* Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR
. R. 47.5.4.

### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-10312

In re: RONNIE PAUL THREADGILL, Movant

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Consolidated with 13-70012 RONNIE PAUL THREADGILL, Petitioner-Appellant v. RICK THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee

Appeals from the United States District Court for the Northern District of Texas USDC No. 3:13-CV-1138-D
Before DAVIS, SMITH, and DENNIS, Circuit Judges. PER CURIAM: * United States Court of Appeals Fifth Circuit 

### F I L E D April 3, 2013 Lyle W. Cayce ClerkNo. 13-70012

2 Petitioner Ronnie Paul Threadgill was convicted and sentenced to death in a Texas state court for the capital murder of Dexter McDonald. He exhausted his state remedies and filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, which was denied. He now brings a second petition for federal habeas corpus, for the first time asserting under Strickland v. Washington, 466 U.S. 668 (1984), and Wigginsv. Smith, 539 U.S. 510 (2003), that his trial counsel rendered ineffective assistance of counsel by failing to develop and present mitigation evidence. He also hasfiled a motion for stay ofexecution and a motion to stay and abey pending a ruling by the Supreme Court ofthe United States in Trevino v. Thaler, 449 F. App’x 415 (5th Cir. 2011), cert. granted, 133 S. Ct. 524 (2012). The district court denied Threadgill’s petition and motions for stay. Threadgill now seeks a certificate of appealability in this court. Threadgill contends that the procedural default o f his Wiggins claim is excused under Martinez v. Ryan, 132 S. Ct. 1309 (2012). In Martinez, the Supreme Court created a narrowexception to the rule that an attorney’s errors in a postconviction proceeding do not qualify as cause for a procedural default. The Court held: Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim ofineffective assistance at trial if, in the initialreviewcollateral proceeding, therewas nocounsel or counsel in that proceeding was ineffective. I d. at 1320. The Martinez exception is a narrow one, and “does not concern attorney errors in other kinds of proceedings, including appeals from initialreview collateral proceedings, [or] second or successive collateral proceedings.” Id

. We held in Ibarra v. Thaler, 687 F.3d 222 (5th Cir. 2012), that the Martinez exception does not apply in review ofsentences issued by Texas courts because Texas allows claims of ineffective assistance ofcounsel to be raised for the firstNo. 13-70012

3 time on direct appeal. The Supreme Court granted a writ ofcertiorari in Trevino
v. Thaler, 133 S. Ct. at 525, to address whether the Martinez exception applies to Texas cases. Even ifthe Supreme Court’s eventual decision in Trevino makes Martinez applicable to Texas, however, Threadgill’s claim would still be procedurally barred for being a second or successive habeas corpus application. Threadgill failed to raise his Wiggins claim both in his state habeas corpus proceeding and in his first federal habeas petition. Where a claim is presented in a second or successive habeas corpus application under 28 U.S.C. § 2254 that was not presented in a prior application, the claim must be dismissed unless (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive tocaseson collateral reviewby the Supreme Court, that was previously unavailable; or (B)(i) the factual predi cate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence asa whole, would be sufficient toestablish by clear and convincing evidence that, but for constitutional error, noreasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b). Threadgill’s ineffective-assistance claim rel ies on Strickland, 466 U.S. 668, and Wiggins, 539 U.S. 510, neither ofwhich was new at the time that Threadgill filed his first federal habeas petition. He concedes that the factual predicate for the claim was available prior to his filing his first federal habeas petition. Therefore, he cannot show that his petition should not be dismissed pursuant to § 2244(b). Martinez does not concern attorney error in any proceeding other than the initial-reviewcollateral proceeding. See Martinez, 132 S.Ct. at 1320. Therefore,
even if Martinez is made applicable to Texas cases, it would excuse onlyNo. 13-70012

4 Threadgill’s procedural default of his Wiggins claim in state habeas proceeding and not his failure to raise hisWiggins claim in his first federal habeas petition. We therefore DENY Threadgill’s application for a certificate of appealability, DENY his motion for stay of execution, and DENY his motion to stay and abey pending a ruling by the Supreme Court of the United States in Trevino v. Thaler

.