October 18, 2012

No. 12A369 (12-6760).

#### Haynes *v.*Thaler, Director, Texas Department of Criminal Justice, Correctional Institutions Division.

C. A. 5th Cir. Application for stay of execution of sentence of death, presented to Justice Scalia, and by him referred to the Court, granted pending disposition of the petition for writ of certiorari. Should the petition for writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for writ of certiorari is granted, the stay shall termi--*971nate upon the sending down of the judgment of this Court.

Justice Scalia and Justice Alito would deny the application for stay of execution. 

Statement of

Justice Sotomayor,

with whom Justice Ginsburg joins, respecting the grant of stay of execution.

In this case, a divided Fifth Circuit panel rejected Anthony Haynes’ application for a certificate of appealability on the ground that this Court’s decision in *Martinez*v. *Ryan,*566 U. S. 1 (2012), “does not apply to Texas capital habeas petitioners.” 489 Fed.Appx. 770, 772 (2012) *(per curiam).*We recently granted certio-rari to address precisely the question whether *Martinez*applies to habeas cases arising from Texas courts. See *Trevino*v. *Thaler, post,*p. 977.

The dissent observes that on federal habeas review in this case, the District Court, after first concluding that Haynes had procedurally defaulted his claim that his trial counsel was constitutionally ineffective, ruled in the alternative that the claim failed on the merits. *Post,*at 973 (opinion of Scalia, J.). But the Court of Appeals has never addressed the District Court’s merits ruling, and has instead relied solely on procedural default. See 489 Fed.Appx., at 772; *Haynes*v. *Quarterman,*526 F. 3d 189, 194-195 (CA5 2008). The only appellate judge to consider the merits of Haynes’ claim would have granted Haynes a certificate of appeal-ability in his current case and stated that it was “difficult to conclude that Haynefe] has not made a sufficient showing for a *Strickland*[v. *Washington,*466 U. S. 668 (1984),] violation as to his trial counsel.” 489 Fed.Appx., at 775 (Dennis, J., dissenting). Under these circumstances, rather than assume the correctness of the District Court’s unreviewed merits decision, I believe a stay of execution is warranted to allow Haynes to pursue his claim on remand if this Court in *Trevino*rejects the single ground relied upon by the Fifth Circuit for denying Haynes’ application for a certificate of appealability.

Justice Scalia,

with whom Justice Thomas and Justice Alito join,

dissenting.

I dissent from the Court’s order of October 18, 2012, granting the application of Anthony Haynes for stay of execution of sen-*972tenee of death. Petitioner Haynes, who had committed a series of armed robberies, was approached by off-duty Houston Police Department Officer Kent Kincaid after a bullet from Haynes’ truck had cracked Kincaid’s windshield. Kincaid, who thought the missile had been a rock, identified himself as a police officer and asked for Haynes’ driving license. Haynes lifted a pistol and shot the officer in the head. Haynes was apprehended and confessed to the killing. He was tried for the capital murder of a peace officer “acting in the lawful discharge of an official duty,” Tex. Penal Code Ann. § 19.03(a)(1) (West Cum. Supp. 2012). A Texas jury found him guilty and sentenced him to death.

It has been more than 14 years since Haynes killed Officer Kincaid, 10 years since we denied Haynes’ first petition for certio-rari, see *Haynes*v. *Texas,*535 U. S. 999 (2002), and six months since we denied his second, see *Haynes*v. *Thaler,*566 U. S. 964 (2012). Haynes is now back before us a third time, arguing that he received ineffective assistance from his trial counsel and that his procedural default of this claim is excused by our decision seven months ago in *Martinez*v. *Ryan,*566 U. S. 1 (2012), which he asserts entitles him to a reopening of his habeas proceedings under Federal Rule of Civil Procedure 60(b)(6).

The Fifth Circuit determined that Haynes did not qualify for relief under *Martinez,*which carved out a “limited” exception to our longstanding rule that attorney error on state collateral review does not constitute cause to excuse procedural default of an ineffective-assistance-of-counsel claim, see *Coleman*v. *Thompson,*501 U. S. 722 (1991). According to the Fifth Circuit, Texas inmates fall outside the scope of *Martinez,*which applies only “where the State barred the defendant from raising the claims on direct appeal,” 566 U. S., at 17. See *Ibarra*v. *Thaler,*687 F. 3d 222, 225-227 (2012). Haynes points to the practical difficulties in Texas of successfully raising an ineffective-assistance claim on direct appeal or by motion for new trial.

Even if the Fifth Circuit is incorrect and *Martinez*does implicate Texas’s system of postconviction review, a stay is unwarranted here because Haynes presents no plausible elaim for relief. His complaint is that his trial counsel was ineffective at sentencing. The absolute most to which he would be entitled under *Martinez*is excuse of his procedural default of this claim, enabling a federal district court to adjudicate the claim on the merits. *973But that is precisely what the District Court already did on federal habeas review. See *Haynes*v. *Quarterman,*Civ. No. H-05-3424, 2007 WL 268374 (SD Tex., Jan. 25, 2007). In addition to finding the majority of Haynes’ ineffective-assistance claims procedurally defaulted, the court rejected all of them on the merits. It concluded that Haynes’ argument was “ ‘not that counsels’ performance should have been *better,*rather, his argument is that counsel should have investigated and presented evidence at the punishment phase in a completely *different*manner.’” *Id.,*at *9. It rejected that argument because it concluded that his lawyers’ decisions represented simply “the exercise of [a] strategy” different from what Haynes would now prefer. *Ibid.*It said that even “[i]f the constraints of federal review did not command that Haynes first give the state courts an opportunity to adjudicate his claims of error, this court would still not issue a habeas writ.” *Ibid.*Thus, when the District Court denied Haynes’ Rule 60(b)(6) motion, it correctly concluded that *Martinez*(which would do no more than excuse Haynes’ procedural default) was beside the point, since the court had “already granted Haynes the relief he now requests: The court considered the merits of his barred claims.” *Haynes*v. *Thaler,*2012 WL 4739541, *5 (Oct. 3, 2012).

This stay cannot, therefore, be justified even as preserving an opportunity to challenge the sentence under *Martinez.*And because I see no reason to believe that the District Court was wrong about the merits of Haynes’ claims, I also do not consider a stay warranted in order to plumb the record and correct any alleged factbound error of the District Court.

Haynes has already outlived the policeman whom he shot in the head by 14 years. I cannot join the Court’s further postponement of the State’s execution of its lawful judgment.