Case 4:11-cv-01696 Document 37 Filed in TXSD on 10/21/15 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
RAPHAEL DEON HOLIDAY,
Petitioner,
v.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Institutional Division,
Respondent.

Civil Action No. 4:11:cv-1696

MOTION TO SUBSTITUTE COUNSEL,

OR ALTERNATIVELY TO WITHDRAW
Come now, Mr. Seth Kretzer and Mr. James Volberding, CJA appointed counsel, and file
this motion to substitute counsel for Ms. Gretchen Sween or, alternatively, to withdraw as
counsel. The Attorney General takes no position on this motion.
Mr. Raphael Holiday is a Texas death row inmate with an execution date of November
18. The Supreme Court has denied his certiorari petition.
Holiday has at present the same two CJA appointed counsels he has had since his case
first came into the federal system in 2011. Kretzer and Volberding authored a 127-page petition
for COA in the Fifth Circuit and a subsequent certiorari petition in the Supreme Court. Kretzer
drove up to Madison County in August for the hearing at which Holidays death warrant was
signed.
On September 24, this Court entered an order denying Holidays motion for new counsel
on the representation of the undersigned that they would file an article 11.071 writ in the event
that a meritorious basis to do so presented itself. (Doc. No. 35).

Case 4:11-cv-01696 Document 37 Filed in TXSD on 10/21/15 Page 2 of 4

On October 21, 2015, an Austin-based attorney with Beck Redden, Ms. Gretchen Sween,
filed Notice of Appeal of that order. (Doc. No. 36). Although it does not appear that Ms. Sween
filed a Notice of Appearance, she certainly appears to have assumed the role of Holidays
lawyer, and signed the Notice of Appeal to that effect. Since her law firm has paid the $505
filing fee, it appears that Holiday is no longer seeking to proceed in forma pauperis. Mr. Kretzer
and Mr. Volberding seek to substitute Ms. Sween since Holiday cannot have both private and
appointed counsel under the Criminal Justice Act.
Moreover, substitution would seem to moot the appeal triggered by Doc. No. 36.
Holiday now has the replacement counsel he sought in September. Ms. Sween should be free to
file whatever she feels professionally obligated to do in the state system.
Ms. Sween is abundantly qualified to represent Mr. Holiday. As the Court likely knows,
she is an adjunct professor at the University of Texas School of Law. She is an affiliated faculty
member with the schools Capital Punishment Clinic. She has advocated for death row
defendants in several capital murder appeals. See, e.g., Dufour v. State, 69 So.3d 235 (2011);
Trevino v. Thayler, No. 11-10139 (U.S. 2011); also Panel Speaker at U.T. School Law Capital
Punishment Center Symposium (Mar. 23, 2013).
Respectfully submitted this 21st day of October, 2015,

James W. Volberding

Seth Kretzer

Case 4:11-cv-01696 Document 37 Filed in TXSD on 10/21/15 Page 3 of 4

James W. Volberding
Volberding Law Offices
100 E. Ferguson St., Suite 500
Tyler, TX 75702
James@jamesvolberding.com

Seth Kretzer
Law Offices of Seth Kretzer
440 Louisiana Street, Suite 200
Houston, TX 77002
seth@kretzerfirm.com
LEAD COUNSEL

(903) 597-6622
(866) 398-6883 (fax)

(713) 775-3050
(713) 224-2815 (fax)

COURT-APPOINTED ATTORNEYS FOR APPELLANT / PETITIONER,

RAPHAEL HOLIDAY
CERTIFICATE OF SERVICE
I certify that the foregoing document was filed on the ECF System on the 21st day of
October 2015.
I also certify that a copy was mailed to Mr. Holiday at the Polunsky Unit.
!

Seth Kretzer
CERTIFICATE OF CONFERENCE
I certify that on October 21, 2015, I conferred with the assigned Assistant Attorney
General. The Attorney General takes no position on this motion.
I further certify that I conferred with Ms. Sween. Her position is that she has been
retained by Mr. Holiday pro bono for the limited purpose of appealing the denial of his section
3599 motion for new counsel, and to seek a stay so that substitute counsel can be appointed and
ensure that his rights to counsel are protected. She does not wish to be appointed for all purposes
of representing Mr. Holiday. She requests that Mr. Kretzer and Mr. Volberding ask the Court in
the alternative for immediate appointment of qualified replacement counsel who could then
3

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request a stay of execution.

!

Seth Kretzer