No.

11-70025 ____________________________

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

___________________________ Duane Edward Buck, Petitioner-Appellant v. Rick Thaler, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee ___________________________ On Application for Certificate of Appealability from the United States District Court for the Southern District of Texas, Houston Division Civ. Action No. 4:04-cv-03965 ___________________________

MOTION FOR STAY OF EXECUTION PENDING CERTIFICATE OF APPEALABILITY OR APPEAL

TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT: Applicant Duane Buck respectfully requests that this Court grant him a stay of execution. 28 U.S.C. 2254(a)(1) provides that: A justice or judge of the United States before whom a habeas corpus proceeding is pending, may, . . . pending appeal, stay any proceeding against the

person detained in any State court or by or under the authority of any State for any matter involved in the habeas corpus proceeding.1 Texas is scheduled to execute Mr. Buck by lethal injection on Thursday, September 15, 2011. It is poised to execute him even though that states highest legal official had identified Mr. Bucks death sentence as one obtained in violation of the United States Constitution. The government had relied on Mr. Bucks race as a basis for proving dangerousness during capital sentencing, but the Attorney General of the State of Texas promised that the State would remedy the violation by conceding error in federal court. Instead, the State of Texas successfully persuaded the district court and this Court to uphold Mr. Bucks death sentence, employing material misrepresentations and omissions to distinguish it from other cases in which the Attorney General had confessed error. On September 7, 2011, Mr. Buck filed a motion in the district court requesting that it grant him relief from the judgment due to the extraordinary circumstances that: (1) the Attorney General of Texas had previously identified Mr. Bucks death sentence as one obtained in
Mr. Buck has provided all the supplementary documentation specified in 5TH CIR. RULE 8.1.
1

violation of equal protection based on the governments reliance on race as a factor at sentencing; (2) the Attorney General had promised that he would not assert procedural defenses against Mr. Bucks claims related to the governments violations of fundamental constitutional norms; and (3) the Attorney Generals pleadings in this case to date had failed to disclose these relevant facts and the circumstances of the other cases in which it had previously waived procedural defenses and confessed error. See Exhibit 1. After the Attorney General filed a Response containing material misrepresentations and omissions, the district court denied the motion in a September 9, 2011 Order. See Exhibit 2. The court also denied a certificate of appealability (COA). Id. After a motion to amend the judgment was denied on September 12, 2011, Mr. Buck filed a Notice of Appeal on September 13, 2011. In his Application for COA in this Court, Mr. Buck argues that reasonable jurists could debate the district courts resolution of his equal protection and due process claims. Specifically, he contends that the prior decisions issued in this case were based substantially on misrepresentations and omissions in the Attorney Generals pleadings 3

about the Attorney Generals express and unambiguous conclusions about the constitutionality of Mr. Bucks sentence, as well as the circumstances of other cases in which the Attorney General had waived available procedural defenses and confessed error. Primarily, the Attorney General did not disclose the circumstances of cases with materially indistinguishable facts to Mr. Bucks and implied that no such cases existed. These misrepresentations led this Court to hold that reasonable jurists could not debate whether Mr. Bucks sentence was obtained in violation of the Constitution, even though a different panel of this Court had earlier found a constitutional violation in a materially indistinguishable case. See Alba v. Johnson, 232 F.3d 208, 2000 WL 1272983, No. 00-40194 (5th Cir. Aug. 21, 2000) (unpublished) (attached as Exhibit 3). Careful inquiry into the allegations Mr. Buck has raised in his Application is necessary to ensure that Mr. Buck has not been treated disparately or arbitrarily by the State of Texas. The issues sought to be presented by an appeal in this case are weighty enough that this Court should grant a stay of execution pending its decision on Mr. Bucks COA

request and, if granted, pending the appeal of the lower courts order denying Mr. Bucks request for relief from the judgment. Respectfully submitted,

s/ Katherine C. Black ____________________ Katherine C. Black Texas Bar No. 24064907 kateblack@texasdefender.org TEXAS DEFENDER SERVICE 1927 Blodgett Street Houston, Texas 77004 Tel. (713) 222-7788 Fax (713) 222-0260 Gregory W. Wiercioch Texas Bar No. 00791925 gwooch@texasdefender.org TEXAS DEFENDER SERVICE 430 Jersey Street San Francisco, California 94114 Tel. (832) 741-6203 Fax (713) 222-0260

CERTIFICATES OF SERVICE AND COMPLIANCE WITH ECF FILING STANDARDS

I certify that on September 13, 2011, the foregoing Motion for Stay of Execution was served, via the Courts CM/ECF Document Filing System, upon the following registered CM/ECF users: Ms. Georgette Oden, Assistant Attorney General Office of the Attorney General P.O. Box 12548 Austin, Texas 78711-2548 georgette.oden@oag.state.tx.us Counsel further certifies that (1) required privacy redactions have been made in compliance with Fifth Circuit Rule 25.2.13; (2) the electronic submission is an exact copy of the paper document in compliance with Fifth Circuit Rule 25.2.1; and (3) the document has been scanned with the most recent version of a commercial virus scanning program and is free of viruses. s/ Katherine C. Black ______________________ Katherine C. Black