Opinion
NO. WR-84,212-01
03-23-2016
IN RE STATE OF TEXAS EX REL. BRIAN RISINGER, Relator
ORDER ON SHOW CAUSE FOR UNTIMELY FILED DOCUMENT IN RAPHAEL DEON HOLIDAY'S CASES FROM CAUSE NOS. 10,423, 10,425, and 10,427 IN THE 278TH JUDICIAL DISTRICT COURT MADISON COUNTY Per curiam. ALCALA, J., filed a concurring statement. NEWELL, J., filed a concurring statement. ORDER
In June 2002, a jury convicted Raphael Deon Holiday of three capital murders. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, and the trial court, accordingly, set Holiday's punishment at death in each case. This Court affirmed Holiday's convictions and sentences on direct appeal. Holiday v. State, Nos. AP-74,446, AP-74,447, and AP-74,448 (Tex. Crim. App. Feb. 8, 2006)(not designated for publication). The Court also denied relief on Holiday's initial applications for writs of habeas corpus. Ex parte Holiday, Nos. WR-73,623-01, WR-73,623-02, and WR-73,623-03 (Tex. Crim. App. May 5, 2010)(not designated for publication).
The State charged Holiday in three separate indictments, each of which alleged the capital murder of a different individual. The cases were tried together, but the jury received a separate charge for each case, and the trial court entered three separate judgments and sentences.
References to Articles refer to the Texas Code of Criminal Procedure unless otherwise noted.
Attorney Alex Calhoun was counsel appointed to represent Holiday on his initial state writs of habeas corpus.
After Holiday was denied federal habeas relief, the trial court held a hearing on August 14, 2015, to set Holiday's execution date. Trial and appellate counsel Frank Blazek and William Carter attended the hearing, as did federal-court-appointed counsel Seth Kretzer. The trial court set Holiday's execution for Wednesday, November 18, 2015.
In a letter dated September 10, 2015, Holiday asked the federal district court whether any motions had been filed on his behalf by Mr. Kretzer or Holiday's other federally-appointed counsel James Volberding. Holiday intimated that he thought counsel had abandoned him. Mr. Kretzer responded with a letter to the court stating that he and Mr. Volberding still represented Holiday and that they had interviewed a potential witness about a possible claim for a successor state writ, but the information they obtained was insufficient. Holiday then wrote again to the federal district court stating that Mr. Kretzer and Mr. Volberding had indicated that they did not believe that there were any further claims they could file on his behalf. Holiday, therefore, asked the district court to appoint new counsel. Mr. Kretzer responded to Holiday's request by setting out some of the work he and Mr. Volberding had done on Holiday's behalf and noting that he, Mr. Blazek, and Mr. Carter had visited with Holiday for nearly two hours after the August hearing. Based upon Mr. Kretzer's representations, the federal court denied Holiday's pro se request for new counsel.
On October 21, 2015, another lawyer, Gretchen Sims Sween, appealed the denial of the appointment of new counsel and filed a motion to stay Holiday's execution. Mr. Kretzer and Mr. Volberding responded by filing a motion to substitute Ms. Sween as Holiday's counsel or, alternatively, to allow them to withdraw as counsel. However, because Mr. Kretzer identified no defect in the relationship with Holiday, because Ms. Sween wanted to limit her involvement in the case to the appeal of the denial order, and because no one had named another attorney willing to represent Holiday for all purposes, the federal court denied the motion to substitute counsel. The court subsequently denied a motion for reconsideration, and Ms. Sween filed an amended notice of appeal on October 26.
On November 10, 2015, Mr. Kretzer and Ms. Sween both represented to this Court that they did not intend to file any pleadings in state court on Holiday's behalf before his November 18, 2015, scheduled execution. On November 12, the Fifth Circuit affirmed the district court's orders denying the motion for the appointment of new counsel, denied Holiday's motion for a stay of execution, denied Mr. Kretzer's and Mr. Volberding's motion to dismiss the appeal as frivolous, and denied Ms. Sween's motion to strike Mr. Kretzer's and Mr. Volberding's appearances. The Court further "warn[ed] the attorney here [Ms. Sween] that subsequent attempts in this case to displace counsel will be viewed with skepticism." Holiday v. Stephens, No. 15-70035 (5th Cir. Nov. 12, 2015). On November 16, 2015, the Board of Pardons and Parole voted not to recommend reprieve or commutation in Holiday's case, and the United States Supreme Court denied certiorari in the attorney appointment matter two days later. Holiday v. Stephens, No. 15-6956 (U.S. Nov. 18, 2015).
Mr. Kretzer and Mr. Volberding filed a request for clemency. --------
On the day of the execution, this Court received word that trial counsel would file some pleading in the state trial court to stop the execution. Around 11:00 a.m., trial counsel Mr. Blazek and Mr. Carter filed in the trial court a motion to withdraw or modify the execution date. The trial court set the matter for a 1:00 p.m. hearing. Shortly after 2:00 p.m., the trial court withdrew the execution date. The State immediately advised this Court that it would challenge the ruling. Shortly after 4:00 p.m., the State filed in this Court a motion for leave to file a writ of mandamus.
This Court's Miscellaneous Rule 11-003 provides in pertinent part:
A motion for stay of execution, or any other pleading relating to a death sentence, must be filed in the proper court at least seven days before the date of the scheduled execution date (exclusive of the scheduled execution date). A pleading shall be deemed untimely if it is filed in the proper court fewer than seven days before the scheduled execution date.Pleadings filed on the day of an execution are clearly untimely under this rule. Thus, all parties in this case filed Miscellaneous Rule 11-003 statements with their pleadings.
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Counsel who seek to file an untimely motion for a stay of execution or who wish to file any other untimely pleading requesting affirmative relief in an impending execution case, must attach to the proposed filing a detailed
explanation stating under oath, subject to the penalties of perjury, the reason for the delay and why counsel found it physically, legally, or factually impossible to file a timely request, motion, or other pleading. Counsel is required to show good cause for the untimely filing.
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Counsel who fails to attach a sworn detailed explanation to an untimely filing or who fails to adequately justify the necessity for an untimely filing shall be sanctioned.
On December 16, 2015, this Court found good cause for the State's untimely-filed execution-day pleading, but we were not convinced about whether good cause existed for the pleadings filed by Mr. Blazek and Mr. Carter. Consequently, we ordered Mr. Frank Blazek and Mr. William F. Carter to appear before this Court at 9:00 a.m. on Wednesday, January 13, 2016, to offer further explanation and address any questions propounded by the Court about the matter.
Mr. Blazek and Mr. Carter both appeared before this Court and explained that they did not know about the rule prior to filing the execution-day pleadings. They agreed that the pleadings were untimely under the rule and that their Rule 11-003 affidavits were inadequate, but they explained that they did not intend to violate the Court's rules. The Court found that they had violated the rule, but further determined that both had shown good cause for why they should not be held in contempt. The attorneys were thereafter dismissed and the hearing was terminated. The show cause order is now dismissed and no sanctions shall issue.
IT IS SO ORDERED THIS THE 23rd DAY OF MARCH, 2016. Do not publish