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

                                                                   FILED
                                                                   June 28, 2012

                                  No. 11-70031                    Lyle W. Cayce
                                                                       Clerk

RAMIRO RUBI IBARRA,

                                            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 Western District of Texas
                            USDC No. 6:02-cv-52


O R D E R:
Before JONES, Chief Judge, and HAYNES and GRAVES, Circuit Judges.
EDITH H. JONES, Chief Judge:
      The Court has considered Ramiro Rubi Ibarra’s motion to vacate the
district court’s judgment denying his petition for habeas corpus relief in light of
the Supreme Court’s decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012). We
DENY his motion.
      Ibarra petitioned the district court for postconviction relief on 11 issues,
which the district court denied, several of which as defaulted. Currently pending
in this court is his application for a COA on three issues. Ibarra’s current
motion argues that Martinez invalidates the district court’s conclusion that
                                   No. 11-70031

Ibarra procedurally defaulted these COA issues: (1) an ineffective-assistance-of-
trial-counsel claim; (2) a claim of mental retardation under Atkins v. Virginia,
536 U.S. 304, 122 S. Ct. 2242 (2002); and (3) a claim that the prosecution
violated his rights under the Vienna Convention on Consular Relations
(“VCCR”). We may readily dismiss these latter two claims, as Martinez, by its
terms, applies only to ineffective-assistance-of-trial-counsel claims. Martinez,
132 S. Ct. at 1311-12. Martinez is also limited, again by its own express terms,
to “initial-review collateral proceedings,” which it defines as “collateral
proceedings which provide the first occasion to raise a claim of ineffective
assistance at trial.” Id. at 1315. Other courts have rejected entreaties to expand
Martinez, and we do the same. See, e.g., Arnold v. Dormire, 675 F.3d 1082 (8th
Cir. Apr. 3, 2012) (declining to extend Martinez to claims of ineffective assistance
in appeals from initial-review collateral proceedings); Hunton v. Sinclair,
2012 WL 1409608, at *1 (E.D. Wash. Apr. 23, 2012) (declining to extend
Martinez to Brady claims); Sherman v. Baker, 2012 WL 993419, at *18 (D. Nev.
Mar. 23, 2012) (declining to extend Martinez beyond ineffectiveness claims).
      The district court concluded that Ibarra defaulted his ineffective-
assistance-of-trial-counsel claim by first presenting it in his fourth state petition
for habeas relief. Ibarra now argues that his initial habeas counsel was also
ineffective, thereby excusing his procedural default in presenting his underlying
ineffective assistance claim. A short summary of the facts underpinning Ibarra’s
allegedly deficient representation suffices.      Ibarra claims his trial counsel
“virtually abandoned their duty to prepare for sentencing,” focusing instead on
an innocence defense. Ibarra argues that trial counsel’s failure to present more
than two social history witnesses — Ibarra’s wife and one of his siblings —
rendered his sentencing-phase assistance constitutionally deficient. Following
conviction, Ibarra was then appointed new counsel for his first state habeas



                                         2
                                     No. 11-70031

petition, who raised only a purported Lackey claim1 predicated on pre-indictment
delays. The state trial court denied relief, and the Texas Court of Criminal
Appeals (“TCCA”) affirmed. Ex parte Ibarra, No. 48,832-01 (Tex. Crim. App.
Apr. 4, 2001) (unpublished).
      Until recently, this court’s precedent foreclosed Ibarra’s argument. See,
e.g., Martinez v. Johnson, 255 F.3d 229, 239-40 (5th Cir. 2001). A habeas
petitioner must demonstrate cause — objectively external to his defense — and
prejudice to overcome a regularly applied state procedural default, which
ordinarily bars federal habeas review of a defaulted issue.                  Coleman v.
Thompson, 501 U.S. 722, 746-47, 111 S. Ct. 2546, 2562-63 (1991).
      But, as Ibarra notes, the Supreme Court recently recognized a “limited
qualification to Coleman” in Martinez. Martinez, 132 S. Ct. at 1319.                    In
Martinez, a defendant, represented by counsel, was convicted of sexual conduct
with a minor based in part on expert testimony regarding child-abuse
accusations and recantations. Id. at 1313. The state of Arizona appointed new
counsel for the defendant’s direct appeal. Appellate counsel pursued myriad
claims unsuccessfully, but Arizona law required defendants to bring
ineffectiveness of counsel claims only in post-conviction proceedings rather than
on direct appeal. Id. at 1314. Appellate counsel initiated such a proceeding
under Arizona procedures, but elected not to pursue an ineffectiveness claim
against trial counsel; she ultimately filed a statement with the court that she
found no colorable issue appropriate for post-conviction relief. Id. Martinez
attempted to petition for post-conviction relief a year and a half later in state
court, claiming trial counsel ineffectiveness.          Id.   The state habeas court




      1
         A Lackey claim asserts violation of the Eighth Amendment if a prisoner remains on
death row too long. Lackey v. Texas, 514 U.S. 1045, 115 S. Ct. 1421 (1995) (mem.) (Stevens,
J., respecting denial of cert.).

                                            3
                                   No. 11-70031
dismissed Martinez’s petition under its rule refusing to consider claims in
subsequent petitions that could have been raised in earlier ones. Id.
      Martinez began anew in federal court, again raising his IAC claims. Id.
Martinez acknowledged his procedural default, but sought to avoid the familiar
bar to federal review by alleging his habeas counsel’s ineffectiveness as cause for
his default. Id. at 1314-15. While leaving open the constitutional question
“whether a prisoner has a right to effective counsel in collateral proceedings”
that provide “the first occasion” to raise a trial-counsel-ineffectiveness claim, the
Supreme Court established a “narrow exception” to the Coleman rule that “an
attorney’s ignorance or inadvertence in a postconviction proceeding does not
qualify as a cause to excuse a procedural default.” Id. at 1315. The Court
distinguished Arizona’s procedures for ineffectiveness claims from other post-
conviction proceedings by noting that Arizona ineffectiveness claims roughly
equate to direct review of ineffectiveness claims. Id. at 1311-12. The Court
specifically noted that Arizona habeas courts “look[] to the merits of” the
ineffectiveness claim, that no other court prior to the collateral proceeding has
addressed the claim, and that prisoners pursuing initial review pro se are
especially disadvantaged due to the lack of counsel’s briefs or a court’s opinion
addressing their claims. Id. at 1312. The Court justified this ineffectiveness-
specific exception based on the importance of counsel to the adversarial criminal
process. Id. (citing the right to effective counsel as “bedrock”).
      Martinez, by its own terms, therefore establishes a specific and narrow
exception to the Coleman doctrine; it reiterates this not merely once, but again
and again, as the Court repeatedly (and exclusively) refers to the scenario of a
state in which collateral review is the first time a defendant may raise a claim
of ineffective assistance of counsel. Thus, the phrase “initial-review collateral
proceeding” is a specifically defined term referring to states like Arizona in
which a defendant is prevented from raising counsel’s ineffectiveness until he

                                         4
                                   No. 11-70031
pursues collateral relief (normally bereft of a right to counsel). Martinez defines
the legal issue that it addresses as follows: “[Coleman] left open, and the Court
of Appeals in this case addressed, a question of constitutional law: whether a
prisoner has a right to effective counsel in collateral proceedings which provide
the first occasion to raise a claim of ineffective assistance at trial. These
proceedings can be called, for purposes of this opinion, ‘initial-review collateral
proceedings.’” Martinez, 132 S. Ct. at 1315 (emphasis added). Reinforcing this
definition, the Court states: “The State of Arizona does not permit a convicted
person alleging ineffective assistance of trial counsel to raise that claim on direct
review. Instead, the prisoner must bring the claim in state collateral
proceedings.” Martinez, 132 S. Ct. 1309, 1313 (2012). “Where, as here, the
initial-review collateral proceeding is the first designated proceeding for a
prisoner to raise a claim of ineffective assistance at trial, the collateral
proceeding is in many ways the equivalent of a prisoner's direct appeal as to the
ineffective-assistance claim.” Id. at 1317. “From this it follows that, when a
State requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim
in a collateral proceeding, a prisoner may establish cause for a default of an
ineffective-assistance claim in two circumstances. The first is where the state
courts did not appoint counsel in the initial-review collateral proceeding for a
claim of ineffective assistance at trial. The second is where appointed counsel
in the initial-review collateral proceeding, where the claim should have been
raised, was ineffective under the standards of Strickland v. Washington.” Id. at
1318 (emphasis added) (citation omitted). Finally, “The rule of Coleman governs
in all but the limited circumstances recognized here . . . . It does not extend to
attorney errors in any proceeding beyond the first occasion the State allows a




                                         5
                                        No. 11-70031
prisoner to raise a claim of ineffective assistance at trial . . . .” Id. at 1320
(emphasis added).2
       When a state diverts ineffectiveness claims to collateral proceedings that
function as the prisoner’s first opportunity to assert those claims, a prisoner who
can demonstrate that he was either unrepresented in that collateral proceeding
or that his initial habeas counsel performed ineffectively thereby establishes
“cause” for purposes of Coleman’s cause-and-prejudice framework to forgive a
state procedural default. Martinez goes on to describe the parameters of a
“prejudice” showing. The result of Martinez is to allow petitioners in these
narrowly described cases to urge their claims of ineffective trial (and habeas)
counsel in federal court.
       No published opinion from this court has yet considered Martinez’s
applicability to Texas cases. To ascertain Martinez’s applicability to Texas
procedures, it is useful to describe Arizona’s habeas procedures more carefully.
Arizona bars initial review of ineffectiveness claims outside of collateral
proceedings.         Arizona’s      collateral-review        proceedings       —    “Rule     32
proceedings” — have predominated Arizona ineffectiveness adjudication since
at least 1989, when the Arizona Supreme Court recommended ineffectiveness
claims be raised under Rule 32. State v. Valdez, 770 P.2d 313, 319 (Ariz. 1989).
Yet Arizona practitioners continued to raise ineffectiveness claims on direct
appeal.    As Rule 32 motions could either follow direct appeals or proceed
contemporaneously with direct appeals, these ineffectiveness proceedings were
sometimes consolidated on direct appeal, only to be remanded to the trial court.
State v. Spreitz, 39 P.3d 525, 526-27 (Ariz. 2002). In 2002, the Arizona Supreme

       2
         Had the Court sought to craft a general exception to Coleman for claims of ineffective
trial counsel, it would have said: “inadequate assistance of counsel at initial-review
proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective
assistance at trial.” Instead, the court said: “inadequate assistance of counsel at initial-review
collateral proceedings may establish cause for a prisoner’s procedural default of a claim of
ineffective assistance at trial.” Martinez, 132 S. Ct. at 1315.

                                                6
                                  No. 11-70031
Court “clarif[ied]” this “murky” procedure by instructing appellate courts to
disregard ineffectiveness claims on direct appeal, regardless of merit. Id. at 527.
Arizona’s Rule 32 proceedings remained the exclusive venue for developing an
ineffectiveness record; at least one Arizona appellate court has expressly
disapproved using motions for a new trial to develop ineffectiveness claims in
favor of the Rule 32 procedure. See State v. Williams, 819 P.2d 962, 964 (Ariz.
Ct. App. 1991).
      Contrast these procedures with Texas’s rules governing ineffectiveness
claims. The TCCA made clear that a state habeas petition is the preferred
vehicle for developing ineffectiveness claims. Robinson v. State, 16 S.W.3d 808,
809-10 (Tex. Crim. App. 2000).         Yet Texas defendants may first raise
ineffectiveness claims before the trial court following conviction via a motion for
new trial, when practicable, and the trial court abuses its discretion by failing
to hold a hearing on an ineffectiveness claim predicated on matters not
determinable from the record. Holden v. State, 201 S.W.3d 761, 762-63 (Tex.
Crim. App. 2003). A prisoner who develops such a record through a new trial
motion can of course pursue the denial of an ineffectiveness claim through direct
appeal, but the TCCA has indicated that a new trial motion is neither a
sufficient nor necessary condition to secure review of an ineffectiveness claim on
direct appeal. Indeed, an ineffectiveness claim may simply be raised on direct
appeal without the benefit of a motion for new trial. Robinson, 16 S.W.3d at 813.
As a result, both Texas intermediate courts and the TCCA sometimes reach the
merits of ineffectiveness claims on direct appeal. Thompson v. State, 9 S.W.3d
808, 813-14 (Tex. Crim. App. 1999).         Where they do not, Texas habeas
procedures remain open to convicted defendants. Ex parte Nailor, 149 S.W.3d
125, 129, 131 (Tex. Crim. App. 2004). In short, Texas procedures do not mandate
that ineffectiveness claims be heard in the first instance in habeas proceedings,




                                        7
                                 No. 11-70031
and they do not by law deprive Texas defendants of counsel-and court-driven
guidance in pursuing ineffectiveness claims.
      Accordingly, Ibarra is 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. We therefore DENY Ibarra’s
motion to vacate the district court’s judgment. This disposition does not affect
our consideration of the pending COA application.
                                                           MOTION DENIED.




                                       8
                                   No. 11-70031
GRAVES, Circuit Judge, concurring in part and dissenting in part:
      I agree with the majority that Ramiro Rubi Ibarra’s motion to vacate
should be denied, as he presently has an application for a certificate of
appealability (COA) pending before this Court. Further, as the Government
asserts, the motion is an “improper procedural vehicle” for obtaining the relief
he seeks because this relief is not available until a decision is made on the
COA. However, the majority denies the motion to vacate based on its
interpretation and application of Martinez v. Ryan, 132 S. Ct. 1309 (2012),
and its finding that Martinez does not apply to Texas. Therefore, I
respectfully concur in part and dissent in part.
      As the majority states, Martinez recognizes a limited exception to
Coleman v. Thompson, 501 U.S. 722, 746-47, 111 S. Ct. 2546, 2562-63 (1991).
Specifically, in Martinez, the Court said:
      To protect prisoners with a potentially legitimate claim of
      ineffective assistance of trial counsel, it is necessary to modify the
      unqualified statement in Coleman that an attorney’s ignorance or
      inadvertence in a postconviction proceeding does not qualify as
      cause to excuse a procedural default. This opinion qualifies
      Coleman by recognizing a narrow exception: Inadequate
      assistance of counsel at initial-review collateral proceedings may
      establish cause for a prisoner’s procedural default of a claim of
      ineffective assistance at trial.


Id. at 1315. (Emphasis added).
      To find that Ibarra could not be one of those prisoners with a
potentially legitimate claim of ineffective assistance of trial counsel that
Martinez proposes to protect, one must read the above use of “initial-review
collateral proceedings” to mean state-mandated initial-review collateral

                                         9
                                         No. 11-70031
proceedings rather than rely on the literal definition of an “initial-review
collateral proceeding.”1 Yet the Court did not include “state-mandated” or
any such phrase in pronouncing this exception. The Court also did not
exclude the application of this equitable exception to prisoners like Ibarra,
who raised IAC claims in a collateral proceeding as strongly suggested by the
state. Yet the Court specifically excluded “attorney errors in other kinds of
proceedings, including appeals from initial-review collateral proceedings,
second or successive collateral proceedings, and petitions for discretionary
review in a State’s appellate courts.” Martinez, 132 S.Ct. at 1320. While
Martinez does repeatedly refer to the applicable Arizona requirement, it is an
Arizona case, and, of course, the narrow exception set out above would apply
to a state such as Arizona which requires that IAC claims are raised
collaterally.
       Moreover, as stated by the majority, the Supreme Court specifically
noted that Arizona habeas courts look to the merits of the ineffectiveness
claim, that no other court prior to the collateral proceeding has addressed the
claim, and “defendants pursuing first-tier review . . . are generally ill
equipped to represent themselves because they do not have a brief from
counsel or an opinion of the court addressing their claim of error.” Id. at
1317.2 (Internal marks omitted). That is exactly the situation with Ibarra.
The Texas habeas court would have been the first court to look to the merits


       1
          The majority quotes language from Martinez’s discussion of Coleman regarding a
definition of “initial-review collateral proceedings” included in the Supreme Court’s statement
of the constitutional issue that the majority concedes the Supreme Court left open: “whether
a prisoner has a right to effective counsel in collateral proceedings which provide the first
occasion to raise a claim of ineffective assistance at trial.” Martinez, 132 S.Ct. at 1315. That
“definition” does not include any language such as state-mandated. Further, that “definition”
supports the proposition that Martinez applies to Ibarra as, based on the preference of the
State of Texas, his first habeas proceeding would be one of the “collateral proceedings which
provide the first occasion to raise a claim of ineffective assistance at trial.”
       2
           The majority’s citation is to the syllabus rather than the actual opinion.

                                                10
                                  No. 11-70031
of his ineffective assistance of trial counsel claim. As to the third factor
above, Ibarra and Martinez were both represented by counsel, but the
Supreme Court extended the exception both to unrepresented and
represented defendants. Martinez, 132 S.Ct. at 1318.
      The Supreme Court unequivocally made an “equitable ruling” creating
an exception to a default in instances with and without counsel. In an
“equitable ruling,” there is no practical or legal way to distinguish between a
prisoner asserting that his initial-review collateral proceeding counsel was
ineffective for failing to assert an ineffective-assistance-of-trial-counsel claim
in a state that requires the claim to be raised collaterally and a state that
strongly suggests that the claim should be raised collaterally. In both
instances the claim would properly be raised collaterally. The only
reasonable distinction between the two would be in the context of a
constitutional ruling, which is not what the Supreme Court made. And, as
the Supreme Court says, the purpose of the exception is to “protect prisoners
with a potentially legitimate claim of ineffective assistance of trial counsel.”


      Texas, like Louisiana, Mississippi, Alabama, and others, is not a state
where you must raise IAC claims in collateral proceedings, although it is the
preferred and encouraged method of raising IAC claims. Notwithstanding
that Texas does not require IAC claims to be raised in a motion for new trial
or on direct appeal but does require that they must be raised no later than
the initial collateral proceeding, there clearly are instances where a collateral
proceeding will be the “first occasion” to legitimately raise a claim of
ineffective assistance of trial counsel in Texas. That “first occasion” would
necessarily be an “initial review.” Ibarra’s case appears to be one of those
occasions.




                                        11
                                  No. 11-70031
      Based on the interpretation of the application of Martinez, the majority
is finding that Ibarra is not entitled to the benefit of Martinez because “Texas
procedures entitled him to review through counselled motions for new trial
and direct appeal.” The majority also states, “[f]ollowing conviction, Ibarra
was then appointed new counsel for his state habeas petition, who raised only
a purported Lackey claim. . . .” Based on the interpretation of the application
of Martinez, the majority is finding that Ibarra has defaulted on any claim of
ineffective assistance of trial counsel that state habeas counsel failed to raise
in his initial state habeas petition because Texas allowed said claimed
ineffective trial counsel to raise his own ineffectiveness in a motion for new
trial or on direct appeal. Overlooking the fact that failing to raise his own
ineffectiveness could possibly be a basis for an IAC claim, it is not equitable to
find that Ibarra has defaulted on a claim of ineffective assistance of counsel
because his claimed ineffective counsel did not prematurely raise said claim
when clearly not practicable.
      With regard to cited cases, the majority cites Arnold v. Dormire, 675
F.3d 1082 (8th Cir. Apr. 3, 2012), as a basis for not “expanding” Martinez.
Arnold was an appeal from an initial-review collateral proceeding. This is not
an appeal from an initial-review collateral proceeding. Hunton v. Sinclair,
2012 WL 1409608, at *1 (E.D. Wash. Apr. 23, 2012), was a Brady claim. This
is an IAC claim. Also, Sherman v. Baker, 2012 WL 993419, at *18 (D. Nev.
Mar. 23, 2012), actually said that to the “extent that Sherman claims
ineffective assistance of post-conviction counsel prevented him from
presenting any of his claims in compliance with Nevada's procedural rules,
the Court in Martinez made clear that post-conviction counsel's
ineffectiveness can serve as cause only with respect to claims of ineffective
assistance of counsel at trial.” Id. That is exactly the situation here - Ibarra’s
underlying claim is ineffective assistance of trial counsel, the merits of which

                                       12
                                    No. 11-70031
would be decided pursuant to his application for a COA. Also, notably, it
appears that Nevada, like Texas, allows ineffective assistance of counsel to be
raised on direct appeal. McConnell v. State, 212 P.3d 307, 314 (Nev. 2009).
See also Nev. Rev. Stat. 34.810.
      Additionally, the Ninth Circuit in Leavitt v. Arave, 2012 WL 1995091
(9th Cir. June 1, 2012), found that Idaho’s unique post-conviction procedure
for capital defendants requiring that any claim of ineffective assistance of
trial counsel must be raised in a post-conviction action that is then litigated
before the direct appeal was the “‘initial-review collateral proceeding’ as to
those claims about which Martinez speaks.” Id. at *8. The Ninth Circuit left
open the question of whether Martinez would apply to non-capital matters.
      Even more relevant is this Court’s handling of Martinez in the
unpublished opinion of Lindsey v. Cain, 2012 WL 1366040 (5th Cir. Apr. 19,
2012).3 In Lindsey, this Court granted a COA and remanded for further
proceedings in light of Martinez, saying:
      When a state, like Louisiana, requires that a prisoner raise an
      ineffective assistance of counsel claim on collateral review, a
      prisoner can demonstrate cause for the default in two
      circumstances: (1) “where the state courts did not appoint counsel
      in the initial-review collateral proceeding for a claim of ineffective
      assistance at trial” and (2) “where appointed counsel in the
      initial-review collateral proceeding, where the claim should have
      been raised, was ineffective under the standards of Strickland [v.
      Washington, 466 U.S. 668 (1984)].” Id. at *8 (citation omitted).
      Further, the prisoner must also show that “the underlying
      ineffective-assistance-of-trial-counsel claim is a substantial one,


      3
        This unpublished case and others are mentioned to demonstrate how this Court and
others have applied Martinez.

                                          13
                                   No. 11-70031
      which is to say that the prisoner must demonstrate that the claim
      has some merit.


Id. at *1.
      Louisiana, like Texas, allows a prisoner to raise ineffective assistance of
counsel on direct appeal “when the record contains sufficient evidence to
decide the issue and the issue is properly raised by assignment of error on
appeal.” State v. Brashears, 811 So.2d 985 (La. App. 5 Cir. 2002). See also
State v. Williams, 738 So.2d 640, 651-652 (La. App. 5 Cir. 1999) (“Ineffective
assistance of counsel claims are most appropriately addressed on application
for post conviction relief, rather than on direct appeal, so as to afford the
parties adequate opportunity to make a record for review. However, when an
ineffective assistance claim is properly raised by assignment of error on direct
appeal and the appellate record contains sufficient evidence to evaluate the
claim, the reviewing court may address the ineffective assistance claim in the
interest of judicial economy.”).
      In Adams v. Thaler, --- F.3d ----, 2012 WL 1415094 (5th Cir. April 25,
2012), a case where the prisoner reasserted ineffective assistance of counsel
in a successive habeas petition after the district court found that he had
procedurally defaulted under Coleman, this Court said:


             Although we need not, and do not, address the impact of
      Martinez on the Texas habeas landscape, we note that Texas does
      not require a defendant to raise an ineffective assistance of trial
      counsel claim only in state habeas proceedings, see Lopez v.
      Texas, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011), and that
      ineffective assistance claims (particularly those, like Adams’s
      claim, involving trial counsel’s failure to object to jury


                                        14
                                       No. 11-70031
       instructions) are often brought on direct appeal, with mixed
       success.


Id. at *3, n.4.
       In Cantu v. Thaler, --- F.3d. ----, 2012 WL 1970364 (5th Cir. June 1,
2012), on remand from the Supreme Court, this Court remanded to the
district court “so that the district court may decide in the first instance the
impact of Martinez v. Ryan on Cantu’s contention that he had cause for his
procedural default.” Id.4
       In analyzing the application of Martinez in Brown v. Thaler, --- F.3d ----
, 2012 WL 2107238 (5th Cir. 2012), this Court said:
              The Supreme Court’s recent decision in Martinez v. Ryan,
       does not assist Brown’s argument. In Martinez, the Court held
       that “[i]nadequate assistance of counsel at initial-review
       collateral proceedings may establish cause for a prisoner’s
       procedural default of a claim of ineffective assistance at trial.”
       The Texas Court of Criminal Appeals did not find Brown’s
       ineffective assistance claim to be procedurally defaulted, but
       instead considered the claim on the merits.


Id. at *15, n. 4.
       In Williams v. Alabama, 2012 WL 1339905 (N.D.Ala. April 12, 2012),
the district court found that Williams demonstrated cause under Martinez to
overcome procedural default of his ineffective assistance of counsel claim.
The court ultimately denied the claim for ineffective assistance of counsel


       4
         The Supreme Court also remanded Newbury v. Thaler, 132 S.Ct. 1793 (March 26,
2012), for consideration of Martinez. Further, this is not an exhaustive list of cases analyzing
the application of Martinez.

                                              15
                                  No. 11-70031
because Williams failed to demonstrate prejudice or that his claim had merit.
The fact that the Alabama district court found Martinez applicable is
significant because Alabama, like Texas, Louisiana, and Mississippi, does not
require a claim for ineffective assistance of counsel to be raised collaterally.
Specifically, the Alabama rule says:
      Any claim that counsel was ineffective must be raised as soon as
      practicable, either at trial, on direct appeal, or in the first Rule 32
      petition, whichever is applicable. In no event can relief be
      granted on a claim of ineffective assistance of trial or appellate
      counsel raised in a successive petition.


Ala. R. Cr. P. 32.2(d).
      Thus, various courts, including a panel of this Court, have decided the
application of Martinez differently than the majority. To be clear, this has no
bearing on whether Ibarra has a substantial claim of ineffective assistance of
trial counsel, as any review of the merits of his claims would be conducted
pursuant to his application for a COA. I am not convinced that it is correct to
foreclose the possible application of an “equitable ruling” to Texas prisoners
with potentially legitimate claims of ineffective assistance of trial counsel.
Therefore, I respectfully concur in part and dissent in part.




                                        16
