Ramiro Ibarra v. Rick Thaler, Director

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

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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.).

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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

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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

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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.

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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,

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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.

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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

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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.

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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.

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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

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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.

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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

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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.

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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