APPLICATION FOR STAY AND PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
Scalia, Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor,
Application for stay of execution of sentence of death
presented to Justice Scalia and by him referred to the Court
denied. Petition for writ of certiorari to the United States
Court of Appeals for the Fifth Circuit denied.
of Justice Sotomayor, respecting the application for stay of
execution and denial of certiorari.
federal statute entitles defendants sentenced to death to
court-appointed counsel during " all available
post-conviction process." 18 U.S.C. § 3599(e). This
statute requires counsel to " represent the defendant in
. . . proceedings for executive or other clemency as may be
available to the defendant." Ibid. ; see
Harbison v. Bell, 556 U.S. 180, 185-186,
129 S.Ct. 1481, 173 L.Ed.2d 347 (2009). Pursuant to §
3599, Raphael Holiday asked his court-appointed counsel --
Seth Kretzer and James Volberding -- to petition the State of
Texas for clemency. App. to Pet. for Cert. 5a. His attorneys
declined, however, because of their belief that there was
[193 L.Ed.2d 419] " no chance at all that a clemency
petition would be granted." Id., at 11a
(internal quotation marks omitted).
asked a Federal District Court to appoint a new attorney who
would file his petition for clemency. The court denied his
request. The court recognized that § 3599 compelled it
to appoint new counsel if " the interests of
justice" require. Ibid. (quoting
Martel v. Clair, 565 U.S. ___, ___, 132
S.Ct. 1276, 182 L.Ed.2d 135, 147 (2012); (internal quotation
marks omitted). But given the " representations" of
Holiday's attorneys, the court found new counsel
unwarranted. App. to Pet. for Cert. 11a.
denial was an abuse of discretion. 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." Harbison, 556 U.S.
, at 194, 129 S.Ct. 1481, 173 L.Ed.2d 347 (quoting
Hain v. Mullin, 436 F.3d 1168, 1175 (CA10
2006) (en banc); internal quotation marks omitted). Yet this
is exactly what happened here. Although the "
'interests of justice' standard contemplates a
peculiarly context-specific inquiry," Martel,
565 U.S. , at ___132 S.Ct. 1276, 182 L.Ed.2d 135,
148, it surely precludes a court from rejecting a
substitution motion solely because it agrees with the
appointed attorneys' premonitions about clemency.
clemency is fundamentally unpredictable. Clemency officials
typically have " complete discretion" to commute a
defendant's sentence based on " a wide range of
factors not comprehended by earlier judicial proceedings and
sentencing determinations." Ohio Adult Parole
Authority v. Woodard, 523 U.S. 272, 278, 281,
118 S.Ct. 1244, 140 L.Ed.2d 387 (1998) (principal opinion);
see Tex. Const., Art. IV, § 11; Tex. Code Crim. Proc.
Ann., Art. 48.01 (Vernon Supp. 2014). By granting
death-eligible defendants an attorney, " Congress
ensured that no prisoner would be put to death without
meaningful access to th[is] ' " fail safe"
' of our justice system." Harbison, 556
U.S. , at 194, 129 S.Ct. 1481, 173 L.Ed.2d 347
(quoting Herrera v. Collins, 506 U.S. 390,
415, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993)). So long as
clemency proceedings were " available" to Holiday,
§ 3599(e), the [136 S.Ct. 388] interests of justice
required the appointment of attorneys who would represent him
in that process. Cf. Christeson v. Roper,
574 U.S. ___, ___, 135 S.Ct. 891, 190 L.Ed.2d 763, 769 (2015)
( per curiam ) (reversing the denial of a
substitution motion under § 3599 despite the " host
of procedural obstacles" confronting the
petitioner's claims). The District Court's denial did
not adequately account for Holiday's statutory right.
the District Court's error, I reluctantly join the
Court's decision to deny Holiday's petition for
certiorari. After the court rejected Holiday's request
for new counsel, his original attorneys eventually submitted
a clemency application on his behalf. This application proved
unsuccessful -- and likely would have benefited from
additional preparation by more zealous advocates. Yet this
Court, unlike a state ...