BUCK v. DAVIS, 580 U.S. ___ (2017)


Issues: , , , ,

Dissent (Thomas)

Contents

SUPREME COURT OF THE UNITED STATES

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No. 15?8049

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DUANE EDWARD BUCK, PETITIONER v. LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

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

[February 22, 2017]

?JUSTICE THOMAS, with whom JUSTICE ALITO joins, dissenting.

Having settled on a desired outcome, the Court bull- dozes procedural obstacles and misapplies settled law to justify it. But the majority?s focus on providing relief to petitioner in this particular case has at least one upside: Today?s decision has few ramifications, if any, beyond the highly unusual facts presented here.? The majority leaves entirely undisturbed the black-letter principles of collateral review, ineffective assistance of counsel, and Rule 60(b)(6) law that govern day-to-day operations in federal courts.

I

In reversing the judgment below, the majority relies on three grounds: that the Fifth Circuit misapplied the standard for granting a certificate of appealability (COA); that the District Court erroneously rejected petitioner?s Sixth Amendment ineffective-assistance-of-counsel claim; and that the District Court abused its discretion in rejecting petitioner?s Federal Rule of Civil Procedure 60(b)(6) motion to reopen the court?s earlier judgment denying habeas relief. On each ground, the majority simply dis- agrees with the courts below over the application of the governing standard.? The majority does not announce any new standards or suggest that the District Court or the Fifth Circuit applied the wrong standards altogether.? See, e.g., ante, at 13 (?The court below phrased its determination in proper terms . . . ?).? I agree with the majority that the courts below identified the correct standards for all three of these inquiries.? Contrary to the majority?s conclusion, however, I would hold that they correctly applied those standards, too.

A

At the outset, the Court wrongly criticizes the Fifth Circuit for its application of the COA standard.? A COA is warranted only if the district court?s ruling is ?debatable amongst jurists of reason.?? Miller-El v. Cockrell, 537 U. S. 322, 336 (2003).? To answer this question, a court must conduct a ?general assessment? of the merits of a defendant?s claim. ?Ibid.? The majority faults the Fifth Circuit for concluding outright that petitioner ??has not shown ex- traordinary circumstances that would permit relief under [Rule] 60(b)(6).??? ?Ante, at 13 (quoting Buck v. Stephens, 623 Fed. Appx. 668, 669 (CA5 2015)). In the majority?s view, the existence of extraordinary circumstances represents an ?ultimate merits determinatio[n] the panel should not have reached.?? Ante, at 13?14. Instead, according to the majority, the panel should have limited itself to the threshold question whether the merits were debatable.

The majority?s criticism of the Fifth Circuit is misplaced.? A court may grant a COA even if it might ultimately conclude that the underlying claim is meritless, so long as the claim is debatable. Miller-El, supra, at 336.? But to deny a COA, a court must necessarily conclude that the claim is meritless. A reviewing court cannot determine that a claim is indisputably meritless (that is, nondebat- able) without first deciding that it is meritless. See Slack v. McDaniel, 529 U. S. 473, 484 (2000) (?Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case,? the claim is not debatable (emphasis added)); Weeks v. Angelone, 528 U. S. 225, 231, 234 (2000) (affirming denial of COA after determining that petitioner?s claim was meritless).

In concluding that petitioner?s claims were indisputably meritless as a prelude to denying the COA, the Fifth Circuit thus adopted the approach that courts must take in denying a COA.? The majority might disagree with the conclusion that petitioner?s claims are indisputably meritless, but its criticism of the Fifth Circuit?s approach is most certainly misguided.? The majority?s contrary approach would prevent a court of appeals from denying a COA in any case, an outcome that Congress and our precedents have plainly foreclosed.? See 28 U. S. C. ?2253(c)(2) (COA warranted only if petitioner makes ?a substantial showing of the denial of a constitutional right?); Miller-El, supra, at 337 (The ?issuance of a COA must not be pro forma or a matter of course?). The majority?s comment that ?[u]ntil the prisoner secures a COA, the Court of Appeals may not rule on the merits of his case,? ante, at 12, should not be taken at face value.

In any event, after chastising the Court of Appeals for making an end run around the COA standard in order to reach the merits of petitioner?s Rule 60(b) claim, the Court does precisely that. See ante, at 26 (?[W]e conclude that Buck has demonstrated . . . an entitlement to relief under Rule 60(b)(6)?). Astonishingly, the Court also decides the merits of petitioner?s Sixth Amendment claim?an issue that was not even ?addressed by the Fifth Circuit.?? Ante, at 16; see ante, at 26 (?Buck has demonstrated . . . ineffective assistance of counsel under Strickland [v. Washington, 466 U. S. 668 (1984)]?).

After reaching out to adjudicate the merits, the Court relies on its merits disposition to justify reversing the Fifth Circuit?s denial of a COA. ?Ante, at 26 (?It follows that the Fifth Circuit erred in denying Buck the COA required to pursue these claims on appeal? (emphasis added)). This unapologetic course reversal?made without so much as a hint of the irony?is striking. The majority ?also has things just backwards.? It criticizes the Fifth Circuit for undertaking a merits inquiry to deny a COA (when such an inquiry is required) and then it conducts a merits inquiry to decide that petitioner?s claim is debat- able (when such an inquiry is inappropriate).

B

The Court?s application of the standard in Strickland v.

Washington, 466 U. S. 668 (1984), is similarly misguided.? In particular, the Court erroneously finds that petitioner?s claim satisfies Strickland?s second prong, which requires a defendant to show that his counsel?s mistake materially prejudiced his defense.? Prejudice exists only when correcting the alleged error would have produced a ?substantial? likelihood of a different result.? Harrington v. Richter, 562 U. S. 86, 111?112 (2011).? Here, the sentence of death hinged on the jury?s finding that petitioner posed a threat of future dangerousness.? Texas? standard for making such a finding is not difficult to satisfy: ?The facts of the offense alone may be sufficient to sustain the jury?s finding of future dangerousness,? and ?[a] jury may also infer a defendant?s future dangerousness from evidence showing a

lack of remorse.?? Buntion v. State, 482 S. W. 3d 58, 66?67 (Tex. Crim. App. 2016).

The majority neglects even to mention the relevant legal standard in Texas, relying instead on rhetoric and speculation to craft a finding of prejudice.? But the prosecution?s evidence of both the heinousness of petitioner?s crime and his complete lack of remorse was overwhelming.? Accordingly, Dr. Quijano?s ?de minimis? racial testimony, Buck v.

Stephens, 2014 WL 11310152, *5 (SD Tex., Aug. 29, 2014), did not prejudice petitioner.

First, the facts leave no doubt that this crime was premeditated and cruel.? The Court recites defense testimony describing the killing spree here as a ?crime of passion,? ante, at 4 (internal quotation marks omitted), but the record belies that characterization.? The rampage occurred at the home of Debra Gardner, petitioner?s ex-girlfriend.? Prior to the shooting, petitioner called her house. His stepsister, Phyllis Taylor, answered, and petitioner asked to speak with Gardner.? Gardner declined, and petitioner hung up. Petitioner then retrieved a shotgun and rifle, loaded both guns, and drove 28 miles to Gardner?s house. ?Upon arrival, he broke down the door and opened fire without provocation. The shooting did not occur in the heat of the moment.

In addition to describing this as a crime of passion, the majority also parrots defense testimony that petitioner?s violence was limited to ?the context of romantic relationships.? Ante, at 18. But this assertion is also quite wrong.? Upon entering Gardner?s house, petitioner first shot at an acquaintance, Harold Ebnezer. He next approached his stepsister, Taylor, who was seated on the couch.? He said, ??I?m going to shoot your ass too.??? App. 82a.? She begged ??????????????????? ?him, ??Duane, please don?t shoot me.? I?m your sister. I ?don?t deserve to be shot. Remember I do have children.??? ?Id., at 83a. Petitioner ignored her pleas, placed the gun on her chest, and shot her. Petitioner does not claim that he was in a romantic relationship with either Ebnezer or Taylor.

After shooting Taylor, petitioner cornered one of Gardner?s friends, Kenneth Butler, and shot him, as well.? He then exited the house and chased Gardner into the middle of the street. She turned to him and pleaded, ??Please ?don?t shoot me. Please don?t shoot me.? Why are you doing this in front of my kids???? ?Id., at 104a. Her son, Devon, watched from the sidewalk.? Her daughter, Shennel, begged petitioner to spare her mother and even attempted to restrain him. Petitioner pointed the gun at Gardner and said, ??I?m going to shoot you.? I?m going to shoot your ?A[ss].??? ?Id., at 117a. He then did so.? The flight path of the bullet suggests that Gardner was on her knees when petitioner shot her.

Second, the evidence of petitioner?s lack of remorse, largely ignored by the majority, is startling.? After shooting Gardner, petitioner walked back to his car and placed the firearms in the trunk.? He then returned to taunt Gardner where she lay mortally wounded and bleeding in the street. He said, ??It ain?t funny now.? You ain?t laugh- ing now.??? ?Id., at 106a. Police arrived shortly thereafter and arrested him. In the patrol car, petitioner was ?laughing and joking and taunting.? Id., at 71a. He continued to smile and laugh during the drive to the police station. ?When one of the officers informed petitioner that he did not find the situation humorous, petitioner replied that ??[t]he bitch got what she deserved.??? ?????????????????? ?Id., at 135a. He remained happy and upbeat for the remainder of the drive, even commenting that he was going to heaven because God had already forgiven him.

C

Finally, the majority incorrectly concludes that the District Court erred in denying petitioner?s motion under Rule 60(b)(6), which permits district courts to reopen otherwise final judgments only in ?extraordinary circumstances.? Ackermann v. United States, 340 U. S. 193, 199 (1950). Although the majority pays lip service to the fact that the District Court?s decision on this point is subject to ?limited and deferential appellate review,? Gonzalez v. Crosby, 545 U. S. 524, 535 (2005); see ante, at 20?21, it proceeds to conduct a de novo review. Indeed, the majority references the District Court?s analysis only once in the entire section of its opinion addressing Rule 60(b)(6).? But the question is not whether this Court thinks the circumstances are extraordinary; the question is whether reasonable jurists would debate that the District Court abused its discretion in reaching the equitable, highly factbound conclusion that they are not.? Particularly in light of our admonition that such circumstances ?will rarely occur in the habeas context,?? 545 U. S., at 535, I think it is not debatable that the District Court acted within its discretion in denying Rule 60(b)(6) relief here.? In reversing the Fifth Circuit, the centerpiece of the Court?s analysis is its observation that ? ?[d]iscrimination ?on the basis of race, odious in all aspects, is especially pernicious in the administration of justice.?? ?Ante, at 22 (quoting Rose v. Mitchell, 443 U. S. 545, 555 (1979)).? I agree that racial classifications are categorically impermissible under the Equal Protection Clause?but peti- tioner is not raising an equal protection claim.? The many precedents the Court cites interpreting that Clause are therefore beside the point. Instead, petitioner is claiming that his case presents extraordinary circumstances under Rule 60(b)(6). The majority identifies no precedents regarding race in the Rule 60(b)(6) context.? And certainly nothing in the text or history of Rule 60(b)(6)?unlike the text and history of the Equal Protection Clause?suggests that race-based claims demand unique solicitude in this context. At the very least, the District Court did not abuse its discretion in determining that they do not.[1] ??In a similar vein, the majority suggests that the use of race in petitioner?s capital proceeding injured the public?s confidence in the integrity of our judicial system. Ante, at 22. This argument cannot be squared with the District Court?s finding that the challenged racial testimony was ?de minimis.? 2014 WL 11310152, at *5.? It also ignores the fact that petitioner?s own counsel elicited the testimony. The majority obscures this point by citing cases concerning alleged racial discrimination by an agent of the state. See ante, at 22 (citing, e.g., Davis v. Ayala, 576 U. S. ___ (2015) (addressing the prosecutor?s use of peremptory strikes and holding that any constitutional error was harmless)). There, the injury to public confidence derives from the fact that the government itself is discriminating against the defendant.? The same cannot be said, however, when defense counsel introduces harmful testimony or makes a bad strategic choice.[2] ?

In conjunction with its observations about race, the Court notes that the Texas attorney general, in response to similar testimony from Dr. Quijano in another case, issued a press release decrying the use of race in the justice system and subsequently waived all procedural obstacles to resentencing in several cases in which Dr. Quijano testified. But Texas had good reason for treating this case differently from the others. Of those cases, this is the only one where ?it can be said that the responsibility for eliciting the offensive testimony lay squarely with the defense.? ?Buck v. Thaler, 565 U. S. 1022, 1025 (2011) (ALITO, J., statement respecting denial of certiorari).

Lastly, the Court belittles Texas? claimed interest in finality. In the majority?s view, Texas effectively forfeited its finality interest when it waived its procedural defenses in purportedly similar cases.? See ante, at 24.? But Texas did not waive its procedural defenses in this case, and, in any event, Texas is not alone in possessing an interest in the finality of petitioner?s sentence. Society at large has the same interest. Finality advances values ?essential to the operation of our criminal justice system.? Teague v. Lane, 489 U. S. 288, 309 (1989) (plurality opinion).? It promotes the law?s deterrent effect; it provides peace of mind to a wrongdoer?s victims; it promotes public confidence in the justice system; it conserves limited public resources; and it ensures the clarity of legal rights and statuses.

The Court?s finality analysis also ignores the lengthy passage of time (nearly eight years) between the District Court?s original rejection of habeas relief in this case and petitioner?s filing of the instant Rule 60(b)(6) motion. See Gonzalez, 545 U. S., at 542, n. 4 (Stevens, J., dissenting) (?In cases where significant time has elapsed between a habeas judgment and the relevant change in procedural law, it would be within a district court?s discretion to leave such a judgment in repose?). Permitting a defendant to file a Rule 60(b) motion years after the fact functionally eviscerates the statute of limitations contained in the Antiterrorism and Effective Death Penalty Act of 1996, thereby undermining its purpose of ?lend[ing] finality to state court judgments within a reasonable time.?? Day v. McDonough, 547 U. S. 198, 205?206 (2006) (internal quotation marks omitted).

II

Despite its errors, today?s opinion should have little effect on the broader law, for two reasons.? For one thing, the Court?s reasoning is highly factbound, and the facts presented here are unlikely to arise again.? For another, although the majority misapplies settled principles, it does not purport to actually alter any of those principles.

A

This is an unusual case, and the majority?s singleminded focus on according relief to this petitioner on these facts naturally limits the reach of its decision.? In cases presenting different facts, today?s decision will provide little guidance. The Court?s ultimate conclusion relies on the convergence of three critical factors that will rarely, if ever, recur. See ante, at 19 (describing this case as involving an ?unusual confluence of factors? that together create a ?perfect storm?).

First, the Court places special weight on the fact that this is a capital case. See, e.g., ante, at 23 (noting ?the capital nature of this case? as a factor favoring Rule 60(b)(6) relief (internal quotation marks omitted)).? Second, the Court notes that the testimony at issue was expressly racial and suggested that petitioner was more deserving of the death penalty because he is black.? See, e.g., ante, at 21 (?Buck may have been sentenced to death in part because of his race. . . . [T]his is a disturbing departure from a basic premise of our criminal justice system?).[3]? Third, the Court explains that the state attorney general took the ?remarkable steps,? ante, at 23, of publicly declaring that Dr. Quijano?s testimony in this case was inappropriate and waiving all procedural defenses to resentencing in similar cases. See, e.g., ante, at 22 (?The extraordinary nature of this case is confirmed by what the State itself did in response to Dr. Quijano?s testimony?).

B

The effect of today?s decision is also limited for a second reason. Although the majority misapplies many exist- ing doctrines, it refrains from announcing any new principles of law.? In particular, it leaves untouched?and courts should accordingly continue to apply as usual?established principles governing collateral review, ineffective-assistance-of-counsel claims, and Rule 60(b)(6) motions.

At the outset, the opinion leaves intact Miller-El?s wellworn COA standard for habeas petitions: Courts of appeals should deny applications when the district court?s ruling is not ?debatabl[y]? wrong.? 537 U. S., at 336; see ante, at 13. ?A prisoner seeking a COA must prove something more than the absence of frivolity or the existence of mere good faith on his or her part.?? 537 U. S., at 338 (internal quotation marks omitted).? Courts have substantial discretion in deciding how to structure this inquiry.? See ante, at 15 (?We do not mean to specify what procedures may be appropriate in every case?).

The Court also reaffirms the ??highly deferential?? char- ?acter of the Strickland standard. Harrington, 562 U. S., at 105 (quoting Strickland, 466 U. S., at 689); see, e.g., ante, at 16 (first prong of Strickland ?sets a high bar?).? Courts applying Strickland must respect ?the constitutionally protected independence of counsel and the wide latitude counsel must have in making tactical decisions.?? Cullen v. Pinholster, 563 U. S. 170, 195 (2011) (internal quotation marks and alteration omitted).? Counsel should be ?strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.?? Id., at 189 (internal quotation marks omitted). And a defendant can show prejudice only if the likelihood of a different result would have been ?substantial, not just conceivable.? ?Harrington, supra, at 112.

Perhaps most significantly, the test for reopening judgments under Rule 60(b)(6) remains the same.? A ??very ?strict interpretation of Rule 60(b) is essential if the finality of judgments is to be preserved.?? ?Gonzalez, 545 U. S., at 535 (quoting Liljeberg v. Health Services Acquisition Corp., 486 U. S. 847, 873 (1988) (Rehnquist, C. J., dissenting)). A district court may grant relief only if the movant can show ?extraordinary circumstances,? which ?will rarely occur in the habeas context.?? 545 U. S., at 535. (internal quotation marks omitted); see ante, at 10. A change in law alone is not enough.? See 545 U. S., at 536? 537. And a district court?s decision to deny relief is subject to only ?limited and deferential? appellate review.? Id., at 535.

Although petitioner argues that the change in law effected by Martinez v. Ryan, 566 U. S. 1 (2012), and Tre- vino v. Thaler, 569 U. S. ___ (2013), is central to the Rule 60(b)(6) inquiry, see Brief for Petitioner 56; Reply Brief 19, the Court does not even count those decisions in its tally of extraordinary circumstances.? Instead, it treats a potentially viable Martinez claim as a ?precondition? to relief. ?Ante, at 25. This makes sense: Unless petitioner has the ability to invoke Martinez and Trevino, reopening the judgment would be futile.? For those in petitioner?s position, the absence of a potentially valid Martinez claim is disqualifying, but the presence of one does nothing to demonstrate the existence of extraordinary circumstances.

III

Finally, the Court?s opinion does not require the lower courts to reflexively accord relief to petitioner on remand. ?In order to succeed under Martinez and Trevino, petitioner must establish that his state habeas counsel was constitutionally ineffective for failing to raise a Strickland claim as to his trial counsel.? Today?s decision does not address that showing, and the court on remand should not treat it as a foregone conclusion. ?I respectfully dissent.

Footnotes:

[1] That is especially true given that Dr. Quijano?s testimony is relevant to the Rule 60(b)(6) inquiry, under the majority?s reasoning, only insofar as it was prejudicial. See ante, at 21 (?[O]ur holding on prejudice makes clear that Buck may have been sentenced to death in part because of his race?).? As I have explained, the testimony was not prejudicial.

[2] Although the prosecution on cross-examination asked Dr. Quijano a single question about his views on race, the question arose in the course of canvassing his expert report, and did not extend beyond the testi- mony already elicited by the defense.? App. 170a.

[3] Dr. Quijano also testified that petitioner was more likely to be dangerous in the future because he is male.? Petitioner does not claim that this testimony renders his case extraordinary, and the Court does not so hold.? Any such claim would find no support in today?s decision, given the importance of the racial nature of the testimony at issue to the Court?s reasoning.