Petition for Writ of Certiorari — Ramiro Felix Gonzales, Petitioner v. Texas

No. _________

IN THE

Supreme Court of the United States

________________________________

RAMIRO FELIX GONZALES,

Petitioner,

v.

STATE OF TEXAS,

Respondent.

________________________________

On Petition for a Writ of Certiorari to the

Court of Criminal Appeals of Texas

________________________________

PETITION FOR A WRIT OF CERTIORARI

________________________________

RAOUL D. SCHONEMANN*

Counsel of Record

THEA J. POSEL

UNIVERSITY OF TEXAS SCHOOL OF LAW

727 East Dean Keeton Street

Austin, Texas 78722

(512) 232-9391

rschonemann@law.utexas.edu

Counsel for Petitioner

CAPITAL CASE

QUESTIONS PRESENTED

Before a defendant may be sentenced to death in Texas, a unanimous jury must

find beyond a reasonable doubt that “there is a probability that [he] will commit

criminal acts of violence that would constitute a continuing threat to society.” Tex.

Code Crim. Pro. 37.071 §1(b)(1).

Petitioner Ramiro Gonzales was 18 years and 71 days old when he committed

the offense for which he was sentenced to die. At trial, the State presented expert

psychiatric testimony to establish Petitioner’s future dangerousness. The expert’s

opinion relied on an erroneous diagnosis of antisocial personality disorder and falsely

inflated recidivism rates. The expert now acknowledges that his trial diagnosis and

testimony were wrong, that the statistical evidence he put before the jury was false,

and that Petitioner in fact “does not pose a threat of future danger to society.”

An otherwise constitutionally sound death sentence may violate the Eighth

and Fourteenth Amendments if based in part on “materially inaccurate” evidence.

Johnson v. Mississippi, 486 U.S. 578, 590 (1988). Notwithstanding, the Texas Court

of Criminal Appeals categorically refuses to address Johnson error pertaining to

evidence introduced by the State and relating to Texas’s future dangerousness special

issue because that jury finding “is made at the time of trial and is not properly

reevaluated on habeas.”

This case presents the following questions:

Where a State conditions a death sentence on a jury’s unanimous finding

beyond a reasonable doubt that “there is a probability that the

defendant would commit criminal acts of violence that would constitute

a continuing threat to society,”

(1) Does the recantation by the State’s expert witness of his trial

testimony as to the defendant’s “future dangerousness” give

rise to a cognizable constitutional claim under the Eighth and

Fourteenth Amendments that the defendant’s death sentence

is insufficiently reliable to be allowed to stand?

(2) If such a recantation raises either a cognizable Eighth or

Fourteenth Amendment claim, does a state court err in

refusing to entertain them based on its own misunderstanding

of the claim being advanced?

ii

PARTIES TO THE PROCEEDINGS BELOW

Ramiro Felix Gonzales, petitioner here, was the habeas applicant below.

The State of Texas, respondent here, was the respondent below.

LIST OF RELATED DECISIONS

Texas Criminal Proceedings

State v. Gonzales, Cause No. 04-02-09091-CR (38th Dist.

Ct. Medina Co., Tex.) (state trial court proceeding)

Ex parte Gonzales, No. WR-70,969-03 (Tex. Crim. App.

July 11, 2022) (unpublished) (state post-conviction habeas

corpus proceeding)

Ex parte Gonzales, No. WR-70,969-03 (Tex. Crim. App.

June 30, 2023) (unpublished) (state post-conviction

habeas corpus proceeding)

iii

TABLE OF CONTENTS

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

PARTIES TO THE PROCEEDINGS BELOW ............................................................ iii

LIST OF RELATED DECISIONS................................................................................ iii

APPENDICES................................................................................................................ v

TABLE OF AUTHORITIES ......................................................................................... vi

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINIONS AND ORDERS BELOW............................................................................. 1

JURISDICTION............................................................................................................. 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................... 1

STATEMENT OF THE CASE....................................................................................... 4

A. Evidence at trial .............................................................................................. 4

B. Direct review.................................................................................................... 7

C. Prior state and federal post-conviction review ............................................... 8

REASONS FOR GRANTING THE PETITION .......................................................... 10

I.

This Court Should Make Clear That a State Expert’s Recantation of His Own

Trial Testimony on the “Crucial” Issue of Future Dangerousness Presents a

Cognizable Constitutional Claim for Post-Conviction Review. ......................... 11

A. Under Johnson v. Mississippi, the Eighth Amendment is violated where

a jury is allowed to consider materially inaccurate evidence of an invalid

prior conviction in support of a death eligibility determination. ................ 12

B. While reviewing courts consistently apply Johnson in factually similar

cases concerning invalidated prior conviction evidence, lower courts are

in need of guidance to clarify that the rule of Johnson applies to other

types of materially inaccurate evidence. ...................................................... 13

iv

C. This Court should make clear that the rule of Johnson applies whenever

a post-trial development casts doubt on the reliability of evidence that

the State presented to prove a fact necessary to establish the defendant’s

eligibility, as a matter of law, to be sentenced to death. ............................. 16

D. This case demands this Court’s intervention to clarify the scope of the

Eighth Amendment rule announced in Johnson. ........................................ 18

CONCLUSION............................................................................................................. 22

APPENDICES

Appendix A

Ex parte Gonzales, No. WR-70,969-03 (Tex. Crim. App. July 11, 2022) ................... 1a

Appendix B

Ex parte Gonzales, No. WR-70,969-03 (Tex. Crim. App. June 14, 2023) .................. 5a

Appendix C

Tex. Code Crim. Pro. art. 37.071 .............................................................................. 10a

Appendix D

Report of Dr. Edward Gripon, MD ............................................................................ 14a

Appendix E

State District Court Findings of Fact and Conclusions of Law

(454th Dist. Ct., Medina County, Tex.) .................................................................... 27a

v

TABLE OF AUTHORITIES

Cases

Federal

Allen v. United States,

2011 WL 13182909 (E.D. Mo. Aug. 29, 2011) ................................................... 14

Amrine v. Bowersox,

238 F.3d 1023 (8th Cir. 2001) ............................................................................. 13

Buntion v. Lumpkin,

982 F.3d 945 (5th Cir. 2020) ......................................................................... 14, 15

California v. Ramos,

463 U.S 992 (1983) ........................................................................................ 11, 18

Evans v. Muncy,

498 U.S. 927 (1990) ............................................................................................ 19

Florida v. Burr,

496 U.S. 914 (1990) ............................................................................................ 17

Ford v. Wainwright,

477 U.S. 399 (1986) ............................................................................................. 16

Gardner v. Florida,

430 U.S. 349, 359 (1977) .................................................................................... 13

Gonzales v. Stephens,

606 Fed.Appx. 767 (5th Cir. 2015) ........................................................................ 8

Gonzales v. Stephens,

577 U.S. 1032 (2015) ............................................................................................. 8

Hernandez v. Johnson,

213 F.3d 243 (5th Cir. 2000) ................................................................... 13, 14, 20

Herrera v. Collins,

506 U.S. 390 (1993) ............................................................................................ 13

Johnson v. Lumpkin,

74 F.4th 334 (5th Cir. 2023)................................................................................ 15

Johnson v. Mississippi,

486 U.S. 578 (1988) ......................................................................................passim

Madison v. Alabama,

586 U.S. ___,139 S.Ct. 718 (2019)....................................................................... 16

Panetti v. Quarterman,

551 U.S. 930 (2007) ............................................................................................. 16

vi

Satterwhite v. Texas,

486 U.S. 249 (1988) ............................................................................................. 10

Woodson v. North Carolina,

428 U.S. 280 (1976) ............................................................................................. 11

State

Ex parte Gonzales, 2012 WL 2424176 (Tex. Crim. App. June 27, 2012) (not

designated for publication) ................................................................................... 8

Mosley v. State,

983 S.W.2d 249 (Tex. Crim. App. 1998) ............................................................. 10

Constitutional Provisions

U.S. Const. amend. VIII ................................................................................................ 1

U.S. Const. amend. XIV ................................................................................................. 1

Statutes

Tex. Code Crim. Pro. art. 37.071 ......................................................................... ii, 2, 10

Rules

Sup. Ct. R. 13 ................................................................................................................. 1

Sup. Ct. R. 30 ................................................................................................................. 1

Other Authorities

American Psychiatric Association, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL

DISORDERS, FIFTH EDITION (“DSM-V”) (2013) .................................................... 19

American Psychiatric Association, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL

DISORDERS, FOURTH EDITION (“DSM-IV”) (1994) ............................................... 19

Mariel Alper & Matthew R. Durose, Recidivism of sex offenders released from state

prison: A 9-year follow-up (2005-14), BUREAU OF JUSTICE STATISTICS (2019) ... 19

Ira Mark Ellman & Tara Ellman, “Frightening and High”: The Supreme Court’s

Crucial Mistake About Sex Offender Recidivism Rates, 30 CONST. COMM. 495

(2015) ................................................................................................................... 20

vii

David Feige, When Junk Science About Sex Offenders Infects the Supreme Court,

THE NEW YORK TIMES (Sept. 12, 2017), at

https://www.nytimes.com/2017/09/12/opinion/when-junk-science-about-sexoffenders-infects -the-supreme-court.html ......................................................... 20

R. Karl Hanson, et al. Reductions in Risk Based on Time Offense-Free in the

Community: Once a Sexual Offender, Not Always a Sexual Offender, 24 PSYCH.,

PUB. POL., & L. 46 (2017) ................................................................................... 19

Tamara Lave, Inevitable Recidivism—The Origin and Centrality of an Urban

Legend. 34 INT.’L J. L. & PSYCH. 185 (2011) ......................................................... 2

viii

PETITION FOR A WRIT OF CERTIORARI

Ramiro Felix Gonzales respectfully petitions this Court for a writ of certiorari

to review the judgment of the Court of Criminal Appeals of Texas (TCCA) in his

case.

OPINIONS AND ORDERS BELOW

The TCCA’s decisions denying and dismissing Petitioner’s post-conviction

habeas application are unpublished and reprinted in full in the Appendix at pages

1a–9a.

JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 1257(a). The TCCA entered its

judgment denying state postconviction habeas corpus relief on June 30, 2023. On

August 30, 2023, Justice Alito extended the time to file this petition until October 12,

2023. This petition is timely pursuant to Supreme Court Rules 13.3 and 30.1.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Eighth Amendment to the United States Constitution, U.S. Const. amend.

VIII, provides:

Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.

The Fourteenth Amendment to the United States Constitution, U.S. Const.

amend. XIV, provides:

No State shall … deprive any person of life, liberty, or property without

due process of law....

1

The Texas statute that governs capital trial and sentencing procedure, Tex.

Code. Crim. Pro. art. 37.071, is reproduced due to its length in Appendix C.

INTRODUCTION

Petitioner Ramiro Gonzales was just 71 days past his eighteenth birthday in

2001 when he committed the offense for which he was sentenced to die. At his 2006

trial, the prosecution urged Petitioner’s jury to find a probability of future

dangerousness based on an erroneous diagnosis of antisocial personality disorder,

evidence of demonstrably false recidivism rates, and a history of impulsive acts by a

traumatized and immature teenager.

But since then, the State’s psychiatric expert, Dr. Edward Gripon, has

effectively recanted his trial testimony in every material respect. Dr. Gripon now

acknowledges that his trial testimony that Petitioner has antisocial personality

disorder, which effectively dictated a future of violent misbehavior, was erroneous.

Moreover, it is now widely recognized that the recidivism rates to which Dr. Gripon

had testified at trial—“in the eighty percentile or higher”—were not merely false, but

“a demonstrable urban legend.” 1 Indeed, Dr. Gripon himself now recognizes that

Petitioner “does not pose a threat of future danger to society.”

Petitioner alleged in the state post-conviction proceedings below that the

State’s presentation of expert testimony to obtain a death sentence that is now

disavowed and repudiated by the expert himself violates the Eighth Amendment

1 Tamara Lave, Inevitable Recidivism—The Origin and Centrality of an Urban Legend. 34

INT.’L J. L. & PSYCH. 185, 194 (2011).

2

requirement of heightened reliability in capital sentencing proceedings, because “the

jury was allowed to consider evidence that has been revealed to be materially

inaccurate.” Johnson, 486 U.S. at 590. Petitioner maintained that while Johnson was

concerned with evidence of a subsequently invalidated prior conviction, its rationale

applies to other contexts where evidence admitted at the penalty phase of a capital

trial was later revealed to be materially inaccurate.

The Texas Court of Criminal Appeals refused to consider or review Petitioner’s

claim. Misconstruing Petitioner’s claim to be a challenge to the jury’s determination

of future dangerousness itself instead of to the veracity of Dr. Gripon’s testimony

offered in support of that determination at trial, the Court stated:

In this claim, [Petitioner] asserts that the State’s trial expert, Dr.

Edward Gripon, gave false testimony at trial because he has now

reevaluated [Petitioner] and determined that he is not a future danger.

But the determination of future dangerousness is made at the time of

trial and is not properly reevaluated on habeas. To the extent

[Petitioner’s] first claim is such a reevaluation, the trial court shall not

review it.

Appendix A at 3a (TCCA order dated June 11, 2022).

This Court has recognized that, even after a constitutionally valid death

sentence has been imposed in a procedurally fair trial, new evidence may become

available which demonstrates that the information underlying the death sentence

was “materially inaccurate.” Johnson v. Mississippi, 486 U.S. 578, 590 (1988). In such

cases, the death sentence violates the Eighth and Fourteenth Amendments.

Petitioner’s

death

sentence—predicated

on

a

future

dangerousness

determination shaped by a misdiagnosis, false statistics, and entirely invented

3

aggravating evidence—is a violation of the Eighth and Fourteenth Amendments to

the United States Constitution and cannot stand.

STATEMENT OF THE CASE

A. Evidence at trial

On October 7, 2002, Petitioner Ramiro Gonzales, then 19 years old, confessed

to the kidnapping, rape, and murder of Bridget Townsend, who had been missing for

more than eighteen months, and led authorities to her remains on the Middle Verde

Ranch in rural Medina County, Texas. See Reporter’s Record (hereinafter, “RR”) Vol.

35 at 61, 74. At the guilt-innocence phase of his 2006 trial, the defense did not contest

Petitioner’s guilt. RR Vol. 37 at 118. After hearing his confession and testimony from

law enforcement officers, the jury convicted Petitioner of capital murder. RR Vol. 38

at 54.

At the penalty phase, the State introduced evidence from several jailers to

testify about incidents that occurred while Petitioner was awaiting trial. RR Vol. 39

at 14-149, RR Vol. 40 at 3-49. A victim of another kidnapping and sexual assault for

which Petitioner had previously accepted responsibility also testified about her

ordeal. RR Vol. 40 at 74-81.

To conclude its penalty presentation, the State presented extensive expert

testimony by psychiatrist Dr. Edward Gripon. RR Vol. 41 at 50-122. Dr. Gripon told

the jury that Petitioner “certainly” and “clearly” had antisocial personality disorder,

Id. at 70, 92, which he described as the psychiatric diagnosis for individuals who were

formerly referred to as “psychopaths” and “sociopaths.” Id. at 68-69. He told the jurors

that people with antisocial personality disorder, like Petitioner, “have a lack of social

4

conscience, with no life plan and little remorse,” and “that’s just the way they are.”

Id. at 69.

Dr. Gripon also offered testimony about recidivism rates for sex offenders that

is now widely recognized within the psychiatric community, as well as by Dr. Gripon

himself, as false and without any empirical support. 2 Thus, Dr. Gripon testified that

persons who commit sexual assault “have an extremely high rate of … recidivism.”

RR Vol. 41 at 84; see also id. at 86 (sexual assault “frequently” is “not something that

… a person does one time and then quits. There is a very high incidence of continued

reoffending in those cases.”). Specifically, Dr. Gripon asserted that the recidivism rate

for sexual assault offenders was “above the fifty-one percentile,” id. at 75, and that

“lots of data” supported a recidivism rate “in the eighty percentile or better.” Id. at

88. Dr. Gripon added that “sexual assault has the highest continuum of recidivism”

when looking at “types of significant, aggressive, violent behavior.” Id. at 87. In

response to the prosecutor’s question about what type of offender presents “the worst

prognosis for recovery,” Dr. Gripon responded that “people who have sexual related

offenses have the most difficulty with treatment, and they have an extremely high

rate of recurrence.” Id. at 87-88.

Ultimately, Dr. Gripon told the jury Petitioner “would pose a risk to continue

to commit threats or acts of violence” “wherever he goes,” even in a carceral setting.

RR Vol. 41 at 66, 94. The State rested its case after eliciting Dr. Gripon’s testimony.

Id. at 122.

2 See infra, n. 11.

5

In closing argument, the State relied heavily on Dr. Gripon’s testimony to

assert that Petitioner would present a continuing threat of future dangerousness:

Best evidence of dangerousness? Past behavior. Dr. Gripon told you that.

He’s the psychiatrist. He’s the one that came in here, not with an

agenda; to tell you the true facts. And he said in all his many, many

years of practice that is the best predictor of future dangerousness is

your past behavior…. And Dr. Gripon looked at everything and says,

yes, he will.

RR Vol. 43 at 54-55. Dr. Gripon’s assessment that the offense had a “psychosexual

sadistic component” allowed the State to argue that Petitioner simply made the choice

“to continue on with evil” because “what he did to Bridget … made him hungry for it.

It made him want more.” Id. at 68. Petitioner simply “liked the feeling of degrading

and over-powering and humiliating people and forcing them to do unthinkable things,

and the sheer pleasure of it.” Id. at 68-69. In its rebuttal closing argument, the State

again repeatedly invoked Dr. Gripon’s testimony to urge the jury to return answers

to the special issue questions that would require a death sentence:

This man is the worst of the worst. He’s a sexual predator and a

murderer and he’ll never stop, and the reason we know that, there’s

three things I want to hit you with, and then I’m done.

Dr. Gripon told you that. [Dr. Gripon] talked about several factors that

were significant to him: the escalating violence that he saw in a very

short time frame; the wanton disregard for human life; his morbid

fascination with death and dead bodies; the sadistic, following Bridget

Townsend’s murder, going back to the scene. [Dr. Gripon] said it’s hard

to stop this behavior because it’s pleasurable to him.

[…] He’s a sexual predator who has the highest recidivism rate, the

hardest to treat, with the absolutely worst prognosis of any other kind

of offender. He denies he offended, which makes it even worse because

if you don’t take responsibility for your actions, it’s almost impossible to

treat you. And he won’t. To this day, he won’t take responsibility for

what he did to Babo Teich.

6

[…] And the last thing [Dr. Gripon] said is people have told him during

[the] course of his career that killing someone the second time is easier

than the first time. And [Dr. Gripon] said much easier. He’s not going to

be stopped on his own; someone will have to stop him.

Id. at 69-70.

During penalty phase deliberations, the jury sent out several notes that

indicate that the jurors were deliberating over issues related to Petitioner’s

propensity for future dangerousness. For example, the jury sent a note asking

whether the sentences for Petitioner’s prior guilty plea case would be served

concurrently or consecutively with whatever sentence they returned in the capital

case. As the trial court commented: “They want to know what’s going to happen.

Obviously, they’re looking at a life sentence; otherwise, why would they care?” RR

Vol. 43 at 75. Jurors also asked whether Petitioner would ever obtain trustee

privileges while incarcerated. Id. at 76.

On September 6, 2006, the jury returned an affirmative answer to Special

Issue Number One, finding that “there is a probability that the Defendant would

commit criminal acts of violence that constitute a continuing threat to society,” and a

negative answer to Special Issue Number Two, finding that there was not “a sufficient

mitigating circumstance or circumstances to warrant that a sentence of life

imprisonment rather than a death sentence be imposed.” RR 43 at 77; CR at 103334. Petitioner was sentenced to death.

B. Direct review

On June 17, 2009, a divided Texas Court of Criminal Appeals affirmed the

conviction and sentence. Gonzales v. State, 2009 WL 1684699 (Tex. Crim. App. June

7

17, 2009) (not designated for publication), cert. denied, Gonzales v. Texas, 559 U.S.

942 (2010).

C. Prior state and federal post-conviction review

Petitioner thereafter sought post-conviction habeas corpus relief in state and

federal court. See Ex parte Gonzales, 2012 WL 2424176 (Tex. Crim. App. June 27,

2012) (not designated for publication). Due to grossly deficient representation by

counsel appointed to represent him in his initial state post-conviction habeas corpus

proceedings, prior post-conviction review in both state and federal court was

abbreviated and superficial. See Gonzales v. Stephens, 606 Fed.Appx. 767 (5th Cir.

2015), cert. denied by Gonzales v. Stephens, 577 U.S. 1032 (2015).

Just a few months after federal proceedings concluded in May 2020, the trial

court signed an order scheduling Petitioner for execution on April 20, 2021. That date

was subsequently modified to November 17, 2021, and then to July 13, 2022.

On June 30, 2022, Petitioner filed a subsequent application for writ of habeas

corpus in state court raising a constitutional claim that the State violated the Eighth

Amendment and Due Process protections by presenting false and materially

inaccurate expert testimony on the issue of future dangerousness.

On July 11, 2022, the Texas Court of Criminal Appeals entered an order

authorizing further proceedings on a discrete part of his claim that the State

presented false and materially unreliable testimony by Dr. Gripon at the penalty

phase. Appendix A at 3a. Specifically, the Court of Criminal Appeals found that

Petitioner had made “at least a prima face showing” that Dr. Gripon’s trial testimony

about sex offender recidivism rates was false and that this testimony “could have

8

affected the jury’s answer to the future dangerousness question at punishment.” Id.

However, with respect to the remaining allegations related to Dr. Gripon’s trial

testimony, the Court of Criminal Appeals asserted that “the determination of future

dangerousness is made at the time of trial and is not properly reevaluated on habeas;”

accordingly, “[t]o the extent Applicant’s first claim is such a reevaluation, the trial

court shall not review it.” Id.

On remand, without holding a hearing or taking any additional evidence, a

visiting judge signed the State’s proposed findings of fact and conclusions of law in

their entirety and recommended summary denial of relief. On June 14, 2023, the

Texas Court of Criminal Appeals adopted the lower court’s recommendation and

denied relief.

This petition follows.

9

REASONS FOR GRANTING THE PETITION

Petitioner Ramiro Gonzales was sentenced to death by a jury that was allowed

to consider evidence and testimony by the State’s “future dangerousness” expert that

the expert himself has repudiated as materially erroneous. In Johnson v. Mississippi

this Court recognized that the Eighth Amendment’s requirement of heightened

reliability in capital sentencing is violated when “the jury was allowed to consider

evidence that has been revealed to be materially inaccurate.” Johnson v. Mississippi,

486 U.S. 578, 590 (1988). While the Court’s decision in Johnson concerned evidence

of a subsequently invalidated prior conviction, the rationale of this rule logically

extends to cases in which the State’s expert himself attests to the inaccuracy of his

trial

testimony

and

diagnosis

related

to

a

capital

defendant’s

“future

dangerousness”—a determination that is a legal prerequisite to a death sentence in

Texas. 3

Yet the Texas Court of Criminal Appeals refused to recognize a cognizable

constitutional claim under these circumstances. Ex parte Gonzales, No. WR-70,96903, at 3 (Tex. Crim. App. June 30, 2023). Instead, the Texas Court of Criminal

Appeals simply asserted, with no reference to the false testimony claim, that

3 See Satterwhite v. Texas, 486 U.S. 249, 258 (1988) (“A Texas court can sentence a defendant

to death only if the prosecution convinces the jury, beyond a reasonable doubt, that ‘there is

a probability that the defendant would commit criminal acts of violence that would constitute

a continuing threat to society.”) (quoting Tex. Code Proc. Ann., Art. 37.071(b)(2)); see also

Mosley v. State, 983 S.W.2d 249, 263 n.18 (Tex. Crim. App. 1998) (“Th[e] [death-]eligibility

requirement is satisfied in Texas by aggravating factors contained within the elements of the

offense, the future dangerousness special issue, and sometimes, other ‘non-Penry' special

issues. Without findings on those particular aggravating factors, a death sentence cannot be

imposed.”).

10

Petitioner was seeking to have the future dangerousness finding itself “reevaluated

on habeas,” which the court deemed “not proper[].” Ex parte Gonzales, No. WR70,969-03, at 3 (Tex. Crim. App. June 30, 2023).

This Court should grant certiorari to affirm that the Eighth Amendment rule

in Johnson extends to any case in which a sentencing jury was allowed to consider

evidence offered in support of a death-eligibility determination, like Dr. Gripon’s

testimony, that has been revealed to be materially inaccurate.

I. This Court Should Make Clear That a State Expert’s Recantation of

His Own Trial Testimony on the “Crucial” Issue of Future

Dangerousness Presents a Cognizable Constitutional Claim for PostConviction Review.

Since this Court allowed the resumption of capital punishment by the states,

it has mandated that capital trial proceedings must be reviewed with a heightened

level of scrutiny because, in contrast to any other sentencing decision juries are called

upon to make, “death is different.” Woodson v. North Carolina, 428 U.S. 280, 305

(1976). Therefore, “there is a corresponding difference in the need for reliability in

the determination that death is the appropriate punishment in a specific case.” Id. In

practice, the requirement of heightened reliability in the determination of a death

sentence has led this Court to require “a correspondingly greater degree of scrutiny

in the capital sentencing determination.” California v. Ramos, 463 U.S. 992, 998–99

(1983). On this principle, this Court has remanded cases to state courts when they

have initially refused to review petitioners’ claims of unconstitutional trial court

proceedings.

11

A. Under Johnson v. Mississippi, the Eighth Amendment is violated

where a jury is allowed to consider materially inaccurate evidence of

an invalid prior conviction in support of a death eligibility

determination.

In Johnson v. Mississippi, this Court held that a death sentence is invalid if

the jury relies upon evidence of a prior conviction that has been subsequently

invalidated. 486 U.S. 578, 590 (1988). The Eighth Amendment promise of heightened

reliability in the determination that death is the appropriate punishment mandates

that where a jury has been allowed to consider “materially inaccurate” evidence, the

resulting death sentence must be reversed. Id. at 585, 590. Under Johnson, there is

no reason to presume that heightened reliability only applies to materially inaccurate

evidence in the form of an invalidated prior conviction.

In Johnson, the petitioner was convicted of murder and sentenced to death on

the basis of three aggravating circumstances, one of which was that he had

“previously been convicted of a felony involving the use or threat of violence to the

person of another.” 486 U.S. at 581. Johnson had been convicted of a felony in New

York nineteen years earlier. Id. at 580. During closing argument, the prosecutor

repeatedly referred to this prior conviction as a reason to sentence Johnson to death.

Id. at 581. After Johnson was sentenced to death, his attorneys successfully

challenged to the prior conviction, which was then vacated by the New York Court of

Appeals. Id. at 582. Noting both the “special ‘need for reliability in the determination

that death is the appropriate punishment” and the “possibility that the jury’s belief

that petitioner had been convicted of a prior felony would be “decisive” in the “choice

between a life sentence and a death sentence,” this Court vacated the death sentence

12

and remanded for resentencing. Id. at 586 (quoting Gardner v. Florida, 430 U.S. 349,

359 (1977) (plurality opinion). Even though there was “no question that the prior

conviction was valid at the time of Johnson’s sentencing,” 4 this Court held that

Johnson’s death sentence was inconsistent with the Eighth Amendment’s prohibition

against cruel and unusual punishment because “the jury was allowed to consider

evidence that has been revealed to be materially inaccurate.” Id. at 590.

B. While reviewing courts consistently apply Johnson in factually

similar cases concerning invalidated prior conviction evidence, lower

courts are in need of guidance to clarify that the rule of Johnson

applies to other types of materially inaccurate evidence.

Since Johnson, state and lower federal courts have disagreed about whether

Johnson applies to challenges to evidence presented in capital sentencing proceedings

other than prior convictions. In Hernandez v. Johnson, the Fifth Circuit noted that

most cases have “relied upon Johnson to determine whether evidence of a criminal

conviction or conduct may be properly admitted at sentencing.” 213 F.3d 243, 252 (5th

Cir. 2000).

Yet other state and federal courts have recognized the applicability of the

Johnson rule to other types of unreliable evidence. For example, in Amrine v.

Bowersox, 238 F.3d 1023 (8th Cir. 2001), the petitioner contended that the State

violated the Eighth Amendment under Johnson by presenting factually inaccurate

testimony by a prison warden about the deterrent value of a death sentence at the

penalty phase of a capital trial. Id. at 1030, 1032. While the Eighth Circuit rejected

the petitioner’s claim that the warden’s testimony was “demonstrably false,” it did

4 Herrera v. Collins, 506 U.S. 390, 432 (1993) (Blackmun, J., dissenting).

13

not conclude that Johnson solely applies to invalidated prior convictions. Id. at 1032.

Similarly, in Allen v. United States, 2011 WL 13182909 (E.D. Mo. Aug. 29, 2011), the

petitioner contended that a report issued by the National Academy of Sciences (NAS)

after he was convicted demonstrated that ballistics and fingerprint evidence used

against him at trial were unreliable, in violation of his Fifth and Eighth Amendment

rights. While the district court concluded that the NAS report failed to establish “that

the conclusions of the experts in this case were wrong,” the court assessed the claim

under Johnson and did not contend that Johnson was limited to evidence of prior

convictions. Id. at *3. And, in Hernandez, supra, the Fifth Circuit noted that while

the petitioner’s claim did “not parallel the situation addressed in Johnson nor the

vast majority of cases that have relied upon Johnson” and “[i]nstead of a materially

inaccurate criminal conviction, [concerned] purportedly materially inaccurate

testimony,”

the

court

proceeded

to

analyze

the

claim

under

Johnson

“[n]otwithstanding the difference.” Hernandez, 213 F.3d at 252, 253-54.

In two relatively recent cases, the Fifth Circuit has rejected challenges to the

accuracy of a Texas jury’s determination of future dangerousness under Johnson, see

Buntion v. Lumpkin, 982 F.3d 945 (5th Cir. 2020), but Petitioner’s claim is different.

Unlike Buntion, Petitioner does not challenge the factual accuracy of the jury’s

determination in light of his good behavior in prison. Cf. Buntion, 982 F. 3d at 95051 (rejecting petitioner’s claim that “his behavior in prison disproves the jury’s

dangerousness prediction as a matter of fact” and noting explicitly that the petitioner

there did “not challenge the sufficiency of the evidence supporting the jury’s

14

probabilistic assessment.”)(emphasis supplied); 5 Johnson v. Lumpkin, 74 F.4th 334

(5th Cir. 2023) (“Johnson II”) (same). Instead, this case concerns evidence and

testimony introduced by the State in support of the jury’s determination that was

materially inaccurate at the time it was presented yet only revealed to be so post-trial.

It is clear that Petitioner’s death sentence, made legally permissible only by

the jury’s determination of future dangerousness, “is predicated, in part,” on false

statistics, an invalid diagnosis, and expert opinion “that [are] not valid now, and

[were] not valid when [they were offered].” Johnson, 486 U.S. at 585 n.6. Unlike

Buntion and Johnson II, the materially inaccurate evidence is the very evidence on

which the jury’s “probabilistic determination” rested. Cf. Buntion, 982 F.3d at 951

(noting petitioner specifically “does not challenge … the evidence supporting the

jury’s probabilistic assessment.”).

This case thus presents a logical application of the Johnson rule—that the

Eighth Amendment cannot tolerate a death verdict where “the jury was allowed to

consider evidence that has been revealed to be materially inaccurate” in support of

an eligibility determination. Johnson, 486 U.S. at 590.

In fact, the Fifth Circuit in Buntion specifically contrasted the claim that a jury

determination of future dangerousness could be rendered factually inaccurate by later

behavior in prison against the situation present in both Johnson and in this case:

5

Buntion does not challenge the sufficiency of the evidence supporting the jury’s

probabilistic assessment. Cf. Johnson, 486 U.S. at 585 n.6, 108 S.Ct. 1981 (“[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 ....”).

982 F.3d at 951 (emphasis supplied).

15

C. This Court should make clear that the rule of Johnson applies

whenever a post-trial development casts doubt on the reliability of

evidence that the State presented to prove a fact necessary to

establish the defendant’s eligibility, as a matter of law, to be sentenced

to death.

Since 1976, this Court has crafted a set of constitutional rules that govern the

imposition of the death penalty against defendants, evincing concern with both the

reliability of proceedings and ultimate determinations that the punishment is

appropriate. But these rules are not limited to their specific facts; instead, Eighth

Amendment standards share “key justifications” that require reviewing courts to

“look beyond” a specific set of facts to the “downstream consequence” that offends the

Constitution. Madison v. Alabama, 586 U.S. ___,139 S.Ct. 718, 729 (2019). For

example, in the context of execution competency, the Eighth Amendment requires

that a petitioner comprehend the fact of his execution and the reasons therefore, 6 but

the “standard has no interest in establishing any precise cause” of incompetency—

indeed, the rule is clear that specific causes “are all the same under Panetti as long

as they produce the requisite lack of comprehension.” Id. at 728.

Where this Court’s opinions announcing and refining these Constitutional

rules may refer to a certain set of facts or circumstances presented, such “references

are no more than a predictable byproduct of the [] cases’ facts.” Madison, 139 S.Ct. at

728. The key justifications Johnson offered for the Eighth Amendment rule apply

with equal force to materially inaccurate expert testimony and evidence offered in

6 See Ford v. Wainwright, 477 U.S. 399 (1986); Panetti v. Quarterman, 551 U.S. 930, 959

(2007).

16

support of a defendant’s future dangerousness that introduces erroneous diagnoses

and false statistical evidence to a sentencing jury. And the downstream

consequence—a death sentence infected with materially inaccurate testimony—is the

same. 7 When a judgment, as here, is based so significantly on false statistical

evidence and flawed expert testimony that it undermines the fundamental fairness

of the proceedings, the basic principles of heightened reliability and due process are

violated.

But the Texas court here refused to recognize a cognizable claim, let alone to

properly apply Johnson. This Court should summarily vacate the judgment below,

and remand this case for further proceedings consistent with Johnson’s rule, which

properly applies whenever materially inaccurate evidence of any kind is used to

support an aggravating circumstance or legal prerequisite for death eligibility,

regardless of the idiosyncratic structure of the Texas sentencing scheme. In the

alternative, should this Court believe the application of Johnson in such

circumstances is insufficiently clear, the petition should be granted to clarify the

scope Johnson’s rule.

7 See Florida v. Burr, 496 U.S. 914, 918-19 (1990) (Stevens, J., dissenting) (explaining that

the “paramount importance of reliability in the determination that death is the appropriate

punishment” was implicated in Johnson “by a post-trial development that cast doubt on the

reliability of evidence that played a critical role in the sentencing decision. Johnson made

clear, what was apparent before, … that a death sentence cannot stand when it is based on

evidence that is materially inaccurate”) (citations omitted).

17

D. This case demands this Court’s intervention to clarify the scope of the

Eighth Amendment rule announced in Johnson.

Under Texas law, a determination of “future dangerousness” is a necessary

element of death-eligibility because, as the Texas Court of Criminal Appeals has

recognized, unless the jury makes an affirmative finding of future dangerousness “a

death sentence cannot be imposed.” 8

This case thus presents an unconstitutional procedural deficiency begging this

Court’s attention: Petitioner has shown that the penalty phase testimony of Dr.

Gripon was materially inaccurate in numerous ways, 9 but the Texas Court of

Criminal Appeals refused to allow review—not on procedural grounds, but by instead

declaring that Petitioner did not present a cognizable constitutional claim for relief.

But the heightened reliability doctrine mandates greater scrutiny of evidence on

which the determination of future dangerousness is based, particularly when such

evidence or testimony is acknowledged to be false. The refusal of the state court to

allow review of this evidence falls short of the “greater scrutiny” this Court has

required in capital cases. California v. Ramos, 463 U.S. at 998–999. And the key

justifications for Johnson’s rule—concern with the reliability of death sentences and

the evidence on which eligibility determinations are based—call for application of

that constitutional rule here.

Dr. Gripon, the only expert witness who testified that Petitioner would pose a

risk of future dangerousness, introduced evidence to the jury that he now

8 See supra n. 5.

9 See infra n. 10, 11, 13.

18

acknowledges was erroneous. According to Dr. Gripon, Petitioner does not in fact

have antisocial personality disorder, and his trial testimony to the contrary was in

error. 10 But the jury was allowed to consider Dr. Gripon’s testimony and opinion,

supported by a false diagnosis and inflated statistics which greatly overexaggerated11

the true threat of recidivism posed by Petitioner. While Dr. Gripon told the jury that

sexual offenses were on “the highest continuum of recidivism” and that “lots of data”

10 Because antisocial personality disorder is an immutable condition and only gets “worse”

over time, it necessarily follows that Petitioner never had antisocial personality disorder.

American Psychiatric Association, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL

DISORDERS, FIFTH EDITION (“DSM-V”) (2013), at 645 (“A personality disorder is an enduring

pattern of inner experience and behavior that deviates markedly from the expectations of the

individual’s culture, is pervasive and inflexible, has an onset in adolescence or early

adulthood, is stable over time, and leads to distress or impairment.”) (emphasis supplied); see

also American Psychiatric Association, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL

DISORDERS, FOURTH EDITION (“DSM-IV”) (1994).

To be clear, Petitioner does not simply argue that the future dangerousness determination

should now be reviewed because Dr. Gripon’s recent assessment rebuts the finding of future

dangerousness at trial. Cf. Evans v. Muncy, 498 U.S. 927, 927-31 (1990) (Marshall, J.,

dissenting). Instead, in this case, Dr. Gripon’s original medical diagnosis and his testimony

introducing false statistics suggesting an astronomical rate of recidivism were materially

false and misled the jury about the prospects that Petitioner would constitute a danger to

others.

11 A recent longitudinal study conducted by the Bureau of Justice Statistics found overall

recidivism rates for sexual offenses to be 7.7%. Mariel Alper & Matthew R. Durose,

Recidivism of sex offenders released from state prison: A 9-year follow-up (2005-14), BUREAU

OF JUSTICE STATISTICS (2019), p. 5. And a prior meta-study comparing 20 different data sets

with follow-up periods between 6 months and 31.5 years found the rate across all 20 studies

to be 18.5%. R. Karl Hanson, et al. Reductions in Risk Based on Time Offense-Free in the

Community: Once a Sexual Offender, Not Always a Sexual Offender, 24 PSYCH., PUB. POL., &

L. 46, 50 (2017). Not a single published study supports a rate of sexual recidivism anywhere

near 51%, let alone above 80%.

19

out there suggested a recidivism rate of “eighty percent[] or higher,” 12 these

assertions have been soundly debunked by scientific research. 13

In the context of a capital sentencing scheme, like Texas, where jurors must

find that a defendant is likely to be a danger in the future as a prerequisite for a

death sentence, such evidence is undoubtedly material.

The scientific community now recognizes the gross inaccuracy of the statistical

evidence presented at trial, and Dr. Gripon himself has recanted not only this aspect

of his testimony but also his opinion that Petitioner would present a danger

“wherever he goes” and his diagnosis of antisocial personality disorder. This false

evidence alone—cloaked in a veneer of expert and statistical validity now entirely

rebuked by its sponsor—gave the jury a sufficient basis to answer special issue

number one in the affirmative. On such a record, a reviewing court cannot be

confident in the reliability of the future dangerousness determination. 14

Without the testimony of Dr. Gripon—and the false diagnosis of antisocial

personality disorder, the false evidence that statistics indicated a recidivism rate of

12 RR Vol. 41 at 87, 88.

13 Ira Mark Ellman & Tara Ellman, “Frightening and High”: The Supreme Court’s Crucial

Mistake About Sex Offender Recidivism Rates, 30 CONST. COMM. 495, 498 (2015) (footnotes

and citations omitted); David Feige, When Junk Science About Sex Offenders Infects the

Supreme Court, (“Junk Science”), THE NEW YORK TIMES (Sept. 12, 2017), at

https://www.nytimes.com/2017/09/12/opinion/when-junk-science-about-sex-offenders-infects

-the-supreme-court.html (describing Professor Ellman’s work tracing the “80%” myth from

Freeman-Longo’s unsupported Psychology Today article through a Department of Justice

manual cited in turn by Solicitor General Ted Olson’s brief in McKune v. Lile).

14 See Hernandez v. Johnson, 213 F.3d 243, 253 (5th Cir. 2000) (acknowledging that neither

this Court nor the Fifth Circuit “has defined ‘materially’ in the context of an Eighth

Amendment violation under Johnson” but applying the materiality standard of Kyles v.

Whitley, 514 U.S. 419 (1995) and requiring a “reasonable probability of a different result”).

20

“eighty percent or higher” 15 for defendants like Petitioner, and the false assertion

that Petitioner would present a danger “wherever he goes”—a reasonable jury could

conclude that Petitioner, just eighteen years and 71 days old at the time of the offense

for which he was sentenced to die, would be sufficiently incapacitated in prison. But

there exists a reasonable probability that the jury was swayed by Dr. Gripon’s

assurance that Petitioner would be a threat “wherever he goes,” including in a prison

setting, 16 in answering special issue number one in the affirmative.

The evidence at issue in this case is materially inaccurate, and the downstream

consequence of its admission is the same as that which this Court found intolerable

in Johnson—the jury that sentenced Petitioner to death was allowed to consider

materially inaccurate information when making the death-eligibility determination

of future dangerousness. This Court should grant certiorari to clarify that the key

justifications of Johnson apply whenever materially inaccurate information is

introduced by the State in support of a death eligibility finding.

15 RR Vol. 41 at 88.

16 Id.

at 94.

21

CONCLUSION

For the foregoing reasons, this Could should summarily vacate the judgment

below and remand for analysis of Petitioner’s Johnson claim consistent with the

Eighth Amendment. Alternatively, the petition for writ of certiorari should be

granted.

Respectfully submitted,

Raoul D. Schonemann

Thea J. Posel

Capital Punishment Clinic

University of Texas School of Law

727 East Dean Keeton Street

Austin, Texas 78705

512-232-9391

rschonemann@law.utexas.edu

tposel@law.utexas.edu

22