     Case: 11-70004      Document: 00512517635         Page: 1    Date Filed: 01/30/2014




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

                                                                                  FILED
                                      No. 11-70004                          January 30, 2014
                                                      Lyle W. Cayce
CARLOS MANUEL AYESTAS, also known as Dennis Zelaya Corea, Clerk

                                                 Petitioner-Appellant
v.

WILLIAM STEPHENS, 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. 4:09-CV-2999


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       A Texas jury sentenced Carlos Manuel Ayestas to death for a murder he
committed during a home robbery. His conviction was affirmed by the Texas
Court of Criminal Appeals, which also denied his application for habeas corpus.
Ayestas subsequently sought federal habeas relief. In his federal application,
Ayestas raised additional claims of ineffective assistance of counsel not raised


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 11-70004
in his state habeas application.        Ayestas conceded these claims were
unexhausted and requested a stay so that he could return to state court to
exhaust the claims. On January 26, 2011, the district court denied the motion
for a stay, concluding the unexhausted claims were procedurally barred
because the Texas Court of Criminal Appeals would apply its bar to successive
petitions and refuse to consider the new evidence on the merits. The district
court also denied his application for a certificate of appealability (“COA”).
      On February 22, 2012, we also denied Ayestas’s motion for a COA on the
issue of the stay, concluding that Ayestas had failed to show good cause for
failure to exhaust the claim and that any claim would be meritless because it
would be procedurally barred by Texas law banning subsequent habeas
petitions. To the extent Ayestas had argued a better attorney would have
raised the claims in state court, we concluded that, generally, errors by “habeas
counsel cannot provide cause for a procedural default.” See Cantu v. Thaler,
632 F.3d 157, 166 (5th Cir. 2011), cert. granted, judgment vacated, 132 S. Ct.
1791 (2012). Accordingly, we denied COA on the district court’s denial of
Ayestas’s motion for stay and abeyance.
      In March 2012, Ayestas filed a motion to vacate our judgment and
remand to the district court in light of the Supreme Court’s holding in Martinez
v. Ryan, 132 S. Ct. 1309 (2012). Martinez created a limited exception to the
rule that the ineffectiveness of habeas counsel could not provide cause for
procedural default. We denied Ayestas’s motion to vacate and remand in
reliance on one of this court’s decisions that Martinez categorically does not
apply to claims from Texas inmates. See Ibarra v. Thaler, 687 F.3d 222 (5th
Cir. 2012), overruled by Trevino v. Thaler, 133 S. Ct. 1911 (2013). On June 3,
2013, the Supreme Court granted Ayestas’s petition for writ of certiorari,
vacated our judgment, and remanded for further consideration in light of
Trevino v. Thaler, 133 S. Ct. 1911 (2013).
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                                 No. 11-70004
      In light of the Supreme Court’s order, we GRANT Ayestas’s motion to
vacate our prior decision denying Ayestas’s application for a COA.           We
REMAND to the district court to reconsider Ayestas’s procedurally defaulted
ineffective assistance of counsel claims in light of Trevino. We express no view
on what decisions the district court should make on remand.




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