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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2016

## Text

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

25

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0682%3A03. Public record. Not legal advice.