* 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.

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

Clerk
No. 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 Wiggins v. 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 has filed a motion for stay of execution and a motion

to stay and abey pending a ruling by the Supreme Court of the 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 of his Wiggins claim is

excused under Martinez v. Ryan, 132 S. Ct. 1309 (2012). In Martinez, the

Supreme Court created a narrow exception 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 of ineffective assistance at trial if, in the initialreview collateral proceeding,there was no counsel or counsel in that

proceeding was ineffective. 

Id. 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 of sentences issued by Texas courts because

Texas allows claims of ineffective assistance of counsel to be raised for the first
No. 13-70012

3

time on direct appeal. The Supreme Court granted a writ of certiorari in Trevino

v. Thaler, 133 S. Ct. at 525, to address whether the Martinez exception applies

to Texas cases.

Even if the 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 to cases on collateral review by

the Supreme Court, that was previously unavailable; or

(B)(i) the factual predicate 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 as a whole, would be sufficientto establish by clear and

convincing evidence that, butfor constitutional error, no reasonable

factfinder would have found the applicant guilty of the underlying

offense.

28 U.S.C. § 2244(b). Threadgill’s ineffective-assistance claim relies on

Strickland, 466 U.S. 668, and Wiggins, 539 U.S. 510, neither of which 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-review collateral proceeding. See Martinez, 132 S.Ct. at 1320. Therefore,

even if Martinez is made applicable to Texas cases, it would excuse only
No. 13-70012

4

Threadgill’s procedural default of his Wiggins claim in state habeas proceeding

and not his failure to raise his Wiggins 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.