A Texas fed­er­al appeals court has upheld the rul­ing by a U.S. dis­trict court judge to stay the exe­cu­tion of John Henry Ramirez, who had been sched­uled to be exe­cut­ed in Texas on February 2. The District Court had ruled that Ramirez was enti­tled to a stay so new lawyers could seek clemen­cy on his behalf after Michael Gross, the lawyer ini­tial­ly appoint­ed to rep­re­sent Ramirez in his state and fed­er­al habeas cor­pus pro­ceed­ings, had failed to file a clemen­cy peti­tion and left Ramirez ​“effec­tive­ly with­out coun­sel” at the time of his death war­rant. The court did not rule on a sec­ond issue alleged by Ramirez’s new coun­sel, that Gross had an inher­ent con­flict of inter­est in the case because he had pro­vid­ed inef­fec­tive rep­re­sen­ta­tion in state court and could not be expect­ed to lit­i­gate his own inef­fec­tive­ness as part of the fed­er­al habeas cor­pus pro­ceed­ings. After the fed­er­al courts denied his habeas peti­tion, Ramirez informed Gross that he want­ed to replace him as coun­sel, and asked him not to file a clemen­cy peti­tion because he want­ed his new attor­ney to do that. The dis­trict court held that ​“Gross had a duty to either (1) inform the Court of his client’s wish­es and seek the sub­sti­tu­tion of new coun­sel or (2) ensure that a clemen­cy peti­tion was filed on his client’s behalf. Gross did nei­ther. Gross’ inac­tion pre­vent­ed judi­cial con­sid­er­a­tion of whether the cir­cum­stances required the sub­sti­tu­tion of coun­sel.” The court also not­ed that Gross had pre­vi­ous­ly failed to file key motions in the death penal­ty case of John Battaglia, requir­ing the courts to issue a stay of exe­cu­tion in December 2016 in that case. In Battaglia’s case, Gross had refused to filed a state com­pe­ten­cy peti­tion, say­ing that fell ​“out­side the scope” of his rep­re­sen­ta­tion. The Texas Attorney General’s Office appealed Ramirez’s stay to the U.S. Court of Appeals for the Fifth Circuit, argu­ing that Gross’s action con­sti­tut­ed ​“games­man­ship,” not aban­don­ment. A three-judge pan­el of the court dis­agreed and dis­missed the state’s motion to vacate the stay. 

(M. Graczyk, ​“TEXAS INMATE WILL NOT BE EXECUTED THURSDAY,” Associated Press, February 1, 2017; J. McCullough, ​“Execution halt­ed for man con­vict­ed in Corpus Christi stab­bing death,” The Texas Tribune, January 31,2017.) Read the U.S. District Court’s opin­ion. Read the U.S. Court of Appeals for the Fifth Circuit’s opinion.

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