Whether the Texas future-dangerousness special issue fails on vagueness grounds as applied to Mr. Saldajfio, as a statute incapable of reasoned application to him in an unbiased and principled manner

QUESTION PRESENTED — CAPITAL CASE At Mr. Saldafio’s first death penalty trial, in 1996, an expert for the State of Texas testified that Mr. Saldafio was more likely to present a future danger of criminal acts of violence because he was Hispanic. Eight years on death row followed, most of it in extraordinarily severe isolation, until multiple confessions of error by the State finally led to a new penalty trial. Pretrial, Mr. Saldafio’s attorneys then argued that the isolation of death row had left Mr. Saldafio so mentally decompensated that Texas’ future dangerousness special issue could no longer be constitutionally applied to him. He would scare the jury, and the statute in his context became so vague that the sentencing decision became unprincipled, with a serious risk of a biased and capricious jury decision. This constitutional claim, while presented in the Texas courts, was never adjudicated on the merits by the Texas Court of Criminal Appeals and was denied a Certificate of Appealability by the U.S. Court of Appeals for the Fifth Circuit. Buck v. Davis, 137 S. Ct. 759 (2017), requires a certificate of appealability when “jurists of reason could disagree with the district court’s resolution of [an applicant’s] constitutional claims or... jurists could conclude the issues presented are adequate to deserve encouragement to proceed further,” id. at 773. Did the Fifth Circuit contravene this Court’s precedent in Buck when it denied a certificate of appealability on whether the Texas special issue fails on vagueness grounds as applied to Mr. Saldajfio, as a statute incapable of reasoned application to him in an unbiased and principled manner? i