     Case: 10-70028     Document: 00511934452         Page: 1     Date Filed: 07/26/2012




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

                                                                            FILED
                                                                           July 26, 2012

                                       No. 10-70028                        Lyle W. Cayce
                                                                                Clerk

DONALD KEITH NEWBURY,

                                                  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 Northern District of Texas
                                 3:06-CV-01410-K


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
        A Texas jury convicted Donald Keith Newbury of capital murder and
sentenced him to death for his role in the shooting death of a City of Irving police
officer. Newbury appealed his conviction and sentence to the Texas Court of
Criminal Appeals (TCCA), which affirmed both. Newbury v. State, 135 S.W.3d
22 (Tex. Crim. App. 2004). The TCCA also denied Newbury’s habeas application.


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-70028

Ex Parte Newbury, No. WR-63822-01, 2006 WL 1545492 (Tex. Crim. App. June
7, 2006). Newbury then filed a federal habeas application, and the district court
denied his application, as well as his motion for a certificate of appealability
(COA). Newbury v. Thaler, No. 3-06-CV-1410-K, 2010 WL 3704028, at *1 (N.D.
Tex. Sept. 21, 2010).    This court also denied Newbury’s motion for COA.
Relevant to this case on remand, we rejected as procedurally barred the portions
of Newbury’s ineffective assistance of counsel claim that he was presenting for
the first time in his federal habeas application. Newbury v. Thaler, 437 F. App’x
290, 295 (5th Cir. 2011), vacated, 132 S. Ct. 1309 (2012).
      A few months after we denied COA, the Supreme Court held in Martinez
v. Ryan that 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.”    132 S. Ct. 1309, 1320 (2012).      Newbury
subsequently petitioned the Supreme Court for writ of certiorari, and the Court
vacated our decision and remanded for further consideration in light of Martinez.
      Since remand, another panel of this court has concluded that Martinez
does not apply to Texas cases. In Ibarra v. Thaler, the panel explained that
Martinez is limited to states that “divert[ ] ineffectiveness claims to collateral
proceedings that function as the prisoner's first opportunity to assert those
claims,” and that Ibarra, a Texas defendant, “[was] not entitled to the benefit of
Martinez for his ineffectiveness claims, as Texas procedures entitled him to
review through counselled motions for new trial and direct appeal.”           No.
11–7003, 2012 WL 2620520, at *4 (5th Cir. June 28, 2012). Newbury argues in
supplemental briefing that Ibarra was incorrect because it was decided on


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                                 No. 10-70028

theoretical grounds and, in practice, collateral proceedings were his first
opportunity to assert an ineffective assistance of counsel claim. However, the
same procedures that were available to Ibarra were available to Newbury.
Accordingly, we hold that Martinez does not affect our previous decision, and we
again DENY Newbury’s request for a COA.




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