Nature of the Case
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Facts
D arrived at the home of his former girlfriend, Debra Gardner. He was carrying a rifle and a shotgun. D entered the home, shot Phyllis Taylor, his stepsister, and then shot Gardner’s friend Kenneth Butler. Gardner fled the house, and D followed. So did Gardner’s young children. While Gardner’s son and daughter begged for their mother’s life, D shot Gardner in the chest. Gardner and Butler died of their wounds. Taylor survived. Police officers arrived quickly and placed D under arrest. An officer testified that D was laughing at the scene. D was “happy” and “upbeat” as he was driven to the police station, “smiling and laughing” in the back of the patrol car. D was convicted of capital murder. A Texas jury could in part impose the death penalty only if it found-unanimously and beyond a reasonable doubt-“a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” P called witnesses who emphasized the brutality of the crime and D's lack of remorse. P called another former girlfriend, Vivian Jackson. D had routinely hit her and had twice pointed a gun at her. P introduced evidence of D’s criminal history, including convictions for delivery of cocaine and unlawfully carrying a weapon. D called D’s father and stepmother, who testified that they had never known him to be violent. D also called two psychologists to testify as experts. The first, Dr. Lawrence, observed that D had previously served time in prison and had been held in minimum custody. From this, he concluded that D “did not present any problems in the prison setting.” Dr. Lawrence further testified that murders within the Texas penal system tend to be gang-related. There was no evidence D had ever been a member of a gang and D's offense had been a “crime of passion” occurring within the context of a romantic relationship. Dr. Lawrence determined that D was unlikely to be a danger if he were sentenced to life in prison. D then called Dr. Quijano, who had been appointed by the presiding judge to conduct a psychological evaluation. Dr. Quijano had met with D in prison prior to trial and shared a report of his findings with defense counsel. Dr. Quijano thought it significant that D’s prior acts of violence had arisen from romantic relationships with women. Dr. Quijano considered D’s behavioral record in prison a good indicator that future violence was unlikely. Dr. Quijano also 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.” Despite knowing Dr. Quijano’s view that D’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.” The Dr. discussed in detail how race was an indicator of future violence. The report was admitted into evidence. On cross-examination, the prosecutor likewise asked about the statistical factors of past crimes and age, then questioned Dr. Quijano about the roles of sex and race. D being a male and black ticked off two of the violence buttons. D closed with a plea that D 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. P put forth D's brutal nature and lack of remorse, along with the inability of D’s experts to guarantee that he would not act violently in the future-a point it supported by reference to Dr. Quijano’s testimony. Over the two-day deliberation, the jury sent out four notes, one of which requested the “psychology reports” that had been admitted into evidence. D was sentenced to death. The conviction was affirmed on appeal. The case then wandered through the court system for the next two decades. D's first petition for a writ of habeas corpus failed to mention D’s introduction of expert testimony that D’s race increased his propensity for violence. Dr. Quijano's testimony reached the Supreme Court with other cases. 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.” Cornyn also identified D's case as one in which there was a taint. Cornyn did not resentence D but did with the other cases involved. D eventually filed a petition for habeas corpus under 28 U. S. C. §2254. After many more hearings and denials, D filed a motion to reopen his §2254 case under Federal Rule of Civil Procedure 60(b)(6). D identified 11 factors that justified reopening the judgment. These included his attorney’s introduction of expert testimony linking D’s race to violence, the central issue at sentencing. The district court noted that under Strickland, D had failed to demonstrate prejudice and “the introduction of any mention of race was . . . de minimis.” The appeals court denied COA. The Supreme Court granted certiorari.
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