Case: 15-70035

Document: 00513259026

Page: 1

Date Filed: 11/04/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
_____________________
No. 15-70035
_____________________
RAPHAEL HOLIDAY,
Petitioner/Appellant,
v.
WILLIAM STEPHENS, DIRECTOR
Respondent/Appellee
--------------------Appeal from the United States District Court for the
Southern District of Texas, Houston Division
--------------------RESPONSE TO MS. SWEENS MOTION TO STRIKE
TO THE HONORABLE CHIEF JUDGE AND JUDGES OF THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT:
Comes now SETH H. KRETZER and JAMES VOLBERDING, CJA
Counsel for Petitioner, Raphael Holiday, and respond to Ms. Sweens
motion to strike as follows:
1.

Footnote Number 1 contains yet another factual misstatement by Ms.

Sween. We do not know what the following sentence actually means:

Moreover, the Respondent has indicated that the State, as a matter of
routine, takes no position with respect to disputes over representation, the
issue presented in this appeal.
Neither of us works for the State Attorney General, and so we do not
know what routine internal policy or practice Ms. Sween alludes to.
1

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Document: 00513259026

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But since Ms. Sweens aversion effectively accuses us of lying in our

Certificate of Conference, we must urge the Court to look at the following
email correspondence between the AAG assigned to this case and Mr.
Kretzer on November 2:

Just as we said in the Certificate of Conference, the AAG wrote We

are unopposed to the motion to dismiss the Holiday appeal.
Noticeably, Ms. Sweens motion to strike does not bear a required
certificate of conference.
2.

It is a little ironic that Ms. Sween objects to our representation of

Holiday when she opposed our motion before Judge Lake to have her
installed as the lone attorney of record after she filed this Notice of Appeal.
At that time, we specifically noted that Ms. Sween should be free to file
whatever she feels professionally obligated to.

Case: 15-70035

3.

Document: 00513259026

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Date Filed: 11/04/2015

Judge Lake denied our motion to substitute, and so we remain

Holidays lawyers. It was Ms. Sween who filed the motion to reconsider the
motion to substitute we had filed originally, not the other way around.
4.

As lawyers, we are officers of the Court. As such, we owe a duty of

candor to any court in which we appear. Regardless of whether our client

files a pleading pro se or through some vaguely retained pro bono counsel
who insists that her representation is atomized to one discreet issue of the
lawyers own manufacturing, we are ethically obligated to move to dismiss a
frivolous filing if it has no basis in fact or law.
5.

Although we have no objection to Ms. Sweens request that she be

permitted to file an Opposition to the Motion to Dismiss Appeal within 48

hours of this Courts ruling on this Motion to Strike, as best as we can tell,
Ms. Sween does not dispute the facts undergirding the mootness arguments
made in the motion to dismiss: 1) there is a live and timely filed clemency
petition on file; 2) the Madison County DA has responded; and 3) the Board
is now undertaking its internal processes by which a recommendation will
eventually be made to Governor Abbott.
6.

Since clemency is the only issue raised in the opening brief, there is

no stated claim on which relief be granted since Holiday already has

everything he has asked for. As such, the issues presented therein are moot.

Case: 15-70035

Document: 00513259026

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Date Filed: 11/04/2015

Respectfully submitted,

/s/ James Volberding

James W. Volberding
VOLBERDING LAW OFFICES
100 E. Ferguson St., Suite 500
Tyler, TX 75702
James@jamesvolberding.com

/s/ Seth Kretzer

LAW OFFICES OF SETH KRETZER
440 Louisiana Street, Suite 200
Houston, TX 77002
seth@kretzerfirm.com

(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
This is to certify that a true and correct copy of the foregoing
document was served on all counsel of record through ECF on the 4th day of
November, 2015.
/s/ Seth Kretzer

Seth Kretzer