Opinion
NO. WR–84,212–01
12-16-2015
In re State of Texas ex rel. Brian Risinger, Relator
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 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, 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 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, 806 F.3d 334 (5th Cir.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, ––– U.S. ––––, 136 S.Ct. 387, 193 L.Ed.2d 418 (2015).
Kretzer and 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 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 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. 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."
It is unclear whether Blazek is referring to Volberding and Kretzer, Calhoun, or someone else.
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 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 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 16th DAY OF DECEMBER, 2015.
Newell, J., filed a concurring statement. Alcala, J., filed a dissenting statement.
Attachment
THE STATE OF TEXAS
NOTICE TO APPEAR AND SHOW CAUSE
TO: Frank Blazek and William F. Carter;
GREETINGS:
WHEREAS , the Court of Criminal Appeals on December 16, 2015, made and entered the order to appear and show cause. A correct and complete copy of the Order is attached to this Notice and fully incorporated for all purposes.
NOW, THEREFORE, Frank Blazek and William F. Carter are hereby commanded to appear and show cause, in the manner and within the period specified in the Order of December 16, 2015, why counsel should not be sanctioned by the Court of Criminal Appeals for failing to adequately justify the untimely filings.
WITNESS MY HAND and Seal of the Court of Criminal Appeals, at the City of Austin, Texas, on this 16 th day of December, 2015.
ABEL ACOSTA, CLERK
COURT OF CRIMINAL APPEALS
STATE OF TEXAS
TO: The Sheriff of any County or any Constable of any County, Texas Ranger, Texas Highway Patrolman, or any Peace Officer within the State of Texas.
GREETINGS:
YOU ARE HEREBY COMMANDED that you serve upon Frank Blazek of Walker County and William F. Carter of Walker County the accompanying ORDER TO APPEAR AND SHOW CAUSE issued from the Court of Criminal Appeals of the State of Texas on December 16, 2015.
HEREIN FAIL NOT, but of this writ and notice made due return, under the penalty prescribed by law, with your endorsement showing how you executed the same.
WITNESS MY HAND and Seal of the Court of Criminal Appeals of the State of Texas affixed at the City of Austin, Texas, on this the 16 th day of December, 2015.
ABEL ACOSTA, CLERK
COURT OF CRIMINAL APPEALS
STATE OF TEXAS
P.O. BOX 12308, CAPITOL STATION
AUSTIN, TX 78711
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
Newell, J., filed a concurring statement.
I join the Court's order for counsel Frank Blazek and William F. Carter to appear before this Court to explain why they filed an untimely motion to withdraw the warrant of execution for their client Raphael Deon Holiday. As the other judge who dissented to this Court's denial of mandamus relief regarding Holiday's motion to withdraw his warrant of execution, I now feel it incumbent upon me to write separately to explain why I voted against mandamus relief and why I agree with the Court's order to show cause.
Counsel Filed a Motion to Withdraw the Order of Execution Not a Subsequent Writ
The Court's show cause order sets out in detail the timeline of events leading up to the day of Raphael Holiday's execution. It is worth repeating that even though Holiday had four different attorneys purporting to act on Holiday's behalf (as well as a fifth one attempting to intervene to provide assistance), none of these attorneys filed a subsequent application for a writ of habeas corpus pursuant to Article 11.071, Section 5 of the Code of Criminal Procedure prior to their client's execution. As early as August 14, 2015, these attorneys were aware of not only the pending execution date, but also their client's repeated attempts to secure legal help to advance his case in various venues.
The only motion filed in state court was a motion to withdraw the warrant of execution pursuant to Article 43.141(d)(1). TEX.CODE CRIM. PROC. ANN. art. 43.141(d)(1) (West 2013). There is simply no other way to characterize the motion at issue in this case. Under its own terms, the motion to withdraw acknowledged that a subsequent application for a writ of habeas corpus had yet to be filed. It requested the warrant be withdrawn in order to afford Holiday an opportunity to file one, perhaps with the assistance of Blazek and Carter, or perhaps with help by another, as-yet-unknown attorney. As further justification for the motion to withdraw the warrant, the attorneys listed two possible claims they sought to raise in a to-be-filed application for a subsequent writ of habeas corpus: the use of unreliable expert testimony as to future dangerousness in Holiday's trial, and a complaint that one of his three capital murder convictions was barred by double jeopardy.
Attorney Blazek represented Holiday on direct appeal, raising forty-nine points of error related to eighteen different aspects of the trial. Holiday v. State, AP–74,446, AP–74,447, AP–74448 (Tex.Crim.App. Feb. 8, 2006) (not designated for publication). He did not raise a challenge based upon double jeopardy even though such a claim was clearly available prior to trial and on direct appeal. He did challenge the admissibility of unreliable expert testimony on direct appeal, but this Court has already rejected that argument with only one judge dissenting on that basis. Holiday v. State, AP–74,446, AP–74,447, AP–74,448, 2006 WL 288661 at *1 (Tex.Crim.App. Feb. 8, 2006) (Womack, J., dissenting) (not designated for publication)
See Martinez v. Ryan, 132 S.Ct. 1309, 1320 (2012) (holding that, "[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective").
The legal basis for the motion was primarily statutory. The attorneys relied explicitly upon their interpretation that Article 43.141 allowed a trial court to withdraw an order of execution even where no subsequent writ of habeas corpus had been filed or was pending before the trial court. They provided examples of district courts that had signed orders withdrawing or modifying warrants of execution to grant more time to file a subsequent application for writ of habeas corpus. They also included an equitable argument that the warrant of execution should be withdrawn so that Holiday could continue litigating his requests for representation in federal court as well as have state habeas counsel appointed to assist with a subsequent writ. The order itself ordered the execution date to be withdrawn "to permit those proceedings to be filed and adjudicated."
It is true that we look to the substance of pleadings in extraordinary matters to determine their character. In re Daniel, 396 S.W.3d 545, 549 (Tex.Crim.App.2013). However, even the substance of the pleadings from the body of the motion to the proposed order reveals this was exactly what it claimed to be-a motion to withdraw or modify the execution date. It was not intended as a subsequent application for a writ of habeas corpus. If it were, there would be no reason for the litigants to argue that they needed more time in order to file a subsequent application for writ of habeas corpus. Suggesting that the trial court could have reasonably regarded this unverified motion as a subsequent application for a writ of habeas corpus blinks reality.
The Motion to Withdraw was not A Motion in Arrest of Judgment
If construing the motion in this case as a subsequent writ blinks reality, suggesting it should be treated like a motion in arrest of judgment alters reality entirely. A motion in arrest of judgment is a defendant's oral or written suggestion that, for reasons stated in the motion, the judgment rendered against the defendant was contrary to law. TEX.R.APP. P. 22.1. The rules of appellate procedure provide that a motion in arrest of judgment can be granted on any of the following grounds: (a) that the indictment or information is subject to an exception on substantive grounds; (b) that in relation to the indictment or information a verdict is substantively defective; or (c) that the judgment is invalid for some other reason. TEX.R.APP. P. 22.2. It is, in effect, a post-trial motion to quash the indictment limited to any complaints about the indictment made by timely objection prior to trial. See e.g. Crittendon v. State, 923 S.W.2d 632, 634 (Tex.App.-Houston [1st Dist.] 1995, no pet.).
Subsection (c) does not expand the scope of the grounds for a motion in arrest of judgment beyond those set out in former Article 41.03 of the Texas Code of Criminal Procedure because the legislative grant of rulemaking authority to this Court does not allow any rules that abridge, enlarge, or modify substantive rights of a litigant. Tex. Gov't.Code Ann. § 22.018(a) (West 2013); Flowers v. State, 935 S.W.2d 131, 132–34 (Tex.Crim.App.1996). Former Article 41.03 limited the grounds for a motion in arrest of judgment to exceptions to the indictment or information. Crittendon, 923 S.W.2d at 634 n. 1.
See "Reply to Respondent–Appellee's Opposition to Stay," Brief of Raphael Deon Holiday, No. 15–70035, Nov. 10, 2015, Fifth Circuit Court of Appeals.
Additionally, a motion in arrest of judgment must be filed no later than 30 days after the date when the trial court imposes or suspends sentence in open court. TEX.R.APP. P. 22.3. Like a motion for new trial, the trial court has seventy-five days to rule upon the motion, and it is deemed denied if the trial court does not rule upon the motion within that time period. TEX.R.APP. P. 22.4. Tellingly, the effect of a trial court's grant of a motion in arrest of judgment is to restore the defendant to the position he or she was in before the indictment or information was presented. TEX.R.APP. P. 22.6.
The motion at issue in this case did not ask to place Holiday in the position he was before the indictment was presented. It was not based upon arguments he had raised prior to trial. And it was presented at least a decade after sentence was imposed in open court. Arguing that this was an arrest of judgment that the State could have appealed has no basis in law or fact. I can only assume that is why Holiday's attorneys did not make that argument in their response to the State's petition for mandamus relief.
Article 43.141(d)(1) Explicitly Requires a Pending Writ Application
After the trial court granted the motion, the State sought mandamus relief with this Court. In the reply to the State's petition, Holiday averred through his counsel that "The motion was predicated on the existence of at least two constitutional claims that Holiday seeks to raise in a subsequent habeas corpus application, both of which may meet the requirements of Texas Code of Criminal Procedure Article 11.071 § 5." Thus, unlike many "last-minute" death-penalty filings, in this case, the Court was faced with a relatively discrete issue of law: Does Article 43.141 allow a trial court to withdraw a warrant for execution when no application for a writ of habeas corpus is pending? A plain reading of the statute reveals that it does not.
Article 43.15 of the Code of Criminal Procedure explicitly authorizes a trial court to enter an order setting a date for an execution. TEX.CODE CRIM. PROC. ANN. art. 43.15 (West 2013). Article 43.141 addresses scheduling of the execution date, and the trial court's authority to withdraw or modify the order of execution. TEX.CODE CRIM. PROC. ANN. art. 43.141. Article 43.141(d) reads as follows:
(d) The convicting court may modify or withdraw the order of the court setting a date for execution in a death penalty case if the court determines that additional proceedings are necessary on:
(1) a subsequent or untimely application for a writ of habeas corpus filed under Article 11.071 ; or
(2) a motion for forensic testing of DNA evidence submitted under Chapter 64.
Id. Notably, subsection (d) authorizes the trial court to modify or withdraw an order setting a date for execution if additional proceedings are necessary. TEX.CODE CRIM. PROC. ANN. art. 43.141(d) (West 2013). However, that subsection presupposes that the underlying document that requires additional proceedings has already been filed or submitted. Id. This limitation of the trial court's authority may appear to be harsh in its application, particularly in the context of this case, but the language could not be more clear.
It is worth noting that this statutory provision was passed in 1995 as part of a larger effort to streamline review of death penalty cases. Included as one of many rationales for passage of the statute was the need to decrease the delay between a capital murder conviction and the imposition of a death sentence. House Comm. on Criminal Jurisprudence, Bill Analysis, C.S.S.B 440, 74th Leg., R.S. (April 27, 1995) ("1995 Bill Analysis") (available at: http://www.legis.state.tx.us/tlodocs/74R/analysis/html/SB00440H.htm). And allowing the trial court authority to withdraw a valid execution order without a showing of active pleadings would necessarily allow a trial court to delay an execution indefinitely. While the legislative history is not necessary to clarify any ambiguity in the statute, it does reinforce the observation that the limitation of a trial court's ability to withdraw an execution unless one of two types of filings are pending is due to a legislative design to decrease delay in post-conviction proceedings.
See In re Allen, 462 S.W.3d 47, 49 (Tex. Crim. App.2015) ( "Mandamus relief is appropriate only when a relator establishes (1) that he has no adequate remedy at law to redress his alleged harm, and (2) that what he seeks to compel is a ministerial act, not a discretionary or judicial decision.").
This Court has not published any opinions addressing whether a trial court can nevertheless withdraw or modify an order for execution despite the language of the statute, but we have weighed in on the issue twice. In In re Roach, the trial court withdrew an order setting the execution of Charles Dean Hood even though there were no active pleadings before it. No. WR–4116–08, 2008 WL 2486229 at *1 (Tex.Crim.App. June 17, 2008) (not designated for publication). The trial court then recused itself, thereby transferring authority to the regional presiding judge. Id. The State subsequently filed an application for a writ of mandamus to order the regional presiding judge to rescind the order withdrawing the death warrant. Id. We granted mandamus relief explaining that the trial court lacked authority to withdraw the order setting the execution date because the plain text of the statute required a pending or active pleading to justify the modification or withdrawal. Id. at *2.
I acknowledge that these cases are unpublished and lacking in precedential value. Tex.R.App. P. 47.7. I discuss them because they were cited by the parties in the underlying case. Even if they had precedential value, they do not support the trial court's order in this case.
See Holiday v. Stephens, No. H–11–1696, 2013 WL 3480384 (S.D.Tex. July 10, 2013) ; Holiday v. State, Nos. AP–74,446, AP–74,447, AP–74,448, at 2–5 (Tex. Crim. App. Feb. 8, 2006).
Similarly, Ex parte Cannady, this Court considered a third subsequent application for a writ of habeas corpus in the capital murder case of Rogelio Cannady. No. WR–25462–07, 2010 WL 2006763 at *1 (Tex.Crim.App. May 17, 2010) (not designated for publication). This Court first determined that Cannady's third subsequent application for writ of habeas corpus failed to satisfy the dictates of Article 11.071, § 5, and we therefore dismissed the application and denied his motion to stay his execution. Id. We went on to address the fact that Cannady had filed a motion to withdraw the order of execution prior to filing his third subsequent habeas application. Id. We observed:
This motion was authorized under Texas Code of Criminal Procedure article 43.141, and may be ruled upon by the trial court under the dictates of that statute. However, in denying the motion, the trial court declared that it was treating the motion as a subsequent application, and it opined that it was not authorized to modify or withdraw its previous order until this Court determined whether the requirements of Article 11.071, § 5, had been met.
Applicant's motion standing alone is not, and will not be construed by this Court to be, a subsequent writ application subject to Article 11.071 review.
Id. The trial court apparently denied the motion—as it was required to—under Article 43.141 because no subsequent writ application was pending. Id. This Court's observation in Cannady —that the trial court's stated reason for denying the motion was incorrect because a motion under Article 43.141 is not a subsequent application for a writ of habeas corpus and should not be construed as such—did nothing to suggest that a trial court can withdraw an order of execution when no subsequent habeas application is pending. A defendant is authorized to file a motion to withdraw under Article 43.141, but a trial court must deny it (under the dictates of the statute) if there are no active pleadings. Even assuming precedential status for these two cases, I see no inconsistency between our holdings in Roach and Cannady or between our holdings in those cases and the express terms of the statute.
Additionally, Holiday's attorneys cited (and provided) several trial court orders withdrawing an execution date as proof that a trial court has the authority to do so even when no application for a writ of habeas corpus is pending. However, these orders were not brought before this Court on a petition for writ of mandamus, and indeed, at least one was entered by agreement of the parties. Consequently, these orders do not support the proposition that the trial court could properly construe Article 43.141(d)(1) to authorize withdrawal of an execution order when there is no pending application for a writ of habeas corpus on file.
The State's Petition for Writ of Mandamus Was Not Procedurally Barred
It is true that the current rules of appellate procedure do not specifically require that this Court request a response from the trial court before granting relief on a petition for a writ of mandamus. But it is not at all clear that the rules of appellate procedure governing the Texas Supreme Court and the courts of appeals do so either. Rule 52.2 designates three different parties to an original proceeding. TEX.R.APP. P. 52.2. The party seeking relief is the relator, the State in this case, while the person against whom relief is sought is the respondent, in this case the trial court. Id. Rule 52.2 also designates the person whose interest would be directly affected by the relief sought as a real party in interest and a party to the case. Id. In this matter, Raphael Holiday was the real party in interest and, by virtue of his interest in his own case, a party.
Rule 52.4 of the Rules of Appellate Procedure governs responses in original proceedings in the Texas Supreme Court and the court of appeals. The rule allows that "any party may file a response to the petition, but it is not mandatory." TEX.R.APP. P. 52.4. The rule also states "The court must not grant relief—other than temporary relief—before a response has been filed or requested by the court." Id.
On its face, Rule 52.4 does not require a response, or a request for a response, from all parties before the court can grant relief. Id. As long as a response has been filed from the most interested party, a court may grant relief. Id. See e.g. In re Prudential Ins. Co. of America, 148 S.W.3d 124, 140 (Tex.2004) (granting mandamus relief where respondent was trial court, but the real party in interest filed response to petition for mandamus rather than the respondent); In re Living Centers of Texas, Inc., 175 S.W.3d 253 (Tex.2005) (same). Courts of appeals routinely request a response from the real party in interest and proceed with only that response rather than insisting upon an response from the trial court because, understandably, the real party in interest has far more interest and investment in the case. See e.g. In re Victor Enterprises, Inc., 308 S.W.3d 455, 457 (Tex.App.–Dallas 2010, original proceedings); In re Living Centers of Texas, Inc., 228 S.W.3d 678 (Tex.App.-Corpus Christi 2004, original proceedings), mand. granted, 175 S.W.3d 253 (Tex.2005) ; In re Patricia Gist, 974 S.W.2d 843 (Tex.App.-San Antonio 1998, original proceedings). If granting mandamus relief without requesting a response from the trial court—as opposed to the interested parties—violates a civil litigant's right to due process, the Texas Supreme Court has yet to say so.
This need for a response from the trial court is a red herring because the real party in interest filed a response in this case. Holiday did not argue that the State's petition for writ of mandamus should be rejected on procedural grounds based upon the lack of a request for a response from the trial court or that the failure to do so violated due process. And this Court did not grant the State's petition without receiving Holiday's response and considering it. I acknowledge that time for consideration was necessarily condensed, but that was a direct result of the timing of the motion to withdraw itself. I could not find any cases from the Texas Supreme Court interpreting the scope of Rule 52.4 as requiring a request for a response from the trial court even after the real party in interest has responded. Admittedly, the Rules of Appellate Procedure could be clarified to further explain the scope of Rule 52.4 as well as make it explicitly applicable to original proceedings in this Court. However, I do not think that the Rules Advisory Committees for either this Court or the Texas Supreme Court should be faulted for an oversight that would have had no impact on this case. Focusing upon the alleged shortcomings of the Rules of Appellate Procedure needlessly distracts from the real candidate for correction, Article 43.141. Amending Article 43.141 to expand the trial court's authority or grant the State a right to appeal such a withdrawal order would do more to avoid the circumstances presented here than requiring a request for a response from the trial court even after receiving a response from the real party in interest.
The Dallas Court of Appeals has held Rule 52.4 prohibited granting mandamus relief where the relator was not afforded an opportunity to respond. In re Victor Enterprises, Inc., 304 S.W.3d 669 (Tex.App.-Dallas 2010, no writ). While the court of appeals opined that failing to afford the relator an opportunity to respond violated due process, the sole support for that holding was the rule itself. Id. More importantly, the opinion was not concerned with a claim that due process requires a request for a response from the trial court even where the interested parties have responded.
See Tex. Code Crim. Proc. art. 44.01(a)(2) (permitting State to appeal trial court's order that "arrests or modifies a judgment"); State v. Baize, 981 S.W.2d 204, 206 (Tex. Crim. App.1998) (a sentence is "that part of the judgment ... that orders that the punishment be carried into execution in the manner prescribed by law").
As head of the Court of Criminal Appeals Rules Advisory Committee, Judge Alcala is well-positioned to suggest these changes going forward.
Mandamus Relief Would Have Been Warranted On a Pure Article 43.141(d)(1) Withdrawal Order
On the merits of the State's petition for writ of mandamus, I agree with the Court that the trial court was not allowed to withdraw the order of execution under the terms of Article 43.141(d)(1). In order to be entitled to relief, the State was required to show: 1) that it had no adequate remedy at law, and 2) that it sought to compel a ministerial act. In re State ex rel. Weeks, 391 S.W.3d 117, 121–22 (Tex.Crim.App.2013). This ministerial act requirement is satisfied if the relator can show a clear right to the relief sought. In re Bonilla, 424 S.W.3d 528, 533 (Tex.Crim.App.2014). A clear right to relief is shown when the facts and circumstances dictate but one rational decision under unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources), and clearly controlling legal principles. Weeks, 391 S.W.3d at 122.
Additionally, with respect to the "no adequate remedy at law" requirement, we have explained that a remedy at law, though it technically exists, may nevertheless be so uncertain, tedious, burdensome, slow, inconvenient, inappropriate, or ineffective as to be deemed inadequate. Greenwell v. Court of Appeals for the Thirteenth Judicial Dist., 159 S.W.3d 645, 648–49 (Tex.Crim.App.2005). Article 43.141 provides no avenue for appeal for the State to review the trial court's order withdrawing an order of execution. State v. ex rel. Lykos v. Fine, 330 S.W.3d 904, 916 (Tex.Crim.App.2011) (holding that the State had no adequate remedy at law to prevent hearing on constitutionality of the death penalty prior to trial where the State lacked the ability to appeal a trial court's order preventing it from pursuing a capital-murder conviction and a sentence of death). I do not see any other adequate remedy at law for the State to seek review of the trial court's order that is not "too uncertain, tedious, burdensome, slow, inconvenient, inappropriate, or ineffective to be deemed inadequate." Greenwell, 159 S.W.3d at 648–49. Acquiescing to the new execution date or trying to shoehorn the issue into review of the as-yet-unfiled subsequent writ application would still not provide review of the underlying issue, the propriety of the order to withdraw. See In re McCann, 422 S.W.3d 701, 710–11 (Tex.Crim.App.2013) (noting that relator had no adequate remedy at law even though he could seek relief from his order for contempt through a writ of habeas corpus because it would not resolve the underlying issue in the case); see also Ex parte Henderson, 246 S.W.3d 690, 692 (Tex.Crim.App.2007) (addressing application for subsequent writ of habeas corpus without addressing propriety of trial court's order withdrawing execution date). Holiday's counsel did not argue that the State had an adequate remedy at law because the State simply did not.
The terms of Article 43.141 are clear; a trial court cannot withdraw an order setting the execution for additional proceedings unless a subsequent or an untimely application writ of habeas corpus has already been filed. TEX.CODE CRIM. PROC. ANN. art. 43.141 (West 2013). In Weeks, we acknowledged that statutory provisions could be the basis for a showing of a clear right of relief. Weeks, 391 S.W.3d at 124–26. The Court was reasonable in determining that the statutory provision in this case was clear, and that our own prior actions (even though they were unpublished opinions) did not contradict the text of Article 43.141(d)(1). I cannot fault the majority of this Court for granting the State's petition for mandamus relief on this basis.
Mandamus was Inappropriate Because the Trial Court Retained Inherent Authority to Withdraw or Modify its Orders
But the attorneys in this case also based their motion to withdraw on a claim that Holiday's federal writ counsel had effectively abandoned him. To me, that is the heart of the matter. As both this Court's show cause order and the dissenting statement detail, Holiday had repeatedly requested assistance from Seth Kretzer and James Volberding, Holiday's federally-appointed writ counsel. After having exhausted his direct appeal and his first application for a writ of habeas corpus in this State and litigated his federal writ of habeas corpus through to the United States Supreme Court, Volberding informed Holiday that he would not be filing additional appeals or seeking clemency because neither presented a realistic chance of sparing Holiday's life. See Brandi Grissom, Condemed 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–lawyer–stop–helping–cite–false–hope.ece ). Attorneys Blazek and Carter were aware of these developments and filed the motion to withdraw the execution date pending the filing of a subsequent writ after an attorney with no connection to the case suggested filing a motion to withdraw the order of execution. While they were unclear as to whether they might be filing the subsequent writ application, they raised equitable concerns based upon federal writ counsel's failures as a basis for the trial court's order independent of Article 43.141.
It is worth noting that the United States Supreme Court denied the request for a stay of execution despite this attorney-abandonment theory. Holiday v. Stephens, 577 U.S. –––– at 1, 136 S.Ct. 387, 193 L.Ed.2d 418 (2015). Even Justice Sotomayor, who wrote a concurring statement to opine that the trial court should have allowed the substitution of counsel, ultimately agreed with the Court to deny the stay because counsel had ultimately filed a clemency petition. Id. 388, 2015 WL 7282622 at *2.
In their response to the State's petition for writ of mandamus, they observed that Article 43.141 was not the only source of authority for the trial court to act. Relying upon the trial court's "plenary power" to alter its own orders, they argued that the trial court could modify or rescind its orders through authority independent of the statute. And they also cited to Ex parte Henderson, where a trial court had recalled the defendant's death warrant "in the interest of justice" so that the defendant could have sufficient time to gather additional material for a subsequent writ application. Ex parte Henderson, 246 S.W.3d 690, 692 n. 1 (Tex.Crim.App.2007). This argument properly focused on what I felt was the central concern of the case: whether a trial court could-in the interest of justice-withdraw a warrant of execution where the defendant represents that the defendant's counsel had effectively stopped representing him and he needs new counsel. Given that the issue is at least unsettled, I voted to deny mandamus relief.
In Henderson this Court evaluated the propriety of the subsequent writ application, not the propriety of the trial court's order, which was necessarily a moot issue at that point. 246 S.W.3d at 691. Even so, the trial court did not base its withdrawal order on Article 43.141(d)(1) ; it justified the withdrawal as being "in the interests of justice" suggesting reliance upon the trial court's inherent authority.
Under the Texas Constitution, district courts are invested with inherent authority to execute their own judgments. Kelly v. State, 676 S.W.2d 104, 107 (Tex.Crim.App.1984). In addition to express grants of power conferred by constitution, statute, or common law, courts have inherent and implied powers that provide a much broader foundation upon which to act. State v. Patrick, 86 S.W.3d 592, 601 (Tex.Crim.App.2002) (Cochran, J., dissenting); See also TEX. GOV'T.CODE ANN. § 21.001(a) (setting out that a court has "all powers necessary for the exercise of its jurisdiction and the enforcement of its lawful orders, including the authority to issue the writs and orders necessary or proper in aid of its jurisdiction"). In Eichelberger v. Eichelberger, 582 S.W.2d 395, 398 (Tex.1979), our sister court recognized this inherent authority of a trial court to aid in the exercise of its jurisdiction, in the administration of justice, or in the preservation of its independence and integrity. See also State v. Johnson, 821 S.W.2d 609, 612 (Tex.Crim.App.1991) (citing Eichelberger ). As Judge Cochran observed in her dissenting opinion in Patrick, there are essentially two contradictory views of a trial court's authority: whatever is not forbidden is permitted, and whatever is not explicitly authorized is forbidden. Patrick, 86 S.W.3d at 601. Because I view the trial court's authority under the former principle, I would have held that the trial court properly relied upon its inherent authority by withdrawing its order setting an execution date in light of the equitable claims raised in Holiday's motion.
However, I fully acknowledge that taking this position is almost completely undermined by Staley v. State, 420 S.W.3d 785 (Tex.Crim.App.2013). There, this Court was faced with the difficult question of whether federal or state law prohibited the involuntary medication of a mentally ill inmate for the purpose of carrying out an order of execution. Id. at 786. Rather than decide the issue on constitutional grounds, we held that Article 46.05 of the Code of Criminal Procedure, which governs a defendant's competency to be executed, did not authorize the trial court to involuntarily medicate a mentally ill inmate. Id. at 796. In doing so, we rejected an argument that such action was justified under a trial court's inherent authority. Id. In effect, we took the position that the trial court could not act unless statute specifically authorized the trial court's actions even though it had jurisdiction to rule upon the issue of competency. Id. Returning to Judge Cochran's dissent in Patrick, the Court took the "whatever is not explicitly authorized is forbidden" view of inherent authority, and I disagree with that view. I would have reached the same result in Staley, but on different grounds.
Yet, the fact remains that Staley is binding authority that sharply limits a trial court's inherent authority to the terms of the statute governing the proceedings. Arguably, the scope of the rationale we announced in Staley may not extend to orders under Article 43.141, and the unsettled nature of the scope of the holding in Staley could justify a denial of the State's petition for mandamus relief in Holiday's case. Simon v. Levario, 306 S.W.3d 318, 322 (Tex.Crim.App.2009). But I cannot fault a majority of the Court for reading Staley as a limitation of a trial court's authority in this case any more that I could fault Judge Alcala for authoring Staley in the first place.
A Show Cause Hearing Guarantees More Information Not a Particular Outcome
This Court's Miscellaneous Rule 11–003 is important to the proper consideration of pleadings relating to an impending execution. In re Dow, 460 S.W.3d 151, 157 (Tex.Crim.App.2015) (Alcala, J., dissenting). The purpose of the rule is to ensure both that a defendant has an opportunity to raise any issues pertinent to the impending execution and that this Court has an adequate opportunity to consider those pleadings. Id. Violations of this rule could harm a defendant if a judge cannot adequately consider a defendant's pleadings, but it can also harm society through an unmeritorious stay of execution merely because of the compressed time a judge has to consider the pleadings. Id. The concerns are weighty, indeed.
The dissent advocates passionately that this Court did not have adequate time to consider the pleadings in this case. But the timing of Holiday's motion dictated the compressed time frame. The accompanying statement from the attorneys merely states that they decided to file the motion to withdraw the execution order the day before the execution date after being informed by another attorney that they could do so. Contrary to the dissent's factual assertions, nothing in Blazek's or Carter's statements establishes that these two attorneys "did not know Holiday needed counsel until the day before the scheduled execution." The only reference to the day before the scheduled execution appears in Blazek's statement, and it recites that Blazek was contacted by an attorney regarding the possibility of filing a motion to withdraw the order of execution. This information was preceded by acknowledgments that Kretzer had told Holiday in August that he did not think anything else could be done in Holiday's case, and that another attorney had considered representing Holiday on October 9, 2015. It may very well be that Blazek and Carter were unaware that Holiday needed counsel, but that is not what the good cause certificate says. I am more than willing to commend Blazek and Carter for stepping into the breach when no one else would if that is the appropriate response after the hearing, but I have not pre-judged the issue and would rather hear what they have to say before I decide. And the hearing itself could provide valuable insight for handling future cases. That is why I join the Court's order to show cause.
With these thoughts, I concur.
Alcala, J., filed a dissenting statement.
About a month ago, on November 18, 2015, the State of Texas executed Raphael Deon Holiday for capital murder. Holiday's execution occurred despite three factors that should have allowed him to remain alive to pursue habeas relief and to file a new clemency petition: (1) the trial-court judge withdrew Holiday's execution date based on his conclusion that Holiday had presented claims for habeas relief that warranted further litigation, (2) as I noted in my previous dissenting statement in this case, this Court's majority should have denied the State's last-minute petition for mandamus relief because the State failed to show that the trial court's order withdrawing Holiday's execution date was ministerial in nature and that there was no adequate remedy at law, and (3) as Supreme Court Justice Sotomayor stated in her concurring statement on the night of Holiday's execution, Holiday should have been permitted to obtain new counsel to replace his federally appointed counsel who had failed to zealously represent him in his clemency proceedings and who abandoned him at the last moment, thus leaving Holiday without effective counsel in the few short days before his execution.See Holiday v. Stephens, ––– U.S. ––––, 136 S.Ct. 387, 193 L.Ed.2d 418 (2015) (mem.op.) (Sotomayor, J., concurring). Now, after having erroneously permitted the State to execute Holiday a month ago, this Court's majority compounds the mistake by issuing a show-cause order against Holiday's pro bono counsel, Frank Blazek and William F. Carter, who stepped in at the very last minute to fill the void left by Holiday's federally appointed attorneys. Rather than commend Blazek and Carter for attempting to ensure that a death-row inmate was represented by counsel in his last days of life, this Court's majority instead orders Blazek and Carter to appear before this Court to show cause to explain why they should not be sanctioned by this Court. Because my review of the totality of the pleadings and circumstances reveals that Blazek and Carter did not violate the spirit of this Court's Miscellaneous Rule 11–003 by filing the motion to withdraw Holiday's execution date on the day of Holiday's execution, I dissent to this Court's instant show-cause order. To explain my reasoning, (1) I detail the background facts leading up to Holiday's execution, (2) I explain, as I did in my dissenting statement issued on the night of Holiday's execution, why the State's petition for a writ of mandamus that resulted in the reinstatement of the execution warrant by this Court's majority was decided in a procedurally flawed manner and was substantively unmeritorious, and (3) I conclude that the underlying facts before us are facially inadequate to even issue this show-cause order and that the issuance of this order will detrimentally affect the legal representation of all death-row inmates facing imminent execution. I believe that publishing this dissenting statement is appropriate because it is extremely likely that this situation—a trial court seeking to withdraw its order of execution based on a last-minute motion by pro bono counsel and a resulting show-cause order related to a late filing—will occur again in the future and that this opinion will provide guidance to future litigants.
I. Background
The State brought three charges of capital murder, in three separate indictments, for the deaths of each of the three children killed on September 5, 2000 in a fire started by Holiday. See Holiday v. State, Nos. AP–74, 447, AP–74,448, 2006 Tex. Crim. App. Unpub. LEXIS 737 (Tex. Crim. App. Feb. 8, 2006) (not designated for publication). One indictment charged Holiday with murdering more than one person during the same criminal transaction, and each of the other two indictments charged him with the murder of an individual under the age of six. Id. At trial and on direct appeal, Holiday was represented by appointed attorneys William F. Carter and Frank Blazek, the same two attorneys who are the subject of the current show-cause order.
Holiday's conviction was challenged in state court on direct appeal and in an initial state habeas application. After his conviction, this Court affirmed his conviction on direct appeal in 2006. Id. Holiday's motions for rehearing were denied later that same year. Id. Also that year, the Supreme Court denied his petition for a writ of certiorari. Holiday v. Texas, 549 U.S. 1033, 127 S.Ct. 580, 166 L.Ed.2d 434 (2006) (mem. op.). While his direct appeal was pending, Holiday filed an application for state habeas corpus relief. Ex parte Holiday, Nos. WR–73,623–01, WR–73,623–02, WR–73,623–03, 2010 WL 1797258 (Tex. Crim. App. May 5, 2010). Holiday was represented by attorneys Gerald Bierbaum and Alex Calhoun. Without an evidentiary hearing as to Holiday's claims, this Court adopted the trial court's proposed findings of fact and conclusions of law, and it denied relief. Id.
Holiday's conviction was also challenged in federal habeas corpus proceedings. In 2013, Holiday filed a petition for a writ of habeas corpus in the federal district court. See Holiday v. Stephens, No. H–11–1696, 2013 WL 3480384, at *40, 2013 U.S. Dist. LEXIS 98004, at *125–26 (S.D.Tex. July 10, 2013). At that time, Holiday was represented by federally appointed attorneys Seth Kretzer and James W. Volberding. The district court denied relief and rejected a petition for rehearing. Id. In October 2014, the United States Court of Appeals for the Fifth Circuit denied a certificate of appealability as to numerous claims on which the district court had denied habeas relief. Holiday v. Stephens, 587 Fed.Appx. 767, 788 (5th Cir.2014). The court also denied his petition for rehearing. Id. The Supreme Court then denied Holiday's petition for writ of certiorari at the end of June 2015. Holiday v. Stephens, ––– U.S. ––––, 135 S.Ct. 2893, 192 L.Ed.2d 930 (2015) (mem.op.).
After the culmination of the direct appeal and state and federal habeas litigation, the trial court scheduled Holiday's execution. On August 14, which was about six weeks after the Supreme Court's ruling, the trial-court judge set Holiday's execution to occur about three months later, on November 18. The judge issued a death warrant for that date. Holiday was represented by Kretzer at the hearing, but Blazek and Carter also attended the hearing.
The following month, Holiday filed a pro se motion in the federal district court over a dispute that had arisen that summer between Holiday and counsel Kretzer and Volberding, which resulted in Holiday's belief that he had been abandoned by counsel. Holiday desired further litigation to challenge his death sentence, but counsel believed that the litigation should cease. According to the record of the proceedings in the federal district court, Volberding wrote a letter to Holiday stating that the Supreme Court had denied Holiday's appeal and that the ruling "marks the end of work for your appeals." Volberding represented in the letter that neither he nor Kretzer would file any further appeals for Holiday because they did not believe that "any further appeals [would] have any chance of success." Volberding's letter also said that they would not seek clemency for Holiday due to the unlikelihood of success. Volberding's letter told Holiday that an execution date would soon be set. The letter concluded that the attorneys did not believe that any successor writ had even a remote chance of success, but they agreed to cooperate with any new counsel that Holiday might obtain.Faced with the appointment of lawyers who were refusing to seek clemency and declining to pursue any further litigation, Holiday sought the appointment of new counsel in the federal district court. In his letter to the court requesting the appointment of new counsel, Holiday asserted that he effectively had "no attorneys representing" him. He requested that the court appoint him new counsel "for clemency and a possible state or federal successor petition, possibly based on the Martinez v. Ryan case."1 He observed that Kretzer and Volberding had "refused to argue clemency, [ ] which is a common formality if nothing more, in all death row cases where an execution warrant had been issued," and he sought a stay of execution to pursue additional litigation with the assistance of new counsel. After counsel Kretzer and Volberding opposed Holiday's request for new counsel, the federal district court denied it.
On October 19, which was less than a month before the scheduled execution, Holiday obtained pro bono counsel, Gretchen Sims Sween with Beck Redden LLP, for her assistance in obtaining new federally appointed counsel to replace Kretzer and Volberding. Sween filed both a notice of appeal and a motion to reconsider, in which she asked the federal district court to reassess its previous denial of Holiday's request for new counsel under 18 U.S.C. § 3599. The federal district court denied Sween's motion. In response to Sween's filing of a notice of appeal, Kretzer filed a motion asking the district court to substitute counsel and permit him and Volberding to withdraw, but Kretzer specified that pro bono counsel Sween should be Holiday's new counsel of record. Sween, however, had signed on as appellate counsel for the limited purpose of representing Holiday in his efforts to obtain substitute counsel, and she was unable to serve as appointed counsel under § 3599. Other than his agreement to the appointment of Sween, Kretzer continued to oppose Holiday's request for substitute counsel under § 3599. The district court denied Sween's motion.
In response to the allegation that they had abandoned Holiday, counsel Kretzer and Volberding filed a last-minute application on October 28 for commutation of sentence, or alternatively, reprieve from execution of death sentence with the Texas Board of Pardons and Paroles. The application largely repeated the contents of the federal writ of habeas corpus, and it was denied by the board two days before Holiday was executed.
Dissatisfied with the last-minute clemency petition filed by Kretzer and Volberding, Sween filed an appeal in the United States Court of Appeals for the Fifth Circuit challenging the district court's orders permitting their continued appointment, and she pursued a motion to stay the execution. See Holiday v. Stephens, 806 F.3d 334 (5th Cir.2015) (per curiam). In response, Kretzer and Volberding, who remained Holiday's counsel of record, moved to dismiss Holiday's appeal as frivolous. Id. In her November 10 pleadings to the Fifth Circuit, Sween explained that, with an execution date looming, Holiday was being forced to litigate against both the State and his own appointed counsel, Kretzer and Volberding. Sween noted that the record plainly showed that a conflict emerged by at least June 30, 2015, when Kretzer and Volberding informed Holiday of "their decision to cease working for him, invited him to find pro bono counsel to take over, then, once he turned to the district court for help, actively resisted his efforts to obtain substitute appointed counsel in time to seek various forms of relief still available to him."2 Sween concluded that the "conflict between client and counsel has continued to escalate and is now playing out before this Court." Describing the extreme conflict between Holiday and appointed counsel, Sween stated,
[Counsel] aligned themselves against their client before the district court and now align themselves against their client and join arms with the State while suggesting that the only attorney authorized to undertake this appeal on Mr. Holiday's behalf is somehow a rogue interloper. This Kafkaesque scenario is what breeds cynicism about the representational rights that Congress enacted and the procedural safegards that the Supreme Court has developed specifically for the capital context.
Sween additionally contended that Holiday was entitled to the appointment of "appointed counsel who are not conflicted by self-interest and thus will zealously pursue clemency proceedings and all other available post-conviction relief" on his behalf. She asserted that a "central argument in Mr. Holiday's Opening Brief is that he still has preserved claims that could be pursued in a second, but not successive, federal habeas petition, which [Kretzer and Volberding] simply abandoned." Sween additionally asserted that Holiday had habeas claims that Kretzer and Volberding preserved but failed to pursue.
On November 12, which was six days before Holiday's scheduled execution, the Fifth Circuit rejected Holiday's appeal. See Holiday, 806 F.3d at 335 (concluding that the district court "did not abuse its discretion in denying Holiday's motion for the appointment of new counsel," affirming its orders denying the motion for appointment of new counsel, and denying Holiday's motion for a stay of execution). Although it declined to dismiss the appeal as frivolous, as Kretzer and Volberding had sought, the Court warned Sween that subsequent attempts to displace Volberding and Kretzer would be "viewed with skepticism." Id. at 335 n.1.
In the late morning on November 18, 2015, the day of Holiday's scheduled execution, which was four work days after the Fifth Circuit refused to appoint new federal counsel for Holiday, Blazek and Carter, who had represented Holiday at trial, filed a "motion to withdraw or modify" the order scheduling his execution because "additional proceedings [were] necessary on a subsequent application for a writ of habeas corpus and to afford [him] an opportunity to have meaningful access to clemency proceedings." Furthermore, the motion asserted that Holiday "has at least two claims he seeks to raise in subsequent state habeas applications: (1) the trial court's admission of unreliable expert testimony as to Mr. Holiday's future dangerousness by psychiatrist Edward Gripon violated the Texas and United States Constitutions; and (2) that Mr. Holiday's right to be free from double jeopardy was violated when he was charged, convicted, and sentenced to death twice for causing the same individual's death." Holiday argued that both "claims [were] procedurally viable under Tex.Code Crim. Proc. art. 11.071 § 5." The motion presented specific facts supporting each of these arguments.After determining that Holiday's motion was meritorious, the trial court granted it, withdrew the previous order that had set Holiday's execution to occur that night, and recalled the warrant of execution so that the execution would not occur that night. The order explained that the trial court found that "additional proceedings [were] necessary on a subsequent application for a writ of habeas corpus under Tex.Code Crim. Proc. art. 11.071, and [the trial court was] of the opinion that the execution date now in force should be withdrawn to permit those proceedings to be filed and adjudicated."
Later that day, shortly after four in the afternoon, the State filed a motion for leave to file a petition for a writ of mandamus in this Court and a petition for a writ of mandamus challenging the trial court's order withdrawing the execution date. In its first of three arguments, the State asserted that the trial court lacked authority to impede this Court's mandate that had ordered Holiday's execution. Second, the State cited to Article 43.141 of the Texas Code of Criminal Procedure, arguing that it limited the trial court's authority to modify or withdraw an execution date to certain circumstances, and further asserting that these circumstances were inapplicable to Holiday's case. The State cited to this Court's unpublished order in In re John R. Roach as authority for the proposition that an active habeas pleading was necessary to invoke the trial court's authority under Article 43.141. See In re John R. Roach, No. WR–41,168–08, 2008 WL 2486229 (Tex. Crim. App. June 17, 2008) (not designated for publication). Third, the State argued that it had no adequate remedy at law due to the last-minute nature of the proceedings.
According to this Court's clerk's file marks, at 6:23 p.m., which was about two-and-a-half hours after the State filed its petition, Blazek and Carter filed a response on Holiday's behalf, in which they raised three primary arguments. First, citing to cases holding that a petition for a writ of mandamus can be granted only for acts that are ministerial in nature, they asserted that, "[b]ecause arguments to support the positions of both relator and Mr. Holiday exist, it cannot be said that the trial court had a ministerial duty to refrain from withdrawing the order setting Mr. Holiday's execution." They noted that, in contrast to Roach, another decision by the Court of Criminal Appeals and the practice of multiple district courts in Texas indicated that a trial court is empowered to consider and rule on a motion to withdraw an order setting an execution date under circumstances similar to those present in this case. The responsive pleading stated,
[A]uthority subsequent in time to Roach reflects that a trial court is empowered to consider and rule on a motion to withdraw an order setting an execution date that is filed in advance of a subsequent habeas corpus application. See Ex parte Cannady, WR–25,462–07, 2010 WL 2006763 (Tex. Crim. App. May 17, 2010) (not designated for publication). In Cannady, "prior to filing his subsequent application in the trial court, applicant filed a motion to withdraw the order of the court setting applicant's execution date." Id. The trial court denied the motion opining that it was not authorized to modify or withdraw its previous order until the CCA had determined whether the requirement of Texas Code of Criminal Procedure Article 11.071, § 5 had been met. This Court observed, however, that the withdrawal "motion was authorized under Texas Code of Criminal Procedure article 43.141, and may not be ruled upon by the trial court under the dictates of that statute." Id. .... Moreover, trial
courts across the State have interpreted Article 43.141 to permit them to withdraw orders setting execution dates in precisely such circumstances and for precisely the same reasons as here. See e.g., State v. Brown, No. 636535 (351st Judicial Dist. Ct. Oct. 12, 2013) (unpublished) ... (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) ... (modifying execution date to allow the applicant to file a successive habeas application); State v. McCarthy, No. F97–34795–V (292nd Judicial Dist. Ct. January 29, 2013) (unpublished) ... (modifying execution date upon a finding that additional proceedings were necessary on a yet-to-be filed subsequent habeas application and additional time was necessary to prepare the application). Thus, arguments to support the positions of both relator and Mr. Holiday exist and mandamus will not lie.
Because of the numerous instances in which this Court has permitted modification of an execution date, and given the absence of any published authority disallowing modification of an execution date under the circumstances present in this case, counsel argued that mandamus relief was inappropriate.
Second, citing to cases holding that mandamus generally will not lie as to an issue of first impression, counsel noted that there was no published decision interpreting the trial court's authority to withdraw the scheduled execution date. They observed that the only authority offered by the State was Roach, an unpublished order that had no precedential value, and thus the decision could not be considered as clearly establishing any legal principle.
Third, counsel argued that Roach was distinguishable based on its facts. The trial court's withdrawal of the execution date in Roach occurred after this Court had already dismissed Roach's subsequent habeas application. There was thus no possible way that any additional proceedings could occur on Roach's application. In contrast, in Holiday's case, the trial judge's order withdrawing the scheduled execution date anticipated that Holiday would file a subsequent application and that additional proceedings on that application would be conducted upon its filing.
At the time that Holiday's response to the State's petition was filed, Blazek filed a good-cause certificate to explain his untimely filing. Blazek explained that he was one of Holiday's trial attorneys and that he was present when the trial court set Holiday's execution date in August of 2015. At that time, Holiday's attorney, Kretzer, told Blazek that he would do everything that he could to save Holiday's life, but that he did not think that anything else could be done. Holiday expressed his desire to pursue anything that might save his life. A couple of months later, on October 9, Blazek spoke to attorney Richard Ellis, who indicated that he was considering representing Holiday for the purpose of attempting to stop his execution. Blazek explained that it was not until mid-November that he learned that Holiday had new pro bono counsel, Sween, and he sent her an email thanking her for her efforts. On November 12 or 13, Blazek learned that Kretzer and Volberding were opposing Sween's attempts to seek appointment of new federal counsel for Holiday. On November 17, Blazek was contacted by attorney Dick Burr, who advised him that the trial court had authority to withdraw the execution date and that he had been in touch with Holiday, who desired that this relief be pursued. The next morning, Blazek filed the motion to withdraw Holiday's execution date that is at issue in the present show-cause order.
Carter filed a similar good-cause certificate that indicated that, when the trial court set the execution date, Holiday was represented by counsel. On November 18, Carter learned that Blazek was filing a motion to withdraw the execution date and joined Blazek in filing the motion.
According to this Court's clerk's file mark, this Court's majority issued its order granting relief to the State and voiding the trial court's order at 6:43 p.m., which was around twenty minutes after receiving Holiday's response and less than three hours after having received the State's petition for mandamus. This Court's majority order determined that the trial court lacked authority to rescind the warrant of execution because Article 43.141(d) limited the trial court's power to withdraw a scheduled execution to situations in which a habeas application had already been filed and, in the absence of an active filing, the trial court's order withdrawing the execution was void. The order stated,
A trial judge has the authority to withdraw or modify a death warrant "if the court determines that additional proceedings are necessary on ... a subsequent or untimely application for a writ of habeas corpus filed under Article 11.071." (Emphasis added.) Art. 43.141(d). As we have previously held, the judge had no power to consider the merits of any claims that might be raised in possible future applications without the permission of this Court. See Art. 11.071 § 5 and In re John R. Roach, No. WR–41,168–08 (Tex. Crim. App. June 17, 2008) (not designated for publication). The trial judge, therefore, was without authority to act.
This Court concluded, "[B]ecause of the time sensitive nature of these pleadings, we hold that the trial court's November 18, 2015 order withdrawing the death warrant is void, and the death warrant is still valid."
Concurrently with this Court's majority order reinstating the warrant of execution on Holiday, I issued a dissenting statement on the basis that the trial court's withdrawal of the execution order was discretionary rather than ministerial and that the State had failed to demonstrate that it lacked any adequate remedy at law. My dissenting statement said,
I respectfully dissent from this Court's judgment granting mandamus relief to the State and voiding the trial court's order withdrawing the execution date for Raphael Deon Holiday. Although the Court apparently concludes that the State has no adequate remedy at law and that the act it seeks to compel is a ministerial act, thereby entitling it to mandamus relief, I disagree.3 The authority upon which the convicting court relied in withdrawing Holiday's execution date is Code of Criminal Procedure Article 43.141, which states that the convicting court "may modify or withdraw the order of the court setting a date for execution in a death penalty case if the court determines that additional proceedings are necessary on: (1) a subsequent or untimely application for a writ of habeas corpus filed under Article 11.071 [.]" TEX.CODE CRIM. PROC. art. 43.141(d)(1). The convicting court withdrew Holiday's execution date in response to a motion filed by Holiday, in
which he asserted that "additional proceedings are necessary on a subsequent application for a writ of habeas corpus and to afford [him] an opportunity to have meaningful access to clemency proceedings." Although the Court grants the State relief on the basis that it has a clear right to relief in this situation, it is not at all obvious to me that the plain language in Article 43.141 so clearly prohibits the judge of the convicting court from withdrawing an execution date in order to permit a death-sentenced individual to pursue additional post-conviction proceedings. See In re Allen, 462 S.W.3d 47, 50 (Tex. Crim. App.2015) ("A clear right to relief is shown when the facts and circumstances dictate but one rational decision ‘under unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources), and clearly controlling legal principles."). Moreover, the Court does not even consider whether the State has demonstrated that it lacks any adequate remedy at law in this situation, which is an additional prerequisite to the granting of mandamus relief. See id. Because I conclude that the State has not made the necessary showing that it is entitled to the extraordinary remedy it seeks, I respectfully dissent.
On the same night that Holiday was executed, the Supreme Court denied his petition for certiorari.See Holiday , 136 S.Ct. at 387–88. Justice Sotomayor wrote separately in a statement respecting the application for stay of execution and denial of certiorari. Id. In her statement, Justice Sotomayor noted that the federal district court had abused its discretion when it refused to appoint new counsel to replace Kretzer and Volberding. Id. at 387. She explained, "When Congress authorized federally funded counsel to represent clients in clemency proceedings, it plainly ‘did not want condemned men and women to be abandoned by their counsel at the last moment and left to navigate the sometimes labyrinthine clemency process from their jail cells.’ " Id. She concluded, "Yet, this is exactly what happened here." Id. She continued, "Although the ‘interests of justice’ standard contemplates a peculiarly context-specific inquiry, it surely precludes a court from rejecting a substitution motion solely because it agrees with the appointed attorneys' premonitions about clemency." Id. ( citation omitted). She conclusively stated, "So long as clemency proceedings were ‘available’ to Holiday ... the interests of justice required the appointment of attorneys who would represent him in that process." Id. at 387–88. But, because Kretzer and Volberding eventually filed a clemency petition on Holiday's behalf, Justice Sotomayor "reluctantly" agreed with the Court's decision to deny Holiday's petition for certiorari. Id. at 388. She noted, "This [clemency] application proved unsuccessful—and likely would have benefitted from additional preparation by more zealous advocates." Id. Justice Sotomayor did note, however, that perhaps a state court could order the parole board to reconsider its clemency decision with new counsel who would zealously represent Holiday. See id. (concluding that "this Court, unlike a state court, is likely to have no power to order Texas to reconsider its clemency decision with new attorneys representing Holiday").
At around eight at night, the State of Texas executed Holiday. This Court's time for deciding his case lasted less than three hours on a single night, and further deliberations or rehearings are impossible.
The dissenting statement that I issued on the night of Holiday's execution was prepared in the few short hours from the time that I first received the filings on the State's motion and petition for mandamus until the time that this Court issued its majority order in this case. Due to the limited time, it was impossible for me to include the background facts of the case or to fully express all of my concerns about this Court's majority order in my dissenting statement, and so I am using this opportunity to more fully explain my reasoning here before addressing the current show-cause order.
II. The State's Petition for Mandamus
As of about an hour before his scheduled execution, the warrant of execution had been lifted by the trial court and the State had no authority to carry out the sentence that evening. The execution occurred that night because this Court's majority granted the State's petition for mandamus relief within less than three hours of its filing. I conclude that this Court's actions that night were both procedurally and substantively flawed and that the trial court's order should have remained in place unaltered by this Court.
A. The State's Petition Should Not Have Been Granted for Procedural Reasons
This case demonstrates that civil and criminal litigants involved in mandamus proceedings receive due process through the Texas Rules of Appellate Procedure in every appellate court in Texas except the Court of Criminal Appeals. Section three of the Texas Rules of Appellate Procedure is entitled, "Original Proceedings in the Supreme Court and the Courts of Appeals." See TEX. R. APP. P . 52. No corresponding section exists for criminal cases in the Court of Criminal Appeals. This means that petitions for writs of mandamus are not subject to any definitive procedural rules in the Court of Criminal Appeals. Stated more starkly, this Court has promulgated no rules of appellate procedure governing an eleventh-hour petition for mandamus relief relating to a criminal defendant facing imminent execution, while a civil litigant with a petition for mandamus relief relating to a small financial claim is afforded the protections of the Texas Rules of Appellate Procedure. The absence of procedural rules like the ones that guide every other appellate court in Texas resulted in swift resolution of the State's petition with little time for meaningful consideration of the pleadings by the real party in interest and no consideration of any possible response from the respondent. Here, less than three hours transpired between the time that this Court received the State's motion and petition for a writ of mandamus and the time that this Court issued its order granting the State's requests. And only a maximum of twenty minutes could have been devoted to any consideration of Holiday's response to the State's pleadings. Furthermore, this Court granted the State's petition for mandamus without asking for or receiving any response from the respondent, the trial court judge. Had this been a motion and petition for mandamus in a civil case or in any other appellate court, Rule 52.4 of the Texas Rules of Appellate Procedure would have required this Court to abstain from granting relief, other than temporary relief, at least until this Court had requested a response from the trial-court judge or he had filed a response. Because Holiday was facing imminent execution and his case fell within the jurisdiction of the Court of Criminal Appeals, he received none of the protections and rights from the rules of appellate procedure that are afforded to civil litigants as a matter of course. Because capital-murder cases are the only ones that require exclusive consideration by this Court, and because Section three of the rules of appellate procedure does not expressly apply to proceedings in this Court, the result is that the most serious punishment known to the law—the execution of a defendant for a capital offense—receives less due process than a civil litigant or a criminal defendant whose petition is heard in an intermediate court of appeals.
But, even in the absence of compulsory applicability of the rules of appellate procedure, this Court's majority should have, in the interests of justice and due process, applied the same procedural rules that provide due process to civil litigants seeking mandamus relief. This Court's majority should have requested a response from the respondent and temporarily stayed the execution until that response was received. Here, the trial-court judge had issued an order withdrawing the scheduled execution and recalling the warrant, and this Court's majority, at a minimum, should have afforded the judge the opportunity to respond before reversing the trial judge's orders.
Furthermore, I believe that this Court should promulgate rules of procedure that apply to petitions for mandamus relief filed in this Court so that litigants can know the requirements for this type of pleading and so that procedural rules will not be made up on the fly when a defendant is facing imminent execution. It strains common sense that there are robust procedural rules that apply to civil litigants and to criminal cases in the courts of appeals, but that no such rules apply to the most serious criminal cases pending in the Court of Criminal Appeals. This Court should not wait until the next petition is filed in an impending execution before promulgating rules of procedure applicable to petitions for mandamus filed in this Court.
B. The State's Petition Substantively Failed to Meet the Requirements for Petitions for Mandamus
Here, as in my original dissenting statement in this case, I conclude that the State failed to establish the substantive requirements for obtaining relief on a petition for a writ of mandamus, and thus the State's petition should have been denied. I agree with Holiday's three arguments described above in his response to the State's petition, and I additionally determine that the State failed to show that it lacked an adequate remedy at law. Because neither of the two mandamus requirements were satisfied in this case, the State's petition for mandamus relief should have been denied.
First, as I stated in my original dissenting statement and as Holiday pointed out in his responsive pleadings to this Court, a petition for a writ of mandamus can be granted only as to acts that are ministerial in nature. Here, the trial court's order was not issued in the performance of a ministerial duty. Rather, the order was instead the result of the court's discretionary decision to consider the pleadings before it in Holiday's motion as a substantive assertion of an application for habeas relief. Applying the plain language of Article 43.141, which permits a trial court to withdraw a scheduled execution, to the substance of the pleadings filed by Holiday, the trial-court judge acted within the bounds of his discretion in withdrawing the scheduled execution date. Code of Criminal Procedure Article 43.141 provides that the convicting court "may modify or withdraw the order of the court setting a date for execution in a death penalty case if the court determines that additional proceedings are necessary on: (1) a subsequent or untimely application for a writ of habeas corpus filed under Article 11.071 [.]" TEX. CODE CRIM. PROC. art. 43.141(d)(1). It is true that the plain language of the statute uses the word "filed" in reference to a habeas application filed under Article 11.071. See id. That plain language could be satisfied by showing that a document labeled as an application had been filed with the clerk, or, alternatively, that any document that had been filed, regardless of its label, substantively included pleadings that could be fairly characterized as a habeas application. See In re Daniel, 396 S.W.3d 545, 549 (Tex. Crim. App.2013) ("It has long been our practice with respect to pleadings in extraordinary matters to look to the substance of the pleading, not its denomination."); see also TEX. CODE CRIM. PROC . art. 11.03 ("The writ of habeas corpus is not invalid, nor shall it be disobeyed for any want of form, if it substantially appears that it is issued by competent authority, and the writ sufficiently shows the object of its issuance."). Thus, as long as it reasonably determined that Holiday had presented facts that substantively presented grounds for habeas relief in any document filed with the trial court, the trial court properly could withdraw the scheduled execution under the authority of Article 43.141. See TEX.CODE CRIM. PROC. art. 43.141(d)(1).
Here, the substance of Holiday's motion to withdraw the scheduled execution included the two claims comprising his habeas application, and he detailed the facts supporting these claims. The trial court's order granting Holiday's motion to withdraw the execution date indicated that the court considered that "additional proceedings [were] necessary on a subsequent application for a writ of habeas corpus." Appellant argued that both "claims are procedurally viable under Tex.Code Crim. Proc. art. 11.071 § 5." The motion presented facts supporting each of his arguments. Holiday's motion satisfied the plain language in the statute that permits the convicting court to modify or withdraw the order of the court setting a date for execution in a death-penalty case if the court determines that additional proceedings are necessary on a subsequent or untimely application for a writ of habeas corpus filed under Article 11.071. See TEX.CODE CRIM. PROC. art. 43.141(d)(1). Requiring a separate document to present the habeas application rather than considering the substance of the arguments in support of the habeas application is precisely the type of elevation of form over substance that this Court has repeatedly rejected in numerous cases. Had this Court's majority looked to the substance of the pleadings rather than their label, this Court would have concluded, as did the trial-court judge, that the trial court had the authority under the statute to withdraw Holiday's scheduled execution. Considering the substance of his motion to withdraw the execution date, the only thing missing from Holiday's motion was the label "subsequent application for a writ of habeas corpus." I would hold that, considering this Court's jurisprudence permitting a court to look to the substance of pleadings rather than their label, the trial court could have reasonably determined that the substance of Holiday's motion presented a habeas application filed under Article 11.071 and that the plain language of Article 43.141 permitted the trial court to withdraw the execution date. And even if the trial-court judge did not expressly state this rationale in his order, given the strict requirements for granting mandamus relief, it was the State's burden to demonstrate that the trial judge's actions in withdrawing the execution date were in clear contravention of unequivocal, well-settled, and clearly controlling legal principles, which, under these circumstances, it could not do. See In re Bonilla, 424 S.W.3d 528, 533 (Tex. Crim. App.2014). This case comes down to this: Holiday's execution occurred that night because he failed to file a separate piece of paper with the words "subsequent application" to incorporate the substance of his motion to withdraw the execution into a post-conviction writ application. I conclude that the trial-court judge could have reasonably made the determination that Holiday's motion to withdraw his execution date was a filing that substantively included facts that would entitle Holiday to habeas relief. In this respect, the trial-court judge's order was discretionary rather than ministerial. Furthermore, within the bounds of his discretionary decision, the trial judge's order comported with the plain language in Article 43.141. Thus the State's petition for mandamus relief should have been denied.
Second, as Holiday asserted in his response to the State's petition, Roach was an unpublished order that had no precedential value. This Court wrongfully relied on Roach as authority in contravention to the Rules of Appellate Procedure that prohibit appellate courts from using unpublished cases as precedent. TEX. R. APP. P. 77.3. Furthermore, as Holiday noted in his response to the State's petition, Roach appears to be an aberration in a body of case law in which this Court has permitted a trial court to withdraw its execution order. At most, in light of the competing contrary case law from this Court, the Roach decision merely muddied the waters, and thus was an inappropriate basis for granting mandamus relief. See In re Allen, 462 S.W.3d 47, 52 (Tex. Crim. App.2015) (holding that mandamus would not lie where a previous opinion from this Court "at a minimum, muddies the waters" so that the right to relief was not clear). The Roach decision, therefore, was not a proper basis for granting mandamus relief in this case.
Third, as Holiday argued in his response to the State's petition, Roach was factually distinguishable. As noted above, here the substance of the pleadings in the motion included facts presenting post-conviction habeas claims that had not yet been adjudicated, as compared to Roach, a case in which this Court had already dismissed Roach's subsequent habeas application. Even if it were binding precedent, Roach was easily distinguishable from the facts presented here.
With respect to the possible merits of the habeas relief intended to be sought by Holiday, I conclude that habeas relief may have been proper in one of the cases for which Holiday had been convicted and sentenced to death. As explained above, Holiday was convicted for three charges of capital murder based on three separate indictments. One indictment charged Holiday with murdering more than one person during the same criminal transaction. The other two indictments charged him with murdering an individual under the age of six.4 Holiday was sentenced to death on all three convictions. This Court has held that a conviction violates double jeopardy, as here, when a victim's death is the basis of two capital-murder convictions. See Ex parte Milner, 394 S.W.3d 502, 510 (Tex. Crim. App.2013) (holding that applicant's two convictions for attempted capital murder resulting from allegations involving the same three victims violated double jeopardy, and concluding that "only one of these attempted capital murder convictions may be upheld"); Saenz v. State, 166 S.W.3d 270, 274 (Tex. Crim. App.2005) (holding that Saenz's three convictions for capital murder based on killing of more than one person during same criminal episode violated double jeopardy; because "the charges rely on the same three murders for each charge," double jeopardy was violated, and only one of Saenz's convictions was proper). Furthermore, this type of claim may be presented in a subsequent application for a writ of habeas corpus, and relief is thus appropriate even if it is not premised on new facts or new law. See Milner, 394 S.W.3d at 505–06. It thus appears that Holiday was executed for an offense for which he should have been acquitted. Perhaps some might say that this is immaterial because, even assuming that he would have been granted relief as to his double-jeopardy claim, there were two convictions for which he was executed that would have remained valid. But this Court should not permit anyone to be executed when he has a colorable claim for post-conviction relief that likely would result in one of his convictions being vacated, and it would have been more appropriate to issue a stay of execution to resolve these important legal matters.
I also briefly note that the State failed in its burden to establish that it had no adequate remedy at law to redress the alleged harm. Although there are no published cases directly addressing the appealability of a trial court's order under Article 43.141, it is at least arguable that the State could have appealed the trial court's order withdrawing the execution date,5 and, at that point, the reviewing court would have determined whether the trial court's order was proper and reversed the trial court in the event that the trial court had erred. Although it is true that the appeal would have resulted in the withdrawal of the execution that was scheduled to occur that night, the only harm from that delay would have been that the execution would be rescheduled for another day. I cannot conclude that an appeal that leads to the rescheduling of an execution so that it may occur a few months later than its scheduled date constitutes an inadequate remedy at law. De Leon v. Aguilar, 127 S.W.3d 1, 6 (Tex. Crim. App.2004) (quoting Walker v. Packer, 827 S.W.2d 833, 842 (Tex.1992) for the proposition that a remedy is not inadequate merely because it may involve more expense or delay than obtaining an extraordinary writ).
This Court should have delayed the execution to fully consider the merits of the State's petition rather than grant the State's petition for a writ of mandamus (1) with only about twenty minutes to consider Holiday's response to the State's petition, (2) with less than three hours to consider the State's petition, and (3) with no request for or receipt of any responsive pleadings from the respondent, the trial-court judge. This was a life-or-death decision undertaken in a few short hours and absent any procedural rules for guidance. Even if the facts of Holiday's offense cried out for the death penalty, this Court's majority should have applied its extensive case law setting forth the standard of review for petitions for mandamus relief that compelled the denial of the State's petition. And even in the absence of applicable rules of appellate procedure to guide this Court's actions that night, this Court, at a minimum, should have applied the rules that every other appellate court in Texas uses to ensure that litigants are treated fairly. I commend the trial-court judge for following the plain language of the statute and looking to the substance of Holiday's pleadings to reach his decision. It is too late for this Court to undo the events of November 18, 2015, but this Court can act to prevent some of the problems encountered here by promulgating procedural rules that would apply to future mandamus petitions filed in this Court in order to ensure that respondent judges at least have an opportunity to be heard before their orders are rendered void. Furthermore, this Court should publish any order on which it intends to rely as precedent for future decisions, which will place litigants on notice that the ruling will be binding as to other litigants in the future.
III. The Show–Cause Order is Wholly Inappropriate
In the instant show-cause order, this Court commands Blazek and Carter to appear and show cause to explain why they should not be sanctioned for failing to adequately justify their untimely filings, but I conclude that, in the interests of justice, this Court should use its discretion to forgo any further consideration of sanctions in this case.
The particular facts of this case show that Blazek and Carter did not exhibit the kind of flagrant disregard for the rules that would justify sanctions. Both attorneys filed good-cause statements with their pleadings in this Court. Carter's statement essentially relied on his agreement to assist Blazek in his pleadings before this Court. Blazek's statement described in detail his desire to ensure that Holiday had representation up until his execution. Blazek further explained that he was present at the August hearing when the trial court set Holiday's execution for November but that, at that time, Holiday appeared to be adequately represented by counsel. Blazek did not know that Holiday needed counsel until the day before the schedule execution.
It is clear to me that the compressed timeline was not the result of negligence or indifference on Blazek's or Carter's part. Because the Fifth Circuit had not ruled against Holiday's request for new counsel until the week before Holiday's execution, it was not apparent until that time that Holiday would need legal representation during the week of his execution. After the Fifth Circuit ruled, there were only three work days before his execution day during which Holiday could have attempted to obtain counsel from his solitary cell on death row. Blazek discovered the conflict of interest between Holiday and Holiday's court-appointed attorneys, including the fact that Holiday's counsel had opposed Holiday's efforts to obtain other counsel, on November 12 or 13. Even if Blazek and Carter had filed in the trial court within minutes of discovering Holiday's plight, they would have run afoul of this Court's seven-day rule. As it was, Holiday appealed the federal district court's denial of his motions for substitute counsel in the Fifth Circuit, and it was only after his appeal was denied that Blazek and Carter stepped in to fill the void created in the few days that elapsed after that ruling. Either three or four days after discovering the absence of counsel, Blazek became aware of the possibility of filing a motion to withdraw or modify Holiday's execution date, based on advice he received from a colleague at that time. Knowing that Holiday desired his counsel to make every effort to pursue litigation that might result in sparing his life, Blazek and Carter took the only steps possible by filing the motion to withdraw the execution on the date of the execution. Blazek and Carter's motion to withdraw the execution date was not frivolous and was granted by the trial court. It is not Blazek's or Carter's fault that Holiday's appointed attorneys refused to represent him further in the days leading up to his execution, nor is it their fault that Sween's pro bono efforts to help Holiday secure substitute counsel were ultimately denied. Blazek and Carter were faced with the Hobson's choice of allowing Holiday to be executed without any counsel actively assisting him even though he had a likely meritorious double-jeopardy claim, or, alternatively, to file the meritorious motion to withdraw Holiday's execution date in violation of this Court's seven-day rule. By issuing show-cause orders or sanctioning pro bono lawyers who pursue meritorious claims, the seven-day rule may operate as an impediment to the purpose of the criminal courts to provide an open forum for justice.
See Holiday v. Stephens, 806 F.3d 334 (5th Cir.2015).
--------
The seven-day rule serves an important policy. The rule provides guidance for the legal community, litigants, and public about the expectations of the Court. I discussed its value in a previous case in which this Court sanctioned a pro bono attorney for zealous representation of a client condemned to death. In re Dow, 460 S.W.3d 151, 157 (Tex. Crim. App.2015) (Alcala, J., dissenting). In In re Dow, I noted that the purpose of the rule was to ensure that a defendant had an opportunity to raise any issues pertinent to the propriety of his impending execution while ensuring that judges have an adequate amount of time in which to consider those pleadings. Id. I also expressed a willingness to sanction an attorney who was shown to "habitually violate this rule or if he demonstrated a continuing unwillingness to abide by it." Id. In Dow, this Court banned Dow from practicing before it for one year because he had violated this same rule, but I dissented because I thought that the sanction was disproportionate to his infraction and thus excessive. See id.
Here, as in Dow, this Court misunderstands that attorneys, as a group, are honorable people who will abide by court rules whenever feasible. Attorneys will follow the rule because it is their ethical duty to do so. And when an attorney fails to follow the rule but provides a reasonable explanation for his late filing, the presumption should be that no show-cause order or sanction should issue because, while the rule is important, it is perhaps more important not to make the enforcement of the rule so oppressive that it discourages attorneys from being involved in these difficult cases. And, even if these attorneys were shown to have violated the seven-day rule at some point in the past, any such infractions would not persuade me that sanctions are appropriate here. The extraordinary circumstances that occurred in the week before Holiday's execution required the later intervention by counsel, regardless of any history of late filings in this Court.
Sanctioning Blazek and Carter "carries with it the possibility of a chilling effect on attorneys who might otherwise be willing to represent capital-murder defendants who are facing execution and are in need of competent counsel." Id. at 156. Furthermore, as I previously observed,
These inmates are usually indigent and rely on attorneys who are willing to represent them pro bono. These attorneys often are not brought into the case until some late stage prior to an execution, and they must review a voluminous record of prior litigation before filing any pleadings. While this Court's rules requiring timely pleadings are necessary to ensure that those pleadings are given proper consideration, this Court should not so stringently enforce the rules so as to discourage pro bono representation of defendants.
Id. I reiterate my statements in Dow relative to Blazek and Carter. Rather than be sanctioned for filing late, they should be commended for filing at all. They undertook to represent Holiday in his last days with no expectation of compensation, after Holiday's court-appointed attorneys had, for all intents and purposes, abandoned him. For this Court to punish and condemn such conduct sends a strong message to attorneys not to undertake late-stage death-penalty cases no matter how desperately the client may need representation and no matter that the client has a likely claim meriting habeas relief.
IV. Conclusion
In the end, the procedures employed by this Court's majority in deciding the State's petition for mandamus relief and this Court's majority's substantive assessment of the petition were so ingrained with flaws as to make one wonder whether human beings, however educated or well intentioned, are capable of determining that an execution is warranted. Here, Holiday was executed after the trial court decided that he had valid arguments for recalling the warrant of execution, after two judges from this Court agreed that there was no valid basis for overturning the trial-court judge's ruling, and after a Supreme Court justice, Justice Sotomayor, expressed grave concerns for the legal representation of Holiday in the short period of time before his execution. Though one might argue that Blazek and Carter could have acted sooner than the morning of the execution, it may be equally reasonable to argue that they deserve a medal of honor for stepping in after Holiday had been abandoned by his attorneys and for pursuing a claim that would likely result in habeas relief. I acknowledge that almost everyone involved in this case, including the judges of this Court, was placed in a difficult position after the federal courts denied Sween's motion for new appointed counsel. But issuing a show cause order against these attorneys or sanctioning them is not the proper response for the difficulties encountered that night. Under the totality of the circumstances, I conclude that this Court should use its discretion to decline to issue this show-cause order and, further, to refuse to sanction Blazek and Carter. With these comments, I respectfully dissent from this Court's majority order.