United States Court of Appeals

Fifth Circuit

FILED

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 inmate Brent Brewer’s petition for writ of habeas 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 asrequired 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
2

render judgment denying the habeas petition.

I.

Brewer was sentenced to death for a murder committed during a robbery. At trial, he

introduced a variety ofmitigating evidence, including 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 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. Brewer submitted at least

seven proposed instructions designed to give

effect to this mitigating evidence, but the trial

court denied all ofthem, instead requiring only

that the jury answer two relevant special

questions relating to deliberateness and potential for future dangerousness.

The conviction was affirmed on direct appeal,1

after which Brewer initiated what were

ultimately unsuccessful state habeas proceedings.2

 He then filed the instant federal habeas

petition. After requesting supplemental briefing concerning Tennard v. Dretke, 124 S. Ct.

2562 (2004), the district court, as we have

said, granted conditional relief.

II.

A.

TheAntiterrorismandEffectiveDeath Penalty 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 meritsin 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 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 questions 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 questions of fact. See Moore v. Johnson, 225 F.3d

495, 501, 504 (5thCir. 2000). Under this subsection, 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 proceed1 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).
3

ing.3

B.

We review the federal district court’s findings 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 conclusion at issue isthe holding that “[r]eviewing

the evidence in light of the special issues, a

jury would be very hard pressed to see the evidence 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 Criminal 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 deliberately and with the reasonable expectation

that the death ofthe 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 BREWER, would commit criminal acts of violence

that would constitute a continuing threat to

society?

A.

We consider it appropriate to devote significant space to discussing the jurisprudence associated with article 37.071. In Jurek v. Texas, 428 U.S. 262, 272 (1976), the Court upheld the Texas statutory special issues approach 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 ofthe petitioner’s good behavior 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 rehearing). Factual determinations made by the state

court are presumptively correct and will not be

disturbed unless the petitioner rebuts the presumption by clear and convincing evidence. See 28

U.S.C. § 2254(e)(1).

4 As we will discuss momentarily, this language—stating that the mitigating evidence was

capable of nothing but an aggravating interpretation—seems somewhat at odds with language earlier in the opinion stating that “the evidence at Petitioner’s trial does not fit squarely [in the dangerousness instruction] either. One could view the

evidence as either aggravating or mitigating.”

5 The district court rejected seven additional habeas claims that Brewer included in his petition.

Brewer does not cross-appeal these rulings.
4

two special issues were not sufficient to give

mitigating effect to Penry’s evidence ofmental

retardation and a history of abuse. It stated

that each of those factors represents “a twoedged sword”: [Each] may diminish [the petitioner’s] blameworthinessfor his crime evenas

it indicatesthere 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 defendant’s evidence requires a special mitigation

instruction: (1) whether the proffered material

was constitutionally relevant mitigating

evidence, and (2) whether the proffered evidence 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 Supreme Court flatly rejected that test of constitutional relevance and instructed us instead

that the definition of relevance in this context

is no different from the definition of constitutional relevance in most others: “any tendency

to make the existence of any fact that is of

consequence to the determination ofthe 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 issues. 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 appearsto 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 nextsentence readsthat

“[w]ithout the guidance of a proper instruction

from the court, the jury was not given an opportunity 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

wasstating 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 aggravating 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 opinion in which the district court makes its ultimate holding on the issue, it explicitly states

that the error flows from the jury’s inability,

given the special instructions, to give mitigat6

Smith v. Cockrell, 311 F.3d 661, 680 (5thCir.

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.).
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 likelihood 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 thisstandard

properly, and we conclude that it did not.

As we noted earlier, at trial Brewer introduced a variety of mitigating evidence, including 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 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 hospitalization and a suicide note.

This circuit has accepted a distinction between mental retardation and mental illness.10

A mental illness inquiry does not warrant any

sort of adjustment to the standard twopronged 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 ofthese cases,

it is sufficient to say that generally they stand

for the proposition that, even under the two9 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 (5thCir.

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 dangerousness 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. Johnson, 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 Tennard overturned onlyFifthCircuit methodology for

determining what mitigating evidence is constitutionally 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 voluntary intoxication can be given effect through the

deliberateness prong).
6

pronged special issue methodology, a jury can

adequately incorporate evidence of mental illness and substance abuse into its decision calculus.

Therefore, the district court erred in granting Brewer’s petition for a writ of habeas corpus. The judgment is REVERSED, and a

judgment is RENDERED denying the petition

for writ of habeas corpus.