Duane Buck v. William Stephens, Director


PUBLISHED OPINION ORDER FILED on Remand from the Supreme Court of the United States. [14-70030 Vacated and Remanded] Judge: JES, Judge: PRO, Judge: CH; granting motion for certificate of appealability filed by Appellant Mr. Duane Edward Buck [7910348-2] [14-70030]

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

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