Brewer v. Quarterman

United States Court of Appeals
Fifth Circuit
F I L E D
May 31, 2005
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
______________________________
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 ground that the court
failed properly to assess the reasonableness of
the state court’s adjudication as required by 28
U.S.C. § 2254(d) and on the ground that it
failed correctly to apply valid Supreme Court
and Fifth Circuit precedent. We reverse and

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render judgment denying 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; that his co-defendant, a wo-
man with whom he was apparently obsessed,
dominated and manipulated him; that he had
been abused by his father; that he had wit-
nessed his father abuse his mother; and that he
had abused drugs. Brewer submitted at least
seven proposed instructions designed to give
effect to this mitigating evidence, but the trial
court denied all of them, instead requiring only
that the jury answer two relevant special
questions relating to deliberateness and po-
tential for future dangerousness.
The conviction was affirmed on direct ap-
peal,1 after which Brewer initiated what were
ultimately unsuccessful state habeas proceed-
ings.2 He then filed the instant federal habeas
petition. After requesting supplemental brief-
ing concerning Tennard v. Dretke, 124 S. Ct.
2562 (2004), the district court, as we have
said, granted conditional relief.
II.
A.
The Antiterrorism and Effective Death Pen-
alty Act of 1996, 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 corpus
on behalf of a person in custody pursuant
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
claim
(1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law, as de-
termined 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-
1 Brewer v. State, No. 71,307 (Tex. Crim. App.
1994) (unpublished), cert. denied, 514 U.S. 1020
(1995).
2 Ex parte Brewer, No. 46,587-01 (Tex. Crim.
App. 2001) (unpublished).

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ing.3
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.”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.5
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
trials, but did so on the explicit premise that
the special issues were capable of an expansive
construction to capture proper mitigation
evidence. In Franklin v. Lynaugh, 487 U.S.
164, 179 (1988), the Court made plain that, at
least with respect to some mitigation evidence,
deviating from the special issues approach is
not necessary. Specifically, it found the
“dangerousness” special issue was capable of
capturing evidence of the petitioner’s good be-
havior while incarcerated.
In Penry v. Lynaugh, 492 U.S. 302, 322
(1989) (“Penry I”), the Court held that the
3 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
disturbed unless the petitioner rebuts the pre-
sumption by clear and convincing evidence. See 28
U.S.C. § 2254(e)(1).
4 As we will discuss momentarily, this lan-
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.”
5 The district court rejected seven additional ha-
beas claims that Brewer included in his petition.
Brewer does not cross-appeal these rulings.

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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.
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.6 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 . . . .”7 In Tennard, the Su-
preme Court flatly rejected that test of consti-
tutional relevance and instructed us instead
that the definition of relevance in this context
is no different from the definition of constitu-
tional relevance in most others: “any tendency
to make the existence of any fact that is of
consequence to the determination of the action
more probable or less probable than it would
be without the evidence . . . .”8
B.
There are two possible circumstances with
respect to mitigating evidence and special is-
sues. Either the special issues are capable of
giving only aggravating effect to the mitigating
evidence, or they are capable of giving both
mitigating and aggravating effect to the
mitigating evidence. The Supreme Court has
expressly sanctioned the latter and has held the
former to be unconstitutional. See Johnson v.
Texas, 509 U.S. 350, 368-69 (1993). In other
words, a writ of habeas corpus may issue only
where the special questions are capable of
giving the mitigating evidence exclusively
aggravating effect.
The state appears to believe that the district
court erred in this regard, as it excerpts that
court’s statement that “[o]ne could view the
evidence as aggravating or mitigating.” At
first blush the state seems correct, but when
one examines the subsequent sentences of the
district court’s opinion, it becomes evident
that the state misinterprets the holding.
The district court’s next sentence reads that
“[w]ithout the guidance of a proper instruction
from the court, the jury was not given an op-
portunity to consider it as mitigating.” The
court continues, “Reviewing the evidence in
light of the special issues, a jury would be hard
pressed to see the evidence presented as
anything but aggravating.”
The state, then, takes the quoted language
somewhat out of context. The district court
was stating merely that the evidence itself was
capable of being aggravating or mitigating. It
was not stating that the special instructions
were capable of giving that evidence both ag-
gravating and mitigating effect. Not only does
this appear to be the intended meaning when
one reads the sentences surrounding the text
the state excerpts, but in the part of the opin-
ion in which the district court makes its ulti-
mate holding on the issue, it explicitly states
that the error flows from the jury’s inability,
given the special instructions, to give mitigat-
6 Smith v. Cockrell, 311 F.3d 661, 680 (5th Cir.
2002) (internal citations and quotations omitted).
7 Graham v. Collins, 950 F.2d 1009, 1029 (5th
Cir. 1992) (en banc), aff’d, 506 U.S. 461 (1993).
8 Tennard, 124 S. Ct. at 2570 (internal citations
and quotations omitted.).

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5
ing effect to mitigating evidence. The district
court, therefore, did not misstate the law.
C.
To conclude that the district court properly
stated the law is not, however, to decide that
it properly applied it. To determine whether
a jury has sufficient vehicles for considering
mitigating evidence, the habeas court must
determine whether “there is no reasonable like-
lihood that the jury would have found itself
foreclosed from considering the relevant
aspects of the [mitigating evidence].” Id. 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. Apparently the district court seriously
considered only the mental illness and drug
abuse as potentially warranting habeas relief.9
Brewer offered evidence of a single hospital-
ization and a suicide note.
This circuit has accepted a distinction be-
tween mental retardation and mental illness.10
A mental illness inquiry does not warrant any
sort of adjustment to the standard two-
pronged interrogatory, and we have rejected
habeas petitions on these grounds on a number
of occasions.11 We likewise have rejected
claims that mitigating evidence pertaining to
substance abuse, without an adjustment to the
sentencing issues, can support a Penry
violation.12 Although we decline to revisit
specifically the rationale in each of these cases,
it is sufficient to say that generally they stand
for the proposition that, even under the two-
9 There is considerable authority that evidence
of a troubled childhood and child abuse falls within
the scope of the special issues. See, e.g. Johnson,
509 U.S. at 367; Graham, 506 U.S. at 475;
Robertson v. Cockrell, 325 F.3d 243, 249 (5th Cir.
2003), overruled in part by Tennard; Davis v.
Scott, 51 F.3d 457, 462-65 (5th Cir. 1995); Jacobs
v. Scott, 31 F.3d 1319, 1327 (5th Cir. 1994). For
the remaining issues (other than mental illness and
troubled childhood), it was at least reasonably
likely that the special issue involving dangerous-
ness did not foreclose consideration of the miti-
(continued...)
9(...continued)
gating evidence.
10 See Robison v. Johnson, 151 F.3d 256, 265-
66 (5th Cir. 1998).
11See, 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, 124 S. Ct. at
2571.
12 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).

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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.

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