Buck v Davis Brief for Petitioner

    No. 15-8049

In the

Supreme (Enurt of the United Status

Duane E dward Buck,
Petitioner,

v.
L orie Davis, Director,

Texas D epartment Of Criminal Justice, 
Correctional Institutions D ivision,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR PETITIONER

Kathryn M. K ase 
Katherine C. Black 
Texas Defender Service 
1927 Blodgett Street 
Houston, TX 77004 
kateblack@texasdefender.org 
(713) 222-7788

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

Sherrilyn Ifill 
Janai Nelson 
Christina A. Swarns 

Counsel of Record 
Jin Hee L ee 
Natasha M. Korgaonkar 
Natasha M erle 
NAACP Legal Defense 

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

Counsel for Petitioner

July 28, 2016

266783

mailto:kateblack@texasdefender.org
mailto:samuel.spital@hklaw.com
mailto:cswarns@naacpldf.org


QUESTION PRESENTED

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?



TABLE OF CONTENTS

QUESTION P R E S E N T E D ..................................................i

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

OPINIONS BELOW .................................................................1

JURISDICTION....................................................................... 1

R E L E V A N T  C O N S T IT U T IO N A L  A N D  
STATUTORY PROVISIONS...........................................1

STATEMENT OF THE C A S E .......................................... 3

I. Introduction...................................................................3

II. The Capital Trial Proceedings................................4

III. Post-Conviction Proceedings....................................9

A. Mr. Buck’s Initial State Habeas Petition . .  .9

B. Texas Concedes Error..................................... 10

C. Subsequent State Habeas Proceedings. .  .13

D. Federal Habeas Proceedings.......................13

E. M r. B uck ’s 2013 State H abeas  
Application and the Trevino Decision . . . .  16

Page



I l l

Table of Contents

F. Mr. Buck’s Post-Trevino Federal
Habeas Proceedings.................................... 18

SUMMARY OF THE ARGUMENT............................ 22

ARGUMENT...............   23

I. Trial Counsel Rendered Ineffective 
Assistance by Presenting an “ Expert” 
Opinion that Mr. Buck Is More Likely 
to be Dangerous in the Future Because 
He Is Black..............................................    .24

A. The District Court Correctly Recognized 
that Counsel Performed Deficiently 
by Knowingly Exposing Mr. Buck to
the Risks of Racial Prejudice..................... 26

B. The District Court Erred by Concluding
that Mr. Buck Was Not Prejudiced by 
His Trial Counsel’s Constitutionally 
Deficient Performance..................................33

1. Dr. Quijano’s Race-as-Dangerous
Opinion Was Highly Prejudicial...........34

2. The Facts of the Crime Do Not 
Eclipse the Prejudice Caused by 
Counsel’s Recklessly Exposing Mr.
Buck to Racial Bias............................... 39

Page



IV

Table of Contents

II. Mr. Buck is Entitled to a COA Because 
Jurists of Reason Would Find the District 
Court’s Ruling on Mr. Buck’s 60(b)(6) 
Motion Debatable or Wrong.................................... 44

A. Requirem ents for R elief Under
Rule 60(b)(6)........................................................45

B. Mr. Buck’s Case Is Extraordinary
Within the Meaning of Rule 60(b)(6)............47

1. The Risk of Injustice to Mr. Buck . . .  .47

2. The R isk  of U n d erm in in g  
Public Confidence in the Justice 
System and the Risk of Injustice
in Other C ases...........................................49

3. The Probable Merit of Mr. Buck’s
Ineffectiveness C laim ..............................51

4. Texas’s Interest in Finality.................. 52

5. Mr. Buck’s Diligence................................53

6. Conclusion................................................... 54

C. Reasonable Jurists Could Conclude 
that the Lower Courts’ Denial of Mr.
Buck’s Application for Rule 60(b)(6)
Relief Was Debatable or Wrong.................... 54

Page



V

Table of Contents

Page
CONCLUSION........................................... .................. 59

APPENDIX A ............................................................... la



VI

TABLE OF AUTHORITIES

CASES:

Ackermann v. United States,
340 U.S. 193 (1950)........................................................... 46

Agostini v. Felton,
521 U.S. 203 (1997)...........................................................56

Alba v. Johnson,
No. 00-40194, 2000 W L  1272983
(5th Cir. Aug. 21, 2 0 0 0 )............................................ .... .12

Albermarle Paper Co. v. Moody,
422 U.S. 405 (1975)............................................................ 54

Allison v. State,
248 S.W.2d 147 (Tex. Crim. App. 1952)...................... 34

Bobby v. Van Hook,
558 U.S. 4 (2009)................................................................ 27

Bruton v. United States,
391 U.S. 123 (1968)............................................................34

Bryant v. State,
25 S.W.3d 924 (Tex. Ct, App. 2000).............................38

Buck v. Thaler,
132 S. Ct. 1085(2012)...........................................   15

Page(s)



Vll

Buck v. Thaler,
132 S. Ct. 32 (2011)............................................passim

Buck v. Thaler,
132 S. Ct. 69(2011).................................................... 15

Buck v. Thaler,
345 F. App’x 923 (5th Cir. 2009)....................15,16, 30

Buckv. Thaler,
452 F. App’x 423 (5th Cir. 2011).............................. 15

Buck v. Thaler,
559 U.S. 1072(2010)..........................................15

Cofield v. State,
82 S.E. 355 (Ga. Ct. App. 1914)................................. 37

Coleman v. Thompson,
501 U.S. 722 (1991).................................... ................ 15

Cooler & Cell v. Hartmax Corp.,
496 U.S. 384 (1990)..................................................... 54

Cox v. Horn,
757 F.3d 113 (3d Cir. 2014)......................................... 58

Davis v. Ayala,
135 S. Ct. 2187(2015)........................................... 50, 57

Page(s)



m n

Derrick v. State,
272 S.W. 458 (1925)..................................................... 25, 37

Detrich v. Ryan,
740 F.3d 1237 (9th Cir. 2013).......................................... 46

Dewberry v. State,
4 S.W.3d 735 (Tex. Crim. App. 1999)...........................41

Dinklage v. State,
185 S.W.2d 573 (Tex. Crim. App. 1945)...................... 37

Ex parte Buck,
418 S.W.3d 98 (Tex. Crim. App. 2013),
cert, denied, 134 S. Ct. 2663 (2014)............. .... 9,17, 48

Ex parte Medina,
361 S.W.3d 633 (Tex. Crim. App. 2011)........................ 9

Ex parte Williams,
No. AP-76455, 2012 W L  2130951
(Tex. Crim. App. June 3, 2012)......................................42

Flores v. Johnson,
210 F.3d 456 (5th Cir. 2000)............................................ 35

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

Page(s)

40-41



IX

Gideon v. Wainwright,
372U.S.335 (1963)........................ ................ . . . . .5 6

Godfrey v. Georgia,
496 U.S. 420 (1980)......................................................28

Gonzalez v. Crosby,
545 U.S. 524 (2005)...........................................passim

Harrington v. Richter,
562 U.S. 86 (2011)........................................................33

Hazel-Atlas Glass Co. v. Hartford-Empire Co.,
322 U.S. 238 (1944).................................   45

Hinton v. Alabama,,
134 S. Ct. 1081 (2014).......... .....................................28

In re Murchison,
349 U.S. 133 (1955).....................................................51

Irwin v. Dowd,
366 U.S. 717 (1961)...................................................... 36

JEB v. Alabama ex rel, T.B.,
511 U.S. 127 (1994)............................................... 49, 50

Johnson v. Rose,
546 F.2d 678 (6th Cir. 1976)...................................... 38

Page(s)



X

Page(s)

Jordan v. Fisher,
135 S. Ct. 2647 (2015).....................................................21

Kelly v. State,
824 S.W.2d 568 (Tex. Crim. App. 1992)...................... 18

Klapprott v. United States,
335 U.S. 601 (1949)......... ................................... 45, 55, 56

Kyles v. Whitley,
514 U.S. 419 (1995).......................................................... 44

Liljeberg v. Health Sews. Acquisition Corp.,
486 U.S. 847 (1988)........................................46-47, 51, 54

Louisiana v. Bessa,
38 So. 985 (La. 1905)......................................................37

Mackey v. United States,
401 U.S. 667 (1971)............................................................ 53

Martinez v. Ryan,
132 S. Ct. 1309 (2012).........................................passim

McCleskey v. Kemp,
481 U.S. 279 (1987)............................................................50

Miller-El v. Cockrell,
537 U.S. 322 (2003).............................................passim



XI

Miller-El v Dretke,
545 U.S. 231 (2005)....................................... 28, 39, 50

Murray v. Carrier,
477 U.S. 478 (1986)..................................................... 52

North Carolina v. Parker,
315 N.C. 249 (1985)......................................................42

Parker v. Gladden,
385 U.S. 363 (1966)......................................................44

Plant v. Spendthrift, Farm, Inc.,
514 U.S. 211 (1995)......................................................45

Porter v. Att’y Gen.,
552 F.3d 1260 (11th Cir. 2008)................................... 39

Porter v. McCollum,
558 U.S. 30 (2009)................................................. 39, 40

Powell v. Alabama,
287 U.S. 45(1932)............................ ................ . .27

Powers v. Ohio,
499 U.S. 400 (1991)...................   34,49

Ramirez v. United States,
799 F.3d 845 (7th Cir. 2015).......................... .55, 58

Page(s)



xii

Reed v. Ross,
468 U.S. 1 (1984)................................................................. 52

Reed v. State,
99 So. 2d 455 (Miss. 1958)...............................................37

Romano v. Oklahoma,
512 U.S. 1 ( 1 9 9 4 ) . . . . . ......................................................28

Roper v. Weaver,
550 U.S. 598 (2 0 0 7 )................................................... 49, 56

Saldaho v. State,
70 S.W.3d 873 (Tex. Crim. App. 2002).........................10

Saldaho v. Texas,
530 U.S. 1212(2000)...........................................................10

Satterwhite v. Texas,
486 U.S. 249 (1988)..................................................... 35, 40

Sears v. Upton,
561 U.S. 945 (2010).............................................................40

Slack v. McDaniel,
529 U.S. 529 (2000)..............................................   .23-24

Strauder v. West Virginia,
100 U.S. 303 (1880)............................................................ 28

Page(s)



Xlll

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

Taylor v. Kentucky,
436 U.S. 478 (1978).............................................   .34

Texas Emp’rs Ins. Ass’n v. Guerrero,
800 S.W.2d 859 (Tex. App. 1990)........ ..................... 38

Trevino v. Thaler,
133 S. Ct. 1911 (2013)........ ............................... passim

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

United States v. Cruz,
981 F.2d 659 (2d Cir. 1992)................... 34, 38

United States v. Garza,
608 F.2d 659 (5th Cir. 1979)................... .................. 36

United States v. Haynes,
466 F.2d 1260 (5th Cir. 1972)....................................38

United States v. Webster,
162 F.3d 308 (5th Cir. 1998)....................................... 48

Walbey v. Quaterman,
309 F. App’x 765 (5th Cir. 2009)............................ .40

Page(s)



XIV

Welch v. United States,
136 S. Ct. 1257(2016)......................................................53

Wiggins v. Smith,
539 U.S. 510(2003)............................................................ 33

Williams v. Taylor,
529 U.S. 362 (2000)............................................................ 40

Zant v. Stephens,
462 U.S. 862 (1983)............................................................ 28

CONSTITUTIONAL PROVISIONS:

U.S. Const, amend. V I .................................................26, 53

STATUTES:

28 U.S.C.
§ 2253(c)(2)...................     .24
§ 2254(d)(1)..........................................................................40

RULES:

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

Tex. Code Crim. Proc. Ann. art. 37.071 § 2
(West 2013)............................................................................5

Tex. R. Evid. 705(c)................................................................. 18

Page(s)



XV

OTH ER AUTHORITIES:

ABA: Guidelines fo r  the Appointment and. 
Performance of Counsel in Death Penalty 
Cases, Am erican Bar Association (1989), 
available at http://www.americanbar.org/ 
content/dam/aba/migrated/2011_build/death_ 
penalty_representation /1989guidelines. 
authcheckdam.pdf............................ ......................... 46

Eberhardt, Jennifer L., et al., Looking Deathworthy: 
Perceived Stereotypicality of Black Defendants 
Predicts Capital Sentencing Outcomes 384 
(Cornell L. Fac. Publ’ns 2006), available at http:// 
scholarship.law.cornell.edu/cgi/viewcontent. 
cgi?article=1040&context=lsrp_papers................. .50

Kimberly, James, Death Penalties of 6 in Jeopardy: 
Attorney General Gives Result of Probe into 
Race Testimony, Hou. Chron., June 10, 2000, 
at A l, available at https://advance.lexis. 
com/api/permalink/0147fb80-a512-4a2b-88ff- 
9a6f07fl84d9/?context=1000516;.....................   .11

Liptak, Adam, A Law yer Known Best fo r  
Losing Capital Cases, N.Y. Times, May 17,
2010, available at www.nytimes.com/2010/ 
05/18/us/18bar.html.......................................................5

Page(s)

http://www.americanbar.org/
https://advance.lexis
http://www.nytimes.com/2010/


XVI

Page(s)

Monahan, J., et al., Rethinking R isk A ssessment:
T he MacA rthur Study of M ental D isorder 
and Violence, Oxford Univ. Press (2001)..................5

Swanson, J. W., et al., Violence and Psychiatric 
Disorder in the Community: Evidence from  
the Epidemiologic Catchment Area Surveys,
41 Hosp. & Comm. Psych., 761-770 (1990)..................5

11 W rig h t, C ., A . M iller , & M. K ane, 
Federal P ractice  and Procedure § 2857 
(2d ed. 1995 and Supp. 2004)......................................47

Yardley, Jim, Racial Bias Found in Six More Capital 
Cases, N.Y. T imes, June 10, 2000, available at 
http://www.nytimes.eom/2000/06/ll/us/racial- 
bias-found-in-six-more-capital-cases.html. . . . 11

http://www.nytimes.eom/2000/06/ll/us/racial-bias-found-in-six-more-capital-cases.html
http://www.nytimes.eom/2000/06/ll/us/racial-bias-found-in-six-more-capital-cases.html


1

OPINIONS BELOW

The November 6,2015 opinion of the Court of Appeals 
denying rehearing en banc (Joint Appendix (“JA”) 288a) is 
available at 2015 W L 6874749 (5th Cir. Nov. 6, 2015). The 
August 20, 2015 panel opinion of the Court of Appeals 
denying Mr. Buck a COA (JA 274a) is reported at 623 
F. App’x 668. The March 11, 2015 Order of the United 
States District Court for the Southern District of Texas 
denying Mr. Buck’s motion to alter or amend that Court’s 
prior judgment (JA 269a) is unreported. The August 
29, 2014 Memorandum and Order of the United States 
District Court for the Southern District of Texas denying 
Mr. Buck’s motion for relief from judgment pursuant 
to Federal Rule of Civil Procedure 60(b) (JA 249a) is 
unreported. The July 24,2006 Memorandum and Order of 
the United States District Court for the Southern District 
of Texas denying Mr. Buck’s Petition for Writ of Habeas 
Corpus (JA 219a) is unreported.

JURISDICTION

The Court of Appeals entered its judgment on 
November 6, 2015. This Court has jurisdiction under 28 
U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL 
AND STATUTORY PROVISIONS

This case involves a state criminal defendant’s 
constitutional rights under the Sixth, Eighth, and 
Fourteenth Amendments. The Sixth Amendment provides 
in relevant part:



2

In all criminal prosecutions, the accused shall 
enjoy the right to . . . have the assistance of 
counsel for his defense.

The Eighth Amendment provides:

Excessive bail shall not be required, nor 
excessive fines imposed, nor cruel and unusual 
punishments inflicted.

The Fourteenth Amendment provides in relevant part:

[N]or shall any State . . . deny to any person 
within its jurisdiction the equal protection of 
the laws.

This case also involves the application of 28 U.S.C. 
§ 2253(c), which states:

(1) Unless a circuit justice or judge issues a 
certificate of appealability, an appeal may not 
be taken to the court of appeals from

(A) the final order in a habeas corpus 
proceeding in which the detention complained 
of arises out of process issued by a State court;

(2) A  certificate of appealability may issue 
under paragraph (1) only if the applicant has 
made a substantial showing of the denial of a 
constitutional right.



3

STATEMENT OF THE CASE 

I. Introduction

This is an extraordinary case. Duane Buck is a 
Black man whose own attorneys presented an “expert” 
opinion that he is more likely to commit future acts of 
violence— and was therefore more deserving of a death 
sentence under Texas law— because of his race. The 
State of Texas conceded that this race-as-dangerousness 
testimony is constitutionally prohibited and undermines 
public confidence in the criminal justice system. Texas 
subsequently promised that it would not oppose new 
sentencing hearings in seven capital cases— including Mr. 
Buck’s— that were corrupted by race-as-dangerousness 
testimony from the same expert. Texas kept its promise 
in six of those cases, but reneged on its promise to Mr. 
Buck alone. When Mr. Buck filed his federal habeas 
petition raising, inter alia, an ineffective assistance of 
counsel (“IAC”) claim that challenged his trial counsel’s 
presentation of the race-as-dangerousness “expert” 
opinion, Texas successfully argued that the claim was 
procedurally defaulted because Mr. Buck’s state habeas 
counsel failed to raise the claim in a timely manner.

Intervening precedent from this Court establishes 
that the procedural default urged by Texas, and accepted 
by the District Court when it denied Mr. Buck’s habeas 
petition, no longer prevents merits review of Mr. Buck’s 
IAC claim. Yet, when Mr. Buck sought to reopen the 
judgment based on the confluence of circumstances that 
render his case extraordinary, the lower courts improperly 
denied relief and concluded that Mr. Buck was not even 
able to satisfy the threshold showing necessary for a



4

Certificate of Appealability (“COA”). As a result, a death 
sentence tainted by egregious racial bias remains intact, 
and the legitimacy of our criminal justice system has been 
seriously undermined.

II. The Capital Trial Proceedings

In 1996, Mr. Buck was charged with capital murder 
in connection with the shooting deaths of Debra Gardner 
and Kenneth Butler. The evidence at trial showed that 
in the early morning hours of July 30, 1995, Mr. Butler, 
his brother Harold Ebnezer, Mr. Buck’s step-sister 
Phyllis Taylor, and Debra Gardner were gathered at 
Ms. Gardner’s home. Mr. Buck had been in a romantic 
relationship with Ms. Gardner that ended two or three 
weeks earlier. Mr. Buck forced his way into the home, 
argued with and struck Ms. Gardner, stated that he was 
there to pick up his clothes, retrieved a few items, and 
then left. JA 250a-251a. Believing Ms. Gardner was 
sleeping with Mr. Butler, JA 251a, Mr. Buck returned to 
the home a few hours later with a rifle and a shotgun. He 
attempted to shoot Mr. Ebnezer but missed. Mr. Buck then 
shot Ms. Taylor and Mr. Butler. Ms. Gardner fled into the 
street. Mr. Buck followed, and shot her while her children 
were watching. Ms. Taylor survived but Mr. Butler and 
Ms. Gardner died from their wounds. JA 251a-252a. A  
police officer testified that after Mr. Buck was arrested 
at the scene, he laughed and stated, “The bitch deserved 
what she got.” JA 252a, 262a.

A t trial, Mr. Buck was represented by court- 
appointed counsel, Danny E asterling and Jerry  
Guerinot. Mr. Guerinot’s history of providing inadequate 
representation to capitally charged clients is well



5

documented: “ Twenty of Mr. Guerinot’s clients [were] 
sentenced to death.” Adam Liptak, A Lawyer Known 
Best for Losing Capital Cases, N.Y. Times, May 17, 2010, 
available at www.nytimes.com/2010/05/18/us/18bar. 
html.

Prior to trial, Mr. Buck’s counsel received a report 
from Dr. Walter Quijano, one of two psychologists retained 
by the defense, to assess, inter alia, whether Mr. Buck was 
likely to commit criminal acts of violence in the future. 
“Future dangerousness” is one of the “special issues” that 
a Texas jury must find to exist— unanimously and beyond 
a reasonable doubt— before a defendant may be sentenced 
to death. See Tex. Code Crim. Proc. art. 37.071 § 2 (West 
2013). In his report, Dr. Quijano opined that being “Black” 
was a “statistical factor” that “Increased [the] probability” 
Mr. Buck would commit future acts of criminal violence. 
JA 18a-19a, 35a-36a; see Buck v. Thaler, 132 S. Ct. 32,33 
(2011) (Statement of Alito, J.). This purported link between 
race and future dangerousness had been discredited well 
before Mr. Buck’s trial.1

Future dangerousness was the central disputed 
issue at the sentencing phase of Mr. Buck’s trial. In 
an effort to make its case, the prosecution emphasized 
the facts of the capital crime and called Mr. Buck’s 
ex-girlfriend, Vivian Jackson, to testify that Mr. Buck

1 See J. W. Swanson et al., Violence and Psychiatric Disorder 
in the Community: Evidence from the Epidemiologic Catchment 
Area Surveys, 41 Hosp. & Comm. Psych., 761-70 (1990) (when 
controlling for socioeconomic status, correlations between race 
and violence disappear); see also J. Monahan et. ah, Rethinking 
R isk A ssessment: T he MacA rthur Study of Mental D isorder 
and Violence, Oxford Univ. Press (2001) (same).

http://www.nytimes.com/2010/05/18/us/18bar


6

abused her, especially at the end of their relationship. JA 
125a-127a. The prosecution presented no evidence that 
Mr. Buck had been violent outside the context of romantic 
relationships. Indeed, although the prosecution submitted 
records demonstrating that Mr. Buck had previously been 
convicted of delivery of cocaine and unlawfully carrying 
a weapon, JA 185a; Tr. 5-28, Buck v. Stephens, No. 4:04- 
cv-03965 (S.D. Tex. June 24, 2005), ECF No. 5-111, pp. 
17-40, none of Mr. Buck’s prior convictions were for crimes 
of violence.

The defense presented testimony from Mr. Buck’s 
father James Buck, his stepmother Sharon Buck, his 
sister Monique Winn, and Reverend J. C. Neal. Tr. 76-79, 
Buck, No. 4:04-cv-03965 (S.D. Tex. June 24, 2005), ECF 
No. 5-113, pp. 9-12. These witnesses, who had known 
Mr. Buck most, if not all, of his life, testified that they 
had never known Mr. Buck to be violent. In addition, the 
defense presented the testimony of psychologist Patrick 
Lawrence. Dr. Lawrence had previously appeared on 
behalf of both the prosecution and defense in Texas 
courts, and, over the prior 25 years, evaluated roughly 
900 prisoners convicted of homicide. See Tr. 177,182-186, 
188-204, 205-06, id. at ECF Nos. 5-115, pp. 34, 39-41; 
5-116, pp. 5-21.

Dr. Lawrence testified that Mr. Buck was not likely 
to be dangerous in the future. JA 193a, 223a. He based 
his opinion on, inter alia, the undisputed facts that: 
Mr. Buck was unlikely to develop a romantic relationship 
with a woman in prison, and Mr. Buck’s records showed 
he “did not present any problems in the prison setting” 
and, indeed, had been held in minimum security custody. 
See Tr. 196, Buck, No. 4:04-cv-03965 (S.D. Tex. June



7

24, 2005), ECF No. 5-116, p. 13. Dr. Lawrence also 
testified that intellectual testing revealed Mr. Buck has 
an IQ of 75, “which suggests that he functions within the 
borderline intellectual range of the population at about 
the 4 percentile.” Tr. 189, id. at p. 6.

Despite the absence of evidence suggesting that 
Mr. Buck was likely to be dangerous outside of the 
context of a domestic relationship with a woman, defense 
counsel also presented Dr. Quijano’s “expert” opinion 
that Mr. Buck was more likely to commit future crimes of 
violence because he is Black. Even though Dr. Quijano’s 
report identified Mr. Buck’s “race” as a “statistical 
factor” that increased his probability of being a future 
danger, defense counsel specifically asked Dr. Quijano to 
recount the “statistical factors or environmental factors” 
relevant to assessing the future dangerousness of a 
person “such as Mr. Buck.” JA 145a-146a. Dr. Quijano’s 
response tracked his report. He testified that “race” was 
among the “statistical factors he considered in deciding 
whether a person will or will not constitute a continued 
danger” because “ [ijt’s a sad commentary that minorities, 
Hispanics and black people, are over represented in the 
Criminal Justice System.” JA 146a.

On cross-examination, the trial prosecutor exploited 
defense counsel’s introduction of Dr. Quijano’s race-as- 
dangerousness testimony:

Q: 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?



A: Yes.

JA 170a.

At defense counsel’s request, and over the prosecution’s 
objection, Dr. Quijano’s report detailing his opinion (“Race. 
Black. Increased probability” of future dangerousness) 
was admitted into evidence and made available to the jury 
during deliberations. JA 151a-152a.

Future dangerousness was the focus of both the 
prosecution’s and the defense’s closing arguments. JA 
187a-196a (defense closing); JA 196a-206a (prosecution 
closing). Indeed, the lead prosecutor urged the jury to 
rely on Mr. Buck’s own expert to find that he was likely to 
be dangerous in the future: “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 
[Mr. Buck] would commit future acts of violence.” JA 198a.

The jury deliberated over the course of two days, 
during which time they sent out four notes seeking further 
instruction, as well as the opportunity to review, inter alia, 
Dr. Quijano’s report. JA 209a. The jury ultimately found 
that Mr. Buck was likely to be a future danger, and he 
was sentenced to death. Mr. Buck’s conviction and death 
sentence were affirmed on direct appeal. Buck v. State, 
No. 72,810 (Tex. Crim. App. 1999) (unpublished).



9

III. Post-Conviction Proceedings

A. Mr. Buck’s Initial State Habeas Petition

In March of 1999, Mi'. Buck’s newly appointed counsel, 
Robin Norris, filed his initial state habeas application. 
Like Mr. Buck’s trial counsel, Mr. Norris has a troubling 
pattern of deficient representation of death-sentenced 
prisoners. In another capital case, the Texas Court of 
Criminal Appeals (“CCA”) found that Mr. Norris threw 
his client “under the bus” by filing an initial state habeas 
application that was “only four pages long and merely 
statefd] factual and legal conclusions.” Ex parte Medina, 
361 S.W.3d 633, 635-36 (Tex. Grim. App. 2011). His 
representation of Mr. Buck was characterized by similar 
deficiencies.

As explained by three Judges of the CCA, Mr. 
Norris “filed only non-cognizable or frivolous claims in 
[Mr. Buck’s] initial application.” Ex parte Buck, 418 S.W.3d 
98,107 (Tex. Grim. App. 2013) (Alcala, J., joined by Price 
and Johnson, JJ.), cert, denied, 134 S. Ct. 2663 (2014). 
“ [Tjhree of the four claims . . . were raised and rejected 
on direct appeal and, therefore, under the longstanding 
precedent of [the CCA], those claims were not cognizable 
on a post-conviction writ of habeas corpus.” Id. at 102. The 
fourth claim was “wholly frivolous” because it asserted 
that “ [Mr. Buck’s] trial counsel [were] ineffective for 
failing to request a jury instruction based on a non­
existent provision of the penal code.” Id. Mr. Norris failed 
to challenge trial counsel’s introduction of Dr. Quijano’s 
“expert” opinion that Mr. Buck’s race increased his 
likelihood of committing future acts of criminal violence.



10

B. Texas Concedes Error.

One year after the filing of Mr. Buck’s state habeas 
application, another capital case involving Dr. Quijano’s 
race-as-dangerousness opinion reached this Court. 
In Saldano v. Texas, No. 99-8119, Dr. Quijano served 
as a prosecution witness and offered his “expert” 
opinion that a defendant’s race or ethnicity is one of 
the “identifying markers” that increases the likelihood 
of future dangerousness. Saldano v. State, 70 S.W.Sd 
873, 884-85 (Tex. Crim. App. 2002). After the CCA  
affirmed Mr. Saldano’s conviction and sentence, he filed a 
certiorari petition asking this Court to decide “[wjhether 
a defendant’s race or ethnic background may ever be used 
as an aggravating circumstance in the punishment phase 
of a capital murder trial in which the State seeks the death 
penalty.” Saldano, 70 S.W.Sd at 875.

Speaking through then-Attorney General John 
Cornyn, Texas conceded error. In its response to the 
petition, Texas acknowledged that the “infusion of race as 
a factor for the jury to weigh in making its determination 
violated [Mr. Saldano’s] constitutional right to be sentenced 
without regard to the color of his skin.” JA 306a. Texas 
further recognized that “‘[d]iscrimination on the basis of 
race, odious in all aspects, is especially pernicious in the 
administration of justice,”’ and that “the use of race in 
Saldano’s sentencing seriously undermined the fairness, 
integrity, or public reputation of the judicial process.” JA 
304a-305a. On June 5,2000, this Court granted certiorari, 
vacated the CCA’s judgment, and remanded for further 
consideration in light of Texas’s concession. Saldano v. 
Texas, 530 U.S. 1212 (2000).



11

Four days later, then-Attorney General Cornyn issued 
a press release stating that his office had conducted “a 
thorough audit of cases” and identified six other capital 
cases involving Dr. Quijano’s testimony that “are similar 
to that of Victor Hugo Saldano.” JA 213a. The prisoners 
in those cases were: Gustavo Garcia, Eugene Broxton, 
John Alba, Michael Gonzales, Carl Blue, and Duane Buck. 
JA 215a-217a. The Attorney General did not distinguish 
between the cases in which Dr. Quijano was called by 
the prosecution or the defense. Indeed, in three of the 
cases identified by the Attorney General (Mr. Broxton’s, 
Mr. Gonzales’s, and Mr. Garcia’s), the prosecution called 
Dr. Quijano; in the three other cases (Mr. Alba's, Mr. 
Blue’s, and Mr. Buck’s), Dr. Quijano was a defense 
witness. JA 215a. The Attorney General stressed that “ it 
is inappropriate to allow race to be considered as a factor 
in our criminal justice system,” and that the “people of 
Texas want and deserve a system that affords the same 
fairness to everyone.” JA 213a-214a.

In a separate statement to the media, the Attorney 
General’s spokesperson announced that Texas would 
not oppose federal habeas claims for relief based on 
Dr. Quijano’s unconstitutional, race-based testimony in 
any of the similar-to-SaMcmo cases;2 acknowledged that

2 James Kimberly, Death Penalties of 6 in Jeopardy: 
Attorney General Gives Result of Probe into Race Testimony, 
Hou. Chron., June 10, 2000, at Al, available at https://advance. 
Iexis.com/api/permalink/0147fb80-a512-4a2b-88ff-9a6f07fl84d9/ 
?context=1000516; Jim Yardley, Racial Bias Found in Six More 
Capital Cases, N.Y. T imes, June 10,2000, available at http://www. 
nytimes.com/2000/06/ll/us/racial-bias-found-in-six-more-capital- 
cases.html. Thus, contrary to the Fifth Circuit’s suggestion, see 
JA 277a, the record makes clear that Texas promised to treat Mr.

https://advance
http://www


12

some of the six cases might still be in state court (where 
the Attorney General is not responsible for litigating on 
the State’s behalf); and promised that, if and when those 
cases reached the Attorney General’s Office, they “will 
be handled in a similar manner as the Saldano case.” JA 
281. At the time, only one of the six similar-to-Saldano 
cases was still pending in state court: Mr. Buck’s case.3

Prior to the Attorney General’s admission of error, 
none of the six identified defendants had challenged the 
constitutionality of Dr. Quijano’s testimony. Nonetheless, 
Texas kept its promise, waived all procedural defenses, 
conceded constitutional error, and agreed that a new 
sentencing hearing was required in each case except Mr. 
Buck’s.4

Buck’s case similarly to Saldano, i.e., a case in which it conceded 
error based on Dr. Quijano’s testimony in federal habeas. Mr. 
Buck’s Rule 60(b) motion pled these facts, thus any material 
factual disputes about the details of Texas’s promise are properly 
addressed at an evidentiary hearing.

3 See Opinion and Order at 3, Blue v. Johnson, No. 4:99-cv- 
00350 (S.D. Tex. Sept. 29, 2000), ECF No. 29; Order at 1, Alba 
v. Johnson, No. 4:98-cv-221 (E.D. Tex. Sept. 25, 2000), ECF No. 
31; Order at 1, Garcia v. Johnson, No. l:99-cv-00134 (E.D. Tex. 
Sept. 7, 2000), ECF No. 36; Order at 3, Broxton v. Johnson, No. 
H-00-CV-1034, ECF No. 25; Order at 11, Gonzales v. Cockrell, No. 
7:99-ev-00072 (W.D. Tex. Dec. 19, 2002), ECF No. 84.

4 See Opinion and Order at 15-17, Blue v. Johnson, No. 4:99- 
cv-00350 (S.D. Tex. Sept. 29,2000), ECF No. 29; Alba v. Johnson, 
No. 00-40194, 2000 WL 1272983, at *1 (5th Cir. Aug. 21, 2000); 
Order at 1, Alba v. Johnson, No. 4:98-cv-221 (E.D. Tex. Sept. 25, 
2000), ECF No. 31; Order at 1, Garcia v. Johnson, No. l:99-cv- 
00134 (E.D. Tex. Sept. 7, 2000), ECF No. 36; Resp. to Suppl. Pet. 
and Confession of Error by TDCJ-ID, Garcia, No. l:99-cv-00134



13

C. Subsequent State Habeas Proceedings

In 2002— two years after the Texas Attorney 
General’s public statements regarding the similar-to- 
Saldano cases— Mr. Norris filed a subsequent application 
for state habeas relief where he challenged, for the 
first time, trial counsel’s introduction of Dr. Quijano’s 
opinion that Mr. Buck was more likely to be a future 
danger because he is Black. Subsequent Appl. for Writ of 
Habeas Corpus, Ex -parte Buck, No. WR-57,004-02 (Tex. 
Crim. App. Oct. 15, 2003), ECF No. 5-152, pp. 6, 9. In a 
consolidated order, the CCA dismissed the subsequent 
application as an abuse of the writ without considering 
the merits of Mr. Buck’s ineffectiveness claim, and denied 
the non-eognizable and frivolous claims that Mr. Norris 
presented in the initial (1999) application on their merits. 
Order, Ex parte Buck, No. WR-57,004-02 (Tex. Crim. App. 
Oct. 15, 2003) (unpublished).

D. Federal Habeas Proceedings

Represented by new counsel, Mr. Buck filed a federal 
habeas corpus petition in October 2004, asserting, inter 
alia, that Mr. Buck’s federal constitutional rights to equal 
protection, due process, and the effective assistance of 
counsel were violated by the introduction of “expert” 
testimony and an “expert” report linking Mr. Buck’s race 
to an increased likelihood of future dangerousness. Pet. 
for Writ of Habeas Corpus at 55-62, Buck v. Cockrell, No.

(E.D. Tex. Aug. 18, 2000), ECF No. 35; Broxton v. Johnson, No. 
H-0Q-CV-1034, 2001 U.S. Dist. LEXIS 25715, at *15 (S.D. Tex. 
Mar. 28, 2001); Final J. at 1, Gonzales v. Cockrell, No. 7:99-cv- 
00072 (W.D. Tex. Dec. 19, 2002), ECF No. 84.



14

04-03965 (S.D. Tex. Oet. 14, 2004), ECF No. 1. However, 
despite Texas’s promise to concede constitutional error 
in Mr. Buck’s case— a promise that Texas kept in all five 
of the other similar-to-Saldano cases— Texas reversed 
course and argued that federal review of Mr. Buck’s 
ineffectiveness claim was foreclosed by state habeas 
counsel’s default of that claim. In its answer to Mr. Buck’s 
habeas petition, Texas stated:

This Court is no doubt aware that the Director 
waived similar procedural bars and confessed 
error in other cases involving testimony by 
Dr. Quijano, most notably the case of Victor 
Hugo Saldano (collectively referred to as 
“the Salda?io cases”). This case, however, 
presents a strikingly different scenario than 
that presented in Saldano— Buck himself, not 
the State offered Dr. Quijano’s testimony into 
evidence. Based on this critical distinction, the 
Director deems himself compelled to assert the 
valid procedural bar precluding merits review 
of Buck’s constitutional claims. And on this 
basis, federal habeas relief should be denied.

Respondent Dretke’s Answer and Motion for Summ. J. 
with Brief in Support at 17, Buck, No. 4:04-cv-03965 (S.D. 
Tex. Sept. 6, 2005), ECF No. 7, p. 17 (citation omitted). 
Texas further maintained that “the former actions of the 
Director [in the other five cases] are not applicable and 
should not be considered in deciding this case.” Id. at 20.

This account was highly misleading. Texas failed to 
disclose that, as described: (1) after a “thorough audit,” 
then-Texas Attorney General Cornyn identified Mr. Buck’s



15

case as “similar to that of Victor Hugo Saldano,” just like 
the other five cases in which Texas waived procedural bars 
and conceded error; and (2) in two of the other similar- 
to-Saldano cases, Dr. Quijano was called as a defense 
witness. JA 213a.

Because Texas reversed course in Mr. Buck’s case and 
raised a procedural defense, the District Court denied 
relief. Relying on Coleman v. Thompson, 501 U.S. 722 
(1991), the court held that Mr. Buck’s Quijano-related 
claims were procedurally defaulted because the state 
court had dismissed them on an independent and adequate 
state ground: state habeas counsel’s failure to timely raise 
the claims. JA 237a-239a.

Between 2006 and 2012, Mr. Buck repeatedly sought 
review of the District Court’s denial of his habeas petition. 
See Buck v. Thaler, 345 F. App’x 923 (5th Cir. 2009) 
(affirming denial of habeas relief and denying request 
for COA); Buck v. Thaler, 559 U.S. 1072 (2010) (denying 
certiorari); Buck v. Thaler, 452 F. App’x 423 (5th Cir. 
2011) (denying stay of execution and motion for relief from 
judgment); Buck v. Thaler, 132 S. Ct. 69 (2011) (denying 
petition for writ of certiorari and motion for stay of 
execution); Buck, 132 S. Ct. 32 (2011) (denying certiorari); 
Buck v. Thaler, 132 S. Ct. 1085 (2012) (denying rehearing).

Mr. Buck did not seek further review of his IAC 
claim because Coleman foreclosed it. Mr. Buck instead 
challenged the prosecutor’s reiteration of Dr. Quijano’s 
race-as-dangerousness opinion on cross-examination and 
her reliance on Dr. Quijano’s testimony in closing argument 
to urge the jury to find Mr. Buck a future danger. In 
response, Texas consistently asserted that Mr. Buck’s trial



16

counsel— rather than the prosecution—was responsible 
for placing Dr. Quijano’s false and inflammatory opinion 
about race before the jury.5 The Court of Appeals agreed 
with Texas. Buck, 345 F. App’x at 930.

In 2011, three Justices of this Court reached the 
same conclusion. In a statement regarding the denial of 
Mr. Buck’s petition for certiorari challenging the trial 
prosecutor’s conduct, Justice Alito—joined by Justices 
Scalia and Breyer— explained that responsibility for 
the introduction of “bizarre and objectionable” expert 
testimony linking Mr. Buck’s race to an increased 
likelihood of future dangerousness “lay squarely with the 
defense.” Buck, 132 S. Ct. at 33, 35.

E. Mr. Buck’s 2013 State Habeas Application and 
the Trevino Decision

Mr. Buck filed a new state habeas application in 
March 2013. Application for Post-Conviction Writ of 
Habeas Corpus, Ex parte Buck, No. WR-57,004-03 (Tex. 
Crim. App. Mar. 28, 2013). In that petition, Mr. Buck 
challenged, inter alia, his trial counsel’s ineffective failure 
to investigate, develop, and present available, mitigating 
evidence, including Phyllis Taylor’s statement that on the 
night of the shooting, Mr. Buck was “different from the

5 Respondent’s Answer at 17-18, 20, Buck v. Dretke, No. 
04-03965 (S.D. Tex. Sept. 6, 2005), ECF No. 6; Thaler’s Reply to 
Buck’s Mot. for Relief from J. and Mot. for Stay of Execution at 10, 
16-17, 19-20, Buck v. Thaler, 04-03965 (S.D. Tex. Sept. 9, 2011), 
ECF No. 30; Resp. in Opp’n to Appl. for Cert, of Appealability 
at 22-25, 28-30, Buck v. Thaler, No. 11-70025 (5th Cir. Sept. 14, 
2011), ECF No. 511602284; Br. in Opp’n at 12-13, 18-20, Buck v. 
Thaler, Nos. 11-6391 & 11A297 (U.S. Sept. 15, 2011).



17

person [she] grew up with” due to his drug and alcohol 
intoxication. Id. at 89. A  sharply divided CCA dismissed 
the application for “failing] to satisfy the requirements of 
Article 11.071, § 5(a).” Ex parte Buck, 418 S.W.Sd 98. In her 
dissenting opinion, Judge Alcala—-joined by Judges Price 
and Johnson— explained that “ [Mr. Buck’s case] reveals a 
chronicle of inadequate representation at every stage of 
the proceedings, the integrity of which is further called 
into question by the admission of racist and inflammatory 
testimony from an expert witness at the punishment 
phase.” Id. at 107.

While Mr. Buck’s application was pending before the 
CCA, this Court created a new exception to the procedural 
bar on which Texas successfully relied to prevent federal 
habeas review of Mr. Buck’s IAC claim. Specifically, in 
Trevino v. Thaler, 133 S. Ct. 1911 (2013), this Court held 
that Martinez v. Ryan, 132 S. Ct. 1309 (2012), applied to 
Texas. Martinez “ ‘modified] 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.’” Trevino, 133 S. Ct. at 
1917 (quoting Martinez, 132 S. Ct. at 1315). Martinez and 
Trevino allow, for the first time, an opportunity for federal 
review of defaulted IAC claims where (1) the IAC claim 
is “substantial”; (2) there was no counsel or there was 
ineffective counsel during the initial state post-conviction 
review of the claim; and (3) state law effectively requires 
ineffective assistance of trial counsel claims to be litigated 
on initial collateral review. Trevino, 133 S. Ct. at 1918 
(quoting Martinez, 132 S. Ct. at 1318-20). A “substantial” 
claim is one that “has some merit.” Martinez, 132 S. Ct. 
at 1318 (citing Miller-El v. Cockrell, 537 U.S. 322 (2003) 
(describing standards for COA to issue)).



18

F. Mr. B u ck ’s P ost -Trevino Federal Habeas 
Proceedings

On January 7,2014, immediately after the denial of the 
pending state habeas application, Mr. Buck filed a motion 
for relief from the District Court’s denial of the IAC 
claim in his initial federal habeas petition. Rule 60(b)(6) 
Motion, Buck, No. 04-03965 (S.D. Tex. Jan. 7,2014), ECF 
No. 49. In this motion, Mr. Buck detailed the following 
“extraordinary circumstances” justifying the reopening of 
a final judgment under Rule 60(b)(6) of the Federal Rules 
of Civil Procedure (“Rule 60(b)(6)” or “Rule 60(b)” ) and 
Gonzalez v. Crosby, 545 U.S. 524, 535 (2005):

1. Mr. Buck’s trial attorney knowingly presented 
expert testimony to the sentencing jury that 
Mr. Buck’s race made him more likely to be a 
future danger;

2. Although required to act as a gate-keeper 
to prevent unreliable expert opinions from 
reaching and influencing a jury, see Tex. R.
Evid. 705(c); Kelly v. State, 824 S.W.2d 568 (Tex. 
Crim. App. 1992), the trial court qualified Dr. 
Quijano as an expert on predictions of future 
dangerousness, allowed him to present race- 
based opinion testimony to Mr. Buck’s capital 
sentencing jury, and admitted Dr. Quijano’s 
excludable hearsay report linking race to 
dangerousness;

3. The trial prosecutor intentionally elicited 
Dr. Quijano’s testimony that Mr. Buck’s race 
made him more likely to be a future danger



19

on cross-examination, vouched for him as an 
“expert” in closing, and asked the jury to rely 
on Dr. Quijano’s testimony to answer the future 
dangerousness special issue in the State’s favor;

4. Mr. Buck’s state habeas counsel did not 
challenge trial counsel’s introduction of this 
false and offensive testimony— or Texas’s 
reliance on it—in Mr. Buck’s initial state habeas 
application;

5. The Texas Attorney General conceded 
constitutional error in Mr. Buck’s case and 
promised to ensure that he received a new 
sentencing, but reneged on that promise after 
deciding that the introduction of the offensive 
testimony was trial counsel’s fault;

6. Th[e District] Court ruled that federal review 
of Mr. Buck’s trial counsel ineffectiveness 
claim was foreclosed by state habeas counsel’s 
failure to raise and litigate the issue in Mr. 
Buck’s initial state habeas petition, relying 
on Cole-man, which has subsequently been 
modified by Martinez and Trevino;

7. The Fifth Circuit held Mr. Buck’s trial 
counsel responsible for the introduction of Dr. 
Quijano’s testimony linking Mr. Buck’s race to 
his likelihood of future dangerousness;

8. Three Supreme Court Justices concluded that 
trial counsel was at fault for the introduction of 
Dr. Quijano’s testimony;



20

9. Three judges of the CCA found that “because 
[Mr. Buck’s] initial habeas counsel failed to 
include any claims related to Dr. Quijano’s 
testim ony in his original [state habeas] 
application, no court, state or federal, has ever 
considered the merits of those claims,” Buck,
2013 W L 6081001, at *5;

10. Mr. Buck’s case is the only one in which Texas 
has broken its promise to waive procedural 
defenses and concede error, leaving Mr. Buck 
as the only individual in Texas facing execution 
without having been afforded a fair and 
unbiased sentencing hearing; and,

11. Martinez and Trevino now allow for federal 
court review of “substantial” defaulted claims 
of trial counsel ineffectiveness.

JA 283a-285a.

In adjudicating Mr. Buck’s Rule 60(b) motion, the 
District Court recognized that trial counsel “recklessly 
exposed [Mr. Buck] to the risks of racial prejudice and 
introduced testimony that was contrary to [Mr. Buck’s] 
interests.” JA 264a. Remarkably, however, the court 
concluded that trial counsel’s introduction of an expert 
opinion that Mr. Buck’s race made him more likely to 
commit future acts of criminal violence— and thus more 
deserving of a death sentence under Texas law— had only 
a “de minimis” effect on Mr. Buck’s sentencing. JA 259a. 
The court held that Mr. Buck was not entitled to reopen 
the judgment because: (1) his case did not involve the 
extraordinary circumstances required by Rule 60(b)(6); 
and (2) in the alternative, Mr. Buck was not prejudiced by



21

his trial counsel’s constitutionally deficient performance. 
JA 259a-260a, 271a-272a. The District Court further 
determined that its rulings on these points were not 
debatable among jurists of reason, and thus Mr. Buck was 
not entitled to a COA. JA 264a-265a.

Without addressing the merits of Mr. Buck’s IAC 
claim, the Fifth Circuit likewise denied a COA, declaring 
that “ [Mr.] Buck has not made out even a minimal showing 
that his case is exceptional,” within the meaning of 
Rule 60(b). JA 283a. The Fifth Circuit insisted that Mr. 
Buck’s IAC claim “is at least unremarkable as far as IAC 
claims” and that Texas’s “broken-promise . . .  makes [the 
case] odd and factually unusual,” but not even debatably 
extraordinary. JA 285a-286a.

Dissenting from the denial of en banc review, Judge 
Dennis, joined by Judge Graves, concluded that Mr. Buck 
was clearly entitled to a COA, and that the panel’s 
contrary decision was consistent with the Fifth Circuit’s 
“ ‘troubling’ habit” of applying an improper COA analysis. 
JA 290a (quoting Jordan v. Fisher, 135 S. Ct. 2647, 2652 
n.2 (2015) (Sotomayor, J., joined by Ginsburg and Kagan, 
JJ., dissenting from the denial of certiorari). Judge 
Dennis explained that the panel “ ‘dismisse[d], miscastf], 
and minimize[d] [Mr. Buck’s] evidence, diluting its full 
weight by disaggregating it and focusing the inquiry on 
determining whether each isolated piece of evidence, 
taken alone,’ proves extraordinary circumstances.” JA 
292a. By contrast, a “proper, threshold inquiry into [Mr.] 
Buck’s claim would have revealed that reasonable jurists 
could disagree with the district court’s conclusions,” 
because the factors presented by Mr. Buck “describe a 
situation that is at least debatably ‘extraordinary.’” JA 
293a-294a.



22

SUMMARY OF THE ARGUMENT

Mr. B uck’s tria l counsel rendered ineffective 
assistance by knowingly presenting an expert opinion 
that Mr. Buck was more likely to commit future acts 
of violence because he is Black. That testimony was so 
directly contrary to Mr. Buck’s interests, no competent 
defense attorney would have introduced it.

Counsel’s constitutionally deficient performance 
powerfully undermines confidence in Mr. Buck’s sentence 
of death. For over a century, courts have recognized that 
racially inflammatory statements presented during a 
criminal trial create a constitutionally intolerable risk that 
the jury will make its decision based on a quintessentially 
arbitrary factor (race), instead of the relevant evidence. 
These precedents apply a fortiori to Mr. Buck’s case 
because Dr. Quijano’s race-as-dangerousness opinion: 
(1) validated a uniquely pernicious stereotype; (2) was 
presented by a purported “expert” for the defense; and (3) 
was introduced at a capital sentencing hearing where the 
principal issue for the jury to decide was whether Mr. Buck 
was likely to be dangerous in the future. The prejudice to 
Mr. Buck from the introduction of this “expert” opinion— 
that Black men are predisposed to criminal violence— is 
especially clear because the prosecution’s case in support 
of future dangerousness was not overwhelming, and the 
jury struggled to reach a decision.

Further, Texas’s ordinary interest in finality is 
not compelling here because it promised not to rely on 
procedural defenses in a number of cases, including Mr. 
Buck’s, in order to preserve the integrity of the rule of 
law, and then kept its promise in all of those cases except



23

Mr. Buck’s. The sui generis facts of this case (at, and 
after, trial)— combined with Mr. Buck’s diligence and the 
change in law worked by Trevino and Martinez— establish 
the “extraordinary circumstances” required by Rule 
60(b). The failure to reopen the District Court’s judgment 
denying Mr. Buck’s Sixth Amendment claim creates 
both a profound risk of injustice to Mr. Buck-—who faces 
execution pursuant to a death sentence marred by racial 
bias— and a profound risk of harm to society’s confidence 
in the integrity of the criminal justice system.

Under any standard of review, the lower courts’ 
denial of Mr. Buck’s Rule 60(b) motion was erroneous. 
The denial of a COA was even more improper. A COA 
is required so long as reasonable jurists could find the 
denial of relief debatable or the issues presented by the 
petitioner adequate to proceed further. Mr. Buck surely 
meets this threshold standard, and the Court of Appeals’ 
failure to grant a COA reflects its failures to properly 
apply this Court’s precedent and to acknowledge the 
plainly extraordinary circumstances of Mr. Buck’s case.

ARGUMENT

As this Court has stressed, a COA is required so long 
as a habeas petitioner makes a “threshold” showing that 
the District Court’s decision was “debatable amongst 
jurists of reason.” Miller-El, 537 U.S. at 336. Thus, “ [a] 
court of appeals should not decline the application for a 
COA merely because it believes the applicant will not 
demonstrate an entitlement to relief.” Id. at 337. Instead, 
“a prisoner seeking a COA need only demonstrate ‘a 
substantial showing’” that the district court erred in 
denying relief. Id. at 327 (quoting Slack v. McDaniel,



24

529 U.S. 473, 474, 484 (2000) and 28 U.S.C. § 2253(c)(2)). 
That standard is satisfied when reasonable jurists could 
either disagree with the district court’s denial of relief, 
or determine that “ the issues presented . . . deserve 
encouragement to proceed further.” Miller-El, 537 U.S. 
at 327, 336.

Thus, Mr. Buck is entitled to a COA so long as the 
District Court’s decision denying his Rule 60(b) motion 
was at least debatable among reasonable jurists. Id. at 
342; see also id. at 348 (Scalia, J., concurring) (a COA 
must be granted if resolution of the petitioner’s claims 
is not “undebatable”). Mr. Buck unquestionably meets 
that standard with respect to both the procedural issue 
of whether extraordinary circumstances exist and the 
underlying constitutional issue of whether his counsel 
were ineffective. See Slack, 529 U.S. at 484-85 (when a 
petition is dismissed on procedural grounds, determining 
whether a COA should issue requires consideration 
of whether reasonable jurists could debate both the 
underlying constitutional claims and the district court’s 
procedural ruling). Because the facts supporting the 
underlying constitutional claim inform the extraordinary 
circumstances analysis in this case, Mr. Buck begins with 
his IAC claim.

I. Trial Counsel Rendered Ineffective Assistance by 
Presenting an “ Expert” Opinion that Mr. Buck Is 
More Likely to be Dangerous in the Future Because 
He Is Black.

The principal issue at the sentencing phase of Duane 
Buck’s capital trial was whether he was likely to commit 
future acts of criminal violence if  sentenced to life



25

imprisonment. Under Texas law, an affirmative finding 
by the jury on this special issue was required for a death 
sentence. But the prosecution presented no evidence that 
Mr. Buck had been violent outside the context of romantic 
relationships with two women, and the jurors learned that 
he had adjusted well to prison. Consistent with the lack 
of future dangerousness evidence, the jury struggled to 
determine the appropriate sentence and did not reach a 
verdict until the second day of deliberations.

Mr. Buck’s own lawyers, however, tipped the balance 
in the prosecution’s favor. They introduced an “expert” 
opinion that, because Mr. Buck is Black, he was more 
likely to be dangerous in the future. Put another way: 
Mr. Buck’s lawyers presented evidence that Mr. Buck 
was more deserving of a death sentence under Texas law 
because of his race.

Introducing this false and prejudicial evidence was the 
epitome of ineffective assistance of counsel. As the CCA 
held in 1925, “ [n]o lawyer could believe that” a question 
injecting racial bias into a criminal trial “could have been 
permissible in any state court, and the very asking of it 
was so repulsive to every idea of a fair trial as to cause us 
to have no hesitancy in holding it reversible error.” Derrick 
v. State, 272 S.W. 458,459 (1925). Yet, over 70 years later, 
Mr. Buck’s lawyers not only injected racial bias into his 
capital trial, they appealed to the uniquely pernicious 
stereotype that “blacks are violence prone.” Turner 
v. Murray, 476 U.S. 28, 35 (1986) (plurality opinion). 
Even worse, defense counsel did so through a clinical 
psychologist who was stamped with the imprimatur of an 
“expert,” lending special weight to his opinion.



26

No reasonable defense attorney would have presented 
Dr. Quijano’s race-as-dangerousness opinion. Moreover, 
there is a reasonable probability that had his opinion not 
been presented, at least one juror would have reached 
a different conclusion about Mr. Buck’s likelihood 
of committing future acts of violence. Mr. Buck has 
therefore satisfied both the deficient performance and 
prejudice prongs of the Strickland test. See Strickland 
v. Washington, 466 U.S. 668 (1984).

A. The District Court Correctly Recognized that 
Counsel Performed Deficiently by Knowingly 
Exposing Mr. Buck to the Risks o f  Racial 
Prejudice.

As this Court explained in Strickland, “ the Sixth 
Amendment right to counsel exists, and is needed, in order 
to protect the fundamental right to a fair trial.” 466 U.S. at 
684. “That a person who happens to be a lawyer is present 
at trial alongside the accused . . .  is not enough to satisfy 
the constitutional command.” Id. at 685. Rather, because 
the Sixth Amendment “envisions counsel’s playing a role 
that is critical to the ability of the adversarial system to 
produce just results,” a defendant “is entitled to be assisted 
by an attorney, whether retained or appointed, who plays 
the role necessary to ensure that the trial is fair.” Id. 
The Sixth Amendment right to counsel is therefore the 
right to the effective assistance of counsel, measured by 
the familiar two-part test of deficient performance and 
prejudice. See id. at 686-87.

Counsel’s performance is deficient when it falls “below 
an objective standard of reasonableness,” as measured 
“under prevailing professional norm s.” Id. at 688.



27

Although that “standard is necessarily a general one,” 
Bobby v. Van Hook, 558 U.S. 4, 7 (2009) (per curiam), the 
“ [Representation of a criminal defendant entails certain 
basic duties,” Strickland, 466 U.S. at 688. These include 
the “overarching duty to advocate the defendant’s cause” 
and the “duty to bring to bear such skill and knowledge 
as will render the trial a reliable adversarial testing 
process.” Id.

Mr. Buck’s trial lawyers failed to satisfy these basic 
obligations. As the District Court noted, prior to trial, 
“Buck’s counsel had received Dr. Quijano’s expert report 
. . .  clearly stating that Buck’s race made him statistically 
more likely to be a future danger.” JA 263a. In that report, 
Dr. Quijano discussed seven “ Statistical Factors” that 
he deemed relevant to “ Future Dangerousness,” i.e., 
“Whether there is a probability that the defendant would 
commit criminal acts of violence that would constitute a 
continuing threat to society.” JA 18a, 35a. One of those 
factors was: “Race. Black: Increased probability. There 
is an over-representation of Blacks among the violent 
offenders.” Id. at 19a, 36a. (emphasis in original).

No competent defense counsel would have presented 
Dr. Quijano’s race-as-dangerousness opinion to the 
jury. This Court stated more than 50 years before 
Strickland that one of counsel’s essential functions is to 
ensure the defendant is not “convicted upon incompetent- 
evidence, or evidence irrelevant to the issue or otherwise 
inadmissible.” Powell v. Alabama, 287 U.S. 45, 69 
(1932). Dr. Quijano’s race-as-dangerousness opinion was 
prototypical “incompetent evidence” that had no place 
in a capital sentencing proceeding. The Constitution 
requires that “any decision to impose the death sentence



be, and appear to be, based on reason rather than 
caprice or emotion,” Godfrey v. Georgia, 496 U.S. 420, 
433 (1980) (citation omitted), and such decisions must 
reflect an “ individualized inquiry” into the defendant’s 
moral culpability, Romano v. Oklahoma, 512 U.S. 1, 7 
(1994) (citation omitted). Race is an arbitrary, emotionally 
charged factor that has nothing to do with individual 
moral culpability. Although it cannot be considered as an 
aggravating factor at capital sentencing, Zant v. Stephens, 
462 U.S. 862, 885 (1983), Dr. Quijano’s opinion urged the 
jurors to do just that.

Injecting race into a capital sentencing proceeding is 
not only wholly improper, it poses a special risk of harm to 
the defendant. In 2005, this Court repeated an observation 
about race that it made in 1880: “It is well known that 
prejudices often exist against particular classes in the 
community, which sway the judgment of jurors, and which, 
therefore, operate in some cases to deny to persons of 
those classes the full enjoyment of that protection which 
others enjoy.” Miller-Elv. Dretke, 545 U.S. 231,237 (2005) 
(quoting Strauder v. West Virginia, 100 U.S. 303, 309 
(1880)). The risk of racial prejudice swaying the judgment 
of jurors is especially pronounced in a capital sentencing 
proceeding because “ [f]ear of blacks, which could easily be 
stirred up by the violent facts of [the defendant’s] crime, 
might incline a juror to favor the death penalty.” Turner, 
476 U.S. at 35 (plurality opinion).

Mr. Buck’s court-appointed counsel had a duty to 
be aware of these principles. Hinton v. Alabama, 134 
S. Ct. 1081, 1089 (2014) (“An attorney’s ignorance of a 
point of law that is fundamental to his case combined 
with his failure to perform basic research on that point



29

is a quintessential example of unreasonable performance 
under Strickland”). As any competent counsel would 
have recognized, it was contrary to Mr. Buck’s interests 
to present an expert opinion that Mr. Buck possesses 
an immutable characteristic that renders him prone to 
criminal violence. JA 19a, 36a. Further, anyone with 
even a passing knowledge of American history would 
understand that the immutable characteristic invoked 
by Dr. Quijano— Mr. Buck’s race—was especially likely 
to bias the jury against him.

Yet, trial counsel not only “called Dr. Quijano to the 
stand,” counsel specifically “elicited his testimony on 
this point.” Buck, 132 S. Ct. at 33 (Statement of Alito, 
J.); see also JA 263a-264a (noting “ Buck’s counsel 
called Dr. Quijano as a witness and relied on his expert 
report, although counsel was fully aware of Dr. Quijano’s 
inflammatory opinions about race” ).

Dr. Quijano began his testimony by discussing 
his credentials. JA 138a-141a. He then described his 
evaluation of Mr. Buck, testifying that Mr. Buck has both 
a dependent personality disorder— meaning he becomes 
obsessive in relationships and has a very difficult time 
letting go— as well as alcohol and cocaine dependence 
disorders. JA 141a-145a; see also JA 252a-253a.

Counsel then turned Dr. Quijano’s attention to 
the issue of future dangerousness. Counsel first asked 
Dr. Quijano to confirm that he was “ familiar with the 
capital murder punishment issues that jurors are given 
in a capital murder case at the punishment phase,” and 
that he understood the first issue “is whether the State 
has proven beyond a reasonable doubt that there’s a



30

probability that the defendant would engage in future acts 
of violence which would constitute a continuing threat to 
society.” JA 145a.

Counsel next asked Dr. Quijano to discuss his 
“professional opinion regarding Mr. Buck in relation to 
that issue,” and specifically the “statistical factors or 
environmental factors” that Dr. Quijano found relevant 
to Mr. Buck’s probability of future dangerousness. JA 
145a-146a. Counsel did so despite knowing that one of the 
“statistical factors” Dr. Quijano considered was Mr. Buck’s 
race.

Dr. Quijano’s response mirrored his report. See Buck, 
132 S. Ct. at 33 (Statement of Alito, J.). He described 
seven “ statistical factors we know to predict future 
dangerousness,” one of which was “ Race.” JA 146a. 
Dr. Quijano elaborated on the purported support for his 
opinion that race predicts future dangerousness: “ It’s a sad 
commentary that minorities, Hispanics and black people, 
are over represented in the Criminal Justice System.” JA 
146a. After identifying race and the other six statistical 
factors from his report, Dr. Quijano reiterated: “Those 
are the statistical factors in deciding whether a person 
will or will not constitute a continuing danger.” JA 147a.

Having elicited Dr. Quijano’s race-as-dangerousness 
opinion, defense counsel opened the door for the prosecution 
to have Dr. Quijano repeat it on cross-examination. See 
Buck, 345 F. App’x at 930. The prosecutor did precisely 
that, stressing the supposed causal link between race and 
dangerousness: “You have determined that the . . . race 
factor, black, increases the future dangerousness for 
various complicated reasons; is that correct?” JA 170a. 
Dr. Quijano responded unequivocally: “Yes.” Id.



31

Trial counsel then presented Dr. Quijano’s race-as- 
dangerousness opinion to the jury for a third time, offering 
Dr. Quijano’s report into evidence. See Buck, 132 S. Ct. at 
33 (Statement of Alito, J.). In his report, Dr. Quijano stated 
in no uncertain terms that Mr. Buck’s race increased the 
probability of future violence: “Race. Black: Increased 
probability. There is an over-representation of Blacks 
among the violent offenders.” JA 19a, 36a. Although other 
portions of Dr. Quijano’s report were redacted before it 
was submitted to the jury, his race-as-dangerousness 
opinion was not. Id.

In sum, “the responsibility for eliciting [Dr. Quijano’s] 
offensive testimony lay[s] squarely with the defense.” 
Buck, 132 S. Ct. at 35 (Statement of Alito, J.).

Texas, however, has sought to defend trial counsel’s 
performance by asserting that Dr. Quijano did not say Mr. 
Buck’s “race would make him more likely to be a future 
danger.” Opposition to Petition for a Writ of Certiorari 
(“Cert. Qpp’n” ) at 21, Buck v. Stephens, 136 S. Ct. 2409 
(Mar. 21,2016) (No. 15-8049) (mem,). Instead, according to 
Texas, Dr. Quijano’s “brief remarks . . .  about ‘minorities, 
Hispanics and blacks’ being overrepresented in the 
criminal justice system are inherently mitigating.” Id. 
at 21-22 (citation omitted). Those assertions are flatly 
untrue, and reflect an effort to sanitize the profoundly 
troubling record in this capital case.

There was nothing mitigating about Dr. Quijano’s 
testimony about the overrepresentation of Blacks and 
Hispanics in the criminal justice system. Instead, 
Dr. Quijano relied on that overrepresentation as the 
justification for his repeated assertions—which Texas now



32

refuses to acknowledge— that Mr. Buck’s race made him 
more likely to be a future danger. To reiterate:

• On direct examination, Dr. Quijano testified that 
“race” is one of seven “statistical factors we know 
to predict future dangerousness.” JA 146a.

• On cross-examination, Dr. Quijano agreed with the 
prosecution that the “race factor, black, increases 
the future dangerousness for various complicated 
reasons.” JA 170a.

• In his report, which was submitted to the jury, 
Dr. Quijano stated that Mr. Buck’s “Race. Black” 
created an “Increased probability” that he would 
commit future acts of violence. JA 19a, 36a.

By presenting the jury with an expert opinion that Mr. 
Buck was more likely to commit criminal acts of violence 
because he is Black, and was therefore more deserving of 
a death sentence under Texas law, trial counsel rendered 
deficient performance under Strickland. In the District 
Court’s words:

Buck’s counsel recklessly exposed his client 
to the risks of racial prejudice and introduced 
testimony that was contrary to his client’s 
interests. His perform ance fell below an 
objective standard of reasonableness, and 
the Court therefore finds that trial counsel’s 
performance was constitutionally deficient.

JA 264a.



33

B. The D istr ict C ourt E rred by C oncluding 
that Mr. B uck Was Not Prejudiced by His 
Trial Counsel’s Constitutionally Deficient 
Performance.

The touchstone of Strickland’s prejudice prong is 
whether counsel’s constitutionally deficient performance 
‘“deprive[d] the defendant of a fair trial, a trial whose 
result is reliable.” ’ Harrington v. Richter, 562 U.S. 86,104 
(2011) (quoting Strickland, 466 U.S. at 687). “The result 
of a proceeding can be rendered unreliable, and hence 
the proceeding itself unfair, even if the errors of counsel 
cannot be shown by a preponderance of the evidence to 
have determined the outcome.” Strickland, 466 U.S. at 
694. Although the mere possibility of a different outcome 
is insufficient, the prejudice prong is satisfied when there 
is “a probability sufficient to undermine confidence in 
the outcome.” Id.; see also Harrington, 562 U.S. at 112. 
Because Texas requires jury unanimity, a reasonable 
probability that one juror would have reached a different 
conclusion absent Dr. Quijano’s race-as-dangerousness 
testimony is sufficient to establish prejudice. See Wiggins 
v. Smith, 539 U.S. 510, 537 (2003).

Mr. Buck easily satisfies this standard. Contrary to 
the District Court’s assertion that “any harm caused by 
[Dr. Quijano’s] objectionable testimony was de minimis',' 
JA 272a, it is well-settled that appeals to racial prejudice 
deprive the accused of his right to a fair trial decided by an 
impartial jury. The appeals to racial prejudice in this ease 
were particularly harmful because: (1) they invoked the 
stereotype that Black people are more likely to be violent 
criminals; (2) they were presented as the professional 
opinion of a defense expert who was “appointed by Judge



34

Collins of the 208th District Court to do an evaluation on 
the defendant Duane Edward Buck” and was “paid by 
the County to do this work,” JA 140a; and (3) the central 
disputed issue at sentencing was whether Mr. Buck was 
likely to be a future danger.

1. Dr. Quijano’s Race-as-Dangerous Opinion 
Was Highly Prejudicial.

When jurors are told that the defendant’s race is 
associated with criminality, the harm to the defendant 
is obvious and substantial. Such statements not only 
“ ‘tend[] to create race prejudice,” ’ they ‘“conveyG the 
imputation that the accused belonged to a class of persons 
peculiarly’” predisposed to criminal behavior. Allison v. 
State, 248 S.W.2d 147,148 (Tex. Crim. App. 1952) (citation 
omitted). This deprives the defendant of his fundamental 
right to a fair trial, i.e., one in which the “jury considers] 
only relevant and competent evidence,” Bruton v. United 
States, 391 U.S. 123, 131 n.6 (1968), “free from ethnic, 
racial, or political prejudice, or predisposition about the 
defendant’s culpability,” ’ Powers v. Ohio, 499 U.S. 400, 
411 (1991) (citations omitted). Cf. Taylor v. Kentucky, 436 
U.S. 478, 487-88 (1978) (failure to provide a presumption 
of innocence instruction violated due process when, 
inter alia, the prosecutor’s “repeated suggestions that 
petitioner’s status as a defendant tended to establish his 
guilt created a genuine danger that the jury would convict 
petitioner on the basis o f . . .  extraneous considerations”). 
As Judge Winter has explained, the “ [ijnjection 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).



35

The prejudice arising from Dr. Quijano’s race-as- 
dangerousness opinion was magnified for two reasons. 
First, it was presented at a capital sentencing hearing 
where the false stereotype that “blacks are violence prone” 
poses a special risk of biasing the jury in favor of a death 
sentence. Turner, 476 U.S. at 35. That is particularly 
true when, as here, the central question for the jury at 
sentencing was whether Mr. Buck was likely to be a future 
danger.

Second, as Texas noted in its brief in opposition to 
certiorari, trial counsel elicited testimony “emphasiz[ingj 
Dr. Quijano’s extensive experience, especially his tenure 
as Chief Psychologist and Director of Psychiatric Services 
for the Texas Department of Criminal Justice.” Cert. 
Opp’n at 9. Counsel also imbued Dr. Quijano with the 
imprimatur of the court by eliciting testimony that Dr. 
Quijano was appointed by the presiding judge in the case 
“to do an evaluation” and was being paid by the county 
“to do this work.” JA 140a.

Counsel thereby ensured that Dr. Quijano’s opinions 
would “stand[] out” to the jury. Satterwhite v. Texas, 486 
U.S. 249, 259 (1988); see also Flores v. Johnson, 210 F.3d 
456, 466 (5th Cir. 2000) (Garza, J., specially concurring) 
(noting that a future dangerousness expert’s “title and 
education (not to mention designation as an ‘expert’) gives 
him significant credibility in the eyes of the jury as one 
whose opinion comes with the imprimatur of scientific 
fact”). And, because Dr. Quijano was a defense expert, any 
opinion that supported the prosecution (i.e., his raee-as- 
dangerousness testimony) surely made an even greater 
impression on the jury.



36

The District Court acknowledged that “ [testimony like 
that of Dr. Quijano lends credence to any potential latent 
racial prejudice held by the jury.” JA 264a. Nonetheless, 
the District Court determined that the introduction of 
Dr. Quijano’s race-as-dangerousness opinion “was, in this 
case, de minimis” because he tendered that opinion only 
twice. See JA 259a, 272a.

The proffer by an “expert” of this racially-biased 
and discredited opinion before a jury even once would 
be sufficient to cause substantial harm. But, in this 
case, Dr. Quijano’s race-as-dangerousness opinion 
was presented to the jury three times: once on direct 
examination, once on cross-examination, and once in 
Dr. Quijano’s report that defense counsel submitted into 
evidence. That Dr. Quijano’s opinion was not repeated a 
fourth time is hardly a reason to discount its significance. 
In the words of a juror who was later quoted by this Court: 
for certain things, “ ‘[y]ou can’t forget what you hear and 
see.’” Irwin v. Dotvd, 366 U.S. 717, 728 (1961) (internal 
citation omitted). Or, as the Fifth Circuit has put it:

[OJnce [certain] statements are made, the 
damage is hard to undo: Otherwise stated, 
one cannot unring a bell; after the thrust of 
the saber it is difficult to say forget the wound; 
and finally, if you throw a skunk into the jury 
box, you can’t instruct the jury not to smell it.

United States v. Garza, 608 F.2d 659, 666 (5th Cir. 1979) 
(citation and internal quotations omitted).

For over a century, courts throughout this country 
have recognized that one cannot unring the bell with



37

respect to statements expressly appealing to race bias 
against criminal defendants. For example, in Derrick, 
the CCA held that a single question by the prosecutor 
appealing to jurors’ racial biases was reversible error. 
272 S.W. at 458. The trial court sustained an objection 
before the question was answered, but the CCA forcefully 
explained: “ [W]e do not hesitate to say that it was utterly 
impossible for the court to destroy the virus that was 
spread by the very asking of the question,” which was 
“so repulsive to every idea of a fair trial as to cause us 
to have no hesitancy in holding it reversible error.” Id. at 
45. Similarly, over 100 years ago, the Louisiana Supreme 
Court observed that the effects of a racial appeal during 
a criminal trial “having been once made, . . . cannot be 
counteracted by mere cautionary words of sober reason 
that may be uttered by the judge.” Louisiana v. Bessa, 
38 So. 985, 987 (La. 1905).

Numerous other decisions are in accord. See, e.g., Reed 
v. State, 99 So. 2d 455,456 (Miss. 1958) (single remark that 
the defendant’s race suggested future dangerousness was 
prejudicial); Dinklage v. State, 185 S.W.2d 573, 575 (Tex. 
Grim. App. 1945) (the “harmful effect” of two statements 
emphasizing the defendant’s ethnic heritage “could not 
have been obliterated by the instruction of the court”); 
Cofield v. State, 82 S.E. 355,356 (Ga. Ct. App. 1914) (single 
racial reference was “so prejudicial to the defendant’s right 
to a fair trial as to have required the grant of a mistrial” 
because it “cannot be held to be effectively cured by a 
mere instruction on the part of the court to the jury to 
disregard it”).

The age of these precedents reflects the fact that 
express appeals to racial bias are no longer likely to be



made in open court and are, for the most part, a relic of the 
past. But the principle that such appeals have no place in 
a fair trial must, of course, endure. Statements appealing 
to jurors’ racial biases remain uniquely prejudicial, and 
they need not be repeated to require a new trial. See, e.g., 
Bryant v. State, 25 S.W.3d 924, 925 (Tex. Ct. App. 2000) 
(trial court abused its discretion in overruling a mistrial 
motion premised on a single question by a prosecutor that 
“would have served to aggravate any lingering prejudice 
against interracial couples among the jurors” ); Cruz, 981 
F.2d at 664 (1992) (reversing conviction based on, inter 
alia, “highly improper and prejudicial” expert testimony 
concerning the ethnic composition of an area in which 
drug transactions occurred); Johnson v. Rose, 546 F.2d 
678, 679 (6th Cir. 1976) (granting writ of habeas corpus 
because brief racially-charged questions “so tainted the 
entire trial that it denied. . .  defendants that fundamental 
fairness which is the essence of due process”); United 
States v. Haynes, 466 F.2d 1260,1266-67 (5th Cir. 1972) 
(reversing conviction under plain error review based on a 
prosecutor’s use of a racially-charged phrase during cross- 
examination; finding it was not enough that the district 
court had immediately instructed the jury to disregard 
the prosecutor’s statement because of the likelihood 
that the jury could not disregard such a prejudicial and 
inflammatory remark).6

6 The same principle has been recognized in the civil context. 
See Texas Emp’rs Ins. Ass’n v. Guerrero, 800 S.W.2d 859, 863 
(Tex. App. 1990) (“While most improper jury arguments can be 
cured by objection and instruction to disregard, appeals to racial 
prejudice are one of the exceptional kinds of argument that are 
considered incurable.”).



39

In Mr. Buck’s case, the false stereotype that “blacks 
are violence prone,” Turner, 476 U.S. at 35, was expressly 
and repeatedly validated by a defense expert presented as 
worthy of appointment and compensation by the court. Far 
from having a “de minimis” effect, there is a reasonable 
probability that Dr. Quijano’s race-as-dangerousness 
opinion ‘“sway[ed] the judgment of jurors’” in favor of 
death. Miller-El, 545 U.S. at 237 (citation omitted).

2. The Facts of the Crime Do Not Eclipse the 
Prejudice Caused by Counsel’s Recklessly 
Exposing Mr. Buck to Racial Bias.

Equally unsupportable is the D istrict C ourt’s 
conclusion that the aggravating evidence overrides the 
harm caused by Dr. Quijano’s race-as-dangerousness 
opinion. See JA 263a-265a, 272a-273a. The facts of the 
crime in this case are undeniably “horrific.” JA 262a. 
Nevertheless, a death sentence was not a foregone 
conclusion.

This Court’s precedent makes clear that a capital 
prisoner may establish Strickland prejudice even when 
a crime involves appalling facts. In Porter v. McCollum, 
558 U.S. 30 (2009) (per curiam), Porter broke into his 
ex-girlfriend’s home, shot and killed her and her new 
boyfriend, and pointed a gun at her daughter’s head; Porter 
had repeatedly called his ex-girlfriend’s family to tell them 
he would kill her. See Porter v. A tt’y Gen., 552 F.3d 1260, 
1263 (11th Cir. 2008) (per curiam). Notwithstanding these 
egregious facts, this Court unanimously found that Porter 
was prejudiced by his counsel’s deficient sentencing- 
phase performance, and that the state court’s contrary 
conclusion was unreasonable within the meaning of 28



40

U.S.C. § 2254(d)(1) (an additional barrier to relief not 
present in Mr. Buck’s case). See Porter, 558 U.S. at 40-44.

Similarly, in Williams v. Taylor, this Court found 
Strickland prejudice where the capital murder was 
‘“ just one act in a crime spree that lasted most of 
Williams’s life,’” 529 U.S. 362, 418 (2000) (Rehnquist, 
C.J., dissenting) (citation omitted); see id. at 367-69, 
398-99 (majority opinion). Williams’s lack of remorse 
was evident: in the months after the capital offense, he 
committed two violent assaults on elderly victims, leaving 
one in a vegetative state. See id. at 367-69; see also Sears 
v. Upton, 561 U.S. 945, 956 (2010) (per curiam); id. at 
964 (Scalia, J., dissenting) (vacating decision finding no 
Strickland prejudice where the defendant’s confession 
showed a lack of remorse); Satterwhite, 486 U.S. at 258-59 
(improper future dangerousness testimony prejudicial 
notwithstanding petitioner’s substantial prior history of 
violence, including shooting a relative and the testimony of 
eight police officers indicating his reputation for violence).

The Fifth Circuit has similarly recognized that the 
brutality of a capital crime does not preclude a finding of 
Strickland prejudice, and has elaborated on this principle 
in the context of Texas cases. In Walbey v. Quarterman, 
309 F. App’x 795 (5th Cir. 2009), the Court of Appeals 
granted sentencing relief under Strickland. In rejecting 
Texas’s “ ‘brutality trumps’” argument, the Court noted 
that it had reviewed “ ‘scores of § 2254 habeas cases 
from the death row of Texas,” ’ which “ ‘teach an obvious 
lesson that is frequently overlooked: Almost without 
exception, the cases we see in which conviction of a 
capital crime has produced a death sentence arise from 
extremely egregious, heinous, and shocking facts.’” Id.



41

at 804 (quoting Gardner v. Johnson, 247 F.3d 551, 563 
(5th Cir. 2001)). The Court stressed, however, that Texas 
law does not permit the imposition of a ‘“death sentence 
solely because the facts are heinous and egregious.” ’ Id. 
Rather, Texas law— consistent with federal constitutional 
requirements— channels the jury’s discretion by focusing 
it on ‘“ the questions of deliberateness and future 
dangerousness.’” Id.

Here, the prosecution’s case for death was not 
overwhelming under Texas law, as there was little record 
support for a finding that Mr. Buck would be dangerous if 
sentenced to life imprisonment. The prosecution presented 
no evidence that Mr. Buck had ever been violent outside 
the context of romantic relationships with two women, 
and jurors heard undisputed testimony that it was highly 
unlikely he would develop such a relationship in prison. 
See JA 73a, 75a; Tr. 192, Buck, No. 4:04-cv-03965 (S.D. 
Tex. June 24,2005), ECF No. 5-150 p. 24. The prosecution 
stressed Mr. Buck’s lack of remorse in the immediate wake 
of the crime, but that alone could not prove that he was 
likely to commit future acts of violence.7 Moreover, jurors 
knew Mr. Buck had shown remorse after having time to 
reflect on his actions. See JA 182a-183a (questioning by 
defense counsel indicating Mr. Buck displayed remorse 
by crying when witnesses testified).8 This is significant

7 Lack of remorse evidence is relevant, but not dispositive, 
on the future dangerousness question under Texas law. See, e.g., 
Dewberry v. State, 4 S.W.Sd 735, 743 (Tex. Grim. App. 1999) 
(“Future dangerousness may be supported in part by evidence 
of a lack of remorse or contrition.”).

8 Mr. Buck’s remorse is also confirmed by the declaration 
filed by another victim, his step-sister Phyllis Taylor, in state post­



42

because “ [r]arely does a defendant have remorse for 
a crime he is presently committing. Alm ost always 
remorse occurs, if at all, sometime after the commission 
when the defendant had an opportunity to reflect on his 
criminal deed.” North Carolina v. Parker, 315 N.C. 249, 
257 (1985); cf Ex parte Williams, No. AP-76455, 2012 
W L 2130951, at *15 n.76 (Tex. Crim. App. June 3, 2012) 
(“ Remorse can be mitigating because it shows that the 
defendant has changed—which is a core issue in the future 
dangerousness inquiry.” ).

By contrast, Mr. Buck presented substantial evidence 
that he was not likely to be violent in prison. The jurors 
heard undisputed testimony from Dr. Lawrence that Mr. 
Buck’s prison records showed that he “did not present 
any problems in the prison setting,” and, indeed, that he 
had been held in minimum security without incident. Tr. 
196, Buck, No. 4:04-cv-03965 (S.D. Tex. June 24, 2005), 
ECF No. 5-116, p. 13. Dr. Lawrence also testified without 
contradiction that every prison killing in Texas during 
the prior year was gang-related, and that there was no 
indication Mr. Buck had ever been a member of a gang or 
involved in any gang-related activity. Tr. 187, id. at p. 4.

The prosecution did not dispute any of this evidence. 
On cross-examination, the prosecutor elicited only that Dr. 
Lawrence “cannot guarantee.. .  that [Mr. Buck] will never 
commit other violent acts.” Tr. 213-14, id. at 30-31. That, of

conviction proceedings. See Declaration of Phyllis Taylor, Exh. 76 
to Application for Post-Conviction Writ of Habeas Corpus at 3, Ex 
parte Duane Edward Buck, No. WR-57004-03,2013 WL 6081001 
(Tex. Crim. App. Mar. 13, 2013). In her declaration, Ms. Taylor 
attests that, while awaiting trial, Mr. Buck sought and received 
her forgiveness.



43

course, is not the test, and it would have been irresponsible 
for any expert to make such a guarantee. The burden was 
on the prosecution to convince the jury— unanimously and 
beyond a reasonable doubt— that Mr. Buck was likely to 
commit future acts of criminal violence. The prosecution 
had little evidence on that point, which means a finding 
of prejudice due to trial counsel’s deficient performance 
is more likely, not less. See Strickland, 466 U.S. at 696 
(“ [A] verdict or conclusion only weakly supported by the 
record is more likely to have been affected by errors than 
one with overwhelming record support.”). Indeed, because 
there was little evidence that Mr. Buck was likely to be 
dangerous in prison, Dr. Quijano’s false testimony that 
Black men are more likely to be dangerous was especially 
prejudicial.

The record of the jury’s deliberations confirm that 
Mr. Buck was prejudiced by his counsel’s deficient 
performance. It took two days for jurors to reach a 
decision about the special issues, during which time they 
sent four notes to the trial judge. One of those notes asked: 
“ [C]an we talk about parole with a life imprisonment?” 
JA 207a.9 Another note requested the psychological 
and police reports submitted during the sentencing 
phase. See JA 209a. These included Dr. Quijano’s report, 
which stated that Mr. Buck’s “Race. Black” meant an 
“Increased probability” of future dangerousness. JA 
19a, 36a. The ju ry ’s deliberations make clear that a 
death sentence was by no means a foregone conclusion.

9 The jury was not given any information about parole. 
Under Texas law at the time of Mr. Buck’s offense, if sentenced 
to life imprisonment, Mr. Buck would not have been eligible for 
parole for at least 40 years, at age 74. See Tr. 124-26, Buck, No. 
4:04-cv-03965 (S.D. Tex. June 24,2005), ECF No. 5-114, pp.17-19.



44

See Parker v. Gladden, 385 U.S. 363,365 (1966) (26-hour 
jury deliberations “indicatjed] a difference among” the 
jurors, and supported the conclusion that defendant was 
prejudiced by extraneous statements made by the bailiff 
to the jury).

Strickland prejudice turns on whether the defendant’s 
trial was fundamentally fair, 466 U. S. at 696, and ‘“ fairness’ 
cannot be stretched to the point of calling this a fair trial.” 
Kyles v. Whitley, 514 U.S. 419, 454 (1995). A defense 
expert testified that Mr. Buck was more likely to commit 
future acts of criminal violence, and was therefore more 
deserving of a death sentence under Texas law, because 
he is Black. This Court cannot have confidence that the 
jury would have unanimously found future dangerousness 
absent Dr. Quijano’s race-as-dangerousness opinion. At 
a minimum, these issues are debatable, requiring the 
issuance of a COA.

II. Mr. Buck is Entitled to a COA Because Jurists o f
Reason Would Find the District Court’s Ruling on
Mr. Buck’s 60(b)(6) Motion Debatable or Wrong.

As detailed above, reasonable jurists would find the 
District Court’s decision on Mr. Buck’s underlying Sixth 
Amendment claim to be wrong or, at least, debatable. The 
remaining question is whether Mr. Buck has made the 
required showing under Rule 60(b)(6) to reopen the federal 
habeas judgment denying his IAC claim on procedural 
grounds. Because the facts and circumstances of Mr. 
Buck’s case are uniquely extraordinary, he is entitled 
to 60(b)(6) relief. The District Court’s conclusion to the 
contrary is wrong (and, at a minimum, debatable), and the 
Fifth Circuit erred in denying Mr. Buck a COA.



45

A. Requirements for Relief Under Rule 60(b)(6)

Rule 60(b)(6) allows a party to seek relief “from a final 
judgment, order, or proceeding” and request reopening 
of a case for “any other reason that justifies relief.” Fed. 
R. Civ. R 60(b)(6). This Rule “vests power in courts 
. . .  to enable them to vacate judgments whenever such 
action is appropriate to accomplish justice.” Klapprott 
v. United States, 335 U.S. 601, 615 (1949). Indeed, Rule 
60(b)(6) “reflects and confirms the courts’ own inherent 
and discretionary power, ‘firmly established in English 
practice long before the foundation of our Republic,’ to set 
aside a judgment whose enforcement would work inequity.” 
Plaut. v. Spendthrift Farm, Inc., 514 U.S. 211, 233-34 
(1995) (quoting Hazel-Atlas Glass Co. v. Hartford-Empire 
Co., 322 U.S. 238, 244 (1944)).

District courts have jurisdiction to consider Rule 
60(b) motions in habeas proceedings where, as here, 
such motions “attack[] not the substance of the federal 
court’s resolution of the claim on the merits, but some 
defect in the integrity of the federal habeas proceeding.” 
Gonzalez, 545 U.S. at 532. Thus, a Rule 60(b)(6) motion 
that asserts that “a previous ruling, which precluded a 
merits determination was in error—  for example, a denial 
for such reasons as failure to exhaust, procedural default, 
or statute-of-limitations”— is proper. Gonzalez, 545 U.S. 
at 532 n.4.

Mr. B u ck ’s Rule 60(b)(6) m otion m eets this 
jurisdictional prerequisite because he contends that 
the District Court’s prior denial of his IAC claim on 
procedural default grounds was in error. Under Martinez 
and Trevino, the unreasonable failure of Mr. Buck’s



46

state habeas counsel to present the IAC claim in his 
initial state habeas application constitutes “cause” for 
overcoming the procedural default because trial counsel’s 
error was so egregious that no reasonable post-conviction 
attorney could have overlooked it (much less waited two 
years after Texas publicly promised to concede error to 
raise such a claim). See Detrich v. Ryan, 740 F.3d 1237, 
1246 (9th Cir. 2013) (post-conviction counsel’s failure 
to raise a substantial claim establishes cause under 
Martinez)', see also ABA: Guidelines for the Appointment 
and Performance of Counsel in Death Penalty Cases, 
American Bar Association (1989) at 11.9.3(c), available 
at h ttp ://w w w .am ericanbar.org /content/dam /aba / 
migrated/2011_build/death_penalty R epresentation / 
1989guidelines.authcheckdam .pdf (“ Postconviction 
counsel should seek to present to the appropriate court 
or courts all arguably meritorious issues . . .  .” ).10

B ecause Mr. B u ck ’s Rule 60(b)(6) m otion is 
jurisdictionally proper, the question is whether he has 
shown “ ‘extraordinary circumstances’ justifying the 
reopening of a final judgment.” Gonzalez, 545 U.S. at 
535 (quoting Ackermann v. United States, 340 U.S. 
193, 199 (1950)). In evaluating extraordinariness, “ it 
is appropriate to consider 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.,

10 Texas has not contested state habeas counsel’s 
ineffectiveness. Although, as detailed above, state habeas counsel’s 
failure is apparent, to the extent factual questions as to this (or 
any other issue) remain, they can and should be resolved at an 
evidentiary hearing.

http://www.americanbar.org/content/dam/aba/


47

486 IJ.S. 847, 866 (1988). This fact-intensive inquiry also 
involves an assessment of the applicant’s diligence, the 
probable merit of the underlying claims, the interest 
in finality, and other equitable considerations. See 11 
C. Wright, A. Miller, & M. Kane, Federal Practice and 
Procedure § 2857 (2d ed. 1995 and Supp. 2004); Gonzalez, 
545 U.S. at 540 (Stevens, J., dissenting) (collecting relevant 
factors).

Although this Court has noted that extraordinary 
“circumstances will rarely occur in the habeas context,” 
Gonzalez, 545 U.S. at 535, as explained below— and 
previously recognized by Texas itself—this is one of those 
rare cases.

B. Mr. Buck’s Case Is Extraordinary Within the 
Meaning o f Rule 60(b)(6).

The eleven facts and circumstances proffered by 
Mr. Buck in his Rule 60(b) motion, JA 283a-285a, are 
precisely the type of equitable factors this Court has 
found to justify the reopening of a judgment. Mr. Buck has 
demonstrated that leaving the prior judgment against him 
intact risks a profound injustice in his case and undermines 
public confidence in the rule of law; that he has pursued 
his claims diligently; that his underlying constitutional 
claim has probable merit; and that the State’s ordinary 
interest in the finality of a criminal judgment lacks force.

1. The Risk of Injustice to Mr. Buck

Mr. Buck faces execution pursuant to a death sentence 
whose legitimacy is undermined by expert testimony



48

that Mr. Buck is more deserving of a death sentence 
under Texas law because he is Black; by “a chronicle 
o f inadequate representation at every stage o f the 
proceedings”;11 and by Texas’s failure to keep its promise 
to concede error in Mr. Buck’s case. It is hard to conceive 
of a set of circumstances more likely to produce an unjust 
outcome.

As detailed above, and found by the District Court, 
Dr. Quijano’s race-as-dangerousness testimony “ lends 
credence to any potential latent racial prejudice held by 
the jury.” JA 264a. Because “a juror who believes that 
blacks are violence prone . . .  might well be influenced by 
that belief in deciding whether to impose death,” Turner, 
476 U.S. at 35, the introduction of Dr. Quijano’s opinion at 
Mr. Buck’s capital sentencing hearing creates a very real 
risk that the jury ’s future dangerousness decision— and, 
ultimately, Mr. Buck’s death sentence—was based, at least 
in part, on a profoundly arbitrary and unconstitutional 
factor: race. The prospect of an execution tainted by racial 
bias is a quintessential example of injustice, and one that, 
respectfully, this Court cannot— and must not— tolerate. 
See, e.g., United States v. Webster, 162 F,3d 308, 356 (5th 
Cir. 1998) (recognizing that “a long line of Supreme Court 
precedent admonishes that the guillotine must be as color­
blind as is the Constitution”) (citations omitted).

The risk of injustice was compounded by the failures 
of Mr. Buck’s trial and state post-conviction counsel. Mr. 
Buck’s trial counsel turned the role of defense counsel on 
its head by introducing false and unconstitutional evidence

11 Ex parte Buck, 418 S.W.3d at 98.



49

that strongly supported the prosecution’s case for death. 
And, although Mr. Buck’s initial post-conviction counsel 
should have promptly presented trial counsel’s error to the 
CCA for correction, he raised only meritless claims in the 
initial petition, and waited two years after the Attorney 
General publicly conceded error in Mr. Buck’s case to raise 
an IAC claim based on the introduction of Dr. Quijano’s 
opinion. By then, it was too late. As a result, no state court 
reviewed the merits of the IAC claim, and the federal 
habeas court that considered Mr. Buck’s habeas petition 
in 2006 denied relief on procedural grounds.

Finally, after conceding error in this Court in SoMailo, 
Texas publicly promised to act similarly in six other 
cases, including Mr. Buck’s, which it determined, after 
a thorough audit, were similar to Mr. Saldano’s. Texas 
kept its promise in every case except Mr. Buck’s. It goes 
without saying that it is unjust for “virtually identically 
situated litigants [to be] treated in a needlessly disparate 
manner.” Roper v. Weaver, 550 U.S. 598,601 (2007). In Mr. 
Buck’s case, such disparate treatment is extraordinarily 
unjust because Mr. Buck is now the only Texas prisoner 
to face execution pursuant to a death sentence that Texas 
has acknowledged is corrupted by racial bias.

2. The Risk of Undermining Public Confidence 
in the Justice System and the Risk of 
Bijustice in Other Cases

This Court has repeatedly recognized that “active 
discrimination by litigants on the basis of [race] ‘invites 
cynicism respecting the jury’s neutrality and its obligation 
to adhere to the law.’” JEB v. Alabama ex rel. T.B., 511 
U.S. 127, 141 (1994) (quoting Powers, 499 U.S. at 412).



50

When racial discrimination enters the judicial process, it 
“ratifies] and reinforce[s] prejudicial views of the relative” 
characteristics of Black people and white people, JEB, 
511 U.S. at 140, and thereby puts “the very integrity of 
the courts [in] je o p a r d [y ]Miller-El, 545 U.S. at 238. See 
also Davis v. Ayala, 135 S. Ct. 2187, 2208 (2015) (racial 
discrimination undermines “public confidence in the 
evenhanded administration of justice”).

Dr. Quijano’s race-as-dangerousness opinion had 
exactly this effect. To have such an opinion expressed by 
a court-appointed “expert,” presented by court-appointed 
defense counsel, suggests that the criminal justice system 
itself endorses the false but pervasive belief in a link 
between Black men and violence. The risk of injustice to 
other cases, and to the rule of law itself, is profound. That 
is especially true because, notwithstanding this Court’s 
‘“unceasing efforts’ to eradicate racial prejudice from 
our criminal justice system,” McCleskey v. Kemp, 481 
U.S. 279, 309 (1987) (citation omitted), research shows 
that the perceived link between race and dangerousness 
persists and continues to jeopardize the fundamental 
fairness of the criminal justice system. See, e.g., Jennifer 
L. Eberhardt, et ah, Looking Deathworthy: Perceived 
Stereotypicality o f Black Defendants Predicts Capital 
Sentencing Outcomes 384 (Cornell L. Fac. Publ’ns 
2006), available at http://scholarship.law.cornell.edu/ 
cgi/viewcontent.cgi?article=1040&context=lsrp_papers 
(finding that after controlling for case and individual 
differences, “defendants whose appearance was perceived 
as more stereotypically Black were more likely to receive 
a death sentence than defendants whose appearance was 
perceived as less stereotypically Black”).

http://scholarship.law.cornell.edu/


51

As noted above, in announcing its intention to 
concede error in Mr. Buck’s case, Texas explained that 
“it is inappropriate to allow race to be considered as a 
factor in our criminal justice system,” and declared that 
remedial action by the Attorney General was required 
because “ [t]he people of Texas want and deserve a 
system that affords the same fairness to everyone.” JA 
213a. When, as here, the State reneges on its promise to 
correct a death sentence tainted by an “expert” opinion 
that Black men are more likely to be violent, and when 
the courts fail to intervene, the legitimacy of the justice 
system is demeaned. Moreover, permitting flagrantly 
disparate treatment of similarly-situated persons creates 
a serious risk of injustice in other cases. As the Court has 
stressed in discussing the circumstances warranting Rule 
60(b)(6) relief: “We must continuously bear in mind that 
to perform its high function in the best way justice must 
satisfy the appearance of justice.” Liljeberg, 486 U.S. at 
864 (quoting In re Murchison, 349 U.S. 133, 136 (1955)) 
(internal quotations omitted).

3. The Probable M erit o f  Mr. B u ck ’s 
Ineffectiveness Claim

As detailed above, Mr. Buck has presented a 
meritorious claim of ineffective assistance of counsel. 
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 264a. Mr. Buck was prejudiced 
by the introduction of this false and deeply inflammatory 
evidence because there is a reasonable probability of a 
different outcome had the jury not been tainted by it.



52

b. Texas’s Interest in Finality

Under the unique circumstances of this case, Texas 
does not have a strong interest in the finality of the judgment 
denying federal habeas review of Mr. Buck’s IAC claim. 
Procedural default rules “serve vital purposes,” Murray 
v. Carrier, 477 U.S. 478,490 (1986), including “promot[ing] 
not only the accuracy and efficiency of judicial decisions, 
but also the finality of those decisions,” id. at 491 (quoting 
Reed v. Ross, 468 U.S. 1, 10-11 (1984)). However, those 
interests are diminished here for two reasons.

First, judicial review of ineffective assistance of 
trial counsel claims is essential to the integrity of the 
criminal justice system because “ [t]he right to the effective 
assistance of counsel [at trial] i s . . .  the foundation for our 
adversary system.” Martinez, 132 S. Ct. at 1317. Thus, this 
Court has held that equity allows federal habeas courts 
to overcome the State’s interest in enforcing a procedural 
default if “ the initial-review collateral proceeding.. .  with 
ineffective counsel!] may not have been sufficient to ensure 
that proper consideration [is] given to a substantial claim.” 
Id. at 1318. Because these are precisely the circumstances 
presented by Mr. Buck, Texas’s interest in the finality of 
the District Court’s pre-Trevino denial of habeas relief 
is significantly diminished.

Second, as Texas itself previously recognized, this is 
the rare case in which the nature of the trial error— the 
introduction of express racial bias that not only denies 
Mr. Buck a fair trial but also compromises the rule of 
law— renders finality an insufficient ground upon which 
to justify reliance on procedural default. For these very 
reasons, Texas rightly promised to concede error in the



53

six similar-to-Saldano cases, and it waived procedural 
defenses in five of those cases. A  state has no legitimate 
interest in a death sentence that it has recognized was 
corrupted by racial bias. See Welch v. United States, 136 
S. Ct. 1257,1266 (2016) (“ ‘[TJhere is little societal interest 
in permitting the criminal process to rest at a point where 
it ought properly never to repose.’”) (quoting Mackey v. 
United States, 401 U.S. 667, 693 (1971) (Harlan, J.)).

Even though Texas has now reneged on its promise, 
its sole articulated bases for that reversal of position are 
that (1) defense counsel (and not the prosecutor) were 
responsible for the introduction of the unconstitutional 
race-as-dangerousness testimony and expert report, 
and (2) initial post-conviction counsel failed to raise a 
timely Sixth Amendment challenge to trial counsel’s 
conduct. Cert. Opp’n at 12, 16, 20-21. Putting aside the 
fact that Texas knew what happened at Mr. Buck’s trial 
when it promised not to raise procedural defenses in 
his case, Texas simply relies on the very interests that 
Martinez holds can be overcome by the presentation of 
a “substantial” claim of trial counsel ineffectiveness, like 
the one in this case.

5. Mr. Buck’s Diligence

Mr. Buck has diligently pursued relief on his ineffective 
assistance of counsel claim. When Trevino was announced, 
Mr. Buck had a state habeas application pending before the 
CCA. Because, under Texas law, the immediate filing of a 
Rule 60(b) motion in federal court could have precipitated 
the dismissal of Mr. Buck’s pending application, see Ex 
parte Hernandez, No. W R-63,282-02 (Tex Grim. App. 
Nov. 25,2009), Mr. Buck waited until the CCA adjudicated



54

his application, and then promptly filed his Rule 60(b)(6) 
motion in federal court. This prompt filing demonstrates 
Mr. Buck’s diligence.

6. Conclusion

For all of the foregoing reasons, Mr. Buck’s case 
presents exactly the kind of rare, unique and extraordinary 
circumstances for which Rule 60(b)(6) relief was intended.

C. Reasonable Jurists Could Conclude that the 
Lower Courts’ Denial of Mr. Buck’s Application 
for Rule 60(b)(6) R elief W as Debatable or 
Wrong.

As the foregoing discussion demonstrates, Mr. Buck’s 
case meets the requirements for Rule 60(b)(6) relief. 
Although the District Court’s contrary conclusion is 
reviewed under the abuse-of-discretion standard, a district 
court necessarily abuses its discretion when its judgment 
is based on an error of law, see Cooter & Cell v. Hartmax 
Corp., 496 U.S. 384, 386 (1990), or when its analysis is 
inconsistent with the objectives of the relevant statute or 
rule, see Albermarle Paper Co. v. Moody, 422 U.S. 405, 
416 (1975). Here, the District Court made several errors 
of law, and its analysis is inconsistent with Rule 60(b)’s 
fundamental objective of providing a vehicle for vacating 
judgments when justice so requires. See Liljeberg, 486 
U.S. at 864. At a minimum, reasonable jurists could so 
conclude, thereby warranting a COA.

First, the District Court addressed the circumstances 
identified by Mr. Buck individually, JA 257a-260a, but— 
contrary to the holistic, equitable inquiry mandated by Rule



55

60(b)— it never analyzed whether “collectively [Mr. Buck’s 
evidence establishes] extraordinary circumstances.” 
Ramirez v. United States, 799 F.3d 845,851 (7th Cir. 2015); 
see Klapprott, 335 U.S. at 615 (analyzing circumstances 
collectively in concluding that reopening the judgment 
was appropriate under Rule 60(b)).

Second, although the District Court recognized that 
“ [Mr.] Buck’s counsel recklessly exposed his client to the 
risks of racial prejudice,” JA 264a, the court concluded 
that counsel’s conduct did not support Rule 60(b)(6) relief 
because it had only a ude minimis” impact at sentencing, 
JA259a. However, as detailed in Section X, infra., precedent 
from this Court and numerous other courts— dating back 
over a century— establishes that statements appealing 
to jurors’ racial biases in a criminal trial are profoundly 
prejudicial. That prejudice is especially clear when, as 
here, race-as-dangerousness testimony by a defense 
expert at a capital sentencing proceeding is at issue.

Third, the District Court improperly disregarded 
the facts that Texas promised to concede constitutional 
error in six cases, including Mr. Buck’s, and then broke 
that promise in only Mr, Buck’s case. JA 260a. After 
a “thorough audit” of cases, Texas’s Attorney General 
determined that Mr. Buck’s case was one of six that were 
similar to Saldano, meaning that Dr. Quijano’s race-as- 
dangerousness testimony had fundamentally tainted his 
death sentence. JA 213a. The District Court erred by 
disregarding these extraordinary circumstances simply 
because Texas later changed its mind. Indeed, although 
Texas now contends there is a distinction between Mr. 
Buck’s case and the others based on defense counsel’s role 
in presenting Dr. Quijano’s testimony, that distinction is



56

irrelevant to the reason Texas identified as requiring it 
to concede error in the first place, i.e., ensuring public 
confidence that the judicial system will not tolerate death 
sentences tainted by racial bias. See Roper, 550 U.S. at 
601 (noting that “virtually identically situated litigants” 
should not be “treated in a needlessly disparate manner”).

Fourth, the District Court held that the fact that it had 
previously denied Mr. Buck’s IAC claim as procedurally 
defaulted was immaterial to the Rule 60(b) analysis. JA 
259a-260a. However, because “ [t]he right to the effective 
assistance of counsel at trial is a bedrock principle in our 
justice system,” the denial of review of a “substantial” 
claim of ineffective assistance of trial counsel is “of 
particular concern.” Martinez, 132 S. Ct. at 1317 (citing 
Gideon v. Wainwright, 372 U.S. 335, 344 (1963)). This 
same principle is applicable in the Rule 60(b) context.

To be sure, not every case involving a viable 
Martinez claim may justify reopening the judgment 
under Rule 60(b). See Agostini v. Felton, 521 U.S. 203, 
239 (1997) (noting “ [intervening developments in the 
law by themselves rarely constitute the extraordinary 
circumstances required for relief under Rule 60(b)(6)” ). 
But Martinez is a relevant factor to be considered as part 
of the holistic review mandated by this Court’s precedent. 
See Klapprott, 335 U.S. at 615; see also Gonzalez, 545 U.S. 
at 537 (examining both a change in decisional law and the 
distinctive facts of the case to determine whether the 
petitioner demonstrated an entitlement to 60(b)(6) relief).

In sum, reasonable jurists could surely find that the 
District Court’s denial of Rule 60(b) relief rests on one 
or more legal errors, or otherwise constitutes an abuse



57

of discretion. A COA was therefore required. See Miller- 
El, 537 U.S. at 340 (“In the context of th[is] threshold 
examination.. .[ ,]  the issuance of a COA can be supported 
by any evidence demonstrating an entitlement to relief.”) 
(emphasis added).

The Fifth Circuit, however, denied a COA, insisting 
that Mr. Buck’s “IAC claim . . .  is at least unremarkable 
as far as IAC claims go,” and that the circumstances 
identified by Mr. Buck were “not extraordinary at all in 
the habeas context.” JA 285a. It stretches credulity to 
characterize Mr. Buck’s IAC claim as run-of-the-mill. 
To reach that conclusion, the Fifth Circuit had to ignore 
the racial bias at the heart of Mr. Buck’s case, as well as 
this Court’s repeated admonitions about the profoundly 
prejudicial nature of racial discrimination in the criminal 
justice system, which undermines “public confidence in 
the evenhanded administration of justice.” Dams, 135 S. 
Ct. at 2208.

By failing to “give full consideration to the substantial 
evidence” of extraordinariness presented by Mr. Buck, 
the Fifth Circuit repeated an error in its COA analysis 
that this Court previously corrected. See Miller-El, 537 
U.S. at 341; see also Appendix A at 3a (noting that, in the 
Fifth Circuit, over the last five years, a COA was denied 
on all claims in capital § 2254 cases by both the district 
court and the court of appeals 59% of the time; during that 
same period, a COA was denied on all claims by both the 
district court and court of appeals in only 6.25% of such 
cases in the Eleventh Circuit and 0% of such cases in the 
Fourth Circuit). Furthermore, the Fifth Circuit’s denial 
of a COA conflicts with other evidence that reasonable 
jurists could disagree with the District Court’s decision:



58

specifically, two appellate courts have concluded that the 
change in procedural default law caused by Martinez 
and Trevino is a relevant factor under Rule 60(b)(6), see 
Cox v. Horn, 757 F.3d 113, 122 (3d Cir. 2014); Ramirez, 
799 F.3d at 850; and two Justices of this Court previously 
concluded that a COA was warranted in Mr. Buck’s case, 
see Buck v. Thaler, 132 S.Ct. at 37 (Sotomayor, J., joined 
by Kagan, J., dissenting).

The Fifth Circuit panel also improperly excluded 
Texas’s broken promise from  its extraordinariness 
analysis. Although it acknowledged that such evidence 
is “ odd and factually  unusual,” it concluded that 
“extraordinary circumstances are not merely found 
on the spectrum of common circumstances to unique 
circumstances.” JA 286a. The panel cited no support 
for this ipse dixit, and failed to acknowledge that the 
difference, if any, between an “odd and factually unusual” 
circumstance and an “ extraordinary” circumstance 
is precisely the kind of issue that could be debated by 
reasonable jurists.

The panel further concluded that Mr. Buck failed to 
demonstrate detrimental reliance on the broken promise. 
Id. However, as explained above, “ [irrespective of whether 
the evidence could prove sufficient to support” a claim for 
relief, Miller-El, 537 U.S. at 347, Texas’s broken promise 
is, in and of itself, extraordinary. It leaves Mr. Buck as 
the only prisoner in Texas to face execution pursuant to a 
death sentence that Texas had declared to be illegitimate. 
Such a racially tainted death sentence calls the rule of law 
itself into question.



59

CONCLUSION

For all of the reasons detailed above, Mr. Buck’s case 
is extraordinary, and he has demonstrated his entitlement 
to relief under Rule 60(b)(6). The lower courts’ decisions 
to the contrary are in error or, at a minimum, debatable 
amongst jurists of reason. Mr. Buck is entitled to a COA.

Kathryn M. Kase 
Katherine C. Black 
Texas Defender Service 
1927 Blodgett Street 
Houston, TX 77004 
kateblack@texasdefender.org 
(713) 222-7788

Samuel Spital 
Benjamin R. W ilson 
Holland & K night LLP  
31 West 52nd Street 
New York, NY 10019 
samuel.spital@hklaw.com 
(212) 513-3200

Respectfully submitted,

Sherrilyn Ifill 
Janai Nelson 
Christina A. Swarns 

Counsel of Record 
Jin Hee L ee 
Natasha M. Korgaonkar 
Natasha M erle 
NAACP L egal Defense 

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

Counsel for Petitioner

July 28, 2016

mailto:kateblack@texasdefender.org
mailto:samuel.spital@hklaw.com


APPENDIX



la

CERTIFICATES OF APPEALABILITY IN THE 
FOURTH, FIFTH AND ELEVENTH CIRCUIT 

CHART SINCE JANUARY 1, 2011

CERTIFICATE OF APPEALABILITY REVIEW

Undersigned counsel, with research assistance from two 
students at Columbia Law School, Rachel M. Wagner and 
Andrew J. Simpson, reviewed electronically available 
opinions and orders from the United States Courts of 
Appeals for the Fourth, Fifth and Eleventh Circuits, 
published and unpublished, on or after January 1, 2011, 
in which a petitioner sought relief from his or her death 
sentence under 28 U.S.C. § 2254 and a motion for a 
Certificate of Appealability (“ COA”) was decided within 
the circuit.

Undersigned counsel used the Westlaw database, an 
online legal research service, to input search terms and 
retrieve the relevant cases. The first set of search terms 
were as follows: (1) (capital/s habeas) & 2254 & “certificate 
# o f appealability”; (2) capital /25 2254 & “certificate #o f 
appealability”; (3) (death/2 penalty) & 2254 & “certificate 
#o f appealability”; (4) (capital /s habeas) & 2254/50 “COA”; 
(5) (capital/25 2254) /50 “COA”; and (6) (death /2 penalty) 
& 2254 /5Q “COA.” These searches were narrowed to the 
Fourth, Fifth and Eleventh Circuits and by the relevant 
time period.

To ensure an exhaustive search, undersigned counsel also 
ran a search within a collection of cases tagged by Westlaw 
as concerning Certificates of Appealability (Westlaw 
assigns these cases with an internal number - 197k818). 
Within this section, a broad search for the terms “capital



2a

& 2254” and “death & 2254” was run in the Fourth, Fifth 
and Eleventh Circuit Courts, during the relevant time 
period. This uncovered a small number of additional cases.

A fter the cases were retrieved, undersigned counsel 
reviewed the cases to ensure they fit the criteria identified 
above (i.e., a capital case under 28 U.S.C. § 2254 in which 
the petitioner was under a death sentence and a motion 
for a COA was decided). Cases that were false hits were 
removed from consideration.

In the below chart, any case in which either the district 
court or the Court of Appeals granted a COA on any 
claim is listed as “Granted.” I f no court granted a COA 
on any claim, the case is listed as “Denied.” If the Court 
of Appeals either granted a COA when the district court 
had denied a COA on all claims, or if the Court of Appeals 
expanded a COA granted by the district court, the case 
is described as “Granted, Circuit.” If the district court is 
the only court that granted a COA, the case is described 
as “Granted, District.” When a petitioner sought a COA 
on more than one occasion during the course of his federal 
appeals and two separate opinions were issued by the 
Court of Appeals during the relevant time period, those 
cases are listed separately.

Our review was limited to the electronically available 
opinions issued by the Court of Appeals during the last five 
years; the district court rulings were determined based 
on the procedural history in the Court of Appeals’ opinion. 
With respect to the time frame, the only consideration was 
whether the Court of Appeals issued its decision within the



3 a

last five years, regardless of whether or not the district 
court had also issued its decision within the last five years.

Based on the this review, a COA was denied on all claims 
in 58.9% (76 out of 129) of the cases arising out of the Fifth 
Circuit, while a COA was only denied in 6.3% (7 out of 
111) and 0% of the cases arising out of the Eleventh and 
Fourth Circuits respectively.

Fourth Circuit

Name o f 
Movant

Circuit Case Citation Granted, 
and if  so by 

which court?
Atkins,
Bandy

4th Atkins v. Lassiter, 
502 F.App’x. 244, 245 
(4th Cir. 2012)

Granted,
Circuit

Barnes,
William

4th Barnes v. Joyner, 751 
F.3d 229, 232 (4th Cir. 
2014)

Granted,
District

Elmore,
Edward

4th Elmore v. Ozmint, 
661 F.3d 783, 788 
(4th Cir. 2011), as 
amended (Dec. 12, 
2012)

Granted,
District

Fowler,
Elrico

4th Fowler v. Joyner, 753 
F.3d 446, 453 (4th 
Cir. 2014)

Granted,
Circuit



4a

Gray, Ricky 4th Gray v. Zook, 806 
F.3d 783, 790 (4th Cir. 
2015)

Granted,
District

Gray, Ricky 4th Gray v. Pearson, 526 
F.App’x 331, 332 (4th 
Cir. 2013)

Granted,
District

Hurst,
Jason

4th Hurst v. Joyner, 757 
F.3d 389, 394 (4th Cir. 
2014)

Granted,
District

Johnson,
Shermaine

4th Johnson v. Ponton, 
780 F.3d 219, 222 (4th 
Cir. 2015)

Granted,
District

Porter,
Thomas

4th Porter v. Zook, 803 
F.3d 694, 696 (4th 
Cir. 2015)

Granted,
District

Prieto,
Alfredo

4th Prieto v. Zook, 791 
F.3d 465, 467 (4th Cir. 
2015

Granted,
Circuit

Richardson,
Timothy

4th Richardson v. 
Branker, 668 F.3d 
128,137 (4th Cir. 
2012)

Granted,
District

Teleguz,
Ivan

4th Teleguz v. Pearson, 
689 F.3d 322, 325 (4th 
Cir. 2012)

Granted,
Circuit

Total Granted: 12 (100%)
Total Denied: 0 (0%)



5a

Fifth Circuit1

Name of 
Movant

Circuit Case Citation Granted, 
and if  so by 

which court?
Adams,
Bernika

5th Adams v. Thaler, 421 
F.App’x 322, 324 (5th 
Cir. 2011)

Granted,
District

Allen, Guy 
Len

5th Allen v. Stephens, 619 
F.App’x 280, 281 (5th 
Cir. 2015)

Denied

Allen, Kerry 
Dimart

5th Allen v. Stephens, 805 
F.3d 617, 622 (5th Cir. 
2015)

Denied

Ayestas,
Carlos

Manuel

5th Ayestas v. Thaler, 462 
F.App’x 474, 476 (5th 
Cir. 2012)

Denied

Basso,
Suzanne
Margaret

5th Basso v. Stephens, 
555 F.App’x 335, 337 
(5th Cir. 2014)

Denied

Battaglia, 
John David

5th Battaglia v. Stephens, 
621 F.App’x 781, 787 
(5th Cir. 2015)

Denied

1. In Charles v. Stephens, the Fifth Circuit held that it had 
jurisdiction over petitioner’s motion, although the district court 
denied his request for a COA, because a denial of a motion under 
18 U.S.C. § 3599(f) is an appealable order and not subject to the 
COA requirement. 612 F.App’x214,217 (5th Cir. 2015). Therefore, 
even though the district court “denied” petitioner’s COA, we have 
not listed this case in the chart or counted it in the tally of cases.



6a

Beatty, 
Tracy Lane

5th Beatty v. Stephens, 
759 F.3d 455, 458 (5th 
Cir. 2014)

Denied

Bigby,
James

Eugene

5th Bigby v. Stephens, 
595 F.App’x 350, 351 
(5th Cir. 2014)

Denied

Blue, Carl 
Henry

5th Blue v. Thaler, 665 
F.3d 647, 670 (5th Cir. 
2011)

Denied

Bower,
Lester
Leroy

5th In re Bower, 612 
F.App’x 748, 750 (5th 
Cir. 2015)

Denied

Brawner, 
Jan Michael

5th Brawner v. Epps, 439 
F.App’x 396, 398 (5th 
Cir. 2011)

Denied

Braziel, 
Alvin Avon 

Jr.

5th Braziel v. Stephens, 
No. 15-70018, 2015 
W L 7729400, at *1 
(5th Cir. Nov. 30, 
2015)

Denied

Brown,
Arthur

5th Brown v. Thaler, 684 
F.3d 482, 486 (5th Cir. 
2012)

Denied

Burton, 
Arthur Lee

5th Burton v. Stephens, 
543 F.App’x 451, 453 
(5th Cir. 2013)

Denied

Butler,
Steven

Anthony

5th Butler v. Stephens, 
No. 09-70003, 2015 
WL 5235206, at *4 
(5th Cir. Sept. 9, 2015)

Granted,
Circuit



7a

Byrom,
Michelle

5th Byrom v. Epps, 518 
F.App’x 243, 244 (5th 
Cir. 2013)

Granted,
District

Canales,
Anibal

5th Canales v. Stephens, 
765 F.3d 551, 559 (5th 
Cir. 2014)

Granted,
District

Cantu, Ivan 
Abner

5th Cantu v. Thaler, 632 
F.3d 157,162 (5th Cir. 
2011)

Granted,
District

Carter, 
Tilon 

L ashen

5th Carter v. Stephens, 
805 F.3d 552, 553 (5th 
Cir. 2015)

Denied

Charles,
Derrick

Dewayne

5th Charles v. Stephens, 
736 F.3d 380, 383 (5th 
Cir. 2013)

Granted,
District

Chester,
Elroy

5th Chester v. Thaler, 666 
F.3d 340, 356 fn. 7 
(5th Cir. 2011)

Granted,
District

Clark, Troy 5th Clark v. Stephens, No. 
14-70034, 2015 WL 
5730638, at *4 (5th 
Cir. Oct. 1, 2015)

Granted,
Circuit

Clark, Troy 5th Clark v. Thaler, 673 
F.3d 410, 413 (5th Cir. 
2012)

Granted,
District

Cobb,
Richard
Aaron

5th Cobb v. Thaler, 682 
F.3d 364, 367 (5th Cir. 
2012)

Granted,
District



8a

Coleman, 
Lisa Ann

5th In re Cole?nan, 768 
F.3d 367, 369 (5th Cir. 
2014)

Denied

Coleman, 
Lisa Ann

5th Coleman v. Thaler, 
716 F.3d 895, 898 (5th 
Cir. 2013)

Denied

Craig, Dale 
Dwayne

5th Craig v. Cain, No. 
12-30035, 2013 WL 
69128, at *1 (5th Cir. 
Jan. 4, 2013)

Denied

Crawford, 
Charles Ray

5th Crawford v. Epps, 531 
F.App’x 511, 516 (5th 
Cir. 2013)

Granted,
District

Crutsinger, 
Billy Jack

5th Crutsinger v. 
Stephens, 576 F.App’x 
422, 424 (5th Cir. 
2014)

Denied

Doyle,
Anthony
Dewayne

5th Doyle v. Stephens, 
535 F.App’x 391, 392 
(5th Cir. 2013)

Denied

Druery, 
Marcus Ray 

Tyrone

5th Druery v. Thaler, 647 
F.3d 535, 537 (5th Cir. 
2011)

Denied

Eldridge,
Gerald

Cornelius

5th Eldridge v. Stephens, 
608 F.App’x 289, 289 
(5th Cir. 2015)

Granted,
Circuit

Escamilla,
Licho

5th Escamilla v.
Stephens, 602 F.App’x 
939, 940 (5th Cir.
2015)

Granted,
Circuit



9a

Escamilla,
Licho

5th Escamilla, v. 
Stephens, 749 F.3d 
380, 383 (5th Cir. 
2014)

Granted,
Circuit

Feldman,
Douglas

Alan

5th Feldman v. Thaler, 
695 F.3d 372, 377 (5th 
Cir. 2012)

Denied

Freeman,
James

Garrett

5th Freeman v. Stephens, 
614 F.App’x 180,181 
(5th Cir. 2015)

Denied

Garcia,
Humberto

Leal

5th Garcia v. Thaler, 440 
F.App’x 232, 233 (5th 
Cir. 2011)

Denied

Garcia,
Gustavo
Julian

5th Garcia v. Stephens, 
793 F.3d 513, 515 (5th 
Cir. 2015)

Denied

Garcia,
Juan

Martin

5th Garcia v. Stephens, 
757 F.3d 220, 221 (5th 
Cir. 2014)

Denied

Garza, Joe 
Franco

5th Garza v. Stephens, 
575 F.App’x 404, 406 
(5th Cir. 2014)

Denied

Garza,
Manuel

5th Garza v, Stephens, 
738 F.3d 669, 672 (5th 
Cir. 2013)

Denied

Garza,
Robert
Gene

5th Garza v. Thaler, 487 
F.App’x 907, 908 (5th 
Cir. 2012)

Denied

Gates, Bill 
Douglas

5th Gates v. Thaler, 476 
F.App’x 336, 337 (5th 
Cir. 2012)

Denied



10a

Gonzales,
Ramiro

5th Gonzales v. Stephens, 
606 F.App’x 767, 768 
(5th Cir. 2015)

Denied

Guevara,
Gilmar

Alexander

5th Guevara v. Stephens, 
577 F.App’x 364, 366 
(5th Cir. 2014)

Denied

Gutierrez,
Ruben

5th Gutierrez v. Stephens, 
590 F.App’x 371, 373 
(5th Cir. 2014)

Denied

Hall, Justen 5th Hall v. Thaler, 504 
F.App’x 269, 270 (5th 
Cir. 2012)

Denied

Harris,
Robert
Wayne

5th Harris v. Thaler, 464 
F.App’x 301, 303 (5th 
Cir. 2012)

Denied

Haynes,
Anthony
Cardeli

5th Haynes v. Thaler, 438 
F.App’x 324, 326 (5th 
Cir. 2011)

Granted,
Circuit

Hearn,
Yokamon

Laneal

5th Hearn v. Thaler, 669 
F.3d 265, 267 (5th Cir. 
2012)

Denied

Henderson, 
James Lee

5th Henderson v. 
Stephens, 791 F.3d 
567, 577 (5th Cir. 
2015)

Granted,
District

Hernandez,
Ramiro

5th Hernandez v. 
Stephens, 537 F.App’x 
531, 533 (5th Cir.
2013)

Granted,
District



11a

Hines, 
Bobby Lee

5th Hines v. Thaler, 456 
F.App’x 357, 358 (5th 
Cir. 2011)

Denied

Hoffman,
Jessie

5th Hoffman, v. Cain, 752 
F.3d 430, 434 (5th Cir. 
2014)

Granted,
District

Holiday,
Raphael

Deon

5th Holiday v. Stephens, 
587 F.App’x 767, 790 
(5th Cir. 2014)

Denied

Ibarra,
Ramiro

Rubi

5th Ibarra v. Thaler, 691 
F.3d 677, 679 (5th Cir. 
2012)

Denied

Ibarra,
Ramiro

Rubi

5th Ibarra v. Stephens, 
723 F.3d 599, 600 (5th 
Cir. 2013)

Granted,
Circuit

Jackson,
Henry
Curtis

5th Jackson v. Epps, 447 
F.App’x 535, 537 (5th 
Cir. 2011)

Granted,
District

Jasper, Ray 5th In re Jasper, 559 
F.App’x 366, 368 (5th 
Cir. 2014)

Granted,
Circuit

Jasper, Ray 5th Jasper v. Thaler, 466 
F.App’x 429, 430 (5th 
Cir. 2012)

Granted,
District

Jennings,
Robert

Mitchell

5th Jennings v. Stephens, 
537 FApp’x 326, 339 
(5th Cir. 2013)

Denied

Johnson,
Dexter

5th Johnson v. Stephens, 
617 F.App’x 293, 295 
(5th Cir. 2015)

Granted,
District



12a

Jones,
Shelton
Denoria

5th Jones v. Stephens, 612 
F.App’x 723, 724 (5th 
Cir. 2015)

Granted,
District

Jones,
Shelton
Denoria

5th Jones v. Stephens, 541 
F.App’x 399, 400 (5th 
Cir. 2013)

Denied

Jordan,
Richard

5th Jordan v. Epps, 756 
F.3d 395, 398 (5th Cir. 
2014)

Denied

Ladd,
Robert
Charles

5th Ladd v. Stephens, 748 
F.3d 637, 639 (5th Cir. 
2014)

Granted,
District

Lewis,
Rickey
Lynn

5th Lewis v. Thaler, 701 
F.3d 783, 785 (5th Cir. 
2012)

Granted,
District

Loden,
Thomas
Edwin

5th Loden v. McCarty, 
778 F.3d 484, 493 (5th 
Cir. 2015)

Granted,
District

Manning,
Willie

Jerome

5th Manning v. Epps, 688 
F.3d 177,180 (5th Cir. 
2012)

Granted,
District

Masterson,
Richard

Allen

5th Masterson v. 
Stephens, 596 F.App’x 
282, 284 (5th Cir. 
2015)

Denied

Matamoros, 
John Reyes

5th Matamoros v. 
Stephens, 783 F.3d 
212, 213 (5th Cir. 
2015)

Granted,
Circuit



13a

Matamoros, 
John Reyes

5th Matamoros v. 
Stephens, 539 F.App’x 
487, 489 (5th Cir.
2013)

Granted,
Circuit

Mays,
Randall
Wayne

5th Mays v. Stephens, 757 
F.3d 211, 212 (5th Cir. 
2014)

Denied

McCarthy,
Kimberly
Lagayle

5th McCarthy v. Thaler, 
482 F.App’x 898, 899 
(5th Cir. 2012)

Denied

McCoskey,
Jamie
Bruce

5th McCoskey v. Thaler, 
478 F.App’x 143,145 
(5th Cir. 2012)

Granted,
District

McGowan,
Roger
Wayne

5th McGoiven v. Thaler, 
675 F.3d 482, 503 (5th 
Cir. 2012)

Denied

Mendoza,
Moises

Sandoval

5th Mendoza v. Stephens, 
783 F.3d 203, 209 (5th 
Cir. 2015)

Granted,
District

Mitchell,
William
Gerald

5th Mitchell v. Epps, 641 
F.3d 134,139 (5th Cir. 
2011)

Denied

Newbury,
Donald
Keith

5th Newbury v. Stephens, 
756 F.3d 850, 853 (5th 
Cir. 2014)

Denied

Newbury,
Donald
Keith

5th Newbury v. Thaler, 
437 F.App’x 290, 292 
(5th Cir. 2011)

Denied



14a

Osborne,
Emerson

5th Osborne v. King, 617 
F.App’x 308, 309 (5th 
Cir.)

Granted,
District

Parr,
Carroll

5th Parr v. Thaler, 481 
F.App’x 872, 874 (5th 
Cir. 2012)

Denied

Panetti, 
Scott Louis

5th Panetti v. Stephens, 
727 F.3d 398, 400 (5th 
Cir. 2013)

Granted,
District

Paredes,
Miguel

5th In re Paredes, 587 
F.App’x 805, 807 (5th 
Cir. 2014)

Denied

Perez, Louis 
Castro

5th Perez v. Stephens, 784 
F.3d 276, 278 (5th Cir. 
2015)

Denied

Perez, Louis 
Castro

5th Perez v. Stephens, 745 
F.3d 174,176 (5th Cir. 
2014)

Denied

Pruett,
Robert
Lynn

5th Pruett v. Thaler, 455 
F.App’x 478, 479 (5th 
Cir. 2011)

Granted,
District

Puckett,
Larry

Matthew

5th Puckett v. Epps, 641 
F.3d 657, 658-59 (5th 
Cir. 2011)

Granted,
Circuit

Quintanilla,
John

Manuel

5th Quintanilla v. Thaler, 
443 F.App’x 919, 920 
(5th Cir. 2011)

Denied

Rayford,
William

Earl

5th Rayford v. Stephens, 
622 F.App’x 315, 316 
(5th Cir. 2015)

Denied



15a

Reed,
Rodney

5th Reed v. Stephens, 739 
F.3d 753, 760 (5th Cir. 
2014)

Denied

Ripkowski, 
Britt Allen

5th Ripkowski v. Thaler, 
438 F.App’x 296, 300 
(5th Cir. 2011)

Granted,
District

Rivas,
George

5th Rivas v. Thaler, 432 
F.App’x 395, 396 (5th 
Cir. 2011)

Denied

Roberson,
Robert
Leslie

5th Roberson v. Stephens, 
614 F.App’x 124,125 
(5th Cir. 2015)

Granted,
Circuit

Roberts, 
Donnie Lee

5th Roberts v. Thaler, 681 
F.3d 597, 602 (5th Cir. 
2012)

Granted,
District

Ross,
Vaughn

5th Ross v. Thaler, 511 
F.App’x 293, 294 (5th 
Cir. 2013)

Denied

Ruiz,
Rolando

5th Ruiz v. Stephens, 728 
F3d 416, 418 (5th Cir. 
2013)

Denied

Russeau,
Gregory

5th Russeau v. Stephens, 
559 F.App’x 342, 348 
(5th Cir. 2014)

Granted,
District

Sells,
Tommy

Lynn

5th Sells v. Stephens, 536 
F.App’x 483, 484 (5th 
Cir. 2013)

Denied

Simmons, 
Donald Ray

5th Simmons v. Thaler, 
440 F.App’x 237, 238 
(5th Cir. 2011)

Granted,
Circuit



16a

Simmons, 
Gary Carl

5th Simmons v. Epps, 654 
F.3d 526, 533 (5th Cir. 
2011)

Granted,
Circuit

Simon,
Robert

5th Simon v. Epps, 463 
F.App’x 339, 340 (5th 
Cir. 2012)

Granted,
District

Sprouse,
Kent

W illiam

5th Sprouse v. Stephens, 
748 F.3d 609, 615 (5th 
Cir. 2014)

Granted,
District

Storey,
W illiam

5th Storey v. Stephens, 
606 F.App’x 192, 193 
(5th Cir. 2015)

Denied

Swain,
Mario

5th Swain v. Thaler, 466 
F.App’x 393, 394 (5th 
Cir. 2012)

Granted,
District

Tabler, 
Richard Lee

5th Tabler v. Stephens, 
588 F.App’x 297, 298 
(5th Cir. 2014)

Denied

Tamayo, 
Edgar Arias

5th Tamayo v. Stephens, 
740 F.3d 991, 992 (5th 
Cir. 2014)

Denied

Tamayo, 
Edgar Arias

5th Tamayo v. Stephens, 
740 F.3d 986, 987 (5th 
Cir. 2014)

Granted,
District

Tercero,
Bernardo

Aban

5th Tercero v. Stephens, 
738 F.3d 141,143 (5th 
Cir. 2013)

Denied

Threadgill,
Ronnie

Paul

5th In re Threadgill, 522 
F.App’x 236, 238 (5th 
Cir. 2013)

Denied



17a

Threadgill,
Ronnie

Paul

5th Threadgill v. Thaler, 
425 F.App’x 298, 299 
(5th Cir. 2011)

Granted,
District

Trevino,
Carlos

5th Trevino v. Thaler, 449 
F.App’x 415, 416 (5th 
Cir. 2011)

Granted,
District

Trottie,
Willie
Tyrone

5th Trottie v. Stephens, 
720 F.3d 231, 237 (5th 
Cir. 2013)

Denied

Trottie,
Willie
Tyrone

5th Trottie v. Stephens, 
581 F.App’x 436, 437 
(5th Cir. 2014)

Denied

Turner, 
Edwin Hart

5th Turner v. Epps, 12 
F.App’x 696, 698 (5th 
Cir. 2011)

Denied

Vasquez,
Manuel

5th Vasquez v. Thaler, 
505 F.App’x 319, 323 
(5th Cir. 2013)

Denied

Villanueva,
Jorge

5th Villanueva v. 
Stephens, 555 F.App’x 
300, 309 (5th Cir.
2014)

Granted,
Circuit

Ward, Adam 
Kelly

5th Ward, v. Stephens, 777 
F.3d 250, 253 (5th Cir. 
2015)

Denied

Washington,
Willie
Terion

5th Washington v. 
Stephens, 551 F.App’x 
122, 123 (5th Cir.
2014)

Granted,
Circuit



18a

White,
Garcia
Glenn

5th In re White, 602 
F.App’x 954, 957 (5th 
Cir. 2015)

Denied

White,
Garcia
Glenn

5th White v. Thaler, 522 
F.App’x 236, 238 (5th 
Cir. 2013)

Denied

Wilkins,
Christopher

Chubasco

5th Wilkins v. Stephens, 
560 F.App’x 299, 301 
(5th Cir. 2014)

Denied

Williams,
Clifton
Lam ar

5th Williams v. Stephens, 
761 F.3d 561, 565 (5th 
Cir. 2014)

Denied

Williams,
Perry

Eugene

5th Williams v. Stephens, 
575 F.App’x 380, 382 
(5th Cir. 2014)

Granted,
District

Wilson, 
Marvin Lee

5th Wilson v. Thaler, 450 
F.App’x 369, 371 (5th 
Cir. 2011)

Granted,
District

Wood, 
Jeffrey Lee

5th Wood v. Stephens, 619 
F.App’x 304, 305 (5th 
Cir. 2015)

Granted,
Circuit

Woodard, 
Robert Lee

5th Woodard v. Thaler, 
414 F.App’x 675, 676 
(5th Cir. 2011)

Denied

Young, 
Clinton Lee

5th Young v. Stephens, 
795 F.3d 484, 490 (5th 
Cir. 2015), as revised 
(July 30, 2015)

Denied



19a

Yowell,
Michael

John

5th Yowell v. Thaler, 545 
F.App’x 311, 313 (5th 
Cir. 2013)

Denied

Total Granted: 53 (41.1%)
Total Denied: 76 (58.9%)

Eleventh Circuit

Name o f 
Movant

Circuit Case Citation Granted, 
and if  so by 

which court?
Adkins, 
Ricky D.

11th Adkins v. Warden, 
Holman CF, 710 F.3d 
1241,1243-44 (11th 
Cir. 2013)

Granted,
Circuit

Anderson,
Fred

11th Anderson v. Sec’y, 
Fla. Dep’t of Corn, 
752 F.3d 881, 902 
(11th Cir. 2014)

Granted,
Circuit

Arthur, 
Thomas D.

11th Arthur v. Thomas, 
739 F.3d 611, 627 
(11th Cir.)

Granted,
Circuit

Banks,
Chadwick

11th Banks v. Secy, Fla, 
Dep’t of Corn, 491 
F.App’x 966, 969 (11th 
Cir. 2012)

Granted,
District

Barwick,
Darryl
Brian

11th Barwick v. Sec’y, Fla, 
Dep’t of Corn, 794 
F.3d 1239,1243 (11th 
Cir. 2015)

Granted,
Circuit



20a

Bates, Kayle 
Barrington

11th Bates v. Sec’y, Fla. 
Dep’t of Corr., 768 
F.3d 1278,1283 (11th 
Cir. 2014)

Granted,
Circuit

Belcher,
James

11th Belcher v. Sec’y, Dep’t 
of Corr., 427 F.App’x 
692, 692 (11th Cir. 
2011)

Granted,
Circuit

Bell,
Michael

11th Bell v. Fla. Atty.
Gen., 461 F.App’x 843, 
845 (11th Cir. 2012)

Granted,
District

Bishop,
Joshua
Daniel

11th Bishop v. Warden, 
GDCP, 726 F.3d 1243, 
1253 (11th Cir. 2013)

Granted,
Circuit

Blanco,
Omar

11th Blanco v. Sec’y, Fla. 
Dep’t of Corr., 688 
F.3d 1211,1226 (11th 
Cir. 2012)

Granted,
District

Bolin, Oscar 
Ray

11th In re Bolin, No. 15- 
15710-P, 2016 WL 
51227, at *7 fn. 4 (11th 
Cir. Jan. 4, 2016)

Granted,
District

Booker,
Stephen

11th Booker v. Sec’y, Fla. 
Dep’t of Corr., 684 
F.3d 1121,1122 (11th 
Cir. 2012)

Granted,
Circuit

Borden, 
Jeffrey Lynn

11th Borden v. Allen, 646 
F.3d 785, 807 (11th 
Cir. 2011)

Granted,
District



21a

Boyd,
Anthony

11th Boyd v. Comm’r, Ala. 
Dep’t ofCorr., 697 
F.3d 1320,1330 (11th 
Cir. 2012)

Granted,
Circuit

Brannan, 
Andrew H.

11th Brannan v. GDCP 
Warden, 541 F.App’x 
901, 902 (11th Cir. 
2013)

Granted,
Circuit

Brooks,
Christopher

Eugene

11th Brooks v. Comm’r, 
Ala. Dep’t ofCorr., 
719 F.3d 1292, 1299 
(11th Cir. 2013)

Granted,
Circuit

Burgess,
Raymond

11th Burgess v. Terry, 478 
F.App’x 597, 60i (11th 
Cir. 2012)

Granted,
Circuit

Burns,
Daniel

11th Bums v. Secy, Fla. 
Dep’t ofCorr., 720 
F.3d 1296,1302 (11th 
Cir. 2013)

Granted,
Circuit

Carrillo,
Raul

11th Carrillo v. Sec’y, Fla. 
Dep’t ofCorr., 477 
F.App’x 546, 548 (11th 
Cir. 2012)

Granted,
District

Chavez, 
Juan Carlos

11th Chavez v. Sec’y Fla, 
Dep’t ofCorr., 647 
F.3d 1057,1060 (11th 
Cir. 2011)

Granted,
District

Conner, 
John Wayne

11th Conner v. GDCP 
Warden, 784 F.3d 752, 
756 (11th Cir. 2015)

Granted,
Circuit



22a

Conner, 
John Wayne

11th Conner v. Hall, 645 
F.3d 1277,1286 (11th 
Cir. 2011)

Granted,
Circuit

Connor,
Seburt
Nelson

nth Connor v. Sec’y, Fla. 
Dep’t of Corn, 713 
F.3d 609, 611 (11th 
Cir. 2013)

Granted,
Circuit

Consalvo,
Robert

11th Consalvo v. Sec’y for  
Dep’t of Corn, 664 
F.3d 842, 843 (11th 
Cir. 2011)

Granted,
District

Cook,
Andrew

Allen

11th Cook v. Warden, Ga. 
Diagnostic Prison, 
677 F.3d 1133,1136 
(11th Cir. 2012)

Granted,
District

Cooper,
Richard

11th Cooper v. Sec’y, Dep’t 
of Corn, 646 F.3d 
1328,1330-31 (11th 
Cir. 2011)

Granted,
District

Cox, Allen 
W.

11th Cox v. McNeil, 638 
F.3d 1356,1360 (11th 
Cir. 2011)

Granted,
Circuit

Damren,
Floyd

11th Damren v. Florida, 
776 F.3d 816, 820 
(11th Cir. 2015)

Granted,
District

Downs,
Ernest
Charles

nth Downs v. Sec’y, Fla. 
Dep’t of Corn, 738 
F.3d 240, 256 (11th 
Cir. 2013)

Granted,
Circuit



23a

Evans, Paul 
H.

11th Evans v. Sec’y, Fla. 
Dep’t of Corr., 699 
F.3d 1249,1255 (11th 
Cir. 2012)

Granted,
Circuit2

Evans,
Wydell

11th Evans v. Sec’y, Fla. 
Dep’t of Corr., 681 
F.3d 1241,1251 (11th 
Cir.)

Granted,
District

Everett, 
Paul Glen

11th Everett v. Sec’y, Fla. 
Dep’t of Corn, 779 
F.3d 1212,1218 (11th 
Cir. 2015)

Granted,
Circuit

Farina,
Anthony
Joseph

11th Farina v. Sec’y, Fla. 
Dep’t of Corn, 536 
F.App’x 966, 970 (11th 
Cir. 2013)

Granted,
Circuit

Ferguson,
John

11th Ferguson v. Sec’y, 
Fla. Dep’t of Corn, 
716 F.3d 1315,1330 
(11th Cir. 2013)

Granted,
District

2. The district court granted Mr. Evans habeas relief from 
his death sentence. The State appealed this ruling and the district 
court granted Mr. Evans a COA on two of his claims. The Court 
of Appeals expanded Mr. Evan’s COA. Because petitioner’s 
sentencing relief was not final when his COA was granted, we 
counted Mr. Evans as being under a death sentence and thus 
meeting the criteria for inclusion.



24a

Ferrell, Eric 
Lynn

11th Ferrell v. Hall, 640 
F.3d 1199,1222-23 
(11th Cir. 2011)

Granted,
Circuit

Floyd,
Maurice
Lamar

11th Floyd v. Sec’y, Fla. 
Dep’t of Corr., No. 
13-13566, 2016 WL 
231484, at *1 (11th 
Cir. Jan. 20, 2016)

Granted,
Circuit

Fults,
Kenneth

Earl

11th Fults v. GDCP 
Warden, 764 F.3d 
1311,1312 (11th Cir. 
2014)

Granted,
Circuit

Gissendaner, 
Kelly Renee

11th Gissendaner v. 
Seaboldt, 735 F.3d 
1311,1316 (11th Cir. 
2013)

Granted,
District

Gore,
Marshall

Lee

11th Gore v. Crews, 720 
F.3d 811, 814 (11th 
Cir. 2013)

Granted,
District

Gonzalez,
Ricardo

11th Gonzalez v. Sec’y, 
Fla. Dep’t of Corr., 
629 F.3d 1219, 1220 
(11th Cir. 2011)

Granted,
District

Greene,
Daniel

11th Greene v. Upton, 644 
F.3d 1145,1153 (11th 
Cir. 2011)

Granted,
Circuit

Griffin,
Michael

Allen

11th Griffin v. Sec’y, Fla. 
Dep’t of Corr., 787 
F.3d 1086,1087 (11th 
Cir. 2015)

Denied



25a

Grim,
Norman
Mearle

11th Grim v. Sec’y, Fla. 
Dep’t ofCorr., 705 
F.3d 1284, 1286 (11th 
Cir. 2013)

Denied

Gudinas, 
Thomas Lee

11th Gudinas v. Sec’y, 
Dep’t of Com, 436 
F.App’x 895, 896 (11th 
Cir. 2011)

Granted,
Circuit

Hardy, John 
Milton

11th Hardy v. Comm’r, 
Ala. Dep’t ofCorr., 
684 F.3d 1066,1073 
(11th Cir. 2012)

Granted,
District

Harvey, 
Harold Lee

11th Harvey v. Warden, 
Union Com Inst., 629 
F.3d 1228,1237 (11th 
Cir. 2011)

Granted,
District

Heath,
Ronald
Palmer

11th Heath v. Sec’y, Fla. 
Dep’t ofCorr., 717 
F.3d 1202,1204 (11th 
Cir. 2013)

Granted,
District

Henry,
George
Russell

11th Henry v. Warden, Ga. 
Diagnostic Prison, 
750 F.3d 1226,1230 
(11th Cir. 2014)

Granted,
District

Hitchcock,
James

11th Hitchcock v. Sec’y, 
Fla. Dep’t of Com, 
745 F.3d 476, 480 
(11th Cir. 2014)

Granted,
Circuit



26a

Hittson,
Travis

Clinton

11th Hittson v. GDCP 
Warden, 759 F.3d 
1210,1217 (11th Cir. 
2014)

Granted,
Circuit

Holland, 
Albert Jr.

11th Holland v. Florida, 
775 F.3d 1294,1305 
(11th Cir. 2014)

Granted,
Circuit

Holsey,
Robert
Wayne

11th Holsey v. Warden, 
Ga. Diagnostic 
Prison, 694 F.3d 
1230,1231 (11th Cir. 
2012)

Granted,
District

Howell, 
Paul A.

11th Howell v. Sec’y, Fla. 
Dep’t ofCorr., 730 
F.3d 1257,1260 (11th 
Cir. 2013)

Granted,
District

Hunt,
Gregory

11th Hunt v. Comm’r, Ala. 
Dep’t ofCorr., 666 
F.3d 708, 720 (11th 
Cir. 2012)

Granted,
District

Israel, 
Connie Ray

11th Israel v. Sec’y, Fla. 
Dep’t of Corn, 517 
F.App’x 694, 695 (11th 
Cir. 2013)

Granted,
District

Johnson, 
Marcus Ray

11th Johnson v. Warden, 
Ga. Diagnostic & 
Classification Prison, 
805 F.3d 1317,1323 
(11th Cir. 2015)

Denied



27a

Johnson, 
Marcus Ray

11th Johnson v. Warden, 
808 F.3d 1275,1283 
(11th Cir. 2015)

Denied

Johnson, 
Terrell M.

11th Johnson v. Sec’y, 
Dep’t o f Corn, 643 
F.3d 907, 911 (11th 
Cir. 2011)

Granted,
Circuit

Jones,
Brandon

Astor

11th Jones v. GDCP 
Warden, 753 F.3d 
1171,1181 (11th Cir. 
2014)

Granted,
District

Jones,
Randall

Scott

11th Jones v. Sec’y, Dep’t of 
Corn, 644 F.3d 1206, 
1208 (11th Cir. 2011)

Granted,
Circuit

Kilgore,
Dean

11th Kilgore v. Sec’y, Fla. 
Dep’t of Corn, 805 
F.3d 1301,1308-09 
(11th Cir. 2015)

Granted,
Circuit

Kuenzel,
William
Earnest

11th Kuenzel v. Comm’r, 
Ala. Dep’t of Corn, 
690 F.3d 1311,1314 
(11th Cir. 2012)

Granted,
District

Lambrix,
Cary

Michael

11th Lambrix v. Sec’y, Fla. 
Dep’t of Corn, 756 
F.3d 1246, 1258 (11th 
Cir.)

Denied

Lawrence,
Jonathan

Huey

11th Lawrence v. Sec’y, 
Fla. Dep’t of Corn, 
700 F.3d 464, 476 
(11th Cir. 2012)

Granted,
Circuit



28a

Lee, Jeffrey 11th Lee v. Comm¥, Ala. 
Dep’t of Corr., 726 
F.3d 1172,1191 (11th 
Cir. 2013)

Granted,
District

Lucas, 
Harold Gene

11th Lucas v. Sec’y, Dep’t 
of Corr., 682 F.3d 
1342,1351 (11th Cir. 
2012)

Granted,
District

Lucas,
Daniel

Anthony

11th Lucas v. Warden,
Ga. Diagnostic & 
Classification Prison, 
771 F.3d 785, 790 
(11th Cir. 2014)

Granted,
Circuit

Lugo,
Daniel

11th Lugo v. Sec’y, Fla. 
Dep’t of Corr., 750 
F.3d 1198,1201 (11th 
Cir. 2014)

Granted,
Circuit

Lynch, 
Richard E.

11th Lynch v. Sec’y, Fla. 
Dep’t of Corr., 776 
F.3d 1209,1217 (11th 
Cir. 2015)

Granted,
Circuit

Madison,
Vernon

11th Madison v. Comm’r, 
Ala. Dep’t of Corr., 
677 F.3d 1333,1335 
(11th Cir. 2012)

Granted,
Circuit

Madison,
Vernon

11th Madison v. Comm’r, 
Ala. Dep’t of Corr., 
761 F.3d 1240,1241 
(11th Cir. 2014)

Granted,
Circuit



29a

McNabb,
Torrey
Twane

11th McNabb v. Comm’r, 
Ala. Dep’t of Corr., 
727 F.3d 1334,1335 
(11th Cir. 2013)

Granted,
District

McWilliams, 
James E.

11th McWilliams v. 
Comm’r, Ala. Dep’t of 
Corr., No. 13-13906, 
2015 W L 8950641, at 
*1 (11th Cir. Dec. 16, 
2015)

Granted,
Circuit

Melton,
Antonio
Lebaron

11th Melton v. Sec’y, Fla. 
Dep’t of Corr., 778 
F.3d 1234, 1235 (11th 
Cir.)

Denied

Mendoza,
Marbel

11th Mendoza v. Sec’y, 
Fla. Dep’t of Corr., 
761 F.3d 1213,1215 
(11th Cir. 2014)

Granted,
Circuit

Morris,
Robert

11th Morris v. Sec’y, Dep’t 
of Corr., 677 F.3d 
1117,1125 (11th Cir. 
2012)

Granted,
Circuit

Morton, 
Alvin Leroy

11th Morton v. Sec’y, Fla. 
Dep’t of Corr., 684 
F.3d 1157,1165 (11th 
Cir. 2012)

Granted,
Circuit

Myers, 
Robin D.

11th Myers v. Allen, 420 
F.App’x 924, 927 (11th 
Cir. 2011)

Granted,
District



30a

Owen,
Donald
Eugene

11th Owen v. Fla. Dep’t of 
Corr., 686 F.3d 1181, 
1191-92 (11th Cir. 
2012)

Granted,
District

Pietri,
Norberto

11th Pietri v. Fla. Dep’t of 
Corr., 641 F.3d 1276, 
1279 (11th Cir. 2011)

Granted,
District

Ponticelli,
Anthony

John

11th Ponticelli v. Sec’y, 
Fla. Dep’t of Corr., 
690 F.3d 1271,1291 
(11th Cir. 2012)

Granted,
District

Pooler,
Leroy

11th Pooler v. Sec’y, Fla. 
Dep’t of Corr., 702 
F.3d 1252, 1268 (11th 
Cir. 2012)

Granted,
District

Preston,
Robert

Anthony

11th Preston v. Sec’y, Fla. 
Dep’t of Corr., 785 
F.3d 449, 451 (11th 
Cir. 2015)

Granted,
Circuit

Price,
Christopher

Lee

11th Price v. Allen, 679 
F.3d 1315,1319 (11th 
Cir. 2012)

Granted,
Circuit

Puiatti, Carl 11th Puiatti v. Sec’y, Fla. 
Dep’t of Corr., 732 
F.3d 1255,1259 (11th 
Cir. 2013)

Granted,
Circuit

Ray,
Domenique

11th Ray v. Ala. Dep’t of 
Corr., No. 13-15673, 
2016 WL 66534, at *3 
(11th Cir. Jan. 6, 2016)

Granted,
Circuit



31a

Reese, John 
Loveman

11th Reese v. Sec’y, Fla. 
Dep’t ofCorr., 675 
F.3d 1277,1286 (11th 
Cir. 2012)

Granted,
District

Roberts, 
David Lee

11th Roberts v. Comm’r, 
Ala. Dep’t ofCorr., 
677 F.3d 1086,1088 
(11th Cir. 2012)

Granted,
Circuit

Rodriguez,
Manuel
Antonio

11th Rodriguez v. Sec’y, 
Fla. Dep’t of Corr., 
756 F.3d 1277,1280 
fn. 5 (11th Cir. 2014)

Granted,
District

Rose, 
Milo A.

11th Rose v. McNeil, 634 
F.3d 1224,1240 (11th 
Cir. 2011)

Granted,
Circuit

Rozzelle, 
Roger Allen

11th Rozzelle v. Sec’y, Fla. 
Dep’t ofCorr., 672 
F.3d 1000,1009 (11th 
Cir. 2012)

Granted,
District

Samra,
Michael
Brandon

11th Samra v. Warden, 
Donaldson Corr. 
Facility, No. 14-14869, 
2015 W L 5204387, at 
*11 (11th Cir. Sept. 8, 
2015)

Granted,
Circuit

San Martini, 
Pablo

11th San Martin v. 
McNeil, 633 F.3d 
1257,1265 (11th Cir. 
2011)

Granted,
District



32a

Smith,
Joseph
Clifton

11th Smith v. Campbell, 
620 F.App’x 734, 745 
(11th Cir. 2015)

Granted,
Circuit

Smith, 
Ronald Bert

11th Smith v. Comm’r, 
Ala. Dep’t ofCorr., 
703 F.3d 1266,1268 
fn. 1 (11th Cir. 2012)

Granted,
Circuit

Smithers,
Samuel

11th Smithers v. Sec’y, 
Fla. Dep’t ofCorr., 
501 F.App’x 906, 907 
(11th Cir. 2012)

Granted,
Circuit

Stewart, 
Kenneth A.

11th Stewart v. Sec’y, Fla. 
Dep’t ofCorr., No. 
14-11238, 2015 WL 
9301490, at *3 (11th 
Cir. Dec. 22, 2015)

Granted,
Circuit

Tanzi,
Michael
Anthony

11th Tanzi v. Sec’y, Fla. 
Dep’t ofCorr., 772 
F.3d 644, 650 (11th 
Cir. 2014)

Granted,
Circuit

Taylor,
Michael
Shannon

11th Taylor v. Gulliver, No. 
13-11179, 2015 WL 
4645228, at *1 (11th 
Cir. Aug. 6, 2015)

Granted,
Circuit

Taylor,
Perry

Alexander

11th Taylor v. Sec’y, Fla. 
Dep’t ofCorr., 760 
F.3d 1284,1293 (11th 
Cir. 2014)

Granted,
Circuit

Terrell, 
Brian Keith

11th Terrell v. GDCP 
Warden, 744 F.3d 
1255,1258 (11th Cir.)

Granted,
Circuit



33a

Trepal,
George
James

11th Trepal v. Sec’y, Fla. 
Dep’t ofCorr., 684 
F.3d 1088,1107 (11th 
Cir. 2012)

Granted,
District

Troy, John 11th Troy v. Sec’y, Fla. 
Dep’t ofCorr., 763 
F.3d 1305,1312 (11th 
Cir. 2014)

Granted,
Circuit

Waldrip, 
Tommy Lee

11th Waldrip v. Humphrey, 
532 F.App’x 878, 879' 
(11th Cir. 2013)

Granted,
Circuit

Walls, 
Frank A.

11th Walls v. Buss, 658 
F.3d 1274,1277 (11th 
Cir. 2011)

Granted,
District

Wellons, 
Marcus A.

11th Wellons v. Warden, 
Ga. Diagnostic & 
Classification Prison, 
695 F.3d 1202, 1206 
(11th Cir. 2012)

Granted,
Circuit

White,
Leroy

11th White v. Jones, 408 
F.App’x 292, 293 (11th 
Cir. 2011)

Denied

Williamson,
Dana

11th Williamson v. Fla. 
Dep’t ofCorr., 805 
F.3d 1009,1015 (11th 
Cir. 2015)

Granted,
District

Wilson, 
Marion Jr.

11th Wilson v. Warden, 
Ga. Diagnostic 
Prison, 774 F.3d 671, 
677 (11th Cir. 2014)

Granted,
District



34a

Wright, Joel 
Dale

11th Wright v. Sec’y, Fla. 
Dep’t of Corr., 761 
F.3d 1256,1260 (11th 
Cir. 2014)

Granted,
District

Zack,
Michael
Duane

11th Zack v. Tucker, 666 
F.3d 1265,1267 (11th 
Cir. 2012)

Granted,
District

Total Granted: 104 (93.7%)
Total Denied: 7 (6.3%)