United States Court of Appeals
Fifth Circuit
F I L E D
In the May 31, 2005
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 04-70034
_______________
BRENT RAY BREWER,
Petitioner-Appellee,
VERSUS
DOUG DRETKE,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
______________________________
Before JOLLY, SMITH, and GARZA, submitted during his punishment phase were a
Circuit Judges. constitutionally inadequate vehicle for the jury
to give effect to his mitigating evidence. The
JERRY E. SMITH, Circuit Judge. state appeals on the ground that the court
failed properly to assess the reasonableness of
The district court conditionally granted, the state court’s adjudication as required by 28
pursuant to 28 U.S.C. § 2254, death row in- U.S.C. § 2254(d) and on the ground that it
mate Brent Brewer’s petition for writ of ha- failed correctly to apply valid Supreme Court
beas corpus, holding that the special issues and Fifth Circuit precedent. We reverse and
render judgment denying the habeas petition. An application for a writ of habeas corpus
on behalf of a person in custody pursuant
I. to the judgment of a State court shall not
Brewer was sentenced to death for a mur- be granted with respect to any claim that
der committed during a robbery. At trial, he was adjudicated on the merits in State court
introduced a variety of mitigating evidence, in- proceedings unless the adjudication of the
cluding the following facts: that he had a bout claim
with depression three months before the
murder; that he was briefly hospitalized for (1) resulted in a decision that was contrary
that depression; that his co-defendant, a wo- to, or involved an unreasonable application
man with whom he was apparently obsessed, of, clearly established Federal law, as de-
dominated and manipulated him; that he had termined by the Supreme Court of the
been abused by his father; that he had wit- United States; or
nessed his father abuse his mother; and that he
had abused drugs. Brewer submitted at least (2) resulted in a decision that was based on
seven proposed instructions designed to give an unreasonable determination of the facts
effect to this mitigating evidence, but the trial in light of the evidence presented in the
court denied all of them, instead requiring only State court proceeding.
that the jury answer two relevant special
questions relating to deliberateness and po- Section 2254(d)(1) addresses pure ques-
tential for future dangerousness. tions of law and mixed questions of law and
fact. See Martin v. Cain, 246 F.3d 471, 475
The conviction was affirmed on direct ap- (5th Cir. 2001). Under the first (“contrary
peal,1 after which Brewer initiated what were to”) clause, a federal district court may grant
ultimately unsuccessful state habeas proceed- habeas relief if the state court decided a case
ings.2 He then filed the instant federal habeas differently from how the United States
petition. After requesting supplemental brief- Supreme Court decided a case on a set of
ing concerning Tennard v. Dretke, 124 S. Ct. materially indistinguishable facts. Williams v.
2562 (2004), the district court, as we have Taylor, 529 U.S. 362, 412-13 (2000). Under
said, granted conditional relief. the second (“unreasonable application”)
clause, a court may grant habeas relief if the
II. state court correctly divined a legal principle
A. from the Supreme Court’s jurisprudence but
The Antiterrorism and Effective Death Pen- misapplied that principle to the facts. See id.
alty Act of 1996, at 28 U.S.C. § 2254(d), sets
forth the conditions under which a court shall Section 2254(d)(2) addresses pure ques-
grant a petition for a writ of habeas corpus: tions of fact. See Moore v. Johnson, 225 F.3d
495, 501, 504 (5th Cir. 2000). Under this sub-
section, federal courts must give deference to
1
Brewer v. State, No. 71,307 (Tex. Crim. App. state court findings of fact unless they are
1994) (unpublished), cert. denied, 514 U.S. 1020 based on an unreasonable interpretation of the
(1995). evidence presented in the state court proceed-
2
Ex parte Brewer, No. 46,587-01 (Tex. Crim.
App. 2001) (unpublished).
2
ing.3 III.
The trial court instructed the jury, pursuant
B. to article 37.071 of the Texas Code of Crimi-
We review the federal district court’s find- nal Procedure (Vernon 1991), as follows:
ings of fact for clear error and its conclusions
of law de novo. See Martinez v. Johnson, 255 Special issue No. 1
F.3d 229, 237 (5th Cir. 2001). The legal con- Do you find from the evidence beyond a
clusion at issue is the holding that “[r]eviewing reasonable doubt that the conduct of the
the evidence in light of the special issues, a defendant, BRENT RAY BREWER, that
jury would be very hard pressed to see the evi- caused the death of the deceased, Robert
dence presented as anything but aggravating. Doyle Laminack, was committed deliber-
Failure to submit an instruction on mitigation ately and with the reasonable expectation
evidence was an unreasonable application of that the death of the deceased would result?
federal law and Supreme Court precedent.”4
Section 2254(d)(1) therefore controls our
review, and we conduct a de novo inquiry to Special issue No. 2
determine whether the state court’s decision is Do you find from the evidence beyond a
contrary to, or an unreasonable application of, reasonable doubt that there is a probability
clearly established Supreme Court precedent.5 that the defendant, BRENT RAY BREW-
We do so here by analyzing de novo the ER, would commit criminal acts of violence
federal district court’s decision to see whether that would constitute a continuing threat to
it properly decided that the state court did not society?
satisfy § 2254(d)(1).
A.
We consider it appropriate to devote signif-
icant space to discussing the jurisprudence as-
3
See Chambers v. Johnson, 218 F.3d 360, 363 sociated with article 37.071. In Jurek v. Tex-
(5th Cir. 2000) (as modified on denial of rehear- as, 428 U.S. 262, 272 (1976), the Court up-
ing). Factual determinations made by the state held the Texas statutory special issues ap-
court are presumptively correct and will not be
proach in the punishment phase of capital
disturbed unless the petitioner rebuts the pre-
trials, but did so on the explicit premise that
sumption by clear and convincing evidence. See 28
U.S.C. § 2254(e)(1). the special issues were capable of an expansive
construction to capture proper mitigation
4
As we will discuss momentarily, this lan- evidence. In Franklin v. Lynaugh, 487 U.S.
guage—stating that the mitigating evidence was 164, 179 (1988), the Court made plain that, at
capable of nothing but an aggravating interpreta- least with respect to some mitigation evidence,
tion—seems somewhat at odds with language ear- deviating from the special issues approach is
lier in the opinion stating that “the evidence at Pe- not necessary. Specifically, it found the
titioner’s trial does not fit squarely [in the dan- “dangerousness” special issue was capable of
gerousness instruction] either. One could view the capturing evidence of the petitioner’s good be-
evidence as either aggravating or mitigating.” havior while incarcerated.
5
The district court rejected seven additional ha-
beas claims that Brewer included in his petition.
In Penry v. Lynaugh, 492 U.S. 302, 322
Brewer does not cross-appeal these rulings. (1989) (“Penry I”), the Court held that the
3
two special issues were not sufficient to give giving only aggravating effect to the mitigating
mitigating effect to Penry’s evidence of mental evidence, or they are capable of giving both
retardation and a history of abuse. It stated mitigating and aggravating effect to the
that each of those factors represents “a two- mitigating evidence. The Supreme Court has
edged sword”: [Each] may diminish [the peti- expressly sanctioned the latter and has held the
tioner’s] blameworthiness for his crime even as former to be unconstitutional. See Johnson v.
it indicates there is a probability that he will be Texas, 509 U.S. 350, 368-69 (1993). In other
dangerous in the future.” Id. at 324. words, a writ of habeas corpus may issue only
where the special questions are capable of
Following Penry I, this court developed a giving the mitigating evidence exclusively
two-part test for determining whether the de- aggravating effect.
fendant’s evidence requires a special mitigation
instruction: (1) whether the proffered material The state appears to believe that the district
was constitutionally relevant mitigating court erred in this regard, as it excerpts that
evidence, and (2) whether the proffered evi- court’s statement that “[o]ne could view the
dence was beyond the effective reach of the evidence as aggravating or mitigating.” At
jurors.6 We in turn defined “constitutionally first blush the state seems correct, but when
relevant” evidence as that which was “due to one examines the subsequent sentences of the
the uniquely severe permanent handicaps with district court’s opinion, it becomes evident
which the defendant was burdened through no that the state misinterprets the holding.
fault of his own . . . .” 7 In Tennard, the Su-
preme Court flatly rejected that test of consti- The district court’s next sentence reads that
tutional relevance and instructed us instead “[w]ithout the guidance of a proper instruction
that the definition of relevance in this context from the court, the jury was not given an op-
is no different from the definition of constitu- portunity to consider it as mitigating.” The
tional relevance in most others: “any tendency court continues, “Reviewing the evidence in
to make the existence of any fact that is of light of the special issues, a jury would be hard
consequence to the determination of the action pressed to see the evidence presented as
more probable or less probable than it would anything but aggravating.”
be without the evidence . . . .”8
The state, then, takes the quoted language
B. somewhat out of context. The district court
There are two possible circumstances with was stating merely that the evidence itself was
respect to mitigating evidence and special is- capable of being aggravating or mitigating. It
sues. Either the special issues are capable of was not stating that the special instructions
were capable of giving that evidence both ag-
gravating and mitigating effect. Not only does
6
Smith v. Cockrell, 311 F.3d 661, 680 (5th Cir. this appear to be the intended meaning when
2002) (internal citations and quotations omitted). one reads the sentences surrounding the text
7
the state excerpts, but in the part of the opin-
Graham v. Collins, 950 F.2d 1009, 1029 (5th ion in which the district court makes its ulti-
Cir. 1992) (en banc), aff’d, 506 U.S. 461 (1993). mate holding on the issue, it explicitly states
8
Tennard, 124 S. Ct. at 2570 (internal citations
that the error flows from the jury’s inability,
and quotations omitted.). given the special instructions, to give mitigat-
4
ing effect to mitigating evidence. The district Brewer offered evidence of a single hospital-
court, therefore, did not misstate the law. ization and a suicide note.
C. This circuit has accepted a distinction be-
To conclude that the district court properly tween mental retardation and mental illness.10
stated the law is not, however, to decide that A mental illness inquiry does not warrant any
it properly applied it. To determine whether sort of adjustment to the standard two-
a jury has sufficient vehicles for considering pronged interrogatory, and we have rejected
mitigating evidence, the habeas court must habeas petitions on these grounds on a number
determine whether “there is no reasonable like- of occasions.11 We likewise have rejected
lihood that the jury would have found itself claims that mitigating evidence pertaining to
foreclosed from considering the relevant substance abuse, without an adjustment to the
aspects of the [mitigating evidence].” Id. at sentencing issues, can support a Penry
368. We conduct a de novo inquiry into violation.12 Although we decline to revisit
whether the district court applied this standard specifically the rationale in each of these cases,
properly, and we conclude that it did not. it is sufficient to say that generally they stand
for the proposition that, even under the two-
As we noted earlier, at trial Brewer intro-
duced a variety of mitigating evidence, includ-
ing the following facts: that he had a bout with 9
(...continued)
depression three months before the murder; gating evidence.
that he was briefly hospitalized for that de-
pression; that his co-defendant, a woman with 10
See Robison v. Johnson, 151 F.3d 256, 265-
whom he was apparently obsessed, dominated 66 (5th Cir. 1998).
and manipulated him; that he had been abused
11
by his father; that he had witnessed his father See, e.g., Hernandez v. Johnson, 248 F.3d
abuse his mother; and that he had abused 344, 349 (5th Cir. 2001) (holding that the future
drugs. Apparently the district court seriously dangerousness special issue was capable of giving
effect to this mitigating evidence); Lucas v. John-
considered only the mental illness and drug
son, 132 F.3d 1069, 1082-83 (5th Cir. 1998)
abuse as potentially warranting habeas relief.9 (holding that the deliberateness special issue was
capable of giving this evidence effect). These cases
remain good law even after Tennard, because Ten-
9
There is considerable authority that evidence nard overturned only Fifth Circuit methodology for
of a troubled childhood and child abuse falls within determining what mitigating evidence is con-
the scope of the special issues. See, e.g. Johnson, stitutionally relevant. See Tennard, 124 S. Ct. at
509 U.S. at 367; Graham, 506 U.S. at 475; 2571.
Robertson v. Cockrell, 325 F.3d 243, 249 (5th Cir.
12
2003), overruled in part by Tennard; Davis v. See, e.g., Harris v. Cockrell, 313 F.3d 238,
Scott, 51 F.3d 457, 462-65 (5th Cir. 1995); Jacobs 242 (5th Cir. 2002) (holding that the “jury was
v. Scott, 31 F.3d 1319, 1327 (5th Cir. 1994). For able to give mitigating effect to the evidence of
the remaining issues (other than mental illness and Harris’s alcoholism through its answers to the first
troubled childhood), it was at least reasonably and second special issues”); James v. Collins, 987
likely that the special issue involving dangerous- F.2d 1116, 1121 (5th Cir. 1993) (holding that vol-
ness did not foreclose consideration of the miti- untary intoxication can be given effect through the
(continued...) deliberateness prong).
5
pronged special issue methodology, a jury can
adequately incorporate evidence of mental ill-
ness and substance abuse into its decision cal-
culus.
Therefore, the district court erred in grant-
ing Brewer’s petition for a writ of habeas cor-
pus. The judgment is REVERSED, and a
judgment is RENDERED denying the petition
for writ of habeas corpus.
6