Motion To Withdraw Execution

CAUSE NOS.
10,423, 10,425, 10,427

THE STATE OF TEXAS
VS.
RAPHAEL DEON HOLIDAY
IN THE DISTRICT COURT OF

MADISON COUNTY, TEXAS
278TH JUDICIAL DISTRICT
MOTION TO WITHDRAW OR MODIFY EXECUTION DATE

Defendant, Raphael Deon Holiday, requests that the Court withdraw or
modify the order scheduling Mr. Holidays execution for Wednesday, November 18,
2015, because additional proceedings are necessary on a subsequent application for
a writ of habeas corpus and to afford Mr. Holiday an opportunity to have
meaningful access to clemency proceedings. Upon a finding that additional
proceedings are necessary, the Court has the power to withdraw or modify an order
setting an execution date and recall the warrant of execution. See Tex. Code Crim.
Proc. art. 43.141(d)(1). Trial courts have taken such action previously when it was
deemed necessary to afford an applicant additional time to prepare and file a
subsequent habeas corpus application. See e.g., State v. Brown, No. 636535 (351st
Judicial Dist. Ct. Oct. 12, 2013) (unpublished) (attached as Exhibit 1) (withdrawing
execution date in advance of the filing of a successive habeas application); State v.
Avila, No. 20000D01242 (41st Judicial Dist. Ct. June 18, 2013) (unpublished)
(attached as Exhibit 2) (modifying execution date to allow the applicant to file a
successive habeas application); State v. McCarthy, No. F97-34795-V (292nd Judicial
Dist. Ct. Jan. 29, 2013) (unpublished) (attached as Exhibit 3) (modifying an
execution date upon a finding that additional proceedings were necessary on a yet-

C:\NetShare\FB\CRIM_F-J\HOLIDAY.478\Motion to Withdraw Execution Date.wpd
PAGE 1
to-be filed subsequent habeas application and additional time was necessary to
prepare the application).
Mr. Holiday was tried for capital murder in consolidated cause numbers
10,423, 10,425 and 10,427. He was convicted and sentenced to death in each case.
The three judgments were affirmed by the Texas Court of Criminal Appeals
(TCCA). Holiday v. State, 2006 Tex. Crim. App. Unpub. LEXIS 737 (Tex. Crim. App.
Feb. 8, 2006). Initial applications for writ of habeas corpus were filed on May 6,
2005, and assigned the cause numbers 10,423(A), 10,425(A) and 10,427(A). The
TCCA denied the applications on May 5, 2010. Ex parte Holiday, Nos. WR-73,62301, WR-73,623-02 and WR-73,623-03 (Tex. Crim. App. May 5, 2010).
Mr. Holiday has at least two claims he seeks to raise in subsequent state
habeas applications: (1) the trial courts admission of unreliable expert testimony as
to Mr. Holidays future dangerousness by psychiatrist Edward Gripon violated the
Texas and United States Constitutions; and (2) that Mr. Holidays right to be free
from double jeopardy was violated when he was charged, convicted, and sentenced
to death twice for causing the same individuals death. Both claims are procedurally
viable under Tex. Code Crim. Proc. art. 11.071 5.
Mr. Holiday filed his initial habeas application in 2005. In 2010, the CCA
decided Coble v. State, 330 S.W.3d 253, 270-79 (Tex. Crim. App. 2010), in which the
Court held that the trial court abused its discretion when it admitted psychiatric
testimony concerning the defendants future dangerousness under circumstances
that are identical to those in which such expert testimony was admitted against Mr.
Holiday. See id. at 277-80. Mr. Holiday raised this claim in his direct appeal, but
PAGE 2
the TCCA had not yet recognized such testimony to be too unreliable to be
admissible. The Supreme Court has turned away per se constitutional challenges to
admissible, expert predictions of future dangerousness. See Barefoot v. Estelle, 463
U.S. 880, 898-99 (1983).
But the Courts decisions were conditioned on the
assumption that such testimony would be sufficiently reliable to be admissible

under the rules of evidence.
Id.
Coble held that the type of expert testimony
presented to persuade Mr. Holidays jury to answer the first Texas special issue in
the affirmative was too unreliable to be admissible. Coble, 330 S.W.3d at 270.
Coble, therefore, affords Mr. Holiday a new legal basis to challenge the legality of
his death sentence: whether, in this case, a death sentence predicated on an
inadmissible and unreliable expert prediction of future dangerousness fails to meet
the heightened reliability requirement of the Eighth Amendment.1 This new claim
potentially satisfies the requirements for a subsequent application to be heard on
the merits. See Ex parte Hood, 211 S.W.3d 767, 776 (Tex. Crim. App. 2007) (a legal
basis is unavailable if it has been exhausted by previous presentation to this Court,
but that legal basis can become newly available as a result of later, binding
precedent relevant to the issue in question).
Mr. Holiday also seeks to raise a claim that one of his capital judgments was
rendered in violation of double jeopardy. Mr. Holiday was charged with killing three
individuals, all children, in three separate indictments which yielded three
The Court of Criminal Appeals rejected a similar constitutional claim in Coble

not because the use of such testimony is always constitutional but because, based on
the specific facts in Coble, the admission of the testimony did not have a substantial
and injurious effect on the outcome. Coble, 330 S.W.3d at 287.
PAGE 3
judgments sentencing him to death. One child, Tierra Lynch, was seven years old
and the other two, Jasmine Dupaul and Justice Holiday, were under six years old.
Thus, two indictments charged Mr. Holiday with capital murder for causing the
death of a child under the age of six, one for each child under six. The third
indictment, however, charged Mr. Holiday with having caused the death of Tierra
Lynch and another individual during the same criminal transaction. Thus, Mr.
Holiday was charged, convicted, and sentenced to death twice for killing the same
individual, and one of his death sentences therefore violates his Fifth Amendment
right against double jeopardy. This claim can potentially meet the requirements for
a subsequent application go be heard on the merits. See Ex Parte Milner, 394
S.W.3d 502, 506 (Tex. Crim. App. 2013) (a showing that no rational juror could find
the defendant guilty of both offenses without violating the federal constitutional
prohibition against double jeopardy satisfies the exception to the bar against
subsequent application because it makes a prima facie case that no rational juror
would find the applicant guilty beyond a reasonable doubt).
An additional equitable reason exists for withdrawing this Courts order
setting an execution date for Mr. Holiday. Mr. Holiday currently has litigation
pending in the Supreme Court concerning his effective abandonment by his
federally appointed counsel. After the Supreme Court denied review of his federal
habeas proceedings, his federally-appointed counsel notified Mr. Holiday in a letter
that his appeals were finished and they would file no further appeals on his behalf
and would not file a clemency petition, even though the federal statute governing
their appointment required that they pursue any remaining available avenues for
PAGE 4
post-conviction relief and seek clemency. See Brandi Grissom, Condemned Mans
Lawyers Stop Helping, Citing False Hope, DALLAS MORNING NEWS, Nov. 16, 2015
(available
at
http://www.dallasnews.com/news/state/headlines/20151116-
condemned-mans-lawyers-stop-helping-cite-false-hope.ece, attached as Exhibit 4)

(hereinafter Lawyers Stop Helping) (The 1 -page message informed Holiday
that his lawyers would not file additional appeals or seek clemency from the
governor). Mr. Holiday initially sought pro bono assistance from other lawyers
and, finding none, asked the federal court to appoint new lawyers willing to help
him.
See 18 U.S.C. 3599 (indigent death-sentenced prisoners are entitled to
representation for clemency and other appropriate post-conviction proceedings).

The lower federal court denied the request for counsel willing to help and the
matter is now pending before the United States Supreme Court. See Lawyers Stop
Helping, supra.
Mr. Holiday has been forced to litigate the important issue of the scope of his
federal representation rights while under a death warrant.2 Withdrawing the order
setting the execution date and recalling the warrant of execution will allow the
Supreme Court to consider the important issue raised by Mr. Holiday in due course
and free from the constraints imposed by an impending execution. If the Supreme
Court declines to hear the case and ultimately order the appointment of new,
federal counsel for Mr. Holiday, withdrawing the order will allow this Court to
Mr. Holiday is now represented by private, volunteer counsel on his appeal but
the lawyer limited her pro bono representation of Mr. Holiday to trying to secure new
court-appointed counsel for Mr. Holiday. See Lawyers Stop Helping, supra.
PAGE 5
appoint new counsel to pursue Mr. Holidays remaining habeas corpus remedies and
to undertake a meaningful effort to seek clemency.3
CONCLUSION
For the foregoing reasons, the Court should withdraw the order setting Mr.
Holidays execution date and recall the warrant of execution.
Respectfully submitted,
________________________________________
WILLIAM F. CARTER
108 E. William J. Bryan Parkway
Bryan, Texas 77803-5334
Telephone: 979-779-0712
Telecopier: 979-779-9243
Email: wfcarter73@yahoo.com
State Bar No. 03932800
SMITHER, MARTIN,
HENDERSON & BLAZEK, P.C.
1414 11th Street
Huntsville, Texas 77340
(936) 295-2624
(936) 294-9784 [Telecopier]
Email: frankblazek@smithermartin.com
By ___________________________
Frank Blazek
State Bar No. 02475500
3
Feeling the pressure of Mr. Holiday's appeal concerning their abandonment of

their client, federally-appointed counsel slapped together a clemency petition within
the 48 hour-period preceding the due date for the petition. Their effort was not
meaningful. They simply reiterated legal arguments they had made and lost and
presented the case for clemency in the light most unfavorable to Mr. Holiday. The
petition altogether failed to speak to the factors that go the heart of executive
clemency," which is "to grant clemency as a matter of grace, thus allowing the
executive to consider a wide range of factors not comprehended by earlier judicial
proceedings and sentencing determinations. Ohio Adult Parole Authority v. Woodard,
523 U.S. 272, 280-81 (1998) (Rehnquist, C.J.).
PAGE 6
Certificate of Service
I do hereby certify that a true and correct copy of the above and foregoing
Defendant's Motion to Withdraw or Modify Execution Date has been forwarded to
opposing counsel on this the 18th day of November, 2015, by hand delivery
addressed as follows:
Brian Risinger
Criminal District Attorney
Madison County Courthouse
101 W. Main, Room 207
Madisonville, Texas 77864
_______________________________
Frank Blazek

PAGE 7
CAUSE NOS. 10,423, 10,425, 10,427

THE STATE OF TEXAS
VS.

ORDER WITHDRAWING EXECUTION DATE

This Court previously issued an order setting an execution date of
November 18, 2015 for defendant Raphael Deon Holiday. At this time, the Court
finds that additional proceedings are necessary on a subsequent application for a
writ of habeas corpus under Tex. Code Crim. Proc. art. 11.071, and is of the opinion
that the execution date now in force should be withdrawn to permit those
proceedings to be filed and adjudicated.
IT IS HEREBY ORDERED that this Courts previous order setting the
defendants execution date for November 18, 2015 is withdrawn. The Court further
orders the warrant of execution recalled.
IT IS FURTHER ORDERED that the Madison County District Clerks Office
notify the Assistant Director for Classification and Records at the Texas
Department of Criminal Justice, Correctional Institutions Division immediately by
phone at (936) 437-6231 and by facsimile at (936) 437-6276 that the previous order
setting a date of execution for defendant Raphael Deon Holiday has been
withdrawn and the Warrant of Execution recalled.

PAGE 1
Signed this 18th day of November, 2015.
___________________________________
Presiding Judge
278th District Court
Madison County, Texas

PAGE 2
CAUSE NOS. 10,423, 10,425, 10,427

THE STATE OF TEXAS
VS.

ORDER MODIFYING EXECUTION DATE

This Court previously issued an order setting an execution date of
November 18, 2015 for defendant Raphael Deon Holiday. At this time, the Court
finds that additional proceedings are necessary on a subsequent application for a
writ of habeas corpus under Tex. Code Crim. Proc. art. 11.071, and is of the opinion
that the execution date now in force should be withdrawn to permit those
proceedings to be filed and adjudicated.
IT IS HEREBY ORDERED that this Courts previous order setting the
defendants execution date for November 18, 2015 is withdrawn. The Court further
orders the warrant of execution recalled.
IT IS FURTHER ORDERED that the Madison County District Clerks Office
notify the Assistant Director for Classification and Records at the Texas
Department of Criminal Justice, Correctional Institutions Division immediately by
phone at (936) 437-6231 and by facsimile at (936) 437-6276 that the previous order
setting a date of execution for defendant Raphael Deon Holiday has been
withdrawn and the Warrant of Execution recalled. The Clerk is further ordered to
issue
Warrant
of
Execution
setting
the
defendants
execution
for
_______________________________.

PAGE 1
Signed this 18th day of November, 2015.
___________________________________
Presiding Judge
278th District Court
Madison County, Texas

PAGE 2

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CAUSE NOS.

10,423, 10,425, 10,427

IN THE DISTRICT COURT OF

MOTION TO WITHDRAW OR MODIFY EXECUTION DATE

MOTION TO WITHDRAW OR MODIFY EXECUTION DATE

But the Courts decisions were conditioned on the

assumption that such testimony would be sufficiently reliable to be admissible

Coble held that the type of expert testimony

The Court of Criminal Appeals rejected a similar constitutional claim in Coble

condemned-mans-lawyers-stop-helping-cite-false-hope.ece, attached as Exhibit 4)

See 18 U.S.C. 3599 (indigent death-sentenced prisoners are entitled to

representation for clemency and other appropriate post-conviction proceedings).

Feeling the pressure of Mr. Holiday's appeal concerning their abandonment of

MOTION TO WITHDRAW OR MODIFY EXECUTION DATE

CAUSE NOS. 10,423, 10,425, 10,427

IN THE DISTRICT COURT OF

ORDER WITHDRAWING EXECUTION DATE

ORDER WITHDRAWING EXECUTION DATE

Signed this 18th day of November, 2015.

ORDER WITHDRAWING EXECUTION DATE

CAUSE NOS. 10,423, 10,425, 10,427

IN THE DISTRICT COURT OF

ORDER MODIFYING EXECUTION DATE

ORDER MODIFYING EXECUTION DATE

Signed this 18th day of November, 2015.

ORDER MODIFYING EXECUTION DATE

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