Professional Documents
Culture Documents
PAGE 1
to-be filed subsequent habeas application and additional time was necessary to
prepare the application).
Mr. Holiday was tried for capital murder in consolidated cause numbers
10,423, 10,425 and 10,427. He was convicted and sentenced to death in each case.
The three judgments were affirmed by the Texas Court of Criminal Appeals
(TCCA). Holiday v. State, 2006 Tex. Crim. App. Unpub. LEXIS 737 (Tex. Crim. App.
Feb. 8, 2006). Initial applications for writ of habeas corpus were filed on May 6,
2005, and assigned the cause numbers 10,423(A), 10,425(A) and 10,427(A). The
TCCA denied the applications on May 5, 2010. Ex parte Holiday, Nos. WR-73,62301, WR-73,623-02 and WR-73,623-03 (Tex. Crim. App. May 5, 2010).
Mr. Holiday has at least two claims he seeks to raise in subsequent state
habeas applications: (1) the trial courts admission of unreliable expert testimony as
to Mr. Holidays future dangerousness by psychiatrist Edward Gripon violated the
Texas and United States Constitutions; and (2) that Mr. Holidays right to be free
from double jeopardy was violated when he was charged, convicted, and sentenced
to death twice for causing the same individuals death. Both claims are procedurally
viable under Tex. Code Crim. Proc. art. 11.071 5.
Mr. Holiday filed his initial habeas application in 2005. In 2010, the CCA
decided Coble v. State, 330 S.W.3d 253, 270-79 (Tex. Crim. App. 2010), in which the
Court held that the trial court abused its discretion when it admitted psychiatric
testimony concerning the defendants future dangerousness under circumstances
that are identical to those in which such expert testimony was admitted against Mr.
Holiday. See id. at 277-80. Mr. Holiday raised this claim in his direct appeal, but
MOTION TO WITHDRAW OR MODIFY EXECUTION DATE
C:\NetShare\FB\CRIM_F-J\HOLIDAY.478\Motion to Withdraw Execution Date.wpd
PAGE 2
the TCCA had not yet recognized such testimony to be too unreliable to be
admissible. The Supreme Court has turned away per se constitutional challenges to
admissible, expert predictions of future dangerousness. See Barefoot v. Estelle, 463
U.S. 880, 898-99 (1983).
Id.
presented to persuade Mr. Holidays jury to answer the first Texas special issue in
the affirmative was too unreliable to be admissible. Coble, 330 S.W.3d at 270.
Coble, therefore, affords Mr. Holiday a new legal basis to challenge the legality of
his death sentence: whether, in this case, a death sentence predicated on an
inadmissible and unreliable expert prediction of future dangerousness fails to meet
the heightened reliability requirement of the Eighth Amendment.1 This new claim
potentially satisfies the requirements for a subsequent application to be heard on
the merits. See Ex parte Hood, 211 S.W.3d 767, 776 (Tex. Crim. App. 2007) (a legal
basis is unavailable if it has been exhausted by previous presentation to this Court,
but that legal basis can become newly available as a result of later, binding
precedent relevant to the issue in question).
Mr. Holiday also seeks to raise a claim that one of his capital judgments was
rendered in violation of double jeopardy. Mr. Holiday was charged with killing three
individuals, all children, in three separate indictments which yielded three
PAGE 3
judgments sentencing him to death. One child, Tierra Lynch, was seven years old
and the other two, Jasmine Dupaul and Justice Holiday, were under six years old.
Thus, two indictments charged Mr. Holiday with capital murder for causing the
death of a child under the age of six, one for each child under six. The third
indictment, however, charged Mr. Holiday with having caused the death of Tierra
Lynch and another individual during the same criminal transaction. Thus, Mr.
Holiday was charged, convicted, and sentenced to death twice for killing the same
individual, and one of his death sentences therefore violates his Fifth Amendment
right against double jeopardy. This claim can potentially meet the requirements for
a subsequent application go be heard on the merits. See Ex Parte Milner, 394
S.W.3d 502, 506 (Tex. Crim. App. 2013) (a showing that no rational juror could find
the defendant guilty of both offenses without violating the federal constitutional
prohibition against double jeopardy satisfies the exception to the bar against
subsequent application because it makes a prima facie case that no rational juror
would find the applicant guilty beyond a reasonable doubt).
An additional equitable reason exists for withdrawing this Courts order
setting an execution date for Mr. Holiday. Mr. Holiday currently has litigation
pending in the Supreme Court concerning his effective abandonment by his
federally appointed counsel. After the Supreme Court denied review of his federal
habeas proceedings, his federally-appointed counsel notified Mr. Holiday in a letter
that his appeals were finished and they would file no further appeals on his behalf
and would not file a clemency petition, even though the federal statute governing
their appointment required that they pursue any remaining available avenues for
MOTION TO WITHDRAW OR MODIFY EXECUTION DATE
C:\NetShare\FB\CRIM_F-J\HOLIDAY.478\Motion to Withdraw Execution Date.wpd
PAGE 4
post-conviction relief and seek clemency. See Brandi Grissom, Condemned Mans
Lawyers Stop Helping, Citing False Hope, DALLAS MORNING NEWS, Nov. 16, 2015
(available
at
http://www.dallasnews.com/news/state/headlines/20151116-
Mr. Holiday is now represented by private, volunteer counsel on his appeal but
the lawyer limited her pro bono representation of Mr. Holiday to trying to secure new
court-appointed counsel for Mr. Holiday. See Lawyers Stop Helping, supra.
MOTION TO WITHDRAW OR MODIFY EXECUTION DATE
C:\NetShare\FB\CRIM_F-J\HOLIDAY.478\Motion to Withdraw Execution Date.wpd
PAGE 5
appoint new counsel to pursue Mr. Holidays remaining habeas corpus remedies and
to undertake a meaningful effort to seek clemency.3
CONCLUSION
For the foregoing reasons, the Court should withdraw the order setting Mr.
Holidays execution date and recall the warrant of execution.
Respectfully submitted,
________________________________________
WILLIAM F. CARTER
108 E. William J. Bryan Parkway
Bryan, Texas 77803-5334
Telephone: 979-779-0712
Telecopier: 979-779-9243
Email: wfcarter73@yahoo.com
State Bar No. 03932800
SMITHER, MARTIN,
HENDERSON & BLAZEK, P.C.
1414 11th Street
Huntsville, Texas 77340
(936) 295-2624
(936) 294-9784 [Telecopier]
Email: frankblazek@smithermartin.com
By ___________________________
Frank Blazek
State Bar No. 02475500
3
PAGE 6
Certificate of Service
I do hereby certify that a true and correct copy of the above and foregoing
Defendant's Motion to Withdraw or Modify Execution Date has been forwarded to
opposing counsel on this the 18th day of November, 2015, by hand delivery
addressed as follows:
Brian Risinger
Criminal District Attorney
Madison County Courthouse
101 W. Main, Room 207
Madisonville, Texas 77864
_______________________________
Frank Blazek
PAGE 7
PAGE 1
___________________________________
Presiding Judge
278th District Court
Madison County, Texas
PAGE 2
VS.
RAPHAEL DEON HOLIDAY
Warrant
of
Execution
setting
the
defendants
execution
for
_______________________________.
PAGE 1
___________________________________
Presiding Judge
278th District Court
Madison County, Texas
PAGE 2