Case: 11-70031           Document: 00512313024          Page: 1     Date Filed: 07/17/2013




              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                       Fifth Circuit
                                      _____________________                      FILED
                                                                                 July 17, 2013
                                          No. 11-70031
                                      _____________________                     Lyle W. Cayce
                                                                                     Clerk
RAMIRO RUBI IBARRA,

                  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 Western District of Texas
                                __________________________

Before JONES, HAYNES, and GRAVES, Circuit Judges.

                                             ORDER

         Treating the Appellant’s motion for en banc rehearing as a motion for
panel rehearing, and given the Supreme Court’s recent decision in Trevino v.
Thaler,133 S. Ct. 1911 (2013), the court GRANTS the motion for rehearing in
part.1        We hereby VACATE our prior panel decision only to the extent
inconsistent with Trevino and grant a COA only to that extent; in all other
respects, the majority and dissenting opinions remain in effect. In light of
this new authority, we VACATE the district court’s order to the extent
inconsistent with Trevino and REMAND to the district court for proceedings
consistent herewith.


         1
             The effect of this ruling is to moot the Petition for Rehearing En Banc.
     Case: 11-70031       Document: 00512313024          Page: 2     Date Filed: 07/17/2013




                                       No. 11-70031

GRAVES, Circuit Judge, concurring in part and dissenting in part:
       I agree that the Supreme Court’s recent decision in Trevino v. Thaler,

 (2013), requires us to vacate our prior decision, grant Ibarra’s
certificate of appealability (COA), and remand to the district court for the
appropriate application of Martinez v. Ryan, 

 (2012).2 The trial
court should, in the first instance, be allowed to apply Martinez in accordance
with Trevino. See Cantu v. Thaler, 

 (5th Cir. 2012)
       However, I disagree with the majority’s inclusion of the language that
“in all other respects, the majority and dissenting opinions remain in effect.”
The inclusion of this language is an unwarranted and unnecessary potential
limiter on the consideration of Ibarra’s claims of ineffective assistance of trial
counsel with regard to issues on which the majority previously denied his
COA. Ibarra is clearly not foreclosed from raising his ineffective assistance of
counsel claims on these issues.             Simply put, the trial court is free to
determine whether or not evidence related to these issues is relevant to any
claim of ineffective assistance of counsel, and is likewise free to determine if
any ineffective assistance affects the merits of these issues or any procedural
default. Id. Thus, I disagree with any language which may be construed to
the contrary.




       2
         This is entirely consistent with my previous separate opinions in this case wherein I
disagreed with the panel majority’s rejection of the application of Martinez. See Ibarra v.
Thaler, 

 (2012) (Graves, J., concurring in part and dissenting in part), and Ibarra
v. Thaler, 

 (2012) (Graves, J., dissenting).

                                              2