Case: 16-70005 Document: 00514406286 Page: 1 Date Filed: 03/28/2018

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 16-70005 Fifth Circuit FILED March 28, 2018 WALTER ALEXANDER SORTO, Lyle W. Cayce Clerk Petitioner–Appellant, v. LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent–Appellee.

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:10-CV-613

ON PETITION FOR REHEARING Before JOLLY, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:* On December 1, 2016, this Court issued a nondispositive opinion denying certificates of appealability with respect to Petitioner–Appellant Walter Alexander Sorto’s Miranda and ineffective assistance of counsel claims. Sorto v. Davis, 672 F. App’x 342 (5th Cir. 2016) (per curiam). The opinion reserved

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

Case: 16-70005 Document: 00514406286 Page: 2 Date Filed: 03/28/2018

No. 16-70005 judgment on the issue of whether the district court abused its discretion in denying requests for funding that would have enabled Sorto to obtain testing to determine whether he has an intellectual disability. Id. at 344. We issued an opinion on that issue. Sorto v. Davis, 859 F.3d 356 (5th Cir. 2017).

Respondent–Appellee Lorie Davis, the director of the Texas Department of Criminal Justice, Correctional Institutions Division (the “Director”) filed a petition for rehearing en banc. After considering the Director’s petition, we granted panel rehearing and withdrew the prior opinion. Sorto v. Davis, 881 F.3d 933 (5th Cir. 2018) (mem. op.).

On March 21, 2018, the Supreme Court issued Ayestas v. Davis, which rejected our Circuit’s standard for determining whether investigative funds pursuant to 18 U.S.C. § 3599(f) are “reasonably necessary.” See No. 16–6795, 2018 WL 1402425 (Mar. 21, 2018). Because the district court has not had the opportunity to consider how Ayestas might apply to the denials of funding in this case, we believe the issue is best considered by the district court in the first instance. See, e.g., Frey v. Stephens, 616 F. App’x 704, 708 (5th Cir. 2015) (noting that we have remanded habeas cases for reconsideration “where relevant binding decisions were issued after the district court ruled”); Thomas v. Quarterman, 272 F. App’x 406, 409 (5th Cir. 2008) (remanding for consideration of an intervening circuit case). Accordingly, we VACATE the district court’s denials of funding and REMAND for its consideration of its denials of funding in light of Ayestas.