Texas Department of Criminal Justice

Texas Attorney General Media Advisory

AUSTIN – Texas Attorney General Greg Abbott offers the following information on Lorenzo Morris, who is scheduled to be executed after 6 p.m. Tuesday, November 2, 2004. On March 23, 1992, Lorenzo Morris was sentenced to die for the 1990 capital murder of Jesse Fields in Houston. A summary of the evidence presented at trial follows.

FACTS OF THE CRIME

Lorenzo Morris attacked 70-year-old Jesse Fields on August 5, 1990, cutting his throat and bludgeoning him in the head with a hammer at the victim’s Houston home.

According to Judy Courtney, Morris’ girlfriend at the time, she and Morris were in Field’s home when she saw Morris sitting on top of Fields holding a knife in one hand and beating him with the other. Courtney heard Morris tell Fields that he was going to kill him and then asked Fields where he kept his money. Courtney testified that she did not call the police because she was afraid of what Morris might do if she reported what she had seen. Field’s ex-wife and his granddaughter discovered Field’s body the following day on the floor of his home in a pool of blood.

From the attack by Morris, Fields suffered severe head injuries and irreparable brain damage. He remained in a vegetative state in a hospital and developed pneumonia and gangrene requiring amputation of a leg. Fields died on May 11, 1991, a day after the amputation. Doctors attributed Fields’ death to the head injuries, with pneumonia and the amputation listed as contributing factors. Fields was 71 at the time of death.

After Fields’ death, Morris, who had originally been charged with aggravated robbery, was charged with capital murder. In a written statement given to police, Morris claimed that he went to Fields’ house to buy drugs and that a fight broke out after Fields refused to give him free “dope.” Morris stated that after he struck Fields in the face, Fields pulled out a knife and tried to stab him. Morris then claimed that he grabbed the knife away from Fields and stabbed him in the neck. Fields then ran and got a hammer, which Morris also wrestled away from him. Finally, Morris claims that he hit Fields twice with the hammer, and then ran out.

PROCEDURAL HISTORY

July 31, 1991 -- Morris was indicted by a Harris County grand jury for the capital murder of Jesse Fields.
March 19, 1992 -- Morris was found guilty by a jury for the offense of capital murder.
March 23, 1992 -- Following a separate punishment hearing, Morris was sentenced to death.
December 7, 1994 -- The Texas Court of Criminal Appeals affirmed Morris’ conviction and sentence on direct appeal.
May 15, 1995 -- The U.S. Supreme Court denied Morris’ petition for writ of certiorari.
October 21, 1996 -- Morris filed an application for writ of habeas corpus in the state trial court.
May 3, 2000 -- The Texas Court of Criminal Appeals denied Morris’ application for writ of habeas corpus.
February 6, 2002 -- The Texas Court of Criminal Appeal dismissed Morris' successive state habeas application.
February 8, 2002 -- Morris filed a federal petition for writ of habeas corpus in a Houston U.S. district court.
March 24, 2003 -- The federal district court dismissed Morris’ federal habeas petition.
June 2, 2003 -- Morris requested permission to appeal from the 5th U.S. Circuit Court of Appeals.
January 6, 2004 -- The 5th Circuit denied Morris’ request to appeal the denial of his habeas petition.
April 5, 2004 -- Morris petitioned the U.S. Supreme Court for a writ of certiorari.
October 4, 2004 -- Morris’ petition for writ of certiorari was denied by the U.S. Supreme Court.

PRIOR CRIMINAL HISTORY

Morris’ prior criminal history includes his convictions for (1) 1972 aggravated assault of a police officer (2) 1976 aggravated robbery (3) 1982 robbery (4) 1991 aggravated robbery for which he is serving a concurrent life sentence.

ProDeathPenalty.com

A judge set an execution date for a death row inmate whose victim spent eight months in a coma and died after contracting a foot infection in his nursing home bed. Lorenzo Morris, 51, stood silently before state District Judge Michael Wilkinson, who granted prosecutors' request that Morris die by injection Nov. 2.

Morris attacked 71-year-old Jesse Fields on Aug. 5, 1990, cutting his throat and bludgeoning him in the head with a hammer at his Houston home. Morris later confessed, saying he flew into a rage because Fields had no drugs to sell, court records show. Morris said he took money from Fields' home and left him lying in a pool of blood. The attack left Fields in a coma. Eight months later, he was in a nursing home when he developed gangrene in his foot. Doctors amputated his foot to prevent the spread of infection. Fields, who had been comatose since the attack, died the day after the operation.

After Fields' death in May 1991, charges against Morris were upgraded from robbery to capital murder. Morris lost a series of appeals in recent years. He claimed that he was not guilty of capital murder because Fields' death was in part the result of poor nursing home care rather than his attack.

He also claimed his death sentence was unfair because outdated laws at his 1992 trial prevented jurors from hearing about the extenuating circumstances of his life, including childhood neglect, drug abuse and military service. Morris is a Vietnam veteran who became a drug addict while serving in Southeast Asia. He was forced to leave the Army because of misconduct related to his drug use, his attorney said. Texas law now requires jurors to consider whether any mitigating factors - such as a deeply troubling childhood - suggest a person should not receive the death penalty despite his guilt. In a separate trial, Morris received a life sentence for a May 19, 1990 wash-a-teria robbery in which he wounded But Van Nguyen.

UPDATE: Condemned inmate Lorenzo Morris asked that no last-day appeals be filed for him to try to block his scheduled execution Tuesday evening. "He's made peace with the situation," Morris' lawyer, Rob Morrow said Monday. Morris, 52, would be the 19th Texas inmate put to death this year and the first of two this week.

The former laborer and Nacogdoches native already had arrests for assault, robbery, weapons and drug possession and had served at least two prison terms when he was arrested for stabbing and beating with a hammer a 70-year-old Houston man. When Jesse Fields died nine months after the August 1990 attack, Morris wound up charged with capital murder, was convicted and condemned. The Texas Board of Pardons and Paroles voted 6-0, refusing to either commute his sentence to life in prison or grant a temporary reprieve. The U.S. Supreme Court last month declined to review his case.

"He doesn't want to go through or put his family through what Dominique went through," Morrow said. "I don't think anybody wants to live through what Green did - you're gonna die, you're not gonna die. He was just down a couple of cells from Green and I think it's a horrible thing for anybody to go through." Court records indicated Morris, who contended he became a drug addict while serving in the military in Vietnam, blamed Fields' death on poor health care after the beating. Fields died a day after doctors had to amputate a leg that had become infected. Previous unsuccessful appeals also said jurors in his case should have been allowed to hear he had been affected by the deaths of his two sisters in a house fire and that his mother was an alcoholic who often neglected her children.

Texas Execution Information Center by David Carson.

Lorenzo Morris, 52, was executed by lethal injection on 2 November 2004 in Huntsville, Texas for the murder of a man while robbing him in his home.

On 5 August 1990, Morris, then 39, and his girlfriend, Judy Courtney, went to the home of Courtney's neighbor, Jesse Fields, 70. A fight broke out. Morris hit Fields, stabbed him with a butcher knife, and struck him twice with a hammer. Morris took some money from Fields' house, then he and Courtney then left.

Fields's ex-wife and his granddaughter discovered him the following day. He was lying on the floor in a pool of blood. He was in a coma, having suffered severe head injuries and brain damage in the attack. Fields was treated at a hospital first, then later moved to a nursing home.

Morris was arrested in March 1991 after robbing a laundromat and shooting the clerk. He was convicted of aggravated robbery in that case and sentenced to life in prison. He was also charged with aggravated robbery in the Fields case.

In a statement to police, Morris claimed that he went to Fields' house to buy drugs. He said that he asked Fields for some free drugs and Fields refused. He then struck Fields in the face. Morris said that Fields then pulled out a knife and tried to stab him. Morris grabbed the knife from fields and stabbed him in the neck. Next, Fields ran and picked up a hammer, which Morris also took from him. Morris said that he hit Fields twice with the hammer, then ran out.

After nine months in a coma, Fields developed gangrene in the toes of one leg and had to have the leg amputated. He died the day after the amputation. The nursing home physician attributed Fields' death to natural causes, but the Harris County Medical Examiner's office ruled it to be a homicide. The charge against Morris was then changed to capital murder.

At Morris's trial, Judy Courtney testified that she saw Morris sitting on top of Fields, holding a knife in one hand and beating him with the other. Courtney said that Morris told Fields he was going to kill him, and then asked where he kept his money. Courtney testified that she did not call the police because she was afraid of what Morris would to to her if she did.

Two doctors who treated Fields at the hospital before his death testified that Fields' injuries from the beating were the root cause of his death.

Morris had a lengthy criminal record. In 1972, he was convicted of aggravated assault of a police officer. In June 1976, he was convicted of aggravated robbery and sentenced to 5 years in prison. He served 18 months of that sentence before being paroled in January 1978. In April 1982, he returned to prison with an 8-year sentence for robbery. He was paroled in December 1982 and was discharged from parole in September 1986.

A jury convicted Morris of capital murder in March 1992 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in December 1994. All of his subsequent appeals in state and federal court were denied. Morris's appeals lawyer claimed that Fields died from natural causes and poor medical care, and that Morris's trial attorney provided ineffective assistance by failing to call the nursing home physician as a witness to testify to that effect. The courts rejected this argument. "I didn't kill him, he died of natural causes," Morris said from death row.

On the day of his execution, Morris asked his lawyer, Rob Morrow, not to make any more appeals on his behalf. "He let me know that he had made peace with the situation," Morrow said. Morris declined to make a last statement at his execution. He was pronounced dead at 6:13 p.m.

Dallas Morning News

"Convict in stabbing, beating executed." (Associated Press November 3, 2004)

HUNTSVILLE, Texas – A man condemned for the stabbing and beating of a 70-year-old man was executed Tuesday night. When asked by the warden if he had a final statement, Lorenzo Morris replied, "No." As the lethal drugs began to flow, Morris closed his eyes. He took one deep breath and sputtered twice before being pronounced dead six minutes later at 6:13 p.m. CST.

Two of victim Jesse Fields' granddaughters and his daughter witnessed the execution. Morris' family visited with him earlier in the day but did not witness the execution. Morris had asked that no last-day appeals be filed to try to block his scheduled execution.

Morris' attorney, Rob Morrow, said his client made the request in order to spare his family any additional "despair or upset." "He let me know that he had made peace with the situation," Morrow said Tuesday of his final visit with Morris. "We don't agree with what has happened, but we understand it." Morris, 52, was the 19th Texas inmate put to death this year and the first of two this week.

The former laborer and Nacogdoches native already had arrests for assault, robbery, weapons and drug possession, and had served at least two prison terms when he was arrested for stabbing and beating Fields with a hammer. When Fields died nine months after the August 1990 attack, Morris wound up charged with capital murder, was convicted and condemned. He was already serving a life sentence for the robbery of a coin-operated laundry where the clerk was shot twice but survived.

The Texas Board of Pardons and Paroles voted 6-0, refusing to either commute Morris' death sentence to life in prison or grant a temporary reprieve. The U.S. Supreme Court last month declined to review his case.

Last week, in another Harris County case, condemned inmate Dominique Green won a temporary reprieve in an appeal that cited problems at the Houston Police Department crime lab as reason to halt his punishment. Green's lawyers contended boxes of improperly stored and catalogued evidence kept by the crime lab and recently discovered could contain information relevant to his case and the injection should be delayed at least until the contents of those files could be inspected. State lawyers won an appeal that overturned the reprieve and Green was executed. Morris' case falls into the same time frame for the contested lab files, although prosecutors said they had accounted for all the evidence presented in his case. Morris didn't want to go through the same uncertainty faced by Green, who lived a few cells down from him, Morrow said.

Court records indicated Morris, who contended he became a drug addict while serving in the military in Vietnam, blamed Fields' death on poor health care after the beating. Fields died a day after doctors had to amputate a leg that had become infected. Previous unsuccessful appeals also said jurors in his case should have been allowed to hear he had been affected by the deaths of his two sisters in a house fire and that his mother was an alcoholic who often neglected her children.

Fields was in a coma when Morris was arrested in March 1991 for shooting the coin-operated laundry operator. In interviews with police, Morris told them about the attack on Fields, but contended the victim first had come at him with the hammer, according to prosecutors. His girlfriend at the time, however, testified she saw Morris sitting on the elderly man while holding a knife and demanding to know where he kept his money. She said she never called police because she feared for her own safety.

Houston Chronicle

"Inmate executed for Houston man's death," by Lise Olson. (November 2, 2004)

Lorenzo Morris was executed tonight for the beating death of a 71-year-old Houston man, becoming the 19th inmate put to death in Texas this year. Lawyers for Morris, 52, had argued unsuccessfully that he did not actually commit capital murder because the victim died of natural causes. Morris made no final statement and closed his eyes as the lethal drugs flowed into his veins at 6:07 p.m. He was pronounced dead at 6:13 p.m.

Morris was sentenced to death 13 years ago in Harris County for the murder of his neighbor, Jesse Fields, 70, who died nearly nine months after Morris hit him in the head repeatedly with a hammer on Aug. 5, 1990, in an unprovoked attack at Fields' home. Fields died May 11, 1991.

Three members of Fields' family witnessed the execution -- a daughter and two granddaughters, but none would speak to reporters afterward. At the time of the trial, Fields' family testified that Fields may have been old, but was a vibrant man, and that Morris had robbed them of a loved one.

Harris County prosecutor Roe Wilson said the medical problems Fields developed after the beating were the direct result of Morris' brutal attack. Morris and some family members continued to insist as late as Tuesday that he had made a terrible mistake, but did not commit murder. Fields "died of natural causes," said Morris' sister-in-law, Lenora Morris of Houston. "Why should he have to die for that?" Morris' relatives visited him to say goodbye while hoping for a last-minute reprieve from the governor or a federal court.

Morris lost several earlier rounds of appeals despite his attorneys' attempts to bring up what they claimed was new medical information showing that Fields might have died of natural causes. They stressed that the original defense attorney called no medical witnesses at trial and presented no evidence about Morris' background in the mitigation phase, when the jury must decide between a life or death sentence.

The trial attorney, Jerry Guerinot, submitted a sworn statement on appeal admitting that he did not explore the possibility that Morris did not actually cause Fields' death, although he reviewed the medical records. Guerinot also said in the statement that he now thinks he should have presented mitigating evidence. Wilson, the Harris County prosecutor who handled the appeal said there was so much medical testimony from other doctors that Morris caused the death that Guerinot might have lost credibility with the jury if he had called a physician to testify that the death was due to natural causes. "It is especially important that the doctor who performed the autopsy on the victim and the doctors who reviewed the victim's entire medical history from the time of Morris' attack were in agreement that the victim's death resulted from Morris' attack," Wilson said.

Jim Marcus, executive director of the Texas Defender Service, said important evidence was simply presented too late in the appeals process and therefore was barred for procedural reasons. "It doesn't strike me that this case was either vigorously investigated or defended," he said.

Fields, who ran a small store out of his Houston home, was hospitalized after the August 1990 beating and later transferred to a nursing home, where he developed gangrene in his toes. His condition improved, but Fields remained bedridden and semi-comatose. The day before he died, he underwent surgery and had his leg amputated. At the trial, two doctors testified for the prosecution that the beating was the underlying cause of his death. And an assistant medical examiner for Harris County ruled the death a homicide. Fields' doctor at the nursing home, Dr. Alfred Lewis of Houston, had originally called it a death from natural causes. Dr. Lewis was not asked to testify. Attorney Robert Morrow, who handled the appeal, also solicited the opinion of a medical expert who reviewed the record and said he believed Fields died of complications from surgery.

Attorney Gerald Bierbaum, who assisted with Morris' appeal, said, "Aggravated assault is usually not a death penalty crime. In this case it was." But Wilson, the prosecutor, emphasized that Morris confessed to beating Fields, who had other health problems. "Any heart attack eventually suffered by the victim could be attributed to the victim's weakened, vegetative state he lingered in after Morris' brutal attack," she said.

Denton Record-Chronicle

"Convict in stabbing, beating executed," by Pam Easton. (Associated Press 11/03/2004)

A man condemned for the stabbing and beating of a 70-year-old Houston man was executed Tuesday night. When asked by the warden if he had a final statement, Lorenzo Morris replied, "No." As the lethal drugs began to flow, Morris closed his eyes. His eyelids twitched as he took one deep breath and sputtered twice before being pronounced dead six minutes later at 6:13 p.m. CST.

Two of victim Jesse Fields' granddaughters and his daughter witnessed the execution. Morris' family visited with him earlier in the day but did not attend. Morris had asked that no last-day appeals be filed to try to block his scheduled execution.

He requested a final meal of fried chicken and fish with bread and hot peppers. He also asked for pie, ice cream, soda and a pack of cigarettes. He got everything but the cigarettes, because the prison system is tobacco-free, said prison spokeswoman Michelle Lyons.

Morris' family had called the governor's office and sought a 30-day reprieve. After the Supreme Court rejected his appeal, Morris attorney Rob Morrow said Morris didn't want any last-minute appeals that he thought would be fruitless.

National Coalition to Abolish the Death Penalty

Lorenzo Morris - Texas - November 2, 2004

The state of Texas is scheduled to execute Lorenzo Morris, 52, on Nov. 2 for the 1990 burglary and 1991 death of Jesse Fields in Harris County. Fields, 71, passed away nine months after he was attacked in his home in what police say was an attempted robbery by Morris and his girlfriend, Judy Courtney. The police report of the incident states that the attacker struck Fields with a hammer several times, leaving him in a coma. Fields spent the nine months after the attack in a nursing home. He passed away in May 1991, one day after having surgery to amputate his gangrene-infected left foot.

Morris’ defense centers around several issues, including an argument for his innocence, the problem of ineffective assistance of counsel, and violation of due process in that the jury did not hear any mitigating evidence on behalf of the accused, which might have persuaded them to vote against the death penalty.

Morris was assigned a former Harris County prosecutor to serve as his defense counsel. Despite the fact that the prosecution presented information that the head trauma Fields suffered caused his death, the defense failed to hire a medical expert to present a counter argument. It was only after Morris’ case reached the federal level that a leading neurologist was hired to review Fields’ hospital and nursing home records to determine his actual cause of death. Dr. Anand Mehendlale stated that Fields was declared neurologically stable as early as Sept. 1990, meaning that he suffered no ongoing neurological problems. This is crucial to Morris’ defense, as a stable neurological condition cannot cause a new harm, including death. Moreover, Dr. Mehendlale’s findings support the evidence of Field’s primary physician at the nursing home, Dr. Alfred Louis. Dr. Louis reported that Fields died of natural causes due to pulmonary disease and gangrene. He also stated that Fields had recovered from his skull fractures.

The case against Morris is further hindered by the fact that no evidence regarding his background was presented to the jury in the sentencing phase of his trial. His trial attorneys neither investigated his past nor requested that the Court allow the jury to hear such mitigating evidence when deciding whether or not inflict a death sentence. In fact, Morris’ background was full of drugs, alcoholism, and violence. He grew up in a large yet distant family with a mother who drank heavily and was physically abused by his father, who was also an alcoholic. Morris and his siblings turned to the streets of their poor and extremely violent neighborhood, using drugs to forget about the horrors at home. Lorenzo dropped out of school and joined the army at 16, where he endured more violence and drug use in Vietnam. After his return to the U.S., Morris met co-defendant Judy Courtney, who introduced him to crack cocaine. Morris was under the influence of crack cocaine when the two went to Field’s home on the day of the assault. Although this information may have been important or influential for the jury to hear at his trial, Lorenzo Morris’ attorneys failed to produce it.

Pursuant to Texas law, if evidence is not brought to light during the trial or subsequent pleadings at the state level, that evidence cannot be heard by any court unless it displays strong proof of innocence, could not have been discovered at the time of trial, or is a violation of the US Constitution. Consequently, Morris’ current counsel has faced great difficulty in allowing the truth surrounding his case to be presented to any court.

Compounded by the fact that Harris County, Texas is currently in the midst of controversy surrounding its handling of evidence in capital cases, the execution of Lorenzo Morris should not even be in question. In August, Harris county officials found 280 boxes of evidence related to 8,000 criminal cases. Not all of these boxes have been identified and searched. Morris’ attorneys contend that some of these missing boxes might contain evidence for his case, which could possibly provide DNA evidence to prove that Morris was not even the attacker of Fields. Judy Courtney, acknowledged to be the co-actor in the crime, may have been the person who actually attacked Jesse Fields. More time is required to know if this is the case.

The Harris County police department’s loss and subsequent finding of boxes of evidence are deplorable. There are serous questions as to whether this is even a murder case, and if the accused is guilty of the crime. The intended execution of Lorenzo Morris is appalling. Please write to Governor Rick Perry of Texas and request a stay of execution

Reuters News

"Texas Executes Man on Election Night." (Tue Nov 2, 2004 08:21 PM ET)

HOUSTON (Reuters) - In the midst of a key national election on Tuesday, Texas, the leading death penalty state, took time out to execute a man for a 1990 murder. Lorenzo Morris, 52, received a lethal injection shortly after 6 p.m. in the state's 19th execution this year. He was the 332nd person put to death in Texas since the state resumed capital punishment in 1982.

Morris was condemned for killing Jesse Fields, 70, on Aug. 5, 1990 by slashing his throat and beating him with a hammer after breaking into his Houston home and demanding money. Morris had no final statement as he lay strapped to a gurney in the Texas death chamber at a state prison in Huntsville.

Prison spokeswoman Michelle Lyons said Morris did not vote in Tuesday's presidential election because Texas law forbids jailed felons from casting a ballot. Execution dates are set by a state judge in the county where the prisoner was convicted.

For his last meal, Morris requested fried chicken and fried fish, French bread, hot peppers, apple pie, butter pecan ice cream and two soft drinks, either Sprites or Big Reds. Five more people are scheduled for execution in Texas this year, with the next being Robert Morrow, who is set to die on Thursday for a 1996 murder.

Corpus Christi Caller-Times

"Convict in stabbing, beating executed," by Pam Easton. (AP November 2, 2004)

HUNTSVILLE, Texas- A man condemned for the stabbing and beating of a 70-year-old man was executed Tuesday night. When asked by the warden if he had a final statement, Lorenzo Morris replied, "No." As the lethal drugs began to flow, Morris closed his eyes. His eyelids twitched as he took one deep breath and sputtered twice before being pronounced dead six minutes later at 6:13 p.m. CST.

Two of victim Jesse Fields' granddaughters and his daughter witnessed the execution. Morris' family visited with him earlier in the day but did not attend. Morris had asked that no last-day appeals be filed to try to block his scheduled execution.

He requested a final meal of fried chicken and fish with bread and hot peppers. He also asked for pie, ice cream, soda and a pack of cigarettes. He got everything but the cigarettes, because the prison system is tobacco-free, said prison spokeswoman Michelle Lyons.

Morris' attorney, Rob Morrow, said his client requested no late appeals to spare his family any additional "despair or upset." "He let me know that he had made peace with the situation," Morrow said Tuesday of his final visit with Morris. "We don't agree with what has happened, but we understand it." Morris, 52, was the 19th Texas inmate put to death this year and the first of two this week.

The former laborer and Nacogdoches native already had arrests for assault, robbery, weapons and drug possession, and had served at least two prison terms when he was arrested for stabbing and beating Fields with a hammer. When Fields died nine months after the August 1990 attack, Morris wound up charged with capital murder, was convicted and condemned. He was already serving a life sentence for the robbery of a coin-operated laundry where the clerk was shot twice but survived.

The Texas Board of Pardons and Paroles voted 6-0, refusing to either commute Morris' death sentence to life in prison or grant a temporary reprieve. The U.S. Supreme Court last month declined to review his case. Court records indicated Morris, who contended he became a drug addict while serving in the military in Vietnam, blamed Fields' death on poor health care after the beating. Fields died a day after doctors had to amputate a leg that had become infected. Previous unsuccessful appeals also said jurors in his case should have been allowed to hear he had been affected by the deaths of his two sisters in a house fire and that his mother was an alcoholic who often neglected her children.

Fields was in a coma when Morris was arrested in March 1991 for shooting the coin-operated laundry operator. In interviews with police, Morris told them about the attack on Fields, but contended the victim first had come at him with the hammer, according to prosecutors. His girlfriend at the time, however, testified she saw Morris sitting on the elderly man while holding a knife and demanding to know where he kept his money. She said she never called police because she feared for her own safety.

Morris v. Dretke, 90 Fed.Appx. 62 (5th Cir. 2004). (Habeas)

Background: Following petitioner's state court conviction of murder for which he was sentenced to death, petitioner sought federal habeas relief based on ineffective assistance of counsel. The United States District Court for the Southern District of Texas dismissed the petition, and petitioner sought certificate of appealability (COA) to challenge the dismissal of his petition.

Holdings: The Court of Appeals held that:
(1) COA was not warranted following the denial of petition for federal habeas relief as procedurally barred, after state appellate court denied state habeas petition based on independent and adequate grounds of petitioner's failure to comply with law governing subsequent applications for habeas relief;
(2) denial of federal habeas relief did not result in fundamental miscarriage of justice as to his claim that trial counsel was ineffective for failing to investigate and present evidence showing his actual innocence;
(3) COA was not warranted as to petitioner's claim of constitutional violations resulting from ad hoc nullification instruction allegedly given to jury; and
(4) COA was not warranted as to petitioner's claim of ineffective assistance of counsel resulting from counsel's alleged failure to present mitigating evidence at sentencing phase. Petition denied; decision affirmed.

Petitioner-Appellant Lorenzo Morris ("Morris") requests a certificate of appealability ("COA") from this court in order that he may appeal the decision of the district court dismissing his federal habeas petition under 28 U.S.C. § 2254, for ineffective assistance of counsel. Morris claimed that both his trial and habeas counsel failed to investigate and present evidence that he claims is both exculpatory and mitigating in nature, in connection with his murder conviction and death sentence. Because we find that the district court was correct to conclude that Morris's state habeas petition was denied on an independent and adequate state procedural ground, and Morris has failed to overcome this procedural bar, we deny his request for a COA and affirm the district court's decision.

I. Statement of facts

On August 5, 1990, Morris attacked seventy year old Jesse Fields ("Fields") with fists, a knife, and a hammer. Morris later confessed to the attack. Morris stated that the attack occurred because Fields did not have any drugs to sell to him. During the attack, Morris stabbed Fields in the neck with a knife and struck him repeatedly on the head with a hammer. Morris then left Fields lying in a pool of blood and took money from Fields house. As a result of the attack Fields suffered severe head trauma, leaving him in a comatose state. He remained in a hospital for several months and was then transferred to a nursing home. During his stay in the nursing home, Fields developed gangrene in his foot, which led doctors to amputate his left leg in order to prevent the spread of infection. Fields died the day after the amputation on May 11, 1991. For the entire time from the day that Fields had been attacked by Morris until the day he died, he had been comatose.

On July 31, 1991, the State of Texas indicted Morris for the murder of Fields in the course of an aggravated robbery. A jury found Morris guilty of capital murder. In the punishment phase of the trial, the State presented evidence of Morris's long criminal history, including incidents of shoplifting, resisting arrest, carrying a weapon, aggravated assault of a police officer, and aggravated robbery. The defense did not call any punishment phase witnesses. The jury's affirmative answers to the Texas special issues required imposition of the death penalty. [FN1]

FN1. The Texas special issues were: I. Did Morris deliberately commit the conduct that caused the death of Fields, with the reasonable expectation that the death of Fields would result? II. Is there a probability that Morris would commit criminal acts of violence that would constitute a continuing threat to society? III. Was Morris's conduct in killing Fields unreasonable in response to any provocation by Fields?

Morris challenged the conviction and sentence on direct appeal to the Texas Court of Criminal Appeals. On December 4, 1994, the Texas Court of Criminal Appeals affirmed Morris's conviction and sentence. The United States Supreme Court then denied Morris's subsequent petition for a writ of certiorari. On October 21, 1996, Morris filed an application for state habeas corpus relief. The state habeas court found no material disputed facts and decided that an evidentiary hearing on Morris's claims was not required. That court signed the State's proposed factual findings and legal conclusions recommending that the Court of Criminal Appeals deny habeas relief. On May 3, 2000, the Texas Court of Criminal Appeals entered an order stating that the record supported the trial court's findings and conclusions, and subsequently denied habeas relief.

On July 7, 2000, the district court appointed counsel to represent Morris in his federal habeas proceedings. Before filing his federal petition, however, Morris filed a successive state application for habeas relief. Morris later supplemented his successive application with a claim based on new Supreme Court authority. [FN2] The Texas Court of Criminal Appeals dismissed the successive habeas application as an abuse of the writ by a February 6, 2002 order because Morris had failed to comply with Texas's stringent requirements for the filing of successive proceedings.

On February 8, 2002, Morris filed a federal petition for writ of habeas corpus under 28 U.S.C. § 2254 with the district court in which he raised the following five substantive claims: (1) newly discovered evidence proved that Morris was actually innocent of capital murder; (2) Morris's initial state habeas counsel provided ineffective assistance, in violation of the Sixth Amendment and the due process clause, by failing to investigate and present meritorious evidence; (3) his trial counsel provided ineffective assistance by failing to challenge the State's theory of causation and by failing to present significant mitigating evidence in the punishment phase of the trial; (4) the trial court violated Morris's constitutional rights by failing to instruct the jurors on the consequences of a single juror's "no" vote on the special issues ("10-12 Rule"); and (5) the trial court failed to protect Morris's rights under the Eighth and Fourteenth Amendments by not delivering instructions that *65 would allow the jury to consider the mitigating evidence fully.

On March 24, 2003, the district court by a Memorandum And Order ("Order") granted the Attorney General for the State of Texas's motion for summary judgment, denied Morris's petition for a writ of habeas corpus, holding that the Texas Court of Criminal Appeals' denial of his state habeas petition was based on an independent and adequate state ground, and dismissed Morris's case.

* * * *

Because Morris is not arguing that he was not the person who committed the crime, the "actual innocence" exception is not available to him, and because he has not shown a constitutional violation or error, the legal innocence option is not available to him either. Therefore, the district court was correct to conclude that Morris failed to overcome the procedural bar via the actual innocence exception.