Lawyers for Texas death row pris­on­er Robert L. Roberson III have filed a peti­tion ask­ing the United States Supreme Court to review whether Seth Kretzer and James W. Volberding — the same appoint­ed lawyers who were accused of aban­don­ing Raphael Holiday, whom Texas exe­cut­ed in November — had a con­flict of inter­est that inter­fered with Mr. Roberson’s right to an inde­pen­dent legal advo­cate in his fed­er­al habeas cor­pus pro­ceed­ings chal­leng­ing his con­vic­tion and death sen­tence. In his peti­tion, Roberson argues that his tri­al lawyer failed to inves­ti­gate and present impor­tant mit­i­gat­ing evi­dence in the penal­ty phase of his case and that Kretzer and Volberding have a con­flict of inter­est that pre­vent­ed them from prop­er­ly lit­i­gat­ing that claim. Volberding rep­re­sent­ed Roberson in his state post-con­vic­tion appeals and failed to present any claim or evi­dence relat­ing to coun­sel’s penal­ty-phase inves­tiga­tive fail­ures. He was then appoint­ed to rep­re­sent Roberson in fed­er­al court, but his pri­or fail­ure to have chal­lenged tri­al coun­sel’s penal­ty-phase per­for­mance for­feit­ed that claim unless Roberson could show that Volberding had unrea­son­ably failed to raise the claim in state court. Kretzer was appoint­ed as ​“sup­ple­men­tal coun­sel” to review Volberding’s per­for­mance and failed to chal­lenge Volberding’s con­duct. However, unkown to Roberson, Kretzer and Volbering had a close pro­fes­sion­al asso­ci­a­tion, hav­ing been joint­ly appoint­ed as paid co-coun­sel in a num­ber of cap­i­tal habeas cas­es. When Roberson learned of their asso­ci­a­tion, he asked for new ​“sup­ple­men­tal coun­sel,” which Kretzer and Volberding opposed. Charles Herring, Jr., an ethics expert and author of a trea­tise on Texas legal ethics and mal­prac­tice, and Lawrence J. Fox, for­mer chair­man of the ABA Standing Committee on Ethics and Professional Responsibility, say in affi­davits sup­port­ing Roberson’s peti­tion that Volberding and Kretzer have con­flicts of inter­est that should pre­vent them from rep­re­sent­ing Roberson. The Court is expect­ed to decide in ear­ly December whether to hear Roberson’s case. Kretzer and Volberding have writ­ten to the Court request­ing that it dis­miss the peti­tion and per­mit them to file their own peti­tion rais­ing other issues.

In Holiday’s case, Kretzer and Volberding had refused their clien­t’s request to file a clemen­cy peti­tion and then opposed his efforts to obtain new appoint­ed coun­sel who would seek clemen­cy. When those new lawyers filed for a stay of exe­cu­tion in fed­er­al court so he could seek clemen­cy, Kretzer and Volberding opposed the stay and cob­bled togeth­er and filed a clemen­cy peti­tion so hasti­ly that it twice list­ed the wrong exe­cu­tion date. Clemency was denied. Justice Sonya Sotomayor wrote that Holiday had been ​“aban­doned by [his] coun­sel at the last moment and left to nav­i­gate the some­times labyrinthine clemen­cy process” by him­self. She said the clemen­cy peti­tion filed by Kretzer and Volbering ​“like­ly would have ben­e­fit­ed from addi­tion­al prepa­ra­tion by more zealous advocates.” 

(Roberson v. Stephens, Petition for a Writ of Certiorari, September 28, 2015.) See Representation.

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