Ex parte Duane Edward BUCK
No. WR-57004-03
Court of Criminal Appeals of Texas
Nov. 20, 2013
418 S.W.3d 98
Devon Anderson, Assistant District Attorney, Houston, Lisa C. McMinn, State‘s Attorney, Austin, TX, for the State.
PER CURIAM.
ORDER
This is a subsequent application for writ of habeas corpus filed pursuant to the provisions of
In May 1997, Applicant was convicted of the offense of capital murder. The jury answered the special issues submitted under
Applicant presents three allegations in the instant application. We have reviewed the application and find that Applicant has failed to satisfy the requirements of
IT IS SO ORDERED.
ALCALA, J., filed a dissenting statement in which PRICE and JOHNSON, JJ., joined.
ALCALA, J., filed a dissenting statement in which PRICE and JOHNSON, JJ., joined.
I respectfully dissent from the Court‘s dismissal of applicant‘s second subsequent application for a writ of habeas corpus. The record in this case reveals a chronicle of inadequate representation at every stage of the proceedings, the integrity of which is further called into question by the admission of racist and inflammatory testimony from an expert witness at the punishment phase. Applicant‘s initial habeas counsel was so incompetent as to assert not even one arguably legitimate claim in the initial 11.071 application, which was summarily denied by this Court for raising only record-based or frivolous claims. As a result of prior habeas counsel‘s errors and the combined force of state and federal procedural-default laws, no Court has ever considered the merits of applicant‘s legitimate claims for post-conviction relief. This cannot be what the Legislature intended when it enacted
I. Background and Procedural History
A. Trial and Appellate Proceedings
Early one morning in the summer of 1995, applicant broke into the home of his ex-girlfriend, Debra Gardner, shot to death a man he believed was sleeping with her, and chased her into the street where he also shot her to death. Applicant also shot at a third adult in the house, who managed to escape without injury, and a fourth adult, his step-sister Phyllis Taylor, who survived a gunshot wound to her chest. The shooting occurred in the presence of Gardner‘s children.
Applicant was arrested, tried, and ultimately convicted of capital murder in May 1997. At the punishment phase of trial, the State presented evidence to prove that applicant would pose a future danger if given a life sentence. It provided evidence of applicant‘s prior criminal history, which revealed that applicant had previously been convicted of several non-violent drug and weapons offenses.1 It also presented character evidence and victim-impact testimony. That evidence included testimony from applicant‘s former girlfriend, Vivian Jackson, who testified that applicant subjected her to physical abuse during their five-year relationship. Jackson testified that towards the end of the relationship, applicant hit her “almost every day.” She testified that applicant, on one occasion, put a gun to her face, and another time “threatened to pour boiling water on [her].” She stated that applicant beat her with objects that included “a belt, a coat hanger, and one time he had a cast on his arm and beat [her] in the head with it.” She also stated that, out of fear of applicant, she had never called the police to report the abuse. She further stated that applicant had threatened to physically
The State‘s evidence also included testimony from an officer who responded to the crime scene. That officer testified that he had stayed with Gardner while she lay injured in the street. He stated that there were three young children observing the scene, one of whom was a three- or four-year-old girl who was crying for her mother. The officer stated that he permitted the little girl to come over to her mother, and that Gardner told her that she loved her and that it was going to be all right. The officer stated that he then took the girl away and Gardner expired.
That same officer described applicant‘s demeanor following his arrest as being “upbeat and laughing.” The officer stated that, upon placing applicant in the patrol car for transport to the police station, applicant was “smiling and laughing.” When the officer told him that he did not find the situation funny, applicant responded, “The bitch got what she deserved.” The officer also said that applicant told him that “God had already forgiven him before and that he was going to heaven because he was forgiven.” The officer said applicant showed no signs of remorse following his arrest.
The defense presented limited mitigating evidence from applicant‘s pastor, step-mother, father, and one of his sisters, all of whom described applicant as peaceful, non-violent, “nice,” and religious. The pastor described applicant as “awful quiet” and “very studious.” Applicant‘s sister Monique Winn described him as a “good brother.” Winn told the jury that her and applicant‘s mother had died in a car accident when applicant was 12 years old, after which their father married Sharon Buck, their step-mother. Winn stated that applicant graduated from high school and had worked as a mechanic, and that she had never known him to be violent. Applicant‘s step-mother, Sharon Buck, described him during his adolescence and young adulthood as “good” and “normal” and stated that, although she had heard about physical confrontations between him and his former girlfriend Jackson, the situation was not that serious. She acknowledged that applicant‘s father had a criminal history for felony theft and document-tampering offenses and agreed with defense counsel‘s description of applicant‘s father as “a father that got in trouble and did go to jail.” Applicant‘s father described applicant as “a very good son, very humble and nice,” and denied that his son had any violent tendencies. Applicant‘s father acknowledged his own prior convictions for several non-violent felony offenses and further acknowledged that he had spent time in jail during applicant‘s childhood. Winn, Sharon Buck, and his father all testified that they were “shocked” or “surprised” when they heard that applicant had committed this crime because it was so out of character for him.
In addition to character witnesses, applicant also called two psychologists to testify on the subject of applicant‘s future dangerousness. One of those psychologists was Dr. Walter Quijano, who testified that the probability of applicant‘s posing a continuing threat to society was “on the low end of the continuum.” On the subject of applicant‘s personality, Quijano stated that applicant had a dependent personality disorder. He characterized a person with that disorder as being
selective in their relationships that they develop, but once they develop the relationship, they hang on to it even when the relationship is over. It is difficult for them to disengage and they will do extraordinary things to hang on to the relationship. These individuals can become very extreme in wanting to main-
tain that relationship and sometimes go to the point of thinking if I cannot have you, nobody else can.
He also described applicant as having “poor insight” and an “excessive obsession with the Bible and Jesus.” He noted that applicant had an I.Q. of 74, at the “low end of the borderline range,” and noted that applicant had a history of substance abuse. Quijano testified that applicant was, relatively speaking, less likely to pose a future danger because “the victim [Gardner] was not random, it‘s narrow, and there is a pre-existing relationship. It was, for lack of a better term, a husband and wife difficulty that is unlikely to be repeated.”2
Additionally, Quijano testified that, in making a future-dangerousness prediction for applicant, he had considered applicant‘s “race” and then added, unprompted, “It‘s a sad commentary that minorities, Hispanics and black people, are over-represented in the criminal justice system.” On cross-examination, the State asked Quijano to further explain his methodology. The prosecutor stated, “You have determined that ... the race factor, black, increases the future dangerousness for various complicated reasons; is that correct?” to which Quijano replied, “Yes.”
During closing arguments, defense counsel argued that the State had not met its burden with respect to applicant‘s future dangerousness. Alternatively, counsel argued that there were sufficient mitigating circumstances to warrant a life sentence because applicant lost his mother when he was eleven years old; his father was arrested “again and again” and went to prison during applicant‘s childhood; applicant had previously abused cocaine and alcohol; and the crime was a crime of “passion and jealousy.” In response, the State argued that there was a probability that applicant would pose a continuing threat to society based on his criminal history; the “heinous” facts of the crime; applicant‘s prior abuse of his ex-girlfriend; and the testimony of “the defense‘s own experts ... who told you that there was a probability that the man would commit future acts of violence.” On the topic of mitigation, the prosecutor commented that “everybody has had hardships in life,” and argued that applicant‘s circumstances were insufficient to warrant a life sentence.
The jury agreed with the State, and applicant was sentenced to death. This Court affirmed the conviction and sentence on direct appeal in 1999. Buck v. State, No. AP-72,810 (Tex.Crim.App. April 28, 1999) (not designated for publication).
B. Prior State and Federal Habeas Proceedings
1. The Initial and First Subsequent 11.071 Applications
Applicant, represented by appointed counsel Robin Norris, filed an initial application for a writ of habeas corpus in March 1999. In his initial application, applicant alleged four claims for relief, three of which related to the trial court‘s failure to instruct the jury on parole-eligibility law, and the fourth of which alleged that trial counsel was ineffective for failing to request a lesser-included-offense instruction that would have permitted the jury to convict applicant of murder committed under
As to applicant‘s ineffective-assistance claim, the trial court also quickly disposed of that claim, concluding that applicant had “fail[ed] to demonstrate deficient performance, much less harm.” Applicant had complained that his trial attorneys were ineffective for failing to request a lesser-included-offense instruction on murder committed under the immediate influence of sudden passion. The trial court pointed out, however, that that offense was “not statutorily authorized” at the time of applicant‘s capital murder trial, and thus any request by counsel for a jury instruction on that offense would have been frivolous. The trial court was referring to the fact that the statute defining the offense of “sudden passion” murder was repealed by the Legislature in 1993, two years before applicant committed the murders, and thus it was inapplicable to his case.3 In short, habeas counsel asserted a wholly frivolous claim that applicant‘s trial counsel was ineffective for failing to request a jury instruction based on a non-existent provision of the penal code.
In December 2002, while applicant‘s original application was still pending, habeas counsel Norris filed a subsequent 11.071 application in which he raised two additional claims for relief, including (1) a claim that applicant‘s death sentence was obtained in violation of the U.S. Constitution because the jury, in arriving at a sentencing decision, had relied upon the testimony of Quijano, who suggested that African-American offenders are more likely to pose a continuing threat to society, and (2) a claim that applicant‘s trial counsel was constitutionally ineffective for elic-
This Court disposed of both the initial and first subsequent applications in a single order. Ex parte Duane Edward Buck, WR-Nos. 57,004-01 & 57,004-02 (Tex. Crim.App. Oct. 15, 2003) (not designated for publication). It adopted the trial court‘s findings and conclusions and denied applicant‘s initial writ application. After determining that applicant‘s second filing was a subsequent application, the Court dismissed it without considering the merits pursuant to
2. The Federal Litigation
In October 2004, applicant filed a federal petition for writ of habeas corpus, in which he reasserted the same grounds as those he presented in his initial and first subsequent state applications. After it denied all of the claims from applicant‘s initial application on the merits, the federal district court considered applicant‘s constitutional claims related to Quijano‘s testimony. It ruled that those claims were procedurally defaulted because applicant had failed to raise those claims in state court until his first subsequent habeas application, which this Court had dismissed on the basis of Texas‘s abuse-of-the-writ doctrine. Because this Court declined to consider applicant‘s Quijano-related claims due to applicant‘s failure to timely raise them in the initial application, the federal district court ruled that it was barred from reviewing the merits of those claims on federal habeas. See Buck v. Dretke, H-04-3965 (S.D.Tex., July 24, 2006) (mem. op.) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991) (noting that, under federal procedural-default law, whenever “a state prisoner has defaulted his claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred” unless one of several exceptions is met)); see also Ibarra v. Thaler, 691 F.3d 677, 684 (5th Cir.2012) (noting that
C. The Present Application
Ten years after this Court‘s denial of his first two state habeas applications, applicant filed this third application for writ of habeas corpus in March 2013. It alleges three grounds:
- The [Texas] Attorney General‘s refusal to concede error was a violation of the Eighth Amendment, procedural and substantive due process, and equal protection, guaranteed by the United States Constitution.
- Applicant‘s death sentence is the unconstitutional product of racial discrimination in violation of the equal protection and due process clauses of the United States Constitution.
- Applicant was denied the effective assistance of counsel at the sentencing
phase of his capital murder trial, on direct appeal, and in his initial habeas proceedings, in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
The trial court determined that this application was subsequent and forwarded it to this Court for a determination as to whether it satisfies the dictates of
II. This Court Has Jurisdiction to Adjudicate Applicant‘s Third Claim on the Merits8
Applicant asserts that this Court has jurisdiction to address the merits of his third claim under the plain terms of
I agree with applicant that habeas counsel‘s failure to investigate the factual and legal bases for relief in this case constituted a violation of
A. This Court Should Revisit Ex parte Graves
My proposed reading of
In Graves, this Court was asked to consider whether a claim that prior habeas counsel was not “competent” under
For the several reasons discussed below, I respectfully disagree with the Court‘s holding in Graves to the extent that it precludes our consideration of prior habeas counsel‘s performance in an
1. 11.071 Applicants Are Statutorily Entitled To Minimally Competent Representation
Although I concede the correctness of this Court‘s ultimate conclusion in Graves that there is no established constitutional right to the effective assistance of post-conviction counsel, I maintain that
Similarly, as applicant has argued in his application,
Reading Sections 2(a) and 3(a) in conjunction, I conclude that appointed counsel in an 11.071 proceeding must demonstrate a minimum level of competence in his representation of an applicant and in his investigation of any factual or legal bases for relief. See
2. Statutory Claim Cognizable For Narrow Purpose of Determining Whether Application is Subsequent
With respect to the issue of cognizability, I would hold that a claim involving a statutory violation of
Although I recognize that the holdings of Martinez and Trevino apply only in federal court, I would submit to this Court that the rationale underlying those decisions applies with equal force to our own treatment of certain claims for post-conviction relief, in particular, claims of ineffective assistance of counsel. In Martinez, the Supreme Court stated that consideration of habeas counsel‘s ineffectiveness as a basis for excusing procedural default was “necessary” to “protect prisoners with a potentially legitimate claim of ineffective assistance of trial counsel.” See Martinez, 132 S.Ct. at 1315; see also Trevino, 133 S.Ct. at 1919 (stating that Texas‘s post-conviction system would create “significant unfairness” if habeas counsel‘s ineffectiveness could not serve as basis for excusing procedural default). That is because, when the habeas proceeding represents the first meaningful opportunity for a prisoner to raise an ineffective-assistance-of-trial-counsel claim, that proceeding becomes more like a direct appeal as to that claim—it is the prisoner‘s one and only opportunity to raise that claim with the assistance of counsel. Martinez, 132 S.Ct. at 1317. Moreover, the Supreme Court observed that, when an attorney errs in initial-review collateral proceedings, interlocking state and federal procedural-default rules make it unlikely that any court will ever hear the merits of the prisoner‘s underlying claim. See Trevino, 133 S.Ct. at 1921 (noting that, without exception to procedural-default rules on the basis of attorney error in a post-conviction proceeding, an applicant would be “deprive[d] of any opportunity at all for review of an [ineffective-assistance] claim“); Martinez, 132 S.Ct. at 1320 (noting that equitable exception necessary because otherwise “no court will review the prisoner‘s [Sixth Amendment] claims“). This possibility, the Court noted, was of “particular concern” in light of the fact that the right to effective assistance of counsel at trial is a “bedrock principle in our justice system.” Martinez, 132 S.Ct. at 1317 (citing Gideon v. Wainwright, 372 U.S. 335, 344 (1963)). The equitable exception of Martinez, applicable to Texas through Trevino, acknowledges that the initial state habeas proceeding, if undertaken without the assistance of competent counsel, “may not have been sufficient to ensure that proper consideration was given to a substantial claim.” Martinez, 132 S.Ct. at 1318; see also Trevino, 133 S.Ct. at 1919-20 (considering “whether, as a systematic matter, Texas affords meaningful review of a claim of ineffective assistance of trial counsel,” and concluding that “it does not“).
B. Applicant Has Made a Preliminary Showing That His Third Claim Warrants Review on the Merits
As to the merits of applicant‘s underlying ineffective-assistance-of-trial-counsel claim, I conclude that applicant has presented a substantial claim that warrants remand to the trial court. Applicant alleges that his trial counsel performed deficiently by unreasonably failing to investigate, develop, and present mitigating evidence to the jury at the punishment phase of his capital murder trial and that he suffered prejudice as a result of counsel‘s deficient performance.10 To prevail on a claim of ineffective assistance of counsel, applicant must meet the two-prong test set out in Strickland v. Washington, 466 U.S. 668 (1984). To demonstrate deficient performance, applicant must show that his attorney‘s performance fell below an objective standard of reasonableness, as judged by prevailing professional norms. Strickland, 466 U.S. at 668; Wiggins v. Smith, 539 U.S. 510, 523 (2003). To satisfy the prejudice prong, applicant must also demonstrate a reasonable probability that, had counsel presented the available mitigating evidence, at least one juror would have answered the special issues differently. Ex parte Gonzales, 204 S.W.3d 391, 393 (Tex.Crim.App.2006); see Kunkle v. Dretke, 352 F.3d 980, 991 (5th Cir.2003). A reasonable probability is one that is “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.11
In particular, defense counsel in a capital murder proceeding is obligated to conduct a reasonable mitigation investigation. Gonzales, 204 S.W.3d at 393; Eddings v. Oklahoma, 455 U.S. 104, 102 (1982); Strickland, at 691 (“counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary“). Any decision
Applicant alleges that his trial counsel failed to investigate and present readily available mitigating evidence relating to his exposure at a young age to domestic violence and physical abuse by his father. Applicant further contends that he was forced to work at a young age; that he was routinely given alcohol by his father as a young child; that he grew up in a crime-ridden neighborhood that was plagued by drugs and violence; and that he has suffered from undiagnosed Asperger‘s Syndrome throughout his life. To support his allegations, applicant presents affidavits from eleven individuals who attest to the following facts and state that they were not asked to provide this information at applicant‘s capital murder trial, but would have provided this information had they been asked to do so by defense counsel:
- Applicant‘s father was “violent toward [applicant]” and “beat [applicant] for any little reason or for no reason at all.” Beatings and “whippings” were committed using “electrical cords, belts, switches” or “spark plug wires.” Once, applicant‘s father beat him severely for going to a swimming pool without permission. Applicant sometimes “wound up with welts all over his body from the beatings he received from his father.”
- Applicant‘s father was “controlling and abusive” towards applicant‘s mother and used to beat applicant‘s mother “brutally.” Applicant‘s father hit his mother “all the time” while they were together, to the point that applicant‘s mother had bruises on her face and “all over her body.” Applicant‘s father reportedly once kicked applicant‘s mother so hard that she “ruptured a disk in her back” and was in the hospital for weeks. Applicant, as the oldest child in the family, “saw the things his dad did to his mom” and was “devastated by what he saw.” As a result of domestic violence, applicant‘s mother and father separated shortly before her death.
- After remarrying, applicant‘s father also beat applicant‘s step-mother and applicant “had to break his parents up” to stop the fighting.
- Applicant‘s father “exposed [him] to alcohol, to crime, to drugs” at a young age; applicant‘s father “started [applicant] drinking alcohol at an extremely young age.” By one affiant‘s account, applicant‘s father started giving him alcohol when applicant was five years old.
- Applicant‘s father exposed him to marital infidelity and prostitution at a young age. Applicant‘s father allegedly had “illicit affairs with many women” and “made no effort to hide it.” This resulted in applicant having “all kinds of half-brothers and sisters,” who at various times came to live in the family home. One affiant reported that applicant had twenty-two siblings as a result of his father‘s numerous liaisons.
- Applicant‘s step-mother “favored her children over [applicant and his sib-
lings]” and would use applicant‘s Social Security benefits, received as a result of his mother‘s death, to support her own children instead. As a result of tensions at home, applicant went to live with his grandparents in Louisiana for several years as a teenager. Although this was a relative improvement over his home life, his grandfather had a “serious” drinking problem. - Applicant was forced to work as a child in his father‘s automotive shop, which was described as a “chop shop” that applicant‘s father “used to commit crimes.” Applicant and his siblings “grew up working on cars” and were not permitted to play because they were expected to work. As a result of the illegal activities that took place in the shop, applicant‘s father was constantly “in and out of the penitentiary.”
- Applicant‘s step-mother and her family were “into drugs” and there was “a lot of drugging and drinking going on in that house.” Applicant‘s step-mother‘s family was “into drugs” and sold drugs out of applicant‘s father‘s auto shop.
- Applicant grew up in a “rough,” “violent” neighborhood. “Drugs and violence were everywhere.” Applicant was “surrounded by people with a criminal mentality,” and “most people in the neighborhood carried guns.” Applicant‘s father “always” carried a gun and there were “always” guns in applicant‘s house. One affiant alleged that applicant had witnessed his father shoot at people “a bunch of times” during his childhood. Another affiant stated and that someone once pulled a gun on applicant and shot him in the leg with buckshot.
- Applicant started using heavy drugs, in particular, crack cocaine, in his twenties and began to change. At the time of the offense, applicant was “heavy into drugs and alcohol” and had become a “different person.” He “wasn‘t in his right mind” when he committed the offense. According to the affidavit of his step-sister Phyllis Taylor, who survived the shooting, on the night of the offense applicant was “so high” and the “drugs were controlling him.”
- Applicant may have had a brain aneurysm at the age of twenty-six or twenty-seven;
- Applicant has “always been slow and gullible“; he was “always slower than his peers” and was “often confused” by jokes or conversation.
- Applicant additionally offered the forensic psychological/neuropsychological evaluation of Dr. Diane Mosnik, neuropsychologist, who recently examined applicant and concluded that applicant has Asperger‘s Syndrome. In her report, Mosnik described applicant as “naive” and “unaware of social nuances.” She notes that applicant “exhibited profound difficulty in accurately recognizing and identifying certain basic emotions, even when presented in a clear and straightforward manner[.]” Applicant‘s “social interaction skills appeared to fall well below developmental age expectations.”
Applicant has presented a substantial volume of mitigating evidence that he claims was available, but was not presented, at his capital murder trial. Although the jury did hear some mitigating evidence, it did not receive any testimony regarding several key categories of mitigating evidence, including (1) that applicant was allegedly abused as a child, (2) that his father was abusive toward applicant‘s mother and that applicant witnessed this abuse, and (3) that applicant‘s home life as a child was plagued by crime, drugs and violence.
This Court has previously recognized that suffering abuse as a child is a category of evidence that can, in some cases,
As to prejudice, I conclude that the volume and persuasive value of the mitigation evidence presented in this application substantially changes the sentencing profile of applicant that was before the jury. The sentencing profile presented by trial counsel essentially described applicant as a normal, mostly law-abiding person whose criminal acts in this case were totally unexpected and out of character. In contrast, the sentencing profile presented in the habeas record essentially describes applicant as a long-time drug addict who was high during the murders; an alcoholic who began drinking at the age of five and who was encouraged to drink by his father as a child; a victim of child abuse and a witness to frequent episodes of domestic violence; and a sufferer of Asperger‘s Syndrome. In particular, the evidence pertaining to applicant‘s exposure to physical abuse and domestic violence is the type of evidence that may be highly relevant to a jury‘s balancing of mitigation evidence. See id. (citing Wiggins, 539 U.S. at 538) (finding prejudice prong satisfied where mitigating evidence presented at the habeas hearing was substantially greater and more compelling than that actually presented by the applicant at his trial and concluding that available mitigating evidence “might well have influenced the jury‘s appraisal” of applicant‘s moral culpability). Particularly in light of the facts of this offense, which, by all accounts, resulted from a tumultuous romantic relationship gone terribly wrong, I am persuaded that applicant has made at least an initial showing of a reasonable probability that, had the jury received additional evidence as detailed above, at least one juror would have reached a different result in the punishment phase. On remand, a habeas court would be able to more particularly sort through these facts to decipher the extent to which this evidence may have altered applicant‘s sentencing profile. For now, I would determine that this Court has jurisdiction to address the merits of applicant‘s claim that his trial attorneys were ineffective by failing to investigate and present mitigation evidence, and I would remand that claim for an evidentiary hearing in the trial court.
III. Conclusion
I agree with this Court‘s statement in Graves that society has a “legitimate interest in [the] finality of judgments.” Graves, 70 S.W.3d at 117. But I also adhere to the principle, embraced by the Legislature and this Court, that individuals who are sentenced to death should be afforded “one full and fair opportunity” to present their constitutional claims for post-conviction relief. Id.; see also Medina, 361 S.W.3d at 642. The Supreme Court‘s recent criticism of Texas‘s failure to provide a vehicle by which prisoners may effectively challenge the effectiveness of trial counsel‘s performance undermines this Court‘s reasoning in Graves and, on this basis, I conclude that this Court should abrogate Graves, in part. Furthermore, when an applicant‘s statutory entitlement to minimally competent assistance of habeas counsel has been denied, and where such denial has led to the forfeiture of a substantial claim for relief, this Court should declare the initial filing
Having concluded that the applicant in this case has made such a showing with respect to his third claim, I respectfully dissent from the Court‘s refusal to exercise its post-conviction jurisdiction in this case.