580 U.S. 100 (2017)
In July 1995, Duane Buck arrived at the home of his former girlfriend Debra Gardner in Texas carrying a rifle and shotgun.1 He shot and killed Gardner and her friend Kenneth Butler, also wounding his stepsister Phyllis Taylor.2 Officers arrested him at the scene where he was laughing and appeared unremorseful.3
Buck was tried for capital murder and convicted by a jury.4 The penalty phase focused on whether he would commit future acts of violence.5 Defense counsel called psychologist Dr. Walter Quijano, appointed by the trial judge.6 Quijano prepared a report listing statistical factors for future dangerousness that included race and stated that Buck as a Black man had an increased probability of violence.7
Quijano testified on direct examination that race was a known predictor of future dangerousness.8 The report was admitted into evidence.9 The prosecutor cross-examined him about the race factor.10 The jury requested and received the expert reports during deliberations before returning a death sentence.
Buck did not raise an ineffective assistance claim concerning the introduction of the race-related testimony in his first state habeas petition filed in 1999.11 A successive state habeas petition alleging the claim was dismissed as an abuse of the writ by the Texas Court of Criminal Appeals.12 In federal habeas proceedings under 28 U.S.C. §2254, the District Court held the claim procedurally defaulted under then-governing precedent, and the Fifth Circuit denied a certificate of appealability.1314
After this Court’s decisions in Martinez v. Ryan and Trevino v. Thaler altered the law governing procedural defaults for ineffective assistance claims, Buck filed a motion under Federal Rule of Civil Procedure 60(b)(6) to reopen the 2006 federal judgment.15 He cited the change in law along with the introduction of the race testimony, the prosecutor’s use of it, and the State’s decision to confess error and consent to resentencing in five other cases involving Dr. Quijano but not in his own.16 The District Court denied the motion.17 The Fifth Circuit denied a certificate of appealability. The Supreme Court granted certiorari.18
Whether the Fifth Circuit exceeded the limited scope of the certificate of appealability inquiry by deciding the merits of Buck’s claim?19
A COA may issue only if the petitioner has made a substantial showing of the denial of a constitutional right under 28 U.S.C. §2253(c)(2).20 The inquiry is a threshold question that asks whether reasonable jurists could disagree with the district court’s resolution or conclude the issues deserve encouragement to proceed further, and it must be decided without full consideration of the factual or legal bases for the claims, as established in Miller-El v. Cockrell, 537 U.S. 322.21
Yes. The Fifth Circuit exceeded the limited scope of the COA inquiry.22 It based its denial on the ultimate merits of Buck’s Rule 60(b)(6) motion rather than whether jurists of reason could debate the District Court’s conclusions. The panel repeatedly faulted Buck for failing to demonstrate extraordinary circumstances.23
It treated the change in law from Martinez v. Ryan and Trevino v. Thaler as insufficient.24 This performed the full merits analysis that Miller-El instructs courts to avoid at the COA stage.25 The approach converted the threshold inquiry into a decision on the merits, which the statute and precedent prohibit.26
The Fifth Circuit’s denial of a COA rested on an incorrect legal standard and constituted an abuse of discretion.27
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Joined by Justice Alito
Justice Thomas dissented on the ground that a court denying a COA must necessarily conclude the claim is meritless.28 The Fifth Circuit’s approach of first deciding the merits was therefore required rather than erroneous.29 A reviewing court cannot determine that a claim is indisputably meritless without first deciding that it is meritless.30
He maintained that the panel correctly applied the governing standards.31 The majority’s criticism of the Fifth Circuit for reaching the merits was misplaced because denying a COA inherently requires a determination that the claim is indisputably meritless.32 The majority’s approach would prevent a court of appeals from denying a COA in any case, an outcome foreclosed by the statute and precedents.
Whether Buck made a substantial showing that his trial counsel rendered ineffective assistance by introducing expert testimony linking his race to future dangerousness?33
To establish ineffective assistance under Strickland v. Washington, 466 U.S. 668, a defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense.34 Prejudice requires a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different, meaning the likelihood of a different result must be substantial.35
Yes. Buck demonstrated that reasonable jurists could debate whether his trial counsel rendered ineffective assistance.36 Counsel knew the contents of Dr. Quijano’s report.37 The report listed race as a statistical factor stating that Buck as a Black man had an increased probability of future violence.38
Counsel nevertheless called Quijano to the stand.39 Counsel elicited testimony that race predicts future dangerousness and introduced the report into evidence.40 This performance was deficient because no competent defense attorney would introduce evidence that his client is more likely to be dangerous because of his race.41 The deficient performance prejudiced Buck because the only disputed issue at sentencing was future dangerousness.42
The race testimony appealed to a powerful stereotype and was directly connected to that issue.43 The prosecutor emphasized it on cross-examination and in closing.44 The jury requested the expert reports during deliberations before returning a death sentence.45
Reasonable jurists could debate whether Buck was denied effective assistance of counsel, satisfying the substantial showing required for a COA.46
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Joined by Justice Alito
Justice Thomas dissented on the ground that the state court reasonably concluded Buck could not establish prejudice.47 The psychologist’s testimony was a small part of the evidence presented at the penalty phase.48 The jury heard extensive evidence of Buck’s violent history, including multiple murders and other crimes.49
The prosecutor’s reference to race was brief and was made in the context of responding to the defense expert’s own testimony.50 Given the overwhelming evidence of future dangerousness, there is no reasonable probability that the outcome would have been different had counsel objected to the testimony.51 The Fifth Circuit correctly denied a certificate of appealability.52
Whether the District Court abused its discretion in denying Buck’s Rule 60(b)(6) motion to reopen the judgment?53
Relief under Federal Rule of Civil Procedure 60(b)(6) is available only in extraordinary circumstances, which may include consideration of the risk of injustice to the parties and the risk of undermining the public’s confidence in the judicial process, as set forth in Gonzalez v. Crosby, 545 U.S. 524, and Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847.54
Yes. The District Court abused its discretion in denying Buck’s Rule 60(b)(6) motion.55 The court’s conclusion that extraordinary circumstances were absent rested largely on its determination that any mention of race was de minimis.56 Yet the race testimony was potent evidence on the central sentencing issue of future dangerousness.57
It appealed to a racial stereotype and was introduced by defense counsel in a manner akin to an admission against interest.58 The extraordinary nature of the case is confirmed by the State’s own actions.59 After conducting an audit following Saldano v. Texas, the Attorney General publicly stated that it is inappropriate to allow race to be considered as a factor in the criminal justice system.60 The State confessed error and consented to resentencing in five similar cases involving Dr. Quijano but not in Buck’s case, despite the same race-based testimony appearing in all.61
These circumstances, combined with the change in law effected by Martinez and Trevino that would have permitted merits review of the defaulted claim, constitute extraordinary circumstances warranting relief.62
The District Court’s denial of Rule 60(b)(6) relief was an abuse of discretion because Buck demonstrated extraordinary circumstances and a potentially viable ineffective-assistance claim.63
Related opinions on this issue
Joined by Justice Alito
Justice Thomas dissented on the ground that the District Court acted within its discretion in denying Rule 60(b)(6) relief.64 The racial testimony was de minimis.65 The State had good reason to treat Buck’s case differently since defense counsel rather than the prosecution elicited the testimony.66
The lengthy passage of time between the original habeas judgment and the Rule 60(b)(6) motion undermined any claim that extraordinary circumstances existed.67 Particularly in light of the admonition that such circumstances will rarely occur in the habeas context, it is not debatable that the District Court acted within its discretion in denying Rule 60(b)(6) relief here.68