     Case: 17-70014      Document: 00514519507         Page: 1     Date Filed: 06/19/2018




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

                                      No. 17-70014
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                             June 19, 2018

RAMIRO RUBI IBARRA,                                                         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 Western District of Texas
                              USDC No. 6:02-CV-52


Before JONES, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM:*
       Ramiro Rubi Ibarra was convicted of capital murder and sentenced to
death.      He is seeking a certificate of appealability (“COA”) under
28 U.S.C. § 2254      from    the    district   court’s   denial     of       relief        on       his
Martinez/Trevino claims. For the reasons given below, we grant a COA on his
ineffective assistance of counsel claim and deny his petition for a COA on his
Atkins claim.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-70014   Document: 00514519507        Page: 2   Date Filed: 06/19/2018



                                   No. 17-70014
                              I.      Background
     The facts about the crime need not be recited again.              This court
summarized the procedural history as follows:
           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, 148 L.Ed.2d 41
     (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, 153 L.Ed.2d
     335 (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, 170 L.Ed.2d 190 (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, 171 L.Ed.2d 770 (2008). A fourth
     state habeas petition, raising a claim under Wiggins v. Smith,
     539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (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).

                                        2
    Case: 17-70014    Document: 00514519507     Page: 3   Date Filed: 06/19/2018



                                 No. 17-70014
Ibarra v. Thaler, 691 F.3d 677, 680 (5th Cir. 2012) vacated in part sub nom.
Ibarra v. Stephens, 723 F.3d 599 (5th Cir. 2013).
      After Ibarra had finally exhausted his claims in the Texas courts, he
argued eleven grounds for relief in the federal district court, all of which were
rejected, and then sought a COA from this court on only three claims: Atkins,
VCCR, and Wiggins.
      Most pertinent to the instant motion, Ibarra contended that “his trial
counsel was ineffective in his investigation, development, and presentation of
mitigation evidence, as well as the development of rebuttal evidence for the
state's aggravating factors at sentencing” in violation of the Sixth Amendment
and Wiggins, 539 U.S. at 522-23, 123 S. Ct. at 2536. As noted above, the TCCA
dismissed this petition as a subsequent writ. The district court rejected this
claim for two independent reasons: (1) procedural default under then-
governing precedent, and (2) alternatively, meritlessness, because Ibarra could
not demonstrate prejudice. Ibarra, 691 F.3d at 683. This court held that
reasonable jurists “could not disagree with the district court’s conclusion that
Petitioner’s Wiggins claim was procedurally defaulted” and denied a COA.
Id. at 685.
      As to the Atkins claim, this court denied a COA on alternative grounds
of procedural bar, non-exhaustion and meritlessness. The evidence Ibarra
offered in state court included an unsworn, inadmissible expert witness
statement concerning Ibarra’s IQ; an investigative report about his alleged
adaptive deficits; and the opinion of Dr. Mark, who after two examinations of
Ibarra had found no evidence of mental handicap. The TCCA had rejected this
claim on the merits. Ibarra consequently offered material new evidence in
federal court, rendering his claim unexhausted and procedurally barred.
Finally, reviewing the state court record, this court found it not debatable that


                                       3
    Case: 17-70014    Document: 00514519507      Page: 4     Date Filed: 06/19/2018



                                  No. 17-70014
the state courts’ rejection of the Atkins claim on the merits did not violate
28 U.S.C. § 2254(d)(1). Ibarra, 691 F.3d at 681-83. 1
      The      Supreme    Court     then    decided        Trevino    v.    Thaler,
569 U.S. 413, 133 S. Ct. 1911 (2013). On a motion for rehearing, this court
granted rehearing in part and vacated our initial decision “only to the extent
inconsistent with Trevino and grant[ed] a COA only to that extent; in all other
respects, the majority and dissenting opinions [of the prior opinion] remain[ed]
in effect.”   Ibarra, 723 F.3d at 600. Judge Graves concurred in part and
dissented in part.
      Back in the district court, Ibarra moved to stay and remand so that he
could pursue his ineffective assistance of counsel (“IATC”) claim in state court.
The district court denied this motion.     The case was reassigned to Judge
Pitman when Judge Smith retired. Ruling on a motion for rehearing of that
order, Judge Pitman affirmed the denial and sua sponte held that a COA
should not issue because Ibarra’s IATC claim was not “substantial.”
               II.   Standard of Review and Controlling Law
      This court must first issue a COA, 28 U.S.C. § 2253(c)(1), a jurisdictional
prerequisite to reviewing the district court’s denial of habeas relief. Miller-El
v. Cockrell, 537 U.S. 322, 323, 123 S. Ct. 1029, 1032 (2003). A COA may only
be granted when the petitioner “has made a substantial showing of the denial
of a constitutional right.” Id. at 336, 123 S. Ct. at 1039 (internal quotation
marks omitted). This standard means that the “petitioner must show that
reasonable jurists could debate whether (or for that matter, agree that) the
petition should have been resolved in a different manner or that the issues




      1 This court also denied COA on the VCCR claim, a holding that has not been
challenged.
                                       4
    Case: 17-70014    Document: 00514519507     Page: 5   Date Filed: 06/19/2018



                                 No. 17-70014
presented were adequate to deserve encouragement to proceed further.” Id.
(internal quotation marks omitted).
      Martinez v. Ryan held that “a procedural default will not bar a federal
habeas court from hearing a substantial claim of ineffective assistance at trial
if, in the initial-review collateral proceeding, there was no counsel or counsel
in that proceeding was ineffective.”     566 U.S. 1, 17, 132 S. Ct. 1309, 1320
(2013).      This    principle   was     extended    to   Texas   in    Trevino.
569 U.S. at 429, 133 S. Ct. at 1921.    Such a “substantial claim” constitutes
“cause” for the procedural default, but, in line with traditional precedent, the
petitioner must also prove that he suffered “prejudice” from counsel’s errors.
Martinez, 566 U.S. at 10, 132 S.Ct. at 1316 (citing Coleman v. Thompson,
501 U.S. 722, 750, 111 S.Ct. 2546 (1991)). A “substantial” claim is one that has
“some merit.” Martinez, 566 U.S. at 14, 132 S. Ct. at 1318. An insubstantial
claim is one which “does not have any merit” or “is wholly without factual
support.” Id. at 15-16, 132 S. Ct. at 1319. The standard for evaluating an
ineffective assistance of counsel claim is given in Strickland, which states the
petitioner must show “that counsel’s performance was deficient” and “that the
deficient performance prejudiced the defense.       This requires showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.” Strickland, 466 U.S. at 687, 104 S. Ct. 2064.
The State succeeds in establishing procedural default if the IATC claim is
insubstantial, or the initial habeas attorney was not constitutionally
ineffective, or Ibarra has not proved sufficient prejudice to overcome his
procedural default. Martinez, 566 U.S. at 15-16, 18, 132 S. Ct. at 1319, 1321.
                                 III.    Analysis
      Ibarra’s motion for COA asserts that reasonable jurists could debate the
district court’s conclusions that his IATC claim lacked merit, his initial state


                                        5
     Case: 17-70014       Document: 00514519507         Page: 6    Date Filed: 06/19/2018



                                      No. 17-70014
habeas counsel was constitutionally deficient for not raising that claim, and
his Atkins claim may also be re-reviewed by this court.
                                              A.
       Ibarra argues trial counsel were ineffective for failing to investigate and
present additional mitigating evidence about Ibarra’s background. He argues
that a “thorough background investigation” would have uncovered:
       (1) Ibarra’s extreme childhood impoverishment to the point of
       malnourishment and living conditions far more dire than
       “humble;” (2) extreme physical and emotional abuse perpetrated
       against Ibarra as a child by his father; (3) Ibarra’s witnessing
       extreme physical and emotional abuse perpetrated against loved
       ones by his father as a child; (4) Ibarra’s attempts to care for and
       protect his siblings from their poverty and from their father’s
       abuse;    (5) Ibarra’s    significantly   subaverage     intellectual
       functioning; (6) Ibarra’s developmental intellectual disability; and
       (7) Ibarra’s development of severe post-traumatic stress disorder
       as a result of his experiencing and witnessing the extreme violence
       perpetrated by his father throughout his childhood and
       experiencing the near deaths and deaths of family members due to
       their extreme poverty. 2

Ibarra argues that trial counsels’ failure to present this evidence prejudiced
him at the sentencing stage.
       In Buck v. Davis, the Supreme Court cautioned this court that a COA
determination “is not coextensive with a merits analysis.” 127 S. Ct. 759, 773
(2017).    At this stage, we only consider whether Ibarra’s claim is debatable.
See id. at 774. We find that it is. Because Ibarra’s original IATC claim is
debatable, we also find that it is debatable whether his initial habeas counsel




       2Ibarra contends that the district court was obliged to hold an evidentiary hearing on
his Martinez claim, but circuit precedent does not support such a requirement. Segundo v.
Davis, 831 F.3d 345, 351 (5th Cir. 2016).

                                             6
     Case: 17-70014       Document: 00514519507          Page: 7     Date Filed: 06/19/2018



                                       No. 17-70014
was ineffective for not pursuing this claim. Therefore, we grant a COA on this
issue.
                                               B.
         Ibarra argues that he is entitled to a COA on his Atkins claim consistent
with our COA on rehearing. Reasonable jurists could not debate the district
court’s rejection of this argument. This court denied a COA on the Atkins
claim, see Ibarra, 691 F.3d at 682-83, and made clear that the order granting
COA in light of Trevino did not affect this portion of our ruling. See, e.g.,
Ayestas v. Stephens, 817 F.3d 888, 889 (5th Cir. 2016) (remand order after
Trevino did not leave open any matter other than the defaulted IATC claim). 3
Nothing in that order suggests that the Atkins claim was within the scope of
remand.
         Ibarra alternatively contends that Martinez and Trevino should be
extended to cover Atkins claims. He states that Davila v. Davis, 137 S. Ct.
2058 (2017) supports his assertion. He also argues that he should be able to
pursue this claim because Moore v. Texas, 137 S. Ct. 1039 (2017), is retroactive
and provides an exception to the Section 28 U.S.C. 2254(d)(1) relitigation bar
and law of the case. We need not consider the debatability of these issues
because reasonable jurists could not debate that Ibarra’s underlying Atkins
claim, as presented to the state courts, has no merit. Even if Moore applied to
this case, it would not benefit Ibarra because, although explicitly given a fair
opportunity to present an Atkins claim, his counsel, who continue to represent



         The dissenting opinion appears to argue that the Martinez/Trevino holdings may be
         3

extended to Ibarra's second state postconviction proceeding, which explicitly considered his
Atkins claim on the merits. Thus, are we to infer that Ibarra's counsel must have been
ineffective in that proceeding, and they, the same attorneys, can relitigate de novo their
Atkins claim in federal court? This would be a significant extension of Martinez/Trevino.
Together, those cases hold only that a claim of ineffective assistance of state trial counsel is
not procedurally defaulted (or the default can be overcome) if the state habeas counsel was
ineffective for failing to raise trial counsel's ineffectiveness in the state habeas court.
                                               7
     Case: 17-70014       Document: 00514519507         Page: 8     Date Filed: 06/19/2018



                                       No. 17-70014
him to this day, failed to offer admissible evidence of intellectual disability in
the state court. Ibarra argues that this court should consider evidence that he
did not present in state court. Under Cullen v. Pinholster, 563 U.S. 170, 181-
82, 131 S. Ct. 1388, 1398 (2011), this is impermissible. 4                  As this court
previously held, Ibarra presented “essentially no supporting evidence” of
intellectual disability in state court. Ibarra, 691 F.3d at 681-82. Accordingly,
a COA on this claim must be denied.
       We GRANT a COA on Ibarra’s post-Trevino defaulted IATC claim.
Counsel will proceed to file briefs as instructed by the clerk’s office. However,
in light of the substantial briefing we have already received concerning the
COA, counsel are authorized to supplement the COA briefing as appropriate
and may cross reference their COA briefs. We also hold that reasonable jurists
could not debate the district court’s refusal on remand to consider Ibarra’s
Atkins claim. We therefore DENY his application for a COA on his Atkins
claim.




       4 To allow such relitigation with counsel’s newly proffered evidence would effect a
complete end run around the state court system and would violate AEDPA specifically.
28 U.S.C. § 2254(e)(2). Although the dissenting opinion quotes this provision, Ibarra never
attempted to show that this provision's stringent test for de novo review in federal court has
been met. To begin, the Atkins issue was well known (not "previously unavailable") to these
counsel when they represented Ibarra in the state court system. The factual predicate for
his Atkins claim could have been timely prepared for the state habeas hearing on the merits.
And counsel have never attempted to demonstrate that the facts underlying Ibarra's alleged
mental disability can be established by clear and convincing evidence, as that provision
requires.    Holding that reasonable jurists could debate a potential extension of
Martinez/Trevino under these circumstances is plainly at odds with AEDPA as well as
Cullen v. Pinholster, supra.
                                              8
    Case: 17-70014    Document: 00514519507      Page: 9    Date Filed: 06/19/2018



                                 No. 17-70014
JAMES E. GRAVES, JR., Circuit Judge, dissenting in part:
      I concur with the majority in granting a certificate of appealability (COA)
on Ramiro Rubi Ibarra’s ineffective assistance of counsel claims. However,
because I would also grant a COA on Ibarra’s claim under Atkins v. Virginia,
536 U.S. 304, 321 (2002), I respectfully dissent in part.
      Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a
COA should issue when a petitioner makes a "substantial showing of the denial
of a constitutional right." 28 U.S.C. § 2253(c)(2). To meet this standard, Ibarra
must show 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.” Miller–
El v. Cockrell, 537 U.S. 322, 327 (2003). Further, “any doubt as to whether a
COA should issue in a death-penalty case must be resolved in favor of the
petitioner.” Pippin v. Dretke, 434 F.3d 782 (2005).
      Ibarra was originally sentenced prior to Atkins. He later had an Atkins
hearing. This court previously considered Ibarra’s claims based on what was
presented by counsel who was arguably ineffective, noting that "[a]t the state
court evidentiary hearing regarding his Atkins claim, he presented essentially
no supporting evidence." Ibarra v. Thaler, 691 F.3d 677, 681 (5th Cir. 2012).
Although Ibarra's counsel attempted to introduce an expert affidavit in state
court, it was found to be inadmissible because it was not notarized. Id. at 682.
Counsel then attempted to introduce a notarized affidavit in federal court, but
the district court found that it was procedurally barred under 28 U.S.C. §
2254(b) for failure to exhaust in state court. This court later acknowledged
that the disallowed evidence was "essential to his claim of mental retardation."
Id. The majority then agreed that the district court "properly disregarded this
newly proffered evidence" as procedurally barred. The majority also purported
to find, in the alternative, that the district court properly found that Ibarra's
                                       9
    Case: 17-70014       Document: 00514519507         Page: 10     Date Filed: 06/19/2018



                                      No. 17-70014
claim had no merit based on the state court record, despite acknowledging that
"[c]ritically, 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."          Id.   The record also did not include
mitigation evidence that would have provided additional insight into both
Ibarra’s intellectual disability and his adaptive skills deficits. If trial counsel
was ineffective in failing to present evidence of intellectual disability or
adaptive skills deficits for purposes of mitigation at sentencing, then that
necessarily affected the outcome of Ibarra's Atkins claim. 1
       Ibarra has evidence that his full scale IQ is 65, well within the
intellectually disabled range, that he suffered intellectual deficits throughout
his childhood, and of his adaptive skills deficits. Ibarra has an expert affidavit
from Dr. Carol Romey concluding that he is intellectually disabled. Ibarra
asserts that Dr. Stephen Mark was not even hired until after voir dire in his
trial had already begun. Further, Mark was not provided relevant social
history information, failed to do necessary intellectual functioning testing of
Ibarra, and did not speak Spanish, Ibarra’s only language. Ibarra argued in
his application for a COA that his trial counsel was ineffective for failing to
investigate and present mitigation evidence relevant to his Atkins claim and
that the state court process was blatantly unfair for various reasons, including
the denial of adequate funding.          To the extent that any failure to perform
necessary investigation or to present adequate evidence in state court was the
result of ineffective assistance of counsel, Ibarra is entitled to present his
Atkins claim.



       1 This is not an argument about Ibarra’s second state post-conviction proceeding. But
even if that were the case, the majority explicitly ignores the relevant authority that would
allow Ibarra to overcome any procedural default, as well as the application of the
fundamental miscarriage of justice provision.
                                             10
   Case: 17-70014     Document: 00514519507     Page: 11   Date Filed: 06/19/2018



                                 No. 17-70014
      As the majority acknowledges, under Buck v. Davis, 137 S.Ct. 759 (2017),
Ibarra is not required to prove his claims on the merits. “At the COA stage,
the only question is whether the applicant has shown 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.” Id. at 773.
      The majority faults Ibarra’s counsel “who continue to represent him to
this day” for failing to offer admissible evidence of intellectual disability in
state court. However, Ibarra’s current counsel did not represent him at trial,
on appeal, or in his “initial-review collateral proceedings.” Martinez, 566 U.S.
at 9. Moreover, the arguable ineffectiveness of Ibarra’s previous counsel is the
reason he benefits from the equitable ruling in Martinez. The majority cites
Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011), for the proposition that
evidence of intellectual disability may not be considered unless it was
presented in state court. While that typically may be the rule, Pinholster is
distinguishable because the court concluded that the defendant was unable to
demonstrate either prong of ineffective assistance of counsel under Strickland
v. Washington, 466 U.S. 668, 686-92 (1984). Pinholster, 563 U.S. at 194-201.
Significantly, the court also acknowledged that “state prisoners may
sometimes submit new evidence in federal court,” although AEDPA
discourages it. Id. at 186.
      AEDPA includes a provision for the introduction of new evidence in
federal court. 28 U.S.C. § 2254(e)(2) states:
            If the applicant has failed to develop the factual basis of a
      claim in State court proceedings, the court shall not hold an
      evidentiary hearing on the claim unless the applicant shows that-
      -
              (A) the claim relies on--



                                       11
    Case: 17-70014   Document: 00514519507      Page: 12   Date Filed: 06/19/2018



                                 No. 17-70014
                  (i) a new rule of constitutional law, made retroactive
                  to cases on collateral review by the Supreme Court,
                  that was previously unavailable; or
                  (ii) a factual predicate that could not have been
                  previously discovered through the exercise of due
                  diligence; and
              (B) the facts underlying the claim would be sufficient to
              establish by clear and convincing evidence that but for
              constitutional error, no reasonable factfinder would have
              found the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2).
      Additionally, binding precedent allows a petitioner to overcome
procedural defaults and introduce new evidence in certain instances. See
Morris v. Dretke, 379 F.3d 199, 205 (5th Cir. 2004) (Exhaustion may be
excused.); see also Martinez v. Johnson, 255 F.3d 229, 239 (5th Cir. 2001)
(Petitioner may overcome a procedural default and “obtain federal habeas
corpus review of his barred claims on the merits, if he can demonstrate cause
for the defaults and actual prejudice.”); and Barrientes v. Johnson, 221 F.3d
741, 758 (5th Cir. 2000) (Petitioner can overcome procedural default if “failure
to consider the claims will result in a fundamental miscarriage of justice”).
These cases rely on Coleman v. Thompson, 501 U.S. 722, 750 (1991), where the
United States Supreme Court said:
             We now make it explicit: In all cases in which a state
      prisoner has defaulted his federal claims in state court pursuant
      to an independent and adequate state procedural rule, federal
      habeas review of the claims is barred unless the prisoner can
      demonstrate cause for the default and actual prejudice as a result
      of the alleged violation of federal law, or demonstrate that failure
      to consider the claims will result in a fundamental miscarriage of
      justice.

Id. at 750.



                                      12
    Case: 17-70014       Document: 00514519507        Page: 13     Date Filed: 06/19/2018



                                      No. 17-70014
       Under this relevant authority, Ibarra is arguably able to overcome the
procedural default for failure to exhaust and obtain federal habeas review of
his barred claims. Ibarra can arguably demonstrate cause for the defaults and
actual prejudice. More importantly, failure to consider the claim would result
in a fundamental miscarriage of justice if an intellectually disabled man were
to be unconstitutionally executed.
       However, on remand after the United States Supreme Court’s decision
in Trevino v. Thaler, 569 U.S. 413 (2013) 2, the district court did not discuss
Ibarra's Atkins claim, finding that it was not within the scope of this court's
remand order.       That finding was the result of the majority’s inclusion of
language on remand limiting Ibarra’s claims of ineffective assistance of counsel
with regard to issues on which the majority had previously denied his COA.
Ibarra v. Stephens, 723 F.3d 599, 600 (5th Cir. 2013). I dissented to the
inclusion of any such language on the basis that Ibarra was not foreclosed from
raising his ineffective assistance of counsel claims on those issues. Id. (Graves,
J., dissenting in part) (“Simply put, the trial court is free to determine whether
or not evidence related to these issues is relevant to any claim of ineffective
assistance of counsel, and is likewise free to determine if any ineffective
assistance affects the merits of these issues or any procedural default.”). I
continue to conclude that Ibarra is not foreclosed from presenting his Atkins
claim to the extent that it is encompassed within Trevino/Martinez.
       For the reasons stated herein, jurists of reason could find debatable the
disposition of Ibarra’s Atkins claim. Because I would grant a COA on Ibarra’s
Atkins claim to the extent that it is encompassed within Trevino/Martinez, I
respectfully dissent in part.


       2In Trevino, the Supreme Court vacated this court’s judgment that Martinez v. Ryan,
566 U.S. 1 (2012), did not apply to Texas. In Ibarra’s case, the majority likewise concluded
that Martinez did not apply to Texas, thus, necessitating remand.
                                            13
