Buck v. Davis

• Decision Date: 22 February 2017
• Docket Number: No. 15–8049.,15–8049.
• Citation: 197 L.Ed.2d 1,137 S.Ct. 759
• Parties: Duane Edward BUCK, Petitioner v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division.
• Court: U.S. Supreme Court

137 S.Ct. 759

197 L.Ed.2d 1

Duane Edward BUCK, Petitioner

v.Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division.

No. 15–8049.

Supreme Court of the United States

Argued Oct. 5, 2016.

Decided Feb. 22, 2017.

Christina A. Swarns, New York, NY, for Petitioner.

Scott A. Keller, Austin, TX, for Respondent.

Kathryn M. Kase, Katherine C. Black, Texas Defender Service, Houston, TX, Samuel Spital, Benjamin R. Wilson, Holland & Knight LLP, New York, NY, Sherrilyn Ifill, Janai Nelson, Christina A. Swarns, Jin Hee Lee, Raymond Audain, Natasha Merle, NAACP Legal Defense & Educational Fund, Inc., New York, NY, for Petitioner.

Ken Paxton, Attorney General of Texas, Jeffrey C. Mateer, First Assistant Attorney General, Scott A. Keller, Solicitor General, J. Campbell Barker, Deputy Solicitor General, Bill Davis, Ari Cuenin, Assistant Solicitors General, Office of the Attorney General, Austin, TX, for Respondent.

Chief Justice ROBERTS delivered the opinion of the Court.

A Texas jury convicted petitioner Duane Buck of capital murder. Under state law, the jury could impose a death sentence only if it found that Buck was likely to commit acts of violence in the future. Buck's attorney called a psychologist to offer his opinion on that issue. The psychologist testified that Buck probably would not engage in violent conduct. But he also stated that one of the factors pertinent in assessing a person's propensity for violence was his race, and that Buck was statistically more likely to act violently because he is black. The jury sentenced Buck to death.

Buck contends that his attorney's introduction of this evidence violated his Sixth Amendment right to the effective assistance of counsel. This claim has never been heard on the merits in any court, because the attorney who represented Buck in his first state postconviction proceeding failed to raise it. In 2006, a Federal District Court relied on that failure—properly, under then-governing law—to hold that Buck's claim was procedurally defaulted and unreviewable.

In 2014, Buck sought to reopen that 2006 judgment by filing a motion under Federal Rule of Civil Procedure 60(b)(6). He argued that this Court's decisions in Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), and Trevino v. Thaler, 569 U.S. ––––, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), had changed the law in a way that provided an excuse for his procedural default, permitting him to litigate his claim on the merits. In addition to this change in the law, Buck's motion identified ten other factors that, he said, constituted the "extraordinary circumstances" required to justify reopening the 2006 judgment under the Rule. See Gonzalez v. Crosby, 545 U.S. 524, 535, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005).

The District Court below denied the motion, and the Fifth Circuit declined to issue the certificate of appealability (COA) requested by Buck to appeal that decision. We granted certiorari, and now reverse.

I

A

On the morning of July 30, 1995, Duane Buck arrived at the home of his former girlfriend, Debra Gardner. He was carrying a rifle and a shotgun. Buck entered the home, shot Phyllis Taylor, his stepsister, and then shot Gardner's friend Kenneth Butler. Gardner fled the house, and Buck followed. So did Gardner's young children. While Gardner's son and daughter begged for their mother's life, Buck shot Gardner in the chest. Gardner and Butler died of their wounds

. Taylor survived.

Police officers arrived soon after the shooting and placed Buck under arrest. An officer would later testify that Buck was laughing at the scene. He remained "happy" and "upbeat" as he was driven to the police station, "[s]miling and laughing" in the back of the patrol car. App. 134a–135a, 252a.

Buck was tried for capital murder, and the jury convicted. During the penalty phase of the trial, the jury was charged with deciding two issues. The first was what the parties term the "future dangerousness" question. At the time of Buck's trial, a Texas jury could impose the death penalty only if it found—unanimously and beyond a reasonable doubt—"a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." Tex.Code Crim. Proc. Ann., Art. 37.071, § 2(b)(1) (Vernon 1998). The second issue, to be reached only if the jury found Buck likely to be a future danger, was whether mitigating circumstances nevertheless warranted a sentence of life imprisonment instead of death. See § 2(e).

The parties focused principally on the first question. The State called witnesses who emphasized the brutality of Buck's crime and his evident lack of remorse in its aftermath. The State also called another former girlfriend, Vivian Jackson. She testified that, during their relationship, Buck had routinely hit her and had twice pointed a gun at her. Finally, the State introduced evidence of Buck's criminal history, including convictions for delivery of cocaine and unlawfully carrying a weapon. App. 125a–127a, 185a.

Defense counsel answered with a series of lay witnesses, including Buck's father and stepmother, who testified that they had never known him to be violent. Counsel also called two psychologists to testify as experts. The first, Dr. Patrick Lawrence, observed that Buck had previously served time in prison and had been held in minimum custody. From this he concluded that Buck "did not present any problems in the prison setting." Record in No. 4:04–cv–03965 (SD Tex.), Doc. 5–116, pp. 12–13. Dr. Lawrence further testified that murders within the Texas penal system tend to be gang related (there was no evidence Buck had ever been a member of a gang) and that Buck's offense had been a "crime of passion" occurring within the context of a romantic relationship. Id., at 4, 19, 21. Based on these considerations, Dr. Lawrence determined that Buck was unlikely to be a danger if he were sentenced to life in prison. Id., at 20–21.

Buck's second expert, Dr. Walter Quijano, had been appointed by the presiding judge to conduct a psychological evaluation. Dr. Quijano had met with Buck in prison prior to trial and shared a report of his findings with defense counsel.

Like Dr. Lawrence, Dr. Quijano thought it significant that Buck's prior acts of violence had arisen from romantic relationships with women; Buck, of course, would not form any such relationships while incarcerated. And Dr. Quijano likewise considered Buck's behavioral record in prison a good indicator that future violence was unlikely. App. 36a, 39a–40a.

But there was more to the report. In determining whether Buck was likely to pose a danger in the future, Dr. Quijano considered seven "statistical factors." The fourth factor was "race." His report read, in relevant part: "4. Race. Black: Increased probability. There is an over-representation of Blacks among the violent offenders." Id., at 19a.

Despite knowing Dr. Quijano's view that Buck's race was competent evidence of an increased probability of future violence, defense counsel called Dr. Quijano to the stand and asked him to discuss the "statistical factors" he had "looked at in regard to this case." Id., at 145a–146a. Dr. Quijano responded that certain factors were "know[n] to predict future dangerousness" and, consistent with his report, identified race as one of them. Id., at 146a. "It's a sad commentary," he testified, "that minorities, Hispanics and black people, are over represented in the Criminal Justice System." Ibid. Through further questioning, counsel elicited testimony concerning factors Dr. Quijano thought favorable to Buck, as well as his ultimate opinion that Buck was unlikely to pose a danger in the future. At the close of Dr. Quijano's testimony, his report was admitted into evidence. Id., at 150a–152a.

After opening cross-examination with a series of general questions, the prosecutor likewise turned to the report. She asked first about the statistical factors of past crimes and age, then questioned Dr. Quijano about the roles of sex and race: "You have determined that the sex factor, that a male is more violent than a female because that's just the way it is, and that the race factor, black, increases the future dangerousness for various complicated reasons; is that correct?" Id., at 170a. Dr. Quijano replied, "Yes." Ibid.

During closing arguments, defense counsel emphasized that Buck had proved to be "controllable in the prison population," and that his crime was one of "jealousy, ... passion and emotion" unlikely to be repeated in jail. Id., at 189a–191a. The State stressed the crime's brutal nature and Buck's lack of remorse, along with the inability of Buck's own experts to guarantee that he would not act violently in the future—a point it supported by reference to Dr. Quijano's testimony. See id., at 198a–199a ("You heard from Dr. Quijano, ... who told you that ... the probability did exist that [Buck] would be a continuing threat to society.").

The jury deliberated over the course of two days. During that time it sent out four notes, one of which requested the "psychology reports" that had been admitted into evidence. Id., at 209a. These reports—including Dr. Quijano's—were provided. The jury returned a sentence of death.

B

Buck's conviction and sentence were affirmed on direct appeal. Buck v. State, No. 72,810 (Tex.Crim.App., Apr. 28, 1999). His case then entered a labyrinth of state and federal collateral review, where it has wandered for the better part of two decades.

Buck filed his first petition for a writ of habeas corpus in Texas state court in 1999. The four claims advanced in his petition, however, were all frivolous or noncognizable. See Ex parte Buck, No. 699684–A (Dist. Ct. Harris Cty., Tex., July 11, 2003), pp. 6–7. The petition failed to mention defense counsel's introduction of expert testimony that Buck's race increased his propensity for violence.

But Dr. Quijano had testified in other cases, too, and in 1999, while Buck's...