Paredes, Miguel Angel ( 2015 )

WR-61,939-01
WR-61,939-01,02 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 3/25/2015 2:35:06 PM
Accepted 3/25/2015 2:43:50 PM
ABEL ACOSTA
Nos. WR-61,939-01 CLERK
______________________________________ RECEIVED
COURT OF CRIMINAL APPEALS
IN THE 3/25/2015
ABEL ACOSTA, CLERK
TEXAS COURT OF CRIMINAL APPEALS
______________________________________
In re David Dow,
Respondent
_______________________________________
MOTION FOR LEAVE TO FILE AND
EMERGENCY MOTION TO STAY ENFORCEMENT
_______________________________________
Nicole DeBorde Casie L. Gotro
TBN: 00787344 TBN: 24048505
712 Main St., Ste 2400 440 Louisiana, Suite 800
Houston, Texas 77002 Houston, Texas 77002
Office: 713-526-6300 Office: 832-368-9281
Fax: 713-228-0034 Fax: 832-201-8273
Email: Nicole@debordelawfirm.com Email: casie.gotro@gmail.com
Attorneys for Respondent
David Dow
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IDENTITY OF PARTIES AND COUNSEL
Respondent certifies the following is a complete list of the parties and their
attorneys in accordance with Texas Rule of Appellate Procedure 53.2(a).
1. RESPONDENT
David R. Dow
University of Houston Law Center
Texas Bar No. 06064900
100 Law Center
Houston, Texas 77204-6060
Tel. (713) 743-2171
Fax (713) 743-2131
Counsel for David Dow:
Nicole DeBorde
TBN: 00787344
712 Main St., Ste 2400
Houston, Texas 77002
Office: 713-526-6300
Fax: 713-228-0034
Email: Nicole@debordelawfirm.com
Casie L. Gotro
Texas Bar No. 24048505
440 Louisiana, Suite 800
Houston, Texas 77002
Office: 832-368-9281
Fax: 832-201-8273
Email: Casie.gotro@gmail.com
2
TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Respondent David Dow (“Dow”) files this Motion for Leave to File
Emergency Motion to Stay Enforcement pursuant to Rule 72.1 of the Texas Rules
of Appellate Procedure and in support would show this Honorable Court the
following:
Emergency Conditions
Dow is appointed to represent Robert Pruett, a death sentenced inmate, in
the United States District Court – Southern District of Texas. Exhibit A, Affidavit
of David R. Dow. Pruett is scheduled for execution on April 28, 2015. Id. While
there are various pleadings pending for Pruett in federal court, Dow is obligated by
federal statute to:
“…represent the defendant throughout every subsequent stage
of available judicial proceedings, including pretrial
proceedings, trial, sentencing, motions for new trial, appeals,
applications for writ of certiorari to the Supreme Court of the
United States, and all available post-conviction process,
together with applications for stays of execution and other
appropriate motions and procedures, and shall also represent
the defendant in such competency proceedings and proceedings
for executive or other clemency as may be available to the
defendant.”
18 U.S. CODE §3599(e)(emphasis added).
Under federal law, therefore, Dow is obligated to return to this Court to seek
relief for Pruett should further litigation in this Court become necessary. This
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Court’s order requiring Dow to first obtain leave from this Court before pursuing
relief imposes an additional burden on Dow and an unacceptable risk to Pruett.
Pruett’s right to pursue relief is now predicated on this Court’s discretionary act.
Substitute counsel for Pruett at this late hour, if even possible, would result in
irreparable harm to Pruett and/or an unnecessary delay in justice.
Brief Statement of Emergency Relief Requested
Dow respectfully requests this Court stay enforcement of its order
suspending Dow from practicing before the Court, without leave, for one year.
Dow asserts his suspension is unlawful and wholly disproportionate to the
perceived infraction. Unlawful or not, Dow has a right to due process and due
course of law as guaranteed under the United States Constitution and the Texas
Constitution. Dow is without clear statutory guidance as to which court may
provide adequate relief, but justice and fairness demand he be afforded the
opportunity to seek relief.1
While undersigned counsel navigates this jurisdictional quagmire, Pruett’s
April 28th execution date creeps closer and closer. Without immediate relief from
this Court’s unlawful order, Dow and Pruett suffer needless, irreparable harm.
1The Texas Supreme Court that has exclusive authority to regulate the practice of law and
counsel asserts that court has the power to issue writs of mandamus to even this Court as
“necessary to enforce its jurisdiction.” TEX. CONST. art. II, § 1; TEX. CONST. art. V, § 3(a); TEX.
CONST. GOV’T CODE § 81.011(c); see Eichelberger v. Eichelberger, 582 S.W.2d 395, 398-99
(Tex. 1979).
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Dow respectfully requests this Court stay enforcement of its suspension order.
Because lives literally hang in the balance, Dow respectfully requests this Court
act on this emergency motion within 24 hours.
Factual and Procedural Background
On January 14, 2015, in a per curiam order, this Court issued an order of
contempt suspending Dow from practicing before the Court, without leave, for one
year. Dow filed a Motion for Rehearing on January 29, 2015. On February 6,
2015, the Southern District of Texas issued an order under its reciprocal
disciplinary rules suspending Dow from practicing before that court and
terminating his filing privileges. Exhibit B, Notice from Clerk of the Southern
District. On February 25, 2015, this Court denied Dow’s Motion for Rehearing. On
March 18, 2015, Dow filed a Petition for Declaratory Judgment or, in the
Alternative, Writ of Mandamus in the Texas Supreme Court. On March 19, 2015,
having considered Dow’s petition for reconsideration, the Southern District lifted
the reciprocal discipline and reactivated Dow’s filing privileges. Exhibit C,
Attorney Admissions Email, March 19, 2015.
Federal Rules of Reciprocal Discipline
Dow is admitted to practice in the three remaining United States District
Courts in Texas (“Western District” “Eastern District” & “Northern District”), the
United States Court of Appeals for the 5th Circuit (“5th Circuit”) and the Supreme
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Court of the United States (“U.S. Supreme Court”). Exhibit A. Each of the
aforementioned courts have reciprocal discipline rules that impose an affirmative
duty on admitted attorneys to promptly notify the court of any suspension or
disciplinary action affecting the attorney’s license to practice. 2 Undersigned
counsel believes the reciprocal discipline rules anticipate a suspension imposed by
the State Bar of Texas, or the Texas Supreme Court, not a unilateral act of a single
court. Nevertheless, and in an abundance of caution, Dow notified each the
aforementioned federal courts of this Court’s order of suspension. The Eastern
District has not yet made a decision. Both the Northern and Western Districts have
elected to hold the matter in abeyance while the matter is resolved in the state
courts. Dow has not yet received a response from either the 5th Circuit or the U.S.
Supreme Court.
2 See N.D. TEX. R. 83.8(d) (“Any member of the bar of this court who has … been disciplined,
publicly or privately, by any court … shall promptly report such fact in writing to the clerk,
supplying full details and copies of all pertinent documents reflecting, or explaining, such
action.”); E.D. TEX. R. AT-2(b)(1) (“A member of the bar of this court shall automatically lose
his or her membership if he or she loses, either temporarily or permanently, the right to practice
law before any state or federal court for any reason other than nonpayment of dues, failure to
meet continuing legal education requirements, or voluntary resignation unrelated to a
disciplinary proceeding or problem.”); W.D. TEX. R.. AT-7(e)(2) (“A member of the bar of this
court must promptly report in writing to the clerk, with full details and copies of pertinent
documents, if … the attorney loses or relinquishes, temporarily or permanently, the right to
practice in any court of record….); FED. R. APP. P. 46(b)(“A member of the court's bar is subject
to suspension or disbarment by the court if the member…has been suspended or disbarred from
practice in any other court….): R. S.C. of the United States 8(a) (“Whenever a member of the
Bar of this Court has been disbarred or suspended from practice in any court of record…the
Court will enter an order suspending that member from practice before this Court and affording
the member an opportunity to show cause, within 40 days, why a disbarment order should not be
entered….”
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De Facto Suspension in Federal Court
Dow has a statutory obligation to represent Robert Pruett at every
subsequent stage of judicial proceedings and specifically, returning to this Court
for further relief. See 18 U.S. CODE §3599(e). Moreover, Pruett has a right to
expect nothing short of effective counsel and zealous representation at this last
stage of litigation. These rights should not be contingent upon a discretionary act
of this Court. This Court’s unlawful order has already caused irreparable harm
when it triggered a reciprocal suspension for Dow in the Southern District. So
long as the order remains in effect, it creates an unnecessary and unjustifiable
burden for both lawyer and client. Because this Court’s order creates an
impediment to Dow’s advocacy on Pruett’s behalf, temporary relief is appropriate
and necessary in this case.
Conclusion
This Court should stay enforcement of its order of suspension because
justice and fairness demand it do so. Dow’s suspension, as expressly articulated by
this Court, was intended to be a “sanction” not a unilateral suspension from the
practice of law. If Dow’s suspension is in fact a “sanction” meant only to punish
him, and not his clients, and is meant to punish him without interfering with his
duties under federal law, then this Court should stay enforcement of this
punishment to prevent further unwarranted and unintended harm that has resulted
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or may result in the federal courts. Dow respectfully requests this Court grant
leave to file this motion and consider the merits thereof as soon as possible.
PRAYER
WHEREFORE PREMESIS CONSIDERED, Dow prays this Court grant
Motion for Leave to File this Emergency Motion to Stay and stay enforcement of
the order of suspension as soon as practical to prevent further, irreparable harm to
Dow and Pruett. Dow further requests this Court rule on this motion within 24
hours. Dow requests all further relief to which he may be entitled.
Respectfully submitted,
/s/ Casie L. Gotro
By: ___________________________
Casie L. Gotro
State Bar No: 24048505
440 Louisiana, Suite 800
Houston, Texas 77002
Office: 832-368-9281
Fax: 832-201-8273
Email: Casie.Gotro@gmail.com
AND
Nicole DeBorde
TBN: 00787344
712 Main St., Ste 2400
Houston, Texas 77002
Office: 713-526-6300
Fax: 713-228-0034
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Email: Nicole@debordelawfirm.com
Attorneys for David Dow
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Motion for Leave to File this
Emergency Motion to Stay was served pursuant to Texas Rule of Appellate
Procedure 9.5 on Sian Silhab, General Counsel of the Court of Criminal Appeals
via email to Sian.Silhab@txcourts.gov on this the 25th Day of March, 2015.
/s/ Casie L. Gotro
_________________________
Casie L. Gotro
VERIFICATION
I certify that I have reviewed this motion pursuant to Texas Rule of
Appellate Procedure 10.2 and have concluded that every factual statement is
supported by competent evidence included in the appendix or the pleadings filed
with this Honorable Court.
/s/ Casie L. Gotro
_________________________
Casie L. Gotro
CERTIFICATE OF COMPLIANCE
This motion complies with the requirements of Tex. R. App. 9.4(e).
/s/ Casie L. Gotro
____________________________
Casie L. Gotro
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