Michael Norris v. Lorie Davis, Director

Case: 15-70010 Document: 00513558609 Page: 1 Date Filed: 06/21/2016

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 15-70010 United States Court of Appeals
Fifth Circuit

FILED
MICHAEL WAYNE NORRIS, June 21, 2016
Lyle W. Cayce
Petitioner-Appellee/Cross-Appellant, Clerk

v.

LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional
Institutions Division,

Respondent-Appellant/Cross-Appellee.

Appeals from the United States District Court
for the Southern District of Texas

Before SMITH, ELROD, and HIGGINSON, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
The district court granted habeas corpus relief to Petitioner Michael
Wayne Norris, a Texas death-row inmate, based on its finding that the jury
instructions at the sentencing phase of Norris’s trial violated his Eighth and
Fourteenth Amendment rights under Penry v. Lynaugh, 492 U.S. 302 (1989),
by not allowing the jury to give full effect to Norris’s mitigating evidence. The
state, through its Director, appeals the district court’s grant of habeas relief,
and Norris moves for a certificate of appealability to appeal the district court’s
denial of his remaining federal habeas claims related to his conviction. For the
following reasons, we AFFIRM the district court’s grant of habeas relief and
DENY Norris’s motion for a certificate of appealability.
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I.
Norris was convicted of capital murder and sentenced to death in 1987
for murdering his girlfriend, Georgia Rollins (Georgia), and her two-year old
son. 1 According to the evidence at trial, on the day of the murders, Norris
asked to babysit the two-year old while Georgia attended church, but Georgia
refused. Norris appeared at the church during the service to get the child,
which resulted in a confrontation with Georgia that required the intervention
of a security guard. Norris became angry, went home, and took a nap. Later
that night, Norris took a high-powered deer rifle to Georgia’s apartment.
Georgia was at the apartment along with other members of her family.
Members of Georgia’s family testified that Norris appeared outside her
bedroom window, broke the glass, and fired a shot into her bedroom. Norris
then climbed into the bedroom and said to her, “I hate to do this Georgia, but
I told you. I told you you couldn’t mess me over. I told you you couldn’t leave
me.” While Georgia held the child, Norris fired additional close-range shots at
her and the child and then left the room. He turned the doorknob of another
bedroom but stopped and returned to Georgia’s room. He told her that he hated
to see her suffer and fired more shots at her and the child. Georgia’s family
testified they heard about five shots in all. Georgia’s other sons testified that
they saw Norris leave her bedroom with the rifle, at which point 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 to his home, which he shared with his mother, and told
his mother that he had killed Georgia and the two-year old and that he was

1 The Texas capital murder statute applicable to Norris’s conviction provided that a
person commits capital murder if he murders more than one person during the same criminal
transaction. Tex. Penal Code Ann. § 19.03; see Norris v. State, 902 S.W.2d 428, 437 (Tex.
Crim. App. 1995).

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sorry. Norris’s mother testified that he was sobbing. Norris called his pastor
and confessed to the murders. Norris also called the police to turn himself in.
The police arrested Norris and seized the rifle, and later that night, Norris
confessed to the police that he had killed Georgia and the two-year old.
At the crime scene, police found four spent rifle casings matching
Norris’s rifle and one spent rifle casing left in Norris’s rifle. The child had five
gunshot wounds, with the chest and head wounds being fatal. Georgia suffered
three gunshot wounds to the head and chest and fragment wounds to other
parts of her body. The chest wound and the wound from a round that traveled
through her left arm and into her chest were fatal.
The state’s evidence at trial showed that when Norris fired the first shot
through the window from outside Georgia’s bedroom, she was sitting or
kneeling on the floor next to her bed and the child was lying on the bed. The
first shot was directed at the child and hit him in his right leg or thigh. Georgia
then picked up her nonmortally wounded child and held him to her chest
crying, “my baby, my baby.” Norris climbed into the bedroom and fired another
shot at the child’s head, which entered his forehead and fragmented out the
back of his head, hitting Georgia in the face and neck, fracturing her jaw, and
exiting through her tongue. Norris then shot the child and Georgia several
more times, fatally wounding Georgia via shots through her chest.
Norris testified at trial. He stated that when he went to Georgia’s
apartment, he did not intend to use the rifle but took it along for his own
protection in case there was any trouble. He testified that he wanted to talk
to Georgia about why she was treating him badly, but she refused to answer
the door. Norris also said that he was emotionally distraught because Georgia
had embarrassed him at church, had hung up the phone when Norris tried to
call, and had refused to talk to him when he came to the apartment. Norris

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testified that he had been depressed because of the problems in their
relationship.
Norris also testified that he intended to kill only Georgia and not the
child. Norris claimed that the child was not on the bed when he shot the first
shot but, rather, Georgia was holding the child at that time. He said he aimed
away from the child but accidentally shot him while trying to shoot Georgia.
Norris testified that he only shot the child one time in the head and that
someone, possibly the police, shot the baby several more times to make it look
like Norris had intentionally killed the child. The state cross-examined Norris
about the two prior admissions made to his mother and the police, which did
not include anything about accidentally killing the child. Norris claimed that
he did tell the police that he accidentally killed the child, but the police did not
put that in his confession. Norris’s mother also testified that she told the police
that Norris had told her he accidentally killed the child. She testified that the
police had not put that in her statement. During his testimony, Norris
admitted that he had previously pulled a gun on Georgia and threatened to kill
her if she left him. When asked at trial how he felt after seeing that he had
blown the child’s head open, Norris testified that he “didn’t feel real bad.”
The jury convicted Norris of the two murders. At the sentencing phase
of Norris’s trial, the court required the jury to determine if Norris should be
sentenced to death by answering the two special issues required at that time
under Texas’s capital sentencing scheme: (1) whether Norris acted deliberately
and (2) whether there was a probability that Norris posed a future danger. The
jury answered the two special questions in the affirmative, and the trial judge
accordingly sentenced Norris to death. The conviction and sentence were
affirmed on direct review. Norris v. State, 902 S.W.2d 428, 430–34 (Tex. Crim.
App. 1995). The Texas Court of Criminal Appeals (TCCA) denied Norris’s first

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state habeas application, Ex parte Norris, 390 S.W.3d 338 (Tex. Crim. App.
2012), and dismissed as successive Norris’s second state habeas application,
Ex parte Norris, No. WR-72835-01, 2009 WL 3682331 (Tex. Crim. App. Nov. 4,
2009). 2
Norris timely filed a petition for a writ of habeas corpus in federal district
court pursuant to 28 U.S.C. § 2254. The state filed a motion for summary
judgment. The district court granted in part the state’s motion for summary
judgment, denying habeas relief as to Norris’s conviction and denying a
certificate of appealability as to all claims relating to his conviction. But the
district court granted Norris habeas relief as to his sentence based on its
determination that the jury did not have an opportunity to give full effect to
Norris’s mitigating evidence of emotional distress and good character, in
violation of Norris’s Eighth and Fourteenth Amendment rights under Penry v.
Lynaugh, 492 U.S. 302 (1989). See Norris v. Stephens, No. H-12-CV-3645, 2015
WL 1459187, at *17 (S.D. Tex. Mar. 28, 2015). The district court ordered the
state to release Norris from custody within 120 days of the entry of the
judgment unless the state either grants Norris a new sentencing hearing or
vacates Norris’s death sentence and resentences him consistent with state
law. 3 The state appeals the district court’s grant of habeas relief as to Norris’s
sentence. Norris moves for a certificate of appealability to appeal the denial of
his other habeas claims that relate to his conviction.

2 While the first state habeas petition was pending, the TCCA denied the second
petition as successive. Ex parte Norris, 2009 WL 3682331, at *1.
3 The order is stayed pending appeal.

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II.
Review of a federal petition for habeas relief is governed by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 4 Garza v.
Stephens, 738 F.3d 669, 673 (5th Cir. 2013). Under AEDPA, a state habeas
petitioner must obtain a certificate of appealability (COA) before he can appeal
the federal district court’s denial of habeas relief. Id.; see 28 U.S.C. § 2253(c).
To obtain a COA, the petitioner must make a “substantial showing of the denial
of a constitutional right.” Garza, 738 F.3d at 673; 28 U.S.C. § 2253(c)(2). This
standard requires a petitioner to “show that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved
in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Young v. Stephens, 795 F.3d 484, 489 (5th
Cir. 2015) (quoting Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)), cert. denied,
136 S. Ct. 1453 (2016). “In making this determination, we examine the district
court’s application of [AEDPA] to the petitioner’s claims and ‘ask whether that
resolution was debatable amongst jurists of reason.’” Id. (quoting Miller-El,
537 U.S. at 336–37). We review the district court’s conclusions of law de novo
and its findings of fact for clear error. Id. at 490.
Under AEDPA, a federal court may issue a writ of habeas corpus for a
state conviction only if the state court’s adjudication of the claim: “(1) resulted
in a decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the
United States; or (2) resulted in a decision that was based on an unreasonable

4 Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat.
1214 (1996).

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determination of the facts in light of the evidence presented in the State court
proceedings.” Id. at 489 (quoting 28 U.S.C. § 2254(d)).
A state court’s decision is “contrary to clearly established federal law” for
purposes of § 2254(d)(1) if: “‘(1) the state court ‘applies a rule that contradicts
the governing law’ announced in Supreme Court cases, or (2) the state court
decides a case differently than the Supreme Court did on a set of materially
indistinguishable facts.’” Id. at 489–90 (quoting Nelson v. Quarterman, 472
F.3d 287, 292 (5th Cir. 2006) (en banc)). Under § 2254(d)(2), a factual
determination made by a state court is “‘presumed to be correct’ unless the
petitioner satisfies ‘the burden of rebutting the presumption of correctness by
clear and convincing evidence.’” Id. (quoting 28 U.S.C. § 2254(e)(1)).
III.
We turn first to the state’s appeal of the district court’s grant of habeas
relief on Norris’s Penry claim. This court reviews a grant of summary
judgment de novo, applying the same standard applied by the district court.
But unlike the standard for a regular motion for summary judgment, when
considering a motion for summary judgment in the context of habeas corpus
cases, the state court’s factual findings are presumed correct unless the
petitioner can show by clear and convincing evidence that the presumption
should not apply. 28 U.S.C. § 2254(e)(1); see Torres v. Thaler, 395 F. App’x 101,
106 n.17 (5th Cir. 2010) (explaining impact of § 2254(e)(1) on summary
judgment standard).
The district court granted Norris habeas relief based on its finding that
the jury instructions at the sentencing phase of Norris’s trial violated Norris’s
Eighth and Fourteenth Amendment rights because the instructions did not
allow the jury to give full effect to Norris’s mitigating evidence, in violation of
Penry v. Lynaugh, 492 U.S. 302 (1989).

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In Penry, the Supreme Court held that “the Eighth and Fourteenth
Amendments require that the sentencer . . . not be precluded from considering,
as a mitigating factor, any aspect of a defendant’s character or record . . . as a
basis for a sentence less than death.” Id. at 317 (emphasis omitted). Penry
had been sentenced under Texas’s capital punishment scheme, which, at that
time, imposed the death penalty if the jury answered the following questions
in the affirmative: whether the defendant acted deliberately and whether there
was a probability that the defendant posed a future danger. See id. at 310
(citing Tex. Code Crim. Proc. Ann. Art. 37.071(b) (Vernon 1981 and Supp.
1989)).
At sentencing, Penry had proffered mitigating evidence of an intellectual
disability. Id. at 322–23. The Supreme Court reasoned that “Penry’s mental
retardation . . . ‘had relevance to [his] moral culpability beyond the scope of the
special verdict questio[ns]’” of deliberateness and future dangerousness. Id. at
322. Regarding the question of deliberateness, the Court explained that “[a]
rational juror at the penalty phase of the trial could have concluded . . . that
[Penry] deliberately killed [the victim]” but nevertheless believed that Penry
should not be subject to the death penalty “[b]ecause Penry was mentally
retarded” and thus was “less able than a normal adult to control his impulses
or to evaluate the consequences of his conduct.” Id. at 322. In other words, “a
juror who believed that Penry’s retardation and background diminished his
moral culpability and made imposition of the death penalty unwarranted
would be unable to give effect to that conclusion if the juror also believed that
Penry committed the crime ‘deliberately.’” Id. at 323. Regarding the question
of future dangerousness, the Court explained that the evidence of Penry’s
intellectual disability, though “relevant” to future dangerousness, was
“relevant only as an aggravating factor because it suggest[ed] [only] a ‘yes’

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answer to the question of future dangerousness.” Id. In sum, even if the jury
had believed that Penry was intellectually disabled and, for that reason, should
not be executed, the special issues under Texas’s capital punishment scheme
did not give the jury a way to express that belief because Penry’s intellectual
disability did not support a “no” answer to whether he acted deliberately or
would likely be dangerous in the future. See id. at 328 (“[I]n the absence of
instructions informing the jury that it could consider and give effect to the
mitigating evidence of Penry’s mental retardation and abused background by
declining to impose the death penalty, we conclude that the jury was not
provided with a vehicle for expressing its ‘reasoned moral response’ to that
evidence in rendering its sentencing decision.”).
Here, Norris presented mitigating evidence that: (1) the murders were
crimes of passion; (2) Norris was emotionally distraught at the time of the
offense because of the quarrel between him and Georgia earlier that day at
church; (3) Norris had the opportunity to shoot other members of Georgia’s
family, but did not; (4) Norris expressed remorse for the murders to his mother
and his pastor; (5) Norris turned himself in to the police soon after the crime;
(6) Norris accepted responsibility for the crime; (7) Norris had been a good
student; (8) Norris was active in church; (9) Norris was a good father to his
daughter and treated the murdered baby like his own child; and (10) Norris
maintained regular employment. At the penalty phase of Norris’s trial, the
trial court submitted to the jury the two special issues of whether Norris acted
deliberately and whether there was a probability that Norris posed a future
danger. See Tex. Code Crim. Proc. Ann. Art 37.071(b) (1987). 5

5 See Joiner v. State, 825 S.W.2d 701, 703 & n.2 (Tex. Crim. App. 1992) (en banc)
(quoting version of Tex. Code Crim. Proc. Ann. Art. 37.071(b) applicable prior to the 1991
amendment).

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Norris argued on direct appeal that because the jury was not given a
general mitigation instruction, the jury was not able to give effect to his
mitigating evidence in violation of Penry. The TCCA rejected Norris’s Penry
claim. Norris, 902 S.W.2d at 447. The TCCA considered both Penry and
Johnson v. Texas, 509 U.S. 350 (1993), which helped clarify Penry. See id. at
447–48. The TCCA explained that “Penry was not meant to require a jury to
give possible effect to mitigating evidence ‘in every conceivable manner in
which the evidence might be relevant,’” but, instead, required courts to
determine “whether there is a reasonable likelihood that the jury . . . applied
the challenged instruction[s] in a way that prevents the consideration of
constitutionally relevant evidence.” Id. (emphasis added) (quoting Johnson,
509 U.S. at 367). The TCCA held that because Norris’s mitigating evidence
allowed the jury to answer “no” to the special questions of deliberateness or
future dangerousness, no separate Penry instruction (a general mitigation
instruction) was required. Id. at 447–48.
The district court found that the TCCA’s determination was “an
unreasonable application of Penry.” The district court reasoned that the jury
was unable to give effect to some of Norris’s mitigating evidence—specifically
his evidence of emotional distress and good character—because that evidence
was “not relevant to the issues of deliberateness or future dangerousness.”
Norris, 2015 WL 1459187, at *16.
The state argues that the district court had no authority under AEDPA
to grant habeas relief because the TCCA’s determination was a reasonable
application of U.S. Supreme Court precedent that existed at the time of the
TCCA’s determination, none of which held that mitigating evidence of
emotional distress or good character required an additional Penry instruction.

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We disagree. As Norris correctly argues, Pierce v. Thaler, 604 F.3d 197 (5th
Cir. 2010), is controlling authority that forecloses the state’s argument. 6
In Pierce, we held that Supreme Court case law clearly established that
general good character evidence requires an additional Penry instruction
under Texas’s capital sentencing scheme. 604 F.3d at 208–10. 7 Pierce was
convicted of capital murder for shooting a restaurant manager during a
robbery and was sentenced to death. Id. at 199. He sought federal habeas
relief under Penry, arguing that because the jury at sentencing was given
instructions on only the two special issues of deliberateness and future
dangerousness, the jury was unable to give full effect to some of his mitigating
evidence. Id. at 201. Pierce’s mitigating evidence included his youth, good
behavior, and maturation and intellectual growth while in prison, and
testimony from his mother that he was a good, well-behaved child. Id. The
district court “rejected as unreasonable the TCCA’s conclusion that the two
special issues permitted the jury to give meaningful consideration and effect”

6 At oral argument, the state argued, for the first time, that Pierce overturned prior
Fifth Circuit case law holding that mitigating evidence of good character and emotional
distress does not require an additional Penry instruction under Texas’s capital sentencing
scheme, in violation of the rule of orderliness. See, e.g., Jacobs v. Nat’l Drug Intelligence Ctr.,
548 F.3d 375, 378 (5th Cir. 2008) (“It is a well-settled Fifth Circuit rule of orderliness that
one panel of our court may not overturn another panel’s decision, absent an intervening
change in the law, such as by a statutory amendment, or the Supreme Court, or our en banc
court. Indeed, even if a panel’s interpretation of the law appears flawed, the rule of
orderliness prevents a subsequent panel from declaring it void.” (citations omitted)). We have
followed Pierce in the past and, indeed, must do so here under the rule of orderliness. See,
e.g., McGowen v. Thaler, 675 F.3d 482, 495 (5th Cir. 2012); see also note 8, infra.
7 The final state-court adjudication on the merits of Norris’s Penry claim occurred on

March 1, 1995, Norris, 902 S.W.2d 428. Norris did not raise his Penry claim on state habeas
review, but only on direct review. Therefore, the relevant clearly established federal law for
AEDPA purposes is U.S. Supreme Court case law that existed on March 1, 1995. See Pierce,
604 F.3d at 200. Pierce explains that though two of the Supreme Court cases on which it
relies are from 2005 and 2006, those cases “set out the clearly established law as it existed in
1994.” 604 F.3d at 209. Therefore, Pierce’s interpretation of U.S. Supreme Court precedent
applies to Norris’s Penry claim.

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to that mitigating evidence because some of the good character evidence was
irrelevant to either deliberateness or future dangerousness, but was relevant
to Norris’s general moral culpability and character. Id. We agreed.
In Pierce, we relied on several Supreme Court cases analyzing Penry
claims under California’s death penalty sentencing scheme, which “establish
that good character evidence has meaningful relevance to moral culpability,
which a majority of the Justices in Franklin indicated is not encompassed by
the special issues” of Texas’s scheme. Pierce, 604 F.3d at 210 (referring to
Franklin v. Lynaugh, 487 U.S. 164 (1988)). We concluded that “[t]hese
authorities establish that an additional instruction was required in order for
the jury to consider and give effect to this mitigating evidence.” 8 Id.
Here, Norris proffered evidence of general good character at the
sentencing phase that showed he was active at church, had been a good
student, was a good father to his daughter, and had maintained regular
employment. Because Pierce spoke directly to general good character evidence
and concluded that clearly established law as of 1994 required a general
mitigating instruction under Texas’s scheme in the face of such evidence, it
controls here. See id. Thus, we conclude that under Penry, the jury
instructions at the sentencing phase of Norris’s trial did not adequately allow

8 There are published Fifth Circuit cases prior to Pierce that hold the opposite. See,
e.g., Boyd v. Johnson, 167 F.3d 907, 912 (5th Cir. 1999) (“Evidence of good character tends to
show that the crime was an aberration, which may support a negative answer to the special
issue regarding the future dangerousness of the defendant” and thus can find “adequate
expression under [the] second special issue” of Texas’s scheme.); Barnard v. Collins, 958 F.2d
634, 640 (5th Cir. 1992) (stating in the context of the Texas capital sentencing scheme that
“this court has concluded that evidence of good character does not require a special
instruction under Penry”). We explained in Pierce that those cases predate Abdul-Kabir v.
Quarterman, 550 U.S. 233 (2007), and apply a standard that is in tension with Abdul-Kabir.
Pierce, 604 F.3d at 210 n.9.

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the jury to consider Norris’s mitigating evidence of good character. We
AFFIRM the district court’s grant of habeas relief on Norris’s Penry claim.
IV.
We turn to Norris’s application for a certificate of appealability to appeal
the denial of his habeas claims that challenge his conviction. He asserts five
issues that he argues warrant a certificate of appealability (COA). For the
following reasons, Norris is not entitled to a COA on any of these issues.
A.
In his federal habeas petition, Norris asserted several prosecutorial
misconduct claims, as well as a cumulative prosecutorial misconduct claim.
The district court concluded that Norris’s cumulative prosecutorial misconduct
claim was unexhausted and procedurally barred, and even if it was not barred,
the claim was nevertheless without merit because Norris’s individual claims of
prosecutorial misconduct were without merit, procedurally defaulted, or both.
We agree.
Whether a federal habeas petitioner exhausted state remedies is a
question of law. Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001). To
exhaust state remedies, the petitioner “must have fairly presented the
substance of his claim to the state courts.” Id. Norris’s appellate brief on direct
appeal relied almost exclusively on Texas case law in support of his
prosecutorial misconduct claims and never stated that the claims were based
on federal law. 9

9 Nowhere in his brief did Norris expressly state that his prosecutorial misconduct
claims were based on federal law. The portion of Norris’s brief discussing the prosecutorial
misconduct claim does cite, once, to a U.S. Supreme Court case. But this single reference to
a federal case is followed by all state-law citations. And the section of Norris’s direct appeal
brief that discusses the cumulative prosecutorial misconduct claim cites only Texas cases and
never mentions federal law or the U.S. Constitution. Elsewhere in Norris’s direct appeal
brief, he did specifically make a claim under “the Eighth Amendment of the United States
Constitution.” Such specificity was lacking in Norris’s discussion of his prosecutorial

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In Wilder, we held that “[a] fleeting reference” to federal law within a
lengthy state-law focused argument “does not sufficiently alert and afford a
state court the opportunity to address an alleged violation of federal rights.”
Id. at 260. The appellant in Wilder had stated at the end of his argument on
direct appeal that the trial court’s ruling denied him “his right to a fair trial
and due process of law as guaranteed him under the Fifth and Fourteenth
Amendments to the U.S. Constitution . . . .” Id. Here, Norris made even less
of a reference to the U.S. Constitution—he merely used the phrase “due process
of law” but otherwise based his arguments on Texas cases. Under Wilder, this
is insufficient to exhaust state remedies. See id. Because Norris cannot show
that jurists of reason would debate whether his cumulative prosecutorial
misconduct claim is unexhausted, a COA for this claim is unwarranted. See
Slack v. McDaniel, 529 U.S. 473, 478, 484 (2000).
Moreover, even if Norris had sufficiently raised a federal due process
claim, he would still be unable to make a “substantial showing of the denial of
a constitutional right” because none of his individual prosecutorial misconduct
claims raises valid constitutional violations. Norris asserted the following
claims of prosecutorial misconduct, each of which were rejected by both the
TCCA and the district court: the prosecutor (1) improperly accused defense
counsel of being unethical, of lying, and of engaging in “extortion”; (2)
commented on Norris’s appellate rights by mentioning the appellate court; (3)
argued the application of parole law; (4) argued that if the jurors spared
Norris’s life and he killed again, they would be responsible; and (5) argued that
future jurors could not impose a death sentence on an individual who killed
only one person if the jurors spared Norris’s life after he killed two people.

misconduct claims. Not surprisingly, the TCCA analyzed Norris’s prosecutorial misconduct
claims under only state law. See Norris, 902 S.W.3d at 442–45.

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The TCCA concluded that only the first claim constituted error but
declined to reverse Norris’s conviction because “the trial court’s instructions to
disregard the prosecutor’s comments were sufficient to cure error,” as “[t]he
prosecutor’s comments were isolated, and the trial court promptly instructed
the jury to disregard them.” Norris, 902 S.W.2d at 442–43. The TCCA’s
determination was not unreasonable. The prosecutor’s comments in context—
and in light of the trial judge’s limiting instructions, the length of the trial, and
the overwhelming evidence of Norris’s guilt—cannot be said to have “so
infected the trial with unfairness as to make the resulting conviction a denial
of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986).
Norris’s second claim of prosecutorial misconduct, which he
characterizes as “comment[ing] on Norris’s appellate rights,” was merely a
reference to the “appellate record” in a discussion between the prosecutor and
trial judge about admitting evidence. Norris, 902 S.W.2d at 443. There is no
clear U.S. Supreme Court precedent that prohibits a prosecutor from making
any mention of the court of appeals, and the TCCA was not unreasonable in
concluding that there was no error.
Norris’s third claim of prosecutorial misconduct asserts that the
prosecutor invited the jury to consider the application of parole laws by arguing
that Norris could not be rehabilitated because he had killed two more people
while on parole for a prior murder for which he served jail time. See Norris,
902 S.W.2d at 443–44. The TCCA held that under Texas law, the prosecutor’s
argument “was a reasonable deduction from the evidence” and thus not error, 10

10 “Under Texas law, there are four areas of permissible jury argument: (1)
summations of the evidence; (2) reasonable inferences or deductions from the evidence; (3)
responses to opposing counsel’s argument; and (4) pleas for law enforcement.” Wilson v.
Cockrell, 75 F. App’x 983, at *10 (5th Cir. July 1, 2003) (citing Wilson v. State, 938 S.W.3d
57, 59 (Tex. Crim. App. 1996)).

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and also that Norris waived any error by failing to object to the statement at
trial. Id. at 444. The TCCA’s determination was neither “contrary to” nor an
“unreasonable application of” clearly established federal law, nor a decision
“based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d).
Moreover, because the state court’s decision rested on a state-law ground
independent of the federal question and adequate to support the judgment—
Texas’s contemporaneous objection rule—we cannot review the federal
question. See Coleman v. Thompson, 501 U.S. 722, 729 (1991); Allen v.
Stephens, 805 F.3d 617, 635 (5th Cir. 2015) (“[W]e have consistently upheld
Texas’s contemporaneous objection rule as an independent and adequate state
ground that procedurally bars federal habeas review of a petitioner’s claims.”
(internal quotation marks and alterations omitted)), cert. denied, No. 15-8641,
2016 WL 1134757, at *1 (U.S. May 23, 2016).
Norris’s last two claims of prosecutorial misconduct were rejected by the
TCCA because, in context, they were “proper pleas for law enforcement” and
not invitations for the jury to convict Norris based on collateral considerations,
as Norris argued. Norris, 902 S.W.2d at 445. The TCCA also held that Norris
waived any error because he failed to object to either of the statements at trial
and that, even if the statements were error, they were not so prejudicial that
they could not have been cured by an instruction to disregard. 11 Id. The
TCCA’s determination was neither contrary to nor an unreasonable
application of clearly established federal law nor a decision based on an
unreasonable determination of the facts. 28 U.S.C. § 2254(d); see Ries v.
Quarterman, 522 F.3d 517, 531 (5th Cir. 2008) (“[a]ccepting the state court’s

11 Under Texas law, even if a criminal defendant fails to object to error, the error can
still be grounds for reversal if the error was “so prejudicial that an instruction . . . could not
have cured the error.” Norris, 902 S.W.2d at 444.

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No. 15-70010

conclusion based on state law” that the prosecutor’s statement was a proper
plea for law enforcement).
None of Norris’s individual claims of prosecutorial misconduct is
meritorious, and he cannot cumulate non-meritorious claims into a valid
cumulative prosecutorial misconduct claim. Hughes v. Dretke, 412 F.3d 582,
597 (5th Cir. 2005). A COA for Norris’s cumulative prosecutorial misconduct
claim is unwarranted. See Slack, 529 U.S. at 484–85.
B.
Norris’s sufficiency-of-the-evidence argument fails because the evidence
amply supported his capital murder conviction. We review the evidence in the
light most favorable to the prosecution to determine whether “any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Hughes v. Johnson, 191 F.3d 607, 619 (5th Cir. 1999)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In applying this
standard, we look to “the substantive elements of the offense” as established
by the state’s criminal law. Id.
Under the applicable Texas law, Norris was guilty of capital murder if
he “intentionally or knowingly caus[ed] the death of an individual” and
murdered more than one person during the same criminal transaction. Tex.
Penal Code Ann. § 19.03; see Norris, 902 S.W.2d at 437. On direct appeal, the
TCCA concluded that there was sufficient evidence to support Norris’s
conviction of capital murder because, based on the evidence submitted at trial,
a reasonable jury could easily find beyond a reasonable doubt that Norris
“knowingly and intentionally” killed both Georgia and the baby. Norris, 902
S.W.2d at 436–37; see id. at 428–37. We agree. Norris admitted to
intentionally killing Georgia. See id. at 436 & n.11. There was also ample
evidence that Norris intended to kill the baby, notwithstanding his testimony

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No. 15-70010

to the contrary. As the TCCA noted, Norris’s pretrial statements to the police
and others did not mention killing the baby by accident, the evidence at trial
showed that Norris “inflicted the fatal wounds to the baby from a short
distance with a high powered rifle that had to be recocked and reaimed
between each shot,” “[t]he baby was in full view of [Norris], and [he] admitted
to seeing [the baby],” and “[f]our of the five shots [Norris] fired initially struck
the baby, and most of the girlfriend’s wounds were caused by fragments of
bullets that first hit the baby.” Id. at 436. This evidence was sufficient to
support the jury’s conclusion that Norris specifically intended to kill the baby.
Norris also argues that the evidence was insufficient to support his
conviction based on an alternative theory of transferred intent and that, in any
case, transferred intent cannot be used to prove capital murder under Texas
law. 12 First, regarding whether transferred intent can be used to prove capital
murder under Texas law—the state court already determined this issue,
concluding that transferred intent can be used to prove capital murder in
Texas. Norris, 902 S.W.2d at 437–38. “In our role as a federal habeas court,
we cannot review the correctness of the state . . . court’s interpretation of state
law.” Ries v. Quarterman, 522 F.3d 517, 531 (5th Cir. 2008) (internal alteration
omitted). 13

12 The TCCA concluded that the verdict in Norris’s case could have been based on
either a specific-intent theory or on a transferred-intent theory. Norris, 902 S.W.2d at 437
(“[W]e cannot say the jury found appellant specifically intended to kill the baby based on the
jury’s affirmative answer to special issue one. The first special issue contains a type of
‘transferred intent’ provision since the jury could have affirmatively answered special issue
one even if it believed appellant lacked the specific intent to kill the baby.”).
13 Norris relatedly argues that he was denied due process because the TCCA failed to

grant him relief under the Texas case, Roberts v. State, which overruled a possible implication
of Norris v. State, 902 S.W.2d 428. See Roberts, 273 S.W.3d 322, 330–31 (Tex. Crim. App.
2008), abrogated in part by Ex parte Norris, 390 S.W.3d 338, 341 (Tex. Crim. App. 2012), and
later abrogated in full by Granger v. State, No. AP-77,017, 2015 WL 1875907 (Tex. Crim. App.
Apr. 22, 2015) (en banc). The TCCA held in Roberts that insofar as Norris could be read to
allow a capital murder conviction based on the murder of two people when the defendant had

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Second, the state court’s conclusion that the evidence was sufficient to
support Norris’s conviction if based upon a transferred-intent theory does not
warrant habeas relief under § 2254(d). See Ex parte Norris, 390 S.W.3d 338,
340–41 (Tex. Crim. App. 2012). Reasonable jurists would not debate the
district court’s determination that, “[e]ven accepting Norris’ claim that he
never intended to kill the baby, th[e] evidence unquestionably supports a
finding that he intended to kill Georgia but killed the baby inadvertently,
making him liable under transferred intent, then committed a second discrete
act under a newly formed intent to kill Georgia, resulting in Georgia’s death.”
Norris, 2015 WL 1459187, at *8. A COA is not warranted for these claims.
C.
Norris argues that reasonable jurists could disagree with the district
court’s denial of habeas relief with respect to his claims that he was denied
effective assistance of counsel and a fair trial when his trial counsel: (1) failed
to preserve error as to the admission of Norris’s pretrial statement to the
police; (2) elicited from Norris the fact that he had a prior felony and received
an eight-year sentence; (3) failed to object when the prosecutor elicited from
Norris on cross-examination that he had only served a little less than three

a single intent to kill only one person, had no knowledge that the other person was there, and
accidentally killed both the intended person and the other person—such as when a pregnant
woman is intentionally murdered but the murderer is not aware that the woman is
pregnant—that characterization of Norris was rejected and overruled. 273 S.W.3d at 330–
31. However, on review of Norris’s state habeas petition, the TCCA affirmed the actual
holding in Norris, despite Roberts, concluding that Norris’s “separate instances of conduct
occurred very close in time but were still sufficiently separate to involve separate intents”
such that Roberts was inapposite to the facts of Norris’s case. Ex parte Norris, 390 S.W.3d at
341. We cannot review the TCCA’s determination of state law on federal habeas review.
Ries, 522 F.3d at 531.

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No. 15-70010

years of the eight-year sentence; and (4) failed to object to the admission of
Norris’s mother’s pretrial statement. 14
To prevail on a claim for ineffective assistance of counsel, Norris “must
show that counsel’s performance was deficient,” which “requires showing that
counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment,” and “must show that the
deficient performance prejudiced [him],” which “requires showing that
counsel’s errors were so serious as to deprive [him] of a fair trial, a trial whose
result is reliable.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
Upon our review of the briefs and record, we conclude that Norris is not
entitled to a COA on any of his ineffective-assistance claims because
reasonable jurists would not debate the district court’s determinations that
Norris failed to established error under § 2254(d)’s standard for habeas relief
and that, regardless, Norris cannot show Strickland prejudice in light of the
overwhelming evidence of his guilt.
V.
Based on the foregoing, we AFFIRM the district court’s grant of habeas
relief on Norris’s Penry claim and DENY Norris’s application for a COA.

14 Norris also argues that the TCCA “never has adjudicated” his ineffective assistance
of counsel claims because neither of the two TCCA opinions denying habeas relief discussed
Norris’s ineffective assistance claims. Under Supreme Court precedent, even if a state court’s
decision to deny habeas relief is unaccompanied by an explanation, the habeas petitioner still
has the burden to show that there was no reasonable basis for the state court to deny relief.
Harrington v. Richter, 562 U.S. 86, 98–99 (2011) (explaining that the deferential standard of
§ 2254(d) still applies even if the state court did not issue an opinion or explain its reasoning
for denying habeas relief and that “[w]hen a federal claim has been presented to a state court
and the state court has denied relief [without explanation], it may be presumed that the state
court adjudicated the claim on the merits in the absence of any indication or state-law
procedural principles to the contrary”); see Hoffman v. Cain, 752 F.3d 430, 438–39 (5th Cir.
2014) (clarifying that the Richter presumption applies even when a state habeas decision
writes on certain issues but is silent on other raised issues).

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