Buck v Davis Reply Brief for Petitioner

    No. 15-8049

In the

j^uprme (Enurt o f tlje 3Imted States

DUANE EDWARD BUCK,

Petitioner,

v.

LORIE DAVIS, DIRECTOR, TE XAS DEPARTM ENT 
OF CRIM IN AL JUSTICE, CORRECTIONAL 

INSTITUTIONS DIVISION,

Respondent.

On W rit of Certiorari to the United States 
Court of Appeals for the Fifth Circuit

REPLY BRIEF FOR PETITIONER

Kathryn M. K ase 
Katherine C. Black 
Texas D efender Service 
1927 Blodgett Street 
Houston, TX  77004 
(713) 222-7788

Samuel Spital 
Benjamin R. W ilson 
Holland & K night LLP 
31 West 52nd Street 
New York, N Y 10019 
(212) 513-3200

Sherrilyn Ifill 
Janai Nelson 
Christina A. Swarns 

Counsel of Record 
Jin H ee L ee 
Raymond A udain 
Natasha M erle 
NAACP Legal Defense 

& E ducational F und, Inc, 
40 Rector Street, 5th Floor 
New York, N Y 10006 
(212) 965-2200 
cswarns@naacpldf.org

Counsel for Petitioner 

September 28,2016______________________
267802

mailto:cswarns@naacpldf.org


I

TABLE OF CONTENTS

Page

TABLE OF A U T H O R IT IE S .......................................... iii

I. Introduction................................................................ 1

II. This Court Cannot Have Confidence in
Duane Buck’s Sentence of D e a th .......................... 1

A. Dr. Quijano’s Testimony Was Uniquely
H arm fu l..............................................................2

B. The Aggravation Does Not Alter the
Prejudice Caused by Dr. Quijano’s 
Testimony............................................................7

III. M r. B u ck ’s C ase  is E x tr a o r d in a r y
Within the Meaning of Federal Rule o f 
Civil Procedure 60(b)(6)......................................... 15

A. Trial Counsel’s Knowing Introduction of 
Dr. Quijano’s Explicit Appeal to Racial 
Bias Is E xtraordinary...................................16

B. It Is E x tra o rd in a ry  that T exas 
R ecogn ized  Its O rdinary In terest 
in Finality Does Not Apply to Mr. 
Buck’s Death Sentence, But Arbitrarily 
R e v e r s e d  C o u rs e  and P u rsu e d  
Mr. Buck’s E xecution........................... 17



ii

Page
C. M artinez  and Trevino Support a

F in d in g  that Mr. B u ck ’s Case is 
Extraordinary................................................. 19

D. The District Court’s Decision to Deny 
Rule 60(b) Relief Constitutes an Abuse
of Discretion..................................................... 21

CO N CLU SIO N .................................................................... 24



Ill

TABLE OF AUTHORITIES

CASES

Allison v. State,
248 S.W.2d 147 (Tex. Crim. App. 1952)....................... 4

Berry v. State,
233 S.W.3d 847 (Tex. Crim. App. 2007)....................... 9

Buck v. Stephens,
623 F. App’x 668 (5th Cir. 2015), cert, granted,
136 S. Ct. 2409(2016)..................................................... 21

Buck v. Thaler,
132 S. Ct. 32(2011)..........................................  18-19, 21

Coe v. Thurman,
922 F.2d 528 (9th Cir. 1991).......................................... 20

Coleman v. Thompson,
501 U.S. 722 (1991)......................................................... 21

Davis v. Ayala,
135 S. Ct. 2187(2015)......................................................16

Garcia v. State,
No. 03-08-00586,2010 W L 4053640
(Tex. Ct. App. 2010)................................................ 11,13

Gardner v. Johnson,
247 F.3d 551 (5th Cir. 2001)......................................9,10

Page(s)



IV

Page(s)

Harrington v. Richter,
562 U.S. 86 (2011)........................................................... 11

Haynes v. Thaler,
133 S. Ct. 2764(2013)..................................................... 20

Highmark Inc. v. Allcare Health Mgmt. Sys. Inc.,
134 S. Ct. 1744 (2014)..................................................... 22

In re Paredes,
587 F. App’x 805 (5th Cir.), cert, denied,
135 S. Ct. 433(2014)....................................................... 20

JEB v. Alabama ex rel. T.B.,
511 U.S. 127 (1994).......................................................... 16

Kyles v. Whitley,
514 U.S. 419 (1995)..........................................................11

Lenz v. Washington,
444 F.3d 295 (4th Cir. 2 0 0 6 ).......................................... 8

Liljeberg v. Health Servs. Acquisition Cory.,
486 U.S. 847 (1988)..........................................  18,22,23

Martinez v. QuaMerman,
270 F. App’x 277 (5th Cir. 2008)....................................9

Martinez v. Ryan,
132 S. Ct. 1309 (2012)..................................15,19,20,21



V

Page(s)

McCleskey v. Kemp,
481 U.S.279 (1987)......................................................... 24

Miller-El v. Dretke,
545 U.S. 231 (2005)................. ........................................22

Montgomery v. Louisiana,
136 S. Ct. 718 (2016).....................................................20

Neathery v. Stephens,
134 S. Ct. 898 (2014)....................................................... 20

O’Neal v. McAninch,
513 U.S. 432 (1995)..........................................................17

Parker v. Gladden,
385 U.S. 363 (1966)..........................................................14

Porter v. McCollum,
558 U.S. 30 (2009)...................................................7-8,11

Renteria v. State,
206 S.W.3d 689 (2006)................................................... 13

Rompilla v. Beard,
545 U.S. 374 (2005)......................................................... 22

Satterwhite v. Texas,
486 U.S. 249 (1988)......................................................9,10



m

Saenz v. State,
421 S.W.3d 725(2014)...............................................12,13

Schiro v. Farley,
510 U.S. 222 (1994)......................................................... 20

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

Teague v. Lane,
489 U.S. 288 (1989)......................................................... 20

Thompson v. State,
93 S.W.3d 16 (Tex. Crim. App. 2001)..........................10

Trevino v. Thaler,
133 S. Ct. 1911 (2013)..................................15,19,20,21

Turner v. Murray,
476 U.S. 28 (1986)..............................................................7

United States v. Cruz,
981 F.2d 659 (2d Cir. 1992).............................................2

United States v. Taylor,
487 U.S. 326 (1988)......................................................... 22

Vanderbilt v. Collins,
994 F.2d 189 (5th Cir. 1993)................. .............. .... .7,10

Page(s)



vii

Walbey v. Quaterman,
309 F. App’x 795 (5th Cir. 2009)................... .. .4, 5, 9

Walbey v. Quarterman,
No. G-99-496,2008 W L 6841900
(S.D. Tex. Feb. 20 ,2008)................................................. 5

Wiggins v. Smith,
539 U.S. 510(2003)....................................................11,22

Williams v. Taylor,
529 U.S. 362 (2000)............................................................8

Wong v. Belmontes,
558 U.S. 15(2009)..............................................................8

STATUTES AND OTHER AUTHORITIES

28 U.S.C. § 2244....................................................................20

Fed. R. Civ. P. 60 (b )(6 ).....................................   'passim

Fed. R. Civ. P. 60(b)............... .......... .........................passim

Page(s)

Associated Press, Corpus Christi Man Gets Life 
in Prison for Killing 2 Girls, NBC Dallas Fort 
Worth News, Feb. 28,2015, http://www.nbcdfw. 
com/news/local/Corpus-Christi-Man-Gets-Life- 
in-Prison-for-Killing-2-Girls-294495691.html........ 12

http://www.nbcdfw


Vlll

Page(s)

C rim esider Staff, Kimberly Saenz, ex-nurse 
convicted of bleach killings, sentenced to 
life in prison, CBS N ew s, A pril 2, 2012, 
available at http://www.cbsnews.com /news/ 
kimberly-saenz-ex-nurse-convicted-of-bleach- 
killings-sentenced-to-life-in-prison/......................... 12

Kapitan, Craig, Jury rejects death sentence, My 
SanAntonio, Oct. 23,2012, available athttp://www. 
m ysanantonio.com /news/local_news/article/ 
Jury-rejects-death-sentence-3972452.php...............12

http://www.cbsnews.com/news/
http://www


1

I. Introduction

This is the rare habeas case for which relief under 
Federal Rule of Civil Procedure 60(b)(6) is appropriate. 
Although the state ordinarily has a strong interest in the 
finality of criminal judgments, Texas acknowledged that 
when, as here, a death sentence is corrupted by “expert 
testimony” that the defendant is more likely to commit 
crimes of violence because of his race, its finality interest 
does not apply. For that reason, Texas conceded error 
in Saldano v. Texas and then publicly declared it would 
not object to new sentencing hearings in six additional 
cases— including Mr. Buck’s— that involved expert race- 
as-criminal-violence testimony. It kept its promise in five 
of those cases, but reneged on its promise to Mr. Buck.

Texas’s arguments do not change the fact that this 
case is extraordinary, or that the lower courts’ denial of 
relief wTas wrong, or at least debatable. Mr. Buck is entitled 
to a Certificate of Appealability (COA).

II. This Court Cannot Have Confidence in Duane
Buck’s Sentence of Death.

Texas now concedes that “ the introduction of race 
into [Mr. Buck’s] own capital-punishment proceedings 
by [Mr. Buck’s] own trial counsel was at least debatably 
deficient performance.” Red Br. 1. Yet, Texas continues 
to advance the untenable argument that Mr. Buck cannot 
meet Strickland’s prejudice prong, and indeed that no 
reasonable jurist could disagree. According to Texas, Dr. 
Quijano’s repeated statements that Mr. Buck’s race meant 
he was more likely to commit acts of criminal violence (a) 
played only a “very limited role” at sentencing, and (b) are



2

of no constitutional significance given the “overwhelming” 
aggravating evidence. Red Br. 23-33. Texas is wrong on 
both points.

A. Dr. Quijano’s Testimony Was Uniquely 
Harmful.

Dr. Quijano’s race-as-dangerousness opinion tainted 
Mr. Buck’s sentencing proceeding with an “arbitrary, 
emotionally charged factor that has nothing to do with 
individual moral culpability.” Red Br. 1 (citation omitted). 
The harm to Mr. Buck is clear: “ Injection of a defendant’s 
ethnicity into a trial as evidence of criminal behavior is 
self-evidently improper and prejudicial— ” United States 
v. Cruz, 981 F.2d 659, 664 (2d Cir. 1992). Indeed, courts 
have recognized for over a century that appeals to race 
bias create a sui generis risk that the ju ry  will make 
its decision based on invidious considerations that have 
nothing to do with the competent evidence. See Blue Br. 
36-38. Texas makes a number of arguments seeking to 
avoid this principle, but none are persuasive.

First, contrary to Texas’s suggestion, Red Br. 29, 
the race-as-dangerousness opinion does not have to be 
repeated a certain number of times or occupy a specific 
percentage of transcript lines in order to be prejudicial. 
Given our nation’s history, “ one cannot unring the bell” 
or “destroy the virus that [is] spread” when jurors are 
urged to consider a criminal defendant’s race as evidence 
in support of guilt or punishment. Blue Br. 33-34 (citations 
omitted). Indeed, in most of the cases cited by Mr. Buck on 
this issue, the court found prejudice based on just one or 
two racially-biased statements (some of which the jurors 
were instructed to disregard). See id. at 36-38.



3

Prejudice follows a fortiori here, where Dr. Quijano’s 
assertions that Mr. Buck’s race made him more likely to 
commit criminal acts of violence were presented to the 
jury  on three separate occasions.

On d irect examination, defense counsel elicited 
testimony by Dr. Quijano that Mr. Buck’s “race” was one 
of the “ the statistical factors we know to predict future 
dangerousness.” JA 146a.

On cross-examination, the prosecutor had Dr. Quijano 
reaffirm that “ the race factor, black, increases the future 
dangerousness for various complicated reasons.” JA 170a.

And Dr. Quijano’s report, which was submitted to 
the ju ry  at defense counsel’s request, stated that Mr. 
Buck’s “Race. Black” meant there was an “ Increased 
probability” he would “commit criminal acts of violence 
that would constitute a continuing threat to society.” JA 
18a, 19a (emphasis in original). During deliberations, the 
jury  asked to review the “psychology reports,” which 
included Dr. Quijano’s. JA 209a.

Second, Texas stresses that it was the prosecution that 
made a direct racial appeal in the precedent cited in Mr. 
Buck’s opening brief. Red Br. 31. But so did the prosecutor 
here. To be sure, the initial source of the constitutional 
error in this case was the failure of Mr. Buck’s attorneys 
to “ functionG as the ‘counsel’ guaranteed the defendant 
by the Sixth Amendment.” Strickland v. Washington, 466 
U.S. 668, 687 (1984). But one consequence of that error 
was that it opened the door for the prosecution to use Dr. 
Quijano’s testimony to make a “direct p lea []. . .  that the 
jury consider race or ethnicity as evidence of criminality.” 
Red Br. 31.



4

M oreover, con tra ry  to T e x a s ’s a ssertion , the 
prosecutor did not “ m erely review [] the entirety of 
Quijano’s testimony without expressing either agreement 
or disagreement with Quijano’s views.” Red Br. 30. The 
prosecutor not only reiterated Dr. Quijano’s race-as- 
dangerousness opinion, she suggested it was grounded 
in empirical research: “You have determined th a t. . .  the 
race factor, black, increases the future dangerousness for 
various complicated reasons; is that correct?” JA 170a 
(emphasis added). By contrast, the prosecutor sought to 
undermine Dr. Quijano’s opinions that were helpful to Mr. 
Buck. See, e.g., JA 169 (questions designed to undermine 
Mr. Buck’s age as a factor decreasing the probability of 
future dangerousness); JA 170a (similar with respect to 
Mr. Buck’s work history).

In sum, the jury  in Mr. Buck’s case heard testimony 
that “condemned] [Black people] as a class” as predisposed 
to criminal violence, just as in the Jim Crow era case law 
cited in Mr. Buck’s opening brief. Allison v. State, 248 
S.W.2d 147,148 (Tex. Crim. App. 1952). That the testimony 
was elicited by both the defense and the prosecution— and 
was presented as the purportedly professional opinion of 
a defense expert “appointed by Judge Collins . . .  to do 
an evaluation on the defendant”— only exacerbates the 
harm. Blue Br. 30-31; see Walbey v. Quarterman, 309 
F. App’x 795, 804 (5th Cir. 2009) (testimony by a defense 
expert supporting the prosecution’s future dangerousness 
case was “highly prejudicial, particularly coming from a 
defense witness” ).

Third, it does not m atter that Dr. Quijano also 
presented testimony favorable to Mr. Buck. Because a jury 
expects a defense expert to reach a conclusion favorable to



5

the defense, any testimony from such an expert that favors 
the prosecution is likely to stand out in jurors’ minds. See 
id. at 803-04 (finding Strickland prejudice because, inter 
alia, testimony by a defense expert “did severe damage 
to W albey’s case,” even though the expert’s ultimate 
conclusion was that Walbey was not likely to be a future 
danger); Walbey v. Quarterman, 2008 W L 6841900, at 
*8-10 (S.D. Tex. Feb. 20, 2008) (district court’s decision 
describing expert’s testimony).

Furthermore, Texas overstates the favorable aspects 
o f Dr. Quijano’s testimony. Red Br. 29-30. On cross- 
examination, Dr. Quijano— to the prosecutor’s apparent 
surprise— testified that there was a probability Mr. Buck 
would commit future acts of violence:

Q :. . .  I believe you testified. . .  that you believed 
that the defendant if incarcerated . . . there 
would not be the probability about him being a 
continuing threat to society. I believe that was 
your opinion.

A. No.

Q. That was not your opinion?

A. A  decreased probability  but there is a 
probability.

Q. Then there is a probability that he would be 
a continuing threat to society?



6

A. Yes.

MS. H UFFM AN: No other questions, D octor...

JA 176a.

The prosecutor was thus able to argue in closing: “You 
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 the man would commit future acts 
of violence.” JA 198a.1

By contrast, Dr. Lawrence, another defense expert 
who had previously evaluated roughly 900 prisoners 
convicted of homicide, consistently testified that Mr. Buck 
was not likely to be a future danger. See Tr. 177, 182- 
86, 188-204, 205-06, Buck v. Thaler, No. 4:04-cv-03965 
(S.D. Tex. June 24,2005), ECF Nos. 5-115, pp. 34, 39-41; 
5-116, pp. 2-3, 22-23; 5-116, pp. 5-21. As a result, all the 
prosecutor could say in closing about Dr. Lawrence was: 
“ [t]he other gentleman, Dr. Lawrence, he told you that he 
couldn’t make any guarantees.” JA 199a.

1 Texas’s argument that the prosecution’s closing did not 
specifically refer to race, Red Br. 30, misses the point. In closing, 
the prosecutor expressly invoked Dr. Quijano’s opinion that there 
was a probability Mr. Buck would be a future danger. That opinion 
was tainted by Dr. Quijano’s race-as-dangerousness opinion. 
Although Texas suggests that Dr. Quijano’s ultimate future 
dangerousness opinion was based solely on Mr. Buck’s lack of 
remorse in the wake of the crimes, that suggestion is not supported 
by the Transcript. Compare Red Br. 30-31 ivith JA 175a-76a.



7

Fourth, Texas gets it backward when it asserts 
that Dr. Quijano’s testimony was less harmful than the 
inflammatory racial rhetoric at issue in some of the case law 
cited by Mr. Buck. See Red Br. 31. Here, the prosecutor did 
not simply “draw the color line” by making a generalized 
appeal to racial prejudice, or use a coded phrase such as 
“burn, baby, burn” in the course of a question that the jury 
was instructed to disregard. Id. (citing cases). Instead, the 
prosecutor and the defense elicited testimony that “bore 
the imprimatur of an expert’s opinion” and legitimized the 
uniquely pernicious stereotype that Black men are more 
likely to commit acts of criminal violence. Vanderbilt v. 
Collins, 994 F.2d 189,199 (5th Cir. 1993).

This last point is especially significant because a jury 
finding of future dangerousness was a prerequisite for a 
death sentence here, and future dangerousness was the 
central disputed issue. Blue Br. 5-8. As this Court has 
recognized (in a case Texas does not even mention), a juror 
who “believes that blacks are violence prone. . .  might well 
be influenced by that belief in deciding whether petitioner’s 
crime involved the aggravating factors” required for a 
death sentence; “ [s]uch a juror might also be less favorably 
inclined toward petitioner’s” mitigating evidence. Turner 
v. Murray, 476 U.S. 28, 35 (1986) (plurality opinion). Dr. 
Quijano repeatedly validated this false and uniquely 
prejudicial stereotype in Mr. Buck’s case.

B. The Aggravation Does Not Alter the Prejudice 
Caused by Dr. Quijano’s Testimony.

This Court has found Strickland prejudice even 
when the prosecution presented substantial evidence 
in aggravation. See Blue Br. 39-40 (discussing Porter v.



8

McCollum, 558 U.S. 30 (2009) (per curiam), and W illiams 
v. Taylor, 529 U.S. 362 (2000)). Texas does not contend that 
this case is any more aggravated than Porter or Williams', 
and, indeed, Texas specifically “does not argue” that a 
brutal crime precludes a finding of prejudice. Red Br. 24.

Yet, at the same time, Texas insists that Porter, 
Williams and the other ineffective assistance of counsel 
cases cited in Mr. Buck’s opening brief “have little bearing 
on this case” because they were premised on counsel’s 
failure to investigate mitigation. Red Br. 24 & n. 6. That is 
a distinction without a difference. This Court’s precedent is 
clear: errors by defense counsel that fundamentally skew 
the evidentiary picture presented to the capital sentencing 
ju ry  can undermine confidence in a death sentence, 
even when a crime involves substantial aggravation. See 
Porter, 558 U.S. at 41-42; Williams, 529 U.S. at 398. That 
principle is applicable whether defense counsel fails to 
investigate and present mitigating evidence that would 
help their client (i.e., the most common capital sentencing 
ineffectiveness claim), or defense counsel introduces 
uniquely harmful “ evidence” that supports the state’s 
case for death (i.e., the extraordinary circumstances of 
Mr. Buck’s ineffectiveness claim).

The case law cited by Texas, see Red Br. 25-26, does 
not hold otherwise. None of those cases involved an 
error by defense counsel that fundamentally skewed the 
evidentiary picture presented to the jury. See, e.g., Wongv. 
Belmontes, 558 U.S. 15,22-27 (2009) (per curiam) (omitted 
mitigation was cumulative of trial evidence, or would have 
allowed the prosecution to introduce evidence of another 
murder in rebuttal); Lenz v. Washington, 444 F.3d 295, 
303 (4th Cir. 2006) (petitioner, sentenced to death for a



9

prison killing, did not allege a “single fact that counsel or 
an expert failed to discover” ).

And, while Mr. Buck does not dispute that the 
“ brutality  o f a crim e” may be “probative o f future 
dangerousness,” R ed Br. 24-25, context is critical. 
Compare Martinez v. Quarterman, 270 F. App’x 277, 
286-87,299 (5th Cir. 2008) (noting brutality o f petitioner’s 
double homicide as supportive of future dangerousness 
in a case where the defendant also engaged in repeated 
violent conduct in jail, including threatening an officer’s 
family), with Berry v. State, 233 S.W.Sd 847, 864 (Tex. 
Crim. App. 2007) (finding insufficient evidence of future 
dangerousness as a matter of law because— even though 
the defendant brutally murdered her infant child, left 
another infant child in a ditch, and lacked remorse— there 
was no evidence she was likely to be dangerous to anyone 
other than her own children, and a life sentence would 
ensure her incarceration throughout her remaining child­
bearing years). In this case, Mr. Buck never demonstrated 
a propensity for violence outside o f the context o f a 
romantic relationship, and the undisputed record showed 
that he was nonviolent in prison.

Texas also suggests that case law “dealing ] with 
im p rop erly  adm itted  e x p e r t  testim on y  on fu ture 
dangerousness” is more relevant here. Red Br. 24-25 n.6. 
But that precedent only confirms the error in Texas’s 
“ brutality trum ps” argument. Walbey, 309 F. A pp ’x 
at 804 (citing Gardner v. Johnson, 247 F.3d 551, 553 
(5th Cir. 2001)). In Satterwhite v. Texas, 486 U.S. 249, 
259 (1988), this Court found such improperly admitted 
testimony to be prejudicial notwithstanding at least as 
much evidence of future dangerousness as was present



10

here: Mr. Satterwhite had prior convictions for, inter alia, 
aggravated assault and armed robbery; he shot a relative 
in a separate incident; and another psychologist testified 
that Mr. Satterwhite was unable to feel guilt and “would 
be a continuing threat to society through acts o f criminal 
violence.” Id. Texas stresses the harmful nature of the 
expert’s testimony in Satterwhite, see Red Br. 24 n.6, but, 
as discussed, Dr. Quijano’s repeated assertions that Mr. 
Buck’s race increased his probability of criminal violence 
were profoundly harmful.

Consistent with Satterwhite, the Fifth Circuit and 
Texas Court of Criminal Appeals have repeatedly found 
improperly admitted expert testimony, and other future 
dangerousness evidence, to be prejudicial even when the 
untainted evidence of future dangerousness was at least 
as strong as it was here. See, e.g., Gardner, 247 F.3d at 554 
(defendant picked up two fourteen-year-old hitchhikers, 
“ stabbed the male numerous times and left him for dead, 
then took the female to a nearby lake where he stabbed 
her numerous times [and] hit her in the head with a rock 
. . . . ” ); Vanderbilt, 994 F.2d at 191-92 (defendant kidnapped 
and killed a sixteen-year-old, had previously abducted a 
woman at gunpoint and sexually assaulted her, and four 
police officers testified about his reputation for not being- 
peaceful); Thompson v. State, 93 S.W.3d 16,19-20, 28 & 
n.9 (Tex. Crim. App. 2001) (defendant shot and killed his 
ex-girlfriend and her male friend; threatened a deputy in 
a separate incident; and a cellmate reported to authorities 
that he was attempting to hire someone to kill a witness).

Texas also stresses that the combination of a brutal 
crime and evidence of a lack of remorse is “sufficient for 
a Texas jury  to find that a capital defendant presents a



11

continuing threat to society.” Red Br. 26. But Strickland 
is not a sufficiency-of-the-evidence test; the question here 
is not whether there “would not be enough left” to support 
the ju ry ’s death sentence absent Dr. Quijano’s testimony. 
Kyles v. Whitley, 514 U.S. 419, 434-35 (1995) (discussing 
Brady materiality standard, and noting that standard is 
identical to Strickland prejudice). Instead, Strickland 
asks whether there is a “reasonable probability” at least 
one ju ror would have reached a different conclusion 
absent Dr. Quijano’s repeated assertions that Mr. Buck’s 
race increased his likelihood of committing future acts of 
criminal violence. 466 U.S. at 694; see Wiggins v. Smith, 539 
U.S. 510,537 (2003). And, while a “reasonable probability” 
requires a “ substantial” likelihood of a different result, 
Red. Br. 33 (quoting Harrington v. Richter, 562 U.S. 86, 
112 (2011)), it “do[es] not require a defendant to show ‘that 
counsel’s deficient conduct more likely than not altered 
the outcome’ of his penalty proceeding.” Porter, 558 U.S. 
at 44 (quoting Strickland, 466 U.S. at 693-94). Instead, 
Strickland’s prejudice prong asks whether counsel’s error 
“deprive[d] the defendant of a fair trial, a trial whose result 
is reliable.” 466 U.S. at 687.

A  defendant can be deprived o f a fair sentencing 
hearing even if his crime involves both aggravated facts 
and lack of remorse evidence. Indeed, Texas juries have 
repeatedly answered “no” to the future dangerousness 
special issue— and imposed life sentences— in such cases. 
For instance, in Garcia v. State, 2010 W L 4053640, at *3-4 
(Tex. Ct. App. 2010), the jury  answered “ no” to the future 
dangerousness special issue when: the defendant killed 
two taxi drivers on separate days by shooting them in the 
back of the head; a witness testified that the defendant 
“ seemed excited about” having killed the victims; and a



12

fellow inmate testified that the defendant said he should 
have killed a witness to a bank robbery he committed, 
and that the defendant, referring to a prison guard, said: 
“What you do with a motherfucker like that is put three 
in the back of his fucking head.”

Similarly, in Saenz v. State, 421 S.W.3d 725,733 (2014), 
the ju ry  answered “ no” to the future dangerousness 
special issue when, over a course of a month, the defendant 
killed five dialysis patients by injecting their intravenous 
dialysis lines with bleach and poisoned three additional 
patients in the same manner.2 Texas juries also answered 
“no” to the future dangerousness question in cases where: 
the defendant killed his ex-girlfriend’s sister and mother, 
caused the miscarriage of his own child, and jail officials 
testified that he was verbally abusive and smuggled a razor 
blade into his cell;3 and the defendant killed two girls, ages 
2 and 6, in a drive-by shooting.4

2 See also Crimesider Staff, Kimberly Saenz, ex-nurse 
convicted of bleach killings, sentenced to life inprison, CBS News, 
April 2,2012, http://www.cbsnews.com/news/kimberly-saenz-ex- 
nurse-convicted-of-bleach-killings-sentenced-to-life-in-prison/.

3 Craig Kapitan, Jury rejects death sentence, My SanAntonio, 
Oct. 23, 2012, http://www.mysanantonio.com/news/local_news/ 
article/Jury-rejects-death-sentence-3972452.php.

4 See Associated Press, Corpus Christi Man Gets Life in 
Prison for Killing 2 Girls, NBC Dallas Fort Worth News, Feb. 
28,2015, http://www.nbcdfw.com/news/local/Corpus-Christi-Man- 
Gets-Life-in-Prison~for-Killing-2-Girls-294495691.html; http:// 
www.txcourts.gov/media/905882/Nueces-02_26_15-Jury-Charge- 
Sentencing-Brendan-Gaytan.pdf (jury charge).

http://www.cbsnews.com/news/kimberly-saenz-ex-nurse-convicted-of-bleach-killings-sentenced-to-life-in-prison/
http://www.cbsnews.com/news/kimberly-saenz-ex-nurse-convicted-of-bleach-killings-sentenced-to-life-in-prison/
http://www.mysanantonio.com/news/local_news/
http://www.nbcdfw.com/news/local/Corpus-Christi-Man-Gets-Life-in-Prison~for-Killing-2-Girls-294495691.html
http://www.nbcdfw.com/news/local/Corpus-Christi-Man-Gets-Life-in-Prison~for-Killing-2-Girls-294495691.html
http://www.txcourts.gov/media/905882/Nueces-02_26_15-Jury-Charge-Sentencing-Brendan-Gaytan.pdf
http://www.txcourts.gov/media/905882/Nueces-02_26_15-Jury-Charge-Sentencing-Brendan-Gaytan.pdf


13

All of these cases were as aggravated as Mr. Buck’s 
case, if  not more so. Indeed, while Texas stresses Mr. 
Buck’s lack of remorse during and immediately after the 
crime, see Red Br. 27 (citing JA 71a, 89a, 118a, 133-35a), 
in both Garcia and Saenz, the defendant showed a lack 
of remorse well after the crime, including by committing 
additional murders.

Here, by contrast, the ju ry  could have reasonably 
concluded that Mr. Buck’s crying at trial indicated that 
he was remorseful once given an opportunity to reflect on 
his actions. Texas asserts that Mr. Buck’s crying “could 
be viewed as fear of the consequences.” Red Br. 27. But 
the prosecutors who saw Mr. Buck cry never suggested 
such an interpretation, and never challenged Dr. Quijano’s 
testim ony that such cry in g  indicated  rem orse. JA 
182a-83a. Texas cannot deny that at least one juror may 
well have found that Mr. Buck’s crying indicated that 
he is remorseful. Indeed, the Texas Court of Criminal 
Appeals has found it was not harmless to exclude much 
less powerful remorse evidence (i.e., a letter in which the 
defendant expressed sympathy for the victim ’s family 
while seeking to blame others for the crime), in a case 
where the defendant, a registered sex offender, kidnapped 
and killed a five-year-old girl. See Renteria v. State, 206 
S.W.3d 689, 694, 698 (2006).5

5 Mr. Buck recognizes that Phyllis Taylor’s statement that 
Mr. Buck sought and received her forgiveness is not technically 
part of the Strickland analysis. See Red Br. 27. Mr. Buck notes, 
however, that this is the kind of technical argument Texas said 
it would not raise in defending death sentences compromised by 
Dr. Quijano’s race-as-dangerousness testimony.



14

Even assum ing that the future dangerousness 
evidence here was sufficient, it was not overwhelming. 
Although Texas attempts to downplay the point, Red Br. 
32, it cannot dispute that Mr. Buck functioned well in 
prison, and did not have the characteristics (e.g., a gang 
affiliation) considered risk factors for prison violence. 
Blue Br. 42. Nor was there any evidence that Mr. Buck 
had ever been violent outside of the context of a romantic 
relationship with a woman.6 And the undisputed evidence 
established that it was highly unlikely that he would 
develop such a relationship in prison. Blue Br. 41.

This Court need look no further than what actually 
happened at sentencing to reject Texas’s assertion that 
“ [o]n this record, it was manifest that [Mr. Buck] presented 
a future danger.” Red Br. 24. The jury that heard all of the 
aggravating evidence now stressed by Texas was unable 
to make a quick decision. It deliberated for two days, and 
sent out four notes.

Although Texas insists that the length of the ju ry ’s 
deliberations does “not suggest a substantial likelihood” 
o f a d ifferen t resu lt absent Dr. Q uijano’s ra ce -a s- 
dangerousness testimony, Red Br. 32, it never justifies 
that assertion. Nor could it. As this Court explained in 
Parker v. Gladden, 385 U.S. 363,365 (1966), such lengthy 
jury  deliberations “ indicate] a difference among” the 
jurors and support a finding of prejudice. Moreover, while 
we cannot know why jurors requested the psychological

6 C on trary  to T ex a s ’s suggestion , Red Br. 32, the 
circumstances of the instant crime, including Mr. Buck’s shooting 
of his sister, were related to the breakdown of Mr. Buck’s romantic 
relationship with Ms. Gardner. See Blue Br. 4.



15

reports, see Red Br. 33, we do know that, as the ju ry  was 
struggling to determine whether Duane Buck was likely 
to be a future danger, they had before them Dr. Quijano’s 
“expert” report stating that Mr. Buck’s “Race. Black” 
meant an “ [ijnereased probability” he would “ commit 
criminal acts of violence that would constitute a continuing 
threat to society.” JA 18a, 19a.

It is difficult to imagine a death sentence less reliable 
than this one.

III. Mr. Buck’s Case is Extraordinary Within the
Meaning of Federal Rule of Civil Procedure
60(b)(6).

This is the rare habeas case for which relief under 
Rule 60(b)(6) is warranted. Blue Br. 47-54. Mr. Buck’s 
trial counsel knowingly injected an explicit appeal to 
racial bias into Mr. Buck’s capital sentencing hearing; 
this error undermined confidence in Mr. Buck’s death 
sentence and in the criminal justice system overall; after 
conceding error in Saldaho, Texas publicly acknowledged 
that it had no finality interest in six additional death 
sentences, including Mr. Buck’s, which were compromised 
by Dr. Quijano’s race-as-criminal-violence opinion; Texas 
conceded constitutional error and waived procedural 
defenses in five of the cases, but reneged on its commitment 
to Mr. Buck; and this Court’s intervening decisions in 
Martinez and Trevino allow for merits review of Mr. 
Buck’s ineffectiveness claim, which was defaulted because 
of state habeas counsel’s failure to raise it for three years. 
Blue Br. 18-20. These facts are patently extraordinary 
and amply demonstrate Mr. Buck’s entitlement to a COA.



16

A. Trial Counsel’s Knowing Introduction of Dr. 
Quijano’s Explicit Appeal to Racial Bias Is 
Extraordinary.

A s Texas acknowledges, “ [r]ace is an arbitrary, 
emotionally charged factor that has nothing to do with 
individual moral culpability.” Red Br. 1. Yet, Texas insists 
that trial counsel’s introduction of an expert opinion 
that Mr. Buck’s race supported a death sentence is not 
extraordinary within the meaning of Rule 60(b)(6) because 
counsel’s error was not prejudicial. Red Br. 41. As detailed 
above, Texas is wrong: Dr. Quijano’s opinion was uniquely 
harmful, and it is reasonably probable that at least one 
juror would have reached a different conclusion without it.

Moreover, trial counsel’s introduction of Dr. Quijano’s 
race-as-criminal-violence opinion not only prejudiced Mr. 
Buck’s case, it also undermines “public confidence in the 
evenhanded administration of justice.” Davis v. Ayala, 
135 S. Ct. 2187, 2208 (2015); see also JEB v. Alabama ex 
rel. T.B., 511 U.S. 127, 140 (1994) (race discrimination in 
the court system “ invites cynicism respecting the ju ry ’s 
neutrality and its obligation to adhere to the law”); Blue 
Br. 47-49.

Texas cannot dispute the extraordinariness of this 
harm because it was the very reason that Texas took 
the extraordinary step of publicly declaring that it had 
no finality interest in six death sentences, including Mr. 
Buck’s, that were corrupted by Dr. Quijano’s opinion. 
Texas explained: “ it is inappropriate to allow race to be 
considered as a factor in our criminal justice system,” 
and“ [t]he people of Texas want and deserve a system that 
affords the same fairness to everyone.” JA 213a.



17

B. It Is Extraordinary that Texas Recognized Its 
Ordinary Interest in Finality Does Not Apply 
to Mr. Buck’s Death Sentence, But Arbitrarily 
Reversed Course and Pursued Mr. Buck’s 
Execution.

Three years after Mr. Buck’s trial, Texas publicly 
declared that its interest in the fairness of the criminal 
justice system outweighed its ordinary interest in the 
finality of six death sentences, including Mr. Buck’s. Texas 
did so after a “ thorough audit” revealed those cases to be 
“ similar to that of Victor Hugo Saldano,” a case where 
Texas conceded error in this Court because “ 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.” JA 213a. Texas 
announced that it would waive its procedural defenses and 
allow new sentencing hearings in each of the six identified 
cases. See Blue Br. 11 & n.2. Texas sent letters to the 
relevant prosecutors and defense counsel advising them 
of its findings (JA 214a), and filed federal court pleadings 
fulfilling its promise in five of those cases. See Blue Br. 
12 nn. 3-4. In other words, Texas itself recognized that 
this is the “ rare instanceG” when the state’s ordinary 
interest in the “ finality of judgments” must yield. O’Neal 
v. McAninch, 513 U.S. 432, 447 (1995) (Thom as, J., 
dissenting). That is extraordinary.

Because Texas broke its promise to Mr. Buck, he is 
the only prisoner to face execution pursuant to a death 
sentence that Texas itself has declared to be illegitimate. 
This is more extraordinary still: it undermines confidence 
in the justice system; causes the public to lose confidence 
in the impartiality of prosecutors; and encourages a public



18

perception that the justice system is arbitrary. See Br. 
of Former Prosecutors as Amici Curiae in Supp. of Pet. 
17-23.

T h e fo r e g o in g  c ir c u m s ta n c e s  a re  n ot on ly  
ex tra ord in a ry  on their face , they “ju stify [ ]  relief 
from  the judgm ent,” under Rule 60(b). R ed  Br. 44 
(citations omitted). In analyzing whether extraordinary 
circumstances justify relief from  judgment, key factors 
under this Court’s precedent are “ the risk of injustice to 
the parties in the particular case, the risk that the denial 
of relief will produce injustice in other cases, and the risk 
of undermining the public’s confidence in the judicial 
process.” Liljeberg v. Health Servs. Acquisition Corp., 486 
U.S. 847, 864 (1988). All of those factors favor Mr. Buck.

And these circumstances are extraordinary regardless 
of whether or not Texas’s commitment ‘“created legally 
enforceable rights,” ’ Red Br. 44 (quoting JA 260a), 
constituted an independent basis for relief, id. at 43, 
or involved detrim ental reliance by Mr. Buck, id. at 
44. The extraordinariness of Texas’s conduct is simply 
not contingent upon the application of judicial estoppel 
principles. Cf Red Br. 43-44. It is extraordinary because 
it shows that Texas recognized Mr. Buck’s death sentence 
undermines public confidence in the rule of law, such that 
Texas’s ordinary interest in finality does not apply.

Similarly, because Mr. Buck is now able to challenge 
his trial counsel’s knowing introduction of Dr. Quijano’s 
race-as-d an gerou sn ess  opinion, T exas ’s conduct is 
extraordinary even though “ [o'Jnly in Buck’s case did 
defense counsel elicit the race-related testim ony on 
direct examination.” Red Br. 45 (quoting Buck v. Thaler,



19

132 S. Ct. 32, 34-35 (2011) (Alito J.)). As noted, Texas 
acknowledged that it has no interest in the finality of 
death sentences where “ testimony was offered by Dr. 
Quijano that race should be a factor for the ju ry  to 
consider in making its determination about the sentence 
in a capital murder trial.” JA 213a. Thus, by its express 
terms, Texas’s promise focused on the fact that improper 
race-as-dangerousness evidence was admitted in a death 
penalty trial, not on the identity of the party introducing 
it. Indeed, Dr. Quijano’s opinion was even more harmful 
in Mr. Buck’s case because it was first elicited by defense 
counsel and then capitalized on by the prosecutor. See p. 
4, supra.

C. Martinez and Trevino Support a Finding that 
Mr. Buck’s Case is Extraordinary.

W hen Martinez and Trevino are considered in 
combination with the other extraordinary facts and 
circum stances in Mr. Buck’s case, they confirm  Mr. 
Buck’s entitlement to Rule 60(b)(6) relief. As this Court 
recognized in Martinez, a state’s interest in finality is 
lessened when, as here, unreasonable errors by state 
habeas counsel prevent review of whether trial counsel 
fu lfilled  their “ foundation[al]” role o f “ te s t in g ]  the 
prosecution’s case . . . while protecting the rights of the 
person charged.” Martinez v. Ryan, 132 S. Ct. 1309,1317 
(2012); see Blue Br. 52, 56.

Texas contends that M artinez and Trevino do 
not support 60(b) re lie f because “ the overwhelm ing 
aggravating evidence in this case foreclosed petitioner’s 
ability to establish the prejudice element of his ineffective- 
assistance [of counsel] claim.” Red Br. 41. As detailed 
above, this is false.



20

Texas also contends that “Martinez and Trevino do 
not apply retroactively to cases on collateral review.” Red 
Br. 38 (citing, inter alia, Teague v. Lane, 489 U.S. 288, 
299-316 (1989)). Teague, however, applies only to “new 
constitutional rules of criminal procedure,” id. at 310, 
that apply to the trial -  not collateral review -  process. 
Montgomery v. Louisiana, 136 S. Ct. 718, 730 (2016) 
(:Teague governs rules “designed to enhance the accuracy 
of a conviction or sentence by regulating ‘the manner 
of determining the defendant’s culpability.’” ) (citation 
omitted) (emphasis in original)). Because Martinez and 
Trevino are not constitutional rules governing criminal 
trials, see, e.g., Martinez, 132 S. Ct. at 1319, Teague’s 
general rule against retroactivity does not apply. And, 
indeed, Martinez and Trevino were themselves habeas 
cases where the petitioner’s conviction was already 
final.7 See also Neathery v. Stephens, 134 S. Ct. 898 
(2014) (vacating denial of a COA on a defaulted claim of 
trial counsel ineffectiveness, and remanding for further 
proceedings in light of Trevino)-, Haynes v. Thaler, 133 S. 
Ct. 2764 (2013) (same).

Texas has, in any event, waived its Teague argument 
by failing to raise it in the district court, the court of 
appeals, or, indeed, in its brief in opposition to certiorari. 
See Schiro v. Farley, 510 U.S. 222, 228-29 (1994).

7 In re Paredes, 587 F. A pp’x 805 (5th Cir. 2014) (per 
curiam), does not support Texas’s position. Paredes explained 
that Martinez and Trevino did not announce a new retroactive, 
constitutional rule that would support a successive petition under 
28 U.S.C. § 2244.See id. at 812. But that was only after the Court 
of Appeals recognized that Martinez and Trevino were properly 
(if, in that case, unsuccessfully) raised in a Rule 60(b) motion 
seeking to reopen an earlier habeas proceeding. See id. at 818-19; 
see generally Coe v. Thurman, 922 F.2d 528, 534 (9th Cir. 1991).



21

Texas also claims that “ in this second Rule 60(b) motion, 
petitioner seeks to relitigate an ineffective assistance 
claim that he did not even raise in his first Rule 60(b)(6) 
motion,” which “ makes Martinez and Trevino even less 
relevant.” Red Br. 36,41-42. But, as Texas acknowledges, 
see id. at 38 n.8, when Mr. Buck litigated his first 60(b) 
motion, Coleman v. Thompson, 501 U.S. 722 (1991), stood 
as an “unqualified” bar to relief on Mr. Buck’s defaulted 
claim of trial counsel ineffectiveness. Trevino v. Thaler, 
133 S. Ct. 1911, 1917 (2013). Mr. Buck therefore pursued 
the viable, albeit ultimately unsuccessful, argument that 
Texas’s “misleading remarks and omissions,” Buck, 132 
S. Ct. at 35 (Sotomayor, J. dissenting), constituted a fraud 
on the court. See Buck v. Stephens, 623 F. App’x 668, 
670 (5th Cir. 2015), cert, granted, 136 S. Ct. 2409 (2016). 
When Martinez and Trevino m odified Coleman and, 
for the first time, afforded Mr. Buck an opportunity for 
federal review of his ineffectiveness claim, Mr. Buck filed 
the instant Rule 60(b)(6) motion. That Mr. Buck did not 
previously seek relief on a defaulted claim of trial counsel 
ineffectiveness reflects the state o f the law in 2011, not a 
failure of diligence.

Martinez and Trevino support Rule 60(b) relief.

D. The District Court’s Decision to Deny Rule 
60(b) Relief Constitutes an Abuse of Discretion.

The District Court abused its discretion in denying 
Mr. Buck’s motion for 60(b) relief because that court: (a) 
relied on an error of law; (b) failed to take into account key 
circumstances supporting relief; and (c) failed to adhere 
to the purpose of Rule 60(b).



22

F irst, although the Rule 60(b) standard is fa ct­
intensive, see Red Br. 35, a court necessarily abuses 
its discretion when its application of that fact-intensive 
standard is premised on an error of law. Highmark Inc. v. 
Allcare Health Mgmt. Sys. Inc., 134 S. Ct. 1744,1748 n.2 
(2014). That is precisely what happened here. The District 
Court recognized that Mr. Buck’s trial counsel “recklessly 
exposed his client to the risks of racial prejudice and 
introduced testimony that was contrary to his client’s 
interests,” JA 364a, but concluded that this error did not 
support Rule 60(b) relief because Dr. Quijano’s opinion had 
a “de minimis” impact on Mr. Buck’s capital sentencing, 
JA 259a, 272a. The District Court’s conclusion— which was 
premised on its review of the state court record and did 
not involve any findings of discrete, historical fact— was a 
legal error subject to de novo review. See, e.g., Rompilla 
v. Beard, 545 U.S. 374, 390 (2005) (conducting de novo 
review of Strickland prejudice because state court had 
not reached the issue, without according any deference 
to decisions of lower federal courts) (citing Wiggins, 539 
U.S. at 534). For the reasons stated above and in Mr. 
Buck’s opening brief, Dr. Quijano’s testimony undermines 
confidence in Mr. Buck’s death sentence.

Second, the District Court failed to acknowledge that 
trial counsel’s conduct in this case not only affected Mr. 
Buck, but also put “ the very integrity o f the courts [in] 
jeopard[y].” Miller-El v. Dretke, 545 U.S. 231,238 (2005). 
The integrity of the judicial system is a key factor in 
evaluating the propriety of relief under Rule 60(b)(6), see 
Liljeberg, 486 U.S. at 866, and the District Court’s failure 
to consider it was likewise an abuse of discretion. See, e.g., 
United States v. Taylor, 487 U.S. 326, 342 (1988).



And, third, the D istrict Court’s failure to adhere 
to Rule 60(b)’s fundamental objective o f providing a 
vehicle for vacating judgments where justice so requires 
constitutes an abuse of discretion. See Liljeberg, 486 U.S. 
at 864.

Mr. Buck respectfully submits that this Court should 
find the District Court abused its discretion in denying 
relief under Rule 60(b)(6). At a minimum, reasonable 
jurists would conclude that the District Court’s decision 
is debatable, and a COA is required.



24

CONCLUSION

No constitutional principle is more fundamental than 
the rule that a defendant’s race must play no role in a 
criminal trial. This Court has therefore been united in 
its “ unceasing efforts to eradicate racial prejudice from 
our criminal justice system,” when confronted with direct 
evidence of race bias in an individual case. McCleskey v. 
Kemp, 481 U.S. 279,309 (1987) (internal citation omitted). 
Allowing Mr. Buck to be executed pursuant to a capital 
sentencing proceeding where an expert repeatedly stated 
that he is more likely to commit future acts of criminal 
violence because he is Black would make a mockery of that 
commitment. A  COA should issue.

Respectfully submitted,
K athryn M. Kase 
K atherine C. Black 
T exas D efender Service 
1927 Blodgett Street 
Houston, TX  77004 
(713) 222-7788

Samuel Spital 
Benjamin R. W ilson 
Holland & K night LLP  
31 West 52nd Street 
New York, N Y 10019 
(212) 513-3200

Sherrilyn Ifill 
Janai Nelson 
Christina A. Swarns 

Counsel of Record 
Jin H ee L ee 
Raymond A udain 
Natasha M erle 
NAACP L egal D efense 

& E ducational F und, Inc, 
40 Rector Street, 5th Floor 
New York, N Y 10006 
(212) 965-2200 
cswarns@naacpldf.org

Counsel for Petitioner

September 28, 2016

mailto:cswarns@naacpldf.org