Brewer v. Quarterman

United States Court of Appeals
Fifth Circuit
F I L E D
March 1, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
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
Before JOLLY, SMITH, and GARZA,
Circuit Judges.
PER CURIAM:
The petition for panel rehearing is
DENIED. The prior opinion, Brewer v.
Dretke, 410 F.3d 773 (5th Cir. 2005), is
WITHDRAWN, and the following opinion is
substituted:

-- 1 of 9 --

2
Before JOLLY, SMITH, and GARZA,
Circuit Judges.
JERRY E. SMITH, Circuit Judge.
The district court conditionally granted,
pursuant to 28 U.S.C. § 2254, death row in-
mate Brent Brewer’s petition for writ of ha-
beas corpus, holding that the special issues
submitted during his punishment phase were a
constitutionally inadequate vehicle for the jury
to give effect to his mitigating evidence. The
state appeals on the grounds that the court
failed (1) properly to assess the reasonableness
of the state court’s adjudication as required by
28 U.S.C. § 2254(d) and (2) correctly to apply
valid Supreme Court and Fifth Circuit prece-
dent. We reverse and render judgment deny-
ing the habeas petition.
I.
Brewer was sentenced to death for a mur-
der committed during a robbery. At trial, he
introduced a variety of mitigating evidence, in-
cluding the following facts: that he had a bout
with depression three months before the
murder; that he was briefly hospitalized for
that depression;1 that his co-defendant, a
woman with whom he was apparently ob-
sessed, dominated and manipulated him;2 that
he had been abused by his father;3 that he had
witnessed his father abuse his mother; and that
he had abused drugs.4 Brewer did not secure
expert psychological or psychiatric evidence
because of a decision, made in consultation
with his attorney, that such material would not
be in his best interest. Brewer submitted at
least seven proposed instructions designed to
give effect to the mitigating evidence that he
did present, but the trial court denied all of
those instructions and, instead, required only
that the jury answer two special questions re-
lating to deliberateness and potential for future
dangerousness.
The conviction was affirmed on direct ap-
peal,5 after which Brewer initiated what were
1 The state’s brief reveals that Brewer’s mental
illness claim is not based on an especially strong
factual predicate:
Brewer was not adjudged mentally retarded,
however he was involuntarily committed on
January 1, 1990 for “major depression, single
episode, without psychotic features, polysub-
stance abuse.” The examining physician based
his opinion on a suicide note [Brewer] wrote to
his mother. On January 25, [Brewer] signed a
request for voluntary admission to Big Springs
[sic] State Hospital for fourteen days.
(continued...)
1(...continued)
(Emphasis added.) These facts differ dramatically
from those in Bigby v. Dretke, 402 F.3d 551, 571
(5th Cir.), cert. denied, 126 S. Ct. 239 (2005), in
which the petitioner’s “evidence indicated that his
schizophrenia was chronic and severe, caused him
to suffer delusions with respect to the actions and
motivations of the people around him, could not be
adequately treated, and significantly impacted his
interpersonal relationship abilities.”
2 This evidence was not medical and did not go
to Brewer’s volition; it consists merely of lay ob-
servations that the woman was the alpha partner in
the relationship.
3 There was no evidence that Brewer’s child
abuse in any way impaired his cognitive abilities.
4 This evidence apparently consisted of Brew-
er’s use of marihuana as a teenager.
5 Brewer v. State, No. 71,307 (Tex. Crim. App.
1994) (unpublished), cert. denied, 514 U.S. 1020
(continued...)

-- 2 of 9 --

3
ultimately unsuccessful state habeas proceed-
ings.6 He then filed the instant federal habeas
petition. After requesting supplemental brief-
ing concerning Tennard v. Dretke, 542 U.S.
274 (2004), the district court, as we have said,
granted conditional relief.
II.
A.
The Antiterrorism and Effective Death Pen-
alty Act of 1996 (“AEDPA”), at 28 U.S.C.
§ 2254(d), sets forth the conditions under
which a court shall grant a petition for a writ
of habeas corpus:
An application for a writ of habeas cor-
pus on behalf of a person in custody pursu-
ant to the judgment of a State court shall
not be granted with respect to any claim
that was adjudicated on the merits in State
court proceedings unless the adjudication
of the claimSS
(1) resulted in a decision that was con-
trary to, or involved an unreasonable appli-
cation of, clearly established Federal law, as
determined by the Supreme Court of the
United States; or
(2) resulted in a decision that was based
on an unreasonable determination of the
facts in light of the evidence presented in
the State court proceeding.
Section 2254(d)(1) addresses pure ques-
tions of law and mixed questions of law and
fact. See Martin v. Cain, 246 F.3d 471, 475
(5th Cir. 2001). Under the first (“contrary
to”) clause, a federal district court may grant
habeas relief if the state court decided a case
differently from how the United States
Supreme Court decided a case on a set of
materially indistinguishable facts. Williams v.
Taylor, 529 U.S. 362, 412-13 (2000). Under
the second (“unreasonable application”)
clause, a court may grant habeas relief if the
state court correctly divined a legal principle
from the Supreme Court’s jurisprudence but
misapplied that principle to the facts. See id.
Section 2254(d)(2) addresses pure ques-
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
state court findings of fact unless they are
based on an unreasonable interpretation of the
evidence presented in the state court proceed-
ing.7
B.
We review the federal district court’s find-
ings of fact for clear error and its conclusions
of law de novo. See Martinez v. Johnson, 255
F.3d 229, 237 (5th Cir. 2001). The legal con-
clusion at issue is the holding that “[r]eviewing
the evidence in light of the special issues, a
jury would be very hard pressed to see the evi-
dence presented as anything but aggravating.
Failure to submit an instruction on mitigation
evidence was an unreasonable application of
federal law and Supreme Court precedent.”8
5(...continued)
(1995).
6 Ex parte Brewer, No. 46,587-01 (Tex. Crim.
App. 2001) (unpublished).
7 See Chambers v. Johnson, 218 F.3d 360, 363
(5th Cir. 2000) (as modified on denial of rehear-
ing). Factual determinations made by the state
court are presumptively correct and will not be dis-
turbed unless the petitioner rebuts the presumption
by clear and convincing evidence. See 28 U.S.C.
§ 2254(e)(1).
8 As we will discuss momentarily, this lan-
(continued...)

-- 3 of 9 --

4
Section 2254(d)(1) therefore controls our
review, and we conduct a de novo inquiry to
determine whether the state court’s decision is
contrary to, or an unreasonable application of,
clearly established Supreme Court precedent.9
We do so here by analyzing de novo the
federal district court’s decision to see whether
it properly decided that the state court did not
satisfy § 2254(d)(1).
III.
The trial court instructed the jury, pursuant
to article 37.071 of the Texas Code of Crimi-
nal Procedure (Vernon 1991), as follows:
Special issue No. 1
Do you find from the evidence beyond a
reasonable doubt that the conduct of the
defendant, BRENT RAY BREWER, that
caused the death of the deceased, Robert
Doyle Laminack, was committed deliber-
ately and with the reasonable expectation
that the death of the deceased would result?
Special issue No. 2
Do you find from the evidence beyond a
reasonable doubt that there is a probability
that the defendant, BRENT RAY BREW-
ER, would commit criminal acts of violence
that would constitute a continuing threat to
society?
A.
We consider it appropriate to devote signif-
icant space to discussing the jurisprudence as-
sociated with article 37.071. In Jurek v. Tex-
as, 428 U.S. 262, 272 (1976), the Court up-
held the Texas statutory special issues ap-
proach in the punishment phase of capital tri-
als, but did so on the explicit premise that the
special issues were capable of an expansive
construction to capture proper mitigation evi-
dence. In Franklin v. Lynaugh, 487 U.S. 164,
179 (1988), the Court made plain that, at least
with respect to some mitigation evidence, de-
viating from the special issues approach is not
necessary. Specifically, it found the “danger-
ousness” special issue was capable of captur-
ing evidence of the petitioner’s good behavior
while incarcerated.
In Penry v. Lynaugh, 492 U.S. 302, 322
(1989) (“Penry I”), the Court held that the
two special issues were not sufficient to give
mitigating effect to Penry’s evidence of mental
retardation and a history of abuse. It stated
that each of those factors represents “‘a two-
edged sword’: [Each] may diminish [the peti-
tioner’s] blameworthiness for his crime even as
it indicates there is a probability that he will be
dangerous in the future.” Id. at 324.
Four years after Penry I, the Court decided
Johnson v. Texas, 509 U.S. 350, 367-68
(1993), in which the defendant invoked
Penry I in an attempt to invalidate his death
sentence—a sentence imposed despite his evi-
dence of youth. See id. at 368. The future
dangerousness issue alone, the Court conclud-
ed, gave the jurors a constitutionally sufficient
vehicle for considering Johnson’s youth in
8(...continued)
guage—stating that the mitigating evidence was
capable of nothing but an aggravating interpreta-
tion—seems somewhat at odds with language ear-
lier in the opinion stating that “the evidence at Pe-
titioner’s trial does not fit squarely [in the dan-
gerousness instruction] either. One could view the
evidence as either aggravating or mitigating.”
9 The district court rejected seven additional ha-
beas claims that Brewer included in his petition.
Brewer does not cross-appeal these rulings.

-- 4 of 9 --

5
making its reasoned moral response.10 “It
strains credulity to suppose that the jury would
have viewed the evidence of petitioner’s youth
as outside its effective reach in answering the
second special issue.” Id.
After Johnson, therefore, it was indisput-
able that Jurek remained good law and that,
although some relevant evidence may receive
constitutionally insufficient mitigating effect
under the standard Texas special issues (e.g.,
evidence of mental retardation), other evidence
is quite capable of being given mitigating effect
through that methodology. When mitigating
evidence falls into that latter category, the
imposition of the death penalty under the pre-
Penry I scheme does not offend the Eighth
Amendment.
In following Penry I, this court developed
a two-part test for determining whether the de-
fendant’s evidence requires a special mitigation
instruction: (1) whether the proffered material
was constitutionally relevant mitigating
evidence and (2) whether the proffered evi-
dence was beyond the effective reach of the
jurors.11 We in turn defined “constitutionally
relevant” evidence as that which was “due to
the uniquely severe permanent handicaps with
which the defendant was burdened through no
fault of his own . . . .”12 In Tennard, however,
the Supreme Court flatly rejected that test of
constitutional relevance and instructed us in-
stead that the definition of relevance in this
context is no different from the definition of
relevance in most others: “any tendency to
make the existence of any fact that is of con-
sequence to the determination of the action
more probable or less probable than it would
be without the evidence . . . .”13
B.
For the mitigating evidence to be within the
effective reach of the jury in answering the
special issues, the special interrogatories must
be capable of giving relevant evidence consti-
tutionally sufficient mitigating effect. Whether
that sufficiency requires that the evidence be
given “full,” or merely “some,” mitigating
effect has been the subject of considerable dis-
cussion in this court,14 but ultimately the dis-
tinction is only one of semantics, because re-
gardless of what label is put on the word “ef-
fect,” it is indisputable that the effect must be
constitutionally “sufficient.” Even if the re-
quirement is called “full,” it means nothing
10 Johnson, 509 U.S. at 368 (“The relevance of
youth as a mitigating factor derives from the fact
that the signature qualities of youth are transient;
as individuals mature, the impetuousness and
recklessness that may dominate in younger years
can subside. We believe that there is ample room
in the assessment of future dangerousness for a
juror to take account of the difficulties of youth as
a mitigating force in the sentencing deter-
mination.”).
11 Smith v. Cockrell, 311 F.3d 661, 680 (5th
Cir. 2002) (internal citations and quotations
omitted).
12 Graham v. Collins, 950 F.2d 1009, 1029
(5th Cir. 1992) (en banc), aff’d, 506 U.S. 461
(1993).
13 Tennard, 542 U.S. at 283 (internal citations
and quotations omitted.). Tennard further clarified
that impaired intellectual functioning is inherently
mitigating (and therefore must be capable of being
given mitigating effect through the special jury
instructions) and is subject to the same legal
analysis as is mental retardation for purposes of a
Penry I claim. See id. at 287.
14 Compare Coble v. Dretke, 417 F.3d 508, 527
(5th Cir. 2005) with Cole v. Dretke, 418 F.3d 494,
496-511 (5th Cir. 2005).

-- 5 of 9 --

6
more than “sufficient.” We now turn to the
district court’s application of this standard for
the purpose of deciding, under the facts and
circumstances of this case, whether the special
interrogatories allowed the jury to give such
sufficient mitigating effect to the evidence in
question.
C.
To determine whether a jury has sufficient
vehicles for considering mitigating evidence,
the habeas court must determine whether
“there is no reasonable likelihood that the jury
would have found itself foreclosed from con-
sidering the relevant aspects of the [mitigating
evidence].” Johnson, 509 U.S. at 368. We
conduct a de novo inquiry into whether the
district court applied this standard properly,
and we conclude that it did not.
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
depression three months before the murder;
that he was briefly hospitalized for that de-
pression; that his co-defendant, a woman with
whom he was apparently obsessed, dominated
and manipulated him; that he had been abused
by his father; that he had witnessed his father
abuse his mother; and that he had abused
drugs.15 Apparently the district court seriously
considered only the mental illness and drug
abuse as potentially warranting habeas relief.16
Brewer offered evidence of one hospitalization
15 For further explanation of each of set of prof-
fered evidence, see notes 1-4, supra.
16 There is considerable authority that evidence
of a troubled childhood falls within the scope of the
special issues. See Graham, 506 U.S. at 475; Ja-
cobs v. Scott, 31 F.3d 1319, 1327 (5th Cir. 1994).
Comparison of Graham and Penry I reveals a
constitutional distinction between, on the one hand,
(continued...)
16(...continued)
“severe” abuse of the type Penry sustained and, on
the other, a “mere” troubled childhood of the sort
Graham experienced. In Graham the Court seems
to sanction such a side-by-side comparison as a
permissible way of conducting the inquiry. See
Graham, 506 U.S. at 476.
There is no easy way to locate Brewer at either
pole. First, the trial evidence indicates that Brew-
er’s father hit Brewer “numerous” times but, be-
cause of the timing of the father’s reintroduction
into the family, this abuse could not have occurred
until Brewer was at least fifteen (Penry was subject
to abuse beginning at a very young age.). Al-
though the abuse was more than an isolated inci-
dent, it does not rise to the level of that at issue in
Penry. See Penry I, 492 U.S. at 309. Moreover,
as noted earlier, Brewer and his attorney made an
informed decision not to present expert psychiatric
testimony.
Second, Penry I considers the mitigation issue
in light of Penry’s mental retardation and child
abuse, evaluated as a single unit. See also Cole,
418 F.3d at 502 (alluding to the mitigating evi-
dence as that of Cole’s “destructive family back-
ground and organic neurological deficiency”) (em-
phasis added). The vast majority of subsequent
caselaw has addressed mental retardation in
isolation. It is thus doubtful that Brewer’s child
abuse, without additional evidence of cognitive
limitation, had mitigating effects sufficiently be-
yond the jury’s reach to constitute a violation of the
Eighth Amendment.
For the remaining issues (other than mental
illness, substance abuse, and troubled childhood),
it was at least reasonably likely that the special
issue involving dangerousness did not foreclose
consideration of the mitigating evidence. See Cole,
id. at 508. To understand why the district court
did not undertake a serious discussion of the other
five pieces of evidence, see notes 1-4, supra.

-- 6 of 9 --

7
for a single episode of non-psychotic major
depression that was at least partially a result of
a suicide note he had written to his mother.
This circuit has made a distinction between
mental retardation and mental illness.17 A
mental illness inquiry does not require any ad-
justment to the standard two-pronged inter-
rogatory, and we have rejected habeas peti-
tions on these grounds on other occasions.18
The only instances in which mental illness has
given rise to Penry I violations involve those
where the illness in question is chronic and/or
immutable. See, e.g., Bigby (in which peti-
tioner suffered from chronic paranoid schizo-
phrenia).19 In Graham the Court stated:
[W]e are not convinced that Penry could be
extended to cover the sorts of mitigating
evidence Graham suggests without a
wholesale abandonment of Jurek and per-
haps also of Franklin v. Lynaugh . . . . Jur-
ek is reasonably read as holding that the
circumstance of youth is given constitution-
ally adequate consideration in deciding the
special issue. We see no reason to regard
the circumstances of Graham’s family
background and positive character traits in
a different light. Graham’s evidence of
transient upbringing and otherwise nonvio-
lent character more closely resembles Jur-
ek’s evidence . . . than it does Penry’s . . . .
Graham, 506 U.S. at 476 (emphasis added).
More recently, this court in Cole has ex-
plained why evidence of a troubled childhood
may, as a result of its temporary character, fall
sufficiently within the ambit of the special dan-
gerousness instruction: “Given the experts’
testimony during the punishment phase, the
jury could have believed them and found that,
although Cole suffered a turbulent childhood
and may suffer from diminished impulse
control, he is capable of change and thus
would not necessarily remain a danger in the
future.” Cole, 418 F.3d at 507. In Coble, a
panel of this court made an analysis that is
17 See Robison v. Johnson, 151 F.3d 256, 265-
66 (5th Cir. 1998).
18 See, e.g., Hernandez v. Johnson, 248 F.3d
344, 349 (5th Cir. 2001) (holding that the future
dangerousness special issue was capable of giving
effect to this mitigating evidence); Lucas v. John-
son, 132 F.3d 1069, 1082-83 (5th Cir. 1998)
(holding that the deliberateness special issue was
capable of giving this evidence effect). These cases
remain good law even after Tennard, because Ten-
nard overturned only Fifth Circuit methodology for
determining what mitigating evidence is con-
stitutionally relevant. See Tennard, 542 U.S. at
285-87.
19 The Bigby court decided that the second
special issue (future dangerousness) was incapable
of acting as an exculpatory vehicle for this
evidence:
Furthermore, although this Circuit has previ-
ously held that mitigation evidence of mental
illness could be considered within the context of
the second special issue, future dangerousness,
if the illness can be controlled or go into
remission, see e.g., Lucas[ v. Johnson], 132
(continued...)
19(...continued)
F.3d 1069; see also Hernandez v. Johnson,
248 F.3d 344 (5th Cir.2001), Bigby’s
mitigation evidence indicated that his condition
cannot be adequately controlled or treated . . . .
In short, Bigby’s evidence that his mental
disorders made it difficult for him to avoid
criminal behavior has the same “double-edged
sword” quality as Penry’s evidence that he was
unable to conform his conduct to the law.
Bigby, 402 F.3d at 571.

-- 7 of 9 --

8
consistent with Cole on this point of law:
“This Circuit has previously held that mitigat-
ing evidence of mental illness could be con-
sidered within the context of the second spe-
cial issue, future dangerousness, if the illness
can be controlled or go into remission.”20
Although Graham and Jacobs provide suf-
ficient authority for our determination that the
special issues are here capable of giving Brew-
er’s evidence of a troubled childhood con-
stitutionally mitigating effect, our court’s more
recent opinions in Cole and Coble bolster that
proposition considerably. Cole presented
evidence of destructive family background and
of organic neurological defects that arguably
amounted to a lack of impulse control.21 The
Cole court relied on Graham’s holding that
“family background evidence falls within the
broad scope of Texas’s special issues.”22
In Coble and Cole, moreover, the record
contained expert psychiatric evidence that bore
both on the defendants’ future dangerousness
and other potential issues relating to mental
impairment.23 Even if Brewer had proved
mental illness (which it appears he did not),
and even if mental illness were tantamount to
mental retardation for the purposes of our case
law (which it is not), Brewer came nowhere
near to producing evidence sufficient for us to
grant relief.
Cole offers the following summary of the
caselaw:
As the expert testimony intimated that Pen-
ry was unable to learn from his mistakes,
the Johnson court concluded that the only
logical manner in which Penry’s jury could
have considered the evidence of his mental
retardation under the future dangerousness
special issue was as an aggravating factor:
Penry would remain a danger in the future
because there was no chance that he would
ever understand that rape and murder were
wrong. Thus, Penry’s jury was unable to
give any mitigating effect to the mental
retardation evidence that he proffered.
Cole, 418 F.3d at 505 (footnote omitted). The
Cole panel went on to distinguish the evidence
before it from that in Penry I on the ground
that, because the evidence indicated that
Cole’s condition was capable of being cured
and that he was capable of learning from his
mistakes, the future dangerousness question
could also give the psychiatric evidence con-
stitutionally sufficient mitigating effect. See id.
20 Coble, 417 F.3d at 523 (citing Lucas v.
Johnson, 132 F.3d 1069, 1082-83 (5th Cir. 1998);
Robison v. Johnson, 151 F.3d 256, 266 (5th Cir.
1998)).
21 In Cole, the state presented the following
mitigating evidence: (1) Cole’s mother was an
alcoholic unable to care for her children; (2) Cole’s
father was arrested for robbery; (3) Cole’s father
deserted the family when Cole was five years old;
(4) Cole’s mother moved with her children to her
parent’s home; (5) Cole’s grandparents were
alcoholics who did not want the children; (6) Cole
was isolated from other children because his
grandparents’ home was eight miles out of town;
(7) Cole had difficulty getting to school; (8) Cole
was placed in a children’s home at the age of five;
(9) while there, his mother visited him only twice;
(10) his father never visited him there; and (11) his
uncle adopted his brother, but not him. Cole, 418
F.3d at 499-500.
22 Id. at 507 (internal quotations omitted) (citing
(continued...)
22(...continued)
Graham, 506 U.S. at 476).
23 See, e.g., id. at 505-06; Coble, 417 F.3d at
522-23.

-- 8 of 9 --

9
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 of 9 --