                 Cite as: 565 U. S. ____ (2011)           1

                   SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES
DUANE EDWARD BUCK v. RICK THALER, DIRECTOR, 

  TEXAS DEPARTMENT OF CRIMINAL JUSTICE, 

    CORRECTIONAL INSTITUTIONS DIVISION

   ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

    STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

            No. 11–6391. Decided November 7, 2011


   JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN joins,
dissenting from denial of certiorari.
   Today the Court denies review of a death sentence
marred by racial overtones and a record compromised by
misleading remarks and omissions made by the State of
Texas in the federal habeas proceedings below. Because
our criminal justice system should not tolerate either
circumstance—especially in a capital case—I dissent and
vote to grant the petition.
   Duane E. Buck was convicted of capital murder in a
Texas state court. During the penalty phase of Buck’s
trial, the defense called psychologist Walter Quijano as a
witness. The defense sought Quijano’s opinion as to
whether Buck would pose a continuing threat to society—a
fact that the jury was required to find in order to sentence
Buck to death. Quijano testified that there were several
“statistical factors we know to predict future dangerous-
ness,” and listed a defendant’s past crimes, age, sex, race,
socioeconomic status, employment stability, and substance
abuse history. 28 Tr. 110–111 (May 6, 1997). As to race,
Quijano said: “Race. It’s a sad commentary that minori-
ties, Hispanics and black people, are over represented in
the Criminal Justice System.” Id., at 111. The defense
then asked Quijano to “talk about environmental factors if
[Buck were] incarcerated in prison.” Id., at 111–112.
Quijano explained that, for example, Buck “has no assaul-
2                         BUCK v. THALER

                      SOTOMAYOR, J., dissenting

tive incidents either at TDC or in jail,” and that “that’s a
good sign that this person is controllable within a jail or
prison setting.” Id., at 115. He also explained that Buck’s
“victim [was] not random” because “there [was] a pre-
existing relationship,” and that this reduced the probabil-
ity that Buck would pose a future danger. Id., at 112.
Ultimately, when the defense asked Quijano whether
Buck was likely to commit violent criminal acts if he were
sentenced to life imprisonment, Quijano replied, “The
probability of that happening in prison would be low.” Id.,
at 115. The defense also offered into evidence, over the
prosecutor’s objection, a report containing Quijano’s psy-
chological evaluation of Buck, which substantially mir-
rored Quijano’s trial testimony.1
   On cross-examination, the prosecutor began by asking
Quijano about the financial compensation he received in
return for his time and the methods he used to examine
Buck. The prosecutor then said that she would “like to
ask [Quijano] some questions from [his] report.” Id., at
155. After inquiring about the statistical factors of past
crimes and age and how they might indicate future dan-
gerousness in Buck’s case, the prosecutor said: “You have
determined that the sex factor, that a male is more violent
than a female because that’s just the way it is, and that
the race factor, black, increases the future dangerousness
for various complicated reasons; is that correct?” Id., at
160. Quijano answered, “Yes.” Ibid. After additional
cross-examination and testimony from a subsequent wit-
ness, the prosecutor argued to the jury in summation that
——————
  1 The report listed the following statistical factors relevant to the

question whether Buck would pose a continuing threat to society:
past crimes, age, sex, race, socioeconomics, employment stability, and
substance abuse. As to race, the report stated: “4. Race. Black:
Increased probability. There is an over-representation of Blacks among
the violent offenders.” Defense Exh. 1 in No. 699684 (208th Jud. Dist.,
Harris Cty., Tex.), p. 7.
                 Cite as: 565 U. S. ____ (2011)           3

                   SOTOMAYOR, J., dissenting

Quijano “told you that there was a probability that [Buck]
would commit future acts of violence.” Id., at 260. The
jury returned a verdict of death.
  This was not the first time that Quijano had testified in
a Texas capital case, or in which the prosecution asked
him questions regarding the relationship between race
and future dangerousness. State prosecutors had elicited
comparable testimony from Quijano in several other cases.
In four of them, the prosecution called Quijano as a wit-
ness. See Gonzales v. Cockrell, Civ. Action No. 99–72 (WD
Tex., Dec. 19, 2002); Broxton v. Johnson, Civ. Action No.
00–1034 (SD Tex., Mar. 28, 2001); Garcia v. Johnson, Civ.
Action No. 99–134 (ED Tex., Sept. 7, 2000); Saldano v.
Texas, 530 U. S. 1212 (2000). In two, the defense called
Quijano, but the prosecution was the first to elicit race-
related testimony from him. See Alba v. Johnson, 232
F. 3d 208 (CA5 2000) (Table); Blue v. Johnson, Civ. Action
No. 99–0350 (SD Tex., Sept. 29, 2000). In each case, as in
Buck’s, however, the salient fact was that the prosecution
invited the jury to consider race as a factor in sentencing.
And in each case, the defendant was sentenced to death.
  When one of those defendants, Victor Hugo Saldano,
petitioned for this Court’s review, the State of Texas con-
fessed error. It acknowledged that “the use of race in
Saldano’s sentencing seriously undermined the fairness,
integrity, or public reputation of the judicial process.”
Response to Pet. for Cert. in Saldano v. Texas, O. T. 1999,
No. 99–8119, p. 7. The State continued, “[T]he infusion of
race as a factor for the jury to weigh in making its deter-
mination violated [Saldano’s] constitutional right to be
sentenced without regard to the color of his skin.” Id., at
8. We granted Saldano’s petition, vacated the judgment,
and remanded. Saldano v. Texas, 530 U. S. 1212.
  Shortly afterwards, the then-attorney general of Texas
announced publicly that he had identified six cases that
were “similar to that of Victor Hugo Saldano” in that
4                     BUCK v. THALER

                   SOTOMAYOR, J., dissenting

“testimony was offered by Dr. Quijano that race should be
a factor for the jury to consider” in making its sentencing
determination. Record in No. 4:04–cv–03965 (SD Tex.),
Doc. 27–5, p. 30 (hereinafter Record) (internal quotation
marks omitted). These were the five cases listed above
(besides Saldano), as well as Buck’s. The attorney general
declared that “it is inappropriate to allow race to be con-
sidered as a factor in our criminal justice system.” Ibid.
(internal quotation marks omitted). Accordingly, in five of
the six cases the attorney general identified, the State
confessed error and did not raise procedural defenses to
the defendants’ federal habeas petitions. Five of the six
defendants were thus resentenced, each to death.
   Only in Buck’s case, the last of the six cases to reach
federal habeas review, did the State assert a procedural
bar. Why the State chose to treat Buck differently from
each of the other defendants has not always been clear.
As the Court of Appeals for the Fifth Circuit recognized in
the decision that is the subject of this petition, “We are
provided with no explanation for why the State declined
to act consistently with its Attorney General’s public
announcement with respect to petitioner Buck.” No. 11–
70025, 2011 WL 4067164, *8, n. 41 (Sept. 14, 2011).
   What we do know is that the State justified its assertion
of a procedural defense in the District Court based on
statements and omissions that were misleading. The
State found itself “compelled” to treat Buck’s case differ-
ently from Saldano’s because of a “critical distinction”:
“Buck himself, not the State[,] offered Dr. Quijano’s testi-
mony into evidence.” Record, Doc. 6, at 17. The State
created the unmistakable impression that Buck’s case
differed from the others in that only Buck called Quijano
as a witness. The State asserted, “[T]he Director is obvi-
ously aware of the prior confessions of error in other fed-
eral habeas corpus cases involving similar testimony by
Dr. Quijano. However, this case is not Saldano. In Sal-
                     Cite as: 565 U. S. ____ (2011)                   5

                      SOTOMAYOR, J., dissenting

dano’s case Dr. Quijano testified for the State.” Id., at 20
(citation omitted; emphasis in original); see also ibid.
(“Therefore, because it was Buck who called Dr. Quijano to
testify and derived the benefit of Dr. Quijano’s overall
opinion that Buck was unlikely to be a future danger
despite the existence of some negative factors, this case
does not represent the odious error contained in the Sal-
dano cases”). This was obviously not accurate. Like Buck,
the defendants in both Blue and Alba called Quijano to the
stand. But on the ground that only Buck had called Qui-
jano as a witness, the State urged the District Court that
“the former actions of the Director [in the other five cases]
are not applicable and should not be considered in decid-
ing this case.” Record, Doc. 6, at 20.2 The District Court
applied the procedural bar raised by the State and dis-
missed Buck’s petition.
   Buck later brought the State’s misstatements to light in
a motion to reopen the judgment under Rule 60 of the
Federal Rules of Civil Procedure. In response, the State
erroneously identified Alba as a case in which the prosecu-
tion had called Quijano to the stand, and omitted any
mention of Blue. After the District Court denied Buck’s
Rule 60 motion, Buck highlighted these errors in a motion
under Rule 59(e) to alter or amend the judgment, which
the District Court also denied. The Fifth Circuit denied
Buck’s application for a certificate of appealability (COA)
to review these two judgments.
   I believe the Fifth Circuit erred in doing so. To obtain a
COA, a petitioner need not “prove, before the issuance of a
COA, that some jurists would grant the petition for habeas
——————
  2 Perhaps, under a generous reading of the State’s briefing, the State

meant to convey to the District Court that Buck’s case was distinguish-
able from the others not only because he called Quijano as a witness,
but also because he elicited race-related testimony. But that is not
what the briefing says. The distinction that the State offered—that
Buck alone proffered Quijano as a witness—is incorrect.
6                     BUCK v. THALER

                   SOTOMAYOR, J., dissenting

corpus.” Miller-El v. Cockrell, 537 U. S. 322, 338 (2003).
Instead, a petitioner must show 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. See also 28 U. S. C.
§2253(c)(2).
   Buck has met this standard. The Rule 60 relief that
he sought in the District Court was highly discretionary.
Liljeberg v. Health Services Acquisition Corp., 486 U. S.
847 (1988). Yet the District Court denied relief based on
a record compromised by the State’s misleading remarks
and omissions. I realize that, in denying Buck’s Rule 59(e)
motion, the District Court was aware of Buck’s arguments
that the State had mischaracterized Alba and Blue. But
the District Court lacked other information that might
have influenced its decision. Significantly, the District
Court could not know that the State would later concede
in the Fifth Circuit that it had mischaracterized Alba.
   Nor, for similar reasons, did the District Court have the
opportunity to evaluate the State’s subsequent efforts in
the Fifth Circuit and this Court to try to distinguish
Buck’s case from Alba and Blue. The State argues that
although the defendants in those cases each proffered
Quijano as a witness, they did not, like Buck, elicit race-
related testimony on direct examination; instead, the
prosecution first did so on cross-examination.
   This distinction is accurate but not necessarily substan-
tial. The context in which Buck’s counsel addressed race
differed markedly from how the prosecutor used it. On
direct examination, Quijano referred to race as part of his
overall opinion that Buck would pose a low threat to socie-
ty were he imprisoned. This is exactly how the State has
characterized Quijano’s testimony. E.g., Thaler’s Reply to
Buck’s Motion for Relief from Judgment and Motion for
Stay of Execution in No. 4:04–cv–03965 (SD Tex.), pp. 15–
                  Cite as: 565 U. S. ____ (2011)            7

                   SOTOMAYOR, J., dissenting

16 (“In this case, first on direct examination by the de-
fense, Dr. Quijano merely identified race as one statistical
factor and pointed out that African-Americans were
overrepresented in the criminal justice system; he did not
state a causal relationship, nor did he link this statistic to
Buck as an individual”). Buck did not argue that his race
made him less dangerous, and the prosecutor had no need
to revisit the issue. But she did, in a question specifically
designed to persuade the jury that Buck’s race made him
more dangerous and that, in part on this basis, he should
be sentenced to death.
   The then-attorney general of Texas recognized that “it is
inappropriate to allow race to be considered as a factor in
our criminal justice system.” Record, Doc. 27–5, at 30
(internal quotation marks omitted). Whether the District
Court would accord any weight to the State’s purported
distinctions between Buck’s case and the others is a ques-
tion which that court should decide in the first instance,
based on an unobscured record. Especially 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.”
Miller-El, 537 U. S., at 327.
