IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-70028

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,

United States Court of Appeals

Fifth Circuit

F I L E D

January 3, 2014

Lyle W. Cayce

Clerk

* 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

REMANDto the district courtto reconsider Washington’s procedurally defaulted

ineffective assistance of counsel claims in light of Trevino.

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