had a pending criminal charge which he had failed to disclose on his jury questionnaire and during voir dire, and, had they further investigated, they would have discovered that jurors former or current girlfriend had a sister who was or had recently been a sister in law of the States jury consultant. Had they pursued this issue, they would have seen that the pending criminal charge was known to the State and that they did not excuse that juror. This would have come to light once the hidden lawyer jury consultant of the state was known, and the jurors acquaintance/relationship to him was known, and they then should have moved to strike him from the jury out of concern he would rule against Mr. Fierro in order to curry favor in his own pending criminal case. Upon information and belief, after the foreman guided the jury to the guilty verdict, his criminal charge(s) were dismissed by the same District Attorneys office. The failure of the State to disclose its hidden jury consultant lawyer and, especially, his relationship with the eventual jury foreman also constituted prosecutorial misconduct which denied Mr. Fierro due process and the right to a trial by jury in violation of federal and state constitutions. Once the hidden jury consultant attorney became known, the States failure to disclose this relationship to the defense and to make it available to the Court during the inquiry of already seated jurors magnified the misconduct and constitutional violations. 13

25.

Mr. Bowles and Mr. Crow proposed jury instructions. The trial court gave

one of the proposed instructions rather than the uniform jury instruction as the elements instruction on causation, and then, when the jury asked a question four (4) days into the deliberations, the prosecution objected to that previously given instruction, and the trial judge changed the instruction to the correct UJI instruction. This meant that the causation instruction had an entirely different meaning, which undermined the closing argument the defense had already given on the basis of the prior instruction to the jury. The Motion For New Trial raised this issue and sought appropriate relief. The judge had denied a mistrial during deliberations, but never got an opportunity to consider the motion for new trial, nor did any appellate court. The trial judge said at the time he decided to give the changed instruction that this may be the basis for a mistrial, or basis for a new trial. VIII. 26. THE PLEA AND AFTERMATH The Motion For New Trial was incomplete and insufficient, failing to raise

jury issues described above, and it was never heard. It was set for hearing on the morning Mr. Fierro was to be sentenced on the vehicular homicide conviction, according to his attorneys. The pressure applied by defense counsel on Mr. Fierro to enter the plea was astronomical and the time constraints indefensible. Mr. Bowles failed to meet with Mr. Fierro the weekend prior to the hearing despite numerous requests that he do so. Mr. Fierro had been placed in custody after the jury verdict, and six weeks later was transported to the courthouse for the motion hearing and apparently also for sentencing, without any communication with Mr. Bowles about a proposed plea agreement or about the plan for the sentencing proceeding. No witnesses had been arranged by the 14

defense for the sentencing. Unbeknownst to Mr. Fierro, however, Mr. Bowles had earlier been able to negotiate a plea agreement which, if accepted by Mr. Fierro, would relieve Mr. Bowles of further responsibility in the case and avoid the necessity for a public argument as well as an appeal concerning the mid deliberation elements jury instruction change. This agreement had been provided in draft form to Mr. Bowles based upon apparently concluded negotiations, but Mr. Fierro was not informed of it nor provided a copy of it until minutes before the plea had to be entered, according to the attorneys. Mr. Fierro had seen no presentence report, nor had he been interviewed by the probation office concerning sentencing, although he was told the sentencing would take place immediately after the motion hearing that morning. There had already been adverse editorial comment arising from the jury instruction and Mr. Bowles likely limited public embarrassment was going to increase if the hearing was held. Moreover, during the course of efforts to persuade Mr. Fierro to accept the plea agreement which Mr. Bowles had negotiated, defense counsel made inaccurate and unjustified promises and assurances concerning the time he would serve in prison and his ability to return to law practice through reinstatement of his law license. Mr. Fierro, though he was a licensed attorney, he was not a criminal defense lawyer, and had no knowledge nor experience which enabled him to realize that these representations were false. He was also prevented from consulting with family members or attorney friends, because he was assured by Mr. Bowles and Mr. Gorence that he would receive a very substantial sentence immediately after the impending hearing on the Motion for New trial, and was also assured that motion would be denied by the trial judge. The contrived haste with which the decision was demanded gave him inadequate opportunity to understand its 15

impact and weigh its wisdom against the alternative approach of being sentenced if the motion was denied, appealing the conviction with new counsel and retrying the leaving the scene charge with new counsel. The plea was coerced by Mr. Bowles and Mr. Gorence without adequate time for Defendant Fierro to consider it. He followed the script laid out for him during the hearing. 27. After the plea, the testimony of Mr. Vick was followed by his letter to Judge

Vigil. In it, he made clear that the pedestrian caused his own death. He said, Mr. Tenorio was Jaywalking, was intoxicated, was walking in darkness while dressed in dark clothing, he was preoccupied with his cell phone and he carelessly presented the obstruction in the middle of the roadway where vehicles travel by inattentively walking into the path of a readily identifiable approaching BMW. Circumstances such as these have led to dismissals of vehicular homicide charges in other cases. There are many publicly reported examples of favorable treatment received by some drivers where the victims had used alcohol, drugs, were suicidal, or merely walked in front of the vehicle, as here. These examples highlight a key point in this caseMr. Fierro was treated differently. Mr. Vick points out he was prejudged guilty, and it was not only the jurys prejudgment, but was also that of the media. The causation issue was underdeveloped at trial, but with a properly selected jury in a neutral venue, and with better presentation of the causation issue, he would have been acquitted. And in many places, absent the political aspects of the case, he would have pled guilty to DWI. As Mr. Vick said in his letter: This was not a case where an intoxicated driver caused the crash, the pedestrian did. Mr. Fierro did not jump a curb and strike Mr. Tenorio on the sidewalk. Mr. Fierros mistake was being under the influence when Mr. Tenorio walked in front of him. 16

28.

Mr. Bowles and other defense counsel failed to exercise the diligence and

professional responsibility essential to effective assistance of counsel for Petitioner. He did so in the following respects, among others not yet identified: a. Failed to adequately investigate the facts surrounding the accident, and to direct his retained investigator in a manner which would have assisted in the defense of the criminal case, directing instead that the investigation and negotiations focus on making Mr. Fierro a prosecution witness against others, particularly then-Governor Richardson and other Democrats. A very substantial portion of the time spent on the case by defense counsel was directed to this theme, with special emphasis on assisting federal investigators who were focusing on charging Governor Richardson with federal crimes. b. Failed to take sufficient witness statements as permitted by Rule 5503 in order to develop the causation issue. c. Failed to seek, identify and retain as well as to effectively use essential expert witnesses relating to causation. Likewise failed to follow up on and develop evidence that the Santa Fe Police Department investigation had initially concluded that the pedestrian caused the accident and that it would have been unavoidable to any driver in Mr. Fierros position. Failed to consult with a jury selection specialist or, to themselves investigat prospective jurors and, once the hidden jury consultant was discovered, failed to fully 17

explore the relationships between that consultant, his family members and jurors. The jurors were asked to identify knowledge of the jury consultant, and the foreman failed to disclose that knowledge. d. Failed to adequately consult with and communicate with Defendant Fierro. e. Coerced and manipulated Mr. Fierro to accept the plea agreement which had been negotiated based, in large part, upon misrepresentations of the consequences of the plea and by minimizing the likelihood of success on the appeal of his conviction for Vehicular Homicide. f. Failed to develop available evidence which would have exonerated Mr. Fierro and failed to develop or even explore the details of the trial strategy and failed to meaningfully discuss it with Mr. Fierro even though he was an attorney who was capable of effectively cooperating with his attorneys. Failed to properly and fairly inform Defendant of the likely consequences of entering into the negotiated plea agreement. g. Coerced Mr. Fierro into entering into the plea agreement in this case by misrepresenting key facts, distorting the realities which the Defendant faced, and failing to discuss or advise him of alternatives while creating artificial time pressures which had an additional coercive effect. 18

h.

Failed to assure that the plea agreement was followed by ineffectively allowing insufficient pretrial confinement time to be included in the judgment, costing the Defendant additional time in prison.

29.

Had counsel conducted a complete investigation, taken key witness

statements, worked with expert witnesses in a normal and professional manner, they would have been in a better position to defend Mr. Fierro in the trial on both counts, with a probable outcome of acquittal. 30. Had Mr. Fierro been aware of the misrepresentations of his attorneys

concerning the consequences of their proposed plea agreement, been given the time necessary to consult with family members and others, and considered available alternatives, he would not have entered into the plea agreement, would have instead directed that the motion for new trial proceed to hearing, and, if denied, that an appeal be taken to the New Mexico Court of Appeals. He would have retained different counsel for that purpose. The retrial of the second charge could then have proceeded with different retained counsel. 31. The States failure to disclose a police investigation which would have

exonerated the defendant at trial by showing his driving was not a cause of the accident, but rather that it was pedestrian caused, Defendant was denied due process of law at the trial of this matter. His conviction must be reversed for the reasons more fully explained in Smith v. Secretary, New Mexico Department of Corrections, 50 F.3d 801 (10th Cir. 1995).

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32.

The use of a hidden attorney under contract to the District Attorneys office

using federal search tools and other means to investigate jurors was discovered part way through trial by defense counsel. The failure to disclose the existence of the attorney, who is well known in the Santa Fe area, to prospective jurors to determine whether they knew or had been represented by him or his family members constituted prosecutorial misconduct. That attorney was well known to the eventual foreman of the jury, who had a pending criminal case, and who had a prior relationship with that attorneys sister. The failure to discover and explore this relationship, and to seek to exclude that juror from the jury, had a major impact on the verdict in this case. Post trial interviews with jurors revealed his influence on the final verdict. In the event of an appeal of his Vehicular Homicide conviction, Defendant could have presented these issues, but the plea agreement prevented him from doing so. 33. The Judgment and Sentence had 299 days of presentence confinement,

in violation of the term of the plea agreement requiring that it include time served under electronic monitoring and confinement. The failure to assure that all time was included constitutes additional ineffective assistance of counsel. Wherefore Defendant prays that this Honorable Court enter the writ of habeas corpus, vacate his plea, vacate his convictions, and set this case for a new trial.

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Respectfully submitted, RAY TWOHIG, P.C. /s/ Ray Twohig __________________________ Ray Twohig Attorney for Petitioner 8998 Rio Grande Blvd., N.W. Albuquerque, NM 87114 Phone: (505) 898-0400

I certify that a true and correct copy of the foregoing Amended Petition for habeas corpus has been served on the District Attorneys Office and the Appellate Division of the Attorney General by email on February 18, 2013. /s/ Ray Twohig ________________________ Ray Twohig

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