Duane Buck v. William Stephens, Director ( 2017 )

Case: 14-70030 Document: 00513951562 Page: 1 Date Filed: 04/13/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-70030 FILED
April 13, 2017
Lyle W. Cayce
Clerk
DUANE EDWARD BUCK,
Petitioner–Appellant,
versus
LORIE DAVIS, 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 REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before SMITH, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:
This court denied a certificate of appealability (“COA”) to review the
denial of petitioner Duane Buck’s motion, filed per Federal Rule of Civil Pro-
cedure 60(b)(6), claiming violation of his Sixth Amendment right to effective
assistance of counsel. Buck v. Stephens, 623 F. App’x 668 (5th Cir. 2015). The
Supreme Court reversed and remanded, Buck v. Davis, 137 S. Ct. 759, 780
(2017), “conclud[ing] that Buck has demonstrated both ineffective assistance
Case: 14-70030 Document: 00513951562 Page: 2 Date Filed: 04/13/2017
No. 14-70030
of counsel . . . and an entitlement to relief under Rule 60(b)(6)” and that this
court “erred in denying Buck the COA required to pursue those claims on
appeal.” On remand, we requested briefing on what action this court should
take. Helpfully, the parties submitted a joint letter brief, agreeing on what
action is appropriate.
There are no remaining matters requiring resolution by this court or the
district court except as set forth below. The motion for a COA is GRANTED.
The judgment is VACATED in regard to ineffective assistance of counsel at the
punishment phase. This matter is REMANDED with direction to grant, condi-
tionally, a writ of habeas corpus and to direct the respondent to release peti-
tioner from custody unless, within 180 days of the date of the district court’s
order on remand, the state either (1) initiates proceeding for a new trial on the
issue of punishment only, per Texas Code of Criminal Procedure Arti-
cle 44.29(c), or (2) elects not to seek the death penalty and accedes to a life
sentence.
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