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UNPUBLISHED OPINION ORDER FILED On Remand From The Supreme Court of the United States.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]
Date Filed: 12/11/2013
IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
December 11, 2013
Lyle W. Cayce
BILL DOUGLAS GATES,
WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
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.
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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
Date Filed: 12/11/2013
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curiam) (non-precedential); see also Ibarra v. Thaler, 687 F.3d 222 (5th Cir.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
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
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