     Case: 16-70005      Document: 00514406286         Page: 1    Date Filed: 03/28/2018




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

                                      No. 16-70005
                                                                              Fifth Circuit

                                                                            FILED
                                                                       March 28, 2018

WALTER ALEXANDER SORTO,                                                Lyle W. Cayce
                                                                            Clerk
              Petitioner–Appellant,

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent–Appellee.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:10-CV-613


                         ON PETITION FOR REHEARING
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       On December 1, 2016, this Court issued a nondispositive opinion denying
certificates of appealability with respect to Petitioner–Appellant Walter
Alexander Sorto’s Miranda and ineffective assistance of counsel claims. Sorto
v. Davis, 672 F. App’x 342 (5th Cir. 2016) (per curiam). The opinion reserved



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-70005     Document: 00514406286     Page: 2   Date Filed: 03/28/2018



                                  No. 16-70005
judgment on the issue of whether the district court abused its discretion in
denying requests for funding that would have enabled Sorto to obtain testing
to determine whether he has an intellectual disability. Id. at 344. We issued
an opinion on that issue. Sorto v. Davis, 859 F.3d 356 (5th Cir. 2017).
Respondent–Appellee Lorie Davis, the director of the Texas Department of
Criminal Justice, Correctional Institutions Division (the “Director”) filed a
petition for rehearing en banc. After considering the Director’s petition, we
granted panel rehearing and withdrew the prior opinion. Sorto v. Davis, 881
F.3d 933 (5th Cir. 2018) (mem. op.).
      On March 21, 2018, the Supreme Court issued Ayestas v. Davis, which
rejected our Circuit’s standard for determining whether investigative funds
pursuant to 18 U.S.C. § 3599(f) are “reasonably necessary.” See No. 16–6795,
2018 WL 1402425 (Mar. 21, 2018). Because the district court has not had the
opportunity to consider how Ayestas might apply to the denials of funding in
this case, we believe the issue is best considered by the district court in the
first instance. See, e.g., Frey v. Stephens, 616 F. App’x 704, 708 (5th Cir. 2015)
(noting that we have remanded habeas cases for reconsideration “where
relevant binding decisions were issued after the district court ruled”); Thomas
v. Quarterman, 272 F. App’x 406, 409 (5th Cir. 2008) (remanding for
consideration of an intervening circuit case). Accordingly, we VACATE the
district court’s denials of funding and REMAND for its consideration of its
denials of funding in light of Ayestas.




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