COMMONWEALTH OF VIRGINIA:

IN THE CIRCUIT COURT FORTHE CITY OF WINCHESTER

Mr. Jeffrey Franklin Washington #1027194! |! Petitioner! ! ! ! ! |! ! ! ! ! ! ! |! ! ! ! ! ! ! |! ! v. ! ! ! ! ! |! Case No. C94-3595-3602! ! ! ! ! ! ! |! ! ! ! ! ! ! |! ! ! ! ! ! ! |Commonwealth of Virginia! ! ! ! |! Respondent! ! ! ! ! |

(AMENDED*) MOTION TO VACATE VOID JUDGMENT

NOW COMES Mr. Jeffrey Franklin Washington, herein referred to as the petitioner pro

se, jurisdiction being properly founded in accordance with the exception rule of the

Rules of the supreme Court, Rule 1.1, in the proper manner, to wit:

MOTION TO VACATE VOID JUDGMENT

1. On proper application, the Petitioner moves this honorable Court to vacate judgment in

the matter of Commonwealth v. Jeffrey F. Washington; Case No C94-3595-3602, inclusive

or 94-CR-292-299, 339, 340, which contract and judgment was procured by means of

extrinsic and collateral fraud thereby rendering such contract and judgment Void ab initio.

The case of Hazraty v. Hazraty, CL-2006-10831 of August 22, 2007 has in its opinion

words relevant to the case of Commonwealth v. Jeffrey Franklin Washington:

“While it is true that more than twenty-one days have passed since the entry of both the November 15, 2006 Order and the January 18, 2007, Contempt Order under Va. Code § 8.01-428(D) the Court is empowered to set aside a judgment or decree for fraud upon the court at any time, even after more than twenty-one days have elapsed. When conduct by a party or counsel prevents the "fair submission of the controversy to the court” extrinsic fraud exists and the subsequent judgment is rendered void and may be attacked at any time.

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Per the Plea Agreement signed by Judge John E. Wetsel, Jr. on 28 February 1995, the case numbers are:Case No. 94-CR-292-299, 339, 340

Case No:C94-3595-3602Inclusive(Supplied by Court)

* Amended pages are (minor) 3, 9, 10, 11, 12, 13, 16, 18; (major) 25, 34; added page #ʼs: 22, iii (62), 63

-- 2007 Va. Cir. LEXIS 146,* Hazraty v. Hazraty CL-2006-10831 CIRCUIT COURT OF FAIRFAX COUNTY, VIRGINIA 2007 Va. Cir. LEXIS 146 August 22, 2007, Decided

Peet v. Peet, 16 Va. App. 323, 326, 429 S.E.2d 487, 490, 9 Va. Law Rep. 1305 (1993), Rook v. Rook, 233 Va. 92, 353 S.E.2d 756, 3 Va. Law Rep. 1944 (1987)”

2. § 8.01-428. Setting aside default judgments; clerical mistakes; independent actions to relieve party from judgment or proceedings; grounds and time limitations.

D. Other judgments or proceedings. - This section does not limit the power of the court to entertain at any time an independent action to relieve a party from any judgment or proceeding, or to grant relief to a defendant not served with process as provided in § 8.01-322, or to set aside a judgment or decree for fraud upon the court.

"Fraud consists of a false representation of a material fact, made intentionally and knowingly, with the intent to mislead, upon which the defrauded person relies to his detriment."

Peet v. Peet, 16 Va. App. 323, 326, 429 S.E.2d 487, 490 (1993).

3. Former Commonwealth Attorney Paul Thomson was arrested by Federal agents on

10 January 2011 for Evidence Tampering and Witness Tampering as a Defense Counsel in

a recent case, the same type of fraud and illegal behavior Thomson did as “prosecutor”, part

of a long chain of prosecutorial misconduct against Jeffrey Franklin Washington.

CASE HISTORY

4. ! On August 16, 1994, several gunmen entered the residence of 1028 Woodstock

Lane, in the City of Winchester in an apparent drug deal and robbery attempt.

5.! Present in the residence at the time of the crime(s) was Amy L. Hoover, Brandy

M. Helsley, Harvey W. Trent and Carlos D. Marshall. Marshall was subsequently fatally

wounded by a single gunshot. Some testimony puts Amy Ruble at the crime scene

also. Immediately after the crime, three (3) admitted firsthand eye-witnesses to the

crime, identified the assailants as, “one white male and one black male.” In support the

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eyewitness identification, investigators found a ski mask near the scene of the crime

which contained distinct hair fibers of a caucasian male.

6.! Later, William Beamer confessed that he was the black gunman that entered the

residence at 1028 Woodstock Lane on the night in question, but he did not test Positive

for Gun Shot Residue, so while a gunman, possibly Beamer did not FIRE a gun.

7.! However, later Gun Shot Residue Tests revealed that John Doleman tested

Positive, and separate testimony establishes that Doleman also carried a gun into the

Marshall apartment. Doleman is also black.

8.! William Beamer then identified an array of co-conspirators, numbering at least

five (5) other individuals who participated in the alleged crime. Beamer included the

petitioner in exchange for leniency by the Commonwealth. According to statement by

William Beamer, the Petitioner entered the residence with him and actually murdered

the victim, Mr. Carlos Marshall. William Beamer to this day has yet to identify the white

male who was his accomplice in the home intrusion.

9.! The Petitioner is a black African-American with distinct African features, including

eye and skin tone so it is impossible for him to be the second gunman identified by

eyewitness accounts as… white.

10.! John Doleman originally stated that the Petitioner Washington was NOT the

gunman, but after a Plea Bargain, changed his story to accuse Washington.

11.! All of the defendants named by William Beamer adamantly denied that petitioner

participated in this crime. This exculpatory evidence that exonerated the petitioner was

turned into inculpatory evidence for the Commonwealth through misconduct in the form

in the form of terror, threats and intimidation, and Plea Bargain deals for false testimony.

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12.! The prosecutor and its agents, then engaged in a campaign that launched a long

reign of terror, threats, and intimidation against any defense witness that was in

possession of exculpatory evidence that would exonerate the petitioner in an effort that

was deliberate, and done with malice, to prevent any defense witness from ever making

it to trial on behalf of the petitioner, thereby working as a means to prevent the petitioner

from ever being at trial by jury.

13.! The prosecutor and its agents also ordered material defense witnesses to the

actual crime not to talk with defense counsel or his agents, which is a clear violation of

Code of Virginia Professional Responsibility, DR8-102 (A)(3).

14.! Prosecutor and his agents then, on the second day of trial, February 28, 1995,

after jury had been impanelled and sequestered during a break after opening

arguments, Prosecutor did remove all defense witnesses from witness room and took

them directly to the prosecutorʼs personal office where prosecutor and its agents

methodically threatened, intimidated and terrorized defense witness from either taking

the stand or changing their testimony to perjured testimony on behalf of the prosecution

to avoid frivolous prosecution by the prosecutor.

15.! One defense witness was literally chased from the Court building in a state of

hysteria induced by the misconduct of prosecutor and its agents who terrorize this witness.

16.! Another defense witness was “hooked to a truth divine machine” and threatened with

accessary to murder and perjury charges if he testified on behalf of the petitioner even though

he had nothing to do with the crime. This witness was petitionerʼs primary alibi witness who

after this prosecutorial misconduct was reported to have changed his testimony from

exculpatory to inculpatory which was fraudulently induced by the prosecutors actions.

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17.! The testimony of this defense witness would have exonerated the petitioner or

raised reasonable doubt linking him to this present crime.

18.! The prosecutor then, arrogantly, informed the defense that they had no defense

because all the witnesses had mysteriously disappeared or changed the testimony and

the only option open was a plea agreement by contract.

19.! The prosecution deliberately and with malice, successfully prevented the

petitioner from “calling any evidence is his favor”, which was an abridgment and

infringement upon his right protected under the Virginia Constitution Article I § 8 and the

Sixth Amendment to the United States Constitution.

20.! This illegal misconduct by the prosecutor and his agents fraudulently induced a

guilty plea by forcing the petitioner into a contract into a contract to his injury pursuant to

Alford v. North Carolina 400 U.S. 25.

BASES FOR PETITION

21.! The petitioner, Mr. Jeffrey Franklin Washington is being detained illegally in the

Department of Corrections in the Commonwealth of Virginia by means of contract and

judgment that was procured by extrinsic and/or collateral fraud. Contract and judgment

procured by such fraud is “VOID”, therefore his present conviction and sentence is a

nullity and contract is void ab initio for the following reasons:

22.! Prosecutorial misconduct by the presenter and its agents when they deliberately

prevented the petitioner from a fair submission to the controversy by obstructing his

right to “call for evidence in his favor”, thereby preventing the petitioners putting forth his

defense in law and fact before the Court for adjudication.

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23.! Defense attorney who fraudulent pretends to represent his client, while conniving

to this defeat. And while being regularly employed sold-out the interest of his client in

this matter to his clientʼs injury.

QUESTIONS RAISED FOR ADJUDICATION

24.! Whether the prosecutor and his agents misconduct meets the standards of

extrinsic and/or collateral fraud when they, knowingly, with deliberate and malicious

intent, prevented the petitioner “from calling any evidence in his favor”, a right

safeguarded by the Virginia Constitution, Article I§8, and this Constitution for the United

States of America under the Sixth Amendment, thereby, constructive preventing the

petitioner from a fair submission to the controversy when:

! a.) intentionally kept all material defense witnesses with exculpatory evidence

from testifying before the Court on behalf of the petitioner by means of threats,

intimidation and a reign of terror, U.S. v. Hammond, 598 F. 2d 1008, and Washington v.

Texas 388 U.S. 14.

! b.) ordered material witnesses for the prosecution who were present during the

actual crime not to talk to defense counsel or his agents about events, Bobo v.

Commonwealth 187 Va. 324

! c.) concealed exculpatory evidence from the defense in violation of disclosure

rules of evidence which is supported by the United States Supreme Court in, Maryland

v. Brady 327 U.S. 83 and Cox v. Commonwealth 277 Va. 324.

! Thereby fraudulently inducing petitioner into a Plea contract to his own injury.

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25. ! Whether defense counsel, fraudulently pretending to represent the petitioners

while conniving to his defeat. And while being regularly employed sold-out the interests

of his client which amounted to extrinsic and/or collateral fraud when he:

! a.) knew of flagrant misconduct of prosecutor and his agents that prevented him

and in turn prevented his client, the petitioner, from preparing and presenting his

defense in fact and law, thereby, preventing a fair submission to the controversy and not

notify the Courts of such prosecutorial misconduct which he had a duty to the judicial

system and his client to do in accordance with the law and the Constitution of Virginia,

as well as the United States Constitution.

! b.) when defense attorney knew that his client, the petitioner, was fraudulently

induced into a contract by the prosecution by means of extrinsic and/or collateral fraud

and did nothing to prevent such misconduct.

! c.) And where defense attorneysʼ encouragement of this contractual agreement

with the commonwealth acted as a co-conspirator in this case of extrinsic and/or

collateral fraud when the defense counsel, John Prosser, knew of such misconduct that

fraudulently induced or was intended to induce his client into a contract to his injury and

encouraged his client to accept the contract instead of notifying Court of such

prosecutorial misconduct immediately and motioning for a mistrial which he was

obligated to do under the circumstances.

ARGUMENT

26.! Whether the prosecutor and his agents misconduct meets the standards of

extrinsic and collateral fraud when they, with deliberate and malice, prevented the

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petitioner “from calling for evidence in his favor” a right safeguarded by the Virginia

Constitution, Article I§8, and the United States Constitution under the Sixth Amendment

thereby preventing the petitioner from a fair submission to the controversy when they;

! a.) kept all material defense witnesses from testifying before the Courts on behalf

of the petitioners defense in fact and law by means of threats, intimidation, and a reign

of terror.

! b.) The prosecutor, Paul Thomson and investigator, James Bailous, from the

onset of this case, made a calculated decision to control the outcome of trial by keeping

the petitioner from presenting a defense in fact and law to be adjudicated before the

Court thus ensuring the Commonwealth would prevail. This was achieved by

threatening, intimidating and terrorizing every defense witness away from trial who

possessed material exculpatory evidence on behalf of the defense and who came

forward freely with such evidence.

! c.) The prosecutor and its agents began a long reign of terror that expanded over

a period of six (6) months, and touched every defense witness with exculpatory

evidence to ensure none of these witnesses ever made it to trial, thereby, preventing the

petitioner from calling for any evidence in his favor, thus ensuring the Commonwealth

would fraudulently induce a contract from the petitioner by means of extrinsic and / or

collateral fraud.

27.! And in support of such, the petitioner lists the following:

! a.) Ms. Joella Mason. Prosecutor and its agents threatened, intimidated and

terrorized this material defense witness who had exculpatory evidence, in calculated

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effort to prevent her from testifying to the truth as she knew it and to make her commit

perjury on behalf of the Commonwealth by changing her testimony to accommodate the

prosecutions theory in support.

! b.) Ms. Mason was threatened with long term incarceration as an accessory to

murder and felony perjury if she proffered her truthful testimony before the courts, even

though this witness had no connection or involvement in this crime.

! c.) She was also threatened by the prosecutor and his agents that if she testified

for the defense they would in turn ensure that her children would be wards of the state

for her actions. (refer to affidavit attached - Ms. Joella Mason - Exhibit #1, p. 23-24).

! d.) This material defense witness way virtually chased from the Court building in

a state of hysteria and tears induced by fear as an effect from the prosecutor and its

agents misconduct.

! e.) Ms. Mason was pulled from the witness room where she was sequestered

during a break in trial by jury, taken to the prosecutors personal office and was ran

through a gauntlet of terror by the prosecutor and his agents. After this intense

interrogation Ms. Mason fled the Court to save her self and her children.

! f.) Secondly, the day before scheduled trial by jury, the prosecutors agent called

Ms. Mason at her home and notified her that she didnʼt have to show-up for trial

because she wasnʼt needed, (refer to Exhibit # 1, p. 23-24).

! g.) This was another tactic employed by the prosecutor and its agents to prevent

this defense witness exculpatory testimony from being entered before the Court on

behalf of the defense.

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! h.) When this didnʼt work, the prosecutor and its agents resulted to more drastic

measures on the day of trial, in court, in the middle of a jury trial.

28.) Mrs. Stacy Washington: (Editor Note: Stacy Roberts at the time of the murder, and her Red Hyundai

was found on Franklin Street near the crime scene, after the murder.) After divorce, went back to Stacy Roberts.

! a.) A material defense witness for the defense in this case who had exculpatory

evidence to proffer on behalf of the defense in which she came forward freely and

voluntary to do so. The same tactics of threats, intimidation, and a reign of terror was

launched against this witness as Ms. Joella Mason, with the exception that this witness

out of fear never made it to court.

! b.) The prosecutor and its agents threatened this witness with long term

incarceration and the loss of her son who was an infant, if she testified on behalf of the

defense.

! c.) This misconduct was witnessed by Mr. Franklin Washington, and in addition a

formal complaint addressing this misconduct was filed by this witness but nothing was

done in the form of a remedy (refer to affidavit attached - Mrs. Stacy Washington -

Exhibit #2, p. 25)

29.) Russell Hayden:

! a.) On the day of trial, during a break in trial by jury, the prosecutor and his

agents (Editor Note: Prosecutor Paul Thomson and Police Detective James K. Bailous)

removed all defense witnesses from witness room where they were all sequestered,

took them to the prosecutorʼs personal office where the prosecutor and his agents were

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present. The Prosecutor and his agents then began to threaten, intimidate, and

terrorize these defense witnesses in a successful campaign designed to prevent those

witnesses from testifying to the truth as they knew it.

! b.) This particular witness was hooked “to a make believe truth divine machine”,

and ran through a gauntlet of terror, to include threats of charging the witness with

accessory to murder and felony perjury if he testified on behalf of the defense.

! c.) Witness taking the threats of prosecutor and his agents seriously, agreed to

commit perjury for the commonwealth in exchange for none prosecution of crimes he

had no connection or involvement in. Witness after prosecutorial misconduct changed

his testimony from exculpatory to inculpatory.

! d.) Defenseʼs primary alibi witness was now a star witness for the prosecution.

(refer to affidavit attached - Mr. Russell Hayden - Exhibit #3, p. 26-27)

30. ) Chuckie Boles III:

! a.) A material defense witness with exculpatory evidence was also threatened,

intimidated, and terrorized into not giving his exculpatory evidence before the Court in

defense of the petitioner by the prosecutor and his agents.

! b.) Chuckie Boles took the prosecutorʼs threats seriously and opted in lieu of

accessary to murder and felony perjury charges falsely lodged against him by the

prosecution that he would remain silent out of fear of retaliation from the prosecution

office. Again, this witness had no connection or involvement in the actual crime.

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31.)! Rudy Powell:

! a.) A material defense witness with exculpatory testimony from the onset of this

case. Mr. Powell for well over a three (3) month period informed the prosecution and all

of his agents, the defense attorney and all of his agents, that the petitioner, Mr. Jeffrey

Washington was not involved in this present crime, before, during, or after the fact.

! b.) This was also another star witness of the defense who volunteered freely to

testify on behalf of the petitioner to this exculpatory testimony.

! c.) After three (3) straight months of intense pressure from the prosecutor that

was relentless, the prosecutor and its agents through deliberate misconduct manifested

in the form of threats, intimidation, and a reign of terror forced this material defense

witness to change his testimony for the defense to perjured testimony in support of the

Commonwealthʼs theory.

! d.) This was achieved by the prosecutorʼs threat of recharging this witness with a

charge of felony robbery which was nolle prosequi by the same prosecutor a few

months earlier in the same court.

! e.) Immediately after this threat by the prosecution this defense witness

implicated the petitioner in this crime and became one of the prosecutionʼs star

witnesses, in stark contract to his first Police interview of 17 August 1994.

32.) John Doleman:

! a.) A material defense witness from the onset of this case who was in possession

of exculpatory evidence that would have exonerated the petitioner.

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! b.) Mr. Doleman informed the prosecutor and his agents that the petitioner was

not present during the commission of this crime, until he “did a Plea deal” with Thomson.

! c.) In fact, Mr. Doleman and investigator(s), to include James Bailous, made a

“video tape” at the scene of the crime shortly after the incident that unequivocally proves

that the petitioner was not present during this crime. (Exhibits 11, 12, & 13, p. 37 - 39)

! d.) This video tape was / is illegally being suppressed by the commonwealth

even to this very day (only a portion of it was released to Franklin Washington)

! e.) This defense witness was subjected to the same misconduct of prosecutor

and its agents, and instead of risking fraudulent prosecution and retaliation from the

prosecutor and his agents, he agreed to offer perjured testimony on behalf of the

prosecution in support of the commonwealthʼs theory. Thus this exculpatory evidence

was now inculpatory.

33.) ! In this case, the defense began with at least seven (7) material defense

witnesses with exculpatory evidence and testimony that would have exonerated or

raised serious doubt in the case of Jeffrey F. Washington v. Commonwealth.

34.)! But by the time this case made it to trial before a jury the defense ended with not

one (1) of its original witnesses due to the blatant prosecutorial misconduct.

35.)! In this case, every material witness with exculpatory evidence was deliberately

prevented from either being at trial or proffering true testimony in the petitionerʼs

defense. This was accomplished by a reign of terror, threats and intimidation that lasted

over a six (6) month period, and affected every defense witness who chose freely to

testify in support of the petitionerʼs defense.

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36.)! This flagrant misconduct by the prosecutor and his agents worked as a means to

prevent the petitioner from trial by jury as a right by preventing the petitioner from

“calling for evidence in his favor which is guaranteed by the Virginia Constitution under

article I8, and the United States Constitution under the Sixth Amendment which

commands that “an accused be afforded the unfettered right to compulsory process.”

37.)! The Federal and Virginia Courts addressing such misconduct resonate with

precedent which establishes beyond peradventure, that the interference with the right of

a defendant to “present a defense requires reversal”.

38.)! It is clear from the compelling evidence proffered by the petitioner herein, that the

conduct of prosecutor and his agents not only interfered with defendantʼs right to

present a defense, but these agents prevented the petitioner from presenting a defense,

none at all, period.

39.) The misconduct of the prosecutor and its agents in this case was unethical, as well

as illegal. It is also self-evident that the petitioner was deliberately kept from trial by this

misconduct, as well as all defense witnesses in this matter who were in possession of

exculpatory evidence to be proffered on behalf of the defense.

40.)! The prosecutor and his agents engaged in such misconduct to prevent a JURY

trial and force the petitioner into a contract to his injury, through fraudulent means.

41.)! This is the definition in itself, supported by precedent, of extrinsic and collateral

fraud. Therefore, in the light of such flagrant misconduct by the prosecutor and his

agents the contract procured by this extrinsic and collateral fraud is Void Ab Initio as

well as the judgment of the Court which is also void, thereby rendering sentence and

conviction obtained by such means a nullity and unenforceable by the Commonwealth.

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42.)! Based on this issue alone addressing the judgment which was procured by

extrinsic and collateral fraud, the judgment must be reversed and both the sentence and

conviction of the petitioner must be vacated.

Winston v. Commonwealth, 188 V. 386, Bobo v. Commonwealth, 187 Va. 774, Patterson v. Commonwealth, 3 Va. App. 1, Lomax v. Commonwealth, 228 Va. 168, Cox v. Commonwealth, 227 Va. 324, Washington v. Texas, 388 U.S. 14, U.S. v. Hammond, 598 F. 2d 1008, U.S. v. Morton, 535 F. 2d 23, Freeman v. Georgia 599 F. 2d 65, U.S. v. Smith, 478 F. 2d 976.

43.) Ordered material witnesses for the prosecution with exculpatory evidence to

proffer not to talk to defense counsel or his agents about any particulars in regards to

the case.

44.)! The Commonwealth here intentionally obstructed and fettered the ability of the

defense to prepare and present a defense by wrongfully, unethically, and illegally

ordering actual eye witnesses to the crime not to speak to the defense or its agents in

regards to any matters concerning this present case.

45.)! Again, the Courts, both Federal and Virginia, addressing this serious issue of

misconduct resonate with precedent which establishes beyond peradventure that the

hiding of witnesses, hindering and interfering with defense counsels access to

witnesses denies an accused “the ability to put forward a defense”.

46.) ! Such behavior by the prosecution and/or its agents has been held to be a

violation of due process of law; see Blackman v. Scott, 22 F. 3d 560, Hernandez v.

Estell, 874 F. 2d 313, and White v. Estelle, 684 F. 2d 927.

47.)! In this present case three (3) eyewitnesses to the home invasion had given

statements to the police and the Commonwealth that one (1) of the two (2) intruders

was a distinctly recognizable white, being caucasian. In fact three (3) of the eye

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witnesses were of caucasian descent themselves. This exculpatory evidence

intentionally suppressed by the prosecutionʼs misconduct was crucial in presenting the

petitionerʼs defense in fact and law because the petitioner is a distinct black male with

distinct African features including skin and eye color. There is no way that the petitioner

can be mistaken for a white male even in the dark.

48.) ! The eye witnesses said the black gunman was least 6ʼ2” (which would preclude

Jeff Washington).

49.) ! Furthermore, in this case because of the misconduct of prosecutor and its agents

we can not determine what other exculpatory evidence these witnesses possessed

because the defense was denied access to these crucial witnesses to the crime.

(refer to Exhibit #4 and #5, p. 28-31)

50.)! All these material prosecution eye witnesses, Amy N. Hoover, Brandy M. Helsley

and Harvey W. Trent [NOTE: Also indication from testimony that a third white woman,

Amy Ruble was present, but mysteriously “erased out” of the 5 October 1994 transcript.]

advised the investigators and the prosecution that one of the intruders who entered the

house was white and not black as the prosecution led the Courts to believe.

51.)! At preliminary hearings held in the City of Winchester in regards to this case,

these eye witnesses testified under oath that they had in fact been ordered by the

prosecutor, Paul Thomson, not to speak to the defense attorney or any of its agents

about the case. (refer to preliminary transcripts and investigator Bailous report and

defense investigators report attached.)

52.)! In Epperly v. Booker, 235 Va. 35, the Epperly Court reaffirmed its holding in Bobo

that the constitutional guarantee protects the right to prepare for trial, which is the right

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to interview material witnesses and to ascertain the truth. Moreover, the Bobo holding

reenforced by the Virginia Code of Professional Responsibility DR 8-102 (A) (3) states

in mandatory language that “the prosecutor shall not in a criminal case… discourage a

person from giving relevant information to the defendant”.

53.)! This misconduct by the prosecution in intentionally concealing material witnesses

with exculpatory evidence from giving information to the defense was done by

misrepresenting the law and facts which leaves no doubt that this was a ploy designed

by the prosecutor and its agents to suppress the exculpatory evidence from the

defense. This illegal suppression of exculpatory evidence prevented the petitioner “from

calling for evidence in his favor, a right safeguarded by the United States and Virginia

Constitution, thereby preventing the petitioner from going to trial my means of extrinsic

and collateral fraud from which was fraudulently induced by the prosecutorial

misconduct mentioned herein.

54.) ! A firearms expert William Welch, hired by Defense Counsel John Prosser, wrote

a letter stating that he did not come to Winchester Police Department to view the

weapon, because he was told by Defense Counsel Prosser he would not be needed to

testify because Mr. Jeffrey Washington was going to take a plea prior to trial. Jeff Washington

had NEVER agreed to a Plea, prior to being coerced on 28 February 1995. Both Defense and

Prosecution attorneys signed a document saying that William Welch inspected the weapon,

yet Mr. Welch adamantly denies that document with his forged signature.

55.)! Therefore, for the reasons outlined, accompanied with the compelling evidence in

support thereof, this judgment was procured by extrinsic and collateral fraud and

contractual agreement entered into by the petitioner is Void Ab Initio, and judgment of

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trial courts is also void, therefore the conviction and sentence of the petitioner must be

vacated in accordance with the Code of Virginia, the Virginia Constitution and the United

States Constitution as a remedy to cure this manifest injustice and to preserve the

integrity and public confidence in the judicial system.

56.) ! Concealed exculpatory evidence from the defense which was done with the

deliberate and malicious intent as a ploy to prevent the petitioner from “calling for

evidence in his favor”, thereby preventing the petitioner from presenting a defense,

thereby, forcing the petitioner into a contractual agreement by means of extrinsic and

collateral fraud. And in support the petitioner lists the following facts:

57.) ! Transcripts which were material exculpatory evidence was /is illegally being

suppressed by the prosecutor and its agents in this case which were necessary tools in

preparing and presenting a defense at trial and presenting a meaningful appeal. Thus

this misconduct denied the petitioner his right to trial and his right to present a

meaningful appeal safeguarded by both the Virginia and United States Constitution.

58.)! This was a scheme devised by the prosecution to prevent the petitioner from trial

by court through no contest, forcing the petitioner into a contract by extrinsic and

collateral fraud. In this case the prosecutor and its agents refused to relinquish to the

defense transcripts of the preliminary hearing of Commonwealth v. Jeffrey F.

Washington on 28 August 1994, which was transcribed in the General District Court of

the City of Winchester which contained exculpatory evidence.

59.)! A portion of the transcripts was removed of one, Mr. Zahrain Washington, which

he unequivocally testifies under oath, on August __, 1994, the petitioner confessed to

him in person that he had in fact shot Carlos Marshall, the victim, and on this same day,

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the petitioner did in fact give him the weapon used in the commission of the crime which

was the nexus as to how Mr. Zahrain Washington came into possession of the murder

weapon.

60.)! The reason that the transcripts are imperative in this case is because, the

petitioner was incarcerated at the time all of this occurred as the witness so testifies.

Therefore this testimony by the prosecutionʼs witness is impossible.

61.)! In light of this fact, there was no confession to Mr. Zahrain Washington or a

transfer of the murder weapon to him by the petitioner. The transcripts were a crucial

material exculpatory evidence necessary in presenting the petitioners defense in fact

and law.

62.)! Mr. Zahrain Washington, again, in his own trial testified unequivocally to the exact

same events as he so testified under oath in the petitionerʼs trial.

63.)! Prosecution being aware of this damaging testimony to the prosecutionʼs case,

which they knew was impossible and intrinsic fraud proffered as evidence by the

prosecutionʼs witness, that they deliberately and with malicious intent, did remove the

testimony of Zahrain Washington from the transcripts all together and would not

relinquish the transcribed evidence (testimony) to the defense as exculpatory evidence.

64.)! The prosecutor ensured that the defense would not have access to this

damaging testimony, thereby, preventing the petitioner “from calling for evidence in his

favor.”

65.)! Both the transcript of Commonwealth v. Jeffrey F. Washington and

Commonwealth v. Zahrain Washington just simply vanished from the possession

of the Commonwealth and its agents thereof.

66.)! These transcripts were material exculpatory evidence in the possession of the

prosecution that were never relinquished to the defense even when they were required

to do so by law. This concealment of exculpatory evidence by the prosecutor and

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his agents prevent the petitioner from calling evidence in his favor, which denied

his right to prepare for trial and to preserve a meaningful appeal as of right.

67.) ! One (1) video tape made by the investigator(s) and one (1) of the witnesses for

the prosecution in this case identified as John Doleman, which was done at the crime

scene shortly after the alleged crime that contained exculpatory material evidence.

68.)! Shortly after the crime occurred Mr. John Doleman took investigators to the

scene of the alleged crime where there was a walk through detailed description of how

the crime took place on the night in question which was a video taped in its entirety.

69.)! The video tape contained most importantly who was present during the

commission of the crime as perpetrators in which Mr. Jeffrey Washington was not

even mentioned as a participant before, during or after the fact.

70.)! The video tape was a damaging piece of evidence to the prosecutionʼs case,

therefore this exculpatory evidence was also suppressed by the prosecutor and his

agents as a means to prevent the petitioner from calling for evidence in his favor.

71.)! All of this was done by the prosecutor and his agents to ensure that petitionerʼs

case would not make it to trial before a jury for fair adjudication, but instead would

force the petitioner into a contract by fraudulent means when he could not prepare or

present his defense in fact and law due to the prosecutor and his agents misconduct.

Thereby, judgment contract / judgment being procured by extrinsic and collateral fraud.

72.)! In our adversary system of criminal justice, all relevant facts must be

available to both the prosecution and the defense in order to preserve the

systemʼs integrity. The supreme Court has held that:“The very integrity of the judicial system and public confidence in the system depend on full disclosure of all facts. Within the framework of the rules of evidence to ensure justice is done, it is imperative to the functions of the Court that compulsory process be available for the production of evidence needed by either the prosecution or the defense. U.S. v. Nixon, 418 U.S. 683.

20

73.)! In this present case, it is more than clear as to the intent of the prosecutor and

his agents as we view this deliberate misconduct to secure a contract / judgment by

means of extrinsic and collateral fraud. The actions of the prosecutor and its agents

were / are unconstitutional, and more importantly, are illegal.

74.)! The petitioner was fraudulently forced into a contractual agreement (Editor Note:

“Plea Agreement” or “Plea Bargain”) with the prosecution through means of misconduct

that was deliberate, calculated and pursued with malicious intent. Therefore, there is no

question as to whether the contract judgment was procured by extrinsic and collateral

fraud, therefore petitionerʼs contract is Void Ab Initio as well as the judgment as a

product thereof. In this case the petitioner was victimized by the prosecutor and his

agents in which he was prejudiced, a victim of surprise, and more importantly, Fraud.

75.)! It is clear, and the Courts addressing this serious issue unequivocally concur that

“any judgment procured by extrinsic and / or collateral fraud is void.”

76.)! Therefore, it leaves no room for error that his present contractual agreement

entered into by the petitioner was fraudulently induced therefore such contract is Void

Ab Initio, and because the petitioner was a victim of extrinsic and collateral fraud, the

judgment by this Court rendering conviction and sentence is also void and a nullity and

must be vacated.Supreme Court Rules, 1.1Rook v. Rook, 233 Va. 92Cofer v. Cofer, 205 Va. 834Matthews v. Commonwealth, 216 Va. 358

! ! ! ! ! ! Respectfully submitted,

! ! ! ! ! ! Jeffrey Franklin Washington

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EXHIBITS / ATTACHMENTS:

1. Affidavit of Joella Mason, dated June 28, 1999 -- (2 pages)! (about Witness Tampering, threats by Paul Thomson to derail Jury Trial)2. Affidavit of Stacy Roberts Washington, (in court files) ! (about Witness Tampering, threats by Paul Thomson to derail Jury Trial)3. Affidavit of Russell Hayden, dated June 28, 1999 -- (2 pages)! (about Witness Tampering, threats by Paul Thomson to derail Jury Trial)4. ! 4.1 Police Notes of Helsley and Hoover August 17, 1994 (transcribed)! 4.2 Police Notes of Helsley and Hoover (penmanship)! 4.3 Police Notes of Harvey Trent and Amy Hoover (penmanship)5. Defense Counsel Detective Frye Notes on Helsley and Hoover, dated 25 Aug. 1994! (discusses Witness Tampering by Prosecutor Paul Thomson, early in investigation)6. Circuit Court Clerk M. Foreman letter on two lost Court Transcripts, dated 18 Aug. 2000! (on false statements of Zahrain Washington, accuser of Jeffrey Washington)7. Police Chief Reynolds letter dated 28 Jan. 2002 on Video about Crime Scene.! (Denying video by Investigator Bailous with Gunman John Doleman) - Video “found” #118. Bailous Subpoena shows police Witness Tampering of Hayden of 27 Jan. 19959. Detective Frye Affidavit on prosecutor Paul Thomson witness tampering, of 8 Apr. 200210. Judge Wetsel “unusual for tapes to be lost” letter, mentions Thomson, of 22 Jul. 199711. Police Chief Reynolds “Sobonya… second check… located a video” letter of 13 Apr. 2002 12. Temporary Custody of John Doleman with Police Investigator J. K. Bailous, 17 Nov. 199413. Probation and Parole agents comments on John Doleman helping police make Video14. Two Forensic Laboratory Certificate of Analysis, collage 14 Sep. 1994 & 15 Feb. 1995! (footnote shows Evidence Tampering of the Gun Shot Residue Tests by Sobonya)

15. Plea Agreement, 28 Feb 1995 side by side commentary about Errors by Paul Thomson

16. Police Notes “Paul Thomson is skimming money from drug dealers” of 02/17/99

17. Police Chief Reynolds letter to Paul Thomson, 28 Jul 1999, (firing of Investigator Bailous! & call for Investigation into Washington case by Attorney General or supreme Court)18. Jeff Washington Pardon package to Governor Kaine Table of Contents, 14 Oct. 2008 19. Washington Post, “Working to Save Innocent Souls”, Centurion Ministry, 25 Oct. 200820. Petition for Writ of Actual Innocence Based on Non-Biological Evidence, 8 May 2009 ! (sent back to Jeff Washington by Court of Appeals for lack of $50 filing fee, pgs. 1 & 2)

21. REQUEST for VIRGINIA STATE POLICE INVESTIGATION of ILLEGAL ACTS… (January 2011, revised May 2011)

22. Winchester Star, “Ex-commonwealth attorney arrested” (Paul Thomson), 11 Jan. 2011

22

Page

23-24

25

26-2728293031

32

33

3435

3637383940

41-4748

49-505152

53-545556

23

24

25

Mrs. Stacy Washington, Also Miss Stacy Roberts,

This was a letter from Mrs. Stacy Washington to her father in law Franklin Washington that told of how Police Investigator James K. Bailous, who was her sisterʼs husband, so had a Conflict of Interest being involved at all with the case, threatened to take her baby Stephon Washington if she testified at trial.

Before the aftermath of the trial when his son Jeff was coerced by both Defense Counsel and Commonwealth Attorney to accept an Alford Plea Agreement, Franklin Washington trusted his sonʼs Defense Counsel John Prosser, so gave the letter to Defense Counsel John Prosser to use to file a Motion in the Court for Sanctions against the Commonwealth.

Copy not found in the Court files in the Circuit Court of the City of Winchester, on a visit on Friday, 13 May in the Year of Our Lord Jesus 2011 by an advocate for Petitioner Washington, nor was a copy available in legal files able to be retained in jail by the Petitioner Jeffrey Franklin Washington during a visit with the advocate on 6 May in the Year of Our Lord Jesus 2011.

Basically the statement from Stacy Washington was that she was made afraid to come to testify in Court at the Trial of her husband Jeffrey F. Washington due to threats by members of the Commonwealth Attorneyʼs office team, to include Police investigator James Bailous, that if Stacy did testify, she might have legal proceedings brought against her that would cause her to lose custody of their son, Stephon Washington.

Put this in the context of the fact that Commonwealth Attorney Paul Thomson had made a statement to the Press that the ONLY REASON that Jeff Washington married Stacy was to prevent her from testifying AGAINST him on the Spousal Exclusion Principle. This was but one of many “Press Statements” of Thomson that had made a “Media Circus” of the trial, contrary to warnings by both District Court and Circuit Court Judges, and contrary to the Rules of the supreme Court of Virginia DR 7-106 Trial Publicity.

Let the record show that Army Private Jeffrey Washington left active duty in Germany (Honorable Discharge) to return home to be with his newborn son Stephon, and to marry his sonʼs mother, Stacy Roberts.

This is a form of Witness Tampering under the direction of then Commonwealth Attorney Paul Thomson, with his partner in crime against true Justice, Police Investigator James K. Bailous.

26

27

28

29

30

31

Analyst Note: Paul Thomson Witness Tampering and Obstruction of Defense Counsel interviews of witnesses

32

Analyst Note: See Exhibit #10 where Judge Wetsel states it is very unusual for tapes to be lost. Here not just one but TWO KEY Court Transcripts are “lost” from the Clerkʼs Office! Coincidence, or Consequence?

33

Analyst Note: Careful reading of this letter shows that Police Investigator Sobonya was not providing Evidence to Frank Washington as REQUIRED BY LAW. See Exhibit #11

34

Exhibit # 8 - Subpoena Witness Tampering of Hayden

x

Analyst Note: This Subpoena dated one month before the start of the Jury Trial is the ONLY ONE of dozens of Subpoenas where is stated

“(will be served at the Judicial Center)” [see below in dotted oval]when combined with the Affidavit of Russell Hayden (Exhibit #3 p.26-27) where Hayden states that Police Detective James Bailous met Hayden as he entered the Courthouse and then proceeded to threaten and intimidate Hayden so he would not testify.This is evidence of PRE-MEDITATED WITNESS TAMPERING by the Prosecution.

35

Analyst Note: Notarized Affidavit of Private Investigator Del Frye of Paul Thomson Witness Tampering and Obstruction of Defense Counsel interviews of witnesses. See also Exhibit #5

Exhibit # 9 - Frye Affidavit of Witness Tampering by Thomson

36

Exhibit # 10 - Wetsel letter Denial of Serious Problem

Analyst Note: A statistics mathematician would be required to calculate the probability of so many tapes, Court transcripts, bullets, and other evidence to all be lost from one case. A more plausible explanation than “simple human error” is “intentional human actions”, either by the Cityʼs Commonwealth Attorney Paul Thomson, or by his agents, such as Police Investigators David Sobonya and James Bailous who had access to the Court files. Yes, indeed, Judge Wetsel speaks a truth, this case is all “very unusual”.

37Exhibit # 11 - Document

Analyst Note: “Reading between the lines” and interview with Frank Washington reveals that initially Police Investigator Sobonya falsely reported to Police Chief Reynolds that there was NO VIDEO. The diligence of Frank Washington put pressure on Commonwealth Attorney Alex Iden to provide the video mentioned in Court documents Frank found. Only then when requested by Alex Iden, did the Police Chief demand the video be found, and this cover-up by Sobonya came to an end.

38

Exhibit # 12 - Document

Analyst Note: Police Investigator James Bailous (Bayliss) is “taking custody” of John Doleman OUT OF THE JAIL. Why? The wife of Bailous is FIRST COUSIN to John Doleman, so Bailous is setting up “Helping the Police” with making a video. Police and Prosecutor Paul Thomson should NEVER have allowed Bailous to be involved as an investigator on this case - it is a clear CONFLICT OF INTEREST. However in this video, Jeff Washington was NOT PLACED in the crime scene; later after a Plea with Paul Thomson, Dolemanʼs story “changed” to accuse Jeff Washington.

39

Exhibit # 13 - Document for Doleman

Analyst Note: Police Investigator James Bailous (Bayliss) is “covering-up” for Murder Suspect John Doleman, a man who tested POSITIVE for Gun Shot Residue, meaning Doleman HAD FIRED A GUN. Why? The wife of Bailous is FIRST COUSIN to John Doleman. Police and Prosecutor Paul Thomson should NEVER have allowed Bailous to be involved as an investigator on this case - it is a clear CONFLICT OF INTEREST.

40

These two margin notes by DPS (David P. Sobonya) to JP (John Prosser) show Defense Counsel Prosser KNEW this GSR test result on 11/29/94, & did NOTHING. Prosserʼs signature on 10/28/94 confirms this.

Exhibit # 14 - GSR Forensic Tests Collage

41

Exhibit # 15 - “Alford Plea” Analysis - page 1

42

Exhibit # 15 - “Alford Plea” Analysis - page 2

43

Exhibit # 15 - “Alford Plea” Analysis - page 3

44

Exhibit # 15 - “Alford Plea” Analysis - page 4

45

Exhibit # 15 - “Alford Plea” Analysis - page 5

46Exhibit # 15 - “Alford Plea” Analysis - page 6

47

Exhibit # 15 - “Alford Plea” Analysis - page 7

48

Yet again, SOBONYA is involved.

Was SOBONYA tasked to pass this concern on to the FBI?

After SOBONYA was let go by Winchester Police, he got a job at the FBI FOIA section!

ONLY 7 PARDONS out of 116 Innocent Men who faced Death Penalty !

VERY FEW GOVERNORS who show Courage to do JUSTICE by a PARDON!

Exhibit # 16 - “Paul Thomson is skimming money from drug dealers”

In 1999, when Thomson was “skimming money from drug dealers” is the same year when Thomson derailed the Petition for Writ of Habeas Corpus submitted to the Virginia supreme Court for Jeffrey Franklin Washington.

49

Exhibit # 17 - “Police Chief letter to Paul Thomson, prosecutor” page 1

!

50

Exhibit # 17 - “Police Chief letter to Paul Thomson, prosecutor” page 2

51

Exhibit # 18 - Pardon Package to Governor Kaine Table of Contents / Oct. 2008

52Exhibit # 19 - Letter to President Bush / Washington Post article 25 Oct. 2008

53

Exhibit # 20 - Petition for Writ of Actual Innocence - page 1

54

Exhibit # 20 - Petition for Writ of Actual Innocence - page 2

55

Exhibit # 21 - REQUEST FOR VIRGINIA STATE POLICE INVESTIGATION

56

Exhibit # 22 - Winchester Star “Ex-commonwealth attorney arrested” - 1-11-11

5757

58

Mr. Jeffrey Franklin Washington #1027194Greenville Correctional FacilityHousing Unit 9-121901 Correctional WayJarratt, Virginia 23870

Case No. 94-CR-292-299, 339, 340

59

#1027194

Note: Financial status of Petitioner has not improved during the past 8 years of wrongful imprisonment, so the In Forma Pauperis Affidavit is still applicable.

Case No. 94-CR-292-299, 339, 340

********************************************************

IN THE CIRCUIT COURT FOR

THE CITY OF WINCHESTER

MR.JEFFREY FRANKLIN WASHINGTON, #1027194 ) Petitioner ) ) ) ) V. ) ) ) ) )COMMONWEALTH OF VIRGINIA, etc. ) Respondent )

MOTION TO VACATE VOID JUDGMENT

Mr. Jeffrey Franklin Washington #1027194Greenville Correctional FacilityHousing Unit 9-121901 Correctional WayJarratt, Virginia 23870 pro se

********************************************************

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Case No:C94-3595-3602Inclusive(Supplied by Court)Case No. 94-CR-292-299, ! ! 339, 340

TABLE OF CONTENTS

JEFFREY FRANKLIN WASHINGTON v. COMMONWEALTH OF VIRGINIA

...............................Case History pg. 2

.........................Bases for Petition pg. 5

..........Questions Raised for Adjudication pg. 6

..................................Argument pg. 7

..................... Paragraphs 26 to 70 pgs. 7 - 20

.................................Conclusion pg. 20 - 21

..................... Paragraphs 71 to 75 pg. 20 - 21

.....................................Prayer pg. 21

........................... Paragraphs 76 pg. 21

..............Exhibits (see list on pg. 22) pg. 23-56

.....................Certificate of Service pg. 57

..............................Notary Public pg. 57

Motion for Leave to Proceed In Forma Pauperis . pg. 58

In Forma Pauperis .................. Affidavit pg. 59

61ii

TABLE OF CASES AND CITATIONSJEFFREY FRANKLIN WASHINGTON v. COMMONWEALTH OF VIRGINIA

Supreme Court Rule 1.1Hazraty v. Hazraty, 2007 Va. Cir. LEXIS 146Virginia Code, 8.01-428 (D)Peet v. Peet, 16 Va. App. 323, 326Rook v. Rook, 233 Va 92Virginia Code Of Professional Responsibility DR 8-102 (A) (3)Alford v. North Carolina, 400 U.S. 25U.S. v. Hammond 598 F.2d 1008 Washington v. Texas, 388 U.S 14 BoBo v. Commonwealth, 187 Va. 24Maryland v. Brady, 327 U.S. 83 Cox v. Commonwealth, 227 Va. 324 Virginia Constitution / Article I §8 United States Constitution / Sixth Amendment Winston v. Commonwealth, 188 Va. 386 Patterson v. Commonwealth, 3 Va. App. 1 Lomax v. Commonwealth, 228 Va. 168 U.S. v. Morton, 535 F. 2d 23Freeman v. Georgia, 599 F.2d 65 U.S. v. Smith, 478 F.2d 976 Hernandez v. Estell, 874 F.2d 313Blackman v. Scott, 22 F.2d 560 White v. Estelle, 684 F.2d 927 Epperly v. Booker, 235 Va. 35U.S. v. Nixon, 418 U. S. 683Cofer v. Cofer, 205 Va. 834Matthews v. Commonwealth, 216 Va. 358

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