Kretzer and Volberding Motion to Dismiss Appeal as Frivolous

7/24/2019 Kretzer and Volberding Motion to Dismiss Appeal as Frivolous

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IN THE UNITED STATES COURT OF APPEALSFOR THE FIFTH CIRCUIT_____________________

No. 15-70035_____________________

RAPHAEL HOLIDAY,Petitioner-Appellant,

v.

WILLIAM STEPHENS, TEXAS DEPARTMENT OF CRIMINALJUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Respondent-Appellee,---------------------

Appeal from the United States District Court for theSouthern District of Texas, Houston Division

4:11-cv-1696---------------------

UNOPPOSED MOTION TO DISMISS APPEAL

TO THE HONORABLE CHIEF JUDGE AND JUDGES OF THE UNITEDSTATES COURT OF APPEALS FOR THE FIFTH CIRCUIT:

Come now SETH H. KRETZER and JAMES VOLBERDING, CJA

Counsel for Mr. Holiday, and file this unopposed motion to dismiss the

appeal filed by pro bono counsel, Ms. Gretchen Sween, on grounds of

mootness. First, Mr. Holiday has already received everything he said he

wanted. To wit, Mr. Holiday wrote Judge Lake that he wanted a new lawyer;

Mr. Holiday has a new lawyer, Ms. Gretchen Sween. Although a periodic

University of Texas Law School adjunct legal writing professor, Ms. Sween

Case: 15-70035 Document: 00513257925 Page: 1 Date Filed: 11/04/2015


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repeatedly protested to Judge Lake that she is unqualified to write the

clemency petition about which she so vehemently protests its necessity in

her opening brief. See Sween Response, Doc. No. 41 at 1 (not statutorily

qualified to accept such appointment.) at 2 (Undersigned counsel is not, as

CJA Counsel urge, qualified by past experience to undertake representation

of Mr. Holiday for all purposes.), at 3 (explained that she herself was not

qualified to assume such a substitution.);Appendix Tab 3. We disagree. Ms.

Sween is perfectly capable of representing a death row inmate, as evidenced

by her request made in the opening brief filed November 2 seeking a stay of

execution (her second), a mark near the apex of capital litigation.

Second, and far more impactful for the (in)ability of Holiday to get

further relief from this Court, there is currently pending before the Board of

Pardons and Paroles (the Board) a clemency petition timely filed on behalf

of Mr. Holiday last week. This point is uncontroverted, as the following

letter (dated October 28, 2015) establishes:



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Indeed, the Madison County District Attorney, Mr. Brian Risinger,

filed the States response yesterday, November 2. The first page is

reproduced in part below:

Although we invited her repeatedly to contribute, or at least edit, the

clemency petition, Ms. Sween declined.



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As a preliminary matter, it is fairly clear from Ms. Sweens opening

brief that she does not like the clemency petition filed by Mr. Kretzer and

Mr. Volberding. But as a positive factual matter, this 20-page clemency

petition (146 pages with exhibits) presents, inter alia, (1) sworn testimony in

the form of affidavits from Holidays family documenting his empathetic

childhood abuse and familial dysfunction; (2) explains the residual doubt

about his guilt in light of the disputed scientific testimony germane to arson

on the issue of causation, which has always been at the center of this case,

and (3) makes a prudential utilitarian argument about the excessive cost and

low crime suppression value of the death penalty, citing extensively to a law

review article written by Ms. Sween. We asked her, in fact, to condense her

cogent utilitarian arguments for inclusion in the clemency petition. She

declined. We nevertheless attached her article as an exhibit to the petition for

the Boards consideration.

INTRODUCTION:MOOTNESS

Professor Means explains, some concrete and continuing injury must

exist if the action is to be maintained. Brian R. Means, Postconviction

Remedies, 8:1, p. 328 (West 2015). The alpha-and-omega of the instant

motion to dismiss rests on this baseline legal parameter. Mootness is the

doctrine of standing in a time frame. The requisite personal interest that must



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exist at the commencement of litigation (standing) must continue throughout

its existence (mootness). Ctr. for Individual Freedom v. Carmouche, 449

F.3d 655, 661 (5th Cir.2006) (quoting U.S. Parole Comm'n v. Geraghty, 445

U.S. 388, 397 (1980)). If a case has been rendered moot, a federal court has

no constitutional authority to resolve the issues that it presents. In re

Scruggs, 392 F.3d at 128. Therefore, before considering any other matters

raised by the parties, we are obliged to resolve the standing question as a

threshold matter of jurisdiction. Cole v. Gen. Motors Corp., 484 F.3d 717,

721 (5th Cir.2007).

Ms. Sweens decision to call us a mockery, Sweens Br, at 37,

suggests she dislikes the clemency petition we filed after informing Judge

Lake that we would do so and he relied on this fact in his order denying Ms.

Sweens motion for reconsideration. See Order, Doc. No. 45, p. 2;Appendix

Tab 6. But whatever derogatory term Ms. Sween chooses to use, nothing

changes the fact that a timely-filed clemency petition is on file, running 146

pages in length and presenting six diverse grounds for relief, as well as a law

review article authored by Ms. Sween. The State has responded to the

clemency petition. And Ms. Sween is still welcome to assist us in the filing

of an amended clemency petition, though she has repeatedly declined to do

so in written communications to the undersigned counsel. Moreover, just as



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Judge Lake noted in his October 26 order denying reconsideration, Ms.

Sween provides this Court with not a single non-frivolous reason for

clemency, much less one we have not provided to the Board. See Order of

District Court, Doc. No. 45, p. 2 ; Appendix Tab 6.

WE MAKE NO PERSONAL ATTACKS ON MS.SWEEN

At the outset, Mr. Kretzer and Mr. Volberding wish to make as clear

as they possibly can to this Court that they do not desire to reciprocate in the

instant motion to dismiss any of the acerbic personal attacks Ms. Sween

levels against us in her opening brief. However, in order to fulfill our duty

of candor to the Court in support of the mootness argument, we must

respond to certain of her statements that are most charitably described as

counter-factual.

This necessity derives, in part, from the observation that Ms. Sweens

Appendix does not include any of Judge Lakes written orders. Fifth Circuit

Local Rule 30.1.4(e) lists as a mandatory content to Record Excerpts:

The judgment or interlocutory order appealed. Perhaps because Judge

Lakes written orders so thoroughly contradict the abuse of discretion

ascribed to him that this basic requirement of appellate brief writing was

avoided.



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IT IS IMPOSSIBLE TO COUNTENANCE MS.SWEENS NOVEL LEGAL

ARGUMENT THAT GOVERNOR ABBOTT LACKS THE POWER TO CONSIDER

CLEMENCY APPLICATIONS

Ms. Sween does not like our clemency petition, but nowhere in her

50-page opening brief does she actually ever explain what she dislikes about

it in terms of alternative arguments she wishes had otherwise been made. As

best we can tell, Ms. Sween believes that Governor Greg Abbotts elevation

to the Governors Mansion from his prior position as the Texas Attorney

General constitutes a legal basis to challenge his legal authority to grant or

deny clemency. These observations were made, however, before lead

counsel for the State of Texas in Mr. Holidays federal habeas corpus

proceedings, Attorney General Greg Abbott, became the governor thus

assuming a position that would permit him to decide Mr. Holidays

clemency application. Sweens Br. at 7, n.2.

It is not clear to us how insulting Governor Abbott is likely to

persuade him in Holidays favor, but Ms. Sween refused to even look at the

clemency petition before we filed it, much less edit it. Further, Ms. Sween

fails to address the obvious question: if Governor Abbott is somehow

disqualified, then who is qualified to make the decision for him? In our

professional opinion, Ms. Sweens contention that the Governor has been

functionally stripped of a legal power afforded by Texas Constitution



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qualifies as frivolous, and one we cannot justify. As an aside, this is

probably this is why no one ever thought to advance this legal theory when

Mark White or Price Daniel were elevated directly from Texas Attorney

General to Governor.

MS.SWEEN REGRETTABLY OMITS MR.KRETZERS AUGUST 14COURT

APPEARANCE IN MADISON COUNTY WITH MR.HOLIDAY

According to Ms. Sweens chronological narrative, we stopped

working on Holidays case June 30. This could not be further from the truth.

On page 7 of her brief, Ms. Sween ominously underlines June 30, 2015

which is, as she correctly states, the day after the Supreme Court denied

certiorari. But few sentences are as misleading as the one found on page 8:

Meanwhile, Mr. Holiday was scheduled for execution on November 18,

2015. (emphasis added).

Executions are not set through some vaporous meanwhile. As Mr.

Kretzer explained in his two responses to Holidays letters to Judge Lake,

see Doc. Nos. 32 and 34 (both of which Ms. Sween certainly saw since she

quotes other portions of these documents), on August 14, Mr. Kretzer drove

to Madison County and represented Holiday at the hearing in which the

presiding state judge entered the death warrant. Mr. Kretzer was not a

bystander. Before the hearing, Mr. Kretzer and Mr. Volberding discussed

options and procedures and how to handle the hearing. Mr. Kretzer called



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both trial lawyers, Messrs. Blazek and Carter, and advised them when and

where the hearing was set. The three lawyers collectively visited with

Holiday for an hour before and after the hearing, talking with him about his

circumstances and the procedures at hand. Immediately after the hearing,

Holiday was taken back to Polunsky Unit. Meanwhile, Messrs. Kretzer,

Carter, and Blazek went across the street from the courthouse to the town

square and met for another hour to discuss possible issues for a successor

writ.

Ms. Sween does not mention this. She certainly knows who

represented Holiday in Madison County, because this was mentioned twice

(in Doc. Nos. 32 and 34) filed long before she filled her opening brief. True,

Ms. Sween has no reason to know that the three lawyers met at length in the

town square (partially because she has never phoned us before, or after, she

filed her Notice of Appeal, and therefore never asked), but the reality of

Kretzers mid-August court appearance with Holiday is one of public record

and was mentioned in both responses to Holidays letters to Judge Lake.

The only logical (and unfortunate) conclusion is that August 14 was

six weeks after June 30. This fact of continuing representation was

orthogonal to her narrative of a June 30 cutoff date after which we stopped

working, so it was swept away in the meanwhile.



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Nor did we lay supine after the death warrant was signed on August

14. We would have eagerly filed a successor writ had meritorious grounds to

do so presented themselves. Unfortunately, no such grounds have

materialized.

To be clear: we looked. For example, in late September, the Texas

Forensic Science Commission sent us the following results of their

retroactive review of the arson issues in Holidays case, which is reproduced

below in relevant part:



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Partially in response to this letter, we reviewed our files and the

record. We looked for some means of a successor writ asserting the newly

discovered evidence safety valve of Texas Code of Criminal Procedure

article 11.071, Sec. 5(e). Despite our best efforts, we disappointingly could

not identify a non-frivolous basis for a successor writ along this line.

Apparently, nor could Ms. Sween, since she has repeatedly stated that her

duties extend only to filing appeal of denial of Holidays request for a new

lawyer (despite the reality of her being a new lawyer on the case).

WE DID NOT THWARTHOLIDAYS EFFORTS IN ANY WAY

One of the most blunderbuss statements in Ms. Sweens opening brief

is the repeated contention that we thwarted Holidays efforts to obtain new

counsel after telling him he was free to do so. Sweens Br. at 20, 34, 37, and

42. To the contrary, over this past summer, we have engaged in frequent

conversations or email with Holidays mother, as well as lawyers she has

contacted on his behalf. Until Ms. Sween filed her Notice of Appeal (but,

noticeably, she never filed a Notice of Appearance in the District Court) no

lawyer ever told us he or she was signing on to Holidays case. Nor did

anyone ever tell us he or she would do so if we withdrew. We received no

phone call, letter, or email from Ms. Sween before her intervention. She has

provided neither us, nor Judge Lake, nor this Court, any retainer



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agreement signed by Mr. Holiday authorizing her intervention, and certainly

not one in which she provided a Texas Disciplinary Rules of Professional

Conduct 1.01 and 1.05 advisory to Mr. Holiday that she was unqualified to

represent a death row inmate at his current stage in the proceedings, or one

authorizing her to disclose his privileged communication with his CJA

attorneys to the Attorney General, as she did by attaching these documents

to her motion to reconsider in the District Court. Query where is any

document of this kind, dated and signed by Holiday prior to her

intervention?

LOOK BEHIND MS.SWEENS ELLIPSIS ON PAGE 13AND THIS COURT WILL

FIND HER MOTION TO GET AREFUND OF THE $505WHICH SHE PAID

ONLY AFTER STATING TO THE DISTRICT COURT THAT HOLIDAY WAS NOT

PROCEEDINGINFORMAPAUPERIS

In her motion to reconsider, Ms. Sween attached as Exhibit 2 an email

Mr. Kretzer sent Ms. Sween 36 minutes after she filed her Notice of Appeal:



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Yet on page 13 of her opening brief, one sees a factual contortion such

that the email has become excerpted:



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Numbers are stubborn things, and so are email time-stamps. When

Ms. Sween writes later that same day she really means that she filed her

notice of appeal at 9:55 a.m. and Kretzer replied at 10:31 a.m.

More specious is her ellipsis. In her brief, Ms. Sween presents the text

I do not believe he can have both at the same time as a discreet sentence.

But in the actual email, this is clearly a new paragraph, and immediately

following is the statement, since you paid the $505 filing fee I take it he is

not proceeding in forma pauperis anymore.

This is significant, because when one files an appeal, the ECF System

asks if the filer is proceeding in forma pauperis. If the filer checks yes,

then the $505 filing fee is waived. Ms. Sween saw this question and

answered no; we necessarily know this because she paid the $505 filing

fee, as Mr. Kretzer noted in his initial email that Ms. Sween subsequently

edited from its native format when she wrote her opening appellate brief.

Mr. Kretzer and Mr. Volberding are very conscious of the CJA

requirement that a litigant not have appointed and retained counsel at the

same time; this is why every CJA20 and CJA30 voucher requires us to swear

under penalty of perjury if we know of anyone who has received a thing of

value in connection with a case. Indeed, this was the primary argument in

our motion to substitute:



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Doc. No. 37, at p. 2;Appendix Tab 1.

As best we can tell, Ms. Sween agrees, because she soon thereafter

filed a motion in the district court to get her $505 back, Doc. No. 38;

Appendix Tab 7, and apologized to the court personnel. Doc. No. 41, p.

10, n.4;Appendix Tab 3.

Kretzer and Volberding filed their motion to substitute Ms. Sween in

their place not because they wanted finally to throw Holiday off the side of

their ship, but out of concern that to continue otherwise would run afoul of

the dictates of the CJA. Moreover, it appeared (at least at the time) that to

substitute Ms. Sween (again, the only new lawyer who ever showed up for

Holiday despite her vague assertion that we fought off this army of other

unnamed lawyers who wanted to do so) would moot the instant appeal by

giving Holiday what he asked for originally: a different lawyer.



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Doc. No. 37, at 2;Appendix Tab 1.

It was only later that Ms. Sween self-exclaimed her unwillingness, or

inability, to do the very work she simultaneously contended was so essential.

Judge Lake disallowed the requested substitution only because Ms.

Sween took the position that she was unwilling to do the capital habeas work

required at Holidays current stage in the proceedings:

Doc. No. 40. at 2; Appendix Tab 2.

In sum, it is a little hard to see how we thwarted the imaginary

lawyers who never signed on to Holidays case, pro bono or otherwise. To



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the contrary, within 36 minutes of a new lawyer showing up (but never

entering a Notice of Appearance) Kretzer emailed to ask how she wanted the

file delivered so she could do her work and earnestly wished her good

luck! representing a client we have known for nearly five years. Had Ms.

Sween accepted the offer, Mr. Kretzer would have mailed the file that same

day. It is nice that Mr. Sween subsequently claimed to be retained pro bono

for a limited purpose, but the unalloyed reality is that she stated that she

was notseeking IFP status when originally prompted by the ECF system to

make this binary choice, and nothing about making a $505 payment seemed

to register otherwise.

MS.SWEENS AVERSION TO THE AFTERNOON OF OCTOBER 29,2015

SHEDS MORE HEAT THAN IT DOES LIGHT

On page 17, Ms. Sween states that some unnamed representative of

hers met with Holiday who told the representative that he had not seen the

clemency petition. Agreed. The last line in the Certificate of Service on the

clemency petition states rather clearly that Kretzer and Volberding would

hand-deliver to Mr. Holiday on October 30:



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When Mr. Kretzer and Volberding went to Polunsky to see Mr.

Holiday on October 30, he refused to leave his cell. We were there to discuss

the case with him, and talk with him about the opportunity to supplement his

clemency petition during the allowed seven-day supplementation period.

Even though he would not see us, we still did not abandon our client, but

rather had the petition bound and mailed directly. Lest another unnamed

representative or anyone else contend that we are making this up, the

receipts for this service (both dated October 30) are reproduced on the

following page:



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Before moving on, it is worthwhile to pause and consider the negative

affects Ms. Sweens actions have elicited. Before her intervention, we had a



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cordial and productive relationship with our client of nearly five years. The

record does not indicate a single prior complaint from Holiday to Judge

Lake, or to this Court, about his CJA lawyers during that multi-year period.

Mr. Kretzer met with Holiday periodically at Polunsky, and both

attorneys corresponded regularly with updates and information. Whatever

Ms. Sween, or her unnamed representative, told Raphael during her

private visits with our client has triggered such a profound impact on him

that he would rather stay in his small prison cage, where he spends 23 hours

per day, rather than leave for an hour to visit with the licensed attorneys who

possess the ability to communicate with the authorities who might be able to

influence his fate. While Texas Disciplinary Rule of Professional Conduct

4.02(d), Communication with One Represented by Counsel, allows an

attorney to respond to a represented person who sends a letter asking

questions, Ms. Sween appears to have acted far beyond any reasonable

interpretation of Rule 4.02. She evidently used one or two letters Holiday

sent to others to justify meeting privately with him; initiated a separate

attorney-client relationship at odds with his existing ones; interviewed him

about the facts of the offense; obtained, read, and published his privileged

communications with his attorneys in an ECF filing; and instructed one or

more unnamed representatives to see him. If this is the new ethical norm,



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the same scenario will be seen from now on in this and other courts in every

capital habeas case when an execution dates draw near.

WHY IS MS.SWEEN FIXATED ON CLIFTON WILLIAMS?

Clifton Williams is another inmate on death row who won a last-

minute stay from the Texas Court of Criminal Appeals in July when the state

produced new evidence the day before the execution. This comes up only

because, in response to Holidays motion for a new lawyer, Kretzer used this

is an example of how neither he or Volberding would hesitate to file a

successor writ were non-frivolous grounds to do so to present themselves.

From this rather innocuous example, the personal antipathy of Ms.

Sween (who Mr. Kretzer knows from law school and of whom Mr.

Volberding had never heard) towards Kretzer and Volberding has exploded

to the point that she has envisaged a scenario by which they represented a

fraud to Judge Lake about the stay. Judge Lake twice graciously ignored this

ill-informed accusation, but since it occupies so much of the opening brief

(see pages 15, 29, 30, and 32), we feel professionally obligated to set the

record straight.

Clifton Williams lost his petition for writ of certiorari. The state judge

informed us that she wished to conduct a formal execution date hearing. We

informed her that as we were CJA appointed counsel, she should appoint one



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of the local attorneys for this hearing. The state judge appointed Jim

Huggler, an experienced and well-regarded Tyler attorney. The state court

set Williamss execution slightly more than 30 days off, for July 16.

On July 15, the day before the execution, the Attorney General sent

Mr. Huggler a similar letter informing of possible state DNA data base

errors. Unlike in Holidays arson case, Williamss trial did rely on DNA

testing.

By phone and a flurry of emails we discussed the situation with Mr.

Huggler. He filed a motion to stay in the trial court, which took no action,

then in the Court of Criminal Appeals. Meanwhile, as Williamss CJA

attorneys, we were in constant contact with both this Courts Conference

Attorney, Mr. Joe St. Amant, other members of the Fifth Circuit staff, and

Ms. Mara Silver, who was at the time the capital clerk in United States

Supreme Court1 with regards to the federal pleadings (with supporting

record quotes to DNA trial testimony) we spent urgent hours writing and

were about to file simultaneously in the District Court, Fifth Circuit, and

Supreme Court had the CCA not ruled favorably. This is hardly a secret to

this Court; the Fifth Circuit paid our vouchers for this emergency last-minute

work several weeks ago.

1Ms. Silver is currently on maternity leave, but we have the contact information for theperson acting in her absence should the need to contact this staff present itself.



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It makes no difference to Raphael Holiday if Clifton Williams had

been executed, set free, or obtained a new trial. Nevertheless, Ms. Sween

insists on repeatedly accusing us of lying about Mr. Williams. This ad

hominem personal attack (about a stay granted last summer to an inmate

with no connection to Holidays case whatsoever) serves to illustrate further

the mootness of the appeal filed November 2.

CONCLUSION

Mr. Holiday has a clemency petition on file and pending before the

Texas Board of Pardons and Paroles and the Governor. He also has a new

lawyer, Ms. Sween, who refused to edit, or even look at this clemency

petition, before it was filed, despite serial invitations. She remains free to

help with an amended petition for clemency while there is still time, but

repeatedly declines our offers to do so.

No matter how much Ms. Sween chooses to insult CJA counsel with

words like mockery, her legal argument reduces to umbrage that Mr.

Kretzer and Mr. Volberding are of the informed professional belief that

clemency has next to zero chance of success in a case such as Holidays.

Only two capital clemency petitions in Texas have been granted since 1994.

Both involved circumstances we do not have here. But whatever remote

chance of success a clemency petition might have, Holiday is now fully



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availed of this opportunity. As such, the appeal filed by Ms. Sween on

November 2 must be dismissed as moot.

Dismissal should not end the matter. On the subject of any potential

sanction, it is difficult to imagine a more frivolous set of pleadings than that

filed in the opening brief. Ms. Sween has long been affiliated the University

of Texas School of Law and its Capital Punishment Clinic. She has

advocated for amicus in capital murder appeals. See, e.g., Dufour v. State, 69

So.3d 235 (2011); Trevino v. Thayler, No. 11-10139 (U.S. 2011). She has

spoken at capital punishment seminars. See Panel Speaker at U.T. School

Law Capital Punishment Center Symposium (Mar. 23, 2013). She published

a law review article on the topic. Gretchen Sween, Texas Aint Tuscany:

How a Truism Might Further Invigorate Contemporary Cost Arguments

for Death-Penalty Abolition, 41 AM. J. CRIM. L. 151 (Spring 2014). Yet,

Judge Lakes written orders were not even included in her Appendix as

required by the local rules.

Despite our enduring opinion that Ms. Sween is clearly one of the

best capital habeas practitioners in Texas (Doc. No. 44, p. 1;Appendix Tab

5), her opening brief is replete of factual misrepresentations and personal

invective that cannot, as a tactical matter, have any conceivable positive

benefit to Mr. Holiday. While this episode mightbe useful for an agenda to



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manufacture an issue for certiorari, it is creating distraction to two federal

courts (soon to be three), required CJA counsel to spend many hours over

several days responding to Ms. Sweens accusations of professional

misconduct, and most sadly, raised false hopes for a man facing execution

November 18 at 6 p.m.

Respectfully submitted this 4thday of November 2015,

/s/ James W. VolberdingJames W. Volberding

VOLBERDING LAW OFFICES100 E. Ferguson St., Suite 500Tyler, TX [email protected]

(903) 597-6622 (direct)

(866) 398-6883 (fax)

COURT APPOINTED ATTORNEYSFOR APPELLANT/PETITIONERRAPHAEL HOLIDAY

/s/ Seth KretzerSeth Kretzer

LAW OFFICES OF SETH KRETZER440 Louisiana Street, Suite 200Houston, TX [email protected]

(713) 775-3050 (direct)

(713) 224-2815 (fax)

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing

unopposed motion was forwarded to all counsel of record on this 4thday of

November 2015 through the ECF system.

/s/ Seth Kretzer________________________Seth Kretzer



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CERTIFICATE OF CONFERENCE

I certify that on November 2, 2015, I conferred with Ellen Stewart-

Klein in the Office of the Attorney General about the motion to dismiss

Holidays appeal on the grounds of mootness, and she stated that she is

unopposed to dismissal of the appeal.

/s/ Seth Kretzer________________________Seth Kretzer


Documents

Kretzer and Volberding Motion to Dismiss Appeal as Frivolous