Petition for Writ of Certiorari — Buck v. Stephens, 136 S. Ct. 2409 (2016) (No. 15-8049)
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-8049
Supreme Court of the Anited States
Duane Edward Buck,
Petitioner-Appellant
William Stephens, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent-Appellee
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Fifth Circuit
[Beer Court UE
FEB 04 208
OFFICE OF THE CLERK
PETITION FOR WRIT OF CERTIORARI
SHERRILYN LFILL
Director-Counsel
JANAI NELSON
CHRISTINA A. SWARNS
Counsel of Record
JIN HEE LEE
NATASHA M. KORGAONKAR
NATASHA MERLE
NAACP LEGAL DEFENSE &
EDUCATIONAL FUND, INC.
40 Rector Street, 5th Floor
New York, NY 10006
cswarno@naacpldf.org
212-965-2200
February 4, 2016
KATHRYN M. KASE
KATHERINE C. BLACK
TEXAS DEFENDER SERVICE
1927 Blodgett Street
Houston, TX 77004
kateblack@texasdefender ory
718-222-7788
SAMUEL SPITAL
HOLLAND & KNIGHT LLP
31 West 52nd Street
New York, NY 10019
Samue!.Spital@hklaw.com
212-613-3200
Counsel for Petitioner
ALLIANT SRNL TE REIS EEN ITE ELIOT EE DOTTIE LLL IELE EAE ELAS LEILA ALS LEC LOELGINELLOE ADI A
QUESTION PRESENTED
Duane Buck’s death penalty case raises a pressing issue of national
importance: whether and to what extent the criminal justice system tolerates racial
bias and discrimination. Specifically, did the United States Court of Appeals for the
Fifth Circuit impose an improper and unduly burdensome Certificate of
Appealability (COA) standard that contravenes this Court’s precedent and deepens
two circuit splits when it denied Mr. Buck a COA on his motion to reopen the
judgment and obtain merits review of his claim that his trial counsel was
constitutionally ineffective for knowingly presenting an “expert” who testified that
Mr. Buck was more likely to be dangerous in the future because he is Black, where
future dangerousness was both a prerequisite for a death sentence and the central
issue at sentencing?
LIST OF PARTIES
[x] All parties appear in the caption of the case on the cover page.
PAGE
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CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ................... 2
gg EE a LI ENT ET 3
A. ERE TO ee LO ee ETERS 3
ELE a 4
C. Mr. Buck’s State Habeas Proceedings ..0.00.0.000..00000000 000. ooeccoececeeceeveevseseee 7
1 Mr. Buck's Initial Habeas Petition 0000000000... ccccccceseeeeeeee 7
er a TT 8
D. Mr. Buck's Post-Saldafio State and Federal Habeas Proceedings....... 10
1. ESE ALT 10
2. Federal Habeas Proceedings ..0.0000.00.00..........c..ccecececesvseseveeeeeveeeon 10
3. Mr. Buck’s 2013 State Habeas Application and the
A NE ED 13
E. Mr. Buck's Post-Trevino Federal Habeas Proceedings......................... 14
REASONS FOR GRANTING THE WRIT 2.0.00... -ccccccsecececcccececececcererersessseeeees 19
CERTIORARI SHOULD BE GRANTED BECAUSE REASONABLE
. JURISTS COULD UNQUESTIONABLY DEBATE THE
EXTRAORDINARINESS OF THE CIRCUMSTANCES IDENTIFIED
al cpeliheeaiannininedmenienecsnnbnigiiieiidiieasenedi 22
A. The Panel Improperly Sidestepped the COA Process by Denying
Relief Based on its View of the Merits. 2.2.0.0... ococccccccccceceeccneeeenvens 24
B. The Panel Failed to Undertake the Equitable Rule 60(b) Inquiry
Mandated by this Court’s Precedent. ....................ccccccccceeeeceeeeeneneneeeenens 27
C. The Fifth Circuit Disregarded the Special Harm Caused By
Racial Discrimination Infecting the Administration of Justice. .......... 30
ceded hh tattered a 33
Iv
PAGE(S)
CASES:
Ackermann v. United States,
B40 U.S. 193 (1950) .......-...-c-n-ececececeecevesensesensnsenenenensnsnnenensnnnnnsnnnsnannannanannanensanenannnns 18
Adams v. Thaler,
G79 F.3d B12 (Gth Cir. 2012). ............c-cecenceceneenenenenenenensnnsenennnsnnnnanesnanannanannnnannenannns 29
Alba v. Johnson,
No. 00-40194, 2000 WL 1272983 (5th Cir. Aug. 21, 2000) ............---.c-ceeeeeseeeeenennens “
Alba v. Johnson,
No. 4:98-cv-221 (B.D. Tex.) .....--.-----c-sc-eeceevsenecnsssnensensnsnnsnnesnennnnsnenenssnensnnnnsnsnnnnnen 9,11
Blue v. Johnson,
No. 4:99-cv-OOS50, (S.D. Tex.)......-..--c-ecceesceeseecensensnsnsennnnnnnsnnnnsnnnsensnnsnnsennnnnanennnns 9,11
Broxton v. Johnson,
No. H-00-CV-1034, 2001 U.S. Dist. LEXIS 25715 (S.D. Tex. Mar. 28, 2001)........ 10
Buck v. Cockrell,
No. 04-O3065 (SD. Tex.) ......-.--:---sssseseescecensenensenensssnsesenensnssnennennnsennnananneansnnensnsensnnnes 10
Buck v. Dretke,
No. 04-O80G5 (S.D. Tex.) .....-.-------:-c-eceesevecscensnsensnsnensnsessnsnnnnnnnnensnnssnnnnnssnsnsnnnnens 11, 12
Buck v. Stephens,
No. 04-O30G5 (S.D.Tex.), .....-.----c-ccccessoeeecnsenensnsnnenennnnnensnsnnsnsnnnnsnnanansaneanansnannanens 14, 16
Buck v. Stephens,
No. 4:04-cv-O08965 (S.D. Tex).......-...---cc-secscseeeceeenennnnensenennnenannnnennnnnnannnnees 5, 6, 8, 9, 17
Buck v. Thaler,
132 S. Ct. 10BG (DOU) ........-0.--cccecsecescesserersensenenensnnensnsnensnennsnnsnnsnnensnnnsnensnsnnaneneanens 12
Buck v. Thaler,
132 S. Ct. 32 (2011).................--. sasinaneisaneniadagtamnataninancinasimmanainatmaaniniin passim
Buck v. Thaler,
ea I a. atcnsensnsonneetenentenstisenesisnumsnneneandenseunibensaantindeinse 11-12
- Thaler,
ne 12
Buck v. Thaler,
945 F. App'x 923 (Gth Cir. 2009) ........ccesecseeesnssssnseemaneeennnernnnennnneeeennnnene 11, 12
Buck v. Thaler,
Nos. 11-6801 & 11A297 (U.S.)......-.sscosssssssssssssssenseeeeeeeeessssnnunsansnnnnnnnnnnnnnnnnnennnanns 12
Buck v. Thaler,
No. 11-700265 (Gth Cir.) .........--.--ccscsseseeesesssersrnnsnssnnsnenennanennsnansnnanennsnannansannanansananannens 12
Buck v. Thaler,
04-03066 (S.D. Tex.) .......---s-scceseseseesesesnsnensnenssnsnsnennsneensnsnennsnsnnansnanansnnsnansnsnnnns 12, 15
Coleman v. Thompson,
GO1 U.S. 722 (1901) .....---.----s-ceceseseseecneesernsensecnessesnsnsnnnsnnnnnenennanansnannnnansnannananansnenansnes 12
Cox v. Horn,
767 F.Sd 113 (Bd Cir. 2014)................c-cccesseeseeserensenenennnsnsenensnnsnnannnensnnsnnnannnsannnannanes 29
Davis v. Ayala,
136 S. Ct. 2187 (2015) ............-.cccceeceeevceneeneesennssnnensnnnsnnnnsnnenesnnnnsnnnnsananennsnnnnnanees 20, 31
Ex parte Buck,
418 S.W.3d 98 (Tex. Crim. App. 2013),
cert. denied, 134 S. Ct. 2663 (2014) .........---..ccecccoceeseneennennnnnennennnnnnnnnnnenens 7, 13, 15, 28
Ex parte Buck,
No. WR-57,004-02 (Tex. Crim. App.) .....---------:-----:ssssssenenseranennensnnennnnnnennnnanannnnnannens 10
Ex parte Buck, 3
No. WR-57,004-03 (Tex. Crim. App.)......----------::-:sssssssnsnsnsnsnsnnnnnennnnnnensnnananananenanenens 13
Ex parte Medina,
361 S.W.3d 633 (Tex. Crim. App. 201 1) ........----.-::-ss:ssssseseneesnsnennnnnnannnnennnnanenennnnnnanens 7
Garcia v. Johnson,
No. 1:99-cv-00134 (E.D. Tex.) ........-:s-csscssessesessrsnessnsnnnensnnnnsnsnnanennnssnannanansnnanananenennanes 4
Gonzales v. Cockrell,
No. 7:99-cv-O007T2 (W.D. Tex.) .........-:c-:ccsscsecreensensnnsnnsnesnennnennennennennnansnasanennannenannnnnny 10
Gonzalez v. Crosby,
0 UTD, CBG CRUOUD cceenneeesaaecccnnncvvssecccovnvscconcnvssssecsnsnnsnsnsscenonssescsscnsnnssoessnsnesasees 14, 29
Hamilton v. Sec'y, Florida Dep't of Corrections,
Uo eeusisnupneesbbcebusieumisienpsunnenennbnenehaeemnaten 29
Harrington v. Richter
662 U.S. 86 (201 1). sisoreepenshdniiinicdndchis ebbibdseantaiaeendabanttedapietnidnbindaananaencensedeiandsaiienaesiceieiitinnytisdeidiattddl 25
In re Buck,
I a reece tinien ote ialilneaeeentecinemetiateenianandusinnseaiaidatan 12
Jordan v. Fisher,
I erie cnananichuueniibninagsndinnl 17-18, 21, 26
Kelly v. State,
824 S.W.2d 568 (Tex. Crim. App. 1992) ...............ccccccccccccecessseeeceeereeeereeeeceeeeveneneneens 14
Klapprott v. United States,
8 Eee tee eer ae ec ee oan Ne tron 27
Liljeberg v. Health Servs. Acquisition Corp..,
i a tun enmmemmmineiesosamnenenenel 27
Martinez v. Ryan,
ERE a Se eR aC eC TE Ia 13, 14, 28
McCleskey v. Kemp,
i il 31
Miller-El v Dretke,
REESE EEE SAR ee ene AES Ae EN OEE 31
Miller-El v. Cockrell,
ii rental passim
Ramirez v. United States,
I esha nlidcisniebeneeienebiidebbasienieiiohemennadeniate 27, 29
Rose v. Mitchell,
443 U.S. 545 (1979)... .ccccccone. fa ey ES Nn WE etree dnd AE VES Tae 31
Saldafo v. State,
ne Crrennn, Gene, iD TEI... .ccncvcscesssuseosesneessuenseunseveasbonansonsehseneneneenenbes *
Saldajfio v. Texas,
EE RES EERE SE ne eee nN Tee Te RT RE aya TET Ee 32, 33
vii
Saldafio v. Texas,
STII, SIT TTITIIII so scnrniremnsemeinimmnennnnnnanemmmabnninenndiasietnnsneniestnstenmmneneetinet 8
Slack v. McDaniel,
Cr eee POE a aN ND Sn eT 22
Tennard v. Dretke,
a 24, 26
Trevino v. Thaler,
I IIITTTLTTTITII co. _. ccaansiaeianininincnnpeniananesenstinanseasaubersbabbepbnainmpnneipeagesnnete 13
Turner v. Murray,
ee ED cnccnrncescccsnsevccusncceveenscesnaneecensesnanennncscencebeseamesnesenapeeeeennesncanenenes 16, 31
Wiggins v. Smith,
ESE ae eee ne eR Ie FTE a eS NONE EEN 19
STATUTES & OTHER AUTHORITIES:
EE a ee a ae ee oe a ee Ce 2
SR I SO TT os assem ernment eeabiee pemnecasennensebesbeehasuunandsdedinidendiints 2
ETE Ae eS = eae ene aT eR NE eT TET ONT 2
28 U.S.C.
SSI RY AL re I Oe Ne SP RAN AB DNS ot RoE REL e 2
ITT ini insian nia intra ceanasetbiiaesdnaaaieliadini nit bbbdaieepenbntnmmmnemeeneenetiete 22
Tex. Code Crim. Proc. Ann. art. 37.071 § 2 (West 2013) .0...........cccccccccccceeeneneeeneneenees 4-5
I isn oe aad ensinienantnndetiededensdeieenimiinnriaenete 14
James Kimberly, Death Penalties of 6 in Jeopardy: Attorney General
Gives Result of Probe into Race Testimony, Hous. Chron.,
June 10, 2000, at Al. In Texas, the district attorney of the
SF Nee CSTE Eid ENED NG eee
POBt-CONVictION PTOCEEMINGES. ...........cc.ccesesceseereeseerenssessreneeeessnenerenereeenssereennesennnsesensncnne i)
Adam Liptak, A Lawyer Known Best for Losing Capital Cases, N.Y. Times,
May 17, 2010, www.nytimes.com/2010/05/18/us/18bar.html?_r=o. .............ccc000c000e 4
Viii
J. Monahan et al., Rethinking Risk Assessment:
The MacArthur Study of Mental Disorder and Violence (2001) .................6..0000000006 5
J. W. Swanson et al., Violence and Psychiatric Disorder in the Community:
Evidence from the Epidemiologic Catchment Area Surveys,
41 Hosp. & Comm. Paych., 761-770 (1990) ...........ccccceceeccseneeeeeeesenereesnereseneeeenenenennnes 5
Jim Yardley, Racial Bias Found in Six More Capital Cases, N.Y. Times, June 11,
2000, http://www.nytimes.com/2000/06/1 1/us/racial-bias-found-in-six-more-
GIGI cccccccceccscciscsszncecececsosescecnsseseseosecesednnenscsaneesiséovsunisnseenecsssedsanusedueserenceoccsooce 9
INDEX OF APPENDICES
A. Order of the United States Court of Appeals for the Fifth Circuit, Buck v. Thaler,
2015 WL 6874749 (5th Cir. Nov. 6, 2015)
B. Order of the United States Court of Appeals for the Fifth Circuit, Buck v. Thaler,
623 Fed. Appx. 668 (5th Cir. 2015)
C. Order of the United States District Court for the Southern District of Texas
(Houston Division), Buck v. Thaler, No. 04-03965 (S.D.Tex. March 11, 2015)
D. Memorandum and Order of the United States District Court for the Southern
District of Texas (Houston Division), Buck v. Thaler, 04-03965 (S.D.Tex. Aug. 29,
2014)
E. Memorandum and Order of the United States District Court for the Southern
District of Texas (Houston Division), Buck v. Dretke, 04-03965 (S.D. Tex. July 24,
2006)
F Certificate of Appealability Review
PETITION FOR WRIT OF CERTIORARI
Duane Buck respectfully petitions for a writ of certiorari to review the
judgment of the United States Court of Appeals for the Fifth Circuit.
OPINIONS BELOW
The November 6, 2015 opinion of the Court of Appeals denying rehearing en
banc is available at 2015 WL 6874749 (5th Cir., Nov. 6, 2015) and attached as
Appendix A. The August 20, 2015 panel opinion of the Court of Appeals denying
Mr. Buck a COA is reported at 623 F App’x 668 and attached as Appendix B. The
March 11, 2015 Order of the United States District Court for the Southern District
of Texas denying Mr. Buck’s motion to alter or amend that Court's prior judgment is
unreported and attached as Appendix C. The August 29, 2014 Memorandum and
Order of the United States District Court for the Southern District of Texas denying
Mr. Buck’s motion for relief from judgment pursuant to Federal Rule of Civil
Procedure 60(b) is unreported and attached as Appendix D. The July 24, 2006
Memorandum and Order of the United States District Court for the Southern
District of Texas denying Mr. Buck's Petition for Writ of Habeas Corpus is
unreported and attached as Appendix E.
JURISDICTION
The Court of Appeals entered its judgment on November 6, 2015. This Court
has jurisdiction under 28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
This case involves a state criminal defendant’s constitutional rights under
the Sixth, Eighth, and Fourteenth Amendments. The Sixth Amendment provides in
relevant part:
In all criminal prosecutions, the accused shall enjoy the right to .. .
have the assistance of counsel for his defense.
The Eighth Amendment provides:
Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.
The Fourteenth Amendment provides in relevant part:
... mor shall any State .. . deny to any person within its jurisdiction
the equal protection of the laws.
This case also involves the application of 28 U.S.C. § 2253(c), which states:
(1) Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals from
(A) the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State court;
(2) Acertificate of appealability may issue under paragraph (1) only
if the applicant has made a substantial showing of the denial of a
constitutional right.
STATEMENT OF THE CASE
A. Introduction
By any measure, Duane Buck’s death sentence is extraordinary. At
sentencing, his trial attorney presented “bizarre and objectionable” testimony from
a “defense expert” that Mr. Buck was more likely to be dangerous in the future
because he is Black. Buck v. Thaler, 132 S. Ct. 32, 33 (2011) (statement of Alito, J.,
concerning the denial of certiorari). In Texas, future dangerousness is a
prerequisite for a death sentence, and, in Mr. Buck’s case, it was the central
disputed issue at sentencing. Four years after Mr. Buck was sentenced to death,
Texas acknowledged that such race-as-dangerousness testimony is unconstitutional
and undermines not only the integrity of Mr. Buck’s death sentence but also the
integrity of the criminal justice system overall. Texas therefore promised to concede
error and waive its procedural] defenses in Mr. Buck’s case, but it reneged on that
promise. Then, in 2011, a majority of this Court left no doubt that the race-as-
dangerousness evidence presented at Mr. Buck’s sentencing hearing is deeply
troubling. If these plainly extraordinary circumstances—when viewed in
combination with intervening precedent from this Court which, for the first time,
allows federal review of Mr. Buck’s procedurally defaulted ineffective assistance of
counsel (IAC) claim—do not justify relief under Rule 60(b)(6), then that Rule has no
meaning.
Yet, when presented with these extraordinary facts and circumstances, the
Fifth Circuit declared that Mr. Buck “ha[d] not made out even a minimal! showing
that his case is exceptional,” and that his ineffectiveness claim is “unremarkable as
far as LAC claims go.” App. B at 7,9. As a result, the Fifth Circuit not only denied
relief, it concluded that Mr. Buck had not made the threshold showing required to
grant a COA. That conclusion, as Judge Dennis recognized in his dissent from the
denial of rehearing en banc, is wrong under any standard of review; the
circumstances identified by Mr. Buck “describe a situation that is at least debatably
‘extraordinary.” App. A at 6.
B. The Capital Trial Proceedings
In 1996, Duane Buck, an African-American man, was charged with capital
murder in connection with the shooting deaths of Debra Gardner and Kenneth
Butler in Houston, Texas. Mr. Buck was represented at trial by appointed counsel,
Danny Easterling and Jerry Guerinot. Mr. Guerinot has a well-documented history
of inadequate representation of his capitally charged clients: by 2010, “[t}wenty of
Mr. Guerinot’s clients ha[d] been sentenced to death.”! That was then more than
the number of prisoners sentenced to death “in about half of the 35 states that ha[d]
the death penalty.”?
In preparation for Mr. Buck's capital trial, counsel retained a psychologist,
Dr. Walter Quijano, to assess, inter alia, whether Mr. Buck was likely to commit
criminal acts of violence in the future—one of the “special issues” that a Texas jury
must unanimously answer affirmatively before a defendant may be sentenced to
' Adam Liptak, A Lawyer Known Best for Losing Capital Cases, N.Y. Times, May 17, 2010,
www.nytimes.com/2010/05/18/us/18bar.html?_r=o.
2 Id.
we
death. See Tex. Code Crim. Proc. Ann. art. 37.071 § 2 (West 2013). Before trial,
Dr. Quijano informed counsel that he viewed Mr. Buck as more likely to be
dangerous in the future because he is Black. Buck, 132 S. Ct. at 33. Specifically,
Dr. Quijano provided trial counsel with a report that identified the “Statistical
Factors” he deemed relevant to future dangerousness, and the report stated, in no
uncertain terms: “Race. Black. Increased probability.” 3/8/97 Forensic Psychological
Evaluation (“Rep.”) at 7, Buck v. Stephens, No. 4:04-cv-03965 (S.D. Tex. June, 24
2005), ECF No. 5-118, p. 24; Buck, 132 S. Ct. at 33 (Statement of Alito, J.) (quoting
report).
Even though this alleged link between race and future dangerousness had
been proven false,? and notwithstanding the obvious harm that such testimony
would cause Mr. Buck, trial counsel called Dr. Quijano to testify as an expert
witness at Mr. Buck’s sentencing. On direct examination, trial counsel specifically
asked Dr. Quijano to recount the “statistical factors or environmental factors” that
he used to assess the future dangerousness of a person “such as Mr. Buck.”
Sentencing Hr’g. Tr. (“Tr.”) 110:2-7, May 6, 1997, Buck, No. 4:04-cv-03965 (S.D. Tex.
June, 24 2005), ECF No. 6-114, p.3. Dr. Quijano’s answer tracked his report. He
testified that race was among the “statistical factors in deciding whether a person
will or will not constitute a continued danger,” with Blacks and Hispanics more
5 See, e.g., J. W. Swanson et al., Violence and Psychiatric Disorder in the Community: Evidence from
the Epidemiologic Catchment Area Surveys, 41 Hosp. & Comm. Psych., 761-770 (1990) (when
controlling for socioeconomic status, carrelations between race and violence disappear); J. Monahan
et al., Rethinking Risk Assessment: The MacArthur Study of Mental Disorder and Violence (2001)
(same).
likely to be dangerous because they are “over represented in the Criminal Justice
System.” Jd. at 111:1-4, ECF No. 5-114, p.4). At trial counsel's request, and over
the prosecution's objection, Dr. Quijano’s report detailing that opinion was also
admitted into evidence. Jd. at 117:16-118:7, ECF No. 5-114, p. 10-11.
On cross-examination, the tria] prosecutor exploited and compounded defense
counsel's error by asking Dr. Quijano to reiterate his false and discriminatory
“expert” opinion that Mr. Buck’s race increased his likelihood of future
dangerousness. Specifically, the prosecutor asked Dr. Quijano whether “the race
factor, black, increases the future dangerousness for various complicated reasons.”
Dr. Quijano answered, “Yes.” Jd. at 160:8-15, ECF No. 5-115, p. 17. In closing
argument, the prosecutor urged the jury to rely on Dr. Quijano to find that
Mr. Buck was likely to commit criminal acts of violence in the future and that he
was therefore eligible for a death sentence. Jd. at 260:13-21 (ECF No. 5-117, p. 37).
During deliberations, the jury sent out three notes before deciding the
appropriate sentence. In their third and final note, the jury requested the expert
reports that had been submitted into evidence, including Dr. Quijano’s report. See
Jury Requests, Buck, No. 4:04-cv-03965 (S.D. Tex. June, 24 2005), ECF No. 5-9, p. 4.
After receiving these reports, the jury found that Mr. Buck was likely to be
dangerous in the future, and he was sentenced to death.
C. Mr. Buck’s State Habeas Proceedings
1. Mr. Buck’s Initial Habeas Petition
In March of 1999, Mr. Buck filed his initial state habeas application,
represented by newly-appointed counsel, Robin Norris. Like Mr. Buck's trial
counsel, Mr. Buck's state habeas counsel had a history of deficient representation of
death-sentenced prisoners. In another capital case, the CCA found that Mr. Norris
threw his client “under the bus” by filing an initia] state habeas application that
was “only four pages long and merely state[d) factual and legal conclusions.” Ex
parte Medina, 361 S.W.3d 633, 635-36 (Tex. Crim. App. 2011). His representation
of Mr. Buck was consistent with that troubling history.
State habeas counsel “filed only non-cognizable or frivolous claims in
(Mr. Buck's] initial application.” Ex parte Buck, 418 S.W.3d 98, 107 (Tex. Crim.
App. 2013), cert. denied, 134 S. Ct. 2663 (2014). “[T)hree of the four claims . . . were
raised and rejected on direct appeal and, therefore, under the longstanding
precedent of [the CCA], those claims were not cognizable on a post-conviction writ of
habeas corpus.” Jd. at 102. The fourth claim was “wholly frivolous” because it
asserted that “applicant's trial counsel was ineffective for failing to request a jury
instruction based on a non-existent provision of the penal code.” Jd. The
application did not challenge any aspect of trial counsel’s introduction of race as en
aggravating factor into Mr. Buck's sentencing proceeding.
2. Texas Concedes Error.
In 2000, the Texas Attorney General conceded the unconstitutionality of
Dr. Quijano’s race-based future dangerousness testimony in the case of Victor Hugo
Saldafio. Saldafo v. State, 70 S.W.3d 873, 875 (Tex. Crim. App. 2002) (quoting Pet.
for Cert. at 3, Saldafio v. Texas, 530 U.S. 1212 (2000) (No. 99-8119)). Texas
acknowledged that “[dJiscrimination on the basis of race, odious in all aspects, is
especially pernicious in the administration of justice,” and that the “infusion of race
as a factor for the jury to weigh in making its determination violated [Mr.
Saldafio’s) constitutional right to be sentenced without regard to the color of his
skin.” Resp. to Pet. for Cert. at 7-8, Saldafio v. Texas, 530 U.S. 1212 (2000).
After its admission in Saldavio, then-Texas Attorney General, John Cornyn,
announced that his office had conducted “a thorough audit” of capital cases—
including a review of “case files for all executions since 1982”—and identified six
cases, including Mr. Buck’s, that also involved unconstitutional racially-biased
testimony by Dr. Quijano. The Attorney General's audit discovered equal
protection violations in the cases of six death sentenced prisoners: Gustavo Garcia,
Eugene Broxton, John Alba, Michael Gonzales, Carl Blue, and Duane Buck. In
three of the cases (Broxton, Gonzales, and Garcia), the prosecution called
Dr. Quijano as a witness; in the three others (Alba, Blue, and Buck), the defense
* Press Release, Office of the Tex. Att'y Gen., U.S. Supreme Court Grants State's Motion in Capital
Case (June 5, 2000) (Rule 60(b) Mot. Ex. 3), Buck, No. 4:04-cv-03966 (8.D. Tex. Jan, 7 2014), ECF No.
49-1, p. 17; Press Release, Office of the Tex. Att'y Gen., Statement from Attorney General John
Cornyn Regarding Death Penalty Cases (June 9, 2000) (Rule 60(b) Mot. Ex. 4), Buck, No. 4:04-cv-
03965 (S.D. Tex. Jan, 7 2014), ECF No. 49-1, p. 19.
called Dr. Quijano. See Mem. Op. & Order at 15-16, Blue v. Johnson, No. 4:99-cv-
00350 (S.D. Tex. Sep. 29, 2000) (hereinafter, “Blue Opinion and Order”).
The Attorney General declared that for the six identified cases, Texas “will
not object if they seek to overturn the death sentences based on Mr. Quijano’s
testimony,”® because “it is inappropriate to allow race to be considered as # factor in
our criminal justice system... .” Tex. Att'y Gen. Press Release, (Rule 60(b) Mot.
Ex. 4), Buck, No. 4:04-cv-03965 (S.D. Tex. Jan, 7 2014), ECF No. 49-1, p. 19
(internal quotation marks omitted)). The Attorney General acknowledged that
some of the six cases might still be in state proceedings and promised, “if and when
those cases reach this office they will be handled in a similar manner as the
Saldafio case.”* Mr. Buck’s case was the only one still in state court at the time of
the Attorney General's June 2000 announcement.
Prior to the Attorney General's admission of error, none of the identified
defendants had challenged the constitutionality of Dr. Quijano’s testimony.
Nonetheless, in all of the cases, except Mr. Buck's, the State kept ite promise,
waived all procedural defenses and conceded that Dr. Quijano’s testimony violated
equal protection, thus requiring a new sentencing hearing.’
+ See Blue Opinion and Order at 15-17, Blue v. Johnson, No. 4:99-cv-00360 (8.D. Tex. Sept. 29, 2000),
goP No 29 Alba v. Johnson, No. 00-40194, 2000 WL 1272988 at *1 (6th Cir. Aug. 21, 2000); Onder
at 1, Alba v. Johnaon, No. 4:98-cv-221 (E.D. Tex. 25, 2000), ECF No. 31; Order at 1, Garcia v.
Bn No 1:90-ev-00184 (B.D. Tex. Sept. 7, 2000), ECF No. 26; Resp. to Suppl. Pet and
Confession of Error by TDCJ-ID, Garcia, No. 1-99-cv-00134 (E.D. Tex. Aug. 18, 2000), ECF No. 35;
.9-
Dp. Mr. Buck’s Post-Saldafio State and Federal Habeas Proceedings
1. State Habeas Proceedings
Two years after the Texas Attorney General conceded error in Mr. Buck's
case—and five years after the filing of his initial application for state habeas
relief —Mr. Norris finally filed a second application for state habeas relief which, for
the first time, challenged trial counsel's introduction of race as an aggravating
factor into Mr. Buck’s sentencing proceeding. Subsequent Appl. for Writ of Habeas
Corpus, Ex parte Buck, No. WR-57,004-02 (Tex. Crim. App. Oct. 15, 2003), ECF No.
5-152, pp. 6, 9. In October 2003, the CCA denied Mr. Buck's initial state habeas
application and dismissed the subsequent post-conviction application as an abuse of
the writ without considering its merits. Order, Ex parte Buck, No. WR-57,004-02
(Tex. Crim. App. Oct. 15, 2003).
2. Federal Habeas Proceedings
In October of 2004, Mr. Buck, represented by new counsel, filed a federal
habeas corpus petition in the District Court asserting, inter alia, that Mr. Buck's
federal constitutional rights to equal protection, due process and the effective
assistance of counsel were violated by the introduction of “expert” testimony and an
“expert” report linking Mr. Buck's race to an increased likelihood of future
dangerousness. Pet. for Writ of Habeas Corpus at 55-62, Buck v. Cockrell, No. 04-
03965 (S.D.Tex. Oct. 14, 2004), ECF No. 1. Although Texas had promised to
concede constitutional error and waive its procedural defenses in Mr. Buck's case—
Broxton v. Johnson, No. H-00-CV-1034, 2001 U.S. Dist. LEXIS 25715, at *15 (S.D. Tex. Mar. 28,
2001); Final J. at 1, Gonzales v. Cockrell, No. 7:99-cv-00072 (W.D. Tex. Dec. 19, 2002), ECF No. 84.
-10-
as it had in all of the other Saldafic-like cases, including two in which Dr. Quijano
was a defense witness*—Texas reversed course, argued that federal review of
Mr. Buck’s ineffectiveness claim was foreclosed by state habeas counsel's default of
that claim, and asserted, for the first time, that Mr. Buck’s case “presentied] a
strikingly different scenario than that presented in Saldafio—Buck himeelf, not the
State offered Dr. Quijano’s testimony into evidence.” Resp't Dretke’s Answer and
Mot. for Summ. J. with Br. in Support at 17, 21-25, Buck v. Dretke, No. 04-03965
(S.D. Tex. Sept. 6, 2005), ECF No. 6 (hereinafter, “Respondent's Answer”). Even
though Texas's description of Mr. Buck's case was “obviously not accurate”—
because “[IJike Buck, the defendants in both Blue and Alba called Quijano to the
stand”—Texas “created the unmistakable impression that Buck’s case differed from
the others in that only Buck called Quijano as a witness.” Buck, 132 S. Ct. at 37
(Sotomayor, J., dissenting).
The District Court agreed with Texas, finding that Mr. Buck’s Quijano-
related claims were procedurally defaulted and that Mr. Buck was unable to
demonstrate cause and prejudice or a fundamental miscarriage of justice to excuse
the default. App. E at 17-18.
Between 2006 and 2012, Mr. Buck repeatedly, and unsuccessfully, sought
review of the District Court’s decision through the federal appellate courts. See
Buck v. Thaler, 345 F. App’x 923 (6th Cir. 2009) (affirming denial of habeas relief
due to procedural default and denying request for certificate of appealability); Buck
8 See Blue Opinion and Order at 15-17, Blue, No. 4:99-cv-00360 (S.D. Tex. Sep. 29, 2000), ECF No.
29; Order at 1, Alba, No. 4:98-cv-221 (E.D. Tex. Sept. 25, 2000), ECF No. 31.
othe
v. Thaler, 5569 U.S. 1072 (2010) (denying certiorari); Buck v. Thaler, 452 F. App’x
423 (5th Cir. 2011) (denying stay of execution and motion for relief from judgment);
In re Buck, 132 S. Ct. 69 (2011) (granting stay of execution); Buck, 132 S. Ct. 32
(2011) (denying certiorari); Buck v. Thaler, 132 S.Ct. 1085 (2012) (denying
rehearing). Because Coleman v. Thompson, 501 U.S. 722, 752-53 (1991), foreclosed
federal review of Mr. Buck’s IAC claims, Mr. Buck’s appellate briefs did not
challenge trial counsel’s introduction of “expert” testimony and/or the “expert”
report linking Mr. Buck's race to his likelihood of future dangerousness. For its
part, Texas consistently asserted that Mr. Buck’s trial counsel—rather than
Texas—was responsible for placing Dr. Quijano’s false and inflammatory opinion
about race before the jury. The Fifth Circuit agreed with Texas. Buck, 345 F.
App’x at 930.
In 2011, three Justices of this Court reached the same conclusion. Buck, 132
S. Ct. 32. In response to a petition for certiorari that challenged the trial
prosecutor's reliance on Dr. Quijano’s testimony, Justice Alito, joined by Justices
Scalia and Breyer, explained that responsibility for the introduction of “bizarre and
objectionable” expert testimony linking Mr. Buck’s race to an increased likelihood of
future dangerousness “lay squarely with the defense.” /d. at 33, 36. Justice
Sotomayor, joined by Justice Kagan, dissented from the denial of certiorari,
reasoning that “our criminal justice system should not tolerate” a “death sentence
* Respondent's Answer at 17-18, 20 Buck v. Drethke, No. 04-03966 (S.D. Tex. Sept. 6, 20065); Thaler’s
J. and Mot. for Stay of Execution at 10, 16-17, 19-20, Buck v.
. Tex. Sept. 9, 2011), ECF No. 30; Resp. in Opp’n to Appl. for Cert. of
Appealability at 22-25, 28-30, Buck v. Thaler, No. 11-70026 (6th Cir. Sept. 14, 2011); Br. in Opp'n at
12-13, 18-20, Buck v. Thaler, Nos. 11-6391 & 11A297 (U.S. Sept. 15, 2011).
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i
3
z
E
g
marred by racial overtones and a record compromised by misleading remarks and
omissions made by the State of Texas in the federal habeas proceedings below.” /d.
at 35.
8. Mr. Buck’s 2013 State Habeas Application and the Trevino
Decision
In March 2013, Mr. Buck filed a new state habeas application. Application
for Post-Conviction Writ of Habeas Corpus, Ex parte Buck, No. WR-57,004-03 (Tex.
Crim. App. Mar. 28, 2013). Eight months later, a divided CCA dismissed
Mr. Buck’s Application for “fail[ing) to satisfy the requirements of Article 11.071,
§ 5(a).” 418 S.W.3d at 98. In dissent, Judge Alcala (Gjoined by Judges Price and
Johnson) noted:
[Mr. Buck’s case] reveals a chronicle of inadequate representation at
every stage of the proceedings, the integrity of which is further called
into question by the admission of racist and inflammatory testimony
from an expert witness at the punishment phase. .. . As a result of
prior habeas counsel’s errors and the combined force of state and
federal procedural-default laws, no Court has ever considered the
merits of (Mr. Buck’s} legitimate claims for post-conviction relief.
Ex parte Buck, 418 S.W.3d at 107.
While Mr. Buck’s application was pending before the CCA, this Court
announced, in Trevino v. Thaler, 133 S. Ct. 1911 (2013), that Martinez v. Ryan, 132
S. Ct. 1309 (2012), was applicable to Texas. Martinez “modiflied] the unqualified
statement in Coleman that an attorney's ignorance or inadvertence in a
postconviction proceeding does not qualify as cause to excuse a procedural default.”
Trevino, 133 S. Ct. at 1917 (quoting Martinez, 132 S. Ct. at 1315). Together,
Martinez and Trevino allow, for the first time, an opportunity for federal court
1 ©
review of defaulted LAC claims where (1) the claim is “substantial”; (2) there was no
counsel or ineffective counsel during the initial state post-conviction review; and (3)
state law effectively requires ineffective assistance of trial counsel claims to be
litigated on initial collateral review, as it does in Texas. Jd. at 1918 (quoting
Martinez, 132 S. Ct. at 1318-20). A “substantial” claim is one that “has some merit.”
Martinez, 132 S. Ct. at 1318 (citing Miller-El v. Cockrell, 537 U.S. 322 (2003)
(describing standards for COA to issue)).
E. Mr. Buck’s Post-Trevino Federal Habeas Proceedings
On January 7, 2014, Mr. Buck filed a motion for relief from the District
Court's denial of the ineffective assistance of counsel claim that Mr. Buck raised in
his initial federal habeas corpus petition. Rule 60(b)(6) Motion, Buck v. Stephens,
No. 04-03965 (S.D.Tex. Jan. 7, 2014), ECF No. 49. Mr. Buck detailed eleven facts
and circumstances demonstrating the “extraordinary circumstances’ justifying the
reopening of a final judgment” under Rule 60(b)(6). Gonzalez v. Crosby, 545 U.S.
524, 535 (2005). Specifically:
1. Mr. Buck’s trial attorney knowingly presented expert testimony
to the sentencing jury that Mr. Buck’s race made him more
likely to be a future danger;
2. Although required to act as gate-keeper to prevent unreliable
expert opinions from reaching and influencing a jury, see Tex. R.
Evid. 705(c); Kelly v. State, 824 S.W.2d 668 (Tex. Crim. App.
1992), the trial court qualified Dr. Quijano as an expert on
predictions of future dangerousness, allowed him to present race
based opinion testimony to Mr. Buck’s capital sentencing jury,
and admitted Dr. Quijano’s excludable hearsay report linking
race to dangerousness;
atx
10.
11.
The trial prosecutor intentionally elicited Dr. Quijano’s
testimony that Mr. Buck’s race made him more likely to be a
future danger on cross-examination, vouched for him as an
“expert” in closing, and asked the jury to rely on Dr. Quijano’s
testimony to answer the future dangerousness special issue in
the State’s favor;
Mr. Buck’s state habeas counsel did not challenge trial counsel's
introduction of this false and offensive testimony—or Texas's
reliance on it—in Mr. Buck's initial state habeas application;
The Texas Attorney General conceded constitutional error in
Mr. Buck’s case and promised to ensure that he received a new
sentencing, but reneged on that promise after deciding that the
introduction of the offensive testimony was trial counsel's fault;
[The District Court had previously] ruled that federal review of
Mr. Buck’s trial counsel ineffectiveness claim was foreclosed by
state habeas counsel's failure to raise and litigate the issue in
Mr. Buck’s initial state habeas petition, relying on Coleman,
which has subsequently been modified by Martinez and Trevino;
The Fifth Circuit held Mr. Buck's trial counsel responsible for
the introduction of Dr. Quijano’s testimony linking Mr. Buck's
race to his likelihood of future dangerousness;
Three Supreme Court Justices concluded that trial counsel was
at fault for the introduction of Dr. Quijano’s testimony;
Three Judges of the CCA found that “because [Mr. Buck's}
initial habeas counsel failed to include any claims related to
Quijano’s testimony in his origina! [state habeas] application, no
court, state or federal, has ever considered the merits of those
claims,” Ex parte Buck, 418 S.W.3d at 104;
Mr. Buck’s case is the only one in which Texas has broken its
promise to waive procedural defenses and concede error, leaving
Mr. Buck as the only individual in Texas facing execution
without having been afforded a fair and unbiased sentencing
hearing; and
Martinez and Trevino now allow for federal court review of
“substantial” defaulted claims of trial counse! ineffectiveness.
=
Rule 60(b)(6) Motion at 15-17, Buck, No. 04-03965 (S.D.Tex. Jan. 7, 2014),
ECF No. 49.
In adjudicating this Rule 60(b) motion, the District Court recognized that
Mr. Buck's trial counsel's performance was constitutionally deficient. The court
explained that, by calling Dr. Quijano as an expert witness, trial counsel “recklessly
exposed his client to the risks of racial prejudice and introduced testimony that was
contrary to his client's interests.” App. D at 14. Remarkably, the court nonetheless
concluded that trial counsel's introduction of this “expert” race-as-dangerousness
evidence had only a “de minimis” effect on Mr. Buck's sentencing proceeding. App.
D at 10. As a result, the court found that Mr. Buck was not prejudiced by his
counsel's deficient performance, and that his case is not extraordinary within the
meaning of Rule 60(b). App. D at 10.; see also App. C at 3. The District Court also
denied a COA. App. D at 14-15.
Mr. Buck filed an application for a COA with the Fifth Circuit. With respect
to Strickland prejudice, Mr. Buck showed that, far from being “de minimis,”
testimony from a purported “defense expert” that a defendant is more likely to be
dangerous in the future because of his race is uniquely prejudicial—especially in the
context of a capital sentencing proceeding, given “the range of discretion entrusted
to a jury,” and the fact that a “juror who believes that blacks are violence prone ...
might well be influenced by that belief in deciding” whether to impose the death
penalty. Turner v. Murray, 476 U.S. 28, 35 (1986) (plurality opinion).
ofits
Mr. Buck’s demonstration of prejudice in his case is especially clear because
the State’s evidence of future dangerousness was far from overwhelming. Indeed,
another defense expert, Dr. Patrick Lawrence, testified that Mr. Buck’s records
showed that he “did not present any problems in the prison setting” and that he had
been held in minimum custody. See Tr. 196, Buck, No. 4:04-cv-03966 (S.D. Tex.
June 24, 2005), ECF No. 5-116, pp. 13. Dr. Lawrence, who had previously evaluated
roughly 900 prisoners convicted of homicide, and found that many were likely to be
dangerous in the future, concluded and testified that Mr. Buck was not likely to
commit criminal acts of violence in the future. See Tr. 177, 182-186, 188-204, 205-
06, Buck, No. 4:04-cv-03965 (S.D. Tex. June 24, 2005) ECF Nos. 5-115, pp. 34, 39-
41; 5-116, pp. 2-3, 22-23; 5-116, pp. 5-21. Moreover, the jury reached a sentencing
decision only after substantial deliberations, which included sending three notes to
the court—the third of which requested the “expert” reports, including
Dr. Quijano’s. See Jury Requests, Buck, No. 4:04-cv-03965 (S.D. Tex. June 24 2005),
ECF No. 5-9, pp. 1-4. The Fifth Circuit neither disputed these points, nor approved
of the District Court’s analysis under Strickland’s prejudice prong.
Despite Mr. Buck’s showing of prejudice in his case, the Fifth Circuit denied
Mr. Buck’s application because it concluded that Mr. “Buck has not made out even a
minimal showing that his case is exceptional,” within the meaning of Rule 60(b).
App. B at 7. Mr. Buck onahe en banc review of the panel's decision but, over the
dissent of Judge Dennis, his application was denied. App. A. Judge Dennis, joined
by Judge Graves, explained that a COA clearly should have issued, and that the
«17.
panel's contrary decision was consistent with the Fifth Circuit's “troubling’ habit of
evaluating the merits of petitioners’ [COA application] claims.” Jd. at 3 (quoting
Jordan v. Fisher, 135 S. Ct. 2647, 2652 n.2 (2015) (Sotomayor, J., joined by
Ginsburg and Kagan, JJ., dissenting from the denial of certiorari)). Judge Dennis
observed that “[rjather than consider whether reasonable jurists could disagree
with the district court and conclude that Buck’s allegations ‘set up an extraordinary
situation,’ the pane] went through the factors one by one and determined that each
was ‘not extraordinary.” Id. at 4 (quoting Ackermann v. United States, 340 US.
193, 199 (1950)). He further explained that the panel “dismisse{d], miscast[], and
minimize(d] [Mr. Buck’s} evidence, diluting its full weight by disaggregating it and
focusing the inquiry on determining whether each isolated piece of evidence, taken
alone,’ proves extraordinary circumstances.” /d. (citation omitted). By contrast, “[a]
proper threshold inquiry into Buck’s claim would have revealed that reasonable
jurists could disagree with the district court’s conclusions,” because the factors
presented by Mr. Buck “describe a situation that is at least debatably
‘extraordinary.” Jd. Judge Dennis noted that this conclusion is confirmed by the
fact that—even before Mr. Buck was permitted to present his IAC claim—Justice
Sotomayor, joined by Justice Kagan, found that Mr. Buck’s case “presented issues
that ‘deserve encouragement to proceed further.” App. A at 6 (quoting Buck, 132 S.
Ct. at 28 (internal citation omitted)).
REASONS FOR GRANTING THE WRIT
The panel’s decision contravened this Court's precedent and deepened two
circuit splits in a case raising an issue of national significance: whether the
criminal justice system will tolerate a death sentence that is imposed after the
introduction of “defense expert” testimony and a “defense expert” report
unequivocally stating that the defendant is more likely to be dangerous in the
future—the critical issue in determining his eligibility for death—because he is
Black.
This Court has repeatedly stressed that racial discrimination in the
administration of justice is exceptional, and that courts must be particularly
vigilant about eliminating it in capital cases. Disregarding this settled precedent,
the Fifth Circuit concluded that Mr. Buck “has not made out even a minimal
showing that his case is exceptional,” and that trial counsel's needless decision to
inject “expert” evidence that Mr. Buck was more deserving of a death sentence
because he is Black is “unremarkable as far as LAC claims go.” App. B at 9. But the
nature and consequence of trial counsel's presentation of this “expert” evidence is
different in kind than the errors committed by counsel in almost any other
ineffectiveness case. This is not a case where, for example, trial counsel failed to
investigate mitigating evidence that might provide a basis for a sentence less than
death. See, e.g., Wiggins v. Smith, 539 U.S. 510 (2003). Instead, this is a case
where, as the District Court found, Mr. Buck's trial counsel “recklessly exposed his
client to the risks of racial prejudice” and “len{t] credence to any potential latent
-19-
racial prejudice held by the jury.” App. D at 14. Because the injection of racial
discrimination into the judicial process “poisons public confidence in the
evenhanded administration of justice,” Davis v. Ayala, 135 S. Ct. 2187, 2208 (2015),
the patently deficient performance of Mr. Buck's trial counsel! not only undermines
confidence in Mr. Buck's death sentence, it undermines confidence in the criminal
justice system as a whole.
It is precisely for this reason that Texas conceded error and promised six
identified prisoners—including Mr. Buck—that it would not object or interpose
procedural defenses if they sought to obtain new sentencing proceedings. Texas
kept its promise to every single one of those prisoners, except Mr. Buck.
Then, in 2011, two opinions, reflecting the opinions of five Justices of this
Court, underscored the exceptional nature of Mr. Buck's case. Justice Alito, joined
by Justices Scalia and Breyer, explained that “[t]he petition in this case concerns
bizarre and objectionable testimony given by a ‘defense expert’ at the penalty phase
of Buck's capital trial.” Buck, 132 S. Ct. at 33. Justice Alito concluded that
Mr. Buck's certiorari petition—which then raised only a prosecutorial misconduct
claium—ehould be denied because defense counsel, rather than the prosecution, was
responsible for injecting race into the proceeding. See id. at 33, 356. Justice
Sotomayor, joined by Justice Kagan, dissented from the denial of certiorari,
stressing that Mr. Buck's death sentence is “marred by racial overtones,” which “our
criminal justice system should not tolerate . . . erpecially in a capital case.” Id. at
For all of these reasons, Mr. Buck's case is extraordinary under any
conceivable understanding of the word and the panel's decision to the contrary is
wrong under any standard of review Further, in denying Mr. Buck a COA, the
decision below continues the Fifth Circuit's “troubling” pattern of failing to follow
thie Court's COA precedent. Jordan, 135 S. Ct. at 2652 n.2 (Sotomayor, J., joined
by Ginsburg and Kagan, JJ., dissenting from denial of certiorari). Indeed, a review
of capital § 2254 cases over the last five years shows that in 59% of cases arising out
the Fifth Circuit, a COA was denied by both the district court and Court of Appeals
on all claims. By contrast, during that same period, only 6.25% cases arising out of
the Eleventh Circuit and 0% of cases arising out of the Fourth Circuit have had a
COA denied on all claims.
For all these reasons, and those discussed more fully herein, certioran should
be granted.
~ 20 -
I. Certiorari Should Be Granted Because Reasonable Jurists Could
Unquestionably Debate The Extraordinariness of The Circumstances
Identified by Mr. Buck.
This Court’s precedent is clear: a COA involves only a threshold analysis and
preserves full appellate review of potentially meritorious claims. Thus, “a prisoner
seeking a COA need only demonstrate ‘a substantial showing” that the district
court erred in denying relief. Miller-El, 537 U.S. at 327 (quoting Slack v. McDaniel,
529 U.S. at 473, 484 (2000) and 28 U.S.C. § 2253(c\(2)). This “threshold inquiry” is
satisfied so long as reasonable jurists could either disagree with the district court's
decision or “conclude the issues presented are adequate to deserve encouragement
to proceed further.” Jd. at 327, 336. A COA is not contingent upon proof “that some
jurists would grant the petition for habeas corpus. Indeed, a claim can be debatable
even though every jurist of reason might agree, after the COA has been granted and
the case has received full consideration, that petitioner wil] not prevail.” Jd. at 338.
In sum, the touchstone is “the debatability of the underlying constitutional
claim for procedural issue], not the resolution of that debate.” Id. at 342; see also id.
at 348 (Scalia, J., concurring) (recognizing that a COA is required when the district
court's demal of relief is not “undebatable”). Applying this standard in Miller-El,
this Court reversed the Fifth Circuit's denial of a COA in a jury discrimination case,
and explained that “a COA can be supported by any evidence demonstrating that,
despite the neutral explanation of the prosecution, the peremptory strikes in the
final analysis were race based.” Jd. at 340 (emphasis added).
As explained in detail above, Mr. Buck's Rule 60(b) application pled
numerous exceptional circumstances, which, as summarized by Judge Dennis's
dissent from the denial of rehearing en banc, include the following:
Mr. Buck “faces execution based on a capital sentencing proceeding
whose reliability was fundamentally compromised by the race-based
testimony of Dr. Walter Quijano”;
The “State of Texas identified his case as one of six that was ‘similar’ to
that of Victor Hugo Saldafio, in which the State admitted that
Dr. Quijano’s testimony and the resulting ‘infusion of race as a factor
for the jury to weigh in making its determination violated [Mr.
Saldafio’s] constitutional right to be sentenced without regard to the
color of hie skin”;
The “procedural default that barred [Mr. Buck's) present [ineffective
assistance of counsel] claim should have been waived by the State
pursuant to representations made by the Texas Attorney Generea!”;
“[Flollowing the Supreme Court's decisions in Martinez .. . and
Trevino . . ., the same procedural default would not bar his claim if it
were brought in federal! court for the first time today”;
Three Judges on the Texas Court of Criminal Appeals dissented from
that court’s dismissal of Mr. Buck’s successor state habeas petition,
noting “[tjhe record in this case reveals a chronicle of inadequate
representation at every stage of the proceedings, the integrity of which
is further called into question by the admission of racist and
inflammatory testimony from an expert witness at the punishment
phase™; and
Even when considering solely Mr. Buck's prosecutorial misconduct
claim, Justice Sotomayor concluded that, “{ejspecielly in light of the
capital nature of this case and the express recognition by a Texas
attorney general that the relevant testimony was inappropriately race-
charged, Buck has presented issues that ‘deserve encouragement to
proceed further.”
App. A at 5-6. (interna! quotations and citations omitted).
As Judge Dennis recognized, these facts and circumstances, at a minimum,
make the threshold showing that requires a COA. App. A at 6. The panel's
. =
contrary conclusion—that Mr. “Buck has not made out even a minima! showing that
his case is exceptional,” within the meaning of Rule 60(b), App. B at 7—is a direct
product of its failure to adhere to this Court’s precedent. Instead of assessing the
debatability of the District Court's opinion, the panel improperly rejected
Mr. Buck's ineffectiveness claim on its merits; instead of engaging in the
comprehensive, equitable analysis required by Rule 60(b), the panel isolated and
disregarded critical aspects of *<.. Buck's case; and instead of acknowledging the
unique harm caused by the injection of racial bias and discrimination into
Mr. Buck’s capital sentencing proceedings, the panel ignored it. Certiorari is
warranted.
A The Panel Improperly Sidestepped the COA Process by
Denying Relief Based on its View of the Merits.
In reviewing the facts and circumstances of Mr. Buck's case, the Fifth Circuit
panel “pa[id] lipservice to the principles guiding issuance of a COA,” Tennard v.
Dretke, 542 U.S. 274, 283 (2004), but actually held Mr. Buck to a far more onerous
standard. Specifically, the panel “sidestep[ped the threshold COA] process by first
deciding the merits of [Mr. Buck's) appeal, and then justifying its denial of a COA
based on its adjudication of the actual merits,” thereby “in essence deciding an
appeal without jurisdiction.” Miller-El, 637 U.S. at 336-37; see App. A at 2 (Dennis,
d., dissenting).
As this Court stressed in Miller-El, the threshold nature of the COA inquiry
“would mean very little if appellate review were denied because the prisoner did not
convince a judge, or, for that matter, three judges, that he or she would prevail.”
-24-
Miller-El, 537 U.S. at 337. Yet that is precisely what the panel did here. In Judge
Dennis's words:
Rather than consider whether reasonable jurists could disagree with
the district court and conclude that Buck's allegations “set up an
extraordinary situation,” Ackermann v. United States, 340 U.S. 193,
199 (1960), the panel went through the factors one by one and
determined that each was “not extraordinary.” Buck, Slip Op. at 9-10.
At the end of this flawed analysis of the merits of Buck's claims, the
panel conclusorily declared: “Juriste of reason would not debate that
Buck has failed to show extraordinary circumstances justifying relief.”
Id. at 10.
App. A at 4; cf. Harrington v. Richter, 562 U.S. 86, 101 (2011) (noting the court of
appeals failed to apply the proper AEDPA standard when it “conducted a de novo
review” and then “declared, without further explanation,” that the state court's
contrary conclusion was unreasonable).
The panel impermissibly sidestepped the COA inquiry in this manner by
denying relief because, in its view: (1) Mr. Buck's LAC claim is “unremarkable”; and
(2) the “broken-promise element to this case makes it odd and factually unusual!”
but not extraordinary within the meaning of Rule 60(b). App. B at 9-10. These
statements reflect the panel's (profoundly wrong) assessment of the merits of
Mr. Buck’s Rule 60(b) motion and complete departure from the proper COA
analysis. The panel's sole inquiry should have been whether a reasonable jurist
could conclude that Mr. Buck’s [AC claim is remarkable, or that Texas's broken
promise is not just “odd and factually unusual,” but extraordinary.'®
The panel also stated that Mr. Buck has not “established that the AG's office promised not to raise
case,” Buck, App. B at 3 n.1, but the Attorney General's own press
releasee—which specifically named Mr. Buck—and the AG's statements to the media make its
commitment to Mr. Buck abundantly clear. See n.4, supra. Furthermore, any questions about
- 25
|
:
The Fifth Circuit's failure to apply the proper COA standard in this case is
not an isolated error. This Court has twice corrected the Fifth Circuit's unduly
restrictive approach to granting COAs. See Tennard, 542 U.S. at 283; Miller-El,
537 U.S. at 327. And just last Term, three Justices noted that the Fifth Circuit
continues its “troubling” pattern of failing to apply the threshold COA standard
required by this Court's precedent. Jordan, 135 S. Ct. at 2652 n.2 (2015)
(Sotomayor, J., joined by Ginsburg and Kagan, JJ., dissenting from denial of
certiorari).
The Fifth Circuit's troubling pattern has resulted in a demonstrable circuit
split with respect to the application of the COA standard. As described in Appendix
F, a review of electronically available capital § 2254 cases in the Fifth Circuit and
two other nearby circuits (the Fourth and Eleventh) in the last five years,
demonstrates a dramatic difference among the three circuits. In the Fifth Circuit, a
COA was denied on all claims by both the district court and the court of appeals
59% of the time. By contrast, during that same period, a COA was denied on all
claims by both the district court and court of appeals in only 6.25% of capital § 2254
cases in the Eleventh Circuit and 0% of such cases in the Fourth Circuit. See App.
F. This stark disparity quantifiably demonstrates that the Fifth Circuit's
application of the COA standard is significantly different from, and more
burdensome than, that of the Fourth and Eleventh Circuits, which are more
consistent with one another.
Mr. Buck's evidence are properly addressed st an evidentiary hearing. They certainly do not justify
the denial of relief (much less a COA) without a hearing.
. +
B. The Panel Failed to Undertake the Equitable Rule 60(b)
Inquiry Mandated by this Court's Precedent.
The panel also disregarded this Court's precedent establishing that Rule
60(b) is an equitable remedy, which “provides courts with authority ‘adequate to
enable them to vacate judgments whenever such action is appropriate to accomplish
justice.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863-64 (1988)
(quoting Klapprott v. United States, 335 U.S. 601, 614-15 (1949)). As with any
equitable standard where the touchstone is accomplishing justice, a court must
“examine all of the circumstances” to determine whether “collectively [they
establish] extraordinary circumstances for purposes of Rule 60(b)(6).” Ramirez v.
United States, 799 F.3d 845, 861 (7th Cir. 2015); see Klapprott, 335 U.S. at 615
(analyzing circumstances collectively in concluding that reopening the judgment
was appropriate under Rule 60(b)).
Instead of following this equitable, holistic approach, the Fifth Circuit panel
in this case “went through the factors one by one, and determined that each was
‘not extraordinary”; and, in so doing, it improperly “dilut[ed] [the] full weight” of
the circumstances identified by Mr. Buck. App. A at 4 (Dennis, J., dissenting). For
example, the panel deemed it irrelevant that Mr. Buck’s habeas petition was denied
without review of his IAC claim because “it is the nature of procedural defaults that
many potentially viable claims will never advance to a merits determination.” App.
B at 9. Similarly, the panel concluded that this Court's intervening decisions in
Martinez and Trevino, which would allow merits review of Mr. Buck's LAC claim,
o27-
were of no consequence because “a change in decisional law’... is not an
extraordinary circumstance under Rule 60(b)(6).” App. B at 9 (citation omitted).
By isolating, and then categorically discounting, these circumstances, the
Fifth Circuit failed to undertake the equitable, case-specific analysis mandated by
this Court's precedent. As a preliminary matter, a “prisoner's inability to present a
claim of trial error [for merits review] is of particular concern when the claim is one
of ineffective assistance of counsel,” because the “right to the effective assistance of
counsel at trial is a bedrock principle in our justice system.” Martinez, 132 S. Ct.
1317. Moreover, this case does not involve an ordinary [AC claim. If it is a matter
of “particular concern” whenever an JAC claim is defaulted, id., it is a matter of far
graver concern where—as here—trial counsel's ineffectiveness caused the “the
admission of racist and inflammatory testimony from an expert witness at the
punishment phase,” Ex parte Buck, 418 S.W.3d at 98 (Alcala, J., joined by Price and
Johnson, JJ., dissenting), and undermined the integrity of both the petitioner's
death sentence and the criminal justice system overall. Yet, the Fifth Circuit panel
failed to consider the extraordinary circumstances identified by Mr. Buck and
improperly treated Mr. Buck's case like any other involving a procedural default
and change in decisional law.
The Fifth Circuit’s analysis is not only inconsistent with this Court's
precedent, it also deepens a circuit split concerning the proper application of Rule
60(b) post-Martinez. The Fifth and Eleventh Circuits have categorically concluded
that Martinez’s change in decisional law is not an extraordinary circumstance for
. =
purposes of Rule 60(b). See Adams v. Thaler, 679 F.3d 312, 320 (5th Cir. 2012);
Hamilton v. Sec’y, Florida Dep't of Corrections, 793 F.3d 1261, 1266 (11th Cir. 2015)
(noting split with Third Circuit).'' By contrast, the Third and Seventh Circuits
have held that Martinez is relevant and must be considered along with all of the
equitable factors identified by the petitioner to determine whether Rule 60(b) relief
is warranted. The Court in Cox v. Horn, 757 F.3d 113, 122 (3d Cir. 2014), explained
that the Fifth Circuit's categorical approach fails “to consider the full set of facts
and circumstances attendant to the Rule 60(b)(6) motion under review,” and is
thereby inconsistent with the “flexible, multifactor approach . . . that takes into
account all the particulars of a movant’s case,” as required by Rule 60(b).'* Accord
Ramirez, 799 F.3d at 850 (expressly agreeing with Cox). Cox further held that the
district court abused its discretion by relying on the categorical approach, without
“consider{ing] how, if at all, the capital aspect of this case or any other factor
highlighted by the parties would figure into its 60(b)(6) analysis.” Cox, 757 F.3d at
124.
|) Although the panel below did not decide whether other equitable factors can be relevant in habeas
cases under Rule 60(b), the panel expressly reiterated prior Fifth Circuit precedent holding that the
change in decisional law caused by Martinez is not. App. B at 9.
\! The Third Circuit further explained that the categorical approach is not authorized by this Court's
decision in Gonzalez, 645 U.S. at 624. Instead, “Gonsalez merely highlights, in action, the position of
both the Supreme Court and this Court that ‘[iJntervening developments in the law by themeeives
rarely constitute the extraordinary circumstances required for relief under Rule 60(b\(6).’ And, to be
clear, the Gonzalez Court examined the individual circumstances of the petitioner's case to see
whether relief was appropriate. .” Cox, at 757 F.3d at 123 (emphasis in Cox) (citations omitted).
-29-
Cc. The Fifth Circuit Disregarded the Special Harm Caused By
Racial Discrimination Infecting the Administration of Justice.
In its decision denying Mr. Buck a COA, the panel repeated an error that this
Court corrected in Miller-El, viz., denying a COA by failing to “give full
consideration to the substantial evidence” presented by the habeas petitioner.
Miller-El, 537 U.S. at 341. As Judge Dennis explained: “like the ‘dismissive and
strained interpretation’ of a petitioner's evidence that was rejected by the Supreme
Court” in Miller-El, the panel's opinion in Mr. Buck's case “dismisses, miscasts, and
minimizes Buck’s evidence.” App. A at 4 (citation omitted). As a result, the panel
treated this exceptional case—which involves express racial bias at a capital
sentencing hearing—as if it were an ordinary habeas petition.
As discussed, the panel declared that “Buck’s IAC claim . . . is at least
unremarkable as far as LAC claims go.” App. B at 9. The only way that the panel
could have reached such a patently incorrect conclusion is by disregarding the facts
at the heart of Mr. Buck’s case. To reiterate, Mr. Buck's claim is that his trial
counsel unreasonably presented the sentencing jury with evidence from a
psychologist, who was stamped with the trial court's imprimatur as an expert, that
Mr. Buck was more likely to be dangerous in the future—the critical question that
would determine whether Duane Buck would receive a death sentence—because he
is Black. Yet, the panel did not even mention race in the portions of its opinion
concluding (a) that Mr. Buck’s IAC claim was “unremarkable,” and (b) that the
circumstances identified by Mr. Buck were “not extraordinary at all in the habeas
context.” App. B at 9.
- 30-
The panel's error on this point is a fundamental one, which requires this
Court’s review. “Discrimination on the basis of race, odious in all aspects, is
especially pernicious in the administration of justice.” Rose v. Mitchell, 443 U.S.
545, 555 (1979). Despite the constitutional prohibition on such discrimination, “it
is well known that prejudices often exist against particular classes in the
community, which sway the judgment of jurors.” Miller-El v Dretke, 545 U.S. 231,
237 (2005) (citation omitted). The risk that racial discrimination will taint criminal
trials is especially pronounced in capital sentencing proceedings: “Because of the
range of discretion entrusted to a jury in a capital sentencing hearing, there is a
unique opportunity for racial prejudice to operate but remain undetected.” Turner,
476 U.S. at 35 (plurality opinion). And the risk is greater still where, as here,
future dangerousness is at issue: “a juror who believes that blacks are violence
prone... might well be influenced by that belief” in deciding whether to impose
death. Jd. Moreover, when racial discrimination infects a criminal trial, the injury
is not simply to the defendant, it is “to the law as an institution, to the community
at large, and to the democratic ideal reflected in the processes of our courts.” Rose,
443 US. at 556.
Mr. Buck's ineffective assistance of counsel claim—unlike an ordinary IAC
claim—thus implicates “public confidence in the evenhanded administration of
justice.” Davis, 136 S. Ct. at 2208. It bears repeating that, despite this Court's
“unceasing efforts’ to eradicate racial prejudice from our criminal justice system”
(especially in capital cases), McCleskey v. Kemp, 481 U.S. 279, 309 (1987), the jury
- 3}.
that decided whether Mr. Buck would live or die was presented with testimony from
a “defense expert” that he was more likely to be dangerous in the future—the key
issue concerning his eligibility for a death sentence—because he ie Black.
The fact that Mr. Buck's trial counsel injected an explicit appeal to racial
bias, fear and stereotype into the sentencing proceedings establishes that
Mr. Buck's ineffectiveness claim, and, indeed, his case overall, jg extraordinary. It
is for that reason that Texas promised to concede error and waive ita procedural
defenses in Mr. Buck's case, and others like it. As Texas told this Court in Saldajio,
“the use of race in [a capital] sentence seriously undermine[s] the fairness, integrity,
or public reputation of the judicial process.” Tex.’s Resp. to Pet. for Cert., Saldafio
v. Texas, No. 99-8119 (U.S. May 3, 2000). That principle is as true for Mr. Buck's
case as it was for Saldajio.
And the fact that Texas kept its promise in every case except Mr. Buck's
makes his case even more extraordinary. The Fifth Circuit panel acknowledged
that the “broken-promise element to this case makes it odd and factually unusual,”
but concluded that it was irrelevant because “extraordinary circumstances are not
merely found on the spectrum of common circumstances to unique circumstances.”
App. B at 10. The panel cited no support for this ipse dixit, and failed to
acknowledge that the difference, if any, between an “odd and factually unusual”
circumstance and an “extraordinary” circumstance is precisely the kind of issue that
could be debated by reasonable jurists.
-32-
Moreover, the panel's conclusion once again disregards the core of why this
case is exceptional. Texas not only promised to concede error and waive procedural
defenses and then reneged on its promise; Texas promised to concede error and
reneged on its promise. Tex.’s Resp. to Pet. for Cert., Saldafio, No. 99-8119 (U.S.
May 3, 2000). Thus, contrary to the panel's conclusion, see App. B at 10, whether or
not Mr. Buck detrimentally relied on Texas's promise is irrelevant. Texas's broken
promise is an extraordinary circumstance “justifying relief from the judgment”
because Texas itself recognized that making such a promise was necessary to
uphold the integrity of the courts.
CONCLUSION
For all of the foregoing reasons, Mr. Buck's case is extraordinary. At a
minimum, reasonable jurists could so conclude, which means a COA must issue.
This Court’s review is warranted not only to resolve two circuit splits, but to
maintain public confidence that courts will not permit an execution tainted by
“expert” testimony explicitly linking race to dangerousness.
‘es
Respectfully submitted,
NATASHA MERLE
NAACP LEGAL DEFENSE &
EDUCATIONAL FUND, INC.
40 Rector Street, Sth Floor
New York, NY 10006
cswarns@naacpidf org
Tel (212)-965-2200
Fax (212)-226-7592
Katherine C. Black
TEXAS DEFENDER SERVICE
1927 Blodgett Street
Houston, Texas 77004
kateblack@texasdefender org
Tel. (713) 222-7788
Samuel Spital
HOLLAND & KNIGHT LLP
31 West 62nd Street
New York, NY 10019
Samuel.Spital@hklaw com
Tel. (212)-513-3545
Counsel ‘or Petitioner
*Counsel of Record
Appendix A
Case: 14-70030 Document: 00513262048 Page:1 Date Filed: 11/06/2015
App. |
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
teed Staaes Cout of Appmets
Gras
No. 14-70030 FILED
November 6, 2015
Lyle W. Cayce
DUANE EDWARD BUCK,
Petitioner—Appellant,
versus
WILLIAM STEPHENS, Director, Texas Department of Criminal] Justice,
Correctional! Institutions Division,
Respondent—Appellee.
Appeals from the United States District Court
for the Southern District of Texas
ON PETITION FOR REHEARING EN BANC
(Opinion August 20, 2015, 2015 U.S. App. LEXIS 14755)
Before SMITH, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:
Treating the petition for rehearing en banc as a petition for panel rehear-
ing, the petition for panel rehearing is DENIED. The court having been
polled at the request of one of its members, and a majority of the judges who
are in regular active service and not disqualified not having voted in favor
Case: 14-70030 Document: 00513262048 Page:2 Date Filed: 11/06/2079
App. 2
(FED. R. APP. P. 35 and 5TH CiR. R. 35), the petition for rehearing en banc is
DENIED.
In the en banc poll, 2 judges voted in favor of rehearing (Judges Dennis
and Graves), and 13 judges voted against rehearing (Chief Judge Stewart and
Judges Jolly, Davis, Jones, Smith, Clement, Prado, Owen, Elrod, Southwick,
Haynes, Higginson, and Costa).
ENTERED FOR THE COURT:
—____/e/_ Jerry E. Smith —
JERRY E. SMITH
United States Circuit Judge
* * * * 7 ” *
JAMES L. DENNIS, Circuit Judge, with whom GRAVES, Circuit Judge, joins,
ti tad
In Miller-El v. Cockrell, 537 U.S. 322, 336-37 (2003), the Supreme Court
held that the threshold inquiry required by 28 U.S.C. § 2263(c):
does not require full consideration of the factual or legal bases
adduced in support of the claims. In fact, the statute forbids it.
When a court of appeals sidesteps this process by first deciding the
merits of an appeal, and then justifying its denial of a COA based
on ite adjudication of the actual merits, it is in essence deciding an
1 without jurisdicti
In my view, the panel in this case, perhaps unintentionally, followed that
prohibited side-stepping process by justifying its denial of a COA based on its
adjudication of the actual merits. This is not the first time that a panel of this
Case: 14-70030 Document: 00513262048 Page:3 Date Filed: 11/06/2015
App. 3
court has flouted Miller-El’s clear command when denying a COA: our court's
“troubling” habit of evaluating the merits of petitioners’ claims has been noted
by three Supreme Court justices. See Jordan v. Fisher, 135 S. Ct. 2647, 2652
n.2 (2015) (Sotomayor, J., joined by Ginsburg and Kagan, JJ., dissenting from
denial of certiorari). Because I believe that Buck has made the requisite
threshold showing of entitlement to relief, | respectfully dissent from the
refusal to rehear his case en banc.
Duane Buck, a capital prisoner, seeks to raise ineffective assistance of
counsel in federal habeas corpus proceedings. His habeas petition was denied
by the district court as procedurally barred. Buck has now applied to this
court for a COA to challenge the district court's denial of his second motion for
relief from judgment under Rule 60 of the Federal Rules of Civil Procedure, in
which he alleged that extraordinary circumstances warrant reopening the
proceedings. Under Slack v. McDaniel, 429 U.S. 473, 484 (2000), a COA
should issue in Buck's case if he shows (1) that jurists of reason would find
debatable “whether the petition states a valid claim of the denial of a
constitutional right” and (2) that those jurists “would find it debatable whether
the district court was correct in its procedural ruling.” Yet the panel denied
Buck’s application on the grounds that “he has not shown extraordinary
circumstances that would permit relief under Federal Rule of Civil Procedure
60(b)(6).” Buck v. Stephens, Slip Op. at 1 (Aug. 20, 2015). By ruling on the
merits, the panel contravened the Supreme Court’s clear commands and
improperly denied Buck his right to appeal.
In Miller-El, the Supreme Court reiterated that, when evaluating a COA
application, “the court of appeals should limit its examination to a threshold
inquiry into the underlying merit of his claims.” 537 U.S. at 326. A
petitioner is not required to demonstrate that he is entitled to relief; in fact,
Case: 14-70030 Document: 00513262048 Page:4 Date Filed: 11/06/2015
App. 4
“(ijt is consistent with § 2263 that a COA will issue in some instances where
there is no certainty of ultimate relief.” Jd. at 337. Rather, a petitioner
satisfies the Slack standard “by demonstrating that jurists of reason could
disagree with the district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Id. at 327 (emphasis added).
Furthermore, under this court’s established precedent, “any doubt as to
whether a COA should issue in a death-penalty case must be resolved in favor
of the petitioner.” Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir. 2006) (citing
Medellin v. Dretke, 371 F.3d 270, 275 (65th Cir. 2004) (per curiam); Newton v.
Dretke, 371 F.3d 260, 264 (5th Cir. 2004)).
In his application, Buck presented eleven factors that, when considered
together, he believes demonstrate that his case involved extraordinary
circumstances. Rather than consider whether reasonable jurists could
disagree with the district court and conclude that Buck's allegations “set up an
extraordinary situation,” Ackermann v. United States, 340 U.S. 193, 199,
(1960), the panel went through the factors one by one and determined that
each was “not extraordinary.” Buck, Slip Op. at 9-10. At the end of this
flawed analysis of the merits of Buck’s claims, the panel conclusorily declared:
“Jurists of reason would not debate that Buck has failed to show extraordinary
circumstances justifying relief.” Jd. at 10. This analysis would not be
sufficient even if the court were properly considering the merits of Buck’s
claims: like the “dismissive and strained interpretation” of a petitioner's
evidence that was rejected by the Supreme Court first in Miller-El, 537 U.S. at
344, and then again in Miller-El v. Dretke, 545 U.S. 231, 266 (2005), the panel
“dismisses, miscasts, and minimizes [Buck’s] evidence, diluting its full weight
by disaggregating it and focusing the inquiry on determining whether each
Case: 14-70030 @pument: 00513262048 Page: 6 Gate Filed: 11/06/2015
App. 6
Appeals dissented from the dismissal of his state habeas petition as
procedurally barred, concluding that “[t]he record in this case reveals a
chronicle of inadequate representation at every stage of the proceedings, the
integrity of which is further called into question by the admission of racist and
inflammatory testimony from an expert witness at the punishment phase” and
that the procedural barrier should therefore be abrogated. Ex parte Buck, 418
S.W.3d 98 (Tex. Crim. App. 2013) (Alcala, J., dissenting), cert. denied sub nom.
Buck v. Texas, 134 S. Ct. 2663 (2014). While each of these factors might, on
its own, be insufficient to warrant relief, together they describe a situation that
is at least debatably “extraordinary.”
That the issue is at least debatable is further illustrated by Justice
Sotomayor’s dissent from the denial of certiorari in Buck v. Thaler, 452 F.
App’x 423 (5th Cir. 2011), a previous iteration of this case. Justice
Sotomayor—joined by Justice Kagan—concluded that, “[e]specially in light of
the capital nature of this case and the express recognition by a Texas attorney
general that the relevant testimony was inappropriately race-charged, Buck
has presented issues that ‘deserve encouragement to proceed further” and a
COA should therefore have been granted. Buck v. Thaler, 132 S. Ct. 32, 38
(2011) (quoting Miller-El, 537 U.S. at 327).
“Any doubt regarding whether to grant a COA is resolved in favor of the
petitioner, and the severity of the penalty may be considered in making this
determination.” Newton, 371 F.3d at 254 (5th Cir. 2004). In a case involving
the severest of penalties, the panel’s summary conclusion that “[jjurists of
reason would not debate that Buck has failed to show extraordinary
circumstances justifying relief’ was both inappropriate and incorrect.
I respectfully dissent.
Case: 14-70030 Que 00513262053 Page: 1 @« Filed: 11/06/2019
App. 7
United States Court of Appeals
FIFTH CIRCUIT
OFFICE OF THE CLERK
LYLE W. CAYCE TEL. 584-316-7708
CLERK 646 S&S. MAESTRI PLACE
NEW ORLEANS, LA 70136
November 06, 2015
MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:
No. 14-70030 Duane Buck v. William Stephens, Director
USDC No. 4:04-CV-3965
Enclosed is an order on Petitions for Rehearing and Rehearing En
Banc entered in this case.
Sincerely,
LYLE W. CAYCE, Clerk
r an waned
eaep h M. Armato, Deputy Clerk
Ms. Katherine Cooper Black
Mr. David J. Brad |
Ms. Fredericka Searie Sargent
Mr. Samuel Spital
Ms. Christina A. Swarns
Appendix B
Case: 14-70030 wren 00513162819 Page: 1 @ ries: 08/20/2015
App. 1
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeats
Fit Cir
sone soFItED
Lyle W. Cayce
Clerk
DUANE EDWARD BUCK,
Petitioner—Appellant,
versus
WILLIAM STEPHENS, Director,
Texas Department of Criminal Justice, Correctional Institutions Division,
Respondent—Appellee.
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CV-3965
Before SMITH, OWEN, and HAYNES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Duane Buck seeks a certificate of appealability (“COA”) to challenge the
denial of his motion for reconsideration, in which he sought to raise ineffective
assistance of counsel (“IAC”) in seeking federal habeas corpus relief.. Because
he has not shown extraordinary circumstances that would permit relief under
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
Ci. R. 47.5.4.
Case: 14-70030 re 00513162819 Page: 2 gy ies: 08/20/2015
App. 2
No. 14-70030
Federal Rule of Civil Procedure 60(b)(6), we deny the application for a COA.
I.
This is Buck’s third trip to the Fifth Circuit. More detailed explanations
of the facts and procedural history can be found in Buck v. Thaler, 345 F. App’x
923 (5th Cir. 2009) (per curiam), and Buck v. Thaler, 452 F. App’x 423 (5th Cir.
2011) (per curiam). We recite only what is relevant to this request for a COA.
In July 1995, Buck murdered his ex-girlfriend Debra Gardner and her
friend Kenneth Butler. Buck wae arrested at the scene, and police found the
murder weapons in the trunk of his car. Two witnesses identified him as the
shooter. Buck laughed during and after the arrest and stated to one officer
that “[t)]he bitch got what she deserved.”
Buck was convicted of capital murder for the deaths. During the penalty
phase, the state presented evidence that Buck would likely remain dangerous.
That evidence included his criminal history, his violent conduct, and his
demeanor during and after the arrest.
Buck called Dr. Walter Quijano, a clinical psychologist, as an expert wit-
ness to testify regarding future dangerousness. Buck’s lawyer asked Quijano
what factors he would look at to determine whether an inmate would engage
in future acts of violence. Quijano explained several, including age, sex, race,
social economics, and substance abuse. For example, he testified that
advanced age and increased wealth correlated with a decline in the likelihood
of committing future violent acts. On race, he gave a one-sentence explanation:
“It’s a sad commentary that minorities, Hispanics and black people, are over
represented in the Criminal Justice System.” That matched a statement
included in Quijano’s expert report, which was introduced as evidence.
During cross-examination, the prosecution elicited one more comment on
2
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App. 3
No. 14-70030
race from Quijano: Question: “You have determined that the sex factor, that
a male is more violent than a female because that’s just the way it is, and that
the race factor, black, increases the future dangerousness for various compli-
cated reasons; is that correct?” Answer: “Yes.” During closing arguments, the
prosecution referenced Quijano’s testimony generally and specifically noted
that he had said that, although Buck was in the low range for a probability of
committing future violent acts, the probability did exist. The prosecution did
not reference Buck’s race or Quijano’s use of race.
The jury unanimously found beyond a reasonable doubt that there was
a probability Buck would commit criminal acts of violence that would be a
continuing threat to society. It further found that there were not sufficient
mitigating circumstances to justify a life sentence. The court sentenced Buck
to death, and the Texas Court of Criminal Appeals (“TCCA”) affirmed.
Buck filed his first state habeas application in 1997; it contained no IAC
claim or any other challenge based on Quijano’s testimony. In 2000, however,
the Texas Attorney General (“AG”) admitted to the Supreme Court in Saldano
v. Texas, 530 U.S. 1212 (2000), that the state had erred in calling Quijano as a
witness and having him testify that the defendant’s race increased the likeli-
hood of future dangerousness. Shortly after the Court vacated and remanded
Saldano on that confession of error, the AG publicly identified eight other cases
involving racial testimony by Quijano, six of which the AG said were similar to
Saldano’s case; one of those was Buck’s. Buck contends that Texas “promised
to concede constitutional error and waive its procedural defenses” in his case
so that he could get resentenced without the race-related testimony '
1 It has never been established that the AG’s office promised not to raise procedural!
defenses in Buck’s case. The record contains a news release by the AG's office stating that a
post-Saldano audit had revealed “eight more cases in which testimony was offered by Dr.
Quijano that race should be a factor for the jury to consider in making its determination
3
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App. 4
No. 14-70030
In 2002, while his first state habeas petition was pending, Buck filed a
second petition that challenged Quijano’s testimony on several grounds,
including IAC. The TCCA ultimately denied the first habeas petition and dis-
missed the second as an abuse of the writ.
In 2004, Buck filed a federal habeas petition raising a litany of chal-
lenges to his sentence, including IAC. The court denied relief on that claim
because Buck had not raised IAC on direct appeal or in his original state
habeas petition. He had raised it in his second state habeas petition, but the
TCCA dismissed it as an abuse of the writ, so it was procedurally defaulted.
Buck sought a COA from this court on only one issue: “Was he deprived of due
process or equal protection by the prosecution's reference to testimony from
Buck’s own penalty-phase expert witness ...?” Buck, 345 F. App’x at 924. We
concluded that the claim was procedurally barred and meritless. Jd. at 930.
After the state set an execution date of September 15, 2011, Buck moved
for relief from the earlier district-court judgment under Federal Rule of Civil
Procedure 60(b)(6), claiming that the state’s failure to admit error and waive
defenses was extraordinary and merited relief. The motion also asked for relief
under Rule 60(d)(3), alleging that the AG had committed fraud on the court.
about the sentence in a capital murder trial,” of which six were similar to Saldano. The same
release stated that the AG's office “sent letters to opposing counsel and to the local prosecu-
tors involved advising them of [the AG's} investigation.” But we have found no statement by
the AG in the record in which he confessed error relating to Buck’s case and promised not to
raise procedural defenses.
The record contains a Houston Chronicle article from 2000 that paraphrases the AG's
spokesperson as saying, “If the attorneys amend their appeals currently pending in federa)
court to include objections to Quijano’s testimony, the attorney general will not object.” The
spokesperson is quoted as representing that cases still with the district attorney's offices “wil
be handled in a similar manner as the Saldano case.” A New York Times article went further,
stating, “[The AG’s} staff has notified defense lawyers representing the six inmates that his
office will not object if they seek to overturn the death sentences based on Mr. Quijano’s
testimony.” Because it does not change the outcome of this appeal, we need not explore
whether such a promise was made or how explicit it was.
4
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App. 5
No. 14-70030
The district court denied the motion and, three days later, Buck filed a
motion to amend the judgment under Rule 59(e), claiming that the AG had
made material misrepresentations and omissions in opposing the earlier
motion for relief. The court denied that motion as well. We declined to permit
a successive habeas petition or issue a COA Buck, 452 F. App’x at 433.
The Supreme Court stayed Buck’s execution to consider his petition for
writ of certiorari. It ultimately denied the petition, accompanied by a state-
ment respecting that denial and a dissent. Buck v. Thaler, 132 S. Ct. 32, 32-
35 (2011) (Alito, J., respecting the denial of certiorari); id. at 35-38 (Soto-
mayor, J., dissenting from the denial of certiorari).
In 2013, Buck filed another state habeas petition. The trial court con-
cluded that it was a subsequent petition and referred it to the TCCA. While
that petition was pending, the Supreme Court decided Trevino v. Thaler,
133 S. Ct. 1911 (2013), holding that Texas’s procedural regime rendered it
almost impossible to raise IAC claims on direct appeal, making the scheme
similar to the one in Martinez v. Ryan, 132 S. Ct. 1309 (2012). The Court
therefore held that the Martinez exception applied in Texas: The lack of effec-
tive counsel during initial state collateral-review proceedings could excuse a
procedural default on an IAC claim. Trevino, 133 S. Ct. at 1921.
The TCCA dismissed the petition as an abuse of the writ. Ex parte Buck,
418 S.W.3d 98 (Tex. Crim. App. 2013). Three judges dissented, concluding that
Buck had made out a potentially meritorious case of IAC relating to his attor-
ney’s alleged failure adequately to investigate and present mitigating evidence.
Id. at 98-114 (Alcala, J., dissenting).
In January 2014, Buck again filed for Rule 60(b)(6) relief from judgment
in his federal habeas case. He focused solely on his IAC claim, contending that
counsel was ineffective for introducing Quijano and that his case was
5
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App. 6
No. 14-70030
sufficiently extraordinary to justify relief under Rule 60(b)(6). The district
court denied the motion, holding that Buck’s case did not have the extraordin-
ary circumstances required for Rule 60(b)(6). It also held that Buck had failed
to make out an IAC claim, establishing deficient performance but not pre-
judice. Within a month of that denial, Buck again moved for relief under
Rule 60(b)(6), essentially disagreeing with the district court’s disposition of the
issues. On March 11, 2015, the district court denied that motion as well and
declined to issue a COA.
Il.
To obtain a COA, Buck must make “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S.
322, 336 (2003). On application for a COA, we engage in “an overview of the
claims in the habeas petition and a genera! assessment of their merits” but do
not engage in “a full consideration of the factual or legal bases adduced in sup-
port of the claims,” asking only whether the district court's resolution of the
claim “was debatable among jurists of reason.” Miller-El, 537 U.S. at 322.
The district court denied the motion for a procedura] reason, namely,
Buck’s failure to show extraordinary circumstances justifying relief under
Rule 60(b)(6). We therefore must deny a COA if Buck fails to establish both
(1) that jurists of reason would find debatable “whether the petition states a
valid claim of the denial of a constitutional right” and (2) that those jurists
“would find it debatable whether the district court was correct in its procedural
ruling.” Slack v. McDaniel, 429 U.S. 473, 484 (2000).
Il.
Regarding the procedural bar, for a Rule 60(b)(6) motion in this posture
not to be itself a successive habeas petition, the litigant “must not be
challenging a prior merits-based ruling.” Balentine v. Thaler, 626 F.3d 842,
6
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No. 14-70030
846 (5th Cir. 2010). Instead, he must be challenging a previous ruling—such
as procedural! default or a statute-of-limitations bar—that precluded a merits
determination. Jd. at 846-47. The district court initially denied Buck's [AC
claim because the TCCA’s abuse-of-the-writ dismissal was an adequate and
independent state ground for denying relief, so Buck’s motion satisfies that
requirement.
To obtain relief under Rule 60(b)(6), Buck must show “extraordinary
circumstances,” Gonzalez v. Crosby, 545 U.S. 524, 536 (2005), which “will
rarely occur in the habeas context,” id. at 536. There is little guidance as to
what constitutes “extraordinary circumstances,” but we have recognized that
a change in a decisional law does not qualify, and we have cited with approval
district-court decisions holding other circumstances not extraordinary as well,
including IAC. See Williams v. Thaler, 602 F.3d 291, 312 (5th Cir. 2010).
Buck contends that eight equitable factors from Seven Elves, Inc. v.
Eskenazi, 635 F.2d 396 (5th Cir. Unit A Jan. 1981), are the proper means for
evaluating a Rule 60(b) motion in a habeas case.? We have declined to answer
whether Seven Elves sets the standard for a Rule 60(b)(6) motion in habeas
proceedings. See Diaz v. Stephens, 731 F.3d 370, 376-77 (5th Cir. 2013). We
need not answer it now because Buck has not made out even a minimal
showing that his case is exceptional.
? Those factors are “(1) (t)hat final judgments should not lightly be disturbed; (2) that
the Rule 60(b) motion is not to be used as a substitute for appeal; (3) that the rule should be
liberally construed in order to achieve substantial justice; (4) whether the motion was made
within a reasonable tise; (5) whether if the judgment was a default or a dismissal in which
there was no consideration of the merits the interest in deciding cases on the merits out-
weighs, in the particular case, the interest in the finality of judgments, and there is merit in
the movant's claim or defense; (6) whether if the judgment was rendered after a trial on the
merits the movant had a fair opportunity to present his claim or defense; (7) whether there
are intervening equities that would make it inequitable to grant relief; and (8) any other
factors relevant to the justice of the judgment under attack.” Seven Elves, 635 F.2d at 402.
7
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No. 14-70030
The January 2014 motion contains eleven facts, reurged in the COA
application, that Buck says make the case extraordinary:
1. Mr. Buck’s trial attorney knowingly presented expert testimony to
the sentencing jury that Mr. Buck’s race made him more likely to be
a future danger;
2. Although required to act as gate-keeper to prevent unreliable expert
opinions from reaching and influencing a jury, see Tex. R. Evid.
705(c); Kelly v. State, 824 S.W.2d 668 (Tex. Crim. App. 1992), the trial
court qualified Dr. Quijano as an expert on predictions of future dan-
gerousness, allowed him to present race based opinion testimony to
Mr. Buck’s capital sentencing jury, and admitted Dr. Quijano’s
excludable hearsay report linking race to dangerousness;
3. The trial prosecutor intentionally elicited Dr. Quijano’s testimony
that Mr. Buck’s race made him more likely to be a future danger on
cross-examination, vouched for him as an “expert” in closing, and
asked the jury to rely on Dr. Quijano’s testimony to answer the future
dangerousness special issue in the State’s favor;
4. Mr. Buck’s state habeas ~ounsel did not challenge trial counsel's
introduction of this falee and offensive testimony — or Texas’s reli-
ance on it — in Mr. Buck’s initial state habeas application;
5. The Texas Attorney General conceded constitutional error in Mr.
Buck’s case and promised to ensure that he received a new sentenc-
ing, but reneged on that promise after deciding that the introduction
of the offensive testimony was trial counsel's fault;
6. This Court ruled that federa] review of Mr. Buck’s trial counse)
ineffectiveness claim was foreclosed by state habeas counsel's failure
to raise and litigate the issue in Mr. Buck’s initial state habeas peti-
tion, relying on Coleman, which has subsequently been modified by
Martinez and Trevino;
7. The Fifth Circuit held Mr. Buck’s trial counsel responsible for the
introduction of Dr. Quijano’s testimony linking Mr. Buck’s race to his
hikelihood of future dangerousness;
8. Three Supreme Court Justices concluded that trial counsel was at
fault for the introduction of Dr. Quijano’s testimony;
9. Three Judges of the CCA found that “because [Mr. Buck's] initial
habeas counsel failed to include any claims related to Quijano’s testi-
mony in his original [state habeas] application, no court, state or
8
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No. 14-70030
federal, has ever considered the merits of those claims,” Buck, 2013
WL 6081001, at *5;
10. Mr. Buck’s case is the only one in which Texas has broken its prom-
ise to waive procedural defenses and concede error, leaving Mr. Buck
as the only individual in Texas facing execution without having been
afforded a fair and unbiased sentencing hearing; and
11. Martinez and Trevino now allow for federal court review of “sub-
stantial” defaulted claims of trial counsel ineffectiveness.
Initial examination of those facts reveals that they are not extraordinary at all
in the habeas context. Numbers 1-3, 7, and 8 are just variations on the merits
of Buck’s LAC claim, which is at least unremarkable as far as LAC claims go.
Buck’s LAC claim is not so different in kind or degree from other disagreements
over trial strategy between lawyer and client that it counts as an exceptional
case. Nor are IAC claims as a class extraordinary under Rule 60(b)(6). The
Court warned in Gonzalez, 545 U.S. at 536, that extraordinary circumstances
will rarely be present in the habeas context.
The fourth and ninth extraordinary facts merely point out that Buck’s
LAC claim was procedurally defaulted and did not get a merits determination.
That is not an extraordinary circumstance in the habeas context; it is the
nature of procedural defaults that many potentially viable claims will never
advance to a merits determination. No jurists of reason would expand the defi-
nition of “extraordinary” to reach all procedurally defaulted LAC claims.
The sixth and eleventh facts relate to Buck’s notion that Trevino and
Martinez changed the law regarding procedural defaults in LAC claims in a
way that could have excused his procedural default. Martinez, however, “was
simply a change in decisional law” that is not an extraordinary circumstance
under Rule 60(b)(6), and “Trevino’s recent application of Martinez to Texas
cases does not change that conclusion in any way.” Diaz, 731 F.3d at 376
(internal quotation marks omitted).
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No. 14-70030
Those facts plainly fail to make even a plausible argument that Buck’s
is the extraordinary case that satisfies Rule 60(b)(6). He has repeatedly
asserted, however, that his case is special because of the Saldano-related state-
ments by the AG. Buck contends the AG conceded that Quijano’s testimony
was unconstitutional but reneged on a promise to resentence Buck (fact five),
despite Texas’s following through in other cases involving Quijano (fact ten).
Even if the AG initially indicated to Buck that he would be resen-
tenced—a fact that has never been adequately established, see note 1,
supra—his decision not to follow through is not extraordinary The broken-
promise element to this case makes it odd and factually unusual, but extraor-
dinary circumstances are not merely found on the spectrum of common circum-
stances to unique circumstances. And they must be extraordinary circum-
stances “justifying relief from the judgment.” Gonzalez, 545 U.S. at 537. Buck
has not shown why the alleged reneging would justify relief from the judgment.
For example, he has not shown that he relied on the alleged promise to his
detriment.
Nor is it extraordinary that the AG confessed error and waived proce-
dural bars in other cases and not in Buck’s. We have previously rejected the
notion that some concept of “intra-court comity” requires the state to waive
procedural defenses in similar cases. See Buck, 345 F. App’x at 929. Even
assuming arguendo that the other cases at issue are materially similar to
Buck’s (which the state disputes), it can hardly be extraordinary that the state
chose different litigation strategies between the two cases. Jurists of reason
would not debate that Buck has failed to show extraordinary circumstances
justifying relief.
10
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No. 14-70030
Buck has not demonstrated that jurists of reason would debate whether
his case is exceptional under Rule 60(b)(6). The request for a COA is DENIED.
ll
Certified as a true copy and issaed
as the mandate on Aug 20, 2015
Ate dude WS. Comte
Clerk, U.S. of Fifth Circait
Appendix C
15 Pagelofs
Case 4:04-cv-03965 — 75 Filed in TXSD on 03/
App. 1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DUANE EDWARD BUCK,
Petitioner,
H-04-3965
OP 6OP 6D OP 6 OO 6 OO a a OO
Duane Edward Buck is a Texas death row inmate. On July 24, 2006, this Court
denied his petition for a writ of habeas corpus. Among the claims denied were Buck's claims
that he received ineffective assistance of counsel when his counsel called as an expert
witness Dr. Walter Quijano, who mentioned an issue relating to race during the penalty phase
of Buck's trial. Buck further contended that counsel was ineffective for failing to object
when the prosecutor asked Dr. Quijano a question raising a racial issue on cross-cxamination.
This Court found that those claims were procedurally defaulted, and the Fifth Circuit denied
Buck's request for a certificate of appealability. See Buck v. Thaler, 345 Fed. App’x 923 (5*
Cir., 2009).
In 2012, the Supreme Court issued its decision in Martinez v. Ryan, 132 S.Ct. 1309
(2012), holding that ineffective assistance of state habeas counsel could, in certain
75 Filed in TXSD on
App. 2
15 Page 2of5
Case ee: at
circumstances, constitute cause to excuse a procedural default of an ineffective assistance of
trial counsel claim. In Trevino v. Thaler, 133 S.Ct. 1911 (2013), the Supreme Court held that
Martinez is applicable to the Texas capital postconviction process. On January 7, 2014,
Buck, relying on Martinez and Trevino, filed a motion for relief from the judgment of this
Court under Rule 60(b)(6) of the Federal Rules of Civil Procedure (Inst. # 49). This Court
denied that motion on August 29, 2014.
On September 26, 2014, Buck filed a motion to alter or amend judgment (Inst. # 67).
For the reasons stated below, the motion is denied.
A motion to alter or amend under Fed.R.Civ.P. 59e) “must clearly establish cither a
manifest error of law or must present newly discovered evidence.” Schiller v. Physicians
Resource Grp., Inc., 342 F.3d 563, 567 (5* Cir. 2003)internal quotation marks omitted).
“Relief under Rule 59(¢) is also appropriate where there has been an intervening change in
controlling law.” /d.
Buck contends that, in denying relief on his Rule 60 motion, this Court “improperly
excluded from its consideration significant evidence .. . .” Motion to Alter or Amend (Inst.
#67) at 2. This assertion misrepresents the Court’s opinion, which carefully considered all
of Buck's argument and the entire record in this case.
This Court based the denial on the Court's extensive knowledge and re-review of the
record in this case and independent review of relevant case law. Based on the record and
controlling law, the Court concluded that Buck was not entitled to relief. The specific
Case a 75 Filed in TXSD on 15 Page 3of5
App. 3
reasons for the denial of Buck’s Rule 60 motion are explained in detail in the 18 page order
denying that motion.
Contrary to the assertions in Buck’s motion, this Court specifically addressed Buck’s
arguments that his case presents “extraordinary circumstances” justifying relief, both in the
text of the order denying his most recent Rule 60(b) motion, See August 29, 2014,
Memorandum and Order (Inst. # 66) at 8-10, and by reference to other orders and opinions
addressing these arguments, see id. at 8. Buck cites no new law in support of his argument
consideration, merely expresses his disagreement with the Court's analysis and conclusion.
That disagreement does not demonstrate a manifest error of law, present newly discovered
evidence, or rely on an intervening change in controlling law. It therefore does not provide
grounds for relief.
This Court also found that, while Buck’s counsel rendered deficient performance,
Buck did not demonstrate that he was prejudiced by that deficient performance. Because of
this, Buck failed to demonstrate that he presented a substantial underlying claim of
ineffective assistance of counsel, and therefore could not overcome his procedural default
under Martinez. Buck now argues that this Court’s prejudice analysis was wrong.
Once again, Buck’s argument boils down to mere disagreement with this Court's
analysis. While Buck cites a few cases in which a court found that a defendant was
prejudiced by counsel's deficient performance in a capital sentencing proceeding despite
75 Filed in TXSD on — Page 4 of 5
App. 4
Case a ae
evidence of a heinous crime, he cannot dispute that this analysis must be highly fact-specific.
As discussed in detail in this Court’s prior order, while counsel was deficient for calling Dr.
Walter Quijano as an expert witness, any harm caused by his objectionable testimony was
de minimis in light of, among other things: |) the extremely limited scope of that testimony,
2) the fact that the prosecution did not refer to the objectionable testimony in closing
argument; 3) the facts of Buck’s crime, including the fact that he murdered one of his victims
in front of her young children as the victim begged for her life; and 4) Buck's lack of
remorse. Once again, Buck's argument comes down to the fact that he disagrees with this
Court's conclusion that counsei’s deficient performance did not, in light of the entire record,
raise a reasonable probability that the outcome of the sentencing hearing would have been
different had counsel not called Dr. Quijano to testify. See Strickland v. Washington, 466
U.S. 668, 694-95 (1984). As discussed above, Buck’s disagreement with this Court’s analysis
does not provide a basis for relief under Rule 59.
Moreover, because this Court's finding that Buck is not entitled to relief is not
debatable among jurists of reason, Buck is not entitled to a certificate of appealability from
this Order. See Hernandez v. Johnson, 213 F.3d 243, 248 (Sth Cir.), cert. denied, 531 U.S.
966 (2000). For the foregoing reasons,
Case ee a 75 Filed in TXSD on — Page 5 of 5
App. 5
IT IS ORDERED THAT Buck’s Motion to Alter or Amend Judgment (Inst. # 67) is
Denied; and
IT IS FURTHER ORDERED THAT no certificate of appealability shall issue.
SO ORDERED.
SIGNED at Houston, Texas, on this W day of March, 2015.
Appendix D
Case 4:04-cv-03965 — 66 Filed in TXSD on “os Page 1 of 1g
App. 1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
§
DUANE EDWARD BUCK, §
§
Petitioner, §
,
v. § H-04-3965
&
WILLIAM STEPHENS, Director, §
Texas Department of Criminal §
Justice-Correctional Institutions Division, §
§
Respondent. §
§
MEMORANDUM AND ORDER
Pending is petitioner’s motion for relief from judgment (Inst. #49). Petitioner seeks
relief from the judgment of this Court entered on July 24, 2006 (Inst. # 16).
Duane Edward Buck is currently incarcerated on death row in Texas. On July 24,
2006, this Court denied his petition for a writ of habeas corpus. Among the claims denied
were Buck's claims that he received ineffective assistance of counsel when his counsel called
aS an expert witness Dr. Walter Quijano, who mentioned an issue relating to race during the
penalty phase of Buck’s trial. Buck further contended that counsel was ineffective for failing
10 object when the prosecutor asked Dr. Quijano a question raising a racial issue on cross-
examination. This Court found that those claims were procedurally defaulted, and the Fifth
Circuit denied Buck's request for a certificate of appealability. See Buck v. Thaler, 345 Fed.
App’x 923 (5" Cir., 2009).
So oe ae Page 2 of 18
App. 2
In 2012, the Supreme Court issued its decision in Martinez v. Ryan, 132 S.Ct. 1309
(2012), holding that ineffective assistance of state habeas counsel could, in certain
circumstances, constitute cause to excuse a procedural default of an ineffective assistance of
trial counsel claim. In Trevino v. Thaler, 133 S.Ct. 1911 (2013), the Supreme Court held that
Martinez is applicable to the Texas capital postconviction process. On January 7, 2014,
Buck, relying on Martinez and Trevino, filed the current motion for relief from the judgment
of this Court under Rule 60(b)(6) of the Federal Rules of Civil Procedure (Inst. # 49).
|. Background
The facts are not in dispute. During the early morning hours of July 30, 1995, Harold
Ebenezer, his brother Kenneth Butler, Buck's sister Phyllis Taylor, and Debra Gardner all
gathered at Gardner's house after a night out playing pool. Buck lived in the house with
Gardner on and off over the previous few years, but Gardner and Buck broke up two or three
weeks earlier.
Buck banged loudly on Gardner's door and Gardner called “911.” Buck then forced
the door open and entered the house. He argued with Gardner and struck her. Buck then
stated that he was there to pick up his clothes. He retrieved a few things and left.
At about 7:00 a.m., Buck returned with a rifle and shotgun. Upon entering the house,
he shot at Ebenezer but missed. Ebenezer fled the house. Buck then walked up to his sister,
Taylor, put the muzzle of one of the guns against her chest, and shot her. Taylor survived.
ei aga ieee Page 3 of 18
App. 3
After she was shot, Taylor heard more shots coming from the vicinity of the
bedrooms. As she made her way through the house, Taylor saw Butler's body in the hallway.
After escaping, Ebenezer also heard two or three more shots fired inside the house. As he
came around to the front of the house, Ebenezer saw Gardner waiking toward the street with
Buck following her.
Devon Green, Gardner's son, hid in the closet after hearing the first shot fired.
Shortly thereafter, he heard Buck's voice accusing Butler of sleeping with “his
wife, “followed by another gunshot. After a short while, Green looked out into the hall and
saw Butler leaning against the wall bleeding. Green then ran outside and saw Buck shoot his
mother and put two guns in the trunk of his car. Gardner's teenage daughter, Shenne!
Gardner, also saw Butler in the hallway after he was shot and then went outside and saw
Buck shoot her mother. Both Butler and Gardner died from their wounds.
When police arrived, both Green and Ebenezer identified Buck as the shooter. Police
subsequently retrieved a shotgun and a .22 caliber rifle from the trunk of Buck's car.
The case was tried to a jury. The jury found Buck guilty of capital murder at the
conclusion of the guilt-innocence phase of the trial.
During the penalty phase, the State presented evidence of Buck's prior convictions
for delivery of cocaine and unlawfully carrying a weapon. Vivian Jackson, Buck's ex-
girlfriend and the mother of Buck's son, testified that Buck physically abused her and
threatened her with a gun. One of the police officers who accompanied Buck after his arrest
recta, gaan weieaeien 5 Page 4 of 18
App. 4
testified that Buck was laughing. When the officer commented that he did not think the
situation was very funny, Buck responded: “The bitch deserved what she got.”
Buck presented evidence that he is a peaceful, nonviolent, person, that his mother died
when he was 12 years old, that he worked as an auto mechanic, and that his father served
several jail sentences for non-violent felonies. The defense also called Dr. Walter Quijano,
a clinical psychologist, as an expert witness. Dr. Quijano opined, based on his evaluation of
Buck, that Buck has a dependent personality disorder. People suffering from this disorder
can become obsessive about relationships and have a very difficult time letting go after a
relationship ends.
Dr. Quijano also testified that several factors can be predictive of future
dangerousness. These include, according to Dr. Quijano, past violent behavior, the age and
sex of the defendant (with older defendants less likely to be violent in the future, and male
defendants more likely than female defendants to be violent), socio-economic status, and
history of substance abuse. Dr. Quijano also testified that Latinos and African-Americans
are over-represented in the penal system. Applying these factors to Buck, Quijano testified
that Buck’s lack of a violent past made it less likely that he would be violent in the future.
Based on his selection of victims (a fu« ser girlfriend) and his prison disciplinary record,
Quijano concluded that he is unlikely to be violent in prison.
Buck also called Dr. Patrick Gordon Lawrence, another clinical psychologist. Dr.
Lawrence agreed that Buck has a dependent personality and that he poses a low probability
ee ieee Page 5 of 18
App. 5
of future violence. The jury found that Buck posed a future danger to society, and that there
was insufficient mitigating evidence to justify a sentence of life imprisonment. Accordingly,
the trial court sentenced Buck to death.
The Texas Court of Criminal Appeals (“TCCA”) affirmed Buck's conviction and
sentence on April 28, 1999. Buck v. State, No. 72,810 (Tex. Crim. App. Apr. 28, 1999). On
March 22, 1997, Buck filed a state habeas corpus petition. On December 13, 2002, he filed
a successive State habeas application. On January 23, 2003, the trial court found that Buck's
second petition was a subsequent habeas application and ordered the clerk to send it to the
TCCA. The trial court recommended denying Buck's original petition on July 23, 2003. On
October 15, 2003, the TCCA adopted the trial court's findings and recommendation and
denied Buck’s first application, and dismissed his second application as an abuse of the writ.
Ex Parte Buck , Nos. 57,004-01, 02 (Tex. Crim. App. Oct. 15, 2003) (per curiam).
On October 14, 2004 , Buck filed his federal petition for a writ of habeas corpus. This
Court denied his petition on July 24, 2006, the Fifth Circuit denied Buck's request for a
certificate of appealability, Buck v. Thaler, No. 06-70035 (S” Cir. Sept. 25, 2009), and the
Supreme Court denied his petition for a writ of certiorari, Buck v. Thaler, 130 S.Ct. 2096
(2010).
On September 7, 2011, Buck filed a motion for relief from this Court's judgment.
This Court denied that motion on September 9, 2011 (Inst. # 31). On September 12, 2011,
Buck filed a motion to alter or amend the judgment denying his motion for relief from the
ine ct cnet Page 6 of 18
App. 6
judgment. This Court denied that motion on the same day (Inst. # 36). The Fifth Circuit
denied Buck's request for a certificate of appealability on September 14, 2011. Buck v.
Thaler, 452 Fed. App’x 423 (5* Cir. 2011). The Supreme Court denied Buck's petition for
a writ of certiorari on November 7, 2011. Buck v. Thaler, 132 $.Ct. 32 (2011).
The Supreme Court decided Martinez in 2012, and Trevino in 2013. On January 7,
2014, Buck filed this Rule 60(b) motion.
ll. Analysis
In this renewed motion for relief from the judgment, Buck argues that his trial counse!
rendered ineffective assistance by calling Dr. Quijano to testify. Buck's counsel asked Dr.
Quijano to discuss certain statistical factors relevant to determining whether a defendant
poses a future threat to commit criminal acts of violence. Among the factors Dr. Quijano
discussed on direct examination was race. Dr. Quijano testified that “minorities, Hispanics
and black people are over represented in our Criminal Justice System.” The prosecutor asked
an additional race related question on cross-examination. Buck is African-American.
in his habeas petition, Buck argued that Dr. Quijano’s reliance on race as a Statistica!
predictor of future dangerousness, and the prosecutor's reference to this testimony on cross-
examination, invited the jury to consider his race as a predictor of future dangerousness. He
also argues that his counse! rendered ineffective assistance by eliciting this race related
testimony from Dr. Quijano, and that counsel was ineffective for failing to object when the
prosecutor asked a question about this testimony during Quijano’s cross examination.
ee edule Page 7 of 18
App. 7
Buck notes that the Texas Attorney General conceded error in several other cases
involving similar testimony by the same witness. He contends that the Attorney General also
Stated that he would not assert procedural defenses to such claims in federal court, but
asserted such a defense in this case.
Buck conceded that he did not raise these claims either in his direct appeal or in his
Original state habeas corpus application, though he did raise them in his successive state
habeas application. The TCCA dismissed the successive petition as an abuse of the writ.
This Court therefore had no choice but to find the claims procedurally defaulted. See
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
This Court also discussed whether Buck could avoid the procedural default by
showing that he is “actually innocent of the death penalty,” i.e. , but for a constitutional error,
he would not have been legally eligible for a sentence of death, see Sawyer v. Whitley, SOS
U.S. 333, 335 (1992). The penalty phase evidence showed that Buck had a history of
domestic violence, including: threatening his ex-girlfriend with a gun, shot his own sister
during the rampage that resulted in the murders of Gardner and Butler, murdered Gardner
in front of her children, showed no remorse for the murders, and laughed when asked about
the murders. The Court found that the evidence presented was sufficient for the jury to
conclude that Buck posed a future danger and was therefore eligible for a sentence of death.
Case 4:04-cv-03965 — 66 Filed in TXSD on “es Page 8 of 18
App. 8
A. Rule 60(b)
Rule 60(b\(6) provides for relief from a judgment for “any . . . reason that justifies
relief.” This Court can consider the motion if it “attacks, not the substance of the federal
court's resolution [of Buck’s habeas corpus petition] on the merits, but some defect in the
integrity of the federal habeas proceedings.” Gonzalez v. Crosby, 545 U.S. 524, 532 (2005).
Relief under Rule 60(b) is available only if the case presents “extraordinary circumstances.”
Id. at 536.
Generally speaking, a “change in decisional law after entry of judgment does not
constitute extraordinary circumstances” and is not alone a ground for relief from a final
judgment under Rule 60(b\(6). Adams v. Thaler, 679 F.3d 312, 319 (5S” Cir. 2012) (internal
quotation marks and citation omitted). Adams specifically rejected the argument that
Martinez, standing alone, constitutes “extraordinary circumstances” justifying relief under
Rule 60(b)(6). /d. at 320. Buck argues that his case does present extraordinary
circumstances because of the nature of Quijano’s testimony, the fact that the claims have
never been addressed on the merits by a reviewing court due to procedural bars, and the
Texas Attorney General's decision not to raise procedural defenses in cases that Buck claims
are similar.
As previously addressed in this Court's memorandum and order denying Buck’s
petition, Quijano’s testimony on direct examination in this case noted the fact that African-
Americans and Latinos are over-represented in the penal system. On cross examination,
Case ee 66 Filed in TXSD on — Page 9 of 18
App. 9
Quijano answered “yes” when asked: “You have determined that the sex factor, that a maje
is more violent than a female because that's just the way it is, and that the race factor, black,
increases the future dangerousness for various complicated reasons; is that correct?” 28 Tr.
at 160. Buck challenged this testimony solicited on cross examination, but the Fifth Circuit
has previously rejected his claim that his case is similarly situated to the other cases in which
Quijano testified.
Citing a line of cases in which Texas has conceded error and
waived procedural default after the prosecution had introduced
Dr. Quijano as an expert witness during the penalty phase, Buck
contends that notions of “intra-court comity” compel us to
conclude that the State must also waive procedural default in the
instant case. Buck's case, however, differs markedly from, ¢.g.,
Saldano v. Roach, (363 F.3d 545 (5* Cir. 2004),) in which the
prosecution introduced Dr. Quijano as an expert witness and
then proceeded to question him as to how the defendant's race
might serve as a predictor of future dangerousness. In Saldano,
the State conceded its error and waived any procedural bar that
otherwise might have precluded our review of the defendant's
claim on the merits. Here, in contrast, the State has not
conceded any error or waived its procedural bar. Rather, the
State has consistently maintained that it did not violate Buck's
constitutional rights merely by questioning Buck’s own witness
— without objection from Buck — on the very same issues first
discussed by that witness during direct examination by the
defense, a classic example of the defense “opening the door” for
the prosecutor to pursue the subject. Because Buck's
characterization of “intra-court comity” finds no support in our
precedent, we decline to apply here concessions made by the
State in a different case with different facts. Such a broad
expansion of a party’s case-specific concession would not only
contravene our precedent, but would also discourage the State
from conceding error when it seeks to correct its own mistakes
~ both of which are clearly undesirable results.
weuiiete anaes ee eee Page 10 of 18
App. 10
Buck v. Thaler, 345 Fed. App’x 923, 929 (5® Cir. 2009) (footnotes omitted). The Fifth
Circuit has found that Buck’s case is different in critical respects from the cases in which
Texas confessed error.
Finally, Buck's argument that this Court should grant relief because no court has yet
reviewed the merits of his ineffective assistance of counsel claims is circular. Procedural
bars prevent courts from reviewing claims on the merits. Buck's claim is procedurally
defaulted. Therefore, the claim has not been reviewed on the merits. Buck suggests that the
fact that the claims are defaulted should constitute extraordinary circumstances excusing the
default. Other than citing Martinez, however, Buck has failed to demonstrate that this case
presents extraordinary circumstances. While the introduction of any mention of race was ill-
advised at best and repugnant at worst, it was, in this case, de minimis. As respondent points
out, there were two references to race in Dr. Quijano’s testimony. On direct examination,
Quijano stated the indisputable fact that African- Americans and Latinos are over-represented
in the criminal justice system. On cross examination, Dr. Quijano answered affirmatively
when questioned about earlier findings he had made that being black is one statistical factor
he considered in reaching his conclusion. The prosecutor did not make any race-based
argument in closing. Moreover, the State's confession of error in other cases does not create
any legally enforceable rights, nor does equity demand that the confession of error be
extended to Buck's case for the reasons stated by the Fifth Circuit and quoted above. Finally,
the fact that his claims have not been reviewed on the merits is a result of the fact that they
10
Case 4:04-cv-03965 a 66 Filed in TXSD on ae 4 Page 11 of 7
App. 11
were procedurally defaulted. If that constituted “extraordinary circumstances,” then the
change in decisional law represented by Martinez, would, by itself, provide grounds for relief
under Rule 60(b). As noted above, both the Supreme Court and the Fifth Circuit have held
otherwise. See Gonzalez, 545 U.S. at 531-32; Adams, 679 F.3d at319.
B. Ineffective Assistance of Counse]
Assuming without finding that Buck has demonstrated that his case presented
“extraordinary circumstances,” he would not be entitled to relief on the merits of his claim.
In Martinez, the Supreme Court carved out a narrow equitable exception to the rule that a
federal habeas court cannot consider a procedurally defaulted claim of ineffective assistance
of counsel.
[Wjhen a State requires a prisoner to raise an ineffective-
assistance-of-trial-counse! claim in a collateral proceeding, a
prisoner may establish cause for a default of an ineffective-
assistance claim . . . where appointed counsel in the initia!-
review collateral proceeding . . . was ineffective under the
standards of Strickland v. Washington, 466 U.S. 668 . . . (1984).
To overcome the default, a prisoner must also demonstrate that
the underlying ineffective-assistance-of-trial counsel claim is a
substantial one, which is to say that the prisoner must
demonstrate that the claim has some merit.
Martinez v. Ryan, 132 §.Ct. 1309, 1318-19 (2012).
To prevail on a claim for ineffective assistance of counsel, Petitioner
must show that . . . counsel made errors so serious that counse!
was not functioning as the “counsel” guaranteed by the Sixth
Amendment. Second, the [petitioner] must show that the
deficient performance prejudiced the defense. This requires
il
ni: quae ecient 4 Page 12 of 18
App. 12
showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to prevail on the first prong
of the Strickland test, Petitioner must demonstrate that counse]’s representation fell below
an objective standard of reasonableness. /d. at 687-88. Reasonableness is measured against
prevailing professional norms, and must be viewed under the totality of the circumstances.
Id. at 688. Review of counsel's performance is deferential. /d. at 689.
In the context of a capital sentencing proceeding, “the question is whether there is a
reasonable probability that, absent the errors, the sentencer . . . would have concluded that
the balance of aggravating and mitigating circumstances did not warrant death.” Strickland,
465 U.S. at 695. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” /d. at 694.
During the penalty phase, the State presented evidence of Buck’s prior convictions
for delivery of cocaine, possession of a controlled substance, and unlawfully carrying a
weapon. 28 Tr. at 5-28, 239-43. The State also presented testimony from Buck’s former
girlfriend recounting acts of domestic violence, including one instance in which Buck
threatened her with a gun. /d. at 31-40.
In addition to Buck’s past history, the jury was aware of the horrific facts of Buck's
murder of Gardner and Butler. These included Buck’s attempt to murder his own sister, and
his murder of Gardner in front of her two children. The jury also heard that Buck was
12
Case 4:04-cv-03965 — Filed in TXSD on 4 Page i3 o0f1is8
App. 13
laughing about the murders when he was arrested, and that he said about Gardner that “the
bitch deserved what she got.” /d. at 50-51.
Buck called several witnesses who knew him and testified that he was not violent. See
28 tr. at 77, 84-85, 96. He also called two expert witnesses: Dr. Quijano and Dr. Patrick
Lawrence. Quijano was the former chief psychologist for TDCJ, id. at 101-02, and Lawrence
was a psychologist specializing in prediction of future criminal behavior, id. at 177, 182-85.
Buck’s counsel offered testimony that Quijano was neutral, emphasizing his
experience working for TDC, id. at 101-04, and eliciting the fact that Quijano had testified
for both defendants and the State in the past. /d. at 104-05. Quijano offered his opinion that
Buck was not a future danger. /d. at 115. He based his conclusion, in part, on “several
statistical factors . . . including, but not limited to age, sex, race, social economics, history
of violence, and history of substance abuse.” Buck v. Thaler, 345 Fed. App’x at 925.
Included in Quijano’s testimony was his observation that African- Americans and Latinos are
over-represented in the criminal justice system. 28 Tr. at 111.
Nevertheless, the Court finds that counsel’s representation fell below an objective
standard of reasonableness under the first prong of Strickland. See Strickland, 466 U.S. at
687-88. Buck’s trial counsel called Dr. Quijano as a witness even though he knew that Dr.
Quijano had previously testified on the direct correlation between race and future
dangerousness. Additionally. Buck's counsel had received Dr. Quijano’s expert report before
trial clearly stating that Buck’s race made him statistically more likely to be a future danger.
13
Case 4:04-cv-03965 es 66 Filed in TXSD on — Page 14 of 18
App. 14
Buck v. Thaler, U.S. __ 132 S. Ct. 32, 33 (2011). Despite the longstanding “‘ unceasing
efforts’ to eradicate racial prejudice from our criminal justice system,” McCleskey v. Kemp,
481 U.S. 279, 309 (1987), Buck's counsel called Dr. Quijano as a witness and relied on his
expert report, although counse! was fully aware of Dr. Quijano’s inflammatory opinions
aboul race. There was no strategic reason to do so because Buck's counsel offered a second
expert at trial, Dr. Lawrence, who had no history of this kind of troubling race-based
testimony. Testimony like that of Dr. Quijano lends credence to any potential latent racial
prejudice held by the jury. Cf Guerra v. Collins, 916 F. Supp. 620, 636 (S.D. Tex. 1995),
aff'd sub nom. Guerra v. Johnson, 90 F.3d 1075 (Sth Cir. 1996) (holding that a defendant is
“entitled to have his punishment assessed by the jury based on consideration of the mitigating
and aggravating circumstances concerning his personal actions and intentions, not those of
a group of people with whom he shared a characteristic.”). Buck’s counsel recklessly
exposed his client to the risks of racial prejudice and introduced testimony that was contrary
to his client's interests. His performance fell below an objective standard of reasonableness,
and the Court therefore finds that trial counsel’s performance was constitutionally deficient.
However, the Court finds that under the facts of this case, Buck cannot show that he
was prejudiced by his counsel's constitutionally deficient action. In light of the aggravating
evidence, particularly the facts of the crime and Buck’s actions following the murders, it
cannot be said that there is a reasonable probability that the outcome would have been
different if Quijano had made no reference to race. Although counsel rendered deficient
14
Case 4:04-cv-03965 — 66 Filed in TXSD on 7 Page 15 of 18
App. 15
performance by calling Quijano as a witness, Buck suffered no Strickland prejudice as a
result. Therefore, the Court finds that Petitioner has not established a claim of ineffective
assistance of trial counsel on this issue.
Buck also contends that his counsel was ineffective for failing to object when the
State asked Quijano a question about the issue of Buck’s race. As the Fifth Circuit noted,
Buck opened the door to this question. See Buck v. Thaler, 345 Fed. App’x at 930. Because
Buck opened the door, any objection to the prosecutor’s question would have been futile.
“This Court has made clear that counsel is not required to make futile motions or objections.”
Koch v. Puckett, 907 F.2d 524, 527 (S” Cir. 1990) . Counsel was not ineffective for failing
to make a futile objection.
Assuming without deciding, however, that the prosecutor’s question amounted to
constitutional error, Buck cannot prove prejudice. As previously discussed, the evidence
showed that Buck had a prior criminal history and was violent toward his ex-girlfriend. He
committed a brutal double murder, killing one of the victims in front of her two young
children, and shot his own sister in the chest. Under these facts, there is no reasonable
probability that the outcome of the sentencing phase would have been different if counsel
objected to the prosecutor's question.
1S
eee ace ve Page 16 of 18
App. 16
C. Certificate of Appealability
Although Buck has not requested a certificate of appealability (“COA”), the court
may nevertheless determine whether he is entitled to this relief in light of the court's rulings.
See Alexander v. Johnson, 211 F.3d 895, 898 (Sth Cir. 2000) (“It is perfectly lawful for
district court's [sic] to deny a COA sua sponte. The statute does not require that a petitioner
move for a COA; it merely states that an appeal may not be taken without a certificate of
appealability having been issued.”). A petitioner may obtain a COA either from the district
court or an appellate court, but an appellate court will not consider a petitioner's request for
a COA until the district court has denied such a request. See Whitehead v. Johnson, 157 F.3d
384, 388 (5 Cir. 1988); see also Hii) v. Johnson, 114 F.3d 78, 82 (S* Cir. 1997) (“[T]he
district court should continue to review COA requests before the court of appeals does.”’).
“A plain reading of the AEDPA compels the conclusion that COAs are granted on an issue-
by-issue basis, thereby limiting appellate review to those issues alone.” Lackey v. Johnson,
116 F.3d 149, 151 (S® Cir. 1997). A COA may issue only if the petitioner has made a
“substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)\(2); see also
United States v. Kimler, 150 F.3d 429, 431 (Sth Cir. 1998). A petitioner “makes a substantial
showing when he demonsirates that his application involves issues iha’ are ‘ebatable among
jurists of reason, that another court could resolve the issues differently, or that the issues are
Suitable enough to deserve encouragement to proceed further.” Hernandez v. Johnson, 213
16
Case ae 66 Filed in TXSD on » Page 17 of 18
App. 17
F.3d 243, 248 (Sth Cir.), cert. denied, 531 U.S. 966 (2000). The Supreme Court has stated
that
Where a district Court has rejected the constitutional claims on
the merits, the showing required to satisfy § 22530 is
straightforward: The petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the
constitutional claims debatable or wrong. The issue becomes
dismisses the petition based on procedural! grounds. We hold as
follows: When the district court denies a habeas petition on
procedural grounds without reaching the prisoner's underlying
constitutional claim, a COA should issue when the
shows, at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural
ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000). “[T}he determination of whether a COA
should issue must be made by viewing the petitioner's arguments through the lens of the
deferential scheme laid out in 28 U.S.C. § 2254(d).” Barrientes v. Johnson, 221 F.3d 741,
772 (S" Cir. 2000), cert. dismissed, 531 U.S. 1134 (2001).
This Court concludes that Buck has failed to make a “substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)\(2), and that jurists of reason would not
find it debatable whether this court is correct in its procedural determinations. Therefore,
Buck is not entitled to a COA.
17
ee Filed in TXSD on 4 Page 18 of 18
App. 18
D. Conclusion
For the foregoing reasons, Buck's renewed motion for relief from the judgment (Inst.
# 49) is denied.
i. Order
For the foregoing reasons, [T IS ORDERED THAT Buck’s Motion For Relief From
Judgment (Docket Entry 49) is Denied; and
IT iS FURTHER ORDERED THAT no certificate of appealability shall issue.
SO ORDERED.
w~
SIGNED at Houston, Texas, on this21 day orhapst 2014.
nase fa
United States District Judge
Appendix E
oe TT ae Page 1 of 25
App. 1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DUANE EDWARD BUCK,
H-04-3965
Memorandum and Order
This case is before the Court on Petitioner Duane Edward Buck’s Petition for Writ of
Habeas Corpus and Respondent Doug Dretke’s Motion for Summary Judgment. Having
carefully considered the Petition, the Summary Judgment Motion, the evidence, and the
arguments and authorities submitted by counsel, the Court is of the opinion that Respondent’s
Motion for Summary Judgment should be GRANTED, and Buck’s Petition for Writ of
Habeas Corpus should be DENIED.
Case 4:04-cv-03965 — 15 Filed in TXSD on —— Page 2 of 25
App. 2
|. Background’
During the early morning hours of July 30, 1995, Harold Ebenezer, his brother
Kenneth Butler, Buck’s sister Phyllis Taylor, and Debra Gardner all gathered at Gardner’s
house after a night out playing pool. Buck lived in the house with Gardner on and off over
the previous few years, but Gardner and Buck broke up two or three weeks earlier.
Buck banged loudly on Gardner’s door and Gardner called “911.” Buck then forced
the door open and entered the house. He argued with Gardner and struck her. Buck then
stated that he was there to pick up his clothes. He retrieved a few things and left.
At about 7:00 a.m., Buck returned with a rifle and shotgun. Upon entering the house,
he shot at Ebenezer but missed; Ebenezer fled the house. Buck then walked up to his sister,
Taylor, put the muzzle of one of the guns against her chest, and shot her. Taylor survived.
After she was shot, Taylor heard more shots coming from the vicinity of the
bedrooms. As she made her way through the house, Taylor saw Butler's body in the
hallway. After escaping, Ebenezer also heard two or three more shots fired inside the house.
As he came around to the front of the house, Ebenezer saw Gardner walking toward the
street with Buck following her.
Devon Green, Gardner’s son, hid in the closet after hearing the first shot fired.
Shortly thereafter, he heard Buck’s voice accusing Butler of sleeping with “his wife,”
. The facts are adapted from the opmion of the Texas Court of Criminal Appeals
(“TCCA”) on Buck’s direct appeal. See Buck v. State, No. 72,810 at 2-3 (Tex. Crim App. Apr
28, 1999). Any significant divergence from the TCCA statement of facts is noted with a specific
citation to the record.
Case 4:04-cv-03965 ment 15 Filed in TXSD on a Page 3 of 25
App. 3
followed by another gunshot. After a short while, Green looked out into the hall and saw
mother and put two guns im the trunk of his car. Gardner's teenage daughter, Shennel
Gardner, also saw Butler in the hallway after he was shot and then went outside and saw
When police arrived, both Green and Ebenezer identified Buck as the shooter. Police
subsequently retrieved a shotgun and a .22 caliber rifle from the trunk of Buck’s car.
During the penalty phase, the State presented evidence of Buck’s prior convictions
for delivery of cocaine and unlawfully carrying a weapon. 28 Tr. at 5-28.? Vivian Jackson,
Buck’s ex-girlfriend and the mother of Buck’s son, testified that Buck physically abused her
and threatened her with a gun. /d. at 30-36. One of the police officers who accompanied
Buck after his arrest testified that Buck was laughing. When the officer commented that he
did not think the situation was very funny, Buck responded: “The bitch deserved what she
got.” Id. at 62-70.
Buck presented evidence that he is a peaceful, nonviolent, person, that his mother died
when be was 12 years old, that he worked as an auto mechanic, and that his father served
several jail sentences for non-violent felonies. /d. at 76-100. The defense also called Dr.
Walter Quijano, a clinical psychologist, as an expert witness. Dr. Quijano opined, based on
his evaluation of Buck, that Buck has a dependent personality disorder. People suffering
. “Tr.” refers to the transcript of Buck's trial
3
Case 4:04-cv-03965 a a 15 Filed in TXSD on - x Page 4 of 25
from this disorder can become obsessive about relationships and have a very difficult time
letting go after a relationship ends.
Dr. Quijano also testified that several factors can be predictive of future
dangerousness. These include, according to Dr. Quijano, past violent behavior, the age and
sex of the defendant (with older defendants less likely to be violent in the future, and male
defendants more likely than female defendants to be violent), socio-economic status, and
history of substance abuse. Dr. Quijano also testified that race is a statistical predictor of
future dangerousness based on the fact that Latinos and African-Americans are over-
represented in the penal system. Applying these factors to Buck, Quijano testified that
Buck’s lack of a violent past made it less likely that he would be violent in the future. Based
on his selection of victims (a former girlfriend) and his prison disciplinary record, Quijano
concluded that he is unlikely to be violent im prison. /d. at 101-20.
Buck also called Dr. Patrick Gordon Lawrence, another clinical psychologist. Dr.
Lawrence agreed that Buck has a dependent personality and that he poses a low probability
of future violence. /d. at 177-206. The jury found that Buck posed a future danger to
society, and that there was insufficient mitigating evidence to justify a sentence of life
imprisonment. Accordingly, the trial court sentenced Buck to death. 29 Tr. at 278.
The TCCA affirmed Buck's conviction and sentence on April 28, 1999. Buck v. State,
No. 72,810 (Tex. Crim. App. Apr. 28, 1999). On March 22, 1997, Buck filed a state habeas
corpus petition. On December 13, 2002, he filed a successive state habeas application. SH.
‘case 4:04-cv-03965 — 15 Filed in TXSD on 07 Page 5 of 25
App. 5
at 2.’ On January 23, 2003, the trial court found that Buck’s second petition was a
subsequent habeas application and ordered the clerk to send it to the TCCA. /d. at 18-19.
The trial court reconymended denying Buck's original petition on July 23, 2003. SH. at 119-
27. On October 15, 2003, the TCCA adopted the trial court’s findings and recommendation
and denied Buck’s first application, and dismissed his second application as an abuse of the
writ. Ex Parte Buck , Nos. 57,004-01, -02 (Tex. Crim. App. Oct. 15, 2003) (per curiam).
On October 14, 2004 , Buck filed this timely federal petition for a writ of habeas corpus.
Ml. The Applicable Legal Standards
A. The Anti-Terroriem and Effective Death Penalty /
This federal petition for habeas relief is governed by the applicable provisions of the
Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), which became effective April
24, 1996. See Lindh v. Murphy, 521 U.S. 320, 335-36 (1997). Under the AEDPA, federal
habeas relief based upon claims that were adjudicated on the merits by the state courts cannot
be granted unless the state court’s decision (1) “was contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by the Supreme Court of the
United States” or (2) “was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); Kitchens v.
Johnson,\90 F.3d 698, 700 (5* Cir. 1999).
For questions of law or mixed questions of law and fact adjudicated on the merits in
. “SH.” refers to the transcript of Buck’s state habeas corpus proceeding.
5
Case 4:04-cv-03965 — 15 Filed in TXSD on 07 Page 6 of 25
App. 6
state court, this Court may grant federal habeas relief under 28 U.S.C. § 2254(d\(1) only if
the state court decision “was contrary to, or involved an unreasonable application of, clearly
established [Supreme Court precedent).” See Martin v. Cain, 246 F.3d 471, 475 (5* Cir.),
cert. denied, 534 U.S. 885 (2001). Under the “contrary to” clause, this Court may afford
habeas relief only if “‘the state court arrives at a conclusion opposite to that reached by
. . . [the Supreme Court) on a question of law or if the state court decides a case differently
than . . . [the Supreme Court) has on a set of materially indistinguishabie facts.’” Dowthitt
v. Johnson, 230 F.3d 733, 740-41 (5* Cir. 2000), cert. denied, 532 U.S. 915 (2001) (quoting
Terry Williams v. Taylor, 529 US. 362, 406 (2000)).*
The “unreasonable application” standard permits federal! habeas relief only if a state
court decision “identifies the correct governing legal rule from [the Supreme Court] cases but
unreasonably applies it to the facts of the particular state prisoner’s case” or “if the state
court either unreasonably extends a legal principle from [Supreme Court] precedent to a new
context where it should not apply or unreasonably refuses to extend that principle to a new
context where it should apply.” Terry Williams, 529 U.S. at 406. “In applying this standard,
we must decide (1) what was the decision of the state courts with regard to the questions
before us and (2) whether there is any established federal law, as explicated by the Supreme
: On April 18, 2000, the Supreme Court issued two separate opinions, both
originating in Virginia, involving the ABDPA, and in which the petitioners had the same sumame.
Terry Williams v. Taylor, $29 U.S. 362 (2000), involves § 2254(d\(1), and Michael Williams v.
Taylor, 529 U.S. 420 (2000), involves § 2254{«)(2). To avoid confusion, this Court will include
the full name of the petitioner when citing to these two cases.
case 4:04-cv-03965 — 15 Filed in TXSD on 07, Page 7 of 25
App. 7
Court, with which the state court decision conflicts.” Hoover v. Johnson, 193 F.3d 366, 368
(S* Cir. 1999). A federal court’s “focus on the ‘unreasonable application’ test under Section
2254(d) should be on the ultimate legal conclusion that the state court reached and not on
whether the state court considered and discussed every angle of the evidence.” Neal v.
Puckett, 239 F.3d 683, 696 (5* Cir. 2001), aff'd, 286 F.3d 230 (5* Cir. 2002) (en banc), cert.
denied sub nom. Neal v. Epps, 537 U.S. 1104 (2003). The solitary inquiry for a federal court
under the ‘unreasonable application’ prong becomes “whether the state court’s determination
is ‘at least minimally consistent with the facts and circumstances of the case.’” /d (quoting
Hennon v. Cooper, 109 F.3d 330, 335 (7* Cir. 1997)); see also Gardner v. Johnson, 247
F.3d 551, 560 (5* Cir. 2001) (“Even though we cannot reverse a decision merely because we
would reach a different outcome, we must reverse when we conclude that the state court
decision applies the correct legal rule to a given set of facts in a manner that is so patently
incorrect as to be ‘unreasonable.’”’).
The AEDPA precludes federal habeas relief on factual issues unless the state court’s
adjudication of the merits was based on an unreasonable determmation of the facts in light
of the evidence presented im the state court proceeding. See 28 U.S.C. § 2254 (d)(2); Hill
v. Johnson, 210 F.3d 481, 485 (5* Cir. 2000), cert. denied, 532 U.S. 1039 (2001). The State
court’s factual determinations are presumed correct unless rebutted by “clear and convincing
evidence.” 28 U.S.C. § 2254(e(1); see also Jackson v. Anderson, 112 F.3d 823, 824-25 (5*
Cir. 1997), cert. denied, 522 U.S. 1119 (1998).
Case 4:04-cv-03965 _— 15 Filed in TXSD on —— Page 8 of 25
App. 8
“As a general principle, Rule 56 of the Federal Rules of Civil Procedure, relating to
summary judgment, applies with equal force in the context of habeas corpus cases.” Clark
v. Johnson, 202 F.3d 760, 764 (5* Cir.), cert. denied, 531 U.S. 831 (2000). Insofar as they
are cop.istent with established habeas practice and procedure, the Federal Rules of Civil
Procedure apply to habeas cases. See Rule 11 of the Rules Governing Section 2254 Cases.
In ordinary civil cases, a district court considering a motion for summary judgment is
required to construe the facts in the case in the light most favorable to the non-moving party.
See Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986) (“The evidence of the nonmovant
is to be believed, and all justifiable inferences are to be drawn in his favor’). Where a state
prisoner’s factual allegations have been adversely resolved by express or implicit findings
of the state courts, however, and the prisoner fails to demonstrate by clear and convincing
evidence that the presumption of correctness established by 28 U.S.C. § 2254(e)(1) should
not apply, it is inappropriate for the facts of a case to be resolved in the petitioner's favor.
See Marshall v. Lonberger, 459 U.S. 422, 432 (1983); Sumner v. Mata, 449 U.S. 539, 547
(1981); Foster v. Johnson, 293 F.3d 766, 777 (5* Cir.), cert. denied sub nom Foster v. Epps,
537 U.S. 1054 (2002); Dowthitt v. Johnson, 230 F.3d 733, 741 (5* Cir. 2000), cert. denied,
532 U.S. 915 (2001); Emery v. Johnson, 940 F.Supp. 1046, 1051 (S.D. Tex. 1996), aff'd,
139 F.3d 191 (5* Cir. 1997), cert. denied, 525 U.S. 969 (1998). Consequently, where facts
have been determined by the Texas state courts, this Court is bound by such findings unless
an exception to 28 U.S.C. § 2254 is shown.
case 4:04-cv-03965 — 15 Filed in TXSD on 07. Page 9 of 25
App. 9
mu. Analysis
Buck’s petition raises cight claims for relief. These are addressed in turn.
A.
In his first claim for relief, Buck argues that the trial court violated his Fourteenth
Amendment right to due process of law by refusing to inform, or allow Buck to inform, the
jury of the law concerning Buck’s parole eligibility if sentenced to life imprisonment. Buck
contends that this unfairly impeded his ability to rebut the State’s argument that he posed a
future danger to society. In his second claim, Buck argues that this lack of information
renders his sentence violative of the Eighth Amendment because it impeded his ability to
offer mitigating evidence. In his third claim, Buck argues that the trial court's refusal to
permit testimony concerning parole eligibility violated Buck’s rights under the compulsory
process clause of the Sixth Amendment.
The crux these three claims is whether the fact that a life sentence would make Buck
ineligible for parole until he served 40 years in prison was relevant to the issue of his future
dangerousness. He argues that his expert witnesses were not permitted to testify that this
was a factor in their conclusions that he was not a future danger, and that his lawyers were
also not permitted to inform the jury of this part of his experts’ analysis.
Petitioner argues that his position is supported by the United States Supreme Court's
decision m Simmons v. South Carolina, 512 U.S. 154 (1994). At the time of Simmons’
conviction, South Carolina allowed for a sentence of life in prison without the possibility of
parole upon conviction of a capital offense. In Simmons, the defense sought an instruction
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informing the jury that life imprisonment would carry no possibility of parole, but the tria!
court refused. The Supreme Court held that when “the alternative sentence to death is life
without parole . . . due process plainly requires that (the defendant) be allowed to bring
[parole ineligibility] to the jury’s attention by way of arguments by defense counsel or an
instruction from the court.” Simmons, 512 U.S. at 169 (citing Gardner v. Florida, 430 U.S.
349, 362 (1977).
The Simmons court reasoned that when a state imposes the death penalty on the
premise that the convicted individual poses a danger to society, the fact that the defendant
may receive life without possibility of parole “will necessarily undercut the State’s argument
regarding the threat the defendant poses to society.” Simmons, 512 U.S. at 169. To hold
otherwise would create a “false dilemma by advancing generalized argument regarding the
defendant's future dangerousness while, at the same time, preventing the jury from learning
that the defendant will never be released on parole.” /d. at 171.
Simmons addresses very specific circumstances: (1) When the state secks the death
penalty at least in part on the grounds that the defendant will be a future danger to society;
and (2) when the alternative to a sentence of death is a sentence of life imprisonment without
the possibility of parole.
[I}f the State rests its case for imposing the death penalty at least
in part on the premise that the defendant will be dangerous in
the future, the fact that the alternative sentence to death is life
without parole will necessarily undercut the State’s argument
regarding the threat the defendant poses to society. Because
truthful information of parole ineligibility allows the defendant
to deny or explain the showing of future dangerousness, duc
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process plainly requires that he be allowed to bring it to the
jury’s attention by way of argument by defense counsel or an
instruction from the court.
Simmons, 512 U.S. at 168-69 (internal quotation marks and citation omitted); see also, Wheat
v. Johnson, 238 F.3d 357, 361-62 (5* Cir.), cert. denied, 532 U.S. 1070 (2001). While the
State did seek a death sentence in this case partially on the basis that Petitioner would pose
a continuing threat, the jury’s alternative was a parole-cligible life sentence, not, as m
Simmons, \ife without parole. /d. at 168 n.8.
The Fifth Circuit has repeatedly rejected Buck's claim.
[TJhe Supreme Court took great pains in its opinion in Simmons
to distinguish states such as Texas, which does not provide
capital sentencing juries with an option of life without parole,
from the scheme im South Carolina which required an
instruction on parole ineligibility . . . [T]he Fifth Circuit has
refused to extend the rule in Simmons beyond those
situations m which a capital murder defendant is statutorily
ineligible for parole.
Green v. Johnson, 160 F.3d 1029, 1045 (5* Cir. 1998), cert. denied, $25 U.S. 1174 (1999);
see also, Wheat, 238 F.3d at 361-62 (5* Cir.), cert. denied, 532 U.S. 1070 (2001) finding
Simmons inapplicable to the Texas sentencing scheme); Soria v. Johnson, 207 F.3d 232 (5*
Cir.), cert. denied, 530 U.S. 1286 (2000) finding that “reliance on Simmons to demonstrate
that the Texas capital sentencing scheme denied [petitioner] a fair trial is unavailing’’); Miller
v. Johnson, 200 F.3d 274, 290 (5* Cir.), cert. denied, 531 U.S. 849 (2000) (“because Miller
would have been eligible for parole under Texas law if sentenced to life, we find his reliance
on Simmons unavailing’’) internal quotation marks and citation omitted); Hughes v. Johnson,
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191 F.3d 607, 617 (5* Cir. 1999), cert. denied, 528 U.S. 1145 (2000); Muniz v. Johnson, 132
F.3d 214, 224 (5* Cir.), cert. denied, $23 U.S. 1113 (1998)(stating that a claim based on
Simmons “has no merit under the law in our circuit”); Montoya v. Scott, 65 F.3d 405, 416
(S* Cir. 1995), cert. denied sub nom. Montoya v. Johnson, 517 U.S. 1133 (1996) (holding
that Simmons claims are foreclosed by recent circuit authority rejecting an extension of
Simmons beyond situations in which a defendant is statutorily ineligible for parole”);
Allridge v. Scott, 41 F.3d 213, 222(Sth Cir. 1994), cert. denied, 514 U.S. 1108 (1995)(stating
that “Simmons is inapplicable to this case”); Kinnamon v. Scott, 40 F.3d 731, 733 (5* Cir.),
cert. denied, $13 U.S. 1054 (1994) (refusing to “extend Simmons beyond cases in which the
sentencing alternative to death is life without parole’’).
If these decisions left any doubt that Simmons provides no basis for the relief
Petitioner seeks, the Supreme Court removed all such doubt in Ramdass v. Angelone, 530
U.S. 156 (2000). “Simmons applies only to stances where, as a legal matter, there is no
possibility of parole if the jury decides the appropriate sentence is life in prison.” /d. at 169.
In this case, life without parole was not a possibility. Petitioner faced one of two
sentences: Death, or life imprisonment with the possibility of parole at a future date.
Therefore, as Ramdass and Fifth Circuit precedent make unmistakably clear, Petitioner’s
claims do not fall within the scope of Simmons.
Insofar as Petitioner seeks an extension of Simmons to the Texas scheme, this Court
is barred from granting habeas relief on that basis by the non-retroactivity principle of
Teague v. Lane, 489 U.S. 288 (1989). See Wheat, 238 F.3d at 361 (finding any extension
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App. 13
of Simmons to violate Teague); Clark v. Johnson, 227 F.3d 273, 282 (Sth Cir. 2000), cert.
denied, 531 U.S. 1167 (2001\(same); Boyd v. Johnson, 167 F.3d 907, 912 (5* Cir.), cert.
denied, 527 U.S. 1055 (1999) (“Relief based on Simmons is foreclosed by Teague.”). In
Teague, the Supreme Court held that a federal court may not create new constitutional rules
of criminal procedure on habeas review. /d. at 301. a
not expressly hold that the Simmons rule does not cover Petitioner’s case, relief would be
barred by Teague.
Buck also argues, citing Skipper v. South Carolina, 476 U.S. 1 (1986), that
information about parole eligibility is relevant mitigating evidence because it “might serve
as a basis for a sentence less than death.” /d. at 4. He therefore contends that the trial
court’s refusal to allow Buck to inform the jury about parole eligibility violates his Eighth
Amendment right to present mitigating evidence. The Fifth Circuit, however, has
consistently found that the Eighth Amendment does not require that a jury be informed of
parole eligibility. See Tigner v. Cockrell, 264 F.3d 521, 525 (Sth Cir. 2001). Therefore,
Petitioner’s motion for relief on his first through third claims is DENIED.
B. Ineffective Assistance Of Counsc]
Buck argues that the evidence supported a finding that he acted under the immediate
influence of sudden passion arising from an adequate cause when he committed the murders.
In his fourth claim for relief, Buck argues that his trial counsel rendered ineffective
assistance by failing to request a lesser inchuded offense mstruction based on this theory.
To prevail on a claim for ineffective assistance of counsel, Petitioner
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must show that .. . counsel made errors so serious that counse!
was not functioning as the “counsel” guaranteed by the Sixth
Amendment. Second, the [petitioner] must show that the
deficient performance prejudiced the defense. This requires
that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to prevail on the first prong
of the Strickland test, Petitioner must demonstrate that counsel’s representation fell below
an objective standard of reasonableness. /d. at 687-88. Reasonableness is measured against
prevailing professional norms, and must be viewed under the totality of the circumstances.
Id. at 688. Review of counsel’s performance is deferential. /d. at 689.
Buck committed the murders on July 30, 1995. The Texas statute defining a homicide
committed under the influence of sudden passion as the lesser included offense of voluntary
manslaughter was repealed on September 1, 1994. See Acts 1993, 73 Leg., ch. 900, § 1.01.
Where the prior version of the statute defined manslaughter as a homicide committed under
the influence of sudden passion, the amended version, which was in effect at the time of
Buck’s crime, defines manslaughter as “recklessly caus({ing] the death of the imdividual.”
Tex. Penal § 19.04. Therefore, Texas law did not provide for the lesser included offense on
which Buck now claims he was entitled to a jury instruction. Indeed, petitioner admits that
this statutory definition of voluntary manslaughter existed only “[p}rior to September of 1994
...-” Pet. at 47.
Counsel's failure to request a jury mstruction unsupported by the law did not
constitute deficient performance. “Counsel cannot be deficient for failing to press a frivolous
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App. 15
ipoint.” Sones v. Hargett, 61 F.3d 410, 415 n.5 (S* Cir. 1995); see also Koch v. Puckett, 907
F.2d 524, 527 (5* Cir. 1990) (“This Court has made clear that counsel is not required to
make futile motions or objections.”). Therefore, petitioner fails to meet the first prong of
the Strickland test and his petition for relief on this claim is DENIED.
Cc.
Petitioner’s fifth and sixth claims for relief relate to testimony offered during the
penalty phase by Dr. Walter Quijano, who testified as an expert witness. Buck's counsel
asked Dr. Quijano to discuss certain statistical factors relevant to determining whether a
defendant poses a future threat to commit criminal acts of violence. Among the factors Dr.
Quijano discussed was race. Dr. Quijano testified that “minorities, Hispanics and black
people are over represented in our Criminal Justice System.” 28 Tr. at 111. The prosecutor
revisited this topic on cross-examination. Buck is African-American.
In his Fifth claim for relief, Buck argues that Dr. Quijano’s reliance on race as a
statistical predictor of future dangerousness, and the prosecutor’s references to this testimony
on cross-examination and in closmg argument, violated Buck’s Sixth and Fourteenth
Amendment r
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