            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. WR-84,212-01



           IN RE STATE OF TEXAS EX REL. BRIAN RISINGER, Relator



       ORDER TO APPEAR AND SHOW CAUSE FOR UNTIMELY FILED
           DOCUMENT IN RAPHAEL DEON HOLIDAY’S CASES
               FROM CAUSE NOS. 10,423, 10,425, and 10,427
               IN THE 278 TH JUDICIAL DISTRICT COURT
                          MADISON COUNTY

       Per curiam. N EWELL, J., filed a concurring statement. A LCALA, J., filed a
dissenting statement.

                                           ORDER

       In June 2002, a jury convicted Raphael Deon Holiday of three capital murders.1 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




       1
          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.
                                                                       Blazek & Carter/Holiday - 2

case.2 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.3 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).

         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 Kretzer or Holiday’s other federally-appointed

counsel James Volberding. Holiday intimated that he thought counsel had abandoned him.

Kretzer responded with a letter to the court stating that he and 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 Kretzer and Volberding had indicated that they

did not believe that there were any further claims they could file on his behalf. Holiday,



         2
             References to Articles refer to the Texas Code of Criminal Procedure unless otherwise
noted.
         3
          Attorney Alex Calhoun was counsel appointed to represent Holiday on his initial state
writs of habeas corpus.
                                                                    Blazek & Carter/Holiday - 3

therefore, asked the district court to appoint new counsel. Kretzer responded to Holiday’s

request by setting out some of the work he and Volberding had done on Holiday’s behalf and

noting that he, Blazek, and Carter had visited with Holiday for nearly two hours after the

August hearing. Based upon 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. Kretzer and

Volberding responded by filing a motion to substitute Sween as Holiday’s counsel or,

alternatively, to allow them to withdraw as counsel. However, because Kretzer identified no

defect in the relationship with Holiday, because 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 Sween filed an

amended notice of appeal on October 26.

       On November 10, 2015, Kretzer and 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 Kretzer’s and Volberding’s motion to dismiss the

appeal as frivolous, and denied Sween’s motion to strike Kretzer’s and Volberding’s
                                                                    Blazek & Carter/Holiday - 4

appearances. The Court further “warn[ed] the attorney here [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.4 Holiday v. Stephens, No. 15-6956 (U.S. Nov. 18, 2015).

       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

Blazek and 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.
                                         *    *     *
       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

       4
           Kretzer and Volberding filed a request for clemency.
                                                                    Blazek & Carter/Holiday - 5

         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.
                                           *    *    *
         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.

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.

         We find that the State filed its pleadings in direct response to the execution-day

pleadings filed by Blazek and Carter. Consequently, we find good cause for the State’s

untimely filing. But we cannot say the same for the pleadings filed by Blazek and Carter.

In the Miscellaneous Rule 11-003 statement filed by Blazek, Blazek stated that he

represented Holiday at trial and on direct appeal and that he was contacted from time to time

by Holiday’s “writ attorneys” for information about his representation.5 Blazek noted that

he was present at the hearing in which the trial court set Holiday’s execution date and that

he visited with Kretzer and Holiday. Blazek further noted that Kretzer said they would do

everything they could to save Holiday’s life, but they did not think anything else could be

done. Blazek stated that Holiday told him that “he wanted everything to be done to save his

life.”

         Blazek noted that, on November 12 or 13, he learned that the Fifth Circuit had

affirmed the federal district court’s order denying Holiday’s motion for the appointment of

         5
        It is unclear whether Blazek is referring to Volberding and Kretzer, Calhoun, or
someone else.
                                                                    Blazek & Carter/Holiday - 6

new counsel. Blazek stated that he emailed Sween, thanked her for her efforts, and

mentioned his thoughts that expert testimony admitted during Holiday’s trial might not be

admissible today. Blazek stated that on November 17, 2015, he was contacted by attorney

Dick Burr who advised him that the trial court might have the authority to withdraw the

execution date. According to Blazek, Burr indicated that he had spoken to Holiday and that

Holiday wanted such relief pursued. Nowhere in his statement does Blazek explain why he

found it “physically, legally, or factually impossible to file a timely request, motion, or other

pleading.”

       Carter’s Rule 11-003 statement is equally devoid of explanation. In his statement,

Carter noted that he represented Holiday at trial and on appeal. He stated that he was present

in the courtroom when the trial judge set Holiday’s execution date and that, when he visited

with Holiday, Holiday “told [him] he wanted everything to be done to save his life.” Carter

stated that, on the morning of November 18, 2015, he learned that Blazek was filing a motion

to withdraw the execution date, and he requested to join him in that motion. Carter signed

the motion and filed it the same date. Nothing in Carter’s statement explains why he found

it “physically, legally, or factually impossible to file a timely request, motion, or other

pleading.”

       Before we take any action pursuant to Miscellaneous Rule 11-003, we want to hear

from counsel in person. Therefore, we order Frank Blazek and William F. Carter to appear

before this Court at 9:00 a.m. on Wednesday, January 13, 2016, to offer further explanation
                                                                  Blazek & Carter/Holiday - 7

and address any questions propounded by the Court about the matter.

       It is further ordered by this Court that the Clerk of this Court shall issue Notice to

Appear and Show Cause commanding Frank Blazek and William F. Carter to appear and

show cause, in the manner and within the time specified in this order, why counsel should

not be sanctioned by this Court for failing to adequately justify the untimely filings. A copy

of this Order shall accompany the Notice.

       IT IS SO ORDERED THIS THE 16 th DAY OF DECEMBER, 2015.

Publish
                                OFFICER’S RETURN

                       In re State of Texas ex rel. Brian Risinger

                                    WR-84,212-01

      Came to hand on this the ____ day of __________, 20 , at ______ o’clock, ___.M.,
and executed at Walker County, Texas, on the _____ day of __________, 20 , by delivering
to Frank Blazek, the original ORDER TO APPEAR AND SHOW CAUSE which
accompanied this writ.

      To certify which witness my hand officially.


                                        ____________________________________
                                        (Signature)

                                        ____________________________________
                                        (Print or type name)

                                        ___________________________________
                                        (Title)

                                        of Walker County, Texas
                                OFFICER’S RETURN

                       In re State of Texas ex rel. Brian Risinger

                                    WR-84,212-01

       Came to hand on this the ____ day of __________, 20 , at ______ o’clock, ___.M.,
and executed at Walker County, Texas, on the _____ day of __________, 20 , by delivering
to William F. Carter, the original ORDER TO APPEAR AND SHOW CAUSE which
accompanied this writ.

      To certify which witness my hand officially.


                                        ____________________________________
                                        (Signature)

                                        ____________________________________
                                        (Print or type name)

                                        ___________________________________
                                        (Title)

                                        of Walker County, Texas
