                 Cite as: 568 U. S. ____ (2012)            1

                  Statement of SOTOMAYOR, J.

SUPREME COURT OF THE UNITED STATES
                         _________________

                     No. 12–6760 (12A369)
                         _________________


ANTHONY CARDELL HAYNES v. RICK THALER, DI- 

 RECTOR, TEXAS DEPARTMENT OF CRIMINAL JUS- 

  TICE, CORRECTIONAL INSTITUTIONS DIVISION

                 ON APPLICATION FOR STAY
                     [November 13, 2012]

  Statement of JUSTICE SOTOMAYOR, with whom JUSTICE
GINSBURG joins, respecting the grant of stay of execution.
  In this case, a divided Fifth Circuit panel rejected An-
thony Haynes’ application for a certificate of appealability
on the ground that this Court’s decision in Martinez v.
Ryan, 566 U. S. ___ (2012), “does not apply to Texas capi-
tal habeas petitioners.” No. 12–70030, 2012 WL 4858204,
*2 (Oct. 15, 2012). We recently granted certiorari to ad-
dress precisely the question whether Martinez applies to
habeas cases arising from Texas courts. See Trevino v.
Thaler, 568 U. S. ___ (2012).
  The dissent observes that on federal habeas review in
this case, the District Court, after first concluding that
Haynes had procedurally defaulted his claim that his trial
counsel was constitutionally ineffective, ruled in the alter-
native that the claim failed on the merits. Post, at 2–3.
But the Court of Appeals has never addressed the District
Court’s merits ruling, and has instead relied solely on pro-
cedural default. See 2012 WL 4858204, *2; Haynes v.
Quarterman, 526 F. 3d 189, 194–195 (CA5 2008). The
only appellate judge to consider the merits of Haynes’
claim would have granted Haynes a certificate of appeal-
ability in his current case and stated that it was “difficult
to conclude that Hayne[s] has not made a sufficient show-
ing for a Strickland [v. Washington, 466 U. S. 668 (1984),]
2                   HAYNES v. THALER

                  Statement of SOTOMAYOR, J.

violation as to his trial counsel.” 2012 WL 4858204, *4
(Dennis, J., dissenting).       Under these circumstances,
rather than assume the correctness of the District Court’s
unreviewed merits decision, I believe a stay of execution is
warranted to allow Haynes to pursue his claim on remand
if this Court in Trevino rejects the single ground relied
upon by the Fifth Circuit for denying Haynes’ application
for a certificate of appealability.
