Buck contends that his attorney’s introduction of this evidence violated his Sixth Amendment right to the effective assistance of counsel. He failed to raise this claim in his first state post conviction proceeding. While that proceeding was pending, this Court received a petition for certiorari in Saldano v. Texas, 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 this 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. But 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.
Petitioner 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. The United State Supreme Court’s later decisions in modified the procedural default rule. 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 post conviction counsel had been constitutionally ineffective in failing to raise the claim, and (2) the claim had some merit. Buck then sought to reopen his §2254 case under Federal Rule of Civil Procedure 60(b)(6). To demonstrate the “extraordinary circumstances” required for relief, Buck cited the relevant change in law, 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 court concluded, first, that the petitioner had failed to demonstrate extraordinary circumstances; and second, that even if the circumstances were extraordinary, he had failed to demonstrate ineffective assistance. Buck sought a certificate of appealability (COA) from the Fifth Circuit to appeal the denial of his Rule 60(b)(6) motion. The Fifth Circuit denied his application, concluding that he had not shown extraordinary circumstances justifying relief from the District Court’s judgment.
It would be interesting to know the racial composition of the Texas jury. It would be awkward, to say the least, if a mixed race panel that included a black juror received testimony and a report indicating that black convicts are more likely to commit violent crimes that similarly-situated white defendants.