     Case: 13-10312       Document: 00512195821         Page: 1     Date Filed: 04/03/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            April 3, 2013

                                       No. 13-10312                        Lyle W. Cayce
                                                                                Clerk



In re: RONNIE PAUL THREADGILL,

                                                  Movant

--------------------------------------

Consolidated with 13-70012

RONNIE PAUL THREADGILL,

                                                  Petitioner-Appellant
v.

RICK THALER, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,

                                                  Respondent-Appellee



                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 3:13-CV-1138-D


Before DAVIS, SMITH, and DENNIS, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                   No. 13-70012

      Petitioner Ronnie Paul Threadgill was convicted and sentenced to death
in a Texas state court for the capital murder of Dexter McDonald. He exhausted
his state remedies and filed a petition for a writ of habeas corpus under 28
U.S.C. § 2254, which was denied. He now brings a second petition for federal
habeas corpus, for the first time asserting under Strickland v. Washington, 466
U.S. 668 (1984), and Wiggins v. Smith, 539 U.S. 510 (2003), that his trial counsel
rendered ineffective assistance of counsel by failing to develop and present
mitigation evidence. He also has filed a motion for stay of execution and a motion
to stay and abey pending a ruling by the Supreme Court of the United States in
Trevino v. Thaler, 449 F. App’x 415 (5th Cir. 2011), cert. granted, 133 S. Ct. 524
(2012). The district court denied Threadgill’s petition and motions for stay.
Threadgill now seeks a certificate of appealability in this court.
      Threadgill contends that the procedural default of his Wiggins claim is
excused under Martinez v. Ryan, 132 S. Ct. 1309 (2012). In Martinez, the
Supreme Court created a narrow exception to the rule that an attorney’s errors
in a postconviction proceeding do not qualify as cause for a procedural default.
The Court held:
      Where, under state law, claims of ineffective assistance of trial
      counsel must be raised in an initial-review collateral proceeding, a
      procedural default will not bar a federal habeas court from hearing
      a substantial claim of ineffective assistance at trial if, in the initial-
      review collateral proceeding, there was no counsel or counsel in that
      proceeding was ineffective.
Id. at 1320. The Martinez exception is a narrow one, and “does not concern
attorney errors in other kinds of proceedings, including appeals from initial-
review collateral proceedings, [or] second or successive collateral proceedings.”
Id. We held in Ibarra v. Thaler, 687 F.3d 222 (5th Cir. 2012), that the Martinez
exception does not apply in review of sentences issued by Texas courts because
Texas allows claims of ineffective assistance of counsel to be raised for the first


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                                  No. 13-70012

time on direct appeal. The Supreme Court granted a writ of certiorari in Trevino
v. Thaler, 133 S. Ct. at 525, to address whether the Martinez exception applies
to Texas cases.
      Even if the Supreme Court’s eventual decision in Trevino makes Martinez
applicable to Texas, however, Threadgill’s claim would still be procedurally
barred for being a second or successive habeas corpus application. Threadgill
failed to raise his Wiggins claim both in his state habeas corpus proceeding and
in his first federal habeas petition. Where a claim is presented in a second or
successive habeas corpus application under 28 U.S.C. § 2254 that was not
presented in a prior application, the claim must be dismissed unless
      (A) the applicant shows that the claim relies on a new rule of
      constitutional law, made retroactive to cases on collateral review by
      the Supreme Court, that was previously unavailable; or
      (B)(i) the factual predicate for the claim could not have been
      discovered previously through the exercise of due diligence; and
      (ii) the facts underlying the claim, if proven and viewed in light of
      the evidence as a whole, would be sufficient to establish by clear and
      convincing evidence that, but for constitutional error, no reasonable
      factfinder would have found the applicant guilty of the underlying
      offense.
28 U.S.C. § 2244(b). Threadgill’s ineffective-assistance claim relies on
Strickland, 466 U.S. 668, and Wiggins, 539 U.S. 510, neither of which was new
at the time that Threadgill filed his first federal habeas petition. He concedes
that the factual predicate for the claim was available prior to his filing his first
federal habeas petition. Therefore, he cannot show that his petition should not
be dismissed pursuant to § 2244(b).
      Martinez does not concern attorney error in any proceeding other than the
initial-review collateral proceeding. See Martinez, 132 S.Ct. at 1320. Therefore,
even if Martinez is made applicable to Texas cases, it would excuse only



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                                  No. 13-70012

Threadgill’s procedural default of his Wiggins claim in state habeas proceeding
and not his failure to raise his Wiggins claim in his first federal habeas petition.
      We therefore DENY Threadgill’s application for a certificate of
appealability, DENY his motion for stay of execution, and DENY his motion to
stay and abey pending a ruling by the Supreme Court of the United States in
Trevino v. Thaler.




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