Case: 15-70035

Document: 00513258549

Page: 1

Date Filed: 11/04/2015

No. 15-70035
In The United States Court Of Appeals
For The Fifth Circuit
RAPHAEL DEON HOLIDAY,
Petitioner-Appellant,
v.

WILLIAM STEPHENS, DIRECTOR

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
On Appeal from the United States District Court
for the Southern District of Texas, Houston Division
USDC No. 4:11-CV-01696

MOTION TO STRIKE APPEARANCES,

UNOPPOSED MOTION TO DISMISS APPEAL, AND
RECORD EXCERPTS THAT PURPORT TO BE FOR
MR. HOLIDAY

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

the Appearance Forms filed by Seth Kretzer and James Volberding (CJA
Counsel); the (2) Unopposed1 Motion to Dismiss Appeal filed by CJA Counsel;
and the (3) Record Excerpts that purport to be For Mr. Holiday.

The

appearance forms are not viewable, but the ECF notifications disseminated through
the Courts electronic filing system indicate that they were filed with the Court on
October 29, 2015 and October 30, 2015. See TAB A. The Motion to Dismiss was
filed around midnight on November 3, 2015. The Record Excerpts were filed
the morning of November 4, 2015.
Mr. Kretzer and Mr. Volberding purport to appear on behalf of Mr. Holiday
but they have actively opposed him on the only issue before this Court in this
appealand, as their filings reflect, they are attempting to continue their
opposition to Mr. Holiday on appeal.
After CJA Counsel notified Mr. Holiday in writing that they would perform
no further work on his behalf and that he was free to seek other counsel, Mr.
Holiday moved the district court for new CJA counsel willing to exhaust his
remaining remedies.

ROA.15-70035.848.

Mr. Holiday was scheduled to be

executed two months later. In response, CJA Counsel acknowledged they had no
intention of seeking executive clemency or further judicial review of Mr. Holidays
1

CJA Counsel incorrectly characterize the motion as unopposed. Mr. Holiday opposes the
motion. Moreover, the Respondent has indicated that the State, as a matter of routine, takes no
position with respect to disputes over representation, the issue presented in this appeal.

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death sentence. They nonetheless opposed Mr. Holidays motion for substitute
CJA counsel. ROA.15-70035.850 - 852. The district court denied Mr. Holidays
pro se motion in an order that explicitly relied on CJA Counsels opposition.
ROA.15-70035.853 - 854. The district court subsequently denied a motion to
reconsider that ruling. ROA.15-70035.969 - 970.
The scope of this appeal is limited to review of the district court orders
denying Mr. Holidays requests for appointment of substitute CJA counsel.
ROA.15-70035.855 - 856 and ROA.15-70035.971 - 972. CJA Counsels only role
in the relevant proceedings below was as an adversary to Mr. Holiday, i.e., they
actively opposed the relief that Mr. Holiday sought.
Mr. Kretzer and Mr. Volberding cannot now appear for Mr. Holiday in an
appeal of a matter in which they were litigating against Mr. Holiday. At issue is
whether Mr. Holiday has been deprived of his enhanced right[] of representation
under 18 U.S.C. 3599. Martel v. Clair, 132 S. Ct. 1276, 1284 (2012). To
advocate for Mr. Holiday in this appeal, Mr. Kretzer and Mr. Volberding would be
required to argue against both their own interests and the positions they took before
the district court.
As the Supreme Court recently held, counsel cannot reasonably be expected
to denigrate their own performance in order to advance their clients legal
position because mak[ing] such an argument . . . threatens their professional
2

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reputation and livelihood. Christeson v. Roper, 135 S. Ct. 891, 894 (2015) (citing
the Restatement (Third) of Law Governing Lawyers 125 (1998)). A significant
conflict of interest arises when an attorneys interest in avoiding damage to [his]
own reputation is at odds with his clients strongest argument. Id. (quoting
Maples v. Thomas, 132 S. Ct. 912, 925 n.8 (2012)). See also Tex. Disciplinary R.
Prof. Conduct 1.06 (a lawyer shall not represent a person if the representation of
that person: (1) involves a substantially related matter in which that persons
interests are materially and directly adverse to the interests of another client of the
lawyer or the lawyer's firm; or (2) reasonably appears to be or become adversely
limited by the lawyer's or law firms responsibilities to another client or to a third
person or by the lawyer's or law firms own interests.); see 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.).
CONCLUSION AND PRAYER FOR RELIEF
Mr. Kretzer and Mr. Volberding opposed Mr. Holiday in the court below,
and have continued their opposition before this Court, as evidenced by their
attempt to dismiss their clients appeal over his objection.

Therefore, their

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

purportedly filed for Mr. Holiday yet plainly filed in conflict with his interests
are improper. Accordingly, Mr. Holiday respectfully moves this Court to strike
3

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their Appearances on his behalf and any pleadings they file purportedly on Mr.
Hollidays behalf.2
Alternatively, Mr. Holiday asks that he be permitted to file an Opposition to
the Motion to Dismiss Appeal within 48 hours of this Courts ruling on this Motion
to Strike.
Respectfully submitted,
BECK REDDEN LLP
By: /s/ Gretchen Sims Sween
Gretchen Sims Sween
515 Congress Avenue, Suite 1900
Austin, TX 78701
Telephone: (512) 708.1000
Facsimile: (512) 708.1002
Pro Bono Counsel for PetitionerAppellant Raphael Holiday

The Court should also strike the Record Excerpts filed by Mr. Kretzer and Mr. Volberding.
Mr. Holidays record excerpts are due on November 16, 2015 and shall be filed by undersigned
counsel on his behalf on or before that date. See TAB B

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CERTIFICATE OF SERVICE
I hereby certify that on November 4, 2015, I electronically transmitted this
Motion to Strike to the Clerk of the Court using the Courts ECF System. I further
certify that counsel of record for Appellee are being served with a copy of this
Motion by electronic means via the Courts ECF system, as follows:
Ellen Stewart-Klein
Office of Attorney General
Capitol Station
P.O. Box 12548
Austin, TX 78711-2548
Counsel for Respondent-Appellee William Stephens

/s/ Gretchen Sims Sween

Gretchen Sims Sween

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TAB A
ECF notifications regarding Forms for Appearance of
Counsel for Seth Kretzer filed October 29, 2015 and
J.W. Volberding filed October 30, 2015

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Melissa Patak
From:
Sent:
To:
Subject:

cmecf_caseprocessing@ca5.uscourts.gov
Thursday, October 29, 2015 9:06 PM
Melissa Patak
15-70035 Raphael Holiday v. William Stephens, Director "ECF Attorney Appearance Filed"

***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits
attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of
all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees
apply to all other users. To avoid later charges, download a copy of each document during this first
viewing.
United States Court of Appeals for the 5th Circuit
Notice of Docket Activity
The following transaction was entered on 10/29/2015 at 9:06:13 PM CDT and filed on 10/29/2015
Raphael Holiday v. William Stephens, Director
Case Name:
Case Number: 15-70035
Document(s): Document(s)

Docket Text:
APPEARANCE FORM for the court's review. Lead Counsel? No.. THE IMAGE FOR THIS FILING WILL
NOT BE VIEWABLE AS IT CONTAINS SENSITIVE INFORMATION. [15-70035] (Seth Kretzer )
Notice will be electronically mailed to:
Ms. Ellen Stewart-Klein, Assistant Attorney General: ellen.stewart-klein@texasattorneygeneral.gov,
ellen.stewart-klein@texasattorneygeneral.gov
Ms. Gretchen Sims Sween: gsween@beckredden.com, mpatak@beckredden.com, igutierrez@beckredden.com,
lcrain@beckredden.com
Mr. Seth Kretzer: seth@kretzerfirm.com

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

Document Description: Appearance Form
Original Filename: formforappearanceofcounsel.pdf
Electronic Document Stamp:
[STAMP acecfStamp_ID=1105048708 [Date=10/29/2015] [FileNumber=8047606-0]
[4d0ffbb41e649a9ab9fd33fd34f3beb6a194112aa8e7919356fb9785521e572c8d6bac35dcc047446914a87486808
7aef632aa5b6a070b9ad5a9c20e69736d8d]]

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Melissa Patak
From:
Sent:
To:
Subject:

cmecf_caseprocessing@ca5.uscourts.gov
Friday, October 30, 2015 11:14 AM
Melissa Patak
15-70035 Raphael Holiday v. William Stephens, Director "ECF Attorney Appearance Filed"

***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits
attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of
all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees
apply to all other users. To avoid later charges, download a copy of each document during this first
viewing.
United States Court of Appeals for the 5th Circuit
Notice of Docket Activity
The following transaction was entered on 10/30/2015 at 11:13:30 AM CDT and filed on 10/30/2015
Raphael Holiday v. William Stephens, Director
Case Name:
Case Number: 15-70035
Document(s): Document(s)

Docket Text:
APPEARANCE FORM for Attorney James W. Volberding for the court's review. Lead Counsel? No.. THE
IMAGE FOR THIS FILING WILL NOT BE VIEWABLE AS IT CONTAINS SENSITIVE INFORMATION.
[15-70035] (James Wesley Volberding )
Notice will be electronically mailed to:
Ms. Ellen Stewart-Klein, Assistant Attorney General: ellen.stewart-klein@texasattorneygeneral.gov,
ellen.stewart-klein@texasattorneygeneral.gov
Ms. Gretchen Sims Sween: gsween@beckredden.com, mpatak@beckredden.com, igutierrez@beckredden.com,
lcrain@beckredden.com
Mr. James Wesley Volberding: jamesvolberding@gmail.com, erinblairassistant@gmail.com

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

Document Description: Notice of Appearance for Attorney James W. Volberding
Original Filename: Holiday NOA Volberding.pdf
Electronic Document Stamp:
[STAMP acecfStamp_ID=1105048708 [Date=10/30/2015] [FileNumber=8047973-0]
[88e23bedee579dd32280edc15f4d1c6c3b64d247241786529559e999bf00f1976fdbdd0732084b51e78e92057f0a
716a6e57b420e358466ccf640e38343e07e3]]

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TAB B
ECF notification stating Mr. Holidays record
excerpts are due on November 16, 2015

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Melissa Patak
From:
Sent:
To:
Subject:

Gretchen Sween
Wednesday, November 04, 2015 9:40 AM
Melissa Patak
FW: Re-send: 15-70035 Raphael Holiday v. William Stephens, Director "Appellant/Petitioner
Brief Filed"

From: cmecf_caseprocessing@ca5.uscourts.gov [mailto:cmecf_caseprocessing@ca5.uscourts.gov]

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

***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits
attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of
all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees
apply to all other users. To avoid later charges, download a copy of each document during this first
viewing.
United States Court of Appeals for the 5th Circuit
Amended 11/02/2015 16:03:23: Notice of Docket Activity
The following transaction was entered on 11/02/2015 at 2:32:55 PM CST and filed on 11/02/2015
Raphael Holiday v. William Stephens, Director
Case Name:
Case Number: 15-70035
Document(s): Document(s)

Docket Text:
APPELLANT'S BRIEF FILED
# of Copies Provided: 0 A/Pet's Brief deadline satisfied. Record Excerpts due on 11/16/2015 for Appellant
Raphael Deon Holiday. Paper Copies of Brief due on 11/09/2015 for Appellant Raphael Deon Holiday. [1570035]
REVIEWED AND/OR EDITED - The original text prior to review appeared as follows: APPELLANT'S
BRIEF FILED by Mr. Raphael Deon Holiday. Date of service: 11/02/2015 via email - Attorney for Appellant:
Sween; Attorney for Appellee: Stewart-Klein [15-70035] (Gretchen Sims Sween )
Notice will be electronically mailed to:
Ms. Ellen Stewart-Klein, Assistant Attorney General: ellen.stewart-klein@texasattorneygeneral.gov,
ellen.stewart-klein@texasattorneygeneral.gov
Ms. Gretchen Sims Sween: gsween@beckredden.com, mpatak@beckredden.com, igutierrez@beckredden.com,
lcrain@beckredden.com
1

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

Document Description: Petitioner-Appellant's Opening Brief
Original Filename: Petitioner-Appellant's Opening Brief.pdf
Electronic Document Stamp:
[STAMP acecfStamp_ID=1105048708 [Date=11/02/2015] [FileNumber=8049493-0]
[86a235eb3184bb12f9a177d2ee95309606fb21768936eb10098b2ca35e16161f56a75dd5ae89eb1addda53611d3f
77c0a19d528baa834fa275fd68432fc363ee]]
Document Description: BR-5 Letter
Original Filename: /opt/ACECF/live/forms/mwashington_1570035_8049493_BriefDeficiency-BR5_173.pdf
Electronic Document Stamp:
[STAMP acecfStamp_ID=1105048708 [Date=11/02/2015] [FileNumber=8049493-3]
[0649ee0125a5a67dc314975751d4000679c8b4d8fde266be6a0a6b0213f01b3f1327e50a88da0e4cbb82406c425b
da0e0ec5e563a3e91afc4927c8cfd506091a]]
Recipients:

Ms. Ellen Stewart-Klein, Assistant Attorney General

Ms. Gretchen Sims Sween