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No. 15-70035
In The United States Court Of Appeals
For The Fifth Circuit
R APHAEL DEON HOLIDAY,Petitioner-Appellant,
v.
WILLIAM STEPHENS, DIRECTOR
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,CORRECTIONAL I NSTITUTIONS DIVISION,Respondent-Appellee.
On Appeal from the United States District Courtfor the Southern District of Texas, Houston Division
USDC No. 4:11-CV-01696
REPLY TO RESPONDENT-APPELLEE’S OPPOSITION TO STAY
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Petitioner-Appellant respectfully files this Reply to the Opposition filed by
Respondent-Appellee Williams Stephens (“the State”) in support of his Motion for
Stay of Execution.
INTRODUCTION
While an execution date looms, Mr. Holiday is having to litigate against two
distinct entities now aligned against him: (1) the State and (2) Mr. Holiday’s own
counsel appointed under the Criminal Justice Act, Seth Kretzer and James
Volberding (“CJA Counsel”). The impropriety of this circumstance underscores
why Mr. Holiday sought relief from the district court, why the district court abused
its discretion in denying that relief, and why a § 2251 stay is warranted so that
relief from this Court will be “meaningful,” as binding precedent requires. See,
e.g., Harbison v. Bell, 129 S. Ct. 1481, 1491 (2009) (“In 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.”) (quoting Herrera v. Collins, 506 U.S. 390, 415
(1993)) (emphasis added).
Mr. Holiday has a statutory right to conflict-free counsel willing to pursue
all relief available to him under 18 U.S.C. § 3599. See Christeson v. Roper , 135 S.
Ct. 891, 894 (2015) (per curiam) (finding district court “did not adequately account
for all of the factors we set forth in Clair ” in adjudicating a motion to substitute
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counsel); Martel v. Clair , 132 S. Ct. 1276, 1284-86 (2012) (emphasizing “the court
would have to appoint new counsel if the first lawyer developed a conflict with or
abandoned the client”).
The record plainly shows that a conflict emerged by at least June 30, 2015
when Mr. Holiday’s CJA Counsel informed Mr. Holiday of their decision to cease
working for him, invited him to find pro bono counsel to take over, then, once he
turned to the district court for help, actively resisted his efforts to obtain substitute
appointed counsel in time to seek various forms of relief still available to him.
That conflict between client and counsel has continued to escalate and is now
playing out before this Court.
The conflict is so manifest that the State, in opposing a stay, is invoking the
very same arguments made by CJA Counsel in asking the Court to summarily
dismiss this appeal. See Opp. at 21 (quoting and embracing CJA Counsel’s Motion
to Dismiss at 24).
That CJA Counsel here have been laboring under a conflict with their client
cannot be a subject of reasonable debate. They aligned themselves against their
client before the district court and now align themselves against their client and
join arms with the State while suggesting that the only attorney authorized to
undertake this appeal on Mr. Holiday’s behalf, see TAB A, is somehow a rogue
interloper. This Kafkaesque scenario is what breeds cynicism about the
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representational rights that Congress enacted and the procedural safeguards that the
Supreme Court has developed specifically for the capital context. See 18 U.S.C. §
3599(d) (explaining the statute was enacted due to “the seriousness of the possible
penalty and . . . the unique and complex nature of the litigation.”); see also Clair ,
132 S. Ct. at 1284-85 (discussing the “enhanced rights of representation” in such
serious cases “‘reflec[t] a determination that quality legal representation is
necessary’ in all capital proceedings to foster ‘fundamental fairness in the
imposition of the death penalty.’”) (quoting McFarland v. Scott , 512 U.S. 849, 855
(1994)).
The State, under the auspices of opposing a stay, has now jumped into a
dispute in which its representative expressly declined to participate before the
district court. TAB B. The State took no position in the dispute over Mr. Holiday’s
right to substitute counsel; but it now purports to describe the procedural events
that culminated in Mr. Holiday’s “proper” counsel filing a motion to dismiss their
own client’s appeal while asserting that undersigned counsel’s appearance is
somehow “improper” and even “unlawful.” Opp. at 12, 19, 25. The State’s
pronouncements and basis for opposing a stay are divorced from both the facts and
applicable law.
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ARGUMENT
I. The State Proffers Only Two Points Responsive to the Motion for Stay
of Execution; Neither Withstands Scrutiny.
The State devotes fewer than 5 pages of a 35-page brief to an argument
regarding Mr. Holiday’s request for a stay. See Opp. at 10-14. The State argues,
incorrectly, that a federal court “lacks jurisdiction” to enter a stay under the
circumstances presented here. The State then makes the conclusory assertion that a
stay is not warranted because the State does not believe that the appeal has merit.
Both of these arguments should be rejected.
A. The Court has jurisdiction.
The ability to enter a stay under McFarland v. Scott is not limited to cases
where a capital defendant has “not had an initial round of federal habeas review”
as the State contends. Opp. at 11. “[O]nce a capital defendant invokes his right to
appointed counsel, a federal court also has jurisdiction under § 2251 to enter a stay
of execution. . . . [b]ecause § 2251 expressly authorizes federal courts to stay state-
court proceedings ‘ for any matter involved in the habeas corpus proceeding.’”
McFarland , 512 U.S. at 858. And as the Supreme Court demonstrated recently in
Christeson, a federal court has jurisdiction to enter a stay where a death-sentenced
individual had filed a § 3599 motion (which was denied) seeking substitute counsel
because appointed counsel’s conflict of interest with the client had hindered his
ability to pursue long-shot relief. Christeson, 135 S. Ct. at 894-95. The Supreme
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Court acknowledged that, “[t]o be sure” Christeson would face “a host of
procedural obstacles” even after he obtained substitute counsel, which meant he
might well fail to obtain relief. Id. at 895. Yet the Supreme Court rejected the
“futility” argument and concluded that “[h]e should [nevertheless] have that
opportunity, and is entitled to the assistance of counsel in doing so.” Id. at 896.
That is precisely the context here. Mr. Holiday is appealing the denial of his
§ 3599 motion seeking substitute counsel. His appointed counsel opposed the
motion below, creating a patent conflict with their client on this issue, which has
culminated in their seeking to dismiss his own appeal so as to avoid scrutiny of the
de facto abandonment of their client. See Opening Brief. This de facto
abandonment occurred while their client still had avenues of relief available to him
through habeas and otherwise, and a stay is warranted to enable him to obtain
conflict-free counsel to assist him in pursuing his remaining options.
Moreover, the State incorrectly characterizes the procedural posture of this
case, suggesting that no further habeas litigation is “contemplated” because Mr.
Holiday “only complained that appointed counsel’s [sic] initially refused to file a
clemency petition.” Opp. at 13. A central argument in Mr. Holiday’s Opening
Brief is that he still has preserved claims that could be pursued in a second, but not
successive, federal habeas petition, which his CJA Counsel simply abandoned. See
Opening Brief at 32-33. There is no requirement that a current habeas action be in
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process, as the State suggests, only that a “ potential habeas corpus proceeding [be
pending] before the court.” Rosales v. Quarterman, 565 F.3d 308, 311 (5th Cir.
2009) (emphasis added); see also In re Hearn, 376 F.3d 447, 458 (5th Cir. 2004)
(concluding stay of execution is “imperative to ensure the effective presentation”
of remaining bases for relief).
In short, there is no “lack of subject matter jurisdiction” with respect to Mr.
Holiday’s request for a stay of execution. Opp. at 2, 12.
B.
The State’s view of the merits of Holiday’s appeal are neitherrelevant nor accurate.
The State’s only other argument specifically addressing the requested stay is
the conclusory assertion that Mr. Holiday’s appeal is not “meritorious enough to
confer jurisdiction.” Opp. at 14. The State does not explain how its view
regarding the merits of an issue about which it took no position before the district
court is somehow relevant to adjudicating jurisdiction. What the State endeavors
to do through its Opposition is put before the Court a covert response to Mr.
Holiday’s Opening Brief. As explained below, that procedural maneuver is
improper, and the State’s substantive responses to the merits of Mr. Holiday’s
appeal are unsound.
II. Most of the State’s Opposition Purports to Address the Merits of the
Appeal in a Manner That Is Procedurally Improper and Substantively
Unfounded.
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A. The State demurred before the district court, taking no position with
respect to the issue raised by this appeal.
After Mr. Holiday’s CJA Counsel had successfully opposed his pro se
motion seeking appointment of substitute counsel, and after undersigned counsel
then initiated this appeal on his behalf, further litigation ensued before the district
court to try to obviate the need for the appeal. For instance, in response to the
notice of appeal, CJA Counsel filed a motion asking the district court to substitute
counsel after all; but instead of agreeing with Mr. Holiday’s request for substitute
counsel under § 3599, CJA Counsel asked the district court to permit them to
withdraw and leave Mr. Holiday without any CJA counsel and to impose the duties
of CJA counsel on the pro bono attorney assisting Mr. Holiday with his effort to
secure adequate CJA counsel. ROA.15-70035.857. The district court denied this
odd request stating:
Mr . Kr et zer r equest s t hat t hi s cour t al l ow Ms. Sweent o repr esent Hol i day not onl y f or an appeal , but ashi s onl y at t or ney. I n t he cer t i f i cat e of conf er enceaccompanyi ng the mot i on, however , Mr . Kr et zer sayst hat Ms. Sween wi shes t o l i mi t her i nvol vement i n t hi scase t o t he appeal cur r ent l y bef or e t he Fi f t h Ci r cui tand t o request a st ay of execut i on i n order t hat a newat t orney can be appoi nt ed.
ROA.15-70035.880.1
Because the district court ruled on CJA Counsel’s motion
without probing the nature or source of the conflict that had arisen between Mr.
1 The district court did not suggest that it was improper for pro bono counsel to represent Mr.
Holiday, as both CJA Counsel and the State intimate.
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Holiday and his CJA Counsel, undersigned counsel, on Mr. Holiday’s behalf, filed
a “Motion to Reconsider the Orders Denying Relief under 18 U.S.C. § 3599.”
ROA.15-70035.927-.935. Before filing that motion, undersigned counsel sought to
confer with the State. Counsel for the State responded: “As I explained to [CJA]
counsel yesterday the State takes no position on matters of representation.” TAB B.
Because the State took “no position” on the very subject matter of this appeal, the
State waived its right to take a position now in the context of opposing a stay
motion. Cf. Kelly v. Foti, 77 F.3d 819, 823 (5th Cir. 1996) (noting that a party
“must press, not merely intimate, an argument”). Because the State took no
position below, its decision to become an advocate for Mr. Holiday’s conflicted
CJA Counsel, under the guise of opposing a stay, is improper.
B. The State’s arguments regarding the merits of the appeal are
unavailing.
A series of recent Supreme Court cases emphasizes that, under federal law,
indigent capital defendants are entitled to appointed counsel to represent them in a
wide variety of circumstances—including applications for executive clemency and
in pursuing “all available post-conviction process[.]” 18 U.S.C. § 3599(e).
McFarland expressly recognizes that the right to § 3599 counsel necessarily
includes the right to counsel to conduct meaningful research and client-specific
investigations. 512 U.S. at 855, 858. Christeson expressly recognizes that the
right to § 3599 counsel necessarily means the right to conflict-free counsel: “Even
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if” a capital defendant has appointed counsel “who were actively representing him
in some matters,” that is not enough. 135 S. Ct. at 895. If “their conflict prevented
them from representing him in this particular matter[,]” he is entitled to a
substitution. Id . When the conflict surfaced, CJA Counsel were not “actively
representing” Holiday in any respect; and their conflict prevented them from
representing him in the particular matter for which he sought appointment of
substitute counsel. Id.
1.
The State’s mootness argument is factually incorrect.
Mr. Holiday’s Opening Brief indicates grounds for relief still available to
him: both unexhausted claims for a second (not successive) federal habeas petition
and clemency.
a.
Mr. Holiday has habeas claims that his CJA Counsel
preserved but failed to pursue.
Mr. Holiday has ripe, preserved claims about the constitutionality of Texas’s
clemency process as applied to him.
In 2012, during habeas proceedings, the district court dismissed two of Mr.
Holiday’s claims without prejudice since they were “not yet ripe for adjudication”
because Holiday did “not [then] have an execution date[.]” ROA.15-70035.786.
Counsel had pled that Texas’s 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.
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v. Woodard , 523 U.S. 272, 289 (1998) (O’Connor, J., concurring). In light of the
district court’s dismissal without prejudice, CJA Counsel could have raised the
claim in state habeas proceedings. Harbison, 556 U.S. at 190 n.7 (“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.”). If unsuccessful in state court, CJA Counsel could
then have raised the clemency claim in a second-in-time federal petition. A new
federal petition challenging the constitutionality of Texas’s clemency proceedings
as applied to Mr. Holiday would not be a successive petition under 28 U.S.C. §
2244(b). See Panetti v. Quarterman, 127 S. Ct. 2842 (2007).
Therefore, in September 2015, when CJA Counsel opposed their client’s pro
se motion seeking substitute counsel, the challenges to the clemency proceedings
had become—and remain—ripe.
The record does not indicate why CJA Counsel failed to pursue these now-
ripe claims they had raised in Mr. Holiday’s habeas petition approximately four
years ago so as to preserve them. CJA Counsel, along with the State, now argue
that Mr. Holiday has no claims of any kind or, if he does, they are meritless. As
explained above, they are wrong in the first instance; and if the alternative
argument is to be accepted, that means CJA Counsel believe that federal tax dollars
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were properly spent to pay them to raise new, unexhausted claims they nonetheless
viewed as meritless from the outset. Such a position is wholly inappropriate. That
the State is clinging to this kind of “strange bedfellow” in its haste to see Mr.
Holiday executed is even more unseemly.
b.
Mr. Holiday’s habeas claim is distinguishable from those
this Court has previously rejected.
The State further contends that any challenge to Texas’s clemency
proceedings would be meritless by recourse to Tamayo v. Perry, 553 F. App’x 395
(5th Cir. 2014). Tamayo, however, did not involve the same issue Mr. Holiday’s
case presents. Tamayo involved a section-1983 facial challenge to Texas’s
clemency procedures. See id. at 397.2 By contrast, the issue here is an as-applied
challenge that implicates the most basic due-process right: the right to a neutral
decision-maker. See, e.g., Hamdi v. Rumsfeld , 542 U.S. 507, 509 (2004) (holding
that even those being held as an “enemy combatant” must “be given a meaningful
opportunity to contest the factual basis for that detention before a neutral
decisionmaker.”). Under Texas law, the ultimate decision-maker with respect to
clemency is Governor Greg Abbott; yet Governor Abbott, the former Attorney
General, represented the State in litigating against Mr. Holiday during his habeas
2 The Court was not sure if Tamayo also intended to bring an as-applied challenge, but
concluded that his argument lacked any facts specific to him and instead reflected the samechallenge to Texas’s proceedings that had been previously made and rejected in Faulder v. Tex.
Bd. of Pardons and Paroles, 178 F.3d 343 (5th Cir. 1999). See Tamayo, 553 F. App’x at 402.
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proceedings. ROA.15-70035.243. This conflict suggests that Mr. Holiday, at the
very least, has a good-faith basis for arguing that Texas’s clemency procedures, as
applied to him, are unconstitutional.
In Woodard , Justice O’Connor observed that a clemency “scheme whereby a
state official flipped a coin to determine whether to grant clemency, or in a case
where the State arbitrarily denied a prisoner any access to its clemency process”
might not withstand judicial scrutiny. 523 U.S. at 289 (1998) (O’Connor, J.,
concurring). In Mr. Holiday’s situation, the State’s scheme essentially involves a
state official flipping a coin that has the same face on both sides and then permits
that same state official to call the coin toss for his “side.” In other words, the facts
here give rise to a legitimate, ripe challenge to Texas’s clemency procedure that is
distinct from the claim made in Tamayo.3
2.
The State’s attack is at odds with the core rationale of
McFarland .
As explained above, the State waived its right to take a position with respect
to the issue of representation raised by this appeal. Moreover, in weighing in now,
the State misconstrues the key authority animating this appeal: McFarland v.
Scott . In McFarland , the Supreme Court made clear that courts should not put the
3 The State also cites Bible v. Stephens, 2014 WL 5500722 (5th Cir. Oct. 30, 2014), which is also
distinguishable because (1) no execution date had yet been set in that case, so this Court found
“any harm from the alleged defects in Texas’ clemency process” was not yet ripe; and (2) indicta the Court suggested that the facial challenge was the same as that raised in Tamayo and
Faulder and thus did not seem promising. Id. at *11-*12.
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cart before the horse where the issue is the right to substitute counsel, as it is here.
Specifically, Mr. Holiday is not obligated under controlling law to identify the
specific bases upon which he would prevail in obtaining relief, although he has
provided the essential parameters. Quite sensibly, the Supreme Court concluded
that an unrepresented prisoner should not be required to “proceed without counsel
in order to obtain counsel.” McFarland , 512 U.S. at 856.
This rationale was developed further in Christeson, decided last term in a
context markedly similar to the one presented here. Christeson had appointed
counsel who developed a conflict of interest with their client. 135 S. Ct. at 892-93.
After initially seeking guidance from outside counsel who were working for
Christeson pro bono, his appointed counsel soon became antagonistic toward the
volunteer lawyer once it became clear that appointed counsel’s nonfeasance had
potentially jeopardized their client’s interests. Id. at 893. Christeson’s pro bono
counsel then filed a series of motions to substitute counsel, which his appointed
counsel resisted; and the district court denied the motions for similar reasons as
those offered below—particularly, the district court’s view that appointed counsel
had not entirely abandoned the client because appointed counsel had continued to
do some work for him and the court was concerned about “‘abusive’ delays in
capital cases.” Id . The Supreme Court granted a stay and rejected the district
court’s reasoning, finding that the interests of justice compel appointment of “new
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counsel if the first lawyer develop[s] a conflict.” Id. at 895 (quoting Clair , 132 S.
Ct. at 1286).
3.
The clemency application that CJA Counsel hastily assembled
is a sham.
As explained in his Opening Brief, Mr. Holiday’s appeal is not moot. Mr.
Holiday did not have conflict-free counsel to pursue clemency on his behalf. The
putative clemency application that CJA Counsel threw together in 48 hours was
solely a self-interested face-saving measure. See TAB C. The sham application
was not prepared to serve Mr. Holiday’s interests and was undertaken without his
knowledge.4
The bad faith with which the sham clemency application was prepared is
evident on the document’s face. For instance, on the first page, CJA Counsel twice
misreport Mr. Holiday’s execution date as “February 18, 2015”—a date that
passed seven months ago. See id. at 1. Most of the sham clemency application
focuses on the gruesome details of the crime, quoting virtually verbatim the factual
recitation found initially in a Texas Court of Criminal Appeals’ decision and then
in the district court’s decision denying Mr. Holiday’s federal habeas petition.
Compare id. at 2-5 with Holiday v. Stephens, 2013 WL 3480384, *1-*2 (S.D. Tex.
4 CJA Counsel’s decision to reverse course and throw together the sham clemency petition
without Mr. Holiday’s input implicates additional ethical concerns. See Ex Parte Mendoza, No.WR-76,979-02 (Nov. 4, 2015) (Unpubl.) (admonishing appointed counsel for filing a pleading
that was not authorized by his client and directing that a copy of the order “shall be sent to the
Office of the Chief Disciplinary Counsel of the State Bar of Texas.”).
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July 10, 2013) (quoting Holiday v. State, Nos. AP–74,446, AP–74,447, AP–74,448
at 2–5 (Tex. Crim. App. Feb. 8, 2006)). This same material—that no rational
person could suggest was prepared to evoke an executive’s sense of mercy—is
quoted yet again in full in the State’s brief to this Court. See Opp. at 6-10. Only in
affidavits, prepared years ago for other proceedings, can one find descriptions of
the horrific abuse to which Mr. Holiday was subjected throughout his childhood.
See id. The sham application’s superficial bulk is created by required attachments,
ten-year-old affidavits, and an academic article that has nothing to do with Mr.
Holiday or his quest for clemency.
Worst of all, the sham application ends with a cursory statement that “It is
not possible to address the impact of this crime on the family of the children killed.
Neither Raphael nor his attorneys have had any communication with them.” Id. at
21. One victim of the crime is the grandmother of the children, Angela Nickerson,
who is also Mr. Holiday’s mother. CJA Counsel have been in communication with
her—prompting pointed anguish over their refusal to pursue clemency for her son
and then their eleventh-hour attempt to manufacture the appearance of a clemency
application solely because, in their words, “[a] lawyer from Austin intervened.”
See Opening Brief, TAB 4. Mrs. Nickerson is part of the larger untold story of
extreme poverty, degradation, and virtual torture that characterized Mr. Holiday’s
childhood and that culminated in his responsibility for a devastating crime 15 years
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ago when he was 20 years old. That story has not been investigated let alone
told—nor has the story of his transformation during years spent in prison haunted
by the spirits of three lost innocents.
The State’s speculation as to whether Mr. Holiday has any hope of evoking
mercy from the executive branch demonstrates a fundamental lack of
understanding of the unique role clemency plays in our criminal justice system.
Clemency does not involve presenting “grounds” in the form of legal arguments.
See Wood v. Thaler , 2009 WL 3756847, *6 (W.D. Tex. Nov. 6, 2009) (noting
“clemency is not a forum in which to relitigate issues that have already been
considered extensively and thoroughly” by courts); see also 37 TEX. ADMIN. CODE
§ 143.42(8) (providing an inmate “shall not call upon the board to decide technical
questions of law which are properly presented via the judicial process.”). As
explained at length in the Opening Brief, clemency involves “an act of grace” and
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). It
“allow[s] the executive to consider a wide range of factors not comprehended by
earlier judicial proceedings and sentencing determinations.” Woodward , 523 U.S.
at 280-81 (Rehnquist, C.J., concurring).
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Death-sentenced indigents are entitled to appointed counsel who are not
conflicted by self-interest and thus will zealously pursue clemency proceedings
and all other available post-conviction relief on the client’s behalf.5 The sham
application that CJA Counsel threw together reflects no more than a desire to save
face before a district court that had appointed them and then stood behind them
even when the record reflected that doing so did not comport with the interests of
justice.
C.
The State is wrong with respect to Mr. Holiday’s burden before thedistrict court and on appeal.
The State is also incorrect that Mr. Holiday’s request for appointment of
substitute counsel was properly denied because neither he nor his pro bono counsel
had lined up a specific qualified CJA counsel to accept an appointment. See Opp.
at 2, 25. As a practical matter, neither Mr. Holiday nor his volunteer lawyer has
access to the list of qualified lawyers maintained by the Southern District of Texas
who are willing to accept appointments. More importantly, the fact that Mr.
Holiday did not name a specific alternative to Messrs. Kretzer and Volberding is
not relevant to the analysis under Clair and Christeson. See Opening Brief at 23-
33 (demonstrating how all Clair factors weighed entirely in favor of granting Mr.
5 See, e.g., Mosley v. Quarterman, 325 F. App’x 394 (5th Cir. May 22, 2009) (vacating denial of
compensation for clemency proceedings and remanding for further consideration in light of Harbison); Rosales v. Quarterman, 565 F.3d 308 (5th Cir. 2009) (noting Harbison authorizes
counsel pursuant to 18 U.S.C. § 3599 for available clemency proceedings).
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Holiday’s motion to substitute counsel and how the district court failed to apply
them). Additionally, as the Supreme Court noted in Christeson, “the statute leaves
it to the court to select a properly qualified attorney.” 135 S. Ct. at 894 (citing §§
3599(a)-(d) (emphasis added)). And “the statute contemplates that a court may
‘replace’ appointed counsel with ‘similarly qualified counsel … upon motion’ of
the petitioner.” Id. (citing § 3599(e) (emphasis added). Neither the statute nor
Supreme Court precedent condition an indigent capital defendant’s right to
replacement counsel on a requirement that he or a volunteer lawyer identify a
specific lawyer who is qualified and prepared to step in. See id. at 893-96
(granting relief to an indigent capital defendant who sought appointment of
substitute CJA counsel following an appeal brought by a volunteer lawyer).
III. The State Fundamentally Misunderstands the Concept of Standing.
The State also devotes a great deal of its Opposition to arguing that Mr.
Holiday’s pro bono counsel has “no standing” to represent him before this Court.
The State is mistaken. Standing is not a concept that applies to attorneys, but to
parties with respect to the specific claims they have brought to a court. See Warth
v. Seldin, 422 U.S. 490, 498 (1975) (“In essence the question of standing is
whether the litigant is entitled to have the court decide the merits of the dispute or
of particular issues.”) (emphasis added). Mr. Holiday obviously has standing to
appeal the district court’s denial of his motion to substitute counsel. He also has a
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19
right to retain counsel to represent him in pursuing this appeal. As noted in Mr.
Holiday’s Opening Brief and in his Motion to Strike, Mr. Holiday’s CJA Counsel
cannot represent him in this proceeding because they were directly adverse to him
below—and continue to be adverse to him here, as evidenced by their attempt to
dismiss this appeal and to align themselves with Mr. Holiday’s adversary, the
State. See ROA.15-70035.848; ROA.15-70035.850-.851; ROA.15-70035.924;
ROA.15-70035.857; ROA.15-70035.960-.961; ROA.15-70035.965; see also CJA
Counsel’s Motion to Dismiss Appeal.
CJA Counsel may not represent Mr. Holiday with respect to the issue
presented on appeal, not because they lack “standing,” but because they are
conflicted. As the Supreme Court recently held, counsel “cannot reasonably be
expected to” “denigrate their own performance” so as to advance their client’s
legal position because “mak[ing] such an argument . . . threatens their professional
reputation and livelihood.” Christeson, 135 S. Ct. at 894 (citing the Restatement
(Third) of Law Governing Lawyers § 125 (1998)). “A ‘significant conflict of
interest’ arises when an attorney’s ‘interest in avoiding damage to [his] own
reputation’ is at odds with his client’s ‘strongest argument.’” Id . (quoting Maples
v. Thomas, 132 S. Ct. 912, 925 n.8 (2012)). See also Tex. Disciplinary R. Prof.
Conduct 1.06 (“a lawyer shall not represent a person if the representation of that
person: (1) involves a substantially related matter in which that person’s interests
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20
are materially and directly adverse to the interests of another client of the lawyer or
the lawyer's firm; or (2) reasonably appears to be or become adversely limited by
the lawyer’s or law firm’s responsibilities to another client or to a third person or
by the lawyer’s or law firm’s own interests.”); see also ABA Model Rule of
Professional Conduct 1.7(a) (“a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest.”).
The State confuses “standing,” a threshold justiciability issue, with
“authority,” arguing that undersigned counsel cannot serve as Mr. Holiday’s
appellate counsel because he already has appointed counsel. The State goes so far
as to characterize undersigned’s appearance on Mr. Holiday’s behalf as
“unlawful.” See Opp. at 19. Neither the State nor CJA Counsel, with whom the
State is now aligned, has offered any basis for their assertion that a death-
sentenced indigent, unlike other individuals, may not retain a volunteer lawyer
once he has nominal appointed counsel. If undersigned counsel’s appearance is
“unlawful,” then this Court will need to explain why the Supreme Court allowed
pro bono counsel to represent Christeson last term before the nation’s highest court
on a similar § 3599 issue although Christeson still had CJA counsel at the time—
whose conflicts were the subject of the appeal, as is the case here.6
6 See Supreme Court’s docket for Christeson v. Roper , No. 14-6973, available at
http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/14-6873.htm , demonstrating
that Mr. Christeson was represented before the Court by pro bono counsel Jennifer Merrigan of
Saint Louis University School of Law although he had appointed counsel, whom the Supreme
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21
In short, the doctrine of standing has nothing to do with whether undersigned
counsel may represent Mr. Holiday. The entity that lacks standing with respect to
the merits of this appeal is the State, which took no position on the issue below
because the State sustains no cognizable injury if Mr. Holiday is appointed
conflict-free counsel.
Likewise, the State’s “next friend” analysis is utterly inapplicable to this
situation. As the Court well knows, “next friend” status is a means whereby a third
party can serve as a party on behalf of another who cannot do so as a matter of
law—as when a parent represents a minor in a personal injury case. See, e.g., In
Re Bridgestone Americas Tire Operations, LLC , 387 S.W.3d 840 (Tex. 2012) ( per
curiam) (discussing the scope of “next friend” status under Texas law). Mr.
Holiday’s “competence” to act on his own behalf is not at issue here. And he did
act.7 He retained undersigned counsel to serve as his representative in preserving
and pursuing his right to conflict-free substitute counsel under § 3599. See TAB A.
Lawyers qua lawyers are not acting as a party’s “next friend” when they
represent them in litigation. A lawyer serves as a client’s agent, not “next friend.”
Court decided “could not be expected to argue that Christeson was entitled to” equitable relief
where Christeson, like Mr. Holiday, had filed a pro se motion seeking substitute, conflict-freecounsel. 135 S. Ct. at 891.
7 As explained in Mr. Holiday’s Opening Brief, he sought pro bono counsel at the express
direction of his appointed counsel; they urged him to look for pro bono counsel elsewhere in thesame June 30
th letter in which they announced that they would no longer do any work for him.
ROA.15-70035.949-.950.
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22
Indeed, a lawyer is a fiduciary bound by certain ethical responsibilities, such as the
obligation not to continue to represent a client once asked to withdraw or when a
direct conflict of interest with the client has arisen. Those rules are not suspended
simply because a lawyer has been appointed to represent a client who has been
sentenced to death.
A lawyer whom a client has authorized to represent him has authority and,
indeed, an obligation to advocate for that person. The State’s suggestion that
undersigned counsel’s role in this appeal is somehow “improper” and even
“unlawful” is not only incorrect but intemperate. See Opp. at 19. That argument
has no bearing on the legitimate basis for entering a § 2251 stay based on the
circumstances and arguments developed in Mr. Holiday’s Opening Brief.
CONCLUSION AND PRAYER FOR RELIEF
For the foregoing reasons, Mr. Holiday respectfully asks that the Court grant
the Motion for Stay of Execution filed with his Opening Brief so that the relief
sought through this appeal is not meaningless. Further, Mr. Holiday respectfully
asks that the Court award any other relief to which he shows himself justly entitled.
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23
Respectfully submitted,
BECK R EDDEN LLP
By: /s/ Gretchen Sims SweenGretchen 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
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24
CERTIFICATE OF COMPLIANCE
I hereby certify that this filing complies with the ECF filing standards and
Federal Rule of Civil Procedure 32(a)(7)(b), in that the non-exempt portions of this
brief contain 5,444 words and the brief is prepared in Microsoft Word 2007 Times
New Roman 14-point font.
CERTIFICATE OF SERVICE
I hereby certify that on November 10, 2015, I electronically transmitted this
Reply to Respondent-Appellee’s Opposition to Stay to the Clerk of the Court using
the Court’s ECF System. I further certify that counsel of record for Respondent-
Appellee are being served with a copy of this Reply by electronic means via the
Court’s ECF system, as follows:
Ellen Stewart-Klein
Office of Attorney General
Capitol Station
P.O. Box 12548
Austin, TX 78711-2548
C ounsel for Respondent-Appellee William Stephens
I further certify that, on this same day, I transmitted a copy of this pleading
to Raphael Holiday at the Polunsky Unit by express mail.
/s/ Gretchen Sims Sween
Gretchen Sims Sween
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TAB ALetter of Representation dated October 19, 2015
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BeckI
edden
515
Congress
Avenue Suite 1900
I
Austin
TX
78701
Phone
512.708.1000 I
Fax
512.708.1002
www beckredden com
October
19, 2015
Re: Holiday v. Stephens, Civil Action No
4:11-CV-1696
Rafael Holiday
Polunsky
Unit
3872 FM 350
South
Livingston,
TX
77351
c/o Richard
Burr
via email: [email protected]
Dear
Mr
Holiday:
Thank you for the
opportunity
to represent
you
as per discussions regarding your
case with Richard Burr
that you
initiated. This letter describes
the
terms
and scope
of the
representation
that
I will
provide
you
through
my law
finn
Beck
Redden LLP
(the Firm ).
I realize that this must be a very difficult time for you,
but
having a letter like this one will
help ensure
that
we have the same understanding
about the
services I will provide.
Most of
these terms are standard
in
agreements regarding
pro ono
representation
or n
engagement
letters generally.
Scope
of
Represenration.
Through
the
Firm, I
will
represent you
in
an appeal to
the
Fifth Circuit
Court of
Appeals
of
the district court's
Order
denying your request
to
have
substitute counsel appointed to represent you
under
18 U.S.C.
§
3599 in clemency proceedings
and, if necessary, to the United States Supreme Court. In connection with these proceedings, I
will
seek a stay of your execution scheduled for
November
18, 2015.
f
relief is granted, I
will
withdraw from the representation upon ensuring that you have counsel to represent you in
seeking clemency.
We
agree to provide you with updates relating to this representation.
Legal Fees. We will be providing legal services on a pro
ono
basis, which means no
fees will
be
charged for
my
services as an attorney. I will have primary responsibility for this
engagement.
Expenses. I will
do
my
best t ?
avoid incurring any expenses
beyond
basic copying,
postage,
and
filing fees. You
will
not be billed for these expenses.
Tennination
Either
you, as the client,·
or
my
Firm
may terminate
the
engagement
upon
written notice for any reason.
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Authorization. You specifically authorize me to communicate with your current
counsel, Seth Kretzer and James Volberding, with the court and its personnel as necessary to
enforce your right to seek counsel willing
to
represent you
in
seeking clemency.
Work Product. All
of
the Finn s work product
will
be owned by the Finn. But in the
event of any termination of the engagement or the Firm s withdrawal, you will be promptly
furnished copies
of
papers relevant to the proceedings for which the Pinn was engaged
including copies
of
the Finn s work product
State Bar Notice. The State Bar of Texas requires that we advise you that the State
Bar investigates and prosecutes professional misconduct committed by Texas attorneys.
Although not every complaint against or dispute with a lawyer involves professional
misconduct, the State Bar s Office of General Counsel
will
provide you with information
about how to file a complaint. Please call 1-800-932-1900 for more information.
f
you need to reach me regarding this matter, please feel free to write to me at the
address above.
f
you agree to the engagement on the terms described here, please sign
below. Keep one copy for you and give the other copy to
Mr
Burr to send back to me
look forward to doing all can to assist you with this appeal.
have read this letter and agree to the terms after discussing the scope
of
the limited
representation you will provide with
Mr
Burr:
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TAB BE-mail exchange between counsel
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1
Melissa Patak
From: Gretchen SweenSent: Tuesday, November 10, 2015 11:31 AMTo: Melissa PatakSubject: FW: Raphael Holiday
Attachments: image001.jpg
‐‐‐‐‐Original Message‐‐‐‐‐
From: Stewart‐Klein, Ellen [mailto:Ellen.Stewart‐[email protected]]
Sent: Thursday, October 22, 2015 9:23 AM
To: Gretchen Sween
Subject: RE: Raphael Holiday
I am out of the office today. As I explained to counsel yesterday the State takes no position
on matters of representation.
_______________________________________
From: Gretchen Sween [gswebeckredden.com]
Sent: Thursday,
October
22,
2015
9:16
AM
To: Stewart‐Klein, Ellen
Subject: Raphael Holiday
Good morning, Ms. Stewart‐Klein. As you have likely observed, I have noticed an appeal of the
order denying Mr. Holiday’s request for substitute counsel. I am now preparing a response to
the motion his appointed CJA counsel filed last night. I am hoping you might give me a call
so that I may quickly apprise you of my perspective on this matter and discharge my
obligation to confer before I file my response.
Thank you in advance,
Gretchen
S.
Sween
Of Counsel
[cid:1AF66CB2‐433F‐47E3‐BC66‐[email protected]]
515 Congress Avenue, Suite 1900
Austin, TX 78701
Phone 512.900.3217
Fax 512.708.1002
http://cp.mcafee.com/d/FZsScCQm67TQShPP1KVJ6WqbVEVvusudETjhvd7bVEVhudETjhvd7bXPxEVdETjjvohpsp
dAq6f‐0a8voH7Q4fxOVIxZyIvgg‐
7bCNP2bHOrz_nVwsYzRXBQSkPhPOdT7SemKDp55mWqfaxVZicHs3jq9JcTsTsSkUxZyIvgg‐
7bCRECq73CrKcLLcKDuuvYeFfP6NCnaD_a0aDUvJdDeIoum8_3UWvN6FASUesodwIqid40bRoDLDCy0bRfAxFoQg6QXCV1gRXgui
*********************************************************************************************
*******************************************************************************************
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
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2
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
[email protected]. Thank you.
*********************************************************************************************
*******************************************************************************************
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TAB CCJA Counsel’s Facially Inadequate Application for
Commutation of Sentence, or Alternatively, Reprieve from
Execution of Death Sentence
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TO THE TEXAS BOARD OF PARDONS AND P ROLES
AUSTIN, TEXAS
IN THE MATTER OF
RAPHAEL HOLIDAY,
Petitioner.
RAPHAEL HOLIDAY S APPLICATION FOR COMMUTATION
OF SENTENCE,
OR
ALTERNATIVELY, REPRIEVE FROM
EXECUTION OF DEATH SENTENCE
TO THE HONORABLE TEXAS BOARD OF PARDONS ND PAROLES:
RAPHAEL HOLIDAY, a Texas death row inmate, currently scheduled for
execution February 18, 2015, at 6 p.m., respectfully submits this, his application for
commutation of sentence, or alternatively, reprieve from execution ofhis death sentence.
I
PPLIC NT INFORMATION
Applicant:
Inmate Number:
Location:
Attorney:
Scheduled Execution:
Required Documents:
n
the Matter
o
Raphael Holiday
pplication for Reprieve
o
Execution of Death
Puge I
Raphael Holiday
999419
Polunsky Unit, Death Row
Mr. Seth Kretzer
Contact information below
February 18, 2015, 6 p.m., CST
Copy of indictments
Copy of udgment
Execution Order
Attachment 1
Attachment 2
Attachment 3
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Jury verdict, guilt
Jury verdict, death
Attachment 4
Attachment 5
REQUEST
FOR
INTERVIEW
WITH MEM ER OF
THE BOARD
Pursuant to Texas Administrative Code § 143.43(d), Mr. Holiday s attorney
respectfully requests the opportunity to discuss this application with one of the members
of the Board
of
Pardons and Paroles. Mr. Kretzer s cell phone
is
(713) 775-3050. He is
available to meet at the Polunsky Unit with Mr. Holiday at any time.
III
STATEMENT OF THE OFFENSE
The testimony at trial is briefly summarized
as
follows:
Holiday and Tammy Wilkerson formed a romantic relationship in mid-1996 or
1997. Prior
to
the relationship, Wilkerson had already birthed two daughters, Tierra
Shinea Lynch and Jasmine Rockell DuPaul,
by
two different fathers. During the
relationship with Holiday, Wilkerson gave birth to Holiday s daughter, Justice Holiday.
The family couple moved to Plantersville in 1998, and then moved to Madison
County, where they lived in a residence owned
by
Wilkerson s parents, Beverly and
Louis Mitchell. The residence was located approximately a mile from the Mitchells own
home in a rural area.
In March 2000, Holiday was charged with aggravated sexual assault of Tierra, and
was excluded from Wilkerson s residence
by
a protective order. Nevertheless, Holiday
and Wilkerson saw each other on several occasions, and sometimes engaged in sexual
relations on several instances between March 2000 and September 5 2000. They also
maintained daily phone contact. Although Wilkerson later claimed during the trial
of
this
case that she was coerced into continuing her relationship with Holiday, Wilkerson never
notified the authorities regarding the alleged violations
of
the protective order. In August
2000, Holiday was arrested for violation
of a protective order after attempting to see her
at her place of employment. Nevertheless, the relationship between Wilkerson and
Holiday continued after his release from jail.
n
the Matter ofRaphael Holiday
Application
for
Commutation
or
alternatively Reprieve ofExecution ofDeath
Page
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On the day of the incident, Holiday drove to Wilkerson s house in the late evening
with two friends, Robert Lowery and John White, got out of the car and sent his friends
away. When he got out
of
the car, Holiday took with him a pistol, a can
of
gasoline, and a
screwdriver.
After Holiday s friends left, Wilkerson became alarmed after seeing a figure at the
window and called her parents. Wilkerson s mother, Beverly Mitchell, and Mitchell s
brother, Terry Keller, arrived at Wilkerson s residence. Keller was armed with a shotgun.
As they were placing the girls in the car, Holiday appeared in the house. Wilkerson
immediately left through the backdoor of her house to call for help, leaving her mother,
uncle and children with Holiday. Holiday compelled Keller to put down the shotgun.
Holiday started to pour gasoline from the can he had brought on the ground and on
Wilkerson s car. He attempted to light the gasoline, but it would not ignite. Holiday then
directed Mitchell and Keller to bring the girls inside the house and sit on the sofa.
Holiday and Mitchell left in Mitchell s car to go to her house, leaving Keller alone in the
house with the three girls. At this point, Keller left the house - and the girls - to seek
help.
On arriving at Mitchell s house, Holiday and Mitchell retrieved two five-gallon
containers of gasoline and returned to the Wilkerson s residence. Holiday directed
Mitchell to pour gasoline through the residence, allegedly starting at some recliners in the
living room -kitchen area of the residence and moving throughout the house into the
washroom and bedroom. While in the bedroom, Mitchell testified that she heard one of
her grandchildren call her name and she looked into the living room. Mitchell stated that
she saw Holiday bend down toward the floor, and then she saw a fire start and move
through the room. Mitchell escaped through a window in the back bedroom; Holiday
escaped through the front door. The girls, who had been sitting on the couch when the
fire started, did not escape.
Outside, Holiday took Mitchell s car and started to drive away. As he was driving
away, he collided with a car driven by Madison County heriffs Deputy Ivan Linebaugh.
Holiday and Linebaugh engaged in a high speed, multi-agency car chase until Holiday s
car crashed and caught fire.
After Holiday was removed from the car and taken into custody, police and
medical personnel observed that Holiday was burned on his hands, fingers, arms, and
neck. A forensic pathologist who reviewed the photographs taken of Holiday s bum
n
the Matter o Raphael Holiday
Application
or
Reprieve
o
Execution
o
Death
Page
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injuries opined that the bums were consistent with a person being burned by a flash
after bending and reaching down as i to light an floor-level accelerant.
A forensic analysis
o
the debris recovered from the Wilkerson residence and from
the person o Holiday and Mitchell revealed the presence o gasoline on debris collected
from
the laundry room, the kitchen and Holiday's tennis shoes. The results were negative
for gasoline on Holiday's shirt and pants, Mitchell's nightshirt and pants, clothing from
one
o
the decedents, debris under the couch on which the decedents had been sitting, and
on
two cigarette lighters taken from Holiday after his arrest.
Wilkerson's father, Louis Mitchell, testified that the residence had a propane gas
stove in which the pilot light was ignited, and a Dearborn heater on which the pilot light
had been turned off. The house also had several electric utilities, the refrigerator, water
heater, washer and dryer, and three air conditioners, all
o
which were in working order.
The State presented testimony regarding the causation
o
the fire by John DeHaan,
a fire/arson investigator, and president o Forensic Scientists, Inc., from Viejo, California.
DeHaan opined that the only scientifically supportable basis for causation o the fire was
Holiday's having ignited the fire. DeHaan excluded as possible bases for the fire's
causation the stove pilot light, the refrigerator, the air conditioner units, the water heater,
and the floor heater.
The defense expert, Judd Clayton, presented the defense's theory o ignition that
the fire could have started from the water heater located in the bathroom, an electrical
spark the refrigerator, the window mounted air conditioner units, or the pilot lights
on
the
stove top. Although Clayton agreed with DeHaan that the broiler pilot light could not
have been a possible ignition source, his reasons differed from DeHaan; DeHaan
identified the broiler pilot light
s
a continuously burning gas pilot but concluded that the
broiler pilot could not reasonably have ignited the gas vapors because the light was
placed too high from the vapors, the light was placed in a compartment which retarded
the entrance
o
the fumes, and that there had been no resulting explosion. Clayton
excluded the broiler as a possible ignition source because he believed it to be an electrical
ignition system.
The jury found Holiday guilty
o
capital murder as alleged in each
o
the three
indictments.
At the punishment phase o trial, the State presented evidence that in addition to
the facts leading
up
and involved in the incident ultimately leading to the fire in the
n
the Matter
o
Raphael Holiday
Application for Commutation
or
alternatively Reprieve o Execution
o
Death
Page 4
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Wilkerson residence, Holiday had previously sexually assaulted his maternal aunt and a
cousin, and struck his mother in an argument when he was
5
years
o
age before leaving
home. A forensic psychiatrist testified on behalf
o
the State, asserting that based on a
hypothetical set
o
facts relating to Holiday, that Holiday had an anti-social personality
disorder, and that he was likely to constitute a future danger o violent conduct.
The defense presented several witnesses who testified that Holiday had
experienced a normal, uneventful and Church-going childhood, that he had been
respectful to others, that he had been proud o his (deceased) daughter, and had adjusted
well to incarceration. A forensic psychiatrist testified for the defense that Holiday s
profile on a personality test, the MMPI revealed that he had suffered from depression and
had poor internal mechanisms for coping with stress and frustration.
The jury answered the future dangerousness question in the affirmative, and
answered the mitigation question in the negative, resulting in the imposition
o
a sentence
o death.
Affidavit
o
Janette
Wilkerson
Conroe ISD application
for residence in district
Affidavit o Majorie
Minor
Affidavit o Michael
Blackshear
Affidavit
o
Eric
Nickerson
Angella Diane
Nickerson
n the Matter ofRaphael Holiday
Raphael s brother. Abuse and injuries by
arents. Severe ove
She was 5 when Raphael was born, the
product o a rape when she was 14. She
verifies abuse
o
Raphael and dysfunctional
brin in .
pplication
for
Reprieve
of
Execution
o
Death
Page
6
7
8
9
1
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Affidavit
of
Gerald
Hurst, Ph.D.
Second affidavit
of
Gerald Hurst, Ph.D.
ATF Investigation
Report
Affidavit ofGerald
Bierbaum
Letter from Gerald
Bierbaum
Affidavit ofGerald L
Byington
Testimony ofPrison
Chaplain Rev. Carol
Pickett
Testimony ofLouis
Mitchell
Testimony ofBeverly
Mitchell
In the Matter ofRaphael Holiday
Forensic fire expert hired by defense. The fire
investigation presented at Raphael's trial
overstated causation. In his opinion, it is
reasonably possible the fuel was ignited by an
existin broiler ilot
i
ht, not b a hael.
The Ph.D. dissertation
of
the State's fire expert 2
at trial contradicts the methodology and
o inions the ex ert told 'urors at trial.
An ATF fire expert named Special Agent 3
Opperman investigated the fire. S/A
Opperman was asked to assist in determining
the cause
of
the ignitition
of
the gasoline
fumes. Opperman advised the DA that the
piloted natural gas stove and other appliances
in the area could not be ruled out as ignition
sources.
Defense private investigator. There is evidence 4
that Holiday may suffer organic brain damage
as
the result of in· uries sustained
as
a child.
Description ofRaphael's dysfunctional 5
upbringing and family. Raphael has positive
characteristics and did some good things given
his limited intelli ence.
Defense mitigation investigator. Raphael's
6
court appointed trial lawyers should have told
·urors about his abuse as a child.
Description of execution and her role in
7
counseling.
Family friend. Problems in Raphael and 8
Tami's relationship, illustrating emotional
mindset ofRaphael and sources of his
emotional stress.
Same. 9
Application for Commutation
or
alternativ ly Reprieve
o f
Execution
o f
Death
Page 6
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Law review article by
distinguished scholar
Gretchen Sween,
Adjunct Professor at
U.T. Law School
IV
STATEMENT
OF
APPELLATE
HISTORY
OF
C SE
AND CURRENT STATUS
A.
Course
of
Proceedings
and
Disposition in State
Court
20
Holiday was indicted for capital murder
in
the 278th District Court of Madison
County, Texas, and tried in consolidated cause numbers 10,423, 10,425 and 10,427,
styled State o Texas
v
Raphael Deon Holiday. Following a jury verdict in favor
of
the
state, the court imposed a death sentence.
Holiday s conviction and sentence were automatically appealed to the CCA in
cause numbers AP-74,446, AP-74,447 and AP-74,448. The CCA denied the appeal
entirely on February 8 2006.
Holiday v. State
2006 Tex. Crim. App. Unpub. LEXIS 737
(Tex. Crim. App. Feb. 8 2006).
Holiday s motions for rehearing were denied April 26, 2006. Holiday v. State
2006 Tex. Crim. App. LEXIS 848, 849 and 850 (Tex. Crim. App. Apr. 26, 2006).
Holiday timely sought a writ of
certiorari
from the Supreme Court, which denied
his petition November 13 2006. Holiday
v
Texas 549 U.S. 1033, 2006 U.S. LEXIS
8661 (Nov.
13
2006).
Holiday timely sought state habeas relief in an application filed in the same trial
court, and assigned the cause numbers 10,423(A), 10,425(A) and 10,427(A), and styled
Ex parte Raphael Deon Holiday.
The trial court recommended denial of all relief and on May 26, 2009 signed
without any changes findings of fact and conclusions of law written by the local
prosecutors.
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o
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The CCA denied relief May
5
2010 in a summary order in cause numbers WR-
73,623-01, WR-73,623-02 and WR-73,623-03. See Ex parte Holiday 2010 Tex. Crim.
App. Unpub. LEXIS 262 (Tex. Crim. App. May
5
2010).
B.
Course
of
Proceedings and Disposition in Federal District
Court
Holiday timely sought federal habeas relief. In an opinion dated July 10 2013, the
federal court denied relief and stated that no COA would issue. Holiday
v
Stephens 2013
U.S. Dist. LEXIS 98004.
C. Course of Proceedings in the Fifth Circui t
On November
12
2013, Holiday filed a petition in the Fifth Circuit raising
twenty-eight claims. The Fifth Circuit denied relief on October 1 2014, and denied
Holiday s petition for rehearing on December 29, 2014. Holiday v. Stephens 587 Fed.
Appx. 767 (5th Cir.
1
2014).
D. Course of Proceedings in the Supreme Court
The Supreme Court denied Holiday s petition for writ of certiorari on June 29,
2015 . Holiday v. Stephens 2015 U.S. LEXIS 4316 (U.S., June 29, 2015).
There are no legal actions by Holiday s court appointed lawyers currently pending
before any court. None are planned.
STATEMENT OF LEG L ISSUES RAISED DURING PPE L
The most important legal issues presented by Mr. Holiday during his appeal were
these:
1.
The evidence underlying Holiday s capital murder conviction failed to meet
the sufficiency standard
of
Jackson
v
Virginia.
2. The State violated the Sixth Amendment fair trial jury clause and
Wainwright
v
·Witt 469 U.S. 412 (1985), by granting the State s request to
remove juror Sessions.
3. The State violated Holiday s Sixth Amendment right to confrontation by
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allowing nurse Jane Riley to relate damaging banned testimonial hearsay by
Tierra Lynch in violation
ofCrawfordv. Washington 541U.S.36
(2004).
4. The State violated the Fifth and Fourteenth Amendment due process Clause
provisions by allowing nurse Jane Riley to relate banned testimonial
hearsay by Tierra Lynch.
5.
The State violated Holiday s right to adequate notice
of
the offense and due
process of law provided by the Fifth and Fourtt .enth Amendment, by
refusing to quash the indictment for: (1) failure to notify the manner and
means that Holiday was alleged to have ignited the fire in an arson case,
and (2) by failing to allege whether the State sought to impose liability by
means of conspiracy or parties law.
6. The State violated Holiday s Sixth Amendment right to be informed
of
the
nature and cause
of
the accusation against him by refusing to quash the
indictment for ( 1
failure to notify
of
the manner and means that Holiday
was alleged to have ignited the fire in an arson case, and (2) by failing to
allege whether the State sought to impose liability by means of conspiracy
or parties law.
7. The State violated the Eighth Amendment by barring Holiday s attorneys
from informing jurors that when answering the special issues that state law
does not require a yes or
no
answer, but will be satisfied if jurors are
unable to reach a verdict on any special issue.
8.
The State violated Holiday s Sixth Amendment right to a fair jury trial by
denying his challenge for cause
of
juror Linda Masters.
9. The State violated Holiday's Sixth Amendment right to a fair jury trial by
denying his challenge for cause ofvenireman Kenny Penny.
10. Holiday asserts ~ r i o u s constitutional due process claims regarding the
impropriety of allowing Dr. John DeHaan to testify on that the fire could
not have been accidentally ignited, and asserts such testimony was
false/misleading in its nature or alternatively, unreliable scientific
testimony.
11. The state trial court violated the due process clause of the Fourteenth
Amendment when it permitted evidence that Holiday committed the
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extraneous offense
of
raping ofTierra Lynch.
12 The State violated Holiday s right to remain silent clause
of
the Fifth
Amendment and the due process clause
of
the Fourteenth Amendment by
commenting to jurors on Holiday s failure to testify.
13
. The state trial court violated the due process clause of the Fourteenth
amendment by permitting a state expert Dr. Gripon to testify that Holiday
would likely commit future acts
of
violence.
14 The state trial court violated the cruel and unusual punishment clause
of
the
Eighth Amendment by permitting a state expert Dr. Gripon to testify that
Holiday would likely commit future acts
of
violence.
15 The state court violated the due process clause
of
the Fourteenth
Amendment, the cruel and unusual punishment clause
of
the Eighth
Amendment and
Skipper
v
South Carolina
476 U.S. 1 (1986), by refusing
to permit Holiday s expert, Carroll Pickett, to explain how the death
penalty would be administered against Holiday
if
ordered.
16 The state court violated the due process clause of the Fourteenth
Amendment, the cruel and unusual punishment clause of the Eighth
Amendment and Skipper
v
South Carolina 476 U.S. 1 (1986), by refusing
to permit Holiday s expert testimony
of
Carroll Pickett
of
the effect that
administration of death penalty would have on prison employees required
to
c ny
out the execution
of
Holiday.
17 The state court violated the due process clause of the Fourteenth
Amendment, the cruel and unusual punishment clause
of
the Eighth
Amendment and
Skipper
v
South Carolina
476 U.S. 1 (1986), by refusing
to permit Holiday s expert testimony
of
Carroll Pickett concerning the
effect
of
the death penalty on the survivors
of
the victim.
18 The state court violated the due process clause
of
the Fourteenth
Amendment, the cruel and unusual punishment clause
of
the Eighth
Amendment and
Skipper
v
South Carolina
476 U.S. 1 (1986), by refusing
to permit Holiday s expert testimony
of
Carroll Pickett to explain how
inmates permitted to serve life sentences often make positive changes in
their lives.
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o
Raphael Holiday
Application
or
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19 The state court violated the due process clause
of
the Fourteenth
Amendment by restricting Holiday's cross-examination of Beverly Mitchell
at the punishment phase
of
trial.
20. The state court violated the cruel and unusual punishment clause
of
the
Eighth Amendment by restricting Holiday's cross-examination of Beverly
Mitchell at the punishment phase of trial.
21. The state court violated
Franklin v. Lynaugh
487 {J.S. 164 (1988), by
restricting Holiday's cross-examination
of
Beverly Mitchell at the
punishment phase
of
trial.
22. Texas Code
of
Criminal Procedure article 37.071 violates the cruel and
unusual punishment clause
of
the Eighth Amendment because it
impermissibly restricts mitigating evidence to merely that evidence which
the jurors might regard as reducing moral blameworthiness
23. The trial court violated the Sixth, Eighth and Fourteenth Amendments by
failing to instruct the jury that the no vote by a single jury member would
result in a life sentence instead
of
death, despite the statutory requirement
of IO votes for a no answer to article 37.071 §2(b)(l) or for a yes vote
to article 37.071 § 2(e).
24. Texas Code
of
Criminal Procedure article 3 7 071 violates the cruel and
unusual punishment clause of the Eighth Amendment because it fails to
place the burden
of
proof
on the mitigation special issue to the state to
establish a no answer, and thereby implicitly assigned the burden of proof
to Holiday.
25. Texas Code
of
Criminal Procedure article 37.071 violates Ring v Arizona
because it fails to require the State to prove beyond a reasonable doubt that
the mitigating evidence is sufficient to warrant a life sentence.
VI
REQUESTED L NGTH OF DURATION OF R PRI V
Obviously, Raphael requests clemency and a transfer from death row to general
population to serve out his sentence. That aside, he requests a thirty-day reprieve.
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n the Matter o Raphael Holiday
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VII
REASONS WHY CLEMENCY FOR MR. HOLIDAY IS APPROPRIATE
1
Raphael's actions were the result
of
unconstrained emotion and
stupidity, not
of
deliberate callousness and depravity. He never
intended to
harm the children.
Holiday never intentionally or knowingly caused the death of the three children.
The fire was an accident. Raphael Holiday was emotionally hell-bent on scaring Tami,
but he never intended that the three children be harmed. Their deaths were a tragic
accident. There has not been a moment since that tragic day until now that Raphael has
not anguished over his irresponsible actions. To preserve the credibility and deterrence of
capital punishment, the government should reserve its most severe punishment,
execution, for those depraved individuals who calculatingly set out to kill another.
Raphael
is
not among those. He acted with unconstrained emotion, never reason or logic,
and without thinking out the risks or consequences to the children. While a life sentence
is
appropriate, execution is not.
2 There is substantial doubt - or
at
least residual doubt -- as to whether
Holiday actually lit the gasoline.
There remains substantial doubt, or at least residual doubt, on a central question:
what mechanism actually ignited the gasoline. This is a question of causation. This is an
important question because the answer determines whether Holiday intentionally or
knowingly started the fire,
nd
whether he
actually
started the fire .
A. Although there
w s
some evidence that Holiday started the fire
that evidence is indeterminate.
The night
of
the incident, Holiday drove to Tami Wilkerson's house; he had taken
with him a screwdriver, a gas can and a pistol. RR 36, p 51. Holiday was prior to this
event charged with aggravated sexual assault
of
his step-daughter Tierra Shinea Lynch,
and a protective order prohibited him from being near Tami Wilkerson or the three
children, Tierra, Jasmine Rockell DuPaul, and Holiday's daughter Justice Holiday. RR
39, pp. 92-93. Holiday and Wilkerson spoke on the phone daily, and Holiday was
overheard threatening to kill Tami
if
I can't get my
kid/
though Holiday stated he was
joking. RR 36, p. 9 Holiday on other occasions threatened to kill Wilkerson; he also
said he was going to go [to Tami's] and bum the house down and watch her [Tami] run
out. RR
36,
pp.
11-12, 37-38.
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Holiday pulled out a pistol and held it to his head stating, I'm going to make
Tami pay for what she did to me taking my baby away.
RR
33, p. 84. Tami ran to a
neighbor's to call 911. Holiday started pouring gasoline he brought with him in the house
and on the cars; he repeated he would make Tami pay.
RR
33, p. 83, 89. A woman
named Beverly Mitchell poured additional gasoline, on Holiday's instruction, in the
bedroom, living room and near the washer and dryer.
RR
33, pp.
96-98,
118.
Mitchell saw Raphael [Holiday] with his foot up on the high chair and he was
saying something, and I don't know what he was saying, and he bent down and the fire
started.
RR
33, pp. 97-98. Though Ms. Mitchell did not see a lighter or match in his
hand when Holiday bent down, the fire started immediately s
he
reached down. Ms.
Mitchell admitted that during the pretrial hearing she did not remember saying anything
about seeing Raphael [Holiday] bend down at the time the fire started. RR 38, p. 169.
Holiday was transported to Madison County Jail and during booking, two cigarette
lighters were taken from him and sent to the lab for analysis.
RR
34, pp. 95-96. Holiday
had also suffered some bums and he was taken to the hospital. RR 34, p. 21.
Dr. Janie McLain, a forensic pathologist, was shown the photographs
of
Holiday's
bums he sustained in the fire. She said that Holiday's burns were consistent with a
situation where a person reached down with their right arm and bent down and that the
accelerate ignited. RR 35, pp. 173, 175.
Louis Mitchell testified that
Tami's
house had three air conditioner units-two
which were approximately thirty-two inches
off
the floor and one about four feet
off
the
floor.
RR
33, pp. 151-152. The house also had a Dearborn heater which used propane
and had a pilot flame-which he claimed was not on the night
of
the fire.
RR
33, pp.
152-153. There was also a gas stove in the house that had a pilot flame that should have
been on.
RR
33, p. 153. Also, the refrigerator, water heater, and washer and dryer
located in the house-were electric.
RR
33, p. 153.
Dr. John DeHann, the State's fire expert, said that gasoline vapors have to mix
with air in a process called diffusion, and a flammability range is established by the
process.
RR
36, p. 174.
He
said that gasoline vapors have a very narrow flammability
range. RR 36, pp. 175-176. There can
be
ignition by some other source in that room that
is not in the immediate vicinity
of
where the gasoline is poured
if
there is time for the
vapors of a sufficient concentration to move either horizontally
or
upward. RR 36, p.
179.
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Dr. DeHann excluded the water heater, the room heater, the refrigerator, the stove
and air conditioner
as
potential ignition sources. RR 36,
p
181-183. He eliminated the
stove unit in the northwest comer
of
the kitchen because the pilot flame was in a closed
compartment, was too high from the floor, and was too far from the areas where the
gasoline was poured.
RR
36, pp. 183-184. He eliminated the Dearborn heater on the
west
wall which
was near where Holiday was
standing because
Louis Mitchell said
the pilot flame was turned off. RR 36, p 187. He eliminated the refrigerator because
there was not enough . ime for the vapors to get into the concealed space where the
ignition source was located. RR 36, p. 189. He said that the thirty seconds or so that it
took Ms. Mitchell to pour the gasoline in the house would not be enough time for the
vapors to spread and be
of
high enough concentration with any
of
the ignition sources
in the house. He said that
if
the time-frame was doubled or tripled his opinion would be
no different.
RR
36,
p
195.
B. Other evidence cast doubt on whether Holiday actually lit the fire
or did so accidentally not intentionally.
No doubt Holiday was up to no good and attempting to scare Tami. He did not
intend actually to light the gasoline, however; his objective was merely to express anger.
If indeed his assertion is correct --- that he poured gasoline but never intended to light it -
-- then this tragic episode was an accidental fire but not intentional homicide. Holiday
would be guilty
of
three counts
of
manslaughter, offenses predicated on mens rea
of
recklessness.
Jim Swindall, an expert in determining the presence
of
liquid accelerants, said: (1)
he found the presence
of
gasoline on the shoes Holiday was wearing (RR 35, p. 122);
(2) he found no presence
of
gasoline on Holiday's pants or his shirt (RR 35, p. 123); (3)
he found the presence
of
gasoline in the debris collected from the laundry room (RR 35,
p.126); (4) he found the presence of gasoline on the debris collected from the kitchen
floor (RR 35, p. 127); (5) the clothing from the body found in the living room and the
fire debris under the couch where the victims were found were negative for the
presence of gasoline (RR 35, pp. 127-128); (6) the night shirt and pants Beverly Mitchell
was wearing were negative for the presence
of
gasoline
RR
35, pp. 128-129); and (7)
the two cigarette lighters taken from Holiday at the jail were negative for the presence
of
gasoline (RR 35, p. 133).
Judd Clayton --- the fire expert for Holiday --- said the Dearborn heater was the