Bill Gates v. Rick Thaler, Director


UNPUBLISHED OPINION ORDER FILED On Remand From The Supreme Court of the United States. [11-70023 Remanded ] (ISSUED AS AND FOR THE MANDATE) Judge: CES , Judge: EGJ , Judge: EBC [11-70023]

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Case: 11-70023 Document: 00512468520 Page: 1 Date Filed: 12/11/2013 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 11-70023 December 11, 2013 Lyle W. Cayce Clerk 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 U.S.D.C. No. 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:* 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 * 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 11-70023 Document: 00512468520 Page: 2 Date Filed: 12/11/2013 No. 11-70023 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 Gates v. Thaler, 476 F. App’x 336, 342 (5th Cir. 2012) (per curiam) (non-precedential); see also Ibarra v. Thaler, 687 F.3d 222 (5th Cir. 2012) (reaching the same conclusion in a precedential opinion less than two weeks later).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 vacatur of our judgment, and for the reasons stated by the Supreme Court, we hereby REMAND to the district court for reconsideration of Gates’s five procedurally defaulted claims in light of Trevino. 2

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