     Case: 09-70028       Document: 00512487555         Page: 1     Date Filed: 01/03/2014




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

                                                                            FILED
                                                                          January 3, 2014

                                       No. 09-70028                        Lyle W. Cayce
                                                                                Clerk

WILLIE TERION WASHINGTON,

               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
                            4:99-CV-140 & 4:07-CV-721


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before CLEMENT, OWEN, and GRAVES, Circuit Judges.
PER CURIAM:*
       On January 26, 2012, we affirmed a district court’s denial of Washington’s
petition for habeas relief. Washington v. Thaler, 464 F. App’x 233 (5th Cir.
2012). We also denied his application for a certificate of appealability (“COA”)
on claims for ineffective assistance of counsel, and under Brady v. Maryland, 373
U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). On June 3,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 09-70028

2013, the Supreme Court granted certiorari to Washington, vacated our
judgment, and remanded for further consideration in light of Trevino v. Thaler,
133 S. Ct. 1911 (2013). Washington v. Thaler, 133 S. Ct. 2763 (2013).
      Our previous opinion did not address whether deficient performance by
Washington’s post-conviction counsel excused the procedural default of his
ineffective assistance of trial counsel claims.       The district court denied
Washington habeas relief, but granted a certificate of appealability on his claim
that his counsel’s failure to object to the allegedly discriminatory use of
peremptory challenges during jury selection deprived him of effective assistance
at trial. The issue on appeal was whether the Texas Court of Criminal Appeals’s
(“TCCA”) denial of habeas relief under Texas’s abuse of the writ statute was
based on an independent and adequate state ground, or was instead a decision
intertwined with federal law. In affirming, we stated that “[t]he failure to raise
a Batson challenge at voir dire may have been ineffective assistance,” but that
“Washington’s failure to raise the ineffective assistance claim in his first habeas
application cannot be excused for lack of the necessary evidence to raise the
Batson claim.” Washington, 464 F. App’x at 240. As such, we held that the
TCCA based its dismissal of Washington’s claim on procedural default, which
was an independent and adequate state ground. We also denied his application
for a COA on whether the district court properly analyzed his claims of
ineffective assistance of counsel based on, among other things, an alleged conflict
of interest resulting from counsel’s fee arrangement and deficient trial
preparation and court performance.
      Since we issued our opinion, the Supreme Court has held that ineffective
assistance of post-conviction counsel in state court can constitute cause to excuse
procedural default of a claim for relief raised in a federal habeas corpus petition.
Martinez v. Ryan, 132 S. Ct. 1309 (2012). Earlier this year, the Supreme Court



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                                  No. 09-70028

held in Trevino that the rule from Martinez applies in collateral challenges to
Texas convictions.
      In light of the Supreme Court’s order, we GRANT Washington’s
application for a COA on his claims for ineffective assistance of counsel and
REMAND to the district court to reconsider Washington’s procedurally defaulted
ineffective assistance of counsel claims in light of Trevino.




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