Holiday 43-4 Volberding Letter to Sween

7/24/2019 Holiday 43-4 Volberding Letter to Sween

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EXHI ITD

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


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Certified Public Accountant (Ark.)

American Society of

Uoard Certified, Criminal Law

J M E S W V O L B E R O I N G

ATTORNEY AND COUNSELOR AT LAW

1

E. FERGUSON STREET

SUIT

5

TYLER TEXAS 7 5 7 2

Uoard Certified, Criminal Appellate Law

Texas Board ofl.egal Speciali:1 a1ion

October 23, 2015

Telephone: 903.597.6622

Tdccopicr: 866.398.6883

e 111ail:janmrolberJi11:ajgmail.tom

Cell Phone: 903.520.1373

Ms. Gretchen Sween

Beck Redden, LLP

515 Congress A venue

Suite 1900

Via Email: [email protected]

Austin, Texas 7870 I

(512) 708-1000

Re: Raphael D. Holiday v. Robert Thaler Director No. H-11-1696, Petition

for Writ of Habeas Corpus, In the U.S. District Court, Eastern District of

Texas, Houston Division

Dear Ms. Sween:

The

court's

order yesterday makes clear that Mr. Kretzer

and

[ are Raphael's

lawyers. hope this ends discussion. We direct that you dismiss your notice of appeal to

the Fifth Circuit immediately.

J

you proceed, we will file a motion to dismiss

your

appeal and seek sanctions

against you. You are treading on ethically thin ice. You filed a federal pleading yesterday

in which you state that you are unqualified to represent a death row inmate. And yet this

is precisely what you purport to do. For instance,

on

page 1 of your response yesterday

(docket number 41) you wrote that you are not statutorily qualified to accept such

appointment.

On

page 2 you state, Undersigned counsel is not, as CJA Counsel urge,

qualified by past experience to undertake representation of Mr. Holiday for all purposes.

On

page 3 you state that you explained that she herself was not qualified to assume such

a substitution. Your attempt to represent a capital defendant, therefore, appears to be a

per se violation of Rule I .0 I

of

he Disciplinary Rules. The Fifth Circuit might agree.

We also direct that you cease communication with our client. It appears you have

been corresponding with him,

and

probably have been to see him without our consent

or

pennission. While Rule 4.02

of

the Disciplinary Rules allows you to respond to his

letters,

if

you have gone to see him

and

acquired confidential infonnation,

and

used that



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October 23, 2015

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information to intervene in his case, then you have stretched Rule 4.02 beyond any

reasonable interpretation. We respectfully urge you

to go no farther.

Your only complaint against us in twelve pages of pleading s that

we

have not

filed a clemency petition for Raphael. You identify not a single federal claim we

overlooked, not a single oversight

of

exonerating evidence, not a single new claim that

we

should file now.

I will make this offer to you. f you feel strongly that Raphael would benefit from

a clemency petition, and you are convinced there s actually a reasonable chance that

two-thirds of the members of the Board of Pardons and Paroles would recommend

clemency to Governor Abbott, and that Government Abbott would actually consider

signing a clemency order, then please write the clemency petition for our signature and

we will submit it, once Raphael reads and approves the petition. Do not file another

pleading as you did yesterday and tell any authority that Raphael s effectively without

counsel. We are giving you unequivocal instruction and pennission

to

write his clemency

petition and we will file it

on

his behalf,

if

he agrees. You must undettake this work pro

bono You are abundantly qualified to do such work.

trust

you

have sufficient political understanding

to

know that Governor Perry

signed only one death row clemency order during his entire fourteen years in office. And

that was only for someone who was not the shooter. Government Abbott s conservative

views

on

the death penalty are well known. He s not --- repeat not --- going to grant

clemency to a man convicted of deliberately burning three little kids to death. The

Governor and Board will withhold their denial

of

clemency until a day

or

perhaps a few

days prior to the execution. t is cruel, in our view, to hold out such false hope to a man

facing execution. We believe Raphael deserves the dignity and respect of being told the

truth and allowed several months come

to

terms with the end

of

his existence

on

this

earth, to see and enjoy his friends and family, and

to

establish a satisfying relationship

with his creator, without giving the poor man false hope of a last moment rescue by the

Governor and Board

of

Pardons and Paroles, which everyone else knows s not going to

come. But

if

you are convinced Governor Abbott might order clemency, and two-thirds

of the Board would so recommend, then by all means, write the petition and we will file

it,

if

Raphael approves. You are free

to

argue in your petition that Government Abbott

should recuse and that he should delegate his state constitutional authority

to

someone

else.

Let me clarify your comments about Clifton Williams before you make them

again. The day before Clifton s scheduled execution, Jim Huggler, one of the best

criminal appellate lawyers in East Texas, received the

AG s

letter revealing state DNA

data base errors and informed me. He wrote and filed the state motion to stay. That

afternoon and the next morning, Mr. Kretzer and I dropped everything and wrote the

federal motion to stay, which was drafted to be filed simultaneously in the U.S. District

Court, Fifth Circuit and Supreme Court. We communicated with the death penalty clerks

at the Fifth Circuit and Supreme Court to let them know what was coming. We were

within 30 minutes

of filing the federal motion when the CCA granted the stay. Tbc Fifth



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October 23, 2015

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Circuit later paid our CJA vouchers for this work, thereby validating its merit and

necessity. You are correct that Mr. Huggler gets the credit for the win. Mr. Kretzer and I

however, were not bystanders.

Let me further clarify that

Mr.

Huggler was appointed by the state judge in Smith

County

to

represent him at the state court hearing to set his execution date.

Th.at

was the

only reason for his appointment. Mr. Kretzer and I informed the state judge we could not

appear at the execution warrant hearing; we were his federal counsel. Later, Mr. Huggler

decided that he could file a clemency petition. He did not do so, likely for the futility of it

and lack of time. Moreover, Clifton s sister is a friend ofmine. I update her regularly, and

through her, Clifton s mother. You overstated your attack on us. This is why it is

important to call before filing such pleadings.

Let me conclude with this comment. Before filing another pleading, or sending

letters to

our

client, I recommend you go to Houston and see Seth Kretzer in person. Talk

with him face-to-face about any concerns you have, any proposals or successor claims

you believe we should consider, and any actions you believe will benefit Raphael. I

w ll

join

by phone. We will listen carefully and consider what you say.

f

you can propose a

course

of

action that stands a reasonable chance of overcoming Pinholster and 2254(d)

barriers, we will pursue

it.

Otherwise, we respectfully ask that you take no further action

n

this case. We will respond firmly

if

you do.

cc: Mr. Seth Kretzer via email)

Mr. Raphael Deon Holiday

Inmate No. 999419

Polunsky Unit

3872 F.M. 350 South

Livingston, X 7735

Sincerely,

._fit. 111r.>> j)/ {y1Jk,,y

James W. Volberding


Documents

Holiday 43-4 Volberding Letter to Sween