Petition for Writ of Certiorari — Carl Wayne Buntion, Petitioner v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division

Supreme Court briefMay 12, 2021

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No. ________________

IN THE

SUPREME COURT OF THE UNITED STATES

____________________________

CARL WAYNE BUNTION,

Petitioner,

BOBBY LUMPKIN,

Respondent.

____________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

____________________________

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

____________________________

THIS IS A CAPITAL CASE

David R. Dow*

Texas Bar No. 06064900

Jeffrey R. Newberry

Texas Bar No. 24060966

University of Houston Law Center

4604 Calhoun Rd.

Houston, Texas 77204-6060

Tel. (713) 743-2171

Fax 713-743-2131

Counsel for Carl Wayne Buntion

*Member of the Supreme Court Bar

Appendix A

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United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

FILED

No. 20-70004

December 14, 2020

Lyle W. Cayce

Clerk

Carl Wayne Buntion,

Petitioner—Appellant,

versus

Bobby Lumpkin, Director, Texas Department of Criminal Justice,

Correctional Institutions Division,

Respondent—Appellee.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:17-CV-2683

Before Costa, Duncan, and Oldham, Circuit Judges.

Per Curiam:*

Carl Buntion shot a police officer in the forehead and killed him. The

State of Texas prosecuted Buntion for capital murder. A jury convicted him.

He was sentenced to death. After a state habeas court vacated Buntion’s

sentence and remanded for a new punishment hearing, Buntion was

Judge Costa concurs in the denial of a COA. Because a COA should not issue due

to the state procedural bars and failure to exhaust discussed in the opinion, he would not

address the merits of the claims.

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sentenced to death a second time. He unsuccessfully applied for

postconviction relief in state and federal court. The federal district court

denied him a certificate of appealability (“COA”). We likewise deny a COA.

Houston Police Officer James Irby made his final traffic stop on June

27, 1990. Buntion v. Quarterman, 524 F.3d 664, 666–67 (5th Cir. 2008).

Buntion, the lone passenger, exited the vehicle while Officer Irby spoke to

the driver. Id. at 667. Officer Irby motioned for Buntion to return to the car,

but he refused. Id. Buntion continued toward Officer Irby until he was within

five feet of him. Id. Then, without provocation, Buntion raised a long-barrel

revolver with both hands and shot Officer Irby in the forehead. Id. Officer

Irby fell to the pavement, and Buntion shot him in the back twice more.

Buntion v. State, 482 S.W.3d 58, 66 (Tex. Crim. App. 2016). Officer Irby died

almost instantly. Buntion, 524 F.3d at 667.

Buntion then fled on foot. Buntion, 482 S.W.3d at 66. He attempted

to steal a car by shooting at the driver through the windshield. Id. When that

effort failed, he walked into a nearby warehouse and pointed his gun at an

employee. Id. Then he trained his gun on the employee’s supervisor and

directed him to raise his hands, surrender his wallet, and get on the ground.

Id. Then he tried to steal the supervisor’s vehicle. Id. Finally, a responding

officer arrested him. Id. at 67.

Buntion was indicted for capital murder of a peace officer the next day.

Buntion, 524 F.3d at 667. The jury convicted him and recommended a death

sentence. Id. at 668. The trial court imposed it. Id.

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After failing to obtain relief on direct appeal and in state and federal

habeas proceedings, Buntion filed another state habeas application in 2009.

This time, the Texas Court of Criminal Appeals (“CCA”) granted the

application. Ex parte Buntion, No. AP-76236, 2009 WL 3154909 (Tex. Crim.

App. Sept. 30, 2009) (per curiam). The CCA found that, under Penry v.

Johnson, 532 U.S. 782 (2001), the jury instructions at Buntion’s trial

provided an unconstitutionally ineffective vehicle for the jury to consider his

mitigation evidence during the sentencing phase. Id. at *2. So the CCA

remanded the case for the trial court to conduct a new punishment hearing.

Id.

The trial court did so in February 2012. Consistent with Texas law,

one of the special issues submitted to the jury was “whether there is a

probability that the defendant would commit criminal acts of violence that

would constitute a continuing threat to society.” Tex. Code Crim.

Proc. art. 37.0711, § 3(b)(2). The State urged the jury to answer that

question affirmatively and recommend a death sentence. It pointed to

Buntion’s thirteen prior felony convictions, his comments one week before

the shooting that he “would rather kill than go back to prison,” the fact that

he killed Officer Irby one month into his parole for sexual assault of a child,

and a letter to his brother explaining he was glad he would never be released

from prison because he would “hate to think about what [he would] do to

certain people that have screwed [him] around.” Buntion, 482 S.W.3d at 67.

Buntion countered with testimony from his brother about his abusive

upbringing, evidence of his good behavior and religiosity while in prison, and

expert testimony challenging his propensity for violence. The jury sided with

the State and recommended a death sentence for the second time. The trial

court reimposed it.

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The CCA affirmed Buntion’s conviction and sentence on direct

appeal. While his appeal was pending, Buntion filed a state habeas application

raising twelve claims. The state habeas court denied all of them—some on

the merits and some for Buntion’s failure to raise them on direct appeal. Ex

parte Buntion, No. WR-22548-04, 2017 WL 2464716 (Tex. Crim. App. June

7, 2017) (per curiam). Buntion then filed a federal habeas petition raising

seven claims. The district court denied those too. The district court further

denied a COA.

Buntion timely applied for a COA from this court.

II.

A state prisoner seeking appellate review of a habeas petition “denied

by a federal district court” must “first obtain a COA from a circuit justice or

judge.” Buck v. Davis, 137 S. Ct. 759, 773 (2017); see 28 U.S.C.

§ 2253(c)(1)(A). Because a “COA is jurisdictional[,] ‘a Court of Appeals

may not rule on the merits of the prisoner’s case’ until a COA has issued.”

United States v. Davis, 971 F.3d 524, 529 (5th Cir. 2020) (quoting Buck, 137

S. Ct. at 773) (alterations omitted). And a COA may only issue if the prisoner

“has made a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2).

To make that showing, a COA applicant must demonstrate that

“jurists of reason could disagree with the district court’s resolution of his

constitutional claims or that jurists could conclude the issues presented are

adequate to deserve encouragement to proceed further.” Buck, 137 S. Ct. at

773 (quotation omitted). When a district court denies a COA because of

procedural default in state court, the COA applicant must further

demonstrate that reasonable jurists could disagree with the procedural ruling.

See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Our review is “not a full

consideration of the factual or legal bases adduced in support of the

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[applicant’s] claims” but rather an examination of whether “the District

Court’s decision was debatable.” Davis, 971 F.3d at 530 (quotations

omitted).

Buntion raises three claims that he says demonstrate “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). We

review and reject each claim in turn. See Davis, 971 F.3d at 530.

First, Buntion claims his sentence violates the Eighth and Fourteenth

Amendments because it was based on the jury’s unreliable and inaccurate

predictions about his future dangerousness. Buntion objects to the portion of

Texas’s death penalty statute that requires jurors to consider the

“probability” that a capital defendant “would constitute a continuing threat

to society.” Tex. Code Crim. Proc. art. 37.0711, § 3(b)(2). He

contends the provision is unconstitutional because several studies indicate

that juries’ dangerousness predictions usually prove untrue. And he cites his

post-conviction behavior as evidence that the jury got it wrong in his case too.

Without passing on the accuracy of Buntion’s statistical claims, we reject his

argument as both procedurally defaulted and substantively meritless.

Start with procedural default. “[A] federal court may not review

federal claims that were procedurally defaulted in state court—that is, claims

that the state court denied based on an adequate and independent state

procedural rule.” Davila v. Davis, 137 S. Ct. 2058, 2064 (2017). A state rule

is adequate if it “ha[s] been firmly established and regularly followed” by the

time of the relevant state court decision. Roberts v. Thaler, 681 F.3d 597, 604–

05 (5th Cir. 2012) (quotation omitted). A state rule is independent if the state

court decision “clearly and expressly” relies on it to deny relief or if the

decision “does not fairly appear to rest primarily on . . . or to be interwoven

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with [federal] law.” Coleman v. Thompson, 501 U.S. 722, 736, 740 (1991)

(quotation omitted). State prisoners who fail to comply with an adequate and

independent state procedural rule cannot obtain federal habeas relief “absent

a showing of cause and prejudice.” Id. at 747.

Here, the CCA held that Buntion defaulted his future dangerousness

claim by inadequately briefing it on direct appeal. See Buntion, 482 S.W.3d at

106; Tex. R. App. P. 38.1(i). It is uncontested that Texas’s briefing rules

are “adequate.” See Roberts, 681 F.3d at 607 (holding that Rule 38.1(i)

“constitutes a valid procedural bar to federal habeas relief,” even “in the

capital context”). Buntion argues only that the CCA’s procedural ruling was

not “independent” because it was only “one of two reasons” why the CCA

rejected his claim, the second of which involved the merits.

That argument fails. “By its very definition, the adequate and

independent state ground doctrine requires the federal court to honor a state

holding that is a sufficient basis for the state court’s judgment, even when the

state court also relies on federal law.” Harris v. Reed, 489 U.S. 255, 264 n.10

(1989). So “a state court need not fear reaching the merits of a federal claim

in an alternative holding.” Id. (emphasis omitted). There can be no doubt

that the CCA relied on Texas’s briefing rule to reach an “independent,”

“sufficient,” and “alternative” holding. As it explained:

Appellant has not provided a citation to the record showing

where he presented his [future dangerousness] claim to the

trial court. Therefore his claim is inadequately briefed. See

Tex. R. App. P. 38.1(i). Further, this Court has rejected

similar claims. See Fuller, 253 S.W.3d at 233; Martinez, 327

S.W.3d at 740. Point of error twenty-six is overruled.

Buntion, 482 S.W.3d at 106 (footnote omitted). That the CCA signaled its

transition from a procedural holding to a merits holding with “further”

instead of “in the alternative” is of no moment. See Coleman, 501 U.S. at 739–

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40 (“[W]e will not impose on state courts the responsibility for using

particular language . . . . where the relevant state court decision does not fairly

appear to rest primarily on federal law or to be interwoven with such

law . . . .”); Michigan v. Long, 463 U.S. 1032, 1038 n.4 (1983) (explaining that

a state ground is “interwoven” with a federal ground only where state and

federal law are so intertwined that the state ground is “not . . . an independent

matter, or is not of sufficient breadth to sustain the judgment” (quotation

omitted)).

Because Buntion failed to brief his future dangerousness claim in

compliance with an adequate and independent state procedural rule, that

claim is defaulted.

But even if it weren’t, Buntion’s claim fails on the merits. As he must,

Buntion concedes that the Supreme Court has twice upheld the exact same

provision of the death penalty statute he now challenges. See Barefoot v.

Estelle, 463 U.S. 880, 883–84, 899, 905–06 (1983); Jurek v. Texas, 428 U.S.

262, 269, 274–76 (1976). And the Supreme Court has repeatedly rejected

Buntion’s

theory

that

future

dangerousness

predictions

are

unconstitutionally unreliable. See, e.g., Simmons v. South Carolina, 512 U.S.

154, 162 (1994) (“This Court has approved the jury’s consideration of future

dangerousness during the penalty phase of a capital trial . . . .”); Barefoot, 463

U.S. at 899 (“We are not persuaded that [future dangerousness] testimony

is almost entirely unreliable and that the factfinder and the adversary system

will not be competent to uncover, recognize, and take due account of its

shortcomings.”); Jurek, 428 U.S. at 274–76 (rejecting petitioner’s argument

that “it is impossible to predict future behavior and that the question is so

vague as to be meaningless”). No reasonable jurist could conclude that

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Buntion has been denied a constitutional right when the Supreme Court has

expressly and repeatedly said that right does not exist.

Buntion disagrees. He says that Barefoot and Jurek were based on

“first generation” evidence that has since been proven false. And because he

thinks the new evidence “entirely undermine[s] the factual predicate”

underlying those cases, he invites us to ignore them. We cannot. “[I]t is th[e]

[Supreme] Court’s prerogative alone to overrule one of its precedents.”

State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). That remains true even when

litigants—or courts, for that matter—identify “infirmities” so severe as to

leave a Supreme Court case standing on “wobbly, moth-eaten foundations.”

Id. (quotation omitted). We doubt that Buntion’s statistical evidence leaves

Barefoot and Jurek in such a state. After all, the Court based its holdings on

more than just statistics. See Barefoot, 463 U.S. at 896–901 (upholding death

sentence where the jury could weigh future dangerousness testimony with

“the benefit of cross examination and contrary evidence,” and noting the

central role of behavioral predictions in the criminal justice system); Jurek,

428 U.S. at 275–76 (same). But even if a statistical debate is to be had, our

court is not the place to have it.

Buntion also claims that Barefoot and Jurek do not foreclose relief

because his behavior in prison disproves the jury’s dangerousness prediction

as a matter of fact. That matters, he says, because Johnson v. Mississippi, 486

U.S. 578 (1988), stands for the proposition that any sentence based on a

factual inaccuracy must be vacated. There are at least two problems with

Buntion’s argument.

First, that is not what Johnson says. In fact, “[t]he Supreme Court has

never intimated that the factual correctness of the jury’s prediction on the

issue of future dangerousness . . . bears upon the constitutionality” of a death

sentence. Lincecum v. Collins, 958 F.2d 1271, 1281 (5th Cir. 1992) (emphasis

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added); accord Bible v. Stephens, 640 F. App’x 350, 355 (5th Cir. 2016) (per

curiam). The Court contemplated in cases like Barefoot that dangerousness

evidence might be wrong “most of the time.” 463 U.S. at 901. Yet it still did

not create a remedy for defendants whose death sentences turned on that

evidence.

Second, Buntion’s sentence does not rest on a factual inaccuracy. As

the Government correctly observes, Buntion’s contention to the contrary

“misunderstands the question posed to the jury.” The jury was not asked to

find that Buntion would in fact engage in future violence. Rather, the jury was

asked to “find from the evidence . . . [that] there is a probability that . . .

Buntion . . . would commit criminal acts of violence.” Tex. Code Crim.

Proc. art. 37.0711, § 3(b)(2) (emphasis added). Buntion does not challenge

the sufficiency of the evidence supporting the jury’s probabilistic assessment.

Cf. Johnson, 486 U.S. at 585 n.6 (“[I]t is clear on the record before us that

petitioner’s death sentence is now predicated . . . on a . . . judgment that is

not valid now, and was not valid when it was entered . . . .”). And the fact

that Buntion has behaved peacefully while in prison does not disprove the

jury’s probability calculation.

Next, Buntion argues his sentence violates the Due Process Clause

because the delay between his initial, unconstitutional sentencing hearing

and his resentencing hearing interfered with his ability to present mitigating

evidence. As with his future dangerousness claim, we reject this claim as

procedurally defaulted and substantively meritless.

Texas courts have long held that “the writ of habeas corpus should

not be used to litigate matters which should have been raised on direct

appeal.” Ex parte Nelson, 137 S.W.3d 666, 667 (Tex. Crim. App. 2004) (en

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banc) (quotation omitted). So when Buntion failed to raise his due process

claim on direct review, the state habeas court refused to consider it later. See

Ex parte Buntion, 2017 WL 2464716, at *1. Supreme Court and Fifth Circuit

cases squarely hold that the state habeas court’s procedural ruling satisfies

the requirements for procedural default. See Sanchez-Llamas v. Oregon, 548

U.S. 331, 350–51 (2006) (“The general rule . . . that a defendant who fails to

raise a claim on direct appeal is barred from raising the claim on collateral

review . . . . constitute[s] an adequate and independent state-law ground

preventing us from reviewing the federal claim.”); Dorsey v. Quarterman, 494

F.3d 527, 532 (5th Cir. 2007) (holding Texas’s direct appeal requirement

“sets forth an adequate state ground capable of barring federal habeas

review”).

Buntion does not dispute the adequacy or independence of Texas’s

rule. Instead, he argues the state court misapplied the rule by invoking it to

bar a claim based on extra-record evidence. See Dorsey, 494 F.3d at 532

(indicating Texas’s direct appeal bar applies to “record[-]based claims”).

But “a basic tenet of federal habeas review is that a federal court does not

have license to question a state court’s finding of procedural default [that is]

based upon an adequate and independent state ground.” Smith v. Johnson,

216 F.3d 521, 523 (5th Cir. 2000) (per curiam) (quotation omitted); see also

Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the province of a

federal habeas court to reexamine state-court determinations on state-law

questions.”). That is why we upheld the state court’s procedural default

ruling in Smith without resolving Smith’s contention that the ruling rested

on a mischaracterization of his habeas application under state law. See 216

F.3d at 523. And it is why we uphold the state court’s procedural

determination in this case too.

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Buntion’s due process claim also fails on the merits. With a citation to

nothing but the Due Process Clause itself, he asserts that states cannot

impose a death sentence where a “constitutional error at a defendant’s

original trial” combines with the “significant passage of time” to limit the

availability of mitigating evidence at a subsequent sentencing hearing. Like

Buntion, we cannot identify a single case that interprets the Due Process

Clause that way. The Supreme Court certainly hasn’t done so. See Reed v.

Quarterman, 504 F.3d 465, 485 (5th Cir. 2007) (denying COA application

predicated on the applicant’s “lost . . . opportunity to investigate aspects of

the case while memories were fresh” because “there is no Supreme Court

decision holding that excessive [appellate] delay . . . is a violation of the Due

Process Clause” (quotation omitted)); State ex rel. Watkins v. Creuzot, 352

S.W.3d 493, 500 (Tex. Crim. App. 2011) (“[T]he United States Supreme

Court has not recognized a due-process claim that would preclude a retrial

(or preclude the availability of a particular punishment) after a lengthy delay

on appeal.”). And while several circuits have held that “excessive appellate

delay may violate the Due Process Clause,” Reed, 504 F.3d at 486, that is not

Buntion’s theory. Rather, he points to the ten-year gap between his initial

sentence and the Supreme Court’s Penry decision, followed by an eight-year

gap between Penry and the state habeas application that led to Buntion’s

resentencing.

The absence of a due process violation seems particularly clear where,

as here, the passage of time actually helps a defendant. Buntion provides no

specifics about the “significant areas of mitigation . . . evidence” he claims

disappeared between his first and second sentencing proceedings. But there

are plenty of details about the mitigation evidence he invoked in round two

that did not exist in round one. Indeed, testimony from seven defense

witnesses comprising nearly 300 pages of the record focused on evidence that

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postdated Buntion’s 1991 conviction. Therefore, Buntion’s factual claims

about “significant[] interfere[nce] with his ability to obtain and present

mitigating evidence” fall flat. So do his legal claims about due process.

Taking the facts and the law as they actually are, reasonable jurists could not

debate the district court’s ruling. †

Finally, Buntion claims the Eighth Amendment prohibits his

execution because of how much time he has spent on death row. But Buntion

did not raise that argument in state court, so the claim is unexhausted and

unreviewable in federal habeas. See 28 U.S.C. § 2254(b); Cullen v. Pinholster,

563 U.S. 170, 182 (2011). And in any event, the claim is undebatably

meritless. We, like Justice Thomas, are “unaware of any support in the

American constitutional tradition or in th[e] [Supreme] Court’s precedent

for the proposition that a defendant can avail himself of the panoply of

appellate and collateral procedures and then complain when his execution is

delayed.” Knight v. Florida, 120 S. Ct. 459, 459 (1999) (mem.) (Thomas, J.,

concurring in the denial of certiorari). Buntion’s observation that

“[r]easonable jurists[] such as Justices Breyer and Ginsburg” have signaled

a willingness to entertain similar claims does not change that.

Buntion’s application for a COA is DENIED.

†

Buntion faults the district court for declining to grant him an evidentiary hearing

on his due process claim, and he seeks a separate COA on that issue. But “we have no

power to issue such COAs.” Davis, 971 F.3d at 534. Instead, “a request for an evidentiary

hearing stands or falls with the applicant’s COA showing” on the constitutional merits. Id.;

see 28 U.S.C. § 2253(c)(2) (“A certificate of appealability may issue . . . only if the applicant

has made a substantial showing of the denial of a constitutional right.” (emphasis added)).

Because Buntion’s due process theory lacks merit, his request for an evidentiary hearing

fails too.

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United States Court of Appeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

LYLE W. CAYCE

CLERK

TEL. 504-310-7700

600 S. MAESTRI PLACE,

Suite 115

NEW ORLEANS, LA 70130

December 14, 2020

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:

No. 20-70004

Carl Buntion v. Bobby Lumpkin, Director

USDC No. 4:17-CV-2683

Enclosed is the opinion entered in the case captioned above.

Sincerely,

LYLE W. CAYCE, Clerk

By: _________________________

Monica R. Washington, Deputy Clerk

504-310-7705

Mr. David R. Dow

Ms. Jennifer Wren Morris

Mr. Jeffrey R. Newberry

Ms. Gwendolyn Suzanne Vindell

Appendix B

Case 4:17-cv-02683 Document 26 Filed on 03/05/20 in TXSD Page 1 of 40

United States District Court

Southern District of Texas

ENTERED

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CARL WAYNE BUNTION,

Petitioner,

VS.

LORIE DAVIS,

Respondent.

March 05, 2020

David J. Bradley, Clerk

CIVIL ACTION NO. 4:17-CV-2683

MEMORANDUM AND ORDER

Carl Wayne Buntion was convicted and sentenced to death in 1991 for the capital murder

of Houston Police Officer James Irby in Harris County, Texas. After the Texas Court of

Criminal Appeals ordered a retrial of his punishment, a second sentencing hearing in 2012

resulted in a second death sentence.

Buntion unsuccessfully challenged his second death

sentence on state appellate and habeas review.

In 2018, Buntion filed a federal petition for a writ of habeas corpus. Respondent Lorie

Davis has moved for summary judgment. Having reviewed the record, the pleadings, and the

law, the Court grants summary judgment and denies Buntion’s federal habeas petition. The

Court will not certify any issue for appellate consideration.

BACKGROUND

In June 1990, Buntion killed Houston Police Officer James Irby during a traffic stop.

The Texas Court of Criminal Appeals has summarized the facts surrounding the murder as

follows:

[Buntion’s] victim, James Irby, was a motorcycle police officer who made a

traffic stop of a vehicle in which [Buntion] was a passenger. While Irby and the

vehicle’s driver were standing and talking next to the vehicle, [Buntion] exited the

vehicle carrying a loaded gun. [Buntion] shot Irby once in the head, causing him

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Case 4:17-cv-02683 Document 26 Filed on 03/05/20 in TXSD Page 2 of 40

to fall to the pavement. While Irby was lying on the ground, [Buntion] shot him

twice in the back.

[Buntion] fled the scene on foot and committed several violent offenses during his

efforts to evade capture. [Buntion] attempted to steal a car that was waiting at a

stop sign by standing in front of the vehicle and pointing a gun at the driver. As

the driver began to back the car away, [Buntion] fired a shot into the windshield.

The bullet shattered the windshield, sending broken glass into the driver’s eyes,

and struck the passenger in the arm. When a peace officer who had come upon

the scene commanded [Buntion] to halt, [Buntion] shot at the officer and ran

down the street. [Buntion] then walked into a nearby warehouse, where he

pointed his gun at an employee, who ran outside. [Buntion] chased a second

employee into the parking area. A supervisor who was pulling into the driveway

saw [Buntion] and confronted him. [Buntion] pointed his gun at the supervisor’s

face and directed him to put his hands up, give [Buntion] his wallet, and get on

the ground. [Buntion] then attempted to steal the supervisor’s vehicle. However,

when [Buntion] could not operate the standard transmission, he abandoned the

vehicle and ran inside a building, where a responding police officer arrested him.

Buntion v. State, 482 S.W.3d 58, 66-67 (Tex. Crim. App. 2016).

A Texas jury convicted Buntion of capital murder and sentenced him to death in January

1991. The state courts denied Buntion’s initial appeal and state habeas application. In 2006, this

Court conditionally granted federal habeas corpus relief on Buntion’s claims of judicial bias.

Buntion v. Dretke, 2006 WL 8453025, at *1 (S.D. Tex. 2006). The Fifth Circuit reversed.

Buntion v. Quarterman, 524 F.3d 664, 666 (5th Cir. 2008). The Supreme Court denied certiorari

review. Buntion v. Quarterman, 555 U.S. 1176 (2009).

The decades that had passed since Buntion’s conviction had brought changes to the law

governing a jury’s ability to consider mitigating factors in a capital inmate’s life. In 2009, the

Texas Court of Criminal Appeals found that, pursuant to Penry v. Johnson, 532 U.S. 782 (2001),

the jury instructions in Buntion’s trial did not provide a sufficient vehicle for jurors to consider

mitigating evidence. Ex parte Buntion, 2009 WL 3154909, at *2 (Tex. Crim. App. 2009).

The trial court held a new punishment hearing in February 2012. Consistent with Texas

law, the jury decided Buntion’s fate by answering four special issue questions: (1) did Buntion

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commit the murder; (2) was there a probability that Buntion would commit future acts of

violence; (3) was Buntion’s conduct unreasonable in response to any provocation; and (4) were

there mitigating circumstances that warranted a life sentence.

The Court of Criminal Appeals described the State’s evidence supporting a death

sentence:

Here, [Buntion’s] conduct immediately after his arrest indicated that he lacked

remorse for the offense. He refused to give the arresting officer his name or any

other information and claimed that he was diabetic and paralyzed. While in the

police station following his arrest, [Buntion] was uncooperative and appeared to

be “mad at everybody.” The jury also heard evidence confirming [Buntion’s]

continued lack of remorse. During a 2009 recorded interview with a television

reporter following the reversal of his initial sentence, [Buntion] stated that his

conduct in committing the offense was justified because he had no doubt that the

victim was going to shoot him. [Buntion] also stated that if he were faced with

the same situation today, he would do it again.

[Buntion’s] prior criminal record also supported the finding that [Buntion] posed

a continuing threat to society. See Solomon v. State, 49 S.W.3d 356, 363 (Tex.

Crim. App. 2001) (noting that the existence of a prior criminal record and the

severity of the prior crimes is a factor to consider in determining whether a

defendant constitutes a continuing threat to society). [Buntion] had thirteen prior

felony convictions, many of which involved assaulting other people. Most

notably, [Buntion] was convicted in 1965 of “assault to murder” an Alabama

peace officer. Further, [Buntion] committed the instant offense a little over a

month after he was released to parole while serving a sentence for the offense of

sexual assault of a child. See id. at 363-64 (stating that committing an offense

while on parole has some tendency to show future dangerousness).

In addition, [Buntion] committed numerous unadjudicated extraneous offenses

and bad acts, both in and out of prison. During a previous term of imprisonment,

[Buntion] was found to be in possession of a shank. While on a prison furlough,

[Buntion] used his brother’s birth certificate to obtain a visit with his ex-wife,

who was in jail. When a jail official discovered [Buntion’s] true identity and the

fact that he was on a prison furlough, the official arrested [Buntion] and returned

him to prison. Approximately a week before the instant offense, [Buntion]

showed an acquaintance a gun. He told her that he always carried it because he

would rather kill than go back to prison. While in jail for the instant offense,

[Buntion] threatened other detainees who asked him why he was there. [Buntion]

said that he would kill them “like [he] killed the cop” if they did not leave him

alone.

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Additional evidence indicated that [Buntion’s] character for violence had not

changed during his time in prison. See, e.g., Coble v. State, 330 S.W.3d 253, 269

(Tex. Crim. App. 2010). While in jail awaiting the punishment retrial, [Buntion]

wrote letters to his brother, Bobby. The letters contained language from which a

jury could reasonably infer that [Buntion] remained a continuing threat to society.

For example, in a July 2011 letter, [Buntion] stated that he was glad that he would

never be released from prison because he would “hate to think about what [he

would] do to certain people that have screwed [him] around.” In an August 2011

letter, [Buntion] advised Bobby that if the district attorney questioned Bobby

about Bobby’s previous criminal record, Bobby should just say that the district

attorney “made [Bobby] what [he was]” by sending Bobby to prison on his first

offense instead of giving him probation. “If they create a ‘monster,’ they should

not complain when it feeds (on society,) right? [sic] Right.”

Dr. Mark Vigen, [Buntion’s] mental health expert, acknowledged that [Buntion]

had served “a lifetime of prior prison sentences” before he committed the instant

offense. Vigen acknowledged that [Buntion’s] criminal history and history of

imprisonment could increase the risk for prison violence. Further, the jury had

heard evidence that [Buntion] was a member of the Aryan Brotherhood of Texas

prison gang. Vigen testified that membership in a prison gang is associated with

an increased probability of prison violence. Vigen was also aware that [Buntion]

was in his mid-forties at the time he committed the instant offense. He

acknowledged that it was anomalous for a person of that age to commit such a

violent offense.

Buntion, 482 S.W.3d at 67-68.

The defense presented a robust case to secure favorable answers to the special issues.

The defense began its case with testimony from Bobby Buntion, Buntion’s younger brother,

providing context to Buntion’s upbringing. Buntion had grown up in a poor and dysfunctional

home where his alcoholic father physically beat them several times a week. Buntion ran away

from home in his early teens, but his crimes kept him in prison most of his life. Tr. Vol. 39 at 145.

Much of the defense’s case focused on arguing that Buntion’s behavior while in prison

proved that he would not be a future danger. The defense called four Texas Department of

Criminal Justice guards to discuss Buntion’s rule-abiding and non-violent conduct while

incarcerated.

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Buntion on a prison work program. Two prison ministers also testified about Buntion’s time

while incarcerated and described him as a spiritual man with positive attributes. Tr. Vol. 39 at

303; Tr. Vol. 40 at 141. The defense then read into the record testimony from two teachers who

had testified at Buntion’s 1991 trial. The teachers described Buntion as a good, nonviolent

student who participated in and completed college courses during a prior incarceration. Tr. Vol.

40 at 166, 171.

The defense bolstered its argument that Buntion would not constitute a continuing risk of

future violence through the testimony of two expert witnesses. A former head of the TDCJ

classification system testified regarding the classification Buntion would receive if he were given

a life sentence. Tr. Vol. 39 at 180-85. Because Buntion had been previously identified as a

member of the Aryan Brotherhood prison gang, Woods believed that Buntion spend a life

sentence in administrative segregation with significant restrictions. Dr. Mark Vigen, a forensic

psychologist, testified about his research into violence among death row inmates. Tr. Vol. 40 at

24. As a general rule, Dr. Vigen had found that death row offenders committed fewer violent

acts than other inmates in general population.

Tr. Vol. 40 at 48-52.

Dr. Vigen also

individualized that evidence by identifying various factors in Buntion’s own background that

made him less likely to be violent, such as his twenty years without serious incidents on death

row, his elderly age, and his intelligence. Tr. Vol. 40 at 37-48.

The jury answered Texas’ special issues in a manner resulting in the imposition of a

death sentence.

The Court of Criminal Appeals affirmed Buntion’s conviction and sentence in a second

appellate action. Buntion v. State, 482 S.W.3d 58, 65 (Tex. Crim. App. 2016). The Supreme

Court denied certiorari review. Buntion v. Texas, 136 S. Ct. 2521 (2016).

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Under Texas law, an inmate’s state habeas action proceeds concurrent to his direct

appeal. Buntion filed a state habeas application raising twelve claims for relief. The trial court

entered findings of fact and conclusions of law recommending the denial of relief. State Habeas

Record at 535–73. Based on the lower court findings and conclusions, as well as its own review,

the Court of Criminal Appeals denied relief. Ex parte Buntion, 2017 WL 2464716, at *1 (Tex.

Crim. App. 2017).

In 2018, Buntion filed a federal habeas petition raising the following claims:

The trial judge who presided over Buntion’s 1991 trial was biased.

Extensive pretrial publicity rendered it impossible for an impartial jury to

be seated in Harris County.

Trial counsel’s representation violated the Sixth Amendment.

Texas’ special issue questions unconstitutionally require the jury to

speculate about an inmate’s future behavior.

The passage of time since Buntion’s initial trial impeded his ability to

investigate and present mitigating evidence.

The Eighth Amendment precludes the execution of an inmate who cannot

remember committing the offense.

The Eighth Amendment disallows the execution of an inmate who has

spent significant time on death row.

Respondent has moved for summary judgment. (Docket Entry No. 17). Buntion has filed a

reply. (Docket Entry No. 25). This matter is ripe for adjudication.

LEGAL STANDARDS

The writ of habeas corpus provides an important, but narrow, examination of an inmate’s

conviction and sentence. See Harrington v. Richter, 562 U.S. 86, 103 (2011); Barefoot v.

Estelle, 463 U.S. 880, 887 (1983). How an inmate litigates his claims determines the course of

federal habeas adjudication. The exhaustion doctrine precludes federal consideration of any

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claim raised for the first time in federal court. See 28 U.S.C. § 2254(b)(1). As a corollary to

exhaustion, the procedural-bar doctrine requires inmates to litigate their claims in compliance

with state procedural law. See Dretke v. Haley, 541 U.S. 386, 392 (2004); Lambrix v. Singletary,

520 U.S. 518, 523 (1997); Coleman v. Thompson, 501 U.S. 722, 729 (1991). A federal court

may review an inmate’s unexhausted or procedurally barred claims only if he shows: (1) cause

and actual prejudice; or (2) that “a constitutional violation has ‘probably resulted’ in the

conviction of one who is ‘actually innocent[.]’” Haley, 541 U.S. at 393 (quoting Murray v.

Carrier, 477 U.S. 478, 496 (1986)).

If the inmate has presented his federal constitutional claims to the state courts in a

procedurally proper manner, and the state courts have adjudicated their merits, AEDPA provides

for a deferential federal review. Under AEDPA’s rigorous requirements, an inmate may only

secure relief after showing that the state court’s rejection of his claim was either “contrary to, or

involved an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,” or was “based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.”

28 U.S.C. §

2254(d)(1),(2).

Inmates arguing legal error in state court decisions must comply with § 2254(d)(1)’s

“contrary to” and “unreasonable application” clauses. See Bell v. Cone, 535 U.S. 685, 694

(2002). A petitioner does not merit relief by merely showing legal error in the state court’s

decision. See White v. Woodall, 572 U.S. 419-20 (2014) (stating being “merely wrong” or in

“clear error” will not suffice for federal relief under AEDPA). “[F]ocus[ing] on what a state

court knew and did,” Cullen v. Pinholster, 563 U.S. 170, 182 (2011), AEDPA requires inmates

to “‘show that the state court’s ruling on the claim being presented in federal court was so

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lacking in justification that there was an error well understood and comprehended in existing law

beyond any possibility for fairminded disagreement.’”

Woodall, 572 U.S. at 420 (quoting

Richter, 562 U.S. at 103); Berghuis v. Thompkins, 560 U.S. 370, 380 (2010); Williams v. Taylor,

529 U.S. 362, 413 (2000). “If this standard is difficult to meet, that is because it was meant to

be.” Richter, 562 U.S. at 102.

A petitioner challenging the factual basis for a state decision must show that it was an

“unreasonable determination of the facts in light of the evidence . . . .” 28 U.S.C. § 2254(d)(2);

see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (Miller-El I). “[A] state-court factual

determination is not unreasonable merely because the federal habeas court would have reached a

different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010).

An inmate’s compliance with 28 U.S.C. § 2254(d) does not guarantee habeas relief. See

Horn v. Banks, 536 U.S. 266, 272 (2002) (observing that no Supreme Court case “ha[s]

suggested that a writ of habeas corpus should automatically issue if a prisoner satisfies the

AEDPA standard[.]”); Robertson v. Cain, 324 F.3d 297, 306 (5th Cir. 2003) (finding that 28

U.S.C. § 2254(d) “does not require federal habeas courts to grant relief reflexively”). A habeas

petitioner must still comply with weighty jurisprudential tenets, as the non-retroactivity principle

of Teague v. Lane, 489 U.S. 288 (1989) that prevents habeas courts from creating new

constitutional law.

Respondent moves for summary judgment. Summary judgment is proper when the

record shows “that the moving party is entitled to judgment as a matter of law.” FED. R. CIV. P.

56(c). “As a general principle, Rule 56 of the Federal Rules of Civil Procedure, relating

to summary judgment, applies with equal force in the context of habeas corpus cases.” Clark v.

Johnson, 202 F.3d 760, 764 (5th Cir. 2000). AEDPA, however, modifies summary judgment

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principles in the habeas context. See Torres v. Thaler, 395 F. App’x 101, 106 n.17 (5th Cir.

2010) (“Summary judgement in federal habeas is different than in the average civil

case.”); Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002) (Rule 56 “applies only to the extent

that it does not conflict with the habeas rules”), overruled on other grounds by Tennard v.

Dretke, 542 U.S. 274 (2004). For example, § 2254(e)(1), mandating that a state court’s findings

are presumed to be correct, overrides the summary judgment rule that all disputed facts must be

construed in the light most favorable to the non-movant. Smith, 311 F.3d at 668. Unless a

petitioner can rebut the presumption of correctness of a state court’s factual findings by clear and

convincing evidence, a federal court must accept such findings as correct. See 28 U.S.C.

§ 2254(e)(1).

ANALYSIS

Biased Jurist

In his first claim, Buntion resurrects his argument that the judge who oversaw his 1991

trial was biased against him. In the federal habeas action challenging his conviction and first

death sentence, Buntion claimed that Harris County District Judge William Harmon overtly

displayed unconstitutional bias against him. This Court originally granted a conditional writ of

habeas corpus on that claim, but the Fifth Circuit reversed after a lengthy discussion of the facts

and relevant law.

Buntion now renews that same claim and predicates it on the same facts he presented in

the first habeas petition. Buntion provides extensive argument as to why he believes procedural

limitations should not preclude a second round of federal review on this issue. Buntion argues

that this Court should grant habeas corpus relief because the Fifth Circuit’s earlier reasoning was

clearly erroneous. Respondent seeks summary judgment and argues that (1) Buntion’s claim

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violates AEDPA’s jurisdictional limitation on adjudicating “[a] claim . . . .that was presented in a

prior application,” 28 U.S.C. § 2244(b)(1); (2) the Fifth Circuit’s review of this claim was

correct and thus prevents reconsideration by this Court; and (2) the-law-of-the-case doctrine

precludes renewed review.

Cutting through the dense procedural arguments made by both parties, Buntion asks this

Court to do something it cannot: reconsider and overrule a decision by the Fifth Circuit.

Whether viewing the issue in jurisdictional terms, under AEDPA’s successiveness limitations,

through the jurisprudential lens of the law-of-the-case doctrine, or by some other theory, the

ultimate result is dictated by common sense and basic principles of the law—this Court simply

lacks authority to reconsider a decision by the Fifth Circuit, much less declare its reasoning

clearly erroneous.

Buntion’s arguments to the contrary do not merit serious judicial

consideration.

The Court finds that substantive law and procedural requirements preclude Buntion from

relitigating the question of his trial judge’s bias.

This claim is not worthy of additional

discussion and is summarily denied.

II.

Pretrial Publicity

In his second ground for relief, Buntion claims that pre-trial publicity violated his rights

under the Sixth and Fourteenth Amendments.

Background

Shortly before trial was to commence, the Houston Chronicle printed a front-page

newspaper article titled “Death Row Cases Back for Retrial” which was also available on its

website. Clerk’s Record at 256. The February 8, 2011, article discussed several defendants who

faced new sentencing hearings because of Penry error, and extensively described Buntion’s

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imminent retrial. On direct appeal, the Court of Criminal Appeals summarized the article as

follows:

The print version of the February 8 story was titled, “Death Row Cases Back for

Retrial.” The online version was titled, “Death row inmates get chance at life in

retrials.” In both versions of the February 8 story, a sentence in bold-face type

underneath the main title referred to a “cop killer” whose sentence could be

changed to life. The text identified [Buntion] as a person who had been convicted

of “gunning down” a police officer during a traffic stop. It further described

[Buntion’s] case as “the highest profile case” among “as many as sixteen” capital

murder cases in which Lykos anticipated a punishment retrial following the

reversal of the death sentence due to flawed jury instructions. In the context of

arguing against “potentially crippling budget cuts” for the District Attorney’s

Office, Lykos stated that she intended to pursue the death penalty again in most of

those cases. Lykos explained that, if any of the offenders received a life sentence,

“it is possible that the ‘early release’ parole provisions of the 80s and 90s would

result in mandatory parole.” Both versions of the February 8 story included a

subheading in bold-face type titled, “Parole board has final say.” The text that

followed the subheading explained that the Texas Board of Pardons and Paroles,

and not a jury, would determine whether a life-sentenced offender would be

released to parole. The story also quoted a Houston criminal defense attorney,

who asserted that Lykos’ statement was inaccurate and that, as a practical matter,

no Board member would ever vote to release [Buntion] from prison because any

member who did so would not be able to keep his job.

The print version of the February 8 story appeared on the front page of the

newspaper. The most prominent story on the front page concerned a crisis in

health care funding and featured a large photograph of a doctor standing beside a

bedridden patient. In contrast, the story at issue occupied only a two-columnwide space on the front page, and it did not include any pictures. The report

continued on an inside page with the title, “Trial: Irby’s wife calls new trial a

‘nightmare.’” Below this title were small identification photographs (each a halfcolumn’s width) of Irby and [Buntion], and a larger photograph (column’s width)

of Officer Irby’s widow and her father embracing. The online version of the story

omitted the inside-page title referring to the quote from Officer Irby’s widow and

included only the photograph of Officer Irby’s widow and her father.

Buntion, 482 S.W.3d at 71-72.

Because of this article, Buntion’s attorneys filed a motion for a change of venue. Clerk’s

Record at 295. On direct appeal, the Court of Criminal Appeals described Buntion’s concerns

about the article:

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. . . District Attorney Patricia Lykos had made a statement to the Houston

Chronicle stating that [Buntion] would be released to “mandatory parole” if he

received a life sentence. [Buntion] claimed that Lykos’ statement, which was

published in the Houston Chronicle on February 8, 2011, made it impossible for

him to receive a fair trial in Harris County and violated his right to due process

and his Eighth Amendment right to accurate sentencing.

In support of his motion, [Buntion] noted that the Houston Chronicle was the

“largest circulating daily in the county” and that the story had received more than

eighty online comments. He averred that most of these comments were hostile to

[Buntion], and several of them stated that [Buntion] should receive the death

penalty so that he could never be released from prison.

Buntion, 482 S.W.3d at 70. In that article, the Harris County District Attorney stated that

“[s]hould any of them receive a life sentence, it is possible that the ‘early release’ parole

Provisions of the ‘80s and ‘90s would result in mandatory parole.” Id. at 72.

The newspaper published a story two days later titled “Killer’s Defense Wants Retrial

Moved.” Clerk’s Record at 262. The article reported that Buntion’s attorneys planned to seek a

change of venue based, in large part, on the district attorney’s comments about mandatory

parole. As summarized by the Court of Criminal Appeals:

The February 10 follow-up story was titled, “Killer’s Defense Wants Trial

Moved.” In that story, defense counsel said that they were seeking a change of

venue due to Lykos’ prior statement about early release. They asserted that

Lykos’ statement was inaccurate because there was no mandatory release for a

capital murderer. They also stated that the Board of Pardons and Paroles would

never release [Buntion] if he received a life sentence.

Id. The Court of Criminal Appeals observed:

[Buntion] acknowledged that in a follow-up news story published on February 10,

2011, defense counsel pointed out that Lykos’ parole statement was incorrect.

But [Buntion] alleged that defense counsel’s statements had not cured the harm.

[Buntion] noted that the readers' comments that followed this story continued to

express a preference for [Buntion] receiving the death penalty.

[Buntion] emphasized that Lykos had made this statement just weeks before the

start of jury selection, so it would be fresh in the minds of prospective jurors.

[Buntion] averred that he had not wanted to mention parole to the jury at all, but

based on Lykos’ inaccurate statement, he would be compelled to ask potential

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jurors whether they had seen the media coverage that referenced parole.

[Buntion] noted that this case was already well-known, as shown by the fact that

venue for his 1991 trial had been changed due to extensive pretrial publicity.

Id. at 70-71. The article quoted Buntion’s attorneys as accusing the district attorney of trying to

“pollute the jury panel just a couple weeks before trial[.]” Clerk’s Record at 262. The online

version of both articles generated comments which were largely negative toward Buntion.1

On March 2, 2011, the trial court held a hearing on the motion to change venue. 2 The

defense asked the trial court to “take judicial notice of the 1990 change-of-venue proceedings

that led to the initial trial being moved to Fredericksburg.”

Buntion, 482 S.W.3d at 72.

Additionally, trial counsel submitted into evidence:



a video interview which Buntion gave following the reversal of his first

death sentence which was readily available online;



“his own affidavit concerning his understanding of the applicable parole

law and his inability to receive a fair trial in Harris County”;



affidavits from two attorneys (one of whom serves as his current counsel

on federal habeas review) who both opined that the false statements about

mandatory parole prejudiced Buntion; and

The Court of Criminal Appeals summarized:

He also presented a print-out of approximately ninety online reader comments responding to that

story. Many of the comments expressed general hostility toward capital murderers and displeasure

with the fact that the death sentences had been reversed in so many cases. Several comments

expressed frustration that a life sentence did not actually mean life in prison because of the

availability of early release. However, the comments did not differentiate between the mere

possibility of early release and “mandatory” early release.

[Buntion] also presented a print-out of online reader comments responding to the February 10

follow-up article. This article received fewer comments than the first article. One commentator

stated that Lykos was correct and that [Buntion’s] defense counsel (“the vermin who represent the

cop killer”) were lying. The commentator also said that [Buntion] could be on the street within a

very short time if sentenced to life because there had been no life-without-parole option at the time

of the offense. Like the comments to the first article, this comment to the February 10 article did

not differentiate between the mere possibility of early release and “mandatory” early release.

Buntion, 482 S.W.3d at 72–73.

The hearing also addressed related motions Buntion had filed to subpoena and sanction Lykos. The trial

court quashed the subpoena and refused to issue sanctions.

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

copies of the on-line comments from the two articles.

Id. at 72.

The State presented evidence to rebut Buntion’s arguments for a change of venue

including copies of other “‘plain vanilla’ news stories” that generated a comparable number of

comments as those about Buntion’s trial. Id. at 73. The State adduced a transcript from a

contemporaneous capital trial in which potential jurors not only did not express concern about

the comments, many jurors said that they did not read the newspaper at all.

The defense did not call any witnesses in the hearing. The State called two witnesses in

opposition to the change-of-venue motion:

The prosecutor . . . called Terrance Windham to testify about a defendant’s ability

to get a fair and impartial jury in a widely publicized case. Windham, who had

served as a Harris County assistant district attorney since 1989, explained that the

original trial in this case had been moved to Fredericksburg. Windham was aware

of very little media coverage since the 1991 trial; the only coverage he had seen

were the attachments to [Buntion’s] motion. Windham opined that [Buntion]

could receive a fair trial in Harris County. He stated that the two Houston

Chronicle news articles attached to the motion did not constitute “pervasive

coverage” of the case. Further, Windham asserted that the articles were merely

informational, and not prejudicial or inflammatory. Windham testified that he was

unaware of any “dangerous combination” working to deny [Buntion] a fair trial in

Harris County.

On cross-examination, Windham acknowledged that the news media was

covering the instant hearing and that he had seen cameras outside the courtroom.

Windham stated that he lived in Houston at the time of the 1990 offense and the

1991 trial. He stated that the case received quite a bit of media coverage at that

time, but he did not recall the details. Windham stated that a trial involving the

capital murder of a police officer would typically be well-covered in the media.

Windham anticipated that the punishment retrial would receive additional media

coverage as the trial date approached. Windham acknowledged that Lykos’

statement in the February 8 story was inaccurate because Texas does not have

“mandatory parole.” He agreed that capital murderers are not eligible for any

type of mandatory release. Windham testified that he did not know how a

potential juror would interpret the term “mandatory parole.”

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The State also called the Montgomery County District Attorney, Brett Ligon.

Ligon testified that, as a defense attorney and as a prosecutor, he had handled

cases in Harris and Montgomery Counties that had received extensive media

coverage. Ligon opined that despite the media coverage, those trials had been

fair. Except for the two news articles attached to [Buntion’s] motion, Ligon was

not aware of any media coverage of this case following the sentence reversal. In

his opinion, those articles did not constitute pervasive, prejudicial, or

inflammatory coverage. Ligon acknowledged that “mandatory parole” does not

exist in Texas and that this term could mislead potential jurors. He pointed out,

however, that both the February 8 and February 10 news articles quoted criminal

defense attorneys who stated that Lykos’ “mandatory parole” statement was

inaccurate.

Ligon also stated that he was unaware of any “dangerous combination” working

to deny [Buntion] a fair trial in Harris County. Ligon testified that [Buntion]

could have a fair trial in Montgomery County if the motion to change venue were

granted. However, based on his trial experience in both counties, Ligon thought

that it would be a better strategy for the defense to try the case in Harris County

rather than Montgomery County.

Id. at 73-74.

At the conclusion of the hearing, the trial court made express findings from the bench

denying a change of venue. The trial court’s findings echoed Texas’ statutory requirements: a

change of venue may be granted if the defendant establishes either that (1) “[t]here exists in the

county where the prosecution is commenced so great a prejudice against him that he cannot

obtain a fair and impartial trial” or (2) “there is a dangerous combination against him instigated

by influential persons by reason of which he cannot expect a fair trial.” TEX. CODE CRIM. PROC.

ANN. art. 1.03(a). The trial court found that Buntion had not established that publicity was so

pervasive, prejudicial, or inflammatory that it would preclude him from having a fair trial.

Clerk’s Record at 231; Tr. Vol.7 at 90-91. The trial court, however, told the defense that it could

reurge the motion any time before the jury was selected. Tr. Vol. 7 at 91. Buntion did not ask

again for a change of venue.

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On direct appeal, Buntion challenged the denial of the change-of-venue motion, as well

as the other related motions he had filed. The Court of Criminal Appeals clarified that Buntion

“specifically cites the denial of the change of venue motion as an abuse of discretion by the trial

court based on the statutory requirements of Article 31.03,” but also “address[ed] the statutory

requirements of a change of venue motion . . . and . . . [his] due process allegations.” Buntion,

482 S.W.3d at 70. The Court of Criminal Appeals found that, overall:

the February 8 news story was accurate and objective. It briefly described the

facts of [Buntion’s] offense of conviction. It also quoted Officer Irby’s widow,

who was upset by the prospect of a retrial and the possibility that, if [Buntion]

received a life sentence, she and her children might have to go before the Parole

Board when his case came up for review. The article clearly explained that the

Parole Board would make any release decisions. The story quoted a local defense

attorney who stated that, as a practical matter, the Board would never release

[Buntion] if he received a life sentence. The February 10 follow-up news story

was also accurate and objective. The story merely reported that [Buntion’s]

counsel was moving for a change of venue as a result of Lykos’ misstatement in

the first story. The story contained a quote from defense counsel that there was

no mandatory parole and that the Board, and not a jury, would decide whether a

life-sentenced offender would be released.

...

[Buntion] also appears to complain that any discussion in the media of parole or

early release denied him a fair trial because defense counsel’s preferred strategy

was to avoid mentioning the subject of parole during voir dire. This claim is

without merit. See Feldman v. State, 63 S.W.3d 416, 433–34 (Tex. Crim. App.

2001) finding parole instructions did not cause [Buntion] egregious harm because

parole was not an applicable issue in [Buntion’s] capital case. The jury in this

case was instructed not to consider any possible action of the Board of Pardons

and Paroles Division of the Texas Department of Criminal Justice (“TDCJ”), or

how long [Buntion] would have to serve to satisfy a life sentence. We presume

that jurors disregard parole when they are instructed to do so. Colburn v. State,

966 S.W.2d 511, 520 (Tex. Crim. App. 1998).

The trial court’s decision to deny [Buntion’s] motion for change of venue was

well within the zone of reasonable disagreement.

Id. at 74-75.

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Exhaustion of Remedies

Respondent argues that, while Buntion exhausted similar state-law arguments on state

direct appeal, he failed to exhaust the federal dimensions of this claim. When Buntion briefed

this claim on direct appeal, he specifically asked the Court of Criminal Appeals to reverse his

conviction based on state law. Buntion, however, briefed this claim in close conjunction with

two others. When the Court of Criminal Appeals considered this claim on direct appeal, it

observed that Buntion “brief[ed] these points together.” Buntion, 482 S.W.3d at 69-70. Still,

Respondent asks this Court to parse through the state-court briefing and find that Buntion did not

fully exhaust his federal arguments.

The Court, however, finds it unnecessary to decide the question of exhaustion in

Respondent’s favor.

AEDPA allows for federal courts to deny a federal habeas claim,

exhaustion notwithstanding. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas

corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the

remedies available in the courts of the State.”). As the Court finds that Buntion completely fails

to satisfy his constitutional burden to prove that prejudice tainted his jury pool, the Court need

not reach the question of exhaustion.

Analysis

Buntion bears a heavy burden in alleging that pre-trial publicity tainted the jury pool.

The Constitution “guarantees to the criminally accused a fair trial by a panel of impartial,

‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961); see also Murphy v. Florida, 421

U.S. 794, 799-800 (1975).

But that simply does “not mean that criminal cases must ‘be

submitted to automated jurors existing in complete sterility.’” Hale v. United States, 435 F.2d

737, 745 (5th Cir. 1970) (quoting Welch v. United States, 371 F.2d 287, 291 (10th Cir. 1966)).

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The Supreme Court has long held that to have an impartial jury, “[i]t is not required . . . that the

jurors be totally ignorant of the facts and issues involved” in a case. Irvin, 8366 U.S. at 722;

Murphy, 421 U.S. at 800. Supreme Court precedent “cannot be made to stand for the proposition

that juror exposure to news accounts of the crime alone presumptively deprives the defendant of

due process” absent a showing that the “trial atmosphere . . . [was] utterly corrupted by press

coverage.”

Skilling v. United States, 561 U.S. 358, 380 (2010). The Supreme Court has

explained the constitutional standard for reviewing the partiality of jurors exposed to pre-trial

publicity as follows:

In these days of swift, widespread and diverse methods of communication, an

important case can be expected to arouse the interest of the public in the vicinity,

and scarcely any of those best qualified to serve as jurors will not have formed

some impression or opinion as to the merits of the case. This is particularly true

in criminal cases. To hold that the mere existence of any preconceived notion as

to the guilt or innocence of an accused, without more, is sufficient to rebut the

presumption of a prospective juror’s impartiality would be to establish an

impossible standard. It is sufficient if the juror can lay aside his impression or

opinion and render a verdict based on the evidence presented in court.

Irwin, 366 U.S. at 722-23. Therefore, a defendant’s constitutional rights are violated if he shows

that “the trial atmosphere was ‘utterly corrupted by press coverage.’” Black v. Collins, 962 F.2d

394, 409 (5th Cir. 1992) (quoting Dobbert v. Florida, 432 U.S. 282, 303 (1977)).

Thus, precedent generally requires “a state defendant who seeks habeas relief as a result

of pretrial publicity [to] demonstrate an actual, identifiable prejudice on the part of members of

the jury that is attributable to . . . publicity.” Willie v. Maggio, 737 F.2d 1372, 1386 (5th Cir.

1984). A federal petitioner must make two showings to establish actual prejudice: (1) one or

more jurors held an opinion, before hearing the trial evidence, that the defendant was guilty and

(2) these jurors could not have laid aside their opinions and “render[ed] a verdict based on the

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evidence presented in court.” Irvin, 366 U.S. at 723. A petitioner makes this showing through

the transcript of voir dire examination. See Murphy, 421 U.S. at 800.

Buntion has not shown that pretrial publicity prejudiced the ability to select an impartial

jury. Buntion focuses his argument on criticizing Lykos’ statement, both in its intent and

veracity. (Docket Entry No. 4 at 54). Buntion’s argument, however, fails to join issue with the

arguments he must make to warrant habeas relief. Buntion does not provide any citation to the

questioning of any prospective juror who demonstrated any improper opinion or bias traceable to

the newspaper articles, much less one that the juror could not set aside. Instead, Buntion

presumes that the two news articles prejudiced the defense. In doing so, Buntion relies on the

inaccuracy of Lykos’ statement. Supreme Court precedent focuses on the “blatantly prejudicial”

nature of the information, not only on its veracity. Skilling, 561 U.S. at 382. While Lykos’

statement of the law was possibly incorrect, but it was not of a nature that it would be extremely

prejudicial or inflammatory.3

Further, Buntion has made no effort to prove that the two news stories so permeated the

community such that the parties were incapable of selecting an unbiased jury. Nothing in the

record hints that the trial atmosphere was “utterly corrupted by press coverage.” Dobbert, 432

The Supreme Court has recognized a narrow exception to the rule that a petitioner must show prejudice due

to pretrial publicity. In Rideau v. Louisiana, 373 U.S. 723 (1963), the Supreme Court held that “where a petitioner

adduces evidence of inflammatory, prejudicial pretrial publicity that so pervades or saturates the community as to

render virtually impossible a fair trial by an impartial jury drawn from that community,’ jury prejudice is presumed

and there is no further duty to establish bias.” Mayola, 623 F.2d 992, 997 (5th Cir. 1980) (explaining Rideau); see

also United States v. Lipscomb, 299 F.3d 303, 344 (5th Cir. 2002). “Given that virtually every case of any

consequence will be the subject of some press attention, however, the Rideau principle of presumptive prejudice is

only rarely applicable, and is confined to those instances where the petitioner can demonstrate an extreme situation

of inflammatory pretrial publicity that literally saturated the community in which his trial was held.” Mayola, 623

F.2d at 997 (quotation and citations omitted); see also Rideau, 373 U.S. at 726 (presuming prejudice when “[a]ny

subsequent court proceedings in a community so pervasively exposed to such a spectacle could be but a hollow

formality”). A petitioner must show that “the community has become per se incapable of yielding an unbiased jury”

because of inflammatory and excessive publicity. Moore v. Johnson, 225 F.3d 495, 505 (5th Cir. 2000). A

petitioner must make two showings before a reviewing court will presume prejudice: (1) the pretrial publicity was

extremely prejudicial and inflammatory, and (2) the prejudicial pretrial publicity saturated the community where the

trial was held. See Skilling, 561 U.S at 380-81; Rideau, 373 U.S. at 726-27; Murphy, 421 U.S. at 798-99.

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U.S. at 303. The State tried Buntion in a heavily populated area—“more than 4.5 million

individuals eligible for jury duty resided in the Houston area”—which, with its “large, diverse

pool of potential jurors” makes “the suggestion that 12 impartial individuals could not be

empaneled” on the basis of two news articles “hard to sustain.” Skilling, 561 U.S. at 382.

Simply, Buntion has not shown that his jury was biased or that the circumstances were

such that a court must presume that it was. The Court will deny Buntion’s second ground for

relief.

III.

Trial Counsel’s Representation

Buntion’s third claim argues that trial counsel’s representation fell below constitutional

expectations. Buntion points to two areas in which he alleges counsel performed deficiently: (1)

allowing an allegedly objectionable juror sit at trial; and (2) in the investigation and presentation

of punishment evidence.

A reviewing court must assess counsel’s representation under

Strickland’s two-pronged test: a criminal defendant’s Sixth Amendment rights are “denied when

a defense attorney’s performance falls below an objective standard of reasonableness and

thereby prejudices the defense.” Yarborough v. Gentry, 540 U.S. 1, 3 (2003) (emphasis added);

see also Rompilla v. Beard, 545 U.S. 374, 387 (2005); Wiggins v. Smith, 539 U.S. 510, 520

(2003). To establish deficient performance, the petitioner must show that “counsel made errors

so serious that counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth

Amendment.” Strickland, 466 U.S. at 687. The Supreme Court has “declined to articulate

specific guidelines for appropriate attorney conduct,” Wiggins, 539 U.S. at 521, but instead

“measure[s] . . . attorney performance” for “reasonableness under prevailing professional

norms.” Strickland, 466 U.S. at 688. This “highly deferential” review eliminates “the distorting

effect of hindsight” by looking at “counsel’s challenged conduct on the facts of the particular

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case, viewed as of the time of counsel’s conduct.” Id.

Before turning to Buntion’s specific arguments, the Court makes two general

observations about counsel’s efforts in this case. First, counsel brought rich experience to

Buntion’s trial. The same counsel represented Buntion during both his 1991 and 2012 trials.

Counsel’s experience not only provided fulsome awareness of the factual issues and legal

concerns, counsel intimately knew what had worked, and what had not, in the first trial.

Counsel’s deep knowledge of the case provided a foundation for developing strategy and making

tactical decisions.

Second, the Court observes that Buntion exhausted his Strickland arguments in state

court. Strickland claims traditionally afford wide deference to the decisions and actions of

defense counsel; under AEDPA this deference is doubly so. Under Section 2254(d), “the

question is not whether counsel’s actions were reasonable”; the question is “whether there is any

reasonable argument that counsel satisfied Strickland’s deferential standard.” Harrington, 562

U.S. at 105.

Allowing Juror Kotsatos to Sit on the Jury

Buntion’s first Strickland argument faults trial counsel for not seeking to remove

prospective juror Kristi Kotsatos from the jury panel.

Juror Kotsatos reported in her

questionnaire and voir dire examination that her ex-boyfriend had been murdered almost nine

years before. She attended the resulting trial. As a result, Juror Kotsatos suffered bouts of

clinical depression. The Court of Criminal Appeals summarized her concerns:

She stated that, although they were no longer dating and she was not present at the

time of the offense, she did not handle the aftermath of the murder very well. As

a result of the experience, including sitting through the murder trial, Kotsatos

failed some of her college courses and suffered from clinical depression. She

asserted that, although nine years had passed since this trauma, she did not wish to

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be a juror in this case because she would probably be so distracted by her past

experiences that she would be unable to be fair in her ultimate decision.

Buntion, 482 S.W.3d at 68-69.

Juror Kotsatos was the first juror selected after four days of individual voir dire. Up to

that point, trial counsel had actively participated in jury selection: “trial counsel lodged nine

challenges for cause prior to accepting Kotsatos as a juror; and, . . . six of the challenges were

successful.” State Habeas Record at 554. Juror Kotsatos’ voir dire examination presented some

concern for the defense. “In response to the prosecutor’s questions about the effect of her exboyfriend’s murder, Kotsatos stated that she would probably be distracted, and her past

experience might cause her to have a bias or prejudice against the State or the defense.” State

Habeas Record at 555.

Still, Juror Kotsatos’ answers in the jury questionnaire displayed traits that would make

her a good juror for the defense. As the state court summarized on habeas review:

she considered herself a liberal and a leader; that she had reservations about the

criminal justice system and the death penalty; that it seemed “a lot of innocence

ppl [sic] have served jail time” in light of DNA evidence; that she was unsure

whether it was her place to send someone there [death penalty]; that she was

conflicted about the death penalty; that there “[m]ust be a better alternative;” that

it seemed a “little outdated” in 2012; that she thought information about

childhood and background was “relevant in regards to how a person turned out;”

and, that she might “be too conflicted about sending someone to die.

State Habeas Record at 555.

Trial counsel’s voir dire questioning reinforced Juror Kotsatos’ ability to serve: “Kotsatos

expressed doubts about the death penalty, exhibited a willingness to answer the special issues so

that [Buntion] would receive a life sentence if appropriate, indicated that she would not lean

toward the death penalty based on the facts of the primary offense, and stated, ‘I think there

could be a lot of mitigating circumstances.’” State Habeas Record at 555. Juror Kotsatos

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expressed concerns about giving a death sentence, indicated that the facts of the crime would not

require an automatic affirmative answer to the special issues, and said that “some people just

make horrible mistakes.” She also expressed a willingness to hold the State to its burden on the

mitigating special issues. When trial counsel questioned Juror Kotsatos about whether she may

have a bias against Buntion, “she acknowledged she might ‘lean over backwards’ not to let that

interfere with [him] getting a fair trial.” State Habeas Record at 556.

As one of Buntion’s attorneys later expressed in an affidavit, “trial counsel believed

Kotsatos to be a ‘defense juror’ based on her voir dire answers, and that her attempt to remove

herself from the jury for psychological reasons ‘cemented’ their opinion that she would have

difficulty rendering a death verdict.” State Habeas Record at 556. With that background, the

state habeas court found that “trial counsel are not ineffective for choosing not to challenge for

cause Kotsatos—a defense-oriented juror based on her juror questionnaire and voir dire

examination concerning her view of the death penalty, mitigation, and the criminal justice

system.” State Habeas Record at 557.

Even though Juror Kotsatos expressed that she did not want to serve, both parties

accepted her as a juror. As the trial neared, however, Juror Kotsatos became concerned that she

would not be able to serve:

On February 3rd Kotsatos informed the court coordinator by telephone that she

did not feel fit to serve on the jury. The court coordinator informed Kotsatos that

she needed to return for jury duty as instructed. On February 7th, Annie

McAdams, Kotsatos’ sister-in-law and a civil attorney, contacted the court and

informed the court by telephone that she believed that Kotsatos’ mental state was

deteriorating. Based on this phone call with the court, which both the State and

the defense witnessed, the court decided to hold a special hearing the next day and

question both McAdams and Kotsatos. After the hearing, and after an off-therecord conference among the trial judge and the attorneys for both sides, the court

informed Kotsatos that she would remain a juror. Kotsatos did not express any

opinion about remaining a juror at that time. The court advised Kotsatos in detail

what she should do if at any time during the trial she had further problems or if

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she had further concerns about being an impartial juror. The record does not

reflect any argument from the defense regarding whether or not Kotsatos should

remain a juror. The record does not reflect an unambiguous bias against

[Buntion]. In fact, Kotsatos repeatedly replied that she would consider the

evidence and follow the law in response to questions about the special issues she

would be required to answer as a juror.

Buntion, 482 S.W.3d at 69.

Trial counsel did not object to her service as a juror. Accordingly, when Buntion

complained on direct appeal that Juror Kotsatos was unfit to serve because of mental instability,

the Court of Criminal Appeals found that his argument was defaulted by a lack of a trial

objection. Buntion, 482 S.W.3d at 70.

On habeas review Buntion also claimed that trial counsel should have Juror Kotsatos.

The state habeas court found that “when her questionnaire and voir dire examination” were

“viewed in its entirety” it showed “that she was a defense-oriented prospective juror: she

described herself as liberal; she had doubts about the death penalty; she was willing to answer

the special issues so that a life sentence would result; she was open to mitigating circumstances;

she would ‘lean over backwards’ not to let her past experience interfere with [Buntion] getting a

fair trial.” State Habeas Record at 566. On that basis, the state habeas court explicitly found that

“trial counsel are not ineffective for choosing not to challenge for cause Kotsatos—a defenseoriented juror based on her juror questionnaire and voir dire examination concerning her view of

the death penalty, mitigation, and the criminal justice system.” State Habeas Record at 557.4

The state habeas court found that the essence of the Strickland claim was the same as the claim he raised on

direct review, and thus should be defaulted. State Habeas Record at 565-66. The state habeas court also considered

the claim’s merits in the alternative. The Court of Criminal Appeals stated simply: “This Court has reviewed the

record with respect to the allegations of ineffective assistance of counsel. We deny relief on these claims because

[Buntion] has not met his burden under Strickland v. Washington, 466 U.S. 668 (1984). He has failed to show by a

preponderance of the evidence that his counsel's representation fell below an objective standard of reasonableness

and that the deficient performance prejudiced the defense.” Ex parte Buntion, 2017 WL 2464716, at *1 (Tex. Crim.

App. 2017). While the Court of Criminal Appeals did not explicitly adopt the lower court’s recommendations, it did

not reject them either. The Court will presume the lower court findings to be correct and defer to the state court’s

determination, both on the trial and appellate level, that Buntion’s Strickland arguments do not merit relief.

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Buntion renews his challenge to trial counsel’s acceptance of Juror Kotsatos. Buntion

emphases that Juror Kotsatos repeatedly expressed the kind of bias that should have excluded her

from jury service. Buntion contends that “[t]here is no strategic reasoning that would justify

keeping a juror who is biased against your client on the jury panel, regardless of her other voir

dire answers.” (Docket Entry No. 4 at 65-66). Buntion argues that Juror Kotsatos’ service likely

prejudiced the defense.

This claim, however, comes before the Court under the “doubly deferential” review

afforded Strickland claims that have been adjudicated on the merits. Pinholster, 563 U.S. at 190.

The state habeas decision deferred to counsel’s choice to keep Juror Kotsatos on the jury. Trial

counsel expressed during voir dire that he did not think Juror Kotsatos was biased. Tr. Vol. 15 at

73. Both trial attorneys submitted affidavits on state habeas review opining that Kotsatos would

be a defense-oriented juror. State Habeas Record at 357, 361. In fact, both attorneys believed

that any distress she felt would make her less likely to return a death sentence. While the

decision came with some risk, this Court will generally defer to such well-informed, planned,

and strategic decisions. See Mann v. Scott, 41 F.3d 968, 984 (5th Cir. 1994) (recognizing that

strategic decisions with double-edged consequences are “granted a heavy measure of deference”

and “[u]nder an objective standard of reasonableness” do not “constitute deficient

performance”).

AEDPA adds a second layer to that deference. The state habeas court considered

Buntion’s allegations and found no deficient performance or prejudice. While Buntion’s briefing

expresses disagreement with the decision, Buntion falls far short of proving that the decision was

contrary to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1). Under

that deferential review, the Court will deny Buntion’s first allegation of deficient performance.

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Investigation and Presentation of Mitigating Evidence

Buntion argues that trial counsel failed in their responsibility to investigate and present

evidence that would mitigate against a sentence of death. Having already represented Buntion in

one trial, trial counsel went into the punishment phase with a robust knowledge of the challenge

they faced defending against a death sentence. Counsel had a preview of what the State would

present and how a jury would respond.

With that experience, the defense presented the

following evidence and testimony, as summarized on state habeas review:

31. Bobby Joe Buntion, [Buntion’s] brother, testified that [Buntion’s] twin

brother was killed by the police in 1971; that their mother, Irene, married their

father, James, when she was about fifteen years old; that neither parent had

received much education; that the family moved to Houston when [Buntion] was

about eight years old and lived in a bad area of town; that James worked as a

mechanic and often required his children to work for him; that James never

encouraged them to attend school; and, that [Buntion] left school after the sixth or

seventh grade.

32. Bobby Buntion testified that James was a gambler who lost the family home

and his tools through gambling; that the family had to move to a rat-infested

house; that James was an alcoholic who abused Irene, the children and animals;

that James beat Irene with a beer bottle causing her to lose all her teeth; that

Bobby and [Buntion] tried to intercede; that Bobby once stabbed James and

threatened to kill him if he continued to hit Irene; and, that James never stopped

abusing Irene.

33. Bobby Buntion testified that James broke his arm in five places when he was

nine years old; that James broke [Buntion’s] wrist by hitting him with a baseball

bat when [Buntion] was eleven or twelve; that Bobby saw James murder a man

over a dispute concerning a car repair bill; that James had sex with a pet dog and a

pig; and, that neighbors refused to intervene when James abused Irene because

they were afraid of him.

34. Bobby Buntion testified that he spent twenty to twenty-five years in prison

with multiple criminal convictions before his release in 2002; that he had killed

two or three men; that he subsequently became religious and lived with his sister

who supported him; that he had not seen [Buntion] in over twenty-five years but

they wrote each other frequently; and, that he did not consider [Buntion] a violent

person.

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35. Trial counsel also presented the testimony of S.O. Woods, former director of

classifications at TDCJ; Bobby Joe Blanton, TDCJ correctional officer; Wilford

Griffin, TDCJ training sergeant; Virgil Miller, TDCJ correctional officer; Earl

Hicks; Mark Vigen, psychologist; and, Zeke Young, founder and director of a

prison ministry.

36. The Court finds that trial counsel read into evidence the former testimony of

Helen Smith, TDCJ correctional officer; Gary Stretcher, Dean of Continuing

Education at McLennan Community College; and Jerry Jordan, teacher at

McLennan Community College and at a prison unit.

State Habeas Record at 539-40 (citations omitted).

Buntion’s federal habeas claim focuses on three areas which he alleges trial counsel

should have focused the mitigation defense: (1) evidence regarding his alleged cognitive

impairment; (2) individualized evidence allowing the jury to find no propensity for future

violence; and (3) evidence relating to gang membership.

Cognitive Impairment

Buntion claims that his trial attorneys should have conducted a neuropsychological

evaluation of Buntion because a previous expert had found minimal brain dysfunction in 1991.

The defense investigated mental-health concerns and presented testimony through two experts at

Buntion’s trial in 1991. Psychologist Wendell Dickerson testified that Buntion did not suffer

from mental illness or intellectual disability and had average or above average intelligence. On

cross-examination, Dickerson “denied that [Buntion] suffered from an organic brain syndrome.”

Although “there was a suggestion of very mild brain dysfunction,” Dickenson said that it “did

not significantly affect [Buntion]’s judgment or impulse control.” Dickenson did not see any

reason to perform any additional tests for organic brain syndrome

Sally Webster, forensic psychologist, also testified for the defense. Webster testified that

Buntion was both competent and sane.

Although Buntion showed “minimal neurological

impairment,” Webster explained that it “was not excessive or extensive enough to require further

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testing.” Trial counsel found that Buntion was “helpful in his defense for his 2012 new

punishment hearing in recalling facts and witnesses.” State Habeas Record at 546. Counsel

“saw no signs of dementia.” State Habeas Record at 546. Trial counsel consulted with another

expert in preparation for the 2012 punishment hearing. The evidence trial counsel adduced

through Dr. Mark Vigen to show that Buntion did not present a threat of future dangerousness

included that his age of 68 years, his I.Q. of 130, and the college-level courses he took while

incarcerated.

On state habeas review, Buntion relied on expert Dr. James Underhill to argue that he

suffered from memory problems and functioned far below average in memory. Based on the

finding of “minimal brain dysfunction” in 1991, Dr. Underhill would have recommended

additional testing.

Based on testing in 2014, Dr. Underhill assessed Buntion’s current

neuropsychological functioning and found that “Buntion suffers from mild memory problems

that are associated with a condition known as Mild Cognitive Impairment (‘MCI’).” (Docket

Entry No. 4, Exhibit 3, at 4). While stating that such deficits in memory generally do not

“impact daily functioning,” Dr. Underhill opined that “MCI is widely regarded as an initial stage

along the disease process leading from normal neurological functioning to dementia or dementia

of the Alzheimer’s type.” (Docket Entry No. 4, Exhibit 3, at 5). Dr. Underhill concluded: “At

this time, Mr. Buntion is suffering from memory impairments that are atypical for his age. There

is a probability that these impairments will increase in severity progressing from mild memory

impairments to eventual dementia or severe memory impairments that could result in Mr.

Buntion becoming disoriented to date, time, and situation, and unable to properly care for

himself.” (Docket Entry No. 4 at 7).

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The state habeas court found that Dr. Underhill’s affidavit was “unpersuasive and

speculative.” State Habeas Record at 546. The state habeas court found fault with Dr. Underhill

for what he did not say:

Dr. James Underhill did not diagnose [Buntion] with dementia of any type; that

Underhill did not conclusively state [Buntion] will develop dementia in the future;

and, that Underhill's 2014 evaluation, conducted fourteen years after the offense,

in which he finds mild memory problems with [Buntion], does not conclude that

such problems existed at the time of the offense or [Buntion’s] 1991 trial or his

2012 new punishment hearing and is belied by the expert evidence presented in

1991 and 2012.

State Habeas Record at 546-47. On that basis, the state habeas court found that Buntion failed

“to show ineffective assistance of trial counsel based on counsel not requesting a

neuropsychological evaluation of [Buntion] in light of the opinions of the two experts retained by

trial counsel in 1991 and the opinion of the expert the same trial counsel obtained for the 2012

new punishment hearing.” State Habeas Record at 563.

Buntion has not shown that the state court’s decision was contrary to, or an unreasonable

application of, federal law. 28 U.S.C. § 2254(d)(1). Trial counsel had Buntion evaluated in both

1991 and in 2012. While the experts found some minor brain dysfunction, neither expert felt that

additional testing was necessary. Trial counsel is entitled to rely on the informed opinion of

learned experts. See Dowthitt v. Johnson, 230 F.3d 733, 748 (5th Cir. 2000) (holding that

counsel is entitled to rely on the opinions of their experts and is not required to “canvass[] the

field to find a more favorable defense expert”). Buntion has not shown any condition that

counsel could have developed at that time.

True, testing performed two years after the second penalty phase showed that Buntion

may have some degree of memory loss, but Dr. Underhill does not say that Buntion exhibited

any memory problems at the time of either trial. Even in 2014, Dr. Underhill did not diagnose

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Buntion with dementia. Instead, Underhill predicated his diagnosis on the possibility of future

memory loss and cognitive decay. Trial counsel cannot be faulted for not presenting evidence

based on speculation or conjecture.

Given trial counsel’s efforts to assess whether Buntion suffered any psychological or

mental-health conditions that could form the basis of a penalty defense, Buntion has not shown

that a reasonable attorney would have done more, much less that not doing so prejudiced the

defense. The Court will deny Buntion’s failure-to-present-evidence-of-memory-loss argument.

Future Violence

Buntion claims that trial counsel did not adduce enough evidence to convince jurors to

answer the future-dangerousness special issue in his favor. Buntion bases this claim on an

affidavit prepared by Dr. William Kelly, a sociologist who specializes in criminology. As the

result of an interview conducted in 2014, Dr. Kelly concluded that Buntion posed an

exceptionally low risk for violating prison rules and assaulting staff. Dr. Kelly primarily relied

on factors such as Buntion’s age, poor physical health, socialization, psychological adjustment to

incarceration, desire to avoid conflict, positive adjustment to prison life, and institutional

behavior. Dr. Kelly particularly emphasized the generally tendency of inmates to age out of

crime, which would be especially relevant to Buntion who is over sixty years old.

Buntion raised this argument on state habeas review and relied on Dr. Kelly’s affidavit.

The state habeas court denied relief because trial counsel had “effectively presented evidence of

the ‘aging out’ phenomenon of danger decreasing with age; [Buntion’s] age of 68, [Buntion’s]

low number of disciplinary incidents while incarcerated, [Buntion’s] successful adjustment to

institutional life, [Buntion’s] not being a problem in prison, [Buntion’s] religious views,

[Buntion’s] educational endeavors, and [Buntion’s] kindness.” State Habeas Record at 562. The

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state habeas court found that Dr. Kelly’s testimony would have been cumulative “in the light of

the extensive evidence, including the testimony of a psychologist,” that trial counsel “presented

relevant to the future dangerousness issue.” State Habeas Record at 563.

The state habeas court’s decision was not contrary to, or an unreasonable application of,

federal law. Most of Dr. Kelly’s opinions are merely cumulative of trial testimony. Trial

counsel’s obvious focus in the penalty phase was to show that Buntion would not pose a threat in

prison. Trial counsel used testimony from experts such as S.O. Woods, a former director of

classifications at TDCJ, and Dr. Mark Vigen, a psychologist whose research focused on

incarcerated individuals, to focus on how Buntion’s age, institutional record, and reputation all

proved that he would not be violent. Trial counsel personalized this narrative with testimony

from Bobby Blanton, a correctional officer who had almost daily contact with Buntion on death

row for many years. Other witnesses affirmed that Buntion was not a troublemaker, violent, or

otherwise problematic as an inmate. While some features of Dr. Kelly’s report were not before

the jury, such as Buntion’s physical ailments, his opinions largely mirror information already

presented by trial counsel.

The jury considered the defense’s evidence against the State’s strong showing that

Buntion had engaged in lifelong, unremitting violence. Other than the terrible facts of the crime,

the State presented evidence of Buntion’s many other criminal acts, his bad behavior while in

custody, and his lack of remorse.

Dr. Kelly’s proposed testimony does not measurably

strengthen the defense’s case against what the State presented. Given the generally cumulative

nature of Dr. Kelly’s conclusions, and in light of the evidence presented at trial, the Court finds

that the state habeas court’s rejection of this claim was not contrary to, or an unreasonable

application of, federal law.

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Gang Membership

Buntion claims that trial counsel made insufficient efforts to rebut testimony that he was

the member of a prison gang. The defense called S.O. Woods, former head of the TDCJ

classification office, to describe the classification of inmates. Woods described how Buntion had

been identified as being a member of a security threat group, the prison gang Aryan

Brotherhood. Tr. Vol. 39 at 184. Woods explained that because of Buntion’s classification as

belonging to the Aryan Brotherhood, he would be on “lockdown, maximum custody” (also

known as administrative segregation) even if he received a life sentence. Tr. Vol. 39 at 184. On

cross-examination, the State asked Woods questions about the racist views and criminal acts of

the Aryan Brotherhood. The State emphasized that the dangerousness of the group, and its skill

at hiding illegal activities, which caused its members to be segregated from the general

population. Tr. Vol. 39 at 192-93. The State also presented evidence that Buntion had used

gang terminology in letters to his brother.

Buntion first questions trial counsel’s strategy in adducing Wood’s double-edged

testimony: it showed that Buntion would be non-violent in a controlled environment, but also

suggested that his own violence necessitated that security. Buntion also wishes that trial counsel

had effectively countered evidence about Buntion’s gang membership. Buntion specifically

faults counsel from not calling other inmates who, while not able to say that Buntion had never

been a member of the Aryan Brotherhood, would testify that he was not an active member of the

group. Also, the inmates could say that Buntion generally had a good character and did not

espouse racist views common to members of the Aryan Brotherhood.

Trial counsel presented Wood’s testimony to counter the State’s argument that Buntion

would “roam freely” in prison if given a life sentence. Tr. Vol. 35 at 33-34. Wood’s testimony,

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however, came with risks. Showing that a life sentence would mean housing in the controlled

setting of administrative segregation ran the risk of revealing why Buntion required such a

restrictive classification. Trial counsel made efforts to minimize the effect of that decision, such

as “presenting evidence that [Buntion’s] name was not on a recovered list of members of the

Aryan Brotherhood; that [he] did not use Aryan Brotherhood type language or threats; that gangrelated items were not found in his cell; that [he] did not create problems for correctional

officers; and, that he did not have a reputation for assaultive behavior.” State Habeas Record at

563. In the end, trial counsel made a strategic decision and, knowing the effects that would flow

therefrom, made efforts to mitigate the prejudicial consequences of that decision. While Buntion

has pointed to areas in which counsel could have bolstered the defense, he has not shown that the

state habeas court was unreasonable in finding that counsel’s efforts in that regard were not

deficient or that it resulted in prejudice. The Court will deny Buntion’s Strickland claim relating

to gang membership.

Cumulative Effective of Counsel’s Representation

Buntion concludes his Strickland claim by arguing: “If this Court believes each of trial

counsel’s errors standing alone is insufficient to find Buntion was prejudiced, the Court should

consider the cumulative effect of the errors and find that Buntion was prejudiced by trial

counsel’s deficiencies.” (Docket Entry No. 4 at 91-92). The Court has found no error in

counsel’s representation, particularly considering the deferential standards of Strickland and

AEDPA. Where, as here, a petitioner has failed to show that his counsel was ineffective in any

respect, “there is nothing to cumulate.” Villaneuva v. Stephens, 555 F. App’x 300, 308 (5th Cir.

2014); see also United States v. Thomas, 724 F.3d 632, 648 (5th Cir. 2013) (“[T]here is no

precedent supporting the idea that a series of ‘errors’ that fail to meet the standard of objectively

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unreasonable can somehow cumulate to meet the high burden set forth in Strickland.”).

Buntion’s Strickland claim is denied.

IV.

A Jury’s Prediction of Future Behavior

Texas’ special issue questions require a jury to determine whether an inmate will pose a

future societal threat. In this case, Buntion’s jury had to answer: “Do you find from the evidence

beyond a reasonable doubt there is a probability that the defendant Carl Wayne Buntion would

commit criminal acts of violence that would constitute a continuing threat to society?” Clerk’s

Record at 1306. Buntion argues that Texas’ use of this question in capital sentencing is arbitrary

and causes unreliable speculation. Buntion supports his argument with social science research,

such as an “an actuarial study of Texas inmates convicted of capital murder found that the

expected rates of violence would be very low for a prisoner convicted of capital murder serving a

life sentence with an average duration of forty years.” (Docket Entry No. 4 at 93). Further,

Buntion argues that his lawfulness while incarcerated proves that his jury was wrong in finding

that he would be a future danger.

Respondent argues that this claim is procedurally barred. When Buntion raised the claim

on direct appeal, the Court of Criminal Appeals found that Buntion had “not provided a citation

to the record showing where he presented his claim to the trial court” and, “[t]herefore, his claim

is inadequately briefed.” Buntion, 482 S.W.3d at 106 (citing TEX. R. APP. P. 38.1(i)). The Fifth

Circuit has found that the Court of Criminal Appeals “regularly rejects claims—both on direct

and postconviction review—on the basis that these claims are inadequately briefed.” Roberts v.

Thaler, 681 F.3d 597, 607 (5th Cir. 2012). That default results in a procedural bar of federal

review. See id. Buntion does not show cause or prejudice to overcome the procedural bar.

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In the alternative, the Court of Criminal Appeals adjudicated the merits when it found

that it “has rejected similar claims.” Buntion, 482 S.W.3d at 106. Buntion has not provided any

case in which the Supreme Court has precluded a jury from assessing a defendant’s future risk of

committing violent acts.

To the contrary, the Supreme Court “has approved the jury’s

consideration of future dangerousness during the penalty phase of a capital trial, recognizing that

a defendant’s future dangerousness bears on all sentencing determinations made in our criminal

justice system.” Simmons v. South Carolina, 512 U.S. 154, 162 (1994). “It is, of course, not

easy to predict future behavior. The fact that such a determination is difficult, however, does not

mean that it cannot be made.” Jurek v. Texas, 428 U.S. 262, 274-75 (1976). Essentially,

[t]he task that a Texas jury must perform in answering the statutory question in

issue is thus basically no different from the task performed countless times each

day throughout the American system of criminal justice. What is essential is that

the jury have before it all possible relevant information about the individual

defendant whose fate it must determine. Texas law clearly assures that all such

evidence will be adduced.

Jurek, 428 U.S. at 275-76. As “the likelihood of a defendant committing further crimes is a

constitutionally acceptable criterion for imposing the death penalty,” Barefoot v. Estelle, 463

U.S. 880, 896 (1983), Buntion’s constitutional challenge lacks merit. The Court of Criminal

Appeals’ alternative rejection of Buntion’s constitutional arguments was not contrary to, or an

unreasonable application of, federal law. 28 U.S.C. § 2254(d)(1).

Buntion’s briefing invites the Court to find that the jury made an incorrect decision when

finding that he would be a future danger. Respondent contends that Buntion did not exhaust this

portion of his claim (Docket Entry No. 17 at 135-38) and Buntion argues that an attempt to raise

the claim in successive state habeas action “would not necessarily be futile.” (Docket Entry No.

25 at 25-26). Whether or not Buntion fully exhausted this argument, however, the Court denies

that argument because it lacks merit. See 28 U.S.C. § 2254(b)(3) (allowing a federal court to

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deny meritless unexhausted claims).

Buntion’s briefing on the issue falls far short of the

requirement under Jackson v. Virginia, 443 U.S. 307, 323 (1979) to show that insufficient

evidence supported the jury’s answer to that special issue. This Court must defer to the appellate

finding that “[t]he evidence was sufficient for a rational trier of fact to conclude beyond a

reasonable doubt that there was a probability that [Buntion] would commit criminal acts of

violence that would constitute a continuing threat to society.” Buntion, 482 S.W.3d at 68. The

Court of Criminal Appeals emphasized (1) the facts of the underlying offense, which “alone

were sufficient to establish [Buntion’s] future dangerousness,” (2) his other violent acts, (3) his

criminal record, and (4) his lack of remorse years after the murder. Id. at 66. Buntion does not

show that the Court of Criminal Appeals’ assessment of the facts was unreasonable or wrong.

Insofar as Buntion claims that his non-violence since his second death sentence proves

that the jury erred in assessing his future threat, “the Supreme Court has never held that a deathrow inmate is entitled to another future dangerousness determination several years after his

sentencing.” Bible v. Stephens, 640 F. App’x 350, 355 (5th Cir. 2016) (quotation omitted).

Buntion’s argument that he is not a future danger is without merit.

Ability to Develop a Mitigation Case

Buntion argues that constitutional error permeated his resentencing because the passage

of time impaired or prevented him from developing a full mitigation case. Reaching back to his

first trial, Buntion argues that the flawed jury instructions precluded his attorneys from

presenting a full and fair view into his character and his mitigating circumstances. According to

Buntion, that incomplete mitigation case echoed into his retrial because the passage of years

eroded or foreclosed developing previously uninvestigated mitigating avenues. Buntion argues

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that time decayed or destroyed his ability to craft a mitigation defense when he was retried in

2012.

When Buntion raised this claim on state habeas review, the Court of Criminal Appeals

found that Buntion defaulted it by not “raise[ing] [it] on direct appeal.” Ex parte Buntion, 2017

WL 2464716, at *1 (citing Ex parte Nelson, 137 S.W.3d 666, 667 (Tex. Crim. App. 2004)).

Texas law has long held record-based claims not raised on direct appeal are not available for

consideration in habeas proceedings. Ex parte Gardner, 959 S.W.2d 189, 191 (Tex. Crim. App.

1996). “[T]he Gardner rule set forth an adequate state ground capable of barring federal habeas

review.” Busby v. Dretke, 359 F.3d 708, 719 (5th Cir. 2004); see also Rachal v. Quarterman, 265

F. App’x 371, 377 (5th Cir. 2008); Dorsey v. Quarterman, 494 F.3d 527, 532 (5th Cir. 2007).

The state habeas court’s procedural ruling bars federal review.

Alternatively, Buntion’s claim lacks constitutional foundation. The Supreme Court has

never held that the passage of time prevents retrial or a new sentencing after a court grants

habeas relief. The law ensures that a defendant will have the opportunity to present, in an

effective manner, testimony and evidence to mitigate against a sentence of death. The Supreme

Court, however, has never held that the time itself may render a retrial or resentencing bereft of

that opportunity. Teague prevents this Court from creating that constitutional right on habeas

review.

The Court also observes that Buntion has not shown that the circumstances for creating

that new law are present in this case. Aside from making broad pronouncements speculating that

time has foreclosed a full mitigation investigation, Buntion provides no specific details about

what mitigating themes were suppressed, which witnesses were unavailable or dead, or what

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evidence no longer remained viable.

Buntion’s speculative statements about unavailable

mitigating evidence cannot serve as the basis for creating constitutional law.

VI.

The Eighth Amendment and Memory

Buntion presents evidence that he suffers from Mild Cognitive Impairment and will likely

soon develop Alzheimer’s.

Anticipating that he may “reach the point where he has no

independent recall of the facts of the offense for which he was convicted; the sequence of events

from the offense to his arrest, to his trial or previous legal proceedings in his case; or the name of

the victim,” Buntion argues that he will soon “fit into the category of prisoners for whom an

execution would serve no retributive or deterrent purpose.” (Docket Entry No. 4 at 110).

Buntion, however, does not allege that he now suffers from any mental condition that currently

impairs his memory of the offense. To the extent that Buntion claims that he will be incompetent

to be executed because of possible future memory decay, his claim is premature. Buntion must

bring this claim when his execution is imminent, and he displays impairment that would support

a claim of incompetency.

VII.

The Eighth Amendment and Time

Buntion’s final claim argues that the Eighth Amendment prohibits a State from carrying

out a death sentence many, many years after trial. The Supreme Court has never held that the

Eighth Amendment imposes a duty to execute a death sentence expeditiously. See Reed v.

Quarterman, 504 F.3d 465, 488 (5th Cir. 2007); Lackey v. Johnson, 83 F.3d 116, 117 (5th Cir.

1996); White v. Johnson, 79 F.3d 432, 439-40 (5th Cir. 1996). The non-retroactivity principle

from Teague prevents this Court from creating that law. The Court will deny habeas relief on

Buntion’s final claim.

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CERTIFICATE OF APPEALABILITY

Under AEDPA, a prisoner cannot seek appellate review from a lower court’s judgment

without receiving a Certificate of Appealability (“COA”). See 28 U.S.C. § 2253(c). Buntion has

not yet requested that this Court grant him a COA, though this Court can consider the issue sua

sponte. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). “The COA statute

establishes procedural rules and requires a threshold inquiry into whether the circuit court may

entertain an appeal.” Slack v. McDaniel, 529 U.S. 473, 482 (2000). A court may only issue a

COA when “the applicant has made a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2).

The Fifth Circuit holds that the severity of an inmate’s punishment, even a sentence of

death, “does not, in and of itself, require the issuance of a COA.” Clark v. Johnson, 202 F.3d

760, 764 (5th Cir. 2000). The Fifth Circuit, however, anticipates that a court will resolve any

questions about a COA in the death-row inmate’s favor. See Hernandez v. Johnson, 213 F.3d

243, 248 (5th Cir. 2000). The Supreme Court has explained the standard for evaluating the

propriety of granting a COA on claims rejected on their merits as follows: “Where a district court

has rejected the constitutional claims on the merits, the showing required to satisfy §2253(c) is

straightforward: The petitioner must demonstrate that reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484;

Miller-El, 537 U.S. at 336-38. On the other hand, a district court that has denied habeas relief on

procedural grounds should issue a COA “when the prisoner shows, at least, that jurists of reason

would find it debatable whether the petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether the district court was correct in its

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procedural ruling. Slack, 529 U.S. at 484; Miller-El, 537 U.S. at 336-38. Unless the prisoner

meets the COA standard, “no appeal would be warranted.” Slack, 529 U.S. at 484.

Having considered the merits of Buntion’s petition, and considering AEDPA’s standards

and controlling precedent, this Court determines that a COA should not issue.

CONCLUSION

The Court GRANTS Respondent’s motion for summary judgment and DENIES

Buntion’s federal petition for a writ of habeas corpus. The Court DISMISSES this case WITH

PREJUDICE. The Court will not certify any issue for appellate review.

It is so ORDERED.

SIGNED on this 5th day of March, 2020.

___________________________________

Kenneth M. Hoyt

United States District Judge

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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.