Issues
Did the Fifth Circuit use an improper standard to deny Petitioner a Certificate of Appealability (“COA”) on his motion to reopen the judgment against him?
This case addresses the correct standard to be applied in granting a Certificate of Appealability
(“COA”) on a motion to reopen a judgment. As per the standard, Petitioner Duane Buck argues that he deserved a COA, as a reasonable juror could consider his ineffective assistance of counsel claim to be valid, as well as debate the validity of the district court’s denial of his Rule 60(b)(6) motion. In opposition, Respondent Lorie Davis, Director of the Texas Department of Criminal Justice, Correctional Institutions Division, contends that Buck’s ineffective assistance of counsel claim was meritless and that the district court did not abuse its discretion in denying the motion. This case will settle the correct standard for granting a COA, while also addressing issues of implicit racial biases against African American defendants.
Questions as Framed for the Court by the Parties
Duane Buck’s death penalty case raises a pressing issue of national importance: whether and to what extent the criminal justice system tolerates racial bias and discrimination. Specifically, did the United States Court of Appeals for the Fifth Circuit impose an improper and unduly burdensome Certificate of Appealability (COA) standard that contravenes this Court’s precedent and deepens two circuit splits when it denied Mr. Buck a COA on his motion to reopen the judgment and obtain merits review of his claim that his trial counsel was constitutionally ineffective for knowingly presenting an “expert” who testified that Mr. Buck was more likely to be dangerous in the future because he is Black, where future dangerousness was both a prerequisite for a death sentence and the central issue at sentencing?
Facts
Petitioner Duane Buck was convicted of capital murder for the July 1995 deaths of his ex-girlfriend Debra Gardner and her friend Kenneth Butler. During the sentencing phase, Buck’s counsel called Walter Quijano, a clinical psychologist, to testify regarding Buck’s future dangerousness. Specifically, Quijano explained that, to determine whether an inmate would engage in future acts of violence, Quijano looked at several factors—including age, sex, race, social economics, and substance abuse. During cross-examination, the prosecution elicited testimony from Quijano in which Quijano agreed that “a male is more violent than a female because that’s just the way it is” and that “the race factor”—being black—increases a defendant’s future dangerousness. During closing arguments, the prosecution referenced Quijano’s testimony generally but without referencing Buck’s race or Quijano’s use of race. At sentencing, the jury unanimously found beyond a reasonable doubt that there was a probability that Buck would commit criminal acts of violence. Accordingly, the court sentenced Buck to death—a decision later affirmed by the Texas Court of Criminal Appeals.
In 2000, however, the Texas Attorney General (“AG”) recognized the erroneous use of Quijano’s race-based testimony in Saldano v. Texas, 530 U.S. 1212 (2000). The AG promised to waive all procedural defenses if defendants in cases publicly identified by the AG to be similar to Saldano’s—such as Buck’s—chose to appeal their death sentences due to the race-related testimony. Following the Attorney General’s comment, Buck filed several unsuccessful habeas corpus petitions, both state and federal, seeking to challenge his sentence because of ineffective assistance of counsel and other legal grounds.
After the U.S. Supreme Court held in Trevino v. Thaler, 133 S. Ct. 1911 (2013), that the lack of effective counsel during initial state collateral-review proceedings could excuse a procedural default on an ineffective assistance of counsel claim, Buck filed for Rule 60(b)(6) relief from judgment in his federal habeas case, focusing solely on his ineffective assistance of counsel claim (“IAC”). The district court denied the motion, holding that Buck’s case did not have the extraordinary circumstances required under the rule and that Buck failed to establish the prejudice required for an IAC claim. In 2015, the Fifth Circuit also denied Buck’s motion for a lack of “extraordinary circumstances justifying relief.” The U.S. Supreme Court granted certiorari on June 6, 2016.
Analysis
INEFFECTIVE ASSISTANCE OF COUNSEL
Buck argues that in order to be eligible for a Certificate of Appealability (COA), Buck must first show that reasonable jurists would be able to debate whether his counsel was ineffective enough as to deny him a constitutional right. . Buck contends that in order to succeed on his claim under the test set forward in Strickland v. Washington, he must show that his counsel rendered deficient performance and that such deficient performance prejudiced the outcome of his trial. Buck asserts that his trial counsel met this standard and was constitutionally deficient when she introduced an expert witness, Dr. Quijano, who testified that Buck was more likely to be dangerous in the future because he was black. Buck further argues that by presenting this witness and eliciting this testimony from him, his counsel introduced racial prejudice into the proceeding, which no competent counsel would have elected to do. Buck asserts that having an authoritative figure testify that race is linked to future dangerousness created racial prejudice and insinuated that Buck was a member of a group of people who are “predisposed to criminal behavior.” Furthermore, Buck contends that this prejudice was increased by the fact that the evidence was presented during a capital sentencing hearing, where stereotypes might increase the risk of the jury voting in favor of death. Buck also argues that the prejudice was also increased by his counsel’s designation of Quijano as a neutral expert, which added weight and credibility to his testimony. Buck insists that this deficient performance caused prejudice and that there was a reasonable probability that, absent Quijano’s testimony, a juror would have decided against imposing the death penalty upon Buck.
Davis argues that while the introduction of Quijano’s testimony could make reasonable jurists consider Buck’s counsel to be possibly deficient, Buck’s counsel’s actions did not create a substantial likelihood of a different trial outcome. Rather, Davis contends that the aggravating evidence put forward to suggest Buck’s future dangerousness was extensive. As support for this contention, Davis points to the “brutal nature” of the facts of the crime, Buck’s lack of remorse following the crime, and his history of domestic violence. Additionally, Davis also argues that there was no prejudice, as Quijano’s report played a limited role in the trial. Davis suggests that Quijano’s testimony and report focused mainly on the low probability that Davis would be dangerous in the future and actually spent very little time discussing Buck’s race. Additionally, Davis asserts that the prosecutor only once mentioned Quijano’s testimony regarding race on cross-examination, substantially differentiating this case from those in which the prosecution made “repeated or direct pleas” for the jury to consider race as a factor.
RULE 60(B)(6) RELIEF
Buck argues that because his case has extraordinary circumstances and the district court abused its discretion in denying relief, a reasonable juror could debate the denial of his Rule 60(b)(6) relief. Buck asserts that his case meets the “extraordinary circumstances” test, permitting the final judgment to be reopened under Rule 60(b)(6). Within this context, Buck argues that the possibility that he may be executed under a death sentence tainted by racial prejudice causes a risk of injustice. Buck explains that this risk of injustice is compounded by the Attorney General’s promise to concede error in all cases similar to Buck’s, followed by Texas’s failure to do so in the current case. Additionally, Buck contends that Quijano’s testimony regarding Buck’s race could potentially diminish the public’s confidence in the legal system and its ability to remain impartial. . Buck argues that the likely merit of his ineffective assistance of counsel claim and his diligence in pursuing that claim indicate that his case involves extraordinary circumstances.
Finally, Buck argues that a reasonable jurist could debate that the District Court abused its discretion in denying the Rule 60(b)(6) motion, as the court made errors of law. Under this analysis, Buck first contends that the court erred in analyzing the factors of the case individually, rather than conducting a holistic review. Buck also argues that the court abused its discretion in finding that the actions of Buck’s counsel had a “de minimis” impact on sentencing. Additionally, Buck contends that the court acted improperly when it failed to include Texas’s broken promise in its analysis of extraordinary circumstances. Finally, Buck argues that the court was incorrect in finding the fact that his IAC claim had procedurally defaulted was immaterial to the current review. Buck contends that due to the change in law under Martinez and Trevino, this is a relevant factor that should have been taken into account.
On the other hand, Davis maintains that Buck did not show the District Court abused its discretion in finding that the case did not constitute extraordinary circumstances. Davis explains that this is a difficult to meet deferential standard. As to the extraordinary circumstances analysis, Davis argues that the facts of Buck’s case do not reach this high standard. First, Davis argues that Buck’s IAC claim is meritless, due to his inability to establish prejudice in the face of the many aggravating factors. Additionally, Davis contends that the change in law created by the Martinez and Trevino decisions is not extraordinary enough and is made even less so due to Buck’s failure to diligently include the IAC claim in his first Rule 60(b) motion. Davis also opposes Buck’s contention that Texas reneged on a promise or that this affects the analysis. Davis first argues that any such statement by the Attorney General was made outside of a judicial proceeding, and further that Buck’s case is factually distinguishable from other cases included within the promise.
Lastly, Davis further contends that the District Court did not abuse its discretion. In response to Buck’s argument that the change in law affected by the Martinez and Trevino decisions was improperly excluded from the analysis, Davis argues that the court did consider this factor, but still found a lack of extraordinary circumstances. Furthermore, Davis suggests that the Martinez and Trevino decisions do not apply retroactively to cases on collateral review, and therefore do not apply to the current case. Finally, Davis argues that there is no evidence that the District Court abused its discretion by not taking a holistic view of the evidence.
Discussion
THE RISK OF INJUSTICE DUE TO RACIAL BIASES
The Lawyers’ Committee for Civil Rights Under Law argues that Quijano’s race-as-dangerousness testimony prompted implicit racial prejudices held by the jury in determining whether to impose the death penalty. Furthermore, the Constitutional Accountability Center (“CAC”) argues that Quijano’s testimony injected into Buck’s sentencing hearing a “uniquely powerful racial stereotype,” that is, that African Americans are intrinsically violent. The CAC emphasizes that scientific research consistently reveals that people have a latent association between African Americans and violence, which distorts their perceptions of reality and leads to racially biased assessments. Indeed, the Lawyers’ Committee argues that the stereotype of blacks as criminal so permeates the public mindset that approximately seventy percent of Americans harbor implicit racial bias against black Americans. The Lawyers’ Committee further argues that jurors may be primed with “subtle influences” that “increase the ease with which certain information comes to mind.” They argue that individuals are particularly susceptible when primed by an expert who holds a position of authority. Consequently, according to the Lawyers’ Committee, individuals primed with race-based cues rely heavily on stereotypes and judge blacks as hostile, violent, and unintelligent.
Davis argues that the aggravating evidence of Buck’s future dangerousness was overwhelming, and such evidence overcame any possible prejudice that Buck’s counsel introduced by using Quijano’s testimony. Moreover, Davis argues that, in light of the aggravating evidence, Quijano’s testimony played a limited role, was elicited by defense counsel, and must be assessed against the “overwhelming” aggravating evidence. For one, Davis argues that Buck’s crimes were “undeniably ‘horrific’” as Buck, for example, shot his own stepsister point-blank in the chest. Though the brutality of Buck’s crimes alone does not necessarily preclude a finding of prejudice, Davis contends that brutality of a crime is highly relevant and probative of future dangerousness. Indeed, Davis cites the “brutal nature” of the crime combined with a “lack of contrition and remorse” as being sufficient for a Texas jury to find that a capital defendant presents a continuing threat to society. Overall, Davis claims that Buck focuses in isolation on his counsel’s ineffectiveness, severely downplaying the weight of the evidence of his future dangerousness. Davis asserts that Buck’s case is thus distinguishable from those cases in which the prosecution made inflammatory race-based statements.
THE RISK OF UNDERMINING PUBLIC CONFIDENCE IN THE JUSTICE SYSTEM
Buck contends that, by allowing Quijano’s testimony to stand, the criminal justice system would be endorsing the false but pervasive belief in a link between black men and violence. Buck asserts that such an endorsement would lead to a risk of injustice in other cases and in the rule of law itself. Furthermore, by allowing Texas to renege on its promise to correct a death sentence tainted by expert testimony, Buck argues that Texas would compromise and demean the legitimacy of its justice system. Indeed, amici of former prosecutors assert that the public has a need, and a right, to expect that the promises made by a state’s highest-ranking law enforcement officials will be followed and faithfully implemented, particularly when a decision was arbitrary and resulted in an uneven application of the law.
In contrast, Davis argues that Buck has not made a substantial showing that the district court abused its discretion in declining to find “extraordinary circumstances” to reopen a final judgment. Davis states that, under Rule 60(b), a party is allowed to seek relief from a final judgment, and request reopening of his case, only in a limited set of circumstances. Moreover, Davis argues that a very strict interpretation of the rule is essential if the finality of judgments is to be preserved. Davis also maintains that Buck received substantial judicial process, noting the years of litigation and the court’s acknowledgement of Quijano’s testimony.
Written by
Edited by
Acknowledgments
Additional Resources
- Adam Liptak, Supreme Court to Hear Death Penalty Cases, The New York Times (June 6, 2015).
- Ariane de Vogue and Tal Kopan, Supreme Court takes up death penalty cases for next term, CNN politics (June 6, 2016).