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

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No. 15-8049 | ogee |

In the Supreme Court of the Anited States

DUANE EDWARD BUCK, PETITIONER

wae LORIE Davis, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

QNAL INSTITUTIONS DIVISION

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

_ POR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENT

KEN PAXTON ScoiT A. KELLER

Attorney General of Texas Solicitor General

Counsel of Record

: es ; ore J. CAMPBELL BARKER

a ‘- Deputy Solicitor General

BILL Davis

ARI CUENIN

Assistant Solicitors Genera!

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

scott.keller@

texasattorneygeneral.gov

(612) 936-1700

QUESTION PRESENTED

Petitioner shot his stepsister at point-blank range,

shot another man through the heart, executed his for-

mer girlfriend in the street outside her home while her

children watched, and laughed about what he had done.

A Texas jury sentenced petitioner to death, finding that

he would be a future danger to society. At the penalty

phase, petitioner’s defense counsel relied on his own

expert’s report and testimony that linked petitioner's

race to future dangerousness. Petitioner's expert never-

theless concluded, against the substantial weight of

other evidence presented to the jury, that petitioner

presented a low likelihood of future dangerousness. Af-

ter procedurally defaulting his claim of ineffective assis-

tance of trial counsel, petitioner eventually sought to

raise that claim through his second Federal Rule of

Civil Procedure 60(b)(6) motion to reopen the judgment

denying his federal habeas petition. The motion was

based on the State waiving any opposition to resentenc-

ing in other cases in which the same expert testified but

the prusecution elicited the race-as-dangerousness tes-

timony.

The question presented is whether, in light of the

overwhelming aggravating evidence and the minimal

nature of the challenged expert evidence in this unique

case, the court of appeals erred in concluding that peti-

tioner was not entitled to a certificate of appealability

(“COA”) because he did not make a substantial showing

that the district court abused its discretion in finding

that petitioner failed to establish extraordinary circum-

stances under Rule 60(b)(6) sufficient to reopen a final

judgment denying habeas relief to permit him to reliti-

gate a defaulted and meritless ineffective-assistance

claim.

(1)

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TABLE OF CONTENTS

Page

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ELE LLL l

IIIS... sccncnnsnnensennesconsocsosooonees l

so sas cccrrnsmnesnscsnnsnassovescos 6

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ETE EE 20

I. The court of appeals correctly denied

petitioner’s application for a COA...................... 20

A. Petitioner has not made a substantial

showing of prejudice, as required to

satisfy Strickland’s second prong for

ineffective-assistance claims......................... 21

1. The aggravating evidence was

EE 23

2. The limited role that Quijano’s

report and testimony played did not

outweigh the overwhelming

aggravating evidence. ...................c000000+. 27

B. Petitioner has not made a substantial

showing that the district court abused

its discretion in declining to find

“extraordinary circumstances” to

reopen a final judgment. ......................c.00000 34

1. The change in decisional law

effected by Martinez and Trevino is

insufficient to establish

extraordinary circumstances. ................. 36

2. The particular facts of petitioner's

case do not establish extraordinary

circumstances justifying relief from

EE 40

(111)

Il. Petitioner received substantial process............. 47

SI nivcsoissssitescccisteistinsincdibndesionatiiaimninmatibedeeideanidenasaeaen onl 52

TABLE OF AUTHORITIES

Cases:

Adams v. Thaler,

ee I EA, CIID dcrvncesicsvmiscnscevdinnnsininientsemenaoeens 37

Alba v. Johnson,

232 F.3d 208 (5th Cir. 2000) .............cccceccceeeeeeee- 45, 46, 47

Allen v. Stephens,

ee eT I lS SIO vnnccrcnscncinincpieceninonneseapiiiniionins 50

Allison v. State,

248 S.W.2d 147 (Tex. Crim. App. 1952) 2.0.0.0... 31

Andrade v. Cate,

No. 2:09-ev-02270, 2013 WL 5375836 (E.D.

OR Ee 5 eee 36

Arizona v. Fulminante,

I aaa 22

Beard v. Banks,

ERY RDS re 40

Bludworth Bond Shipyard, Inc. v. M/V

Caribbean Wind,

ee Es IED cettnvnictnncccscininntnnenninnseatasnnntin 35

Blue v. Johnson,

No. 4:99-ev-00350 (S.D. Tex. Sept. 29, 2000) .... 45, 46, 47

Browder v. Dir., Dep't of Corr.,

al 34

Broxton v. Johnson,

No. 4:00-cv-01034 (S.D. Tex. Mar. 28, 2001)................. 45

Brady v. Pfister,

oe 27

(IV)

Bryant v. State,

25 S.W.3d 924 (Tex. App. 2000) ...............:scceeceecerseceees 31

Buck v. Stephens,

136 S. Ct. BEGD (BO1G) (mmemm..)........2......ccccccceccceeeseecccseceee 18

Buck v. Texas,

134 S. Ce. BSB (S014) (ames. )......200...00..ccccccecccccccecesccesees 13

Buck v. Thaler,

132 S. Ct. 32 (2011) (mem.)..................... 13, 30, 43, 45, 46

Buck v. Thaler,

130 S. Ct. BOSE (BOIO) (mmeaM. )...........20ccccccceccccccecccccccocceees 12

Buck v. Thaler,

452 F App’x 423 (5th Cir. 2011) ................ccsccseseees 12, 13

Buck v. Thaler,

345 F App’x 923 (5th Cir. 2009) 00... eee 12, 42, 48

Cofield v. State,

een 31

Coleman v. Thompson,

hs eueeinmeais 38, 39

Cox v. Horn,

— ge | 8 | eae 37, 41

Davenport v. Tribley,

No. 2:07-cv-14248, 2011 WL 669240 (E.D.

a aptiocisaniiageiomsniantiiaiia 36

Day v. Quarterman,

566 F.3d 527 (Sth Cir. DOOD) ..............ccccccsccssccsssseccesccerees 28

Detrich v. Ryan,

748 F 36 1287 (Sth Cir. 3013) ......................................-.. 42

Dewberry v. State,

4S.W.3d 735 (Tex. Crim. App. 1999) ...0.............ccecceecee 26

Diaz v. Stephens,

6 ¢ eee 37

Dinklage v. State,

185 S.W.2d 573 (Tex. Crim. App. 1945) ...................0. 31

(V)

Ex parte Buck,

418 S.W.3d 98 (Tex. Crim. App. 2013) ..0......0.ccccccecceee. 10

Garcia v. Johnson,

No. 1:99-ev-00134 (E.D. Tex. Sept. 7, 2000) .......0......... 45

Gates v. Davis,

No. 15-70024 (5th Cir. Aug. 24, 2016) .......ccccccccceccceeees 50

Gates v. Davis,

No. 15-70024, 2016 WL 2909193 (5th Cir.

aE NER PSS eS 50

Gen. Elec. Co. v. Joiner,

ET Et ee meee Lee, 35

Gideon v. Wainwright,

EAN AEE, Brees Ae 8 39

Gonzales v. Cockrell,

No. 7:99-cv-00072 (W.D. Tex. Dec. 19, 2002)................ 45

Gonzalez v. Crosby,

RL ee passim

Gonzalez v. Thaler,

See aT TIE Be 49

Graham v. Collins,

RECENT eae eRe Nan Se Den eee 39

Granados v. Quarterman,

455 F.3d 529 (Sth Cir. 2006) ...0..........ccccccecceseccececceceecesees 22

Griffith v. Quarterman,

196 F. App’x 237 (5th Cir. 2006) ...........cccccccccsescseseseeeeees 26

Harrington v. Richter,

Ee 19, 23, 24, 27, 33

In re Paredes,

587 F App’x 805 (Sth Cir. 2014) oo... cccccccccccceccsecesceeceees 38

Johnson v. Rose,

546 F.2d 678 (6th Cir. 1976) oo. cccccceececeseecesecececeeneees 31

Kellogg v. Strack,

SED FBG BOD CRG Cie. BOI) oes ecccesconceccocesaccscsccccececcecceees 21

Leedo Cabinetry v. James Sales & Distrib.,

Inc., 157 F.3d 410 (5th Cir. 1998) 2.0.0.0... ceccecceeeeeeeeeeees 35

Lenz v. Washington,

444 F.3d 295 (4th Cir. 2006) .............cccccscceseeeereeeeereeeenees 25

Liljeberg v. Health Servs. Acquisition Corp.,

Re I aciiincrntnnenserencinteinsninhanstinennmneernenesemnantin 34

Lockhart v. Fretwell,

I sclinencinieinaeacinnnnaiinesanianeinans 28

Louisiana v. Bessa,

Sa cance enisninmrenielionieaiadeennele 31

Maldonado v. Thaler,

OB 50

Maldonado v. Thaler,

389 F. App’x 399 (Sth Cir. 2010) .............cccecceeeeeeeneeenees 50

Martinez v. Quarterman,

270 F App’x 277 (Sth Cir. 2008) ............ccccceeceneeeeneeneees 25

Martinez v. Ryan,

fp ie | ___, EU eoenenreren passin

Miller-El v. Cockrell,

gt enon 21, 47, 49

New Hampshire v. Maine,

I I sacusiednenitinmnnncninanenieatnaiies 43

Nields v. Bradshaw,

482 F.3d 442 (Gth Cir. 2007) ................ccccesceeeessesseneseeeees 27

Porter v. McCollum,

Ramirez v. United States,

Se | ees 37, 41

Reed v. State,

OE ee 31

Rose v. Mitchell,

SIAR noe es woes = Senne 44

Saldanvo v. Cockrell,

267 F. Supp. 2d 635 (E.D. Tex. 2008) 0.0... cceeeeees 1]

Saldano v. Roach,

363 F.3d 545 (Sth Cir. 2004) 2.0.0... ce ceeeeeeeeeeereeeneeeeeeees 11

Saldano v. State,

70 S.W.3d 873 (Tex. Crim. App. 2002) ............cccceceeeeeee ll

Saldano v. Texas,

530 U.S. 1212 (2000) .............c eee 10, 15, 17, 41, 44, 45

Satterwhite v. Texas,

TT siedisnmaintiansimbeneniialasndiaia 25

Sawyer v. Smith,

SEE Eee a 40

Schriro v. Summerlin,

EE Sears aren See ae Ss 38

Sears v. Upton,

I ieneincenbeenieeanaaleaillk 25

Sells v. Stephens,

536 F App’x 483 (Sth Cir. 2013) .........ccccecseeeeneeeeenees 50

Slack v. McDaniel,

529 U.S. 473 (ZOO) ...........ccccccccsseercecesenees 16, 21, 22, 34, 35

Strickland v. Washington,

SE I a acicsrincccnecocsnpensunevetsomacceseneancesniesn passim

Tanner v. Yukins,

oP a | 35

Teague v. Lane,

I lias 38, 39, 40

Trevino v. Thaler,

re I I csencccaeseceninnioenecemintaninpaniiisiiescianiitih passim

Trottie v. Stephens,

| ee 50

Tyler v. Cain,

ERENCES crereanonee neers orca ner ene Ne 38

(VIII)

United States v. Cruz,

981 F.2d 659 (2d Cir. 1992)...........cc-seccsereerccsssecseessseseees 31

United States v. Haynes,

466 F.2d 1260 (5th Cir. 1972) ........ccccccccccctceeeeeeeeeeeee 31

United States v. Lujan,

603 F.3d 850 (10th Cir. 2010) oo... ccccceeceeeeeeeeeeeeees 26

United States v. Santiago-Gonzdlez,

825 F.3d 41 (ist Cir. 201G6)...............cccccscsssssscessersessceesees 27

Villanueva v. Stephens,

619 F App’x 269 (Sth Cir. 2015) 20.0... cc eeeceeeseneenenees 50

Villanueva v. Stephens,

555 F. App’x 300 (5th Cir. 2014) ........ccccecceeeceeeeeeeeeenees 50

Walbey v. Quarterman,

309 F App’x 795 (5th Cir, 2009) .........ccccsceeeeeeeeeeeeeees 25

Williams v. Taylor,

STII sire crcceamnncslinenmnansennennitenninennsnnneiainiaite 25

Wong v. Belmontes,

ee cicistsicencnennnsceesunseiqmnsecmenvestdemendets 23, 25

Wood v. Stephens,

619 F. App’x 304 (Sth Cir. 2015) 2.0.0... ccc ceceeeneeeeeeeenene 50

Wood v. Stephens,

540 F. App’x 422 (Sth Cir. 2013) ..........ccceecessseeeeeeeeenees 50

Constitutional provisions, statutes, and rules:

U.S. Const.:

SE abi ensentvviencsictnntninnieniemegunemtemueiincsainntimeicin 1, 11, 21

I: Se siiicccinecsenicapienseinnientisneidendautiintistiingscnimciviannts 1]

Antiterrorism and Effective Death Penalty Act

of 1996, Pub. L. No. 104-182, 110 Stat. 1214.00.00... 36

ts Oe IE ieecicwinistivisnincesvincecesnevenseonenenese 38

Bap Ai sientirrnescicnctniipsparenerenicnnsensiannanirentananntt 20

a TD iccicccdinsnistssninaiiosnrcitindincuniiiniinannsimsantanthinin 12

BD EA, BPD sscceccnenencnsnsscccnsssenstescenoennendeses 20

Be ai 1, 21

Act of May 17, 1991, 72d Leg., R.S., ch. 838, § 1,

art. 37.071(b)(1), 1991 Tex. Gen. Laws 2898............. 7,24

Tex. Code Crim. Proc.:

NR titadit iatiaiitetinsindtsiisciincincsescicaciitaniensisintitenabsninstainsst 45

isis nicininntentiincinenibindanbisiinmiadenmpone 7

isis ccd cnesiccictenesistnintentniniepiniiniiaciste 45

Pe a REIE MIIE nsccivacanentiniiistanacthtemstintiacniiainicniintsanasician 51

Fed. R. Civ. P.:

ITI aici ionie clea taastniientshttatiniet cinaeiaeuesatiaciteabasiuniipiniiiaet 12, 15, 46

Si icietchsihantecsigeiesnitiebsnniatdisamtiebbdididhidbeibensbingibianadadiasteinlpabaiadinniaentellinia 12, 13

I irhidenssiiintnnninetsdtivasewiiiitiipindssesisviemismneiiidinaiguniis passim

RE A SE Se ee er ae passim

RET ae ee hk Ce ENA PAN TO 12

Other authority:

11 Charles Alan Wright, Arthur R. Miller &

Mary Kay Kane, Federal Practice and

Procedure § 2872 (3d ed. 2012) ............ssccceeseeeeeeessceceeees 35

(X)

INTRODUCTION

Respondent agrees that “[rjJace is an arbitrary, emo-

tionally charged factor that has nothing to do with indi-

vidual moral culpability.” Pet. Br. 28. Respondent fur-

ther agrees that the introduction of race into petition-

er’s capital-punishment proceedings by petitioner's own

trial counsel was at least debatably deficient perfor-

mance, allowing petitioner to establish one element of

his application for a COA on his Sixth Amendment

claim of ineffective assistance of trial counsel.

But that was not the only showing required to obtain

a COA. Petitioner could not obtain a COA without also

making a “substantial showing,” 28 U.S.C. § 2253(c)(2),

on the other half of his ineffective-assistance claim: the

prejudice element, requiring a substantial likelihood

that the outcome of the capital-punishment proceedings

would have been different if petitioner’s trial counsel

had not presented the expert evidence at issue.

Additionally, petitioner had to show that reasonable

jurists would debate whether the district court abused

its discretion in finding that petitioner’s second Rule

60(b)(6) motion presented no extraordinary circum-

stances warranting reopening the final judgment deny-

ing his habeas petition.

As explained below, petitioner failed to surmount

these significant obstacles to obtaining a COA.

STATEMENT

A. Factual Background

1. In July 1995, Kenneth Butler, his brother Harold

Ebnezer, family friend Debra Gardner, and Gardner's

friend Phyllis Taylor went to Gardner’s home in south-

west Houston after a night out shooting pool. J.A. 42a,

5la, 75a-76a. At least four children—Tuylor’s infant,

Gardner’s adolescent son Devon, Devon’s older sister

(1)

Shennel, and Devon’s cousin Kanetta—were already in

the house when the four adults arrived. J.A. 5la-52a,

93a-Y6a, 109a-1 11a.

Around 2:30 a.m., when the adults were laughing

and joking in the living room, Taylor’s stepbrother, pe-

titioner Duane Buck, banged loudly on the front door.

J.A. 5la-52a; R.6365-66.' Up until two or three weeks

earlier, petitioner had been in an unstable romantic re-

lationship with Gardner, and he apparently believed

that Butler had been sleeping with Gardner. J.A. 73a-

75a, 99a. When Gardner heard that it was petitioner at

the door, she called 911 and told the others to go to the

back of the house. J.A. 524-53a.

Petitioner kicked in the front door and entered the

house, swearing and yelling. J.A. 53a-55a, 77a. When he

approached Gardner and started hitting her, Ebnezer

got between them and kept petitioner an arm's length

away. J.A. 55a-56a. Petitioner eventually calmed down

and told Gardner that he had come to retrieve clothes

that he had left at Gardner’s house. J.A. 57a-59a, 78a.

Gardner gave petitioner his clothes, and he left. J.A.

57a-58a, 77a-78a.

About 45 minutes later, after petitioner had driven

back to his father and stepmother’s house in northeast

Houston, petitioner called the Gardner home and spoke

with Taylor. J.A. 78a-79a; R.5716, 5718-19, 5972, 6436-

38. Petitioner asked to talk to Gardner. J.A. 79a. When

Gardner declined, petitioner hung up. J.A. 79a. Taylor,

Gardner, Ebnezer, and Butler talked about what had

happened that morning, then went to sleep around 4:30

or 5:00 a.m. in different parts of Gardner’s house. J.A.

58a-59a, 80a.

'“R.” refers to the record on appeal in the Fifth Circuit.

Back in northeast Houston, petitioner took a shot-

gun and a rifle from his stepmother’s room. R.5714,

6437. Petitioner’s teenage brother Clarence watched

petitioner load the guns and told petitioner to stop

pointing one of them at him. R.6436-38. Petitioner took

both guns with him when he set out on the 28-mile drive

back to Gardner’s house. R.2101, 5716, 5718-19, 5972-74,

6437-38.

2. Around 7:00 a.m., petitioner again banged on

Gardner’s front door and then kicked it in. J.A. 59a-61a,

80a-81la; R.5859. This time, he had the shotgun and rifle

from his stepmother’s room with him. J.A. 6la-62a; see

R.5862-63.

Petitioner fired the shotgun at Ebnezer but missed.

J.A. 6la-62a. He then put the shotgun down, armed

himself with the rifle, and approached his stepsister

Taylor, who was sitting on a couch. J.A. 8la-82a. Peti-

tioner told her: “I’m going to shoot your ass too.” J.A.

82a. Taylor responded: “Duane, please don’t shoot me.

I’m your sister. I don’t deserve to be shot. Remember |

do have children.” J.A. 83a. Petitioner put the gun to

Taylor's chest and shot her. Although the bullet did not

kill her, it missed her heart by only an inch. J.A. &3a-

84a, 90a-9la.

By that time, Ebnezer had run to the back of the

house, passing Butler in a hallway and warning him that

petitioner had a gun. J.A. 63a-64a. Ebnezer ran into the

back yard and found Gardner there, too. J.A. 64a.

Meanwhile, petitioner had moved to the back of the

house and shot Butler at close range. J.A. 101la. Peti-

tioner left Butler bleeding in the hallway. J.A. 101a.

Despite having suffered a point-blank shot to her

chest, Taylor managed to get up and check on Gard-

ner’s son Devon and his cousin Kanetta, who were hid-

ing in a bedroom closet. J.A. 84a-85a, 98a. Taylor shut

the closet door, went to the telephone, and called 911.

J.A. 85a. But when she heard petitioner’s voice, she

hung up and got into the closet. R.5867.

In the hallway of Gardner’s house, Butler “was

throwing up a lot of blood” and trying to talk after peti-

tioner had shot him. J.A. 101a-102a. Devon and Shennel

went to Butler and tried to help him. J.A. 10la. Shennel

thought that petitioner had shot Butler in the mouth

because all she saw was blood coming out of his mouth.

J.A. 113a. In fact, petitioner had shot Butler through

the heart and a lung. J.A. 120a.

Devon and Shennel went outside to the sidewalk in

front of their house. R.6396-97. Devon saw petitioner

chasing Ebnezer down the sidewalk. R.6397. Ebnezer

ran to a neighbor’s house and asked the person who an-

swered the door to call 911. J.A. 67a.

Gardner by then had run out into the street. J.A.

65a. She pleaded with the driver of a passing car to let

her in, but the car drove off. J.A. 65a-66a, 103a-104a.

Petitioner approached Gardner in the street from

behind. J.A. 66a-67a; R.6398. Devon watched from the

sidewalk as his mother stopped in the middle of the

street, turned to petitioner, and said: “Please don’t

shoot me. Please don’t shoot me. Why are you doing

this in front of my kids?” J.A. 104a; R.6428, 6398-99.

Shennel also begged petitioner not to shoot her mother

and even jumped on petitioner's back to try to stop him.

J.A. 114a, 116a. But petitioner kept the gun pointed di-

rectly at Gardner, repeating: “I’m going to shoot you.

I’m going to shoot your A[ss}.” J.A. 117a.

Petitioner then shot Gardner, perforating her right

lung, diaphragm, and liver. J.A. 122a. The bullet’s path

was consistent with Gardner being on her knees when

she was shot. J.A. 122a.

Petitioner walked back toward the house, retrieved

the shotgun that he had left by the front door, and put

both the shotgun and rifle into the trunk of his step-

mother’s car. R.6399. Petitioner then walked back over

to Gardner and said: “It ain’t funny now. You ain't

laughing now.” J.A. 106a.

Petitioner walked away from the crime scene after

unsuccessfully trying to start his stepmother’s car. J.A.

106a-108a. According to Devon, petitioner “was acting

like he ain’t done nothing.” J.A. 108a.

3. Deputy D.R. Warren arrived at the scene and

stayed with Gardner, who was lying in a puddle of blood

and struggling to breathe. J.A. 130a-13la. Deputy War-

ren saw three young children near Gardner, including

“a little girl who was three or four” and “was running

around and crying[,] trying to come over” to where

Gardner was lying in the street. J.A. 13la. Gardner told

the girl she loved her, and the girl gave Gardner a hug.

J.A. 132a.

A second responding officer, Deputy Paul McGinty,

noticed a man walking away from where Gardner was

lying in the street. J.A. 42a-43a.

McGinty asked a police dispatcher to send paramed-

ics and Life Flight. J.A. 43a-44a. Gardner was at that

point “still moving,” but she was having difficulty

breathing and “not saying anything that [McGinty]

could understand other than showing that she was in a

good deal of pain.” J.A. 44a.

While Deputy McGinty was assisting Gardner, he

heard a man yelling “He shot her” and chasing another

man towards Deputy McGinty. J.A. 45a-46a. That man

was petitioner, whom Deputy McGinty recognized as

the man walking away from the shooting. J.A. 46a.

Deputy MeGinty took petitioner into custody, placing

him in the back of a patrol car. J.A. 46a.

When Deputy McGinty went into the house, he

found Butler lying face down in the hallway. J.A. 48a.

He also encountered several children who were scream-

ing and crying. J.A. 48a-49a. He took them to a neigh-

bor’s house. J.A. 49a.

In the patrol car, petitioner was “laughing and

taunting and joking.” J.A. 7la; see J.A. 89a, 133a-134a.

Shennel saw petitioner “in the police car laughing”; pe-

titioner “thought it was funny and it wasn’t.” J.A. 118a.

On the way to the police station, petitioner contin-

ued to smile and laugh. J.A. 1344. When Deputy War-

ren told petitioner that he did not think the situation

was very funny, petitioner stated: “The bitch got what

she deserved.” J.A. 135a. Petitioner added that God had

already forgiven him. J.A. 135a. He remained happy

and upbeat as he was taken to the police station. J.A.

135a-136a.

By that time, Butler was dead in the hallway. J.A.

48a. Gardner was dead in the street. J.A. 132a. And

Taylor, who survived her stepbrother’s point-blank at-

tack, was en route to surgery via Life Flight. J.A. 90a.

B. Judicial Proceedings

1. a. Petitioner was convicted of capital murder. J.A.

276a. At the penalty phase of trial, several lay and ex-

pert witnesses testified for the State and for petitioner.

Petitioner’s former girlfriend Vivian Jackson testi-

fied that petitioner had abused her. J.A. 125a-127a.

Jackson explained that, by the end of their relationship,

petitioner had begun to hit her almost every day. J.A.

127a. Before then, he had also held a gun to her throat

and, in a separate incident, to her face. J.A. 127a. He

had beaten her with a belt, a coat hanger, and a cast on

his arm. J.A. 127a. He had threatened to pour boiling

water on her. J.A. 127a. Jackson stated that she had

been too afraid to call the police about these incidents.

J.A. 128a.

The State’s other penalty-phase witnesses were

Harris County Sheriffs Deputy R.L. Schield, Deputy

Warren, and Deputy McGinty. R.933, 977, 987, 991.

They testified about petitioner’s previous convictions,

his upbeat demeanor after the attack, and Gardner's

dying moments surrounded by her children. R.955-56

(testimony regarding State's exhibits 62, 63, 67, and 68),

979-81, 992-1001.

Petitioner called several lay witnesses who testified

about his behavior before his shooting spree. R.5961-85.

He also called two clinical psychologists to help the jury

determine “whether there is a probability that [peti-

tioner} would commit criminal acts of violence that

would constitute a continuing threat to society.” Act of

May 17, 1991, 72d Leg., R.S., ch. 838, §1, art.

37.071(b)(1), 1991 Tex. Gen. Laws 2898, 2899 (“Former

Article 37.071”) (current version at Tex. Code Crim.

Proc. art. 37.071, § 2(b)(1)); see J.A. 138a, 145a. This in-

quiry is often referred to as the “future dangerousness”

issue in capital-punishment proceedings in Texas. See

J.A. 146a.

One of the psychologists petitioner called was Dr.

Patrick Lawrence. R.6068. Lawrence had evaluated

hundreds of offenders and had testified for both the

prosecution and defense; here, he opined that petitioner

was not likely to present future dangerousness. R.6071,

6077, 6094-96.

The other psychologist petitioner called was Dr.

Walter Quijano. J.A. 1384. During petitioner's direct

examination of Quijano, defense counsel moved to admit

into evidence a copy of the report that Quijano prepared

for petitioner’s case. J.A. 152a. Over the State’s objec-

tion, the trial court ruled that it would admit a redacted

version of Quijano’s report. J.A. 14a-23a, 15la-153a;

R.6003-04, 6007-32; see R.6127.

Quijano’s report first indicated that several “statis-

tical factors,” including a capital defendant's past

crimes, age, and sex, are predictive of future danger-

ousness. J.A. 18a (capitalization altered). Quijano’s re-

port went on to identify race as another relevant factor

for assessing future dangerousness, as follows: “Black:

Increased probability. There is an over-representation

of Blacks among the violent offenders.” J.A. 19a. Peti-

tioner is African-American. J.A. 235a.

Petitioner’s counsel elicited Quijano’s testimony re-

garding these factors on direct examination. J.A. 146a.

When petitioner’s counsel asked about the report’s race

factor, Quijano stated: “It’s a sad commentary that mi-

norities, Hispanics and black people, are over repre-

sented in the Criminal Justice System.” J.A. 146a. After

discussing other purportedly relevant statistical and

environmental factors, Quijano testified that petitioner

was unlikely to commit criminal acts of violence that

would constitute a continuing threat to society. J.A.

146a-150a. Quijano did, however, agree that there was

“a probability that [petitioner] would be a continuing

threat to society.” J.A. 176a. Quijano explained his view

that petitioner “would be on the low end of the continu-

um,” adding that he “never rule|s} out any probability.”

J.A. 176a; see also R.6105-06 (admission by Lawrence

that there were “no guarantees” that petitioner “will

never commit other violent acts”).

The prosecutor then cross-examined Quijano at

length. She questioned him about his interview and

testing of petitioner, his review of eyewitness state-

ments, and several portions of his report. J.A. 155a-

176a. During a colloquy reviewing Quijano’s report—

which the trial court had told counsel would be admitted

on petitioner’s motion, over the State’s objection—the

prosecutor asked: “You have determined that the sex

factor, that a male is more violent than a female be-

cause that’s just the way it is, and that the race factor,

black, increases the future dangerousness for various

complicated reasons; is that correct?” J.A. 170a. Con-

sistent with his report, Quijano answered: “Yes.” J.A.

170a.

This was the prosecutor’s only question on that mat-

ter. It appears in the transcript amid several other ex-

changes canvassing Quijano’s report, including ones in

which Quijano admitted that numerous factors—

including petitioner’s history of abuse towards women;

his unstable employment record; the extreme violence

of his attack on Ebnezer, Taylor, Butler, and Gardner;

and the availability of drugs, alcohol, and weapons in

prison—increased the probability of future dangerous-

ness. J.A. 168a-175a.

In a further exchange, the prosecutor asked Qui-

jano:

If you had information that the person thought it

was quite humorous, the crime that ie commit-

ted, which was an extremely violent and heinous

act, and even after seeing the result of his hand-

iwork with people bleeding, people screaming,

children crying, children running over to their

mother and hugging her before she died, would

that indicate to you that that person with no re-

morse would have a greater probability of being

a danger in the future?

J.A. 175a-176a. Quijano responded: “Yes.” J.A. 176a.

b. In closing argument, petitioner’s counsel argued

that the State had not met its burden to prove that peti-

tioner should be sentenced to death. J.A. 187a-196a. Pe-

titioner’s counsel made one brief reference to Quijano,

noting Quijano’s opinion that petitioner was unlikely to

commit an act of violence in prison and arguing that the

State had not discredited Quijano. J.A. 192a-193a.

The prosecutor argued that the evidence supported

a finding of future dangerousness and, with respect to

Quijano, reminded the jurors that they had “heard from

Dr. Quijano, who had a lot of experience in the Texas

Department of Corrections, who told you that there was

a probability that [petitioner] would commit future acts

of violence.” J.A. 197a-199a. This was the only mention

of Quijano in the prosecutor’s closing statement, and

the prosecutor did not remind the jury about Quijano’s

reference to race.

c. The jury deliberated and returned answers to

the penalty-phase questions. See Ex parte Buck, 418

S.W.3d 98, 98 (Tex. Crim. App. 2013) (per curiam). In

accordance with those answers, the trial court sen-

tenced petitioner to death. See id. The Texas Court of

Criminal Appeals affirmed petitioner’s conviction and

sentence on direct appeal. See id.

2. a. Petitioner’s initial state-court application for a

writ uf habeas corpus did not complain about Quijano’s

testimony or raise a claim of ineffective assistance of

trial counsel. See J.A. 277a. While that first application

was pending, the State confessed error in Saldanv v.

Texas, 530 U.S. 1212 (2000), a case in which the prose-

cution used Quijano as an expert witness and elicited

race-related testimony from him regarding the defend-

ant’s future dangerousness. See J.A. 295a-307a.~ Peti-

tioner subsequently filed a second state-court habeas

application in which he challenged Quijano’s testimony

and asserted ineffective assistance of trial counsel. See

J.A. 278a. The Texas Court of Criminal Appeals denied

petitioner's first application and dismissed the second

as an abuse of the writ. See J.A. 278a.

b. One year later, petitioner filed a federal habeas

petition. See J.A. 223a. The petition included a claim

that Quijano’s reliance on race and the prosecutor’s de-

seription of Quijano’s race-related testimony violated

petitioner's Sixth and Fourteenth Amendment rights to

an impartial jury, due process, and equal protection.

See J.A. 235a-236a. It also included a claim of ineffective

assistance of trial counsel based on Quijano’s testimony.

See J.A. 236a. The district court denied the petition,

finding each of the claims procedurally defaulted and

further concluding that petitioner had failed to establish

the cause and prejudice he would have needed to excuse

the default. J.A. 236a-238a. The district court entered

* On remand from this Court, the Texas Court of Criminal Ap-

peals declined to accept the State’s confession of error and rein-

stated Suldano’s sentence. Saldano v. State, 70 S.W.3d 873, 891

(Tex. Crim. App. 2002). Saldano subsequently filed a federal ha-

beas corpus petition, which the district court granted because

“constitutional error occurred in thie) case, and because the

court decide[d] in its discretion to honor the [State]’s waiver of

the affirmative defenses of procedural default and harmless er-

ror.” Saldanv v. Cockrell, 267 F Supp. 2d 635, 645 (E.D. Tex.

2003). The Fifth Circuit affirmed the district court's related de-

nial of the district attorney's motion to intervene to argue in

support of Saldano’s sentence, and it dismissed the district at-

torney’s appeal of the judgment granting habeas relief. Saldano

v. Roach, 363 F.3d 545, 556 (5th Cir. 2004).

final judgment granting respondent’s motion for sum-

mary judgment and dismissing petitioner’s case with

prejudice. R.235. It also declined to issue a COA. J.A.

247a; R.235; see 28 U.S.C. § 2253(c)(1).

The court of appeals reached the same conclusions

as to procedural default and added that, if it were to

consider the merits, it would not issue a COA because

petitioner failed to make a substantial showing of the

deprivation of a constitutional right. Buck v. Thaler, 345

F. App’x 923 (5th Cir. 2009) (per curiam). This Court

denied petitioner’s request for a writ of certiorari, and

the judgment became final. Buck v. Thaler, 130 S. Ct.

2096 (2010) (mem.).

c. Petitioner then moved in district court for relief

from the final judgment denying his federal habeas pe-

tition, claiming that the State’s failure to confess error

and waive procedural defenses to petitioner’s constitu-

tional claims were extraordinary circumstances justify-

ing relief from the judgment under Rule 60(b)(6) and

fraud on the court under Rule 60(d)(3). R.273-90. Peti-

tioner’s theory was that the Texas Attorney General

had publicly promised not to object to resentencing in

his case and five others involving Quijano’s testimony

that had been referenced in press statements. R.273-90.

As the court of appeals noted, however, the record did

not reflect that the “Attorney General’s statements cre-

ated legally enforceable rights or later precluded him

from distinguishing |petitioner]’s case from the other

cases.” Buck v. Thaler, 452 F App’x 423, 432 (5th Cir.

2011) (per curiam).

The district court denied petitioner’s Rule 60 motion

and a subsequent motion under Rule 59%e) in which pe-

titioner claimed that the State had made material mis-

representations and omissions in its opposition to his

earlier Rule 60 motion. See J.A. 279a. The court of ap-

peals declined to issue a COA and reiterated its earlier

conclusion that petitioner’s due-process and equal-

protection claims would fail on the merits. See J.A.

278a-279a; Buck, 452 F. App’x at 428, 432-33.

Petitioner again unsuccessfully sought a writ of cer-

tiorari. Buck v. Thaler, 132 S. Ct. 32 (2011) (mem.). Jus-

tice Alito, joined by Justices Scalia and Breyer, issued a

statement respecting the denial of certiorari noting the

unique facts of this case and distinguishing it from oth-

ers in which Quijano testified. /d. at 32-35 (explaining

that petitioner’s case was “the only case in which it can

be said that the responsibility for eliciting the offensive

testimony lay squarely with the defense”). Justice So-

tomayor, joined by Justice Kagan, dissented, stating

their view that petitioner was entitled to a COA on his

constitutional claims based on Quijano’s testimony. /d.

at 35-38.

d. Petitioner then filed a third state habeas applica-

tion. See J.A. 279a. While that application was pending

before the Texas Court of Criminal Appeals, this Court

held, in Trevino v. Thaler, 133 S. Ct. 1911 (2013), that

ineffective assistance of counsel during initial state ha-

beas proceedings in Texas could excuse procedural de-

fault of a claim that trial counsel was ineffective. /d. at

1921 (extending the reasoning of Martinez v. Ryan, 132

S. Ct. 1809 (2012)). The Texas Court of Criminal Ap-

peals dismissed petitioner's third habeas application as

an abuse of the writ. See J.A. 280a. This Court again

denied certiorari. Buck v. Texas, 134 S. Ct. 2663 (2014)

(mem.).

3. a. In federal district court, petitioner then filed a

second motion under Rule 60(b)(6) for relief from the

final judgment denying his federal habeus petition.

R.1048-1228 (motion and exhibits). The motion focused

on petitioner’s ineffective-assistance claims regarding

his trial counsel’s elicitation of race-related evidence

from Quijano. R.1067. In the instant case, petitioner

wishes to appeal the denial of this motion by obtaining a

COA.

The motion asserted that, instead of “sjeeking]

funding to retain an expert who did not harbor ... ra-

cially biased, and constitutionally inadmissible, views,”

petitioner’s trial counsel

{iJntroduced and relied on Dr. Quijano’s testimo-

ny and report; they made no effort to ameliorate

the harm that inevitably flowed from Dr. Qui-

jano’s testimony; they offered no objections; they

sought no limiting or curative instruction; and

they made no attempt in closing argument to

limit, rebut, or contextualize Dr. Quijano’s testi-

mony.

R.1067. Petitioner’s motion also suggested that the final

judgment should be reopened to allow him to argue,

under this Court’s later decision in Trevino, that proce-

dural default should be excused; the motion asserted

that state habeas counsel was ineffective in failing to

assert that trial counsel was ineffective in both eliciting

the Quijano evidence and in failing to challenge “Tex-

as’s reliance on” that evidence during the prosecutor’s

cross-examination of Quijano and in closing arguments.

R.1063.

The district court denied the Rule 60(b)(6) motion

and declined to issue a COA. J.A. 267a-268a. The court

applied precedent of this Court and the Fifth Circuit to

hold that a change in decisional law, such as T'revino’s

extension of Martinez, does not alone constitute “ex-

traordinary circumstances” allowing the reopening of a

final judgment. J.A. 260a. The district court reasoned

that, although the conduct of petitioner’s trial counsel

fell below an objective standard of reasonableness, the

strong aggravating evidence presented to the jury

meant that petitioner could not show that he was preju-

diced by his counsel’s performance. J.A. 260a-265a (cit-

ing Strickland v. Washington, 466 U.S. 668 (1984), and

concluding that “it cannot be said that there is a rea-

sonable probability that the outcome would have been

different if Quijano had made no reference to race”).

Petitioner also moved for relief from the district

court’s judgment under Rule 59e). See J.A. 270a. Not-

ing that “[petitioner]’s argument boils down to mere

disagreement with [the court’s Rule 60(b)(6)| analysis,”

the district court denied that motion and again declined

to issue a COA. See J.A. 272a-273a.

b. Petitioner requested a COA from the court of ap-

peals. See J.A. 275a. The court of appeals declined the

request, finding that “[jjurists of reason would not de-

bate that petitioner has failed to show extraordinary

circumstances justifying relief’ under Rule 60(b)(6).

J.A. 287a.

In describing the relevant procedural history, the

court of appeals noted that, after this Court vacated the

judgment in Saldano based on the State’s confession of

error, the Texas Attorney General “publicly identified

eight other cases involving racial testimony by Quijano,

six of which the [Attorney General] said were similar to

Saldano’s case; one of those was [petitioner]’s.” J.A.

277a. But the court of appeals noted that “ijt has never

been established that the [State] promised not to raise

procedural defenses in [petitioner]’s case.” J.A. 277a-

278a n.1; see J.A. 21la-218a (press releases); R.308-09,

1110 (news articles).

In analyzing whether petitioner was entitled to a

COA, the court of appeals explained that it was re-

quired to deny the application “if | petitioner) fails to es-

tablish both (1) that jurists of reason would find debat-

able ‘whether the petition states a valid claim of the de-

nial of a constitutional right’ and (2) that those jurists

‘would find it debatable whether the district c»urt was

correct in its procedural ruling.” J.A. 28la (quoting

Slack v. McDaniel, 529 U.S. 473, 484 (2000)). For pur-

poses of the second part of that analysis, the court of

uppeals noted that the procedural reason that the dis-

trict court denied relief was “[petitioner]’s failure to

show extraordinary circumstances justifying relief un-

der Rule 60(b)(6).” J.A. 281a.

The court of appeals identified the “eleven facts

that [petitioner] says make the case extraordinary.”

J.A. 283a-285a. In rejecting petitioner’s argument, the

court noted that five of those facts were

just variations on the merits of |petitioner|]’s |in-

effective-assistance] claim, which is at least un-

remarkable as far as [ineffective-assistance|

claims go. [Petitioner]’s |ineffective-assistance |

claim is not so different in kind or degree from

other disagreements over trial strategy between

lawyer and client that it counts as an exceptional

case. Nor are |ineffective-assistance] claims as a

class extraordinary under Rule 60(b)(6).

J.A. 285a.

After noting that two of petitioner’s other facts

“merely point{[ed] out that [petitioner]’s [ineffective-

assistance] claim was procedurally defaulted and did

not get a merits determination,” the court of appeals

concluded that “[nJo jurists of reason would expand the

definition of ‘extraordinary’ to reach all procedurally

defaulted [ineffective-assistance] claims.” J.A. 2&5a-

286a. And the “facts” relating to Trevino and Martinez,

the court of appeals explained, merely pointed to a

change in decisional law that was likewise insufficient,

in itself, to establish extraordinary circumstances. J.A.

286a.

Finally, the court of appeals addressed petitioner’s

argument about the State’s purported promise not to

object to resentencing in light of its confession of error

in Saldano. J.A. 286a. On this point, the court of ap-

peals reiterated that petitioner had failed to establish

any promise by the State in his case. J.A. 286a. But

even assuming the State had both made and breached

such a promise, the court of appeals stated that

[t]he broken-promise element to this case makes

it odd and factually unusual, but extraordinary

circumstances are not merely found on the spec-

trum of common circumstances to unique cir-

cumstances. And they must be extraordinary cir-

cumstances ‘justifying relief from the judgment.’

[Petitioner] has not shown why the alleged re-

neging would justify relief from the judgment.

For example, he has not shown that he relied on

the alleged promise to his detriment.

J.A. 286a-287a (quoting Gonzalez v. Crosby, 545 U.S.

524, 537 (2005)). The court of appeals went on to explain

that “[e}ven assuming arguendo that the other cases at

issue are materially similar to [petitioner]’s (which the

state disputes), it can hardly be extraordinary that the

state chose different litigation strategies between the

two cases. Jurists of reason would not debate that [ peti-

tioner} has failed to show extraordinary circumstances

justifying relief.” J.A. 287a.

Petitioner unsuccessfully petitioned for rehearing en

banc. J.A. 289a. Judge Dennis, joined by Judge Graves,

dissented, stating his view that petitioner had “made

the requisite threshold showing of entitlement to relief”

necessary to obtain a COA and that the panel had “jus-

tiflied] its denial of a COA based on its adjudication of

the actual merits” of petitioner’s case. J.A. 290a; see al-

sv J.A. 292a-294a (recapping petitioner’s arguments for

relief under Rule 60(b)(6)). This Court granted certio-

rari. Buck v. Stephens, 136 S. Ct. 2409 (2016) (mem.).

All told, petitioner filed 163 pages of briefing in the

three Fifth Circuit proceedings (after obtaining leave,

in the instant proceeding, to file a reply brief in support

of his COA application). See Dockets, Nos. 14-70030, 11-

70025, 06-70035 (5th Cir.). The State filed 114 pages of

responsive briefing. See id. And the court of appeals is-

sued three opinions totaling 39 pages. J.A. 275a-287a;

R.257-69, 831-47.

SUMMARY OF ARGUMENT

I. The court of appeals did not err in denying peti-

tioner a COA. The court was required to do so unless

petitioner made a substantial showing that (A) his inef-

fective-assistance-of-trial-counsel claim is meritorious

and (B) the district court abused its discretion in declin-

ing to find exceptional circumstances warranting reo-

pening of its final judgment under Rule 60(b)(6). Peti-

tioner failed to meet his burden on each of those inde-

pendent points.

A. Petitioner did not make a substantial showing of

the actual prejudice required to succeed on a claim of

ineffective assistance of counsel. Petitioner did not es-

tablish a “substantial” likelihood that the jury would

have reached a different conclusion if petitioner’s de-

fense counsel had not proffered Quijano’s report and

testimony. Harrington v. Richter, 562 U.S. 86, 111

(2011). The aggravating evidence of petitioner's future

dangerousness—including the horrific facts of the of-

fense, petitioner’s callous lack of remorse, and his ex-

girlfriend’s testimony about petitioner’s violence to-

wards her—was overwhelming. And notwithstanding

Quijano’s opinion that race was probative of future dan-

gerousness, his report and testimony played a limited

role at trial. The challenged testimony comprised only a

small fraction of Quijano’s testimony that petitioner

posed a low probability of future dangerousness, the

prosecution did not ask the jury to consider petitioner's

race, and the mitigation evidence was not nearly as

strong as petitioner suggests.

B. Petitioner also did not make a substantial show-

ing that the district court abused its discretion in con-

cluding that petitioner’s grounds for reopening the

judgment under Rule 60(b)(6) failed to qualify as “ex-

traordinary circumstance[s].” Gonzalez, 545 U.S. at 537.

A change in decisional law is insufficient, in itself, to es-

tablish extraordinary circumstances. And the change in

law at issue here—based on Martinez, 132 S.Ct. at

1318-19, and T'revino, 133 S. Ct. at 1921—does not even

apply retroactively to petitioner’s claim on collateral

review.

But even if this new law did apply retroactively on

collateral review, the particular facts of petitioner's

case do not rise to the level of extraordinary circum-

stances justifying reopening the judgment denying the

federal habeas petition. Claims of ineffective assistance

of trial counsel are routine and do not present extraor-

dinary circumstances justifying reopening a final judg-

ment rejecting such a claim. Moreover, this second at-

tempt to reopen the final judgment under Rule 60(b)(6)

seeks to litigate what is ultimately an unavailing claim

of ineffective assistance of trial counsel—a claim that

petitioner did not even raise in his first Rule 60(b)(6)

motion. Whether the State previously expressed an in-

tent to allow petitioner to litigate that claim notwith-

standing procedural default is immaterial because the

press statements on which petitioner relies, and the

treatment of distinguishable cases involving the prouse-

cution eliciting Quijano’s race-related testimony, would

not justify relief from the judgment.

Il. Even though the court of appeals denied peti-

tioner’s application for a COA, it did so only after

providing petitioner with substantial process. The court

of appeals’ detailed analysis, and the extensive briefing

it permitted, belie petitioner’s suggestion that the court

ignored the substance of his claim. Nor is the Fifth Cir-

cuit’s approach to adjudicating COA applications, which

regularly includes comprehensive briefing from both

sides and occasionally involves oral argument, incon-

sistent with this Court’s instructions.

ARGUMENT

Il The Court of Appeals Correctly Denied Petition-

er’s Application for a COA.

A petitioner must obtain a COA before he may ap-

peal a “final order in a habeas corpus proceeding.” 28

U.S.C, § 2253(c)(1)(A).* A COA may not issue unless pe-

* Petitioner has not raised, and has therefore forfeited, any ar-

gument that he was not required to obtain a COA to appeal the

denial of his Rule 60(b) motion. Regardless, the denial of a Rule

60(b) motion to reopen a judgment denying a federal habeas pe-

tition constitutes a “final order in a habeas corpus proceeding,”

thus requiring a COA to appeal the denial of the order. See Con-

zalez, 545 U.S. at 535 (“Many Courts of Appeals have construed

28 U.S.C. § 2253 to impose an additional limitation on appellate

titioner “has made a substantial showing of the denial of

a constitutional right.” /d. § 2253(c)(2); see Miller-E 1 v.

Cockrell, 537 U.S. 322, 336 (2003). To meet this stand-

ard, petitioner was required to show that jurists of rea-

son would (A) find it debatable “whether the petition

states a valid claim of the denial of a constitutional

right” and (B) further “find it debatable whether the

district court was correct in its procedural ruling” re-

garding extraordinary circumstances under Rule

60(b)(6). Slack, 529 U.S. at 484; see, e.g., Kellogg v.

Strack, 269 F.3d 100, 104 (2d Cir. 2001) (per curiam). As

explained below, petitioner failed to make either show-

ing.

A. Petitioner has not made a substantial show-

ing of prejudice, as required to satisfy Strick-

land’s second prong for ineffective-assistance

claims.

Petitioner's federal habeas petition alleged that he

was denied his constitutional right to effective assis-

tance of trial counsel. R.66. To prevail on such a claim, a

petitioner must first show that

counsel made errors so serious that counsel was

not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment. Second, the

[petitioner] must show that the deficient perfor-

mance prejudiced the defense. This requires

showing that counsel’s errors were so serious as

to deprive the defendant of a fair trial, a trial

whose result is reliable.

review by requiring a habeas petitioner to obtain a COA as a

prerequisite to appealing the denial of a Rule 60(b) motion.”).

Strickland, 466 U.S. at 687. Petitioner’s failure to prove

either deficient performance or prejudice will defeat an

ineffective-assistance claim, making it unnecessary to

examine the other prong. /d. at 697.

Under Stricklana’s first prong, respondent agrees

with petitioner that jurists of reason would at least find

it debatable whether trial counsel’s performance was

deficient.‘ That is a necessary, but insufficient, condi-

tion to obtain a COA. See Slack, 529 U.S. at 483-84.

As petitioner concedes, Pet. Br. 26, 33, the second

prong of Strickland requires him to make a substantial

showing that counsel’s actions resulted in actual preju-

dice—that is, a substantial likelihood of a different re-

sult. Strickland, 466 U.S. at 690-92.° In the capital-

* The district court here found deficient performance. J.A.

263a-264a. In contrast, the Fifth Circuit explained in a previous

decision in this case that petitioner “and his counsel presumably

made thle] strategic determination” to elicit Quijano's testimo-

ny, “believ{ing] that the potential benefit of Dr. Quijano's ulti-

mate conclusion—that Buck was not likely to pose any future

danger to society if incarcerated—outweighed any risk of expos-

ing the jury to Dr. Quijano’s less favorable opinions.” Buck, 345

F. App’x at 930. The Fifth Circuit has recognized in another case

involving Quijano's race-related testimony that “(t]he decision

by counsel to approach the |future dangerousness} question in

the relatively oblique and impersonal terms of quantitative

presentation” was part of a reasonable defehse strategy. Grana-

dos v. Quarterman, 455 F.3d 529, 585-36 (5th Cir. 2006).

* Petitioner dues not invoke the structural-error doctrine to

argue that he does not have to show prejudice. See Pet. Br. 34-

39. Thus, respondent does not undertake to address any such

argument in contesting petitioner's ineffective-assistance claim,

which may be “quantitatively ussessed in the context of other

evidence presented.” Arizona v. Fulminante, 499 U.S. 279, 307-

O08 (1991)

sentencing context, “the question is whether there is a

reasonable probability that, absent the errors, the sen-

tencer ... would have concluded that the balance of ag-

gravating and mitigating circumstances did not warrant

death.” /d. at 695. “A reasonable probability is a proba-

bility sufficient to undermine confidence in the out-

come.” /d. at 694.

“{T Jhe question 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 established [had] counsel acted differently.” Rich-

ter, 562 U.S. at 111 (citation omitted). Rather, “[t)he

likelihood of a different result must be substantial, not

just conceivable.” Jd. at 112 (emphasis added) (citation

omitted). This analysis does not, as petitioner suggests,

turn on whether a death sentence was a “foregone con-

clusion.” Pet. Br. 39. “Strickland does not require the

State to ‘rule out’ a sentence of life in prison to prevail.”

Wong v. Belmontes, 558 U.S. 15, 27 (2009) (per curiam).

Reasonable jurists would not debate that petitioner

has not shown prejudice under this standard. The ag-

gravating evidence was overwhelming. Quijano’s dis-

puted testimony played a very limited role, and Qui-

jano’s ultimate conclusion was that petitioner would

likely not be a future danger.

1. The aggravating evidence was overwhelm-

ing.

Petitioner has abandoned all but one of the grounds

of ineffectiveness raised in his most recent Rule 60(b)

motion. He now asserts only that his “trial counsel ren-

dered ineffective assistance by knowingly presenting an

expert opinion that [he] was more likely to commit fu-

ture acts of violence because he is Black.” Pet. Br. 22;

cf. R.1067. To sentence petitioner to death, the jury had

to find unanimously that he posed a future danger. See

Former Article 37.071. The overwhelming aggravating

evidence confirms that there was not a “substantial”

likelihood that petitioner was prejudiced by his coun-

sel’s performance. Richter, 562 U.S. at 112.

The penalty-phase evidence established an extensive

basis for a finding of future dangerousness. As petition-

er admits, the facts of his crimes were “undeniably ‘hor-

rific.”” Pet. Br. 39 (quoting the district court’s opinion).

The jury heard petitioner’s own stepsister describe how

petitioner shot her point-blank in the chest. J.A. 82a-

83a. The jury also heard testimony from multiple wit-

nesses about the murders of Butler and Gardner that

followed. J.A. 262a; see supra Statement Part A.

That testimony included Gardner’s daughter de-

scribing how she and her mother begged petitioner not

to shoot. J.A. 114a, 1164. The jury heard that these

pleas were unpersuasive, as petitioner murdered Gard-

ner in front of her children. J.A. 116a-117a. The penal-

ty-phase evidence also showed that petitioner had a his-

tory of domestic violence that included threatening his

girlfriend with a gun and repeatedly beating her. J.A.

127a. And the jury heard evidence of petitioner’s prior

convictions, which included a conviction for unlawfully

carrying a weapon. R.955-56 (referencing State’s exhib-

its 63 and 67 (R.6267, 6275)). On this record, it was man-

ifest that petitioner presented a future danger.

Respondent does not argue that the “brutality” of

petitioner’s crime alone necessarily “preclude[s] a find-

ing of Strickland prejudice.” Pet. Br. 40.° But the bru-

* The cases petitioner cites for the proposition that “a capital

prisoner may establish Strickland prejudice even when a crime

involves appalling facts” have little bearing on this case. See Pet.

Br. 39-41. Most of those cases involved defense counsel's failure

tality of a crime is highly relevant and probative of fu-

ture dangerousness and can thus establish a lack of

prejudice. See Belmontes, 558 U.S. at 27-28 (observing

that “[ijt is hard to imagine [that] expert testimony and

additional facts about [the defendant’s] difficult child-

hood outweigh[ed] the facts of [the victim’s] murder,”

which involved “clearly needless” suffering); Martinez

v. Quarterman, 270 F App’x 277, 299 (5th Cir. 2008)

(objectionable cross-examination “pale|{d] in comparison

to the other evidence of [defendant’s]} future dangerous-

ness, especially the brutality of this double homicide”);

Lenz v. Washington, 444 F.3d 295, 303 (4th Cir. 2006)

(“repeatedly stab[bing] a defenseless victim” was “hei-

nous and indicative of future dangerousness”); Griffith

v. Quarterman, 196 F. App’x 237, 243 (5th Cir. 2006)

(per curiam) (noting that the prosecution's case for fu-

ture dangerousness was “extremely strong,” in part be-

to develop mitigating evidence or an adequate mitigation strate-

gy. Sears v. Upton, 561 U.S. 945, 954-56 (2010) (per curiam);

Porter v. McCollum, 558 U.S. 30, 42-43 (2009) (per curiam); Wi/-

liams v. Taylor, 529 U.S. 362, 398 (2000); Wulbey v. Quarter

man, 309 F. App’x 795, 801-02 (5th Cir. 2009) (per curiam). Peti-

tioner does not contend that his mitigation evidence was incom-

plete or superficial. To the contrary, he argues that his trial

counsel “presented substantial evidence that he was not likely to

be violent in prison.” Pet. Br. 42 (emphasis added).

Although Satterwhite v. Texas, 486 U.S. 249, 259-60 (1988),

dealt with improperly admitted expert testimony on future dan-

gerousness, the expert testified for the State, which “placed sig-

nificant weight on |the expert's] powerful and unequivocal testi-

mony” that Satterwhite was a “ten plus” sociopath who was “be-

yond the reach of psychiatric rehabilitation.” Here, the State

presented no expert on this issue, whereas defense counsel pre-

sented two clinical psycholugists who testified that petitioner

had a low probability of future dangerousness. J.A. 147a, 148a,

150a; R.6068, 6094-96.

cause the “facts of the crime were horrific and brutal”);

see alsu United States v. Lujan, 603 F.3d 850, 854-55

(10th Cir. 2010) (prosecution’s evidence of a separate

double homicide allegedly committed by the defendant

was improperly excluded because it “involved cold, cal-

culated, and brutal conduct,” which “has a strong ten-

dency to show Lujan has a propensity for violence and

future dangerousness”).

And as explained in one of the cases petitioner cites,

the “brutal nature” of a crime combined with a “lack of

contrition and remorse” is sufficient for a Texas jury to

find that a capital defendant presents a continuing

threat to society. Dewberry v. State, 4 S.W.3d 735, 743

(Tex. Crim. App. 1999) (cited in Pet. Br. 41 n.7). Peti-

tioner thus concedes that his lack of remorse is rele-

vant. Pet. Br. 41 n.7. But he then attempts to disaggre-

gate the evidence, suggesting that neither the “brutali-

ty of a capital crime” nor his “lack of remorse” alone

supported a finding of future dangerousness. Pet. Br.

39-40, 40, 41 n.7. The jury here, of course, heard evi-

dence of both a horrendous crime and petitioner’s cal-

lous lack of remorse. Besides the facts of petitioner’s

brutal shooting spree just noted, the jury heard testi-

mony that petitioner stood over Gardner as she lay dy-

ing in the street and said: “It ain’t funny now. You ain’t

laughing now.” J.A. 106a. The jury also heard that peti-

tioner was laughing about the murders when he was ar-

rested and that he commented to the arresting officer:

“The bitch got what she deserved.” J.A. 135a.

Petitioner severely downplays the weight of the

State’s evidence of future dangerousness. See Pet. Br.

41-43. Without denying his lack of remorse “in the im-

mediate wake of the crime,” petitioner claims that ju-

rors knew that he “had shown remorse after having

time to reflect on his actions.” Pet. Br. 41. The prosecu-

tion, however, did not rest solely on petitioner's state-

ment to Gardner immediately before she died. Cf. Pet.

Br. 42 (suggesting that remorseful conduct is rarely

present during commission of a crime). The jury also

heard several witnesses testify about petitioner’s laugh-

ter and statements after his arrest. J.A. 7la, 89a, 118a,

133a-135a.

Petitioner also misguidedly relies on two facts:

(i) Taylor’s post-conviction statement that petitioner

had subsequently sought and received her forgiveness

and (ii) petitioner’s own act of crying during trial testi-

mony. Pet. Br. 41-42 & n.8. Taylor’s statement was

made after the penalty phase of petitioner’s trial. For

that reason, it plays no role in the Strickland analysis

and could not call into doubt the outcome of the jury’s

deliberations. See Richter, 562 U.S. at 112. And peti-

tioner’s act of crying while witnesses testified against

him could be viewed as fear of the consequences of the

killings, rather than remorse. See, e.g., United States v.

Santiago-Gonzdlez, 825 F.3d 41, 50 n.13 (1st Cir. 2016);

Brady v. Pfister, 711 F.3d 818, 827-28 (7th Cir. 2013);

Nields v. Bradshaw, 482 F.3d 442, 459-60 (6th Cir.

2007). In this case especially, petitioner's crying at trial

pales in force compared to the shocking lack of remorse

he demonstrated at the time of the crime and after his

arrest.

2. The limited role that Quijano’s report and

testimony played did not outweigh the

overwhelming aggravating evidence.

Petitioner’s arguments about Quijano’s report and

testimony are further weakened by the nature of his

claim. Petitioner does not contend, as he intimated in

district court, see R.1067, that reasonable trial counsel

would have found another expert to testify in place of

Quijano.’ Petitioner thus argues only that trial counsel

should not have presented Quijano and should have in-

stead relied only on Lawrence for expert testimony.

Pet. Br. 22, 25, 32; see R.6068, 6094-96 (Lawrence’s tes-

timony that petitioner would not likely be a future dan-

ger).

Strickland’s prejudice analysis “focuses on the ques-

tion whether counsel’s deficient performance renders

the result of the trial unreliable or the proceeding fun-

damentally unfair.” Lockhart v. Fretwell, 506 U.S. 364,

372 (1993). Here, Quijano’s testimony played a limited

role, was elicited by defense counsel, and must be as-

sessed against the overwhelming aggravating evidence.

a. Petitioner's brief focuses on Quijano’s testimony

that petitioner was more likely to pose a future danger

because of his race. But Quijano opined that, if petition-

er were sentenced to life in prison, there would be a

“low” probability that he would commit criminal acts of

violence that would be a continuing threat to society.

J.A. 150a.

Quijano further stated that the absence of assaults

by petitioner while he was incarcerated was “a good

sign that [he] is controllable within a jail or prison set-

ting” and that prisoners serving life sentences “consti-

’ An ineffective-assistance claim based on counsel's failure to

cal] a witness must “name the witness, demonstrate that the

witness was available to testify and would have done so, set out

the content of the witness's proposed testimony, and show that

the testimony would have been favorable to a particular de-

fense.” Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009).

Petitioner does not contend that he laid the necessary founda-

tion for such a claim.

tute a good subsection of the prison system,” whereas

inmates serving shorter sentences “create trouble in

the prison system, mischief, fighting.” J.A. 150a. Qui-

jano also agreed that there was a “disciplinary system

within the prison system that effectively controls in-

mates.” J.A. 15la. And after telling the jury that the

“narrower the victim pool, the less dangerous the per-

son will be in the future,” Quijano explained his view

that petitioner’s victim pool in prison was “narrow,” as

petitioner's “probability of developing a dependent rela-

tionship” in prison “would be very small.” J.A. 147a,

148a.

Quijano did explain that race was one of seven “sta-

tistical factors” he considered in determining likelihood

of future dangerousness. J.A. 145a-147a. And Quijano’s

report listed petitioner’s race as one of the seven “sta-

tistical factors” he considered. J.A. 18a-19a (capitaliza-

tion altered). But of the twenty-three lines of the Joint

Appendix that comprise his “statistical factor” explana-

tion, Quijano’s direct testimony regarding race spans

just three lines. J.A. 146a. Quijano’s report, which spans

ten Joint Appendix pages, J.A. 14a-23a, contains only

two lines regarding race, J.A. 19a. And defense counsel

concluded his questioning of Quijano about the “statisti-

cal factors” by asking whether a defendant such as peti-

tioner, who had no prior violent offenses, would be less

likely “to be dangerous or commit acts of violence in the

future.” J.A. 147a. Quijano agreed that petitioner would

be less likely to do so. J.A. 147a.

On cross-examination, the prosecutor mentioned

Quijano’s race-as-dangerousness testimony only once,

when canvassing the various factors contained in Qui-

jano’s report, J.A. 170a—which the trial court had al-

ready ruled would be admitted into evidence, R.6029-31.

The prosecutor thus did not “compound|] defense coun-

sel’s error by eliciting additional testimony from Dr.

Quijano.” Former Prosecutors’ Amicus Br. 3 (emphasis

added). Nor did the prosecutor’s single question in

passing “exploit{]” Quijano’s statement. Pet. Br. 7.

“(TJhis colloquy did not go beyond what defense counsel!

had already elicited on direct examination.” Buck, 132

S Ct. at 34 (Alito, J., respecting the denial of certiora-

ri).

Amici suggest that the prosecutor either knowingly

relied on the falsity that race was probative of future

dangerousness or demonstrated personal racial bias by

even mentioning this aspect of Quijano’s report. For-

mer Prosecutors’ Amicus Br. 10. That suggestion ig-

nores the reality that the prosecutor was merely re-

viewing the entirety of Quijano’s testimony without ex-

pressing either agreement or disagreement with Qui-

jano’s views. That is sometimes how prosecutors pro-

ceed when walking through an expert report to decide

whether any particular item deserves a probing ques-

tion on cross-examination. And after this portion of his

testimony, Quijano stuck to his opinion that petitioner's

probability of future dangerousness was low. See J.A.

176a.

Contrary to petitioner's suggestions, Pet. Br. 8, 18-

19, the prosecution did not mention race in its closing

arguments. J.A. 184a-186a, 196a-206a. The prosecution

noted only that Quijano had testified that the probabil-

ity of future dangerousness, while low, was still present.

J.A. 198a-199a. Quijano’s cross-examination had closed

on this point, with Quijano acceding to the prosecutor's

point that petitioner had a greater probability of being

a danger in the future given his laughing and lack of

remorse after his extremely violent murders. J.A. 175a-

176a.

b. Given the nature and context of Quijano’s testi-

mony, this case is nothing like others involving repeated

or direct pleas by the prosecution that the jury consider

race or ethnicity as evidence of criminality. Cf Pet. Br.

34-38 (citing United States v. Cruz, 981 F.2d 659, 664

(2d Cir. 1992) (prosecutor “repeatedly” referred to de-

fendant’s ethnicity “as evidence of criminal behavior”);

Reed v. State, 99 So. 2d 455, 456 (Miss. 1958) (prosecu-

tor told the jury that “if you don’t stop them now, they

will next be robbing white people”); Allison v. State,

248 S.W.2d 147, 148 (Tex. Crim. App. i952) (prosecutor

“sought to condemn as a class all testimony coming

from members of the colored race” to discredit a de-

fense witness); Dinklage v. State, 185 S.W.2d 573, 575

(Tex. Crim. App. 1945) (prosecutor’s closing argument

referenced defendant’s German heritage)).

This case is also distinguishable from ones in which

the prosecution made inflammatory race-based state-

ments. See Pet. Br. 37-38 (citing Johnson v. Rose, 546

F.2d 678, 679 (6th Cir. 1976) (per curiam) (appeal to ra-

cial prejudice by a United States Attorney); United

States v. Haynes, 466 F.2d 1260, 1266-67 (5th Cir. 1972)

(prosecutor’s use of phrase “(bJurn, baby, burn” as a

“racial shibboleth”); Bryant v. State, 25 S.W.3d 924, 925

(Tex. App. 2000) (prosecutor’s question whether de-

fendant had gotten a “white girl” pregnant); Cofield v.

State, 82 S.E. 355, 356 (Ga. Ct. App. 1914) (prosecutor’s

statement that this “was the most horrible case he ever

saw in court, a negro going to a white man’s yard

and threatening to kill him”); Louisiana v. Bessa, 38

So. 985, 987 (La. 1905) (prosecutor appealed to race for

no apparent reason other than to “draw the color line”)).

None of these cases involves testimony or reports

from a defense expert, let alone from a defense expert

who concluded that the defendant presented a low

probability of future dangerousness. Petitioner is thus

wrong that Quijano’s testimony is insurmountably pre)j-

udicial under settled law. See Pet. Br. 36-38. And peti-

tioner concedes that defense counsel elicited Quijano’s

race-related opinion. See Pet. Br. 36.

c. As additional mitigating evidence, petitioner

stresses the “substantial evidence that he was not likely

to be violent in prison,” the prosecutor’s purported fail-

ure to “dispute any of this evidence,” and the fact that

jury deliberations took two days. Pet. Br. 42-43. These

remaining points likewise do not suggest a substantial

likelihood that the sentencing outcome would have been

different.

Petitioner overemphasizes the favorability of his ex-

pert Lawrence's testimony. Petitioner contends that the

jury heard “undisputed testimony from Lawrence that

[petitioner]’s prison records showed that he ‘did not

present any problems in the prison setting” and that

petitioner “had been held in minimum security without

incident.” Pet. Br. 42 (quoting R.6088). In fact, Law-

rence merely observed that petitioner’s county and

state jail records indicated that petitioner had been

held only in minimum security. See R.6084, 6087-88.

When defense counsel asked what this fact indicated,

Lawrence replied that it told him that petitioner “did

not present any problems in the prison setting.” R.6088.

It is at best speculative to extrapolate, from this narrow

testimony about petitioner’s confinement history, that

the jury heard “substantial evidence” that petitioner

“was not likely to be violent in prison” while serving a

life sentence for murder. Pet. Br. 42.

Petitioner asserts that his violent acts occurred

within romantic relationships, arguing that he would

not be a future danger because he would not be involved

in romantic relationships in prison. Pet. Br. 6-7, 25, 41.

But petitioner shot his stepsister at point blank range,

and his stepsister was not part of any of petitioner's

romantic relationships. Petitioner’s assertion that he

would not be violent in prison also overlooks testimony

confirming that he would likely have illicit access to

drugs and alcohol, as well as access w improvised

weapons, in prison. J.A. 17la-174a. Even though peti-

tioner committed the murders at issue with a firearm,

the availability of makeshift weapons in prison is signif-

icant because the jury heard petitioner’s ex-girlfriend

testify that petitioner had beaten her with a belt and a

coat hanger and had even used a cast on his arm to beat

her head. J.A. 127a.

Finally, the fact that the jury asked to see “the psy-

chology reports” and “police records” during its delib-

erations, J.A. 209a, does not suggest that the jury was

focused on Quijano’s race-related testimony or that it

was likely to have reached a different conclus: Ja absent

Quijano’s report and testimony. Cf Pet. Br. 43; Law-

yers’ Comm. Amicus Br. 30. These additional! facts do

not come close to establishing a “substantial” likelihood

of a different outcome, as required by Richter, 562 U.S.

at 112. Petitioner therefore did not make a substantial

showing of prejudice.

B. Petitioner has not made a substantial show-

ing that the district court abused its discre-

tion in declining to find “extraordinary cir-

cumstances” to reopen a final judgment.

Even assuming arguendo that reasonable jurists

could debate whether petitioner established prejudice

under Strickland, the court of appeals correctly denied

petitioner’s COA application for a separate, independ-

ent reason: reasonable jurists could not debate whether

the district court abused its discretion in its procedural

ruling denying petitioner’s second request to reopen the

final judgment under Rule 60(b)(6). Slack, 529 U.S. at

484.

“Rule 60(b) allows a party to seek relief from a final

judgment, and request reopening of his case,” but only

“under a limited set of circumstances.” Gonzalez, 545

U.S. at 528. Petitioner cannot obtain relief under Rule

60(b)(6) unless “extraordinary circumstances” are pre-

sent in his case. /d. at 535 (citation and quotation marks

omitted). And this Court specifically has cautioned that

“[s]Juch circumstances will rarely occur in the habeas

context.” /d. When evaluating extraordinary circum-

stances, a “very strict interpretation of Rule 60(b) is es-

sential if the finality of judgments is to be preserved.”

Id. (quoting Liljeberg v. Health Servs. Acquisition

Corp., 486 U.S. 847, 873 (1988) (Rehnquist, C.J., dis-

senting)). Review of Rule 60(b) determinations is thus

highly deferential. See id. (citing Browder v. Dir., Dep't

of Corr., 434 U.S. 257, 263 n.7 (1978)).

Indeed, as petitioner concedes, a district court’s res-

olution of this question “is reviewed under the abuse-of-

discretion standard.” Pet. Br. 54. And although peti-

tioner notes that “a district court necessarily abuses its

discretion when its judgment is based on an error of

law,” Pet. Br. 54, he elsewhere concedes that the Rule

60(b) determination in this case required a “fact-

intensive inquiry,” Pet. Br. 47. Consequently, the “def-

erence that is the hallmark of abuse-of-discretion re-

view” applies with full force in this context. Gen. Elec.

Co. v. Joiner, 522 U.S. 136, 143 (1997).

To obtain a COA, petitioner had to make a substan-

tial showing not merely that a reasonable appellate

judge would find extraordinary circumstances in the

first instance, but that the basis for the district court's

ruling was so utterly lacking that the district court

abused its discretion in failing to reopen the final judg-

ment denying habeas relief. See Slack, 529 U.S. at 484;

Leedo Cabinetry v. James Sales & Distrib. Inc., 157

F.3d 410, 412 (5th Cir. 1998) (“We will not disturb a dis-

trict court’s decision to deny relief under Rule 60(b) ‘un-

less the denial is so unwarranted as to constitute an

abuse of discretion.”” (quoting Bludworth Bond Ship-

yard, Inc. v. M/V Caribbean Wind, 841 F.2d 646, 649

(5th Cir. 1988)); see also 11 Charles Alan Wright,

Arthur R. Miller & Mary Kay Kane, Federal Practice

and Procedure § 2872, pp. 594-95 n.6 (3d ed. 2012) (col-

lecting cases applying a similarly deferential standard

of review to Rule 60(b) rulings).

A survey of cases highlights the truly extraordinary

nature of the circumstances that qualify. Cae court of

appeals concluded, for example, that circumstances

were sufficiently extraordinary to justify relief from a

habeas judgment where a prison guard had affirmative-

ly thwarted an inmate’s timely appeal. Tanner v.

Yukins, 776 F.3d 434, 436-37, 442-44 (6th Cir. 2015).

Rule 60(b) relief was also found appropriate where a

petitioner with a learning disability relied on another

inmate to prepare his appeal, that inmate failed to file a

timely appeal, and the time for an extension had passed.

Davenport v. Tribley, No. 2:07-cv-14248, 2011 WL

669240, at *3 (E.D. Mich. Feb. 17, 2011). And another

district court concluded that circumstances were also

sufficiently extraordinary to justify reopening a judg-

ment where petitioner’s habeas counsel “effectively

abandoned him.” Andrade v. Cate, No. 2:09-cv-02270,

2013 WL 5375836, at *2 (E.D. Cal. Sept. 24, 2013).

Petitioner did not meet his heavy burden to show

extraordinary circumstances. The change in decisional

law established in Martinez and Trevino is insufficient.

Moreover, in this second Rule 60(b)(6) motion, petition-

er seeks to relitigate an ineffective-assistance claim that

he did not even raise in his first Rule 60(b)(6) motion.

At base, the particular facts of petitioner’s case do not

rise to the level of extraordinary circumstances justify-

ing relief from the denial of his federal habeas peti-

tion—much less so clearly as to make a contrary judg-

ment an abuse of the district court’s broad discretion.

1. The change in decisional law effected by

Martinez and Trevino is insufficient to es-

tablish extraordinary circumstances.

As petitioner concedes, the change in law effected

by Martinez and Trevino alone does not qualify as an

extraordinary circumstance under Rule 60(b). See Pet.

Br. 56 (“To be sure, not every case involving a viable

Martinez claim may justify reopening the judgment

under Rule 60(b).”). That follows from Gonzalez, in

which the Court expressly held that a change in deci-

sional law (there, a new interpretation of the statute of

limitations in the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”)) did not constitute ex-

traordinary circumstances under Rule 60(b). See 545

U.S. at 536 (stating that “[ijt is hardly extraordinary

that subsequently, after petitioner’s case was no longer

pending, this Court arrived at a different interpreta-

tion” of AEDPA). Thus, Gonzalez recognized that

whether extraordinary circumstances exist turns on the

specific facts “in petitioner’s case.” 545 U.S. at 537.

Petitioner’s concession is in keeping with the deci-

sions of the courts below. As the district court noted,

the Fifth Circuit has held that a change in decisional

law alone does not amount to extraordinary circum-

stances. J.A. 260a (citing Adams v. Thaler, 679 F.3d

312, 319-20 (5th Cir. 2012) (recognizing that the deci-

sional law change in Martinez alone is insufficient to

establish extraordinary circumstances)); see Diaz v.

Stephens, 731 F.3d 370, 375-77 (5th Cir. 2013) (same

with regard to Trevino).

But petitioner’s suggestion that the Fifth Circuit

has categorically refused to consider the Martinez

change in law as a “relevant factor,” Pet. Br. 58, is in-

correct. In this case, the Fifth Circuit did not reject pe-

titioner’s claim of extraordinary circumstances merely

on the ground that Martinez and Trevino were insuffi-

cient to overcome the procedural default. It examined

all of the particular facts raised by petitioner. See J.A.

282a-287a. Likewise, as the Third Circuit has explained,

“more than the concededly important change of law

wrought by Martinez is required—indeed, much more

is required.” Cor v. Horn, 757 F.3d 113, 115 (3d Cir.

2014) (quotation marks omitted); see alsu Ramirez v.

United States, 799 F.3d 845, 850-51 (7th Cir. 2015)

(agreeing with Cor and the Third Circuit’s analysis of a

Rule 60(b) motion “built upon a postjudgment change in

the law,” which “takes into account all the particulars of

a movant’s case” (quoting 757 F.3d at 122)).

There is, however, another reason petitioner cannot

rely on Martinez and Trevino to establish extraordi-

nary circumstances: Martinez and Trevino do not apply

retroactively to cases on collateral review." See 28

U.S.C. § 2244(b)\(2)(A); Teague v. Lane, 489 U.S. 288,

299-316 (1989) (plurality opinion). As the Fifth Circuit

has correctly explained, this Court has not made either

Martinez or Trevino retroactive to cases on collateral

review. /n re Paredes, 587 F. App’x 805, 813 (5th Cir.

2014) (per curiam). And in the present case, the Court

has not granted certiorari on the question whether

Martinez or Trevino apply retroactively.

To the extent a change in decisional law creates a

new rule, petitioner must show that this Court has

made the rule retroactively applicable to cases on col-

lateral review. See Teague, 489 U.S. at 316 (plurality

opinion). Under Teague, “a new rule can be retroactive

to cases on collateral review if, and only if, it falls within

one of two narrow exceptions to the general rule of non-

retroactivity.” Tyler v. Cain, 533 U.S. 656, 665 (2001).

The first exception is for new substantive rules of crim-

inal law, which “narrow the scope of a criminal statute

by interpreting its terms,” or “place particular conduct

or persons covered by the statute beyond the State’s

power to punish.” Schriro v. Summerlin, 542 U.S. 348,

351-52 (2004) (citations omitted); see also Teague, 489

U.S. at 311 (plurality opinion). The second exception is

* In 2004, when petitioner first raised an ineffective-assistance

claim in federal court, procedural default could not be overcome

by establishing state habeas counsel's ineffectiveness. See Cole-

man v. Thompson, 501 U.S. 722, 752 (1991). Martinez and Tre-

ving later held that ineffective assistance by state habeas coun-

sel could overcome procedural default of a claim of ineffective

assistance of trial counsel.

for “watershed rules of criminal procedure implicating

the fundamental fairness and accuracy of the criminal

proceeding.” Graham v. Collins, 506 U.S. 461, 478

(1993) (citation and quotation marks omitted).

The rule announced in 7’revino does not fall within

either of the two Teague exceptions. Martinez and T're-

vino established a new procedural rule, so it cannot be a

new substantive rule of criminal law within Teague’s

first exception. See 489 U.S. at 311 (plurality opinion).

Nor does this procedural rule qualify as a “bedrock pro-

cedural element,” id. at 315; an “absolute prerequisite

to fundamental fairness,” id. at 314; or a “rule[) requir-

ing ‘observance of those procedures that. are implicit

in the concept of ordered liberty,”” Graham, 506 U.S. at

478 (quoting Teague, 489 U.S. at 311 (plurality opin-

ion)). As the Court noted in Graham, it is “unlikely that

many such components of basic due process have yet to

emerge.” /d. (citation and quotation marks omitted).

The rule announced in Martinez and Trevinw is not

a “watershed” rule like that announced in Gideon v.

Wainwright, 372 U.S. 335 (1963). “There is no constitu-

tional right to an attorney in state post-conviction pro-

ceedings,” so there is no attendant watershed, bedrock

right to effective assistance of counsel in those proceed-

ings. Coleman, 501 U.S. at 752. Coleman “left open” the

question “whether a prisoner has a right to effective

counse] in collateral proceedings which provide the first

occasion to raise a claim of ineffective assistance at tri-

al.” Martinez, 132 S. Ct. at 1315. But instead of resolw-

ing that question, Martinez recognized a “marrow ex-

ception” that state habeas counsel's imeffective assis-

tance “may esitablish cause for a prisomer’s procedural

defauit of w claim ef ineffective assistance at trial,” id.,

and Trevino made that rule applicable in capital cases

in Texas. 133 S. Ct. at 1917.

That type of “incremental change” does not amount

to an “absolute prerequisite to fundamental fairness.”

Beard v. Banks, 542 U.S. 406, 419 (2004) (discussing

Sawyer v. Smith, 497 U.S. 227, 244 (1990) (quoting

Teague, 489 U.S. at 314 (plurality opinion)) (quotation

marks omitted))). Because petitioner has not shown

that he could actually invoke this new, retroactive rule

if he were able to reopen the judgment denying his fed-

eral habeas petition, the Martinez and Trevino change

in law is “all the less extraordinary in petitioner’s case.”

Gonzalez, 545 U.S. at 537.

2. The particular facts of petitioner's case do

not establish extraordinary circumstances

justifying relief from the judgment.

Petitioner cites several authorities that confirm

what Gonzalez recognized: whether extraordinary cir-

cumstances exist, for purposes of Rule 60(b), turns on

the specific facts “in petitioner’s case.” Gonzalez, 45

U.S. at 537; see Pet. Br. 46-47. Ultimately, petitioner

argues that the “sui generis facts of this case (at, and

after, trial)—combined with |petitioner]’s diligence and

the change in law worked by Trevino and Martinez—

establish the ‘extraordinary circumstances’ required by

Rule 60(b).” Pet. Br. 23. Petitioner bases his argument

on the eleven supposed “facts” recited in his Rule 60(b)

motion. See J.A. 283a-285a. Petitioner faults the district

court for considering these circumstances “individually”

rather than “holistic[ally],” Pet. Br. 54, but there is no

indication that either court below failed to analyze and

resolve all of the “facts” together.

As the court of appeals noted, five of those “facts”

were “just variations on the merits” of petitioner’s inef-

fective-assistance claim, J.A. 285a, and two “merely

point[ed] out that [petitioner]’s |ineffective-assistance |

claim was procedurally defaulted and did not get a mer-

its determination.” J.A. 2854-286a. Petitioner’s remain-

ing “facts” focused on the change in law effected by Mar-

tinez and T'revino and the alleged “broken-promise” in

light of the State’s confession of error in Saldanv. J.A.

286a-287a. As the court of appeals concluded, it is be-

yond reasonable debate that the district court acted

within its discretion in declining to find those “facts”

extraordinary for purposes of Rule 60(b).

a. As already noted, the overwhelming aggravating

evidence in this case foreclosed petitioner’s ability to

establish the prejudice element of his ineffective-

assistance claim. See supru Part I.A. A change in deci-

sional law that allows a habeas petitioner to litigate an

unavailing ineffective-assistance claim is not an ex-

traordinary circumstance within the meaning of Rule

60(b)(6). See Ramirez, 799 F.3d at 851 (“|Blearing in

mind the need for the party invoking |Rule 60(b)] to

demonstrate why extraordinary circumstances justify

relief,” courts should consider “whether the underlying

claim is one on which relief could be granted.”); Coz,

757 F.3d at 122.

The fact that petitioner’s first Rule 60(b) motion did

not even contend that his trial counsel’s performance

was deficient makes Martinez and Trevino even less

relevant. Petitioner argues that state habeas counsel’s

failure to assert, in the initial state habeas application,

that trial counsel was ineffective is “cause” to overcome

procedural default because “trial counsel's error was so

egregious that no reasonable post-conviction attorney

could have overlooked it.” Pet. Br. 46 (citing Detrich v.

Ryan, 740 F.3d 1237, 1246 (9th Cir. 2013) (en banc)).

But petitioner had new post-conviction counsel when

he filed his initial Rule 60(b) motion in federal court,

where he argued that a “promise” by the Attorney Gen-

eral allowed reopening the final judgment. R.285-89.

Even in that motion, however, petitioner did not claim

that his trial counsel’s effectiveness was a basis for ha-

beas relief. See R.273-90. He raised constitutional

claims regarding the prosecutor's questioning of Qui-

jano, but he did not argue that his own trial counsel was

deficient in eliciting Quijano’s testimony or putting his

report into evidence. See K.485 (district-court order re-

flecting that petitioner’s motion raised the same due-

process and equal-protection claims that the Fifth Cir-

cuit had confirmed were procedurally defaulted, see

Buck, 345 F App’x at 926, 928). Consequently, the

change in law effected by Martinez and Trevino is “all

the less extraordinary in petitioner’s case[] because of

his lack of diligence in pursuing” his ineffective-

assistance claim. Gonzalez, 545 U.S. at 537; cf Pet. Br.

Regardless, under petitioner’s theory, state habeas

counsel’s ineffectiveness, if any, would turn on the ex-

istence of trial counsel's ineffectiveness. Cf. Martinez,

132 S. Ct. at 1318-19 (petitioner must establish that

state habeas counsel “was ineffective under the stand-

ards of [Strickland}” by showing, among other things,

that the underlying claim “should have been raised” by

state-habeas counsel). Because petitioner cannot

demonstrate the prejudice necessary to support his in-

effective-assistance-of-trial-counsel claim, see supra

Part 1.A, state habeas counsel neither performed defi-

ciently nor prejudiced petitioner by failing to raise that

claim, see Strickland, 466 U.S. at 694. Petitioner is thus

incorrect in stating that state habeas counsel's ineffec-

tiveness is undisputed or would be properly resolved

through an evidentiary hearing. Pet. Br. 46 n.10.

b. Petitioner repeatedly asserts that his case is ex-

traordinary because the State purportedly “reneged on

its promise” that “it would not oppose [a] new sentenc-

ing hearing.” Pet. Br. 3; see Pet. Br. 12, 14, 19, 20, 22-23,

46, 48, 49, 51, 52-53, 55, 58. But as the court of appeals

noted, “[iJt has never been established that the [Attor-

ney General]’s office promised not to raise procedural

defenses in [petitioner]’s case.” J.A. 277a n.1. In partic-

ular, the court “found no statement by the [Attorney

General} in the record in which he confessed error re-

lating to [petitioner]’s case and promised not to raise

procedural defenses.” J.A. 277a n.1.

The court of appeals further explained that, even as-

suming arguendo that “the [Attorney General] initially

indicated to [petitioner] that he would be resentenced,”

petitioner has never shown “why the alleged reneging

would justify relief from judgment.” J.A. 286a-287a. Pe-

titioner has no valid response to that point.

Petitioner concedes that any supposed “promise” to

waive procedural defenses in federal habeas litigation

appeared only in press statements. See Pet. Br. 11-12.

It is beyond dispute that those statements were made

outside of any judicial proceeding, and the State never

waived procedural default in a legal proceeding in this

case. See Buck, 132 S. Ct. at 34 (Alito, J., respecting the

denial of certiorari) (noting that “the present case is dif-

ferent from the others in which, as a result of similar

testimony by Dr. Quijano, the State did not assert pro-

cedural default”); cf, e.g., New Hampshire v. Maine,

532 U.S. 742, 749 (2001) (noting that when “a party as-

sumes a certain position in a legal proceeding, and suc-

ceeds in maintaining that position, he may not thereaf-

ter, simply because his interests have changed, assume

a contrary position” (emphasis added) (citation and quo-

tation marks omitted)).

Nor does the record in this case “make[} it clear that

Texas promised to treat |petitioner]’s case similarly to

Saldano,” Pet. Br. 11-12 n.2, in all respects. The State

continues to maintain, as expressed in its response to

Saldano’s petition for a writ of certiorari, that

“{djiscrimination on the basis of race, odious in all as-

pects, is especially pernicious in the administration of

justice” and that “the use of race in Saldano’s sentenc-

ing seriously undermined the fairness, integrity, or

public reputation of the judicial process.” J.A. 304a,

305a (quoting Rose v. Mitchell, 443 U.S. 545, 555

(1979)).

But as the district court explained in denying peti-

tioner’s first Rule 60(b) motion, petitioner “has identi-

fied no legal basis for a claim that the Attorney Gen-

eral’s statement created legally enforceable rights or

that it precluded the Attorney General from later iden-

tifying distinguishing facts that made [the General's}

initial assessment inapplicable to this case.” R.487. That

matters because even if circumstances are “odd and fac-

tually unusual,” J.A. 286a, they cannot support Rule

60(b)(6) relief unless they are “extraordinary circum-

stances ‘justifying relief from the judgment.” J.A. 286a

(emphasis added) (paraphrasing Fed. R. Civ. P. 60(b)

(title)); see Gonzalez, 545 U.S. at 535. Because petition-

er cannot show that he “relied on the alleged promised

to his detriment,” petitioner cannot show that the “al-

leged reneging would justify relief from the judgment.”

J.A. 287a. Petitioner is thus wrong that the court of ap-

peals’ conclusion was mere “ipse di:rit.” Pet. Br. 58. It

was a Straightforward application of Gonzalez, and an

evidentiary hearing “about the details of |that) prom-

ise,” Pet. Br. 12 n.2, would be both improper and unnec-

essary.

Petitioner’s case is significantly different from the

five other cases identified as similar to Saldano by for-

mer Attorney General Cornyn in a press release follow-

ing Saldano. See J.A. 215a-217a. “Only in Buck's case

did defense counsel elicit the race-related testimony on

direct examination.” Buck, 132 S. Ct. at 34-35 (Alito, J.,

respecting the denial of certiorari). Regardless of what

Attorney General Cornyn said in a press statement in

2000, see Pet. Br. 11 (citing J.A. 213a, 215a-217a), peti-

tioner’s case was pending in state court at the time, and

was therefore being handled by the Harris County Dis-

trict Attorney—rather than the Texas Attorney Gen-

eral, who represents the state-official respondents in

federal habeas proceedings (and the State in state ha-

beas proceedings if requested by a county district at-

torney). See Tex. Code Crim. Proc. art. 2.01; Tex. Gov't

Code § 402.028; Pet. Br. 12.

The Attorney General's Office took over petitioner's

case when it reached federal court and correctly argued

that it was notably different from Saldanvo, Gonzales,

Broxton, Garcia, Alba, and Blue.’ In Saldano, Gonza-

les, Broxton, and Garcia, “the prosecution called Dr.

Quijano and elicited the objectionable testimony on di-

* See Saldano, 530 U.S. 1212; Gonzales v. Cockrell, No. 7:99-ev-

00072 (W.D. Tex. Dec. 19, 2002); Broxton v. Johnson, No. 4:00-

ev-01034 (S.D. Tex. Mar. 28, 2001); Garcia v. Johnson, No. 1:99-

ev-00134 (E.D. Tex. Sept. 7, 2000); Alba v. Johnson, 232 F.3d 208

(5th Cir. 2000) (table) (per curiam); Blue v. Joknson, No. 4:99-

ev-00350 (S.D. Tex. Sept. 29, 2000).

rect examination.” Buck, 132 S. Ct. at 34 (Alito, J., re-

specting the denial of certiorari). In Alba and Blue,

“while the defense called Dr. Quijano, the objectionable

testimony was not elicited until the prosecution ques-

tioned Dr. Quijano on cross-examination.” /d. Thus, as

three Justices of this Court have recognized, among

these cases, petitioner’s “is the only case in which it can

ve szid that the responsibility for eliciting the offensive

testimony lay squarely with the defense.” /d. at 35."°

' In responding to petitioner’s federal habeas petition, the

State initially did erroneously distinguish petitioner's case from

Saldano and the other cases in which the State confessed error

on the grounds that “Dr. Quijano testified for the State” in those

cases. R.155 (emphasis omitted). In actuality (and as just noted),

“the defendants in both Blue and Alba called Quijano to the

stand.” Buck, 132 S. Ct. at 37 (Sutomayor, J., dissenting from

the denial of certiorari). Petitioner focused on this misstatement

in his first Rule 60(b) motion. See R.273-89 (petitioner's Septem-

ber 7, 2011 Rule 60(b) motion). In the State's response to that

motion, which was filed two days later in the course of accelerat-

ed briefing shortly before petitioner's scheduled execution, see

R.429-32, the State again misidentified Alba as a case in which

the prosecution had called Quijano, and it did not address Blue,

R.464; see Buck, 132 S. Ct. at 37 (Sotomayor, J. dissenting from

the denial of certiorari). Petitioner raised this second mistake in

his motion for Rule 59(e) relief. See R.493-512.

On appeal, the State corrected its errors, noting that “ualt-

hough the defendants in [Alba] and [Blue] each proffered Qui-

jano as a witness, they did not, like [petitioner], elicit race-

related testimony on direct examination; instead, the prosecu-

tion first did so on cross-examination.” Buck, 132 S. Ct. at 37

(Sotomayor, J. dissenting from the denial of certiorari); ¢.g.,

Buck v. Thaler, No. 11-70025, Doc. 00511602284 at 40 (5th Cir.

Sept. 14, 2011) (State’s opposition to petitioner's COA applica-

tion acknowledging the State’s previous error but explaining

that “[rjegardless of who sponsored Quijano’s testimony, the

real concern is who proffered the race-based opinion,” and that

_* *

In sum, petitioner’s request for a COA was not

“supported by any evidence demonstrating” an entitle-

ment to relief. Miller-El, 537 U.S. at 340. For that rea-

son, no reasonable jurist could conclude that the district

court abused its discretion in denying petitioner’s sec-

ond Rule 60(b)(6) motion.

II. Petitioner Received Substantial Process.

A. Petitioner argues that the court of appeals

“failled] to ‘give full consideration to the substantial ev-

idence’ of extraordinariness presented” by petitioner.

Pet. Br. 57 (quoting Miller-El, 5387 U.S. at 341). That is

not a fair characterization of the process petitioner re-

ceived. Even though the court of appeals ultimately de-

nied petitioner’s request for a COA, it did so only after

years of litigation, involving significant process, regard-

ing Quijano’s race-related testimony at the penalty

phase of petitioner’s trial.

Respondent does not dispute that this case presents

“odd and factually unusual” circumstances. J.A. 286a.

The question for the court of appeals was whether, un-

der existing law, reasonable jurists could debate wheth-

er the district court abused its discretion in determining

that no extraordinary circumstances existed to reopen

the judgment under Rule 60(b). Existing law included

this Court’s admonition in Gonzalez that Rule 60(b) ex-

traordinary circumstances “will rarely occur in the ha-

beas context,” 545 U.S. at 535, and a limited pool of

precedent finding extraordinary circumstances in that

context. See J.A. 282a, 285a (relying on this statement

“the court below was hardly unaware of Blue and Alba as both

were cited in Buck’s | Rule 60(b)| motion”).

from Gunzalez and noting that “[t)here is little guidance

as to what constitutes ‘extraordinary circumstances” in

habeas cases).

In considering how the case should be resolved in

light of existing precedent, the court of appeals did not

“ignore” the race-related testimony underpinning peti-

tioner’s arguments. Pet. Br. 57. The court quoted Qui-

jano’s race-related testimony, acknowledged that his

testimony tracked his report, quoted the prosecutor’s

cross-examination of Quijano regarding his opinion

about race, and noted what the prosecutor said regard-

ing Quijano in her closing statement. J.A. 276a. The

court of appeals also referenced its previous explana-

tion of how it would decide the merits of petitioner’s

due-process and equal-protection claims, which were

based on the prosecution’s reference to Quijano’s race-

related testimony. J.A. 278a (citing Buck, 345 F. App’x

at 930). And it cited the opinions from Justices of this

Court regarding the denial of petitioner’s earlier certio-

rari petition, which likewise analyzed the race-related

evidence presented at the penalty phase of petitioner’s

trial. J.A. 278a-279a.

The court of appeals went on to quote the “eleven

facts,” most of which focused on Quijano’s race-related

evidence, “that [petitioner] says make the case extraor-

dinary.” J.A. 283a-285a. The court also granted peti-

tioner leave to file a reply brief to supplement the ar-

gument that he had already presented in his 70-page

opening brief. See J.A. 3a. And in deciding whether a

COA should issue, the court of appeals did not deny re-

lief in a summary order without analyzing petitioner's

ineffective-assistance claim. It addressed each of the

points that petitioner raised, explaining why they did

not warrant the extraordinary remedy of Rule 60(b) re-

lief and why reasonable jurists could not debate that

point under existing law. J.A. 285a-287a.

In his dissent from the denial of rehearing en banc,

Judge Dennis faulted the panel for “adjudicati|/ng|

the actual merits” of petitioner’s claim. J.A. 290a. But

even the COA-stage review that Judge Dennis indicated

was appropriate would address the merits to some de-

gree, and a court of appeals should not be faulted for

erring on the side of more process, rather than less. Ac-

cordingly, even if this Court were to conclude that a

COA should have been granted, the court of appeals’

analysis and the extensive briefing it permitted belies

the assertion that the substance of petitioner’s claim

was ignored—particularly in light of the lengthy proce-

dural history of the case. See J.A. 275a; see also Crimi-

nal Defense Lawyers’ Amicus Br. 3-4 (recognizing that

the court of appeals “conduct{ed) a detailed analysis of

the merits” of petitioner’s claim).

B. Citing charts reflecting dispositions of COA ap-

plications in the Fourth, Fifth, and Eleventh Circuits,

petitioner argues that the Fifth Circuit’s approach is,

more generally, inconsistent with this Court’s prece-

dents. Pet. Br. 57 (citing Pet. Br. App.). But the Court

has advised that it is not appropriate to grant a COA in

every capital habeas case, explaining that “issuance of a

COA must not be pro forma or a matter of course.” Mi/-

ler-El, 587 U.S. at 337. Rather, the COA must serve a

“gatekeeping function.” Gonzalez v. Thaler, 132 S. Ct.

641, 650 (2012). In light of that guidance, it is quite

questionable whether a zero-percent capital COA denial

rate in the Fourth Circuit, see Pet. Br. 57, serves a

gatekeeping function—let alone whether such a practice

is more consistent with this Court’s precedents than the

Fifth Circuit’s practice of denying some capital COA

applications after providing extensive process."

In fact, the Fifth Circuit occasionally hears oral ar-

gument when considering whether to grant a COA in a

capital case. For example, in Allen v. Stephens, 805

F.3d 617 (5th Cir. 2015) (No. 14-70017) (cited in Pet. Br.

App. 5a), the parties filed over 100 pages of opening

briefing, the petitioner was granted leave to file a reply

brief, and a Fifth Circuit panel heard oral argument be-

fore denying the request for a COA.” The court fol-

lowed a similar pattern in Trottie v. Stephens, 720 F.3d

231 (5th Cir. 2013) (No. 11-70028) (cited in Pet. Br. App.

17a)."* And in Sells v. Stephens, 536 F. App’x 483 (5th

Cir. 2013) (No. 12-70028) (cited in Pet. Br. App. 15a),

the court received nearly 200 pages of initial briefing,

' The Fifth Circuit also has, in a number of cases, denied ha-

beas relief after granting a COA. £.g., Gates v. Davis, No. 15-

70024, 2016 WL 2909193 (5th Cir. May 18, 2016) (per curiam)

(COA grant); Gates v. Davis, No. 15-70024 (5th Cir. Aug. 24,

2016) (affirming denial of relief); Villanueva v. Stephens, 555 F

App’x 300 (5th Cir. 2014) (COA grant) (per curiam); Villanueva

v. Stephens, 619 F App’x 269 (5th Cir. 2015) (per curiam) (af-

firming denial of relief); Wood v. Stephens, 540 F App’x 422 (5th

Cir. 2013) (per curiam) (COA grant); Wood v. Stephens, 619 F

App’x 304 (5th Cir. 2015) (per curiam) (affirming denial) of re-

lief); Maldonado v. Thaler, 389 F. App’x 399 (5th Cir. 2010) (per

curiam) (COA grant); Maldonado v. Thaler, 625 F.3d 229 (5th

Cir. 2010) (affirming denial of relief).

'* See Doc. 00512725761 (5th Cir. Aug. 7, 2014) (COA applica-

tion); Doc. 00512823602 (5th Cir. Nov. 3, 2014) (response); Doc.

00512890244 (5th Cir. Jan. 6, 2015) (order granting leave to file

reply); Doc. 00512890250 (5th Cir. Jan. 6, 2015) (reply).

See Doc. 00511881267 (5th Cir. May 31, 2012) (COA applica-

tion); Doc. 00511950674 (5th Cir. Aug. 8, 2012) (response); Doc.

00511957466 (5th Cir. Aug. 15, 2012) (order granting leave to file

reply); Doe. 00511976208 (5th Cir. Sept. 5, 2012) (reply).

permitted a reply brief, considered the parties’ supple-

mental authorities, invited supplemental letter briefs

from both sides, and heard oral argument before deny-

ing the request for a COA."* The Fifth Circuit's practice

thus provides substantial process to capital COA appli-

cants.

'* See Doc. 00512104116 (5th Cir. Dec. 26, 2012) (COA applica-

tion); Doc. 00512176140 (5th Cir. Mar. 15, 2013) (response); Doc.

00512204732 (5th Cir. Apr. 10, 2013) (order granting leave to file

reply); Doc. 00512204788 (5th Cir. Apr. 10, 2013) (reply); Doe.

00512208974 (5th Cir. May 31, 2013) (petitioner's Federal Rule

of Appellate Procedure 28(j) letter); Doc. 00512259688 (5th Cir.

June 3, 2013) (respondent’s Federal Rule of Appellate Procedure

28(j) letter); Doc. 00512270847 (5th Cir. June 12, 2013) (order

granting leave to file supplemental letter brief); Doc. 0512284137

(5th Cir. June 22, 2013) (petitioner's letter brief); Doc.

00512288899 (5th Cir. June 26, 2013) (respondent's letter brief).

CONCLUSION

The judgment of the court of appeals should be af-

firmed.

Respectfully submitted.

KEN PAXTON

Attorney General

of Texas

JEFFREY C. MATEER

First Assistant

Attorney General

AUGUST 2016

Scott A. KELLER

Solicitor General

Counsel of Record

J. CAMPBELL BARKER

Deputy Solicitor General

BILL DAvis

ARI CUENIN

Assistant Solicitors General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

scott.keller@

texasattorneygeneral.gov

(512) 936-1700

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