United States Court of Appeals
Fifth Circuit
F I L E D
In the March 1, 2006
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
______________________________
ON PETITION FOR REHEARING Dretke, 410 F.3d 773 (5th Cir. 2005), is
WITHDRAWN, and the following opinion is
Before JOLLY, SMITH, and GARZA, substituted:
Circuit Judges.
PER CURIAM:
The petition for panel rehearing is
DENIED. The prior opinion, Brewer v.
Before JOLLY, SMITH, and GARZA, woman with whom he was apparently ob-
Circuit Judges. sessed, dominated and manipulated him;2 that
he had been abused by his father;3 that he had
JERRY E. SMITH, Circuit Judge. witnessed his father abuse his mother; and that
he had abused drugs.4 Brewer did not secure
The district court conditionally granted, expert psychological or psychiatric evidence
pursuant to 28 U.S.C. § 2254, death row in- because of a decision, made in consultation
mate Brent Brewer’s petition for writ of ha- with his attorney, that such material would not
beas corpus, holding that the special issues be in his best interest. Brewer submitted at
submitted during his punishment phase were a least seven proposed instructions designed to
constitutionally inadequate vehicle for the jury give effect to the mitigating evidence that he
to give effect to his mitigating evidence. The did present, but the trial court denied all of
state appeals on the grounds that the court those instructions and, instead, required only
failed (1) properly to assess the reasonableness that the jury answer two special questions re-
of the state court’s adjudication as required by lating to deliberateness and potential for future
28 U.S.C. § 2254(d) and (2) correctly to apply dangerousness.
valid Supreme Court and Fifth Circuit prece-
dent. We reverse and render judgment deny- The conviction was affirmed on direct ap-
ing the habeas petition. peal,5 after which Brewer initiated what were
I.
Brewer was sentenced to death for a mur- 1
(...continued)
der committed during a robbery. At trial, he (Emphasis added.) These facts differ dramatically
introduced a variety of mitigating evidence, in- from those in Bigby v. Dretke, 402 F.3d 551, 571
cluding the following facts: that he had a bout (5th Cir.), cert. denied, 126 S. Ct. 239 (2005), in
with depression three months before the which the petitioner’s “evidence indicated that his
murder; that he was briefly hospitalized for schizophrenia was chronic and severe, caused him
that depression;1 that his co-defendant, a to suffer delusions with respect to the actions and
motivations of the people around him, could not be
adequately treated, and significantly impacted his
1
interpersonal relationship abilities.”
The state’s brief reveals that Brewer’s mental
illness claim is not based on an especially strong 2
This evidence was not medical and did not go
factual predicate: to Brewer’s volition; it consists merely of lay ob-
servations that the woman was the alpha partner in
Brewer was not adjudged mentally retarded, the relationship.
however he was involuntarily committed on
January 1, 1990 for “major depression, single 3
There was no evidence that Brewer’s child
episode, without psychotic features, polysub- abuse in any way impaired his cognitive abilities.
stance abuse.” The examining physician based
his opinion on a suicide note [Brewer] wrote to 4
This evidence apparently consisted of Brew-
his mother. On January 25, [Brewer] signed a er’s use of marihuana as a teenager.
request for voluntary admission to Big Springs
5
[sic] State Hospital for fourteen days. Brewer v. State, No. 71,307 (Tex. Crim. App.
1994) (unpublished), cert. denied, 514 U.S. 1020
(continued...) (continued...)
2
ultimately unsuccessful state habeas proceed- to”) clause, a federal district court may grant
ings.6 He then filed the instant federal habeas habeas relief if the state court decided a case
petition. After requesting supplemental brief- differently from how the United States
ing concerning Tennard v. Dretke, 542 U.S. Supreme Court decided a case on a set of
274 (2004), the district court, as we have said, materially indistinguishable facts. Williams v.
granted conditional relief. Taylor, 529 U.S. 362, 412-13 (2000). Under
the second (“unreasonable application”)
II. clause, a court may grant habeas relief if the
A. state court correctly divined a legal principle
The Antiterrorism and Effective Death Pen- from the Supreme Court’s jurisprudence but
alty Act of 1996 (“AEDPA”), at 28 U.S.C. misapplied that principle to the facts. See id.
§ 2254(d), sets forth the conditions under
which a court shall grant a petition for a writ Section 2254(d)(2) addresses pure ques-
of habeas corpus: tions of fact. See Moore v. Johnson, 225 F.3d
495, 501, 504 (5th Cir. 2000). Under this sub-
An application for a writ of habeas cor- section, federal courts must give deference to
pus on behalf of a person in custody pursu- state court findings of fact unless they are
ant to the judgment of a State court shall based on an unreasonable interpretation of the
not be granted with respect to any claim evidence presented in the state court proceed-
that was adjudicated on the merits in State ing.7
court proceedings unless the adjudication
of the claimSS B.
We review the federal district court’s find-
(1) resulted in a decision that was con- ings of fact for clear error and its conclusions
trary to, or involved an unreasonable appli- of law de novo. See Martinez v. Johnson, 255
cation of, clearly established Federal law, as F.3d 229, 237 (5th Cir. 2001). The legal con-
determined by the Supreme Court of the clusion at issue is the holding that “[r]eviewing
United States; or the evidence in light of the special issues, a
jury would be very hard pressed to see the evi-
(2) resulted in a decision that was based dence presented as anything but aggravating.
on an unreasonable determination of the Failure to submit an instruction on mitigation
facts in light of the evidence presented in evidence was an unreasonable application of
the State court proceeding. federal law and Supreme Court precedent.”8
Section 2254(d)(1) addresses pure ques-
7
tions of law and mixed questions of law and See Chambers v. Johnson, 218 F.3d 360, 363
fact. See Martin v. Cain, 246 F.3d 471, 475 (5th Cir. 2000) (as modified on denial of rehear-
(5th Cir. 2001). Under the first (“contrary ing). Factual determinations made by the state
court are presumptively correct and will not be dis-
turbed unless the petitioner rebuts the presumption
5
(...continued) by clear and convincing evidence. See 28 U.S.C.
(1995). § 2254(e)(1).
6 8
Ex parte Brewer, No. 46,587-01 (Tex. Crim. As we will discuss momentarily, this lan-
App. 2001) (unpublished). (continued...)
3
Section 2254(d)(1) therefore controls our society?
review, and we conduct a de novo inquiry to
determine whether the state court’s decision is A.
contrary to, or an unreasonable application of, We consider it appropriate to devote signif-
clearly established Supreme Court precedent.9 icant space to discussing the jurisprudence as-
We do so here by analyzing de novo the sociated with article 37.071. In Jurek v. Tex-
federal district court’s decision to see whether as, 428 U.S. 262, 272 (1976), the Court up-
it properly decided that the state court did not held the Texas statutory special issues ap-
satisfy § 2254(d)(1). proach in the punishment phase of capital tri-
als, but did so on the explicit premise that the
III. special issues were capable of an expansive
The trial court instructed the jury, pursuant construction to capture proper mitigation evi-
to article 37.071 of the Texas Code of Crimi- dence. In Franklin v. Lynaugh, 487 U.S. 164,
nal Procedure (Vernon 1991), as follows: 179 (1988), the Court made plain that, at least
with respect to some mitigation evidence, de-
Special issue No. 1 viating from the special issues approach is not
Do you find from the evidence beyond a necessary. Specifically, it found the “danger-
reasonable doubt that the conduct of the ousness” special issue was capable of captur-
defendant, BRENT RAY BREWER, that ing evidence of the petitioner’s good behavior
caused the death of the deceased, Robert while incarcerated.
Doyle Laminack, was committed deliber-
ately and with the reasonable expectation In Penry v. Lynaugh, 492 U.S. 302, 322
that the death of the deceased would result? (1989) (“Penry I”), the Court held that the
two special issues were not sufficient to give
mitigating effect to Penry’s evidence of mental
Special issue No. 2 retardation and a history of abuse. It stated
Do you find from the evidence beyond a that each of those factors represents “‘a two-
reasonable doubt that there is a probability edged sword’: [Each] may diminish [the peti-
that the defendant, BRENT RAY BREW- tioner’s] blameworthiness for his crime even as
ER, would commit criminal acts of violence it indicates there is a probability that he will be
that would constitute a continuing threat to dangerous in the future.” Id. at 324.
Four years after Penry I, the Court decided
8
(...continued) Johnson v. Texas, 509 U.S. 350, 367-68
guage—stating that the mitigating evidence was (1993), in which the defendant invoked
capable of nothing but an aggravating interpreta- Penry I in an attempt to invalidate his death
tion—seems somewhat at odds with language ear- sentence—a sentence imposed despite his evi-
lier in the opinion stating that “the evidence at Pe- dence of youth. See id. at 368. The future
titioner’s trial does not fit squarely [in the dan- dangerousness issue alone, the Court conclud-
gerousness instruction] either. One could view the ed, gave the jurors a constitutionally sufficient
evidence as either aggravating or mitigating.” vehicle for considering Johnson’s youth in
9
The district court rejected seven additional ha-
beas claims that Brewer included in his petition.
Brewer does not cross-appeal these rulings.
4
making its reasoned moral response.10 “It which the defendant was burdened through no
strains credulity to suppose that the jury would fault of his own . . . .”12 In Tennard, however,
have viewed the evidence of petitioner’s youth the Supreme Court flatly rejected that test of
as outside its effective reach in answering the constitutional relevance and instructed us in-
second special issue.” Id. stead that the definition of relevance in this
context is no different from the definition of
After Johnson, therefore, it was indisput- relevance in most others: “any tendency to
able that Jurek remained good law and that, make the existence of any fact that is of con-
although some relevant evidence may receive sequence to the determination of the action
constitutionally insufficient mitigating effect more probable or less probable than it would
under the standard Texas special issues (e.g., be without the evidence . . . .”13
evidence of mental retardation), other evidence
is quite capable of being given mitigating effect B.
through that methodology. When mitigating For the mitigating evidence to be within the
evidence falls into that latter category, the effective reach of the jury in answering the
imposition of the death penalty under the pre- special issues, the special interrogatories must
Penry I scheme does not offend the Eighth be capable of giving relevant evidence consti-
Amendment. tutionally sufficient mitigating effect. Whether
that sufficiency requires that the evidence be
In following Penry I, this court developed given “full,” or merely “some,” mitigating
a two-part test for determining whether the de- effect has been the subject of considerable dis-
fendant’s evidence requires a special mitigation cussion in this court,14 but ultimately the dis-
instruction: (1) whether the proffered material tinction is only one of semantics, because re-
was constitutionally relevant mitigating gardless of what label is put on the word “ef-
evidence and (2) whether the proffered evi- fect,” it is indisputable that the effect must be
dence was beyond the effective reach of the constitutionally “sufficient.” Even if the re-
jurors.11 We in turn defined “constitutionally quirement is called “full,” it means nothing
relevant” evidence as that which was “due to
the uniquely severe permanent handicaps with
12
Graham v. Collins, 950 F.2d 1009, 1029
(5th Cir. 1992) (en banc), aff’d, 506 U.S. 461
10
Johnson, 509 U.S. at 368 (“The relevance of (1993).
youth as a mitigating factor derives from the fact
13
that the signature qualities of youth are transient; Tennard, 542 U.S. at 283 (internal citations
as individuals mature, the impetuousness and and quotations omitted.). Tennard further clarified
recklessness that may dominate in younger years that impaired intellectual functioning is inherently
can subside. We believe that there is ample room mitigating (and therefore must be capable of being
in the assessment of future dangerousness for a given mitigating effect through the special jury
juror to take account of the difficulties of youth as instructions) and is subject to the same legal
a mitigating force in the sentencing deter- analysis as is mental retardation for purposes of a
mination.”). Penry I claim. See id. at 287.
11 14
Smith v. Cockrell, 311 F.3d 661, 680 (5th Compare Coble v. Dretke, 417 F.3d 508, 527
Cir. 2002) (internal citations and quotations (5th Cir. 2005) with Cole v. Dretke, 418 F.3d 494,
omitted). 496-511 (5th Cir. 2005).
5
more than “sufficient.” We now turn to the Brewer offered evidence of one hospitalization
district court’s application of this standard for
the purpose of deciding, under the facts and
circumstances of this case, whether the special 16
(...continued)
interrogatories allowed the jury to give such “severe” abuse of the type Penry sustained and, on
sufficient mitigating effect to the evidence in the other, a “mere” troubled childhood of the sort
question. Graham experienced. In Graham the Court seems
to sanction such a side-by-side comparison as a
C. permissible way of conducting the inquiry. See
To determine whether a jury has sufficient Graham, 506 U.S. at 476.
vehicles for considering mitigating evidence,
the habeas court must determine whether There is no easy way to locate Brewer at either
“there is no reasonable likelihood that the jury pole. First, the trial evidence indicates that Brew-
er’s father hit Brewer “numerous” times but, be-
would have found itself foreclosed from con-
cause of the timing of the father’s reintroduction
sidering the relevant aspects of the [mitigating into the family, this abuse could not have occurred
evidence].” Johnson, 509 U.S. at 368. We until Brewer was at least fifteen (Penry was subject
conduct a de novo inquiry into whether the to abuse beginning at a very young age.). Al-
district court applied this standard properly, though the abuse was more than an isolated inci-
and we conclude that it did not. dent, it does not rise to the level of that at issue in
Penry. See Penry I, 492 U.S. at 309. Moreover,
As we noted earlier, at trial Brewer intro- as noted earlier, Brewer and his attorney made an
duced a variety of mitigating evidence, includ- informed decision not to present expert psychiatric
ing the following facts: that he had a bout with testimony.
depression three months before the murder;
that he was briefly hospitalized for that de- Second, Penry I considers the mitigation issue
pression; that his co-defendant, a woman with in light of Penry’s mental retardation and child
whom he was apparently obsessed, dominated abuse, evaluated as a single unit. See also Cole,
418 F.3d at 502 (alluding to the mitigating evi-
and manipulated him; that he had been abused
dence as that of Cole’s “destructive family back-
by his father; that he had witnessed his father ground and organic neurological deficiency”) (em-
abuse his mother; and that he had abused phasis added). The vast majority of subsequent
drugs.15 Apparently the district court seriously caselaw has addressed mental retardation in
considered only the mental illness and drug isolation. It is thus doubtful that Brewer’s child
abuse as potentially warranting habeas relief.16 abuse, without additional evidence of cognitive
limitation, had mitigating effects sufficiently be-
yond the jury’s reach to constitute a violation of the
15 Eighth Amendment.
For further explanation of each of set of prof-
fered evidence, see notes 1-4, supra.
For the remaining issues (other than mental
16
There is considerable authority that evidence illness, substance abuse, and troubled childhood),
of a troubled childhood falls within the scope of the it was at least reasonably likely that the special
special issues. See Graham, 506 U.S. at 475; Ja- issue involving dangerousness did not foreclose
cobs v. Scott, 31 F.3d 1319, 1327 (5th Cir. 1994). consideration of the mitigating evidence. See Cole,
Comparison of Graham and Penry I reveals a id. at 508. To understand why the district court
constitutional distinction between, on the one hand, did not undertake a serious discussion of the other
(continued...) five pieces of evidence, see notes 1-4, supra.
6
for a single episode of non-psychotic major [W]e are not convinced that Penry could be
depression that was at least partially a result of extended to cover the sorts of mitigating
a suicide note he had written to his mother. evidence Graham suggests without a
wholesale abandonment of Jurek and per-
This circuit has made a distinction between haps also of Franklin v. Lynaugh . . . . Jur-
mental retardation and mental illness.17 A ek is reasonably read as holding that the
mental illness inquiry does not require any ad- circumstance of youth is given constitution-
justment to the standard two-pronged inter- ally adequate consideration in deciding the
rogatory, and we have rejected habeas peti- special issue. We see no reason to regard
tions on these grounds on other occasions.18 the circumstances of Graham’s family
The only instances in which mental illness has background and positive character traits in
given rise to Penry I violations involve those a different light. Graham’s evidence of
where the illness in question is chronic and/or transient upbringing and otherwise nonvio-
immutable. See, e.g., Bigby (in which peti- lent character more closely resembles Jur-
tioner suffered from chronic paranoid schizo- ek’s evidence . . . than it does Penry’s . . . .
phrenia).19 In Graham the Court stated:
Graham, 506 U.S. at 476 (emphasis added).
17
See Robison v. Johnson, 151 F.3d 256, 265- More recently, this court in Cole has ex-
66 (5th Cir. 1998). plained why evidence of a troubled childhood
may, as a result of its temporary character, fall
18
See, e.g., Hernandez v. Johnson, 248 F.3d sufficiently within the ambit of the special dan-
344, 349 (5th Cir. 2001) (holding that the future gerousness instruction: “Given the experts’
dangerousness special issue was capable of giving testimony during the punishment phase, the
effect to this mitigating evidence); Lucas v. John- jury could have believed them and found that,
son, 132 F.3d 1069, 1082-83 (5th Cir. 1998) although Cole suffered a turbulent childhood
(holding that the deliberateness special issue was and may suffer from diminished impulse
capable of giving this evidence effect). These cases control, he is capable of change and thus
remain good law even after Tennard, because Ten-
would not necessarily remain a danger in the
nard overturned only Fifth Circuit methodology for
future.” Cole, 418 F.3d at 507. In Coble, a
determining what mitigating evidence is con-
stitutionally relevant. See Tennard, 542 U.S. at panel of this court made an analysis that is
285-87.
19 19
The Bigby court decided that the second (...continued)
special issue (future dangerousness) was incapable F.3d 1069; see also Hernandez v. Johnson,
of acting as an exculpatory vehicle for this 248 F.3d 344 (5th Cir.2001), Bigby’s
evidence: mitigation evidence indicated that his condition
cannot be adequately controlled or treated . . . .
Furthermore, although this Circuit has previ- In short, Bigby’s evidence that his mental
ously held that mitigation evidence of mental disorders made it difficult for him to avoid
illness could be considered within the context of criminal behavior has the same “double-edged
the second special issue, future dangerousness, sword” quality as Penry’s evidence that he was
if the illness can be controlled or go into unable to conform his conduct to the law.
remission, see e.g., Lucas[ v. Johnson], 132
(continued...) Bigby, 402 F.3d at 571.
7
consistent with Cole on this point of law: In Coble and Cole, moreover, the record
“This Circuit has previously held that mitigat- contained expert psychiatric evidence that bore
ing evidence of mental illness could be con- both on the defendants’ future dangerousness
sidered within the context of the second spe- and other potential issues relating to mental
cial issue, future dangerousness, if the illness impairment.23 Even if Brewer had proved
can be controlled or go into remission.”20 mental illness (which it appears he did not),
and even if mental illness were tantamount to
Although Graham and Jacobs provide suf- mental retardation for the purposes of our case
ficient authority for our determination that the law (which it is not), Brewer came nowhere
special issues are here capable of giving Brew- near to producing evidence sufficient for us to
er’s evidence of a troubled childhood con- grant relief.
stitutionally mitigating effect, our court’s more
recent opinions in Cole and Coble bolster that Cole offers the following summary of the
proposition considerably. Cole presented caselaw:
evidence of destructive family background and
of organic neurological defects that arguably As the expert testimony intimated that Pen-
amounted to a lack of impulse control.21 The ry was unable to learn from his mistakes,
Cole court relied on Graham’s holding that the Johnson court concluded that the only
“family background evidence falls within the logical manner in which Penry’s jury could
broad scope of Texas’s special issues.”22 have considered the evidence of his mental
retardation under the future dangerousness
special issue was as an aggravating factor:
20
Coble, 417 F.3d at 523 (citing Lucas v. Penry would remain a danger in the future
Johnson, 132 F.3d 1069, 1082-83 (5th Cir. 1998); because there was no chance that he would
Robison v. Johnson, 151 F.3d 256, 266 (5th Cir. ever understand that rape and murder were
1998)). wrong. Thus, Penry’s jury was unable to
21
give any mitigating effect to the mental
In Cole, the state presented the following retardation evidence that he proffered.
mitigating evidence: (1) Cole’s mother was an
alcoholic unable to care for her children; (2) Cole’s
Cole, 418 F.3d at 505 (footnote omitted). The
father was arrested for robbery; (3) Cole’s father
deserted the family when Cole was five years old; Cole panel went on to distinguish the evidence
(4) Cole’s mother moved with her children to her before it from that in Penry I on the ground
parent’s home; (5) Cole’s grandparents were that, because the evidence indicated that
alcoholics who did not want the children; (6) Cole Cole’s condition was capable of being cured
was isolated from other children because his and that he was capable of learning from his
grandparents’ home was eight miles out of town; mistakes, the future dangerousness question
(7) Cole had difficulty getting to school; (8) Cole could also give the psychiatric evidence con-
was placed in a children’s home at the age of five; stitutionally sufficient mitigating effect. See id.
(9) while there, his mother visited him only twice;
(10) his father never visited him there; and (11) his
22
uncle adopted his brother, but not him. Cole, 418 (...continued)
F.3d at 499-500. Graham, 506 U.S. at 476).
22 23
Id. at 507 (internal quotations omitted) (citing See, e.g., id. at 505-06; Coble, 417 F.3d at
(continued...) 522-23.
8
at 505-07.
We confront an even more extreme case
here. There does not appear to be one iota of
evidence suggesting either that Brewer’s con-
dition is permanent or that he experienced
cognitive limitations of any sort as the result of
it.
We likewise have rejected claims that miti-
gating evidence pertaining to substance abuse,
without an adjustment to the sentencing issues,
can support a Penry violation.24 Generally
these cases stand for the proposition that, even
under the two-pronged special issue meth-
odology, a jury can adequately incorporate
evidence of short-term mental illness and sub-
stance abuse into its decision calculus.25
Therefore, the district court erred in grant-
ing Brewer’s petition for a writ of habeas cor-
pus. The judgment is REVERSED, and judg-
ment is RENDERED denying the petition.
24
See, e.g., Harris v. Cockrell, 313 F.3d 238,
242 (5th Cir. 2002) (holding that the “jury was
able to give mitigating effect to the evidence of
Harris’s alcoholism through its answers to the first
and second special issues”); James v. Collins, 987
F.2d 1116, 1121 (5th Cir. 1993) (holding that vol-
untary intoxication can be given effect through the
deliberateness prong).
25
Moreover, we hesitate to infer any diminished
capacity in moral or analytic reasoning in light of
the fact that Brewer has a tested IQ of 115, placing
him in roughly the ninety-fourth percentile of
human intelligence.
9