USCA No. 15-70010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT MICHAEL WAYNE NORRIS, Petitioner-Appellee/Cross-Appellant, vs. WILLIAM STEPHENS, Director Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant/Cross-Appellee. On Appeal From The United States District Court For The Southern District of Texas Houston Division Civil Action No. H-12-CV-3645 APPLICATION FOR CERTIFICATE OF APPEALABILITY ***** ORAL ARGUMENT REQUESTED ***** Patrick F. McCann Casie L. Gotro 909 Texas Avenue, Suite 205 440 Louisiana Street, Suite 800 Houston, Texas 77002 Houston, Texas 77002 PH: 713.223.3805 PH: (713) 228-2737 eFAX: 281.667.3352 FAX: 832.201.8273 Counsel of Record for Petitioner-Appellee/Cross-Appellant Michael Wayne Norris THIS IS A DEATH PENALTY CASE Case: 15-70010 Document: 00513139993 Page: 1 Date Filed: 08/03/2015
Transcript
USCA No. 15-70010
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
MICHAEL WAYNE NORRIS,
Petitioner-Appellee/Cross-Appellant,
vs.
WILLIAM STEPHENS, Director Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent-Appellant/Cross-Appellee.
On Appeal From The United States District Court For The Southern District of Texas
Houston Division Civil Action No. H-12-CV-3645
APPLICATION FOR CERTIFICATE OF APPEALABILITY
***** ORAL ARGUMENT REQUESTED *****
Patrick F. McCann Casie L. Gotro 909 Texas Avenue, Suite 205 440 Louisiana Street, Suite 800 Houston, Texas 77002 Houston, Texas 77002 PH: 713.223.3805 PH: (713) 228-2737 eFAX: 281.667.3352 FAX: 832.201.8273
Counsel of Record for Petitioner-Appellee/Cross-Appellant
Michael Wayne Norris
THIS IS A DEATH PENALTY CASE
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CERTIFICATE OF INTERESTED PERSONS
MICHAEL W. NORRIS
Petitioner-Appellee/Cross-Appellant, VS. No. 15-70010
WILLIAM STEPHENS, Director,
Respondent-Appellant/Cross-Appellee.
The undersigned counsel of record certifies that the following listed persons
and entities as described in the fourth sentence of 5th Cir. R. 28.2.1 have an interest in the outcome of this case. These representations are made in order that the judges of this Court may evaluate possible disqualification or recusal.
1. Michael Wayne Norris, Petitioner- Appellee;
2. Patrick F. McCann, Lead Counsel for Petitioner-Appellee Norris;
3. William Stephens, Director, Texas Department of Criminal Justice
4. Ken Paxton, Attorney General for the State of Texas, Counsel for Respondent-Appellant/Cross-Appellee;
5. Thomas M. Jones, Assistant Attorney General, State of Texas, Attorney-in-
Charge, Counsel for Respondent-Appellant/Cross-Appellee Stephens; and
6. The State of Texas.
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STATEMENT REGARDING ORAL ARGUMENT
Norris respectfully requests that this Court set this application for oral
argument. Norris submits that the issues presented in the application are
meritorious. The basic underlying facts are both unique in their presentation and
complex. The legal issues involved with regards to (1) trial counsels
ineffectiveness, and (2) the insufficiency of the evidence with respect to the
application of Texas’ Transferred Intent statute to the facts of a capital murder
prosecution are complex, diverse, and have not yet been properly addressed by any
court. Further the state court records, accompanying exhibits, and the District
Court’s record on appeal are somewhat voluminous. Lastly, the issues are
interesting, and, thus far, have not received serious consideration in state or federal
court. Thus “the decisional process [of this Court] would be significantly aided by
oral argument.” FED. R. APP. P. 34(a)(2)(C); 5TH CIR. R. 34.2.
Norris hereby waives oral argument as to the District Court’s erroneous
procedural ruling that he failed to exhaust available state remedies with respect to
his cumulative prosecutorial misconduct claim. This is a straight-forward question
adequately addressed by this application and in the record on appeal, and the
decisional processes of this Court would not be significantly aided by oral
argument as to this claim.
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TABLE OF CONTENTS
PAGE
Cover ……………………………………..………………………………..…… i
Certificate of Interested Persons ……...…….………………………….........……. ii
Statement Regarding Oral Argument ………...….……………………….……… iii
Table of Contents …….……………………………………………………… iv
Table of Authorities ………..………………………………………………… vii
Introduction …………….………………………………………………………… 1
Jurisdiction ….………………………………………………………...…….……. 2
Issues Presented ….……………………………………………………….….…… 4
Statement of the Case………………………………………………………...…… 6
Statement of Facts…………………………………………………………..…… 12
Summary of Argument ………………………………….………………………. 14
Standard of Review ……………………………………….………………..…… 20
Argument ………………………………………………….……………..……… 23
I. REASONABLE JURISTS WOULD DISAGREE WITH THE DISTRICT COURT’S FINDING THAT NORRIS FAILED TO EXHAUST AVAILABLE STATE COURT REMEDIES WITH RESPECT TO HIS CUMULATED PROSECUTORIAL MISCONDUCT CLAIM WHEN NORRIS EMPLOYED LANGUAGE IN HIS STATE APPELLATE COURT BRIEF ASSOCIATED WITH PLEADING A FEDERAL DUE PROCESS CLAIM VERSUS THE DISTINCT LANGUAGE OF THE PARALLEL STATE DUE COURSE OF LAW CLAIM.
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TABLE OF CONTENTS
PAGE
Relevant Facts ……………………...……………………………… 23
Argument ……………………………………………………...…… 23
Exhaustion: Presentation of Legal Basis of Claim ….……… 23
II. REASONABLE JURISTS WOULD DISAGREE WITH THE DISTRICT
COURT’S DENIAL OF HABEAS CORPUS RELIEF WITH RESPECT TO NORRIS’ CLAIM THAT HE WAS DENIED THE REASONABLY EFFECTIVE ASSISTANCE OF COUNSEL AND A FAIR TRIAL WHEN TRIAL COUNSEL FAILED TO PRESERVE CONSTITUTIONAL ERROR AS TO THE ILLEGALITY OF NORRIS’ WRITTEN STATEMENT AND FAILED TO OBJECT TO THE PROSECUTOR’S IMPROPER CANNIBALIZING CROSS- EXAMINATIONS OF BOTH NORRIS AND HIS MOTHER AS TO THE EVIDENCE THAT KEITH’S DEATH WAS ACCIDENTAL.
Relevant Facts ………………………………………………...…… 28
Standard of Review …………………………………………...…… 30
State Habeas Courts Factual Findings and Legal Conclusions, and Inadequacy of the State’s Post-Conviction Corrective Process …………………………….… 32
The TCCA Did Not Adjudicate the Claims Presented in Norris’ Original Habeas Application ………………………………….……………… 32
Nor did the TCCA either Explicitly or Implicitly Adopt the Trial Courts Findings and Conclusions ……………………………...…… 35
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TABLE OF CONTENTS
PAGE
Inadequacy of the State Habeas Process in Protecting Norris’ Constitutional Rights …………………… 36
Argument …………………………………………………...……… 38
Norris’ Illegally Obtained Statement and Trial Testimony ……………………………………..……… 40
Norris’ Mother’s Statement and Testimony ……………...… 43
III. REASONABLE JURISTS WOULD DISAGREE WITH THE DISTRICT COURT’S DENIAL OF HABEAS CORPUS RELIEF AS TO NORRIS’ CLAIM THAT THE “RECORD EVIDENCE” WITH RESPECT TO HIS CAPITAL MURDER CONVICTION IS LEGALLY INSUFFICIENT BECAUSE THE TEXAS COURT OF CRIMINAL APPEALS SPECIFICALLY FOUND THAT THE ONLY EVIDENCE RAISING AND SUPPORTING A CONVICTION UNDER THE STATE’S TRANSFERRED INTENT THEORY WAS NORRIS’ TESTIMONY, AND, UNDER JACKSON V. VIRGINIA, A REVIEWING COURT MUST INVOKE A PRESUMPTION THAT A JURY REJECTED THE DEFENDANT’S TESTIMONY AS SELF-SERVING.
Relevant Facts …………………………………………………….. 47
Standard of Review ……………………………………………….. 48
Argument ………………………………………………………….. 49
The TCCA’s Specific Factual Findings Demonstrate that the Record Evidence is Legally Insufficient under Jackson v. Virginia …………………………………………………….. 49
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TABLE OF CONTENTS
PAGE
IV. REASONABLE JURISTS WOULD FURTHER DISAGREE WITH THE DISTRICT COURT’S DENIAL OF HABEAS CORPUS RELIEF WITH RESPECT TO NORRIS’ CLAIM THAT THE ERRONEOUS APPLICATION OF TEXAS’ TRANSFERRED INTENT STATUTE TO THE FACTS OF HIS CASE DENIED HIM DUE PROCESS OF LAW BECAUSE IT PERMITTED THE JURY TO CONVICT NORRIS OF CAPITAL MURDER ON AN IMPERMISSIBLE LEGAL THEORY.
Relevant Facts ………………………………………………..……. 56
Argument ……………………………………………………..……. 57
V. AND LASTLY, REASONABLE JURISTS WOULD DISAGREE WITH
THE DISTRICT COURT’S DENIAL OF HABEAS CORPUS RELIEF WITH RESPECT TO NORRIS’ CLAIM THAT HE WAS DENIED DUE PROCESS OF LAW WHEN THE TEXAS COURT OF CRIMINAL APPEALS LATER REFUSED ON STATE HABEAS REVIEW TO APPLY AND GRANT RELIEF BASED ON ITS DECISION IN ROBERTS V. STATE, WHICH OVERTURNED THE HOLDING IN NORRIS’ OWN CASE AND UPSET TEXAS’ DOCTRINE OF TRANSFERRED INTENT AS APPLIED TO CAPITAL MURDER PROSECUTIONS.
Relevant Facts ……………………………………………...……… 60
Argument ………………………………….…………………..…… 64
Conclusion ……………………………………………………………….……… 69
Prayer ……………………………………………………………………………. 69
Certificate of Service ……………………………………………………….…… 71
Certificate of Compliance ………………………………………………..……… 72
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TEX. R. CRIM. EVID. 105 ……………………………………………………..….. 45
TEX. R. APP. PROC. 79.2(d) ……………………………………………………… 10
SECONDARY SOURCES PAGE
Advisory Committee Note to FED. R. EVID. 404(b) …...………………….…….. 41 Barrett, Paul M.,
On the Defense: Lawyers Fast Work on Death Cases Raises Doubts About System, Wall St. J., September 7, 1994, at A1 ………………………...………… ..... 6
BBC, London,
Texas Sleeping Lawyer Verdict Overturned, August 14, 2001 …………………………………...………………………. 6
Chablani, Sanjay K.,
Clinically Stricken: A Continuing Legacy of Ineffective Assistance of Counsel, St. Louis U. Pub., 28 Rev. 351 (2008) …………………...……………..…. 7
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TABLE OF AUTHORITIES
SECONDARY SOURCES PAGE
Goode, Wellborne and Sharlot. Guide to the Texas Rules of Evidence: Civil and Criminal (Tex. Prac., 1988) ……………………………….………… 43
Greenhouse, Linda,
Inmate Whose Lawyer Slept Gets New Trial, N.Y. Times, June 4, 2002 ………………………………………………….. 6
Simpson, Doug,
Can a Sleeping Lawyer Help Client?, ABC. WGNO, New Orleans, January 22, 2001 ……………………...……. 6
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
MICHAEL WAYNE NORRIS,
Petitioner-Appellee/Cross-Appellant,
vs.
WILLIAM STEPHENS, Director
Texas Department of Criminal Justice, Correctional Institutional Division,
Respondent-Appellant/Cross-Appellee.
On Appeal From The United States District Court
For The Southern District of Texas Houston Division
Civil Action No. H-12-CV-3645
APPLICATION FOR CERTIFICATE OF APPEALABILITY
TO THE HONORABLE JUDGES OF THE COURT OF APPEALS:
This Application for Certificate of Appealability (COA) is from the
Memorandum and Order and Final Judgment of the United States District Court
for the Southern District of Texas at Houston ( HARMON, J., presiding) granting
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in part, and denying in part, Michael Wayne Norris’ Petition for a Writ of Habeas
Corpus.
JURISDICTION
Appellee/Cross-Appellant Norris was convicted and sentenced to death
under the Texas capital murder statute. The State of Texas v. Michael Wayne
Norris, No. 462,899 (337th Dist. Ct., Harris Co., Tex., Jun. 1, 1987). The District
Court had jurisdiction over both the subject matter and parties pursuant to 28
U.S.C. §§ 2241, 2254 of the AEDPA1. This Court presently has jurisdiction of
Norris’ cross-appeal under 28 U.S.C. §2253(c)(1).
This Application for COA is from the District Court’s March 28, 2015
Memorandum and Order and Final Judgment granting relief in part as to
punishment with respect to the Penry2 claim, and denying relief as to the remaining
claims set forth in Norris’ habeas corpus petition (III ROA 722; 760; RE-3, -4)3.
1 Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (1996).
2 Penry v. Lynaugh, 492 U.S. 302 (1989) (Penry I).
3 “ROA” refers to the record on appeal containing the papers and pleadings filed in the United States District Court below in Civil Action No. H-12-CV-3645, preceded by the volume number and followed by the page number(s) being referenced. For clarity, references will be made to the record prepared in connection with the Director’s appeal.
“RE- ” refers to the Record Excerpts volume Norris has submitted along with this
application containing the mandatory and optional contents specified in 5th Cir. Local R. 30.1.4 and 30.1.5.
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The Court also sua sponte denied Norris a COA in its Memorandum and Order (Id.
759).
The Director filed timely notice of appeal as to the District Court’s grant of
habeas corpus relief with respect to the death sentence concerning Norris’ Penry
claim on April 14, 2015. (ROA 761-63). Thus, jurisdiction as to Respondent-
Appellant/Cross-Appellee Stephens (hereafter “the Director”) appeal is assured
under 28 U.S.C. §1291. See FED. R. APP. P. 22(b)(3) (“A certificate of appealability
is not required when a state or its representative … appeals.“).
As to Norris’ cross-appeal, timely notice of appeal was filed on April 24,
2015 (Docket No. 23; RE-2)4, and this application, pursuant to FED. R. APP. PROC.
22(b)(1) follows. Unless this Court issues the COA required by 28 U.S.C.
§2253(c)(1), jurisdiction will not lie under 28 U.S.C. §1291.
4 “Docket No. ” refers to the docket entry number assigned to the papers and pleadings filed in the United States District Court below in Civil Action No. H-12-CV-3645, followed by the entry number being referenced.
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ISSUES PRESENTED
I. WHETHER REASONABLE JURISTS WOULD DISAGREE WITH THE DISTRICT COURT’S FINDING THAT NORRIS FAILED TO EXHAUST AVAILABLE STATE COURT REMEDIES WITH RESPECT TO HIS CUMULATED PROSECUTORIAL MISCONDUCT CLAIM WHEN NORRIS EMPLOYED LANGUAGE IN HIS STATE APPELLATE COURT BRIEF ASSOCIATED WITH PLEADING A FEDERAL DUE PROCESS CLAIM VERSUS THE DISTINCT LANGUAGE OF THE PARALLEL STATE DUE COURSE OF LAW PROVISION?
II. WHETHER REASONABLE JURISTS WOULD DISAGREE WITH THE DISTRICT COURT’S DENIAL OF HABEAS CORPUS RELIEF WITH RESPECT TO NORRIS’ CLAIM THAT HE WAS DENIED THE REASONABLY EFFECTIVE ASSISTANCE OF COUNSEL AND A FAIR TRIAL WHEN TRIAL COUNSEL FAILED TO PRESERVE CONSTITUTIONAL ERROR AS TO THE ILLEGALITY OF NORRIS’ WRITTEN STATEMENT AND FAILED TO OBJECT TO THE PROSECUTOR’S IMPROPER CANNIBALIZING CROSS-EXAMINATIONS OF BOTH NORRIS AND HIS MOTHER AS TO THE EVIDENCE THAT KEITH’S DEATH WAS ACCIDENTAL?
III. WHETHER REASONABLE JURISTS WOULD DISAGREE WITH THE DISTRICT COURT’S DENIAL OF HABEAS CORPUS RELIEF AS TO NORRIS’ CLAIM THAT THE “RECORD EVIDENCE” WITH RESPECT TO HIS CAPITAL MURDER CONVICTION IS LEGALLY INSUFFICIENT BECAUSE THE TEXAS COURT OF CRIMINAL APPEALS SPECIFICALLY FOUND THAT THE ONLY EVIDENCE RAISING AND SUPPORTING A CONVICTION UNDER THE STATE’S TRANSFERRED INTENT THEORY WAS NORRIS’ TESTIMONY, AND, UNDER JACKSON V. VIRGINIA, A REVIEWING COURT MUST INVOKE A PRESUMPTION THAT A JURY REJECTED THE DEFENDANT’S TESTIMONY AS SELF-SERVING?
IV. WHETHER REASONABLE JURISTS WOULD DISAGREE WITH THE DISTRICT COURT’S DENIAL OF HABEAS CORPUS RELIEF WITH RESPECT TO NORRIS’ CLAIM THAT THE ERRONEOUS APPLICATION OF TEXAS’ TRANSFERRED INTENT STATUTE TO THE FACTS OF HIS CASE DENIED HIM DUE PROCESS OF LAW BECAUSE IT PERMITTED THE JURY TO CONVICT NORRIS OF CAPITAL MURDER UNDER AN IMPERMISSIBLE LEGAL THEORY?
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V. WHETHER REASONABLE JURISTS WOULD DISAGREE WITH THE DISTRICT COURT’S DENIAL OF HABEAS CORPUS RELIEF WITH RESPECT TO NORRIS’ CLAIM THAT HE WAS DENIED DUE PROCESS OF LAW WHEN THE TEXAS COURT OF CRIMINAL APPEALS LATER REFUSED ON STATE HABEAS REVIEW TO APPLY AND GRANT RELIEF BASED ON ITS DECISION IN ROBERTS V. STATE, WHICH OVERTURNED THE HOLDING IN NORRIS’ OWN CASE AND UPSET THE DOCTRINE OF TRANSFERRED INTENT IN TEXAS LAW AS APPLIED TO CAPITAL MURDER PROSECUTIONS?
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STATEMENT OF THE CASE
In Cause No. 462,899, Michael Wayne Norris was charged by indictment
with capital murder in the shooting deaths of Keith and Georgia Rollins. (Tr. 10;
RE-5)5. Cf. TEX. PENAL CODE, SEC. 19.03(a)(6)(A)6. The indictment alleged, in
pertinent part, that on or about November 12, 1986, Norris did “intentionally cause
the death of Keith Rollins and Georgia Rollins, by shooting them with a deadly
weapon, namely, a firearm, during the same criminal transaction”. (Id.). Norris
was tried7 by jury on a plea of not guilty in the 337th District Court of Harris
5 “Tr.” refers to the record that was prepared by the Clerk of the 337th District Court in connection with Norris’ automatic direct appeal to the Texas Court of Criminal Appeals, followed by the page number being referenced.
6 In 1993, this subsection was renumbered to V.T.C.A., Penal Code, Section
19.03(a)(7)(A). The two provisions are identical. Section 19.03(a)(6)(A) states: "A person commits an offense if he commits murder as defined under Section 19.02(a)(1) of this code and the person murders more than one person during the same criminal transaction."
7 Norris was represented at his jury trial by Joe Frank Cannon, Texas’ infamous
“Sleeping Lawyer”. See, Can a Sleeping Lawyer Help Client? Doug Simpson. ABC. WGNO, New Orleans. Jan. 22, 2001; Greenhouse, Linda. Inmate Whose Lawyer Slept Gets New Trial, N. Y. Times, Jun. 4, 2002; Barrett, Paul M., On the Defense: Lawyer’s Fast Work on Death Cases Raises Doubts About System, Wall St. J., Sept. 7, 1994, at A1. Cf., Texas Sleeping Lawyer Verdict Overturned, BBC. London. August 14, 2001.
The bench and bar of this Court, as well as those located in Harris County, Texas, are
familiar with Mr. Cannon’s reputation in the legal community for his fast and loose approach to defending capital cases to which he was appointed, and the devastation his representations has wrecked on the fair administration of justice in those cases in which a death sentence was sought and usually obtained by the State. See, Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001) (en banc) (“sleeping lawyer” case); Williams v. Scott, 35 F.3d 159, 163 (5th Cir. 1994) (discussing ineffectiveness challenges, and holding that Williams could not claim the State had concealed exculpatory evidence from him because Cannon could have discovered the evidence by investigating the case with “due diligence” but did not do so); Anderson v. Collins, 18 F.3d 1208, 1215-21 (5th Cir 1994) (discussing challenges to Cannon’s conduct during every phase of trial); Anderson v. Lynaugh, Civil Action No. H-87-1318 (S.D.Tex. Apr. 23, 1991) (attorney affidavits
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County, Texas, the Honorable Johnny Kolenda presiding. The jury found Norris
guilty as charged in the indictment and returned affirmative answers to the special
issues, after which the trial court assessed his punishment at death8 (Tr. 160-62).
Appeal to the Texas Court of Criminal Appeals (TCCA) was automatic. That court affirmed the judgment and sentence in a published decision delivered on
March 1, 1995. Norris v. State, 902 S.W.2d 428 (Tex. Crim. App. 1995), reh
denied (RE-7). The Supreme Court of the United States denied certiorari review
on October 2, 1995. Norris v. Texas, 516 U.S. 890 (1995).
Next, on June 2, 1997, Norris sought habeas corpus relief in the convicting
court pursuant to Article 11.071 of the Texas Code of Criminal Procedure. (I ROA
103-122). Almost eleven years later, on April 17, 20089, an evidentiary hearing
attached to habeas petition filed in the District Court describing instances of Cannon’s representation and general reputation in the legal community).
This Court may take judicial notice of Mr. Cannon’s general reputation in the legal
community with respect to his representation in capital cases if the Court determines that it will better inform its decision in this proceeding, and Norris suggests that it do so. FED. R. EVID. 201; In re Indian Palms Assoc., Ltd. v. California Federal Bank, 61 F.3d 197, 205 (3rd Cir. 1995) ("’Judicial notice may be taken at any stage of the proceeding,’ including on appeal[.]”); Aloe Crème Laboratories v. Francine Co., 425 F.2d 1295, 1295 (5th Cir. 1970) (per curiam) (Court “clearly ha[s] the right to take notice of its own files and records…[.]”).
8 “Not surprisingly, ten of Cannon’s clients have been sentenced to death, one of the
largest numbers among Texas attorneys.” Chablani, Sanjay K. Chronically Stricken: A Continuing Legacy of Ineffective Assistance of Counsel. St. Louis U. Pub. L. Rev. 28, 351, 376 (2008).
9 During the interim period between the filing of Norris’ original state writ application and
the date of the writ hearing, trial counsel passed away on August 12, 1998, and, on May 15, 2003, original habeas counsel, Charles Freeman, passed as well, and present counsel, Patrick F. McCann, was substituted in as counsel of record (I WHSF 5).
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was conducted on this application with respect to Norris’ ineffectiveness of
counsel10 claims in the 351st Judicial District Court11 of Harris County, Texas, with
the Honorable Mark Kent Ellis presiding. (II ROA 493; I WHSF 112). However,
twelve years after submitting his original application for writ of habeas corpus, and
while that application was still pending13 in the trial court, Norris amended14 the
application on July 13, 2009. (I ROA 123-134).
10 When, over objection from the State, Norris’ present counsel sought permission to
explore the true scope of trial counsels ineffectiveness, the habeas court ruled, while candidly admitting that “I don’t know the answer to this question”, and without requesting argument from the parties on the question, that counsel could not amend or expand the scope of his examination beyond those instances alleged in the original application. (I WHSF 9). But cf., Ex parte Parker, 704 S.W.2d 40, 41 (Tex. Crim. App. 1986) (amending original writ application in the trial court).
Thus, the record from the writ hearing reflects that new habeas counsel was erroneously
“boxed in” by the allegations presented by his predecessor in the original application, and restricted from expanding his examination into matters that his reading of the record reflected additional instances of ineffectiveness such as trial counsel’s failure to conduct an adequate pretrial investigation, as well as failures to request ballistics or forensic experts, and securing witnesses. But see Strickland v. Washington, 466 U.S. 668, 690 (1984) (ineffectiveness claims must be analyzed in light of the totality of the circumstances).
11 “…Judge Don Stricklin, who had been elected to the 337th District Court, recused himself
as his wife…was the prosecutor on [Norris’] case. So, it [Norris’ original writ application] fell into the 351st.” (I WHSF 4-5).
12 “WHSF” refers to the court reporter transcription of the writ hearing conducted on Norris’ state habeas corpus application, preceded by the volume number and followed by the page number being referenced.
13 Norris’ original “post-conviction application for writ of habeas corpus [wa]s pending in
the trial court” when this amendment was submitted. Ex parte Norris, WR-835-01, slip op. at 1; 2009 Tex. Crim. App. Unpub. LEXIS 741 (Tex. Crim. App., Nov. 4, 2009) (per curiam) (RE-9).
14 This amended application has been erroneously characterized throughout the proceedings
as a “subsequent” application in the proceedings below. (I ROA 124).
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In an unpublished per curium order dated November 4, 2009, the TCCA
purported to dismiss Norris’ amended application premised on the TCCA’s later
abrogation of its holding in Norris’ direct appeal with respect to the erroneous
application of the transferred intent instruction to the facts of his case as “an abuse
of the writ” pursuant to article 11.071, section 5(c), of the Texas Code of Criminal
Procedure. Ex parte Norris, WR-72,835-01, slip op. at 1; 2009 Tex. Crim. App.
Unpub. LEXIS 741(RE-9) Tex. Crim. App., Nov. 4, 2009) (per curiam), but see id.
(WOMACK, J., dissenting, PRICE and HOLCOMB, JJ., joined) (RE-10). Later,
however, on December 12, 2012, the TCCA squarely addressed this single claim
without mention, and to the exclusion, of the seven claims presented in Norris’
original writ application and denied relief. Ex parte Norris, WR-835-02; 390
As long as the convicting court retains oversight of the fact-finding process provided in Texas’ statutory habeas scheme, a habeas applicant is permitted to amend his/her original application. Ex parte Parker, 704 S.W.2d 40, 41 (Tex. Crim. App. 1986) (amending writ application in the trial court to include additional claim); Ex parte Casteneda, 697 S.W.2d 617, 617 (Tex. Crim.App. 1985) (same). Cf. Ex parte Norris, 2009 Tex. Crim. App. Unpub. LEXIS 741(RE-9), id. (WOMACK, J., dissenting, PRICE and HOLCOMB, JJ., joined) (RE-10) (“[T]his claim is not barred by the fact that this is his second application for habeas-corpus relief from the conviction. (An earlier application is still being considered in the convicting court.).”)
This is consistent with the Texas Legislature’s expressed intent to limit state habeas
applicants to “’one bite of the apple, one shot’”. Ex parte Torres, 943 S.W.2d 469, 474 (Tex. Crim.App. 1997) (quoting Representative Gallego). “’If [a habeas applicant] ha[s] to stick the kitchen sink in there, put it all in there. And, we will go through those claims, one at a time, and make a decision[.]’” Id.
Thus, in submitting his amended application while the original was still pending, Norris
was simply following this legislative directive, however, the Legislature has been found wanting in its assurances to Norris in that the TCCA has failed to acknowledge, much less “go through” and address, the seven claims presented in his original application, and has even failed to enter a appropriate ruling on those claims. Ex parte Torres, 943 S.W.2d at 474.
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S.W.3d 338 (Tex. Crim. App. 2012) (RE-11)15. During the interim period between
the purported November 2009 dismissal and December 2012 denial of Norris’
amended application, the state habeas court adopted the State’s proposed findings
of fact and conclusions of law on August 22, 2012, and recommended that relief be
denied on the seven claims presented in the original writ application16.
Next, Norris petitioned the United States District Court for federal habeas
corpus relief under 28 U.S.C. §§ 2241, 2254. That Court, in a Memorandum and
Order and Final Judgment dated March 28, 2015, granted habeas relief as to the
death sentence on Norris’ Penry claim, but granted the Director’s motion for
15 Norris submits that given the manner of that court’s about-face in addressing this claim in
its published decision, the TCCA actually elected to reconsider Norris’ amended application on its own initiative. See TEX. R. APP. P. 79.2(d) (“The Court on its own initiative may reconsider the case.”) (emphasis supplied).
16 At the writ hearing, the state habeas court noted the “[a]mazingly slow progress” in
processing Norris’ original application. (II WHSF 497). Later, the District Court, as well, noted the tortured procedural history of Norris’ case, but concluded that “[t]hese procedural peculiarities, however, do not affect the disposition of Norris’ federal petition.” (III ROA 727, at note 1) (RE-3).
Norris respectfully disagrees with the District Court’s assessment.
The TCCA has wholly failed to adjudicate the seven claims presented to it in Norris’
original writ application, or to follow its own holding with respect to the claim presented in the amended application. Moreover, in declining to adjudicate or even enter a appropriate ruling on Norris’ original claims, the TCCA has, in turn, implicitly declined to adopt the findings and conclusions made in the convicting court. Thus any factual findings or legal conclusions with respect to these claims are not entitled to any deference or statutory presumption of correctness under 28 U.S.C. §2254(e)(1). Moreover, these “peculiarities”, in this isolated instance, have created circumstances that “render [Texas’ corrective] process ineffective to protect the rights of [Norris]”. 28 U.S.C. § 2254(b)(1)(B)(ii).This will be discussed more fully infra with respect to Norris’ ineffectiveness of counsel claim.
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summary judgment, and dismissed his remaining federal claims. (III ROA 758-59,
760; RE-3). Moreover, the District Court sua sponte denied Norris a COA (Id. at
759, 760).
The Director filed notice of appeal on April 14, 2015 with respect to the
District Court’s grant of habeas relief as to Norris’ Penry claim. (III ROA 765).
Norris followed suit by filing his timely cross-notice to this Court on April 24,
2015 with respect to the denial of relief as to his remaining federal claims. (Docket
No. 23; RE-2).
The case was then transferred to this Court pursuant to Rule 22(b) of the
Federal Rules of Appellate Procedure.
The Director’s principle brief was initially due on June 2, 2015, but the
filing date was extended up to and including July 2, 2015. The Director did, in
fact, electronically file his principle brief on July 1, 2015.
With respect to his cross-appeal, Norris’ application for COA is due on or
before August 3, 2015.
Unless this Court issues the COA required by 28 U.S.C. §2253(c)(1),
jurisdiction will not lie under 28 U.S.C. §1291.
Aside from the Director’s appeal and the instant application for COA, there
are no other appeals, applications or petitions pending with respect to Norris’
conviction.
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STATEMENT OF FACTS
The Texas Court of Criminal Appeals (“TCCA”) summarized the tragic
events of November 12, 1986, as follows17:
…. The evidence shows Georgia Rollins and [Norris] were romantically involved. [Norris] sometimes babysat Georgia's two-year old son (the baby). On the evening of the offense, Georgia would not allow [Norris] to babysit the baby while Georgia attended church, as they previously had agreed. Georgia took the baby to church with her. [Norris] appeared at the church during the services to get the baby, and had some type of confrontation with Georgia during which a security guard had to intervene. [Norris] became angry, went home without the baby, and took a nap. [Norris] lived a short distance from the mother's apartment.
[Norris] claimed he attempted to contact Georgia by telephone
later that night but she would hang up the phone each time he called. [Norris] took a high-powered deer rifle to Georgia's apartment, which she shared with other members of her family who were home at the time, and shot the baby and Georgia (the mother) at close range inside the mother's bedroom. The baby was killed instantly, and the mother died later that night at a local hospital.
The mother's family members, none of whom were in a position
to see the entirety of the events occurring inside the mother's bedroom, provided testimony that [Norris] appeared outside the mother's bedroom window, broke the glass and fired a shot into her bedroom. The mother was talking to someone on the telephone when [Norris] broke the glass in her bedroom window. [Norris] climbed into the bedroom and said to the mother, ‘I hate to do this Georgia, but I told you. I told you couldn't mess me over. I told you couldn't leave me.’ He then fired several shots in the mother's direction. He left the room, turned the doorknob on another bedroom door in the apartment, and returned to the mother's bedroom. He then told the mother he hated to see her suffer and fired a couple of more shots in her direction. The
17 See Sumner v. Mata, 449 U.S. 539, 546-47 (1981) (factual determinations of state appellate court presumed correct).
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mother's family members testified they heard about five shots but they could not be sure. The mother's sons saw [Norris] leave the mother's bedroom with the rifle. [Norris] said to them, ‘Y'all get out of my way. Let me go out. I done come and do what I come to do. Just let me go out.’
[Norris] returned home, where he lived with his mother, told
her he had killed the mother and the baby, and he was sorry. [Norris’] mother testified [Norris] was sobbing. [Norris] also called his pastor and the police to turn himself in. The police arrested [Norris] shortly thereafter at his home without incident and seized the rifle. Later that night, [Norris] confessed to the police he had killed the mother and the baby, and he was sorry.
Based upon the facts as summarized above, the TCCA further found18 that
“the only evidence raising the transferred intent issue is [Norris’] testimony that he
intended to kill only the mother when he shot the baby”, and that “the jury would
had to have believed [Norris’] testimony to convict him of capital murder under a
transferred intent theory.” 902 S.W.2d at 437 n. 11 (emphasis supplied).
Additional, relevant facts will be set forth as they pertain to the issues being
presented in this application along with their respective arguments. See FED.R.APP.
PROC. 28(a)(6).
18 See Cullen v. Pinholster, 563 U.S. 170, , 131 S.Ct. 1388, 1398 (2011) (review under the AEDPA “limited to the record that was before the state court that adjudicated claim on the merits.”).
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SUMMARY OF ARGUMENT
I. Reasonable jurists would disagree with the District Court’s procedural
ruling holding that Norris failed to exhaust available state court remedies with
respect to his cumulative prosecutorial misconduct claim. This is because Norris
employed language in his state appellate brief associated with pleading a due
process claim under the federal constitution versus the distinct language associated
with pleading the parallel due course of law provision under the state constitution.
Further, the facts Norris pled in his federal petition were well within the
mainstream of federal constitutional litigation with respect to prosecutorial
misconduct claims. In his petition, Norris argued that:
A) The prosecutor improperly attacked Norris with the nature of his prior conviction for murder;
B) The prosecutor improperly cross-examined Norris as to
how much time he actually served in prison for his prior murder conviction, thus placing the operation of the parole laws before the jury during the guilt/innocence phase of trial;
C) The prosecutor accused defense counsel of being
“unethical” and a “liar” in the presence of the jury;
D) The prosecutor accused defense counsel of “extortion” in the presence of the jury;
E) The prosecutor commented on Norris’ right of appeal
before the jury;
F) The prosecutor argued the application of the parole laws during summation at the punishment phase of trial;
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G) The prosecutor argued that if the jury did not impose a death sentence, and Norris killed again, the juror’s would be responsible; and
H) The prosecutor argued that if the jury did not impose a
death sentence upon a defendant such as Norris who had killed two people, no other jury could ever impose a death sentence on a defendant who killed only one person.
The District Court correctly recognized that these facts pleaded a valid
federal claim, but, instead, erroneously found that Norris presented it to the TCCA
only as a state law claim. Thus Norris has stated both a valid claim of the denial of
a constitutional right and has shown that reasonable jurists would disagree with the
District Court’s procedural ruling, and is entitled to a COA.
II. Reasonable jurists throughout the Circuit’s would disagree with the
District Court’s denial of habeas corpus relief with respect to Norris’ ineffective
assistance of counsel claim. This is because the defense attorneys’ acts or
omissions concerning both Norris’ and his mother’s written statements and
testimony went to the very heart of Norris’ defense: To convince the jury that
Keith’s death was an accident. Specifically, trial counsel:
A) Failed to object to and preserve constitutional error concerning Norris’ pretrial out-of-court statement when it was made after a “for or against” warning was given by police officers;
B) Elicited from Norris the fact that he had a prior felony
conviction and had received an eight year sentence, and
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opened the door to otherwise inadmissible facts of his prior murder conviction;
C) Failed to object when the prosecutor elicited from Norris
on cross-examination that he only served two years, nine months and five days of his eight year sentence;
D) Failed to object when the prosecutor had Norris’ mother
read her out-of-court written statement in its entirety in the presence of the jury when the statement was largely inadmissible under state law;
F) Failed to object to the admission of Norris’ mother’s out-
of-court written statement in its entirety when the statement was largely inadmissible and prejudicial to Norris’ defense; and
E) Failed to request limiting instructions with respect to the
jury’s use of Norris’ mother’s out-of-court written statement.
While isolated instances of ineffectiveness are not enough to justify granting
relief, nor are isolated instances of effectiveness sufficient enough to deny relief.
Under Strickland v. Washington, counsel’s representation must be reasonably
effective throughout the course of the proceedings. That did not happen here
concerning the central issues in the case, and Norris should be granted a COA as to
this claim. This is because reasonable jurists throughout the circuit’s have found
strikingly similar instances of ineffectiveness debatable, and have resolved them
differently. Moreover, the issue is not squarely foreclosed by statute, rule, or
authoritative court decision, nor is it lacking a factual basis in the record of the
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case. Thus the issue is deserving of encouragement to proceed further, and a COA
should issue.
III. Reasonable jurists would also disagree with the District Court’s denial
of habeas corpus relief with respect to Norris’ claim that the record evidence is
insufficient to support his capital murder conviction. The TCCA has once again
ensnared itself in an indefensible “logic trap” of its own design. This is because
the TCCA, while finding the evidence sufficient to support Norris’ capital murder
conviction, has made specific factual findings during the course of its sufficiency
of the evidence review on direct appeal that demonstrates the evidence is actually
insufficient when it found that:
A) Norris’ testimony was the “only” testimony raising the issue of transferred intent under state law; and
B) The jury would “had to have believed” Norris’s
testimony to convict him of capital murder under the theory presented to it in the trial court’s charge.
A reviewing court properly applying the Jackson v. Virginia standard,
however, must presume the jury rejected a defendant’s testimony as self-serving.
Under this analysis, it is as if Norris never testified, and, absent his testimony, the
TCCA has unwittingly found specific facts demonstrating that the evidence in this
case is, in fact, legally insufficient under Jackson.
Because reasonable jurists sitting in the Ninth Circuit have found a strikingly
similar fact situation as that present in Norris’ case debatable, and have resolved it
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differently, this issue as well is deserving of encouragement to proceed further, and
a COA should issue.
IV. Reasonable jurists would further disagree with the District Court’s
denial of habeas corpus relief as to the second facet of Norris’ challenge to the
sufficiency of the evidence premised upon the erroneous application of Texas’
transferred intent statute to the facts of his case. This is because the TCCA, in
overruling Norris’ complaint on direct review that the transferred intent statute has
been erroneously applied to the facts of his case and, absent application of the
statute, the evidence is insufficient to sustain his capital murder conviction and
resulting death sentence, has employed a more expansive application of the
transferred intent statute than the Texas Legislature intended. Moreover, the
language employed by the legislature when it drafted the multiple murder
provision of the capital murder statute contains an “anti-transfer element“, thus it
trumps the application of the transferred intent statute to the facts of Norris’ case.
This issue is clearly debatable amongst jurists of reason, and certainly could be
resolved in a different manner, in that the TCCA has reversed itself on, and
individual members of that court have debated amongst themselves, this very
question, and thus the issue deserves encouragement to proceed further.
V. And lastly, reasonable jurists would disagree with the District Court’s
denial of habeas corpus relief as to the third facet of Norris’ challenge to the
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sufficiency of the evidence premised upon the TCCA’s refusal to grant him the
relief to which he is justly and legally entitled while granting such relief to other
similarly situated appellants. At the first opportunity on his appeal of right, Norris
argued that the language employed by the Texas Legislature when it drafted the
multiple murder provision of the capital murder statute trumped application of the
transferred intent statute to the facts of his case, as did the appellant in Roberts v.
State. While granting the appellant in Roberts relief as to his claim, the TCCA has
steadfastly refused to follow its own decision and grant relief to the similarly
situated Norris. In fact, when confronted with Norris’ amended state writ
application, the TCCA shifted gears by altering the factual platform upon which it
was basing its denial of relief by adoption, twelve years after the fact, of non-
authoritative and non-binding concurring opinions containing questionable
evidentiary rationales which were deemed irrelevant by the TCCA until Norris
amended his application to include the due process claim premised on the decision
in Roberts. Thus reasonable jurists would find the District Court’s denial of relief
as to the Kafkaesque procedural and substantive aspects of Norris’ due process
claim debatable or wrong.
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STANDARD OF REVIEW
To appeal the District Court’s denial of his federal habeas petition, Norris
must first obtain a COA from this Court. See 28 U.S.C. §2253(c)(1)(A). The
standard for obtaining a COA is identical to the standard for the former CPC to
appeal. Slack v. McDaniel, 529 U.S. 473, 481-82 (2000) (“Except for substituting
the word ‘constitutional’ for the word ‘federal’, §2253 is a codification of the CPC
standard announced in Barefoot v. Estelle[.]”). A COA should issue if this Court
finds that Norris “has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. §2253(c)(2). In addition, the certificate must “indicate which
specific issue or issues satisfy” this standard. 28 U.S.C. §2253(c)(3).
According to the Supreme Court, Norris need not show a likelihood of
prevailing on the merits to obtain a COA. Miller-El v. Cockrell, 537 U.S. 322, 338
(2003). Rather, a COA should issue if the applicant can show that “the issues are
debatable among jurists of reason; that a court could resolve the issues [in a
different manner]; or that the questions are adequate to deserve encouragement to
proceed further.” Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983) (citations/
internal quotations omitted, emphasis in original). At a minimum, a COA
“generally should indicate that an appeal is not legally frivolous.” Id. at 894; James
v. Cain, 50 F.3d 1327, 1330 (5th Cir. 1995) (same, citing Barefoot). This Court
should grant Norris the COA unless it is “squarely foreclosed by statute, rule, or
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authoritative court decision, or is lacking any factual basis in the record of the
case.” Barefoot, 463 U.S. at 894.
“When the district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claim, [as it did with
respect to Norris’ cumulated prosecutorial misconduct claim,] a COA should issue
when the prisoner shows, at least, that jurists of reason would find it debatable
whether the petitioner states a valid claim of the denial of a constitutional right and
that jurists of reason would find it debatable whether the district court was correct
in its procedural ruling.” Slack v. McDaniel, 529 U.S. at 484.
In either case, any doubts about whether to issue a COA should be resolved
in favor of Norris. Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.), cert. denied, 522
U.S. 963 (1997).
“In a habeas corpus appeal, [this Court] review[s] the district court’s
findings of fact for clear error[19] and its conclusions of law de novo, applying the
same standard to the state court’s decision as did the district court.” Busby v.
Dretke, 359 F.3d 708, 713 (5th Cir. 2004). This Court, therefore, defers to the state
habeas court unless its decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States,” 28 U.S.C. §2254(d)(1), or “was based on an
19 Findings of fact made by a district court are clearly erroneous when this Court, after reviewing the entire evidence, is “left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).
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unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. §2254(d)(2). “Factual determinations by state
courts are presumed correct absent clear and convincing evidence to the contrary.”
Miller-El, 537 U.S. at 339 (citing 28 U.S.C. §2254(e)(1)).
A decision by a state court is “contrary to” clearly established Supreme
Court law if it “applies a rule that contradicts the governing law set forth” in the
Supreme Court’s cases or, if it “confronts a set of facts that are materially
indistinguishable from a decision of [Supreme Court] precedent.” (Terry) Williams
v. Taylor, 529 U.S. 362, 405-06 (2000). A decision by a state court is an
“unreasonable application” of clearly established Supreme Court law “if the state
court identifies the correct governing legal principles … but unreasonably applies
that principle to the facts of the prisoner’s case.” Id., at 413; Gardner v. Johnson,
247 F.3d 551, 560 (5th Cir. 2001). When the federal court’s confidence that a
constitutional claim has been adjudicated by the state court is undermined, relief
should be granted. Cruz v. Miller, 255 F.3d 77, 86 (2nd Cir. 2001).
Applying these principles to the instant application, a COA should issue as to all five of the questions Norris now presents.
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ARGUMENT
I. REASONABLE JURISTS WOULD DISAGREE WITH THE DISTRICT COURT’S FINDING THAT NORRIS FAILED TO EXHAUST AVAILABLE STATE COURT REMEDIES WITH RESPECT TO HIS CUMULATED PROSECUTORIAL MISCONDUCT CLAIM WHEN NORRIS EMPLOYED LANGUAGE IN HIS STATE APPELLATE COURT BRIEF ASSOCIATED WITH PLEADING A FEDERAL DUE PROCESS CLAIM VERSUS THE DISTINCT LANGUAGE OF THE PARALLEL STATE DUE COURSE OF LAW PROVISION.
Relevant Facts:
The District Court specifically found that “Norris raised [his cumulative
prosecutorial misconduct] claim on direct appeal solely as a state law claim”,
citing to pages 49-54 of Norris’ brief on direct appeal to the TCCA, and then
proceeded to summarily conclude that “any federal claim based on cumulative
error is unexhausted and procedurally defaulted.” (II ROA 745; RE-3) (emphasis
supplied). The District Court’s ruling is clearly erroneous as outlined below.
Argument:
Exhaustion: Presentation of Legal Basis of Claim
Norris does not dispute the basic premise that the Texas courts must be
given the initial opportunity to address and correct the deprivation of his federal
constitutional right to a trial free of the prosecutorial misconduct that occurred here.
Castille v. People, 489 U.S. 346, 349 (1989). To satisfy the exhaustion
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requirement codified by Congress in 28 U.S.C. §2254(b) and (c), the state courts
must have been apprised of the same facts and legal theory upon which a federal
habeas petitioner bases his claim. Picard v. Connor, 404 U.S. 270, 276 (1971). It
was not, however, necessary for Norris to cite “book and verse on the federal
constitution.” 404 U.S. at 278 (internal citation and quotations omitted);
need not have cited the Constitution or federal cases), cert. denied, 444 U.S. 856
(1979). The requirement that the state court have been given a reasonable
opportunity to pass on Norris’ federal claim is satisfied if the legal basis of the
claim made in state court was the "substantial equivalent" of that made in the
federal court. Picard, 404 U.S. at 278.
In his direct appeal brief to the TCCA, Norris argued that “[t]he cumulative
effect of the prosecutor’s conduct denied [Norris] due process of law and the fair
trial to which he was constitutionally entitled.” (Appellant’s Brief at 49-50)
(emphasis supplied). In Texas, the parallel provision of the federal due process
clause is termed “due course of the law”. Cf. TEX. CONST., art. 1, sec. 19 (“No
citizen of this State shall be deprived of life, liberty, property, privileges or
immunities, or in any manner disfranchised, except by the due course of the law of
the land.”) (emphasis supplied). Where, as here, there is a distinct difference in the
phraseology between comparable state and federal constitutional provisions, and
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Norris opted to invoke the latter during the direct review process in the TCCA, it
cannot seriously be argued that the TCCA was not fairly presented with or alerted
to the federal nature of his claim.
This distinction, coupled with the fact that Norris alleged a “pattern of facts
well within the mainstream of constitutional litigation”, establishes that Norris
fairly presented this claim to the TCCA. Soffar v. Dretke, 368 F.3d 441, 465, 465-
67 (5th Cir.), amended on reh. in part, 391 F.3d 703 (5th Cir. 2004). Thus, the
District Court’s analysis in this regard was faulty, and reasonable jurists could, in
fact, would, “find it debatable whether the district court was correct in its
procedural ruling.” Slack v. McDaniel, 529 U.S. at 484.
Norris’ Underlying Prosecutorial Misconduct Claim
In his federal petition, Norris clearly pleaded a claim of prosecutorial
misconduct under Darden v. Wainwright, 477 U.S. 168, 181 (1986). During the
course of a one week trial, the prosecutor improperly accused Norris’ defense
attorney of being unethical, dishonest and a liar (1 SF 137-38)20 and of engaging in
extortion (V SF 48); commented on Norris’ appellate rights (2 SF 461-62); proved
and then argued the application of the parole law (2 SF 561-63; 5 SF 87); argued
20 “SF” refers to the court reporter’s transcription of Norris’ state court jury trial, preceded by the volume number and followed by the page number being referenced. This was the record citation convention specified in the Texas Rules of Appellate Procedure at the time of Norris’ trial and automatic appeal, and it will be employed here for clarity of reference.
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that the jurors would be responsible if they spared Norris from the death penalty
and he killed again (5 SF 90); and, argued that if the jury did not impose the death
penalty on Norris, who had killed two people while on parole for murder, no jury
could properly impose a death sentence on a defendant who killed only one person
(5 SF 97-98)21.
Nevertheless, this Court must first take a “quick look” at Norris’ claim to determine whether he has stated a valid claim of the denial of a constitutional right.
Jefferson v. Wellborn, 222 F.3d 286, 289 (7th Cir. 2000). The substantial showing
of the denial of a constitutional right is a “modest standard”. Charles v. Hickman,
228 F.3d 981, 982 n. 1 (9th Cir. 2000). This is because “Congress expressed no
intention to allow trial court procedural error to bar vindication of substantial
constitutional rights on appeal.” Slack v. McDaniel, 529 U.S. at 483.
Reasonable jurists sitting in the Sixth Circuit have found similar allegations,
in a similar evidentiary posture as that of Norris’ case, to have stated a valid claim
of prosecutorial misconduct, and permission to appeal was granted. See Slagle v.
Bagley, 457 F.3d 501 (2006). In Slagle, the misconduct comprised inter alia of a
prosecutorial “assault” on Slagle’s character and denigration of defense
21 The sub-claims occurring during the punishment phase of Norris’ bifurcated state court jury trial were rendered moot due to the District Court’s grant of habeas corpus relief with respect to Norris’ Penry claim. They will nevertheless be discussed here to: (1) Demonstrate the continuity of the prosecutor’s appalling misconduct in securing, at all costs, an unlawful conviction and death sentence, and to (2) Preserve the issue(s) for any further review.
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counsel. 457 F.3d at 513-14. The Sixth Circuit’s opinion further noted the strong
evidentiary posture of the case against Slagle. Id. at 516. Nevertheless a COA was
granted in the case. Id. 512-13.
Moreover, it should be observed that the District Court recognized the
federal constitutional nature of Norris’ accumulated prosecutorial misconduct
claim, but erroneously found that “Norris raised this claim on direct appeal solely
as a state law claim.” (II ROA 745; RE-3). Thus Norris has “state[d] a valid claim
of the denial of a constitutional right”, and a COA should issue as to this claim.
Slack v. McDaniel, 529 U.S. 484.
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II. REASONABLE JURISTS WOULD DISAGREE WITH THE DISTRICT COURT’S DENIAL OF HABEAS CORPUS RELIEF WITH RESPECT TO NORRIS’ CLAIM THAT HE WAS DENIED THE REASONABLY EFFECTIVE ASSISTANCE OF COUNSEL AND A FAIR TRIAL WHEN TRIAL COUNSEL FAILED TO PRESERVE CONSTITUTIONAL ERROR AS TO THE ILLEGALITY OF NORRIS’ WRITTEN STATEMENT AND FAILED TO OBJECT TO THE PROSECUTOR’S IMPROPER CANNIBALIZING CROSS-EXAMINATIONS OF BOTH NORRIS AND HIS MOTHER AS TO THE EVIDENCE THAT KEITH’S DEATH WAS ACCIDENTAL.
Relevant Facts:
During the course of his state court jury trial, Norris’ trial counsel inter alia
(1) failed to object to the admission of Norris’ pretrial out-of-court written
statement, thus waiving constitutional error [21 SF 363]; (2) elicited from Norris
the fact that he had a prior felony conviction, and had received an eight year
sentence [21 SF 516]; (3) failed to object when the prosecutor elicited from Norris
on cross-examination that he only served two years, nine months and five days of
his eight year sentence [21 SF 561, 563]; (4) failed to object when the prosecutor
had Norris’ mother read her out-of-court written statement in its entirety in the
presence of the jury [22 SF 659-668]; (5) failed to object to the admission of
Norris’ mother’s written statement in its entirety [22 SF 668]; and (6) failed to
request limiting instructions with respect to the use of Norris’ mother’s written
statement [Id.].
Further, trial counsel was physically and mentally impaired during Norris’
trial. Mr. Cannon became physically ill and checked into the hospital. (I WHSF 19,
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20). Moreover, during this period, he was under a lot of stress because of “these
capital cases he was trying and all the criticism he was already getting”. (Id. at 19)
(emphasis supplied). Mr. Cannon was also a nervous person, and afraid of losing
court appointments because he was very dependent on them. (Id. at 19, 20-21).
Also, Mr. Cannon was medicated as a result of these physical and mental
conditions during the course of Norris’ trial. (Id. at 21).
In determining that Strickland v. Washington was the appropriate vehicle for
evaluating Norris’ ineffectiveness claim, the District Court observed that “Norris’
and generally tested the State’s case[.]” (III ROA 751; RE-3). The Court then
went on to address Norris’ ineffectiveness claim, granting a heavy measure of
deference to the State’s findings of fact and conclusions of law which were
adopted by the state trial court. (Id. at 751-756). The District Court proceeded as
though the TCCA had actually adjudicated the seven claims presented in Norris’
original application and had explicitly adopted the State’s proposed findings and
conclusions. Throughout its analysis, the District Court found that Norris had not
demonstrated either deficient performance or prejudice with respect to each of his
individual ineffectiveness allegations, and thus concluded that Norris’ claim failed
under Strickland. (III ROA 751-756).
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The TCCA, however, has never actually adjudicated Norris’ ineffective
assistance of counsel claim or adopted the trial court’s findings of fact and
conclusions of law with respect to this claim. In fact, the TCCA has never actually
made a appropriate ruling one way or the other with respect to the claims presented
to it in Norris’ original state writ application.
Standard of Review:
Norris’ ineffective assistance of counsel claim is control by the well-settled
standard announced by the Supreme Court in Strickland v. Washington, 466 U.S.
668 (1984). The Strickland analysis has two basic components: deficient
performance and prejudice. 466 U.S. at 687. In order to prevail on a claim of
ineffectiveness of counsel within the framework established in Strickland, Norris
must first show that his attorney’s performance fell below an “objective standard
of reasonableness”, and second, he must show that there is a “reasonable
probability” that, but for counsel’s unprofessional errors, the outcome of the
proceeding would have been different. Id. at 688, 694.
The “reasonable probability” test is not a stringent one: It is much less
demanding than the preponderance of the evidence standard. Nix v. Whiteside, 475
U.S. 157, 175 (1986). An analysis focusing solely on outcome-determination is
defective. Lockhart v. Fretwell, 506 U.S. 364, 369 (1993). “Even if the odds that
the defendant would have been acquitted had he received effective representation
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appears to be less than fifty percent, prejudice has been established so long as the
chances of acquittal are better than neglible.” Harding v. Sterne, 380 F.3d 1034,
1045 (7th Cir. 2003) (emphasis supplied).
It must be reiterated, however, that “a COA ruling is not the occasion for a ruling on the merits of [Norris’] claim”. Miller-El v. Cockrell, 537 U.S. at 331
(emphasis supplied). “The COA determination under §2253 requires an overview
of the claims in the habeas petition and a general assessment of their merits. Id. at
336 (emphasis supplied). The allegations of Norris’ federal petition must therefore
be accepted as true for the purpose of this proceeding. In re Mooney, 72 F.2d 503,
505 (9th Cir. 1934) (discussing standard for former CPC). To that end, “a COA
does not require a showing that the appeal will succeed.” Miller-El, 537 U.S. at
337. “It is consistent with §2253 that a COA will issue in some instances where
there is no certainty of ultimate relief.” Id.
All Norris must show this Court with respect to his ineffectiveness claim is
that “the issues are debatable among jurists of reason; that a court could resolve the
issues [in a different manner]; or that the questions are adequate to deserve
encouragement to proceed further.” Barefoot v. Estelle, 463 U.S. at 893 n. 4
(citations/internal quotations omitted, emphasis in original).
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State Habeas Proceedings, And Inadequacy of the State’s Post-Conviction Corrective Process:
The TCCA Did Not Adjudicate The Claims Presented
In Norris’ Original Habeas Application
The TCCA never has adjudicated the claims presented to it in Norris’
original state application for writ of habeas corpus.
In his original writ application, Norris presented seven claims. The first
three claims argued that the Texas capital murder statute was void for vagueness as
applied to Norris. Claims four and five argued that trial counsel was ineffective at
both the guilt/innocence and punishment phases of trial. The last two claims
complained that Norris’ death sentence violated his rights to equal protection. See
Writ Application at 2, Ex parte Norris, No. 462,899-A (337th Dist. Ct., Harris Co.,
Tex., June 2, 1997).
In an amended application, Norris contended that the TCCA’s later
abrogation of its holding overruling his point of error challenging the sufficiency
of the evidence denied Norris due process of law. See generally, Amended Writ
Application, Ex parte Norris, No. 462,899-B (337th Dist. Ct., Harris Co., Tex., Jul.
13, 2009).
Two orders/opinions have issued from the TCCA as to the habeas
proceedings conducted in the state courts concerning both Norris’ original and
amended state writ applications: Neither of which indicate an adjudication or, for
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that matter, even a appropriate ruling as to the seven claims presented in Norris’
original application.
In an unpublished order in cause number WR-72,835-01, the TCCA
purported to dismiss Norris’ amended writ application “as an abuse of the writ”
under article 11.071, section 5(c) of the Texas Code of Criminal Procedure. Ex
dissenting, PRICE and HOLCOMB, JJ., joined). There was no mention of the specific
claim addressed in this order aside from a reference that the application “presents
one allegation”22 challenging the validity of the judgment and sentence. Id. No
where in this order is there reference to the seven claims presented to the court in
Norris’ original writ application. See id.
The published opinion in cause number WR-72,835-02, however, squarely
addressed Norris’ contention “that he is entitled to relief, based on Roberts,”
because “the law of transferred intent did not apply to his case.” Ex parte Norris,
390 S.W.3d 338, 339 (Tex. Crim. App. 2012). As in the unpublished order, no
where in this opinion is there so much as a passing reference to the seven claims
22 The amended writ application presented one claim: that Norris was entitled to habeas corpus relief due to the TCCA’s abrogation in Roberts v. State of its holding with respect to the application of the transferred intent statute to the facts of Norris’ capital murder prosecution. See Ex parte Norris, No. WR-72,835-01, slip op. at 2 (WOMACK, J. dissenting, PRICE and HOLCOLM, JJ., joined) (“[T]he issue of the applicant’s guilt … rests on a jury charge that made an improper application of the capital-murder statute to the facts of the case. There is no doubt as to the merits on that issue[.] “)
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presented to the court in Norris’ original writ application nor any language
resembling a ruling on those claims23. See generally, Id.
In light of the above, this Court must determine both whether the TCCA
reasonably determined the facts and whether it reasonably applied clearly
established federal law to these facts. 28 U.S.C. §2254(d) (1) and (2). Here, the
TCCA did neither because it entirely neglected to address the claims presented in
Norris’ original writ application and did not rule on them.
Thus how can it be said that an adjudication of the claims presented in
Norris’ original writ application – specifically, with respect to Norris’ ineffective
assistance of counsel claim - occurred when both the unpublished order and
published opinion addressed the sole claim presented in the amended application,
without mention and to the exclusion of the claims presented in the original
application, and when the TCCA has wholly failed to rule on those claims?
If the petition presents federal claims “raised before the state court but w[ere]
left unresolved, the AEDPA’s strict standards do not apply.” Horton v. Allen, 370
F.3d 75, 80 (1st Cir. 2004). If a state court has not adjudicated the federal claims
on the merits, this Court does not ask whether the decision involved an
23 In his principle brief, the Director has misrepresented the nature of the TCCA’s ruling in WR-72,835-02 as an adjudication of the claims on the merits. Brief of Respondent-Appellant- Cross-Appellee, Norris v. Stephens, USCA5 No. 15-70010, at p. 1 (5th Cir., Jul. 1, 2015) (“The Court of Criminal Appeals denied relief on Norris’s first state habeas application, Ex parte Norris, 390 S.W.3d 338 (Dec. 12, 2012)[.]”); id. at p. 5 (same language). Cf. id. at p. 6 (paragraph beginning “The state habeas application numbered WR-72,835-02 ….”).
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unreasonable determination of the facts or whether the decision involved an
unreasonable application of federal law, but instead reviews the constitutional
questions de novo. Goodrich v. Hall, 448 F.3d 45, 48-49 (1st Cir. 2006).
Nor did the TCCA either Explicitly or Implicitly Adopt The Trial Courts Findings and Conclusions
The State’s Proposed Findings of Fact and Conclusions of Law adopted by
the trial court are not entitled to any deference or presumption of correction under
28 U.S.C. sec. 2254(e)(1). In state habeas matters, the TCCA has the option of
explicitly adopting the trial courts factual findings and legal conclusion, or it can
elect not to do so. Spriggs v. Collins, 993 F.2d 85, 87 (5th Cir. 1993). In this case,
it elected not to do so with respect to the federal claims presented in Norris’
original writ application. Micheaux v. Collins, 944 F.2d 231, 232 (5th Cir. 1991)
(concluding that state habeas courts findings and conclusions did not survive
scrutiny by TCCA because not adopted or incorporated into action of that court).
In this instance, not only were the findings and conclusions not adopted into the
TCCA’s action, the claims presented in Norris’ original writ application were not
even acknowledged nor even ruled upon by that court. Micheaux, supra.
In fact, in its November 2009 order and December 2012 opinion, there is no
mention whatsoever of the claims presented in Norris’ initial state application.
Instead, the TCCA first dismissed and later addressed the sole contention presented
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in Norris’ amended application, to the exclusion of the claims originally presented.
In fact, no order or opinion exists even purporting to rule on the claims presented
in Norris’ original application.
Because the TCCA made no determination of the facts by either implicitly
or explicitly adopting the trial court’s State-sponsored findings of fact and
conclusions of law, and failed to apply Supreme Court precedent in any
meaningful way, this Court must consider Norris’ ineffectiveness of counsel claim
de novo. Hogan v. Gibson, 197 F.3d 1297, 1306 (10th Cir. 1999), cert. denied, 531
U.S. 940 (2000).
Inadequacy Of The State Habeas Process In Protecting Norris’ Constitutional Rights
The “peculiarities” noted by the District Court as detailed throughout this
application, in this isolated case, have operated to create circumstances that “render
[Texas’ corrective] process ineffective to protect the rights of [Norris]”. 28 U.S.C.
§ 2254(b)(1)(B)(ii).
The simple fact of the matter is that both the state trial court and the TCCA
dropped the ball in several significant respects in processing both Norris’ original
and amended habeas applications.
First of all, between the date on which Norris’ original writ application was
filed in the convicting court and the date on which that court actually got around to
conducting the evidentiary hearing in this matter nearly eleven years later, both the
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trial attorney and initial habeas attorney passed away, as well as testimony crucial
to Norris’ federal claims.
While Mr. Cannon’s co-counsel (in title only), Walter E. Boyd, Jr., was
available to testify at the writ hearing, he was “appointed the day of trial—or the
day before, maybe, that the trial itself took place, began [sic].” (I WHSF 16). At
the time of his appointment, he had not “done anything” on the case, and couldn’t
provide any insight as to Mr. Cannon’s trial strategy. (Id. at 17). When asked what
Mr. Cannon’s “strategy was in the trial?” Mr. Boyd could remark that “God only
knows[,]” further commenting that he didn’t know whether Mr. Cannon “ever
understood legal issues that well”. (Id. at 28, 29). Mr. Boyd’s participation in
Norris’s trial was “pretty much” that of an appellate expert: to preserve and
ethically create reversible error. (Id. at 22). As he candidly admitted with respect
to his participation in Norris’ trial, “I didn’t handle anything.”24 (Id. at 21). Cf.
Clark v. Crosby, 335 F.3d 1303, 1311 (11th Cir. 2003) (District court improperly
relied on testimony of appellate counsel at state court habeas hearing when
ineffectiveness of appellate counsel was not at issue in that hearing).
Further, current habeas counsel has been “boxed-in” and rendered ineffectual
by the three ineffective assistance of counsel allegations raised by his deceased
24 In fact, it was Mr. Boyd’s lack of preparedness for trial, and request for an offense report that he claimed he had not been provided with, which prompted the prosecutor’s reference to defense counsel as a “liar” as described supra in Norris’ cumulative prosecutorial misconduct claim.
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predecessor, and prevented from exploring numerous other areas of ineffectiveness
revealed from his reading of the record: And at the very point in Texas’ corrective
process when the state legislature has deemed it most appropriate to raise and make
such a record concerning these additional claims! See Ex parte Torres, 943 S.W.2d
at 474 (“[W]hat we’re attempting to do here is to say, raise everything at one
And last, the TCCA did not adjudicate, must less acknowledge or address, the
seven claims presented in Norris’ original state writ application in its November
2009 order or December 2012. In fact, and at the risk of sounding like a broken
record, it must be reiterated that the TCCA has never even entered a ruling on
those claims.
Bottom line: The TCCA did not accord the trial courts findings of fact and
conclusions of law any deference, nor should a federal court reviewing this matter.
28 U.S.C. §§2254(b)(1)(B)(ii) and (e)(1). Micheaux v. Collins, 944 F.2d at 232.
Argument:
Norris did not receive the reasonably effective assistance of counsel to
which he was entitled under the federal constitution during the state court jury trial
proceedings that lead to his conviction for capital murder and landed him in the
Texas Death House.
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Just as isolated attorney errors are not enough to justify granting relief nor
are isolated instances of effectiveness enough to justify denying relief. Cf., Clark v.
Blackburn, 619 F.2d 431, 434 (5th Cir. 1980). The District Court appears to have
been unclear on this concept when it referenced what might gratuitously be
described as instances of trial counsels effectiveness. However, the right to
counsel under the Constitution envisions continual levels of reasonably effective
assistance throughout the course of the proceedings. Strickland v. Washington, 466
U.S. at 690. See United States v. Garrett, 90 F.3d 210, 212 (7th Cir. 1996) (“The
assistance of counsel, to be fully effective, must be continuous from the time when
the prosecution begins.”) (internal quotations/citation omitted). Unfortunately, the
totality of the circumstances of Norris’ jury trial demonstrate an overall quality of
assistance which was unreasonably defective.
What counsel did, he did poorly, and what he failed to do, made matters
much worse. In this case, the trial lost its “character as a confrontation between
adversaries[]” because trial counsel, in essence, “entirely fail[ed] to subject the
prosecution's case to meaningful adversarial testing” on the only defensive issue
present in Norris’ case. United States v. Cronic, 466 U.S. 648, 656 & 659 (1984).
Norris’ only defensive theory was bottomed on his testimony that he
intended to kill Georgia and not Keith, and that Keith’s death was an accident. The
trial boiled down to a swearing match, with Norris and his mother facing off
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against police investigator’s and an inquisitorial prosecutor concerning improper
statements made to Norris to illegally obtain his out-of-court written statement, as
well as alleged police alterations of both Norris’ and his mother’s written
statements concerning the omission of references to Norris’ statement to his
mother that Keith’s death was a accident: A key issue, in fact, the only arguable
issue at trial.
Norris’ Illegally Obtained Statement and Trial Testimony
In this case, the believability of Norris’ testimony, and excluding his
illegally obtained out-of-court written statement, a crucial piece of evidence for the
State as evidenced by the prosecutor’s misuse of the statement, were central to
Norris’ strategy in avoiding a capital murder conviction and the attendant trip to
the death chamber. Failing that, it was necessary for the defense attorney to at
least preserve the trial courts constitutional error in finding Norris’ out-of-court
statement to be voluntary and admissible for further direct or collateral review.
Reasonable jurists sitting in the Seventh, Eighth and Eleventh Circuits would
disagree with the District Court’s finding of the absence of Strickland prejudice in
failing to properly preserve the constitutional error attendant with the admission
without objection of Norris’ illegally obtained out-of-court written statement. Own
v. United States, 387 F.3d 607 (7th Cir. 2004) (failure to make Forth Amendment
objection); Davis v. Sec’y for Dept. of Corr., 341 F.3d 1310 (11th Cir. 2003)
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(failure to preserve Batson claim); Manning v. Bowersox, 310 F.3d 321 (8th Cir.
2002) (failure to object to constitutionally inadmissible evidence); Freeman v.
Cass, 95 F.3d 636 (8th Cir. 1996) (failure to object and move for mistrial based on
the prosecutor’s improper comments regarding defendant’s exercise of right to
remain silent).
Further, it was well settled in Texas at the time of Norris’ trial that, by taking
the stand, Norris placed his character for veracity in issue, and thus was subject to
impeachment in the same manner as anyone else. Hammet v. State 713 S.W.2d 102,
105 (Tex. Crim. App. 1986). Under the Texas Rules of Criminal Evidence in
effect at the time25 of Norris’ jury trial, the admission of the evidence concerning
the nature of Norris’ prior murder conviction and the amount of time served on that
sentence was determinant on “’whether the danger of undue prejudice outweighs
the probative value of the evidence’”. Montgomery v. State, 810 S.W.2d 372, 377
(Tex. Crim. App. 1990) (quoting with favor Advisory Committee’s Note to FED. R.
EVID. 404(b)). Under such rule, a conviction for murder has no probative value in
assessing the credibility of a testifying defendant because it does not involve
dishonesty or false statement. Theus v. State, 845 S.W.2d 874, 881-882 (Tex. Crim.
App. 1992). And such evidence is highly prejudicial, especially where it is for the
same offense on trial. In fact, that was the primary reason that the prosecutor
25 Deficient performance “is judged by counsel’s conduct under the law existing at the time of the conduct.” Westly v. Johnson, 83 F.3d 714, 723 (5th Cir. 1996).
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contended that it was relevant: For the very reason the Rule’s favor its exclusion.
Thus, presuming that the trial court would have “acted according to law”, trial
counsel should have at least objected to the prosecutor’s improper questioning of
Norris. Strickland v. Washington, 466 U.S. at 694.
Reasonable jurists throughout the Circuit’s have found counsel ineffective in
numerous instances for failing to protect a testifying defendant from onslaughts of
improper prosecutorial questioning similar to that which occurred here. See Wilson
v. Mazzuca, 570 F.3d 490, 502 (2nd Cir. 2009) (counsel elicited harmful testimony, opened door to harmful identification, and opened door to use of prior conviction);
Washington v. Hofbaur, 228 F.3d 689 (6th Cir. 2000) (failure to object to
prosecutor’s improperly emphasizing evidence of defendant’s bad character during
closing argument); Dubin v. Smith, 197 F.3d 390 (9th Cir. 2000) (failure to object
to prosecutor’s inflammatory statement); Croats v. Smith, 73 F.3d 861 (9th Cir.
1996) (failure to object to prosecutor’s question about allegedly untrue statements
made by the defendant); Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987)
(erroneous legal advice concerning possible use of prior conviction if defendant
testified); Wolf v. United States, 787 F.2d 1094 (7th Cir. 1986) (failure to object to
prosecutor’s improper cross-examination of defendant and failure to request jury
instructions). See also, Stone v. State, 17 S.W.3d 348, 352 (Tex.App.–Corpus
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Christi, 2000, pet. ref’d) (counsel ineffective for eliciting evidence of prior murder
conviction and amount of time spent in the penitentiary).
Thus, jurists of reason could surely disagree with the District Court’s
assessment of Norris’ ineffectiveness claim in this respect. And such jurists could
further find that another court would resolve the claim differently. In this light, the
question regarding counsel’s ineffectiveness is adequate to deserve encouragement
to proceed further, and a COA should issue. Miller-El v. Cockrell, 537 U.S. at 338.
Norris’ Mother’s Statement and Testimony
With respect to Mary Ellen Norris’ testimony, at every attempt by the
prosecutor to impeach Norris’ mother with her written statement, she either
admitted her trial testimony was inconsistent with her written statement, or that her
statement was silent with regard to Norris’ excited statement that the shooting of
Keith was an accident, explaining that the police must have omitted the reference.
Nevertheless, trial counsel failed to object to the absence of the proper predicate
for the admission of Norris’ mother’s entire statement under state law. Cf., Moore
v. State, 652 S.W.2d 411, 413 (Tex. Crim. App. 1983) with Goode, Wellborne and
Sharlot, Guide to the Texas Rules of Evidence: Civil and Criminal, sec. 613.4 (Tex.
Prac. 1988) (Texas adheres to and maintains its well-settled common-law rule that
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a foundation must be laid before impeaching a witness with prior inconsistent
statements).
Further, where, as here, the prior inconsistent statement is in writing, and the
witness admits making such statement, the instrument itself is inadmissible.
McGary v. State, 750 S.W.2d 782, 787 (Tex. Crim. App. 1988) (“The fact that a
statement contains portions which might impeach a witness will not furnish the
proper predicate for admission of the entire statement.”). See Mello v. DiPaulo,
counsel’s failure to object … by pointing to yet another misstep trial counsel
made”.).
Moreover, and without objection from the defense attorney, the method of
cross-examination utilized by the prosecutor was highly improper in that it injected
into evidence a considerable portion of the largely inadmissible written statement
of Norris’ mother. Huff v. State, 576 S.W.2d 645, 647-648 (Tex. Crim. App. 1979).
“When an instrument is read (into the record), it is introduced just as if the
prosecutor had the instrument marked and introduced into evidence as an exhibit.”
Id. Mello v. DiPaulo, 295 F.3d at 148.
And last, a limiting instruction should have been given to the jury, either
when Norris’ mother’s statement was received in evidence or in the Court’s
Charge, that this evidence was admitted only for the purpose of impeachment, was
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without probative value, and should not be used in determining Norris’ guilt or
innocence. TEX.R.CRIM.EVID. 105 (West Pamp. 1988); Goodman v. State, 665
S.W.2d 788, 792 (Tex. Crim. App. 1984). And it was counsel’s duty to request
that limiting instruction. Plante v. State, 692 S.W.2d 487, 493 (Tex. Crim. App.
1985).
Once again, reasonable jurists could, and probably would, disagree with the
District Court’s assessment of this aspect of Norris’ ineffective assistance of
counsel claim. Cf. Flores v. Demskie, 215 F.3d 293 (2nd Cir. 2000) (waiver of state
law claim that would have resulted in reversal). Presuming, as this Court must,
that the trial court would have “acted according to [state] law”, trial counsel should
have objected to the prosecutor having Norris’ mother read her statement in the
presence of the jury and actually introducing the statement into evidence, as well
as the absence of limiting instructions with respect to her statement. Strickland v.
Washington, 466 U.S. at 694.
Lastly, the trial attorney became physically ill during Norris’ trial, and was
hospitalized and taking medication. Further, the attorney was a nervous person,
under stress because of “these capital cases he was trying and all the criticism he
was already getting” from numerous allegations of ineffectiveness. He was also
afraid of losing court appointments because he was very dependent on them.
Reasonable jurists in the Second Circuit have entertained appeals where a pre-
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AEDPA CPC to appeal was issued, and have held that a defendant who was
represented in a murder trial by a seventy-one year old man suffering from
multiple physical ailments, including “black outs”, was entitled to federal habeas
corpus relief. See Bellamy v. Cogdell, 952 F.2d 626, 631 (2nd Cir. 1991).
Thus, considering the individual aspects of his ineffectiveness claim in toto as is required under Strickland’s totality of the circumstances analysis, a COA
should issue as to the procedural and substantive aspects of Norris’ ineffective
assistance of counsel claim as well. Miller-El v. Cockrell, 537 U.S. at 338. This is
especially so when Norris’ claim is not “squarely foreclosed by statute, rule, or
authoritative court decision, or is lacking any factual basis in the record of the
case.” Barefoot, 463 U.S. at 894.
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III. REASONABLE JURISTS WOULD DISAGREE WITH THE DISTRICT COURT’S DENIAL OF HABEAS CORPUS RELIEF AS TO NORRIS’ CLAIM THAT THE “RECORD EVIDENCE” WITH RESPECT TO HIS CAPITAL MURDER CONVICTION IS LEGALLY INSUFFICIENT BECAUSE THE TEXAS COURT OF CRIMINAL APPEALS SPECIFICALLY FOUND THAT THE ONLY EVIDENCE RAISING AND SUPPORTING A CONVICTION UNDER THE STATE’S TRANSFERRED INTENT THEORY WAS NORRIS’ TESTIMONY, AND, UNDER JACKSON V. VIRGINIA, A REVIEWING COURT MUST INVOKE A PRESUMPTION THAT A JURY REJECTED THE DEFENDANT’S TESTIMONY AS SELF-SERVING.
Relevant Facts:
The District Court, in its analysis of Norris’ challenge to the sufficiency of
the evidence, duly performed its rote judicial function under the AEDPA, and
accorded near total deference to the state court’s findings on direct review. (III
ROA 731-735). The Court reviewed the TCCA’s findings and conclusions on
Norris’ direct appeal, and even went so far as to review the two concurring
opinions proposing alternative rationales to support the TCCA’s general finding of
sufficiency. (Id. at 732-733). Finally, in summing up its analysis and summarily
denying relief to Norris on his federal claims, the Court concluded that “the
TCCA’s conclusion that the evidence was sufficient is clearly reasonable, and is
thus entitled to deference under the AEDPA.” (Id. at 735) (emphasis supplied).
Ironically, the single most relevant set of factual findings conclusive to a
determination of the sufficiency of the evidence with respect to Norris’ guilt under
the transferred intent statute that the District Court did not note and defer to under
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the AEDPA in its review of the state court records and opinion on appeal were
specific findings by the TCCA that, in toto, demonstrate Norris’ legal innocence of
the offense in which he has been convicted and sentenced to death: Specifically,
that “the only evidence raising the transferred intent issue is [Norris’] testimony
that he intended to kill only the mother when he shot the baby”, and that “the jury
would had to have believed [Norris’] testimony to convict him of capital murder
under a transferred intent theory.” Norris v. State, 902 S.W.2d at 437 n. 11 (RE-7)
(emphasis supplied).
Standard of Review:
Jackson v. Virginia, 443 U.S. 307 (1979) controls resolution of Norris’
challenge to the legal sufficiency of the evidence to support his conviction for
capital murder. Under Jackson, the “relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.”
443 U.S. at 319 (original emphasis). Inherent in Jackson when viewing the
evidence in this light is the presumption that the jury rejected the defendant’s
testimony as self-serving. Id. at 325. In nearly all cases, this type of challenge is
resolved on the “written record” of the state trial court proceedings. Id. at 322.
The sufficiency of the evidence is a mixed question of law and fact. Gomez v.
Acevedo, 106 F.3d 192, 198 (7th Cir. 1997). The district court’s findings of fact are
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reviewed for clear error and its conclusions of law de novo, applying the same
standard to the state court’s decision as did the district court. Busby v. Dretke, 359
F.3d at 713.
Moreover, the Jackson standard has been the law in Texas for well over 25
years when convicted defendants complain that both the state and federal
constitutional threshold of the minimum amount of evidence necessary to support
their criminal convictions has not been met, and the TCCA is well-versed in its
application. See Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989).
Argument:
The TCCA’s Specific Factual Findings
Demonstrate That The Record Evidence Is Legally Insufficient Under Jackson v. Virginia
Record evidence is the name of the game under Jackson, with a heavy
measure of deference given to specific dispositive state court fact-findings. As to
this facet of Norris’ claim, the Court has been spared the onerous chore of
analyzing and interpreting the oblique application of Texas’ transferred intent law
to the facts of Norris’ case. The TCCA, “[i]n its capacity as final arbiter of the
criminal law in Texas” 26 , has already implicitly resolved the thorny questions
surrounding application of the statute sufficiently for this Court’s review under the
analysis mandated under Jackson in that it has specifically found that Norris’
n. 11 (emphasis supplied). It observed that “[t]he prosecutor used the
discrepancies between the forensic evidence and [Norris’] testimony to argue that
[Norris] was lying about accidentally killing the baby.” Id. (emphasis supplied). It
further noted that the prosecutor attacked Norris’ testimony as self-serving by
emphasizing “the transferred intent instruction during closing arguments and
argued that even if the jury believed everything [Norris] said he still would be
guilty of capital murder based on the transferred intent instruction.” Id. (emphasis
supplied).
The Director cannot have it both ways under Jackson. In evaluating the
record evidence, and “viewing th[at] evidence in the light most favorable to the
prosecution”, Norris’ testimony must be discounted as self serving. Jackson, 443
U.S. at 319, 325. As the TCCA found, the prosecutor recognized the self-serving
nature of Norris’ testimony, and vigorously attacked that testimony in her
argument. For record review purposes, and because of its self-serving nature,
under a proper application of Jackson, it is as though Norris never testified.
The TCCA itself, however, delivered the coup de grace to the Director’s
argument for a finding of sufficiency when it specifically found that “the jury
would had to have believed [Norris’] testimony to convict him of capital murder
under a transferred intent theory.” Norris v. State, 902 S.W.2d at 437 n. 11.
Therefore, in order to deny Norris relief, a reviewing court must presume the jury
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accepted rather than rejected Norris’ self-serving testimony, the “only” evidence
supporting a conviction for capital murder under the State’s theory of transferred
intent. This, however, would invade the province of the jury’s decision. And this
is not permitted under the Jackson analysis.
The TCCA has made specific factual findings while reviewing the record
evidence of its inferior trial court in this case. That court has found: (1) Norris’
testimony to be the “only” evidence raising the transferred intent issue; and (2) the
jury “would had to have believed” this testimony in order to convict Norris of
capital murder. Such findings are accorded a strong statutory presumption of
correctness in this proceeding. 28 U.S.C. §2254(e)(1). See also Sumner v. Mata,
449 U.S. at 546-47 (factual determinations of state appellate court presumed
correct). On the other hand, under the Jackson analysis, it must be presumed the
fact-finder rejected Norris’ testimony. Thus, as the TCCA specifically found,
absent Norris’ testimony, there is no evidence to sustain his conviction for capital
murder under the transferred intent theory submitted to the jury, and the evidence
is legally insufficient under Jackson v. Virginia.
The TCCA’s relevant factual findings made during the course of deciding
Norris’ claim are “presumed to be correct.” 28 U.S.C. §2254(e)(1); Sumner v.
Mata, 449 U.S. at 546-47. Under the AEDPA, an “’unreasonable determination of
the facts’” occurs when a state court’s findings have been shown to be incorrect by
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“’clear and convincing evidence’”. Wiggins v. Smith, 539 U.S. 510, 528 (2003)
(quoting 28 U.S.C. §2254(d)(2) and (e)(1)). Moreover, a decision by a state court
is an “unreasonable application” of clearly established Supreme Court law “if the
state court identifies the correct governing legal principles…but unreasonably
applies that principle to the facts of the prisoner’s case.” (Terry) Williams v. Taylor,
529 U.S. at 413.
In light of these principles, what could be more unreasonable than for the
TCCA to identify specific dispositive facts 27 entitling Norris to habeas corpus
relief under the Jackson v. Virginia standard, and then fail to apply the Jackson
principles to those facts?28
Reasonable jurists would find the District Court’s analysis debatable or
wrong when it failed to separate the wheat from the chafe when reviewing Norris’
insufficient evidence claim under Jackson v. Virginia.
The District Court blindly rubberstamped the TCCA’s findings and
conclusions to the very exclusion of specific dispositive factual findings made by
the TCCA during the direct review process establishing that the evidence was
27 Cf. Nunes v. Mueller, 350 F.3d 1045, 1055-56 (9th Cir. 2003) (unreasonable determination of the facts where state court finding made inferences against petitioner where equally valid inferences could be made in his favor).
28 See Cotto v. Herbst, 331 F.3d 217, 248 (2nd Cir. 2003) (“the ‘objectively unreasonable’ standard of sec. 2254(d)(1) means that a habeas petitioner must identify ‘some increment of incorrectness beyond error’ in order to obtain habeas relief”) (internal citations/quotations omitted).
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legally insufficient to support Norris’ capital murder conviction under the theory
presented to the jury. It totally ignored specific factual findings that went to the
very elements, the heart if you will, of the analysis required by clearly established
federal law as determined by the Supreme Court in Jackson v. Virginia when it
determined that Norris was not entitled to relief on his federal habeas claim.
Moreover, it sub silentio adopted alternative rationales for finding the
evidence sufficient to support Norris’ capital murder conviction as contained in the
concurring opinions. These concurring opinions, as well as the questionable
alternative evidentiary rationales contained in them, have no authoritative force or
validity because they have never been adopted by a majority of the TCCA as
opinions for that court. Ex parte Smith, 977 S.W.2d 610, 611 at n. 4 (Tex. Crim.
App. 1998) (Concurring opinions joined by a majority of the TCCA “may be
regarded as an opinion for the Court.”). In fact, the two concurring opinions could
not muster up even a single member of the Court to join them in their respective
opinions or to adopt their reasoning, and yet the District Court blindly deferred to
them under aegis of the AEDPA. See United States v. United States Gypsum Co.,
333 U.S. at 395 (finding of fact made by district court clearly erroneous when
reviewing court, after viewing entire evidence, is “left with the definite and firm
conviction that a mistake has been committed.”).
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To paraphrase the Ninth Circuit in a case with a very similar fact situation as
that presented here:
Perhaps some would say that [Norris’s] innocence is a mere technicality, but that would miss the point. In a society devoted to the rule of law, the difference between violating or not violating a criminal statute cannot be shrugged aside as a minor detail.
Goldyn v. Hayes, 436 F.3d 1104, 1108 (2006).
This Court is authorized to grant a COA without need for additional briefing,
and remand this case to the District Court for appropriate action in that forum. 28
U.S.C. §2243 (“The court shall summarily hear and determine the facts, and
dispose of the matter as law and justice require.”) (emphasis supplied). Cf. eg.,
Boruch v. Quarterman, USCA5 No. 07-20554, at p. 2 (5th Cir. Nov. 30, 2007)
(granting COA and remanding to the district court without additional briefing). In
any event, a COA is clearly in order given that the jurists in Goldyn v. Hayes,
supra, would debate whether this claim should have been resolved in a different
manner, and would further find the issue deserves encouragement to proceed
further. Miller-El v. Cockrell, 537 U.S. at 336.
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IV. REASONABLE JURISTS WOULD FURTHER DISAGREE WITH THE DISTRICT COURT’S DENIAL OF HABEAS CORPUS RELIEF WITH RESPECT TO NORRIS’ CLAIM THAT THE ERRONEOUS APPLICATION OF TEXAS’ TRANSFERRED INTENT STATUTE TO THE FACTS OF HIS CASE DENIED HIM DUE PROCESS OF LAW BECAUSE IT PERMITTED THE JURY TO CONVICT NORRIS OF CAPITAL MURDER UNDER AN IMPERMISSIBLE LEGAL THEORY.
Relevant Facts:
The indictment alleged, in pertinent part, that Norris did “intentionally cause
the death of Keith Rollins and Georgia Rollins, by shooting them with a deadly
weapon, namely, a firearm, during the same criminal transaction”. (Tr. 10; RE-5).
The evidence demonstrated that Norris fired a shot with a rifle through Georgia’s
bedroom window with the intent to kill her. Georgia was holding Keith in her
arms and the shot went through Keith’s head, killing him instantly, and then struck
Georgia. The assistant medical examiner testified that a likely scenario was that
Norris fired at Georgia as she held Keith to her chest. (2 SF 484-85).
At the guilt-innocence phase, the trial court instructed the jury on the law of
transferred intent as it applied to the death of Keith. (Tr. 145).
Norris objected to that portion of the court’s charge which applied the law of
transferred intent, contending that a defendant must have the specific intent to kill
each victim to be guilty of capital murder. (4 SF 700-03). Norris also objected on
the basis that the charge on transferred intent authorized conviction on a theory not
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alleged in the indictment, denying him fair notice. (4 SF 704-05). The trial court
overruled both objections. (4 SF 704, 708).
Argument:
The Texas legislature has determined that a criminal defendant cannot be
convicted of capital murder under §19.03(a)(6)s multiple murder theory unless s/he
had the specific intent to kill both persons alleged in the indictment. By using the
term “intentionally” alone in §19.03(a)(2), it clearly intended to permit conviction
for capital murder and a death sentence only when a defendant acted with the
highest degree of culpability.
In elevating what formerly would have been “knowingly and intentional”
murder under section 19.02(a)(1) into a capital offense due to the death of more
than one person, the legislature must have intended that a defendant be eligible for
the death penalty for multiple murder only where s/he specifically intended to kill
both victims. Any other construction would be inconsistent with the plain
language of the capital murder statute. Connecticut National Bank v. Georgia, 503
U.S. 249, 253-254 (1992) (It is presumed that a legislature “says in a statute what it
means and means what it says.”).
Norris made this very argument to the TCCA on his automatic direct appeal,
and that court overruled his contentions; instead, employing a more expansive
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application of Texas’ transferred intent statute than the legislature intended when it
drafted the multiple murder provision of the capital murder statute.
In a precursor to its decision in Roberts v. State29, the TCCA implicitly
recognized that the plain language of the capital murder statute trumped
application of the transferred intent statute to that particular offense. Thompson v.
transference of culpable mental states] may be overridden by language defining a
particular offense, as in the offense of capital murder ….”) (emphasis supplied).
The Court observed that “the offense of capital murder contains what appears to be
a sort of anti-transfer element: the offense specifically requires that murder be
committed ‘as defined under Section 19.02(b)(1),’ the provision proscribing
intentional and knowing murders.” Id. at 799-800 (emphasis in original and
supplied). Nevertheless, the TCCA’s later decision in Roberts removed all doubt
as to the inapplicability of the transferred intent statute to the facts of Norris’ case.
The evidence was insufficient to demonstrate that Norris specifically
intended to kill Keith as alleged in the indictment. As Norris argued to the TCCA
on direct review, and as that court’s later decision in Thompson and Roberts make
clear, the trial court should not have instructed the jury on transferred intent as that
doctrine does not apply to a capital murder prosecution under section 19.03(a)(6)
29 273 S.W.3d 322 (Tex. Crim. App. 2008).
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where the defendant intended to kill one victim and happened to kill two. Absent
the erroneous instruction on transferred intent, the evidence is insufficient to
sustain Norris’ capital murder conviction because “after viewing the evidence in
light most favorable to the prosecution, [no] rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. at 319 (original emphasis).
Thus a COA should issue as this claim as well because, especially when
considered with Norris’ insufficiency argument as outlined in Question IV, supra,
reasonable jurists would find it debatable whether this aspect of Norris’ challenge
to the sufficiency of the evidence could be resolved differently, and the question
deserves encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. at 336.
In fact, three reasonable jurists sitting on the TCCA “would grant relief from the
judgment of guilt and remand [Norris] to the custody of the sheriff for a new …
proceedings under the indictment.” Ex parte Norris, WR-72,835-01, slip op. at 4
(WOMACK, J., dissenting, PRICE and HOLCOMB, JJ., joined) (RE-10)
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V. AND LASTLY, REASONABLE JURISTS WOULD DISAGREE WITH THE DISTRICT COURT’S DENIAL OF HABEAS CORPUS RELIEF WITH RESPECT TO NORRIS’ CLAIM THAT HE WAS DENIED DUE PROCESS OF LAW WHEN THE TEXAS COURT OF CRIMINAL APPEALS LATER REFUSED ON STATE HABEAS REVIEW TO APPLY AND GRANT RELIEF BASED ON ITS DECISION IN ROBERTS V. STATE, WHICH OVERTURNED THE HOLDING IN NORRIS’ OWN CASE AND UPSET TEXAS’ DOCTRINE OF TRANSFERRED INTENT AS APPLIED TO CAPITAL MURDER PROSECUTIONS.
Relevant Facts:
In his direct appeal to the TCCA, Norris argued that the doctrine of
transferred intent did not apply to prosecutions for capital murder of two victims
under (then) section 19.03(a)(6) of the Penal Code. Appellant’s Brief, Norris v.
State, No. 69,856, at p. 12 (Tex. Crim. App., Nov. 29, 1988). He complained that,
absent application of the transferred intent instruction as contained in the court’s
charge to the facts of his case, the evidence was insufficient to prove that he
possessed the specific intent to kill Keith. Id. The TCCA nevertheless overruled
Norris’ challenge to the sufficiency of the evidence.
The decision in Norris v. State produced two concurring opinions based on
differing rationales. Judge Clinton opined that the evidence supported a finding
that Norris formulated two separate intents, and that the State relied on not one, but
two separate intents to convict Norris of multiple murders. 902 S.W.2d at 447.
Judge Baird concluded that the majority’s discussion was unnecessary because the
evidence did not support Norris’ theory of single intent, and that it was “merely
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obiter dictum.” 902 S.W.2d at 452. However, neither Judge Baird’s or Clinton’s
opinions were joined by a majority of the TCCA.30
Twelve years later, in Thompson v. State, the TCCA acknowledged that “the
offense of capital murder contains what appears to be a sort of anti-transfer
element: the offense specifically requires that murder be committed ‘as defined
under Section 19.02(b)(1),’ the provision proscribing intentional and knowing
murders.” 236 S.W.3d at 799-800 (emphasis in original and supplied). The Court
finally acknowledged what Norris had argued to it from day one: That
“authorization [of the transference of culpable mental states] may be overridden by
language defining a particular offense, as in the offense of capital murder ….” 236
S.W.3d at 800. While the issue at bar was not squarely addressed in Thompson, if
there was any doubt as to the propriety of applying the transferred intent statute to
the facts of Norris’ capital murder prosecution, it was removed when the TCCA
decided Roberts over a year later when that court overruled the holding in Norris’
own case.
In Roberts v. State, the TCCA reversed the decision in Norris v. State to the
extent that Norris could be understood to allow transferred intent to support a
30 Again, only concurring opinions joined by a majority of the TCCA “may be regarded as an opinion for the Court.” Ex parte Smith, 977 S.W.2d at 611 n. 4. The concurring judge’s in this instance could not muster up even a single member of the Court to join them in their respective opinions or to adopt their reasoning in any fashion until 13 years later: When confronted with Norris’ amended writ application.
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multiple murder theory of capital murder when the evidence showed only a single
intent. 273 S.W.3d at 330-331. In discussing its decision in Norris, the TCCA
observed that:
The Norris Court acknowledged that capital murder pursuant [sic] TEX. PENAL CODE §19.03(a)(6)(A) requires two or more intentional or knowing murders. Its analysis of the application of §6.04(b)(2) to §19.03(a)(6)(A) is one short paragraph.
The plain language of Section 6.04(b)(2) evinces a
legislative policy to make a defendant, who, like appellant, acts with the specific intent to kill, criminally responsible for the consequences of his voluntary acts. And, this Court has held Section 6.04(b)(2) can be applied to establish a Section 19.02(a)(1) murder. [citation omitted]. Therefore, since Section 19.03(a)(6)(A) incorporates two or more Section 19.02(a)(1) murders[,] and Section 6.04(b)(2) can be used to established a Section 19.02(a)(1) murder, and in light of the legislative policy underlying Section 6.04(b)(2) and the statutory first special issue, we hold Section 6.04(b)(2) applies to a Section 19.03(a)(6)(A) capital murder prosecution.
Id. at 437-38.
Roberts, 273 S.W.3d at 330.
The TCCA recognized the internal conflict present in this analysis in finding
that “[t]his conclusion is at odds with the Norris Court’s recognition that, for
capital murder pursuant to Section 19.03(a)(6)(A), each death must be intentional
or knowing – there must be a discrete ‘specific intent to kill’ as to each death.”
Roberts, 273 S.W.3d at 330 (emphasis supplied). In overruling the analysis
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employed to find the evidence sufficient to sustain Norris’ capital murder
conviction in his direct appeal, the TCCA concluded:
…. This is the fallacy of Norris; it permits the intent to cause one intentional or knowing death to support two deaths, one intentional and knowing, the other unintentional. We overrule Norris to the extent that it allows such use.
273 S.W.3d at 331.
When Norris presented his claim premised on this “fallacy” in his amended
writ application, the TCCA once again denied relief. In doing so, the court merely
observed that “we did not invalidate the concurring opinion’ separate rationale for
upholding [Norris’] conviction”. Ex parte Norris, 390 S.W.3d 338, 341 (Tex.Crim.
App. 2012). In ”re-determining” the facts it had already found in Norris’ direct
appeal 31 , the TCCA attempted to reason, based on Judge Clinton’s concurring
opinion, that “[Norris’] separate instances of conduct occurred very close in time
but were still sufficiently separate to involve separate intents.” Id. No reference or
reliance had been placed on either of the concurring opinions, or the rationales
contained in them, until Norris amended his original writ application and squarely
argued that, under Roberts, he was entitled to relief because his conviction and
resulting death sentence “rests on a jury charge that made an improper application
of the capital-murder statute to the facts of his case.” Ex parte Norris, WR-72,825-
31 But see, Cullen v. Pinholster, 563 U.S. at , 131 S.Ct. at 1398 (2011) (review under the AEDPA “limited to the record that was before the state court that adjudicated claim on the merits.”) (emphasis supplied).
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01, slip op. at 2 (WOMACK, J., dissenting, PRICE and HOLCOMB, JJ., joined) (RE-
10).
The District Court purported to analyze the decision in Roberts v. State, and
reviewed the TCCA’s application of its decision in Roberts to the facts of Norris’
case. (Id. at 733-734). Although the TCCA’s “evaluation” of Norris’ claim totally
ignored and was in conflict with its earlier findings as to the factual platform of
Norris’ claim, and was further in conflict with its own holdings in both Thompson
and Roberts, the District Court nevertheless denied relief. In denying habeas relief
to Norris on his federal claim, the District Court merely concluded that “the
TCCA’s conclusion that the evidence was sufficient is clearly reasonable, and is
thus entitled to deference under the AEDPA.” (Id. at 735) (emphasis supplied).
Argument:
The TCCA’s decision rejecting Norris’ amended claim premised on Roberts
“reeks of afterthought.” Miller-El v. Dretke, 545 U.S. 231, 246 (2005). In
declining to grant Norris the relief to which he is entitled concerning his multi-
faceted challenges to the sufficiency of the evidence, and the effect of the Roberts
decision with respect to those claims, the TCCA has entangled itself in a web of its
own making, and, in the process, has turned the fact-finding process and doctrine
of stare decisis in that court into a sham.
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When presented with Norris’ argument on direct review that the capital
murder statute trumped application of the doctrine of transferred intent to the facts
of his case, the TCCA fell back on what it characterized as “a legislative policy [as
set forth in §6.04(b)(2)] to make a defendant, who, like [Norris], acts with the
specific intent to kill, criminally responsible for the consequences of his voluntary
acts.” Norris v. State, 902 S.W.2d at 437 (RE-7). The court then, in its own words,
“decline[d] to frustrate the legislative intent in Section 6.04(b)(2)”, and overruled
Norris’ points of error. Id. at 438.
However, once the TCCA delivered its opinion in Roberts, and Norris
diligently re-argued the claim presented at the first opportunity in his appeal as of
right - that absent the improper application of the transferred intent doctrine to the
facts of his case, the evidence is insufficient - the script flipped.
When confronted with Norris’ amended writ application, the TCCA shifted
gears and adopted Judge Clinton’s concurring analysis that the evidence supported
a finding that Norris formulated two separate intents, and that the State relied on
not one, but two separate intents to convict Norris of multiple murders. 902 S.W.2d
at 447 (RE- 7). However, this statement ignores the fact that “it appears the State
preferred that the jury proceed to verdict on a theory” of transferred intent.
Johnson v. State, 739 S.W.2d 299, 302 (Tex. Crim. App. 1987). Nevertheless,
later opinions emanating from the TCCA recognized that “it is clear that this court
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already has considered the issue of the [Norris’] guilt and decided that it rests on a
jury charge that made an improper application of the capital-murder statute to the
facts of the case.” Ex parte Norris, WR-72,835-01, slip op. at 2 . In fact, three
judges sitting on the TCCA stated that “for the reasons we already have considered
and stated in his favor in the Roberts decision last year[,]” they “would grant
relief”. Id. at 4.
The TCCA has reformulated the factual platform upon which it is denying
Norris relief. It has validated, twelve years after the fact, non-authoritative, non-
binding concurring opinions containing questionable evidentiary rationales that do
not support a finding of sufficiency. In the face of clear and convincing evidence
to the contrary, it is doing this despite the fact that the court itself has found facts
demonstrating that the evidence is legally insufficient to sustain Norris’ capital
murder conviction and resulting trip to the Texas death chamber.
Moreover, it has steadfastly refused to extend even the minimum deference
usually accorded to its own legislature’s intent when drafting its laws, and has
adamantly refused to properly apply Roberts to the facts of Norris’ case
Norris, like the appellant in Roberts, initially presented his claim to the
TCCA on direct appeal. The TCCA erroneously denied Norris appellate relief,
while later granting relief to the similarly situated appellant in Roberts. After the
TCCA made its explicitly candid observation in Thompson, and rendered its
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decision in Roberts, Norris once again raised this precise argument, only with a
new twist: Norris argued that he had been denied the same process as that
accorded the similarly situated appellant in Roberts. See Ex parte Hood, 304
similar claims should be treated similarly.”). But once again, the TCCA denied
relief.
The dissenting judges 32 found that “this court [the TCCA] already has
considered the issue of [Norris’] guilt and decided that it rests on a jury charge that
made an improper application of the capital-murder statute to the facts of the case.”
Ex parte Norris, No. WR-72,835-01, slip op. at 2 (Tex. Crim. App., Nov. 9, 2009)
(WOMACK, J., dissenting, PRICE and HOLCOMB, JJ., joined). In fact, these three
judges “would grant relief” under Roberts. The only question in these judge’s
minds as to the merits of Norris’ claim appears to have been that the amended
“application d[id] not seek relief from the verdict of guilt.” Norris, at 3.
The real question, however, is “Why hasn’t the TCCA granted Norris the
relief to which he is justly entitled under both state and federal law?”
“[N]o rational judicial system would have upheld [Norris’] conviction.” Goldyn v. Hayes, 436 F.3d at 1109. “Such an arbitrary disregard of [Norris’] right
32 Much has been made of the secondardy opinions of the TCCA in this case. Norris’ claim, however, does not rise or fall upon such opinions, but upon the facts of his case and a proper application of the law.
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to liberty is a denial of due process of law.” Hicks v. Oklahoma, 447 U.S. 343, 346
(1980). Given the Kafkaesque nature of the proceedings and rulings in Norris’
case, this Court must be left with the “definite and firm conviction that a mistake
has been committed”33, and a COA should issue to further explore this claim as
well. Miller-El, 537 U.S. at 336.
33 United States v. United States Gypsum Co., 333 U.S. at 395.
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CONCLUSION
This is a terrible crime. Norris shot and killed a mother and her two-year-
old baby with other family members present in the home. The people of the State
of Texas were understandably outraged and justified in their demands to law
enforcement and prosecuting authorities to seek out a conviction and secure the
severest possible penalty that could be imposed under the law.
What the people did not demand or contemplate was that their police
officers, prosecutors, and their courts would accomplish what they had been tasked
with through illegal investigative techniques and procedures, appointment of
substandard counsel, prosecutorial misconduct, a total disregard of their State’s
statutory and decisional law, and by convicting and sending defendants to the death
chamber on legally insufficient evidence.
PRAYER
Based upon the above and foregoing, Norris requests that an order
GRANTING this application for COA issue specifying his 1) prosecutorial
misconduct, 2) ineffective assistance of counsel, and 3) insufficient evidence
claims as those issues designated for certification under Section 2253, ORDER a
merits briefing on the issues, and that the Court further GRANT any additional
relief to which Norris may be legally and justly entitled.
Dated this 3rd day of August, 2015.
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Respectfully Submitted,
/s/ Casie Lynn Gotro /s/ Patrick F. McCann
Casie Lynn Gotro Law Office of Casie Lynn Gotro 440 Louisiana Street Houston, Texas 77002 Ph: (832) 368-9281
Patrick F. McCann Law Office of Patrick F. McCann 909 Texas Ave., Ste. 205 Houston, Texas 77002 Office: (713) 223-3805 eFax: (281) 667-3352
COUNSEL OF RECORD FOR PETITIONER-APPELLEE/CROSS-APPELLANT MICHAEL WAYNE NORRIS
Chris Bingham ABA ID No. 02610780 Houston Contract Paralegal Services 1305 West 11th Street, Box 231 Houston, Texas 77008 Cell: (832) 762-5188
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CERTIFICATE OF SERVICE
I hereby certify that on this date the foregoing Application for Certificate of
Appealability has been electronically filed with the Clerk of the Court for the
United States Court of Appeals for the Fifth Circuit using the electronic case filing
system of the court. I further certify that a “Notice of Electronic Filing” was sent
to the Attorney General on this date.
Dated this 3rd day of August, 2015.
/s/ Casie Lynn Gotro /s/ Patrick F. McCann
Casie Lynn Gotro Law Office of Casie Lynn Gotro 440 Louisiana Street Houston, Texas 77002 Office: (713) 228-2737 Fax: (832) 201-8273
Patrick F. McCann Law Office of Patrick F. McCann 909 Texas Ave., Ste. 205 Houston, Texas 77002 Office: (713) 223-3805 eFAX: (281) 667-3352
COUNSEL OF RECORD FOR PETITIONER-APPELLEE/CROSS-APPELLANT
MICHAEL WAYNE NORRIS
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CERTIFICATE OF COMPLIANCE
This application complies with the type-volume limitation of FED.R.APP.P.
32(a)(7)(B) because this application contains 16,529 words, excluding the parts of the
brief exempted by FED. R. APP. P. 32(a)(7)(B)(iii), and a motion requesting leave to
exceed the typed-volume limitation of the rule was granted on: August 3, 2015.
Further, this application complies with the typeface requirements of FED. R. APP.
P. 32(a)(5) and the type style requirements of FED. R. APP. P. 32(a)(6) because this
application has been prepared in a proportionally spaced typeface using Microsoft Word
2002 word processing program in 14 point New Times Roman font style for the main
text of the application and, pursuant to 5th CIR. R. 32.1, 12 point New Times Roman font
style for the footnotes.
The undersigned hereby acknowledge that material misrepresentations in the
certificate of compliance may result in striking the application and in sanctions against
the person signing the application.
/s/ Casie Lynn Gotro /s/ Patrick F. McCann Casie Lynn Gotro 440 Louisiana Street Houston, Texas 77002 Office: (713) 228-2737 Fax: (832) 201-8273
Patrick F. McCann 909 Texas Ave., Ste. 205 Houston, Texas 77002 Office: (713) 223-3805 eFax: (281) 667-3352
COUNSEL OF RECORD FOR PETITIONER-APPELLEE/CROSS-APPELLANT MICHAEL WAYNE NORRIS
Case: 15-70010 Document: 00513139993 Page: 88 Date Filed: 08/03/2015
