October 5, 2016
TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
Petitioner Duane Buck was convicted of capital murder in a
Texas court. Under state law, the jury was permitted to
impose a death sentence only if it found unanimously and
beyond a reasonable doubt that Buck was likely to commit acts
of violence in the future. Buck's attorney called a
psychologist, Dr. Walter Quijano, to offer his opinion on
that issue. Dr. Quijano had been appointed to evaluate Buck
by the presiding judge and had prepared a report setting out
his conclusions. To determine the likelihood that Buck would
act violently in the future, Dr. Quijano had considered a
number of statistical factors, including Buck's race.
Although Dr. Quijano ultimately concluded that Buck was
unlikely to be a future danger, his report also stated that
Buck was statistically more likely to act violently because
he is black. The report read, in relevant part: "Race.
Black: Increased probability." App. 19a. Despite knowing
the contents of the report, Buck's counsel called Dr.
Quijano to the stand, where he testified that race is a
factor "know[n] to predict future dangerousness."
Id., at 146a. Dr. Quijano's report was admitted
into evidence at the close of his testimony. The prosecution
questioned Dr. Quijano about his conclusions on race and
violence during cross-examination, and it relied on his
testimony in summation. During deliberations, the jury
requested and received the expert reports admitted into
evidence, including Dr. Quijano's. The jury returned a
sentence of death.
Buck contends that his attorney's introduction of this
evidence violated his Sixth Amendment right to the effective
assistance of counsel. Buck failed to raise this claim in his
first state postconviction proceeding. While that proceeding
was pending, this Court received Syllabus a petition for
certiorari in Saldano v. Texas, 530 U.S. 1212, a
case in which Dr. Quijano had testified that the
petitioner's Hispanic heritage weighed in favor of a
finding of future dangerousness. Texas confessed error on
that ground, and this Court vacated the judgment below. Soon
afterward, the Texas Attorney General issued a public
statement identifying six similar cases in which Dr. Quijano
had testified. Buck's was one of them. In the other five
cases, the Attorney General confessed error and consented to
resentencing. But when Buck filed a second state habeas
petition alleging that his attorney had been ineffective in
introducing Dr. Quijano's testimony, the State did not
confess error, and the court dismissed the petition as an
abuse of the writ on the ground that Buck had failed to raise
the claim in his first petition.
Buck then sought federal habeas relief under 28 U.S.C.
§2254. The State again declined to confess error, and
Buck's ineffective assistance claim was held procedurally
defaulted and unreviewable under Colemanv. Thompson,
501 U.S. 722. This Court's later decisions in
Martinez v. Ryan, 566 U.S. 1, and Trevino v.
Thaler, 569 U.S., modified the rule of Coleman.
Had they been decided before Buck filed his federal habeas
petition, Buck's claim could have been heard on the
merits provided he had demonstrated that (1) state
postconviction counsel had been constitutionally ineffective
in failing to raise the claim, and (2) the claim had some
merit. Following the decision in Trevino, Buck
sought to reopen his §2254 case under Federal Rule of
Civil Procedure 60(b)(6). To demonstrate the
"extraordinary circumstances" required for relief,
Gonzalez v. Crosby, 545 U.S. 524, 535, Buck cited
the change in law effected by Martinez and
Trevino, as well as ten other factors, including the
introduction of expert testimony linking Buck's race to
violence and the State's confession of error in similar
cases. The District Court denied relief. Reasoning that
"the introduction of any mention of race" during
Buck's sentencing was "de minimis, "
the court concluded, first, that Buck had failed to
demonstrate extraordinary circumstances; and second, that
even if the circumstances were extraordinary, Buck had failed
to demonstrate ineffective assistance under Strickland v.
Washington, 466 U.S. 668. Buck sought a certificate of
appealability (COA) from the Fifth Circuit to appeal the
denial of his Rule 60(b)(6) motion. The Fifth Circuit denied
his application, concluding that he had not shown
extraordinary circumstances justifying relief from the
District Court's judgment.
1. The Fifth Circuit exceeded the limited scope of the COA
analysis. The COA statute sets forth a two-step process: an
initial determination whether a claim is reasonably
debatable, and, if so, an appeal in the normal course. 28
U.S.C. §2253. At the first stage, the only question is
whether the applicant has shown that "jurists of reason
could disagree with the district court's resolution of
his constitutional claims or . . . could conclude the issues
presented are adequate to deserve encouragement to proceed
further." Miller-El v. Cockrell, 537 U.S. 322,
327. Here, the Fifth Circuit phrased its determination in
proper terms. But it reached its conclusion only after
essentially deciding the case on the merits, repeatedly
faulting Buck for having failed to demonstrate extraordinary
circumstances. The question for the Court of Appeals was not
whether Buck had shown that his case is extraordinary; it was
whether jurists of reason could debate that issue. The State
points to the Fifth Circuit's thorough consideration of
the merits to defend that court's approach, but this
hurts rather than helps its case. Pp. 12-15.
2. Buck has demonstrated ineffective assistance of counsel
under Strickland. Pp. 15-20.
(a) To satisfy Strickland, a defendant must first
show that counsel performed deficiently. 466 U.S., at 687.
Buck's trial counsel knew that Dr. Quijano's report
reflected the view that Buck's race predisposed him to
violent conduct and that the principal point of dispute
during the penalty phase was Buck's future dangerousness.
Counsel nevertheless called Dr. Quijano to the stand,
specifically elicited testimony about the connection between
race and violence, and put Dr. Quijano's report into
evidence. No competent defense attorney would introduce
evidence that his client is liable to be a future danger
because of his race. Pp. 15-17.
(b) Strickland further requires a defendant to
demonstrate prejudice-"a reasonable probability that,
but for counsel's unprofessional errors, the result of
the proceeding would have been different." 466 U.S., at
694. It is reasonably probable that without Dr. Quijano's
testimony on race and violence, at least one juror would have
harbored a reasonable doubt on the question of Buck's
future dangerousness. This issue required the jury to make a
predictive judgment inevitably entailing a degree of
speculation. But Buck's race was not subject to
speculation, and according to Dr. Quijano, that immutable
characteristic carried with it an increased probability of
future violence. Dr. Quijano's testimony appealed to a
powerful racial stereotype and might well have been valued by
jurors as the opinion of a medical expert bearing the
court's imprimatur. For these reasons, the District
Court's conclusion that any mention of race during the
penalty phase was de minimis is rejected. So is the
State's argument that Buck was not prejudiced by Dr.
Quijano's testimony because it was introduced by his own
counsel, rather than the prosecution. Jurors understand that
prosecutors seek convictions and may reasonably be expected
to evaluate the government's evidence in light of its
motivations. When damaging evidence is introduced by a
defendant's own lawyer, it is in the nature of an
admission against interest, more likely to be taken at face
value. Pp. 17-20. 3. The District Court's denial of
Buck's Rule 60(b)(6) motion was an abuse of discretion.
(a) Relief under Rule 60(b)(6) is available only in
"extraordinary circumstances." Gonzalez,
545 U.S., at 535. Determining whether such circumstances are
present may include consideration of a wide range of factors,
including "the risk of injustice to the parties"
and "the risk of undermining the public's confidence
in the judicial process." Liljebergv. Health
Services Acquisition Corp., 486 U.S. 847, 863-864. The
District Court's denial of Buck's motion rested
largely on its determination that race played only a de
minimis role in his sentencing. But there is a
reasonable probability that Buck was sentenced to death in
part because of his race. This is a disturbing departure from
the basic premise that our criminal law punishes people for
what they do, not who they are. That it concerned race
amplifies the problem. Relying on race to impose a criminal
sanction "poisons public confidence" in the
judicial process, Davis v. Ayala, 576 U.S.,, a
concern that supports Rule 60(b)(6) relief. The extraordinary
nature of this case is confirmed by the remarkable steps the
State itself took in response to Dr. Quijano's testimony
in other cases. Although the State attempts to justify its
decision to treat Buck differently from the other five
defendants identified in the Attorney General's public
statement, its explanations for distinguishing Buck's
case from Saldano have nothing to do with the
Attorney General's stated reasons for confessing error in
that case. Pp. 20-24.
(b) Unless Martinez and Trevino, rather
than Coleman, would govern Buck's case were it
reopened, his claim would remain unreviewable and Rule
60(b)(6) relief would be inappropriate. The State argues that
Martinez and Trevino would not govern
Buck's case because they announced a "new rule"
under Teague v. Lane, 489 U.S. 288, that does not
apply retroactively to cases dike Buck's) on collateral
review. This argument, however, has been waived: the State
failed to advance it in District Court, before the Fifth
Circuit, or in its brief in opposition to Buck's petition
for certiorari. Pp. 24-26.
623 Fed.Appx. 668, reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which
KENNEDY, GlNSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined.
THOMAS, J., filed a dissenting opinion, in which ALITO, J.,
Roberts, Chief Justice
jury convicted petitioner Duane Buck of capital murder. Under
state law, the jury could impose a death sentence only if it
found that Buck was likely to commit acts of violence in the
future. Buck's attorney called a psychologist to offer
his opinion on that issue. The psychologist testified that
Buck probably would not engage in violent conduct. But he
also stated that one of the factors pertinent in assessing a
person's propensity for violence was his race, and that
Buck was statistically more likely to act violently because
he is black. The jury sentenced Buck to death.
contends that his attorney's introduction of this
evidence violated his Sixth Amendment right to the effective
assistance of counsel. This claim has never been heard on the
merits in any court, because the attorney who represented
Buck in his first state postconviction proceeding failed to
raise it. In 2006, a Federal District Opinion of the Court
Court relied on that failure-properly, under then-governing
law-to hold that Buck's claim was procedurally defaulted
2014, Buck sought to reopen that 2006 judgment by filing a
motion under Federal Rule of Civil Procedure 60(b)(6). He
argued that this Court's decisions in Martinez v.
Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler,
569 U.S. (2013), had changed the law in a way that provided
an excuse for his procedural default, permitting him to
litigate his claim on the merits. In addition to this change
in the law, Buck's motion identified ten other factors
that, he said, constituted the "extraordinary
circumstances" required to justify reopening the 2006
judgment under the Rule. See Gonzalez v. Crosby, 545
U.S. 524, 535 (2005).
District Court below denied the motion, and the Fifth Circuit
declined to issue the certificate of appealability (COA)
requested by Buck to appeal that decision. We granted
certiorari, and now reverse.
morning of July 30, 1995, Duane Buck arrived at the home of
his former girlfriend, Debra Gardner. He was carrying a rifle
and a shotgun. Buck entered the home, shot Phyllis Taylor,
his stepsister, and then shot Gardner's friend Kenneth
Butler. Gardner fled the house, and Buck followed. So did
Gardner's young children. While Gardner's son and
daughter begged for their mother's life, Buck shot
Gardner in the chest. Gardner and Butler died of their
wounds. Taylor survived.
officers arrived soon after the shooting and placed Buck
under arrest. An officer would later testify that Buck was
laughing at the scene. He remained "happy" and
"upbeat" as he was driven to the police station,
"[s]miling and laughing" in the back of the patrol
car. App. 134a-135a, 252a.
was tried for capital murder, and the jury convicted. During
the penalty phase of the trial, the jury was charged with
deciding two issues. The first was what the parties term the
"future dangerousness" question. At the time of
Buck's trial, a Texas jury could impose the death penalty
only if it found-unanimously and beyond a reasonable
doubt-"a probability that the defendant would commit
criminal acts of violence that would constitute a continuing
threat to society." Tex. Code Crim. Proc. Ann., Art.
37.071, §2(b)(1) (Vernon 1998). The second issue, to be
reached only if the jury found Buck likely to be a future
danger, was whether mitigating circumstances nevertheless
warranted a sentence of life imprisonment instead of death.
parties focused principally on the first question. The State
called witnesses who emphasized the brutality of Buck's
crime and his evident lack of remorse in its aftermath. The
State also called another former girlfriend, Vivian Jackson.
She testified that, during their relationship, Buck had
routinely hit her and had twice pointed a gun at her.
Finally, the State introduced evidence of Buck's criminal
history, including convictions for delivery of cocaine and
unlawfully carrying a weapon. App. 125a-127a, 185a.
counsel answered with a series of lay witnesses, including
Buck's father and stepmother, who testified that they had
never known him to be violent. Counsel also called two
psychologists to testify as experts. The first, Dr. Patrick
Lawrence, observed that Buck had previously served time in
prison and had been held in minimum custody. From this he
concluded that Buck "did not present any problems in the
prison setting." Record in No. 4:04-cv-03965 (SD Tex.),
Doc. 5-116, pp. 12-13. Dr. Lawrence further testified that
murders within the Texas penal system tend to be gang related
(there was no evidence Buck had ever been a member of a gang)
and that Buck's offense had been a "crime of
passion" occurring within the context of a romantic
relationship. Id., at 4, 19, 21. Based on these
considerations, Dr. Lawrence determined that Buck was
unlikely to be a danger if he were sentenced to life in
prison. Id., at 20-21.
second expert, Dr. Walter Quijano, had been appointed by the
presiding judge to conduct a psychological evaluation. Dr.
Quijano had met with Buck in prison prior to trial and shared
a report of his findings with defense counsel.
Dr. Lawrence, Dr. Quijano thought it significant that
Buck's prior acts of violence had arisen from romantic
relationships with women; Buck, of course, would not form any
such relationships while incarcerated. And Dr. Quijano
likewise considered Buck's behavioral record in prison a
good indicator that future violence was unlikely. App. 36a,
there was more to the report. In determining whether Buck was
likely to pose a danger in the future, Dr. Quijano considered
seven "statistical factors." The fourth factor was
"race." His report read, in relevant part: "4.
Race. Black: Increased probability. There is an
over-representation of Blacks among the violent
offenders." Id., at 19a.
knowing Dr. Quijano's view that Buck's race was
competent evidence of an increased probability of future
violence, defense counsel called Dr. Quijano to the stand and
asked him to discuss the "statistical factors" he
had "looked at in regard to this case."
Id., at 145a-146a. Dr. Quijano responded that
certain factors were "know[n] to predict future
dangerousness" and, consistent with his report,
identified race as one of them. Id., at 146a.
"It's a sad commentary, " he testified,
"that minorities, Hispanics and black people, are over
represented in the Criminal Justice System."
Ibid. Through further questioning, counsel elicited
testimony concerning factors Dr. Quijano thought favorable to
Buck, as well as his ultimate opinion that Buck was unlikely
to pose a danger in the future. At the close of Dr.
Quijano's testimony, his report was admitted into
evidence. Id., at 150a-152a.
opening cross-examination with a series of general questions,
the prosecutor likewise turned to the report. She asked first
about the statistical factors of past crimes and age, then
questioned Dr. Quijano about the roles of sex and race:
"You have determined that the sex factor, that a male is
more violent than a female because that's just the way it
is, and that the race factor, black, increases the future
dangerousness for various complicated reasons; is that
correct?" Id., at 170a. Dr. Quijano replied,
closing arguments, defense counsel emphasized that Buck had
proved to be "controllable in the prison population,
" and that his crime was one of "jealousy, . . .
passion and emotion" unlikely to be repeated in jail.
Id., at 189a-191a. The State stressed the
crime's brutal nature and Buck's lack of remorse,
along with the inability of Buck's own experts to
guarantee that he would not act violently in the future-a
point it supported by reference to Dr. Quijano's
testimony. See id., at 198a-199a ("You heard
from Dr. Quijano, . . . who told you that . . . the
probability did exist that [Buck] would be a continuing
threat to society.").
jury deliberated over the course of two days. During that
time it sent out four notes, one of which requested the
"psychology reports" that had been admitted into
evidence. Id., at 209a. These reports-including Dr.
Quijano's-were provided. The jury returned a sentence of
conviction and sentence were affirmed on direct appeal.
Buck v. State, No. 72, 810 (Tex. Crim. App., Apr.
28, 1999). His case then entered a labyrinth of state and
federal collateral review, where it has wandered for the
better part of two decades.
filed his first petition for a writ of habeas corpus in Texas
state court in 1999. The four claims advanced in his
petition, however, were all frivolous or noncognizable. See
Ex parte Buck, No. 699684-A (Dist. Ct. Harris Cty.,
Tex., July 11, 2003), pp. 6-7. The petition failed to mention
defense counsel's introduction of expert testimony that
Buck's race increased his propensity for violence.
Quijano had testified in other cases, too, and in 1999, while
Buck's first habeas petition was pending, one of those
cases reached this Court. The petitioner, Victor Hugo
Saldano, argued that his death sentence had been tainted by
Dr. Quijano's testimony that Saldano's Hispanic
heritage "was a factor weighing in the favor of future
dangerousness." App. 302a. Texas confessed error on that
ground and asked this Court to grant Saldano's petition
for certiorari, vacate the state court judgment, and remand
the case. In June 2000, the Court did so. Saldano
v.Texas, 530 U.S. 1212.
days, the Texas Attorney General, John Cornyn, issued a
public statement concerning the cases in which Dr. Quijano
had testified. The statement affirmed that "it is
inappropriate to allow race to be considered as a factor in
our criminal justice system." App. 213a. In keeping with
that principle, the Attorney General explained that his
office had conducted a "thorough audit" and
"identified eight more cases in which testimony was
offered by Dr. Quijano that race should be a factor for the
jury to consider in making its determination about the
sentence in a capital murder trial." Ibid. Six
of those cases were "similar to that of Victor Hugo
Saldano"; in those cases, letters had been sent to
counsel apprising them of the Attorney General's
findings. Id., at 213a-214a. The statement closed by
identifying the defendants in those six cases. Buck was one
of them. Id., at 215a-217a. By the close of 2002,
the Attorney General had confessed error, waived any
available procedural defenses, and consented to resentencing
in the cases of five of those six defendants. See Alba v.
Johnson, 232 F.3d 208 (CA5 2000) (Table); Memorandum and
Order in Blue v. Johnson, No. 4:99-cv-00350 (SD
Tex.), pp. 15-17; Order in Garcia v. Johnson, No.
l:99-cv-00134 (ED Tex.), p. 1; Order in Broxton v.
Johnson, No. 4:00-cv-01034 (SD Tex.), pp. 10-11; Final
Judgment in Gonzales v. Cockrell, No. 7:99-cv-00072
(WD Tex.), p. 1.
however, in Buck's. In 2002, Buck's attorney filed a
new state habeas petition alleging that trial counsel had
rendered ineffective assistance by introducing Dr.
Quijano's testimony. The State was not represented by the
Attorney General in this proceeding-the Texas Attorney
General represents state respondents in federal habeas cases,
but not state habeas cases-and it did not confess error.
Because Buck's petition was successive, the Texas Court
of Criminal Appeals dismissed it as an abuse of the writ.
Exparte Buck, Nos. 57, 004-01, 57, 004-02 (Tex.
Crim. App., Oct. 15, 2003) (per curiam).
turned to the federal courts. He filed a petition for habeas
corpus under 28 U.S.C. §2254 in October 2004, by which
time Attorney General Cornyn had left office. See Buck v.
Dretke, 2006 WL 8411481, *2 (SD Tex., July 24, 2006).
Buck sought relief on the ground that trial counsel's
introduction of Dr. Quijano's testimony was
constitutionally ineffective. The State responded that the
state court had dismissed Buck's ineffective assistance
claim because Buck had failed to press it in his first
petition, raising it for the first time in a procedurally
improper second petition. The State argued that such reliance
on an established state rule of procedure was an adequate and
independent state ground precluding federal review. Texas
acknowledged that it had waived similar procedural defenses
in Saldano's case. But it argued that Buck's case was
different because "[i]n Saldano's case Dr. Quijano
testified for the State"; in Buck's,
"it was Buck who called Dr. Quijano to testify."
Answer and Motion for Summary Judgment in No. 4:04-cv-03965
(SD Tex.), p. 20.
countered that, notwithstanding his procedural default, the
District Court should reach the merits of his claim because a
failure to do so would result in a miscarriage of justice.
Buck did not argue that his default should be excused on a
showing of "cause" and "prejudice"-that
is, cause for the default, and prejudice from the denial of a
federal right. And for good reason: At the time Buck filed
his §2254 petition, our decision in Coleman v.
Thompson, 501 U.S. 722, 752-753 (1991), made clear that
an attorney's failure to raise an ineffective assistance
claim during state postconviction review could not constitute
cause. The District Court rejected Buck's miscarriage of
justice argument and held that, because of his procedural
default, his ineffective assistance claim was unreviewable.
Buck v. Dretke, 2006 WL 8411481, at *8. Buck
unsuccessfully sought review of the District Court's
ruling. See Buck v. Thaler, 345 Fed.Appx. 923 (CA5
2009) (per curiam) (denying application for a COA),
cert, denied, 559 U.S. 1072 (2010).
2011, Buck sought to reopen his case, arguing that the
prosecution had violated the Equal Protection and Due Process
Clauses by asking Dr. Quijano about the relationship between
race and future violence on cross-examination and referring
to his testimony during summation. Buck also argued that the
State's decision to treat him differently from the other
defendants affected by Dr. Quijano's testimony justified
relieving him of the District Court's adverse judgment.
The Fifth Circuit disagreed, see Buck v. Thaler, 452
Fed.Appx. 423, 427-428 (CA5 2011) (per curiam), and
we denied certiorari, Buck v. Thaler, 565 U.S. 1022
(2011). Buck, still barred by Coleman from avoiding
the consequences of his procedural default, did not pursue
his ineffective assistance claim.
2012, this Court "modif[ied] the unqualified statement
in Coleman that an attorney's ignorance or
inadvertence in a postconviction proceeding does not qualify
as cause to excuse a procedural default."
Martinez, 566 U.S., at 9. We held that when a state
formally limits the adjudication of claims of ineffective
assistance of trial counsel to collateral review, a prisoner
may establish cause for procedural default if (1) "the
state courts did not appoint counsel in the initial-review
collateral proceeding, " or "appointed counsel in
[that] proceeding . . . was ineffective under the standards
of Strickland v. Washington,466 U.S. 668