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EXHIBITD

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JAMES

W. VOLBEROING

ATTORNEY AND COUNSELOR AT LAW

100 E. FERGUSON STREET

SUITE 500
TYLER, TEXAS 75702

Certified Public Accountant (Ark.)

Telephone: 903.597.6622

American Society of CPA~

Tdccopicr: 866.398.6883

e-111ail:janmrolberJi11:ajgmail.tom

Uoard Certified, Criminal Law

Uoard Certified, Criminal Appellate Law

Cell Phone: 903.520.1373

Texas Board ofl.egal Speciali:1.a1ion

October 23, 2015

Ms. Gretchen Sween
Beck Redden, LLP
515 Congress A venue
Suite 1900
Austin, Texas 7870 I
(512) 708-1000
Re:

Via Email: gsween@beckredden.com

Raphael D. Holiday v. Robert Thaler, Director, No. H-11-1696, Petition

for Writ of Habeas Corpus, In the U.S. District Court, Eastern District of
Texas, Houston Division

Dear Ms. Sween:

The court's order yesterday makes clear that Mr. Kretzer and [ are Raphael's
lawyers. 1 hope this ends discussion. We direct that you dismiss your notice of appeal to
the Fifth Circuit immediately.

Jf you proceed, we will file a motion to dismiss your appeal and seek sanctions
against you. You are treading on ethically thin ice. You filed a federal pleading yesterday
in which you state that you are unqualified to represent a death row inmate. And yet this
is precisely what you purport to do. For instance, on page 1 of your response yesterday
(docket number 41) you wrote that you are "not statutorily qualified to accept such
appointment." On page 2 you state, "Undersigned counsel is not, as CJA Counsel urge,
qualified by past experience to undertake representation of Mr. Holiday for all purposes."
On page 3 you state that you "explained that she herself was not qualified to assume such
a substitution." Your attempt to represent a capital defendant, therefore, appears to be a
per se violation of Rule I .0 I of the Disciplinary Rules. The Fifth Circuit might agree.
We also direct that you cease communication with our client. It appears you have
been corresponding with him, and probably have been to see him without our consent or
pennission. While Rule 4.02 of the Disciplinary Rules allows you to respond to his
letters, if you have gone to see him and acquired confidential infonnation, and used that

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information to intervene in his case, then you have stretched Rule 4.02 beyond any
reasonable interpretation. We respectfully urge you to go no farther.
Your only complaint against us in twelve pages of pleading is that we have not
filed a clemency petition for Raphael. You identify not a single federal claim we
overlooked, not a single oversight of exonerating evidence, not a single new claim that
we should file now.
I will make this offer to you. If you feel strongly that Raphael would benefit from
a clemency petition, and you are convinced there is actually a reasonable chance that
two-thirds of the members of the Board of Pardons and Paroles would recommend
clemency to Governor Abbott, and that Government Abbott would actually consider
signing a clemency order, then please write the clemency petition for our signature and
we will submit it, once Raphael reads and approves the petition. Do not file another
pleading as you did yesterday and tell any authority that Raphael is effectively without
counsel. We are giving you unequivocal instruction and pennission to write his clemency
petition and we will file it on his behalf, if he agrees. You must undettake this work pro
bono. You are abundantly qualified to do such work.
I trust you have sufficient political understanding to know that Governor Perry
signed only one death row clemency order during his entire fourteen years in office. And
that was only for someone who was not the shooter. Government Abbott's conservative
views on the death penalty are well known. He is not --- repeat not --- going to grant
clemency to a man convicted of deliberately burning three little kids to death. The
Governor and Board will withhold their denial of clemency until a day or perhaps a few
days prior to the execution. It is cruel, in our view, to hold out such false hope to a man
facing execution. We believe Raphael deserves the dignity and respect of being told the
truth and allowed several months come to terms with the end of his existence on this
earth, to see and enjoy his friends and family, and to establish a satisfying relationship
with his creator, without giving the poor man false hope of a last moment rescue by the
Governor and Board of Pardons and Paroles, which everyone else knows is not going to
come. But if you are convinced Governor Abbott might order clemency, and two-thirds
of the Board would so recommend, then by all means, write the petition and we will file
it, if Raphael approves. You are free to argue in your petition that Government Abbott
should recuse and that he should delegate his state constitutional authority to someone
else.

Let me clarify your comments about Clifton Williams before you make them
again. The day before Clifton's scheduled execution, Jim Huggler, one of the best
criminal appellate lawyers in East Texas, received the AG's letter revealing state DNA
data base errors and informed me. He wrote and filed the state motion to stay. That
afternoon and the next morning, Mr. Kretzer and I dropped everything and wrote the
federal motion to stay, which was drafted to be filed simultaneously in the U.S. District
Court, Fifth Circuit and Supreme Court. We communicated with the death penalty clerks
at the Fifth Circuit and Supreme Court to let them know what was coming. We were
within 30 minutes of filing the federal motion when the CCA granted the stay. Tbc Fifth

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Circuit later paid our CJA vouchers for this work, thereby validating its merit and
necessity. You are correct that Mr. Huggler gets the credit for the win. Mr. Kretzer and I,
however, were not bystanders.
Let me further clarify that Mr. Huggler was appointed by the state judge in Smith
County to represent him at the state court hearing to set his execution date. Th.at was the
only reason for his appointment. Mr. Kretzer and I informed the state judge we could not
appear at the execution warrant hearing; we were his federal counsel. Later, Mr. Huggler
decided that he could file a clemency petition. He did not do so, likely for the futility of it
and lack of time. Moreover, Clifton's sister is a friend of mine. I update her regularly, and
through her, Clifton's mother. You overstated your attack on us. This is why it is
important to call before filing such pleadings.
Let me conclude with this comment. Before filing another pleading, or sending
letters to our client, I recommend you go to Houston and see Seth Kretzer in person. Talk
with him face-to-face about any concerns you have, any proposals or successor claims
you believe we should consider, and any actions you believe will benefit Raphael. I will
join by phone. We will listen carefully and consider what you say. If you can propose a
course of action that stands a reasonable chance of overcoming Pinholster and 2254(d)
barriers, we will pursue it. Otherwise, we respectfully ask that you take no further action
in this case. We will respond firmly if you do.
Sincerely,
._fit.-111r.>> (j)/({y1Jk,<li1>,y

James W. Volberding
cc:

Mr. Seth Kretzer (via email)

Mr. Raphael Deon Holiday
Inmate No. 999419
Polunsky Unit
3872 F.M. 350 South
Livingston, TX 7735 l