Opposition Brief — Carl Wayne Buntion, Petitioner v. Texas

Supreme Court briefDec 8, 2017

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No. 17-5897

IN THE

Supreme Court of the United States

_________________________

CARL WAYNE BUNTION,

Petitioner,

STATE OF TEXAS,

Respondent.

_________________________

On Petition for a Writ of Certiorari to the

Court of Criminal Appeals of Texas

_________________________

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

_________________________

KEN PAXTON

Attorney General of Texas

EDWARD L. MARSHALL

Chief, Criminal Appeals Division

JEFFREY C. MATEER

First Assistant Attorney General

TINA J. MIRANDA

Assistant Attorney General

Counsel of Record

ADRIENNE MCFARLAND

Deputy Attorney General

for Criminal Justice

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

(512) 936-1400

Tina.Miranda@oag.texas.gov

Attorneys for Respondent

QUESTION PRESENTED

Petitioner Carl Wayne Buntion was convicted and sentenced to death for

killing a Houston police officer, James Irby, during a routine traffic stop.

Following a retrial on punishment and during the pendency of his direct

appeal, Buntion sought state habeas relief with the assistance of the Office of

Capital and Forensic Writs (OCFW), a state public defender statutorily

mandated to represent Texas death row inmates in the postconviction process.

He filed an application raising twelve claims, supported by ten exhibits. The

trial court designated issues and ordered Buntion’s trial attorneys to provide

affidavits concerning his allegations of ineffective assistance of counsel. After

receiving the affidavit testimony, the trial court issued findings of fact and

conclusions of law recommending that relief be denied. The Texas Court of

Criminal Appeals (CCA) largely adopted these findings and conclusions,

denying habeas relief based on them as well as its own review of the record.

Buntion now petitions for certiorari review, raising the following question:

Whether the state court’s conduct of Buntion’s postconviction

proceedings violated Buntion’s due process right to notice and an

opportunity to be heard.

TABLE OF CONTENTS

PROOF OF SERVICE ......................................................................................... i

RESPONDENT’S BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF

CERTIORARI ........................................................................................................ i

QUESTION PRESENTED .................................................................................. ii

TABLE OF CONTENTS ..................................................................................... iii

TABLE OF AUTHORITIES ............................................................................... iv

STATEMENT OF THE CASE ............................................................................ 1

I. Facts of the Crime ...................................................................................... 1

II.

Punishment Evidence .............................................................................. 1

State’s Punishment Evidence .............................................................. 1

Buntion’s Punishment Evidence .......................................................... 9

State’s Rebuttal Evidence .................................................................. 15

III. Procedural History ................................................................................ 17

REASONS FOR DENYING THE WRIT .......................................................... 18

I. Buntion Has No Due Process Right to State Collateral Review, and Even

Where the State Provides Such, the Constitution Does Not Mandate the

Proceedings Take Any Particular Form................................................... 20

II. Buntion’s State Habeas Proceedings Complied with Both Texas Code of

Criminal Procedure Article 11.071 and the Fourteenth Amendment.... 22

Buntion received due process............................................................. 23

Buntion’s state habeas proceedings complied with Article 11.071. . 25

CONCLUSION ................................................................................................... 30

iii

TABLE OF AUTHORITIES

Cases

Anderson v. City of Bessemer City, N.C., 470 U.S. 564 (1985) ....................... 29

Armstead v. Scott, 37 F.3d 202 (5th Cir. 1994) ............................................... 28

Atkins v. Virginia, 536 U.S. 304 (2002) ........................................................... 28

Beazley v. Johnson, 242 F.3d 248 (5th Cir. 2001) ........................................... 21

Bell v. Cone, 535 U.S. 685 (2002) ..................................................................... 19

Brumfield v. Cain, 125 S. Ct. 2269 (2015) ....................................................... 21

Clark v. Johnson, 202 F.3d 760 (5th Cir. 2000) .............................................. 27

Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52 (2009)

............................................................................................................................. 21

Estelle v. McGuire, 502 U.S. 62 (1991) ............................................................ 21

Ex parte Campbell, 226 S.W.3d 418 (Tex. Crim. App. 2007) .......................... 26

Ex parte Fassi, 388 S.W.3d 881 (Tex. App.—Houston [14th Dist.] 2012, no

pet.) .................................................................................................................... 26

Ex parte Reagan, 549 S.W.2d 204 (Tex. Crim. App. 1977) ............................. 27

Evitts v. Lucy, 469 U.S. 387 (1985) .................................................................. 21

Ford v. Wainwright, 477 U.S. 399 (1986) ........................................................ 24

Goldberg v. Kelly, 397 U.S. 254 (1970) ............................................................ 24

Greene v. Fisher, 565 U.S. 34 (2011) ................................................................ 19

Harrington v. Richter, 562 U.S. 86 (2011) ....................................................... 19

Henderson v. Cockrell, 333 F.3d 592 (5th Cir. 2003) ...................................... 21

Hines v. Thaler, 456 F. App’x 357 (5th Cir. 2011) .......................................... 28

Hudson v. Quarterman, 273 F. App’x 331 (5th Cir. 2008) .............................. 29

Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992) .................................................... 27

Killion v. State, 503 S.W.2d 765 (Tex. Crim. App. 1973) ................................ 27

Kyles v. Whitley, 498 U.S. 931 (1990) .............................................................. 19

Morgan v. United States, 298 U.S 468 (1936) ................................................. 24

Morrow v. Dretke, 367 F.3d 309 (5th Cir. 2004) .............................................. 28

Murray v. Girratano, 492 U.S. 1 (1989) ........................................................... 20

Panetti v. Quarterman, 551 U.S. 930 (2007) ................................................... 21

Pennsylvania v. Finley, 481 U.S. 551 (1989) ............................................. 20, 21

Penry v. Johnson, 532, U.S. 782 (2001) ........................................................... 17

Rhines v. Weber, 544 U.S. 269 (2005) .............................................................. 29

Rockwell v. Davis, 4:14–CV–1055–O, 2016 WL 4398378 (N.D. Tex. Aug. 18,

2016) .................................................................................................................. 27

Strong v. Johnson, 495 F.3d 134 (4th Cir. 2007) ............................................ 28

Tanberg v. Sholtis, 401 F.3d 1151 (10th Cir. 2005) ........................................ 28

Tercero v. Stephens, 738 F.3d 141 (5th Cir. 2013) .......................................... 24

Townsend v. Sain, 372 U.S. 291 (1963) ........................................................... 24

Trevino v. Johnson, 168 F.3d 173 (5th Cir. 1999) ........................................... 30

Valdez v. Cockrell, 274 F.3d 941 (5th Cir. 2001) ............................................. 28

Wheat v. Johnson, 238 F.3d 357 (5th Cir. 2001) ............................................. 21

Other Authorities

Antiterrorism and Effective Death Penalty Act of 1996 .......................... 19, 27

U.S. Const. Amend. XIV ............................................................................. 22, 23

Rules

Tex. Code of Crim. Proc. art. 11.071 .........................................................passim

STATEMENT OF THE CASE

Facts of the Crime

The Texas Court of Criminal Appeals (CCA) summarized the facts

establishing Buntion’s guilt of capital murder:

The State’s evidence 1 at trial established the following: At about

7:45 p.m., June 27, 1990, Houston police officer James Irby was on

motorcycle patrol when he stopped a car on Airline Drive for a

minor traffic violation. After parking his motorcycle, Irby

approached the driver’s side of the car and spoke briefly with the

driver, who had already exited the vehicle. Irby and the driver, still

conversing, walked toward the rear of the car. Irby then walked

back to the driver’s side of the car, looked in, and spoke briefly with

[Buntion], who was the only passenger. Irby then returned to the

rear of the car, where he continued speaking with the driver.

[Buntion] then exited the car from the passenger’s side. Irby

motioned to [Buntion] to get back in the car, but he proceeded

toward Irby, and when he was about five feet from Irby, he raised

a long-barreled revolver with both hands and fired a shot into

Irby’s forehead. Irby died almost instantly.

Buntion v. State, No. 71, 238 slip. op. at 1-2 (Tex. Crim. App. May 31, 1995)

(footnote original).

II.

Punishment Evidence

State’s Punishment Evidence

Evidence introduced at the punishment retrial demonstrated the

following: On June 27, 1990, James Irby, a motorcycle officer with the Houston

Police Department (HPD), stopped a maroon or rust-colored Pontiac in the

[Buntion] presented no evidence during the guilt/innocence phase of his trial.

Houston Community College parking lot at the intersection of I-45 and Airline

Drive after driver Johnny Killingsworth committed a traffic offense. 2 35 RR

95-103; 36 RR 12-5, 41-47, 65-68, 91-94). 3 At the time of the traffic stop Buntion

was the sole passenger in the vehicle, and he was sitting in the front passenger

seat. 35 RR 126, 235.

Killingsworth exited the vehicle and Irby escorted him to the back of the

car. 35 RR 105. According to witnesses, the interaction between Irby and

Killingsworth appeared cordial, and there was no indication of a problem

between the two men. 35 RR 106-110, 235-36; 36 RR 67, 143-45, 256-57. At one

point, Irby walked to the driver’s side window of the vehicle, said something to

Buntion, and then returned to Killingsworth. 35 RR 107-08. Buntion then got

out of the car, and Irby motioned for him to return to the vehicle. 35 RR 10910; 36 RR 68, 259-60.

Rather than complying, Buntion walked to the rear passenger-side of the

vehicle, pointed a .357 magnum revolver at Irby, and shot him in the head,

causing Irby to fall to the ground. 35 RR 109-12, 163, 167, 238-39, 241-42, 247-

Killingsworth, who had an outstanding warrant for a parole violation, was

not charged with the Irby’s murder. He was charged with the offense of possession

of a controlled substance that police found in the vehicle. 36 RR 136, 139-40, 142; 38

RR 40-41.

“RR” refers to the reporter’s record of transcribed trial proceedings. “SHCR”

refers to the clerk’s record of Buntion’s habeas proceeding. All references are

preceded by volume number and followed by page number(s) where necessary.

48; 36 RR 14-24, 20-25, 68-75, 95-96, 99, 144-45, 162-63, 260-61. Buntion then

walked around the vehicle and shot Irby two more times in the back. 35 RR

114; 36 RR 96-99, 118-20, 146, 262-63, 274-75.

After shooting Irby, Buntion fled on foot in an easterly direction toward

Lyerly Street and committed at least five additional violent felony offenses

before his arrest. 25 RR 115; 26 RR 263. Specifically, he committed aggravated

robbery, aggravated assault, and/or attempted murder by attempting to stop

Debra LeBlanc’s blue Mazda RX 7 vehicle with his revolver, and after LeBlanc

started to reverse the car, firing a bullet into the windshield (36 RR 76-77, 10103, 131-32, 147. The bullet struck LeBlanc’s cousin, Theresa Clerkley, in the

arm and caused broken glass from the windshield to strike LeBlanc’s eyes

which impaired her vision for almost four weeks. 36 RR 103-04, 152-53.

Buntion then attempted to gain entry to another brown or marooncolored vehicle on Lyerly Street.

In the process, Buntion committed the

attempted capital murder of Richard Ramsey, a Houston Community College

peace officer, by pointing his revolver in Ramsey’s direction and firing a shot

at him after Ramsey approached him, announced he was a police office, and

commanded him to halt. 36 RR 199-200, 203-08.

Buntion next committed aggravated assault. Jose Guiterrez, a Pony

Express Courier Service driver, asked Buntion if he could help him when

Buntion walked into the Pony Express warehouse. Buntion responded by

pointing his revolver at Gutierrez. 37 RR 35-52.

Finally, Buntion committed aggravated assault and/or aggravated

robbery of Alexander Crawford, a Pony Express Courier Service supervisor.

Buntion pointed his revolver at Crawford’s face, told him to put up his hands,

demanded Crawford’s wallet, ordered him to the ground after he indicated he

didn’t carry a wallet, and then attempted to steal his car. 37 RR 53-69. When

Buntion was unable to operate the standard-shift transmission in Crawford’s

vehicle, he abandoned it and ran back into the Pony Express Courier Service

warehouse. 37 RR 60-61.

David Kalich, HPD, subsequently entered the warehouse and arrested

Buntion after he threw down his revolver and surrendered. 37 RR 70-93.

When police took custody of Buntion’s revolver, the six-round cylinder

contained five fired bullets and one live bullet. 35 Rr 364-71; 37 RR 85-87.

Darlen Rentrop, Killingsworth’s girlfriend, lived with Killingsworth in

Houston at the time of the primary offense. 37 RR 130-31. She met Buntion

through Killingsworth and noticed that Buntion carried a black gun with a

long barrel. 37 RR 136-37. Rentrop asked Buntion about the gun and he told

her that it was a .357 that he carried with him at all times. 37 RR 137. Later,

Rentrop had a discussion with Buntion regarding what they would do when

they were stopped by the police. Buntion told Rentrop “[t]hat he wasn’t going

back to jail. That’s why he carried his gun around with him at all times.

Because he was willing to kill before going to jail.” 37 RR 135-39.

Ray Klein, HPD Firearms examiner, testified that Irby’s Smith &

Wesson .44 magnum revolver, States Ex. 15, which was found next to his body

had not been fired since it was last cleaned. 37 RR 118-19.

Thomas J. Brown, assistant medical examiner, testified that Irby’s

autopsy established that he sustained a bullet wound to his upper left forehead

and two bullet wounds to his back. 35 RR 59-62. The bullet wound to his

forehead and one of the wounds to the back were lethal injuries that caused

Irby’s death. 35 RR 67-72, 78-79. Additionally, the shots to Irby’s back were

consistent with the shooter moving around Irby’s body while shooting. 35 RR

88.

The previous trial testimony of Ernesto Carranza, Richard Simmon, L.D.

Cook, Edna Cole, and Joseph Bannon was read into evidence. Buntion was

under Carranza’s supervision at the Texas Department of Criminal Justice

(TDCJ) Ramsey Unit when Carranza found a 12-inch knife under the mattress

in Buntion’s cell during a routine inspection in January 1982. 38 RR 89-93.

Carranza also testified that Buntion was very hard to deal with at time and

did not seem to care about anyone. 38 RR 97.

Simmons and Cook, both with TDCJ, testified regarding an incident

where Buntion was granted furlough in 1982 from the Ramsey Unit to Tarrant

County. During his furlough, Buntion was arrested after presenting a false

identification to gain admission to Angelina County jail in Lufkin, Texas, to

visit his ex-wife. 38 RR 112-13, 119. After his arrest, authorities learned that

Buntion was on furlough from the Ramsey Unit, and Buntion was disciplined

for failing to obey orders, placed in solitary confinement, and reduced from

state approved trustee to standard approved trustee status. 38 RR 101-04, 121.

Cole, from the Texas Board of Pardons and Paroles, testified regarding

an incident where Buntion was released to the Texas House, a halfway house,

on May 15, 1990. 38 RR 123-27. At the time of his release, Buntion was advised

that he would be subject to a violation and a blue warrant would issue for his

arrest if he failed to report to the Texas House. 38 RR 127. Joseph Bannon

testified that Buntion failed to report as directed and that information was

forwarded to the Board of Pardons and Paroles. 38 RR 134-36.

Scott testified regarding his encounter with Buntion on January 17,

1984, when Scott was a manager at a car dealership in Caldwell, Texas. 38 RR

164. Buntion got out of his car and climbed into a Trans Am that was on the

car lot. 38 RR 165-66. Scott ran toward the driver’s side of the Trans Am and

knocked on the window, but Buntion swerved the car into Scott and knocked

him down before driving away. 38 RR 168.

Patrick Prudhomme, an inmate at the Harris County Jail with several

misdemeanor convictions and a sentence for aggravated robbery, testified

regarding his encounter with Buntion in 1990. 38 RR 175. Prudhomme was

standing outside Buntion’s single-man cell at the Harris County Jail and asked

Buntion why he was in jail. 38 RR 176. Buntion responded, “they said I killed

a cop.” 38 RR 179. When Prudhomme replied that he should know if he did or

did not, Buntion said, “If y’all keep f’ing with me, I’ll kill y’all like I killed the

cop.” 38 RR 181. Buntion then started spitting and throwing water from his

commode. 38 RR 182.

The State introduced evidence of Buntion’s prior convictions, consisting

of two two-year prison sentences for theft in 1961 (State’s Ex. 67); a two year

sentence for burglary in 1963 (State’s Ex. 68); a six year sentence for assault

with intent to murder in 1965 (State’s Ex. 69); a ten year sentence for

possession of marijuana in 1970 (State’s Ex. 70); a ten year sentence for

burglary in 1968 (State’s Ex. 70); a ten year sentence for burglary in 1971

(State’s Ex. 74); two ten-year sentences for unauthorized use of a motor vehicle

in 1984 (State’s Ex. 76); and, a fifteen year prison sentence for sexual assault

of a child in 1989 (State’s Ex. 77). 35 RR 227-30.

Additionally, the State presented a videotaped news interview of

Buntion during which he told the reporter that he felt that his shooting of Irby

was justified because Irby spread his legs and assumed a combat stance like at

the firing range. Buntion further stated that he would kill Irby if he had to do

it all over again. 38 RR 219; State’s Ex. 125A. 4

Cally Irby, Irby’s daughter, testified that she was one year old at the time

of his death and that she had Asperger’s Syndrome. 38 RR 231. She stated

that her father’s absence put a strain on the family and affected her

relationship with her older brother who tried to protect her. 38 RR 232-33.

Additionally, Cally testified that her mother often talked of Irby, that she had

seen her mother break down, and that her mother would never recover from

Irby’s death. 38 RR 233-34.

Cody Irby, Irby’s son and an office with the Pflugerville Police

Department, testified that he was three years old when his father was killed.

38 RR 237. Because of his father’s death, Cody was forced to grow up and

assume the position of man in the house. 38 RR 238. According to Cody, his

mother had been in pain for as long as he could remember, and his

grandparents were forever affected by Ibry’s death. 38 RR 239. Finally, Cody

stated that every time he pulled over an individual on a traffic stop, he thought

of what happened to his father and how quickly things could change. 38 RR

239.

The trial court later granted the defense’s request to admit additional

material from the new interview as Defense’s Ex.24.

Buntion’s Punishment Evidence

Bobby Joe Buntion, Buntion’s younger brother, testified for the defense

at punishment. He stated that there were two other siblings in the family—

Buntion’s twin brother Kenneth, who was killed by police in 1971—and a

younger sister, Rita Kolb. 38 RR 17-19. Their mother, Irene, married their

father, James, when she was about fifteen-year-old, and neither parent had

received much education 38 RR 20-22. The family moved to Houston when

Buntion was 8 years old and lived on the north side which Bobby considered a

bad area of town. 38 RR 24-26, 39.

James worked as an auto mechanic and often required his children to

work for him. 38 RR 24-30. Also, James never encouraged his children to

attend school, and Buntion left school after the sixth or seventh grade. 38 RR

29-30, 54. Bobby also testified that his father was a gambler which resulted in

hardship for the family. In one instance, James lost the family home and his

tools while gambling, and the family had to move to a rat infested two-bedroom

wood framed house. 38 RR 27-29.

Bobby testified that his father was an alcoholic who abused his wife,

children, and animal. 38 RR 24, 32. On one occasion, Bobby’s father beat the

mother with a beer bottle, causing her to lose all of her teeth. 38 RR 33. Bobby

and Buntion tried to intercede with Bobby once stabbing his father with a

knife, threatening to kill him if he continued to hit his mother. 38 RR 37-38.

Despite Bobby’s treats, his father never really stopped abusing his mother. 38

RR 38.

As for Bobby and his siblings, Bobby testified that his father often beat

and kicked Bobby and Buntion. 38 RR 34-35. When Buntion was eleven or

twelve years old, James hit him with a baseball bat and broke Buntion’s wrist.

38 RR 38-39. On another occasion when Bobby was nine years old, his father

broke Bobby’s arm in five places. 38 RR 40-41. Regarding his father’s abuse of

animals, Bobby testified that James had sex with a pet dog and with a pig. 38

RR 46-47.

According to Bobby, other adults were afraid of Bobby’s father. The

children once asked a neighbor to intercede when James was abusing his wife,

but the neighbor refused to get involved because he was afraid of James. 38

RR 43. Bobby testified that he witnessed his father murder a man over a

dispute concerning a car repair bill. 38 RR 48-52.

Regarding his history, Bobby testified that he spent twenty to twentyfive years in prison with multiple criminal convictions before his release in

2002. 38 RR 57, 65-66. Bobby also admitted that he killed two or three men. 38

RR. 65. He subsequently became religious and lived with his sister Rita who

supported him. 38 RR 67, 77. Before testifying in the instant trial, Bobby had

not seen Buntion in over twenty-five years, but he and Buntion remained in

touch by writing frequently. 38 RR 68-69. Finally Bobby testified that he did

not consider Buntion a violent person. 38 RR 71.

S.O. Woods, former director of classification of TDCJ, summarized the

prison records for Buntion, then aged 68 years, who had been imprisoned for

over 37 years 38 RR 153, 156, 178. Buntion’s TDCJ records reflected that he

was admitted to TDCJ on December 11, 1961, released on June 21, 1962, and

there were no disciplinary reports or incident reports for that time period. 38

RR 159; Defense’s Ex. 11. The records also showed that Buntion was again

imprisoned from November 25, 1963, until December 8, 1964, and Buntion had

one minor disciplinary report smoking in an unauthorized area. 38 RR 160;

Defense’s Ex. 12. Buntion was again admitted to TDCJ on November 12, 1970,

released to county jail on October 13, 1971, and paroled on November 26, 1975.

During that time, Buntion had no disciplinary reports. 38 RR 162; Defense Ex.

13. Buntion was imprisoned for ten years on a burglary conviction with no

reported incidents of discipline. 38 RR 163; Defense Ex. 14. While serving nine

years for burglary of a Motor vehicle, Buntion had a single disciplinary for

failure to obey orders. 38 RR 164; Defense Ex. 15. There were no disciplinaries

reported during Buntion’s sentence for unauthorized use of a motor vehicle. 38

RR 165; Defense Ex. 16. There was also nothing reported while Buntion served

time for sexual assault of a child. 38 RR 166; Defense Ex. 17. Records from

Buntion’s conviction and sentence for capital murder contained no incident

report, but reflected disciplinary reports for refusing to be strip searched by a

female officer, possession of contraband in the form of extra clothing and

towels, and fighting without a weapon. 38 RR 166-69; Defense Ex. 18.

Wood further testified that Buntion had spent more than half of his

lifetime in prison, and that he was in general population before going to death

row. 38 RR 178. While on death row between 2001 and 2000, Buntion was

classified as work capable and volunteered to work in the garment factory. 38

RR 172-73. Since his confinement at Polunksy Unit’s death row starting in

2000, Buntion had no disciplinary actions, and he was not considered a

problem or high escape risk. 38 RR 175-76.

According to Woods, Buntion would not be placed in general population

if he received a life sentence for capital murder because he was identified as a

member of the Aryan Brotherhood. 38 RR 184. Rather, Buntion would be

housed in administrative segregation in a single man cell with one hour of daily

recreation. 38 RR 185-86.

Bobby Joe Blanton, TDCJ, testified that he knew Buntion at the

Polunksy Unit where Blanton worked in various capacities as a correctional

officer, a security threat group office and a contraband interdiction team officer

from 1994 to 2004 and from 2009 to 2011. 39 RR 252-53. During that time,

Blanton had almost daily contact with Buntion. 39 RR 254-55. Blanton stated

that Buntion was quiet and did not give anyone trouble. 39 RR 254-55, 261.

Blanton was also familiar with death row inmate Bryan Edward Davis,

a member of the Aryan Botherhood. 39 RR 253. In 2003 or 2004, Blanton

searched Davis’s cell and discovered a list of Aryan Bortherhood members;

however, Buntion’s name was not included on the list. 39 RR 259-60. Blanton

testified that he never found anything gang related in Buntion’s cell, and he

never heard him use Aryan Brotherhood type language or threats. 39 RR 25460.

Wilford Griffin, a training sergeant for TDCJ, testified that he worked

on death row from 200 to 2005 and did not know of any write-ups or

disciplinaries for Buntion. 39 RR 283-85. While Griffin did not know Buntion,

he asserted that the prison guards were aware of the trouble makers on death

row. 39 RR 285-87.

Virgil Miller, TDCJ, testified that he did not handle any incidents

involving the application during his one year tenure as a disciplinary hearing

officer for death row and general population offenders. 39 RR 294-6. According

to Miller, it was possible for inmates to commit crimes even while imprisoned

on death row; however, he did not know of any disturbances or violations by

Buntion. 39 RR 297.

Earl Hicks, a retiree from Shell Oil, testified that he regularly visited

Harris County Jail once a week to minister to the inmates, and it was in this

capacity Hicks met Buntion. 39 RR 303-06. Hicks had visited Buntion over a

hundred times, and Buntion told Hicks that he was a born again believer,

meaning that Buntion believed in Jesus Christ. 39 RR 306. Also during that

time, Buntion displayed genuine concern for Hicks’s wife when she was facing

an operation, and he told Hicks that he would pray for him. 30 RR 307. Hicks

testified that he considered Buntion a friend even though he was a convicted

murderer. 39 RR 308-09.

Mark Vigen, Ph.D., testified that he authored an article and participated

in studies concerning inmate violence. Vigen offered his opinion that prison

worked well for Buntion and was effective at controlling him. 40 RR 30, 37,

114. According to Dr. Vigen, former death row inmates were not known to

commit violence to any greater extent that other capital defendants who

received life sentence. 40 RR 41-42. Additionally, the number one factor in

determining future dangerousness was age as well as factors such as gang

activity, education, criminal history, prison history, and the facts of the

primary offense. 40 RR 42-44. To support the theory that Buntion presented a

lessened threat for future dangerousness, Dr. Vigen cited Buntion’s age of 68

years, his IQ of 130, the fact that he had an eighth-grade education and took

college level courses, the scarcity of disciplinary actions against him during his

various incarcerations, and the facts of the primary offense. 40 RR 46-47.

According to Dr. Vigen, the fact that Buntion shot his complainant was

indicative of nonviolent behavior in the future. 40 RR 48.

Zeke Young, founder and director of a prison ministry called “Less than

the Least Ministries” testified that Buntion should not receive the death

penalty for capital murder. 40 RR 141-43; 162. According to Young, Buntion

was genuinely interested in God’s word and Young’s ministry, and Young

prayed with Buntion. 40 RR 145-47. Also, Young had never known anything

but kindness from Buntion. 40 RR 152.

Finally, the defense read into evidence former testimony of three

witnesses, Helen Smith, Gary Stretcher, and Jerry Jordan. Smith, a TDCJ

prison guard, assisted in food service at the Hobby Unit, testified that she knew

Buntion when he was a baker in the food service department and saw him on

a daily basis. 40 RR 164-65. According to Smith, Buntion was always polite

and never behaved in a violent manner. 40 RR 165-66. Stretcher, Dean of

Continuing Education at McClennan Community College, testified that

Buntion enrolled in three college level courses and achieved a GPA of 3.65. 40

RR 169-70.

Buntion was polite and appeared interested in Stretcher’s

educational program. Jordan, a teacher a McLennan Community College and

at a prison unit testified that Buntion attended class regularly, was well

prepared, and seemed interested in the subject matter. 40 RR 171-73.

State’s Rebuttal Evidence

On rebuttal, the State presented Larry Hunger, who grew up on

Houston’s northside and knew Buntion and his twin brother, Kenneth, in

elementary school and as teenagers. 40 RR 178-81. While Hunter did not finish

high school, he obtained his GED and then worked for the fire department. 40

RR 184-87. Hunter testified that Buntion’s father was a mechanic who worked

on a car for Hunter’s father, and Hunter’s father liked Buntion’s father. 40 RR

182. According to Hunter, Hunter never claimed that his father beat him, and

Hunter never observed any injuries on Buntion indicative of a beating. 40 RR

178. Hunter quit spending time with Buntion and Kenneth when they became

teenagers. 40 RR 190. Hunter last saw them at a Nashville motel where they

were smoking dope. 40 RR 192. Hunter left the motel when either Buntion or

his brother flashed a gun. 40 RR 192.

III.

Procedural History

In January 1991, A Gillespie County jury found Buntion guilty of capital

murder and sentenced him to death. 1 CR 5 15 (indictment) & I-A CR 363-65

(judgment). His conviction and sentence were affirmed by the CCA on direct

appeal. Buntion v. State, No. AP-71,238 (Tex. Crim. App. May 31, 1995)

(unpublished). Buntion’s initial state application for habeas relief was denied

by the CCA in November 2003. Ex parte Buntion, No. WR-22,548-02 (Tex.

Crim. App. Nov. 5, 2003) (unpublished).

Buntion then filed a petition seeking federal habeas relief that was

provisionally granted by the U.S. District Court on April 28, 2006, Buntion v.

Drekte, 4:04-cv-01328 (S.D. tex. April 28, 2006). The Fifth Circuit, however,

vacated that judgment and denied habeas relief. Buntion v. Quarterman, 524

F.3d 664 (5th Cir. 2008), cert. denied, 555 U.S. 1176 (2009).

Following the denial of certiorari review, Buntion returned to state court

to file a subsequent state habeas application alleging that his death sentence

was invalid under Penry v. Johnson, 532, U.S. 782 (2001). The CCA granted

the writ, awarding Buntion a new trial on punishment. Ex parte Buntion, 2009

WL 3154909 (Tex. Crim. App. 2009) (unpublished).

court.

“CR” refers to the clerk’s record of pleadings and documents filed in the trial

The trial court held the new punishment hearing in February 2012, and

Buntion was sentenced to death a second time. __ CR ___. His sentence was

affirmed by the CCA on direct appeal. Buntion v. State, 482 S.W.3d 58 (Tex.

Crim. App. 2016), cert. denied, 136 S.Ct. 2521 (2016). Buntion sought habeas

relief from his new death sentence in the state court, but that application was

denied by the CCA this past June. Ex parte Buntion, 2017 WL 2464716 (Tex.

Crim. App. June 7, 2017) (unpublished). The present petition followed.

REASONS FOR DENYING THE WRIT

The question that Buntion presents for review is unworthy of the Court’s

attention. Supreme Court Rule 10 provides that review on writ of certiorari is

not a matter of right, but of judicial discretion, and will be granted only for

“compelling reasons.” Where a petitioner asserts only factual errors or that a

properly stated rule of law was misapplied, certiorari review is “rarely

granted.” Id.

As shown below, no compelling reason exists to review this case. And

even if the Court was inclined to grant review, it need not do so in the instant

proceeding because Buntion has yet to seek federal habeas corpus relief. As

Justice Stevens noted:

This Court rarely grants review at this stage of the litigation even

when the application for state collateral relief is supported by

arguably meritorious federal constitutional claims. Instead, the

Court usually deems federal habeas proceedings to be the more

appropriate avenues for consideration of federal constitutional

claims.

Kyles v. Whitley, 498 U.S. 931, 932 (1990) (Stevens, J., concurring).

In his petition, Buntion suggests that the Court should consider his

claim now because it will be more difficult for him to prevail during federal

habeas review as a result of Congress’s passage of the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA). Pet. 16-18 But this argument is

misguided. The AEDPA standards are “‘difficult to meet[]’ because the purpose

of [the] AEDPA is to ensure that federal habeas relief functions as a ‘guard

against extreme malfunctions in the state criminal justice systems,’ and not as

a means of error correction.” Greene v. Fisher, 565 U.S. 34, 38 (2011) (quoting

Harrington v. Richter, 562 U.S. 86, 102–03 (2011)). The AEDPA “modified a

federal habeas court’s role in reviewing state prisoner applications in order to

[. . .] ensure that state-court convictions are given effect to the extent possible

under the law.” Bell v. Cone, 535 U.S. 685, 693 (2002). Granting Buntion’s

request would thus frustrate this clear purpose. This Court should therefore

decline to allow Buntion to circumvent the AEDPA by granting his petition at

this premature juncture—especially since Buntion’s petition presents no

important questions of law to justify the exercise of certiorari jurisdiction in

the first place.

Buntion Has No Due Process Right to State Collateral Review,

and Even Where the State Provides Such, the Constitution Does

Not Mandate the Proceedings Take Any Particular Form.

Buntion argues that the state court’s failure to follow mandatory

statutory procedures for adjudicating habeas corpus claims violated his right

to due process. See generally, Petition. But there is no right to such proceedings

in the first instance. As Justice O’Connor has stated:

A post-conviction proceeding is not part of the criminal process

itself, but is instead a civil action designed to overturn a

presumptively valid criminal judgment. Nothing in the

Constitution requires the States to provide such proceedings . . .

nor does it seem [] that that Constitution requires the States to

follow any particular federal role model in these proceedings.

Murray v. Girratano, 492 U.S. 1, 13 (1989) (O’Connor, J., concurring); see also

Pennsylvania v. Finley, 481 U.S. 551, 557 (1989) (states have no obligation to

provide collateral review of convictions). “State collateral proceedings are not

constitutionally required as an adjunct to the state criminal proceedings and

serve a different and more limited purpose than either the trial or appeal.”

Giarratano, 492 U.S. at 10. Indeed, this Court has explained that “[t]he

additional safeguards imposed by the Eighth Amendment at the trial stage of

a capital case are . . . sufficient to assure the reliability of the process by which

the death penalty is imposed.” Id.

But more importantly, where a State allows for post-conviction

proceedings, the Federal Constitution [does not] dictate[] the exact form such

assistance must assume.” Finley, 481 U.S. at 555, 557, 559; cf. Estelle v.

McGuire, 502 U.S. 62, 67–68 (1991) (“federal habeas corpus relief does not lie

for errors of state law”) (internal quotation marks and citation omitted);

Henderson v. Cockrell, 333 F.3d 592, 606 (5th Cir. 2003) (infirmities in state

habeas proceedings do not state a claim for federal habeas relief); Beazley v.

Johnson, 242 F.3d 248, 271 (5th Cir. 2001); Wheat v. Johnson, 238 F.3d 357,

361 (5th Cir. 2001). Indeed, as the Court has explained, “Federal courts may

upset a State’s postconviction procedures only if they are fundamentally

inadequate to vindicate the substantive rights provided.” Dist. Attorney’s Office

for Third Judicial Dist. v. Osborne, 557 U.S. 52, 69 (2009).

This is quite a different position from those situations involving the right

to counsel on first appeal and the right to be free from cruel and unusual

punishment, i.e., competency to be executed and intellectual disability.

Because these rights are firmly grounded in the Constitution, any measures

taken by the States to allow vindication of them will necessarily implicate due

process. See Brumfield v. Cain, 125 S. Ct. 2269 (2015); Panetti v. Quarterman,

551 U.S. 930 (2007); Evitts v. Lucy, 469 U.S. 387 (1985). For these reasons,

Buntion is not entitled to certiorari review.

II.

Buntion’s State Habeas Proceedings Complied with Both Texas

Code of Criminal Procedure Article 11.071 and the Fourteenth

Amendment.

In his petition, Buntion alleges that the state habeas court failed to

adhere to the requirements of Texas Code of Criminal Procedure Article 11.071

during its evaluation of his case. Pet. at 21-39. Specifically, Buntion complains

that: (1) the trial court did not allow him to present evidence in support of his

habeas case; (2) the trial court improperly failed to designate issues; and (3)

the trial court summarily adopted the state’s findings of fact and conclusions

of law verbatim. He asserts that the cumulative effect of these evidentiary and

procedural failures denied him due process under the Fourteenth Amendment

and rendered the state court’s findings and conclusions unreliable. Id. Buntion

goes so far as to state that the procedures used in his case “are no more than a

sham, creating the illusion of process where none exists, and leading to the

inescapable conclusion that death-sentenced persons in Texas cannot rely on

the fair application of the statutory post-conviction procedural rules.” Id. at 3839.

But certiorari review is not warranted. Buntion does not present this

Court with any precedent that specifically holds that a Texas habeas court’s

failure to comply with Article 11.071, Sections 8 and 9, constitutes a dueprocess violation requiring reversal of the lower court. Indeed, state habeas

proceedings are not required under the Constitution; consequently, any failure

by the state court to follow the state’s own evidentiary rules and procedures

cannot rise to a constitutional violation in the general run of cases. But even

assuming the validity of Buntion’s argument, the record shows that the

procedures utilized in his habeas proceedings adequately complied with both

due process and Article 11.071. Accordingly, Buntion’s petition for a writ of

certiorari should be denied.

Buntion concedes that the Texas state habeas statute facially complies

with the Fourteenth Amendment. Pet. at 21 (“the Texas statute governing the

adjudication of habeas corpus applications filed by death-sentenced prisoners

in Texas complies with the requirements of due process.”). He also

acknowledges that due process does not require a live hearing. Id. at 36.

Despite this, Buntion asserts that the state habeas court’s purported failure to

adhere to Article 11.071, Sections 8 and 9, deprived him of due process. Id. at

16-39. Yet, as demonstrated below, Buntion fails to show that his state habeas

proceedings did not comply with due process or even the governing statute.

Accordingly, certiorari review of this claim is unwarranted.

Buntion received due process.

Buntion fails to provide any precedent that specifically holds that the

purported deviations from Article 11.071 that occurred in his case can render

an applicant’s proceeding constitutionally inadequate under the Fourteenth

Amendment. Instead, Buntion extrapolates that the trial court’s alleged

violations of Article 11.071 are impermissible pursuant to this Court’s holdings

in cases such as Townsend v. Sain, 372 U.S. 291 (1963), Morgan v. United

States, 298 U.S 468 (1936), Goldberg v. Kelly, 397 U.S. 254 (1970), and Ford v.

Wainwright, 477 U.S. 399 (1986) (Powell, J., concurring). Pet.18-39.

But even assuming arguendo that a state habeas court’s noncompliance

with Article 11.071 could rise to the level of a due process violation, the record

plainly shows that Buntion was afforded due process’s core protections. Ford,

477 U.S at 413 (“‘[t]he fundamental requisite of due process of law is the

opportunity to be heard’”) (citation omitted); Tercero v. Stephens, 738 F.3d 141,

148 (5th Cir. 2013) (federal habeas case extending core procedural due process

protections to inmates seeking to prove that they are ineligible for the death

penalty due to being underage, but noting that “states retain discretion to set

gateways to full consideration and to define the manner in which habeas

petitioners may develop their claims” and ‘“[d]ue process does not require a full

trial on the merits’; instead, petitioners are guaranteed only the ‘opportunity

to be heard.’”) (footnotes and citations omitted). In the case-at-bar, Buntion

most certainly had notice and the opportunity to be heard. Represented by the

Office of Capital and Forensic Writs, a state public defender statutorily

mandated to provide Texas death row inmates with full-service postconviction

representation, Buntion filed a lengthy habeas application raising twelve

claims (1 SHCR 2–261) and accompanied by 25 exhibits. Id.

Buntion submitted findings of fact and conclusions of law, although his

findings and conclusions were not ultimately adopted by the state habeas

court. 3 SHCR 396-509. The CCA, based on its own review, as well as the

findings and conclusions of the trial court, denied relief in a reasoned opinion

that specifically addressed the claims and relevant factual assertions in

Buntion’s habeas application. Pet. Appx. A.

The Texas habeas system thus gave Buntion the means and the

opportunity to make claims, marshal evidence in support of his cause, and

address the adverse evidence adduced against him. Simply because Buntion

did not prevail does not mean that he was denied notice or an opportunity to

be heard.

Buntion’s state habeas proceedings complied with Article

11.071.

As noted above, Buntion specifically complains that his state habeas

proceedings failed to comply with Article 11.071 in that: (1) the trial court did

not permit him to present evidence in support of his habeas case; (2) the trial

court failed to designate issues; and (3) the trial court summarily adopted the

State’s findings of fact and conclusions of law verbatim. Pet. at 16-39. But, as

shown below, Buntion’s complaints are meritless.

Buntion’s first complaint—that the state habeas court did not permit

him the opportunity to present evidence—is premised on the questionable

belief that because there was no live evidentiary hearing, no evidence was ever

admitted during his state habeas proceeding. Pet. at 32, 36-39. But, the state

habeas court plainly considered the exhibits and documentary evidence

presented by the parties in making its determinations. See generally 1 D SHCR

186-203. Furthermore, if no evidence whatsoever was admitted, then it seems

unlikely that Buntion could have made a valid case for relief based simply on

bare and conclusory assertions in his pleadings.

Responding to a similar contention urged in federal habeas, the

Northern District of Texas has observed:

At the heart of this complaint is [petitioner]’s assertion that,

absent a live hearing, the state court was required to accept the

factual assertions in his application as true, even though they were

disputed by witness affidavits, expert reports, or other

documentary evidence. [] [Petitioner] presents no support for this

assertion other than his own interpretation of how the writ

procedure in article 11.071 should operate. [] His contention that

a Texas writ proceeding without a live hearing is effectively a

summary judgment determination on the pleadings is at odds with

the plain text of the statute, which contemplates the “resolution”

of material facts even before the hearing determination is made.

See art. 11.071, § 8(a) (entitled “Findings of Fact without

Evidentiary Hearing” and requiring court to determine if

“previously unresolved” material fact issues exist). Moreover,

[petitioner]’s related complaint that none of the multitude of

exhibits and affidavits in this case are evidence because they were

not formally admitted at the habeas proceeding is unsupported in

Texas law. Ex parte Campbell, 226 S.W.3d 418, 423 (Tex. Crim.

App. 2007) (noting that exhibits attached to the State’s motion to

dismiss are as much a part of this habeas record as are applicant’s

attachments); Ex parte Fassi, 388 S.W.3d 881, 887 (Tex. App.—

Houston [14th Dist.] 2012, no pet.) (finding that documents

attached as exhibits to the defendant’s 11.072 habeas application

and the State’s response could be considered by the habeas court

even though they were not introduced into evidence by any party);

see Ex parte Reagan, 549 S.W.2d 204, 205 (Tex. Crim. App. 1977)

(relying on Killion v. State to affirm where court and parties

treated governor’s warrant in habeas corpus hearing as if admitted

into evidence); Killion v. State, 503 S.W.2d 765, 765–66 (Tex. Crim.

App. 1973) (reviewing court permitted to consider defendant’s

stipulations to charged offenses where considered by trial court in

adjudicating guilt for theft and burglary, although written

stipulations were not admitted into evidence).

Rockwell v. Davis, 4:14–CV–1055–O, 2016 WL 4398378, at *5 (N.D. Tex. Aug.

18, 2016) (footnote omitted), certificate of appealability denied, 853 F.3d 758

(5th Cir. 2017).

Buntion also contends that the court should conduct a live evidentiary

hearing in the future. Pet. at 35, 38-39. But a state court “hearing” does not

necessarily mean a live evidentiary hearing, and the Court has “not mean[t] to

imply that the state courts are required to hold hearings.” See Townsend, 372

U.S. at 313 n.9 (discussing federal evidentiary hearings pre-AEDPA),

overruled in part by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992) (superseded by

AEDPA). Moreover, Article 11.071, § (9)(a) explicitly permits trial judges to

resolve controverted, previously unresolved material facts by “affidavits,

depositions, interrogatories, and hearings, as well as using personal

recollection.” And in the federal habeas context, the Fifth Circuit has

“repeatedly found that a paper hearing is sufficient to afford a petitioner a full

and fair hearing on the factual issues underlying the petitioner’s claims.” Clark

v. Johnson, 202 F.3d 760, 766 (5th Cir. 2000); Hines v. Thaler, 456 F. App’x

357, 363 (5th Cir. 2011) (unpublished) (noting that “while a live evidentiary

hearing may be recommended in some Atkins[ 6] cases in Texas, a thorough

presentation of evidence at the state habeas proceeding can obviate the need

for such a hearing”); Morrow v. Dretke, 367 F.3d 309, 315 (5th Cir. 2004) (citing

Valdez v. Cockrell, 274 F.3d 941, 950–51 (5th Cir. 2001)); Armstead v. Scott, 37

F.3d 202, 208 (5th Cir. 1994) (finding that a hearing by affidavit was adequate

to allow presumption of correctness to attach to the state court’s factual

findings); see also Strong v. Johnson, 495 F.3d 134, 139 (4th Cir. 2007)

(“[C]redibility determinations may sometimes be made on a written record

without live testimony. Specifically, there is no prohibition against a court

making credibility determinations based on competing affidavits in certain

circumstances.”); Tanberg v. Sholtis, 401 F.3d 1151, 1161 (10th Cir. 2005) (a

trial court’s “determination of credibility of affidavits [will not be disturbed on

appeal] unless that determination is without support in the record, deviated

from the appropriate legal standard, or followed a plainly erroneous reading of

the record.”).

In the same vein, Buntion appears to argue that any issue must be

designated for resolution simply by virtue of the applicant disagreeing with or

Atkins v. Virginia, 536 U.S. 304 (2002).

“controverting” the State. But Texas Code of Criminal Procedure Article

11.071, § 8 plainly gives the trial court the authority to determine whether

issues are “controverted,” “previously unresolved,” and “material.” The trial

court is the arbiter of the designation, not Buntion. Indeed, requiring an issue

to be designated for resolution simply because an applicant stated his

disagreement with the State would be unworkable, as an applicant could

simply controvert all issues—even if such issues are refuted by all other

evidence in the case—in order to delay the expedient resolution of the case.

Rhines v. Weber, 544 U.S. 269, 277–78 (2005) (“capital petitioners might

deliberately engage in dilatory tactics to prolong their incarceration and avoid

execution of the sentence of death”).

Lastly, Buntion complains that the trial court adopted the State’s

findings and conclusions verbatim. Pet. at 34-35. Yet, the record shows that

Buntion had his own opportunity to submit proposed findings and

conclusions—the trial court simply rejected them in favor of the State’s. This

Court has previously accepted the verbatim adoption of the findings submitted

by a prevailing party, although it has been critical of the process. Anderson v.

City of Bessemer City, N.C., 470 U.S. 564, 572 (1985) (“even when the trial

judge adopts proposed findings verbatim, the findings are those of the court

and may be reversed only if clearly erroneous”); see also Hudson v.

Quarterman, 273 F. App’x 331, 335 (5th Cir. 2008) (rejecting assertion that

deference was not required because state court adopted respondent’s proposed

findings and conclusions) (citing Trevino v. Johnson, 168 F.3d 173, 180 (5th

Cir. 1999)); see also Trevino, 168 F.3d at 180 (rejecting due process challenge

to state habeas court’s verbatim adoption of district attorney’s proposed

findings of fact and conclusions of law). Moreover, in disposing of the case, the

CCA issued its own thorough opinion, in which it reviewed the facts of the case,

set forth Buntion’s claims, and addressed the trial court’s findings and

conclusions, making additional findings and conclusions and rejecting others.

See, e.g., App. A.

Thus, the record shows that Buntion’s proceedings comported with the

requirements of Article 11.071. And even if the state habeas proceedings did

deviate from Article 11.071 in some minor way, the fact-finding process

remained reliable, and any error was harmless. Certiorari should therefore be

denied on this claim.

CONCLUSION

Buntion challenges the procedure by which his claims were denied and

asks for a second bite at the apple by invoking the Due Process Clause and

fundamental fairness. He bemoans an alleged lack of notice and opportunity to

be heard, but as discussed above, the record establishes Buntion had more than

sufficient notice and opportunity. Buntion’s claims did not fail because of a lack

of notice or opportunity to present evidence—they failed because they were

refuted by the facts and evidence.

Based on the facts and evidence adduced at trial and during Buntion’s

habeas proceeding, the CCA correctly denied Buntion’s state habeas

application. For the reasons set forth above, this petition for a writ of certiorari

should be denied.

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

JEFFREY C. MATEER

First Assistant Attorney General

ADRIENNE MCFARLAND

Deputy Attorney General

for Criminal Justice

EDWARD L. MARSHALL

Chief, Criminal Appeals Division

/s/ Tina J. Miranda

TINA J. MIRANDA

Assistant Attorney General

Criminal Appeals Division

Counsel of Record

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 936-1600

Tina.Miranda@oag.texas.gov

Attorneys for Respondent

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.