Opinion
No. 11-70023
03-19-2014
BILL DOUGLAS GATES, Petitioner-Appellant, v. WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:09-CV-2702
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before STEWART, Chief Judge, and JOLLY and CLEMENT, Circuit Judges. PER CURIAM:
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
On June 19, 2012 we denied Gates's application for a certificate of appealability because, among other things, he had procedurally defaulted upon five of his six underlying claims, and we were bound by our precedent which held "that ineffective assistance of habeas counsel cannot provide cause for a procedural default." Martinez v. Johnson, 255 F.3d 229, 241 (5th Cir. 2001). We concluded that given "material distinctions" between Texas and Arizona procedures for direct appellate review, the Supreme Court's decision in Martinez v. Ryan, _ U.S. _, 132 S. Ct. 1309 (2012), did not control our disposition of Gates's application. Gates v. Thaler, 476 F. App'x 336, 342 (5th Cir. 2012) (per curiam) (unpublished); see also Ibarra v. Thaler, 687 F.3d 222 (5th Cir. 2012) (reaching the same conclusion in a precedential opinion less than two weeks later).
After our opinion was issued, the Supreme Court held in Trevino v. Thaler, _ U.S. _, 133 S. Ct. 1911, 1921 (2013), that the rule from Martinez v. Ryan does apply in collateral challenges to Texas convictions. The Supreme Court granted certiorari to Gates, vacated our judgment, and remanded for further consideration in the light of Trevino. See Gates v. Thaler , _ U.S. _, 133 S. Ct. 2764-65 (2013). In light of the Supreme Court's order, we GRANT Gates's application for a COA and REMAND to the district court for reconsideration of Gates's five procedurally defaulted claims in light of Trevino. We also DENY the Director's petition for rehearing.