Central disputed issue at sentencing based not on the individual facts and circumstances of his crime our history but instead based on a false and pernicious stereotypes. Didnt the experts say he would not be a future danger . On crossexamination he testified he did believe buck was likely to commit future crimes of violence and that with the prosecutors questioning he was on the low end of the continuing but he could not say he was not likely. But mr. Buck. He was on the of low end of the spectrum of violence. But here this experts evidence but the very integrity in jeopardy so for that reason that interest does not apply it publicly declared it would waive their procedural defense to allow a new sentencing hearing including mr. Buck with this statement expert criminal violence opinion and then to reverse the course if mr. Buck case alone as a result and in pursuant to the sentence that he has acknowledged of that bias to undermine, this confidence in the system. So you focus on the fifth corporate standard to say that is unduly burdensome but today focused on those underlying merits of the case so you have to make a choice . Because if you focus on the merits to rule in your favor when you dont get to say too much about that threshold of that certificates of appeal ability then all we are saying is that this is substantial showing so what do you want us to do on the merits or the certificates of appeal ability . To find out if he was entitled to the certificate the court had to determine whether or not with respect to the procedural question would be debatable. Right. So because those merits our debate debatable . So they should have got that certificate . We believe it is wrong so he was entitled to a certificate of appeal ability. So they could disagree . That they would say that his prejudice was not incorrect so therefore he by is entitled to that certificate. That came up and said of course, he should have because he is right and similarly be did the same thing oddly enough yes he should have the because he has the merits on his side that is essentially we would want us to do . Yes. That does leave on the table with the chief justice was say whether that the fifth circuit was using nonstandard. But in this case that analysis is that the heart of the case the center of the claim has always been the introduction of the Racial Discrimination to undermine the confidence of the integrity of the courts as well and assessing the dependability with the of critical case in his case and the integrity of the courts what they did to have that fidelity also that conduct of the certificate of appeal ability analysis ignored critical facts in the case. So dave argued day improperly denied the neck was the decision but they did not really engaged the merits they engaged the standard so if we go back to that are you satisfied that they use the wrong standard . Are really satisfied if we say that u. N. . Odyssey of a blake the court to say that we win. With the new fare sentencing hearing would be my preference is to say to be entitled to a certificate of appeal ability because all of the justifications are incorrect and unsustainable. So lets start with the first issue with respect to that a read your adversaries to say that they could never constitute the exceptional circumstance to justify that issuance of that is their decision not to be made retroactive so what does this have to do with anything . Arent you making martine says retroactive if we recognize this as the exceptional . And second there is a split on this question to recognize that in your brief with the Third Circuit showing that under some circumstances can have a reason to have those circumstances there is a six asseverate part test and the fifth says never saw where reduce the enormous . What is your position . Looking a constitutional law this is a rule with no applicability that arises only with a habeas context so that does not apply to martinas but with respect to the applicability to mr. Buck this is the circumstance where if properly granted mr. Buck did be the same position as martinez to argue to seek cause to excuse the defaults of his trial counsel in the first petition for habeas corpus relief. This is a very unusual case with what occurred at the penalty phase of the trial. But what concerns me are the implications of your argument for all of the other prisoners even if they are not capital cases they want to raise effective ineffectiveness of council that has defaulted so we should have relief from a prior judgment denying habeas relief so what would prevent a ruling in your favor to open the door to the of litigation of all of those issues that would effectively be retroactive . There are three factors i think that makes his case unique first and foremost, it has the express appeal to racial bias that not only undermines the integrity of the courts but second he now faces execution as a Death Penalty case pursuant to that death sentence that cannot be compromised by racial bias and third mr. Buck has consistently pursued relief on his claims that make his case is unique from the vast majority. That makes him unique from the vast majority of other prisoners into the federal court. So the answer is it your opinion we should say with the interpretation it does not apply unless it is a capital case . In terms of of question i think the court should look at those identified better in their brief first period we are looking at the execution. If it was a sentence of 10 years that would be unjust. Absolutely. There is more. To impair the integrity of the judicial system more broadly. So with the same answer there if is four years. I know death is different but and. Is unique to a the mr. Buck case to a acknowledge no significant finality and then if you add to the fact that claman effectiveness so to have a group of factors that they should provide guidance. So if there is a reason for that. And that was true in other cases as well. But if we rely on that too much will that discourage prosecutors from offering discretionary concessions . This is a unique circumstance because the tests that fundamental problem because it is compromised by racial bias to undermine the integrity of the court. Checks is mitt take a different approach but it can i get away from those to establish the state as uninterested in the death sentence. To the extent it is unique and then have that fifth circuit approaches that availability . It is a unique case so that is an odd platform so that grants those in a very certain incentive percentage of cases i know how we can use that to articulate the general rule. It is an extraordinary case because they failed to acknowledge that that it will underscore said deep need with that factor should be considered to you determine if it is or is not appropriate would be wrong for the merit increase in this case . Should i have just said with the substantial showing of denial with that we can dirty peek at the merits are they looking at it more closely . They have made clear time and again that threshold review of merit. So should our decision be just that . With that appeal ability . No. I believe because we have the fifth circuit going past that analysis they should explain that those reasons that have been offered are incorrect. But if that was debatable or wrong. You want us to say there has been a constitutional violation in this case but to determine that there wasnt . There was a constitutional violation. But this is such a wonderful case that this circuit got it so wrong that the best proof that there is so if they reach the wrong results in this case they could just not understand what the inquiry is all about. And then to find these facts and circumstances debatable. It is also the need for guidance and with that lack of Information Available in when the fifth circuit should apply and to add to that statutory language . I dont have additional language but it is quite clear that the pressure of the application demonstrates as the court has noted in previous decisions and had not previously adhered to that data to amplify and demonstrate the fact. So we can do is use as an example how out of line the fifth circuit is under these circumstances. To defend what they did under prejudice there was a law of evidence to the offense that was committed and the other conduct by the petitioner to show that it did not have to rest exclusively. Isnt that correct . Certainly they presented evidence and i think that however those were the facts and circumstances and the lack of remorse immediately after he was arrested in the Domestic Violence incident. The court has recognized that aggravated crimes like this can trigger a rationalized fear of violence that killed yield arbitrary death decisions so the fact that does have very aggregated facts and what we have here is a circumstance that only of the terrible facts of the crime but the real risk of the arbitrary death decision but the experts stepping into a compound that risked to put to the expert scientific validity to the pernicious idea that mr. Buck is likely to commit parallax of violence but now and it has doubled in late of that and have a doctors opinion compound of the risk of violence. There has been a law of talk a law of talk on both sides but how much of the actual report . They asked for two things. Could they consider life without parole . So they were considering mercy. Somebody was. So they wanted to talk about that. Can we talk about life without parole . I dont even know what the answer to that was. And number two they asked for that psychiatric report not to be read before the report so how does that teaches the calculus . First it was negotiated in the trial proceedings they were not getting any informational dapper. They were told he would be eligible . They were not. There are not given information the trial prosecutor fought very hard to make sure the jury did not receive the information about parole eligibility that was one of the issues she was very concerned to make sure was redacted from the report because he had a reference. How old was mr. Buck at the time . I think he was in his 20s. I am not sure at the moment. So the jury was considering a life sentence. But then we have them asking for the psychiatric report which contains a sentence that says mr. Buck is more likely to enact criminal acts of violence report on direct and crossexamination ultimately they literally make the decision about mr. Buck dangerous decision with the imprint in their hand and also the jury was not able to make a . Decision on sentencing. This jury did not may a . Decision is you would have expected the jury was out for todays of the question presented so what this shows is during the pivotal time to determine the answer to the question of what was the likely danger they had their hand a piece of paper to validate evidence that came from both sides of the. That composition of the jury . The only thing we can confirm on our own that 10 of the jury members were white to read about the other two but that does not matter because it is evidence of the explicit appeal to racial bias. This is the kind of evidence that the courts for over 100 years and said even just once is possible you cannot and bring the of bell because the evidence in this case whether or not he would be executed but if they did not find that future dangerousness they could not be executed. The evidence puts the some heavily on the death scale and in particular in this case so as i said texas presented three categories of evidence wac the lack of remorse and the prior Domestic Violence but nothing presented spoke to the question whether or not mr. Buck was likely to commit criminal acts of violence if he was sentenced to life in prison. But mr. Buck presented dr. Lawrence and that was powerful if he were in prison as the only alternative to the death sentence presented with. So you say the evidence with those that he had a romantic relationship with that least to kill two people he did not have their romantic relationship. And then there was bin that one sequence of the events with the relationship of his exgirlfriend than mr. Buck has a positive adjustment history when he was previously incarcerated he was held the minimum security that all of the crimes that took place in the prior year were committed by people who were involved in gangs and there was a gang involvement here so the highlights the shortcomings for the future danger and they say here we do have evidence to go beyond what texas has presented and the only evidence is the evidence from the doctor of the characteristic that establishes he will be a danger of a matter where he is i will reserve the remainder of my time. Mr. Chief justice of it pleases the court the petitioner murdered his girlfriend in front of her children with a gun to her chest. So the of crimes are particularly he is for the state determined nonetheless there was a rest to be sentenced to death because of their race and i dont understand the might understand the procedural differences so regardless of the evidence is submitted by the prosecution or the defense it would seem that same concern. There is that distinction between the government or the prosecuting authority raises dangerousness that would use race as be a greater so we do not defend the councils actions of the proceedings. But with crossexamination to put that into context to solve that expert report over the of lunch hour and the prosecutors are walking through those various factors to not go beyond what was solicited to highlight the example that they did confess so to go down all the indicators they did not want to talk about them but i did to force the issue of male and hispanic. But the petitioners own counsel and with the petitioners council that this evidence everybody reads so what type of evidence . Were not defending those actions so to claim that the Court Reviews in the context of a prosecutor using that as the ever greater of the due process violation. In the nature of that evidence is significantly higher in the president ial to use that as the activator aggravator. We dont care if they are exercising their racial challenge but neither should use race. So why is that different here . So why is that not okay to introduce the greater likelihood of the person to be dangerous . But that it is less bad for the defense attorney . It is not okay. But the issue goes to the level of prejudice. But the level of prejudice is a the reasonable possibility because one juror does not agree with them. And that is possible to do life without parole . To be convinced to exercise so can you answer that question absolutely not . If you poured gasoline on a woman to watch her die . We had a nation that was shocked and was traumatized to watch the pilot burn to death so why is that any less . To execute a mother on her knees in front of her children. It also say that is not the why is that he business so much greater that no jury could have exercised mercy . But that prejudice analysis is that its different outcome. They do not have to rollout the reasonable probability. That is the language so that must be substantial not just conceivable. So to address that jury deliberation to deliberate over the course of todays over three hours 13 minutes but on the first day the jury asked for the Police Reports and psychology reports of the second day the jury asked to see the crime scene videos so as far as they look at the circumstances of the jurys deliberation that that inference is before they return the of verdict looking at the crime scene video. I am not sure that quickness of the determination helps you at all that they have evidence that is likely to be dangerous. Were not in their jury room but we do know the prosecutor that the race factor increases of future dangerousness the is you cannot prove that and then to say this is totally wrong and now in the seventh case to take the opposite position and i have to admit i dont understand the reason it seems to me a cruz arbitrary of what is going on but regardless be issue is there is some good reason why this person should not have been able to reopen his case. So of circumstances seem to fit like a glove they certainly dont have a strong interest with some kind of reliance so where martinezs seems to apply and was diligent. And two seems to meet the martinez criteria so why doesnt that make it extraordinary enough . That seems to be the question. So the first is the only circumstance is the change of though law and if there was a lack of diligence and that assistance klay was raised on habeas so that ineffective assistance claim all this took place after the court decided martinas. In the context of the second. So did those take place or not after be decided our case . If some of them did. The federal habeas petition were before martinez but with gonzalez the court noted the petitioners not pursuing the claim of ticket diligence but he did exactly you would have expected him to do to say it would have been improper at least that would have been futile. That would have been under crosby the statute of limitations would have won. T think it is substantially different and gonzalez . That the nature of the error . To say the lawyers misjudge time limits all the time but what we know is that it is not commonplace even as the defense witnesses to raise race as a reason so only this attorney repeatedly for the malfeasance of the clients so it for a Death Penalty higher this lawyer. Is that the rare case back gaullists talkedabout . It certainly is the unusual case and with that appellate judge with that adieus its discretion when gonzalez verses crosby is on the books . So with the statute of limitations . As soon as they say the words i am confused. [laughter] there are all kinds of statutes to say he did not pursue the change diligently and not every interpretation of federal statute the cases have long been since filed because in part of the lack of diligence. There is a bunch of reasons there as i read the of i dont they one applies here. So with that analysis the fifth circuit was correct to justify their relief and when the facts of the case existed for over 20 years there is nothing new about raising that claim to reopen the judgment. So in that case this is the second motion. Ion negative than your argument on the merits on the certificate of appeal ability to prevail on the merits but that is whether there has been a substantial all showing. Assuming you have not already seen the analysis and looking at this for the first time, we didnt seem straightforward to say maybe he is right or wrong but he made a substantial showing then we go through the normal procedures. Is a harder standard under the certificate of appeal ability standard but even then asking whether reasonable jurist debate or abused its discretion with extraordinary circumstances circumstances . Bag gets tougher talking about a reasonable jurist with that threshold but when you say whether it has been the abusive discretion or broad range to the District Court now you say if you are a reasonable person they should have deferred to that exercise of discretion it does seem to me it is a different standard and the broader question is of the fifth circuit applie