Motion to Withdraw Execution

7/24/2019 Motion to Withdraw Execution

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

THE STATE OF TEXAS IN THE DISTRICT COURT OF

VS. MADISON COUNTY, TEXAS

RAPHAEL DEON HOLIDAY 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. SeeTex. 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 Oct. 12, 2013) (unpublished) (attached as Exhibit 1) (withdrawing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 June 18, 2013) (unpublished)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 (292ndJudicial

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 Jan. 29, 2013) (unpublished) (attached as Exhibit 3) (modifying an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-

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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-73,623-

01, 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



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the TCCA had not yet recognized such testimony to be too unreliable to be

admissible. The Supreme Court has turned away per seconstitutional challenges to

admissible, expert predictions of future dangerousness. SeeBarefoot 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

1The Court of Criminal Appeals rejected a similar constitutional claim in Coblenot because the use of such testimony is always constitutional but because, based onthe specific facts in Coble, the admission of the testimony did not have a substantialand injurious effect on the outcome. Coble, 330 S.W.3d at 287.



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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



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post-conviction relief and seek clemency. SeeBrandi 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

2Mr. Holiday is now represented by private, volunteer counsel on his appeal butthe lawyer limited her pro bono representation of Mr. Holiday to trying to secure newcourt-appointed counsel for Mr. Holiday. See Lawyers Stop Helping, supra.

http://www.dallasnews.com/news/state/headlines/20151116-condemned-mans-lawyers-sthttp://www.dallasnews.com/news/state/headlines/20151116-condemned-mans-lawyers-sthttp://www.dallasnews.com/news/state/headlines/20151116-condemned-mans-lawyers-sthttp://www.dallasnews.com/news/state/headlines/20151116-condemned-mans-lawyers-st


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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. CARTER108 E. William J. Bryan Parkway

Bryan, Texas 77803-5334Telephone: 979-779-0712Telecopier: 979-779-9243Email: [email protected] Bar No. 03932800

SMITHER, MARTIN,HENDERSON & BLAZEK, P.C.1414 11th StreetHuntsville, Texas 77340(936) 295-2624

(936) 294-9784 [Telecopier]Email: [email protected]

By ___________________________ Frank Blazek State Bar No. 02475500

3Feeling the pressure of Mr. Holiday's appeal concerning their abandonment oftheir client, federally-appointed counsel slapped together a clemency petition within

the 48 hour-period preceding the due date for the petition. Their effort was notmeaningful. They simply reiterated legal arguments they had made and lost andpresented the case for clemency in the light most unfavorable to Mr. Holiday. Thepetition altogether failed to speak to the factors that go the heart of executiveclemency," which is "to grant clemency as a matter of grace, thus allowing theexecutive to consider a wide range of factors not comprehended by earlier judicialproceedings and sentencing determinations. Ohio Adult Parole Authority v. Woodard,523 U.S. 272, 280-81 (1998) (Rehnquist, C.J.).



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Certificate of Service

I do hereby certify that a true and correct copy of the above and foregoingDefendant's Motion to Withdraw or Modify Execution Date has been forwarded toopposing counsel on this the 18th day of November, 2015, by hand delivery

addressed as follows:

Brian RisingerCriminal District AttorneyMadison County Courthouse101 W. Main, Room 207Madisonville, Texas 77864

_______________________________Frank Blazek



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




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.

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Signed this 18th day of November, 2015.

___________________________________Presiding Judge278th District CourtMadison County, Texas

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




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 a Warrant of Execution setting the defendants execution for

_______________________________.

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Signed this 18th day of November, 2015.

___________________________________Presiding Judge278th District CourtMadison County, Texas

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Documents

Motion to Withdraw Execution