    Case: 15-70034   Document: 00513429910     Page: 1   Date Filed: 03/18/2016




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals

                                No. 15-70034
                                                                          Fifth Circuit

                                                                        FILED
                                                                  March 18, 2016
                                                                   Lyle W. Cayce
                                                                        Clerk
LEJAMES NORMAN,

                                         Petitioner–Appellant,

versus

WILLIAM STEPHENS, Director,
 Texas Department of Criminal Justice, Correctional Institutions Division,

                                         Respondent–Appellee.




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




Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      LeJames Norman petitioned for a federal writ of habeas corpus raising
two claims of ineffective assistance of counsel (“IAC”) and requesting an evi-
dentiary hearing to develop his claims. The district court denied Norman’s
petition and request and sua sponte denied a certificate of appealability
(“COA”). Norman requests a COA from this court on three issues. We deny
that motion.
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                                       I.
      The district court summarized the details of the triple murder as follows,
based on Norman’s testimony at his accomplice’s capital-murder trial.

        On August 24, 2005, Norman and accomplice Ker’sean Ramey
   entered a neighbor’s home in Edna, Texas, wearing masks with the
   intention of stealing cocaine. When Celso Lopez answered the door, the
   men forced their way inside. While Norman held Lopez at gunpoint,
   Ramey looked for the cocaine. Norman then shot Lopez, allegedly by
   accident. As the men forced the bleeding Lopez into a backroom, Tif-
   fany Peacock and Sam Roberts came into the home. Norman forced
   Peacock to her knees and shot her in the head. Norman began tussling
   with Roberts as he tried to flee. Ramey fired his weapon when Norman
   told him to shoot Roberts. While Roberts lay on the floor, Norman shot
   him several more times. Ramey then returned to the backroom and
   shot Lopez dead. The two men did not find any cocaine. As they were
   leaving, Norman realized he had left something inside the house.
   Ramey returned and shot the victims several more times to ensure they
   were dead.
Norman v. Stephens, No. V-12-054, 2015 WL 5732122, at *2 (S.D. Tex. Sept. 30,
2015).

      Police arrested Ramey, but Norman fled to Mexico. Border Patrol offi-
cers arrested Norman as he crossed back into Texas using false identification.

      Norman cooperated with law enforcement. He gave three recorded state-
ments and testified before the grand jury, which, in 2006, indicted him for
capital murder. Norman testified in 2007 at Ramey’s capital-murder trial.

      Given his confession and the extensive evidence implicating him in the
murders, Norman pleaded guilty. The jury thus had to decide only life impris-
onment or execution. In Texas, a jury imposes a sentence of death only by
answering affirmatively two special-issue questions: (1) whether “from the
evidence beyond a reasonable doubt . . . there is a probability that the defen-
dant would commit criminal acts of violence that would constitute a continuing

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threat to society”; and (2) whether, after “[t]aking into consideration all of the
evidence including the circumstances of the offense, the defendant’s character
and background, and the personal moral culpability of the defendant,” “there
is a sufficient mitigating circumstance or circumstances to warrant that a
sentence of life imprisonment rather than a death sentence be imposed[.]”
Id. at *3.

      The state presented testimony and evidence demonstrating Norman’s
escalating history of criminality. At age ten, he committed two robberies on
the same day using a firearm. In later years, he committed burglaries, crim-
inal trespass, criminal mischief, using and selling drugs, and assault. At age
nineteen, he committed the triple murder at issue here. Then, while on the
run from law enforcement, he sold drugs, and while in county jail awaiting trial
for capital murder, he made weapons, planned escapes, and talked about mur-
dering people. During an unsuccessful escape attempt, Norman held a shank
to the neck of a sixty-three-year-old jailer and threatened to kill her.

      The defense focused on the two special issues. It claimed that Norman
would not be a future danger and that mitigating circumstances warranted a
life sentence. In support, the defense pointed to Norman’s cooperation with
police—his confessions, grand jury testimony, and testimony at Ramey’s trial.
It stressed how, in pre-indictment statements, Norman accepted responsibility
and displayed remorse. And it presented testimony from twenty-one wit-
nesses, including family members, friends, a coach, and teachers, and Nor-
man’s testimony, which he gave against the advice of counsel.

      That testimony provided details into Norman’s troubled childhood. His
family was low-income and for a time lived in homeless shelters. His parents
fought constantly, including physically, abused drugs and alcohol, sold drugs,
associated with gang members, and abused Norman physically. When Norman

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                                 No. 15-70034
was young, a police officer shot and killed his father. That incident greatly
affected Norman, who was close to his father. In school, Norman attended
special education classes. During high school, he fathered three children,
whom witnesses say he loved and treated well.

      In preparation for the sentencing phase, Norman’s first set of attorneys
hired at least two psychologists: Jack Greeson and Mark Cunningham. Gree-
son conducted extensive interviews with Norman’s family and may have per-
formed a psychological examination. Cunningham, on the other hand, only
conducted a face-to-face interview with Norman, in county jail, lasting four
hours twenty-eight minutes. Neither expert testified at any proceeding.

      After Norman’s lead counsel withdrew, the court appointed Allen Tan-
ner, who secured the services of Micki Perry, a mitigation investigator. Perry
recommended that Norman be evaluated by an expert in neuropsychology
because Norman “was exposed to an extraordinary level of violence as a child,”
and “[t]here was a possibility of trauma to Mr. Norman’s brain.” Id. at *6.

      Thereafter, Tanner retained Mohammed Hamza, a neuropsychologist.
But because Hamza was unavailable to perform an examination, Tanner had
Hamza’s office partner, Curt Wills, perform a psychological examination.
Wills was a clinical psychologist who did not have sufficient training to qualify
as an expert in neuropsychology. He observed only “mild to moderate impair-
ment” and “an indication of significant psychopathology.” Id. He did not diag-
nose any significant neuropsychological or psychological problem.        Tanner
chose not to call Wills as a witness because his overall testimony would have
been detrimental to Norman’s case.

                                       II.
      After the sentence was affirmed, Norman sought collateral relief in state

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court. Through new, state-appointed postconviction counsel, he raised six
grounds of relief, including IAC. One of the IAC claims was that trial counsel
failed properly to investigate and present mitigation evidence that Norman
suffered from a chemical brain imbalance. Norman, however, did not support
that allegation with evidence of an imbalance.

      The state courts denied the habeas petition, concluding that trial counsel
had acted diligently and had decided, as a matter of trial strategy, not to have
Wills testify. Relying on an affidavit by Tanner, who had served as trial coun-
sel, the state courts mistakenly referred to Wills as a neuropsychologist.

      While the state habeas action was pending, Norman filed a pro se
“Motion for Leave to File Amended Notice of Appeal,” which the state courts
characterized as an attempt to file a successive state habeas application. On
the same day that it denied his first application, the Court of Criminal Appeals
denied Norman’s motion. Ex parte Norman, No. WR-74,743-01 (Tex. Crim.
App. 2012) (unpublished).

      Norman then filed the instant federal habeas petition. After the district
court had authorized the use of $10,000 for Norman to retain a neuropsychol-
ogical expert, Norman filed an amended petition that advanced two theories,
only one of which is before us: that trial counsel’s representation fell below
constitutional requirements under Strickland v. Washington, 466 U.S. 668
(1984), by failing to follow Perry’s recommendation to hire a neuropsycholog-
ical expert. The district court denied the amended petition because the claim
was unexhausted and procedurally barred and, in the alternative, because it
lacked merit.

      The district court then sua sponte declined to issue a COA. Norman
requests a COA from this court on three issues: (1) “Whether Reasonable
jurists could disagree that the District Court should have conducted an
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                                 No. 15-70034
Evidentiary Hearing”; (2) “Whether Reasonable jurists could disagree over
whether the District Court Applied an incorrect standard of review in
evaluating Nr. [sic] Norman’s claims of ineffective post conviction counsel”; and
(3) “Whether reasonable jurists could disagree that Mr. Norman received the
effective assistance of counsel at trial.” Motion for COA at 7.

                                      III.
      Norman maintains that reasonable jurists could disagree over whether
the district court applied an incorrect standard of review in evaluating his
claim of ineffective assistance of postconviction counsel. Norman would like to
appeal that issue because, as explained below, he procedurally defaulted his
claim of ineffective assistance of trial counsel in state court and thus must
prove ineffective assistance of state postconviction counsel before a federal
court may hear his habeas claim on the merits.

      A COA may issue “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For constitu-
tional claims rejected on the merits, the petitioner meets this test by “demon-
strat[ing] that reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S.
473, 484 (2000). Where, as here, claims are dismissed on procedural grounds,
the petitioner must show both “[1] that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right
and [2] that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Id. Norman has failed to make the
requisite showings.

      In state court, Norman raised a claim under Washington, alleging that
trial counsel had provided ineffective assistance in not investigating and
presenting expert testimony that he suffered from a chemical imbalance. But
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Norman did not allege that counsel provided ineffective assistance by failing
to hire a neuropsychologist. The district court thus concluded that the claim
was both unexhausted and procedurally defaulted, 1 and Norman does not
dispute that decision.

       Under the independent-and-adequate-state-ground doctrine, federal dis-
trict courts generally cannot review state-court judgments that rest on an inde-
pendent and adequate state ground, such as a state procedural default. Cole-
man v. Thompson, 501 U.S. 722, 729 (1991). Norman nevertheless claims an
exception to that rule. A petitioner overcomes a state procedural default where
he can show “[1] cause for the default and [2] actual prejudice as a result of the
alleged violation of federal law . . . .” Id. at 750. 2 Norman contends that he
can make both showings. He maintains that his state postconviction counsel’s
ineffective assistance constitutes cause and that the default prejudiced him.
He thus seeks a COA on the district court’s contrary determination, specifically
on the standard that the court used to reject his notion that he can overcome
the state procedural default.

       The district court chose to treat the procedural-default and merits issues
together because “Norman’s arguments to overcome the procedural bar


       1   Failure to exhaust state remedies and state procedural default are related but dis-
tinct concepts. If a claim is merely unexhausted but not procedurally defaulted, then, absent
waiver by the state, a district court must either dismiss the federal petition or stay the federal
proceeding while the petitioner exhausts the unexhausted claim in state court. But if a claim
is both unexhausted and procedurally defaulted, then a district court may deny the federal
petition outright. A claim is both unexhausted and procedurally defaulted where “the pris-
oner fails to exhaust available state remedies, and the state court to which the prisoner would
have to present his claims in order to exhaust them would find the claims procedurally barred
. . . .” Kittelson v. Dretke, 426 F.3d 306, 315 (5th Cir. 2005).
       2 Federal review of a defaulted claim is also available where the petitioner “demon-
strate[s] that failure to consider the claims will result in a fundamental miscarriage of jus-
tice.” Coleman, 501 U.S. at 750. That exception is not at issue here, because Norman does
not maintain that failure to consider his claim will result in a fundamental miscarriage of
justice.
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                                  No. 15-70034
implicate, and in fact merge with, a review of the substantive merits of his
[Washington] claims.” Norman, 2015 WL 5732122, at *12. The court’s con-
flation of those issues makes it more difficult to follow its analysis. But, as we
explain, we agree with the state that the court was correct in concluding that
procedural default bars review of Norman’s claim of ineffective assistance of
trial counsel and that reasonable jurists could not disagree.

                                       A.
      Norman maintains that he had cause for his state procedural default
because state postconviction counsel provided IAC in not raising the neuropsy-
chologist issue in state court. Although an attorney’s errors in a postconviction
proceeding generally do not qualify as cause to excuse a default, Coleman,
501 U.S. at 752–53, the Supreme Court has created an exception. In Martinez
v. Ryan, 132 S. Ct. 1309 (2012), it held that a prisoner may establish cause for
a default of an ineffective-assistance-of-trial-counsel claim in an “initial-
review” collateral proceeding, i.e., a collateral proceeding in which the prisoner
is able to raise the IAC claim for the first time. He must show both that the
“appointed counsel in the initial-review collateral proceeding, where the claim
should have been raised, was ineffective under the standards of [Washington]
. . .” and that “the underlying ineffective-assistance-of-trial-counsel claim is a
substantial one, which is to say that the prisoner must demonstrate that the
claim has some merit.” Id. at 1318. In Trevino v. Thaler, 133 S. Ct. 1911
(2013), the Court held that Texas’s procedural regime was similar to the one
in Martinez because Texas’s scheme rendered it almost impossible to raise IAC
claims on direct appeal. The Court therefore extended Martinez’s exception to
Texas: The lack of effective counsel during initial state collateral-review pro-
ceedings can excuse procedural default on an IAC claim. Id. at 1921.

      Norman fails to satisfy Martinez’s and Trevino’s test for establishing

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cause. Under those decisions, Norman may show cause for his default by
demonstrating that his underlying ineffective-assistance-of-trial-counsel claim
is substantial and that his state postconviction counsel was ineffective under
Washington. The problem for Norman, however, is that his claim of ineffective
assistance of trial counsel is not substantial.

       To demonstrate that it is substantial, Norman would have to show that
he might be able to satisfy Washington, 466 U.S. at 687, which requires a pris-
oner to prove both deficient performance and actual prejudice. He demon-
strates deficient performance by “showing that counsel made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment.” Id. “Judicial scrutiny of counsel’s performance must
be highly deferential[,]” id. at 689, and must consider “whether counsel’s
assistance was reasonable considering all the circumstances[,]” id. at 688. The
prisoner demonstrates actual prejudice by “showing that counsel’s errors were
so serious as to deprive the defendant of a fair trial [or a fair capital sentencing
proceeding] . . . .” Id. at 687. 3 Except where there is a conflict of interest, a
prisoner generally must “affirmatively prove[] prejudice.” Id. at 693. The proof
need be only to a “reasonable probability” rather than satisfying the more
stringent “more likely than not” standard. Id. at 693–94. 4

       Norman fails to satisfy Washington because he cannot demon-
strate actual prejudice. Mayfield’s conclusions were largely cumulative of the



       3  See Washington, 466 U.S. at 686 (“A capital sentencing proceeding . . . is sufficiently
like a trial in its adversarial format and in the existence of standards for decision that coun-
sel’s role in the proceeding is comparable to counsel’s role at trial—to ensure that the adver-
sarial testing process works to produce a just result under the standards governing decision.”)
(citation omitted).
       4Id. at 694 (“The defendant must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.”).
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testimony already adduced at trial. The defense had presented information on
Norman’s IQ, learning disabilities, deficits in reading and writing, and troub-
led childhood, including his parents’ drug-dealing and abusive behavior and
his father’s death at the hands of police. The only part of Mayfield’s report
that was not already before the jury was her conclusion that Norman’s tested
abilities “were within normal limits.” Mayfield did not diagnose Norman with
any neurological or psychological disorder and did not report any childhood
trauma or injury. Consequently, even if trial counsel was ineffective in not
procuring a neuropsychologist, the allegedly deficient performance did not pre-
judice Norman. 5

                                              B.
       Even if Norman could demonstrate cause for his procedural default,
under Coleman the default would still preclude federal review unless he dem-
onstrated actual prejudice, which he has not done. As already discussed, he
cannot show that counsel’s failure to procure a neuropsychological expert wit-
ness prejudiced him under Washington. He is thus likewise unable to demon-
strate actual prejudice to overcome his state procedural default.

                                             IV.
       Norman requests a COA on “[w]hether reasonable jurists could disagree
that Mr. Norman received the effective assistance of counsel at trial[.]” In



       5 The cases that Norman cites in support of his claim that trial counsel provided IAC
are easily distinguished on the ground that they involved prisoners who actually suffered
from mental illness. See Pruitt v. Neal, 788 F.3d 248 (7th Cir. 2015) (postconviction evalua-
tions resulting in a diagnosis of schizophrenia), cert. denied, 2016 U.S. LEXIS 1099 (U.S.
Feb. 29, 2016); Doe v. Ayers, 782 F.3d 425 (9th Cir. 2015) (substantial evidence of mental
illness not presented at trial); Miller v. Dretke, 420 F.3d 356 (5th Cir. 2005) (where multiple
physicians had diagnosed patient with psychological and neurological disorders before the
crime but were not called to testify at the punishment phase); Jacobs v. Horn, 395 F.3d 92
(3d Cir. 2005) (postconviction testing that revealed neurological disorders).
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other words, Norman seeks a COA to appeal the merits of his habeas claim,
which, despite the procedural default, the district court ruled on as an alterna-
tive basis for denying Norman’s petition.

      As explained above, reasonable jurists would not disagree with the dis-
trict court’s procedural ruling. Consequently, the court’s merits determination
is moot and may not be appealed. We deny a COA on the third issue.

                                       V.
      Norman claims the district court should have conducted an evidentiary
hearing. Under the Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a state prisoner must obtain a COA before he can appeal the denial
of a habeas petition. 28 U.S.C. § 2253(c)(1)(A). No similar requirement, how-
ever, exists for an appeal from the denial of an evidentiary hearing. We thus
construe Norman’s request for a COA on this issue as a direct appeal from the
denial of an evidentiary hearing.

      In habeas appeals, “a petition challenging an evidentiary ruling may
only be entertained as corollary to a constitutional violation.” Alix v. Quarter-
man, 309 F. App’x 875, 878 (5th Cir. 2009) (per curiam). Because we have
determined that Norman’s constitutional claims fail, we do not address the
merits of his request for an evidentiary hearing. If we were to do so, however,
we would deny it.

      When 28 U.S.C. § 2254(e)(2) applies, the court cannot grant an eviden-
tiary hearing unless the prisoner shows, first, that “the claim relies on—(i) a
new rule of constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable; or (ii) a factual predi-
cate that could not have been previously discovered through the exercise of due
diligence” and, second, that “the facts underlying the claim would be sufficient

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to establish by clear and convincing evidence that but for constitutional error,
no reasonable factfinder would have found the applicant guilty of the under-
lying offense.” 28 U.S.C. § 2254(e)(2). Norman has made no attempt to demon-
strate that he satisfies these two criteria. Consequently, the provision bars an
evidentiary hearing unless § 2254(e)(2) fails to apply to the claims of IAC.

      Section 2254(e)(2) applies “[i]f the applicant has failed to develop the
factual basis of a claim in State court proceedings[.]” In Williams v. Taylor,
529 U.S. 420, 432 (2000), the Court interpreted the phrase “failed to develop”
as meaning “lack of diligence, or some greater fault, attributable to the pris-
oner or the prisoner’s counsel.” A prisoner, the Court held, has not failed to
develop the factual basis of a claim in state court just because “his diligent
efforts to perform an act are thwarted, for example, by the conduct of another
or by happenstance.” Id.

      Norman does not satisfy Williams, because his claims, by their very
nature, are premised on the failure of “the prisoner’s counsel” to develop the
factual basis of the claims in state court. Id. But Norman urges us to follow
Sasser v. Hobbs, 735 F.3d 833, 853 (8th Cir. 2013), which interpreted Williams
as standing more broadly for the proposition that failure to comply with
§ 2254(e)(2) can be excused if the failure was for “cause,” such as, specifically,
ineffectiveness of postconviction counsel.

      Norman also points to Dickens v. Ryan, 740 F.3d 1302 (9th Cir. 2014)
(en banc), which created an exception to § 2254(e)(2) under a different theory.
The court reasoned that § 2254(e)(2)’s procedural bar against the granting of a
hearing applies only to evidentiary hearings on claims for “relief,” which the
court distinguished from evidentiary hearings “to show ‘cause’ under Mar-
tinez.” Id. at 1321. A petition for habeas relief—here the claim that trial
counsel provided IAC—is a constitutional claim.         See id.   In contrast, a

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contention that postconviction counsel provided IAC under Martinez is merely
equitable in nature. Id. (citing Martinez, 132 S. Ct. at 1319–20).

      We need not decide whether we may grant an evidentiary hearing if
there was “cause” for a procedural default within the meaning of Martinez and
Trevino, because, as explained above, Norman cannot overcome the default of
his underlying ineffective-assistance-of-trial-counsel claim. Because “the dis-
trict court retains discretion over the decision to grant an evidentiary hearing
once a petitioner overcomes the barriers presented by § 2254(e)(2)[,]” Clark v.
Johnson, 202 F.3d 760, 765 (5th Cir. 2000), we may impose other requirements,
before granting an evidentiary hearing, in addition to the ones set forth in
§ 2254(e)(2).

      A district court may refuse an evidentiary hearing where there is not “a
factual dispute which, if resolved in [the prisoner’s] favor, would entitle him to
relief.” Id. at 766. Because that is the situation here, the court did not abuse
its discretion in denying a hearing. Norman has been granted both time and
funding to develop his IAC claim for failure to hire a neuropsychologist, but he
still has been unable to adduce any favorable mitigating evidence. The state
did not challenge Mayfield’s report or its findings but, instead, accepted the
report and urged that Norman’s petition be rejected, notwithstanding that new
evidence. The district court agreed with the state’s position, as do we. The
denial of an evidentiary hearing was correct.

      The application for a COA and the request for an evidentiary hearing are
DENIED.




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