Holiday Motion to Strike

7/24/2019 Holiday Motion to Strike

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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 Courtfor the Southern District of Texas, Houston Division

USDC No. 4:11-CV-01696

MOTIONTOSTRIKEAPPEARANCES,

UNOPPOSEDMOTIONTODISMISSAPPEAL,AND

RECORD EXCERPTS THAT PURPORT TO BE FOR

MR. HOLIDAY

Case: 15-70035 Document: 00513258549 Page: 1 Date Filed: 11/04/2015


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Petitioner-Appellant Raphael Deon Holiday files this Motion to Strike: (1)

the Appearance Forms filed by Seth Kretzer and James Volberding (CJA

Counsel); the (2) Unopposed1Motion to Dismiss Appeal filed by CJA Counsel;

and the (3) Record Excerpts that purport to be For Mr. Holiday. The

appearance forms are not viewable, but the ECF notifications disseminated through

the Courts electronic filing system indicate that they were filed with the Court on

October 29, 2015 and October 30, 2015. See TAB A. The Motion to Dismiss was

filed around midnight on November 3, 2015. The Record Excerpts were filed

the morning of November 4, 2015.

Mr. Kretzer and Mr. Volberding purport to appear on behalf ofMr. Holiday

but they have actively opposed him on the only issue before this Court in this

appealand, as their filings reflect, they are attempting to continue their

opposition to Mr. Holiday on appeal.

After CJA Counsel notified Mr. Holiday in writing that they would perform

no further work on his behalf and that he was free to seek other counsel, Mr.

Holiday moved the district court for new CJA counsel willing to exhaust his

remaining remedies. ROA.15-70035.848. Mr. Holiday was scheduled to be

executed two months later. In response, CJA Counsel acknowledged they had no

intention of seeking executive clemency or further judicial review of Mr. Holidays

1 CJA Counsel incorrectly characterize the motion as unopposed. Mr. Holiday opposes the

motion. Moreover, the Respondent has indicated that the State, as a matter of routine, takes no

position with respect to disputes over representation, the issue presented in this appeal.



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death sentence. They nonetheless opposed Mr. Holidays motion for substitute

CJA counsel. ROA.15-70035.850 - 852. The district court denied Mr. Holidays

pro se motion in an order that explicitly relied on CJA Counsels opposition.

ROA.15-70035.853 - 854. The district court subsequently denied a motion to

reconsider that ruling. ROA.15-70035.969 - 970.

The scope of this appeal is limited to review of the district court orders

denying Mr. Holidays requests for appointment of substitute CJA counsel.

ROA.15-70035.855 - 856 and ROA.15-70035.971 - 972. CJA Counsels only role

in the relevant proceedings below was as an adversary to Mr. Holiday, i.e., they

actively opposed the relief that Mr. Holiday sought.

Mr. Kretzer and Mr. Volberding cannot now appear forMr. Holiday in an

appeal of a matter in which they were litigating against Mr. Holiday. At issue is

whether Mr. Holiday has been deprived of his enhanced right[] of representation

under 18 U.S.C. 3599. Martel v. Clair, 132 S. Ct. 1276, 1284 (2012). To

advocateforMr. Holiday in this appeal, Mr. Kretzer and Mr. Volberding would be

required to argue against both their own interests and the positions they took before

the district court.

As the Supreme Court recently held, counsel cannot reasonably be expected

to denigrate their own performance in order to advance their clients legal

position because mak[ing] such an argument . . . threatens their professional



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reputation and livelihood. Christeson v. Roper, 135 S. Ct. 891, 894 (2015) (citing

the Restatement (Third) of Law Governing Lawyers 125 (1998)). A significant

conflict of interest arises when an attorneys interest in avoiding damage to [his]

own reputation is at odds with his clients strongest argument. Id. (quoting

Maples v. Thomas, 132 S. Ct. 912, 925 n.8 (2012)). See also Tex. Disciplinary R.

Prof. Conduct 1.06 (a lawyer shall not represent a person if the representation of

that person: (1) involves a substantially related matter in which that persons

interests are materially and directly adverse to the interests of another client of the

lawyer or the lawyer's firm; or (2) reasonably appears to be or become adversely

limited by the lawyer's or law firms responsibilities to another client or to a third

person or by the lawyer's or law firms own interests.); see alsoABA Model Rule

of Professional Conduct 1.7(a) (a lawyer shall not represent a client if the

representation involves a concurrent conflict of interest.).

CONCLUSION AND PRAYER FOR RELIEF

Mr. Kretzer and Mr. Volberding opposed Mr. Holiday in the court below,

and have continued their opposition before this Court, as evidenced by their

attempt to dismiss their clients appeal over his objection. Therefore, their

Appearances, their Motion to Dismiss Appeal, and their Record Excerpts

purportedly filed for Mr. Holiday yet plainly filed in conflict with his interests

are improper. Accordingly, Mr. Holiday respectfully moves this Court to strike



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their Appearances on his behalf and any pleadings they file purportedly on Mr.

Hollidays behalf.2

Alternatively, Mr. Holiday asks that he be permitted to file an Opposition to

the Motion to Dismiss Appeal within 48 hours of this Courts ruling on this Motion

to Strike.

Respectfully submitted,

BECK REDDEN LLP

By: /s/ Gretchen Sims Sween

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

2The Court should also strike the Record Excerpts filed by Mr. Kretzer and Mr. Volberding.

Mr. Holidays record excerpts are due on November 16, 2015 and shall be filed by undersigned

counsel on his behalf on or before that date. See TAB B



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CERTIFICATE OF SERVICE

I hereby certify that on November 4, 2015, I electronically transmitted this

Motion to Strike to the Clerk of the Court using the Courts ECF System. I further

certify that counsel of record for Appellee are being served with a copy of thisMotion by electronic means via the Courts ECF system, as follows:

Ellen Stewart-Klein

Office of Attorney General

Capitol Station

P.O. Box 12548

Austin, TX 78711-2548

Counsel for Respondent-Appellee William Stephens

/s/ Gretchen Sims Sween

Gretchen Sims Sween



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TAB AECF notifications regarding Forms for Appearance of

Counsel for Seth Kretzer filed October 29, 2015 and

J.W. Volberding filed October 30, 2015



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Melissa Patak

From: [email protected]: Thursday, October 29, 2015 9:06 PMTo: Melissa PatakSubject: 15-70035 Raphael Holiday v. William Stephens, Director "ECF Attorney Appearance Filed"

***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permitsattorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of

all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees

apply to all other users. To avoid later charges, download a copy of each document during this first

viewing.

United States Court of Appeals for the 5th Circuit

Notice of Docket Activity

The following transaction was entered on 10/29/2015 at 9:06:13 PM CDT and filed on 10/29/2015

Case Name: Raphael Holiday v. William Stephens, Director

Case Number: 15-70035

Document(s): Document(s)

Docket Text:APPEARANCE FORM for the court's review. Lead Counsel? No.. THE IMAGE FOR THIS FILING WILLNOT BE VIEWABLE AS IT CONTAINS SENSITIVE INFORMATION. [15-70035] (Seth Kretzer )

Notice will be electronically mailed to:

Ms. Ellen Stewart-Klein, Assistant Attorney General: [email protected],

[email protected]. Gretchen Sims Sween: [email protected], [email protected], [email protected],

[email protected]

Mr. Seth Kretzer: [email protected]

The following document(s) are associated with this transaction:

Document Description: Appearance FormOriginal Filename: formforappearanceofcounsel.pdf

Electronic Document Stamp:[STAMP acecfStamp_ID=1105048708 [Date=10/29/2015] [FileNumber=8047606-0][4d0ffbb41e649a9ab9fd33fd34f3beb6a194112aa8e7919356fb9785521e572c8d6bac35dcc047446914a87486808

7aef632aa5b6a070b9ad5a9c20e69736d8d]]



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Melissa Patak

From: [email protected]: Friday, October 30, 2015 11:14 AMTo: Melissa PatakSubject: 15-70035 Raphael Holiday v. William Stephens, Director "ECF Attorney Appearance Filed"

***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permitsattorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of


apply to all other users. To avoid later charges, download a copy of each document during this first

viewing.


Notice of Docket Activity

The following transaction was entered on 10/30/2015 at 11:13:30 AM CDT and filed on 10/30/2015




Docket Text:APPEARANCE FORMfor Attorney James W. Volberdingfor the court's review. Lead Counsel? No.. THEIMAGE FOR THIS FILING WILL NOT BE VIEWABLE AS IT CONTAINS SENSITIVE INFORMATION.

[15-70035] (James Wesley Volberding )


Ms. Ellen Stewart-Klein, Assistant Attorney General: [email protected],[email protected]

Ms. Gretchen Sims Sween: [email protected], [email protected], [email protected],

[email protected]. James Wesley Volberding:[email protected], [email protected]

The following document(s) are associated with this transaction:Document Description:Notice of Appearance for Attorney James W. Volberding

Original Filename: Holiday NOA Volberding.pdf

Electronic Document Stamp:[STAMP acecfStamp_ID=1105048708 [Date=10/30/2015] [FileNumber=8047973-0]

[88e23bedee579dd32280edc15f4d1c6c3b64d247241786529559e999bf00f1976fdbdd0732084b51e78e92057f0a

716a6e57b420e358466ccf640e38343e07e3]]



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TAB BECF notification stating Mr. Holidays record

excerpts are due on November 16, 2015



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Melissa Patak

From: Gretchen SweenSent: Wednesday, November 04, 2015 9:40 AMTo: Melissa PatakSubject: FW: Re-send: 15-70035 Raphael Holiday v. William Stephens, Director "Appellant/Petitioner

Brief Filed"

From:[email protected][mailto:[email protected]]

Sent:Monday, November 02, 2015 4:03 PMTo:Gretchen SweenSubject:Re-send: 15-70035 Raphael Holiday v. William Stephens, Director "Appellant/Petitioner Brief Filed"

***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits

attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of


apply to all other users. To avoid later charges, download a copy of each document during this firstviewing.


Amended 11/02/2015 16:03:23: Notice of Docket Activity

The following transaction was entered on 11/02/2015 at 2:32:55 PM CST and filed on 11/02/2015




Docket Text:APPELLANT'S BRIEF FILED

# of Copies Provided: 0 A/Pet's Brief deadline satisfied. Record Excerpts due on 11/16/2015 for Appellant

Raphael Deon Holiday. Paper Copies of Brief due on 11/09/2015 for Appellant Raphael Deon Holiday. [15-70035]

REVIEWED AND/OR EDITED - The original text prior to review appeared as follows: APPELLANT'SBRIEF FILED by Mr. Raphael Deon Holiday. Date of service: 11/02/2015 via email - Attorney for Appellant:Sween; Attorney for Appellee: Stewart-Klein [15-70035] (Gretchen Sims Sween )


Ms. Ellen Stewart-Klein, Assistant Attorney General: [email protected],

[email protected]

Ms. Gretchen Sims Sween: [email protected], [email protected], [email protected],[email protected]



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The following document(s) are associated with this transaction:

Document Description: Petitioner-Appellant's Opening Brief

Original Filename: Petitioner-Appellant's Opening Brief.pdf


[86a235eb3184bb12f9a177d2ee95309606fb21768936eb10098b2ca35e16161f56a75dd5ae89eb1addda53611d3f

77c0a19d528baa834fa275fd68432fc363ee]]

Document Description: BR-5 LetterOriginal Filename: /opt/ACECF/live/forms/mwashington_1570035_8049493_BriefDeficiency-BR5_173.pdf


[0649ee0125a5a67dc314975751d4000679c8b4d8fde266be6a0a6b0213f01b3f1327e50a88da0e4cbb82406c425bda0e0ec5e563a3e91afc4927c8cfd506091a]]

Recipients:

Ms. Ellen Stewart-Klein, Assistant Attorney General

Ms. Gretchen Sims Sween


Documents

Holiday Motion to Strike