Whether a state court errs in refusing to entertain a cognizable Eighth or Fourteenth Amendment claim based on a state expert's recantation of trial testimony on the issue of the defendant's future dangerousness

QUESTIONS PRESENTED Before a defendant may be sentenced to death in Texas, a unanimous jury must find beyond a reasonable doubt that “there is a probability that [he] will commit criminal acts of violence that would constitute a continuing threat to society.” Tex. Code Crim. Pro. 37.071 §1(b)(1). Petitioner Ramiro Gonzales was 18 years and 71 days old when he committed the offense for which he was sentenced to die. At trial, the State presented expert psychiatric testimony to establish Petitioner’s future dangerousness. The expert’s opinion relied on an erroneous diagnosis of antisocial personality disorder and falsely inflated recidivism rates. The expert now acknowledges that his trial diagnosis and testimony were wrong, that the statistical evidence he put before the jury was false, and that Petitioner in fact “does not pose a threat of future danger to society.” An otherwise constitutionally sound death sentence may violate the Eighth and Fourteenth Amendments if based in part on “materially inaccurate” evidence. Johnson v. Mississippi, 486 U.S. 578, 590 (1988). Notwithstanding, the Texas Court of Criminal Appeals categorically refuses to address Johnson error pertaining to evidence introduced by the State and relating to Texas’s future dangerousness special issue because that jury finding “is made at the time of trial and is not properly reevaluated on habeas.” This case presents the following questions: Where a State conditions a death sentence on a jury’s unanimous finding beyond a reasonable doubt that “there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society,” (1) Does the recantation by the State’s expert witness of his trial testimony as to the defendant’s “future dangerousness” give rise to a cognizable constitutional claim under the Eighth and Fourteenth Amendments that the defendant’s death sentence is insufficiently reliable to be allowed to stand? (2) If such a recantation raises either a cognizable Eighth or Fourteenth Amendment claim, does a state court err in refusing to entertain them based on its own misunderstanding of the claim being advanced? ii