The U.S. Supreme Court February 22 strongly condemned use of racially based testimony as a factor in assessing a death sentence.      
In Buck v. Davis, the Court held that a death penalty counsel was ineffective in calling an expert who testified that the defendant’s race made him statistically more likely to be dangerous in the future, even though the expert’s principal testimony was that the particular defendant probably would not be dangerous.
The Court also held that the lower appellate court had erroneously denied a certificate of appealability (COA) by imposing too high a standard for COA’s.
Duane Buck was convicted of capital murder in Texas in the 1990s.  Under Texas law, he could be sentenced to death only if the jury found he was likely to commit acts of violence in the future.
During penalty phase, his attorney called a psychologist to testify that Buck probably would not engage in violent conduct in the future.  But the psychologist also testified one of the factors pertinent in assessing propensity for violence is race, and Buck was statistically more likely to act violently because he is black.
The jury sentenced Buck to death. 
After his direct appeal was denied, Buck began multiple rounds of state and federal collateral review.  While these were pending, Texas confessed error in several other death penalty cases where the same psychologist had testified that race was a factor in weighing future dangerousness.  But Texas refused to confess error in Buck’s case because Buck’s own attorney had called the psychologist to testify.
Buck’s initial state habeas petitions failed to raise any issue about the psychologist’s testimony.
In 2004, Buck filed a federal habeas petition alleging that counsel was ineffective in introducing the psychologist’s racially tainted testimony.   That petition was ultimately denied because, under Coleman v. Thompson (1991), Buck had procedurally defaulted on it by failing to raise it in state postconviction.
In 2014, Buck sought to reopen his federal habeas judgment by filing a motion under Federal Rule of Civil Procedure 60(b)(6).  He argued the Supreme Court’s decisions in Martinez v. Ryan (2102) and Trevino v. Thaler (2013) changed the law and allowed him to excuse his procedural default.  Those cases would allow Buck to raise his ineffective assistance claim if he could demonstrate that state postconviction counsel had been ineffective in failing to raise it, and the claim had “some merit.”
The district court denied the motion.  The Fifth Circuit refused to issue a COA after finding that Buck had not shown extraordinary circumstances to reopen his case.
The Supreme Court reversed in a 6-2 opinion.   The Court first held that the Fifth Circuit had improperly denied the COA. 
“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’” or that “jurists could conclude the issues presented are adequate to deserve encouragement to proceed further,” the Court said. 
The Court ruled the Fifth Circuit phrased its denial of a COA in proper terms, but erred by “reach[ing] its conclusion only after essentially deciding the case on the merits.”
“The statute sets forth a two-step process:  an initial determination whether a claim is reasonably debatable, and then – if it is – an appeal in the normal course,” the Court said.  The Fifth Circuit placed too heavy a burden on Buck at the COA stage. 
Turning to the underlying claims in the case, the Court held “[i]t would be patently unconstitutional for a state to argue that a defendant is liable to be a future danger because of his race.” 
“No competent defense attorney would introduce such evidence about his own client,” the Court said.
The Court rejected the district court’s finding that there was not a reasonable probability of a different outcome because of the heinous nature of the crime, and Buck’s lack of remorse.  The Court noted that the jury had asked to see the expert’s reports on dangerousness during deliberations, and that Buck’s prior violent acts occurred during romantic relationships with women, which relationships would not occur in prison. 
“But one thing would never change:  the color of Buck’s skin.  Buck would always be black,” the Court said.  The psychologist appeared to be presenting “hard statistical evidence – from an expert – to guide an otherwise speculative inquiry.”  The testimony was “potent evidence,” because it “appealed to a powerful racial stereotype – that of black men as ‘violence prone.’”
The Court held that even if the testimony about race was brief, “[s]ome toxins can be deadly in small doses,” and the impact of the testimony “cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record.”
“Our law punishes people for what they do, not who they are.  Dispensing punishment on the basis of an immutable characteristic flatly contravenes this guiding principle,” the Court concluded.
The Court also rejected Texas’ argument that Buck’s claims should not be considered because Martinez and Trevino announced “new rules” that should not be retroactive on collateral review. 
Texas waived any retroactivity claim by failing to raise it below, the Court ruled.  But the Court added that it was not deciding any general issue of whether Martinez and Trevino are retroactive.
Justices Thomas and Alito dissented.  They said the Court “bulldoze[d] procedural obstacles” and misapplied settled law to reach its “desired outcome.”  But they said the decision will have “few ramifications, if any, beyond the highly unusual facts presented here.” 
“The majority leaves entirely undisturbed black-letter principles of collateral review, ineffective assistance of counsel, and Rule 60(b)(6) law that govern day-to-day operations in federal court,” they said.