43 Motion to Reconsider

7/24/2019 43 Motion to Reconsider

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

RAPHAEL DEON HOLIDAY,

TDCJ-ID NO. 999419,

Petitioner,

v.

WILLIAM STEPHENS, Director,

Texas Department of Criminal

Justice, Institutional Division,

Respondent.

CIVIL ACTION NO. 4:11-CV-1696

CAPITAL CASE

MOTION TO RECONSIDER THE ORDERS DENYING RELIEF

UNDER 18 U.S.C. 3599

Case 4:11-cv-01696 Document 43 Filed in TXSD on 10/23/15 Page 1 of 21


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TABLE OF CONTENTS

PAGE

TABLE OF CONTENTS........................................................................................................................ i

TABLE OF AUTHORITIES................................................................................................................... ii

MOTION TO RECONSIDER THE ORDERS DENYING RELIEFUNDER 18U.S.C.3599 ....................... 1

BACKGROUND.................................................................................................................................. 1

LEGAL STANDARD........................................................................................................................... 5

ARGUMENT...................................................................................................................................... 6

I. Reconsideration Is Warranted Because Relief Should Be GrantedAlthough Notin the Form or for the Reasons CJA Counsel Provided. ........................................................... 6

A. The Orders Denying Mr. Holiday 3599 Relief Should Be Reconsidered. ........................6

B. A Statutory Mandate Requires That Mr. Holiday Be Appointed Counsel toAssist Him through All Available Post-Conviction Proceedings..................................10

C. Mr. Holidays 3599 Motion Should Have Been Granted in the Interests ofJustice. ................................................................................................................................11

1. The 3599 motion was timely.................................................................................... 13

2. The courts inquiry into the complaint was inadequate.............................................. 14

3. The cause for the complaint is attributable entirely to CJA Counsel, not to

the client. ..................................................................................................................... 15

CONCLUSION &PRAYER................................................................................................................ 17

CERTIFICATE OF SERVICE.............................................................................................................. 17



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TABLE OF AUTHORITIES

CASE PAGE

Christeson v. Roper,

135 S. Ct. 891 (2015) ...............................................................................................................10

Gonzalez v. Thaler,

No. SA-10BCA-165-0G(S.D. Tex. January 31, 2011) .....................................................................................................9

Gutierrez v. Stephens,09-cv-00543 (W.D. Tex. Aug. 31, 2010) ...................................................................................9

Harbison v. Bell,129 S. Ct. 1481 (2009) ...........................................................................................................7,9

Herrera v. Collins,506 U.S. 390, 113 S. Ct. 853 (1993) ................................................................................7,9,16

Martel v. Clair,

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

McFarland v. Scott,

512 U.S. 849 (1994) .....................................................................................................10,12,16

Shepherd v. Intl Paper Co.,

372 F.3d 326 (5th Cir. 2004) .....................................................................................................5

Shuffield v. Thaler,

08-cv-180 (E.D. Tex. Sept. 29, 2010) ........................................................................................9

United States v. Taylor,487 U.S. 326 (1988) .................................................................................................................15

Waltman v. Intl Paper Co.,875 F.2d 468 (5th Cir. 1989) .................................................................................................5, 6

STATUTES

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

3599(e) ..................................................................................................................5,10,11,14

28 U.S.C. 2251 ....................................................................................................................1,4,17



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OTHER AUTHORITIES

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

e.nsf/inavgeneral?openpage&url_r=/public/home.nsf/pages/1002) ..........................................9



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MOTION TO RECONSIDER THE ORDERS DENYING RELIEF

UNDER 18U.S.C.3599

On behalf of Raphael Deon Holiday, undersigned counsel files this Motion to

Reconsider, asking the court to reconsider its Orders (Doc. 35, Doc. 40) in light of circumstances

that require appointment of substitute counsel under 18 U.S.C. 3599 and a stay of execution

under 28 U.S.C. 2251 in the interests of justice.

BACKGROUND

As this court well knows, Mr. Holiday is facing an execution date of November 18, 2015.

What the court did not know when it signed the relevant Orders (Doc. 35, Doc. 40) is all of the

information contained in the Response to CJA Counsels Motion to Substitute Counsel, or

Alternatively to Withdraw (Doc. 37). That Response (Doc. 41) was filed moments after the

courts latest Order was disseminated through the courts electronic filing system. Because time

is of the essence, and to avoid undue repetition, Mr. Holiday incorporates by reference that

Response here.

With the rapidly moving target, a chronology of events relevant to the issue of Mr.

Holidays representation should be helpful.

By letter dated June 30, 2015, Mr. Volberding wrote to Mr. Holiday making the

following statements:

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 anyfurther appeals have any chance of success.

The only remaining option is for a clemency petition to the Texas governor, but we donot recommend that because he is not going to grant clemency in this case, or likely inany 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



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to do so. Or you may write to them and make that request. Mr Kretzer and I will

cooperate and provide your file.

Exhibit A (emphasis added).1

Mr. Holiday then did what his CJA Counsel had told him: he reached out looking for

counsel willing to help him. Meanwhile, an execution date was set.

By September 14, 2015, Mr. Holiday had not yet obtained counsel to do the work that his

CJA Counsel had expressly told him they would not do. Therefore, he petitioned to this court

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 Icould get a new appointment.

Doc. 33. While Mr. Holiday did not understand that CJA Counsel were still his official

attorneys of record, his understanding of their letter was correct: they had told him he could

look for other lawyers because they did not intend to do further work, including a clemency

petition, on his behalf. His letter to the court was, in essence, a motion seeking appointment of

substitute counsel under 18 U.S.C. 3599.

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

for New Counsel. Doc. 34. This response opposed the principle of substituting appointed

counsel and provided certain reassurances to the court, such as:

The fact that there is currently no live pleading or motion which we have filed onHolidays 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 certioraripetition has

been denied.

Counsels would not hesitate to file a successor writ with the CCA were meritoriousgrounds 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 Cli fton Wil li ams v. Stephens.

1Undersigned counsel obtained a copy of this letter from Mr. Holiday who expressly authorized using it in theseproceedings. Also, Mr. Holiday expressly referenced the letter in his pro se motion to the court. See Dec. 33.



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Counsels has informed Mr. Holiday that we do not plan to seek clemency for him. Thisis unfortunate, but given political realities, there is no chance at all that a clemency

petition would be granted.

Absent new circumstances, we nevertheless remain Holidayslawyers even though there

does not appear to be any legal route to delay the pending execution date.

Doc. 34.

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

relying on Mr. Kretzers representations, the court found that the interest of justice do not

require the appointment of new counsel at this late date. Doc. 35 at 2. The courts Order cites

Martel v. Clair, but does not apply the factors identified in that case.

On October 21, 2015, undersigned counsel appeared by filing a Notice of Appeal on Mr.

Holidays part. Doc. 35. Mr. Holiday had done as his CJACounsel suggested and reached out

to find other lawyers willing to assist him. Undersigned counsel agreed to represent him for the

limited purpose of preserving his right to CJA counsel willing to pursue all avenues of relief still

available to him, including clemency. See Doc. 37, Certificate of Conference.

Later that same day, Mr. Kretzer sent an e-mail to undersigned counsel in response to the

Notice of Appeal. See Exhibit B. It states:

I think the proper thing for Wes and me to do under the circumstances is to file a motionto withdraw as CJA counsel since Raphael now has pro bono counsel [. . . .] I do notbelieve 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[.]

Id. Undersigned counsel responded by explaining the limited scope of the representation to

which she had agreed and questioned the notion that the appearance of pro bono counsel

precluded appointed counsel and recommended that instead, CJA Counsel move for appointment

of substitute CJA counsel and then withdraw. See, e.g., Exhibit C.

But later that same day, CJA Counsel rejected undersigned counsels recommendation.

CJA Counsel filed a Motion to Substitute Counsel or Alternatively to Withdraw. Doc. 37.



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The motion sought to forcibly substitute undersigned pro bono counsel for all purposes. The

motion also reminded the court that it had denied Mr. Holidays pro se request for appointment

of substitute CJA counsel based on the representation of [CJA Counsel] that they would file an

article 11.071 writ in the event that a meritorious basis to do so presented itself. Id. at 1. The

motion also suggested that the appeal filed by pro bono counsel was moot and that pro bono

counsel was abundantly qualifiedto take over completely. Id.

On October 22, 2015, the court entered an Order denying the Motion to Substitute

Counsel or Alternatively to Withdraw. Doc. 40 (discussed in detail below). Almost

contemporaneously, undersigned counsel filed a Response in Partial Opposition to CJA

Counsels Motion to Substitute Counsel, or Alternatively to Withdraw and Motion for

Alternative Relief under 18 U.S.C. 3599 & 28 U.S.C. 2251. Doc. 41. The request for relief

described in that pleading was not before the court when it entered its latest Order denying the

request for substitute counsel.

On October 23, 2015, CJA Counsel sent a letter to undersigned counsel threatening to

pursue sanctions against her if she does not dismiss the pending appeal. Exhibit D at 1. The

letter also directs undersigned counsel to cease representing Mr. Holiday: The courts order

yesterday makes clear that Mr. Kretzer and I are Raphaels lawyers. I hope this ends [sic]

discussion. We direct that you dismiss your notice of appeal to the Fifth Circuit immediately.

Id. The letter then proposes, however, that, in light of undersigned counsels strong feelings, she

could write a clemency petition for our signature and we will submit it. Id.at 2. However, she

must undertake this work pro bono. Id. Thus, present CJA Counsel appear to believe that Mr.

Holiday should be deprived of paid counsel to prepare a clemency petition for him. The letter

does not mention that the fact that, starting in June, CJA Counsel had been expressly directing

their client to seek other representation. See id. The letter does seek to explain the context of



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current CJA Counsels role with respect to another client (Clifton Williams). See id. Counsels

letter confirms that, contrary to their prior representation to this court that they had personally

filed a state court stay motion and secured a stay of execution for their client, they played no role

in the proceedings that actually led to Mr. Williamss stay of execution. See id. Counselsletter

also suggests, contrary to their representations to this court, that they had abdicated Mr.

Williamss state court representation because they do not believe that federally appointed CJA

counsel can represent their clients in state court successive habeas proceedings. See id.

Undersigned counsel does not intend to accept CJA Counsels invitation to withdraw and

dismiss the appeal, as she has been retained by Mr. Holiday pro bono to represent him with

respect to the collateral issue of the scope of Mr. Holidays federal statutory representation rights

under 3599. This chronology illustrates, however, that that CJA Counsel are currently lashing

out at undersigned counsel even though Mr. Holiday found his way to her by following CJA

Counsels explicit instructions to find other counsel because they would not fi le anything more

on his behalf. It also demonstrates that the court has not been fully or adequately informed about

why Mr. Holiday sought substitute counsel and why an appointment of substitute counsel is

imperative if compliance with the mandate in the plain text of 18 U.S.C. 3599(e) is to be

achieved.

LEGAL STANDARD

While the Federal Rules of Civil Procedure do not specifically provide for a motion to

reconsider, courts in the Fifth Circuit entertain such motions. See Shepherd v. Intl Paper Co.,

372 F.3d 326, 328 n.1 (5th Cir. 2004). If the motion is filed within twenty-eightdays of the

entry of the order that the party wants reconsidered, the motion to reconsider is treated as a Rule

59(e) motion. Id. The Order at issue here was entered on October 22, 2015, and this motion was

filed the next day. A motion to reconsider pursuant to Rule 59(e) allows parties to correct



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manifest errors of law or fact or to present newly discovered evidence. Waltman v. Intl Paper

Co., 875 F.2d 468, 473 (5th Cir. 1989).

ARGUMENT

I. Reconsideration Is Warranted Because Relief Should Be GrantedAlthough Not in

the Form or for the Reasons CJA Counsel Provided.

A. The Orders Denying Mr. Holiday 3599 Relief Should Be Reconsidered.

The October 22nd

Order articulates understandable concern about the nature of CJA

Counsels eleventh-hour request for substitute counsel. See Doc. 37; Doc. 40. Specifically, the

Order notes that [t]he substitution of counsel without causeon the eve of execution would only

insert uncertainty and unnecessary delay into the enforcement of an otherwise valid criminal

judgment. Doc. 40 at 3 (emphasis added). But here there iscause. Moreover, any uncertainty

and unnecessary delay is solely the making of Mr. Holidays current CJA Counsel, not Mr.

Holiday. Therefore, careening forward with an execution is not a fair or just outcome.

Reconsideration is appropriate to correct manifest errors of law [and] fact[.] Waltman.,

875 F.2d at 473. The October 22nd

Order and its predecessor rely on several errors of fact

emphasized in the bullet points below:

Mr. Kretzer does not indicate an unwillingness to advocate zealously for his client.Doc. 40 at 2.

The very fact that Mr. Kretzer refused to pursue clemency or other available relief despite

his clients wishesas federal law obligates him to doalone belies his reputed willingness to

advocate zealously for Mr. Holiday. Additionally, CJA Counsels decision to reverse course on

a dime, asking the court to substitute counsel only because pro bono appellate counsel appeared

to represent Mr. Holiday to preserve his statutory right to counsel willing to pursue clemency,

belies CJA Counsels reputed willingness to advocate zealously for Mr. Holiday. Further, CJA

Counsels failure to seek a stay or make an argument pursuant to the requisite standard, see



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Martel v. Clair, 132 S. Ct. 1276, 1284-86 (2012), belies the reputed willingness to advocate

zealously for Mr. Holiday. Finally, the context provided in Mr. Holidays Response to CJA

Counsels recent motion indicates that an unwillingness to advocate zealously for death -

sentenced clients after a certain point in the process may be a pattern with these particular

lawyers. See Doc. 41 at 9-11.2

Mr. Kretzers earlier letter dispelled, and in fact discredited, Holidays complaints abouthis current representation. Doc. 40 at 3.

In fact, Mr. Kretzers terse response to Mr. Holidays pro se motion did not dispel Mr.

Holidays complaint with anything substantive. It rested solely on CJA Counsels

predetermined, personal opinion that, given political realities, further compliance with 3599

would be futile: given poli tical reali ties, there is no chance at all that clemency petit ion would

be granted. Doc.34 at 2. This personal opinion is not a valid basis to unilaterally overrule the

clients expressed desires and refuse to provide mandated representation in clemency

proceedings. See Doc. 41 at 7-9. CJA Counsel should have arranged for substitute counsel long

ago instead of springing on Mr. Holiday their decision to forego providing him with full

representation this summer and then resisting his efforts to obtain substitute counsel until two

days agobut only pro bono counsel. (And now reversing course again and directing pro bono

counsel to step down or work pursuant to their directives.)

Under the law that permits current CJA Counsel to secure appointments, they are

required to represent their death-sentenced clients in clemency proceedings. This is not

optional. See 18 U.S.C. 3599 (each attorney so appointed . . . shall also represent the

defendant in such competency proceedings and proceedings for executive or other clemency as

may be available to the defendant.) (emphasis added). As Harbison v. Bell explains, [i]n

authorizing federally funded counsel to represent their state clients in clemency proceedings,

2The page numbers correspond to the ones that appear on the bottom of the printed page, not tothe numbers added by the electronic filing system.



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Congress ensured that no pr isonerwould be put to death without meaningful access to the fail-

safe of our justice system. 129 S. Ct. 1481, 1491 (2009) (quotingHerrera v. Collins, 506 U.S.

390, 415, 113 S. Ct. 853 (1993)) (emphasis added). Moreover, the invalid reason that Mr.

Kretzer gave was not based on any investigation specific to Mr. Holiday that a clemency

application requires, but instead on a calculus made years ago. See Doc. 41 at 7-9. Mr. Holiday

has an absolute right to counsel for clemency proceedings. Current CJA Counsel are refusing to

provide the representation mandated by the statute dictating the terms of their appointment. This

dereliction of counsels statutory duty is Mr. Holidays primary complaint about counsels

representation. Mr. Kretzers filings in this Court only underscore that Mr. Holidays complaint

was and remains valid.

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

would not hesitate to file additional legal challenges. Doc. 40 at 3.

The court is correct that Mr. Kretzer made that representation, but, as explained in the

Response, there is reason to believe that he didindeed hesitate and in fact never intended to file

additional legal (or equitable) challenges available to Mr. Holiday. See Doc. 41 at 7-11. As Mr.

Holiday explained to the court, his CJA Counsel, in a letter dated June 30, 2015, announced

unilaterally that they did not intend to labor on his behalf any further. See Exhibit A (Mr.

Kretzer and I are not going to file further appeals for you. A clemency petition just gives an

inmate false hope.). Further, current CJA Counsel misrepresented their involvement in a prior

case, taking credit for a stay of execution that another attorney had secured for their client after

they declined to file pleadings for their client in state court. See Doc. 41 at 9-11. As explained

by the lawyer who actually filed the appropriate stay and secured the stay of execution, his last-

minute intervention was necessary because Mssrs. Kretzer and Volberding indicated that they

would notrepresent their client any further. Id. at 10; id. at Exhibit D.



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Counsels prior nonfeasance in a very recent, similarly-situated case, and their misleading

statements to this court taking credit for the clients stay of execution, should engender concern,

not confidence, about their willingness to pursue additional legal challenges. Now, in the wake

of the filing describing this misrepresentation, they have sent a letter to undersigned counsel

threatening sanctions and making other untoward demands (such as proposing that Mr. Holidays

undersigned counsel ghost-writefor freea clemency for their signature). See Exhibit D.

CJA Counsels letter confirms that, contrary to their prior representation to this court that they

personally filed a state court stay motion and secured a stay of execution for their client, they

played no role in the proceedings that actually led to Mr. Williamss stay of execution. See id.

Counselsletter also suggests, contrary to their representations to this court, that they abdicated

Mr. Williamss state court representation based on the misimpression that CJA counsel cannot

represent their clients in state court successive habeas proceedings.3 Finally, CJA Counsels

3Six years ago, the Supreme Court held that CJA may be compensated for representation in state

court proceedings that are subsequent to the their CJA appointment: Pursuant to 3599(e)s

provision that counsel may represent her client in other appropriate motions and procedures, adistrict 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: HabeasCorpus 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 offederal 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 compensatefederally appointed capital habeas counsel using CJA appropriations or to allow federal defender

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



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letter does not explain why the attorney who took over Mr. Williams representation in state

court proceedings represented to the state court that it was his understanding that the previous

attorneys would not be representing Mr. Williams following the denial of certiorari[.] Doc. 41,

Exhibit D.

The courts Orders also rely on certain deficits in CJA Counsels papers that, in all

fairness, should not be laid at Mr. Holidays feet:

Mr. Kretzer does not identify any defect in the current relationship with his client.Doc. 40 at 2.

Mr. Holidayspro se motion dididentify such defects, as does the Response to CJA Counsels

recent motion. See Doc. 33 & Doc. 41.

B. A Statutory Mandate Requires That Mr. Holiday Be Appointed Counsel to

Assist Him through All Available Post-Conviction Proceedings.

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

qualified counsel appointed to represent them. McFarland v. Scott, 512 U.S. 849, 854 (1994).

Indeed, the statute was enacted to improve the quality of representation afforded capital

petitioners. Clair, 132 S. Ct. at 1285. Under 3599(e), that 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

executi on and other appropr iate motions and procedures[.] 18 U.S.C. 3599(e) (emphasis

added). Moreover, the statute expressly references that counsel shall also represent the

defendant insuch competency proceedings and proceedings for executive or other clemency as

may be available to the defendant. Id.

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

with the terms as their current CJA appointment.).



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The Supreme Court has interpreted 3599 to require the appointment of conflict-free

counsel. See Christeson v. Roper, 135 S. Ct. 891, 894 (2015); Clair, 132 S. Ct. at 1284-86.

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 anyother relief available to

him. Likewise, there can be no debate that Mr. Holiday filed apro 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. Holidays

3599 motion was denied. Doc. 35.

The statute cannot be read to suggest that defendants are only entitled to counsel who will

do what they think political realities might permit at the expense of their own clients

expectations and requests. Worse still, by initially 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 have made effectuation of Mr. Holidays

federal statutory rights to representation impossible 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. See Doc. 41.

C. Mr. Holidays 3599 Motion Should Have Been Granted in the Interests of

Justice.

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

governs motions seeking new counsel under 3599 is 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



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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 ownresponsibility, if any, for that conflict).

Id. at 1287 (citing cases).

The courts recent Order correctly notes that CJA Counsels motion to substitute counsel

did not address any of these factors. Doc. 40 at 2. That is hardly surprising, though. As Mr.

Holiday pointed out back in September, CJA Counsel have not been providing him with zealous

representation while simultaneously resisting the prospect of substitute CJA counsel.4 Doc. 33.

Mr. Holidays 3599 motion should have been granted in the interests of justice; and a

stay should now be entered so that the rights at issue in the 3599 motion can be exercised.

McFarland, 512 U.S. at 857. Mr. Holiday timely sought the appointment of substitute counsel

after a conflict arose when CJA Counsel refused to pursue relief available to him as a matter of

law (clemency). The court should have probed the source of the conflict, as well as the facially

inadequate basis the CJA Counsel offered for openly resisting their clients request for substitute

counsel willing to pursue all available avenues of relief. In short, as explained further below, all

of the relevant factors show that the interests of justice weigh entirely in favor of granting the

motion. Therefore, denying the motion was an abuse of discretion and necessitates

reconsideration now so that the need to pursue the pending appeal will be obviated.

4They suggested instead that Mr. Holiday seek pro bono counsel to do work they were notwilling to do. See Exhibit A.



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1. The 3599 motion was timely.

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

motion. Doc. 35 at 2. 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 unilateral decisionto cease providing

mandated representation that they were being paid to provide. As thepro se motion explains,

Mr. Holiday received a letter dated June 30, 2015 from his CJA Counsel telling him that the

Supreme Court had denied his certpetition and that they would not take any further action on his

behalf. Doc. 33; see also Exhibit A. Shortly thereafter, the State set a date for Mr. Holidays

execution. Mr. Holiday attempted to entreat 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 this court through a letter received on September 22, 2015. Doc. 33.

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. Also, the request was made more than one month

before any clemency application would have been due under rules applied by the Texas

clemency board.

Therefore, there is no basis for suggesting that Mr. Holiday engaged in abusive delay.

Clair, 132 S. Ct. at 1286-87. Hispro se motion was filed at a late date only because his CJA

Counsel informed him at a late date that they had (long ago) decided not to pursue clemency

on his behalf, an avenue of relief only available in Texas once an execution date has been set.

See, by contrast, id.at 1288 (noting that defendants second motion to substitute counsel was

filed on the eve of the district courts deciding a 10-year-old habeas petition).



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2. The courts inquiry into the complaint was inadequate.

As the courts initial Order reflects, there was no inquiry into Mr. Holidays complaint.

The court relied solely on Mr. Kretzers representations. Doc. 35 at 2. Yet courts cannot

properly resolve substitution motions without probing why a defendant wants a new lawyer.

Clair, 132 S. Ct. at 1288 (citing cases). In the initial Order, the representations that the court

relied on are partially quoted in the Order as follows: there is no chance at all that a clemency

petition would be granted. Id. Although this statement from Mr. Kretzer is facially inadequate

and wholly conclusory, it is not the entirety of what Mr. Kretzer wrote to the court in opposing

his own clients motion. Mr. Kretzer sought to justify his fatalistic conclusion only by recourse

to unexplained political realities: given poli tical reali ties, there is no chance at all that a

clemency peti tion would be granted.Id.

CJA Counsels superficial and unexplained view of political realities is not an

appropriate basis for refusing to provide a client with services that the client desires and that

counsel are required to provide under federal law. 18 U.S.C. 3599(e). As explained above,

Mr. Holiday has a statutory right to appointed counsel who shall represent him throughout

every subsequent stage of available judicial proceedings by providing all avail able post-

conviction process, together with applications for stays of executi on and other appropriate

motions and procedures and shall also represent the defendant in such competency

proceedings and proceedings for executive or other clemency as may be avail able to the

defendant. 18 U.S.C. 3599(e) (emphasis added).

Further, CJA Counsels view of political realities concerning clemency is not an

appropriate basis for refusing to step aside so that the client can obtain conflict-free counsel

willing to pursue such relief. Additionally, counsels view of political realities is not an

appropriate basis for the de facto abandonment of a client staring down a death sentence. If CJA



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Counsels view of political realities were a legitimate basis for refusing to act on the clients

behalf, then, arguably, no one appointed to represent a death-sentenced indigent under 3599

would be obligated to pursue any post-conviction relief even though the statute entitles such

individuals toall avail able post-conviction processes, includingseeking stays of execution

and clemency. Id.; see alsoDoc. 41 at 8-9.

Here there is no on-the-record inquiry into the defendants allegations, which, as the

Supreme Court emphasized in Clair, permit[s] meaningful appellate review of a trial courts

exercise of discretion. 132 S. Ct. at 1288 (quoting United States v. Taylor, 487 U.S. 326, 336-37

(1988)). The court should not have rejected the premise of Mr. Holidays motionbased solely on

Mr. Kretzers representations. In any event, his CJA Counsel admitted their unwillingness to

provide Mr. Holiday with the full scope of 3599 representationthough they overstated what

they were willing to do (and had done for other clients). Now that the court has been provided

with a fuller context revealing the legitimacy of Mr. Holidays complaint about counsel, and

information that undermines the veracity of counsels assertions of diligence in another

similarly-situated case, reconsideration is warranted. See Doc. 41;see also Exhibit D (admitting

that another lawyer undertook work that CJA Counsel told this court they had performed).

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

not to the client.

The cause of Mr. Holidays complaint cannot be disputed: Mr. Holiday wants counsel

who will zealously represent his right to seek clemency, a stay, and other relief available to him

under 3599; yet CJA Counsel decided not to provide Mr. Holiday with this representation

because of their perception of political realities. Doc. 34 at 2.

In stark contrast, the source of the conflict at issue in Clairbetween the client and his

appointed lawyers was Clair himself, who had a history of complaining about his appointed

lawyers; and the specific conflict at issue in the case arose from Clairs d esire to see counsel



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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 explains, 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 they finally informed Mr. Holiday that they did not intend to do any more for

him. But in fact, they seemed to have decided years ago that they never intended to pursue

certain mandated representation for him after a certain stage. See Doc. 41 at 7-9. Thus 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 support granting Mr.

Holidays 3599 motion. Thus denying Mr. Holidays motion was an abuse of discretion.

Reconsideration permits an opportunity to correct the error and move forward expeditiously so

that Mr. Holiday, through willing and able counsel, can pursue clemency: the historic remedy

for preventing miscarriages of justice where judicial process has been exhausted. Herrera v.

Collins, 506 U.S. 390, 411-12 (1993).

Most critically, the priority here should not be rushing to satisfy an arbitrary execution

date, but ensuring that, before an irrevocable punishment is imposed, Mr. Holiday is provided the

representation to which he has a right under federal law. See 18 U.S.C. 3599. This court has

jurisdiction to provide the necessary breathing room required to get this right before it is too late.

See McFarland, 512 U.S. at 857 (holding that district courts have authority to enter stays under

these circumstances because the appointment of counsel would be meaningless unless [the

defendants] execution also was stayed.).



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CONCLUSION &PRAYER

For the foregoing reasons, Mr. Holiday respectfully asks that the court:

GRANT Mr. Holidays Motion to Reconsider;

ORDER appointment of qualified, substitute counsel under 3599;

STAY the execution date currently set for November 18, 2015 under 28 U.S.C. 2251;and

GRANT any further relief to which he shows himself justly entitled.

Respectfully submitted,

/s/ Gretchen Sims Sween

Gretchen Sims SweenBECK REDDEN LLP

515 Congress Avenue, Suite 1900Austin, Texas 78701

Telephone: (512) 708.1000

Facsimile: (512) 708.1002E-mail: [email protected]

Pro Bono Attorney for Petiti oner

CERTIFICATE OF SERVICE

I, Gretchen Sween, certify that the foregoing was filed electronically in compliance with

Local Rule CV-5(a). Therefore, this document was served on all counsel who are deemed to

have consented to electronic service. Local Rule CV-5(a)(3)(A).

I have mailed a copy of the foregoing to Mr. Raphael Holiday by express mail.

/s/ Gretchen S. Sween


Documents

43 Motion to Reconsider