     Case: 11-70031   Document: 00511960177      Page: 1   Date Filed: 08/17/2012




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

                                                                     FILED
                                                                  August 17, 2012

                                   No. 11-70031                    Lyle W. Cayce
                                                                        Clerk

RAMIRO RUBI IBARRA,

                                              Petitioner-Appellant
v.

RICK THALER, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

                                              Respondent-Appellee


                  Appeal from the United States District Court
                       for the Western District of Texas


Before JONES, Chief Judge, and HAYNES and GRAVES, Circuit Judges.
EDITH H. JONES, Chief Judge:
        The court has considered Ramiro Rubi Ibarra’s application for a Certificate
of Appealability (“COA”) from the district court’s denial of habeas relief following
his capital murder conviction.        The issues he raises concerning mental
retardation, ineffective trial counsel and breach of the Vienna Convention on
Consular Relations were rejected by the district court in terms that are not
debatable among reasonable jurists. We therefore DENY the application.
                                   Background
        The district court ably detailed the facts of this case; we recite them only
as material here. Ramiro Rubi Ibarra (“Petitioner”), an illegal alien, brutally
   Case: 11-70031     Document: 00511960177   Page: 2   Date Filed: 08/17/2012



                                 No. 11-70031

raped, sodomized, and strangled 16-year-old Maria De La Paz Zuniga. Forensic
and eyewitness evidence quickly led to Petitioner’s arrest and indictment, but
a technicality prevented police from obtaining a necessary warrant for his blood
and hair samples, permitting him to escape justice for nearly a decade. A change
in Texas law allowed police to obtain the requisite warrant, and DNA analysis
matched Petitioner to the crime. He was indicted, tried, found guilty, and
sentenced to death.
      At the punishment phase of trial, the jury heard evidence that Petitioner
sodomized his eight-year-old nephew and threatened to kill the boy if he told
anyone. The jury also heard evidence that he molested his nephew on other
occasions. Petitioner’s sister-in-law testified that there was some indication he
had abused her son. It heard testimony from his sometime paramour Maria
Luna Diaz that Petitioner had beaten and sexually assaulted her, including once
forcing her to undress at knifepoint and threatening to kill her if she disobeyed
him. She testified that he threatened to strangle her, wrapped a wire around
her neck, and pushed her down, releasing her only when she begged for her life.
Diaz’s daughter testified that Petitioner touched her breast inappropriately
when she was eleven years old; she told her mother, who confronted Petitioner
and was rewarded with a beating. Petitioner had been previously convicted for
unlawfully carrying a weapon and driving while intoxicated. Further, Ibarra
misbehaved while in prison: he masturbated in public view, attempted suicide,
fought another inmate, feigned unconsciousness, and was generally
uncooperative.
      Petitioner’s wife, Maria Gandera Ibarra, testified on his behalf, but
admitted on cross-examination that he beat her several times, including when
she was pregnant. She also testified that he brought an 18-year-old girl from
Mexico to live with them; although Petitioner said that she was his daughter, he
kissed her on the mouth and spent hours alone with her in a bedroom behind

                                       2
   Case: 11-70031    Document: 00511960177      Page: 3   Date Filed: 08/17/2012



                                  No. 11-70031

closed doors. A psychiatrist testified for the state that in his expert opinion, an
offender with Petitioner’s history and sexual proclivities would constitute a
continuing threat to society.
      Petitioner’s sentence and conviction were affirmed on direct appeal. See
Ibarra v. State of Texas, 11 S.W.3d 189 (Tex. Crim. App. 1999), reh’g denied
(Dec. 8, 1999), cert. denied, Rubi Ibarra v. Texas, 531 U.S. 828, 121 S. Ct. 79
(2000). His first state habeas corpus petition was denied. Ex parte Ibarra, No.
WR-48832-01 (Tex. Crim. App. Apr. 4, 2001). Petitioner then submitted his
federal habeas petition, which was stayed while he exhausted additional state
court claims pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002),
which banned the execution of the mentally retarded. His petition was stayed
further while he pursued state court claims following President Bush’s
announcement that the United States would have state courts give effect to an
International Court of Justice opinion declaring that Mexican nationals were
entitled to review and reconsideration of their convictions due to states’ failure
to comply with the Vienna Convention on Consular Relations (“VCCR”). See The
Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.) (“Avena”),
2004 I.C.J. 12 (Judgment of Mar. 31). See also Medellin v. Texas, 552 U.S. 491,
128 S. Ct. 1346 (2008).
      The Texas Court of Criminal Appeals remanded Petitioner’s Atkins claim
to the trial court for an evidentiary hearing. The trial court determined that
Petitioner was not mentally retarded, and this holding was adopted on appeal
by the Court of Criminal Appeals (“CCA”).         In the same order, the CCA
dismissed his separate petition for relief under Avena as a subsequent writ
under Article 11.071, Section 5 of the Texas Code of Criminal Procedure. Ex
parte Ibarra, Nos. WR-48832-02 and WR-48832-03, 2007 WL 2790587, (Tex.
Crim. App. Sept. 26, 2007). Petitioner’s application for certiorari on his Avena
claim was denied. Ibarra v. Texas, 553 U.S. 1055, 128 S. Ct. 2475 (2008). A

                                        3
   Case: 11-70031   Document: 00511960177      Page: 4   Date Filed: 08/17/2012



                                  No. 11-70031
fourth state habeas petition, raising a claim under Wiggins v. Smith,
539 U.S. 510, 123 S. Ct. 2527 (2003), was also dismissed by the CCA as a
subsequent writ. Ex parte Ibarra, No. WR-48832-04, 2008 WL 4417283 (Tex.
Crim. App. Oct. 1, 2008).
      Petitioner’s federal habeas petition asserted eleven grounds for relief, all
of which were rejected by the district court. Petitioner seeks a COA to challenge
three of those claims. First, he seeks a COA regarding his Atkins claim that he
is mentally retarded. The district court concluded that Petitioner’s claim was
not exhausted and procedurally barred to the extent that he presented “material
additional evidentiary support to the federal court that was not presented to the
state court.” Lewis v. Quarterman, 541 F.3d 280, 285 (5th Cir. 2008) (emphasis
omitted) (quoting Dowthitt v. Johnson, 230 F.3d 733, 745 (5th Cir. 2000)). Based
on the record before the state court, the district court alternatively found that
Petitioner was not retarded. Second, Petitioner seeks a COA regarding his
Wiggins claim that counsel was ineffective at sentencing. The district court held
that this claim was procedurally defaulted and, alternatively, that the claim was
without merit, principally because Petitioner could not demonstrate prejudice
under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Finally,
Petitioner seeks a COA regarding his VCCR claims. The district court also held
this claim procedurally defaulted, but found in the alternative that it was
meritless, because Petitioner could not demonstrate prejudice.
                Standard for a Certificate of Appealability
      Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”),
28 U.S.C. § 2253(c)(2), a prisoner requesting a COA must make “a substantial
showing of the denial of a constitutional right.” This standard is met when a
petitioner demonstrates “that jurists of reason could disagree with the district
court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.”

                                        4
   Case: 11-70031    Document: 00511960177      Page: 5   Date Filed: 08/17/2012



                                  No. 11-70031
Druery v. Thaler, 647 F.3d 535, 538 (5th Cir. 2011) (quoting Miller-El v. Cockrell,
537 U.S. 322, 327, 123 S. Ct. 1029, 1034 (2003)). In determining this issue this
court “view[s] the petitioner’s arguments through the lens of the deferential
scheme laid out in 28 U.S.C. § 2254(d).” Barrientes v. Johnson, 221 F.3d 741,
772 (5th Cir. 2000). Where a state court decision was reviewed on the merits,
we defer to the state court’s decision regarding that claim unless the decision is
“contrary to, or involve[s] an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States; or . . .
[is] based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” Druery, 647 F.3d at 538 (quotation
marks and citation omitted).
      Where the district court has denied a claim on procedural grounds, a COA
will issue only if the petitioner demonstrates both that jurists of reason might
debate whether his petition states a substantial showing of the denial of a
constitutional right and “that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” Slack v. McDaniel,
529 U.S. 473, 484, 120 S. Ct. 1595, 1604 (2000).
                                   Discussion
      We address each of Ibarra’s claims in turn: his Atkins claim, his Wiggins
claim, and his VCCR claim.
A. Atkins claim.
      Petitioner claims he is mentally retarded and therefore, under Atkins, may
not be subjected to the death penalty. To establish that he falls under Atkins,
Petitioner must demonstrate that he possesses significantly subaverage
intellectual functioning and impaired adaptive functioning, both of which
manifested before the age of 18. See Lewis v. Quarterman, 541 F.3d 280, 283
(5th Cir. 2008); see also Atkins, 536 U.S. at 308 n.3, 122 S. Ct. at 2245 n.3.



                                        5
   Case: 11-70031    Document: 00511960177      Page: 6    Date Filed: 08/17/2012



                                  No. 11-70031
      At the state court evidentiary hearing regarding his Atkins claim, he
presented essentially no supporting evidence. He attempted to introduce his
expert Dr. Romey’s opinion in the form of an affidavit, but the affidavit was not
notarized and was thus inadmissible. He also introduced the affidavit of defense
investigator Yuriria Santin, who detailed facts she had discovered regarding
Petitioner’s alleged early adaptive deficits.      In the (federal) district court,
Petitioner attempted to introduce new evidence, including the authenticated
expert report and affidavits from his family and childhood teacher, none of which
was a part of the state court record. On this basis, the district court concluded
that Petitioner had failed to exhaust his claim, as required by 28 U.S.C.
§ 2254(b) (“An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted unless it
appears that the applicant has exhausted the remedies available in the courts
of the State[.]”).
      Prior     to   the    Supreme      Court’s     decision    in     Cullen      v.
Pinholster,131 S. Ct. 1388, 1398 (2011), this court held that the exhaustion
requirement is not satisfied where a petitioner “presents material additional
evidentiary support in the federal court that was not presented to the state
court.” Lewis v. Quarterman, 541 F.3d 280, 285 (5th Cir. 2008) (emphasis in
original) (citations omitted). “Evidence is material if it fundamentally alters, not
merely supplements, the claim presented in state court.”              Id. at 285-86
(emphasis omitted). Petitioner observes that essentially all of the allegations
regarding his unfortunate childhood now presented in affidavits from family
members and his childhood teacher were originally admitted to the district court
in the affidavit of his investigator, and thus argues that the issue was
exhausted, because its presence in the form of affidavits from family members
does not “fundamentally alter[] . . . the claim presented in state court.” Id.



                                         6
   Case: 11-70031    Document: 00511960177      Page: 7   Date Filed: 08/17/2012



                                  No. 11-70031
      We are inclined to agree with the district court that the evidence Ibarra
offered to bolster his Atkins claim in federal court, which included an admissible
affidavit of his psychologist in addition to numerous other affidavits, was
essential to his claim of mental retardation. Even if there were a debatable
issue about the scope of exhaustion based on Lewis, however, Cullen resolves the
issue in favor of the state. By disallowing federal courts (with few exceptions)
from considering additional evidence not developed in the state court record,
Cullen necessarily rules out the use of such proffered evidence to flesh out claims
inadequately presented to the state courts. The federal district court therefore
properly disregarded this newly proffered evidence.
      Moreover, jurists of reason could not find debatable the alternative ground
for disposition offered by the district court, that even if Petitioner’s claim is
exhausted, his claim was meritless. When evaluating the merits of a claim for
habeas relief from a state court judgment, federal courts must employ only the
record before the state court. Cullen, 131 S. Ct. at 1398 (limiting consideration
of relief under 28 U.S.C. 2254(d)(1) to the state-court record). See also 28 U.S.C.
§ 2254(d)(2) (contemplating relief based on an “unreasonable determination of
the facts in light of the evidence presented in the State court proceeding”
(emphasis added)). Critically, the record before the state court hearing Ibarra’s
claim of mental retardation did not include the expert affidavit that could have
served as some evidence of his sufficiently low IQ, and Petitioner offers no
excuse for his failure to render this affidavit admissible. The state court had
before it the affidavit from Ibarra’s investigator, concerning his allegedly
inhibited adaptive functioning from a young age, and the opinion of Dr. Stephen
Mark, a witness for the state who found no evidence of mental retardation when
he evaluated the Petitioner on two occasions. On this record, it is impossible to
conclude that the state courts’ rejection of the Atkins claim based on the facts
presented to them was unreasonable, as required by § 2254(d).


                                        7
   Case: 11-70031    Document: 00511960177      Page: 8    Date Filed: 08/17/2012



                                  No. 11-70031
      Additionally, relying on Rivera v. Quarterman, 505 F.3d 349 (2007),
Petitioner argues that AEDPA deference is inappropriate here, because the state
courts did not afford him adequate opportunity to develop his claim. Rivera held
that “where a petitioner has made a prima facie showing of retardation . . . the
state court’s failure to provide him with the opportunity to develop his claim
deprives the state court’s decision of the deference normally due.” Id. at 358; see
also Panetti v. Quarterman, 551 U.S. 930, 948, 127 S. Ct. 2842, 2855 (2007)
(holding that as a result of failure to provide process, review of competency claim
was “unencumbered by the deference AEDPA normally requires”). Rivera does
not apply here. Rivera dealt with a state court decision that dismissed the
petitioner’s Atkins claim on its face for failure to establish a prima facie case of
mental retardation. Rivera, 505 F.3d at 352. But, as Rivera noted, 505 F.3d at
359, “states retain discretion to . . . define the manner in which habeas
petitioners may develop their claims.” Blue v. Thaler, 665 F.3d 647, 657 (5th
Cir. 2011). The state provided Petitioner an opportunity for a hearing, and
supplied him with $7,500, and over three years elapsed (between the filing of
his Atkins habeas claim and the September 18, 2006 hearing on his claim of
mental retardation) to develop his claim. Ibarra was represented by counsel
during this time.    Petitioner’s failure to present Dr. Romey’s affidavit in
admissible form is surely not attributable to the relatively short notice on which
the actual hearing date was set, nor to the state court’s failure to grant even
more thousands of dollars for Petitioner to develop his claim. The narrow
circumstances described in Rivera are not applicable here, where a hearing was
held and Petitioner was assisted by counsel, was granted extensive funds, was
given extensive time, and even had at his disposal the Mexican consulate.
B. Wiggins claim.
      Petitioner argues that his trial counsel was ineffective in his investigation,
development, and presentation of mitigation evidence, as well as the


                                         8
   Case: 11-70031    Document: 00511960177      Page: 9   Date Filed: 08/17/2012



                                  No. 11-70031
development of rebuttal evidence for the state’s aggravating factors at
sentencing. He claims this deficiency merits relief under Wiggins v. Smith,
539 U.S. 510, 522-23, 123 S. Ct. 2527, 2536 (2007) (holding that lack of a
“reasonable investigations” of mitigating evidence may constitute ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668,
104 S. Ct 2052 (1984)).      The district court found this claim procedurally
defaulted, because it was dismissed by the Court of Criminal Appeals in a
succinct order for failing to meet the criteria for a successive petition.
Alternatively, the district court found the claim meritless, because even if
Petitioner could demonstrate deficiency in his trial representation, he could not
demonstrate prejudice. To obtain a COA, as noted, Petitioner must show that
reasonable jurists could disagree regarding the district court's disposition.
Skinner v. Quarterman, 528 F.3d 336, 340-41 (5th Cir. 2008) (quoting Miller-El,
537 U.S. at 336, 338, 123 S. Ct. at 1029).
      Federal courts cannot reach the merits of a habeas claim if the state court
denied relief on an adequate and independent state law ground. Coleman v.
Thompson, 501 U.S. 722, 729, 111 S. Ct. 2546, 2553 (1991). To be adequate, a
state rule must be “firmly established and regularly followed.”          James v.
Kentucky, 466 U.S. 341, 348, 104 S. Ct. 1830, 1835 (1984). A state court’s ground
for judgment is not independent if it “depends on a federal constitutional ruling.”
Ake v. Oklahoma, 470 U.S. 68, 75, 105 S. Ct. 1087, 1092 (1985).
      Here, the relevant state court order stated that the petitioner’s Wiggins
claim “does not meet the requirements for consideration of subsequent claims
under Article 11.071, Section 5.       Therefore, we dismiss this subsequent
application.” Ex parte Ibarra, No. 48,832-04, 2008 WL 4417283 (Tex. Crim. App.
Oct. 1, 2008). Petitioner contends that the state ground for dismissal was both
inadequate and not independent.



                                        9
  Case: 11-70031     Document: 00511960177      Page: 10    Date Filed: 08/17/2012



                                   No. 11-70031
      It was inadequate, he suggests, because “an emerging equitable exception”
to Section 5 permits an applicant to seek relief where his first appointed counsel
fails to raise a single cognizable claim in his application. See Ex parte Granados,
No. WR-51135-1 (Tex. Crim. App. Jan. 10, 2007) (unpublished) (denying relief
because Petitioner failed to identify claims that would be revealed in new
petition); Ex parte Moreno, 245 S.W.3d 419, 420 (Tex. Crim. App. 2008)
(reopening application for writ on the basis of two new Supreme Court decisions
and taking into account “applicant’s diligence in raising the claim in his initial
state application”); Ex parte Ruiz, SW-04:8-13; 2007 WL 2011023 (Tex. Crim.
App. July 6, 2007) (unpublished) (denying relief over suggestion by two
dissenting justices and one concurring justice that forbidding subsequent
petitions was inappropriate where state habeas counsel was ineffective in failing
to raise claim of trial counsel’s ineffectiveness); Ex Parte Medina,
361 S.W.3d 633, 642-43 (Tex. Crim. App. 2011) (permitting subsequent
application where “habeas counsel ha[d] employed a Machiavellian strategy
designed to thwart the proper statutory procedure for filing a death penalty
writ” (internal quotation marks and citation omitted)).
      Petitioner finds Medina especially suggestive of his idea that the Texas
abuse of writ bar is not firmly established or regularly followed. Medina, he
argues, should have been applied in Petitioner’s case. But in fact, the Medina
court took pains to distinguish that case from cases like Petitioner’s. Not only
was it sui generis in that counsel “intentional[ly] refus[ed] to plead specific facts
that might support habeas corpus relief,” but even more because “counsel’s filing
was not a proper habeas-corpus application,” as the state there acknowledged.
Id. at 642-43. The circumstances in that case involved “not habeas counsel’s lack
of competence but his misplaced desire to challenge the established law at the
peril of his client.” Id. at 643. Petitioner makes no such allegation regarding
intentional malfeasance on the part of his state habeas counsel here. Texas’s


                                         10
  Case: 11-70031    Document: 00511960177     Page: 11    Date Filed: 08/17/2012



                                  No. 11-70031
Section 5 bar remains an adequate state ground for finding procedural bars
based on TCCA decisions. See, e.g., Balentine v. Thaler, 626 F.3d 842, 854 (5th
Cir. 2010) (“Balentine II”). No decision of this court holds otherwise. The
district court’s conclusion that the TCCA’s decision here was based on an
adequate state ground is not subject to dispute among jurists of reason.
      Likewise, reasonable jurists could not disagree with the district court’s
conclusion that the TCCA’s decision was based on an independent state ground.
The TCCA’s decision was not interwoven with federal law. As the district court
noted, “[t]here is no indication in the order that the Court of Criminal Appeals
relied on anything other than abuse of the writ.” Ibarra v. Thaler, No. W-02-CA-
052, slip op. 30 (S.D. Tex. Mar. 31, 2011). Where a Texas court does not state
which prong of Article 11.071, Section 5 it relies on in dismissing a subsequent
petition, we do not presume that it reached the separate statutory subdivision
that involves the application of federal law.         Coleman, 501 U.S. 722,
111 S. Ct. 2546 (1991). A denial of relief under Section 5, without more, does not
justify a presumption that the TCCA reached the federal merits of the petition.
Balentine, 626 F.3d at 856. Petitioner offers no evidence or even an assertion
that he satisfied the first prong of Section 5, which requires that a petitioner
establish that the factual or legal basis of his claim was unavailable at the time
of his first petition. TEX. CODE CRIM. PROC. ART. 11.071, 5(a). Unlike the
uncertain situation faced by this court in Ruiz v. Thaler, 504 F.3d 523, 527 (5th
Cir. 2007), where a concurring state court judge, who provided a necessary vote
for denial, relied on federal-law grounds for his vote, the TCCA here gave no
reason to infer that the second prong was necessary to its decision. Because
jurists of reason could not disagree with the district court’s conclusion that




                                       11
  Case: 11-70031       Document: 00511960177          Page: 12      Date Filed: 08/17/2012



                                       No. 11-70031
Petitioner’s Wiggins claim was procedurally defaulted, we deny his application
for a COA on this claim.1
C. VCCR claim.
       Petitioner argues that the district court’s decision denying his claim for
relief under the VCCR is debatable. The court held that this claim, too, was
procedurally defaulted. The state courts so held on direct appeal and in rejecting
his successive state writ application. The state courts’ dismissal of this claim as
defaulted is enforceable. Leal Garcia v. Quarterman, 573 F.3d 214, 224 (5th Cir.
2009). Petitioner argues that the state waived its argument of procedural
default in federal court. This is clearly not true, and we conclude that the
district court’s disposition of this claim is not subject to dispute among jurists of
reason.     The state requested that the federal               district court provide an
alternative prejudice review for Petitioner, which the district court did.2 As the
state points out, the federal district court’s rendering of a prejudice analysis is


       1
         Petitioner also asserts that he should benefit from two recent Supreme Court
decisions. First, Maples v. Thomas, 132 S. Ct. 912 (2012), holds that in a habeas case, a client
cannot be charged with the acts or omissions of an attorney who abandoned him. Because
counsel for Ibarra who filed his first state habeas application did not abandon him, but simply
did not raise issues Ibarra now would like to argue, Maples is inapposite. Second, Martinez
v. Ryan, 132 S. Ct. 1309 (2012), held that in states which do not permit the raising of an
ineffective assistance of counsel claim via post-trial motion or on direct appeal, ineffective
assistance in a collateral proceeding–the first proceeding in which an ineffective assistance
claim may be raised–may constitute “cause” for procedural default of the ineffective assistance
claim. For the reasons explained in our June 28, 2012 order in this case, we reject this
assertion.
       2
         Petitioner strenuously protests the district court’s finding that he was not prejudiced
by the state’s failure to notify him earlier about his right to consult with the Mexican
consulate. His allegations of prejudice have no evidentiary support in the state court record,
and he was furnished constitutionally sufficient counsel and resources for trial. Mere
hypotheses about the further assistance the consulate could have offered do not carry Ibarra’s
burden to prove prejudice. Petitioner further suggests that the court below conducted a
2254(d) review of the state court decision’s reasonableness, rather than a de novo merits
review which found no prejudice. There is nothing in the district court’s opinion to suggest
this; rather, the district court wrote that the claim was “without merit” because “no reasonable
jury would have made a different decision” in light of the powerful inculpatory and
aggravating evidence against him.

                                              12
  Case: 11-70031    Document: 00511960177      Page: 13   Date Filed: 08/17/2012



                                  No. 11-70031
a common device in habeas cases in this circuit; such alternative findings in
themselves do not detract from a conclusion that a procedural bar is enforceable.
Here, the state made clear that it did not waive the procedural bar to which the
claim was subject, and the district court’s conclusion that the claim was in fact
procedurally defaulted is unassailable.       Trest v. Cain, 522 U.S. 87, 89,
118 S. Ct. 478, 480 (1997). The state explicitly fulfilled this obligation here.
                                  Conclusion
      For the foregoing reasons, we conclude that jurists of reason could not find
debatable the district court’s disposition of the claims for which Petitioner seeks
a COA. We therefore DENY his application for a COA.
                                                       APPLICATION DENIED.




                                        13
  Case: 11-70031      Document: 00511960177      Page: 14   Date Filed: 08/17/2012



                                    No. 11-70031
GRAVES, Circuit Judge, dissenting:
         I disagree with the majority’s finding that Ibarra’s ineffective assistance
of counsel claim is defaulted. The majority rejects Ibarra’s reliance on Martinez
v. Ryan, 132 S.Ct. 1309 (2012), for the reasons explained in a June 28, 2012,
order in this case. Because I continue to disagree for the reasons explained in
my separate opinion to that order, I respectfully dissent. See Ibarra v. Thaler, ---
F.3d ----, 2012 WL 2620520 (5th Cir. June 28, 2012)(Graves, J., dissenting in
part).




                                          14
