### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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 , 46 4 F

. App’x 233 (5th Cir. 2012). We also denied his application for a certificate of appealability (“COA”)

o n claims for ineffective assistance of counsel, and under Brady v. Maryland , 373 U.S. 83 (1963), and G ig l i o v. United States , 405 U.S. 150 (1972). On June 3, U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D January3, 2014 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 09-70028 Document: 00512487555 Page: 1 Date Filed: 01/03/2014No. 09-70028

2013, the Supre m e C o u rt granted certiorari to Washington, vacated our judgment, and remanded for further consideration in light of T revino v. Thaler , 133 S. Ct. 1911 (2013). Washington v. Thaler , 133 S. Ct. 2763 (2013). Our previous opinion did not address w hether d e f i c i ent performance by Washington’s post-conviction co u n s e l e xcused the procedural default of his in e f f e c tive assistance of trial counsel claims. The district c ourt denied Washington habeas relief, but granted a certificate of appealability on h is claim that his counsel’s failure to object to the allegedly d isc r i m i n a t ory use of peremptory challenges d uring jury s e lection deprived h im o f effective assistance at trial. T he issue on a ppeal was whether the Texas Court of Criminal Appeals’s ( “ T C C A”) denial of habeas relief under Texas’s abuse of the writ statute w a s 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 r aise the ineffective assistance c laim in his first habeas

a p plication cannot be e x c used for lack of the necessary evidence to raise t h e Ba t s o n c l a i m .” Washington , 464 F. App’x at 2 40. As such, we held t hat the TCCA b ased its dismissal of Washington’s claim o n p r o c e dural default, which

was an independent and adequate state ground. We also d enied his application for a COA on whether the district c ourt properly analyzed his c laims of ineffective assistance of counsel based on, among o ther th i n g s , a n a l l e g e d conflict of interest resulting from counsel’s fee arrangement a nd deficient trial preparation and court performance. Since we issued our opinion, the Supreme Court has held that ineffective

a s s istance of post-conviction counsel i n state c ourt c an constitute cause to excuse procedural default of a claim f or relief raised i n a federal habeas corpus petition. Martinez v. Ryan , 132 S. Ct. 1309 (2012). Earlier this year, the S upreme Court

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held in Trevino that the rule from Martinez applies in collater a l challenges to Texas convictions. In light of the Supreme Court’s or d e r , we GRANT Washington’s application for a C OA on his claims for ineffective assistan c e of counsel and R E MAN D t o th e di s tri c t c o u rt t o r econsider Washington’s procedurally defa u l t e d ineffective assistance of counsel claims in light of Trevino

.

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