         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                No. 14-70030                             FILED
                                                                  November 6, 2015
                                                                    Lyle W. Cayce
                                                                         Clerk
DUANE EDWARD BUCK,

                                          Petitioner–Appellant,

versus

WILLIAM STEPHENS, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,

                                          Respondent–Appellee.



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




               ON PETITION FOR REHEARING EN BANC
          (Opinion August 20, 2015, 2015 U.S. App. LEXIS 14755)



Before SMITH, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:

     Treating the petition for rehearing en banc as a petition for panel rehear-
ing, the petition for panel rehearing is DENIED.       The court having been
polled at the request of one of its members, and a majority of the judges who
                                   No. 14-70030


are in regular active service and not disqualified not having voted in favor
(FED. R. APP. P. 35 and 5TH CIR. R. 35), the petition for rehearing en banc is
DENIED.

      In the en banc poll, 2 judges voted in favor of rehearing (Judges Dennis
and Graves), and 13 judges voted against rehearing (Chief Judge Stewart and
Judges Jolly, Davis, Jones, Smith, Clement, Prado, Owen, Elrod, Southwick,
Haynes, Higginson, and Costa).




ENTERED FOR THE COURT:


      /s/ Jerry E. Smith
JERRY E. SMITH
United States Circuit Judge




                          *    *    *   *    *    *   *

JAMES L. DENNIS, Circuit Judge, with whom GRAVES, Circuit Judge, joins,
dissenting:
      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.
In my view, the panel in this case, perhaps unintentionally, followed that
prohibited side-stepping process by justifying its denial of a COA based on its



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adjudication of the actual merits.     This is not the first time that a panel of this
court has flouted Miller-El’s clear command when denying a COA: our court’s
“troubling” habit of evaluating the merits of petitioners’ claims has been noted
by three Supreme Court justices.       See Jordan v. Fisher, 135 S. Ct. 2647, 2652
n.2 (2015) (Sotomayor, J., joined by Ginsburg and Kagan, JJ., dissenting from
denial of certiorari).   Because I believe that Buck has made the requisite
threshold showing of entitlement to relief, I respectfully dissent from the
refusal to rehear his case en banc.
      Duane Buck, a capital prisoner, seeks to raise ineffective assistance of
counsel in federal habeas corpus proceedings.       His habeas petition was denied
by the district court as procedurally barred. Buck has now applied to this
court for a COA to challenge the district court’s denial of his second motion for
relief from judgment under Rule 60 of the Federal Rules of Civil Procedure, in
which he alleged that extraordinary circumstances warrant reopening the
proceedings.    Under Slack v. McDaniel, 429 U.S. 473, 484 (2000), a COA
should issue in Buck’s case if he shows (1) that jurists of reason would find
debatable “whether the petition states a valid claim of the denial of a
constitutional right” and (2) that those jurists “would find it debatable whether
the district court was correct in its procedural ruling.”      Yet the panel denied
Buck’s application on the grounds that “he has not shown extraordinary
circumstances that would permit relief under Federal Rule of Civil Procedure
60(b)(6).”   Buck v. Stephens, Slip Op. at 1 (Aug. 20, 2015).      By ruling on the
merits, the panel contravened the Supreme Court’s clear commands and
improperly denied Buck his right to appeal.
      In Miller-El, the Supreme Court reiterated that, when evaluating a COA
application, “the court of appeals should limit its examination to a threshold
inquiry into the underlying merit of his claims.”            537 U.S. at 326.       A



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petitioner is not required to demonstrate that he is entitled to relief; in fact,
“[i]t is consistent with § 2253 that a COA will issue in some instances where
there is no certainty of ultimate relief.”     Id. at 337.    Rather, a petitioner
satisfies the Slack standard “by demonstrating that jurists of reason could
disagree with the district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.”             Id. at 327 (emphasis added).
Furthermore, under this court’s established precedent, “any doubt as to
whether a COA should issue in a death-penalty case must be resolved in favor
of the petitioner.”    Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir. 2005) (citing
Medellin v. Dretke, 371 F.3d 270, 275 (5th Cir. 2004) (per curiam); Newton v.
Dretke, 371 F.3d 250, 254 (5th Cir. 2004)).
      In his application, Buck presented eleven factors that, when considered
together, he believes demonstrate that his case involved extraordinary
circumstances.        Rather than consider whether reasonable jurists could
disagree with the district court and conclude that Buck’s allegations “set up an
extraordinary situation,” Ackermann v. United States, 340 U.S. 193, 199,
(1950), the panel went through the factors one by one and determined that
each was “not extraordinary.”       Buck, Slip Op. at 9-10.    At the end of this
flawed analysis of the merits of Buck’s claims, the panel conclusorily declared:
“Jurists of reason would not debate that Buck has failed to show extraordinary
circumstances justifying relief.”      Id. at 10.   This analysis would not be
sufficient even if the court were properly considering the merits of Buck’s
claims:   like the “dismissive and strained interpretation” of a petitioner’s
evidence that was rejected by the Supreme Court first in Miller-El, 537 U.S. at
344, and then again in Miller-El v. Dretke, 545 U.S. 231, 265 (2005), the panel
“dismisses, miscasts, and minimizes [Buck’s] evidence, diluting its full weight



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by disaggregating it and focusing the inquiry on determining whether each
isolated piece of evidence, taken alone,” 1 proves extraordinary circumstances.
This mischaracterization is still more deficient at this stage in the proceedings,
where it is employed to aid the panel in “deciding [Buck’s] appeal without
jurisdiction.”     Miller-El, 537 U.S. at 326-27.
        “[P]roving his claim was not [Buck’s] burden.”           Jordan, 135 S. Ct. at
2652.       A proper, threshold inquiry into Buck’s claim would have revealed that
reasonable jurists could disagree with the district court’s conclusions. Buck
asserts that he faces execution based on a capital sentencing proceeding whose
reliability was fundamentally compromised by the race-based testimony of Dr.
Walter Quijano.       He asserts that the State of Texas identified his case as one
of six that was “similar” to that of Victor Hugo Saldaño, in which the State
admitted that Dr. Quijano’s testimony and the resulting “infusion of race as a
factor for the jury to weigh in making its determination violated [Mr.
Saldaño’s] constitutional right to be sentenced without regard to the color of
his skin.”     State’s Resp. to Pet. for Cert, at 8, Saldano v. Texas, U.S. Supreme
Court, No. 99-8119.       He asserts that his is the only death sentence identified
by the State that has not been overturned because his is the only case in which
Dr. Quijano’s participation in the trial was the result of the deficient
performance of his own defense attorney.             He asserts that the procedural
default that barred his present claim should have been waived by the State
pursuant to representations made by the Texas Attorney General.                He asserts
that, following the Supreme Court’s decisions in Martinez v. Ryan, 132 S. Ct.
1309 (2012) and Trevino v. Thaler, 133 S. Ct. 1911 (2013), the same procedural
default would not bar his claim if it were brought in federal court for the first



        1Brief of the NAACP LDF, et al., as Amici Curiae at 3, Miller-El v. Dretke, 545 U.S.
231 (No. 03-9659) 2004 WL 1942171, at *3.

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time today. And he asserts that three judges on the Texas Court of Criminal
Appeals dissented from the dismissal of his state habeas petition as
procedurally barred, concluding that “[t]he 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” and
that the procedural barrier should therefore be abrogated.     Ex parte Buck, 418
S.W.3d 98 (Tex. Crim. App. 2013) (Alcala, J., dissenting), cert. denied sub nom.
Buck v. Texas, 134 S. Ct. 2663 (2014).       While each of these factors might, on
its own, be insufficient to warrant relief, together they describe a situation that
is at least debatably “extraordinary.”
      That the issue is at least debatable is further illustrated by Justice
Sotomayor’s dissent from the denial of certiorari in Buck v. Thaler, 452 F.
App’x 423 (5th Cir. 2011), a previous iteration of this case.              Justice
Sotomayor—joined by Justice Kagan—concluded that, “[e]specially in light of
the capital nature of this case and the express recognition by a Texas attorney
general that the relevant testimony was inappropriately race-charged, Buck
has presented issues that ‘deserve encouragement to proceed further’” and a
COA should therefore have been granted. Buck v. Thaler, 132 S. Ct. 32, 38
(2011) (quoting Miller-El, 537 U.S. at 327).
      “Any doubt regarding whether to grant a COA is resolved in favor of the
petitioner, and the severity of the penalty may be considered in making this
determination.” Newton, 371 F.3d at 254 (5th Cir. 2004).       In a case involving
the severest of penalties, the panel’s summary conclusion that “[j]urists of
reason would not debate that Buck has failed to show extraordinary
circumstances justifying relief” was both inappropriate and incorrect.
      I respectfully dissent.



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