     Case: 11-70023       Document: 00512566893         Page: 1     Date Filed: 03/19/2014




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

                                                                            FILED
                                                                          March 19, 2014
                                       No. 11-70023
                                                                           Lyle W. Cayce
                                                                                Clerk
BILL DOUGLAS GATES,

                                                  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-2702


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before STEWART, Chief Judge, and JOLLY and CLEMENT, Circuit Judges.
PER CURIAM:*
       On June 19, 2012 we denied Gates’s application for a certificate of
appealability because, among other things, he had procedurally defaulted upon
five of his six underlying claims, and we were bound by our precedent which held
“that ineffective assistance of habeas counsel cannot provide cause for a
procedural default.” Martinez v. Johnson, 255 F.3d 229, 241 (5th Cir. 2001). We
concluded that given “material distinctions” between Texas and Arizona

       *
         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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-70023     Document: 00512566893        Page: 2   Date Filed: 03/19/2014



                                     No. 11-70023

procedures for direct appellate review, the Supreme Court’s decision in Martinez
v. Ryan, ___ U.S. ___, 132 S. Ct. 1309 (2012), did not control our disposition of
Gates’s application. Gates v. Thaler, 476 F. App’x 336, 342 (5th Cir. 2012) (per
curiam) (unpublished); see also Ibarra v. Thaler, 687 F.3d 222 (5th Cir. 2012)
(reaching the same conclusion in a precedential opinion less than two weeks
later).
      After our opinion was issued, the Supreme Court held in Trevino v. Thaler,
___ U.S. ___, 133 S. Ct. 1911, 1921 (2013), that the rule from Martinez v. Ryan
does apply in collateral challenges to Texas convictions. The Supreme Court
granted certiorari to Gates, vacated our judgment, and remanded for further
consideration in the light of Trevino. See Gates v. Thaler ,___ U.S. ___, 133 S. Ct.
2764–65 (2013). In light of the Supreme Court’s order, we GRANT Gates’s
application for a COA and REMAND to the district court for reconsideration of
Gates’s five procedurally defaulted claims in light of Trevino. We also DENY the
Director’s petition for rehearing.




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