No.

15-6956 & 15A520

______________________________________________________________
IN THE
SUPREME COURT OF THE UNITED STATES
____________________________
RAPHAEL DEON HOLIDAY,

Petitioner,

v.
WILLIAM STEPHENS, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent.
______________________
On Petition for a Writ of Certiorari to
The United States Court of Appeals for the Fifth Circuit
____________________________
REPLY TO STATES BRIEF IN OPPOSITION
CAPITAL CASE

Holiday has an imminent execution date scheduled for

Wednesday, November 18, 2015 on or after 6:00 p.m.
____________________________

Gretchen Sims Sween

Counsel of Record

State Bar Number 24041996

Beck Redden LLP
515 Congress Avenue, Suite 1900
Austin, Texas 78701
Email: gsween@beckredden.com
Telephone (512) 708-1000
Facsimile (512) 708-1002

Pro Bono Attorney for Petitioner,

Raphael Deon Holiday

___________________________________________________________

TABLE OF CONTENTS
PAGE
TABLE OF CONTENTS .............................................................................................. 2
INTRODUCTION ........................................................................................................ 1
ARGUMENT IN REPLY ............................................................................................. 1
I.

This Appeal Addresses the Right to Meaningful Access to Available PostConviction Process as Stated in 18 U.S.C. 3599 and as Interpreted by this
Court..3
A. The conflict of interest here is patent and has continued to balloon as the
issue of Holidays right to 3599 representation has been litigated.4
B. The States attempts to discredit Holidays pro bono counsel should be
rejected.. .................................................................................. 8
C. The States attempt to distinguish Christeson falls flat11

II.

The State Misapprehends Harbisons

Mandate Regarding
Meaningful Access to Clemency.. .................................................................... 12

CONCLUSION AND PRAYER FOR RELIEF .......................................................... 15

CERTIFICATE OF SERVICE ....................................................................................16

TABLE OF AUTHORITIES
CASES

PAGE(S)

Christeson v. Roper,

135 S. Ct. 891 (2015) .......................................................................................passim

Harbison v. Bell,

556 U.S. 180 (2009) .........................................................................................passim

Martel v. Clair,

132 S. Ct. 1276 (2012) .....................................................................................passim

McFarland v. Scott,

512 U.S. 849 (1994) .................................................................................................. []

Ohio Adult Parole Authority v. Woodard,

523 U.S. 272 (1998) ................................................................................................. []

STATUTES
18 U.S.C. 3599 ....................................................................................................passim

INTRODUCTION
As noted in Raphael Holidays petition, the State took no position with
respect to the dispute over Holidays right to substitute counsel before the district
court. App.U 299a. Yet on appeal, the State purports to opine that no obvious
conflict exists between Holiday and his current CJA Counsel (Seth Kretzer and
James Volberding)although the States own briefing underscores the breadth of
the conflict. That the State, Holidays adversary, would be quoting freely from
unauthorized pleadings his CJA Counsel filed in his name to try to scuttle his
appeal illustrates the extreme impropriety at issue here.
This case involves rather fundamental issues: What does it mean to be a
lawyer; what is a conflict of interest; and can the basic ethical standards, intended
to apply to lawyers of every stripe, be properly ignored when the lawyers in
question have been appointed pursuant to federal law and are being paid by
taxpayer dollars to represent indigent prisoners?
The Court has already answered the latter question with a resounding No.
This Court has said that, even in the absence of 3599(e) a district court would be

compelled to appoint new counsel if the first lawyer developed a conflict.

Christeson v. Roper, 135 S. Ct. 891, 895 (2015) (per curiam) (quoting Martel v.
Clair, 132 S. Ct. 1276 (2012)) (emphasis added). The Court has also made clear that
a death-sentenced indigent is entitled to conflict-free counsel to represent him in
having meaningful access to all available post-conviction processes, including
clemency, just as the plain-language of 18 U.S.C. 3599 states. See Harbison v.

Bell, 556 U.S. 180, 194 (2009) (recognizing that the right to counsel under the
statute was intended to insure that death-sentenced indigents are not abandoned
by their counsel at the last moment and left to navigate the sometimes labyrinthine
clemency process from their jail cells.).
A logical corollary of Christeson, Clair, and Harbison is that the failure to
replace lawyers laboring under a conflict of interest is not excused simply because
appointed counsel decided in advance that, despite the clients wishes, pursuing
further relief had no chance and would just instill false hope. App.D. If CJA
Counsels (and the States) position were correct, then this case will stand for the
proposition that any lawyer appointed under the Criminal Justice Act to represent
indigents in post-conviction proceedings has a license to throw in the towel absent
any investigation, to abandon claims they themselves preserved while stating that
no claims remain to be adjudicated, and to refuse to seek mercy on behalf of a client
through the only vehicle that exists for that purpose in our legal system.
By nature, post-conviction work is an uphill battle. Clemency in particular,
as the States own authorities aptly demonstrate, is a matter of executive grace.

See Brief in Opposition (BIO) at 36. Clemency involves a leap of faith and thus
does not anticipate success. The likelihood of success in post-conviction
proceedingsparticularly clemency proceedingsis often Sisyphean. That reality
cannot be deemed a free pass to excuse lawyers self-interested reasons for refusing
to pursue further relief available to their client under state and federal law when
their client invokes the representation rights enshrined in federal law.

There is a categorical difference between a lawyer making representations to

courts that are not truewhich lawyers are precluded from doingand a lawyer
zealously pursuing relief that is available to their client as a matter of law even if,
by

nature,

the

odds

of

success

are

low.

CJA

Counsel

made

material

misrepresentations to the district court to convince it to deny their clients request

for new appointed counsel. The State does not acknowledge that repugnant fact.
Instead, the State seeks to capitalize on the conflict between CJA Counsel and their
client so as to bolster its own efforts to expedite Holidays execution.
The interests of justice compel granting relief.
ARGUMENT IN REPLY
I.

This Appeal Addresses the Right to Meaningful Access to Available PostConviction Process as Stated in 18 U.S.C. 3599 and as Interpreted by this
Court.
The first question Holiday presents is fairly simply: whether, considering the

interests of justice, the failure to appoint substitute counsel deprived Holiday of his
federal rights to representation under 3599. Congress did not condition the rights
to representation found in 3599 on a showing of a likelihood of success in postconviction proceedings as the State seems to argue. See BIO at 22-30. The State
conflates the standard that applies to motions seeking a stay of execution with CJA
Counsels argument that they did not have to represent Holiday per 3599 upon
deciding, without even discussing the matter with their client, that they would not
likely succeed at obtaining relief for him. The representation rights at issue in
3599 are not conditioned on proving that an appointed lawyer will likely prevail.

The State also suggests that Holiday does not deserve equitable relief in the
form of a stay because no obvious conflict exists between him and CJA Counsel;
instead, the State attributes the mayhem on display to undersigned counsel,
characterizing her as an interloper acting without authority. Both of these
premises are incorrect.
A. The conflict of interest here is patent and has continued to balloon as the
issue of Holidays right to 3599 representation has been litigated.
The States disavowal of a conflict strains credulity. Any doubt that there is
(and has been) a conflict between Holiday and his CJA Counsel should be dispelled
by simply noting that CJA Counsel wrote the following in an unauthorized pleading
submitted to the Fifth Circuit, which the State quotes with enthusiasm: in CJA
Counsels informed professional belief[,] the clemency has next to zero chance of
success[.] BIO at 24; see also App. at 215a (State using this same statement by
CJA Counsel against Holiday in briefing to the Fifth Circuit). CJA Counsels
statement was made in a public filing deceptively styled Unopposed Motion to
Dismiss Appeal as Frivolous submitted on November 4, 2015. App. at 192a. At that
point, the sham clemency application that CJA Counsel had thrown together in a
48-hour period was still pending. (It was summarily denied, as the State notes, on
November 16, 2015.1).
It is inconceivable that a lawyer laboring, for instance, on the civil side of the
docket, would ever file a document with a federal court stating that her corporate
1

The denial of clemency does not preclude Mr. Holiday from filing a new clemency
petition if the Court stays his execution and orders the appointment of conflict-free counsel. If a
new execution date is scheduled thereafter, a new clemency petition may be filed. There is no
bar in Texas to filing a new petition when a new execution date is set.
4

client had zero chance of success in another proceeding that that same lawyer had
initiated and that was still pending before another decision-maker. More
inconceivable still is the notion that anyone would argue that such conduct does not
reflect a conflict of interest, as the State does here. Clearly, it behooves the State to
have an adversary whose appointed counsel is proclaiming to the world that their
own client has zero chance and thus his execution should not be stayed. But that
fact demonstrates an obvious conflict; it does not disprove one.
The States opposition also ignores the history of how and when the conflict
between Holiday and his CJA Counsel arose. The conflict arose when CJA Counsel
wrote a letter on June 30th telling their client they were done pursuing relief for
him. App.K 89a-90a. They suggested that he look elsewhere for lawyers willing to
help. Id. Then, after he sought the district courts help to obtain other lawyers, CJA
Counsel tried to block these efforts. App.C; App.D. All of these events occurred

before undersigned counsel became involved. See App.U. 296a-297a (retention

agreement between Holiday and undersigned counsel whereby she agreed to
represent him pro bono in appealing the district courts denial of his pro se motion
to substitute counsel).
The conflict between CJA Counsel and Holiday deepened when CJA Counsel
reopened litigation in the district court right after Holiday, through pro bono
counsel, filed a notice of appeal. CJA Counselnot Holiday or his volunteer
lawyerthen went back to the district court to try to forestall the appeal. App.G.
CJA Counsel suddenly reversed course, urging the district court to permit them to

withdraw and substitute Holidays new pro bono counsel for all purpose although
she had expressly (and properly) limited the scope of her representation to reflect
what she had agreed to do: appeal the denial of his pro se motion to substitute
counsel. App.H.
Up until that point, Holidays pro bono counsel had assumed that the district
court had erred by denying Holidays pro se motion because it had accepted at face
value that CJA Counsel could categorically refuse to seek clemency for a client
based on their subjective view of political realities that made success unlikely.
App.D; App.E. Pro bono counsel, at that point, did not yet recognize that further
representations of [CJA Counsel], upon which the district court had expressly
relied, were verifiably false. App.E. The only issue at that time seemed to be the de

facto abandonment of the client who wanted appointed counsel willing to represent
him in seeking clemency. Further investigation revealed that CJA Counsel had not
been forthright with the district court. CJA Counsel had specifically named another
death-sentenced client (Clifton Williams) and told the district court how they had
sought relief for this client that had resulted in a stay of his execution; and they had
raised this matter as proof of how they could be counted on to zealously advocate for
Holiday if there were any basis for doing so. App.D 8a. But as explained in Holidays
petition, that representationthat 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. Stephenswas a misstatement of fact, as pro bono counsel learned

only after filing Holidays notice of appeal. Petition at 24-25. Once discovered,

Holiday sought to inform the district court of this fact, because the court had
expressly stated in its order that it had relied on the representations of [CJA
Counsel] in denying Holidays pro se motion. The first attempt to inform the
district court failed, however, because the district court ruled on CJA Counsels odd
motion before Holiday could file any pleading. App.H. The second attempt to inform
the court, in the form of a motion to reconsider, was rejected without reference to
CJA Counsels misstatement of fact regarding their representation of Clifton
Williams. App.K; App.M.
Then, as pro bono counsel investigated further, it became clear that CJA
Counsel had made another misstatement of fact to the district court. By reviewing
the federal habeas petition that CJA Counsel had filed in 2012 and the district
courts order adjudicating that petition in 2013, pro bono counsel learned that it was
not true that Holidays legal options are exhausted now that his certiorari petition
has been denied as CJA Counsel had stated. App.D 8a. As explained to the Fifth
Circuit and in Holidays petition to this Court, Holiday has at least one
unexhausted, ripe claima legal optionthat has never been adjudicated.
The Fifth Circuit, in its summary affirmance, did not comment on these
blatant, uncontroverted misstatements of fact that CJA Counsel had made to a
federal court to try to thwart their clients request for substitute counsel. App.A.
Nor did the Fifth Circuits summary affirmance examine the fact that CJA Counsel
were actively opposing their own client by filing an unauthorized motion to dismiss
his appeal as frivolous and styling it unopposed (because the State, seemingly,

was willing to embrace this strange bedfellow in opposing Holidays quest for a stay
of execution). Id.
Back in 2012, CJA Counsel themselves had raised unexhausted claims in
federal habeas proceedings so as to preserve them; those claims were dismissed
without prejudice because they were not then ripe. CJA Counsels insistence in
recent proceedings that those claims do not exist or are, at least, not meritorious
cannot be credited as an explanation for effectively abandoning their client and his
ripe claims. Nor can they in good conscience make such an argument without
implicitly admitting that they were previously paid by the federal government to
litigate claims they viewed as frivolous.
Turning a blind eye to these improprieties denigrates the entire system that
3599 was enacted to shore up. The results also assault what it means to be an
advocate for a specific client while simultaneously serving as an officer of the court.
B. The States attempts to discredit Holidays pro bono counsel should be
rejected.
The State argues, incorrectly, that Holidays pro bono counsel has sought to
elbow out CJA Counsel. BIO at 16. Holiday, on his own, sought to exercise his
federal representation rights by asking the court to appoint substitute counsel after
his appointed counsel had effectively abandoned him. App.C; App.K 89a-90a. After
the district court denied Holidays pro se request for substitute counsel, Holiday
obtained pro bono counsel to represent him in an effort to preserve his
representation rights through an appeal. The State fails to acknowledged that CJA
Counsel themselves had expressly encouraged Holiday to find pro bono counsel to
8

help him. App.K 89a-90a. But once that circumstance resulted in exposure of their
conflict of interest, they balked. App.D.
In any event, pro bono counsel does not need permission from CJA Counsel,
the State, or a federal court to represent Holiday, as the State implies. BIO at 18.
Pro bono counsels authority to form an attorney-client relationship with Holiday
arises from a license to practice law in the State of Texas. The State has not
suggested that undersigned counsel does not possess such a license. Nor has the
State suggested that undersigned counsel is not authorized to appear in federal
court on her clients behalf.
The States next friend argument is no more than a confusing distraction.
BIO at 18-22. Undersigned counsel is not acting as Holidays next friend, as a
next friend functions as a party, not as an advocate. Holiday has made no
argument that he is incapacitated and thus does not need a next friend to stand in
for him. It is undisputed that he, after CJA Counsel abandoned him, had sufficient
skills to initiate the request for relief at issue here pro se; his volunteer lawyer was
only retained and then appeared (by noticing an appeal) thereafter. It was CJA
Counsel who instigated further litigation in the district court after the appeal to the
Fifth Circuit had already been launched. CJA Counsel tried to thwart Holidays
appeal by filing an odd motion asking the court to permit them to withdraw and
leave Holiday without CJA counsel of any kind and to force Holidays volunteer
lawyer to take over the entire representation alone. App.G. The State ignores all of
this context. Likewise, the State ignores Christeson, wherein a volunteer lawyer

appeared before this Court on behalf of a death-sentenced indigent even as his CJA
counsel were resisting the notion that their conflict of interest meant that the
district court should have ordered appointment of substitute counselthe same
circumstances presented here: Even if a capital defendant has appointed counsel
who were actively representing him in some matters, that is not enough.

Christeson, 135 S. Ct. at 895. If their conflict prevented them from representing
[the client] in this particular matter[,] he is entitled to a substitution. Id.
Nor is undersigned counsel providing hybrid representation, as the State
argues. Undersigned counsel is instead representing Holiday on a matter that is
separate from his CJA Counsel and that CJA Counsel cannot, without violating yet
more ethical rules, purport to represent Holiday because CJA Counsel were openly
adverse to him with respect to the issue in the district court.
Holiday has a right to pro bono counsel to represent him regarding the scope
of his representation rights under 3599just as the petitioner in Christeson did.
By contrast, CJA Counsel have represented Holiday as to the legality of his
confinement and death sentence in habeas corpus proceedings and then, at the
eleventh hour, purported to represent him in clemency proceedings.
The State ignores the fact that CJA Counsel themselves renounced their
attorney-client relationship with Holiday in a letter immediately after his previous
petition for writ of certiorari was denied in his federal habeas corpus proceeding.
App.K 89a-90a. CJA Counsel only reassumed the pretext of responsibility for
representing Holiday in an unseemly, last-ditch effort to thwart Holidays appeal;

10

they did so by pledging to the district court that they would try to put together a
clemency application just to appease Holidays volunteer lawyer. App.L 105a (so as
to 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.). Regrettably,
that facially inadequate promise carried the day. The district court abused its
discretion by being unwilling, for whatever reason, to do as Clair instructs: 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 court
continued

to

credit

CJA

Counsels

representationsand

only

their

representationseven though it was given ample reason to doubt the credibility of

those representations.
C. The States attempt to distinguish Christeson falls flat.
The half-hearted attempt to distinguish Christeson is unavailing. This
Courts holding is not limited to circumstances where a death-sentence indigent has
been denied access to federal habeas proceedings. The holding states that, when a
conflict of interest develops, a district court is compelled to appoint substitute
counsel. Christeson, 135 S. Ct. at 895. The district court did not probe the nature of
the conflict between Holiday and his CJA Counsel. Then, as the conflict of interest
was playing out before the court, it accepted CJA Counsels bad-faith promise to
throw together a clemency application when it was already far too late to provide
the meaningful representation to which Holiday was entitled. Harbison, 556 U.S.
at 194. The courts below (and the State here) had no basis for concluding that CJA

11

Counsel could (or did) provide enhanced representation to Holiday in clemency

proceedings. There is an uncontroverted record that: CJA Counsel told their client
to look for other lawyers on his own from death row; then, after he turned to the
district court for help obtaining new counsel, CJA Counsel made material
misrepresentations to the district court in arguing that their clients complaint
about them was unfounded; CJA Counsel exposed their burgeoning conflict by
obstructing their own clients request for relief even to the point of actively opposing
a motion to stay his pending execution.
The States opposition here, like the district courts orders, reflects a
misguided notion that nothing is in the interests of justice that will delay an
imminent execution. This is not what Clair and Christeson teach. Indeed, the
States position directly contravenes language in Christeson eschewing the idea that
concerns about delays in capital cases should predominate; the interests of justice
standard described in Clair compels appointment of new counsel when the first
lawyer develop[s] a conflict. Id. at 895 (quoting Clair, 132 S. Ct. at 1286).
II.

The State Misapprehends Harbisons Mandate Regarding Meaningful Access

to Clemency.
Holiday does not argue, as the State suggests, that there is a right to

effective assistance in a clemency proceeding. That argument, like the district

courts orders below, reflects a fundamental misunderstanding of clemency.
Clemency is not a judicial proceeding involving legal arguments. Effective
assistance is a legal term of art. Holidays argument, by contrast, springs from the
nature of clemency itself, as reflected in many of the authorities quoted in the
12

States opposition brief. A client has a right to be represented by counsel who will
make a good-faith effort to prepare a meaningful clemency application that will
develop matters of grace, not legal claims involving grounds for judicial relief.
That is, the heart of executive clemency is to grant clemency as a matter of grace,
thus allowing the executive to consider a wide range of factors not comprehended by
earlier judicial proceedings and sentencing determinations. Ohio Adult Parole

Authority v. Woodard, 523 U.S. 272, 280-81 (1998) (Rehnquist, C.J.).

As explained in Holidays petition, the clemency application that CJA
Counsel submittedwithout his knowledge or inputmocks the process. See App.U
302a-447a. It includes little more than a long, lurid description of the crime cut and
pasted from a Texas Court of Criminal Appeals decision rejecting his state habeas
petition. There is no story told through the clients eyes. The sham application does
not recount, for example, what Holidays story about the events of the crime was as
he recounted it to the police right after his arrest and how the lead detective
believed his storythat the murders were not intentional. The sham application
does not recount how Holiday tried to share his story with CJA Counsel, who
rebuffed him, telling him they were bound to accept the facts as reflected in the
record developed in state court. The sham application does not tell the story of
Holidays fifteen years in prison, during which time he has become a deeply valued
member of the prison community. The sham application does not reflect any
attempt to understand Raphael Holiday as a human being, but instead reduces him
to the worst moment in his lifea dreadful moment that has haunted him ever

13

since, but has not, in his view, been fully or fairly developed in judicial proceedings.
The sham application does not tease out the stories of the many people still in his
lifeincluding others directly affected by the crime that he was convicted of
committing or the siblings he essentially raised when he himself was no more than
a childpeople who continue to value his life and are appalled that he had no one to
speak for him with conviction through the last and unique recourse our criminal
justice system offers.
Such flagrantly disrespectful work-product did indeed have zero chance of
success, as CJA Counsel themselves proclaimed in a public filing (and that the
State then took up as its battle cry); and CJA Counsel made this treacherous
announcement while their sham clemency application was still pending. BIO at 24.

Harbison cannot possibly support the argument that this representation was
meaningful.
In Harbison, this Court noted that Congress did not want condemned men
and women to be abandoned by their counsel at the last moment and left to
navigate the sometimes labyrinthine clemency process from their jail cells. 556
U.S. at 194. Harbison should preclude excusing appointed counsel for abandoning
their client upon deciding, in advance and without undertaking any appropriate
investigation or even listening to their clients side of the story, that success is
unlikely. As this Court well knows, success for those who have already been
convicted of a capital crime and sentenced to death is never likely. Those who
cannot countenance that the odds are stacked against them should probably not

14

seek appointment under the CJA to provide statutorily mandated enhanced rights
of representation.Clair, 132 S. Ct. at 1284-85. Moreover, the State should not
properly rejoice where their opponents on the other side of unique and complex
litigation have been deprived of their enhanced rights of representation. 18 U.S.C.
3599(d); Clair, 132 S. Ct. at 1284-85.
Section 3599(e) and Harbison promise a meaningful right to representaion
in all available proceedings including clemency; and this promise reflects a
determination that quality legal representation is necessary in all capital
proceedings to foster fundamental fairness in the imposition of the death penalty.

Id. (quoting McFarland v. Scott, 512 U.S. 849, 855 (1994)).

If a stay is not entered, Holiday will be executed absent this fundamental
fairness.
CONCLUSION AND PRAYER FOR RELIEF
For the foregoing reasons, Holiday respectfully asks that the Court summarily
reverse or grant the writ of certiorari.

15

Respectfully submitted,

/s/ Gretchen Sims Sween

Gretchen Sims Sween,

Counsel of Record

State Bar Number 24041996

BECK REDDEN LLP
515 Congress Avenue, Suite 1900
Austin, Texas 78701
Email: gsween@beckredden.com
Telephone (512) 708-1000
Facsimile (512) 708-1002

Pro Bono Attorney for Petitioner,

Raphael Deon Holiday
November 17, 2015
CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy of the above and foregoing
document was served upon counsel for Respondent, Ellen Stewart-Klein, Office of
Attorney General, and on CJA Counsel Seth Kretzer and James Volberding on this
November 17, 2015 via electronic mail.

/s/ Gretchen Sims Sween

Gretchen Sims Sween

16