Buck, Duane Edward
2013 Tex. Crim. App. LEXIS 1733
Tex. Crim. App.2013Background
- In 1997 Duane Buck was convicted of capital murder and sentenced to death; jury heard limited mitigation and testimony from psychologist Dr. Quijano who testified that race correlated with future dangerousness.
- Buck’s trial mitigation evidence was minimal; postconviction affidavits later alleged childhood physical abuse, exposure to domestic violence, early alcohol/drug exposure, low IQ/Asperger’s, and drug use at time of offense.
- Initial state habeas counsel (appointed under Tex. Code Crim. Proc. art. 11.071) filed an 11.071 application raising only record-based or frivolous claims (three claims rejected on direct appeal and one based on a repealed statute).
- A first subsequent state application raised claims about Quijano’s race-based testimony; the Court dismissed it as subsequent. Federal habeas courts found procedural default and denied review.
- Buck filed a third state habeas application alleging (1) prosecutorial/AG misconduct, (2) racial discrimination in sentencing, and (3) ineffective assistance of counsel at sentencing, on appeal, and in initial habeas proceedings. The majority dismissed the third application as subsequent.
- The dissenting opinion (Alcala, J.) argues that initial habeas counsel was so incompetent that the initial filing was "improperly filed" under Article 11.071, and that Martinez/Trevino support treating such statutory counsel failures as a narrow basis to reach the merits of a forfeited ineffective-trial-counsel claim; the dissent would remand for an evidentiary hearing on mitigation-related ineffective-assistance claims.
Issues
| Issue | Plaintiff's Argument (Buck) | Defendant's Argument (State/Court majority) | Held (dissent) |
|---|---|---|---|
| Whether Buck's third 11.071 application is barred as a subsequent writ | Initial habeas counsel failed to investigate as required by art. 11.071 §3(a); initial filing was "improperly filed," so Section 5 bar should not apply to allow merits review of forfeited claims | Article 11.071 bars consideration of subsequent writs absent statutory exceptions; prior decisions (Graves) reject cognizability of habeas-counsel-performance claims | Dissent: Where initial counsel wholly failed statutory duties and caused forfeiture of a substantial claim, the initial application was improperly filed and merits review is warranted |
| Whether statutory entitlement to "competent counsel" includes an ongoing minimum competence obligation | Buck: §§2(a) and 3(a) impose a continuing duty to investigate and represent competently throughout the 11.071 proceeding | Graves: the statute guarantees appointment/continuity but not a right to effective collateral counsel; statutory violations not cognizable on habeas | Dissent: Article 11.071 requires minimally competent representation and investigation; counsel who raises only frivolous/record claims triggers relief for improper initial filing |
| Whether claims about habeas counsel incompetence are cognizable to overcome the subsequent-writ bar | Buck: Martinez/Trevino show post-conviction counsel performance may be considered for narrow procedural-default purposes; state courts should adopt the same logic to protect substantial trial-ineffective claims | State/Court majority: Graves bars statutory claims about habeas-counsel performance as cognizable habeas claims; finality concerns justify refusing repeated collateral review | Dissent: Martinez/Trevino undermine Graves; habeas-counsel inadequacy is cognizable for the narrow purpose of deciding whether Section 5 applies, provided the underlying claim has some merit |
| Whether Buck's ineffective-assistance-of-trial-counsel mitigation claim is substantial | Buck: Proffers extensive newly discovered mitigation (abuse, domestic violence, early substance exposure, Asperger’s) that was not investigated or presented and likely would have affected sentencing | State: Majority did not reach merits due to subsequent-writ finding; implicit emphasis on finality and procedural rules | Dissent: The mitigation evidence is substantial under Strickland/Wiggins; remand for evidentiary hearing warranted because reasonable investigation would likely have uncovered powerful mitigation and prejudice is plausibly shown |
Key Cases Cited
- Ex parte Graves, 70 S.W.3d 103 (Tex. Crim. App.) (held statutory violations of 11.071 not cognizable on habeas and declined to treat habeas-counsel-performance claims as basis to review subsequent writs)
- Martinez v. Ryan, 132 S. Ct. 1309 (2012) (created narrow equitable exception allowing postconviction-counsel-ineffectiveness to excuse procedural default of trial-ineffective claims in federal habeas)
- Trevino v. Thaler, 133 S. Ct. 1911 (2013) (applied Martinez to Texas systems where initial-review collateral proceedings are the first realistic opportunity to raise trial-ineffective claims)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance: deficient performance and prejudice)
- Wiggins v. Smith, 539 U.S. 510 (2003) (counsel has duty to investigate mitigation; failure can satisfy Strickland where investigation would have produced compelling evidence)
- Ex parte Gonzales, 204 S.W.3d 391 (Tex. Crim. App.) (reasonable mitigation investigation required in capital cases)
- Ex parte Medina, 361 S.W.3d 633 (Tex. Crim. App.) (applicant deprived of meaningful opportunity where habeas counsel failed to plead specific facts)
- Ex parte Kerr, 64 S.W.3d 414 (Tex. Crim. App.) (Article 11.071 premised on providing one full and fair opportunity to present claims)
- Coleman v. Thompson, 501 U.S. 722 (1991) (federal procedural-default doctrine; historically limited cognizability of collateral-counsel claims)