Case 4:11-cv-01696 Document 44 Filed in TXSD on 10/25/15 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
RAPHAEL DEON HOLIDAY,
Petitioner,
v.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Institutional Division,
Respondent.

Civil Action No. 4:11:cv-1696

RESPONSE TO MOTION TO RECONSIDER

Come now, Mr. Seth Kretzer and Mr. James Volberding, CJA appointed counsel, and
respond to Ms. Sweens motion to reconsider the underlying motion to substitute her as retained
counsel that Kretzer and Volberding filed in the first place. (Doc. No. 43).
I.

INTRODUCTION: MS. SWEEN IS CLEARLY ONE OF THE BEST CAPITAL HABEAS

PRACTITIONERS IN TEXAS
In less than one day, Ms. Sween has provided this Court with more than 40 pages of

briefing complete with tables of contents, index of authorities, case law, statutes and a host of
exhibits. This shows that rather than being unqualified, she is (as we pointed out in our motion
to substitute) one of the most prolific capital habeas practitioners in the state. Nevertheless, a
dispute has arisen from the fact that Ms. Sween seeks (1) to act as Mr. Holidays lawyer but (2)
is not willing to file the clemency petition for which she advocates at such length because of her
self-professed lack of qualifications. In either event, Ms. Sweens motion to reconsider (a motion
she did not file in the first place) does not address this Courts statement in its order denying
same that no one has identified the lawyer who would actually file the clemency petition at issue.

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II.

MS. SWEENS PROLIFIC BRIEFING MAKE CLEAR WHAT HER NOTICE OF APPEAL
DID NOT: A CLEMENCY PETITION IS WHAT SHE DESIRES BUT WILL NOT AUTHOR
OR FILE
To be clear, Ms. Sweens only criticism is that we have not filed a clemency petition. She

does not identify any grounds for a successor writ, much less any that that would even
potentially overcome procedural bars. The privileged and confidential communication Ms.
Sween attaches as Exhibit D to her motion to reconsider proposed potential solutions in the
clients interests between the three people now charged with working as Holidays attorneys. The
only response we received was the ad hominem attack presented in the motion to reconsider. She
has not phoned us, she has not accepted our offer to show or give her Raphaels file, or our offer
to meet with us face-to-face in Houston to discuss his case and options. We have received no
instruction from Holiday that he wants to be represented by Ms. Sween. Ms. Sween has not
provided us with any document signed by our client authorizing her actions on his behalf, much
less one that informed him that she is unqualified to represent him in capital litigation.
Since Ms. Sween has pierced the privilege in that document by filing it with this Court,
we will go ahead and state to this Court that we are scheduled to see Mr. Holiday at the death
row unit October 30. So as to obviate Ms. Sweens concerns, we will use our best efforts to
present a clemency petition to the Governor and Board of Pardons and Paroles.
We will submit the petition quickly, with ample time for consideration. Before filing, we
are happy to send a copy to Ms. Sween for her comments and contribution. But we remain stuck
with the fact that that in the response brief Ms. Sween filed right after this Court denied the
motion to substitute, she explained that she herself was not qualified to assume such a
substitution, Doc. No. 41, p. 3, despite her career authorship of writs, certiorari petitions, and
seminar presentations on the subject of the death penalty incident to her adjunct faculty

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affiliation with the UTLAW capital clinic. For that reason, we will send the draft to anyone she
directs.
Lest Ms. Sween counter that Mr. Kretzer and Volberding have harmed Mr. Holidays
interests, we would point out that the email she attaches as Exhibit B is accurate: within
minutes of her filing the notice of appeal and paying the $505 filing fee, Mr. Kretzer emailed to
say that he would FEDEX the complete file to her that very same day. Ms. Sween has since filed
a motion to get back the $505, but the point is that Mr. Kretzer and Mr. Volberdings concerns
were anchored in attempted compliance with the requirements of the Criminal Justice Act and
we had no indication as to Ms. Sweens intentions until she responded to reject our offer to send
the case file. In other words, we called her; she did not call us.
III.

MS. SWEENS FILING CREATES NEW IMPEDIMENTS FOR HOLIDAY

We would be remiss if we did not point out that Ms. Sweens actions create a new set of

impediments: Ms. Sween has breeched Holidays attorney-client confidentiality by disclosing to

the Attorney General and the public: (1) privileged correspondence between Raphael and his
attorneys, (2) privileged correspondence among Raphaels three lawyers (which she claims by
virtue of having been retained, Response, Doc. No. 43 at p.9) and Raphael. The Attorney
General will certainly attach this correspondence to Respondent Stephenss response to the
clemency petition, allowing the Governor and Board of Pardons and Paroles to read the
attorneys private assessment. Certainly that will have some adverse impact.
IV.

WHY IS MS. SWEEN TALKING ABOUT CLIFTON WILLIAMS?

Despite our longtime respect and admiration for Ms. Sweens work in this area of law, we are
baffled why she keeps insinuating we did something wrong or misrepresented our role with
regards to the stay granted Clifton Williams in July. To be clear, we discussed (by phone and a

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flurry of emails) with Mr. Jim Huggler, Williamss appointed state counsel, the Attorney
Generals last moment disclosure of state DNA data base errors and the motion he filed in the
Court of Criminal Appeals (CCA). As Williamss CJA attorneys, we were in constant contact
with Monica Washington (the Fifth Circuits capital clerk), as well as Ms. Mara Silver (capital
clerk in United States Supreme Court) with regards to the federal pleadings (with supporting
record quotes to DNA trial testimony) we were about to file simultaneously in the District Court,
Fifth Circuit and Supreme Court had the CCA not ruled favorably. The Fifth Circuit paid our
vouchers for this emergency and last-minute work.
For these reasons, we do not even consider this an ad hominem attack; it is a
misstatement born of a complete lack of knowledge of the facts, the result of declining to call us.
But since the stay granted to Clifton Williams has nothing to do with Raphael Holiday, we will
not say any more about it since we do not understand why she brought it up.
V.

CONCLUSION
As this Courts order stated, no one has identified any other lawyer actually willing to file

another pleading in state court.

We remain firm in our belief expressed in our motion to substitute that it would be best
for Ms. Sween to take over the case entirely in light of her expertise and intervention as
Holidays quasi-lawyer. But this Court ruled otherwise and we are not filing a motion to
reconsider. Further, to be clear, we will continue to use ! as we always have ! our best
professional judgment to represent Mr. Holiday in accordance with applicable law, procedure,
rules and ethical requirements. In sum, the foregoing representations would seem to address all
of Ms. Sweens concerns.
Respectfully submitted this 25st day of October, 2015,

Case 4:11-cv-01696 Document 44 Filed in TXSD on 10/25/15 Page 5 of 5

James W. Volberding

Seth Kretzer

James W. Volberding
Volberding Law Offices
100 E. Ferguson St., Suite 500
Tyler, TX 75702
James@jamesvolberding.com

Seth Kretzer
Law Offices of Seth Kretzer
440 Louisiana Street, Suite 200
Houston, TX 77002
seth@kretzerfirm.com
LEAD COUNSEL

(903) 597-6622
(866) 398-6883 (fax)

(713) 775-3050
(713) 224-2815 (fax)

COURT-APPOINTED ATTORNEYS FOR APPELLANT / PETITIONER,

RAPHAEL HOLIDAY
CERTIFICATE OF SERVICE
I certify that the foregoing document was filed on the ECF System on the 25st day of
October 2015.
I also certify that a copy will be mailed to Mr. Holiday at the Polunsky Unit on October
26.
!

Seth Kretzer