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UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-10059

BRENT RAY BREWER,

Petitioner-Appellant,

VERSUS

GARY L. JOHNSON,

Respondent-Appellee.

Appeal from the United States District Court

For the Northern District of Texas

April 17, 1998

Before SMITH, EMILIO M. GARZA and PARKER, Circuit Judges.

PER CURIAM:

Petitioner Brent Ray Brewer, a Texas prisoner under sentence

of death, appeals the order lifting his stay of execution and

dismissing his federal habeas corpus action. We affirm.

PROCEDURAL HISTORY

On June 30, 1995, Brewer filed a motion to stay his execution

and requested that the court appoint counsel for the purpose of

filing a petition for federal habeas corpus. The district court

granted a stay of execution and appointed the Federal Public
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Defender (“FPD”) to represent Brewer. On January 22, 1996, Brewer

filed a Notification of Intent to Return to State Court to Apply

for State Habeas Corpus Relief and a motion to hold the federal

proceedings in abeyance, to continue appointment of federally

funded counsel and to permit federal appointed counsel to work on

unexhausted claims in the state court of Texas. On the same date,

Brewer filed his second request in state court for the appointment

of counsel to represent him in state court.

On April 24, 1996, the Antiterrorism and Effective Death

Penalty Act (“AEDPA”) was signed into law. 

On November 22, 1996, the State of Texas appointed attorney

Rick Keffler to represent Brewer in seeking to obtain or exhaust

state remedies. Brewer, with the assistance of Keffler, filed an

application for writ of habeas corpus in state court on April 23,

1997 and an amended application on August 19, 1997. That

application is currently pending. 

On January 10, 1997, the district court dismissed the federal

proceeding without prejudice and lifted the federal stay of

execution. Brewer appealed. This court ordered that the appeal

proceed without the necessity of a Certificate of Appealability or

Certificate of Probable Cause.

ANALYSIS

The district court’s denial of a motion to abate federal

proceedings pending the exhaustion of state remedies and its order

of dismissal without prejudice are reviewed for abuse of

discretion. See Sterling v. Scott, 57 F.3d 451, 454 (5th Cir.
 

1 We note that Brewer is not seeking to use federally funded

counsel to litigate his state claims. Therefore, the decision in

Sterling v. Scott, 57 F.3d 451, 453 (5th Cir. 1995), barring such

use does not expressly address the issue presented in this appeal.

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1995); Johnson v. Texas, 878 F.2d 904, 906 (5th Cir. 1989).

Likewise, the district court’s refusal to grant a stay in a habeas

proceeding is reviewed for abuse of discretion. See McFarland v.

Scott, 512 U.S. 849, 858 (1994).

Brewer contends that the district court abused its discretion

when it dismissed his federal action, denying his requests to hold

his federal proceeding in abeyance, to continue the stay of

execution, and to allow federally appointed counsel to continue to

represent him in the federal proceeding1 while he pursues his state

remedies. In McFarland v. Scott, 512 U.S. 849, 858 (1994), the

Supreme Court held that the right to federally appointed counsel in

post conviction habeas challenges to death sentences exists

regardless of whether a federal petition is pending, stating that

“the right to counsel necessarily includes the right for that

counsel meaningfully to research and present a defendant’s habeas

claims.” Id.

The district court clearly had authority to either abate or

dismiss the action. See, e.g., Coleman v. Thompson, 501 U.S. 722,

731 (1991)(“This Court has long held that a state prisoner’s

federal habeas petition should be dismissed if the prisoner has not

exhausted available state remedies as to any of his federal

claims.”); see also, e.g., Johnson v. Texas, 878 F.2d 904 (5th Cir.

1989)(treating a § 1983 action as a § 2254 action and affirming the
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district court’s decision to hold the action in abeyance pending

exhaustion.) 

A. Discretion to dismiss or abate

Brewer begins by arguing that the district court made a

mistake of law by failing to recognize that it had discretion to

abate the proceedings rather than dismiss them. Brewer focuses on

language in the Order of Dismissal and Lifting Stay of Execution:

The Court . . . finds that this action must be dismissed

for failure to exhaust state court remedies pursuant to

Richardson v. Procunier, 762 F.2d 429, 431 (5th Cir.

1985).

Brewer correctly points out that neither Richardson, nor any other

controlling precedent dictated the dismissal of the federal action

in this case. However, Brewer’s argument fails because, after

reviewing the record as a whole, it is clear to us that the

district court recognized its authority to dismiss or abate,

weighed the factors that supported each of the possible outcomes

and exercised its discretion to dismiss. Specifically, the

magistrate’s report and recommendation, adopted by the district

court, considered the various arguments and authorities supporting

abatement put forward by Brewer, and rejected them on their merits.

B. Did the district court abuse its discretion?

Brewer argues that the one year statute of limitations imposed

by the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. §

2244(d)(1), (“AEDPA”) may deprive him of the opportunity for

meaningful representation in his federal habeas petition unless the

order of dismissal is reversed. 

The time during which a properly filed application for state
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post conviction or other collateral review with respect to Brewer’s

conviction is pending is not counted toward the limitations period.

See 28 U.S.C. § 2244(d)(2). Therefore, the limitations period is

currently tolled by the pending state habeas petition, regardless

of the dismissal of the federal case. Brewer has not established

that the AEDPA limitations period will preclude the refiling of his

federal proceeding after he has properly exhausted his state

remedies. For that reason, we hold that the district court did not

abuse its discretion in dismissing Brewer’s federal action.

AFFIRMED.