Norris v. Davis

• Decision Date: 21 June 2016
• Docket Number: No. 15-70010,15-70010
• Citation: 826 F.3d 821
• Parties: Michael Wayne Norris, Petitioner–Appellee/Cross–Appellant, v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellant/Cross–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

826 F.3d 821

Michael Wayne Norris, Petitioner–Appellee/Cross–Appellant

v.Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellant/Cross–Appellee.

No. 15-70010

United States Court of Appeals, Fifth Circuit.

Filed June 21, 2016

Patrick F. McCann, Law Offices of Patrick F. McCann, Casie Lynn Gotro, Law Office of Casie Gotro, Houston, TX, for Petitioner–Appellee Cross–Appellant.

Thomas Merrill Jones, Assistant Attorney General, Office of the Attorney General, Austin, TX, for Respondent–Appellant Cross–Appellee.

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, 109 S.Ct. 2934, 106 L.Ed.2d 256 (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.

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 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 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 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, 109 S.Ct. 2934, 106 L.Ed.2d 256 (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.

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, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) ), cert. denied , ––– U.S. ––––, 136 S.Ct. 1453, 194 L.Ed.2d 557 (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...