determined contrary to this district court's opinion decision the norse's jurors could give mitigating effect to his evidence of emotional distress or hot temper in good behavior and good character additional research why because after i found out what the entry all were interested in i went back and did more of the search i'm smarter now that i was when i wrote the bre rule in this circuit is that no panel may overrule a prior panel's determination as a corollary to that when panel opinions appear to conflict the court is bound simply i simply say it didn't address these cases a what are your cases ok that newton which is three seventy one f three two fifty two thousand four for eighty two f three eight fifteen ninety two thousand and seven that's an alternative hold these are all cases that you say proceeded piers that's correct  then it's not twenty a j material it's not new merely a rising material it's a new development because you discovered it late in that case it would be a new development anyway what's the what's the big proposition that was opposition is that good character that the jurors with the two special issues deliberateness in future danger can give mitigating effect to evidence of good behavior and good conduct but even subsequent  them so i know subsequent appears cases like mcgowan which is looking at a conviction that became final ninety two ninety three percent judge owens decision i don't recall that in a gallon said that good conduct good behavior evidence troubled character and good character troubled background and good character trouble background i'll give you a good character but yet what's the date on the gown well nick allen the convictions were final and ninety two ninety three the date of the decision on our courts two thousand and twelve it's an extended discussion an application appears well again i would say the court conflicts the earlier cases oh it too would be too if it follows pierce pierce is the outli allow opposing counsel to to give us a letter of whatever length they think he's appropriate to i addressed all these because it comes as a surprise i'm not even suggesting that you as the even might get credit for making this argument since it wasn't made in your brief we'll have to look at that i would suggest that an argument made for the first time an oral argument is what would be have effect i would also say usually we say that the arguments have to be made in the blue brief well i'm not even in the reply brief that's correct and and i think you will find some some cases that say  that that argument is made for the first time and our arguments are already accepted but we will we will look at that to determine whether it's the kind of thing that you would be precluded from raising but in any event opposing counsel can give us whatever they wish  limited to these cases rocked and i would even if there were a general proposition contrary to pearson law and reading your cases in this case if during voir dire or in closing the prosecutor ever said you've got to only consider mitigation as it relates to those two special issues that would be a problem that would be a problem that did not happen here and they don't complain about that well when i was reading the board dear it does come up for example i'm sure you know the record well perspective your camp do you remember her i have she complained saying what about mitigation that doesn't fit and she was specifically told no those special issues corral them and that was the word used corralled well i would say that concerns in this case are campout it by what i think i'm right in saying was the government very interesting closing argument strategy of guilt and punishment phase where they waive initial government closing which means the defense has got to go first the government only gives a closing in rebuttal you member this that that is i was there almost routine in harris county but what that means in the penry world is exactly what happened at sidebar after the government's closing of the punishment phase where the defense attorney said please can i talk about my daughter my client's daughter and that is mitigation i need to be able to respond to the prosecutor's argument that he's got a lifestyle of being a child killer there was nothing that prevented the jurors from but if the defense didn't have the opportunity even urge the mitigation i don't think they specifically objected to the lack of ability to respond or they way they said that in fact it was making them ineffective constitutionally ineffective that they couldn't give rebuttal and then they proffer the robot were within the briefs that have been submitted not in the brief  citations as well as opposing counsel sir no problem unfortunately there's more to come as once you know that this case is controlled graham and t the texas statute at the time asked the sentencing jurors whether nora's acted deliberately and whether or not he posed a future danger brown of california her versus brown and said they have such evidence was mitigating because of society's long held belief that defendants who commit criminal acts attributable to a disadvantaged background or to emotional or mental t about three years later graham came along graham offered evidence of youth positive traits he was churchgoing huge respect for he was peaceable he loved the lord it was positive family background he asked for a general mitigation instruction in line with henry the supreme court determined that because graham did not offer pen restyle evidence his request for a pen restyle general medication instruction was a request for a new rule and barred by t the graham rule roughly is this when you do not have henry style evidence but seek a pin restyle general mitigation instruction you seek a new rule a new rule or by take the new rule as a rule is not dictated by president existing at the time the defendant's conviction became final it validates the state courts interpretation of existing president precedent if the interpretations are reasonable and in good faith and the principle applies even if the good faith interpretation runs afoul of later decisions thus unless reasonable jurist hearing the petitioners claim at the time his conviction became final would have felt compelled not allowed to compel by existing president to rule the defendant's fa i don't think the state specifically argued that teague blocked the application of the new rule i'm going by memory i could be wrong and i'm talking about peers now doesn't change their appearance result does not change the piers court determined that the defendant offered evidence of childhood difficulty not childhood abuse childhood difficulty he had spent some time good conduct good character language they go so far as to say the language is addictive but it's not necessary to the judgment to the ultimate decision disc the errors the court made below the courts determined that the jurors using the deliberateness and future danger questions could not give mitigating fact to nor with jurors with the deliberate with the deliberateness and future danger script future dangerousness questions can give mitigating effect to evidence of a hot temper jealousy and the defendant's having blown up that is west five sixty one nine hundred ninety four court also suggested that hot temper emotional distress is dual edged evidence logically that doesn't follow here's why with due alleged evidence there is a positive correlation between the aggravating aspects of the evidence and the mitigating aspects of the evidence for example in penry intellectual disability the greater the disability the greater the likelihood he's a future danger but the greater mitigation child abuse the greater the abuse the greater likelihood he's going to be a future danger but the greater the mitigation the greater likelihood that he's less culpable with hot temper it doesn't work that way hot temper is mitigating because of its transitory nature because under graham it's an aberration not the future danger question in connection with intellectual disability and child abuse dictates a positive answer an affirmative answer that's not the case w hot tempered hot temper could very well dictate a negative answer to the future danger and to the deliberateness question the jurors may take a look at it and say because it's an aberration he did not act deliberately and he will not pose a future danger not saying they would have decided that but i'm saying it was a logically within their grasp good conduct good character evidence the court said church involvement long term gainful employment close family relationships were not relevant to the issue of future dangerousness and deliberateness i've cited the cases or old there on the record that were given to the  given to the appalachian suggesting that stating that such evidence is cognizable within the deliberateness and the future danger questions and these predate taig i mean you can create peers and under the rule of ordered orderliness would be controlling and these cases for the most part i think are not addressed by peers i would also in terms of good behavior i would also note the franklin franklin decision in franklin supreme court plurality determined that good behavior in prison could be aspects so that's a majority suggesting that good behavior in prison is cognizable within the future dangerousness question well i would say with greater logical force the good behavior in the restrictive environment o prison is indication of future peaceable mass then good behavior in the less restrictive free world is even greater evidence of future pea inclusion i would say that in october of ninety ninety five the date that relevant for teague purposes reasonable jurists would not have felt required to grant nor us give us give the the courtroom deputy a list of those citations without any embellishment or explanation of the cases just the citations you can give up and cite for the page numbers but that's it we don't want any more gloss from you about what those what those cases say epp it lays on the other hand are allowed however many pages they wish to make any kind of response regarding those those cases separately from that he will give us a letter personally signed by the attorney general can paxton explaining what it is what the position of the attorney general of texas is regarding the failure of the state to state his cases in the blue brief made please the court my name is patrick mccann and i'm here today to represent michael morris who is the apple e in this matter mr north has also brought a request for a certificate of appeal ability raising several issues including the prosecutorial misconduct that we believe did affect the outcome in this the chickens and mention we're here today yesterday and let me just explain on behalf of the court that we know that you're at it at a serious disadvantage having had all this on you today we want to give you every opportunity to respond and we certainly don't expect you and except to the extent you may be knowledgeable about these cases to give us a response we're going to look very seriously  that is in because the state of texas through him is asking this court to ignore the factual findings of a fairly tough minded district court in houston to go against this circuit's own prior panel decision and to ignore basically three decades of supreme court guidance that say one can limit the type and number of offenders who are eligible for the death penalty but one cannot limit the mitigation that a jury may consider in these matters and that is the holding of penry and if we go if i may dispose of my colleagues retroactivity and other arguments relating to the time of this according to penry itself then we did not state a new rule it simply applied what should have been the rule since one nine hundred seventy eight under lock at the ohio and since the in the supreme court's decision where the justice said that they found no way for reasonable juror to apply henri's mitigating evidence under those two special issues i in challenge to attempt to squeeze the type of evidence that mr norris had and that the district court found into a question on deliberateness and on the other hand a question a future danger good character does not apply to deliberate mis and although conceivably one could find certain aspects of good character to be relevant to a future danger argument the problem is that good character was not the only thing that was offered here by mr gore's his emotional disturbance which the district court of knowledge also in the record if the court would cast its eye there it would find that the arresting officer acknowledged that mr dorsey expressed remorse and re morse is mentioned specifically in pierce as the type of evidence is that not fit the texas special issues in jersey texas the state much like a drowning man clinging to a life raft has been saying the jerk was facially constitutional for decades the problem is that jerk itself said we uphold the facial challenge on the condition that texas courts interpret mitigating information broadly enough so that all that type of information under lock and  that they thought that solve the problem it did not it was that way in smith v texas when they attempted to limit again the type of mitigating evidence that comes in and again my colleague attempts to bring down and limit and funnel the type of evidence that comes in under a penry analysis and that has consistently been struck down by the supreme court i also would point out of the timeline that in one nine hundred ninety five lockett was seventeen years old henry itself was six years old and the texas legislature had already crafted a remedy for the penry issue and come up with the now familiar mitigation instruction in texas and had jettisoned the deliberateness question completely by the time that on direct appeal that this was decided perry had been the law for some time if one looks at when the stay hey b s decisions came down we are now in we are now actually on one of the post peers i believe and in those cases all of the cases that i have mentioned and all the cases cited in piers abdul kabir for instance all of those were the law when the state habeas decisions came down i sympathise with this court if it attempts to unravel the court of criminal appeals heaviest decisions in this matter but as the district court said we don't have to get there this is straight forward there is significant evidence that needed to be considered by a jury that might have mitigated against the death penalty for mr nourse at the time of his trial there was no way for them to get there and at the time of his trial henry was the law of the land this is a simple case perhaps more simple than the state would like it to be because the government of texas has never liked the result of pending they have not wanted this to be the law for some time and they continue to try and lead this court away from its own precedent its own recognition of the issues in penry the district courts who have been applying this for relief for some time and if i may the court of criminal cases that are after mr norris's so this this court and its sister court and the supreme court are actually on the same page and it is not the page of the government of texas i'm sorry it's simply not i appreciate the court's stepping up and intervening on the input of new matters and i would happily respond to those but i urge this court to sit there and make it clear in its decision regardless of the briefing that may come down on this that penry is the law there must be a vehicle for a jury to express its reasons more response to reason for mercy and those reasons are as vast as any human can possibly imagine and if we don't do that then we actually do fly in the face of clearly established supreme court law the deference intitled to fact findings by the district courts into this court and its circuits own precedence that is what the state wants you to throw away i don't know a way for this court to fill its duty and do it the state asks it to do giving and looking at both penry one and penry two to see where a attempt needed to be made to fix the question was given and then a recording under penry two of how those attempts went and what was not proper i think if one looks at those things and then looks said abdul qadeer and peers in tand m i think that the path is fairly clear the path has been that we needed we in in texas needed a question that gave the jurors a chance to express their moral reason we didn't quite get it until the legislature came up with something that was fine afterwards it has been upheld and generally speaking anything that comes up for mitigation most times is not going to fit within the narrow aspects of the juror questions and juric was conditioned upon a penry type reading of many getting information if you look at those as a holistic whole in a fabric i think the reasoning becomes clear this court itself helped spur the review in penry by its own opinion it was cited in country from then it has always been you cannot limit the jury's consideration of reasons not to impose death you can limit the state's ability to seek it against certain characters against certain people and against certain classes offenders or types of office those two streams have been very clear and nothing the state is offered in the case is not that i'm familiar with these they only because the issues in that happen to come up in another brief but that doesn't change the penry stream of reasoning and the problem is on a practical level that the state asking the for remedy that is already here if as this court may take your dish will notice if mr nourse is sent back for a trial in harris county where i practice as a matter of public record the da has made it very clear that she will retry these cases and in the region files they get the mitigation question so essentially we are here that's not in the record we really can't consider that it's not in the record your honor but it is it is certainly in the law and now that under a retrial that the  being retried for punishment gets the penry instruction and that's a matter of public law that is excessively to this court and that remedy is or is available now if this court simply affirms the findings of the district court below which it should give deference to in any case and the last part i would say and pending of course many of your questions when a sta court gets supreme court law wrong it is unreasonable it isn't unreasonable that location of supreme court law when they simply don't try and follow to the best of their ability what's clearly written down by the supreme court and that is that that is a fair statement we we all we all know the supreme court has has has given the state courts a good bit of latitude in terms of what what is reasonable application of the supreme court and i think that's very owner and him in this case all that we're asking is for mr nor to get the penry instruction to which he should be entitled and which now is texas law and which he would get on retrial and that's all the district court will say and frankly that's all that pierce says it says if we're going to impose this section this penalty then there has to be an opportunity for a jury to consider reasons for mercy and that's what of integration question is under law and that's what he would get if this court issue and a gallon as well as troubled childhood i believe good character was exactly at issue troubled childhood to be fair to my colleague was but the problem with trying to limit penry type evidence a troubled childhood is just like the nexus requirement that used to  try to be imposed and that's that's been clearly not the law for some time it was clearly not the law when mr norris actually had his final his decision from a good character in this case was churchgoer decent towards his daughter and his mother remorse and the remorse yes or the daughter did testify that the daughter testified not to the degree that i believe the defense counsel wanted to go into because of the issue that you  raised earlier i think she was limited in his questioning but the daughter did testify the the remote force did come out and sort of the jury but again no way to express their reasoned response under those questions fortier when the jurors were being forty or where they told you have to corral it into these special issues do you have a memory of i believe the prosecutor's comments were would be read that way obviously defense did not want to do that and the judges for dar  didn't really address those questions but the prosecutor certainly attempted to limit us in that way if the court has no further questions i would ask it to affirm the grant of relief by the southern district and i look forward to answering the citations brought forth by my colleague and i on behalf of my colleague i would ask this court to exercise  leniency in the fact that if he did prepare perhaps poorly that it consider a lesser section that it might normally do is this is clearly a duty imposed upon him rather than his own i think you can let see so do you think you'd be able to submit your material within thirty days which would be may sixth of course you're well enric rather than rebuttal i just want to apologize i meant no disrespect to this court if there is a misstep on my part it is simply that i did not view this as twenty eight j material i didn't view this as  think that's that's fair because we do have almost every day we get a twenty eight j letter in some cases in which an attorney isn't submitting new material but his submitting something that he or she myself shouldn't be held against you on the other hand you as the appellant do have the obligation to present a thorough argument in order for us to to to consider it and in coming in for the first time in oral argument and and in bringing a bunch of new cases and bring in for the first time a contention that if that an important case like like like pierce is not proper binding precedent that's that's a different matter from that from the twenty eight twenty a j but you're you're right in the wording of that rule you should not have submitted the all cases i would also say that if this court wishes to ignore completely my oral argument and rely on my written brace i'm comfortable with that they think that the rule of ordering as the court is aware of the r the court has presume to know the law i rely on the court i would also say that i fully expected there to be some sort of post hearing briefing that is i would turn over the cases this is happened in the past with me where courts have asked for additional briefing after oral argument i certainly didn't wish to lie behind the log in connection with apple these attorneys this was simply i didn't know i didn't know the way to do it other than to simply bring it up orally and then ask the court for permission for some post here in the briefing and i apologize that there's kind of a fine line and it should be a fine line sometimes it's a fuzzy line on the obligation we impose on appellate status we have a lot of cases to say we don't consider arguments that are raised in the initial brief on the other hand if the argument is made but not all the cases are cited then that is sometimes a different question how that's going to play out with with you i don't know it may be that we will determine district court judgment sufficiently that that will rule on it but that's that's just something we'll have to look at carefully and it can get somewhat complicated that i will say that when the court issued its hearing order  through the issues it wanted to address and at that point i realized in terms of peers that i was in deep water and i just did more research and