Opposition Brief — Buck v. Stephens, 136 S. Ct. 2409 (2016) (No. 15-8049)

cee — PRIGINAL

_SRers No. 15-8049

IN THE

Supreme Court of the Anited States

Duane Edward Buck,

Petitioner,

v

William Stephens, Director, Texas Department of Criminal Justice,

Crimina! Institutions Division,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

RESPONDENT'S BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI

KEN PAXTON EDWARD L. MARSHALL

Attorney General of Texas Chief, Criminal Appeals

Division

JEFFREY C. MATEER

First Assistant Attorney General FREDERICKA SARGENT

Assistant Attorney General

ADRIENNE MCFARLAND Criminal Appeals Division

Deputy Attorney General

for Criminal Justice P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

(512) 936-1400

Counsel for Respondent

QUESTION PRESENTED

The Director waived procedural bars and confessed error in several other

cases where Dr. Walter Quijano testified that a defendant's race might

contribute to a jury’s finding of future dangerousness. See Saldajio v. Cockrell,

267 F.Supp.2d 635, 639-40 & n.3 (E.D. Tex. 2003). The Director acknowledges

that it is always inappropriate for the State to ask jurors to consider a

defendant's race when assessing guilt or imposing punishment, but in Buck's

case that is not what happened. Defense counsel both called Dr. Quijano as a

witness and sponsored the challenged testimony; thus, this case has always

stood apart. See Buck v. Thaler, 132 S. Ct. 32, 34 (2011) (Alito, J., respecting

the denial of certiorari) (“In four of the six other cases _., the prosecution

called Dr. Quijano and elicited the objectionable testimony. In the remaining

two cases while the defense called Dr. Quijano, the objectionable testimony

was not elicited until the prosecution questioned Dr. Quijano on cross—

examination.”). Nevertheless, how best to argue for Buck’s life presented a

difficult task for trial counsel given the violence Buck wrought on the morning

of July 30, 1995, without regard for the children in the house, and his behavior

in the immediate aftermath. Approaching the case in “relatively oblique and

impersonal terms” based on “clinical and statistical data on the question of

future dangerousness” was a reasoned strategy decision. Granados v.

Quarterman, 455 F.3d 529, 535 (5th Cir. 2006).

Having unsuccessfully sought relief pursuant to Federal Rule of Civil

Procedure 60(b) in 2011, Buck tried again in 2014. The intervening event was

this Court’s decision that a procedurally barred claim of ineffectiveness could

be overcome with a showing that state habeas counsel was ineffective.

Together with trial counsel's alleged ineffectiveness, Buck suggested that this

new development should now afford him Rule 60(b) relief because the

combination created “extraordinary circumstances.” The lower courts rejected

his arguments, finding not only that he still had not shown “extraordinary

circumstances,” but also that he failed to establish constitutionally ineffective

assistance at trial.

This procedural posture gives rise to the following question:

Where a petitioner has failed to establish both that reasonable

jurists would debate the procedural ruling and the denial of a valid

constitutional right, did the lower court err in denying a COA?

ll

TABLE OF CONTENTS

a aa a cd oe aeaeeiians l

RR EE rR ERE A aN A te ERR lS 2

ERR ASAD Me OA OE ORR SLT pe OD 2

il I ns Ce TIS nas ccsccecasecescceccececscscsevesecesssscrecerscieesnasance 3

A. The State’s case for future dangerousness.............0.0..00.0.0....0...... 3

B. The defense’s case in mitigation ...........................00cccccccceceueeeceeeeeeee 4

III. Direct Appeal and Postconviction Proceedings................................... 6

REASONS FOR DENYING CERTIORARI REVIEW ....00.o0. 00.00 oen.. 9

I. Because Buck Failed to Establish “Extraordinary

Circumstances,” the Lower Court Properly Denied a COA........ 11

A. Achange in decisional law is not an “extraordinary

RR a ALR Ae RADA OO OTE 7 At RR A AT ROO OD 12

B. The additional factors listed by

I cosubnseupepesnenbinbebtiesousel 14

ll. Buck Has Not Established a Valid Claim of the Denial of a

Constitutional Right, that is, He Has Not Established Ineffective

ee IE acitsesicsccessscscsissisiccmisiesstehennsdusoesttvichiesnentasiooatns 16

EE SE OT 17

B. Trial counsel was not deficient, ...0..0.................cccccccceecssceeteeteeeenees 19

C. Buck cannot establish resultant prejudice................................ 22

I dc anna ahah aanaelahnbibeadablibeineipatiidbinesmamasédtigiiedenianens 23

il

Table of Authorities

Cases

Ackerman v. United States, 340 U.S. 193 (1950) .0..00 occ cece cece eee eeeeeees 15

Aaeene w. Teer GTS FDS SEB CBs Gar. GGT ove nce cacscevessesssesecesesvccescessceseceess 13

Alba v. Johnson, 232 F.3d 208 (Sth Cir. 2000) .0.............ccc cece cceceseeeceeneeeeee 16

Bailey v. Ryan Stevedoring Co., 894 F.2d 157 (5th Cir. 1990) ...........0.0.0 13

Batts v. Tow—Motor Forklift Co., 66 F.3d 743 (5th Cir. 1995)..................0...... 13

Blue v. Johnson, Civil Action No. 99cv0350 (S.D. Tex. Sept. 29, 2000).......... 16

Cf. Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998)................. 15

Cees ©, Teme, GG Tah Tale Ci aces ccitcnsccecctncsncccbececccessescsscccescseseones 12

Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981) .................0.0...00cc00ee 15

a a Fee ae I i Re ceteris cnnrticseccccestcincenssssntnstcssiescnsssizenes 13

Gonzalez v. Crosby, 545 U.S. 524 (2005) ..................ccececeseseecceeeeeeeesees 11, 12, 13

Granados v. Quarterman, 455 F.3d 529 (5th Cir. 2006).................. ii, 21, 24, 25

Harrington v. Richter, 562 U.S. 86 (2011).............cccccseceeeeeeseseereeneneees 10, 18, 23

Hernandez v. Thaler, 630 F.3d 420 (Sth Cir. 2011) ...........ccccccccccccesseeeeeeseneees 10

Hess v. Cockrell, 281 F.3d 212 (Gth Cir. 2002) .................cccsecccsssscsscsssessesssceees 13

Hinton v. Alabama, 134 S. Ct. 1081 (2014) .............cccccsccssesesenseeeeeeeeeeeeeeeeeerenees 17

Kellogg v. Strack, 269 F.3d 100 (2d Cir. 2001) .............00.cccccccceccesenseeeeseeneeeeees 10

a cscrcecnscenestvnsisasensntnksnnssctisiestionemnscemnpuoniiont 24

Martinez v. Ryan, 132 S. Ct. 13809 (2011) ...........cccccceeescceceeseeeeeeneeeeees 2, 8,11, 13

IV

I i, TN, Ee Ts Ee NOD vicina chen ntcsnsiencccecnnsaceionnateetncscesvedeeeateen 24

McGautha v. California, 402 U.S. 183 (1971) oo... ccccccccccesceeeeeeeeenteeeeeeeneees 24

Miller—El v. Cockrell, 537 U.S. 322 (2003) ................cccccccccseceseceeeeeeenseeeeneeeeneeees 9

Miller—Ei v. Drethe, 5645 U.S. 231 (QO0S)....................cccesessesesesseccenccccccsesesecceoees 23

Fe es Me rs Het i ccccccicctetntenccccnsecscssncebscennsésinescivanscoennesonons 24

Saldajfio v. Cockrell, 267 F.Supp.2d 635 (E.D. Tex. 2003)....................... ii, 6, 21

Slack v. MeDaniel, 629 U.S. 473 (BOO0) .........0.....0eccerccsesccccsessssecsssesscesenseses 9, 10

Stanley v. Zant, 697 F.2d 955 (11th Cir. 1983) ...............cccccccceeeeeeeeenseeeeeeenees 18

Strickland v. Washington, 466 U.S. 668 (1984) ..0000000000.....ceeee 17, 18, 19

Trevino v. Thaler, 133 S. Ct. 1911 (2013)..........................c.cccessescssessseesees 2, 8, 13

Tuilaepa v. California, 512 U.S. 967 (1994) ..............cccccccceesceeeseeeeseeeeneeeeeeneneees 20

SN i ee Sn CII I III ia ibiiecdictacencsscasnacanssvcnixoerncccsanssesesesebossiiies 23

United States v. Fairchild, 505 F.2d 1378 (5th Cir. 1975) ..............ccccccceeeeeees 19

ey i Ge, Ge ti. BC ectcsstesccnscccsccinsscssnencpinascnbesscccssueiccbintes 18

SE eh, Ga, GD WI Ge GD erin ice sccccscsistscscnesssncstanecsantensctesctensoie 20, 24

Statutes

I Td aida as escianabegnnnasbeanpnnepabodedaibineneetetouametedsadcinnssaantbe 9

TT nico asnlicicpnsrniceertpcbrtemnaiedinnbnsinnnsataiateenintentnanantaniaeesmabiaeibannints 9

CERES SSE Sa ise ae ep ews een Oe rae Dye ne ONO OE 13

Antiterrorism and Effective Death Penalty Act (AEDPA) .............................. 13

sh daelinindibanin ema uisanaiaumuniaboraainbedouiation 10, 13

ees See es I GD cc cspunmesnsesouinessensiseseusebanesiosaeos 8

Federal Rule of Civil Procedure 60(b).....................cccccsessscsseesscseseseecceeeeeees passim

ITER ES nol Carpe RI NE ae 8 SO ai BRE 9

Constitutional Provisions

I a a hE a 6, 17, 18

vi

BRIEF IN OPPOSITION

Petitioner Duane Edward Buck was found guilty and sentenced to death

for murdering Kenneth Butler and Debra Gardner—a mother of two whom

Buck shot while her young children watched—during a shooting spree at the

home where Debra and her children lived, and where Buck had lived during

his and Debra’s (tumultuous) relationship. During the punishment phase of

Buck’s trial, Dr. Quijano, testifying for the defense, explained that he

considered several factors when evaluating the defendant, including age, sex,

race, socio-economic status, and whether there was a history of violence and/or

substance abuse. Regarding race, Dr. Quijano testified only that “minorities,

Hispanics and blacks” were overrepresented in the criminal justice system. He

never tied Buck’s race (African—American) to his future dangerousness. The

State briefly revisited this testimony on cross—examination, and then never

mentioned it again. Ultimately, although he concluded that Buck would not be

a future danger if given a life sentence, Dr. Quijano admitted that he “never

rule(d] out any probability ”'

Having unsuccessfully challenged trial counsel's effectiveness for

allowing Dr. Quijano’s to testify the way he did (first via a federal habeas

! Importantly, Dr. Patrick Lawrence, the other defense expert on future

dangerousness, made the same admission: there were “no guarantees.” 28 Reporter's

Record (RR) 167

petition and later a motion for relief from judgment pursuant to Federal Rule

of Civil Procedure 60(b)), in 2014, Buck again sought Rule 60(b) relief. This

time, he argued that Martinez v. Ryan? and Trevino v. Thaler? demand that his

procedurally—barred ineffectiveness claims be looked at anew The district

court denied his motion, and the Fifth Circuit declined to issue a COA. This

appeal follows.

STATEMENT OF THE CASE

I, The Facts of the Crime

The Fifth Circuit accurately summarized the facts of Buck’s crime as

follows:

Early on the morning of July 1995, Buck’s ex-girlfriend,

Debra Gardner, and several of her friends, including Kenneth

Butler, his brother, Harold Ebnezer, and Buck's sister, Phyllis

Taylor, gathered at [Debra’s] house after having spent the previous

night playing pool. Buck and [Debra] had ended their relationship

about one week earlier. At some point that morning, Buck arrived

at the residence, banged on the front door, and kicked it open, after

which he argued loudly with [Debra] and struck her before

retrieving some of his possessions and leaving.

Several hours later, Buck returned with a rifle and shotgun.

After forcing the front door open, Buck fired at—but missed—

[Harold], who immediately fled the house through the back door.

Buck then approached [Phyllis], pressed the muzzle of the rifle

directly against her chest, and fired. [Phyllis] fell to the ground but

survived her injuries. As she lay on the ground, [Phyllis] heard

2 132 S. Ct. 1309 (2011).

s 133 S. Ct. 1911 (2013).

several more gunshots coming from the area of the bedrooms.

When [Phyllis] was able to stand up and make her way through

the house, she discovered [Kenneth’s] body slumped over and

bleeding in the hallway After hearing the first gunshots, Devon

Green, [Debra’s] then 11-year-old son who had been sleeping in

the back bedroom, hid in the hallway closet. From his hiding place,

[Devon] listened as Buck confronted [Kenneth] in the hallway and

accused him of sleeping with Buck's “wife.” Gunshots followed.

Both [Devon] and his teenage sister, Shennel Gardner, ran

outside, where they witnessed Buck shoot their mother as she

attempted to flee in the street.

Buck then placed both guns in the trunk of his car, which

was parked outside [Debra’s] residence, and attempted to start the

vehicle. When his car did not start, Buck began walking away from

the residence. Police arrived just as he was leaving, and both

[Devon] and [Harold] identified him as the shooter. Police then

took Buck into custody and recovered a shotgun and .22 caliber

rifle from the trunk of his car. Both [Debra] and [Kenneth] died

from their gunshot wounds.

Buck v. Thaler, 345 F App’x 923, 924-25 (5th Cir. 2009), cert. denied, 559 US.

1072 (2010).

Il. Facts Relating to Punishment

A. The State’s case for future dangerousness

At the puiishment phase, the State presented evidence that Buck would

likely be a future danger. Specifically, the ,ury heard about Buck’s prior

criminal history, including convictions for delivery of cocaine, possession of a

controlled substance, and unlawfully carrying a weapon. 28 Reporter's Record

(RR) 5—28; see also id. at 239-43; State's Exhibits (SX) 66-68. Vivian Jackson,

Buck’s former girlfriend, testified about her own encounters with Buck; she

“testified that Buck had physically abused her on several occasions and once

threatened her with a gun.” Buck v. Thaler, 345 F App’x at 925; see 28 RR 31-

40. Most damning, however, was the description of Buck's post—arrest

behavior—that he was laughing and said “the bitch got what she deserved”—

from the arresting officer.* 28 RR 50-51.

B. The defense’s case in mitigation

Despite Buck’s shooting spree during which he killed two and wounded

a third (his own sister), his criminal record, and his history of domestic

violence, the defense attempted to portray Buck as nonviolent and unlikely to

be a future danger. In support of its case, the defense called several witnesses,

each of whom testified that they had never known Buck to be violent. 28 RR

77 (Pastor J.C. Neal), 84-85 (Monique Winn, Buck's sister), 93 (Sharon Buck,

Buck's step—mother), 96 (James Buck, Buck's father). Buck also called two

expert witnesses, each of whom testified that, if imprisoned, Buck would not

likely commit additional acts of violence: Dr. Walter Quijano, the chief

psychologist for the Texas prison system, 28 RR 101-02, and Dr Patrick

Lawrence, a psychologist specializing in the prediction of future criminal

behavior, id. at 177, 182-85. The heart of their testimony was their opinion

‘ The jury had already heard that Buck was laughing after being arrested during

the trial on guilt/innocence. 26 RR 317 (testimony of Shennel Gardner, Debra’s

daughter).

that Buck did not pose of continuing threat to society and was therefore a good

candidate for a life sentence. These opinions were based on various factors—

including Buck’s age, the facts of the crime for which he was on trial, and the

prison environment. /d. at 109-19 (Dr. Quijano), 186—206 (Dr. Lawrence).

Counsel took pains to emphasize Dr. Quijano’s extensive experience,

especially his tenure as Chief Psychologist and Director of Psychiatric Services

for the Texas Department of Criminal Justice. Jd. at 101-04. Throughout his

direct examination, counsel stressed that Dr. Quijano lacked either a pro—

defense or a pro—prosecution bias, eliciting testimony that he had testified for

the defense and the State. Jd. at 104—05. In short, defense counsel's primary

reason for calling Dr. Quijano was his strategic calculation that the jurors

would perceive him to be a fair and unbiased expert who had independently

concluded—after evaluating all of the factors he considered relevant (age, sex,

race, social economics, history of violence, and history of substance of abuse)—

—that there was only a very low probability of future dangerousness. Jd. at 115;

see Buck v. Thaler, 345 F. App’x at 925 (“Buck and his counsel presumably

made this strategic decision because they believed that the potential benefit of

Dr. Quijano’s ultimate conclusion—that Buck was not likely to pose any future

danger to society if he were incarcerated—outweighed any risk of exposing the

jury to Dr. Quijano’s less favorable opinions.”).

‘qi. Direct Appeal and Postconviction Proceedings

Having been indicted for the shooting death of Kenneth Butler and

Debra Gardner during the same criminal transaction, Buck was found guilty

and sentenced to death. Clerk’s Record (CR) 12. Buck's sentence and conviction

were affirmed on direct appeal. Buck v. State, No. 72,810 (Tex. Crim. App.

1999) (unpublished).

While his direct appeal was pending, Buck filed an application for state

habeas relief. SHCR-01° 77 The state habeas court issued findings of fact and

conclusions of law recommending that relief be denied. /d. at 126-27 Before

the findings were issued—but after the filing deadline had passed—Buck filed

a second state habeas application in which he challenged Dr. Quijano’s

testimony for the first time,* some two and a half years after former Attorney

General John Cornyn confessed error in Saldajio.’ SHCR-02 2. The state

habeas court found this to be a subsequent application, and pursuant to state

8 “SHCR” refers to the Clerk's Record of documents and pleadings filed during

the state habeas proceedings, followed by “—01" (the first application) and “—02” (the

second application) and relevant page numbers.

5 Specifically, Buck alleged (1) that Dr. Quijano’s testimony violated his Sixth

Amendment right to an impartial jury, the Eight Amendment's prohibition against

cruel or unusual punishment, and the Due Process and Equal Protection Clauses of

the Fourteenth Amendment, and (2) that trial counsel was constitutionally ineffective

for eliciting Dr. Quijano’s opinion that minorities are overrepresented in the criminal

justice system. SHCR-02 55-62.

’ See Saldafio v. Cockrell, 267 F.Supp.2d at 639.

7

law, directed the district clerk to forward it to the Court of Criminal Appeals.

Id. at 18-19. That court then disposed of both writ applications, adopting the

trial court's findings and conclusions as to the first and denying it on the merits

and dismissing the second as an abuse of the writ pursuant to Texas Code of

Criminal Procedure Article 11.071, Section 5. Ex parte Buck, Nos. 57,004—01,

—02 (Tex. Crim. App. Oct. 15, 2003) (per curiam) (unpublished order).

Thereafter, Buck sought federal habeas relief,* but the district court

granted the Director's motion for summary judgment and denied Buck's

request for COA. See Buck v. Stephens, Civil Action No. 4:04cv03965 (S.D. Tex.

2006), Docket Entry (DE) 15. The Fifth Circuit also denied a request for a

COA.® Buck v. Thaler, 345 F App’x 923. In so doing, the court not only accepted

the procedural bar, it also found the merits of the constitutional claim to be

lacking. Jd. at 930.

More than five years later, and relying primarily on the alleged broken

promise made by the former Attorney General, on the eve of his scheduled

execution, Buck sought relief from judgment pursuant to Federal! Rule of Civil

8 In his federal habeas petition, Buck asserted the same claims regarding Dr.

Quijano’s testimony that he had raised in his state habeas application. See Buck v.

Stephens, Civil Action No. 4:04cv03965, DE 1 at 55-62.

’ Buck sought a COA only a single claim: “whether he was deprived of due

process or equal protection by the prosecution’s reference to Dr. Quijano’s testimony

citing race as a future dangerousness factor.” Buck v. Thaler, 345 F App'’x at 926.

7

procedure 60(b). Buck v. Stephens, Civil Action No. 4:04cv03965, DE 27 The

district court again rejected his claims. Jd., DE 31. A subsequent Rule 59(e)

motion was also denied. Jd., DE 33, 36. Appeals to the Fifth Circuit and this

Court were also unsuccessful.'® See Buck v. Thaler, 452 F App’x 423 (5th Cir

2011);'! Buck v. Thaler, 132 S. Ct. 32 (2011).”

In 2014, based primarily on Martinez and Trevino, Buck again asked the

federal district court to grant federal habeas relief on his ineffectiveness claims

regarding Dr. Quijano’s testimony, or at the very least, grant his motion so that

he could further develop the record.'* His motion pursuant to Federal Rule of

Civil Procedure 60(b), Buck v. Stephens, Civil Action No. 4:04cv03965, DE 49,

and his motion pursuant to Federal Rule of Civil Procedure 59(e), id., DE 67,

were both denied, id., DE 66, 75.'* The Fifth Circuit declined to issue a COA,

10 This Court granted a stay of execution to consider Buck’s petition for certiorari

review. Buck v. Thaler, No. 11A297 (Sept. 15, 2011).

uu The court reiterated its previous denial of the merits of Buck's constitutional

claim. Buck v. Thaler, 452 F ‘Appx at 432.

12 A petition for rehearing after the denial of certiorari review was also denied.

Buck v. Thaler, 132 S. Ct. 1085 (2012).

13 Prior to seeking Rule 60(b) relief, Buck pursued state habeas relief alleging,

inter alia, violations of due process and equal protection based on Dr. Quijano’s

testimony. The Court of Criminal Appeals found this to be an abuse of the writ. Ex

parte Buck, 418 S.W.3d 98 (Tex. Crim. App. 2013), cert. denied, 134 S. Ct. 2663 (2014).

4 Both times, the district court found Buck's claim that he was denied

constitutionally ineffective assistance of counsel to be without merit. See Buck v.

Stephens, Civil Action No. 4:04cv03965, DE 66 at 11-15; id., DE 75 at 4.

8

finding that the district court had not abused its discretion. Buck v. Stephens,

623 F. App’x 668 (5th Cir. Aug. 20, 2015). Buck's petition for rehearing en banc

was also denied. Buck v. Stephens, 2015 WL 6874749 (5th Cir. Nov. 6, 2015).

REASONS FOR DENYING CERTIORARI REVIEW

The question Buck presents for review is unworthy of the Court's

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

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

“compelling reasons.” An example of such a “compelling reason” would be if the

court of appeals entered a decision of an important question of federal law that

conflicts with a decision of another court of appeals or with relevant decisions

of this Court. Buck advances no such special or important reason in this case,

and none exists.

Pesther, as a jurisdictional prerequisite to obtaining appellate review,

Buck was first required to obtain a COA. 28 U.S.C. § 2253(c)(1)(A); Miller—Ei

v. Cockrell, 537 U.S. 322, 335-36 (2003); Slack v. McDaniel, 529 U.S. 473, 483

(2000). The standard to be applied in determining when a COA should issue

examines whether a petitioner “has made a substantial showing the denial of

a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller—El, 537 U.S. 336. This

standard “includes showing that reasonable jurists could debate (or, for that

matter, agree that) the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement

9

to proceed further.” Slack, 529 U.S. at 484 (internal quotation marks and

citation omitted); cf. Harrington v. Richter, 562 U.S. 86, 101 (2011) (“A state

court’s determination that the claim lacks merit precludes federal habeas relief

so long as ‘fairminded jurists could disagree’ on the correctness of the state

court’s decision.”) (citation omitted).

As the lower court explained:

The district court denied the motion for a procedural reason,

namely Buck’s failure to show extraordinary circumstances 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

debatable whether the district court was correct in its procedural

ruling.” Slack [], 529 U.S. [at] 484, [].

Buck v. Stephens, 623 F. App’x at 671~72 (emphasis added). Importantly,

because the procedural decision was the denial of a 60(b) motion, Buck had to

show that the district court abused its discretion in so doing. See Kellogg v.

Strack, 269 F.3d 100, 104 (2d Cir. 2001) (per curiam); see also Hernandez v.

Thaler, 630 F.3d 420, 428 (5th Cir. 2011) (“The decision to grant or deny relief

under Rule 60(b) lies within the sound discretion of the district court and will

only be reversed for an abuse of that discretion.” (internal quotation marks and

citation omitted).

For the reasons discussed below, Buck has entirely failed to establish

that he was entitled to a COA. Thus, certiorari review is not warranted.

10

I. Because Buck Failed to Establish “Extraordinary

Circumstances,” the Lower Court Properly Denied a COA.

While considered a “grand reservoir of equitable power to do justice,”

Rule 60(b) relief is only available if “extraordinary circumstances” are present.

Gonzalez v. Crosby, 545 U.S. 524, 535 (2005) (internal quotation marks and

citation omitted). But “[s}uch circumstances will rarely occur in the habeas

context.” Jd. Here, in addition to previously rejected facts Buck has argued as

“extraordinary circumstances”’—counsel’s ineffectiveness and the alleged

“broken promise” made by former Attorney General Cornyn—he has added

only the change in decisional law pursuant to Martinez and Trevino.” These

cases change nothing.

As a preliminary matter, Buck makes mutually exclusive arguments

when contending that the lower court erred in its consideration of whether he

had demonstrated “extraordinary circumstances.” First, he states

unequivocally, “The panel’s sole inquiry should have beea whether a

reasonable jurist could conclude that Mr. Buck’s [ineffectiveness] claim is

remarkable, or that Texas's broken promise is not just ‘odd and factually

unusual,” but extraordinary.” Petition at 25 (emphasis added). Then he says

9 Additional factors not specifically argued in Buck's previous motion for relief

from judgment include: (1) the trial court qualified Dr. Quijano as an expert, allowed

him to testify as he did, and admitted his “excludable hearsay report linking race to

dangerousness,” and (2) the “Fifth Circuit held Mr. Buck's trial counsel responsible

for the introduction of Dr. Quijano’s testimony.” Compare Buck v. Stephens, 623 F.

App’x at 672, with Buck v. Stephens, Civil Action No. 4:04cv03965, DE 27 at 6-15.

11

that the lower court erred because it did not follow an “equitable, holistic

approach” and consider all of the circumstances together, but instead “went

through the factors one by one, and determined that each was not

extraordinary; and, in so doing, dilut[ed] [the] full weight of the circumstances

identified by Mr. Buck.” Jd. at 27 (emphasis added, internal quotation marks

and citation omitted). He cannot have it both ways. In any event, if each

circumstance standing alone is not extraordinary, the combination of them

cannot be extraordinary.

A. A change in decisional law is not an “extraordinary

circumstance.”

Buck’s ineffectiveness claim is procedurally barred because the Court of

Criminal Appeals dismissed it as an abuse of the writ. When he first raised

this claim in federal court, no case held that cause and prejudice could be

shown by establishing state habeas counsel's ineffectiveness. See Coleman v.

Thompson, 501 U.S. 722, 752 (1991) (explaining that because there is no

constitutional right to postconviction proceedings, there can be no attendant

right to effective assistance of counsel in those proceedings). But “[i]t is hardly

surprising that, subsequently, after petitioner's case was no longer pending,

this Court arrived at a different [conclusion].”'*® Gonzalez, 545 U.S. at 536. For

16 Thus, Buck’s contention that his ineffectiveness claims were procedurally

barred during his initial federal habeas proceedings can hardly be considered

“extraordinary.” See Buck v. Stephens, 623 F. App’x at 673; see also Gonzalez, 545

12

this reason, a change in decisional law cannot be an “extraordinary

circumstance.” Jd. As the lower court explained in Adams v. Thaler:

Our precedents hold that “[a] change in decisional law after entry

of judgment does not constitute exceptional circumstances and is

not alone a ground for relief from final judgment” under Rule 60(b).

Bailey v. Ryan Stevedoring Co., 894 F.2d 157, 160 (5th Cir. 1990)

(citations omitted); see also Batts v. Tow—Motor Forklift Co., 66

F.3d 743, 747-48 (5th Cir. 1995). We have held that “[t]his rule

applies with equal force in habeas proceedings under the

Antiterrorism and Effective Death Penalty Act (AEDPA).

Hernandez [], 630 F.3d [at] 430 []; see Hess v. Cockrell, 281 F.3d

212, 216 (5th Cir. 2002) (“Under our precedents, changes in

decisional law .. . do not constitute the ‘extraordinary

circumstances’ required for granting Rule 60(b) relief. .. . The dicta

in Batts suggesting that the rule for changes in decisional law

might be different in the habeas corpus context because finality is

not a concern is now flatly contradicted by, among other things,

AEDPA.”).

679 F.3d 312, 319—20 (5th Cir. 2012). Adams then specifically rejected the

argument that Martinez constituted an “extraordinary circumstance”

warranting Rule 60(b)(6) relief. Jd. at 320; see also Diaz v. Stephens, 731 F.3d

370, 375-77 (5th Cir.) (holding that Trevino “does not change [Adams's]

conclusion in any way’), cert. denied, 134 8. Ct. 48 (2013).""

U.S. at 537 (“The District Court’s interpretation was by all appearances correct under

the Eleventh Circuit's then—prevailing interpretation of 28 U.S.C. § 2254(d)(2).”).

7 The Gonzalez Court explained that the decisional change in the law at issue

there was “all the less extraordinary in petitioner's case because of his lack of

diligence in pursuing” an appeal. 545 U.S. at 537. The same could be said of Buck.

Trevino was handed down on May 25, 2013. Buck waited until January 2014 (despite

the fact that nothing else about the circumstances of his case has changed since 2002)

to pursue relief from judgment under Rule 60(b); instead, he chose to pursue state

habeas relief. See Ex parte Buck, 418 S.W.3d 98.

13

B. The additional factors listed by Buck are not

extraordinary.

Primarily, the lower court rejected the notion that a claim of ineffective

assistance of counsel makes a case extraordinary. /d. at 673 (“Buck's case is no

different in kind or degree from other disagreements over trial strategy

between a lawyer and client that it counts as an exceptional case.”). In his

petition, as he has in every pleading before every court, Buck asserts that his

is not an ordinary claim of ineffectiveness, however, because trial counsel

inserted race into the proceedings, which “undermined the integrity of both

{Buck's} death sentence and the criminal justice system overall.” He then

castigates the panel for not acknowledging this, as well for not acknowledging

race. Petition at 24, 28, 30, 32. But as explained below, this claim has been

repeatedly and exhaustively reviewed by the lower courts. And at every turn,

the underlying facts have been found insufficient to warrant relief. If Buck

cannot obtain relief on the merits of this argument, then he surely cannot

establish that constitutes an “extraordinary circumstance.”

Buck also relies, as he has in every pleading before every court, on his

argument that the Texas Attorney General broke a promise to allow Buck to

be resentenced. Jd. at 25, 32—33. First, as the lower court recognized, this “fact

has never been adequately established.” Buck v. Stephens, 623 F App’x at 673;

see also id. at 670 n.1 (“[W]Je have found no statement by the AG in the record

14

jn which he confessed error relating to Buck's case and promised not to raise

procedural defenses.”). The court further explained that Buck has never shown

“why the alleged reneging would justify relief from judgment;” “he has not

shown that he relied on the alleged promise to his detriment.” Jd. at 10: see

Buck v. Stephens, Civil Action No. 4:04cv03965, DE 31 at 8 (in denying his first

Rule 60(b) motion, district court explained that “Buck has identified no legal

basis for a claim that the Attorney General's statement created legally

enforceable rights or that it precluded the Attorney General from later

identifying distinguishing facts that made their initial assessment

inapplicable to this case.”), DE 75 at 10; see also Ackerman v. United States,

340 U.S. 193, 198 (1950) (affirming the denial of Rule 60(b) relief because,

among other things, petitioner “had no right to repose confidence in Kelley, a

stranger. There is no allegation of any fact or circumstance which shows that

Kelley had any undue influence over petitioner or practiced any fraud, deceit,

misrepresentation, or duress upon him. There are no allegations of privity or

any fiduciary relations existing between them.”). Second, a federal habeas

petitioner has no right to have the State respond to his allegations in a

particular way Cf Ohio Adult Parole Authority v. Woodard, 523 U.S. 272

(1998); Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981); see Buck v.

Thaler, 345 F App’x at 929 (“Because Buck's characterization of ‘intra—court

comity’ finds no support in our precedent, we decline to apply here concessions

15

made by the State in different cases with different facts.”) (emphasis added).

More than that, however, Buck's case is not like any of the others cited

by former Attorney General Cornyn: “In four of the six other cases __., while

the defense called Dr. Quijano, the objectionable testimony was not elicited

until the prosecution questioned Dr. Quijano on cross—examination. Only in

Buck’s case did defense counsel elicit the race—related testimony on direct

examination. Thus, this is the only case in which it can be said that the

responsibility for eliciting the offensive testimony lay squarely with the

defense.”'* Buck v. Thaler, 132 S. Ct. at 34-35 (Alito, J., respecting the denial

of certiorari).

Because Buck cannot establish the “extraordinary circumstances”

necessary for Rule 60(b) relief, the district court did not abuse its discretion in

denying relief, and the Fifth Circuit properly affirmed that denial. Certiorari

relief is, therefore, not warranted.

Il. Buck Has Not Established a Valid Claim of the Denial of a

Constitutional Right, that is, He Has Not Established Ineffective

Assistance of Trial Counsel.

Even if reasonable jurists could debate whether the lower court abused

its discretion in denying Buck’s Rule 60(b) motion, in order to be entitled to a

18 See Alba v. Johnson, 232 F.3d 208 (5th Cir. 2000); Blue v. Johnson, Civil Action

No. 99cv0350 (S.D. Tex. Sept. 29, 2000); see also Buck v. Stephens, Civil Action No.

4:04cv03965, DE 33 at Exhibit 2 (excerpt of reporter's record from State v. Blue),

Exhibit 3 (excerpt of reporter’s record from Alba v. State).

16

COA, he must also establish the denial of a valid constitutional claim. This he

cannot do.

A. The Strickland standard

The Sixth Amendment, together with the Due Process Clause,

guarantees a criminal defendant both the right to a fair trial and the right to

effective assistance of counsel at that trial. Strickland, 466 U.S. at 684-86. A

defendant's claim that he was denied constitutionally effective assistance

requires him to affirmatively both that (1) counsel rendered deficient

performance, and (2) counsel's actions resulted in actual prejudice. Jd. at 687-—

88, 690. Importantly, failure to prove either deficient performance or resultant

prejudice will defeat an ineffective—assistance—of—counsel claim, making it

unnecessary to examine the other prong. /d. at 687

In order to demonstrate deficient performance, Buck must show that in

light of the circumstances as they appeared at the time of the conduct,

“counsel's representation fell below an objective standard of reasonableness,”

i.e., “prevailing professional norms.” Jd. at 688, 690; see also Hinton v.

Alabama, 134 8. Ct. 1081, 1088 (2014) (per curiam) (emphasizing that the

“performance inquiry must be whether counsel's assistance was reasonable

considering all the circumstances”) (citation omitted). The Supreme Court has

admonished that judicial scrutiny of counsel's performance “must be highly

deferential,” with “every effort” made to avoid “the distorting effects of

17

pindsight.”'” Strickland, 466 U.S. at 689; Richter. 562 U.S 105 (“It is ‘all too

tempting to ‘second-guess counsel's assistance after conviction or adverse

sentence.” ) (citations omitted); Yarborough « Gentry. 540 US. 1. 6 (2003)

(‘The Sixth Amendment guarantees reasonable competence. not perfect

advocacy judged with the benefit of hindsight.”) (citations omitted).

Accordingly, there is a “strong presumption” that the alleged deficiency “falls

within the wide range of reasonable professional assistance.” Strickland. 466

U.S. at 689

Even if deficient performance can be established. Buck must stil!

affirmatively prove prejudice that is “so serious as to deprive [him] of a fair

trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687 This requires

him to show a reasonable probability that but for counsel's deficiencies. the

result of the proceeding would have been different.” /d. at 694. A “reasonable

probability” is one sufficient to undermine confidence in the outcome. /d. As

explained by Richter: The question concerning Stricklana’s prejudice analysis

“is not whether a court can be certain counsel's performance had no effect on

the outcome or whether it is possible a reasonable doubt might have been

" “Representation of a capital defendant calls for a variety of skills. Some involve

technical proficiency connected with the science of law Other demands relate to the

art of advocacy The proper exercise of judgment with respect to the tactical and

strategic choices that .nust be made in the conduct of a defense cannot be neatly

plotted in advance by appellate courts.” Stanley v Zant, 697 F.2d 955, 970 & n.12

(1ith Cir. 1983).

18

established [had] counsel acted differently ” 562 U.S. at 111 (emphasis added

and citation omitted). Rather. “[t}]he likelihood of a different result must be

substantial, not just conceivable.” Jd. at 112 (citation omitted).

Finally, with respect to errors at the sentencing phase of a death penalty

trial, the relevant prejudice inquiry is “whether there is a reasonable

probability, that absent the errors, the sentencer [] would have concluded the

balance of aggravating and mitigating circumstances did not warrant death.”

Strickland, 466 U.S. at 695.

B. Trial counsel was not deficient.

Buck contends that trial counsel was deficient in two ways. First, counsel

allowed Dr. Quijano to testify knowing that one of the factors he considered in

assessing future dangerousness was a defendant's race. Second, no objection

was made either when the State revisited the issue during cross—examination

or when the State asked the jurors to consider Dr. Quijano’s testimony during

closing argument. See, e.g., Buck v. Stephens, Civil Action No. 4:04cv03956, DE

49 at 19-21.

While the law rightly imposes multiple restrictions on the State's ability

to introduce evidence, far fewer restrictions are imposed on the defendant. See

United States v. Fairchild, 505 F.2d 1378, 1383 (5th Cir. 1975) (explaining that

many, if not most, “[cjonstitutional rights, like others, may be waived; and a

criminal defendant may, by his conduct, make other constitutionally

19

jnadmissible evidence admissible for certain purposes”) (citation omitted). For

example, a criminal defendant might wish to rely on apparently unseemly or

inappropriate evidence, i.e., poverty or culture, to explain a poor choice, even

when the State would not be permitted to argue those factors as either evidence

of guilt or aggravating for purposes of sentencing. See Tuilaepa v. California,

512 U.S. 967, 983 (1994) (Stevens, J., concurring) (“In [Zant v. Stephens, 462

U.S. 862, 885, 887-89 (1985)], even though the trial judge had incorrectly

characterized the defendant's prior history of ‘assaultive offenses’ as a

statutory aggravating circumstance, we found no constitutional error because

the evidence supporting that characterization was relevant and admissible.

We made it clear, however, that it would be error for the State to attach the

‘aggravating label to, or otherwise authorize the jury to draw adverse

inferences from, ‘factors that are constitutionally impermissible or totally

irrelevant to the sentencing process, such as for example the race, religion or

political affiliation of the defendant.”). To prohibit a defendant from choosing

to use such factors could improperly limit his ability to present a defense or a

case in mitigation.

Here, the defense’s decision to elicit testimony from its own expert

reflected a considered choice and a strategic legal decision. See Buck v. Thaler,

345 F App’x at 930 (“Buck and his counsel presumably made this strategic

determination because they believed that the potential benefit of Dr. Quijano’s

20

F timate conclusion—-that Buck was not likely to pose any future danger to

society if incarcerated—outweighed any risk of exposing the jury to Dr

Quijano’s less favorable opinions.”); see also Granados, 455 F.3d at 536 (“These

are difficult and nuanced decisions the trial lawyer must make.”). While the

State cannot, and should not, raise the issue of race, defense counsel can and.

in fact. has chosen to do so before. The Fifth Circuit held that under those

circumstances, any later attempt to claim it as a basis for appeal was preluded:

The decision by counsel to approach the [future dangerousness]

question in the relatively oblique and impersonal terms of

quantitative presentation lay at the heart of [the defense team’s]

trial strategy It included facing the reality that blacks and Latinos

had a disproportionate presence in the state prisons. a social

phenomenon about which counsel could not assume the jury was

ignorant. This approach avoided the necessity of personal

testing and examination, the door opener to examination by

experts engaged by the State.

Granados, 455 F.3d at 535-36. Unlike the testimony Dr. Quijano gave in

Granados'’s and Buck's trials, the testimony he gave in Saldano’s trial

specifically indicated that a defendants’ race would make him more likely to be

a future danger and that minorities generally are more dangerous. See

Saldano, 267 F.Supp.2d at 638-39 (“Quijano testified that Saldano’s Hispanic

ethnicity increased the likelihood that he would be a danger in the future.

Quijano explained that Hispanics were overrepresented in the Texas prison

system, and to him this fact suggested a correlation between ethnicity and

future dangerousness.”) (emphasis added). Where those remarks were

21

jnherently aggravating, Dr. Quijano’s brief remarks during his testimony in

Buck's trial about “minorities, Hispanics and blacks” being overrepresented in

the criminal justice system, 28 RR 111, are inherently mitigating.

C. Buck cannot establish resultant prejudice.

Buck tells this Court that “the State's evidence of future dangerousness

was far from overwhelming.” Petition at 17 This is a myopic view of the record.

As the district court has explained:

In addition to Buck's past history, the jury was aware of the

horrific facts of Buck’s murder of [Debra] and |Kenneth]. These

included Buck's attempt to murder his own sister, and his murder

of [Debra] in front of her two children. The jury also heard that

Buck was laughing about the murders when he was arrested, and

that he said about [Debra] that ‘the bitch deserved what she got-

Buck v. Stephens, Civil Action No. 4:04cv03965, DE 66 at 12-13; see also id.,

DE 31 at 6 (“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 [Debra] and

{Kenneth], showed no remorse for the murders, and laughed when asked about

the murders.”).

Ultimately, the jurors were instructed that they were “not to be swayed

by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion,

or public feeling in considering all of the evidence before [them] and in

answering’ the future dangerousness special issue. CR 194. And in closing

22

argument, the prosecution only reminded the jurors of what they had already

heard: “[W]hat [Dr Qujiano] said was that [Buck] was at the low range but the

probability did exist that he would be a continuing threat to society ” 28 RR

261.

Richter teaches that the likelihood of prejudice must be “substantial,”

not simply conceivable.” 526 U.S. at 112. While a different outcome might be

“conceivable” without Dr. Quijano’s testimony, that likelihood is simply not

“substantial.” The jurors heard that Buck was prone to violent outbursts,

particularly against women, the most damning being the shooting spree he

went on in response to Debra’s having left him. Indeed, that he shot Debra

twice, once as she lay dying in the street— in front of her children could only

be described as vicious and abhorrent. But his behavior in the aftermath was

more vicious and more abhorrent, as he laughed in response to a question by

the arresting officer and then said, without remorse, “The bitch got what she

deserved.”

Because Buck has not shown the denial of a valid constitutional claim, a

COA was not warranted. Thus, the lower court did not err, and certiorari

review should be denied.

CONCLUSION

There is no question that State-sponsored discrimination is not to be

tolerated. See, e.g., Miller—El v. Dretke, 545 U.S. 231 (2003); Turner v Murray.

23

476 U.S. 28 (1986); Zant, 462 U.S. 862; Rose v. Mitchell, 443 US. 545 (1979).

But what the State cannot do, the defense can. Given the callousness of Buck's

crime and his behavior afterward, counsel made the best decision he could.

That is, to approach the question of Buck's future dangerousness in terms of

clinical and statistical data in an effort to have the case viewed on those

terms rather than remain focused on” Buck and his cruelty Granados, 455

F.3d at 535.

The responsibility foisted on jurors in a capital murder trial is

considerable. We cannot blithely assume they do not take it seriously The

Court in Lockett v. Ohio presumed that “jurors confronted with the

awesome responsibility of decreeing death for a fellow human [would] act with

due regard for the consequences of their decision.” 438 U.S. 586, 598 (1978)

(quoting McGautha v. California, 402 U.S. 183, 208 (1971)): see McClesky v.

Kemp, 481 U.S. 279, 311 (1987) (“[I]t is the jury's function to make the difficult

and uniquely human judgments that defy codification and that buil{d]

discretion, equity, and flexibility into a legal system.’) (internal quotation

marks and citation omitted). Nothing in the record suggests the jurors here

acted in a contrary manner. Certainly the record does not establish that the

assessment of the death penalty in this case was a result of Dr. Quijano’s single

statement that minorities are overrepresented in the criminal justice system

24

‘a social phenomenon about which counsel could not assume the jury was

ignorant.” Granados, 455 F.3d at 535.

For all of these reasons, the Fifth Circuit did not err in declining to issue

a COA. Therefore, this Court should deny certiorari review

*Counsel of Record

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

JEFFREY C. MATEER

First Assistant Attorney General

ADRIENNE MCFARLAND

Deputy Attorney General

for Criminal Justice

EDWARD L. MARSHALL

Chief, Criminal Appeals Division

Pre Banat

*FREDERICKA SARGBNT

Assistant Attorney General!

Criminal Appeals Division

Texas Bar No. 24027829

P.O. Box 12548, Capitol Station

Austin, Texas 78711

Tel: (512) 936-1600

Fax: (512) 320-8132

ATTORNEYS FOR

RESPONDENT-~APPELLEE

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