Buck v. Davis

(Slip Opinion) OCTOBER TERM, 2016 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BUCK v. DAVIS, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS
DIVISION
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 15–8049. Argued October 5, 2016—Decided February 22, 2017
Petitioner Duane Buck was convicted of capital murder in a Texas
court. Under state law, the jury was permitted to impose a death
sentence only if it found unanimously and beyond a reasonable doubt
that Buck was likely to commit acts of violence in the future. Buck’s
attorney called a psychologist, Dr. Walter Quijano, to offer his opin-
ion on that issue. Dr. Quijano had been appointed to evaluate Buck
by the presiding judge and had prepared a report setting out his con-
clusions. To determine the likelihood that Buck would act violently
in the future, Dr. Quijano had considered a number of statistical fac-
tors, including Buck’s race. Although Dr. Quijano ultimately con-
cluded that Buck was unlikely to be a future danger, his report also
stated that Buck was statistically more likely to act violently because
he is black. The report read, in relevant part: “Race. Black: In-
creased probability.” App. 19a. Despite knowing the contents of the
report, Buck’s counsel called Dr. Quijano to the stand, where he testi-
fied that race is a factor “know[n] to predict future dangerousness.”
Id., at 146a. Dr. Quijano’s report was admitted into evidence at the
close of his testimony. The prosecution questioned Dr. Quijano about
his conclusions on race and violence during cross-examination, and it
relied on his testimony in summation. During deliberations, the jury
requested and received the expert reports admitted into evidence, in-
cluding Dr. Quijano’s. The jury returned a sentence of death.
Buck contends that his attorney’s introduction of this evidence vio-
lated his Sixth Amendment right to the effective assistance of coun-
sel. Buck failed to raise this claim in his first state postconviction
proceeding. While that proceeding was pending, this Court received
2 BUCK v. DAVIS
Syllabus
a petition for certiorari in Saldano v. Texas, 530 U.S. 1212, a case in
which Dr. Quijano had testified that the petitioner’s Hispanic herit-
age weighed in favor of a finding of future dangerousness. Texas con-
fessed error on that ground, and this Court vacated the judgment be-
low. Soon afterward, the Texas Attorney General issued a public
statement identifying six similar cases in which Dr. Quijano had tes-
tified. 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.
Buck then sought federal habeas relief under 28 U.S. C. §2254.
The State again declined to confess error, and Buck’s ineffective as-
sistance claim was held procedurally defaulted and unreviewable un-
der Coleman v. Thompson, 501 U.S. 722. This Court’s later decisions
in Martinez v. Ryan, 566 U.S. 1, and Trevino v. Thaler, 569 U. S. ___,
modified the rule of Coleman. 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 postcon-
viction counsel had been constitutionally ineffective in failing to raise
the claim, and (2) the claim had some merit. Following the decision
in Trevino, Buck sought to reopen his §2254 case under Federal Rule
of Civil Procedure 60(b)(6). To demonstrate the “extraordinary cir-
cumstances” required for relief, Gonzalez v. Crosby, 545 U.S. 524,
535, Buck cited the change in law effected by Martinez and Trevino,
as well as ten other factors, including the introduction of expert tes-
timony 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 sentenc-
ing was “de minimis,” the court concluded, first, that Buck had failed
to demonstrate extraordinary circumstances; and second, that even if
the circumstances were extraordinary, Buck had failed to demon-
strate ineffective assistance under Strickland v. Washington, 466
U.S. 668. 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.
Held:
1. The Fifth Circuit exceeded the limited scope of the COA analy-
sis. The COA statute sets forth a two-step process: an initial deter-
mination whether a claim is reasonably debatable, and, if so, an ap-
Cite as: 580 U. S. ____ (2017) 3
Syllabus
peal in the normal course. 28 U.S. C. §2253. At the first stage, the
only question is whether the applicant has shown that “jurists of rea-
son could disagree with the district court’s resolution of his constitu-
tional claims or . . . could conclude the issues presented are adequate
to deserve encouragement to proceed further.” Miller-El v. Cockrell,
537 U.S. 322, 327. Here, the Fifth Circuit phrased its determination
in proper terms. But it reached its conclusion only after essentially
deciding the case on the merits, repeatedly faulting Buck for having
failed to demonstrate extraordinary circumstances. The question for
the Court of Appeals was not whether Buck had shown that his case
is extraordinary; it was whether jurists of reason could debate that
issue. The State points to the Fifth Circuit’s thorough consideration
of the merits to defend that court’s approach, but this hurts rather
than helps its case. Pp. 12–15.
2. Buck has demonstrated ineffective assistance of counsel under
Strickland. Pp. 15–20.
(a) To satisfy Strickland, a defendant must first show that coun-
sel performed deficiently. 466 U.S., at 687. Buck’s trial counsel
knew that Dr. Quijano’s report reflected the view that Buck’s race
predisposed him to violent conduct and that the principal point of
dispute during the penalty phase was Buck’s future dangerousness.
Counsel nevertheless called Dr. Quijano to the stand, specifically elic-
ited testimony about the connection between race and violence, and
put Dr. Quijano’s report into evidence. No competent defense attor-
ney would introduce evidence that his client is liable to be a future
danger because of his race. Pp. 15–17.
(b) Strickland further requires a defendant to demonstrate prej-
udice—“a reasonable probability that, but for counsel’s unprofession-
al errors, the result of the proceeding would have been different.”
466 U.S., at 694. It is reasonably probable that without Dr. Qui-
jano’s testimony on race and violence, at least one juror would have
harbored a reasonable doubt on the question of Buck’s future danger-
ousness. This issue required the jury to make a predictive judgment
inevitably entailing a degree of speculation. But Buck’s race was not
subject to speculation, and according to Dr. Quijano, that immutable
characteristic carried with it an increased probability of future vio-
lence. Dr. Quijano’s testimony appealed to a powerful racial stereo-
type and might well have been valued by jurors as the opinion of a
medical expert bearing the court’s imprimatur. For these reasons,
the District Court’s conclusion that any mention of race during the
penalty phase was de minimis is rejected. So is the State’s argument
that Buck was not prejudiced by Dr. Quijano’s testimony because it
was introduced by his own counsel, rather than the prosecution. Ju-
rors understand that prosecutors seek convictions and may reasona-
4 BUCK v. DAVIS
Syllabus
bly be expected to evaluate the government’s evidence in light of its
motivations. When damaging evidence is introduced by a defendant’s
own lawyer, it is in the nature of an admission against interest, more
likely to be taken at face value. Pp. 17–20.
3. The District Court’s denial of Buck’s Rule 60(b)(6) motion was an
abuse of discretion. Pp. 20–26.
(a) Relief under Rule 60(b)(6) is available only in “extraordinary
circumstances.” Gonzalez, 545 U.S., at 535. Determining whether
such circumstances are present may include consideration of a wide
range of factors, including “the risk of injustice to the parties” and
“the risk of undermining the public’s confidence in the judicial pro-
cess.” Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847,
863–864. The District Court’s denial of Buck’s motion rested largely
on its determination that race played only a de minimis role in his
sentencing. But there is a reasonable probability that Buck was sen-
tenced to death in part because of his race. This is a disturbing de-
parture from the basic premise that our criminal law punishes people
for what they do, not who they are. That it concerned race amplifies
the problem. Relying on race to impose a criminal sanction “poisons
public confidence” in the judicial process, Davis v. Ayala, 576 U. S.
___, ___, a concern that supports Rule 60(b)(6) relief. The extraordi-
nary nature of this case is confirmed by the remarkable steps the
State itself took in response to Dr. Quijano’s testimony in other cases.
Although the State attempts to justify its decision to treat Buck dif-
ferently from the other five defendants identified in the Attorney
General’s public statement, its explanations for distinguishing Buck’s
case from Saldano have nothing to do with the Attorney General’s
stated reasons for confessing error in that case. Pp. 20–24.
(b) Unless Martinez and Trevino, rather than Coleman, would
govern Buck’s case were it reopened, his claim would remain unre-
viewable and Rule 60(b)(6) relief would be inappropriate. The State
argues that Martinez and Trevino would not govern Buck’s case be-
cause they announced a “new rule” under Teague v. Lane, 489 U.S.
288, that does not apply retroactively to cases (like Buck’s) on collat-
eral review. This argument, however, has been waived: the State
failed to advance it in District Court, before the Fifth Circuit, or in its
brief in opposition to Buck’s petition for certiorari. Pp. 24–26.
623 Fed. Appx. 668, reversed and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY,
GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J.,
filed a dissenting opinion, in which ALITO, J., joined.
Cite as: 580 U. S. ____ (2017) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–8049
_________________
DUANE EDWARD BUCK, PETITIONER v. LORIE
DAVIS, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[February 22, 2017]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
A Texas jury convicted petitioner Duane Buck of capital
murder. Under state law, the jury could impose a death
sentence only if it found that Buck was likely to commit
acts of violence in the future. Buck’s attorney called a
psychologist to offer his opinion on that issue. The psy-
chologist testified that Buck probably would not engage in
violent conduct. But he also stated that one of the factors
pertinent in assessing a person’s propensity for violence
was his race, and that Buck was statistically more likely
to act violently because he is black. The jury sentenced
Buck to death.
Buck contends that his attorney’s introduction of this
evidence violated his Sixth Amendment right to the effec-
tive assistance of counsel. This claim has never been
heard on the merits in any court, because the attorney
who represented Buck in his first state postconviction
proceeding failed to raise it. In 2006, a Federal District
2 BUCK v. DAVIS
Opinion of the Court
Court relied on that failure—properly, under then-
governing law—to hold that Buck’s claim was procedurally
defaulted and unreviewable.
In 2014, Buck sought to reopen that 2006 judgment by
filing a motion under Federal Rule of Civil Procedure
60(b)(6). He argued that this Court’s decisions in Martinez
v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569
U. S. ___ (2013), had changed the law in a way that pro-
vided an excuse for his procedural default, permitting him
to litigate his claim on the merits. In addition to this
change in the law, Buck’s motion identified ten other
factors that, he said, constituted the “extraordinary cir-
cumstances” required to justify reopening the 2006 judg-
ment under the Rule. See Gonzalez v. Crosby, 545 U.S.
524, 535 (2005).
The District Court below denied the motion, and the
Fifth Circuit declined to issue the certificate of appealabil-
ity (COA) requested by Buck to appeal that decision. We
granted certiorari, and now reverse.
I
A
On the morning of July 30, 1995, Duane Buck arrived at
the home of his former girlfriend, Debra Gardner. He was
carrying a rifle and a shotgun. Buck entered the home,
shot Phyllis Taylor, his stepsister, and then shot Gard-
ner’s friend Kenneth Butler. Gardner fled the house, and
Buck followed. So did Gardner’s young children. While
Gardner’s son and daughter begged for their mother’s life,
Buck shot Gardner in the chest. Gardner and Butler died
of their wounds. Taylor survived.
Police officers arrived soon after the shooting and placed
Buck under arrest. An officer would later testify that
Buck was laughing at the scene. He remained “happy”
and “upbeat” as he was driven to the police station,
“[s]miling and laughing” in the back of the patrol car.
Cite as: 580 U. S. ____ (2017) 3
Opinion of the Court
App. 134a–135a, 252a.
Buck was tried for capital murder, and the jury convicted.
During the penalty phase of the trial, the jury was
charged with deciding two issues. The first was what the
parties term the “future dangerousness” question. At the
time of Buck’s trial, a Texas jury could impose the death
penalty only if it found—unanimously and beyond a rea-
sonable doubt—“a probability that the defendant would
commit criminal acts of violence that would constitute a
continuing threat to society.” Tex. Code Crim. Proc. Ann.,
Art. 37.071, §2(b)(1) (Vernon 1998). The second issue, to
be reached only if the jury found Buck likely to be a future
danger, was whether mitigating circumstances neverthe-
less warranted a sentence of life imprisonment instead of
death. See §2(e).
The parties focused principally on the first question.
The State called witnesses who emphasized the brutality
of Buck’s crime and his evident lack of remorse in its
aftermath. The State also called another former girl-
friend, Vivian Jackson. She testified that, during their
relationship, Buck had routinely hit her and had twice
pointed a gun at her. Finally, the State introduced evi-
dence of Buck’s criminal history, including convictions for
delivery of cocaine and unlawfully carrying a weapon.
App. 125a–127a, 185a.
Defense counsel answered with a series of lay witnesses,
including Buck’s father and stepmother, who testified that
they had never known him to be violent. Counsel also
called two psychologists to testify as experts. The first,
Dr. Patrick Lawrence, observed that Buck had previously
served time in prison and had been held in minimum
custody. From this he concluded that Buck “did not pre-
sent any problems in the prison setting.” Record in No.
4:04–cv–03965 (SD Tex.), Doc. 5–116, pp. 12–13. Dr.
Lawrence further testified that murders within the Texas
penal system tend to be gang related (there was no evi-
4 BUCK v. DAVIS
Opinion of the Court
dence Buck had ever been a member of a gang) and that
Buck’s offense had been a “crime of passion” occurring
within the context of a romantic relationship. Id., at 4, 19,
21. Based on these considerations, Dr. Lawrence deter-
mined that Buck was unlikely to be a danger if he were
sentenced to life in prison. Id., at 20–21.
Buck’s second expert, Dr. Walter Quijano, had been
appointed by the presiding judge to conduct a psychologi-
cal evaluation. Dr. Quijano had met with Buck in prison
prior to trial and shared a report of his findings with
defense counsel.
Like Dr. Lawrence, Dr. Quijano thought it significant
that Buck’s prior acts of violence had arisen from romantic
relationships with women; Buck, of course, would not form
any such relationships while incarcerated. And Dr. Qui-
jano likewise considered Buck’s behavioral record in prison
a good indicator that future violence was unlikely. App.
36a, 39a–40a.
But there was more to the report. In determining
whether Buck was likely to pose a danger in the future,
Dr. Quijano considered seven “statistical factors.” The
fourth factor was “race.” His report read, in relevant part:
“4. Race. Black: Increased probability. There is an over-
representation of Blacks among the violent offenders.” Id.,
at 19a.
Despite knowing Dr. Quijano’s view that Buck’s race
was competent evidence of an increased probability of
future violence, defense counsel called Dr. Quijano to the
stand and asked him to discuss the “statistical factors” he
had “looked at in regard to this case.” Id., at 145a–146a.
Dr. Quijano responded that certain factors were “know[n]
to predict future dangerousness” and, consistent with his
report, identified race as one of them. Id., at 146a. “It’s a
sad commentary,” he testified, “that minorities, Hispanics
and black people, are over represented in the Criminal
Justice System.” Ibid. Through further questioning,
 Cite as: 580 U. S. ____ (2017) 5
Opinion of the Court
counsel elicited testimony concerning factors Dr. Quijano
thought favorable to Buck, as well as his ultimate opinion
that Buck was unlikely to pose a danger in the future. At
the close of Dr. Quijano’s testimony, his report was admit-
ted into evidence. Id., at 150a–152a.
After opening cross-examination with a series of general
questions, the prosecutor likewise turned to the report.
She asked first about the statistical factors of past crimes
and age, then questioned Dr. Quijano about the roles of
sex and race: “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 170a. Dr. Quijano replied, “Yes.”
Ibid.
During closing arguments, defense counsel emphasized
that Buck had proved to be “controllable in the prison
population,” and that his crime was one of “jealousy, . . .
passion and emotion” unlikely to be repeated in jail. Id.,
at 189a–191a. The State stressed the crime’s brutal na-
ture and Buck’s lack of remorse, along with the inability of
Buck’s own experts to guarantee that he would not act
violently in the future—a point it supported by reference
to Dr. Quijano’s testimony. See id., at 198a–199a (“You
heard from Dr. Quijano, . . . who told you that . . . the
probability did exist that [Buck] would be a continuing
threat to society.”).
The jury deliberated over the course of two days. Dur-
ing that time it sent out four notes, one of which requested
the “psychology reports” that had been admitted into
evidence. Id., at 209a. These reports—including Dr.
Quijano’s—were provided. The jury returned a sentence of
death.
B
Buck’s conviction and sentence were affirmed on direct
6 BUCK v. DAVIS
Opinion of the Court
appeal. Buck v. State, No. 72,810 (Tex. Crim. App., Apr.
28, 1999). His case then entered a labyrinth of state and
federal collateral review, where it has wandered for the
better part of two decades.
Buck filed his first petition for a writ of habeas corpus in
Texas state court in 1999. The four claims advanced in his
petition, however, were all frivolous or noncognizable. See
Ex parte Buck, No. 699684–A (Dist. Ct. Harris Cty., Tex.,
July 11, 2003), pp. 6–7. The petition failed to mention
defense counsel’s introduction of expert testimony that
Buck’s race increased his propensity for violence.
But Dr. Quijano had testified in other cases, too, and in
1999, while Buck’s first habeas petition was pending, one
of those cases reached this Court. The petitioner, Victor
Hugo Saldano, argued that his death sentence had been
tainted by Dr. Quijano’s testimony that Saldano’s Hispanic
heritage “was a factor weighing in the favor of future
dangerousness.” App. 302a. Texas confessed error on that
ground and asked this Court to grant Saldano’s petition
for certiorari, vacate the state court judgment, and re-
mand the case. In June 2000, the Court did so. Saldano
v. Texas, 530 U.S. 1212.
Within days, the Texas Attorney General, John Cornyn,
issued a public statement concerning the cases in which
Dr. Quijano had testified. The statement affirmed that “it
is inappropriate to allow race to be considered as a factor
in our criminal justice system.” App. 213a. In keeping
with that principle, the Attorney General explained that
his office had conducted a “thorough audit” and “identified
eight more cases in which testimony was offered by Dr.
Quijano that race should be a factor for the jury to consider
in making its determination about the sentence in a capi-
tal murder trial.” Ibid. Six of those cases were “similar to
that of Victor Hugo Saldano”; in those cases, letters had
been sent to counsel apprising them of the Attorney Gen-
eral’s findings. Id., at 213a–214a. The statement closed
Cite as: 580 U. S. ____ (2017) 7
Opinion of the Court
by identifying the defendants in those six cases. Buck was
one of them. Id., at 215a–217a. By the close of 2002, the
Attorney General had confessed error, waived any avail-
able procedural defenses, and consented to resentencing in
the cases of five of those six defendants. See Alba v. John-
son, 232 F.3d 208 (CA5 2000) (Table); Memorandum and
Order in Blue v. Johnson, No. 4:99–cv–00350 (SD Tex.),
pp. 15–17; Order in Garcia v. Johnson, No. 1:99–cv–00134
(ED Tex.), p. 1; Order in Broxton v. Johnson, No. 4:00–cv–
01034 (SD Tex.), pp. 10–11; Final Judgment in Gonzales v.
Cockrell, No. 7:99–cv–00072 (WD Tex.), p. 1.
Not, however, in Buck’s. In 2002, Buck’s attorney filed a
new state habeas petition alleging that trial counsel had
rendered ineffective assistance by introducing Dr. Qui-
jano’s testimony. The State was not represented by the
Attorney General in this proceeding—the Texas Attorney
General represents state respondents in federal habeas
cases, but not state habeas cases—and it did not confess
error. Because Buck’s petition was successive, the Texas
Court of Criminal Appeals dismissed it as an abuse of the
writ. Ex parte Buck, Nos. 57,004–01, 57,004–02 (Tex.
Crim. App., Oct. 15, 2003) ( per curiam).
Buck turned to the federal courts. He filed a petition for
habeas corpus under 28 U.S. C. §2254 in October 2004, by
which time Attorney General Cornyn had left office. See
Buck v. Dretke, 2006 WL 8411481, *2 (SD Tex., July 24,
2006). Buck sought relief on the ground that trial coun-
sel’s introduction of Dr. Quijano’s testimony was constitu-
tionally ineffective. The State responded that the state
court had dismissed Buck’s ineffective assistance claim
because Buck had failed to press it in his first petition,
raising it for the first time in a procedurally improper
second petition. The State argued that such reliance on
an established state rule of procedure was an adequate
and independent state ground precluding federal review.
Texas acknowledged that it had waived similar procedural
8 BUCK v. DAVIS
Opinion of the Court
defenses in Saldano’s case. But it argued that Buck’s case
was different because “[i]n Saldano’s case Dr. Quijano
testified for the State”; in Buck’s, “it was Buck who called
Dr. Quijano to testify.” Answer and Motion for Summary
Judgment in No. 4:04–cv–03965 (SD Tex.), p. 20.
Buck countered that, notwithstanding his procedural
default, the District Court should reach the merits of his
claim because a failure to do so would result in a miscar-
riage of justice. Buck did not argue that his default should
be excused on a showing of “cause” and “prejudice”—that
is, cause for the default, and prejudice from the denial of a
federal right. And for good reason: At the time Buck filed
his §2254 petition, our decision in Coleman v. Thompson,
501 U.S. 722, 752–753 (1991), made clear that an attor-
ney’s failure to raise an ineffective assistance claim during
state postconviction review could not constitute cause.
The District Court rejected Buck’s miscarriage of justice
argument and held that, because of his procedural default,
his ineffective assistance claim was unreviewable. Buck v.
Dretke, 2006 WL 8411481, at *8. Buck unsuccessfully
sought review of the District Court’s ruling. See Buck v.
Thaler, 345 Fed. Appx. 923 (CA5 2009) ( per curiam) (deny-
ing application for a COA), cert. denied, 559 U.S. 1072
(2010).
In 2011, Buck sought to reopen his case, arguing that
the prosecution had violated the Equal Protection and Due
Process Clauses by asking Dr. Quijano about the relation-
ship between race and future violence on cross-
examination and referring to his testimony during sum-
mation. Buck also argued that the State’s decision to treat
him differently from the other defendants affected by Dr.
Quijano’s testimony justified relieving him of the District
Court’s adverse judgment. The Fifth Circuit disagreed,
see Buck v. Thaler, 452 Fed. Appx. 423, 427–428 (CA5
2011) ( per curiam), and we denied certiorari, Buck v.
Thaler, 565 U.S. 1022 (2011). Buck, still barred by Cole-
Cite as: 580 U. S. ____ (2017) 9
Opinion of the Court
man from avoiding the consequences of his procedural
default, did not pursue his ineffective assistance claim.
C
In 2012, this Court “modif[ied] the unqualified state-
ment in Coleman that an attorney’s ignorance or inadvert-
ence in a postconviction proceeding does not qualify as
cause to excuse a procedural default.” Martinez, 566 U.S.,
at 9. We held that when a state formally limits the adju-
dication of claims of ineffective assistance of trial counsel
to collateral review, a prisoner may establish cause for
procedural default if (1) “the state courts did not appoint
counsel in the initial-review collateral proceeding,” or
“appointed counsel in [that] proceeding . . . was ineffective
under the standards of Strickland v. Washington, 466
U.S. 668 (1984)”; and (2) “the underlying . . . claim is a
substantial one, which is to say that . . . the claim has
some merit.” Id., at 14.
By its terms, Martinez did not bear on Buck’s ineffective
assistance claim. At the time of Buck’s conviction and
appeal, Texas did not formally require criminal defend-
ants to reserve such claims for collateral review. In Tre-
vino, however, the Court concluded that the exception an-
nounced in Martinez extended to state systems that, as a
practical matter, deny criminal defendants “a meaningful
opportunity” to press ineffective assistance claims on
direct appeal. 569 U. S., at ___ (slip op., at 13). The Court
further concluded that the system in Texas, where peti-
tioner had been convicted, was such a system. Ibid. The
upshot: Had Martinez and Trevino been decided before
Buck filed his §2254 petition, a federal court could have
reviewed Buck’s ineffective assistance claim if he demon-
strated that (1) state postconviction counsel had been
constitutionally ineffective in failing to raise it, and (2) the
claim had “some merit.” Martinez, 566 U.S., at 14.
10 BUCK v. DAVIS
Opinion of the Court
D
When Trevino was decided, Buck’s third state habeas
petition was pending in Texas court. That petition was
denied in November 2013. Ex parte Buck, 418 S.W.3d 98
(Tex. Crim. App. 2013) ( per curiam). Two months later,
Buck returned to federal court, where he filed a motion to
reopen his §2254 case under Federal Rule of Civil Proce-
dure 60(b)(6). Rule 60(b) enumerates specific circum-
stances in which a party may be relieved of the effect of a
judgment, such as mistake, newly discovered evidence,
fraud, and the like. The Rule concludes with a catchall
category—subdivision (b)(6)—providing that a court may
lift a judgment for “any other reason that justifies relief.”
Relief is available under subdivision (b)(6), however, only
in “extraordinary circumstances,” and the Court has ex-
plained that “[s]uch circumstances will rarely occur in the
habeas context.” Gonzalez, 545 U.S., at 535.
In his motion, Buck identified 11 factors that, in his
view, justified reopening the judgment. These included
his attorney’s introduction of expert testimony linking
Buck’s race to violence, the central issue at sentencing; the
prosecution’s questions about race and violence on cross-
examination and reliance on Dr. Quijano’s testimony in
summation; the State’s confession of error in other cases
in which Dr. Quijano testified, but its refusal to concede
error in Buck’s case; and the change in law effected by
Martinez and Trevino, which, if they had been decided
earlier, would have permitted federal review of Buck’s
defaulted claim. App. 283a–285a.
The District Court denied relief on two grounds. First,
the court concluded that Buck had failed to demonstrate
extraordinary circumstances. To that end, the court ob-
served that a change in decisional law is rarely extraordi-
nary by itself. Buck v. Stephens, 2014 WL 11310152, *4
(SD Tex., Aug. 29, 2014). It further determined that the
State’s “promise” not to oppose resentencing did not count
Cite as: 580 U. S. ____ (2017) 11
Opinion of the Court
for much, reasoning that “Buck’s case is different in criti-
cal respects from the cases in which Texas confessed error”
in that Buck’s lawyer, not the prosecutor, had first elicited
the objectionable testimony. Id., at *4–*5. The court also
dismissed the contention that the nature of Dr. Quijano’s
testimony argued for reopening the case. Although “the
introduction of any mention of race was,” in the court’s
view, “ill[ ]advised at best and repugnant at worst,” it was
also “de minimis”: Dr. Quijano had discussed the connec-
tion between race and violence only twice. Id., at *5. The
court accordingly concluded that Buck had failed to make
out the predicate for Rule 60(b)(6) relief.
Second, the court determined that—even if the circum-
stances were extraordinary—Buck’s claim would fail on
the merits. The court noted that under Strickland, Buck
was obliged to show that counsel’s performance was both
deficient and prejudicial. The court held that Buck’s
lawyer had indeed performed deficiently in calling Dr.
Quijano to give testimony that “len[t] credence to any
potential latent racial prejudice held by the jury.” 2014
WL 11310152, at *6. But, the court concluded, Buck had
failed to demonstrate prejudice. It observed that Buck’s
crime had been “horrific.” Ibid. And the court had already
concluded that “the introduction of any mention of race
was . . . de minimis.” Id., at *5. For those reasons, it held,
Buck had failed to show a reasonable probability that he
would not have been sentenced to death but for Dr. Qui-
jano’s testimony about race and violence.
Buck sought to appeal the denial of his Rule 60(b)(6)
motion. He accordingly filed an application for a COA
with the Fifth Circuit. To obtain a COA, Buck was re-
quired to make “a substantial showing of the denial of a
constitutional right.”* 28 U.S. C. §2253(c)(2).
——————
* The Federal Courts of Appeals appear to disagree over whether a
COA is needed to appeal the denial of a Rule 60(b) motion. See Gonza-
12 BUCK v. DAVIS
Opinion of the Court
The Fifth Circuit denied a COA, concluding that Buck’s
case was “not extraordinary at all in the habeas context.”
Buck v. Stephens, 623 Fed. Appx. 668, 673 (2015). The
panel agreed with the District Court that Martinez and
Trevino were not significant factors in the analysis. It
characterized most of the other factors Buck had identified
as “variations on the merits” of his claim, which was “at
least unremarkable as far as [ineffective assistance]
claims go.” 623 Fed. Appx., at 673. The panel likewise
rejected Buck’s argument that he was entitled to relief
because the State had issued a press release indicating
that his case would be treated like Saldano’s, and then
had confessed error in the other cases identified as similar
in the statement, but not in Buck’s. Id., at 674. Because
Buck had “not shown extraordinary circumstances that
would permit relief under Federal Rule of Civil Procedure
60(b)(6),” the panel “den[ied] the application for a COA.”
Id., at 669.
Buck’s motion for rehearing en banc was denied over
two dissenting votes. Buck v. Stephens, 630 Fed. Appx.
251 (CA5 2015) ( per curiam). We granted certiorari. Buck
v. Stephens, 578 U. S. ___ (2016).
II
A state prisoner whose petition for a writ of habeas
corpus is denied by a federal district court does not enjoy
an absolute right to appeal. Federal law requires that he
first obtain a COA from a circuit justice or judge. 28
U.S. C. §2253(c)(1). A COA may issue “only if the appli-
cant has made a substantial showing of the denial of a
constitutional right.” §2253(c)(2). Until the prisoner
secures a COA, the Court of Appeals may not rule on the
merits of his case. Miller-El v. Cockrell, 537 U.S. 322, 336
——————
lez v. Crosby, 545 U.S. 524, 535, and n. 7 (2005). In keeping with the
approach adopted by the Fifth Circuit below and by the parties in their
briefs, we assume without deciding that a COA is required here.
Cite as: 580 U. S. ____ (2017) 13
Opinion of the Court
(2003).
The COA inquiry, we have emphasized, is not coexten-
sive with a merits analysis. 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
of his constitutional claims or that jurists could conclude
the issues presented are adequate to deserve encourage-
ment to proceed further.” Id., at 327. This threshold
question should be decided without “full consideration of
the factual or legal bases adduced in support of the
claims.” Id., at 336. “When a court of appeals sidesteps
[the COA] process by first deciding the merits of an ap-
peal, 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.” Id., at 336–337.
The court below phrased its determination in proper
terms—that jurists of reason would not debate that Buck
should be denied relief, 623 Fed. Appx., at 674—but it
reached that conclusion only after essentially deciding the
case on the merits. As the court put it in the second sen-
tence of its opinion: “Because [Buck] has not shown ex-
traordinary circumstances that would permit relief under
Federal Rule of Civil Procedure 60(b)(6), we deny the
application for a COA.” Id., at 669. The balance of the
Fifth Circuit’s opinion reflects the same approach. The
change in law effected by Martinez and Trevino, the panel
wrote, was “not an extraordinary circumstance.” 623 Fed.
Appx., at 674. Even if Texas initially indicated to Buck
that he would be resentenced, its “decision not to follow
through” was “not extraordinary.” Ibid. Buck “ha[d] not
shown why” the State’s alleged broken promise “would
justify relief from the judgment.” Ibid.
But the question for the Fifth Circuit was not whether
Buck had “shown extraordinary circumstances” or “shown
why [Texas’s broken promise] would justify relief from the
judgment.” Id., at 669, 674. Those are ultimate merits
14 BUCK v. DAVIS
Opinion of the Court
determinations the panel should not have reached. We
reiterate what we have said before: A “court of appeals
should limit its examination [at the COA stage] to a
threshold inquiry into the underlying merit of [the]
claims,” and ask “only if the District Court’s decision was
debatable.” Miller-El, 537 U.S., at 327, 348.
The dissent does not accept this established rule, argu-
ing that a reviewing court that deems a claim nondebata-
ble “must necessarily conclude that the claim is meritless.”
Post, at 2 (opinion of THOMAS, J.). Of course when a court
of appeals properly applies the COA standard and deter-
mines that a prisoner’s claim is not even debatable, that
necessarily means the prisoner has failed to show that his
claim is meritorious. But the converse is not true. That a
prisoner has failed to make the ultimate showing that his
claim is meritorious does not logically mean he failed to
make a preliminary showing that his claim was debatable.
Thus, when a reviewing court (like the Fifth Circuit here)
inverts the statutory order of operations and “first de-
cid[es] the merits of an appeal, . . . then justif[ies] its
denial of a COA based on its adjudication of the actual
merits,” it has placed too heavy a burden on the prisoner
at the COA stage. Miller-El, 537 U.S., at 336–337. Miller-
El flatly prohibits such a departure from the procedure
prescribed by §2253. Ibid.
The State defends the Fifth Circuit’s approach by argu-
ing that the court’s consideration of an application for a
COA is often quite thorough. The court “occasionally
hears oral argument when considering whether to grant a
COA in a capital case.” Brief for Respondent 50. Indeed,
in one recent case, it “received nearly 200 pages of initial
briefing, permitted a reply brief, considered the parties’
supplemental authorities, invited supplemental letter
briefs from both sides, and heard oral argument before
denying the request for a COA.” Id., at 50–51.
But this hurts rather than helps the State’s case. “[A]
Cite as: 580 U. S. ____ (2017) 15
Opinion of the Court
claim can be debatable even though every jurist of reason
might agree, after the COA has been granted and the case
has received full consideration, that petitioner will not
prevail.” Miller-El, 537 U.S., at 338. 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. We do not mean to specify
what procedures may be appropriate in every case. But
whatever procedures are employed at the COA stage
should be consonant with the limited nature of the
inquiry.
Given the approach of the court below, it is perhaps
understandable that the parties have essentially briefed
and argued the underlying merits at length. See, e.g.,
Brief for Petitioner 32 (“[T]rial counsel rendered deficient
performance under Strickland.”); id., at 39 (“[T]here is a
reasonable probability that Dr. Quijano’s race-as-
dangerousness opinion swayed the judgment of jurors in
favor of death.” (internal quotation marks and alteration
omitted)); id., at 59 (Buck “has demonstrated his entitle-
ment to relief under Rule 60(b)(6)”); Brief for Respondent
40 (“The particular facts of petitioner’s case do not estab-
lish extraordinary circumstances justifying relief from the
judgment.” (boldface type deleted)). With respect to this
Court’s review, §2253 does not limit the scope of our con-
sideration of the underlying merits, and at this juncture
we think it proper to meet the decision below and the
arguments of the parties on their own terms.
III
Buck’s request for a COA raised two separate questions
for the Fifth Circuit, one substantive and one procedural:
first, whether reasonable jurists could debate the District
Court’s conclusion that Buck was not denied his right to
effective assistance of counsel under Strickland; and
second, whether reasonable jurists could debate the Dis-
16 BUCK v. DAVIS
Opinion of the Court
trict Court’s procedural holding that Buck had not made
the necessary showing to reopen his case under Rule
60(b)(6).
A
We begin with the District Court’s determination (not
specifically addressed by the Fifth Circuit) that Buck’s
constitutional claim failed on the merits. The Sixth
Amendment right to counsel “is the right to the effective
assistance of counsel.” Strickland, 466 U.S., at 686 (quot-
ing McMann v. Richardson, 397 U.S. 759, 771, n. 14
(1970)). A defendant who claims to have been denied ef-
fective assistance must show both that counsel performed
deficiently and that counsel’s deficient performance
caused him prejudice. 466 U.S., at 687.
1
Strickland’s first prong sets a high bar. A defense law-
yer navigating a criminal proceeding faces any number of
choices about how best to make a client’s case. The lawyer
has discharged his constitutional responsibility so long as
his decisions fall within the “wide range of professionally
competent assistance.” Id., at 690. It is only when the
lawyer’s errors were “so serious that counsel was not
functioning as the ‘counsel’ guaranteed . . . by the Sixth
Amendment” that Strickland’s first prong is satisfied. Id.,
at 687.
The District Court determined that, in this case, coun-
sel’s performance fell outside the bounds of competent
representation. We agree. Counsel knew that Dr. Qui-
jano’s report reflected the view that Buck’s race dispropor-
tionately predisposed him to violent conduct; he also knew
that the principal point of dispute during the trial’s penalty
phase was whether Buck was likely to act violently in the
future. Counsel nevertheless (1) called Dr. Quijano to the
stand; (2) specifically elicited testimony about the connec-
Cite as: 580 U. S. ____ (2017) 17
Opinion of the Court
tion between Buck’s race and the likelihood of future
violence; and (3) put into evidence Dr. Quijano’s expert
report that stated, in reference to factors bearing on future
dangerousness, “Race. Black: Increased probability.”
App. 19a, 145a–146a.
Given that the jury had to make a finding of future
dangerousness before it could impose a death sentence,
Dr. Quijano’s report said, in effect, that the color of Buck’s
skin made him more deserving of execution. It would be
patently unconstitutional for a state to argue that a de-
fendant is liable to be a future danger because of his race.
See Zant v. Stephens, 462 U.S. 862, 885 (1983) (identify-
ing race among factors that are “constitutionally imper-
missible or totally irrelevant to the sentencing process”).
No competent defense attorney would introduce such
evidence about his own client. See Buck v. Thaler, 565
U.S., at 1022 (statement of ALITO, J., joined by Scalia and
BREYER, JJ., respecting denial of certiorari) (Buck’s case
“concerns bizarre and objectionable testimony”).
2
To satisfy Strickland, a litigant must also demonstrate
prejudice—“a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different.” 466 U.S., at 694. Accordingly, the
question before the District Court was whether Buck had
demonstrated a reasonable probability that, without Dr.
Quijano’s testimony on race, at least one juror would
have harbored a reasonable doubt about whether Buck
was likely to be violent in the future. The District Court
concluded that Buck had not made such a showing. We
disagree.
In arguing that the jury would have imposed a death
sentence even if Dr. Quijano had not offered race-based
testimony, the State primarily emphasizes the brutality of
Buck’s crime and his lack of remorse. A jury may conclude
18 BUCK v. DAVIS
Opinion of the Court
that a crime’s vicious nature calls for a sentence of death.
See Wong v. Belmontes, 558 U.S. 15 (2009) ( per curiam).
In this case, however, several considerations convince us
that it is reasonably probable—notwithstanding the na-
ture of Buck’s crime and his behavior in its aftermath—
that the proceeding would have ended differently had
counsel rendered competent representation.
Dr. Quijano testified on the key point at issue in Buck’s
sentencing. True, the jury was asked to decide two is-
sues—whether Buck was likely to be a future danger, and,
if so, whether mitigating circumstances nevertheless
justified a sentence of life imprisonment. But the focus of
the proceeding was on the first question. Much of the
penalty phase testimony was directed to future danger-
ousness, as were the summations for both sides. The jury,
consistent with the focus of the parties, asked during
deliberations to see the expert reports on dangerousness.
See App. 187a–196a, 198a–203a, 209a.
Deciding the key issue of Buck’s dangerousness involved
an unusual inquiry. The jurors were not asked to deter-
mine a historical fact concerning Buck’s conduct, but to
render a predictive judgment inevitably entailing a degree
of speculation. Buck, all agreed, had committed acts of
terrible violence. Would he do so again?
Buck’s prior violent acts had occurred outside of prison,
and within the context of romantic relationships with
women. If the jury did not impose a death sentence, Buck
would be sentenced to life in prison, and no such romantic
relationship would be likely to arise. A jury could con-
clude that those changes would minimize the prospect of
future dangerousness.
But one thing would never change: the color of Buck’s
skin. Buck would always be black. And according to Dr.
Quijano, that immutable characteristic carried with it an
“[i]ncreased probability” of future violence. Id., at 19a.
Here was hard statistical evidence—from an expert—to
Cite as: 580 U. S. ____ (2017) 19
Opinion of the Court
guide an otherwise speculative inquiry.
And it was potent evidence. Dr. Quijano’s testimony
appealed to a powerful racial stereotype—that of black
men as “violence prone.” Turner v. Murray, 476 U.S. 28,
35 (1986) (plurality opinion). In combination with the
substance of the jury’s inquiry, this created something of a
perfect storm. Dr. Quijano’s opinion coincided precisely
with a particularly noxious strain of racial prejudice,
which itself coincided precisely with the central question
at sentencing. The effect of this unusual confluence of
factors was to provide support for making a decision on life
or death on the basis of race.
This effect was heightened due to the source of the
testimony. Dr. Quijano took the stand as a medical expert
bearing the court’s imprimatur. The jury learned at the
outset of his testimony that he held a doctorate in clinical
psychology, had conducted evaluations in some 70 capital
murder cases, and had been appointed by the trial judge
(at public expense) to evaluate Buck. App. 138a–141a.
Reasonable jurors might well have valued his opinion
concerning the central question before them. See Satter-
white v. Texas, 486 U.S. 249, 259 (1988) (testimony from
“a medical doctor specializing in psychiatry” on the ques-
tion of future dangerousness may have influenced the
sentencing jury).
For these reasons, we cannot accept the District Court’s
conclusion that “the introduction of any mention of race”
during the penalty phase was “de minimis.” 2014 WL
11310152, at *5. There were only “two references to race
in Dr. Quijano’s testimony”—one during direct examina-
tion, the other on cross. Ibid. But when a jury hears
expert testimony that expressly makes a defendant’s race
directly pertinent on the question of life or death, the
impact of that evidence cannot be measured simply by how
much air time it received at trial or how many pages it
occupies in the record. Some toxins can be deadly in small
20 BUCK v. DAVIS
Opinion of the Court
doses.
The State acknowledges, as it must, that introducing
“race or ethnicity as evidence of criminality” can in some
cases prejudice a defendant. Brief for Respondent 31. But
it insists that this is not such a case, because Buck’s own
counsel, not the prosecution, elicited the offending testi-
mony. We are not convinced. In fact, the distinction could
well cut the other way. A prosecutor is seeking a convic-
tion. Jurors understand this and may reasonably be
expected to evaluate the government’s evidence and ar-
guments in light of its motivations. When a defendant’s
own lawyer puts in the offending evidence, it is in the
nature of an admission against interest, more likely to be
taken at face value.
The effect of Dr. Quijano’s testimony on Buck’s sentenc-
ing cannot be dismissed as “de minimis.” Buck has
demonstrated prejudice.
B
1
We now turn to the lower courts’ procedural holding:
that Buck failed to demonstrate that he was entitled to
have the judgment against him reopened under Rule
60(b)(6). We have held that a litigant seeking a COA must
demonstrate that a procedural ruling barring relief is
itself debatable among jurists of reason; otherwise, the
appeal would not “deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893, n. 4
(1983)).
The Rule 60(b)(6) holding Buck challenges would be
reviewed for abuse of discretion during a merits appeal,
see 11 C. Wright, A. Miller, & M. Kane, Federal Practice
and Procedure §2857 (3d ed. 2012), and the parties agree
that the COA question is therefore whether a reasonable
jurist could conclude that the District Court abused its
Cite as: 580 U. S. ____ (2017) 21
Opinion of the Court
discretion in declining to reopen the judgment. See Brief
for Petitioner 54–57; Brief for Respondent 34.
Buck brought his Rule 60(b) motion under the Rule’s
catchall category, subdivision (b)(6), which permits a court
to reopen a judgment for “any other reason that justifies
relief.” Rule 60(b) vests wide discretion in courts, but we
have held that relief under Rule 60(b)(6) is available only
in “extraordinary circumstances.” Gonzalez, 545 U.S., at
535. In determining whether extraordinary circumstances
are present, a court may consider a wide range of factors.
These may include, in an appropriate case, “the risk of
injustice to the parties” and “the risk of undermining the
public’s confidence in the judicial process.” Liljeberg v.
Health Services Acquisition Corp., 486 U.S. 847, 863–864
(1988).
In the circumstances of this case, the District Court
abused its discretion in denying Buck’s Rule 60(b)(6)
motion. The District Court’s conclusion that Buck “ha[d]
failed to demonstrate that this case presents extraordi-
nary circumstances” rested in large measure on its
determination that “the introduction of any mention of
race”—though “ill[ ]advised at best and repugnant at
worst”—played only a “de minimis” role in the proceeding.
2014 WL 11310152, at *5. The Fifth Circuit, for its part,
failed even to mention the racial evidence in concluding
that Buck’s claim was “at least unremarkable as far as
[ineffective assistance] claims go.” 623 Fed. Appx., at 673.
But our holding on prejudice makes clear that Buck may
have been sentenced to death in part because of his race.
As an initial matter, this is a disturbing departure from a
basic premise of our criminal justice system: 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. As
petitioner correctly puts it, “[i]t stretches credulity to
characterize Mr. Buck’s [ineffective assistance of counsel]
22 BUCK v. DAVIS
Opinion of the Court
claim as run-of-the-mill.” Brief for Petitioner 57.
This departure from basic principle was exacerbated
because it concerned race. “Discrimination on the basis of
race, odious in all aspects, is especially pernicious in the
administration of justice.” Rose v. Mitchell, 443 U.S. 545,
555 (1979). Relying on race to impose a criminal sanction
“poisons public confidence” in the judicial process. Davis
v. Ayala, 576 U. S. ___, ___ (2015) (slip op., at 28). It thus
injures not just the defendant, but “the law as an institu-
tion, . . . the community at large, and . . . the democratic
ideal reflected in the processes of our courts.” Rose, 443
U.S., at 556 (internal quotation marks omitted). Such
concerns are precisely among those we have identified as
supporting relief under Rule 60(b)(6). See Liljeberg, 486
U.S., at 864.
The extraordinary nature of this case is confirmed by
what the State itself did in response to Dr. Quijano’s
testimony. When the case of Victor Hugo Saldano came
before this Court, Texas confessed error and consented to
resentencing. The State’s response to Saldano’s petition
for certiorari succinctly expressed the injustice Saldano
had suffered: “the infusion of race as a factor for the jury
to weigh in making its determination violated his constitu-
tional right to be sentenced without regard to the color of
his skin.” App. 306a.
The Attorney General’s public statement, issued shortly
after we vacated the judgment in Saldano’s case, reflected
this sentiment. It explained that the State had responded
to Saldano’s troubling petition by conducting a “thorough
audit” of criminal cases, finding six similar to Saldano’s
“in which testimony was offered by Dr. Quijano that race
should be a factor for the jury to consider.” Id., at 213a.
The statement affirmed that “it is inappropriate to allow
race to be considered as a factor in our criminal justice
system.” Ibid. Consistent with this position—and to its
credit—the State confessed error in the cases of five of the
Cite as: 580 U. S. ____ (2017) 23
Opinion of the Court
six defendants identified in the Attorney General’s state-
ment, waiving all available procedural defenses and con-
senting to resentencing.
These were remarkable steps. It is not every day that a
State seeks to vacate the sentences of five defendants
found guilty of capital murder. But then again, these
were—as the State itself put it at oral argument here—
“extraordinary” cases. Tr. of Oral Arg. 41; see Buck v.
Thaler, 565 U.S., at 1030 (SOTOMAYOR, J., joined by
KAGAN, J., dissenting from denial of certiorari) (“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.’ ” (quoting Miller-El, 537 U.S., at 327)).
To be sure, the State has repeatedly attempted to justify
its decision to treat Buck differently from the other five
defendants identified in the Attorney General’s statement,
including on asserted factual grounds that the State has
been required to abjure. See Brief for Respondent 46,
n. 10 (the State’s initial opposition to Buck’s habeas peti-
tion “erroneously” argued that Buck was treated differently
because defense counsel, not the State, called Dr. Quijano
as a witness; that was also true of two of the other defend-
ants). The State continues its efforts before this Court,
arguing that Buck’s was the only one of the six cases in
which defense counsel, not the prosecution, first elicited
Dr. Quijano’s opinion on race. See also post, at 8 (opinion
of THOMAS, J.).
But this is beside the point. The State’s various expla-
nations for distinguishing Buck’s case have nothing to do
with the Attorney General’s stated reasons for confessing
error in Saldano and the cases acknowledged as similar.
Regardless of which party first broached the subject, race
was in all these cases put to the jury “as a factor . . . to
weigh in making its determination.” App. 306a. The
24 BUCK v. DAVIS
Opinion of the Court
statement that “it is inappropriate to allow race to be
considered as a factor in our criminal justice system” is
equally applicable whether the prosecution or ineffective
defense counsel initially injected race into the proceeding.
Id., at 213a. The terms of the State’s announcement
provide every reason for originally including Buck on the
list of defendants situated similarly to Saldano, and no
reason for later taking him off.
In opposition, the State reminds us of the importance of
preserving the finality of judgments. Brief for Respondent
34. But the “whole purpose” of Rule 60(b) “is to make an
exception to finality.” Gonzalez, 545 U.S., at 529. And in
this case, the State’s interest in finality deserves little
weight. When Texas recognized that the infusion of race
into proceedings similar to Saldano’s warranted confession
of error, it effectively acknowledged that the people of
Texas lack an interest in enforcing a capital sentence
obtained on so flawed a basis. In concluding that the
value of finality does not demand that we leave the Dis-
trict Court’s judgment in place, we do no more than
acknowledge what Texas itself recognized 17 years ago.
2
Our Rule 60(b)(6) analysis has thus far omitted one
significant element. When Buck first sought federal ha-
beas relief in 2004, Coleman barred the District Court from
hearing his claim. Today, however, a claim of ineffective
assistance of trial counsel defaulted in a Texas postconvic-
tion proceeding may be reviewed in federal court if state
habeas counsel was constitutionally ineffective in failing
to raise it, and the claim has “some merit.” Martinez, 566
U.S., at 14; see Trevino, 569 U. S., at ___ (slip op., at 13).
Buck cannot obtain relief unless he is entitled to the bene-
fit of this rule—that is, unless Martinez and Trevino, not
Coleman, would govern his case were it reopened. If they
would not, his claim would remain unreviewable, and Rule
Cite as: 580 U. S. ____ (2017) 25
Opinion of the Court
60(b)(6) relief would be inappropriate. See 11 Wright &
Miller, Federal Practice and Procedure §2857 (showing “a
good claim or defense” is a precondition of Rule 60(b)(6)
relief ).
Until merits briefing in this Court, both parties litigated
this matter on the assumption that Martinez and Trevino
would apply if Buck reopened his case. See Pet. for Cert.
27–28; Brief in Opposition 11–13; Amended Application
for Certificate of Appealability and Brief in Support 26,
Respondent-Appellee’s Opposition to Pet. for En Banc
Rehearing 9–11, and Respondent’s Opposition to Applica-
tion for Certificate of Appealability 15–17 in No. 14–70030
(CA5); Amended Response to Motion for Relief from
Judgment in No. 4:04–cv–03965 (SD Tex.), pp. 11–13. But
the State’s brief adopts a new position on this issue. The
State now argues that those cases announced a “new rule”
that, under Teague v. Lane, 489 U.S. 288 (1989) (plurality
opinion), does not apply retroactively to cases (like Buck’s)
on collateral review. Brief for Respondent 38–40. Buck
responds that Teague analysis applies only to new rules of
criminal procedure that govern trial proceedings—not new
rules of habeas procedure that govern collateral proceed-
ings—and that the State has in any event waived its
Teague argument. Reply Brief 20.
We agree that the argument has been waived. See
Danforth v. Minnesota, 552 U.S. 264, 289 (2008) (“States
can waive a Teague defense . . . by failing to raise it in a
timely manner . . . .”). It was not advanced in District
Court, before the Fifth Circuit, or in the State’s brief in
opposition to Buck’s petition for certiorari. Although we
may reach the issue in our discretion, we have observed
before that a State’s failure to raise a Teague argument at
the petition stage is particularly “significant” in deciding
whether such an exercise of discretion is appropriate.
Schiro v. Farley, 510 U.S. 222, 228–229 (1994). When “a
legal issue appears to warrant review, we grant certiorari
26 BUCK v. DAVIS
Opinion of the Court
in the expectation of being able to decide that issue.” Id.,
at 229. If we were to entertain the State’s eleventh-hour
Teague argument and find it persuasive, Buck’s Strick-
land and Rule 60(b)(6) contentions—the issues we thought
worthy of review—would be insulated from our considera-
tion. We therefore decline to reach the Teague question
and conclude that Martinez and Trevino apply to Buck’s
claim. We reach no broader determination concerning the
application of these cases.
C
For the foregoing reasons, we conclude that Buck has
demonstrated both ineffective assistance of counsel under
Strickland and an entitlement to relief under Rule
60(b)(6). It follows that the Fifth Circuit erred in denying
Buck the COA required to pursue these claims on appeal.
The judgment of the United States Court of Appeals for
the Fifth Circuit is reversed, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
Cite as: 580 U. S. ____ (2017) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–8049
_________________
DUANE EDWARD BUCK, PETITIONER v. LORIE
DAVIS, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[February 22, 2017]
JUSTICE THOMAS, with whom JUSTICE ALITO joins,
dissenting.
Having settled on a desired outcome, the Court bull-
dozes procedural obstacles and misapplies settled law to
justify it. But the majority’s focus on providing relief to
petitioner in this particular case has at least one upside:
Today’s decision has few ramifications, if any, beyond the
highly unusual facts presented here. The majority leaves
entirely undisturbed the black-letter principles of collat-
eral review, ineffective assistance of counsel, and Rule
60(b)(6) law that govern day-to-day operations in federal
courts.
I
In reversing the judgment below, the majority relies on
three grounds: that the Fifth Circuit misapplied the
standard for granting a certificate of appealability (COA);
that the District Court erroneously rejected petitioner’s
Sixth Amendment ineffective-assistance-of-counsel claim;
and that the District Court abused its discretion in reject-
ing petitioner’s Federal Rule of Civil Procedure 60(b)(6)
motion to reopen the court’s earlier judgment denying
habeas relief. On each ground, the majority simply dis-
2 BUCK v. DAVIS
THOMAS, J., dissenting
agrees with the courts below over the application of the
governing standard. The majority does not announce any
new standards or suggest that the District Court or the
Fifth Circuit applied the wrong standards altogether. See,
e.g., ante, at 13 (“The court below phrased its determina-
tion in proper terms . . . ”). I agree with the majority that
the courts below identified the correct standards for all
three of these inquiries. Contrary to the majority’s conclu-
sion, however, I would hold that they correctly applied
those standards, too.
A
At the outset, the Court wrongly criticizes the Fifth
Circuit for its application of the COA standard. A COA is
warranted only if the district court’s ruling is “debatable
amongst jurists of reason.” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003). To answer this question, a court must
conduct a “general assessment” of the merits of a defend-
ant’s claim. Ibid. The majority faults the Fifth Circuit for
concluding outright that petitioner “ ‘has not shown ex-
traordinary circumstances that would permit relief under
[Rule] 60(b)(6).’ ” Ante, at 13 (quoting Buck v. Stephens,
623 Fed. Appx. 668, 669 (CA5 2015)). In the majority’s
view, the existence of extraordinary circumstances repre-
sents an “ultimate merits determinatio[n] the panel
should not have reached.” Ante, at 13–14. Instead, ac-
cording to the majority, the panel should have limited
itself to the threshold question whether the merits were
debatable.
The majority’s criticism of the Fifth Circuit is misplaced.
A court may grant a COA even if it might ultimately
conclude that the underlying claim is meritless, so long as
the claim is debatable. Miller-El, supra, at 336. But to
deny a COA, a court must necessarily conclude that the
claim is meritless. A reviewing court cannot determine
that a claim is indisputably meritless (that is, nondebat-
Cite as: 580 U. S. ____ (2017) 3
THOMAS, J., dissenting
able) without first deciding that it is meritless. See Slack
v. McDaniel, 529 U.S. 473, 484 (2000) (“Where a plain
procedural bar is present and the district court is correct
to invoke it to dispose of the case,” the claim is not debata-
ble (emphasis added)); Weeks v. Angelone, 528 U.S. 225,
231, 234 (2000) (affirming denial of COA after determin-
ing that petitioner’s claim was meritless).
In concluding that petitioner’s claims were indisputably
meritless as a prelude to denying the COA, the Fifth
Circuit thus adopted the approach that courts must take
in denying a COA. The majority might disagree with the
conclusion that petitioner’s claims are indisputably merit-
less, but its criticism of the Fifth Circuit’s approach is
most certainly misguided. The majority’s contrary ap-
proach would prevent a court of appeals from denying a
COA in any case, an outcome that Congress and our prec-
edents have plainly foreclosed. See 28 U.S. C. §2253(c)(2)
(COA warranted only if petitioner makes “a substantial
showing of the denial of a constitutional right”); Miller-El,
supra, at 337 (The “issuance of a COA must not be
pro forma or a matter of course”). The majority’s comment
that “[u]ntil the prisoner secures a COA, the Court of
Appeals may not rule on the merits of his case,” ante, at
12, should not be taken at face value.
In any event, after chastising the Court of Appeals for
making an end run around the COA standard in order to
reach the merits of petitioner’s Rule 60(b) claim, the Court
does precisely that. See ante, at 26 (“[W]e conclude that
Buck has demonstrated . . . an entitlement to relief under
Rule 60(b)(6)”). Astonishingly, the Court also decides the
merits of petitioner’s Sixth Amendment claim—an issue
that was not even “addressed by the Fifth Circuit.” Ante,
at 16; see ante, at 26 (“Buck has demonstrated . . . ineffec-
tive assistance of counsel under Strickland [v. Washing-
ton, 466 U.S. 668 (1984)]”).
After reaching out to adjudicate the merits, the Court
4 BUCK v. DAVIS
THOMAS, J., dissenting
relies on its merits disposition to justify reversing the
Fifth Circuit’s denial of a COA. Ante, at 26 (“It follows
that the Fifth Circuit erred in denying Buck the COA
required to pursue these claims on appeal” (emphasis
added)). This unapologetic course reversal—made without
so much as a hint of the irony—is striking. The majority
also has things just backwards. It criticizes the Fifth
Circuit for undertaking a merits inquiry to deny a COA
(when such an inquiry is required) and then it conducts a
merits inquiry to decide that petitioner’s claim is debat-
able (when such an inquiry is inappropriate).
B
The Court’s application of the standard in Strickland v.
Washington, 466 U.S. 668 (1984), is similarly misguided.
In particular, the Court erroneously finds that petitioner’s
claim satisfies Strickland’s second prong, which requires a
defendant to show that his counsel’s mistake materially
prejudiced his defense. Prejudice exists only when correct-
ing the alleged error would have produced a “substantial”
likelihood of a different result. Harrington v. Richter, 562
U.S. 86, 111–112 (2011). Here, the sentence of death
hinged on the jury’s finding that petitioner posed a threat
of future dangerousness. Texas’ standard for making such
a finding is not difficult to satisfy: “The facts of the offense
alone may be sufficient to sustain the jury’s finding of
future dangerousness,” and “[a] jury may also infer a
defendant’s future dangerousness from evidence showing a
lack of remorse.” Buntion v. State, 482 S.W.3d 58, 66–67
(Tex. Crim. App. 2016).
The majority neglects even to mention the relevant legal
standard in Texas, relying instead on rhetoric and specu-
lation to craft a finding of prejudice. But the prosecution’s
evidence of both the heinousness of petitioner’s crime and
his complete lack of remorse was overwhelming. Accord-
ingly, Dr. Quijano’s “de minimis” racial testimony, Buck v.
Cite as: 580 U. S. ____ (2017) 5
THOMAS, J., dissenting
Stephens, 2014 WL 11310152, *5 (SD Tex., Aug. 29, 2014),
did not prejudice petitioner.
First, the facts leave no doubt that this crime was pre-
meditated and cruel. The Court recites defense testimony
describing the killing spree here as a “crime of passion,”
ante, at 4 (internal quotation marks omitted), but the
record belies that characterization. The rampage occurred
at the home of Debra Gardner, petitioner’s ex-girlfriend.
Prior to the shooting, petitioner called her house. His
stepsister, Phyllis Taylor, answered, and petitioner asked
to speak with Gardner. Gardner declined, and petitioner
hung up. Petitioner then retrieved a shotgun and rifle,
loaded both guns, and drove 28 miles to Gardner’s house.
Upon arrival, he broke down the door and opened fire
without provocation. The shooting did not occur in the
heat of the moment.
In addition to describing this as a crime of passion, the
majority also parrots defense testimony that petitioner’s
violence was limited to “the context of romantic relation-
ships.” Ante, at 18. But this assertion is also quite wrong.
Upon entering Gardner’s house, petitioner first shot at an
acquaintance, Harold Ebnezer. He next approached his
stepsister, Taylor, who was seated on the couch. He said,
“ ‘I’m going to shoot your ass too.’ ” App. 82a. She begged
him, “ ‘Duane, please don’t shoot me. I’m your sister. I
don’t deserve to be shot. Remember I do have children.’ ”
Id., at 83a. Petitioner ignored her pleas, placed the gun on
her chest, and shot her. Petitioner does not claim that he
was in a romantic relationship with either Ebnezer or
Taylor.
After shooting Taylor, petitioner cornered one of Gard-
ner’s friends, Kenneth Butler, and shot him, as well. He
then exited the house and chased Gardner into the middle
of the street. She turned to him and pleaded, “ ‘Please
don’t shoot me. Please don’t shoot me. Why are you doing
this in front of my kids?’ ” Id., at 104a. Her son, Devon,
6 BUCK v. DAVIS
THOMAS, J., dissenting
watched from the sidewalk. Her daughter, Shennel,
begged petitioner to spare her mother and even attempted
to restrain him. Petitioner pointed the gun at Gardner
and said, “ ‘I’m going to shoot you. I’m going to shoot your
A[ss].’ ” Id., at 117a. He then did so. The flight path of
the bullet suggests that Gardner was on her knees when
petitioner shot her.
Second, the evidence of petitioner’s lack of remorse,
largely ignored by the majority, is startling. After shoot-
ing Gardner, petitioner walked back to his car and placed
the firearms in the trunk. He then returned to taunt
Gardner where she lay mortally wounded and bleeding in
the street. He said, “ ‘It ain’t funny now. You ain’t laugh-
ing now.’ ” Id., at 106a. Police arrived shortly thereafter
and arrested him. In the patrol car, petitioner was “laugh-
ing and joking and taunting.” Id., at 71a. He continued to
smile and laugh during the drive to the police station.
When one of the officers informed petitioner that he did
not find the situation humorous, petitioner replied that
“ ‘[t]he bitch got what she deserved.’ ” Id., at 135a. He
remained happy and upbeat for the remainder of the
drive, even commenting that he was going to heaven
because God had already forgiven him.
C
Finally, the majority incorrectly concludes that the
District Court erred in denying petitioner’s motion under
Rule 60(b)(6), which permits district courts to reopen
otherwise final judgments only in “extraordinary circum-
stances.” Ackermann v. United States, 340 U.S. 193, 199
(1950). Although the majority pays lip service to the fact
that the District Court’s decision on this point is subject to
“limited and deferential appellate review,” Gonzalez v.
Crosby, 545 U.S. 524, 535 (2005); see ante, at 20–21, it
proceeds to conduct a de novo review. Indeed, the majority
references the District Court’s analysis only once in the
Cite as: 580 U. S. ____ (2017) 7
THOMAS, J., dissenting
entire section of its opinion addressing Rule 60(b)(6). But
the question is not whether this Court thinks the circum-
stances are extraordinary; the question is whether rea-
sonable jurists would debate that the District Court
abused its discretion in reaching the equitable, highly
factbound conclusion that they are not. Particularly in
light of our admonition that such circumstances “will
rarely occur in the habeas context,” 545 U.S., at 535, I
think it is not debatable that the District Court acted
within its discretion in denying Rule 60(b)(6) relief here.
In reversing the Fifth Circuit, the centerpiece of the
Court’s analysis is its observation that “ ‘[d]iscrimination
on the basis of race, odious in all aspects, is especially
pernicious in the administration of justice.’ ” Ante, at 22
(quoting Rose v. Mitchell, 443 U.S. 545, 555 (1979)). I
agree that racial classifications are categorically imper-
missible under the Equal Protection Clause—but peti-
tioner is not raising an equal protection claim. The many
precedents the Court cites interpreting that Clause are
therefore beside the point. Instead, petitioner is claiming
that his case presents extraordinary circumstances under
Rule 60(b)(6). The majority identifies no precedents re-
garding race in the Rule 60(b)(6) context. And certainly
nothing in the text or history of Rule 60(b)(6)—unlike the
text and history of the Equal Protection Clause—suggests
that race-based claims demand unique solicitude in this
context. At the very least, the District Court did not abuse
its discretion in determining that they do not.1
In a similar vein, the majority suggests that the use of
race in petitioner’s capital proceeding injured the public’s
——————
1 That is especially true given that Dr. Quijano’s testimony is relevant
to the Rule 60(b)(6) inquiry, under the majority’s reasoning, only
insofar as it was prejudicial. See ante, at 21 (“[O]ur holding on preju-
dice makes clear that Buck may have been sentenced to death in part
because of his race”). As I have explained, the testimony was not
prejudicial.
8 BUCK v. DAVIS
THOMAS, J., dissenting
confidence in the integrity of our judicial system. Ante, at
22. This argument cannot be squared with the District
Court’s finding that the challenged racial testimony was
“de minimis.” 2014 WL 11310152, at *5. It also ignores
the fact that petitioner’s own counsel elicited the testi-
mony. The majority obscures this point by citing cases
concerning alleged racial discrimination by an agent of the
state. See ante, at 22 (citing, e.g., Davis v. Ayala, 576
U. S. ___ (2015) (addressing the prosecutor’s use of per-
emptory strikes and holding that any constitutional error
was harmless)). There, the injury to public confidence
derives from the fact that the government itself is discrim-
inating against the defendant. The same cannot be said,
however, when defense counsel introduces harmful testi-
mony or makes a bad strategic choice.2
In conjunction with its observations about race, the
Court notes that the Texas attorney general, in response
to similar testimony from Dr. Quijano in another case,
issued a press release decrying the use of race in the jus-
tice system and subsequently waived all procedural obsta-
cles to resentencing in several cases in which Dr. Quijano
testified. But Texas had good reason for treating this case
differently from the others. Of those cases, this is the only
one where “it can be said that the responsibility for elicit-
ing the offensive testimony lay squarely with the defense.”
Buck v. Thaler, 565 U.S. 1022, 1025 (2011) (ALITO, J.,
statement respecting denial of certiorari).
Lastly, the Court belittles Texas’ claimed interest in
finality. In the majority’s view, Texas effectively forfeited
its finality interest when it waived its procedural defenses
in purportedly similar cases. See ante, at 24. But Texas
——————
2 Althoughthe prosecution on cross-examination asked Dr. Quijano a
single question about his views on race, the question arose in the course
of canvassing his expert report, and did not extend beyond the testi-
mony already elicited by the defense. App. 170a.
Cite as: 580 U. S. ____ (2017) 9
THOMAS, J., dissenting
did not waive its procedural defenses in this case, and, in
any event, Texas is not alone in possessing an interest in
the finality of petitioner’s sentence. Society at large has
the same interest. Finality advances values “essential to
the operation of our criminal justice system.” Teague v.
Lane, 489 U.S. 288, 309 (1989) (plurality opinion). It
promotes the law’s deterrent effect; it provides peace of
mind to a wrongdoer’s victims; it promotes public confi-
dence in the justice system; it conserves limited public
resources; and it ensures the clarity of legal rights and
statuses.
The Court’s finality analysis also ignores the lengthy
passage of time (nearly eight years) between the District
Court’s original rejection of habeas relief in this case and
petitioner’s filing of the instant Rule 60(b)(6) motion. See
Gonzalez, 545 U.S., at 542, n. 4 (Stevens, J., dissenting)
(“In cases where significant time has elapsed between a
habeas judgment and the relevant change in procedural
law, it would be within a district court’s discretion to leave
such a judgment in repose”). Permitting a defendant to
file a Rule 60(b) motion years after the fact functionally
eviscerates the statute of limitations contained in the
Antiterrorism and Effective Death Penalty Act of 1996,
thereby undermining its purpose of “lend[ing] finality to
state court judgments within a reasonable time.” Day v.
McDonough, 547 U.S. 198, 205–206 (2006) (internal
quotation marks omitted).
II
Despite its errors, today’s opinion should have little
effect on the broader law, for two reasons. For one thing,
the Court’s reasoning is highly factbound, and the facts
presented here are unlikely to arise again. For another,
although the majority misapplies settled principles, it does
not purport to actually alter any of those principles.
10 BUCK v. DAVIS
THOMAS, J., dissenting
A
This is an unusual case, and the majority’s single-
minded focus on according relief to this petitioner on these
facts naturally limits the reach of its decision. In cases
presenting different facts, today’s decision will provide
little guidance. The Court’s ultimate conclusion relies on
the convergence of three critical factors that will rarely, if
ever, recur. See ante, at 19 (describing this case as involv-
ing an “unusual confluence of factors” that together create
a “perfect storm”).
First, the Court places special weight on the fact that
this is a capital case. See, e.g., ante, at 23 (noting “the
capital nature of this case” as a factor favoring Rule
60(b)(6) relief (internal quotation marks omitted)). Sec-
ond, the Court notes that the testimony at issue was
expressly racial and suggested that petitioner was more
deserving of the death penalty because he is black. See,
e.g., ante, at 21 (“Buck may have been sentenced to death
in part because of his race. . . . [T]his is a disturbing de-
parture from a basic premise of our criminal justice sys-
tem”).3 Third, the Court explains that the state attorney
general took the “remarkable steps,” ante, at 23, of publicly
declaring that Dr. Quijano’s testimony in this case was
inappropriate and waiving all procedural defenses to
resentencing in similar cases. See, e.g., ante, at 22 (“The
extraordinary nature of this case is confirmed by what the
State itself did in response to Dr. Quijano’s testimony”).
B
The effect of today’s decision is also limited for a second
——————
3 Dr. Quijano also testified that petitioner was more likely to be dan-
gerous in the future because he is male. Petitioner does not claim that
this testimony renders his case extraordinary, and the Court does not
so hold. Any such claim would find no support in today’s decision,
given the importance of the racial nature of the testimony at issue to
the Court’s reasoning.
Cite as: 580 U. S. ____ (2017) 11
THOMAS, J., dissenting
reason. Although the majority misapplies many exist-
ing doctrines, it refrains from announcing any new princi-
ples of law. In particular, it leaves untouched—and
courts should accordingly continue to apply as
usual—established principles governing collateral review,
ineffective-assistance-of-counsel claims, and Rule 60(b)(6)
motions.
At the outset, the opinion leaves intact Miller-El’s well-
worn COA standard for habeas petitions: Courts of ap-
peals should deny applications when the district court’s
ruling is not “debatabl[y]” wrong. 537 U.S., at 336; see
ante, at 13. “A prisoner seeking a COA must prove some-
thing more than the absence of frivolity or the existence of
mere good faith on his or her part.” 537 U.S., at 338
(internal quotation marks omitted). Courts have substan-
tial discretion in deciding how to structure this inquiry.
See ante, at 15 (“We do not mean to specify what proce-
dures may be appropriate in every case”).
The Court also reaffirms the “ ‘highly deferential’ ” char-
acter of the Strickland standard. Harrington, 562 U.S., at
105 (quoting Strickland, 466 U.S., at 689); see, e.g., ante,
at 16 (first prong of Strickland “sets a high bar”). Courts
applying Strickland must respect “the constitutionally
protected independence of counsel and the wide latitude
counsel must have in making tactical decisions.” Cullen v.
Pinholster, 563 U.S. 170, 195 (2011) (internal quotation
marks and alteration omitted). Counsel should be “strongly
presumed to have rendered adequate assistance and
made all significant decisions in the exercise of reasonable
professional judgment.” Id., at 189 (internal quotation
marks omitted). And a defendant can show prejudice only
if the likelihood of a different result would have been
“substantial, not just conceivable.” Harrington, supra, at
112.
Perhaps most significantly, the test for reopening judg-
ments under Rule 60(b)(6) remains the same. A “ ‘very
12 BUCK v. DAVIS
THOMAS, J., dissenting
strict interpretation of Rule 60(b) is essential if the finality
of judgments is to be preserved.’ ” Gonzalez, 545 U.S., at
535 (quoting Liljeberg v. Health Services Acquisition
Corp., 486 U.S. 847, 873 (1988) (Rehnquist, C. J., dissent-
ing)). A district court may grant relief only if the movant
can show “extraordinary circumstances,” which “will
rarely occur in the habeas context.” 545 U.S., at 535.
(internal quotation marks omitted); see ante, at 10. A
change in law alone is not enough. See 545 U.S., at 536–
537. And a district court’s decision to deny relief is subject
to only “limited and deferential” appellate review. Id.,
at 535.
Although petitioner argues that the change in law ef-
fected by Martinez v. Ryan, 566 U.S. 1 (2012), and Tre-
vino v. Thaler, 569 U. S. ___ (2013), is central to the Rule
60(b)(6) inquiry, see Brief for Petitioner 56; Reply Brief 19,
the Court does not even count those decisions in its tally of
extraordinary circumstances. Instead, it treats a poten-
tially viable Martinez claim as a “precondition” to relief.
Ante, at 25. This makes sense: Unless petitioner has the
ability to invoke Martinez and Trevino, reopening the
judgment would be futile. For those in petitioner’s posi-
tion, the absence of a potentially valid Martinez claim is
disqualifying, but the presence of one does nothing to
demonstrate the existence of extraordinary circumstances.
III
Finally, the Court’s opinion does not require the lower
courts to reflexively accord relief to petitioner on remand.
In order to succeed under Martinez and Trevino, petitioner
must establish that his state habeas counsel was constitu-
tionally ineffective for failing to raise a Strickland claim
as to his trial counsel. Today’s decision does not address
that showing, and the court on remand should not treat it
as a foregone conclusion.
I respectfully dissent.