Respondents Brief — Carl Wayne Buntion, Petitioner v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division

Nos. 20-8043

IN THE

Supreme Court of the United States

____________________

CARL WAYNE BUNTION,

Petitioner,

vs.

BOBBY LUMPKIN, Director, Texas Department of Criminal Justice,

Correctional Institutions Division,

Respondent.

____________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

____________________

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

____________________

KEN PAXTON

Attorney General of Texas

EDWARD L. MARSHALL

Chief, Criminal Appeals Division

BRENT WEBSTER

First Assistant Attorney General

CARA HANNA

Assistant Attorney General

Criminal Appeals Division

Counsel of Record

JOSH RENO

Deputy Attorney General

for Criminal Justice

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

(512) 936-1400

cara.hanna@oag.texas.gov

Counsel for Respondent

i

QUESTIONS PRESENTED

1.

Where an inmate has spent several years on death row, does the Eighth

Amendment prohibit his execution?

2.

Is the death penalty arbitrarily imposed in Texas as applied due to

geography and lack of emphasis on the egregiousness of the capital

crime, in violation of the Eighth Amendment?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ................................................................................ ii

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

INDEX OF AUTHORITIES ................................................................................ iv

BRIEF IN OPPOSTION ...................................................................................... 1

STATEMENT OF JURISDICTION .................................................................... 2

STATEMENT OF THE CASE ............................................................................ 2

I.

Facts of the Crime...................................................................................... 2

II.

Punishment Evidence from Re-sentencing .............................................. 2

III.

A.

The State’s case for future dangerousness ..................................... 2

B.

Buntion’s mitigation case and rebuttal of the State’s case for

future dangerousness ...................................................................... 5

Procedural History ................................................................................... 13

REASONS TO DENY THE PETITION ............................................................ 14

I.

Buntion Fails to Justify a Grant of Writ of Certiorari. ......................... 14

II.

Bunton’s Petition Is Not Worthy of Certiorari Review because He Failed

to Properly Present His Questions to the Highest State Court and the

Lower Courts. ........................................................................................... 15

A.

The Fifth Circuit Properly Held that Question One Is

Procedurally Defaulted. ................................................................. 15

B.

The Court Should Not Grant Certiorari because Buntion Did Not

Raise Question Two in the Courts Below. .................................... 17

III.

The Court Should Deny Certiorari on Question One because The Fifth

Circuit’s Alternative Ruling Recognizes the Unbroken Line of Circuit

and Court Precedent. ............................................................................... 18

IV.

Buntion’s Question Two Is Not Worthy of Review because It Is

Procedurally Barred from Federal Review. ............................................ 21

V.

Alternatively, Buntion’s Question Two Is without Merit. ..................... 23

CONCLUSION ................................................................................................... 24

iii

INDEX OF AUTHORITIES

Cases

Allen v. Ornoski, 435 F.3d 946 (9th Cir. 2006) ................................................. 20

Allen v. Stephens, 805 F.3d 617 (5th Cir. 2015) ............................................... 23

Ayestas v. Davis, 138 S. Ct. 1080 (2018) ........................................................... 23

Buntion v. Davis, No. 4:17-cv-02683 (S.D. Tex. Mar. 5, 2020) ............ 14, 17, 21

Buntion v. Lumpkin, 982 F.3d 945 (5th Cir. 2020). ..................................passim

Buntion v. Quarterman, 524 F.3d 664 (5th Cir. 2008) ................................ 2, 17

Buntion v. State, 482 S.W.3d 58 (Tex. Crim. App. 2016) ............................. 2, 14

Carter v. Johnson, 131 F.3d 452 (5th Cir. 1997) .............................................. 20

Chambers v. Bowersox, 157 F.3d 560 (8th Cir. 1998) ...................................... 20

Coleman v. Thompson, 501 U.S. 722 (1991) ............................................... 16, 22

Cullen v. Pinholster, 563 U.S. 170 (2011) ......................................................... 17

Cutter v. Wilkinson, 544 U.S. 709 (2005).......................................................... 17

Duncan v. Cain, 278 F.3d 537 (5th Cir. 2002) ................................................. 22

Edwards v. Carpenter, 529 U.S. 446 (2000) ..................................................... 16

Ex parte Buntion, No. AP-76,236, 2009 WL 3154909 (Tex. Crim. App. 2009)

....................................................................................................................... 13–14

Ex parte Buntion, No. WR-22,548-04, 2017 WL 2464716 (Tex. Crim. App.

2017) ....................................................................................................... 14, 21, 22

Ex parte Gardner, 959 S.W.2d 189 (Tex. Crim. App. 1996, clarified on reh’g

Feb. 4, 1998)) ...................................................................................................... 22

Ex parte Nelson, 137 S.W.3d 666 (Tex. Crim. App. 2004) ......................... 21, 22

Free v. Peters, 50 F.3d 1362 (7th Cir. 1995) ..................................................... 20

Harris v. Reed, 489 U.S. 255 (1989) ............................................................ 20, 21

Hathorn v. Lovorn, 457 U.S. 255 (1982) ........................................................... 22

Johns v. Bowersox, 203 F.3d 538 (8th Cir. 2000) ....................................... 19, 20

Knight v. Florida, 528 U.S. 990, 120 S.Ct. 459 (1999) .............................. 18, 19

Lackey v. Texas, 514 U.S. 1045 (1995) .............................................................. 19

Martinez v. Ryan, 566 U.S. 1 (2012) ................................................................. 16

McCleskey v. Kemp, 481 U.S. 279 (1987) .......................................................... 23

McKenzie v. Day, 57 F.3d 1493 (9th Cir. 1995) ................................................ 20

Meyer v. Holley, 537 U.S. 280 (2003) ................................................................ 17

O’Dell v. Johnson, 131 F.3d 466 (5th Cir. 1997) ........................................ 20, 21

O’Dell v. Netherland, 521 U.S. 151 (1997).................................................. 20, 21

Pennsylvania Dept. of Corr. v. Yeskey, 524 U.S. 206 (1998) ............................ 17

Penry v. Johnson, 532 U.S. 782 (2001) ............................................................. 14

Reed v. Quarterman, 504 F.3d 465 (5th Cir. 2007) .......................................... 21

Richmond v. Lewis, 948 F.2d 1473 (9th Cir. 1990) .......................................... 20

Sexton v. Beaudreaux, 138 S. Ct. 2555 (2018) .................................................. 16

iv

ShisInday v. Quarterman, 511 F.3d 514 (5th Cir. 2007) ................................. 20

Smith v. Black, 970 F.2d 1383, 1386 (5th Cir. 1992) ....................................... 22

Smith v. Collins, 977 F. 2d 951, 955 (5th Cir. 1992) ....................................... 21

Smith v. Mahoney, 611 F.3d 978 (9th Cir. 2010) ....................................... 19, 20

Stafford v. Ward, 59 F.3d 1025 (10th Cir. 1995) .............................................. 20

Teague v. Lane, 489 U.S. 288, 310 (1989) ................................................... 20–21

Thompson v. Sec’y for Dep’t of Corr., 517 F.3d 1279 (11th Cir. 2008) ............ 20

Wainwright v. Sykes, 433 U.S. 72 (1977) .......................................................... 22

White v. Johnson, 79 F.3d 432 (5th Cir. 1996) ................................................. 21

Williams v. Illinois, 399 U.S. 235 (1970) .......................................................... 23

Statutes

28 U.S.C. § 1254 ................................................................................................... 2

28 U.S.C. § 2254 ........................................................................................... 15, 16

Sup. Ct. R. 10 ..................................................................................................... 15

v

BRIEF IN OPPOSTION

Petitioner Carl Wayne Buntion murdered a Houston police officer in cold

blood and has pursued his right to appeal and collateral review for thirty years,

during which time he successfully obtained a resentencing hearing in 2012,

approximately twenty years after he was sentenced to death in 1991.

Buntion claims that an inmate’s right to be free from cruel and unusual

punishment under the Eighth Amendment is violated when s/he is subjected

to a lengthy stay on death row. He also asserts that, in violation of the Eighth

Amendment, Texas arbitrarily applies the death penalty by failing to focus on

the egregiousness of the crime; rather, Buntion alleges that the assessment of

the death penalty is primarily based on geography, and that he would have

been able to develop mitigating evidence that would have resulted in a

sentence of life, had he been tried in another state.

But this petition is a poor vehicle to decide these issues because both are

raised in a procedurally improper manner. The Fifth Circuit correctly found

his first issue to be procedurally defaulted, and Buntion did not present his

second issue to either the district court or to the court of appeals. And in each

case, his arguments cannot be reconciled with this Court’s precedent. The

petition should be denied.

1

STATEMENT OF JURISDICTION

The Court has jurisdiction under 28 U.S.C. § 1254(1).

STATEMENT OF THE CASE

I.

Facts of the Crime

The Fifth Circuit entered the following summary of the facts presented

at Buntion’s trial:

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 v. Lumpkin, 982 F.3d 945, 947 (5th Cir. 2020).

II.

Punishment Evidence from Re-sentencing

A.

The State’s case for future dangerousness

At Buntion’s resentencing hearing, the State presented thirty witnesses

to testify to the facts of the crime, along with additional aggravating evidence

2

surrounding the commission of the offense. It also presented evidence

regarding Buntion’s lack of remorse, extensive criminal record, and threats of

violence.

1.

Buntion’s lack of remorse

The State presented evidence of Buntion’s conduct immediately after his

arrest, which suggested a lack of remorse. Buntion 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 State also

presented evidence suggesting an ongoing lack of remorse. During a 2009

recorded interview with a television reporter, Buntion stated that his

murdering Officer Irby was justified because the officer spread his legs and

assumed a combat stance. Buntion also stated that if he were faced with the

same situation today, he would do it again.

2.

Buntion’s extensive criminal record and violent

threats

The State also presented evidence that 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 murdered Officer Irby just over a month after he was

3

released to parole while serving a sentence for the offense of sexual assault of

a child.

In addition, Buntion committed unadjudicated extraneous offenses and

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

corrections officer found a twelve-inch knife under Buntion’s mattress during

a routine inspection. Approximately a week before the instant offense, Buntion

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

he would rather kill than go back to prison. While in jail awaiting trial 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.

The State presented additional evidence indicating that Buntion’s

character had not changed during his time in prison. In July 2011, Buntion

stated in a letter to his brother, Bobby, that 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.” In an August 2011 letter,

Buntion advised Bobby that if the district attorney questioned Bobby about

Bobby’s criminal record, Bobby should just say that the district attorney “made

[Bobby] what [he was]” by sending him 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.”.

4

B.

Buntion’s mitigation case and rebuttal of the State’s case

for future dangerousness

The defense presented a robust case to secure favorable answers to the

special issues. Buntion’s counsel called eight witnesses and read into evidence

the prior testimony of three other witnesses. The witnesses testified to

Buntion’s troubled childhood, to his good behavior and religiosity in prison,

and to the low likelihood of his violence while in prison.

1.

Evidence of Buntion’s troubled childhood

The defense first called Bobby Joe Buntion (Bobby), Buntion’s younger

brother. Bobby testified that Buntion’s twin brother was killed by the police in

1971. He described his and Buntion’s parents’ background, stating that neither

parent received much education and that their mother married their father

when she was about fifteen years old. The family moved to Houston when

Buntion was about eight years old and lived in a bad area of town. In Houston,

their father worked as a mechanic and often required Bobby and Buntion to

work for him. Bobby and Buntion were never encouraged to attend school, and

Buntion left school after the sixth or seventh grade.

Bobby further testified their father was an alcoholic and a gambler, who

abused their mother, them, and animals. Bobby described one such incident in

which his father beat his mother with a beer bottle, knocking her teeth out.

Bobby testified that the neighbors feared his father and therefore never tried

5

to intervene during this abuse. Bobby and Buntion tried to intervene on

occasion. Bobby stated that he once stabbed his father and threatened to kill

him if he continued to abuse his mother. But the abuse never stopped.

Bobby told the jury about specific instances in which he and Buntion

suffered physical abuse at the hands of their father. Bobby testified that his

father broke his arm in five places when he was nine years old and broke

Buntion’s wrist by hitting him with a baseball bat when Buntion was eleven

or twelve. Bobby also told the jury that, at age fifteen, he witnessed his father

murder a man over a dispute concerning a car repair bill, and that his father

had sex with the family’s pet dog and pet pig.

Regarding his own background, Bobby testified that he spent twenty to

twenty-five years in prison with multiple criminal convictions before he was

released in 2002. He admitted that he had killed two or three men but testified

that he subsequently became religious. Bobby then told the jury that he did

not consider Buntion to be a violent person.

2.

Evidence of Buntion’s character and good behavior

in prison

S.O. Woods, former director and chairman of classifications at the Texas

Department of Criminal Justice (TDCJ), summarized the prison records for the

sixty-eight-year-old Buntion, who had been imprisoned for over thirty-seven

years. Woods testified that, prior to going to death row for his 1991 capital

6

murder conviction, Buntion had been in general population, where he was

loosely supervised and allowed some freedom to walk around to jobs,

commissary, and other areas and activities within the prison. Woods testified

that, aside from receiving a disciplinary infraction for possession of a weapon,

Buntion had received only a few minor infractions while he was in general

population. Woods testified that, after being convicted in 1991, Buntion was

placed on death row in the Ellis Unit. Woods testified that during his time on

death row, Buntion had only three minor disciplinary infractions: one for

creating a disturbance by refusing to be strip searched; the second was for

possession of contraband, namely two towels and four pairs of shorts; and the

third was for engaging in a fight without a weapon. Woods testified that, while

Buntion was on death row in the Ellis Unit, he volunteered and was qualified

for a program called “work capable,” in which he was allowed to go to a job

assignment in the garment factory on a daily basis. Woods also testified that,

for some of the time Buntion was on death row in the Ellis Unit, he would have

shared a cell with another inmate.

Woods testified that Buntion was moved to the Polunsky Unit in 2000.

While Buntion was in the Polunsky Unit, he received no disciplinary

infractions. Woods reported that Buntion’s reputation was that he was not

really a high escape risk, was not assaultive to staff or other inmates, and was

7

generally not a problem. Woods noted that, since 1999, Buntion had not

received any write ups on death row.

Woods testified that, if Buntion were to receive a life sentence, he would

not be housed in general population because he had been confirmed by TDCJ’s

Security Threat Office to be a member of the Aryan Brotherhood of Texas,

which would mean that he would be placed in administrative segregation.

Woods testified that administrative segregation was almost identical to death

row, and at Buntion’s age, he would likely serve the rest of his life in

administrative segregation. Woods testified that, although reneging his

membership in the Aryan Brotherhood could allow Buntion to be removed from

administrative segregation, it was unlikely.

Bobby Joe Blanton, TDCJ correctional officer, testified that he had

almost daily contact with Buntion while he was housed in the Polunsky Unit.

Blanton testified that Buntion was quiet, never gave anyone any trouble, was

never mean or disrespectful, never cussed him out, never threatened, and had

never been found with contraband by Blanton. Blanton testified that he had

never found letters directing somebody to hurt anybody else or attempting to

bribe a guard. Blanton testified that it was still possible to get in trouble on

death row, as shown by Brian Davis, who had thrown feces on guards,

threatened guards many times, had contraband in his cell, and Aryan

Brotherhood related materials. Blanton testified that he had nothing bad to

8

say about Buntion, as he had never seen him act up or found anything

inappropriate in his cell.

William Lee Griffin, TDCJ training sergeant, testified that he worked on

death row from 2000 to 2005 and that, although he does not know Buntion

personally and although the officers tended to know who the troublemakers

were, he had no knowledge of any write-ups or disciplinaries for Buntion.

Captain Virgil Miller, TDCJ captain and Disciplinary Hearing Officer (DHO),

also testified that, during his five years on death row and one year as DHO, he

had no personal knowledge of any allegations of rule violations against

Buntion. Captain Miller testified that, although he knew Buntion’s name, no

one had ever told him to watch out for Buntion.

Defense counsel read into evidence the transcripts of the 1991 testimony

of witnesses Helen Smith, Gary Stretcher, and Jerry Jordan. Helen Smith,

former prison guard in the Hobby Unit, testified that she met Buntion because

he was the baker in the food service department where she was working, and

she never saw him do anything violent, he was always polite, and he never got

out of line with her. Gary Stretcher, Dean of Continuing Education at

McClennan Community College in Waco, testified that he counseled Buntion

through an instructional program started in the Spring of 1990. Stretcher

testified that Buntion approached him about becoming an optometrist, so

Stretcher examined his educational record but determined that, although he

9

“had the grades to be considered,” he would be ineligible to become licensed.

Stretcher testified that Buntion enrolled in three college level courses and

achieved a Grade Point Average of 3.65 and that Buntion was polite and

seemed interested in his education. Jerry Jordan was one of Buntion’s teachers

in the McClennan Community College program and testified that Buntion

regularly attended class, was very well prepared, seemed extremely interested

in the subjects, and was never rude, belligerent, violent, or disruptive. Buntion

received a B grade in his class.

3.

Evidence of Buntion’s religiosity in prison

The defense also presented two witnesses who testified as to Buntion’s

religious activities in prison. The first, Earl Hicks, testified that he regularly

visited the Harris County Jail to minister to Buntion and other inmates. Hicks

testified that Buntion said he was a “born again believer” and knew Jesus

Christ as his Savior. Hicks testified that Buntion expressed interest in Hicks’s

life and that they would discuss issues in Buntion’s life as well. Hicks testified

that he and Buntion would pray together. Hicks considered Buntion to be a

friend.

The final defense witness Zeke Young was the founder of Less Than the

Least Ministries, a prison ministry that ministered to twenty-six prisons and

broadcasted a radio show to thirty-five prisons. Young testified that Buntion

reached out to him after hearing their radio show, and Young was first

10

introduced to death row through Buntion. Young visited Buntion a handful of

times but exchanged correspondence with Buntion. Young described Buntion

as one of the friendliest guys he had ever met and that he had never been

anything but kind to Young. Young testified that Buntion seemed genuinely

interested in the word of the Lord and had asked Young to be present at his

execution.

4.

Evidence suggesting future dangerousness unlikely

Finally, defense counsel called Dr. Mark Dr. Vigen, a psychologist with

experience in the prison systems. Dr. Vigen testified that, although he had

never interviewed or spoken with Buntion, there was a “unique quality” about

Buntion’s case—it was twenty-two years after the offense was committed, and

he had spent twenty of those years on death row, so the jury had “a working

test period” before them. Dr. Vigen testified that, in reviewing Buntion’s

records, he had multiple arrests and multiple convictions for acts done in the

free world, but while Buntion had been in prison, “his disciplinary actions have

been fairly sparse.” Indeed, prior to death row, Buntion had only received

disciplinary actions for smoking, interfering with count, failure to obey an

order, using fake identification at the county jail, and possession of a weapon—

all of which, except for the last, were fairly minor. Dr. Vigen noted that,

although Buntion had possessed the weapon, there was no indication that he

used it before confiscated.

11

Dr. Vigen then testified about studies he had participated in and

conducted which addressed future dangerousness. Dr. Vigen testified that his

studies showed that former death row inmates do not commit violations of the

rules in any greater degree than other inmates who have been convicted of

capital murder but received a life sentence. Dr. Vigen also testified to

numerous factors that have an impact on future dangerousness. Dr. Vigen said

that “the number one” factor is age. Dr. Vigen testified that age is inversely

related to violent behaviors in that as men get older they are less likely to be

engaged in disciplinary problems or acts of violence. A second factor related to

future violence is gang activity, which was associated with increased assaultive

conduct, although Dr. Vigen said that conflicting information existed about

that correlation. Dr. Vigen testified that, third, education had a strong inverse

relationship with assaultive prison misconduct. Fourth, Dr. Vigen testified

that having a prior prison sentence was associated with increased risk of

violence, especially if the prior sentence was for violent behavior. Finally, Dr.

Vigen testified that the last two factors were psychological disturbances, which

increase the probability of future violence, and the type of sentence being

served, which showed mixed results.

Dr. Vigen then testified about how these factors applied to Buntion. He

testified that “aging out” was the idea that most violent crime is perpetrated

by people 18 to 26 years old, and it is unusual for an older person to commit a

12

violent crime, so as a person ages, the probability of them being violent lessens.

Dr. Vigen testified that Buntion was 68 years old at the time of trial, and the

studies had “borne out in that for the last 22 years no violent acts, no

disciplinary write-ups for any violent acts.” Regarding education, Dr. Vigen

testified that Buntion was average range of intelligence, with an eighth or

ninth grade education but also having taken some college-level courses. Dr.

Vigen also agreed that the use of a gun in the commission of the offense is a

better predictor of nonviolent behavior in the future.

Dr. Vigen testified that, based on his review of the records, the in-court

testimony, his training, and the studies he has written and read, he had formed

an opinion as to whether there was a probability that Buntion would constitute

a continuing threat to society. Dr. Vigen concluded that “prison works for Carl

Buntion” and “has been very effective at controlling Carl Buntion, such that

he’s not assaulted or hurt anybody else.”

III.

Procedural History

Buntion was convicted of capital murder in 1991. Buntion filed another

state habeas application in 2009 after he failed to obtain relief on direct appeal

and in state and federal habeas proceedings. Ex parte Buntion, No. AP-76,236,

2009 WL 3154909 (Tex. Crim. App. 2009) (per curiam). This time, the Texas

Court of Criminal Appeals (CCA) granted the application. Id. The CCA found

that the jury instructions at Buntion’s trial provided an insufficient vehicle for

13

the jury to consider his mitigation evidence during the sentencing phase. Id.

at *2 (citing Penry v. Johnson, 532 U.S. 782 (2001)). The CCA remanded the

case for the trial court to conduct a new punishment hearing, id., which the

trial court held in February 2012. See Ex parte Buntion, No. WR-22,548-04,

2017 WL 2464716 (Tex. Crim. App. 2017) (per curiam).

Upon recommendation from the jury at Buntion’s resentencing hearing,

the trial court reimposed the death penalty. Id. The CCA affirmed Buntion’s

conviction and sentence on direct appeal. Buntion v. State, 482 S.W.3d 58 (Tex.

Crim. App. 2016). While his appeal was pending, Buntion filed a state habeas

application raising twelve claims. Buntion, 2017 WL 2464716 at *1. The CCA

denied seven claims on the merits and dismissed five claims due to Buntion’s

failure to raise those claims on direct appeal. Id. at *1–2. Buntion then filed a

federal habeas petition raising seven claims which were denied by the district

court. Buntion v. Davis, No. 4:17-CV-2683 (S.D. Tex. Mar. 5, 2020). The district

court further denied a certificate of appealability (COA). Id. The Fifth Circuit

later denied Buntion’s COA, as well. Buntion, 982 F.3d at 953.

REASONS TO DENY THE PETITION

I.

Buntion Fails to Justify a Grant of Writ of Certiorari.

At the outset, Buntion fails to provide justification for granting a writ of

certiorari. He does not allege a circuit split. He relies primarily upon dissenting

opinions to support his issues, as well as statistics from Connecticut and Texas

14

in support of his second issue. But this Court’s precedent provides clear

answers to the questions he poses. Buntion does not demonstrate the type of

conflict that warrants review, see Sup. Ct. R. 10(a)–(c), therefore this Court

should deny Buntion’s petition. Alternatively, Buntion’s petition is not worthy

of certiorari for the reasons discussed below.

II.

Bunton’s Petition Is Not Worthy of Certiorari Review because He

Failed to Properly Present His Questions to the Highest State

Court and the Lower Courts.

This case would be a poor vehicle to address the questions Buntion

presents to this Court because (1) he failed to present Question One to the state

court—that the death penalty violates the Eighth Amendment when an inmate

has experienced a delay between sentencing and execution—and (2) he failed

to present Question Two to the lower courts—that the death penalty is imposed

arbitrarily due to geography and a lack of emphasis on the egregiousness of

the crime.

A.

The Fifth Circuit Properly Held that Question One Is

Procedurally Defaulted.

Buntion did not present the CCA with the issue of whether the Eighth

Amendment prohibits the execution of an inmate who has been held on death

row for a lengthy duration of time. See Buntion, 982 F.3d at 952. His claim is

therefore unexhausted and unreviewable in federal habeas. Id. (citing 28

U.S.C. § 2254(b); Cullen v. Pinholster, 563 U.S. 170, 182 (2011)).

15

This Court has repeatedly held that “principles of comity and federalism”

prevent petitioners from obtaining federal habeas relief based on arguments

not presented in state court. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).

In Edwards, for example, the Court held that a basis for “cause” to escape a

procedural default and achieve de novo review in federal court must first be

presented to state courts. Id. at 451–52. Thus, cause itself may be procedurally

defaulted. Id.1 And in Sexton v. Beaudreaux, the Court rejected a petitioner’s

attempt to satisfy § 2254(d)(1) and achieve de novo review with “arguments . .

. never even made in his state habeas petition.” Beaudreaux, 138 S. Ct. 2555,

2560 (2018) (per curiam). Namely, “the States’ interest in correcting their own

mistakes is respected in all federal habeas cases.” Edwards, 529 U.S. at 453

(quoting Coleman v. Thompson, 501 U.S. 722, 732 (1991)).

In failing to raise in state court the issue that he presents in Question

One, Buntion has deprived the highest court in Texas of the opportunity to

address his complaint. See Buntion, 982 F.3d at 952 (Buntion’s claim is

“unexhausted and unreviewable”). Even now, Buntion makes no argument to

save his claim from procedural default, effectively conceding default and the

bar against review of his claim. Because of this default, the federal courts may

1 The Court has recognized a narrow exception to this rule for certain ineffective-assistance-

of-trial-counsel claims that were not raised at all in state habeas proceedings, which is not at

issue here. See Martinez v. Ryan, 566 U.S. 1, 17 (2012).

16

not consider the complaint Buntion presents in Question One, and the Court

should not grant certiorari.

B.

The Court Should Not Grant Certiorari because Buntion

Did Not Raise Question Two in the Courts Below.

In the courts below, Buntion asserted that the death penalty was

imposed arbitrarily because the jury’s assessment of future dangerousness is

based on “unreliable speculation.” Buntion v. Davis, No. 4:17-cv-02683, ECF

No. 4 at 92–93; see generally, id. at 92–102. He did not raise a claim based on

the arbitrariness of the death penalty as applied in Texas under the Eighth

Amendment, and made no mention of geography purportedly affecting the

imposition of the death penalty, or that there is a lack of emphasis placed on

the “egregiousness of the crime.” Pet. for Cert. at 18–19. His inadequate

presentation of this claim in the lower courts precludes consideration of the

claim on certiorari review. Meyer v. Holley, 537 U.S. 280, 292 (2003) (“But in

the absence of consideration of that matter by the Court of Appeals, we shall

not consider it.”); Pennsylvania Dept. of Corr. v. Yeskey, 524 U.S. 206, 212–13

(1998) (“Where issues are neither raised before nor considered by the Court of

Appeals, this Court will not ordinarily consider them.”). Given that this Court

has stated its role is “a court of review, not of first view,” Buntion’s Question

Two should not be considered. Cutter v. Wilkinson, 544 U.S. 709, 718, n.7

(2005).

17

III.

The Court Should Deny Certiorari on Question One because The

Fifth Circuit’s Alternative Ruling Recognizes the Unbroken Line

of Circuit and Court Precedent.

In the alternative to default, the Fifth Circuit stated that the claim

presented in Question One “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.’ ” Buntion, 982 F.3d at 952–53 (citing

Knight v. Florida, 528 U.S. 990, 120 S.Ct. 459 (1999) (mem.) (Thomas, J.,

concurring in the denial of certiorari)).

Here, Buntion has pursued appeals, state habeas relief, and federal

habeas relief over the past thirty years. This is not to say that an inmate

sentenced to death row should not seek relief related to his conviction or

sentencing. But, in asserting that the State has delayed his execution, Buntion

ignores that he actively contributed to the delay in his execution.

The Fifth Circuit also addressed Buntion’s citation to dissenting opinions

in support of his complaint that a lengthy delay between sentencing and

execution is in violation of the Eighth Amendment: “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” the constitution

and Court precedent do not stand for the proposition that a defendant can

18

“avail himself of the panoply of appellate and collateral procedures” and then

complain of delay. Buntion, 982 F.3d at 953 (citing Knight, 120 S.Ct. at 459).

And Buntion does not allege a circuit split on the question of whether a

delayed execution violates the Eighth Amendment, often called a “Lackey

claim” based upon this Court’s ruling in Lackey v. Texas, 514 U.S. 1045 (1995).

There, the Court denied a petition for writ of certiorari that alleged a

seventeen-year confinement on death row was a violation of Lackey’s Eighth

Amendment rights. And it appears that both state and federal courts have long

agreed no such violation exists. See Ruiz v. Davis, 850 F.3d 225, 229 n.10 (5th

Cir. 2017) (citing Knight, 120 S.Ct. at 461 (Thomas, J., concurring)

([recognizing state courts have rejected argument]); Stafford v. Ward, 59 F.3d

1025, 1028 (10th Cir. 1995) (“We conclude that Appellant has failed to show

that executing him after fifteen years on death row, during which time he faced

at least seven execution dates, would constitute cruel and unusual

punishment.”); Johns v. Bowersox, 203 F.3d 538, 547 (8th Cir. 2000) (holding

that, even if petitioner’s Lackey claim were not barred, “[a]bsent evidence that

the delay was caused intentionally to prolong the defendants time on death

row, we [have] held that it [does] not even begin to approach a constitutional

violation”); Smith v. Mahoney, 611 F.3d 978, 998 (9th Cir. 2010) (holding, in

the context of AEDPA review, that “the Supreme Court has never held that

execution after a long tenure on death row is cruel and unusual punishment”));

19

Thompson v. Sec’y for Dep’t of Corr., 517 F.3d 1279, 1284 (11th Cir. 2008)

(“Numerous other federal and state courts have rejected Lackey claims.”)

(citing, e.g., Allen v. Ornoski, 435 F.3d 946, 959 (9th Cir. 2006) (citing cases);

Chambers v. Bowersox, 157 F.3d 560, 568, 570 (8th Cir. 1998) (noting that

death row delays do not constitute cruel and unusual punishment because

delay results from the “desire of our courts, state and federal, to get it right, to

explore . . . any argument that might save someone’s life”)); Harris v. Reed, 489

U.S. 255 (1989) (twenty-four years on death row); ShisInday v. Quarterman,

511 F.3d 514, 526 (5th Cir. 2007) (twenty-five years); O’Dell v. Johnson, 131

F.3d 452, 466 (5th Cir. 1997) (fourteen years); Free v. Peters, 50 F.3d 1362 (7th

Cir. 1995) (twenty years); Johns, 203 F.3d at 547 (fifteen years); Smith, 611

F.3d at 998 (twenty-five years); McKenzie v. Day, 57 F.3d 1493, 1494 (9th Cir.

1995) (twenty years); Richmond v. Lewis, 948 F.2d 1473, 1492 (9th Cir. 1990)

(sixteen years); Stafford v. Ward, 59 F.3d 1025, 1028 (10th Cir. 1995) (fifteen

years).

Given this long, unbroken line of precedent,2 this Court should deny

certiorari on Buntion’s Question One.

2 Buntion’s claim is also barred by the nonretroactivity principles of Teague v. Lane, 489 U.S.

288, 310 (1989); see also O’Dell v. Netherland, 521 U.S. 151, 156 (1997). Here, the consequence

of holding that a lengthy delay between sentencing and execution would result in the

overturning or commutation of a defendant’s death penalty sentence. Such a ruling would

effectively ignore comity and respect for state courts. Buntion does not appear to debate

Teague’s application to his claim, as he did not pursue here his argument that his claim is

not Teague-barred. Buntion, No. 20-70004, Application for Certificate of Appealability with

20

IV.

Buntion’s Question Two Is Not Worthy of Review because It Is

Procedurally Barred from Federal Review.

In the alternative to denying certiorari because Buntion’s Question Two

was not presented to the lower courts, the Court should deny certiorari because

the CCA dismissed Buntion’s claim on procedural grounds. More specifically,

the highest state court for Texas found the claim to be barred because Buntion

had failed to raise 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)).

Buntion fails to excuse his default, and certiorari review is inappropriate, as

shown below.

A federal court may not consider the merits of a habeas claim if a state

court has denied relief due to a procedural default. Sawyer, 505 U.S. at 338;

Ellis v. Lynaugh, 873 F.2d 830, 837–38 (5th Cir. 1989). The state court opinion

must contain a “plain statement” that its decision rests on adequate and

independent state grounds. Reed, 489 U.S. at 262; Smith v. Collins, 977 F. 2d

951, 955 (5th Cir. 1992). Only procedural rules that are firmly established and

regularly followed by state courts can prevent habeas review of federal

Brief in Support, at 40–41; see also Buntion, No. 4:17-CV-2683, ECF No. 26 at 37 (“The

Supreme Court has never held that the Eighth Amendment imposes a duty to execute a death

sentence expeditiously. The non-retroactivity principle from Teague prevents this Court from

creating that law.”) (citing Reed v. Quarterman, 504 F.3d 465, 488 (5th Cir. 2007); Lackey, 83

F.3d at 117; White v. Johnson, 79 F.3d 432, 439-40 (5th Cir. 1996)). Admittedly, the Fifth

Circuit did not address the district court’s imposition of the Teague-bar, see Buntion, 982 F.3d

945, but Buntion could have addressed the issue notwithstanding Fifth Circuit’s silence.

21

constitutional rights. Hathorn v. Lovorn, 457 U.S. 255, 262–63 (1982); Smith

v. Black, 970 F.2d 1383, 1386 (5th Cir. 1992).

The CCA has held that record-based claims not raised on direct appeal

will not be considered in habeas proceedings (in Texas, this is known as a

Gardner bar). Nelson, 137 S.W.3d at 557 & n.5 (citing Ex parte Gardner, 959

S.W.2d 189, 191 (Tex. Crim. App. 1996, clarified on reh’g Feb. 4, 1998)). The

Fifth Circuit recognizes that the Gardner bar sets forth an adequate state

ground capable of barring federal habeas review. See Wainwright v. Sykes, 433

U.S. 72, 87–88 (1977); Duncan v. Cain, 278 F.3d 537, 541 (5th Cir. 2002).

Here, the CCA held that it would “not review the merits of these habeas

claims[, including Buntion’s Eighth Amendment claim,] because [Buntion]

failed to raise them on direct appeal.” Ex parte Buntion, 2017 WL 2464716 at

*1. Because the dismissal of Buntion’s claim was based upon an adequate and

independent state procedural rule, his claim is procedurally barred unless he

can demonstrate cause and prejudice or a miscarriage of justice. Coleman, 501

U.S. at 750. But Buntion has failed to allege or show cause and prejudice, or

that he has suffered a miscarriage of justice.

Because Buntion procedurally defaulted his claim as presented in

Question Two, and he fails to establish he can overcome the bar against federal

habeas review of that claim, Question Two is not worthy of review by the Court.

22

V.

Alternatively, Buntion’s Question Two Is without Merit.

Alternatively, the claim presented in Buntion’s Question Two is without

merit. Buntion appears to suggest that it is constitutionally intolerable that

some death-eligible defendants are subjected to the possible imposition of

capital punishment, while others are not. But the Court has rejected the

argument that the Eighth Amendment limits prosecutorial discretion

regarding whether the seek the death penalty. See McCleskey v. Kemp, 481

U.S. 279, 306–07 (1987). Further, the Court has never held that geographical

differences in the imposition of the death penalty violates the Constitution. See

Williams v. Illinois, 399 U.S. 235, 240 (1970) (“The Constitution permits

qualitative differences in meting out punishment and there is no requirement

that two persons convicted of the same offense receive identical sentences.”);

see also Allen v. Stephens, 805 F.3d 617, 629 (5th Cir. 2015) (“[N]o Supreme

Court case has held that the Constitution prohibits geographically disparate

application

of

the

death

penalty

due

to

varying

resources

across

jurisdictions.”), abrogated on other grounds by Ayestas v. Davis, 138 S. Ct. 1080

(2018).

As to Buntion’s suggestion that there is a lack of emphasis placed on the

egregiousness of the crime in the juror’s recommendation to assess the death

penalty, the sole support upon which Buntion rests his claim is a Connecticut

study of the imposition of the death penalty—not Texas. He thus fails to

23

provide any support for his claim that Texas’s sentencing scheme related to

consideration of the egregiousness of a crime, as applied, violates the Eighth

Amendment.

Furthermore, Buntion fails to demonstrate that the jury at re-sentencing

in 2012 failed to consider or appropriately weigh the egregiousness of his crime.

Again, Buntion was a passenger in a vehicle that Officer Irby stopped for a

traffic violation. He chose not to follow Officer Irby’s directive to stay in the

car. He chose to grab and hold a gun and shoot Officer Irby in the forehead. He

chose to shoot Officer Irby twice more after Officer Irby had fallen to the

ground. Buntion’s actions show his unabated contempt for lawful authority—

evident not only in murdering Officer Irby, but also in his 1965 conviction of

“assault to murder” a peace officer. These heinous acts show his utter disregard

for that authority, and the span of time between his 1965 conviction for

extreme violence towards a police officer and the murder of Officer Irby in 1990

show his inability to—or deliberate decision not to—reform. All of this was

presented to the jury at Buntion’s re-sentencing hearing.

Because there is no merit to Buntion’s Question Two, the Court should

not expend its resources in reviewing it.

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be

denied.

24

Respectfully submitted,

Ken Paxton

Attorney General of Texas

Brent Webster

First Assistant Attorney General

Josh Reno

Deputy Attorney General

for Criminal Justice

Edward L. Marshall

Chief, Criminal Appeals Division

s/ Cara Hanna

CARA HANNA

Assistant Attorney General

Criminal Appeals Division

P.O. Box 12548, Capitol Station

Austin, Texas 78711

Tel: (512) 936-1800

Fax: (512) 320-8132

e-mail: cara.hanna@oag.texas.gov

Counsel for Respondent

25