Holiday Appellant's Opening Brief

No. 15-70035

In The United States Court Of Appeals

For The Fifth Circuit

RAPHAEL DEON HOLIDAY, Petitioner-Appellant,

v.

WILLIAM STEPHENS, DIRECTOR

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee.

On Appeal from the United States District Court

for the Southern District of Texas, Houston Division

USDC No. 4:11-CV-01696

PETITIONER-APPELLANTS OPENING BRIEF

RAPHAEL HOLIDAY IS SCHEDULED TO

BE EXECUTED ON NOVEMBER 18, 2015.

BECK REDDEN LLP Gretchen Sims Sween

515 Congress Avenue, Suite 1900

Austin, TX 78701

Telephone: (512) 708.1000

Facsimile: (512) 708.1002

PRO BONO COUNSEL FOR PETITIONER-APPELLANT, RAPHAEL HOLIDAY

Case: 15-70035 Document: 00513255660 Page: 1 Date Filed: 11/02/2015

i

No. 15-70035

In The United States Court Of Appeals

For The Fifth Circuit

RAPHAEL DEON HOLIDAY, Petitioner-Appellant,

v.

WILLIAM STEPHENS, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee.

On Appeal from the United States District Court

for the Southern District of Texas, Houston Division

USDC No. 4:11-CV-01696

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed persons

have an interest in the outcome of this case. These representations are made in

order that the judges of this Court may evaluate their possible disqualification or

recusal.

1. Raphael Holiday, Petitioner-Appellant

2. William Stephens, Respondent/Appellee

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

4. Seth Kretzer, appointed CJA attorney for Mr. Holiday


ii

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

6. Alexander L. Calhoun, appointed attorney for state habeas writ petition for Mr. Holiday

7. Gerald Bierbaum, appointed attorney for state habeas writ petition for Mr. Holiday

8. William F. Carter, appointed attorney for trial and direct appeal for Mr. Holiday

9. Frank Blazek, appointed attorney for trial and direct appeal for Mr. Holiday

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

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

12. Tina Dettmer Miranda, Office of the Attorney General for Respondent

13. Edward Larry Marshall, Office of the Attorney General for Respondent

14. Tommy Skaggs, Office of the Attorney General for Respondent

15. William C. Bennett, Criminal District Attorney, Madison County

16. Charles MacCobb, Asst. District Attorney

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

/s/ Gretchen Sims Sween

Gretchen Sims Sween

Pro Bono Counsel for Petitioner-

Appellant Raphael Holiday


iii

STATEMENT REGARDING ORAL ARGUMENT

Petitioner-Appellant Raphael Holiday asks that the Court set this case for

oral argument. Oral argument will assist the Court in determining the proper

application of the standard announced in Martel v. Clair when a death-sentenced

individual moves for appointment of substitute counsel after appointed counsel

refuses to pursue relief available to the client, including clemency proceedings, as

mandated by the plain text of 18 U.S.C. 3599(e).


iv

TABLE OF CONTENTS

PAGE CERTIFICATE OF INTERESTED PERSONS ........................................................................ i

STATEMENT REGARDING ORAL ARGUMENT ............................................................. iii

TABLE OF CONTENTS ................................................................................................. iv

INDEX OF AUTHORITIES ............................................................................................ vii

STATEMENT OF JURISDICTION ..................................................................................... 1

ISSUES PRESENTED ...................................................................................................... 2

INTRODUCTION ............................................................................................................ 3

STATEMENT OF FACTS AND STATEMENT OF THE CASE ................................................ 6

STANDARD OF REVIEW .............................................................................................. 18

SUMMARY OF THE ARGUMENT .................................................................................. 19

ARGUMENT ............................................................................................................... 21

I. DENYING THE 3599 MOTION WAS AN ABUSE OF

DISCRETION. ......................................................................................... 21

A. The Statute Requires Appointed Counsel to Assist

Through All Available Post-Conviction Proceedings. ............................................................................ 21

B. The Interests-of-Justice Factors Weighed Entirely in

Favor of Substituting CJA Counsel. ......................................... 23

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

2. The courts inquiry into the complaint was inadequate. ...................................................................... 26


v

a. Counsels belief that the Texas clemency process is a sham is not a basis for depriving Mr. Holiday of his statutory

right to representation. .......................................... 26

b. The record before the district court casts

serious doubt on CJA Counsels willingness to pursue any remaining legal

challenge. .............................................................. 27

c. CJA Counsel abandoned Mr. Holidays unadjudicated federal habeas claims. ................... 32

3. The cause for the complaint is attributable

entirely to CJA Counsel, not to the client....................... 33

C. CJA Counsels Last-Minute Decision to Throw Together a Clemency Application Does Not Obviate

the Need for New Counsel. ....................................................... 35

1. Clemency plays a distinct and important role in

our criminal justice system. ............................................ 35

2. CJA Counsels ex post facto attempt to prepare a clemency application makes a mockery of the

process. ........................................................................... 37

II. WITHOUT A 2251 STAY, APPOINTING SUBSTITUTE COUNSEL

WOULD BE A MEANINGLESS EXERCISE. ............................................... 41

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

CERTIFICATE OF SERVICE .......................................................................................... 47

CERTIFICATE OF COMPLIANCE WITH RULE 32(A) ...................................................... 48

APPENDIX

October 26, 2015 letter from J.W. Volberding to G. Sween ................... TAB 1

October 26, 2015 e-mail from G. Sween to J.W. Volberding ................. TAB 2


vi

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

to Habeas Colleagues ............................................................................... TAB 3

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

and J.W. Volberding ................................................................................ TAB 4


vii

INDEX OF AUTHORITIES

CASES PAGE(S)

Christeson v. Roper,

135 S. Ct. 891 (2015) ........................................................................ 22, 38, 40, 43

Ex parte Clifton Williams,

WR-71,296-02

(Tex. Crim. App. July 17, 2015) ............................................................. 29, 30, 31

Connecticut Natl Bank v. Germain, 503 U.S. 249 (1992) ............................................................................................ 22

Dretke v. Haley,

541 U.S. 386 (2004)

(Kennedy, J., dissenting)..................................................................................... 36

Duncan v. Walker,

533 U.S. 167 (2001) ............................................................................................ 21

Gonzalez v. Thaler,

No. SA-10 CA-165-0G

(S.D. Tex. January 31, 2011),

ECF No. 16 ......................................................................................................... 31

Gutierrez v. Stephens,

09-cv-00543 (W.D. Tex. Aug. 31, 2010),

ECF No. 45 at 9 .................................................................................................. 31

Harbison v. Bell,

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

In re Hearn,

376 F.3d 447 (5th Cir. 2004) ........................................................................ 43, 44

In re Hearn,

389 F.3d 122 (5th Cir. 2004) .............................................................................. 43

Hearn v. Dretke,

No. 04-cv-00450-D

(N.D. Tex. Nov. 2, 2004) .................................................................................... 44


viii

Herrera v. Collins,

506 U.S. 390 (1993) ...................................................................................... 35, 36

Holiday v. Stephens,

135 S. Ct. 2893 (2015) ...................................................................................... 7, 9

Holiday v. Stephens,

587 F. Appx 767 (5th Cir. 2014) ......................................................................... 7

Kansas v. Marsh,

548 U.S. 163 (2006)

(Scalia, J., concurring) ........................................................................................ 36

Martel v. Clair, 132 S. Ct. 1276 (2012) ............................................................passim

McFarland v. Scott,

512 U.S. 849 (1994) .....................................................................................passim

Ohio Adult Parole Auth. v. Woodard,

523 U.S. 272 (1998)

(OConnor, J., concurring) ............................................................................ 11, 35

Panetti v Quarterman,

127 S. Ct. 2842 (2007) ........................................................................................ 11

Panetti v. Stephens,

727 F.3d 398 (5th Cir. 2013) .............................................................................. 18

Shuffield v. Thaler,

08-cv-180 (E.D. Tex. Sept. 29, 2010),

ECF No. 49 ......................................................................................................... 31

Smith v. Dretke,

422 F.3d 269 (5th Cir. 2005) ................................................................................ 1

United States v. Grimes,

244 F.3d 375 (5th Cir. 2001) .............................................................................. 21

United States v. Wilson,

32 U.S. (7 Pet.) 150 (1833) ................................................................................. 36

White v. Thaler,

2013 WL 1442568

(5th Cir. April 1, 2013) ......................................................................................... 7


ix

Williams v. Thaler,

No. 09-cv-00271 (E.D. Tex) ............................................................................... 30

STATUTES

18 U.S.C.

3599 ...........................................................................................................passim

3599(d) ............................................................................................................. 21

3599(e) ......................................................................................................passim

21 U.S.C. 848(q)(4)-(10) .................................................................................... 21

28 U.S.C.

2244(b) ............................................................................................................. 11

2251 .................................................................................................. 1, 14, 41, 42

Tex. Admin. Code 143.57 ............................................................................... 25, 41

OTHER AUTHORITIES

Docket Sheet, In re Williams, WR-71,296-02, available at

http://www.search.txcourts.gov/Case.aspx?cn=WR-71,296-

02&coa=coscca ................................................................................................... 30

Asifa Quraishi,

Resource Guide for Managing Capital Cases, Volume II: Habeas

Corpus Review of State Capital Convictions,

Federal Judicial Center, Mar. 2010, at 11, available at

http://www.fjc.gov/public/home.nsf/autoframe?openform&url_l=/

public/home.nsf/inavgeneral?openpage&url_r=/public/home.nsf/pa

ges/1002) ............................................................................................................. 31

A. Sarat,

Mercy on Trial: What It Means to Stop an Execution

(Princeton UP 2005) ........................................................................................... 39

Texas Board of Pardons and Paroles website, available at

https://www.tdcj.state.tx.us/bpp/exec_clem/exec_clem.html ............................ 43

Tex. Disc. R. of Prof. Conduct

1.02(b) ................................................................................................................. 13

1.15(a)(3) ............................................................................................................ 12


STATEMENT OF JURISDICTION

A district courts denial of a motion under 18 U.S.C. 3599 is an appealable

order, and such an order . . . is not subject to the COA requirement. Harbison v.

Bell, 556 U.S. 180, 183 (2009); see also Smith v. Dretke, 422 F.3d 269, 288 (5th

Cir. 2005) (a COA is not necessary to appeal the denial of funds for expert

assistance.).

Likewise, once a capital defendant invokes his [ 3599 right], a federal

court also has jurisdiction under 2251 to enter a stay of execution to make the

defendants 3599 right effective. McFarland v. Scott, 512 U.S. 849, 858 (1994);

28 U.S.C. 2251 (providing that a court that would have jurisdiction to entertain

a habeas corpus application regarding a particular prisoners death sentence may

stay execution of that sentence upon the prisoners application for 3599

representation or expert assistance).


2

ISSUES PRESENTED

Under 18 U.S.C. 3599, death-sentenced indigents are entitled to appointed

counsel who shall pursue all available post-conviction proceedings available to

them, including clemency. Immediately after the Supreme Court denied Mr.

Holidays petition for writ of certiorari, his appointed counsel informed him of

their unilateral decision, made years earlier, not to pursue clemency, a stay of

execution, or other relief still available to Mr. Holiday under federal and state law

at that point in his case. Mr. Holidays then sought appointment of substitute

counsel, which was denied without consideration of the factors relevant to the

interests of justice standard.

I. Did the district court abuse its discretion in denying Mr. Holiday's 3599

motion when CJA Counsel (1) unambiguously declared that they would not

file a clemency application or anything else for him, (2) instructed Mr.

Holiday to find new counsel on his own from death row, and then (3)

opposed and obstructed Mr. Holidays effort to secure new representation?

II. Is a stay of execution necessary to provide meaningful relief?


3

INTRODUCTION

Lawyers appointed under the Criminal Justice Act (CJA) cannot be

permitted to shirk their statutorily-mandated duties by misleading the district court

and then engaging in mere window-dressing intended to create an illusion of

performance. Significant tax-payer resources are expended implementing the

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

system as an engine of truth, justice, and basic decency. The goal is not to trick

the public into believing that someone condemned to execution had a nominal

lawyer, and so that should be good enough.

Mr. Holidays appeal presents a narrow, but important, question regarding a

death-sentenced indigents statutory right to appointed counsel willing to pursue

relief available to him under state and federal law. At the conclusion of Mr.

Holidays initial federal habeas corpus proceedings, Mr. Holidays CJA Counsel

unambiguously informed Mr. Holiday that they were through with the case. CJA

Counsel wrote that they were not going to file further appeals for [Mr. Holiday]

and they were not pursuing clemency because it would only give him false hope.

ROA.15-70035.949. Accordingly, CJA Counsel notified Mr. Holiday in June of

2015, [t]his marks the end of work for your appeals. Id. They instructed Mr.

Holiday to find other counsel in the event he wished to pursue relief still available

to him.


4

When Mr. Holidays efforts to find new counsel failed, he moved the district

court to appoint substitute CJA counsel willing to pursue available avenues of

relief like clemency. CJA Counsel then actively opposed his request. In doing so,

they sought to reassure the court of their commitment to Mr. Holiday by making

material misrepresentations regarding their past efforts on behalf of another

similarly-situated death-sentenced client. Despite evidence that a clear conflict had

arisen between the client and his lawyers, the district court accepted CJA

Counsels representations at face value, failed to apply the factors described in

Martel v. Clair that must inform the analysis of a request for substitute counsel

under 18 U.S.C. 3599, and denied relief.

The district courts legitimate concerns about efficiency, in this instance,

prevented it from seeing that CJA Counsel had offered no meaningful justification

for their refusal to assist Mr. Holiday in seeking clemency (until it was far too

late). The sole basis they gave Mr. Holiday and then the district court for their

refusal to comply with 3599s mandate and their clients wishes was a cynical

presumptionthat political realities make the odds of success low. This is not a

valid basis for refusing to provide mandated representation.

Mr. Holiday was able to retain pro bono counsel for the limited purpose of

preserving his representational rights under 3599. He now entreats this Court to

reverse the denial of his motion for appointment of substitute counsel willing to


5

pursue clemency proceedings and any other relief yet available to him under state

or federal law. Mr. Holiday also urges the Court to enter a stay of execution to

enable substitute counsel sufficient time to undertake his or her duties in a

meaningful way, as McFarland v. Scott dictates.


6

STATEMENT OF FACTS AND STATEMENT OF THE CASE1

Mr. Holiday is scheduled to be executed by the State of Texas on November

18, 2015.

Mr. Holiday was convicted of capital murder and sentenced to death. He is

indigent. As 18 U.S.C. 3599 directs, the district court appointed counselSeth

Kretzer and James W. Volberding (CJA Counsel)to represent Mr. Holiday in

federal habeas corpus proceedings. ROA.15-70035.2.

In the amended federal habeas petition filed in the district court nearly four

years ago, CJA Counsel sought habeas relief based, inter alia, on a claim that

Holiday will be denied a fair clemency process in violation of the Eighth and

Fourteenth Amendments. ROA.15-70035.548 - ROA.15-70035.549. CJA

Counsel argued that Holiday will be denied a fair clemency process and

clemency proceedings will not be impartial. ROA.15-70035.548; see also

ROA.15-70035.549 (arguing that the current governor, Rick Perry, has made

clemency proceedings a sham). CJA Counsel present[ed] this claim [then] in

order to avoid future difficulties with raising this claim in future federal habeas

proceedings. ROA.15-70035.548. Without judicial review of the bias inherent

in Texass clemency process, CJA Counsel argued, Holiday will never have an

opportunity to vindicate his right to a fair and impartial clemency process. Id.

1 Because the facts and procedural history relevant to this appeal are intertwined, these two

sections of Mr. Holidays opening brief have been combined to avoid undue repetition.


7

The district court accurately noted two defects in this claim for relief. First,

the claim was not exhausted. ROA.15-70035.786. Second, arguments regarding

clemency were not yet ripe for adjudication because Mr. Holiday did not have

an execution date[.] Id. (quoting White v. Thaler, 2013 WL 1442568 (5th Cir.

April 1, 2013)).

The district court ultimately denied habeas corpus relief on all claims except

Mr. Holidays lethal-injection and executive clemency claims. ROA.15-

70035.789. The district court dismissed those two claims without prejudice. Id.2

This Court affirmed in Holiday v. Stephens, 587 F. Appx 767 (5th Cir. 2014).

CJA Counsel filed a petition for a writ of certiorari, which the Supreme Court of

the United States denied in Holiday v. Stephens, 135 S. Ct. 2893 (2015) on June

29, 2015.

The next day, Mr. Volberding sent a letter to Mr. Holiday, dated June 30,

2015, informing him that CJA Counsel did not intend to take any further action on

his behalf, and noting that he was free to seek assistance from other lawyers. Mr.

Volberding wrote:

2 In a footnote, the district court noted its opinion that Mr. Holidays claim was not strong based on this Courts prior determination that Texass clemency procedures are not per se unconstitutional. ROA.15-70035.786 - ROA.15-70035.787 n.32. These observations were

made, however, before lead counsel for the State of Texas in Mr. Holidays federal habeas corpus proceedings, Attorney General Greg Abbott, became the governor thus assuming a

position that would permit him to decide Mr. Holidays clemency application. That conflict suggests that Mr. Holiday, at the very least, has a good-faith basis for arguing that the clemency

procedures, as applied, would be unconstitutional.


8

I am sorry, but the Supreme Court just denied your appeal. This marks the end of work for your appeals I regret.

Mr. Kretzer and I are not going to file further appeals for you . . . we do not believe any further appeals have any chance of success.

The only remaining option is for a clemency petition to the Texas governor, but we do not recommend that because he is not going to grant clemency in

this case, or likely in any other death penalty case. A clemency petition

just gives an inmate false hopes.

You may be contacted by the Texas Defender Service or other law firms offering to file a successor writ of habeas corpus for you. If so, you are free

to authorize them to do so. Or you may write to them and make that

request. Mr. Kretzer and I will cooperate and provide your file.

ROA.15-70035.949 - ROA.15-70035.950 (emphasis added).3

Mr. Holiday then did as CJA Counsel instructed: he wrote letters to capital

defense attorneys looking for help. Meanwhile, Mr. Holiday was scheduled for

execution on November 18, 2015.

On September 14, 2015, Mr. Holiday had not located new counsel.

Therefore, he petitioned the district court directly, stating:

I have no attorneys representing me. Before me, I have a letter from Mr. Volberding and Mr. Kretzer, letting me know that they are no longer my

attorneys of record; so I could get a new appointment.

ROA.15-70035.848. While Mr. Holiday did not understand that CJA Counsel

were still his official attorneys of record, his understanding of their letter was

3 Undersigned counsel obtained a copy of this letter from Mr. Holiday who expressly authorized

using it in these proceedings. Also, Mr. Holiday expressly referenced the letter in his pro se

motion to the district court seeking substitute counsel. See ROA.15-70035.848.


9

correct. CJA Counsel had informed Mr. Holiday in writing that they had reached

the end of work for [his] appeals, that they [were] not going to file further

appeals for [him], and that they were not going to pursue clemency on his behalf.

ROA.15-70035.949. They also suggested that Mr. Holiday find new counsel and

pledged to cooperate by turning over his file to new counsel. Id. Mr. Holiday,

having understandably failed to find a pro bono lawyer willing to jump into a case

with an imminent execution date, moved for substitute counsel under 18 U.S.C.

3599 to represent him in any remaining proceedings, including clemency

proceedings. ROA.15-70035.848.

Mr. Holidays September 14th letter also made clear that the relationship

between client and counsel had broken down. Mr. Holiday noted that he was

treated with hostile verbality [sic] from these two attorneys and the attorney-

client relationship [was] no longer functional in a way that was productive for

either [of the] parties. Id.

On September 22, 2015, CJA Counsel filed a Response of Attorney to

Holidays Motion for New Counsel. ROA.15-70035.850. CJA Counsel did not

contest Mr. Holidays statement that CJA Counsel would not pursue further relief

on his behalf. Indeed, Mr. Kretzer confirmed that CJA Counsel has informed Mr.

Holiday that we do not plan to seek clemency for him. ROA.15-70035.851

(emphasis added). Mr. Kretzer grounded their refusal to pursue clemency relief on


10

the reputed defects in the clemency process that, years earlier, they had urged were

unconstitutional. Compare id. (given political realities, there is no chance at all

that a clemency petition would be granted) (emphasis added), with ROA.15-

70035.5489 (the current governor, Rick Perry, has made clemency proceedings a

sham). Mr. Kretzer also stated, without explanation, that there does not appear

to be any legal route to delay the pending execution date. ROA.15-70035.851.

At the time, CJA Counsel had made no further effort to litigate the two claims that

the district court had dismissed without prejudice in adjudicating Mr. Holidays

federal habeas petition and stated clearly that they had no plan to pursue further

relief on Mr. Holidays behalf. Id.

Yet CJA Counsel opposed the appointment of substitute counsel, even as

they were litigating against their own client, based on the following reassurances to

the court:

The fact that there is currently no live pleading or motion which we have filed on Holidays behalf does not reflect any antipathy to Holiday or laziness on our part, but rather the reality that his legal options are

exhausted now that his certiorari petition has been denied. 4

4 In fact, Mr. Holidays legal options were not exhausted because the district court had dismissed

two of Mr. Holidays claims without prejudice. In 2012, the clemency issue had not been exhausted and was not yet ripe for adjudication during habeas proceedings because Holiday did not [then] have an execution date[.] ROA.15-70035.786. At the time of CJA Counsels September 2015 opposition to their clients motion for substitute counsel, the challenges to the clemency proceedings had becomeand remainripe. Counsel had pled that Texass clemency proceedings were so biased that they were a sham. Sham clemency proceedings are, as CJA Counsel noted in the amended habeas petition, subject to judicial review. See Ohio Adult Parole

Auth. v. Woodard, 523 U.S. 272, 289 (1998) (OConnor, J., concurring) (Judicial intervention might, for example, be warranted in the face of a scheme whereby a state official flipped a coin


11

Counsels would not hesitate to file a successor writ with the CCA were meritorious grounds to present themselves for such a writ. For example, in

July, Counsels filed (and were granted) a stay of execution the day

before the execution was to take place in the matter of Clifton Williams

v. Stephens.5

Absent new circumstances, we nevertheless remain Holidays lawyers even though there does not appear to be any legal route to delay the pending

execution date.

ROA.15-70035.850 - ROA.15-70035.851 (emphasis added).

On September 24, 2015, based on these reassurances from CJA Counsel, and

relying solely on Mr. Kretzers representations, the district court found that the

interest [sic] of justice do not require the appointment of new counsel at this late

to determine whether to grant clemency, or in a case where the State arbitrarily denied a prisoner

any access to its clemency process.). In light of the district courts dismissal without prejudice, CJA Counsel could have raised the claim in state habeas proceedings. Harbison v. Bell, 556

U.S. 180, 190 n.7 (2009) (Pursuant to 3599(e)s provision that counsel may represent her client in other appropriate motions and procedures, a district court may determine on a case-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 have raised the clemency claim in a second-in-time federal petition. A new federal petition challenging the

constitutionality of the clemency proceedings available to Mr. Holiday would not be a successive

petition within the meaning of 28 U.S.C. 2244(b). See Panetti v Quarterman, 127 S. Ct. 2842

(2007).

5 As CJA Counsel would subsequently admit in a letter to undersigned counsel, see infra, this

statement was false. CJA Counsel did not move for and obtain a stay of execution for Mr.

Williams. That work was performed by another lawyer who was working under the impression

that Mssrs. Kretzer and Volberding had ceased work on Mr. Williamss behalf after the termination of his initial federal habeas proceedings. CJA Counsels proffered explanation as to why a new lawyer had begun representing their client in state court was that, as federal counsel,

they could not appear in state court. As explained below, that explanation is incorrect as a matter

of law. In any event, contrary to their representations to the district court, counsel were neither

willing to represent Mr. Williams in state court nor responsible for the state court litigation that

resulted in a stay of his execution. ROA.15-70035.960 - ROA.15-70035.962.


12

date. ROA.15-70035.854. The courts order cites Martel v. Clair, but does not

apply the factors identified in that case. Id.

On October 15, 2015, Mr. Holiday wrote a second letter to the district court

(which was not filed until October 22, 2015). ROA.15-70035.924. The letter

again urged substitution of CJA Counsel because they had said that they would do

NOTHING ELSE. Id. The letter notes that I have people whove been helping

but are reluctant to do more as long as [CJA Counsel] are my attorneys of record.

Id. Mr. Holiday explained that, instead of honoring his request that they withdraw,

as Texas Disciplinary Rule 1.15(a)(3)6 requires, his CJA Counsel were fighting to

stay on and demanding the legal work that others have done on my behalf. Id.

The letter repeatedly emphasizes the urgency of obtaining conflict-free substitute

counsel in light of the pending execution date. Id.

By October 19, 2015, Mr. Holiday had retained pro bono counsel to help

him preserve his right to have substitute counsel appointed to represent him under

18 U.S.C. 3599 in clemency proceedings. Pro bono counsel then appeared in the

district court by filing a notice of appeal on his behalf. ROA.15-70035.855.7

Undersigned counsel agreed to represent Mr. Holiday for the limited purpose of

6 The rule addresses Declining or Terminating Representation and states in relevant part: A lawyer shall decline to represent a client or, where representation has commenced, shall

withdraw . . . the lawyer is discharged, with or without good cause.

7 Current CJA Counsel could not represent Mr. Holiday in this appeal because of their active

opposition to the relief their client seeks.


13

appealing the district courts denial of his request for substitute CJA counsel

willing to pursue remaining avenues of relief, including clemency.8

Later that same day, Mr. Kretzer sent an e-mail to Mr. Holidays volunteer

attorney in response to the notice of appeal, stating in part:

I think the proper thing for Wes and me to do under the circumstances is to file a motion to withdraw as CJA counsel since Raphael now has pro

bono counsel [. . . .] I do not believe he can have both at the same time.

If you will please send me your FedEx number, I will ship the complete file to you[.]

ROA.15-70035.952 (emphasis added). Undersigned counsel responded by

explaining the limited scope of the representation to which she had agreed and

recommended that CJA Counsel instead move for the appointment of qualified

substitute CJA counsel. ROA.15-70035.859 (Certificate of Conference); ROA.15-

70035.956.

Later that same day, CJA Counsel filed a Motion to Substitute Counsel or

Alternatively to Withdraw. ROA.15-70035.857. The motion ask the court to

8 The scope of representation to which undersigned counsel agreed does not extend to

representation in any federal habeas corpus or state clemency proceeding. Undersigned counsel

had a right, and in fact an obligation, to limit the scope of her representation of Mr. Holiday. See

Tex. Disc. R. of Prof. Conduct 1.02(b) (A lawyer may limit the scope, objectives and general methods of the representation if the client consents after consultation). Undersigned counsel is not, as CJA Counsel has argued, qualified by past experience to undertake representation of Mr.

Holiday for all purposes. She has never provided direct representation of a defendant in a capital

case or any criminal case. Her role in capital litigation has been limited to representing amici

with interests related to specific issues raised by specific cases; for instance, she has represented

the American Association on Intellectual and Developmental Disabilities, The University of

Texas Capital Punishment Center, and The ARC of the United States as amicus curiae in capital

cases.


14

forcibly substitute undersigned counsel, on a pro bono basis, for all purposes. CJA

Counsel did not oppose another lawyer representing their client; their opposition

was limited to another lawyer being paid and supplied with the necessary CJA

resources to do so.

On October 22, 2015, the court denied CJA Counsels motion to conscript

pro bono counsel to replace them. ROA.15-70035.879 - ROA.15-70035.882.

Almost simultaneously, before seeing the order that had just been entered, Mr.

Holidays pro bono counsel filed a Response in Partial Opposition to CJA

Counsels Motion to Substitute Counsel, or Alternatively to Withdraw combined

with a Motion for Alternative Relief under 18 U.S.C. 3599 & 28 U.S.C.

2251. ROA.15-70035.883. The request for relief and arguments made in that

pleading were not before the court when it entered the order denying the CJA

Counsels motion. Nor was it clear whether the district court had yet seen Mr.

Holidays October 15th letter (ROA.15-70035.924), as the letter was not filed until

later in the day on October 22nd

.

The next morning, on October 23, 2015, CJA Counsel sent a letter to Mr.

Holidays pro bono counsel threatening to pursue sanctions against her if she did

not dismiss the pending appeal. ROA.15-70035.960. The letter also directed

undersigned counsel to stop helping Mr. Holiday with efforts to replace them:

The courts order yesterday makes clear that Mr. Kretzer and I are Raphaels


15

lawyers.[9] I hope this ends [sic] discussion. We direct that you dismiss your

notice of appeal to the Fifth Circuit immediately. Id. The letter states, however,

that CJA Counsel would be willing to file documents ghost-written by undersigned

counsel for their signature. ROA.15-70035.961 (suggesting that undersigned

counsel write a clemency petition for our signature and we will submit it.).10

Mr. Holidays pro bono counsel then apprised the district court of this full

chronology in a Motion to Reconsider the Orders Denying Relief under 18 U.S.C.

3599. ROA.15-70035.927 - ROA.15-70035.935. The motion urged the district

court to reconsider Mr. Holidays request for the appointment of qualified,

conflict-free substitute counsel and asked for the entry of a stay of execution so

that substitute counsel could have a meaningful opportunity to provide the

representation that CJA Counsel had been refusing to provide. Id.

On October 25, 2015, in response to the litigation over their unwillingness to

perform their duties under 3599, CJA Counsel reversed themselves and announce

that they would pursue clemency relief after all. ROA.15-70035.965 (so as to

9 The district courts order did not suggest that pro bono counsel should cease representing Mr. Holiday, as CJA Counsel implied. The order correctly acknowledged that her representation of

Mr. Holiday was limited to the issues to be raised in this appeal. ROA.15-70035.880.

10 Additional, the letter confirmed thatcontrary to their prior representation to the district court that they had personally filed a state court stay motion and secured a stay of execution for a

previous client (Clifton Williams)CJA Counsel had played no role in the proceedings that actually led to Mr. Williamss stay of execution. ROA.15-70035.961 - ROA.15-70035.962 (Jim Huggler wrote and filed the state motion to stay . . . . You are correct that Mr. Huggler gets the credit for the win.).


16

obviate [pro bono counsels] concerns, we will use our best efforts to present a

clemency petition to the Governor and Board of Pardons and Paroles.).

The next morning, the district court denied the Motion to Reconsider.

ROA.15-70035.969 - ROA.15-70035.970. The order emphasized that pro bono

counsel had not identified any state or federal habeas corpus claim that Holidays

attorneys have failed to advance or specified what non-frivolous grounds a

reasonable attorney would base a clemency petition on. Id. The order noted that

CJA Counsel had represented that they might now consider filing a clemency

petition on Mr. Holidays behalf, id., but does not mention the conflict between

CJA Counsel and their client. Id. Further, the order emphasizes the fast-

approaching execution date and concluded that the interests of justice did not

require substitution of counsel. Id.

Soon after this order was disseminated through the courts electronic filing

system, on October 26, 2015, CJA Counsel sent another letter to Mr. Holidays pro

bono counsel, asking for her assistance in preparing a clemency petition they date

would likely file November 2. TAB 1. Mr. Holidays pro bono counsel

responded to the letter by indicating, inter alia, that CJA Counsels proposed filing

would be five days beyond the statutory deadline and referred them to the

appropriate statute. TAB 2. That same morning, current CJA Counsel also sent out

a mass email to a national listserve stating: For a pending Texas execution, we


17

need examples of well-written clemency petitions. We are interested in appeals to

history, ethics, religion, general racial bias, evolving standards, or other such non-

fact specific appeals. TAB 3.

On October 28, 2015, Mr. Volberding sent an email to Mr. Holidays mother

(Angella Nickerson) to respond to her anxiety and confusion about the last-minute

efforts to pull together support for a clemency application. TAB 4. Mr. Volberding

explained CJA Counsels sudden decision to file one as follows: A lawyer from

Austin intervened in Raphaels case and complained that we had not filed a

clemency petition and that Raphael wanted one. Id. Mr. Volberding also

admitted that with the execution so close, there was little time to get this done.

So Mr. Kretzer and I rushed and completed this today. Id. (emphasis added).

CJA Counsel did not mention that they had long been on notice that Mr. Holiday

wanted to pursue clemency or that they had resisted his efforts to find substitute

counsel willing to represent him in pursuing this relief. See id.

On October 28, 2015, three days after reversing course, CJA Counsel filed

their rushed application. Id.

In the afternoon of October 29, 2015, a representative of undersigned

counsel met with Mr. Holiday and learned that he was unaware of, and had not

been consulted about, CJA Counsels last-minute effort to prepare a clemency

application reputedly on his behalf. This appeal follows.


18

STANDARD OF REVIEW

This Court reviews de novo the question of whether the district court applied

the correct legal standard in assessing Mr. Holidays request for the appointment of

substitute counsel under 18 U.S.C. 3599. Cf. Panetti v. Stephens, 727 F.3d 398,

409 (5th Cir. 2013). The application of the correct standard to the facts is reviewed

for abuse of discretion. Martel v. Clair, 132 S. Ct. 1276, 1287 (2012).


19

SUMMARY OF THE ARGUMENT

This appeal is about the right to representation. Mr. Holiday sought

substitute counsel as authorized by 3599 after his appointed counsel refused to do

further work for him expressly mandated by 3599particularly pursuing

clemency and other relief available to him under state or federal law. The only

reason they gave the client or the court for refusing to undertake this work was

their personal belief that it would be futile. This conclusion, which is not a

legitimate basis for unilaterally declining to pursue available remedies, was not

reached as a result of any client-specific investigation when clemency became ripe.

CJA Counsel reached this conclusion years earlier when they raised a claim

prematurely attacking the Texas clemency process as violative of due process.

The district court abused its discretion by failing to grant the motion for

substitute counsel. The court did not apply the relevant interests-of-justice factors

outlined in Martel v. Clair, even though all of those factors weighed entirely in

favor of granting relief. The court did not probe the conflict between the lawyers

and their client that was being played out before the court. It took the

representations of CJA Counsel at face value, although their own statements

showed that they were unwilling to provide the representation to which Mr.

Holiday was statutorily entitled. The court further erred by expecting the

essentially abandoned client to come forward with a basis for clemency before he


20

had counsel to investigate a basis for clemency. The courts error and CJA

Counsels refusal to pursue their clients right to seek clemency disregard the

nature of, and are a threat to, this distinct and significant component of our

criminal justice system.

By thwarting Mr. Holidays efforts to obtain substitute, conflict-free counsel

who would pursue clemency relief, and then agreeing to withdraw only when it

was too late, CJA Counsel made it impossible to effectuate Mr. Holidays federal

statutory rights to representation without a stay of execution. Mr. Holiday is

entitled to relief, in the form of a stay of execution and appointment of qualified

substitute counsel willing to zealously defend him in fact.


21

ARGUMENT

I. DENYING THE 3599 MOTION WAS AN ABUSE OF DISCRETION.

A. The Statute Requires Appointed Counsel to Assist Through All Available Post-Conviction Proceedings.

Under 18 U.S.C. 3599, indigent defendants in capital cases have a right to

representation by qualified counsel. McFarland v. Scott, 512 U.S. 849, 854

(1994). The statute, originally codified as 21 U.S.C. 848(q)(4)-(10), was

specifically enacted to improve the quality of representation afforded capital

petitioners. Clair, 132 S. Ct. at 1285. The statute includes an internal

justification: it exists because of the seriousness of the possible penalty and . . .

the unique and complex nature of the litigation. 18 U.S.C. 3599(d).

As this Court well knows, construing 3599 must begin, as always, with

the language of the statute. Duncan v. Walker, 533 U.S. 167, 172 (2001)

(citations omitted); United States v. Grimes, 244 F.3d 375, 382 (5th Cir. 2001)

(To ignore the plain-meaning approach would undermine several of the statutes

purposes). Under 3599(e), CJA representation shall continue throughout

every subsequent stage of available judicial proceedings,which expressly

includes all available post-conviction process, together with applications for

stays of execution and other appropriate motions and procedures[.] 18 U.S.C.

3599(e) (emphasis added). Moreover, the statute expressly directs that counsel

shall also represent the defendant in such competency proceedings and


22

proceedings for executive or other clemency as may be available to the

defendant. Id. Where, as here, the statutory text is clear, that language controls:

the CJA lawyer shall represent the capital defendant in such proceedings for

executive or other clemency that are available to the defendant. Id. [C]ourts

must presume that a legislature says in a statute what it means and means in a

statute what it says there. Connecticut Natl Bank v. Germain, 503 U.S. 249, 253-

54 (1992).

The Supreme Court has interpreted 3599 to require the appointment of

conflict-free counsel. See Christeson v. Roper, 135 S. Ct. 891, 894 (2015) (finding

that district court did not adequately account for all of the factors we set forth in

Clair); Clair, 132 S. Ct. at 1284-86 (emphasizing that the court would have to

appoint new counsel if the first lawyer developed a conflict with or abandoned the

client). Additionally, the statute contemplates that CJA counsel may be replaced

upon motion of the defendant himself. Id.

There can be no debate regarding Mr. Holidays statutory right to appointed

counsel that shall represent him in seeking clemency, a stay of execution, and

any other relief available to him. Likewise, there can be no debate that Mr.

Holiday filed a pro se motion seeking to replace his appointed counsel (as

3599(e) permits) so that he could acquire counsel willing to do what the statute

mandates. Despite the unequivocal statutory text and factual context, Mr.


23

Holidays 3599 motion was denied. ROA.15-70035.853 - ROA.15-70035.854;

ROA.15-70035.969 - ROA.15-70035.970.

B. The Interests-of-Justice Factors Weighed Entirely in Favor of

Substituting CJA Counsel.

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

seeking new 3599 counsel should be assessed under the in the interests of

justice standard. 132 S. Ct. at 1284. This standard is the same as that applicable

in non-capital cases under 3006A. Id. at 1281. The Supreme Court reasoned that

[a]dopting a more stringent test than 3006As would deprive capital defendants

of a tool they formerly had, and defendants facing lesser penalties still have, to

handle serious representational problems. Id. at 1285. The Supreme Court also

noted that this standard is a peculiarly context-specific inquiry, but generally

courts consider these factors:

the timeliness of the motion;

the adequacy of the district courts inquiry into the defendants complaint; and

the asserted cause for the complaint, including the extent of the

conflict or breakdown in communication between lawyer and client

(and the clients own responsibility, if any, for that conflict).

Id. at 1287 (citing cases).


24

Mr. Holidays 3599 motion should have been granted in the interests of

justice. McFarland, 512 U.S. at 857. Mr. Holiday timely sought the appointment

of substitute counsel after a conflict was precipitated by CJA Counsels

simultaneous refusal to pursue relief available to the client as a matter of law (such

as clemency) and refusal to allow substitution of new CJA counsel who would.

Worse, after instructing Mr. Holiday to find new counsel on his own and pledging

cooperation with any new counsel, CJA Counsel inexplicably opposed and

obstructed their clients efforts to find new lawyers. ROA.15-70035.949 -

ROA.15-70035.950; ROA.15-70035.857. The district court should have probed

the nature and source of the conflict. It did not. Thus, as explained further in

sections 1-3 below, all of the relevant factors weighed in favor of granting Mr.

Holidays pro se motion to be appointed CJA counsel willing to comply with

3599. Denying the motion was an abuse of discretion.

1. The 3599 motion was timely.

The courts initial order denying Mr. Holiday relief alludes to the late date

of the motion. ROA.15-70035.854. Presumably, that allusion reflects the fact that

Mr. Holiday filed his motion after the State had set a date for his execution. But

Mr. Holidays motion was plainly filed promptly after, and in response to, his CJA

Counsels announcement that they had made a unilateral decision to cease

providing the representation they had been appointed to provide. As the pro se


25

motion explains, Mr. Holiday received a letter from his CJA Counsel telling him

that the Supreme Court had denied his cert petition and that they would not take

any further action on his behalf. ROA.15-70035.848; see also ROA.15-70035.949.

Shortly thereafter, the State set a date for Mr. Holidays execution. Mr. Holiday

entreated his lawyers to pursue clemency, as they admit that he did; and once the

conflict between them was plainly irresolvable, Mr. Holiday made a desperate plea

directly to the district court through a letter received on September 22, 2015.

ROA.15-70035.848. That is, less than three months lapsed between the date when

CJA Counsel first informed Mr. Holiday that they would not provide him with

mandatory representation and the date when Mr. Holiday petitioned the court

directly for help. During that time, Mr. Holiday, from death row, was sending out

queries seeking help from lawyers as far away as California. He then took his

request directly to the district court more than one month before any clemency

application would have been due under rules applied by the Texas clemency board.

ROA.15-70035.848; see also Tex. Admin. Code 143.57 (requiring receipt of

clemency application 21 days before a scheduled execution date).

There is no basis for suggesting that Mr. Holiday engaged in abusive

delay. Clair, 132 S. Ct. at 1286-87. His pro se motion was filed at a late date

only because his CJA Counsel informed him at a late date that they had decided

not to pursue clemency on his behalf. See, by contrast, id. at 1288 (noting that


26

defendants second motion to substitute counsel was filed on the eve of the district

courts deciding a 10-year-old habeas petition). The first interests-of-justice

factor weighed entirely in favor of granting Mr. Holidays motion.

2. The courts inquiry into the complaint was inadequate.

Courts cannot properly resolve substitution motions without probing why a

defendant wants a new lawyer. Clair, 132 S. Ct. at 1288 (citing cases). The

district courts orders denying substitution of counsel reflect no inquiry into Mr.

Holidays complaint. Instead, the court relied solely on Mr. Kretzers

representations. ROA.15-70035.854. Those representations included CJA

Counsels statements that given political realities, there is no chance at all that a

clemency petition would be granted; CJA Counsel would not hesitate to file any

remaining legal challenge; and there does not appear to be any legal route to

delay the pending execution date. ROA.15-70035.851. On the record before the

district court, there was considerable reason to doubt all three of these

representations, as explained below in subsections a-c.

a. Counsels belief that the Texas clemency process is a sham is not a basis for depriving Mr. Holiday of his statutory right to representation.

As explained above, CJA counsel are required by 3599 to represent their

clients in proceedings for executive or other clemency as may be available to the

defendant. 18 U.S.C. 3599. The statute conditions the right to representation


27

on the availability of the process, not on counsels subjective views about the

integrity of the process. CJA Counsels longstanding belief that Texas clemency

process is a sham constrains their ability to participate in them. ROA.15-

70035.549. And, in light of their statutory duty to represent their client in those

proceedings, CJA Counsels decision to abstain from the clemency process is a

basis for replacing them. Accommodating CJA Counsels objections to the Texas

clemency process by depriving their client of representation in that process is

contrary to 3599 and does not serve the interests of justice.

Further, the district court left open CJA Counsels habeas claim that the

Texas clemency proceedings are unconstitutional, subject to exhaustion of

remedies and the issue becoming ripe. Arguably, filing a clemency application

may be necessary to satisfying both of these prerequisites to federal habeas review.

Thus, CJA Counsels long-held belief that the Texas clemency proceedings lack

integrity was all the more reason to perform the work necessary to secure merits

review of this issue in federal court. Instead, CJA Counsel announced they had

reached the end of work for Mr. Holiday before undertaking any clemency-

related investigation on his behalf. ROA.15-70035.949.

b. The record before the district court casts serious doubt on CJA Counsels willingness to pursue any remaining legal challenge.


28

When denying the 3599 motion, the district court relied on CJA Counsels

representation that they would pursue any remaining legal challenges on behalf of

Mr. Holiday. See, e.g., ROA.15-70035.880 (Mr. Kretzer does not indicate an

unwillingness to advocate zealously for his client); ROA.15-70035.881 (Mr.

Kretzer has represented to the court that he has investigated possible claims and

would not hesitate to file additional legal challenges). But the record before the

district court contradicted CJA Counsels assertions and demonstrated that CJA

Counsel had even misrepresented what they had done on behalf of another death-

sentenced client to convince the district court that they were committed to Mr.

Holiday, a similarly situated client. See ROA.15-70035.887 - ROA.15-70035.897.

First, the district court had not finally resolved all of Mr. Holidays claims

for federal habeas corpus relief. ROA.15-70035.789. CJA Counsel were obligated

to exhaust his remaining claims and refile them in federal court. But CJA Counsel

refused to participate in Texass clemency proceedings, which they had previously

deemed a sham. Thus, Mr. Holiday did have additional legal challengeswhich

CJA Counsel raised for the first time in federal court in Mr. Holidays habeas

petitionto be litigated in state and federal court. By abandoning these claims and

refusing to follow through because of a personal political belief about the futility of

clemency, CJA Counsels conduct was inconsistent with zealous representation.


29

Second, CJA Counsel sought to reassure the district court that they would

take all appropriate action on behalf of their death-sentenced client by pointing to

their recent representation of another client, Clifton Williams. Their work on

behalf of Mr. Williams, they claimed, illustrated their willingness, in principle, to

pursue remaining relief for Mr. Holiday if it was available:

The fact that there is currently no live pleading or motion which we have

filed on Holidays behalf does not reflect any antipathy to Holiday or laziness on our part, but rather the reality that his legal options are exhausted

now that his certiorari petition has been denied . . . .

Counsels would not hesitate to file a successor writ with the CCA were

meritorious grounds to present themselves for such a writ. For example, in

July, Counsels filed (and were granted) a stay of execution the day

before the execution was to take place in the matter of Clifton Williams v. Stephens.

ROA.15-70035.851 (emphasis added). The district court relied exclusively on

these representations in denying Mr. Holidays pro se motion for new counsel:

this Court entered an order denying Holidays motion for new counsel on the

representation of the undersigned [current CJA Counsel] that they would file an

article 11.071 writ in the event that a meritorious basis to do so presented itself.

ROA.15-70035.857 (emphasis added).

As Mr. Holiday demonstrated to the district court, these representations were

false. ROA.15-70035.892 - ROA.15-70035.897. Mr. Kretzer and Mr. Volberding

did not file[] . . . a stay of execution on behalf of Mr. Williams in state court as

they had claimed. The state court docket reflects that all of the pleadings that led


30

to Mr. Williamss stay of execution from the Texas Court of Criminal Appeals

(TCCA) were filed by an attorney named James Huggler, Jr. See Ex parte

Clifton Williams, WR-71,296-02 (Tex. Crim. App. July 17, 2015).11

TCCA rules

required that Mr. Huggler explain why he sought a stay of execution less than

seven days before the execution was scheduled. Mr. Huggler explained as follows:

On June 11, 2015 the trial court appointed me to represent Mr. Williams in

seeking a petition for clemency with the Texas Board of Pardons and

Paroles. It was counsels understanding that the previous attorneys would not be representing Mr. Williams following the denial of certiorari by

the United States Supreme Court.

ROA.15-70035.923 (July 15, 2015 letter from James Huggler, Jr. to the TCCA)

(emphasis added). Seth Kretzer and James Volberding were the lawyers to whom

Mr. Huggler referred as the previous attorneys, appointed CJA counsel for

Clifton Williams. See Williams v. Thaler, No. 09-cv-00271 (E.D. Tex) (Doc. 5,

appointing James Volberding; Doc. 26, appointing Seth Kretzer).12

CJA Counsel subsequently acknowledged in an October 23, 2015 letter to

undersigned counselwhich was also put before the district courtthat another

lawyer had actually secured the stay of execution for Mr. Williams. ROA.15-

70035.961 - ROA.15-70035.962. Further, the letter reflects CJA Counsels

11 Docket and pleadings available at http://www.search.txcourts.gov/Case.aspx?cn=WR-71,296-

02&coa=coscca.

12 There is no record in the district court, the Fifth Circuit, or the Supreme Court indicating that

either lawyer sought to withdraw or substitute counsel before they ceased representing Mr.

Williams while relief under 3599(e) was still available to him.


31

erroneous belief that they, as federal counsel, could not appear in state court on

Mr. Williamss behalf.13 Most importantly, their letter refutes the proof they had

offered the district court of their willingness to pursue state court remedies on

behalf of their clients. ROA.15-70035.851.

The record demonstrates that CJA Counsel had misrepresented their actions

in another case for the purpose of persuading the district court here to deny their

client substitute counsel willing to pursue remedies still available to him. The

Williams case demonstrates that another lawyer had to be appointed to seek

13

Six years ago, the Supreme Court held that CJA counsel may be compensated for

representation in state court proceedings that are subsequent to their CJA appointment:

Pursuant to 3599(e)s provision that counsel may represent her client in other appropriate motions and procedures, a district court may determine on a case-by-case basis that it is appropriate for federal counsel to exhaust a claim in the course of her federal habeas

representation. Harbison, 556 U.S. at 190 n.7. See also Asifa Quraishi, Resource Guide for Managing Capital Cases, Volume II: Habeas Corpus Review of State Capital Convictions,

Federal Judicial Center, Mar. 2010, at 11, available at

http://www.fjc.gov/public/home.nsf/autoframe?openform&url_l=/public/home.nsf/inavgeneral?o

penpage&url_r=/public/home.nsf/pages/1002) (In 2009, the Supreme Court, interpreting 3599(e), held that district courts have the discretion to determine, on a case-by-case basis,

whether it is appropriate for federal counsel to exhaust claims in state court during the course of

federal habeas representation.[] Thus, in districts with states that do not provide for appointment

and/or compensation of state post-conviction counsel, courts have discretion to compensate

federally appointed capital habeas counsel using CJA appropriations or to allow federal defender

organizations to represent the petitioner in state court.) (footnote omitted).

Federal courts in Texas have, in fact, determined that it is necessary to compensate CJA counsel

for filing successive habeas corpus petitions in the Texas state courts. See, e.g., Gonzalez v.

Thaler, No. SA-10BCA-165-0G (S.D. Tex. January 31, 2011), ECF No. 16 (granting stay and

abeyance and appointing counsel for the purpose of filing a successive state habeas court

application); Gutierrez v. Stephens, 09-cv-00543 (W.D. Tex. Aug. 31, 2010), ECF No. 45 at 9

(federal habeas counsel are available to assist state petitioners seeking to exhaust available state

habeas remedies through successive state habeas corpus procedures); Shuffield v. Thaler, 08-cv-

180 (E.D. Tex. Sept. 29, 2010), ECF No. 49 (the Court authorizes Shuffields counsel to represent him in exhausting his Brady claim in the state court. The Court will compensate them

in accordance with the terms as their current CJA appointment.).


32

clemency and a stay of execution for Mr. Williams because Mr. Kretzer and Mr.

Volberding had de facto abandoned him. On this record, the district court should

not have credited CJA Counsels representations that they would not hesitate to file

additional legal challenges. They previously balked when Clifton Williams needed

counsel for clemency and in successive state habeas proceedings, and they

demonstrated the same unwillingness to provide mandated representation here.

c. CJA Counsel abandoned Mr. Holidays unadjudicated federal habeas claims.

The district court credited CJA Counsels inaccurate representations that

there were no outstanding legal issues to pursue on Mr. Holidays behalf. As

explained above, CJA Counsel had, four years ago, raised an unexhausted

challenge to Texas clemency proceedings, and the district court had dismissed it

without prejudice as not yet ripe for review. ROA.15-70035.789. CJA Counsel

remain of the view that the Texas clemency proceedings are a sham; but the

political realities that they see as a barrier are a basis for a claim, not for refusing

to pursue relief. ROA.15-70035.851. For instance, the claim Mr. Holiday made in

his federal habeas petition that Texass clemency proceedings lack impartiality is

now enhanced by the fact that the decision-maker for any clemency or reprieve

request now was lead counsel for the State of Texas in Mr. Holidays federal

habeas proceedings: Governor Greg Abbott. The reason for alleging this claim in

Mr. Holidays amended federal petition was to preserve it for review once it


33

became ripe. The claim is now ripe, thus there is at least one preserved,

outstanding issue to litigate.14

The district court failed to adequately probe the basis of Mr. Holidays

complaint. Instead, it credited completely CJA Counsels self-serving descriptions

of their zealousness despite a record that called into question both their zealousness

and their credibility. An adequate inquiry into the basis for Mr. Holidays motion

for new CJA counsel would have concluded that his complaints were well-

founded. Therefore, the second interests-of-justice factor weighed entirely in favor

of granting Mr. Holidays 3599 motion.

3. The cause for the complaint is attributable entirely to CJA

Counsel, not to the client.

The third interests-of-justice factor also weighed entirely in favor of granting

the request for substitute counsel. The cause of Mr. Holidays complaint cannot be

disputed: Mr. Holiday wanted counsel who would continue to work on his behalf

after the conclusion of his initial federal habeas proceedings. Under 3599, Mr.

14 Undersigned counsel has no way of knowing whether there are other legal issues that should be

litigated. This one, however, is obvious from the face of the district courts resolution of Mr. Holidays federal habeas petition. ROA.15-70035.789. The district court stated that undersigned counsel had not identified any state or federal habeas corpus claim that Holidays attorneys have failed to advance or specified what non-frivolous grounds a reasonable attorney would base a clemency petition on. ROA.15-70035.969 - ROA.15-70035.970. But, as the court also acknowledged, the role of undersigned counsel was limited to preserving Mr.

Holidays right to counsel willing to pursue all relief available to him under 3599. ROA.15-70035.880. Preserving that rightby arguing to this Court that Mr. Holidays motion seeking substitute counsel was erroneously deniedis governed by Martel v. Clair and does not require establishing in advance what habeas claims or specific bases for clemency new counsel, once

appointed, could argue.


34

Holiday was entitled to representation in clemency and other available

proceedings, and counsel appointed under 3599 were obligated to provide it.

CJA Counsel, however, refused to provide this representation. And, after

instructing their indigent, death-sentenced client to go find new counsel on his

own, CJA Counsel opposed his effort to secure new counsel. The cause for Mr.

Holidays complaint is thus attributable solely to CJA Counsel.

In stark contrast, the source of the conflict at issue in Clair between the

client and his appointed lawyers was Clair himself, who, unlike Mr. Holiday, had a

history of complaining about his appointed lawyers; and the specific conflict at

issue in the case arose from Clairs desire to see counsel pursue wholly new claims

through habeas based on physical evidence that did not relate to any of the

claims Clair had previously made in his habeas petition. 132 S. Ct. at 1288. And,

as the Supreme Court explained, a substitute lawyer could only have satisfied

Clairs latest desire by seeking a wholesale revision of the long-pending habeas

petition. Id. Here, CJA Counsel should have been preparing for the prospect that

the Supreme Court might deny Mr. Holidays cert petition well before June 29,

2015 and then pursued any remaining claims. Or, if they were unwilling to

provide the representation he wanted and to which the law entitled him, then,

instead of thwarting Mr. Holidays efforts to find willing substitute counsel and

instead of misleading the district court, they should have done as they had initially


35

promised Mr. Holiday to cooperate in helping him obtain substitute counsel.

ROA.15-70035.950. The conflict between CJA Counsel and Mr. Holiday arose

from CJA Counsels conduct, not from the clients irrational demands (as in Clair).

In sum, all relevant factors show that the interests of justice supported

granting Mr. Holidays 3599 motion. Denying Mr. Holidays motion was,

therefore, an abuse of discretion.

C. CJA Counsels Last-Minute Decision to Throw Together a Clemency Application Does Not Obviate the Need for New Counsel.

1. Clemency plays a distinct and important role in our criminal justice system.

Congress decided years ago that death-sentenced indigents should not be

abandoned by their lawyers as an execution date looms. See 18 U.S.C. 3599(e).

As Harbison v. Bell explains, [i]n authorizing federally funded counsel to

represent their state clients in clemency proceedings, Congress ensured that no

prisoner would be put to death without meaningful access to the fail-safe of our

justice system. 129 S. Ct. 1481, 1491 (2009) (quoting Herrera v. Collins, 506

U.S. 390, 415 (1993)) (emphasis added). This decision by Congress was rooted in

the longstanding view that the right to pursue clemency is fundamental to our

system of justice.

Clemency is traditionally available to capital defendants as a final and

alternative avenue of relief. Ohio Adult Parole Authority v. Woodward, 523 U.S.


36

272, 284 (1998) (Rehnquist, C.J.) (emphasis added). Clemency is deeply rooted

in our Anglo-American tradition of law, and is the historic remedy for preventing

miscarriages of justice where judicial process has been exhausted. Herrera, 506

U.S. at 411-12. Although clemency reflects an act of grace, it proceeds from

the power entrusted with the execution of the laws, which exempts the individual,

on whom it is bestowed, from the punishment the law inflicts for a crime he has

committed. United States v. Wilson, 32 U.S. (7 Pet.) 150 (1833). Therefore,

[f]ar from regarding clemency as a matter of mercy alone, clemency provides a

critical backstop downstream of habeas litigation. Harbison, 129 S. Ct. at 1490

(quoting Herrera, 506 U.S. at 415); see also Kansas v. Marsh, 548 U.S. 163, 193

(2006) (Scalia, J., concurring) (defending the role of executive clemency as

demonstrat[ing] not the failure of the system but its success because clemency is

a device that is part and parcel of the multiple assurances that are applied before a

death sentence is carried out); Dretke v. Haley, 541 U.S. 386, 399 (2004)

(Kennedy, J., dissenting) (Among its benign if too-often ignored objects, the

clemency power can correct injustices that the ordinary criminal process seems

unable or unwilling to consider.).

In short, a clemency proceeding gives a condemned person the right to plead

for his life in terms the judicial process cannot accommodate. The point is not to

rehash claims that the courts have rejected before different decision-makers in the


37

executive branch. Instead, it is an opportunity to present humane reasons unique to

the applicant that evoke the need for, and instill the desire to, grant mercy. The

right to seek mercy, by arguing from a perspective that transcends the limits of the

judicial process, is not a matter to abandon, or to pursue, without considerable care

and effort.

2. CJA Counsels ex post facto attempt to prepare a clemency application makes a mockery of the process.

Mr. Holiday has been, de facto, without 3599 representation since his

current CJA Counsel announced in a letter dated June 30, 2015 that they would not

do any more work on his behalf. ROA.15-70035.949. Nearly four months were

then lost, during which time his CJA Counsel actively thwarted Mr. Holidays

attempts to retain substitute counsel, even though they had initially encouraged

him to look elsewhere for help. After Mr. Holiday brought the issue to the district

court, CJA Counsel engaged in a series of erratic swingssimultaneously offering

to withdraw while attacking the volunteer lawyer they proposed as a substitute and,

all the while, inexplicably, resisting appointment of substitute CJA counsel. See

ROA.15-70035.868; ROA.15-70035.868.924; ROA.15-70035.868.952; ROA.15-

70035.868.960. Then, two days before the deadline for filing a clemency

application, they sought to pull together an application as a face-saving measure

for themselves. ROA.15-70035.868.964 - ROA.15-70035.868.967. Indeed, CJA

Counsel told Mr. Holidays mother that they had no confidence in their last-minute


38

application, that it had no chance, was only filed because [a] lawyer from

Austin intervened, and there was little time to get this done, so they rushed to

do it. See TAB 4.

Congress did not intend to have tax-payer resources squandered on mere

cosmetic compliance with its mandates. See 18 U.S.C. 3599. Section 3599s

enactment reflects Congresss determination that quality legal representation is

necessary in all capital proceedings to foster fundamental fairness in the imposition

of the death penalty. Clair, 132 S. Ct. at 1285 (internal citations and quotation

marks omitted). Resources are earmarked under 3599 because Congress

believes, and the Supreme Court has concurred, that indigents should not be

executed without access to conflict-free counsel to pursue all available process

delineated in the statute. See 18 U.S.C. 3599(e); see also Harbison, 129 S. Ct. at

1491; Christeson, 135 S. Ct. at 894-96.

CJA Counsels last-minute decisionmade on Sunday night, October 25th

to prepare a clemency application only after they had been criticized for failing to

perform their 3599 duties is not the kind of quality legal representation [that] is

necessary to provide meaningful assistance in clemency proceedings. Clair, 132

S. Ct. at 1285. CJA Counsels work reflects precisely what one would expect in an

eleventh-hour effort by those who have avowed no real commitment to the work

and displayed a conflict with the client: a slipshod rehashing of failed legal


39

arguments that had been pled and briefed over the years when CJA Counsel

represented Mr. Holiday. Their work, undertaken in two days, could not reflect the

fundamental purpose of a clemency application. That purpose is to focus on

matters that the legal process has been unable to addressthe petitioners

humanity and why his myriad frailties and strengths of character call for the mercy

of commutation, how his life on death row has shown that he is on a course of

redemption for his capital crime, how others in and outside prison recognize these

evolving characteristics, and how other people value his life. See generally A.

Sarat, Mercy on Trial: What It Means to Stop an Execution (Princeton UP 2005).

This mission cannot be undertaken by cutting-and-pasting old work product

into a form borrowed from other lawyers at the last minute. It can be undertaken

only if counsel representing the petitioner comes to know and respect the heart and

soul of their client, believes that his or her unique life, experiences, and qualities

merit considerations of mercy, and animates those matters in addressing the

decision-makers in the clemency process. While this mission certainly should be

informed by counsels prior legal work on behalf of the client, it is much more than

that. The process requires counsel to investigate and learn the story of a client that

has not yet been told and cannot simply be gleaned from the prior representation.

It is a story that begins well before a devastating crime was committed and

continues well after incarceration commenced. It is a story that has played out


40

beyond the confines of legal proceedings and legalistic arguments. No one can

meaningfully accomplish this mission in 48 hours.

CJA Counsels performance was and continues to be inadequate to satisfy

Mr. Holidays federal statutory right to adequate representation and to meaningful

access to clemency. Clemency requires more than emailing a national listserve

days before a petition is due and asking to borrow some non-fact specific

clemency petitions. TAB 3. It requires much more than reprocessing legal

arguments and factual recitations used to support previous pleadings and rulings.

It requires learning new facts about the way a client has lived his life since the

capital murder and learning that clients story of redemption. CJA Counsel here

did none of this. They did not even communicate with their client about their

sudden reversal with respect to clemency or seek to meet with him until after they

had finished throwing together an application.

Undoubtedly, the State (or CJA Counsel) will respond to this appeal by

attaching the hastily prepared clemency application prepared to serve the lawyers

interests, not their clients. And then they will declare this appeal moot. It is not.

These issues remain:

Did the interests of justice require granting Mr. Holidays request for appointment of substitute counsel willing and able to prepare a legitimate

clemency application?

o The answer is: Yes. See Clair, 132 S. Ct. at 1284; Christeson, 135 S. Ct. at 894-96.


41

Would a stay yet afford Mr. Holiday a meaningful opportunity to remedy the wrong occasioned by the absence of representation willing to pursue

clemency on his behalf in a legitimate manner?

o Again the answer is: Yes. See McFarland, 512 U.S. at 857.

The deadline to submit a clemency application is cued off the execution

date. Tex. Admin. Code 143.57. Therefore, this appeal is not moot. Failing to

grant Mr. Holidays request and to grant an attendant stay to make the relief

meaningful was an abuse of discretion, and this Court has the power to correct the

district courts inadvertent, but severe miscarriage of justice.

II. WITHOUT A 2251 STAY, APPOINTING SUBSTITUTE COUNSEL WOULD BE A

MEANINGLESS EXERCISE.

In McFarland, the Supreme Court recognized that, without time to

adequately develop the facts and prepare the relevant claims, the right to appointed

counsel is an empty promise. 512 U.S. at 857. Therefore, the Supreme Court also

concluded that 28 U.S.C. 2251 allows a federal court to grant a stay of execution

once a capital defendant has invoked the right to appointed counsel to give effect

to that statutory right. Id. at 858. A federal court does not, however, abuse its

discretion if it denies a stay where the petitioner has been dilatory or

inexcusably ignores this opportunity and flouts the available processes. Id.

CJA Counsels previous resistance to the relief Mr. Holiday requested cost

him precious time. See ROA.15-70035.848; ROA.15-70035.850 - ROA.15-

70035.852. Mr. Holiday first asked for this relief by letter dated September 14,


42

2015; his execution is set for November 18, 2015; and this brief is being filed as

quickly as practicable on November 2, 2015. This lost time is attributable entirely

to CJA Counsel who made misstatements to the district court in the opposition

papers they filed seeking to thwart their clients effort to secure substitute counsel

willing to perform the duties of 3599 counsel.

That is, Mr. Holiday has not been dilatory nor flouted av

Documents

Holiday Appellant's Opening Brief