Procedural History

Nikki Curtis died on February 1, 2002. Robert was convicted of capital murder and sentenced to death on February 14, 2003. Immediately after sentencing the district court appointed James Volberding as state habeas counsel for the purposes of challenging Robert’s capital-murder conviction under Texas Code of Criminal Procedure 11.071. Volberding filed an initial application under Article 11.071 on December 13, 2004. Volberding raised no claims related to the now-discredited “shaken baby” science that was used to obtain Robert’s conviction or any ineffective assistance of counsel claims. While the initial state habeas application remained pending, on August 8, 2005, this Court received a pro se document entitled “Notice of Desire to Raise Additional Habeas Corpus Claims.” On September 16, 2009, this Court denied all relief, and dismissed the 2005 pro se filing as an unauthorized successive application.

On October 4, 2009, in part because Robert believed that his lawyer was not seeking relief based on his innocence, Robert wrote a letter to the federal district court asking for new counsel to represent him in federal habeas corpus proceedings. The letter stated, “I don’t want to keep the same attorney that I have now,” referring to Volberding. On November, 3, 2009, the district court appointed Volberding anyway.

The district clerk entered Robert’s pro se letter on the docket on November 9, 2009. That same day, not knowing that Volberding had sought appointment or that the court had already appointed Volberding to represent Robert in federal proceedings, Robert wrote another letter to the court which stated, “I’m writing to inform you all that I do not want to keep the same attorney that I had for my state writ of habeas corpus.

On December 11, 2009, Volberding filed a “Response to Roberson’s Motion for New Counsel.” The response was adverse to Robert’s wishes and asserted that the client had failed to “identify deficiencies with his current counsel.” Volberding represented to the federal district court that “all federal claims were exhausted in state court before seeking federal appointment” and that he “made a determined effort to identify, present, protect and exhaust Roberson’s federal claims so they would not be procedurally defaulted from review by the Court. On December 21, 2009, the district court declined to substitute appointed counsel. The district court later denied all relief.

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On March 29, 2014, because Volberding was still his appointed counsel, Robert wrote to Volberding urging him to look into challenging the “shaken baby evidence” because he had heard that that theory was being viewed as junk science in the courts and had heard that the new Senate Bill 344 (which established Article 11.073) might be of some help. He also urged Volberding to make a claim that he was actually innocent.

Volberding responded to Robert’s letter by stating that the facts of Robert’s case were different and informing Robert that there was no procedural vehicle for raising a challenge to the junk science in his case.

After Volberding declined to investigate the junk science used at trial, on April 28, 2015, Robert wrote a letter to the Fifth Circuit that was docketed May 4, 2015. The letter asked, “Could please [sic] remove my court appointed attorneys, Mr. Seth Kretzer and Mr. James W. Volberding from my case and appeals.” The letter made clear he wanted new counsel “[b]ecause lead federal attorney at first was my state habeas attorney” and so would not likely argue that his own representation in state habeas corpus proceedings was ineffective. The letter also asserted that there existed a “communication breakdown” between counsel and client, and that Volberding “refuse[s] to communicate properly to be able to defend me properly on my appeals.” The letter also asserted an irreconcilable conflict because, among other things, federal counsel refused to file claims of actual innocence. Id. Robert asked that “independent” counsel be appointed.

Two days after the letter was docketed, Volberding and co-counsel, Seth Kretzer, filed a letter urging the Fifth Circuit to deny their client’s request for new counsel, stating that Kretzer had “reviewed the entire state and federal appellate record, and all state and federal pleadings, and found no claim or potential claim that was not raised, or raised incorrectly, by Mr. Volberding.” Volberding “recommend[ed] that the Court deny” his client’s request. Citing co-counsel’s warranty, the Fifth Circuit denied the motion.

Robert’s execution date was set for June 21, 2016. After several more months of litigation related to whether Volberding and Kretzer had a conflict of interest and were therefore unsuited to continue representing Robert, he was appointed new federal habeas counsel—just three months before his scheduled execution.

After conducting an initial review of Robert’s file, on April 1, 2016, new federal counsel requested that the Office of Capital and Forensic Writs investigate a possible Article 11.073 challenge to the science undergirding Robert’s conviction and any claims of innocence. The current habeas application and accompanying motion to stay Robert’s execution followed.

A week before the scheduled execution, Texas’s highest criminal court, the Court of Criminal Appeals, halted the execution, relying in part on a state law that allows for legal challenges based on changes in the science that was used to convict someone. This law is Article 11.073 of the Texas Code of Criminal Procedure, also known as “the junk science writ law.”

Justice for Robert Roberson ©2020

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