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Notice to Filers, Changes in Requirement of Certificate of Compliance:

The Clerk of Court has also updated the Practitioner's Guide with the following:

Notice of Proposed Amendment to 5TH CIRCUIT RULES 26, 28, 29, 31 and 32 
Pursuant to 28 U.S.C. § 2071, we give notice the court is considering amending 5TH CIR. R. 26, 28, 29, 31 and 32 as shown below.  Additionally, the court is studying possible additional changes with respect to new word count limitations in the December 1, 2016 amendments to FRAP Rules 5, 21, 27, 28.1, 32, 35 and 40.   
We will accept written comments for consideration on the proposed change through November 15, 2016: 
Clerk of Court U.S. Court of Appeals for the Fifth Circuit ATTN: Rule Changes 600 South Maestri Place New Orleans, LA 70130 
Notice of Proposed Amendment to 5TH CIRCUIT RULES 26, 28, 29, 31 and 32 
Pursuant to 28 U.S.C. § 2071, we give notice the court is considering amending 5TH CIR. R. 26, 28, 29, 31 and 32 as shown below.  Additionally, the court is studying possible additional changes with respect to new word count limitations in the December 1, 2016 amendments to FRAP Rules 5, 21, 27, 28.1, 32, 35 and 40.   
We will accept written comments for consideration on the proposed change through November 15, 2016: 
Clerk of Court U.S. Court of Appeals for the Fifth Circuit ATTN: Rule Changes 600 South Maestri Place New Orleans, LA 70130 
or send comments electronically to 

Fair Labor Lawyer by Marlene Trestman

The Clerk of Court for the Fifth Circuit has offered guidance for citation to the record on appeal.  

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The Daily Commentary (sample)

Sample case reviewed on February 27, 2017.
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Buck v. Davis No. 15-8049
(February 22, 2017 SCOTUS Opinion).
(November 6, 2015 Order Denying Rehearing En Banc).
(August 20, 2015 Panel Opinion).


ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined.

REVERSED and REMANDED. (February 22, 2017).

THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined.

Posted in Criminal Procedure, Death Penalty, Habeas Corpus, Ineffective Assistance of Counsel, Sixth Amendment

In 1995, Duane Buck murdered his ex-girlfriend Debra Gardner and her friend Kenneth Butler. Buck was arrested at the scene, and police found the murder weapons in the trunk of his car. Two witnesses identified him as the shooter. Buck laughed during and after the arrest and stated to one officer that “[t]he bitch got what she deserved.” He was convicted of capital murder for the deaths in a Texas court. Under Texas law, the jury was permitted to impose a death sentence only if it found unanimously and beyond a reasonable doubt that Buck was likely to commit acts of violence in the future. Buck’s attorney called Dr. Walter Quijano, a clinical psychologist, to offer his opinion on that issue. Dr. Quijano had been appointed to evaluate Buck by the presiding judge and had prepared a report setting out his conclusions. Buck’s lawyer asked Quijano what factors he would look at to determine whether an inmate would engage in future acts of violence. Quijano explained several, including age, sex, race, social economics, and substance abuse. For example, he testified that advanced age and increased wealth correlated with a decline in the likelihood of committing future violent acts. On race, he gave a one-sentence explanation: “It’s a sad commentary that minorities, Hispanics and black people, are over represented in the Criminal Justice System.” Although Dr. Quijano ultimately concluded that Buck was unlikely to be a future danger, his report also stated that Buck was statistically more likely to act violently because he was black. The report read, in relevant part: “Race. Black: Increased probability.” Despite knowing the contents of the report, Buck’s counsel called Dr. Quijano to the stand, where he testified that race is a factor “know[n] to predict future dangerousness.” Dr. Quijano’s report was admitted into evidence at the close of his testimony. The prosecution questioned Dr. Quijano about his conclusions on race and violence during cross-examination, and it relied on his testimony in summation. During deliberations, the jury requested and received the expert reports admitted into evidence, including Dr. Quijano’s. The jury returned a sentence of death. Buck contended that his attorney’s introduction of this evidence violated his Sixth Amendment right to the effective assistance of counsel. Buck failed to raise this claim in his first state postconviction proceeding.

While that proceeding was pending, this Supreme Court received a petition for certiorari in Saldano v. Texas, 530 U. S. 1212, a case in which Dr. Quijano had testified that the petitioner’s Hispanic heritage weighed in favor of a finding of future dangerousness. Texas confessed error on that ground, and the Supreme Court vacated the judgment below. Soon afterward, the Texas Attorney General issued a public statement identifying six similar cases in which Dr. Quijano had testified. Buck’s was one of them. In the other five cases, the Attorney General confessed error and consented to resentencing. Buck contended that Texas “promised to concede constitutional error and waive its procedural defenses” in his case so that he could get resentenced without the race-related testimony. It was never established, however, that the AG’s office promised not to raise procedural defenses in Buck’s case. When Buck filed a second state habeas petition alleging that his attorney had been ineffective in introducing Dr. Quijano’s testimony, the State did not confess error, and the court dismissed the petition as an abuse of the writ on the ground that Buck had failed to raise the claim in his first petition. Buck then sought Federal habeas relief under 28 U. S. C. §2254. The state again declined to confess error, and Buck’s ineffective assistance claim was held procedurally defaulted and unreviewable under Coleman v. Thompson, 501 U. S. 722. Later decisions from the Supreme Court in in Martinez v. Ryan, 566 U. S. 1, and Trevino v. Thaler, 569 U. S. ___, modified the rule of Coleman. Had they been decided before Buck filed his Federal habeas petition, Buck’s claim could have been heard on the merits provided he had demonstrated that (1) state postconviction counsel had been constitutionally ineffective in failing to raise the claim, and (2) the claim had some merit. Following the decision in Trevino, Buck sought to reopen his §2254 case under Federal Rule of Civil Procedure 60(b)(6). To demonstrate the “extraordinary circumstances” required for relief, Gonzalez v. Crosby, 545 U. S. 524, 535, Buck cited the change in law effected by Martinez and Trevino, as well as ten other factors, including the introduction of expert testimony linking Buck’s race to violence and the State’s confession of error in similar cases. The District Court denied relief. Reasoning that “the introduction of any mention of race” during Buck’s sentencing was “de minimis,” the District Court concluded, first, that Buck had failed to demonstrate extraordinary circumstances; and second, that even if the circumstances were extraordinary, Buck had failed to demonstrate ineffective assistance under Strickland v. Washington, 466 U. S. 668. Buck sought a certificate of appealability from the Fifth Circuit to appeal the denial of his Rule 60(b)(6) motion. A panel of the Fifth Circuit (SMITH, OWEN, and HAYNES) denied his application, concluding that he had not shown extraordinary circumstances justifying relief from the District Court’s judgment. Buck filed a petition for rehearing en banc with was denied. In the en banc poll, Judges DENNIS and GRAVES voted in favor of rehearing. Chief Judge STEWART and Judges JOLLY, DAVIS, JONES, SMITH, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, HIGGINSON, and COSTA voted against rehearing. Judge DENNIS, joined by Judge GRAVES dissented for the denial or rehearing en banc. The dissent recalled that in Miller-El v. Cockrell, 537 U.S. 322, 336-37 (2003), the Supreme Court held that the threshold inquiry required by 28 U.S.C. § 2253(c): “does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. When a court of appeals sidesteps this process by first deciding the merits of an appeal, and then justifying its denial of a COA based on its adjudication of the actual merits, it is in essence deciding an appeal without jurisdiction.” The dissent’s view was that the panel in this case had followed that prohibited side-stepping process by justifying its denial of a COA based on its adjudication of the actual merits.

Buck timely filed a petition for certiorari. The Supreme Court granted the writ on June 6, 2016, and the matter was argued on October 5, 2016. On February 22, 2017, a divided Supreme Court decided that the Fifth Circuit exceeded the limited scope of COA analysis. Chief Justice ROBERTS delivered the opinion of the Court. The majority reasoned that the Fifth Circuit phrased its determination in proper terms, but reached its conclusion only after essentially deciding the case on the merits, repeatedly faulting Buck for having failed to demonstrate extraordinary circumstances. The majority corrected that the proper question for the Fifth Circuit was not whether Buck had shown that his case is extraordinary, but whether jurists of reason could debate that issue. The majority next held that Buck had demonstrated ineffective assistance of counsel under Strickland. The majority emphasized that Buck’s trial counsel knew that Dr. Quijano’s report reflected the view that Buck’s race predisposed him to violent conduct and that the principal point of dispute during the penalty phase was Buck’s future dangerousness, but still called him to the stand, and specifically elicited testimony about the connection between race and violence. And, counsel placed Dr. Quijano’s report into evidence. The Court concluded that no competent defense attorney would introduce evidence that his client is liable to be a future danger because of his race. The majority had little trouble finding that Buck was prejudiced by counsel’s deficient performance inasmuch as it was reasonably probable that without Dr. Quijano’s testimony on race and violence, at least one juror would have harbored a reasonable doubt on the question of Buck’s future dangerousness.

Finally, the majority held that the District Court’s denial of Buck’s Rule 60(b)(6) motion was an abuse of discretion. Relief under Rule 60(b)(6) is available only in “extraordinary circumstances.” Gonzalez, 545 U. S., at 535. The majority found that the extraordinary nature of this case was confirmed by the remarkable steps the State itself took in response to Dr. Quijano’s testimony in other cases. Although the State attempted to justify its decision to treat Buck differently from the other five defendants identified in the Attorney General’s public statement, its explanations for distinguishing Buck’s case from Saldano had nothing to do with the Attorney General’s stated reasons for confessing error in that case. The majority acknowledged that unless Martinez and Trevino, rather than Coleman, would govern Buck’s case were it reopened, his claim would remain unreviewable and Rule 60(b)(6) relief would be inappropriate. The State argued that Martinez and Trevino would not govern Buck’s case because they announced a “new rule” under Teague v. Lane, 489 U. S. 288, that does not apply retroactively to cases on collateral review. This argument, however, the majority deemed waived based on the state’s failure to advance it in District Court, before the Fifth Circuit, or in its brief in opposition to Buck’s petition for certiorari.

Justice THOMAS, joined by Justice ALITO, dissented. Sensing irony in the majority’s approach, the dissent highlighted the majority’s criticism of the Fifth Circuit “for undertaking a merits inquiry to deny a COA (when such an inquiry is required)” and then “conduct[ing] a merits inquiry to decide that petitioner’s claim is debatable (when such an inquiry is inappropriate).” The dissent likewise found the majority’s application of the standards in Strickland to be misguided. 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. In the dissent’s judgment, 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 dissent remarked that the majority neglected “even to mention the relevant legal standard in Texas, relying instead on rhetoric and speculation to craft a finding of prejudice.” Lastly, the dissent explained that the majority incorrectly concluded 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). On this point, the dissent wrote: “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).”

On Appeals from the United States District Court for the Southern District of Texas.


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