Holiday's filing asking for new lawyers

8/20/2019 Holiday's filing asking for new lawyers

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No. 15-70035

In The United States Court Of Appeals

For The Fifth Circuit

R APHAEL DEON HOLIDAY,Petitioner-Appellant,

v.

WILLIAM STEPHENS, DIRECTOR

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,CORRECTIONAL I NSTITUTIONS DIVISION,Respondent-Appellee.

On Appeal from the United States District Courtfor the Southern District of Texas, Houston Division

USDC No. 4:11-CV-01696

REPLY TO RESPONDENT-APPELLEE’S OPPOSITION TO STAY

Case: 15-70035 Document: 00513265976 Page: 1 Date Filed: 11/10/2015


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Petitioner-Appellant respectfully files this Reply to the Opposition filed by

Respondent-Appellee Williams Stephens (“the State”) in support of his Motion for

Stay of Execution.

INTRODUCTION

While an execution date looms, Mr. Holiday is having to litigate against two

distinct entities now aligned against him: (1) the State and (2) Mr. Holiday’s own

counsel appointed under the Criminal Justice Act, Seth Kretzer and James

Volberding (“CJA Counsel”). The impropriety of this circumstance underscores

why Mr. Holiday sought relief from the district court, why the district court abused

its discretion in denying that relief, and why a § 2251 stay is warranted so that

relief from this Court will be “meaningful,” as binding precedent requires. See,

e.g., Harbison v. Bell, 129 S. Ct. 1481, 1491 (2009) (“In authorizing federally

funded counsel to represent their state clients in clemency proceedings, Congress

ensured that no prisoner would be put to death without meaningful access to the

‘fail-safe’ of our justice system.”) (quoting Herrera v. Collins, 506 U.S. 390, 415

(1993)) (emphasis added).

Mr. Holiday has a statutory right to conflict-free counsel willing to pursue

all relief available to him under 18 U.S.C. § 3599. See Christeson v. Roper , 135 S.

Ct. 891, 894 (2015) (per curiam) (finding district court “did not adequately account

for all of the factors we set forth in Clair ” in adjudicating a motion to substitute



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counsel); Martel v. Clair , 132 S. Ct. 1276, 1284-86 (2012) (emphasizing “the court

would have to appoint new counsel if the first lawyer developed a conflict with or

abandoned the client”).

The record plainly shows that a conflict emerged by at least June 30, 2015

when Mr. Holiday’s CJA Counsel informed Mr. Holiday of their decision to cease

working for him, invited him to find pro bono counsel to take over, then, once he

turned to the district court for help, actively resisted his efforts to obtain substitute

appointed counsel in time to seek various forms of relief still available to him.

That conflict between client and counsel has continued to escalate and is now

playing out before this Court.

The conflict is so manifest that the State, in opposing a stay, is invoking the

very same arguments made by CJA Counsel in asking the Court to summarily

dismiss this appeal. See Opp. at 21 (quoting and embracing CJA Counsel’s Motion

to Dismiss at 24).

That CJA Counsel here have been laboring under a conflict with their client

cannot be a subject of reasonable debate. They aligned themselves against their

client before the district court and now align themselves against their client and

join arms with the State while suggesting that the only attorney authorized to

undertake this appeal on Mr. Holiday’s behalf, see TAB A, is somehow a rogue

interloper. This Kafkaesque scenario is what breeds cynicism about the



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representational rights that Congress enacted and the procedural safeguards that the

Supreme Court has developed specifically for the capital context. See 18 U.S.C. §

3599(d) (explaining the statute was enacted due to “the seriousness of the possible

penalty and . . . the unique and complex nature of the litigation.”); see also Clair ,

132 S. Ct. at 1284-85 (discussing the “enhanced rights of representation” in such

serious cases “‘reflec[t] a determination that quality legal representation is

necessary’ in all capital proceedings to foster ‘fundamental fairness in the

imposition of the death penalty.’”) (quoting McFarland v. Scott , 512 U.S. 849, 855

(1994)).

The State, under the auspices of opposing a stay, has now jumped into a

dispute in which its representative expressly declined to participate before the

district court. TAB B. The State took no position in the dispute over Mr. Holiday’s

right to substitute counsel; but it now purports to describe the procedural events

that culminated in Mr. Holiday’s “proper” counsel filing a motion to dismiss their

own client’s appeal while asserting that undersigned counsel’s appearance is

somehow “improper” and even “unlawful.” Opp. at 12, 19, 25. The State’s

pronouncements and basis for opposing a stay are divorced from both the facts and

applicable law.



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ARGUMENT

I. The State Proffers Only Two Points Responsive to the Motion for Stay

of Execution; Neither Withstands Scrutiny.

The State devotes fewer than 5 pages of a 35-page brief to an argument

regarding Mr. Holiday’s request for a stay. See Opp. at 10-14. The State argues,

incorrectly, that a federal court “lacks jurisdiction” to enter a stay under the

circumstances presented here. The State then makes the conclusory assertion that a

stay is not warranted because the State does not believe that the appeal has merit.

Both of these arguments should be rejected.

A. The Court has jurisdiction.

The ability to enter a stay under McFarland v. Scott is not limited to cases

where a capital defendant has “not had an initial round of federal habeas review”

as the State contends. Opp. at 11. “[O]nce a capital defendant invokes his right to

appointed counsel, a federal court also has jurisdiction under § 2251 to enter a stay

of execution. . . . [b]ecause § 2251 expressly authorizes federal courts to stay state-

court proceedings ‘ for any matter involved in the habeas corpus proceeding.’”

McFarland , 512 U.S. at 858. And as the Supreme Court demonstrated recently in

Christeson, a federal court has jurisdiction to enter a stay where a death-sentenced

individual had filed a § 3599 motion (which was denied) seeking substitute counsel

because appointed counsel’s conflict of interest with the client had hindered his

ability to pursue long-shot relief. Christeson, 135 S. Ct. at 894-95. The Supreme



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Court acknowledged that, “[t]o be sure” Christeson would face “a host of

procedural obstacles” even after he obtained substitute counsel, which meant he

might well fail to obtain relief. Id. at 895. Yet the Supreme Court rejected the

“futility” argument and concluded that “[h]e should [nevertheless] have that

opportunity, and is entitled to the assistance of counsel in doing so.” Id. at 896.

That is precisely the context here. Mr. Holiday is appealing the denial of his

§ 3599 motion seeking substitute counsel. His appointed counsel opposed the

motion below, creating a patent conflict with their client on this issue, which has

culminated in their seeking to dismiss his own appeal so as to avoid scrutiny of the

de facto abandonment of their client. See Opening Brief. This de facto

abandonment occurred while their client still had avenues of relief available to him

through habeas and otherwise, and a stay is warranted to enable him to obtain

conflict-free counsel to assist him in pursuing his remaining options.

Moreover, the State incorrectly characterizes the procedural posture of this

case, suggesting that no further habeas litigation is “contemplated” because Mr.

Holiday “only complained that appointed counsel’s [sic] initially refused to file a

clemency petition.” Opp. at 13. A central argument in Mr. Holiday’s Opening

Brief is that he still has preserved claims that could be pursued in a second, but not

successive, federal habeas petition, which his CJA Counsel simply abandoned. See

Opening Brief at 32-33. There is no requirement that a current habeas action be in



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process, as the State suggests, only that a “ potential habeas corpus proceeding [be

pending] before the court.” Rosales v. Quarterman, 565 F.3d 308, 311 (5th Cir.

2009) (emphasis added); see also In re Hearn, 376 F.3d 447, 458 (5th Cir. 2004)

(concluding stay of execution is “imperative to ensure the effective presentation”

of remaining bases for relief).

In short, there is no “lack of subject matter jurisdiction” with respect to Mr.

Holiday’s request for a stay of execution. Opp. at 2, 12.

B.

The State’s view of the merits of Holiday’s appeal are neitherrelevant nor accurate.

The State’s only other argument specifically addressing the requested stay is

the conclusory assertion that Mr. Holiday’s appeal is not “meritorious enough to

confer jurisdiction.” Opp. at 14. The State does not explain how its view

regarding the merits of an issue about which it took no position before the district

court is somehow relevant to adjudicating jurisdiction. What the State endeavors

to do through its Opposition is put before the Court a covert response to Mr.

Holiday’s Opening Brief. As explained below, that procedural maneuver is

improper, and the State’s substantive responses to the merits of Mr. Holiday’s

appeal are unsound.

II. Most of the State’s Opposition Purports to Address the Merits of the

Appeal in a Manner That Is Procedurally Improper and Substantively

Unfounded.



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A. The State demurred before the district court, taking no position with

respect to the issue raised by this appeal.

After Mr. Holiday’s CJA Counsel had successfully opposed his pro se

motion seeking appointment of substitute counsel, and after undersigned counsel

then initiated this appeal on his behalf, further litigation ensued before the district

court to try to obviate the need for the appeal. For instance, in response to the

notice of appeal, CJA Counsel filed a motion asking the district court to substitute

counsel after all; but instead of agreeing with Mr. Holiday’s request for substitute

counsel under § 3599, CJA Counsel asked the district court to permit them to

withdraw and leave Mr. Holiday without any CJA counsel and to impose the duties

of CJA counsel on the pro bono attorney assisting Mr. Holiday with his effort to

secure adequate CJA counsel. ROA.15-70035.857. The district court denied this

odd request stating:

Mr . Kr et zer r equest s t hat t hi s cour t al l ow Ms. Sweent o repr esent Hol i day not onl y f or an appeal , but ashi s onl y at t or ney. I n t he cer t i f i cat e of conf er enceaccompanyi ng the mot i on, however , Mr . Kr et zer sayst hat Ms. Sween wi shes t o l i mi t her i nvol vement i n t hi scase t o t he appeal cur r ent l y bef or e t he Fi f t h Ci r cui tand t o request a st ay of execut i on i n order t hat a newat t orney can be appoi nt ed.

ROA.15-70035.880.1

Because the district court ruled on CJA Counsel’s motion

without probing the nature or source of the conflict that had arisen between Mr.

1 The district court did not suggest that it was improper for pro bono counsel to represent Mr.

Holiday, as both CJA Counsel and the State intimate.



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Holiday and his CJA Counsel, undersigned counsel, on Mr. Holiday’s behalf, filed

a “Motion to Reconsider the Orders Denying Relief under 18 U.S.C. § 3599.”

ROA.15-70035.927-.935. Before filing that motion, undersigned counsel sought to

confer with the State. Counsel for the State responded: “As I explained to [CJA]

counsel yesterday the State takes no position on matters of representation.” TAB B.

Because the State took “no position” on the very subject matter of this appeal, the

State waived its right to take a position now in the context of opposing a stay

motion. Cf. Kelly v. Foti, 77 F.3d 819, 823 (5th Cir. 1996) (noting that a party

“must press, not merely intimate, an argument”). Because the State took no

position below, its decision to become an advocate for Mr. Holiday’s conflicted

CJA Counsel, under the guise of opposing a stay, is improper.

B. The State’s arguments regarding the merits of the appeal are

unavailing.

A series of recent Supreme Court cases emphasizes that, under federal law,

indigent capital defendants are entitled to appointed counsel to represent them in a

wide variety of circumstances—including applications for executive clemency and

in pursuing “all available post-conviction process[.]” 18 U.S.C. § 3599(e).

McFarland expressly recognizes that the right to § 3599 counsel necessarily

includes the right to counsel to conduct meaningful research and client-specific

investigations. 512 U.S. at 855, 858. Christeson expressly recognizes that the

right to § 3599 counsel necessarily means the right to conflict-free counsel: “Even



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if” a capital defendant has appointed counsel “who were actively representing him

in some matters,” that is not enough. 135 S. Ct. at 895. If “their conflict prevented

them from representing him in this particular matter[,]” he is entitled to a

substitution. Id . When the conflict surfaced, CJA Counsel were not “actively

representing” Holiday in any respect; and their conflict prevented them from

representing him in the particular matter for which he sought appointment of

substitute counsel. Id.

1.

The State’s mootness argument is factually incorrect.

Mr. Holiday’s Opening Brief indicates grounds for relief still available to

him: both unexhausted claims for a second (not successive) federal habeas petition

and clemency.

a.

Mr. Holiday has habeas claims that his CJA Counsel

preserved but failed to pursue.

Mr. Holiday has ripe, preserved claims about the constitutionality of Texas’s

clemency process as applied to him.

In 2012, during habeas proceedings, the district court dismissed two of Mr.

Holiday’s claims without prejudice since they were “not yet ripe for adjudication”

because Holiday did “not [then] have an execution date[.]” ROA.15-70035.786.

Counsel had pled that Texas’s clemency proceedings were so biased that they were

“a sham.” “Sham” clemency proceedings are, as CJA Counsel noted in the

amended habeas petition, subject to judicial review. See Ohio Adult Parole Auth.



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v. Woodard , 523 U.S. 272, 289 (1998) (O’Connor, J., concurring). In light of the

district court’s dismissal without prejudice, CJA Counsel could have raised the

claim in state habeas proceedings. Harbison, 556 U.S. at 190 n.7 (“Pursuant to

§ 3599(e)’s provision that counsel may represent her client in ‘other appropriate

motions and procedures,’ a district court may determine on a case-by-case basis

that it is appropriate for federal counsel to exhaust a claim in the course of her

federal habeas representation.”). If unsuccessful in state court, CJA Counsel could

then have raised the clemency claim in a second-in-time federal petition. A new

federal petition challenging the constitutionality of Texas’s clemency proceedings

as applied to Mr. Holiday would not be a successive petition under 28 U.S.C. §

2244(b). See Panetti v. Quarterman, 127 S. Ct. 2842 (2007).

Therefore, in September 2015, when CJA Counsel opposed their client’s pro

se motion seeking substitute counsel, the challenges to the clemency proceedings

had become—and remain—ripe.

The record does not indicate why CJA Counsel failed to pursue these now-

ripe claims they had raised in Mr. Holiday’s habeas petition approximately four

years ago so as to preserve them. CJA Counsel, along with the State, now argue

that Mr. Holiday has no claims of any kind or, if he does, they are meritless. As

explained above, they are wrong in the first instance; and if the alternative

argument is to be accepted, that means CJA Counsel believe that federal tax dollars



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were properly spent to pay them to raise new, unexhausted claims they nonetheless

viewed as meritless from the outset. Such a position is wholly inappropriate. That

the State is clinging to this kind of “strange bedfellow” in its haste to see Mr.

Holiday executed is even more unseemly.

b.

Mr. Holiday’s habeas claim is distinguishable from those

this Court has previously rejected.

The State further contends that any challenge to Texas’s clemency

proceedings would be meritless by recourse to Tamayo v. Perry, 553 F. App’x 395

(5th Cir. 2014). Tamayo, however, did not involve the same issue Mr. Holiday’s

case presents. Tamayo involved a section-1983 facial challenge to Texas’s

clemency procedures. See id. at 397.2 By contrast, the issue here is an as-applied

challenge that implicates the most basic due-process right: the right to a neutral

decision-maker. See, e.g., Hamdi v. Rumsfeld , 542 U.S. 507, 509 (2004) (holding

that even those being held as an “enemy combatant” must “be given a meaningful

opportunity to contest the factual basis for that detention before a neutral

decisionmaker.”). Under Texas law, the ultimate decision-maker with respect to

clemency is Governor Greg Abbott; yet Governor Abbott, the former Attorney

General, represented the State in litigating against Mr. Holiday during his habeas

2 The Court was not sure if Tamayo also intended to bring an as-applied challenge, but

concluded that his argument lacked any facts specific to him and instead reflected the samechallenge to Texas’s proceedings that had been previously made and rejected in Faulder v. Tex.

Bd. of Pardons and Paroles, 178 F.3d 343 (5th Cir. 1999). See Tamayo, 553 F. App’x at 402.



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proceedings. ROA.15-70035.243. This conflict suggests that Mr. Holiday, at the

very least, has a good-faith basis for arguing that Texas’s clemency procedures, as

applied to him, are unconstitutional.

In Woodard , Justice O’Connor observed that a clemency “scheme whereby a

state official flipped a coin to determine whether to grant clemency, or in a case

where the State arbitrarily denied a prisoner any access to its clemency process”

might not withstand judicial scrutiny. 523 U.S. at 289 (1998) (O’Connor, J.,

concurring). In Mr. Holiday’s situation, the State’s scheme essentially involves a

state official flipping a coin that has the same face on both sides and then permits

that same state official to call the coin toss for his “side.” In other words, the facts

here give rise to a legitimate, ripe challenge to Texas’s clemency procedure that is

distinct from the claim made in Tamayo.3

2.

The State’s attack is at odds with the core rationale of

McFarland .

As explained above, the State waived its right to take a position with respect

to the issue of representation raised by this appeal. Moreover, in weighing in now,

the State misconstrues the key authority animating this appeal: McFarland v.

Scott . In McFarland , the Supreme Court made clear that courts should not put the

3 The State also cites Bible v. Stephens, 2014 WL 5500722 (5th Cir. Oct. 30, 2014), which is also

distinguishable because (1) no execution date had yet been set in that case, so this Court found

“any harm from the alleged defects in Texas’ clemency process” was not yet ripe; and (2) indicta the Court suggested that the facial challenge was the same as that raised in Tamayo and

Faulder and thus did not seem promising. Id. at *11-*12.



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cart before the horse where the issue is the right to substitute counsel, as it is here.

Specifically, Mr. Holiday is not obligated under controlling law to identify the

specific bases upon which he would prevail in obtaining relief, although he has

provided the essential parameters. Quite sensibly, the Supreme Court concluded

that an unrepresented prisoner should not be required to “proceed without counsel

in order to obtain counsel.” McFarland , 512 U.S. at 856.

This rationale was developed further in Christeson, decided last term in a

context markedly similar to the one presented here. Christeson had appointed

counsel who developed a conflict of interest with their client. 135 S. Ct. at 892-93.

After initially seeking guidance from outside counsel who were working for

Christeson pro bono, his appointed counsel soon became antagonistic toward the

volunteer lawyer once it became clear that appointed counsel’s nonfeasance had

potentially jeopardized their client’s interests. Id. at 893. Christeson’s pro bono

counsel then filed a series of motions to substitute counsel, which his appointed

counsel resisted; and the district court denied the motions for similar reasons as

those offered below—particularly, the district court’s view that appointed counsel

had not entirely abandoned the client because appointed counsel had continued to

do some work for him and the court was concerned about “‘abusive’ delays in

capital cases.” Id . The Supreme Court granted a stay and rejected the district

court’s reasoning, finding that the interests of justice compel appointment of “new



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counsel if the first lawyer develop[s] a conflict.” Id. at 895 (quoting Clair , 132 S.

Ct. at 1286).

3.

The clemency application that CJA Counsel hastily assembled

is a sham.

As explained in his Opening Brief, Mr. Holiday’s appeal is not moot. Mr.

Holiday did not have conflict-free counsel to pursue clemency on his behalf. The

putative clemency application that CJA Counsel threw together in 48 hours was

solely a self-interested face-saving measure. See TAB C. The sham application

was not prepared to serve Mr. Holiday’s interests and was undertaken without his

knowledge.4

The bad faith with which the sham clemency application was prepared is

evident on the document’s face. For instance, on the first page, CJA Counsel twice

misreport Mr. Holiday’s execution date as “February 18, 2015”—a date that

passed seven months ago. See id. at 1. Most of the sham clemency application

focuses on the gruesome details of the crime, quoting virtually verbatim the factual

recitation found initially in a Texas Court of Criminal Appeals’ decision and then

in the district court’s decision denying Mr. Holiday’s federal habeas petition.

Compare id. at 2-5 with Holiday v. Stephens, 2013 WL 3480384, *1-*2 (S.D. Tex.

4 CJA Counsel’s decision to reverse course and throw together the sham clemency petition

without Mr. Holiday’s input implicates additional ethical concerns. See Ex Parte Mendoza, No.WR-76,979-02 (Nov. 4, 2015) (Unpubl.) (admonishing appointed counsel for filing a pleading

that was not authorized by his client and directing that a copy of the order “shall be sent to the

Office of the Chief Disciplinary Counsel of the State Bar of Texas.”).



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July 10, 2013) (quoting Holiday v. State, Nos. AP–74,446, AP–74,447, AP–74,448

at 2–5 (Tex. Crim. App. Feb. 8, 2006)). This same material—that no rational

person could suggest was prepared to evoke an executive’s sense of mercy—is

quoted yet again in full in the State’s brief to this Court. See Opp. at 6-10. Only in

affidavits, prepared years ago for other proceedings, can one find descriptions of

the horrific abuse to which Mr. Holiday was subjected throughout his childhood.

See id. The sham application’s superficial bulk is created by required attachments,

ten-year-old affidavits, and an academic article that has nothing to do with Mr.

Holiday or his quest for clemency.

Worst of all, the sham application ends with a cursory statement that “It is

not possible to address the impact of this crime on the family of the children killed.

Neither Raphael nor his attorneys have had any communication with them.” Id. at

21. One victim of the crime is the grandmother of the children, Angela Nickerson,

who is also Mr. Holiday’s mother. CJA Counsel have been in communication with

her—prompting pointed anguish over their refusal to pursue clemency for her son

and then their eleventh-hour attempt to manufacture the appearance of a clemency

application solely because, in their words, “[a] lawyer from Austin intervened.”

See Opening Brief, TAB 4. Mrs. Nickerson is part of the larger untold story of

extreme poverty, degradation, and virtual torture that characterized Mr. Holiday’s

childhood and that culminated in his responsibility for a devastating crime 15 years



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ago when he was 20 years old. That story has not been investigated let alone

told—nor has the story of his transformation during years spent in prison haunted

by the spirits of three lost innocents.

The State’s speculation as to whether Mr. Holiday has any hope of evoking

mercy from the executive branch demonstrates a fundamental lack of

understanding of the unique role clemency plays in our criminal justice system.

Clemency does not involve presenting “grounds” in the form of legal arguments.

See Wood v. Thaler , 2009 WL 3756847, *6 (W.D. Tex. Nov. 6, 2009) (noting

“clemency is not a forum in which to relitigate issues that have already been

considered extensively and thoroughly” by courts); see also 37 TEX. ADMIN. CODE

§ 143.42(8) (providing an inmate “shall not call upon the board to decide technical

questions of law which are properly presented via the judicial process.”). As

explained at length in the Opening Brief, clemency involves “an act of grace” and

proceeds “from the power entrusted with the execution of the laws, which exempts

the individual, on whom it is bestowed, from the punishment the law inflicts for a

crime he has committed.” United States v. Wilson, 32 U.S. (7 Pet.) 150 (1833). It

“allow[s] the executive to consider a wide range of factors not comprehended by

earlier judicial proceedings and sentencing determinations.” Woodward , 523 U.S.

at 280-81 (Rehnquist, C.J., concurring).



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Death-sentenced indigents are entitled to appointed counsel who are not

conflicted by self-interest and thus will zealously pursue clemency proceedings

and all other available post-conviction relief on the client’s behalf.5 The sham

application that CJA Counsel threw together reflects no more than a desire to save

face before a district court that had appointed them and then stood behind them

even when the record reflected that doing so did not comport with the interests of

justice.

C.

The State is wrong with respect to Mr. Holiday’s burden before thedistrict court and on appeal.

The State is also incorrect that Mr. Holiday’s request for appointment of

substitute counsel was properly denied because neither he nor his pro bono counsel

had lined up a specific qualified CJA counsel to accept an appointment. See Opp.

at 2, 25. As a practical matter, neither Mr. Holiday nor his volunteer lawyer has

access to the list of qualified lawyers maintained by the Southern District of Texas

who are willing to accept appointments. More importantly, the fact that Mr.

Holiday did not name a specific alternative to Messrs. Kretzer and Volberding is

not relevant to the analysis under Clair and Christeson. See Opening Brief at 23-

33 (demonstrating how all Clair factors weighed entirely in favor of granting Mr.

5 See, e.g., Mosley v. Quarterman, 325 F. App’x 394 (5th Cir. May 22, 2009) (vacating denial of

compensation for clemency proceedings and remanding for further consideration in light of Harbison); Rosales v. Quarterman, 565 F.3d 308 (5th Cir. 2009) (noting Harbison authorizes

counsel pursuant to 18 U.S.C. § 3599 for available clemency proceedings).



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Holiday’s motion to substitute counsel and how the district court failed to apply

them). Additionally, as the Supreme Court noted in Christeson, “the statute leaves

it to the court to select a properly qualified attorney.” 135 S. Ct. at 894 (citing §§

3599(a)-(d) (emphasis added)). And “the statute contemplates that a court may

‘replace’ appointed counsel with ‘similarly qualified counsel … upon motion’ of

the petitioner.” Id. (citing § 3599(e) (emphasis added). Neither the statute nor

Supreme Court precedent condition an indigent capital defendant’s right to

replacement counsel on a requirement that he or a volunteer lawyer identify a

specific lawyer who is qualified and prepared to step in. See id. at 893-96

(granting relief to an indigent capital defendant who sought appointment of

substitute CJA counsel following an appeal brought by a volunteer lawyer).

III. The State Fundamentally Misunderstands the Concept of Standing.

The State also devotes a great deal of its Opposition to arguing that Mr.

Holiday’s pro bono counsel has “no standing” to represent him before this Court.

The State is mistaken. Standing is not a concept that applies to attorneys, but to

parties with respect to the specific claims they have brought to a court. See Warth

v. Seldin, 422 U.S. 490, 498 (1975) (“In essence the question of standing is

whether the litigant is entitled to have the court decide the merits of the dispute or

of particular issues.”) (emphasis added). Mr. Holiday obviously has standing to

appeal the district court’s denial of his motion to substitute counsel. He also has a



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right to retain counsel to represent him in pursuing this appeal. As noted in Mr.

Holiday’s Opening Brief and in his Motion to Strike, Mr. Holiday’s CJA Counsel

cannot represent him in this proceeding because they were directly adverse to him

below—and continue to be adverse to him here, as evidenced by their attempt to

dismiss this appeal and to align themselves with Mr. Holiday’s adversary, the

State. See ROA.15-70035.848; ROA.15-70035.850-.851; ROA.15-70035.924;

ROA.15-70035.857; ROA.15-70035.960-.961; ROA.15-70035.965; see also CJA

Counsel’s Motion to Dismiss Appeal.

CJA Counsel may not represent Mr. Holiday with respect to the issue

presented on appeal, not because they lack “standing,” but because they are

conflicted. As the Supreme Court recently held, counsel “cannot reasonably be

expected to” “denigrate their own performance” so as to advance their client’s

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

reputation and livelihood.” Christeson, 135 S. Ct. at 894 (citing the Restatement

(Third) of Law Governing Lawyers § 125 (1998)). “A ‘significant conflict of

interest’ arises when an attorney’s ‘interest in avoiding damage to [his] own

reputation’ is at odds with his client’s ‘strongest argument.’” Id . (quoting Maples

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

Conduct 1.06 (“a lawyer shall not represent a person if the representation of that

person: (1) involves a substantially related matter in which that person’s interests



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

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

the lawyer’s or law firm’s responsibilities to another client or to a third person or

by the lawyer’s or law firm’s own interests.”); see also ABA Model Rule of

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

representation involves a concurrent conflict of interest.”).

The State confuses “standing,” a threshold justiciability issue, with

“authority,” arguing that undersigned counsel cannot serve as Mr. Holiday’s

appellate counsel because he already has appointed counsel. The State goes so far

as to characterize undersigned’s appearance on Mr. Holiday’s behalf as

“unlawful.” See Opp. at 19. Neither the State nor CJA Counsel, with whom the

State is now aligned, has offered any basis for their assertion that a death-

sentenced indigent, unlike other individuals, may not retain a volunteer lawyer

once he has nominal appointed counsel. If undersigned counsel’s appearance is

“unlawful,” then this Court will need to explain why the Supreme Court allowed

pro bono counsel to represent Christeson last term before the nation’s highest court

on a similar § 3599 issue although Christeson still had CJA counsel at the time—

whose conflicts were the subject of the appeal, as is the case here.6

6 See Supreme Court’s docket for Christeson v. Roper , No. 14-6973, available at

http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/14-6873.htm , demonstrating

that Mr. Christeson was represented before the Court by pro bono counsel Jennifer Merrigan of

Saint Louis University School of Law although he had appointed counsel, whom the Supreme



22/178

21

In short, the doctrine of standing has nothing to do with whether undersigned

counsel may represent Mr. Holiday. The entity that lacks standing with respect to

the merits of this appeal is the State, which took no position on the issue below

because the State sustains no cognizable injury if Mr. Holiday is appointed

conflict-free counsel.

Likewise, the State’s “next friend” analysis is utterly inapplicable to this

situation. As the Court well knows, “next friend” status is a means whereby a third

party can serve as a party on behalf of another who cannot do so as a matter of

law—as when a parent represents a minor in a personal injury case. See, e.g., In

Re Bridgestone Americas Tire Operations, LLC , 387 S.W.3d 840 (Tex. 2012) ( per

curiam) (discussing the scope of “next friend” status under Texas law). Mr.

Holiday’s “competence” to act on his own behalf is not at issue here. And he did

act.7 He retained undersigned counsel to serve as his representative in preserving

and pursuing his right to conflict-free substitute counsel under § 3599. See TAB A.

Lawyers qua lawyers are not acting as a party’s “next friend” when they

represent them in litigation. A lawyer serves as a client’s agent, not “next friend.”

Court decided “could not be expected to argue that Christeson was entitled to” equitable relief

where Christeson, like Mr. Holiday, had filed a pro se motion seeking substitute, conflict-freecounsel. 135 S. Ct. at 891.

7 As explained in Mr. Holiday’s Opening Brief, he sought pro bono counsel at the express

direction of his appointed counsel; they urged him to look for pro bono counsel elsewhere in thesame June 30

th letter in which they announced that they would no longer do any work for him.

ROA.15-70035.949-.950.



23/178

22

Indeed, a lawyer is a fiduciary bound by certain ethical responsibilities, such as the

obligation not to continue to represent a client once asked to withdraw or when a

direct conflict of interest with the client has arisen. Those rules are not suspended

simply because a lawyer has been appointed to represent a client who has been

sentenced to death.

A lawyer whom a client has authorized to represent him has authority and,

indeed, an obligation to advocate for that person. The State’s suggestion that

undersigned counsel’s role in this appeal is somehow “improper” and even

“unlawful” is not only incorrect but intemperate. See Opp. at 19. That argument

has no bearing on the legitimate basis for entering a § 2251 stay based on the

circumstances and arguments developed in Mr. Holiday’s Opening Brief.

CONCLUSION AND PRAYER FOR RELIEF

For the foregoing reasons, Mr. Holiday respectfully asks that the Court grant

the Motion for Stay of Execution filed with his Opening Brief so that the relief

sought through this appeal is not meaningless. Further, Mr. Holiday respectfully

asks that the Court award any other relief to which he shows himself justly entitled.



24/178

23

Respectfully submitted,

BECK R EDDEN LLP

By: /s/ Gretchen Sims SweenGretchen Sims Sween

515 Congress Avenue, Suite 1900

Austin, TX 78701

Telephone: (512) 708.1000

Facsimile: (512) 708.1002

Pro Bono Counsel for Petitioner-

Appellant Raphael Holiday



25/178

24

CERTIFICATE OF COMPLIANCE

I hereby certify that this filing complies with the ECF filing standards and

Federal Rule of Civil Procedure 32(a)(7)(b), in that the non-exempt portions of this

brief contain 5,444 words and the brief is prepared in Microsoft Word 2007 Times

New Roman 14-point font.

CERTIFICATE OF SERVICE

I hereby certify that on November 10, 2015, I electronically transmitted this

Reply to Respondent-Appellee’s Opposition to Stay to the Clerk of the Court using

the Court’s ECF System. I further certify that counsel of record for Respondent-

Appellee are being served with a copy of this Reply by electronic means via the

Court’s ECF system, as follows:

Ellen Stewart-Klein

Office of Attorney General

Capitol Station

P.O. Box 12548

Austin, TX 78711-2548

C ounsel for Respondent-Appellee William Stephens

I further certify that, on this same day, I transmitted a copy of this pleading

to Raphael Holiday at the Polunsky Unit by express mail.

/s/ Gretchen Sims Sween

Gretchen Sims Sween



26/178

TAB ALetter of Representation dated October 19, 2015



27/178

BeckI

edden

515

Congress

Avenue Suite 1900

I

Austin

TX

78701

Phone

512.708.1000 I

Fax

512.708.1002

www beckredden com

[email protected]

October

19, 2015

Re: Holiday v. Stephens, Civil Action No

4:11-CV-1696

Rafael Holiday

Polunsky

Unit

3872 FM 350

South

Livingston,

TX

77351

c/o Richard

Burr

via email: [email protected]

Dear

Mr

Holiday:

Thank you for the

opportunity

to represent

you

as per discussions regarding your

case with Richard Burr

that you

initiated. This letter describes

the

terms

and scope

of the

representation

that

I will

provide

you

through

my law

finn

Beck

Redden LLP

(the Firm ).

I realize that this must be a very difficult time for you,

but

having a letter like this one will

help ensure

that

we have the same understanding

about the

services I will provide.

Most of

these terms are standard

in

agreements regarding

pro ono

representation

or n

engagement

letters generally.

Scope

of

Represenration.

Through

the

Firm, I

will

represent you

in

an appeal to

the

Fifth Circuit

Court of

Appeals

of

the district court's

Order

denying your request

to

have

substitute counsel appointed to represent you

under

18 U.S.C.

§

3599 in clemency proceedings

and, if necessary, to the United States Supreme Court. In connection with these proceedings, I

will

seek a stay of your execution scheduled for

November

18, 2015.

f

relief is granted, I

will

withdraw from the representation upon ensuring that you have counsel to represent you in

seeking clemency.

We

agree to provide you with updates relating to this representation.

Legal Fees. We will be providing legal services on a pro

ono

basis, which means no

fees will

be

charged for

my

services as an attorney. I will have primary responsibility for this

engagement.

Expenses. I will

do

my

best t ?

avoid incurring any expenses

beyond

basic copying,

postage,

and

filing fees. You

will

not be billed for these expenses.

Tennination

Either

you, as the client,·

or

my

Firm

may terminate

the

engagement

upon

written notice for any reason.



28/178

Authorization. You specifically authorize me to communicate with your current

counsel, Seth Kretzer and James Volberding, with the court and its personnel as necessary to

enforce your right to seek counsel willing

to

represent you

in

seeking clemency.

Work Product. All

of

the Finn s work product

will

be owned by the Finn. But in the

event of any termination of the engagement or the Firm s withdrawal, you will be promptly

furnished copies

of

papers relevant to the proceedings for which the Pinn was engaged

including copies

of

the Finn s work product

State Bar Notice. The State Bar of Texas requires that we advise you that the State

Bar investigates and prosecutes professional misconduct committed by Texas attorneys.

Although not every complaint against or dispute with a lawyer involves professional

misconduct, the State Bar s Office of General Counsel

will

provide you with information

about how to file a complaint. Please call 1-800-932-1900 for more information.

f

you need to reach me regarding this matter, please feel free to write to me at the

address above.

f

you agree to the engagement on the terms described here, please sign

below. Keep one copy for you and give the other copy to

Mr

Burr to send back to me

look forward to doing all can to assist you with this appeal.

have read this letter and agree to the terms after discussing the scope

of

the limited

representation you will provide with

Mr

Burr:



29/178

TAB BE-mail exchange between counsel



30/178

1

Melissa Patak

From: Gretchen SweenSent: Tuesday, November 10, 2015 11:31 AMTo: Melissa PatakSubject: FW: Raphael Holiday

Attachments: image001.jpg

‐‐‐‐‐Original Message‐‐‐‐‐

From: Stewart‐Klein, Ellen [mailto:Ellen.Stewart‐[email protected]]

Sent: Thursday, October 22, 2015 9:23 AM

To: Gretchen Sween

Subject: RE: Raphael Holiday

I am out of the office today. As I explained to counsel yesterday the State takes no position

on matters of representation.

_______________________________________

From: Gretchen Sween [gswebeckredden.com]

Sent: Thursday,

October

22,

2015

9:16

AM

To: Stewart‐Klein, Ellen

Subject: Raphael Holiday

Good morning, Ms. Stewart‐Klein. As you have likely observed, I have noticed an appeal of the

order denying Mr. Holiday’s request for substitute counsel. I am now preparing a response to

the motion his appointed CJA counsel filed last night. I am hoping you might give me a call

so that I may quickly apprise you of my perspective on this matter and discharge my

obligation to confer before I file my response.

Thank you in advance,

Gretchen

S.

Sween

Of Counsel

[cid:1AF66CB2‐433F‐47E3‐BC66‐[email protected]]

515 Congress Avenue, Suite 1900

Austin, TX 78701

Phone 512.900.3217

Fax 512.708.1002

[email protected]

http://cp.mcafee.com/d/FZsScCQm67TQShPP1KVJ6WqbVEVvusudETjhvd7bVEVhudETjhvd7bXPxEVdETjjvohpsp

dAq6f‐0a8voH7Q4fxOVIxZyIvgg‐

7bCNP2bHOrz_nVwsYzRXBQSkPhPOdT7SemKDp55mWqfaxVZicHs3jq9JcTsTsSkUxZyIvgg‐

7bCRECq73CrKcLLcKDuuvYeFfP6NCnaD_a0aDUvJdDeIoum8_3UWvN6FASUesodwIqid40bRoDLDCy0bRfAxFoQg6QXCV1gRXgui

*********************************************************************************************

*******************************************************************************************

CONFIDENTIALITY NOTICE: Unless otherwise indicated or obvious from the nature of the

transmittal, the information contained in this e‐mail message is attorney privileged and



31/178

2

confidential information intended for the use of the individual or entity named above. If the

reader of this message is not the intended recipient, or the employee or agent responsible to

deliver it to the intended recipient, you are hereby notified that any dissemination,

distribution or copying of this communication is strictly prohibited. If you have received

this communication in error, immediately notify the sender by telephone at 713.951.3700 and

return the original message to Beck Redden LLP at

[email protected]. Thank you.

*********************************************************************************************

*******************************************************************************************



32/178

TAB CCJA Counsel’s Facially Inadequate Application for

Commutation of Sentence, or Alternatively, Reprieve from

Execution of Death Sentence



33/178

TO THE TEXAS BOARD OF PARDONS AND P ROLES

AUSTIN, TEXAS

IN THE MATTER OF

RAPHAEL HOLIDAY,

Petitioner.

RAPHAEL HOLIDAY S APPLICATION FOR COMMUTATION

OF SENTENCE,

OR

ALTERNATIVELY, REPRIEVE FROM

EXECUTION OF DEATH SENTENCE

TO THE HONORABLE TEXAS BOARD OF PARDONS ND PAROLES:

RAPHAEL HOLIDAY, a Texas death row inmate, currently scheduled for

execution February 18, 2015, at 6 p.m., respectfully submits this, his application for

commutation of sentence, or alternatively, reprieve from execution ofhis death sentence.

I

PPLIC NT INFORMATION

Applicant:

Inmate Number:

Location:

Attorney:

Scheduled Execution:

Required Documents:

n

the Matter

o

Raphael Holiday

pplication for Reprieve

o

Execution of Death

Puge I

Raphael Holiday

999419

Polunsky Unit, Death Row

Mr. Seth Kretzer

Contact information below

February 18, 2015, 6 p.m., CST

Copy of indictments

Copy of udgment

Execution Order

Attachment 1

Attachment 2

Attachment 3



34/178

Jury verdict, guilt

Jury verdict, death

Attachment 4

Attachment 5

REQUEST

FOR

INTERVIEW

WITH MEM ER OF

THE BOARD

Pursuant to Texas Administrative Code § 143.43(d), Mr. Holiday s attorney

respectfully requests the opportunity to discuss this application with one of the members

of the Board

of

Pardons and Paroles. Mr. Kretzer s cell phone

is

(713) 775-3050. He is

available to meet at the Polunsky Unit with Mr. Holiday at any time.

III

STATEMENT OF THE OFFENSE

The testimony at trial is briefly summarized

as

follows:

Holiday and Tammy Wilkerson formed a romantic relationship in mid-1996 or

1997. Prior

to

the relationship, Wilkerson had already birthed two daughters, Tierra

Shinea Lynch and Jasmine Rockell DuPaul,

by

two different fathers. During the

relationship with Holiday, Wilkerson gave birth to Holiday s daughter, Justice Holiday.

The family couple moved to Plantersville in 1998, and then moved to Madison

County, where they lived in a residence owned

by

Wilkerson s parents, Beverly and

Louis Mitchell. The residence was located approximately a mile from the Mitchells own

home in a rural area.

In March 2000, Holiday was charged with aggravated sexual assault of Tierra, and

was excluded from Wilkerson s residence

by

a protective order. Nevertheless, Holiday

and Wilkerson saw each other on several occasions, and sometimes engaged in sexual

relations on several instances between March 2000 and September 5 2000. They also

maintained daily phone contact. Although Wilkerson later claimed during the trial

of

this

case that she was coerced into continuing her relationship with Holiday, Wilkerson never

notified the authorities regarding the alleged violations

of

the protective order. In August

2000, Holiday was arrested for violation

of a protective order after attempting to see her

at her place of employment. Nevertheless, the relationship between Wilkerson and

Holiday continued after his release from jail.

n

the Matter ofRaphael Holiday

Application

for

Commutation

or

alternatively Reprieve ofExecution ofDeath

Page



35/178

On the day of the incident, Holiday drove to Wilkerson s house in the late evening

with two friends, Robert Lowery and John White, got out of the car and sent his friends

away. When he got out

of

the car, Holiday took with him a pistol, a can

of

gasoline, and a

screwdriver.

After Holiday s friends left, Wilkerson became alarmed after seeing a figure at the

window and called her parents. Wilkerson s mother, Beverly Mitchell, and Mitchell s

brother, Terry Keller, arrived at Wilkerson s residence. Keller was armed with a shotgun.

As they were placing the girls in the car, Holiday appeared in the house. Wilkerson

immediately left through the backdoor of her house to call for help, leaving her mother,

uncle and children with Holiday. Holiday compelled Keller to put down the shotgun.

Holiday started to pour gasoline from the can he had brought on the ground and on

Wilkerson s car. He attempted to light the gasoline, but it would not ignite. Holiday then

directed Mitchell and Keller to bring the girls inside the house and sit on the sofa.

Holiday and Mitchell left in Mitchell s car to go to her house, leaving Keller alone in the

house with the three girls. At this point, Keller left the house - and the girls - to seek

help.

On arriving at Mitchell s house, Holiday and Mitchell retrieved two five-gallon

containers of gasoline and returned to the Wilkerson s residence. Holiday directed

Mitchell to pour gasoline through the residence, allegedly starting at some recliners in the

living room -kitchen area of the residence and moving throughout the house into the

washroom and bedroom. While in the bedroom, Mitchell testified that she heard one of

her grandchildren call her name and she looked into the living room. Mitchell stated that

she saw Holiday bend down toward the floor, and then she saw a fire start and move

through the room. Mitchell escaped through a window in the back bedroom; Holiday

escaped through the front door. The girls, who had been sitting on the couch when the

fire started, did not escape.

Outside, Holiday took Mitchell s car and started to drive away. As he was driving

away, he collided with a car driven by Madison County heriffs Deputy Ivan Linebaugh.

Holiday and Linebaugh engaged in a high speed, multi-agency car chase until Holiday s

car crashed and caught fire.

After Holiday was removed from the car and taken into custody, police and

medical personnel observed that Holiday was burned on his hands, fingers, arms, and

neck. A forensic pathologist who reviewed the photographs taken of Holiday s bum

n

the Matter o Raphael Holiday

Application

or

Reprieve

o

Execution

o

Death

Page



36/178

injuries opined that the bums were consistent with a person being burned by a flash

after bending and reaching down as i to light an floor-level accelerant.

A forensic analysis

o

the debris recovered from the Wilkerson residence and from

the person o Holiday and Mitchell revealed the presence o gasoline on debris collected

from

the laundry room, the kitchen and Holiday's tennis shoes. The results were negative

for gasoline on Holiday's shirt and pants, Mitchell's nightshirt and pants, clothing from

one

o

the decedents, debris under the couch on which the decedents had been sitting, and

on

two cigarette lighters taken from Holiday after his arrest.

Wilkerson's father, Louis Mitchell, testified that the residence had a propane gas

stove in which the pilot light was ignited, and a Dearborn heater on which the pilot light

had been turned off. The house also had several electric utilities, the refrigerator, water

heater, washer and dryer, and three air conditioners, all

o

which were in working order.

The State presented testimony regarding the causation

o

the fire by John DeHaan,

a fire/arson investigator, and president o Forensic Scientists, Inc., from Viejo, California.

DeHaan opined that the only scientifically supportable basis for causation o the fire was

Holiday's having ignited the fire. DeHaan excluded as possible bases for the fire's

causation the stove pilot light, the refrigerator, the air conditioner units, the water heater,

and the floor heater.

The defense expert, Judd Clayton, presented the defense's theory o ignition that

the fire could have started from the water heater located in the bathroom, an electrical

spark the refrigerator, the window mounted air conditioner units, or the pilot lights

on

the

stove top. Although Clayton agreed with DeHaan that the broiler pilot light could not

have been a possible ignition source, his reasons differed from DeHaan; DeHaan

identified the broiler pilot light

s

a continuously burning gas pilot but concluded that the

broiler pilot could not reasonably have ignited the gas vapors because the light was

placed too high from the vapors, the light was placed in a compartment which retarded

the entrance

o

the fumes, and that there had been no resulting explosion. Clayton

excluded the broiler as a possible ignition source because he believed it to be an electrical

ignition system.

The jury found Holiday guilty

o

capital murder as alleged in each

o

the three

indictments.

At the punishment phase o trial, the State presented evidence that in addition to

the facts leading

up

and involved in the incident ultimately leading to the fire in the

n

the Matter

o

Raphael Holiday

Application for Commutation

or

alternatively Reprieve o Execution

o

Death

Page 4



37/178

Wilkerson residence, Holiday had previously sexually assaulted his maternal aunt and a

cousin, and struck his mother in an argument when he was

5

years

o

age before leaving

home. A forensic psychiatrist testified on behalf

o

the State, asserting that based on a

hypothetical set

o

facts relating to Holiday, that Holiday had an anti-social personality

disorder, and that he was likely to constitute a future danger o violent conduct.

The defense presented several witnesses who testified that Holiday had

experienced a normal, uneventful and Church-going childhood, that he had been

respectful to others, that he had been proud o his (deceased) daughter, and had adjusted

well to incarceration. A forensic psychiatrist testified for the defense that Holiday s

profile on a personality test, the MMPI revealed that he had suffered from depression and

had poor internal mechanisms for coping with stress and frustration.

The jury answered the future dangerousness question in the affirmative, and

answered the mitigation question in the negative, resulting in the imposition

o

a sentence

o death.

Affidavit

o

Janette

Wilkerson

Conroe ISD application

for residence in district

Affidavit o Majorie

Minor

Affidavit o Michael

Blackshear

Affidavit

o

Eric

Nickerson

Angella Diane

Nickerson

n the Matter ofRaphael Holiday

Raphael s brother. Abuse and injuries by

arents. Severe ove

She was 5 when Raphael was born, the

product o a rape when she was 14. She

verifies abuse

o

Raphael and dysfunctional

brin in .

pplication

for

Reprieve

of

Execution

o

Death

Page

6

7

8

9

1



38/178

Affidavit

of

Gerald

Hurst, Ph.D.

Second affidavit

of

Gerald Hurst, Ph.D.

ATF Investigation

Report

Affidavit ofGerald

Bierbaum

Letter from Gerald

Bierbaum

Affidavit ofGerald L

Byington

Testimony ofPrison

Chaplain Rev. Carol

Pickett

Testimony ofLouis

Mitchell

Testimony ofBeverly

Mitchell

In the Matter ofRaphael Holiday

Forensic fire expert hired by defense. The fire

investigation presented at Raphael's trial

overstated causation. In his opinion, it is

reasonably possible the fuel was ignited by an

existin broiler ilot

i

ht, not b a hael.

The Ph.D. dissertation

of

the State's fire expert 2

at trial contradicts the methodology and

o inions the ex ert told 'urors at trial.

An ATF fire expert named Special Agent 3

Opperman investigated the fire. S/A

Opperman was asked to assist in determining

the cause

of

the ignitition

of

the gasoline

fumes. Opperman advised the DA that the

piloted natural gas stove and other appliances

in the area could not be ruled out as ignition

sources.

Defense private investigator. There is evidence 4

that Holiday may suffer organic brain damage

as

the result of in· uries sustained

as

a child.

Description ofRaphael's dysfunctional 5

upbringing and family. Raphael has positive

characteristics and did some good things given

his limited intelli ence.

Defense mitigation investigator. Raphael's

6

court appointed trial lawyers should have told

·urors about his abuse as a child.

Description of execution and her role in

7

counseling.

Family friend. Problems in Raphael and 8

Tami's relationship, illustrating emotional

mindset ofRaphael and sources of his

emotional stress.

Same. 9


or

alternativ ly Reprieve

o f

Execution

o f

Death

Page 6



39/178

Law review article by

distinguished scholar

Gretchen Sween,

Adjunct Professor at

U.T. Law School

IV

STATEMENT

OF

APPELLATE

HISTORY

OF

C SE

AND CURRENT STATUS

A.

Course

of

Proceedings

and

Disposition in State

Court

20

Holiday was indicted for capital murder

in

the 278th District Court of Madison

County, Texas, and tried in consolidated cause numbers 10,423, 10,425 and 10,427,

styled State o Texas

v

Raphael Deon Holiday. Following a jury verdict in favor

of

the

state, the court imposed a death sentence.

Holiday s conviction and sentence were automatically appealed to the CCA in

cause numbers AP-74,446, AP-74,447 and AP-74,448. The CCA denied the appeal

entirely on February 8 2006.

Holiday v. State

2006 Tex. Crim. App. Unpub. LEXIS 737

(Tex. Crim. App. Feb. 8 2006).

Holiday s motions for rehearing were denied April 26, 2006. Holiday v. State

2006 Tex. Crim. App. LEXIS 848, 849 and 850 (Tex. Crim. App. Apr. 26, 2006).

Holiday timely sought a writ of

certiorari

from the Supreme Court, which denied

his petition November 13 2006. Holiday

v

Texas 549 U.S. 1033, 2006 U.S. LEXIS

8661 (Nov.

13

2006).

Holiday timely sought state habeas relief in an application filed in the same trial

court, and assigned the cause numbers 10,423(A), 10,425(A) and 10,427(A), and styled

Ex parte Raphael Deon Holiday.

The trial court recommended denial of all relief and on May 26, 2009 signed

without any changes findings of fact and conclusions of law written by the local

prosecutors.

In the Matter o Raphael Holiday

Application for Reprieve

o

Execution

o

Death

Page 7



40/178

The CCA denied relief May

5

2010 in a summary order in cause numbers WR-

73,623-01, WR-73,623-02 and WR-73,623-03. See Ex parte Holiday 2010 Tex. Crim.

App. Unpub. LEXIS 262 (Tex. Crim. App. May

5

2010).

B.

Course

of

Proceedings and Disposition in Federal District

Court

Holiday timely sought federal habeas relief. In an opinion dated July 10 2013, the

federal court denied relief and stated that no COA would issue. Holiday

v

Stephens 2013

U.S. Dist. LEXIS 98004.

C. Course of Proceedings in the Fifth Circui t

On November

12

2013, Holiday filed a petition in the Fifth Circuit raising

twenty-eight claims. The Fifth Circuit denied relief on October 1 2014, and denied

Holiday s petition for rehearing on December 29, 2014. Holiday v. Stephens 587 Fed.

Appx. 767 (5th Cir.

1

2014).

D. Course of Proceedings in the Supreme Court

The Supreme Court denied Holiday s petition for writ of certiorari on June 29,

2015 . Holiday v. Stephens 2015 U.S. LEXIS 4316 (U.S., June 29, 2015).

There are no legal actions by Holiday s court appointed lawyers currently pending

before any court. None are planned.

STATEMENT OF LEG L ISSUES RAISED DURING PPE L

The most important legal issues presented by Mr. Holiday during his appeal were

these:

1.

The evidence underlying Holiday s capital murder conviction failed to meet

the sufficiency standard

of

Jackson

v

Virginia.

2. The State violated the Sixth Amendment fair trial jury clause and

Wainwright

v

·Witt 469 U.S. 412 (1985), by granting the State s request to

remove juror Sessions.

3. The State violated Holiday s Sixth Amendment right to confrontation by

In the Matter ofRaphael Holiday

Application

for

Commutation

or

alternatively Reprieve

of

Execution

of

Death

Page



41/178

allowing nurse Jane Riley to relate damaging banned testimonial hearsay by

Tierra Lynch in violation

ofCrawfordv. Washington 541U.S.36

(2004).

4. The State violated the Fifth and Fourteenth Amendment due process Clause

provisions by allowing nurse Jane Riley to relate banned testimonial

hearsay by Tierra Lynch.

5.

The State violated Holiday s right to adequate notice

of

the offense and due

process of law provided by the Fifth and Fourtt .enth Amendment, by

refusing to quash the indictment for: (1) failure to notify the manner and

means that Holiday was alleged to have ignited the fire in an arson case,

and (2) by failing to allege whether the State sought to impose liability by

means of conspiracy or parties law.

6. The State violated Holiday s Sixth Amendment right to be informed

of

the

nature and cause

of

the accusation against him by refusing to quash the

indictment for ( 1

failure to notify

of

the manner and means that Holiday

was alleged to have ignited the fire in an arson case, and (2) by failing to

allege whether the State sought to impose liability by means of conspiracy

or parties law.

7. The State violated the Eighth Amendment by barring Holiday s attorneys

from informing jurors that when answering the special issues that state law

does not require a yes or

no

answer, but will be satisfied if jurors are

unable to reach a verdict on any special issue.

8.

The State violated Holiday s Sixth Amendment right to a fair jury trial by

denying his challenge for cause

of

juror Linda Masters.

9. The State violated Holiday's Sixth Amendment right to a fair jury trial by

denying his challenge for cause ofvenireman Kenny Penny.

10. Holiday asserts ~ r i o u s constitutional due process claims regarding the

impropriety of allowing Dr. John DeHaan to testify on that the fire could

not have been accidentally ignited, and asserts such testimony was

false/misleading in its nature or alternatively, unreliable scientific

testimony.

11. The state trial court violated the due process clause of the Fourteenth

Amendment when it permitted evidence that Holiday committed the

n the Matter o Raphael Holiday

Applicationfor Reprieve

o

Execution

o

Death

Page 9



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extraneous offense

of

raping ofTierra Lynch.

12 The State violated Holiday s right to remain silent clause

of

the Fifth

Amendment and the due process clause

of

the Fourteenth Amendment by

commenting to jurors on Holiday s failure to testify.

13

. The state trial court violated the due process clause of the Fourteenth

amendment by permitting a state expert Dr. Gripon to testify that Holiday

would likely commit future acts

of

violence.

14 The state trial court violated the cruel and unusual punishment clause

of

the

Eighth Amendment by permitting a state expert Dr. Gripon to testify that

Holiday would likely commit future acts

of

violence.

15 The state court violated the due process clause

of

the Fourteenth

Amendment, the cruel and unusual punishment clause

of

the Eighth

Amendment and

Skipper

v

South Carolina

476 U.S. 1 (1986), by refusing

to permit Holiday s expert, Carroll Pickett, to explain how the death

penalty would be administered against Holiday

if

ordered.

16 The state court violated the due process clause of the Fourteenth

Amendment, the cruel and unusual punishment clause of the Eighth

Amendment and Skipper

v

South Carolina 476 U.S. 1 (1986), by refusing

to permit Holiday s expert testimony

of

Carroll Pickett

of

the effect that

administration of death penalty would have on prison employees required

to

c ny

out the execution

of

Holiday.

17 The state court violated the due process clause of the Fourteenth


of

the Eighth

Amendment and

Skipper

v

South Carolina



of

Carroll Pickett concerning the

effect

of

the death penalty on the survivors

of

the victim.


of

the Fourteenth


of

the Eighth

Amendment and

Skipper

v

South Carolina



of

Carroll Pickett to explain how

inmates permitted to serve life sentences often make positive changes in

their lives.

In the Matter

o

Raphael Holiday

Application

or

Commutation.

or

alternatively Reprieve

o

Execution

o

Death

Page

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of

the Fourteenth

Amendment by restricting Holiday's cross-examination of Beverly Mitchell

at the punishment phase

of

trial.

20. The state court violated the cruel and unusual punishment clause

of

the

Eighth Amendment by restricting Holiday's cross-examination of Beverly

Mitchell at the punishment phase of trial.

21. The state court violated

Franklin v. Lynaugh

487 {J.S. 164 (1988), by

restricting Holiday's cross-examination

of

Beverly Mitchell at the

punishment phase

of

trial.

22. Texas Code

of

Criminal Procedure article 37.071 violates the cruel and

unusual punishment clause

of

the Eighth Amendment because it

impermissibly restricts mitigating evidence to merely that evidence which

the jurors might regard as reducing moral blameworthiness

23. The trial court violated the Sixth, Eighth and Fourteenth Amendments by

failing to instruct the jury that the no vote by a single jury member would

result in a life sentence instead

of

death, despite the statutory requirement

of IO votes for a no answer to article 37.071 §2(b)(l) or for a yes vote

to article 37.071 § 2(e).

24. Texas Code

of

Criminal Procedure article 3 7 071 violates the cruel and

unusual punishment clause of the Eighth Amendment because it fails to

place the burden

of

proof

on the mitigation special issue to the state to

establish a no answer, and thereby implicitly assigned the burden of proof

to Holiday.

25. Texas Code

of

Criminal Procedure article 37.071 violates Ring v Arizona

because it fails to require the State to prove beyond a reasonable doubt that

the mitigating evidence is sufficient to warrant a life sentence.

VI

REQUESTED L NGTH OF DURATION OF R PRI V

Obviously, Raphael requests clemency and a transfer from death row to general

population to serve out his sentence. That aside, he requests a thirty-day reprieve.

In

the Matter

o

Raphael Holiday

Application

or

Reprieve

o

Execution

o

Death

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44/178

n the Matter o Raphael Holiday


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45/178

VII

REASONS WHY CLEMENCY FOR MR. HOLIDAY IS APPROPRIATE

1

Raphael's actions were the result

of

unconstrained emotion and

stupidity, not

of

deliberate callousness and depravity. He never

intended to

harm the children.

Holiday never intentionally or knowingly caused the death of the three children.

The fire was an accident. Raphael Holiday was emotionally hell-bent on scaring Tami,

but he never intended that the three children be harmed. Their deaths were a tragic

accident. There has not been a moment since that tragic day until now that Raphael has

not anguished over his irresponsible actions. To preserve the credibility and deterrence of

capital punishment, the government should reserve its most severe punishment,

execution, for those depraved individuals who calculatingly set out to kill another.

Raphael

is

not among those. He acted with unconstrained emotion, never reason or logic,

and without thinking out the risks or consequences to the children. While a life sentence

is

appropriate, execution is not.

2 There is substantial doubt - or

at

least residual doubt -- as to whether

Holiday actually lit the gasoline.

There remains substantial doubt, or at least residual doubt, on a central question:

what mechanism actually ignited the gasoline. This is a question of causation. This is an

important question because the answer determines whether Holiday intentionally or

knowingly started the fire,

nd

whether he

actually

started the fire .

A. Although there

w s

some evidence that Holiday started the fire

that evidence is indeterminate.

The night

of

the incident, Holiday drove to Tami Wilkerson's house; he had taken

with him a screwdriver, a gas can and a pistol. RR 36, p 51. Holiday was prior to this

event charged with aggravated sexual assault

of

his step-daughter Tierra Shinea Lynch,

and a protective order prohibited him from being near Tami Wilkerson or the three

children, Tierra, Jasmine Rockell DuPaul, and Holiday's daughter Justice Holiday. RR

39, pp. 92-93. Holiday and Wilkerson spoke on the phone daily, and Holiday was

overheard threatening to kill Tami

if

I can't get my

kid/

though Holiday stated he was

joking. RR 36, p. 9 Holiday on other occasions threatened to kill Wilkerson; he also

said he was going to go [to Tami's] and bum the house down and watch her [Tami] run

out. RR

36,

pp.

11-12, 37-38.

In the Matter

of

Raphael Holiday

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Holiday pulled out a pistol and held it to his head stating, I'm going to make

Tami pay for what she did to me taking my baby away.

RR

33, p. 84. Tami ran to a

neighbor's to call 911. Holiday started pouring gasoline he brought with him in the house

and on the cars; he repeated he would make Tami pay.

RR

33, p. 83, 89. A woman

named Beverly Mitchell poured additional gasoline, on Holiday's instruction, in the

bedroom, living room and near the washer and dryer.

RR

33, pp.

96-98,

118.

Mitchell saw Raphael [Holiday] with his foot up on the high chair and he was

saying something, and I don't know what he was saying, and he bent down and the fire

started.

RR

33, pp. 97-98. Though Ms. Mitchell did not see a lighter or match in his

hand when Holiday bent down, the fire started immediately s

he

reached down. Ms.

Mitchell admitted that during the pretrial hearing she did not remember saying anything

about seeing Raphael [Holiday] bend down at the time the fire started. RR 38, p. 169.

Holiday was transported to Madison County Jail and during booking, two cigarette

lighters were taken from him and sent to the lab for analysis.

RR

34, pp. 95-96. Holiday

had also suffered some bums and he was taken to the hospital. RR 34, p. 21.

Dr. Janie McLain, a forensic pathologist, was shown the photographs

of

Holiday's

bums he sustained in the fire. She said that Holiday's burns were consistent with a

situation where a person reached down with their right arm and bent down and that the

accelerate ignited. RR 35, pp. 173, 175.

Louis Mitchell testified that

Tami's

house had three air conditioner units-two

which were approximately thirty-two inches

off

the floor and one about four feet

off

the

floor.

RR

33, pp. 151-152. The house also had a Dearborn heater which used propane

and had a pilot flame-which he claimed was not on the night

of

the fire.

RR

33, pp.

152-153. There was also a gas stove in the house that had a pilot flame that should have

been on.

RR

33, p. 153. Also, the refrigerator, water heater, and washer and dryer

located in the house-were electric.

RR

33, p. 153.

Dr. John DeHann, the State's fire expert, said that gasoline vapors have to mix

with air in a process called diffusion, and a flammability range is established by the

process.

RR

36, p. 174.

He

said that gasoline vapors have a very narrow flammability

range. RR 36, pp. 175-176. There can

be

ignition by some other source in that room that

is not in the immediate vicinity

of

where the gasoline is poured

if

there is time for the

vapors of a sufficient concentration to move either horizontally

or

upward. RR 36, p.

179.

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o

Raphael Holiday

Application

or

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Dr. DeHann excluded the water heater, the room heater, the refrigerator, the stove

and air conditioner

as

potential ignition sources. RR 36,

p

181-183. He eliminated the

stove unit in the northwest comer

of

the kitchen because the pilot flame was in a closed

compartment, was too high from the floor, and was too far from the areas where the

gasoline was poured.

RR

36, pp. 183-184. He eliminated the Dearborn heater on the

west

wall which

was near where Holiday was

standing because

Louis Mitchell said

the pilot flame was turned off. RR 36, p 187. He eliminated the refrigerator because

there was not enough . ime for the vapors to get into the concealed space where the

ignition source was located. RR 36, p. 189. He said that the thirty seconds or so that it

took Ms. Mitchell to pour the gasoline in the house would not be enough time for the

vapors to spread and be

of

high enough concentration with any

of

the ignition sources

in the house. He said that

if

the time-frame was doubled or tripled his opinion would be

no different.

RR

36,

p

195.

B. Other evidence cast doubt on whether Holiday actually lit the fire

or did so accidentally not intentionally.

No doubt Holiday was up to no good and attempting to scare Tami. He did not

intend actually to light the gasoline, however; his objective was merely to express anger.

If indeed his assertion is correct --- that he poured gasoline but never intended to light it -

-- then this tragic episode was an accidental fire but not intentional homicide. Holiday

would be guilty

of

three counts

of

manslaughter, offenses predicated on mens rea

of

recklessness.

Jim Swindall, an expert in determining the presence

of

liquid accelerants, said: (1)

he found the presence

of

gasoline on the shoes Holiday was wearing (RR 35, p. 122);

(2) he found no presence

of

gasoline on Holiday's pants or his shirt (RR 35, p. 123); (3)

he found the presence

of

gasoline in the debris collected from the laundry room (RR 35,

p.126); (4) he found the presence of gasoline on the debris collected from the kitchen

floor (RR 35, p. 127); (5) the clothing from the body found in the living room and the

fire debris under the couch where the victims were found were negative for the

presence of gasoline (RR 35, pp. 127-128); (6) the night shirt and pants Beverly Mitchell

was wearing were negative for the presence

of

gasoline

RR

35, pp. 128-129); and (7)

the two cigarette lighters taken from Holiday at the jail were negative for the presence

of

gasoline (RR 35, p. 133).

Judd Clayton --- the fire expert for Holiday --- said the Dearborn heater was the