Holiday Appellant's Opening Brief

Case: 15-70035
Document: 00513255660
Page: 1
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
PETITIONER-APPELLANTS OPENING BRIEF

RAPHAEL HOLIDAY IS SCHEDULED TO
BE EXECUTED ON NOVEMBER 18, 2015.
BECK REDDEN LLP
Gretchen Sims Sween
515 Congress Avenue, Suite 1900
Austin, TX 78701
Telephone: (512) 708.1000
Facsimile: (512) 708.1002
PRO BONO COUNSEL FOR PETITIONER-APPELLANT, RAPHAEL HOLIDAY
Case: 15-70035
Document: 00513255660
Page: 2
No. 15-70035
v.
WILLIAM STEPHENS, DIRECTOR,

USDC No. 4:11-CV-01696
CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed persons
have an interest in the outcome of this case. These representations are made in
order that the judges of this Court may evaluate their possible disqualification or
recusal.
1.
Raphael Holiday, Petitioner-Appellant
2.
William Stephens, Respondent/Appellee
3.
Gretchen S. Sween, current pro bono counsel for Mr. Holiday
4.
Seth Kretzer, appointed CJA attorney for Mr. Holiday

i
Case: 15-70035
Document: 00513255660
Page: 3
5.
James W. Volberding, appointed CJA attorney for Mr. Holiday
6.
Alexander L. Calhoun, appointed attorney for state habeas writ

petition for Mr. Holiday
7.
Gerald Bierbaum, appointed attorney for state habeas writ petition for
Mr. Holiday
8.
William F. Carter, appointed attorney for trial and direct appeal for
Mr. Holiday
9.
Frank Blazek, appointed attorney for trial and direct appeal for Mr.
Holiday
10.
Gov. Greg Abbott, lead counsel for Respondent in habeas proceedings
11.
Ellen Stewart-Klein, Office of the Attorney General for Respondent
12.
Tina Dettmer Miranda, Office of the Attorney General for Respondent
13.
Edward Larry Marshall, Office of the Attorney General for

Respondent
14.
Tommy Skaggs, Office of the Attorney General for Respondent
15.
William C. Bennett, Criminal District Attorney, Madison County
16.
Charles MacCobb, Asst. District Attorney
17.
Hon. Jerry Sandel, 278th District Court, Madison County, Texas

/s/ Gretchen Sims Sween
Gretchen Sims Sween
Pro Bono Counsel for PetitionerAppellant Raphael Holiday
ii
Case: 15-70035
Document: 00513255660
Page: 4
STATEMENT REGARDING ORAL ARGUMENT

Petitioner-Appellant Raphael Holiday asks that the Court set this case for
oral argument. Oral argument will assist the Court in determining the proper
application of the standard announced in Martel v. Clair when a death-sentenced
individual moves for appointment of substitute counsel after appointed counsel
refuses to pursue relief available to the client, including clemency proceedings, as
mandated by the plain text of 18 U.S.C. 3599(e).
iii
Case: 15-70035
Document: 00513255660
Page: 5
TABLE OF CONTENTS
PAGE
CERTIFICATE OF INTERESTED PERSONS ........................................................................i
STATEMENT REGARDING ORAL ARGUMENT ............................................................. iii
TABLE OF CONTENTS .................................................................................................iv
INDEX OF AUTHORITIES............................................................................................ vii
STATEMENT OF JURISDICTION ..................................................................................... 1
ISSUES PRESENTED ...................................................................................................... 2
INTRODUCTION ............................................................................................................ 3
STATEMENT OF FACTS AND STATEMENT OF THE CASE ................................................ 6
STANDARD OF REVIEW.............................................................................................. 18
SUMMARY OF THE ARGUMENT .................................................................................. 19
ARGUMENT ............................................................................................................... 21
I.
DENYING THE 3599 MOTION WAS AN ABUSE OF

DISCRETION. ......................................................................................... 21
A.
The Statute Requires Appointed Counsel to Assist

Through
All
Available
Post-Conviction
Proceedings. ............................................................................ 21
B.
The Interests-of-Justice Factors Weighed Entirely in

Favor of Substituting CJA Counsel. ......................................... 23
1.
The 3599 motion was timely. ...................................... 24
2.
The courts inquiry into the complaint was

inadequate. ...................................................................... 26
iv
Case: 15-70035
3.
C.
II.
Document: 00513255660
Page: 6
a.
Counsels belief that the Texas clemency

process is a sham is not a basis for
depriving Mr. Holiday of his statutory
right to representation........................................... 26
b.
The record before the district court casts

serious doubt on CJA Counsels
willingness to pursue any remaining legal
challenge. .............................................................. 27
c.
CJA Counsel abandoned Mr. Holidays

unadjudicated federal habeas claims. ................... 32
The cause for the complaint is attributable

entirely to CJA Counsel, not to the client....................... 33
CJA Counsels Last-Minute Decision to Throw

Together a Clemency Application Does Not Obviate
the Need for New Counsel. ....................................................... 35
1.
Clemency plays a distinct and important role in

our criminal justice system. ............................................ 35
2.
CJA Counsels ex post facto attempt to prepare

a clemency application makes a mockery of the
process. ........................................................................... 37
WITHOUT A 2251 STAY, APPOINTING SUBSTITUTE COUNSEL

WOULD BE A MEANINGLESS EXERCISE. ............................................... 41
CONCLUSION & PRAYER FOR RELIEF ........................................................................ 46

CERTIFICATE OF SERVICE .......................................................................................... 47
CERTIFICATE OF COMPLIANCE WITH RULE 32(A) ...................................................... 48
APPENDIX
October 26, 2015 letter from J.W. Volberding to G. Sween ................... TAB 1
October 26, 2015 e-mail from G. Sween to J.W. Volberding ................. TAB 2
v
Case: 15-70035
Document: 00513255660
Page: 7
October 26, 2015 e-mail from J.W. Volberding

to Habeas Colleagues ............................................................................... TAB 3
October 25-28, 2015 e-mail exchange between A. Nickerson
and J.W. Volberding ................................................................................ TAB 4
vi
Case: 15-70035
Document: 00513255660
Page: 8
INDEX OF AUTHORITIES
CASES
PAGE(S)
Christeson v. Roper,
135 S. Ct. 891 (2015) ........................................................................22, 38, 40, 43
Ex parte Clifton Williams,
WR-71,296-02
(Tex. Crim. App. July 17, 2015) .............................................................29, 30, 31
Connecticut Natl Bank v. Germain,
503 U.S. 249 (1992) ............................................................................................ 22
Dretke v. Haley,
541 U.S. 386 (2004)
(Kennedy, J., dissenting)..................................................................................... 36
Duncan v. Walker,
533 U.S. 167 (2001) ............................................................................................ 21
Gonzalez v. Thaler,
No. SA-10 CA-165-0G
(S.D. Tex. January 31, 2011),
ECF No. 16 ......................................................................................................... 31
Gutierrez v. Stephens,
09-cv-00543 (W.D. Tex. Aug. 31, 2010),
ECF No. 45 at 9 .................................................................................................. 31
Harbison v. Bell,
556 U.S. 180 (2009) .....................................................................................passim
In re Hearn,
376 F.3d 447 (5th Cir. 2004) ........................................................................43, 44
In re Hearn,
389 F.3d 122 (5th Cir. 2004) .............................................................................. 43
Hearn v. Dretke,
No. 04-cv-00450-D
(N.D. Tex. Nov. 2, 2004) .................................................................................... 44
vii
Case: 15-70035
Document: 00513255660
Page: 9
Herrera v. Collins,
506 U.S. 390 (1993) ......................................................................................35, 36
Holiday v. Stephens,
135 S. Ct. 2893 (2015) ...................................................................................... 7, 9
Holiday v. Stephens,
587 F. Appx 767 (5th Cir. 2014) ......................................................................... 7
Kansas v. Marsh,
548 U.S. 163 (2006)
(Scalia, J., concurring) ........................................................................................ 36
Martel v. Clair, 132 S. Ct. 1276 (2012) ............................................................passim
McFarland v. Scott,
512 U.S. 849 (1994) .....................................................................................passim
Ohio Adult Parole Auth. v. Woodard,
523 U.S. 272 (1998)
(OConnor, J., concurring)............................................................................11, 35
Panetti v Quarterman,
127 S. Ct. 2842 (2007) ........................................................................................ 11
Panetti v. Stephens,
727 F.3d 398 (5th Cir. 2013) .............................................................................. 18
Shuffield v. Thaler,
08-cv-180 (E.D. Tex. Sept. 29, 2010),
ECF No. 49 ......................................................................................................... 31
Smith v. Dretke,
422 F.3d 269 (5th Cir. 2005) ................................................................................ 1
United States v. Grimes,
244 F.3d 375 (5th Cir. 2001) .............................................................................. 21
United States v. Wilson,
32 U.S. (7 Pet.) 150 (1833) ................................................................................. 36
White v. Thaler,
2013 WL 1442568
(5th Cir. April 1, 2013) ......................................................................................... 7
viii
Case: 15-70035
Document: 00513255660
Page: 10
Williams v. Thaler,
No. 09-cv-00271 (E.D. Tex) ............................................................................... 30
STATUTES
18 U.S.C.
3599...........................................................................................................passim
3599(d) ............................................................................................................. 21
3599(e) ......................................................................................................passim
21 U.S.C. 848(q)(4)-(10) .................................................................................... 21
28 U.S.C.
2244(b) ............................................................................................................. 11
2251..................................................................................................1, 14, 41, 42
Tex. Admin. Code 143.57 ...............................................................................25, 41
OTHER AUTHORITIES
Docket Sheet, In re Williams, WR-71,296-02, available at
http://www.search.txcourts.gov/Case.aspx?cn=WR-71,29602&coa=coscca ................................................................................................... 30
Asifa Quraishi,
Resource Guide for Managing Capital Cases, Volume II: Habeas
Corpus Review of State Capital Convictions,
Federal Judicial Center, Mar. 2010, at 11, available at
http://www.fjc.gov/public/home.nsf/autoframe?openform&url_l=/
public/home.nsf/inavgeneral?openpage&url_r=/public/home.nsf/pa
ges/1002) ............................................................................................................. 31
A. Sarat,
Mercy on Trial: What It Means to Stop an Execution
(Princeton UP 2005) ........................................................................................... 39
Texas Board of Pardons and Paroles website, available at
https://www.tdcj.state.tx.us/bpp/exec_clem/exec_clem.html ............................ 43
Tex. Disc. R. of Prof. Conduct
1.02(b) ................................................................................................................. 13
1.15(a)(3) ............................................................................................................ 12
ix
Case: 15-70035
Document: 00513255660
Page: 11
STATEMENT OF JURISDICTION
A district courts denial of a motion under 18 U.S.C. 3599 is an appealable
order, and such an order . . . is not subject to the COA requirement. Harbison v.
Bell, 556 U.S. 180, 183 (2009); see also Smith v. Dretke, 422 F.3d 269, 288 (5th
Cir. 2005) (a COA is not necessary to appeal the denial of funds for expert
assistance.).
Likewise, 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. McFarland v. Scott, 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).
Case: 15-70035
Document: 00513255660
Page: 12
ISSUES PRESENTED
Under 18 U.S.C. 3599, death-sentenced indigents are entitled to appointed
counsel who shall pursue all available post-conviction proceedings available to
them, including clemency. Immediately after the Supreme Court denied Mr.
Holidays petition for writ of certiorari, his appointed counsel informed him of
their unilateral decision, made years earlier, not to pursue clemency, a stay of
execution, or other relief still available to Mr. Holiday under federal and state law
at that point in his case. Mr. Holidays then sought appointment of substitute
counsel, which was denied without consideration of the factors relevant to the
interests of justice standard.
I.
Did the district court abuse its discretion in denying Mr. Holiday's 3599
motion when CJA Counsel (1) unambiguously declared that they would not
file a clemency application or anything else for him, (2) instructed Mr.
Holiday to find new counsel on his own from death row, and then (3)
opposed and obstructed Mr. Holidays effort to secure new representation?
II.
Is a stay of execution necessary to provide meaningful relief?
Case: 15-70035
Document: 00513255660
Page: 13
INTRODUCTION
Lawyers appointed under the Criminal Justice Act (CJA) cannot be
permitted to shirk their statutorily-mandated duties by misleading the district court
and then engaging in mere window-dressing intended to create an illusion of
performance.
Significant tax-payer resources are expended implementing the
CJAs mandates because this is a nation of laws committed to the adversarial

system as an engine of truth, justice, and basic decency. The goal is not to trick
the public into believing that someone condemned to execution had a nominal
lawyer, and so that should be good enough.
Mr. Holidays appeal presents a narrow, but important, question regarding a
death-sentenced indigents statutory right to appointed counsel willing to pursue
relief available to him under state and federal law. At the conclusion of Mr.
Holidays initial federal habeas corpus proceedings, Mr. Holidays CJA Counsel
unambiguously informed Mr. Holiday that they were through with the case. CJA
Counsel wrote that they were not going to file further appeals for [Mr. Holiday]
and they were not pursuing clemency because it would only give him false hope.
ROA.15-70035.949. Accordingly, CJA Counsel notified Mr. Holiday in June of
2015, [t]his marks the end of work for your appeals. Id. They instructed Mr.
Holiday to find other counsel in the event he wished to pursue relief still available
to him.
3
Case: 15-70035
Document: 00513255660
Page: 14
When Mr. Holidays efforts to find new counsel failed, he moved the district
court to appoint substitute CJA counsel willing to pursue available avenues of
relief like clemency. CJA Counsel then actively opposed his request. In doing so,
they sought to reassure the court of their commitment to Mr. Holiday by making
material misrepresentations regarding their past efforts on behalf of another
similarly-situated death-sentenced client. Despite evidence that a clear conflict had
arisen between the client and his lawyers, the district court accepted CJA
Counsels representations at face value, failed to apply the factors described in
Martel v. Clair that must inform the analysis of a request for substitute counsel
under 18 U.S.C. 3599, and denied relief.
The district courts legitimate concerns about efficiency, in this instance,
prevented it from seeing that CJA Counsel had offered no meaningful justification
for their refusal to assist Mr. Holiday in seeking clemency (until it was far too
late). The sole basis they gave Mr. Holiday and then the district court for their
refusal to comply with 3599s mandate and their clients wishes was a cynical
presumptionthat political realities make the odds of success low. This is not a
valid basis for refusing to provide mandated representation.
Mr. Holiday was able to retain pro bono counsel for the limited purpose of
preserving his representational rights under 3599. He now entreats this Court to
reverse the denial of his motion for appointment of substitute counsel willing to
4
Case: 15-70035
Document: 00513255660
Page: 15
pursue clemency proceedings and any other relief yet available to him under state
or federal law. Mr. Holiday also urges the Court to enter a stay of execution to
enable substitute counsel sufficient time to undertake his or her duties in a
meaningful way, as McFarland v. Scott dictates.
Case: 15-70035
Document: 00513255660
Page: 16
STATEMENT OF FACTS AND STATEMENT OF THE CASE1

Mr. Holiday is scheduled to be executed by the State of Texas on November
18, 2015.
Mr. Holiday was convicted of capital murder and sentenced to death. He is
indigent. As 18 U.S.C. 3599 directs, the district court appointed counselSeth
Kretzer and James W. Volberding (CJA Counsel)to represent Mr. Holiday in
federal habeas corpus proceedings. ROA.15-70035.2.
In the amended federal habeas petition filed in the district court nearly four
years ago, CJA Counsel sought habeas relief based, inter alia, on a claim that
Holiday will be denied a fair clemency process in violation of the Eighth and
Fourteenth Amendments.
ROA.15-70035.548 - ROA.15-70035.549.
CJA
Counsel argued that Holiday will be denied a fair clemency process and
clemency proceedings will not be impartial.
ROA.15-70035.548; see also
ROA.15-70035.549 (arguing that the current governor, Rick Perry, has made
clemency proceedings a sham). CJA Counsel present[ed] this claim [then] in
order to avoid future difficulties with raising this claim in future federal habeas
proceedings. ROA.15-70035.548. Without judicial review of the bias inherent
in Texass clemency process, CJA Counsel argued, Holiday will never have an
opportunity to vindicate his right to a fair and impartial clemency process. Id.
1
Because the facts and procedural history relevant to this appeal are intertwined, these two
sections of Mr. Holidays opening brief have been combined to avoid undue repetition.
Case: 15-70035
Document: 00513255660
Page: 17
The district court accurately noted two defects in this claim for relief. First,
the claim was not exhausted. ROA.15-70035.786. Second, arguments regarding
clemency were not yet ripe for adjudication because Mr. Holiday did not have
an execution date[.] Id. (quoting White v. Thaler, 2013 WL 1442568 (5th Cir.
April 1, 2013)).
The district court ultimately denied habeas corpus relief on all claims except
Mr. Holidays lethal-injection and executive clemency claims.
ROA.15-
70035.789. The district court dismissed those two claims without prejudice. Id.2
This Court affirmed in Holiday v. Stephens, 587 F. Appx 767 (5th Cir. 2014).
CJA Counsel filed a petition for a writ of certiorari, which the Supreme Court of
the United States denied in Holiday v. Stephens, 135 S. Ct. 2893 (2015) on June
29, 2015.
The next day, Mr. Volberding sent a letter to Mr. Holiday, dated June 30,
2015, informing him that CJA Counsel did not intend to take any further action on
his behalf, and noting that he was free to seek assistance from other lawyers. Mr.
Volberding wrote:
In a footnote, the district court noted its opinion that Mr. Holidays claim was not strong based
on this Courts prior determination that Texass clemency procedures are not per se
unconstitutional. ROA.15-70035.786 - ROA.15-70035.787 n.32. These observations were
made, however, before lead counsel for the State of Texas in Mr. Holidays federal habeas
corpus proceedings, Attorney General Greg Abbott, became the governor thus assuming a
position that would permit him to decide Mr. Holidays clemency application. That conflict
suggests that Mr. Holiday, at the very least, has a good-faith basis for arguing that the clemency
procedures, as applied, would be unconstitutional.
2
Case: 15-70035
Document: 00513255660
Page: 18
I am sorry, but the Supreme Court just denied your appeal. This marks
the end of work for your appeals I regret.
Mr. Kretzer and I are not going to file further appeals for you . . . we
do not believe any further appeals have any chance of success.
The only remaining option is for a clemency petition to the Texas governor,
but we do not recommend that because he is not going to grant clemency in
this case, or likely in any other death penalty case. A clemency petition
just gives an inmate false hopes.
You may be contacted by the Texas Defender Service or other law firms
offering to file a successor writ of habeas corpus for you. If so, you are free
to authorize them to do so. Or you may write to them and make that
request. Mr. Kretzer and I will cooperate and provide your file.
ROA.15-70035.949 - ROA.15-70035.950 (emphasis added).3
Mr. Holiday then did as CJA Counsel instructed: he wrote letters to capital
defense attorneys looking for help. Meanwhile, Mr. Holiday was scheduled for
execution on November 18, 2015.
On September 14, 2015, Mr. Holiday had not located new counsel.
Therefore, he petitioned the district court directly, stating:
I have no attorneys representing me. Before me, I have a letter from Mr.
Volberding and Mr. Kretzer, letting me know that they are no longer my
attorneys of record; so I could get a new appointment.
ROA.15-70035.848. While Mr. Holiday did not understand that CJA Counsel
were still his official attorneys of record, his understanding of their letter was
3
Undersigned counsel obtained a copy of this letter from Mr. Holiday who expressly authorized
using it in these proceedings. Also, Mr. Holiday expressly referenced the letter in his pro se
motion to the district court seeking substitute counsel. See ROA.15-70035.848.
Case: 15-70035
Document: 00513255660
Page: 19
correct. CJA Counsel had informed Mr. Holiday in writing that they had reached
the end of work for [his] appeals, that they [were] not going to file further
appeals for [him], and that they were not going to pursue clemency on his behalf.
ROA.15-70035.949. They also suggested that Mr. Holiday find new counsel and
pledged to cooperate by turning over his file to new counsel. Id. Mr. Holiday,
having understandably failed to find a pro bono lawyer willing to jump into a case
with an imminent execution date, moved for substitute counsel under 18 U.S.C.
3599 to represent him in any remaining proceedings, including clemency
proceedings. ROA.15-70035.848.
Mr. Holidays September 14th letter also made clear that the relationship
between client and counsel had broken down. Mr. Holiday noted that he was
treated with hostile verbality [sic] from these two attorneys and the attorneyclient relationship [was] no longer functional in a way that was productive for
either [of the] parties. Id.
On September 22, 2015, CJA Counsel filed a Response of Attorney to
Holidays Motion for New Counsel. ROA.15-70035.850. CJA Counsel did not
contest Mr. Holidays statement that CJA Counsel would not pursue further relief
on his behalf. Indeed, Mr. Kretzer confirmed that CJA Counsel has informed Mr.
Holiday that we do not plan to seek clemency for him. ROA.15-70035.851
(emphasis added). Mr. Kretzer grounded their refusal to pursue clemency relief on
9
Case: 15-70035
Document: 00513255660
Page: 20
the reputed defects in the clemency process that, years earlier, they had urged were
unconstitutional. Compare id. (given political realities, there is no chance at all
that a clemency petition would be granted) (emphasis added), with ROA.1570035.5489 (the current governor, Rick Perry, has made clemency proceedings a
sham). Mr. Kretzer also stated, without explanation, that there does not appear
to be any legal route to delay the pending execution date. ROA.15-70035.851.
At the time, CJA Counsel had made no further effort to litigate the two claims that
the district court had dismissed without prejudice in adjudicating Mr. Holidays
federal habeas petition and stated clearly that they had no plan to pursue further
relief on Mr. Holidays behalf. Id.
Yet CJA Counsel opposed the appointment of substitute counsel, even as
they were litigating against their own client, based on the following reassurances to
the court:
The fact that there is currently no live pleading or motion which we have
filed on Holidays behalf does not reflect any antipathy to Holiday or
laziness on our part, but rather the reality that his legal options are
exhausted now that his certiorari petition has been denied. 4
4
In fact, Mr. Holidays legal options were not exhausted because the district court had dismissed
two of Mr. Holidays claims without prejudice. In 2012, the clemency issue had not been
exhausted and was not yet ripe for adjudication during habeas proceedings because Holiday
did not [then] have an execution date[.] ROA.15-70035.786. At the time of CJA Counsels
September 2015 opposition to their clients motion for substitute counsel, the challenges to the
clemency proceedings had becomeand remainripe. Counsel had pled that Texass clemency
proceedings were so biased that they were a sham. Sham clemency proceedings are, as CJA
Counsel noted in the amended habeas petition, subject to judicial review. See Ohio Adult Parole
Auth. v. Woodard, 523 U.S. 272, 289 (1998) (OConnor, J., concurring) (Judicial intervention
might, for example, be warranted in the face of a scheme whereby a state official flipped a coin
10
Case: 15-70035
Document: 00513255660
Page: 21
Counsels would not hesitate to file a successor writ with the CCA were
meritorious grounds to present themselves for such a writ. For example, in
July, Counsels filed (and were granted) a stay of execution the day
before the execution was to take place in the matter of Clifton Williams
v. Stephens.5
Absent new circumstances, we nevertheless remain Holidays lawyers even
though there does not appear to be any legal route to delay the pending
execution date.
ROA.15-70035.850 - ROA.15-70035.851 (emphasis added).
On September 24, 2015, based on these reassurances from CJA Counsel, and
relying solely on Mr. Kretzers representations, the district court found that the
interest [sic] of justice do not require the appointment of new counsel at this late
to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner
any access to its clemency process.). In light of the district courts dismissal without prejudice,
CJA Counsel could have raised the claim in state habeas proceedings. Harbison v. Bell, 556
U.S. 180, 190 n.7 (2009) (Pursuant to 3599(e)s provision that counsel may represent her
client in other appropriate motions and procedures, a district court may determine on a case-bycase basis that it is appropriate for federal counsel to exhaust a claim in the course of her federal
habeas representation.). If unsuccessful in state court, CJA Counsel could have raised the
clemency claim in a second-in-time federal petition. A new federal petition challenging the
constitutionality of the clemency proceedings available to Mr. Holiday would not be a successive
petition within the meaning of 28 U.S.C. 2244(b). See Panetti v Quarterman, 127 S. Ct. 2842
(2007).
5
As CJA Counsel would subsequently admit in a letter to undersigned counsel, see infra, this
statement was false. CJA Counsel did not move for and obtain a stay of execution for Mr.
Williams. That work was performed by another lawyer who was working under the impression
that Mssrs. Kretzer and Volberding had ceased work on Mr. Williamss behalf after the
termination of his initial federal habeas proceedings. CJA Counsels proffered explanation as to
why a new lawyer had begun representing their client in state court was that, as federal counsel,
they could not appear in state court. As explained below, that explanation is incorrect as a matter
of law. In any event, contrary to their representations to the district court, counsel were neither
willing to represent Mr. Williams in state court nor responsible for the state court litigation that
resulted in a stay of his execution. ROA.15-70035.960 - ROA.15-70035.962.
11
Case: 15-70035
Document: 00513255660
Page: 22
date. ROA.15-70035.854. The courts order cites Martel v. Clair, but does not
apply the factors identified in that case. Id.
On October 15, 2015, Mr. Holiday wrote a second letter to the district court
(which was not filed until October 22, 2015). ROA.15-70035.924. The letter
again urged substitution of CJA Counsel because they had said that they would do
NOTHING ELSE. Id. The letter notes that I have people whove been helping
but are reluctant to do more as long as [CJA Counsel] are my attorneys of record.
Id. Mr. Holiday explained that, instead of honoring his request that they withdraw,
as Texas Disciplinary Rule 1.15(a)(3)6 requires, his CJA Counsel were fighting to
stay on and demanding the legal work that others have done on my behalf. Id.
The letter repeatedly emphasizes the urgency of obtaining conflict-free substitute
counsel in light of the pending execution date. Id.
By October 19, 2015, Mr. Holiday had retained pro bono counsel to help
him preserve his right to have substitute counsel appointed to represent him under
18 U.S.C. 3599 in clemency proceedings. Pro bono counsel then appeared in the
district court by filing a notice of appeal on his behalf. ROA.15-70035.855.7
Undersigned counsel agreed to represent Mr. Holiday for the limited purpose of
The rule addresses Declining or Terminating Representation and states in relevant part: A
lawyer shall decline to represent a client or, where representation has commenced, shall
withdraw . . . the lawyer is discharged, with or without good cause.
6
Current CJA Counsel could not represent Mr. Holiday in this appeal because of their active
opposition to the relief their client seeks.
12
Case: 15-70035
Document: 00513255660
Page: 23
appealing the district courts denial of his request for substitute CJA counsel
willing to pursue remaining avenues of relief, including clemency. 8
Later that same day, Mr. Kretzer sent an e-mail to Mr. Holidays volunteer
attorney in response to the notice of appeal, stating in part:
I think the proper thing for Wes and me to do under the circumstances
is to file a motion to withdraw as CJA counsel since Raphael now has pro
bono counsel [. . . .] I do not believe he can have both at the same time.
If you will please send me your FedEx number, I will ship the complete file
to you[.]
ROA.15-70035.952 (emphasis added).
Undersigned counsel responded by
explaining the limited scope of the representation to which she had agreed and
recommended that CJA Counsel instead move for the appointment of qualified
substitute CJA counsel. ROA.15-70035.859 (Certificate of Conference); ROA.1570035.956.
Later that same day, CJA Counsel filed a Motion to Substitute Counsel or
Alternatively to Withdraw. ROA.15-70035.857. The motion ask the court to
8
The scope of representation to which undersigned counsel agreed does not extend to
representation in any federal habeas corpus or state clemency proceeding. Undersigned counsel
had a right, and in fact an obligation, to limit the scope of her representation of Mr. Holiday. See
Tex. Disc. R. of Prof. Conduct 1.02(b) (A lawyer may limit the scope, objectives and general
methods of the representation if the client consents after consultation). Undersigned counsel is
not, as CJA Counsel has argued, qualified by past experience to undertake representation of Mr.
Holiday for all purposes. She has never provided direct representation of a defendant in a capital
case or any criminal case. Her role in capital litigation has been limited to representing amici
with interests related to specific issues raised by specific cases; for instance, she has represented
the American Association on Intellectual and Developmental Disabilities, The University of
Texas Capital Punishment Center, and The ARC of the United States as amicus curiae in capital
cases.
13
Case: 15-70035
Document: 00513255660
Page: 24
forcibly substitute undersigned counsel, on a pro bono basis, for all purposes. CJA
Counsel did not oppose another lawyer representing their client; their opposition
was limited to another lawyer being paid and supplied with the necessary CJA
resources to do so.
On October 22, 2015, the court denied CJA Counsels motion to conscript
pro bono counsel to replace them.
ROA.15-70035.879 - ROA.15-70035.882.
Almost simultaneously, before seeing the order that had just been entered, Mr.
Holidays pro bono counsel filed a Response in Partial Opposition to CJA
Counsels Motion to Substitute Counsel, or Alternatively to Withdraw combined
with a Motion for Alternative Relief under 18 U.S.C. 3599 & 28 U.S.C.
2251. ROA.15-70035.883. The request for relief and arguments made in that
pleading were not before the court when it entered the order denying the CJA
Counsels motion. Nor was it clear whether the district court had yet seen Mr.
Holidays October 15th letter (ROA.15-70035.924), as the letter was not filed until
later in the day on October 22nd.
The next morning, on October 23, 2015, CJA Counsel sent a letter to Mr.
Holidays pro bono counsel threatening to pursue sanctions against her if she did
not dismiss the pending appeal. ROA.15-70035.960. The letter also directed
undersigned counsel to stop helping Mr. Holiday with efforts to replace them:
The courts order yesterday makes clear that Mr. Kretzer and I are Raphaels
14
Case: 15-70035
Document: 00513255660
Page: 25
lawyers.[9] I hope this ends [sic] discussion. We direct that you dismiss your
notice of appeal to the Fifth Circuit immediately. Id. The letter states, however,
that CJA Counsel would be willing to file documents ghost-written by undersigned
counsel for their signature.
ROA.15-70035.961 (suggesting that undersigned
counsel write a clemency petition for our signature and we will submit it.).10
Mr. Holidays pro bono counsel then apprised the district court of this full
chronology in a Motion to Reconsider the Orders Denying Relief under 18 U.S.C.
3599. ROA.15-70035.927 - ROA.15-70035.935. The motion urged the district
court to reconsider Mr. Holidays request for the appointment of qualified,
conflict-free substitute counsel and asked for the entry of a stay of execution so
that substitute counsel could have a meaningful opportunity to provide the
representation that CJA Counsel had been refusing to provide. Id.
On October 25, 2015, in response to the litigation over their unwillingness to
perform their duties under 3599, CJA Counsel reversed themselves and announce
that they would pursue clemency relief after all. ROA.15-70035.965 (so as to
The district courts order did not suggest that pro bono counsel should cease representing Mr.
Holiday, as CJA Counsel implied. The order correctly acknowledged that her representation of
Mr. Holiday was limited to the issues to be raised in this appeal. ROA.15-70035.880.
9
10
Additional, the letter confirmed thatcontrary to their prior representation to the district court
that they had personally filed a state court stay motion and secured a stay of execution for a
previous client (Clifton Williams)CJA Counsel had played no role in the proceedings that
actually led to Mr. Williamss stay of execution. ROA.15-70035.961 - ROA.15-70035.962 (Jim
Huggler wrote and filed the state motion to stay . . . . You are correct that Mr. Huggler gets the
credit for the win.).
15
Case: 15-70035
Document: 00513255660
Page: 26
obviate [pro bono counsels] concerns, we will use our best efforts to present a
clemency petition to the Governor and Board of Pardons and Paroles.).
The next morning, the district court denied the Motion to Reconsider.
ROA.15-70035.969 - ROA.15-70035.970. The order emphasized that pro bono
counsel had not identified any state or federal habeas corpus claim that Holidays
attorneys have failed to advance or specified what non-frivolous grounds a
reasonable attorney would base a clemency petition on. Id. The order noted that
CJA Counsel had represented that they might now consider filing a clemency
petition on Mr. Holidays behalf, id., but does not mention the conflict between
CJA Counsel and their client.
Id.
Further, the order emphasizes the fast-
approaching execution date and concluded that the interests of justice did not
require substitution of counsel. Id.
Soon after this order was disseminated through the courts electronic filing
system, on October 26, 2015, CJA Counsel sent another letter to Mr. Holidays pro
bono counsel, asking for her assistance in preparing a clemency petition they date
would likely file November 2. TAB 1. Mr. Holidays pro bono counsel
responded to the letter by indicating, inter alia, that CJA Counsels proposed filing
would be five days beyond the statutory deadline and referred them to the
appropriate statute. TAB 2. That same morning, current CJA Counsel also sent out
a mass email to a national listserve stating: For a pending Texas execution, we
16
Case: 15-70035
Document: 00513255660
Page: 27
need examples of well-written clemency petitions. We are interested in appeals to

history, ethics, religion, general racial bias, evolving standards, or other such nonfact specific appeals. TAB 3.
On October 28, 2015, Mr. Volberding sent an email to Mr. Holidays mother
(Angella Nickerson) to respond to her anxiety and confusion about the last-minute
efforts to pull together support for a clemency application. TAB 4. Mr. Volberding
explained CJA Counsels sudden decision to file one as follows: A lawyer from
Austin intervened in Raphaels case and complained that we had not filed a
clemency petition and that Raphael wanted one.
Id.
Mr. Volberding also
admitted that with the execution so close, there was little time to get this done.
So Mr. Kretzer and I rushed and completed this today. Id. (emphasis added).
CJA Counsel did not mention that they had long been on notice that Mr. Holiday
wanted to pursue clemency or that they had resisted his efforts to find substitute
counsel willing to represent him in pursuing this relief. See id.
On October 28, 2015, three days after reversing course, CJA Counsel filed
their rushed application. Id.
In the afternoon of October 29, 2015, a representative of undersigned
counsel met with Mr. Holiday and learned that he was unaware of, and had not
been consulted about, CJA Counsels last-minute effort to prepare a clemency
application reputedly on his behalf. This appeal follows.
17
Case: 15-70035
Document: 00513255660
Page: 28
STANDARD OF REVIEW
This Court reviews de novo the question of whether the district court applied
the correct legal standard in assessing Mr. Holidays request for the appointment of
substitute counsel under 18 U.S.C. 3599. Cf. Panetti v. Stephens, 727 F.3d 398,
409 (5th Cir. 2013). The application of the correct standard to the facts is reviewed
for abuse of discretion. Martel v. Clair, 132 S. Ct. 1276, 1287 (2012).
18
Case: 15-70035
Document: 00513255660
Page: 29
SUMMARY OF THE ARGUMENT

This appeal is about the right to representation.
Mr. Holiday sought
substitute counsel as authorized by 3599 after his appointed counsel refused to do

further work for him expressly mandated by 3599particularly pursuing
clemency and other relief available to him under state or federal law. The only
reason they gave the client or the court for refusing to undertake this work was
their personal belief that it would be futile. This conclusion, which is not a
legitimate basis for unilaterally declining to pursue available remedies, was not
reached as a result of any client-specific investigation when clemency became ripe.
CJA Counsel reached this conclusion years earlier when they raised a claim
prematurely attacking the Texas clemency process as violative of due process.
The district court abused its discretion by failing to grant the motion for
substitute counsel. The court did not apply the relevant interests-of-justice factors
outlined in Martel v. Clair, even though all of those factors weighed entirely in
favor of granting relief. The court did not probe the conflict between the lawyers
and their client that was being played out before the court.
It took the
representations of CJA Counsel at face value, although their own statements

showed that they were unwilling to provide the representation to which Mr.
Holiday was statutorily entitled.
The court further erred by expecting the
essentially abandoned client to come forward with a basis for clemency before he
19
Case: 15-70035
Document: 00513255660
Page: 30
had counsel to investigate a basis for clemency.
The courts error and CJA
Counsels refusal to pursue their clients right to seek clemency disregard the
nature of, and are a threat to, this distinct and significant component of our
criminal justice system.
By thwarting Mr. Holidays efforts to obtain substitute, conflict-free counsel
who would pursue clemency relief, and then agreeing to withdraw only when it
was too late, CJA Counsel made it impossible to effectuate Mr. Holidays federal
statutory rights to representation without a stay of execution. Mr. Holiday is
entitled to relief, in the form of a stay of execution and appointment of qualified
substitute counsel willing to zealously defend him in fact.
20
Case: 15-70035
Document: 00513255660
Page: 31
ARGUMENT
I.
DENYING THE 3599 MOTION WAS AN ABUSE OF DISCRETION.

The Statute Requires Appointed Counsel to Assist Through All
Available Post-Conviction Proceedings.
A.
Under 18 U.S.C. 3599, indigent defendants in capital cases have a right to

representation by qualified counsel.
(1994).
McFarland v. Scott, 512 U.S. 849, 854
The statute, originally codified as 21 U.S.C. 848(q)(4)-(10), was
specifically enacted to improve the quality of representation afforded capital

petitioners.
Clair, 132 S. Ct. at 1285.
The statute includes an internal
justification: it exists because of the seriousness of the possible penalty and . . .

the unique and complex nature of the litigation. 18 U.S.C. 3599(d).
As this Court well knows, construing 3599 must begin, as always, with
the language of the statute.
Duncan v. Walker, 533 U.S. 167, 172 (2001)
(citations omitted); United States v. Grimes, 244 F.3d 375, 382 (5th Cir. 2001)
(To ignore the plain-meaning approach would undermine several of the statutes
purposes). Under 3599(e), CJA representation shall continue throughout
every subsequent stage of available judicial proceedings,which expressly
includes all available post-conviction process, together with applications for
stays of execution and other appropriate motions and procedures[.] 18 U.S.C.
3599(e) (emphasis added). Moreover, the statute expressly directs that counsel
shall also represent the defendant in such competency proceedings and
21
Case: 15-70035
Document: 00513255660
Page: 32
proceedings for executive or other clemency as may be available to the

defendant. Id. Where, as here, the statutory text is clear, that language controls:
the CJA lawyer shall represent the capital defendant in such proceedings for
executive or other clemency that are available to the defendant. Id. [C]ourts
must presume that a legislature says in a statute what it means and means in a
statute what it says there. Connecticut Natl Bank v. Germain, 503 U.S. 249, 25354 (1992).
The Supreme Court has interpreted 3599 to require the appointment of
conflict-free 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); Clair, 132 S. Ct. at 1284-86 (emphasizing that the court would have to
appoint new counsel if the first lawyer developed a conflict with or abandoned the
client). Additionally, the statute contemplates that CJA counsel may be replaced
upon motion of the defendant himself. Id.
There can be no debate regarding Mr. Holidays statutory right to appointed
counsel that shall represent him in seeking clemency, a stay of execution, and
any other relief available to him. Likewise, there can be no debate that Mr.
Holiday filed a pro se motion seeking to replace his appointed counsel (as
3599(e) permits) so that he could acquire counsel willing to do what the statute
mandates.
Despite the unequivocal statutory text and factual context, Mr.

22
Case: 15-70035
Document: 00513255660
Page: 33
Holidays 3599 motion was denied. ROA.15-70035.853 - ROA.15-70035.854;

ROA.15-70035.969 - ROA.15-70035.970.
B.
The Interests-of-Justice Factors Weighed Entirely in Favor of

Substituting CJA Counsel.
In Martel v. Clair, the Supreme Court unanimously concluded that motions

seeking new 3599 counsel should be assessed under the in the interests of
justice standard. 132 S. Ct. at 1284. This standard is the same as that applicable
in non-capital cases under 3006A. Id. at 1281. The Supreme Court reasoned that
[a]dopting a more stringent test than 3006As would deprive capital defendants
of a tool they formerly had, and defendants facing lesser penalties still have, to
handle serious representational problems. Id. at 1285. The Supreme Court also
noted that this standard is a peculiarly context-specific inquiry, but generally
courts consider these factors:
the timeliness of the motion;
the adequacy of the district courts inquiry into the defendants
complaint; and
the asserted cause for the complaint, including the extent of the
conflict or breakdown in communication between lawyer and client
(and the clients own responsibility, if any, for that conflict).
Id. at 1287 (citing cases).
23
Case: 15-70035
Document: 00513255660
Page: 34
Mr. Holidays 3599 motion should have been granted in the interests of
justice. McFarland, 512 U.S. at 857. Mr. Holiday timely sought the appointment
of substitute counsel after a conflict was precipitated by CJA Counsels
simultaneous refusal to pursue relief available to the client as a matter of law (such
as clemency) and refusal to allow substitution of new CJA counsel who would.
Worse, after instructing Mr. Holiday to find new counsel on his own and pledging
cooperation with any new counsel, CJA Counsel inexplicably opposed and
obstructed their clients efforts to find new lawyers.
ROA.15-70035.949 -
ROA.15-70035.950; ROA.15-70035.857. The district court should have probed

the nature and source of the conflict. It did not. Thus, as explained further in
sections 1-3 below, all of the relevant factors weighed in favor of granting Mr.
Holidays pro se motion to be appointed CJA counsel willing to comply with
3599. Denying the motion was an abuse of discretion.
1. The 3599 motion was timely.
The courts initial order denying Mr. Holiday relief alludes to the late date
of the motion. ROA.15-70035.854. Presumably, that allusion reflects the fact that
Mr. Holiday filed his motion after the State had set a date for his execution. But
Mr. Holidays motion was plainly filed promptly after, and in response to, his CJA
Counsels announcement that they had made a unilateral decision to cease
providing the representation they had been appointed to provide. As the pro se
24
Case: 15-70035
Document: 00513255660
Page: 35
motion explains, Mr. Holiday received a letter from his CJA Counsel telling him
that the Supreme Court had denied his cert petition and that they would not take
any further action on his behalf. ROA.15-70035.848; see also ROA.15-70035.949.
Shortly thereafter, the State set a date for Mr. Holidays execution. Mr. Holiday
entreated his lawyers to pursue clemency, as they admit that he did; and once the
conflict between them was plainly irresolvable, Mr. Holiday made a desperate plea
directly to the district court through a letter received on September 22, 2015.
ROA.15-70035.848. That is, less than three months lapsed between the date when
CJA Counsel first informed Mr. Holiday that they would not provide him with
mandatory representation and the date when Mr. Holiday petitioned the court
directly for help. During that time, Mr. Holiday, from death row, was sending out
queries seeking help from lawyers as far away as California. He then took his
request directly to the district court more than one month before any clemency
application would have been due under rules applied by the Texas clemency board.
ROA.15-70035.848; see also Tex. Admin. Code 143.57 (requiring receipt of
clemency application 21 days before a scheduled execution date).
There is no basis for suggesting that Mr. Holiday engaged in abusive
delay. Clair, 132 S. Ct. at 1286-87. His pro se motion was filed at a late date
only because his CJA Counsel informed him at a late date that they had decided
not to pursue clemency on his behalf. See, by contrast, id. at 1288 (noting that
25
Case: 15-70035
Document: 00513255660
Page: 36
defendants second motion to substitute counsel was filed on the eve of the district
courts deciding a 10-year-old habeas petition). The first interests-of-justice
factor weighed entirely in favor of granting Mr. Holidays motion.
2. The courts inquiry into the complaint was inadequate.
Courts cannot properly resolve substitution motions without probing why a

defendant wants a new lawyer. Clair, 132 S. Ct. at 1288 (citing cases). The
district courts orders denying substitution of counsel reflect no inquiry into Mr.
Holidays complaint.
representations.
Instead, the court relied solely on Mr. Kretzers
ROA.15-70035.854.
Those representations included CJA
Counsels statements that given political realities, there is no chance at all that a
clemency petition would be granted; CJA Counsel would not hesitate to file any
remaining legal challenge; and there does not appear to be any legal route to
delay the pending execution date. ROA.15-70035.851. On the record before the
district court, there was considerable reason to doubt all three of these
representations, as explained below in subsections a-c.
a. Counsels belief that the Texas clemency process is a
sham is not a basis for depriving Mr. Holiday of his
statutory right to representation.
As explained above, CJA counsel are required by 3599 to represent their
clients in proceedings for executive or other clemency as may be available to the
defendant. 18 U.S.C. 3599. The statute conditions the right to representation
26
Case: 15-70035
Document: 00513255660
Page: 37
on the availability of the process, not on counsels subjective views about the
integrity of the process. CJA Counsels longstanding belief that Texas clemency
process is a sham constrains their ability to participate in them.
ROA.15-
70035.549. And, in light of their statutory duty to represent their client in those
proceedings, CJA Counsels decision to abstain from the clemency process is a
basis for replacing them. Accommodating CJA Counsels objections to the Texas
clemency process by depriving their client of representation in that process is
contrary to 3599 and does not serve the interests of justice.
Further, the district court left open CJA Counsels habeas claim that the
Texas clemency proceedings are unconstitutional, subject to exhaustion of
remedies and the issue becoming ripe. Arguably, filing a clemency application
may be necessary to satisfying both of these prerequisites to federal habeas review.
Thus, CJA Counsels long-held belief that the Texas clemency proceedings lack
integrity was all the more reason to perform the work necessary to secure merits
review of this issue in federal court. Instead, CJA Counsel announced they had
reached the end of work for Mr. Holiday before undertaking any clemencyrelated investigation on his behalf. ROA.15-70035.949.
b. The record before the district court casts serious doubt on
CJA Counsels willingness to pursue any remaining legal
challenge.
27
Case: 15-70035
Document: 00513255660
Page: 38
When denying the 3599 motion, the district court relied on CJA Counsels
representation that they would pursue any remaining legal challenges on behalf of
Mr. Holiday. See, e.g., ROA.15-70035.880 (Mr. Kretzer does not indicate an
unwillingness to advocate zealously for his client); ROA.15-70035.881 (Mr.
Kretzer has represented to the court that he has investigated possible claims and
would not hesitate to file additional legal challenges). But the record before the
district court contradicted CJA Counsels assertions and demonstrated that CJA
Counsel had even misrepresented what they had done on behalf of another deathsentenced client to convince the district court that they were committed to Mr.
Holiday, a similarly situated client. See ROA.15-70035.887 - ROA.15-70035.897.
First, the district court had not finally resolved all of Mr. Holidays claims
for federal habeas corpus relief. ROA.15-70035.789. CJA Counsel were obligated
to exhaust his remaining claims and refile them in federal court. But CJA Counsel
refused to participate in Texass clemency proceedings, which they had previously
deemed a sham. Thus, Mr. Holiday did have additional legal challengeswhich
CJA Counsel raised for the first time in federal court in Mr. Holidays habeas
petitionto be litigated in state and federal court. By abandoning these claims and
refusing to follow through because of a personal political belief about the futility of
clemency, CJA Counsels conduct was inconsistent with zealous representation.
28
Case: 15-70035
Document: 00513255660
Page: 39
Second, CJA Counsel sought to reassure the district court that they would
take all appropriate action on behalf of their death-sentenced client by pointing to
their recent representation of another client, Clifton Williams. Their work on
behalf of Mr. Williams, they claimed, illustrated their willingness, in principle, to
pursue remaining relief for Mr. Holiday if it was available:
The fact that there is currently no live pleading or motion which we have
filed on Holidays behalf does not reflect any antipathy to Holiday or
laziness on our part, but rather the reality that his legal options are exhausted
now that his certiorari petition has been denied . . . .
Counsels would not hesitate to file a successor writ with the CCA were
meritorious grounds to present themselves for such a writ. For example, in
July, Counsels filed (and were granted) a stay of execution the day
before the execution was to take place in the matter of Clifton Williams
v. Stephens.
ROA.15-70035.851 (emphasis added). The district court relied exclusively on
these representations in denying Mr. Holidays pro se motion for new counsel:
this Court entered an order denying Holidays motion for new counsel on the
representation of the undersigned [current CJA Counsel] that they would file an
article 11.071 writ in the event that a meritorious basis to do so presented itself.
ROA.15-70035.857 (emphasis added).
As Mr. Holiday demonstrated to the district court, these representations were
false. ROA.15-70035.892 - ROA.15-70035.897. Mr. Kretzer and Mr. Volberding
did not file[] . . . a stay of execution on behalf of Mr. Williams in state court as
they had claimed. The state court docket reflects that all of the pleadings that led
29
Case: 15-70035
Document: 00513255660
Page: 40
to Mr. Williamss stay of execution from the Texas Court of Criminal Appeals
(TCCA) were filed by an attorney named James Huggler, Jr. See Ex parte
Clifton Williams, WR-71,296-02 (Tex. Crim. App. July 17, 2015).11 TCCA rules
required that Mr. Huggler explain why he sought a stay of execution less than
seven days before the execution was scheduled. Mr. Huggler explained as follows:
On June 11, 2015 the trial court appointed me to represent Mr. Williams in
seeking a petition for clemency with the Texas Board of Pardons and
Paroles. It was counsels understanding that the previous attorneys would
not be representing Mr. Williams following the denial of certiorari by
the United States Supreme Court.
ROA.15-70035.923 (July 15, 2015 letter from James Huggler, Jr. to the TCCA)
(emphasis added). Seth Kretzer and James Volberding were the lawyers to whom
Mr. Huggler referred as the previous attorneys, appointed CJA counsel for
Clifton Williams. See Williams v. Thaler, No. 09-cv-00271 (E.D. Tex) (Doc. 5,
appointing James Volberding; Doc. 26, appointing Seth Kretzer).12
CJA Counsel subsequently acknowledged in an October 23, 2015 letter to
undersigned counselwhich was also put before the district courtthat another
lawyer had actually secured the stay of execution for Mr. Williams. ROA.1570035.961 - ROA.15-70035.962.
Further, the letter reflects CJA Counsels
11
Docket and pleadings available at http://www.search.txcourts.gov/Case.aspx?cn=WR-71,29602&coa=coscca.

12
There is no record in the district court, the Fifth Circuit, or the Supreme Court indicating that
either lawyer sought to withdraw or substitute counsel before they ceased representing Mr.
Williams while relief under 3599(e) was still available to him.
30
Case: 15-70035
Document: 00513255660
Page: 41
erroneous belief that they, as federal counsel, could not appear in state court on
Mr. Williamss behalf.13 Most importantly, their letter refutes the proof they had
offered the district court of their willingness to pursue state court remedies on
behalf of their clients. ROA.15-70035.851.
The record demonstrates that CJA Counsel had misrepresented their actions
in another case for the purpose of persuading the district court here to deny their
client substitute counsel willing to pursue remedies still available to him. The
Williams case demonstrates that another lawyer had to be appointed to seek
13
Six years ago, the Supreme Court held that CJA counsel may be compensated for
representation in state court proceedings that are subsequent to their CJA appointment:
Pursuant to 3599(e)s provision that counsel may represent her client in other appropriate
motions and procedures, a district court may determine on a case-by-case basis that it is
appropriate for federal counsel to exhaust a claim in the course of her federal habeas
representation. Harbison, 556 U.S. at 190 n.7. See also Asifa Quraishi, Resource Guide for
Managing Capital Cases, Volume II: Habeas Corpus Review of State Capital Convictions,
Federal
Judicial
Center,
Mar.
2010,
at
11,
available
at
http://www.fjc.gov/public/home.nsf/autoframe?openform&url_l=/public/home.nsf/inavgeneral?o
penpage&url_r=/public/home.nsf/pages/1002) (In 2009, the Supreme Court, interpreting
3599(e), held that district courts have the discretion to determine, on a case-by-case basis,
whether it is appropriate for federal counsel to exhaust claims in state court during the course of
federal habeas representation.[] Thus, in districts with states that do not provide for appointment
and/or compensation of state post-conviction counsel, courts have discretion to compensate
federally appointed capital habeas counsel using CJA appropriations or to allow federal defender
organizations to represent the petitioner in state court.) (footnote omitted).
Federal courts in Texas have, in fact, determined that it is necessary to compensate CJA counsel
for filing successive habeas corpus petitions in the Texas state courts. See, e.g., Gonzalez v.
Thaler, No. SA-10BCA-165-0G (S.D. Tex. January 31, 2011), ECF No. 16 (granting stay and
abeyance and appointing counsel for the purpose of filing a successive state habeas court
application); Gutierrez v. Stephens, 09-cv-00543 (W.D. Tex. Aug. 31, 2010), ECF No. 45 at 9
(federal habeas counsel are available to assist state petitioners seeking to exhaust available state
habeas remedies through successive state habeas corpus procedures); Shuffield v. Thaler, 08-cv180 (E.D. Tex. Sept. 29, 2010), ECF No. 49 (the Court authorizes Shuffields counsel to
represent him in exhausting his Brady claim in the state court. The Court will compensate them
in accordance with the terms as their current CJA appointment.).
31
Case: 15-70035
Document: 00513255660
Page: 42
clemency and a stay of execution for Mr. Williams because Mr. Kretzer and Mr.
Volberding had de facto abandoned him. On this record, the district court should
not have credited CJA Counsels representations that they would not hesitate to file
additional legal challenges. They previously balked when Clifton Williams needed
counsel for clemency and in successive state habeas proceedings, and they
demonstrated the same unwillingness to provide mandated representation here.
c. CJA Counsel abandoned Mr. Holidays unadjudicated
federal habeas claims.
The district court credited CJA Counsels inaccurate representations that
there were no outstanding legal issues to pursue on Mr. Holidays behalf. As
explained above, CJA Counsel had, four years ago, raised an unexhausted
challenge to Texas clemency proceedings, and the district court had dismissed it
without prejudice as not yet ripe for review. ROA.15-70035.789. CJA Counsel
remain of the view that the Texas clemency proceedings are a sham; but the
political realities that they see as a barrier are a basis for a claim, not for refusing
to pursue relief. ROA.15-70035.851. For instance, the claim Mr. Holiday made in
his federal habeas petition that Texass clemency proceedings lack impartiality is
now enhanced by the fact that the decision-maker for any clemency or reprieve
request now was lead counsel for the State of Texas in Mr. Holidays federal
habeas proceedings: Governor Greg Abbott. The reason for alleging this claim in
Mr. Holidays amended federal petition was to preserve it for review once it
32
Case: 15-70035
became ripe.
Document: 00513255660
Page: 43
The claim is now ripe, thus there is at least one preserved,
outstanding issue to litigate.14

The district court failed to adequately probe the basis of Mr. Holidays
complaint. Instead, it credited completely CJA Counsels self-serving descriptions
of their zealousness despite a record that called into question both their zealousness
and their credibility. An adequate inquiry into the basis for Mr. Holidays motion
for new CJA counsel would have concluded that his complaints were wellfounded. Therefore, the second interests-of-justice factor weighed entirely in favor
of granting Mr. Holidays 3599 motion.
3. The cause for the complaint is attributable entirely to CJA
Counsel, not to the client.

The third interests-of-justice factor also weighed entirely in favor of granting
the request for substitute counsel. The cause of Mr. Holidays complaint cannot be
disputed: Mr. Holiday wanted counsel who would continue to work on his behalf
after the conclusion of his initial federal habeas proceedings. Under 3599, Mr.
14
Undersigned counsel has no way of knowing whether there are other legal issues that should be
litigated. This one, however, is obvious from the face of the district courts resolution of Mr.
Holidays federal habeas petition. ROA.15-70035.789. The district court stated that
undersigned counsel had not identified any state or federal habeas corpus claim that Holidays
attorneys have failed to advance or specified what non-frivolous grounds a reasonable attorney
would base a clemency petition on. ROA.15-70035.969 - ROA.15-70035.970. But, as the
court also acknowledged, the role of undersigned counsel was limited to preserving Mr.
Holidays right to counsel willing to pursue all relief available to him under 3599. ROA.1570035.880. Preserving that rightby arguing to this Court that Mr. Holidays motion seeking
substitute counsel was erroneously deniedis governed by Martel v. Clair and does not require
establishing in advance what habeas claims or specific bases for clemency new counsel, once
appointed, could argue.
33
Case: 15-70035
Document: 00513255660
Page: 44
Holiday was entitled to representation in clemency and other available

proceedings, and counsel appointed under 3599 were obligated to provide it.
CJA Counsel, however, refused to provide this representation.
And, after
instructing their indigent, death-sentenced client to go find new counsel on his

own, CJA Counsel opposed his effort to secure new counsel. The cause for Mr.
Holidays complaint is thus attributable solely to CJA Counsel.
In stark contrast, the source of the conflict at issue in Clair between the
client and his appointed lawyers was Clair himself, who, unlike Mr. Holiday, had a
history of complaining about his appointed lawyers; and the specific conflict at
issue in the case arose from Clairs desire to see counsel pursue wholly new claims
through habeas based on physical evidence that did not relate to any of the
claims Clair had previously made in his habeas petition. 132 S. Ct. at 1288. And,
as the Supreme Court explained, a substitute lawyer could only have satisfied
Clairs latest desire by seeking a wholesale revision of the long-pending habeas
petition. Id. Here, CJA Counsel should have been preparing for the prospect that
the Supreme Court might deny Mr. Holidays cert petition well before June 29,
2015 and then pursued any remaining claims.
Or, if they were unwilling to
provide the representation he wanted and to which the law entitled him, then,
instead of thwarting Mr. Holidays efforts to find willing substitute counsel and
instead of misleading the district court, they should have done as they had initially
34
Case: 15-70035
Document: 00513255660
Page: 45
promised Mr. Holiday to cooperate in helping him obtain substitute counsel.

ROA.15-70035.950. The conflict between CJA Counsel and Mr. Holiday arose
from CJA Counsels conduct, not from the clients irrational demands (as in Clair).
In sum, all relevant factors show that the interests of justice supported
granting Mr. Holidays 3599 motion. Denying Mr. Holidays motion was,
therefore, an abuse of discretion.
C. CJA Counsels Last-Minute Decision to Throw Together a Clemency
Application Does Not Obviate the Need for New Counsel.
1. Clemency plays a distinct and important role in our criminal
justice system.
Congress decided years ago that death-sentenced indigents should not be
abandoned by their lawyers as an execution date looms. See 18 U.S.C. 3599(e).
As Harbison v. Bell explains, [i]n authorizing federally funded counsel to
represent their state clients in clemency proceedings, Congress ensured that no
prisoner would be put to death without meaningful access to the fail-safe of our
justice system. 129 S. Ct. 1481, 1491 (2009) (quoting Herrera v. Collins, 506
U.S. 390, 415 (1993)) (emphasis added). This decision by Congress was rooted in
the longstanding view that the right to pursue clemency is fundamental to our
system of justice.
Clemency is traditionally available to capital defendants as a final and
alternative avenue of relief. Ohio Adult Parole Authority v. Woodward, 523 U.S.
35
Case: 15-70035
Document: 00513255660
Page: 46
272, 284 (1998) (Rehnquist, C.J.) (emphasis added). Clemency is deeply rooted
in our Anglo-American tradition of law, and is the historic remedy for preventing
miscarriages of justice where judicial process has been exhausted. Herrera, 506
U.S. at 411-12. Although clemency reflects an act of grace, it proceeds from
the power entrusted with the execution of the laws, which exempts the individual,
on whom it is bestowed, from the punishment the law inflicts for a crime he has
committed. United States v. Wilson, 32 U.S. (7 Pet.) 150 (1833). Therefore,
[f]ar from regarding clemency as a matter of mercy alone, clemency provides a
critical backstop downstream of habeas litigation. Harbison, 129 S. Ct. at 1490
(quoting Herrera, 506 U.S. at 415); see also Kansas v. Marsh, 548 U.S. 163, 193
(2006) (Scalia, J., concurring) (defending the role of executive clemency as
demonstrat[ing] not the failure of the system but its success because clemency is
a device that is part and parcel of the multiple assurances that are applied before a
death sentence is carried out); Dretke v. Haley, 541 U.S. 386, 399 (2004)
(Kennedy, J., dissenting) (Among its benign if too-often ignored objects, the
clemency power can correct injustices that the ordinary criminal process seems
unable or unwilling to consider.).
In short, a clemency proceeding gives a condemned person the right to plead
for his life in terms the judicial process cannot accommodate. The point is not to
rehash claims that the courts have rejected before different decision-makers in the
36
Case: 15-70035
Document: 00513255660
Page: 47
executive branch. Instead, it is an opportunity to present humane reasons unique to

the applicant that evoke the need for, and instill the desire to, grant mercy. The
right to seek mercy, by arguing from a perspective that transcends the limits of the
judicial process, is not a matter to abandon, or to pursue, without considerable care
and effort.
2. CJA Counsels ex post facto attempt to prepare a clemency
application makes a mockery of the process.
Mr. Holiday has been, de facto, without 3599 representation since his
current CJA Counsel announced in a letter dated June 30, 2015 that they would not
do any more work on his behalf. ROA.15-70035.949. Nearly four months were
then lost, during which time his CJA Counsel actively thwarted Mr. Holidays
attempts to retain substitute counsel, even though they had initially encouraged
him to look elsewhere for help. After Mr. Holiday brought the issue to the district
court, CJA Counsel engaged in a series of erratic swingssimultaneously offering
to withdraw while attacking the volunteer lawyer they proposed as a substitute and,
all the while, inexplicably, resisting appointment of substitute CJA counsel. See
ROA.15-70035.868; ROA.15-70035.868.924; ROA.15-70035.868.952; ROA.1570035.868.960.
Then, two days before the deadline for filing a clemency
application, they sought to pull together an application as a face-saving measure

for themselves. ROA.15-70035.868.964 - ROA.15-70035.868.967. Indeed, CJA
Counsel told Mr. Holidays mother that they had no confidence in their last-minute
37
Case: 15-70035
Document: 00513255660
Page: 48
application, that it had no chance, was only filed because [a] lawyer from
Austin intervened, and there was little time to get this done, so they rushed to
do it. See TAB 4.
Congress did not intend to have tax-payer resources squandered on mere
cosmetic compliance with its mandates. See 18 U.S.C. 3599. Section 3599s
enactment reflects Congresss determination that quality legal representation is
necessary in all capital proceedings to foster fundamental fairness in the imposition
of the death penalty. Clair, 132 S. Ct. at 1285 (internal citations and quotation
marks omitted).
Resources are earmarked under 3599 because Congress
believes, and the Supreme Court has concurred, that indigents should not be
executed without access to conflict-free counsel to pursue all available process
delineated in the statute. See 18 U.S.C. 3599(e); see also Harbison, 129 S. Ct. at
1491; Christeson, 135 S. Ct. at 894-96.
CJA Counsels last-minute decisionmade on Sunday night, October 25th
to prepare a clemency application only after they had been criticized for failing to
perform their 3599 duties is not the kind of quality legal representation [that] is
necessary to provide meaningful assistance in clemency proceedings. Clair, 132
S. Ct. at 1285. CJA Counsels work reflects precisely what one would expect in an
eleventh-hour effort by those who have avowed no real commitment to the work
and displayed a conflict with the client: a slipshod rehashing of failed legal
38
Case: 15-70035
Document: 00513255660
Page: 49
arguments that had been pled and briefed over the years when CJA Counsel
represented Mr. Holiday. Their work, undertaken in two days, could not reflect the
fundamental purpose of a clemency application. That purpose is to focus on
matters that the legal process has been unable to addressthe petitioners
humanity and why his myriad frailties and strengths of character call for the mercy
of commutation, how his life on death row has shown that he is on a course of
redemption for his capital crime, how others in and outside prison recognize these
evolving characteristics, and how other people value his life. See generally A.
Sarat, Mercy on Trial: What It Means to Stop an Execution (Princeton UP 2005).
This mission cannot be undertaken by cutting-and-pasting old work product
into a form borrowed from other lawyers at the last minute. It can be undertaken
only if counsel representing the petitioner comes to know and respect the heart and
soul of their client, believes that his or her unique life, experiences, and qualities
merit considerations of mercy, and animates those matters in addressing the
decision-makers in the clemency process. While this mission certainly should be
informed by counsels prior legal work on behalf of the client, it is much more than
that. The process requires counsel to investigate and learn the story of a client that
has not yet been told and cannot simply be gleaned from the prior representation.
It is a story that begins well before a devastating crime was committed and
continues well after incarceration commenced. It is a story that has played out
39
Case: 15-70035
Document: 00513255660
Page: 50
beyond the confines of legal proceedings and legalistic arguments. No one can
meaningfully accomplish this mission in 48 hours.
CJA Counsels performance was and continues to be inadequate to satisfy
Mr. Holidays federal statutory right to adequate representation and to meaningful
access to clemency. Clemency requires more than emailing a national listserve
days before a petition is due and asking to borrow some non-fact specific
clemency petitions.
TAB 3.
It requires much more than reprocessing legal
arguments and factual recitations used to support previous pleadings and rulings.
It requires learning new facts about the way a client has lived his life since the
capital murder and learning that clients story of redemption. CJA Counsel here
did none of this. They did not even communicate with their client about their
sudden reversal with respect to clemency or seek to meet with him until after they
had finished throwing together an application.
Undoubtedly, the State (or CJA Counsel) will respond to this appeal by
attaching the hastily prepared clemency application prepared to serve the lawyers
interests, not their clients. And then they will declare this appeal moot. It is not.
These issues remain:
Did the interests of justice require granting Mr. Holidays request for
appointment of substitute counsel willing and able to prepare a legitimate
clemency application?
o The answer is: Yes. See Clair, 132 S. Ct. at 1284; Christeson, 135 S.
Ct. at 894-96.
40
Case: 15-70035
Document: 00513255660
Page: 51
Would a stay yet afford Mr. Holiday a meaningful opportunity to remedy the
wrong occasioned by the absence of representation willing to pursue
clemency on his behalf in a legitimate manner?
o Again the answer is: Yes. See McFarland, 512 U.S. at 857.
The deadline to submit a clemency application is cued off the execution
date. Tex. Admin. Code 143.57. Therefore, this appeal is not moot. Failing to
grant Mr. Holidays request and to grant an attendant stay to make the relief
meaningful was an abuse of discretion, and this Court has the power to correct the
district courts inadvertent, but severe miscarriage of justice.
II.
WITHOUT A 2251 STAY, APPOINTING SUBSTITUTE COUNSEL WOULD BE A

MEANINGLESS EXERCISE.
In McFarland, the Supreme Court recognized that, without time to
adequately develop the facts and prepare the relevant claims, the right to appointed
counsel is an empty promise. 512 U.S. at 857. Therefore, the Supreme Court also
concluded that 28 U.S.C. 2251 allows a federal court to grant a stay of execution
once a capital defendant has invoked the right to appointed counsel to give effect
to that statutory right. Id. at 858. A federal court does not, however, abuse its
discretion if it denies a stay where the petitioner has been dilatory or
inexcusably ignores this opportunity and flouts the available processes. Id.
CJA Counsels previous resistance to the relief Mr. Holiday requested cost
him precious time.
See ROA.15-70035.848; ROA.15-70035.850 - ROA.15-
70035.852. Mr. Holiday first asked for this relief by letter dated September 14,
41
Case: 15-70035
Document: 00513255660
Page: 52
2015; his execution is set for November 18, 2015; and this brief is being filed as
quickly as practicable on November 2, 2015. This lost time is attributable entirely
to CJA Counsel who made misstatements to the district court in the opposition
papers they filed seeking to thwart their clients effort to secure substitute counsel
willing to perform the duties of 3599 counsel.
That is, Mr. Holiday has not been dilatory nor flouted available
processes. He reacted to CJA Counsels announcement that they would not do any
more work for him by following their directive to look for help elsewhere.
ROA.15-70035.949. He then went directly to the district court when CJA Counsel
refused to step aside less than a month after his death warrant was signed.
ROA.15-70035.848. He then went back to the district court as the conflict with his
CJA Counsel escalated.
ROA.15-70035.924 - ROA.15-70035.925.
He also
retained pro bono counsel to preserve his federal right to adequate representation
and to meaningful access to clemency.
Entering a stay of execution under 28 U.S.C. 2251 is justified here in light
of the core concern at issue in McFarland: that an unrepresented prisoner should
not be required to proceed without counsel in order to obtain counsel. 512 U.S.
at 856. Having patently conflicted appointed counsel, who refused to pursue relief
expressly available under 3599 on the clients behalf until it was too late, is
essentially the same as having no counsel at all. See Christeson, 135 S. Ct. at 89442
Case: 15-70035
Document: 00513255660
Page: 53
96; Clair, 132 S. Ct. at 1284-86. And the appointment of counsel now will be
meaningless unless [the defendants] execution also [is] stayed. McFarland, 512
U.S. at 857.
A stay of execution is imperative to ensure the effective
presentation of Mr. Holidays clemency application. In re Hearn, 376 F.3d 447,

458 (5th Cir. 2004) (Hearn I); see also Texas Board of Pardons and Paroles
website, explaining the availability of clemency under Texas law, the process for
applying, and the deadline for applications that must be received at least 21 days
prior to the scheduled execution date.15
Over ten years ago, in Hearn I, this Court held that a death-sentenced
indigent was entitled to appointed counsel and appropriate resources to investigate
whether he had a viable claim under Atkins v. Virginia, and the Court stayed the
execution and gave him 180 days to obtain counsel (on remand) and prepare. 376
F.3d at 452-55.16
Hearn, who was then facing an imminent execution date,
obtained this relief through the intervention of pro bono counsel who came to his
aid to preserve his right to counsel who could investigate whether Hearn had a
valid claim that his intellectual disability exempted him from execution. Id. at 450
n.1 (5th Cir. 2004). This Court agreed that the prisoner was entitled to new
counsel. Id. On remand, the district court then appointed different counsel to
15
Available at https://www.tdcj.state.tx.us/bpp/exec_clem/exec_clem.html.
16
Mr. Holiday does not need to address the limitations at issue in Hearn II because he is not
seeking leave to file a successive habeas petition. See In re Hearn, 389 F.3d 122 (5th Cir. 2004).
43
Case: 15-70035
Document: 00513255660
Page: 54
handle the intellectual disability litigation. Hearn v. Dretke, No. 04-cv-00450-D

(N.D. Tex. Nov. 2, 2004) (Doc. 7, order allowing pro bono counsel to withdraw
and appointing CJA counsel). That same relief is warranted here.
Hearn I refutes CJA Counsels notion that when a volunteer lawyer appears
to assist a death-sentenced indigent in securing 3599 counsel that act amounts to
volunteering to fulfill the 3599 duties that appointed counsel have been unwilling
to perform. The district court rejected CJA Counsels attempt to play an untoward
game of Tag, Youre It, recognizing the limited scope of pro bono counsels
role. ROA.15-70035.880. But the district court did not acknowledge the purloined
letter hiding in plain view: the fact that these lawyers were trying to shove
statutorily mandated duties off on a volunteer lawyer retained for a different
purpose (and who was not qualified for such an appointment) made it self-evident
that these lawyers were operating in conflict with the interests of their client and of
justice.
Regrettably, the district court did not consider Mr. Holidays complaint and
instead relied exclusively on current CJA Counsel even after they gave the district
court ample reason to doubt their credibility with respect to this matter. ROA.1570035.868 - ROA.15-70035.871; ROA.15-70035.927 - ROA.15-70035.962.
Finally, a stay will not substantially harm the State of Texas. Although the
State has a strong interest in carrying out executions, it has no interest in executing
44
Case: 15-70035
Document: 00513255660
Page: 55
a person who has been deprived of rights enshrined in federal law. Moreover,
what is at stake here is larger than the rights of one prisoner. This appeal is about
protecting core principlesparticularly in the context of crimes that, by their
nature, test our resolve. The core principles at stake are: the primacy of the plain
text in construing statutes; the right of all death-sentenced indigents to meaningful
legal representationnot mere procedural window-dressing; and meaningful
access to, and respect for, the unique role clemency plays in our criminal justice
system.
To ensure that these principles are not undermined, this Court should stay
the execution to ensure that newly appointed counsel has a meaningful opportunity
to conduct an investigation and prepare a legitimate clemency application on Mr.
Holidays behalf. See McFarland, 512 U.S. at 858 (instructing that, if a prisoner
succeeds on his 3599 motion but has insufficient time to meaningfully exercise
that right because of an impending execution, federal courts should grant a stay).
45
Case: 15-70035
Document: 00513255660
Page: 56
CONCLUSION & PRAYER FOR RELIEF

For the foregoing reasons, Mr. Holiday respectfully asks that the Court
reverse the district courts denial of Mr. Holidays 3599 motion seeking the
appointment of substitute, conflict-free counsel to pursue all relief that was still
available to him under federal and state law when his lawyers refused to provide
further statutorily mandated representation. Additionally, Mr. Holiday respectfully
asks that the Court grant the motion to stay his execution filed with this opening
brief so that this relief is not meaningless. Further, Mr. Holiday respectfully asks
that the Court award any other relief to which he shows himself justly entitled.
Respectfully submitted,
BECK REDDEN LLP
By: /s/ Gretchen Sims Sween
Gretchen Sims Sween
Austin, TX 78701
Telephone: (512) 708.1000
Facsimile: (512) 708.1002
46
Case: 15-70035
Document: 00513255660
Page: 57
CERTIFICATE OF SERVICE
I hereby certify that on November 2, 2015, I electronically transmitted this
Brief of Appellant 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 Brief 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

Gretchen Sims Sween
47
Case: 15-70035
Document: 00513255660
Page: 58
CERTIFICATE OF COMPLIANCE WITH RULE 32(A)

Certificate of Compliance with Type-Volume Limitation,
Typeface Requirements, and Type Style Requirements
1.
This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because it contains 11,002 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2.
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has
been prepared in a proportionally spaced typeface using Microsoft Word 2007 in
Times New Roman 14 pt. font.

Gretchen Sims Sween
48
Case: 15-70035
Document: 00513255660
Page: 59
No. 15-70035
v.
WILLIAM STEPHENS, DIRECTOR

USDC No. 4:11-CV-01696
APPENDIX TO
PETITIONER-APPELLANTS OPENING BRIEF
TAB
1
October 26, 2015 letter from J.W. Volberding to G. Sween
October 26, 2015 e-mail from G. Sween to J.W. Volberding

to Habeas Colleagues
October 25-28, 2015 e-mail exchange between A. Nickerson

and J.W. Volberding
Case: 15-70035
Document: 00513255660
Page: 60
TAB 1
October 26, 2015 letter from J.W. Volberding to G. Sween
Case: 15-70035
Document: 00513255660
Page: 61
JAMES W. VOLBERDING
ATTORNEY AND COUNSELOR AT LAW
100
E.
FERGUSON STREET
SUITE 500
TYLER, TEXAS 75702
Certified PubLic Accountant (Ark.)
Telephone: 903.597.6622
American Society of CPAs
Telecopier: 866.398.6883
e-mail.')amesvolberdinlf[p.gmail.com
Board Certified, Criminal Law

Board Certified, Criminal Appellate Law
Cell Phone: 903.520.1373
Texas Board of Legal Specialization
October 26, 2015

Ms. Gretchen Sween
Beck Redden, LLP
515 Congress Avenue
Suite 1900
Austin, Texas 78701
(512) 708-1000
Re:
Via Email: gsween@beckredden.com
Raphael D. Holiday v. William Stephens, Director, No. H-11-1696,

Petition for Writ of Habeas Corpus, In the U.S. District Court, Eastern
District of Texas, Houston Division
Dear Ms. Sween:

I trust you have seen Judge Lake's order issued within the past hour denying your
motion to reconsider our motion to substitute you as counsel. As we mentioned before,
we welcome any contributions you wish to make to Raphael's clemency petition. We will
include any appeals to history, ethics or religion that you provide. We will include any
arguments that the Texas death penalty scheme is cruel and unusual, or that it falls
disproportionately on minorities, or that the trend in the U.S. and the world is toward the
abolishment of capital punishment. We will include any references you provide to
literature, law review articles, treatises, religious works, philosophy or history.
You are a brilliant and skilled writer, fluid in death penalty jurisprudence, and I
have no doubt that you can and will contribute compelling and persuasive arguments for
Raphael's clemency petition calculated to convince the Governor and Board of Pardons
and Paroles to spare his life. We will likely file the petition November 2. Therefore, time
is of the essence. I look forward to reading your contribution.
I respectfully ask you not to provide any more confidential and privileged
correspondence to the Attorney General. That can only hurt Raphael's already difficult
situation.
Case: 15-70035
Document: 00513255660
Page: 62
October 26, 2015

Page 2
Thank you for your gracious consideration to this matter. Please let me know if
you have any questions, concerns or recommendations.
Sincerely,
,famt>J 6)f/?5){/knli117,
James W. Volberding
cc:
Mr. Seth Kretzer (via email)

Mr. Raphael Deon Holiday
Inmate No. 999419
Polunsky Unit
3872 F.M. 350 South
Livingston, TX 77351
Case: 15-70035
Document: 00513255660
Page: 63
TAB 2
October 26, 2015 e-mail from G. Sween to J.W. Volberding
Case: 15-70035
Document: 00513255660
Page: 64
Gretchen Sween
Subject:
Gretchen Sween
Monday, October 26, 2015 3:17 PM
'James Volberding'
Seth Kretzer
RE: RAPHAEL HOLIDAY--concerns re your proposal
Importance:
High
From:
Sent:
To:
Cc:
Dear Counsel,
Thanks for providing the update regarding your intentions. I appreciate the offer to enlist my
aid in preparing the clemency petition that you have now decided to pursue on Raphael
Holiday's behalf. There are, however, three problems that preclude my involvement in such an
undertaking. First and foremost, you refer to a November 2 deadline. My reading of the rule is
that the petition has to be received in Austin before COB 21 days before the day before the
execution date (November 18), which is Wednesday, October 28. Therefore, the deadline you
are contemplating would be several days too late. You'll want to check the rules yourself, of
course, but start by checking Tex. Admin. Code 143.57. The second problem with your
proposal is that I have been retained by Mr. Holiday only for the limited purpose of appealing
the orders denying his request for substitute counsel; that has not changed. And unless he asks
me to stand down, I will move forward on that parallel track because I do not think the need for
that relief has been mooted-including the need for an attendant stay. Third, based on reading
the State Bar Guidelines about what is entailed in preparing a clemency petition, I cannot see
how such an undertaking could be accomplished when you just got started yesterday, at least
according to representations in your filings in the district court.
The only way I can see that the problem can be remedied is if you were to go back to Judge
Lake immediately and explain that, in light of your new position with respect to seeking
clemency for Mr. Holiday after all, a stay is essential for you to accomplish the work.
Unfortunately, I do not see that Judge Lake is likely to grant that relief. But I also do not see
how you can prepare more than the most empty petition by tomorrow so that it could be
FedExed and thus have any hope of arriving in time. Although I lack experience in this area, I
certainly cannot contemplate undertaking the work described in the State Bar Guidelines for
clemency counsel in less than a few months, not in a day.
Best of luck in your endeavors,
GRETCHEN S. SWEEN
Of Counsel
Becki Redden~
Austin, TX 78701
Phone 512.900.3217
1
Case: 15-70035
Document: 00513255660
Page: 65
Fax 512.708.1002
gsween@beckredden .com
www.beckredden .com
H H -H
-lii - ~ - ..--.;-.--*> .,_. ~ . . ... - __. .... II::.*'*'-'*'* .,., ._._.. ._ a.e'Ua-e - -~- .,. -"- .- ..-......-..-.- - - - -..-. "91' ...-.-.-- - - ,- - _......_.... _..-_,.... _ - --
CONFIDENTIALITY NOTICE: Unless otherwise indicated or obvious from the nature of the transmittal, the information contained in this e-mail message is attorney
privileged and confidential information intended for the use of the individual or entity named above. If the reader of this message is not the intended recipient, or
the employee or agent responsible to deliver it to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this
communication is strictly prohibited. If you have received this communication in error, immediately notify the sender by telephone at 713.951 .3700 and return the
original message to Beck Redden LLP at gsween@beckredden.com. Thank you .
11 fl..-.-111-11- w-11r.-.e 1'r"tolo 1111111111 ii till ........... H lllilo llo .-. . . . . ff.._ _..,_. ........ H -irHiti6 .... ._. H-11' tttll 4r . . . . . . . . . . . . u .. ii- <ii iri ihi-fri - i TI iii e d
.......................................-...-.-I!........"._Iii 11 e tll
~tt
From: James Volberding [mailto:jamesvolberding@gmail.com]
Sent: Monday, October 26, 2015 12:00 PM

To: Gretchen Sween
Cc: Seth Kretzer
Subject: RAPHAEL HOLIDAY
Ms. Sween, good morning. A letter is attached. Sincerely, James W. Volberding

James W. Volberding, CPA
Attorney & Counselor at Law
100 E. Ferguson Street
Suite 500
Tyler, TX 75702
U.S.A.
(01) (903) 597-6622 (Office)
(01) (866) 398-6883 (Fax)
(01) (903) 520-1373 (Cell)
Email: james@jamesvolberding.com
Email: jamesvolberding@gmail.com
Web: www.j amesvolberding.com
Certified Public Accountant (Arkansas)
ft ~
Case: 15-70035
Document: 00513255660
Page: 66
TAB 3
to Habeas Colleagues
Case: 15-70035
Document: 00513255660
Page: 67
Gretchen Sween
From:
Sent:
To:
Cc:
Subject:
James Volberding [jamesvolberding@gmail.com]

Monday, October 26, 2015 11 :35 AM
habeas-I
Gretchen Sween; Seth Kretzer
CLEMENCY PETITIONS, APPEALS TO HISTORY/RELIGION
Habeas Colleagues: For a pending Texas execution, we need examples of

well-written clemency petitions. We are interested in appeals to history,
ethics, religion, general racial bias, evolving standards, or other such nonfact specific appeals.
If you send a petition to me, please indicate the person(s) to whom we
should attribute author credit. If it is not necessary to attribute, please tell me.
Thanks, Wes Volberding, Texas
j amesvolberding@gmail.com
Suite 500
Tyler, TX 75702
U.S.A.
(01) (903) 597-6622 (Office)
(01) (866) 398-6883 (Fax)
(01) (903) 520-1373 (Cell)
Web: www.jamesvolberding.com
Web: www .easttexasdebtcollection.com
Case: 15-70035
Document: 00513255660
Page: 68
TAB 4
October 25-28, 2015 e-mail exchange
between A. Nickerson and J.W. Volberding
Case: 15-70035
Document: 00513255660
Page: 69
Gretchen Sween
From:
Sent:
To:
Subject:
Gretchen Sween
Thursday, October 29, 2015 9:59 AM
Gretchen Sween
FW: RAPHAEL
On Wednesday, October 28, 2015 1:17 PM, James Volberding <jamesvalberding@gmail.com> wrote:
Angella - You are correct, Mr. Kretzer and I did not plan to file
a clemency petition for Raphael. It was our professional opinion
then that a clemency petition had no chance of being granted.
That is still our opinion. We do not believe the Governor or
Board of Pardons and Paroles will grant clemency for him.
A lawyer from Austin intervened in Raphael's case. This lawyer
complained that we had not filed a clemency petition and that
Raphael wanted one. After a series of discussions and court
filings, Mr. Kretzer and I told the judge that we would do so.
The judge told us that we could proceed.
At this stage, with the execution so close, there was little time to
get this done. So Mr. Kretzer and I rushed and completed this
today. We are filing it with the Board today. I will send a copy
to you if you wish.
You do not need to submit any letters of support for the
clemency petition. What we wrote is sufficient to tell the Board
and the Governor good reasons to spare Raphael. If you feel
strongly that you do want to send a letter, you can send one to
me by next Monday and we will forward it.
Angella, I do not want you to have false hopes for this clemency
petition. We expect that it will be denied the day before his
execution, or about three days before the execution.
Case: 15-70035
Document: 00513255660
Page: 70
I am sorry truly for all you and your son have suffered. This
must be unbelievably hard on you.
Sincerely, James W. Volberding

Suite 500
Tyler, TX 75702
U.S.A.
(01) (903) 597-6622 (Office)
(0 l) (866) 398-6883 (Fax)
(01) (903) 520-1373 (Cell)
On Oct 27, 2015, al 10:23 PM, Angella Nickerson wrote:
Mr. Volbcrding
I have asked you and Seth for months were you going to file a clemency for Raphael. You
have emailed me, and wrote Raphael a letter that he has sent to me, to say NO you were not
going to file a clemency. Raphael has sent me a letter Mr. Kretzer has wrote the courts to say that
Raphael was aware that you were not going to file one and all of the sudden you email me on
Sunday and wants to file one. What is going on? Can you please explain.
Because you have reported that you would not file one Raphael has ask that you be removed
from his case so someone else could come in and help but you refused. You fought that. This just
don't seem fair to me. I really tried to help give you everything I could to help on the case. I have
did everything I could. I have ask for certain documents from Dr. Gripon1s testimony, I have not
receive them yet.
I want you and Mr Kretzer for a minute to put yourself in my shoes and to imagine that this was
your child. Would you try to do all that you could to help him. I have been fighting this thing for
15years and I am so tired. I have lost three grand babies that I loved dearly and a son that is
fighting for his life. I thought that you would have Raphael best interest at heart. You email me
Sunday to say that you were going to file clemency after pleading with you for months and you
refused. I am praying everyday about this situation and I know that some how we will make it
through it.
My husband and 1 have been sick and having a lot of frustration behind this situation. I do not
have a clue as to what to say in a clemency letter nor how to start one but if I would have had the
time I would have research it and tried. Raphael has a lot of friends and family that could and
2
Case: 15-70035
Document: 00513255660
Page: 71
would have been glad to write a letter or sign a petition on his behalf, but there is not enough
time for me to get this together. I work 8-5 everyday and then come home and work. My heart
hurts because I don't know what to say in a letter like this and do not mind pleading for my son's
life. I look to God as my strength and my help. Why did you wait so long to file, only a few days
to do this? How am I suppose to do this and where do I start?
On Monday, October 26, 2015 5:49 PM, James Volberding <jamesvolberding@gmail.com> wrote:
Angella - I returned your call yesterday. If you wish to

submit a letter on Raphael's behalf, we need it soon.
We are going to file this petition Wednesday. I
recommend you write a letter. It can be on paper by
hand. Or you can type it on computer. Simply express
your feelings for your son. Ask for mercy for him.
Explain his positive characteristics. I recommend that
you limit the letter to two pages, but you can write as
much as you wish.
If you have family members who wish to do so the
same, please ask them to write letters as well.
If you do not wish to submit anything to the Board or
the Governor, please let me know. Sincerely, James
W. Volberding
Suite 500
Tyler, TX 75702
U.S.A.
(01) (903) 597-6622 (Office)
(01) (866) 398-6883 (Fax)
(01) (903) 520-1373 (Cell)
Email: jamesvolberding(W,gmail.com
3
Case: 15-70035
Document: 00513255660
Page: 72

On Oct 25, 2015, at 2:28 PM, Angella Nickerson wrote:
Mr Volberding, we have tried for months to get you file a clemency and you said
and Seth has said no you were not going to file it. Why are you putting this much
pressure on me to do this now by the 29th. Four days away.
On Sunday, October 25, 2015 1:42 PM, James Vo!berding

<jamesvolberding@gmail.com> wrote:
Mrs. Nickerson, Ms. McAdam, Ms. Harris

and Mme Purdon - Mr. Kretzer and I are
going to file a petition for clemency with the
Governor and Board of Pardons and Paroles.
We will file this not later than 2 November.
Would you please write a letter to the
Governor and the Board on Raphael's
behalf. You are free to make any argument
or plea you wish. The letter should be
addressed:
To Honorable Greg Abbott
Governor of Texas
Austin, Texas
Honorable Members of the Texas Board of
Pardons and Paroles
Austin, Texas
You are free to ask friends and family and
other supports to provide letters of support
as well. We will submit everyone one we
receive. You are free to create a petition and
ask people to sign it. We will submit that as
well.
4
Case: 15-70035
Document: 00513255660
Page: 73
We ask that you get this to as by Thursday,

29 October. You can email in PDF format to
me. We are going to see Raphael on 30
October.
Sincerely, James W. Volberding
Suite 500
Tyler, TX 75702
U.S.A.
(01) (903) 597-6622 (Office)
(01) (866) 398-6883 (Fax)
(01) (903) 520-1373 (Cell)
Web: www.easttexasdebtcollcction.com

Holiday Appellant&#39;s Opening Brief

Încărcat de

Informații document

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

Holiday Appellant&#39;s Opening Brief

Încărcat de

Drepturi de autor:

Formate disponibile

Case: 15-70035

Date Filed: 11/02/2015

WILLIAM STEPHENS, DIRECTOR

PETITIONER-APPELLANTS OPENING BRIEF

PRO BONO COUNSEL FOR PETITIONER-APPELLANT, RAPHAEL HOLIDAY

Date Filed: 11/02/2015

WILLIAM STEPHENS, DIRECTOR,

CERTIFICATE OF INTERESTED PERSONS

Raphael Holiday, Petitioner-Appellant

William Stephens, Respondent/Appellee

Gretchen S. Sween, current pro bono counsel for Mr. Holiday

Seth Kretzer, appointed CJA attorney for Mr. Holiday

Date Filed: 11/02/2015

James W. Volberding, appointed CJA attorney for Mr. Holiday

Alexander L. Calhoun, appointed attorney for state habeas writ

Gov. Greg Abbott, lead counsel for Respondent in habeas proceedings

Ellen Stewart-Klein, Office of the Attorney General for Respondent

Tina Dettmer Miranda, Office of the Attorney General for Respondent

Edward Larry Marshall, Office of the Attorney General for

Tommy Skaggs, Office of the Attorney General for Respondent

William C. Bennett, Criminal District Attorney, Madison County

Charles MacCobb, Asst. District Attorney

Hon. Jerry Sandel, 278th District Court, Madison County, Texas

Date Filed: 11/02/2015

STATEMENT REGARDING ORAL ARGUMENT

Date Filed: 11/02/2015

DENYING THE 3599 MOTION WAS AN ABUSE OF

The Statute Requires Appointed Counsel to Assist

The Interests-of-Justice Factors Weighed Entirely in

The 3599 motion was timely. ...................................... 24

The courts inquiry into the complaint was

Date Filed: 11/02/2015

Counsels belief that the Texas clemency

The record before the district court casts

CJA Counsel abandoned Mr. Holidays

The cause for the complaint is attributable

CJA Counsels Last-Minute Decision to Throw

Clemency plays a distinct and important role in

CJA Counsels ex post facto attempt to prepare

WITHOUT A 2251 STAY, APPOINTING SUBSTITUTE COUNSEL

CONCLUSION & PRAYER FOR RELIEF ........................................................................ 46

Date Filed: 11/02/2015

October 26, 2015 e-mail from J.W. Volberding

Date Filed: 11/02/2015

Date Filed: 11/02/2015

Date Filed: 11/02/2015

Date Filed: 11/02/2015

Date Filed: 11/02/2015

Is a stay of execution necessary to provide meaningful relief?

Date Filed: 11/02/2015

Significant tax-payer resources are expended implementing the

CJAs mandates because this is a nation of laws committed to the adversarial

Date Filed: 11/02/2015

Date Filed: 11/02/2015

Date Filed: 11/02/2015

STATEMENT OF FACTS AND STATEMENT OF THE CASE1

ROA.15-70035.548; see also

Date Filed: 11/02/2015

Date Filed: 11/02/2015

Date Filed: 11/02/2015

Date Filed: 11/02/2015

Date Filed: 11/02/2015

Date Filed: 11/02/2015

Date Filed: 11/02/2015

Holiday Appellant's Opening Brief

Holiday Appellant's Opening Brief