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Document: 00513255672

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Date Filed: 11/02/2015

No. 15-70035
In The United States Court Of Appeals
For The Fifth Circuit
RAPHAEL DEON HOLIDAY,
Petitioner-Appellant,
v.

WILLIAM STEPHENS, DIRECTOR

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
On Appeal from the United States District Court
for the Southern District of Texas, Houston Division
USDC No. 4:11-CV-01696

MOTION FOR STAY OF EXECUTION

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Petitioner-Appellant Raphael Deon Holiday is scheduled to be executed on

November 18, 2015. He has filed an opening brief seeking to pursue his right to
representation under 18 U.S.C. 3599 and incorporates those arguments here by
reference.
Under McFarland v. Scott, once a capital defendant invokes his [ 3599
right], a federal court also has jurisdiction under 2251 to enter a stay of
execution to make the defendants 3599 right effective. 512 U.S. 849, 858
(1994); 28 U.S.C. 2251 (providing that a court that would have jurisdiction to
entertain a habeas corpus application regarding a particular prisoners death
sentence may stay execution of that sentence upon the prisoners application for
3599 representation or expert assistance).
Section 3599(e) mandates that death-sentenced individuals are entitled to
appointed counsel to represent them in pursuing all relief available to them under
state and federal lawincluding clemency proceedings. See 18 U.S.C. 3599(e).
The Supreme Court has interpreted 3599 to require the appointment of conflictfree counsel. See Christeson v. Roper, 135 S. Ct. 891, 894 (2015) (finding that
district court did not adequately account for all of the factors we set forth in
Clair); Martel v. Clair, 132 S. Ct. 1276, 1284-86 (2012) (emphasizing that the
court would have to appoint new counsel if the first lawyer developed a conflict

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with or abandoned the client). Additionally, the statute contemplates that CJA
counsel may be replaced upon motion of the defendant himself. Id.
After Mr. Holidays appointed counsel informed him that, despite his
wishes, they did not intend to pursue any further relief for himincluding seeking
clemencyhe diligently searched for pro bono counsel to assist him, as his
appointed lawyers had suggested. With a looming execution date, those efforts to
obtain volunteer lawyers on his own from death row proved unsuccessful.
Therefore, he filed a pro se motion in mid-September seeking appointment of
substitute counsel willing to represent him as 3599 provides and while time still
remained to afford preparation of a legitimate clemency application.
As explained in Mr. Holidays opening brief, the district court did not
analyze Mr. Holidays motion pursuant to the standard announced in Martel v.
Clair that applies to such motions. Specifically, the district court did not apply
any of the relevant interests-of-justice factors delineated in Clair. All of those
factors weighed entirely in favor of granting Mr. Holidays motion. Instead, the
district court relied solely on the representations of Mr. Holidays current CJA
counsel, even after the patent conflict between those lawyers and their client
played out before the court in public filings. Therefore, denying the motion was
an abuse of discretion.

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Mr. Holiday has not been dilatory. He worked diligently to obtain pro bono
counsel since he was essentially abandoned by appointed counsel at the end of
June and has persisted as his appointed counsel actively worked to obstruct his
efforts to replace them. He succeeded in obtaining undersigned pro bono counsel
for the limited purpose of preserving his right to representation under 3599.
After filing a notice of appeal on Mr. Holidays behalf, undersigned counsel was
brought into litigation initiated by Mr. Holidays current appointed counsel who
sought to obstruct the appeal and their clients efforts to obtain appointment of
substitute counsel. Undersigned counsel then sought reconsideration from the
district court of the pro se motion that had been denied, but those efforts failed
because the district court persisted in taking the representations of appointed
counsel at face valueincluding their eleventh-hour reversal with respect to their
refusal to pursue clemency for Mr. Holiday. That reversal came mere days before
the deadline imposed by Texas law, was unsupported by any client-specific
investigation, did not even involve the client, and was undertaken to protect the
lawyers interests, not the clients. Undersigned counsel has now moved forward
expeditiously with this appeal. In short, this crisis litigation is not Mr. Holidays or
undersigned counsels creation.
This appeal involves a narrow, but critical, issue relevant to all indigents
relying on the mandates of 3599. The stakes are not simply the rights of one
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prisoner but also the primacy of statutory construction based on a statutes plain
text and the legitimacy of clemency proceedings, which play a unique rule in our
criminal justice system.
warranted.

Therefore, a deliberate resolution of this appeal is

In the interests of justice, the Court should stay Mr. Holidays

November 18, 2015 execution to give the Court time to consider the important
issues presented in Mr. Holidays opening brief. A stay will also mean that, in
accordance with McFarland, the relief that Mr. Holiday seeks will be meaningful,
as a stay will afford him the opportunity to obtain, on remand, appointment of
qualified, conflict-free substitute counsel committed to pursuing clemency and any
other relief available to him under 3599.1 The sham clemency application that
appointed counsel threw together in two days does not moot this appeal.
Respectfully submitted,
BECK REDDEN LLP
By: /s/ Gretchen Sims Sween
Gretchen Sims Sween
515 Congress Avenue, Suite 1900
Austin, TX 78701
Telephone: (512) 708.1000
Facsimile: (512) 708.1002
Pro Bono Counsel for PetitionerAppellant Raphael Holiday

The deadline to pursue clemency is cued off of the execution date. See Tex. Admin. Code
143.57 (requiring receipt of clemency application 21 days before a scheduled execution date).

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CERTIFICATE OF SERVICE
I hereby certify that on November 2, 2015, I electronically transmitted this
Motion for Stay of Execution to the Clerk of the Court using the Courts ECF
System. I further certify that counsel of record for Appellee are being served with a
copy of this Motion by electronic means via the Courts ECF system, as follows:
Ellen Stewart-Klein
Office of Attorney General
Capitol Station
P.O. Box 12548
Austin, TX 78711-2548
Counsel for Respondent-Appellee William Stephens

/s/ Gretchen Sims Sween

Gretchen Sims Sween