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SCOTUS: Defense counsel was ineffective for injecting race into sentencing

Buck v. Davis, USSC No. 15-8049, 2017 WL 685534 (February 22, 2017), reversing and remanding Buck v. Stephens, 623 Fed. Appx. 668 (5th Cir. 2015) (unpublished); Scotusblog page (including links to briefs and commentary)

Buck was found guilty of capital murder. Under state law, the jury could impose a death sentence only if it found Buck was likely to commit acts of violence in the future. At sentencing Buck’s attorney called Walter Quijano, a psychologist, to give an opinion on that issue. Though the psychologist testified Buck probably would not engage in violent conduct, he also said that race is one factor in assessing a person’s propensity for violence and that Buck was statistically more likely to act violently because he is black. The jury sentenced Buck to death. The Supreme Court, by a 7-to-2 vote, holds Buck’s attorney was ineffective.

This case comes to the Court on collateral review, and technically presents only the narrow question of whether the circuit court properly denied Buck a certificate of appealability (COA). Not surprisingly, then, the case is enveloped in a fog of procedural issues. Let’s set those aside for now and start with the ineffective assistance claim.

Under Strickland v. Washington, 466 U.S. 668 (1984), Buck must show both deficient performance by trial counsel and prejudice from that deficient performance. Deficient performance is a given in this case:

The District Court determined that, in this case, counsel’s performance fell outside the bounds of competent representation. We agree. Counsel knew that Dr. Quijano’s report reflected the view that Buck’s race disproportionately predisposed him to violent conduct; he also knew that the principal point of dispute during the trial’s penalty phase was whether Buck was likely to act violently in the future. Counsel nevertheless (1) called Dr. Quijano to the stand; (2) specifically elicited testimony about the connection between Buck’s race and the likelihood of future violence; and (3) put into evidence Dr. Quijano’s expert report that stated, in reference to factors bearing on future dangerousness, “Race. Black: Increased probability.” ….

Given that the jury had to make a finding of future dangerousness before it could impose a death sentence, Dr. Quijano’s report said, in effect, that the color of Buck’s skin made him more deserving of execution. It would be patently unconstitutional for a state to argue that a defendant is liable to be a future danger because of his race. See Zant v. Stephens, 462 U.S. 862, 885 (1983) (identifying race among factors that are “constitutionally impermissible or totally irrelevant to the sentencing process”). No competent defense attorney would introduce such evidence about his own client. …. (Slip op. at 16-17).

The district court did not, however, think Buck was prejudiced by counsel’s mistake. It concluded the jury would have voted for death even without Quijano’s testimony because of the brutality of Buck’s crime and his lack of remorse. The Supreme Court disagrees.

First, Quijano testified on “the key point at issue in Buck’s sentencing,” which asked the jurors “to render a predictive judgment inevitably entailing a degree of speculation.” (Slip op. at 18). Buck’s prior violent acts had occurred outside of prison, in the context of romantic relationships with women, circumstances that would minimize the prospect of future dangerousness once he was serving life in prison. “But one thing would never change: the color of Buck’s skin. Buck would always be black. And according to Dr. Quijano, that immutable characteristic carried with it an ‘[i]ncreased probability’ of future violence. …. Here was hard statistical evidence—from an expert—to guide an otherwise speculative inquiry.” (Slip op. at 18-19). Further, Quijano was court-appointed, meaning the jury would likely give his view extra weight, and his testimony was “potent evidence” because it “appealed to a powerful racial stereotype—that of black men as ‘violence prone.’” (Slip op. at 19).

For these reasons, we cannot accept the District Court’s conclusion that “the introduction of any mention of race” during the penalty phase was “de minimis.” …. There were only “two references to race in Dr. Quijano’s testimony”—one during direct examination, the other on cross. …. But when a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses. (Slip op. at 19-20).

Now to the procedural issues, which may be of interest to lawyers handling federal habeas cases.

After Buck’s conviction and sentence were affirmed on direct state appeal his case “entered a labyrinth of state and federal collateral review, where it has wandered for the better part of two decades.” (Slip op. at 6). Those wanderings matter, of course, because (to paraphrase an old book) strait is the gate, and narrow is the way, which leadeth to consideration of the merits on habeas review. Buck couldn’t raise an ineffective claim on direct review, but he could raise it on state collateral review. He didn’t raise the issue till his second state habeas petition, which he filed after the state conceded error in other cases that were on federal habeas review where Quijano had testified about race-based dangerousness. But the state didn’t concede error in Buck’s case because Quijano was called by the defense, not the state, and his state petition was dismissed as an improper successive filing. (Slip op. at 6-7, 9, 23). Buck then turned to federal court, but without success. The district court held the ineffective claim was procedurally defaulted because it hadn’t been presented to the state courts and the default couldn’t be excused under the “miscarriage of justice” exception to default. (Slip op. at 7-8).

But wait! There’s more: At the time of Buck’s first federal habeas petition, he couldn’t argue his procedural default should be excused because his state collateral review lawyer was ineffective for failing to raise an ineffective claim about trial counsel. Coleman v. Thompson, 501 U.S. 722, 752-53 (1991). In 2012 and 2013, however, the Court modified Coleman and held that ineffective assistance of postconviction counsel could excuse default if state law restricted the meaningful litigation of some claims to state collateral proceedings. Martinez v. Ryan, 566 U.S. 1 (2012); Trevino v. Thaler, 569 U.S. __ (2013). After those cases were decided Buck returned to federal court, moving to reopen his habeas case based on “extraordinary circumstances” under Rule 60(b)(6) and citing, among other things, the rule change in Martinez and Trevino. The district court denied the motion, in part by rejecting Buck’s ineffective claim. (Slip op. at 9-11). When he tried to appeal the denial, the Fifth Circuit denied a certificate of appealability (COA). (Slip op. at 12). Buck petitioned for review of the denial of the COA, and here we are.

The fact the Court is reviewing the denial of a COA structures its decision. First the Court addresses the law governing COAs and finds the Fifth Circuit’s application of that law wanting. The Court emphasizes that the COA inquiry “is not coextensive with a merits analysis. At the COA stage, the only question is whether the applicant has shown that ‘jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.’” (Slip op. at 13 (quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003))). The Fifth Circuit cited that standard but didn’t apply it, and instead essentially decided the merits of the case against Buck—an approach “flatly prohibit[ed]” by the Court’s precedent. (Slip op. at 13-14).

Because the circuit court erred in its COA analysis, the Court undertakes its own. The first question is whether reasonable jurists could debate the district court’s conclusion that Buck was denied the effective assistance of counsel. Because (as explained above) the Court holds counsel was ineffective, the district court’s conclusion is obviously “debatable.” The next question is whether the district court’s Rule (60)(b)(6) ruling was correct. Again, given the Court’s holdings the merits of Buck’s claim, and the fact the state conceded the need to resentence in other cases involving Quijano, the Court easily concludes the district court erred. (Slip op. 20-24). Finally, the fact that Martinez and Trevino provide an avenue to excuse Buck’s procedural default also supports the conclusion that Buck has shown “extraordinary circumstances” to reopen his habeas proceeding. (Slip op. at 24-26).

Justices Thomas and Alito dissent, criticizing the majority’s analysis of the ineffective claim, the COA issue, and the application of Rule 60(b)(6). (Dissent at 1-12).

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