Case 3:14-cv-01309-D Document 1 Filed 04/10/14

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MOTION UNDER 28 U.S.C. 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY United States District Court Name (under which you were convicted): RONALD W. SLOVACEK Place of Confinement: Federal Prison Camp, Leavenworth, Kansas UNITED STATES OF AMERICA
v.

District

Northern District of Texas

Docket or Case No.: 3:07-CR-289-M (12) Prisoner No.: 37125-177

Movant (include

name under which you were convicted)

RONALD W. SLOVACEK

MOTION 1. (a) Name and location of court that entered the judgment of conviction you are challenging:

United States District Court, Northern District of Texas, Dallas Division

(b) Criminal docket or case number (if you know): 3:07-CR-289-M (12) 2. (a) Date of the judgment of conviction (if you know): 4/28/2011 (b) Date of sentencing: 4/22/2011 3. 4. Length of sentence: 84 months (Count 12), 60 months (Count 10), 84 months (Count 19) Nature of crime (all counts):

Count 10: 18 USC 371, 666(a)(1)(B) & (a)(2) - Conspiracy to Commit Bribery Concerning a Local Government, Receiving Federal Benefits, 60 months Count 12: 18 USC 666(a)(1)(B) & (2) - Theft or bribery concerning programs receiving Federal funds and Aiding and Abetting, 84 months Count 19: 18 USC 1956(h), Conspiracy to Commit Money Laundering, 84 months

5.

(a) What was your plea? (Check one) (1)

Not guilty

(2)

Guilty

(3)

Nolo contendere (no contest)

(b) If you entered a guilty plea to one count or indictment, and a not guilty plea to another count or indictment, what did you plead guilty to and what did you plead not guilty to?

N/A

6.

If you went to trial, what kind of trial did you have? (Check one)

Jury

Judge only

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7. 8. 9.

Did you testify at a pretrial hearing, trial, or post-trial hearing? Did you appeal from the judgment of conviction? If you did appeal, answer the following: (a) Name of court: United States Court of Appeals for the Fifth Circuit (b) Docket or case number (if you know): 11-10462

Yes Yes

No No

(c) Result: Conviction Affirmed 12/14/2012, Rehearing Denied 01/25/2013 (d) Date of result (if you know): 1/25/2013 (e) Citation to the case (if you know): 500 Fed. Appx. 360 (Opinion), Rehearing, See Exhibit 1 (f) Grounds raised:

District court erred in denying the motion to dismiss the superseding indictment District court erred in giving an Allen charge to the jury. Insufficient evidence to support convictions

(g) Did you file a petition for certiorari in the United States Supreme Court? If Yes, answer the following: (1) Docket or case number (if you know): (2) Result: (3) Date of result (if you know): (4) Citation to the case (if you know): (5) Grounds raised:

Yes

No

10. Other than the direct appeals listed above, have you previously filed any other motions, petitions, or applications concerning this judgment of conviction in any court? Yes No 11. If your answer to Question 10 was Yes, give the following information: (a) (1) Name of court: (2) Docket or case number (if you know): (3) Date of filing (if you know):

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(4) Nature of the proceeding: (5) Grounds raised:

(6) Did you receive a hearing where evidence was given on your motion, petition, or application? (7) Result: (8) Date of result (if you know): (b) If you filed any second motion, petition, or application, give the same information: (1) Name of court: N/A (2) Docket or case number (if you know): (3) Date of filing (if you know): (4) Nature of the proceeding: (5) Grounds raised: Yes No

(6) Did you receive a hearing where evidence was given on your motion, petition, or application? (7) Result: (8) Date of result (if you know): (c) Did you appeal to a federal appellate court having jurisdiction over the action taken on your motion, petition, or application? (1) First petition: (2) Second petition: Yes Yes No No Yes No

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

12. For this motion, state every ground on which you claim that you are being held in violation of the Constitution, laws, or treaties of the United States. Attach additional pages if you have more than four grounds. State the facts supporting each ground. GROUND ONE:

Movant received ineffective assistance of trial counsel.

(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

Prior to Movants decision to proceed with trial, trial counsel Mr. Gibson said to Movant that the U.S. attorney's office made an offer for Movant to plead guilty to a bribery conspiracy charge and that Movant would face no greater than a 60 month sentence. Trial counsel informed Movant that if Movant pleaded guilty, Movant would receive a sentence not greater than 60 months and most probably substantially less than 60 months. Movant asked trial counsel what the probable outcome of sentencing was if Movant were to proceed to trial and were convicted on all three counts. Trial counsel informed Movant that based on his experience, trial counsel thought that Movant would receive a sentence of no greater than between 36 and 44 months if Movant were to proceed with trial and be found guilty on all charges. Movant asked trial counsel of his confidence in proceeding to trial and trial counsel informed Movant that he had a winnable case and was confident in proceeding with trial. Movant relied upon the conversation and counsel that trial counsel provided to him to make a decision as to whether to proceed to trial considering the probable worst-case scenario for sentencing as described and advised by trial counsel. Movant relied upon trial counsel that this would be no more than 44 months whether Movant pleaded guilty or was found guilty at trial. See Exhibit 2.

(b) Direct Appeal of Ground One: (1) If you appealed from the judgment of conviction, did you raise this issue? Yes No (2) If you did not raise this issue in your direct appeal, explain why:

Did not have sufficience evidence in the record to raise this issue on direct appeal. Attorney who represented Petitioner at trial also represented Petitioner before the Court of Appeals
(c) Post-Conviction Proceedings: (1) Did you raise this issue in any post-conviction motion, petition, or application? Yes No (2) If your answer to Question (c)(1) is Yes, state: Type of motion or petition: Name and location of the court where the motion or petition was filed:

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Docket or case number (if you know): Date of the courts decision: Result (attach a copy of the courts opinion or order, if available):

(3) Did you receive a hearing on your motion, petition, or application? Yes Yes Yes No No No (4) Did you appeal from the denial of your motion, petition, or application? (5) If your answer to Question (c)(4) is Yes, did you raise this issue in the appeal? (6) If your answer to Question (c)(4) is Yes, state: Name and location of the court where the appeal was filed: Docket or case number (if you know): Date of the courts decision: Result (attach a copy of the courts opinion or order, if available):

(7) If your answer to Question (c)(4) or Question (c)(5) is No, explain why you did not appeal or raise this issue:

GROUND TWO:

Petitioner received ineffective assistance of trial counsel.

(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

Trial counsel failed to investigate the issue of the wiretap evidence and seek expert assistance and testimony prior to trial. An expert has concluded that: (1) the wiretap evidence was not proper; (2) the use of voice recordings without the proper call-identifying information is improper and not scientific; (3) because in order to order a Title III wiretap, law enforcement must have complete a 30-day Trap and Trace, the evidence presented is unverifiable as presented; (4) and without the best evidence, the trial courts authorizations, and minimization report, this evidence should not have been allowed in trial; (5) Movant should have had the services of an expert in wiretap to assist his counsel in this matter, and it was not reasonable for the trial counsel and Mr. Slovacek to evaluate highly technical and specialized evidence without the assistance of an expert, who would have assisted Mr. Slovaceks attorney to evaluate the evidence; and (6) as a result, the defense had no process to determine if evidence presented by the FBI was valid, and the defense would not have had the ability to know if there was missing discovery. Therefore, the expert concludes that wiretap evidence that was essential to the defense of Mr. Slovacek either was not kept by the government or was not turned over to the U.S. Attorneys office by the FBI. See Exhibit 3.

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(b) Direct Appeal of Ground Two: (1) If you appealed from the judgment of conviction, did you raise this issue? Yes No (2) If you did not raise this issue in your direct appeal, explain why:

Did not have sufficience evidence in the record to raise this issue on direct appeal. Attorney who represented Petitioner at trial also represented Petitioner before the Court of Appeals
(c) Post-Conviction Proceedings: (1) Did you raise this issue in any post-conviction motion, petition, or application? Yes No (2) If your answer to Question (c)(1) is Yes, state: Type of motion or petition: Name and location of the court where the motion or petition was filed:

Docket or case number (if you know): Date of the courts decision: Result (attach a copy of the courts opinion or order, if available):

(3) Did you receive a hearing on your motion, petition, or application? Yes Yes Yes No No No (4) Did you appeal from the denial of your motion, petition, or application? (5) If your answer to Question (c)(4) is Yes, did you raise this issue in the appeal? (6) If your answer to Question (c)(4) is Yes, state: Name and location of the court where the appeal was filed: Docket or case number (if you know): Date of the courts decision: Result (attach a copy of the courts opinion or order, if available):

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(7) If your answer to Question (c)(4) or Question (c)(5) is No, explain why you did not appeal or raise this issue:

GROUND THREE: (a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) Direct Appeal of Ground Three: (1) If you appealed from the judgment of conviction, did you raise this issue? Yes No (2) If you did not raise this issue in your direct appeal, explain why:

(c) Post-Conviction Proceedings: (1) Did you raise this issue in any post-conviction motion, petition, or application? Yes No (2) If your answer to Question (c)(1) is Yes, state: Type of motion or petition: Name and location of the court where the motion or petition was filed: Docket or case number (if you know): Date of the courts decision:

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Result (attach a copy of the courts opinion or order, if available):

(3) Did you receive a hearing on your motion, petition, or application? Yes Yes Yes No No No (4) Did you appeal from the denial of your motion, petition, or application? (5) If your answer to Question (c)(4) is Yes, did you raise this issue in the appeal? (6) If your answer to Question (c)(4) is Yes, state: Name and location of the court where the appeal was filed: Docket or case number (if you know): Date of the courts decision: Result (attach a copy of the courts opinion or order, if available):

(7) If your answer to Question (c)(4) or Question (c)(5) is No, explain why you did not appeal or raise this issue:

GROUND FOUR: (a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

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(b) Direct Appeal of Ground Four: (1) If you appealed from the judgment of conviction, did you raise this issue? Yes No (2) If you did not raise this issue in your direct appeal, explain why:

(c) Post-Conviction Proceedings: (1) Did you raise this issue in any post-conviction motion, petition, or application? Yes No (2) If your answer to Question (c)(1) is Yes, state: Type of motion or petition: Name and location of the court where the motion or petition was filed:

Docket or case number (if you know): Date of the courts decision: Result (attach a copy of the courts opinion or order, if available):

(3) Did you receive a hearing on your motion, petition, or application? Yes Yes Yes No No No (4) Did you appeal from the denial of your motion, petition, or application? (5) If your answer to Question (c)(4) is Yes, did you raise this issue in the appeal? (6) If your answer to Question (c)(4) is Yes, state: Name and location of the court where the appeal was filed:

Docket or case number (if you know): Date of the courts decision: Result (attach a copy of the courts opinion or order, if available):

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(7) If your answer to Question (c)(4) or Question (c)(5) is No, explain why you did not appeal or raise this issue:

13. Is there any ground in this motion that you have not previously presented in some federal court? If so, which ground or grounds have not been presented, and state your reasons for not presenting them:

Grounds One and Two have not been previously presented. Did not have sufficience evidence in the record to raise this issue on direct appeal. Attorney who represented Petitioner at trial also represented Petitioner before the Court of Appeals

14. Do you have any motion, petition, or appeal now pending (filed and not decided yet) in any court for the judgment you are challenging? proceeding, and the issues raised. Yes No

If Yes, state the name and location of the court, the docket or case number, the type of

15. Give the name and address, if known, of each attorney who represented you in the following stages of the judgment you are challenging: (a) At preliminary hearing: (b) At arraignment and plea:

Michael P. Gibson, Carl D. Medders, 900 Jackson Street, Suite 330, Dallas, TX 75202
(c) At trial:

Michael P. Gibson, Carl D. Medders, 900 Jackson Street, Suite 330, Dallas, TX 75202
(d) At sentencing:

Michael P. Gibson, Carl D. Medders, 900 Jackson Street, Suite 330, Dallas, TX 75202

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(e) On appeal:

Michael P. Gibson, Carl D. Medders, 900 Jackson Street, Suite 330, Dallas, TX 75202
(f) In any post-conviction proceeding: (g) On appeal from any ruling against you in a post-conviction proceeding:

16. Were you sentenced on more than one count of an indictment, or on more than one indictment, in the same court and at the same time? you are challenging? future: (b) Give the date the other sentence was imposed: (c) Give the length of the other sentence: (d) Have you filed, or do you plan to file, any motion, petition, or application that challenges the judgment or sentence to be served in the future? Yes No Yes No Yes No 17. Do you have any future sentence to serve after you complete the sentence for the judgment that (a) If so, give name and location of court that imposed the other sentence you will serve in the

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18. TIMELINESS OF MOTION: If your judgment of conviction became final over one year ago, you must explain why the one-year statute of limitations as contained in 28 U.S.C. 2255 does not bar your motion.*

This petition is timely-filed within the statute of limitations period. The motion for rehearing was denied by the Fifth Circuit on January 25, 2013. See Exhibit 1. Under U.S. v. Gamble, 208 F.3d 536 (5th Cir. 2000), the judgment of conviction becomes final, triggering the statute of limitations, on the last day a petitioner has to petition the Supreme Court for certiorari. In this case, rehearing was denied on January 25, 2013. On April 24, 2013, the petition for writ of certiorari would have been due. Thus, the statute of limitations runs on April 24, 2014. Thus, this petition is timely-filed

* The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) as contained in 28 U.S.C. 2255, paragraph 6, provides in part that: A one-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of (1) the date on which the judgment of conviction became final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making such a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

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