United States Court of Appeals Fifth Circuit 

## FILED December 29, 2006 Charles R. Fulbruge III Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

___________ No. 05-70056

____________ LAWRENCE RUSSELL BREWER, Petitioner - Appellant,
versus NATHANIEL QUAR TERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee. Appeal from the United States District Court fo r the Eastern District of Texas
ON PETITION FOR REHEARING Before SMITH, GARZA, and PRADO, Circuit judges. PER CURIAM: Lawrence Russell Brewer seeks rehearing on our decision treating as waived his request fo r certificat e of appealability (COA) on two issues th at he did not raise in his previous request fo r COA before the district court. We deny this petition for rehearing and write to reaffirm that the waiver doctrine applies to COA applications. Initially, Brewer filed a habeas peti tion on 15 issues. The district court denied all 15. Following the denial, Brewer filed wit h the district court a Rule 59 mo tion to correct judgment as to eight of the 15 claims. This was also denied. Then Brewer filed in the district court a notice of2

appeal and application fo r COA, which stated, “Petitioner r espectfully requests this Court grant a Certificat e of Appealabilit y upon the mat ters raised wit hin Petitioner’s previousl y filed Mo tion to C orrect Judgm

ent.” Treating this as a request for COA only as to those eight issues raised in the

mo tion to correct judgment, the district court denied COA on seven issues and granted COA on one issue. Brewer then filed an appeal in this court on the one issue for which he was granted a COA. On the same day he filed his appellate brief, Brewer also filed an application fo r COA as to two issues fo r w hich habeas had been denied but which were not included in Brewer’s motion to correct judgment, and therefore were not included in Brewer’s init ial request fo r COA. Ult imat ely, t his court denied Brewer’s appeal as to the i ssue for which Brewer was granted a COA and denied as waived the two i ssues in his request for COA filed in this court not previously filed with the district court. Brewer’s mo tion fo r rehearing relates only to the two issues we treated as waived. He raises th ree arguments. First Brewer argues that had the district court treated hi s notice of appeal as a request fo r COA on all claims denied habeas, then the two claims would now be properl y before this court. Alt hough Brewer is correct that a notice of appeal can be treated as a constructive request for COA, see Fed. R. App. P. 22(b)(2), a notice of appeal will only be treated as a constructive request of COA where no request fo r COA is filed. S ee Miller v. Dretke , 404 F.3d 908, 912 (5th Cir. 2005) (“[U]nder Federal Rule of Appellate Procedure 22(b) ( 2), a notice of appeal constitutes a COA request, if no separate request is filed.”); see also United States v. Mitchell , 216 F.3d 1126, 1130 (D.C. Cir. 2000) (“Rule 22(b)(2) provides th at when an appellant fails to file an express request fo r
a COA wit h the court of appeals, the notice of appeal constitutes such a request to the judges of the court of appeals.”). Because Brewer specifically requested a COA, the district court was correct not to treat Brewer’s notice of appeal as a constructive request fo r COA and properl y limit ed the request3

fo r COA to those eight claims raised in the motion to correct judgment. Next Brewer contends th at he should be allo wed to file a request fo r COA in the circuit court
on issues not previously denied COA in the district court. For this reason, Brewer argues, the two claims were properl

y before this court. Th e framework created by the statute, 28 U.S.C. § 2253(c)(1), and the procedural rule, Fed. R. App. P. 22(b), is not cry stal clear on this point , but our caselaw is: “‘A district court m ust deny the COA before a petitioner can request one from this court.’” W

hitehead v. Johnson , 157 F.3d 384, 388 (5th Cir. 1998) (quoting Muniz v. Johnson , 114 F.3d 43 (5th Cir. 1997)); United States v. Youngblood , 116 F.3d 1113, 1115 (5th Cir. 1997) (“Under Muniz , jurisdiction is not vested in this Court because the di strict court has not yet considered whether COA should issue.”). A request for COA must be filed in the district court before such a request can be made in the circuit court. Brewer’s thir d argument is th at even if all requests fo r COA must go th rough the district court before reaching the circuit court, a request fo r COA filed wit h t he circuit court in the first instance should be remanded to the district court rather than treated as waived. On this point, Brewer misunderstands the reason why his claims were waived. We applied the waiver doctrine not because Brewer was attem

pting to bypass the district court’s COA application procedure, but because Brewer had already availed himself of the district court’s COA application procedure. He requested that the district court grant COA as to eight of his original 15 habeas claims. If he wanted to request a COA

as to any of the other seven claims, he should have done so then. Instead, Brewer filed one request fo r COA wit h the district court, and then, six mo nt hs aft er the district court’s decision, filed a different request fo r COA in this court. By filing mult iple COA applications raising different claims in different courts, Brewer has attem pted to extend and complicate the process for habeas appeals.4

The legislat ive int ent behind the creation of the COA procedure, as a th reshold requirement to appealing a denial of habeas, was to have the opposite effect. S ee Barefoot v. Estelle , 463 U.S. 880, 8 92 (1983) (“Congress established the requirement that a prisoner obtain a certificate of probable

cause to appeal [the statutory predecessor to the COA] in order to prevent frivo lo us appeals from delaying the States' abilit y to impo se sentences, including death sentences.”). Requiring that all claims be raised at once is no mo re burdensome fo r a peti tioner requesting COA t han it is for a party on direct review, where the waiver doctrine is routinely applied. For this reason, it is proper to apply the waiver doctrine in the context of COA application procedures. S ee also Foster v. Quarterman , 466 F.3d 359, 366 (5th Cir. 2006) (“[I]n a sit uation such as this, where [the peti tioner] appealed the denial of relief on various claims and requested a COA fo r th at, he generally would have waived any claim no t addressed in his COA application/brief.”). Even if we had considered Brewer’s two waived claims, COA would not have been granted. To meet the standard fo r g ranting a COA, the petitioner “must demonstrate that ‘jurists of reason could disagree wit h the district court's resol ution of his constitutional claims or th at jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.’” P ippin

v. Dretke , 434 F.3d 782, 787 (5th Cir. 2005) (citing Miller-El v. Cockrell , 537 U.S. 322, 32 7 (2003)) , cert. denied , 127 S. Ct. 351 (2006). In making this determination, “we must be mindful of the deferential standard of review the district court applie[s].” Miniel v. Cockrell , 339 F.3d 331, 336 (5th Cir. 2003). Pursuant to 28 U.S.C. § 2254(d), the di strict court defers to a state court's adjudication of a peti

tioner's claims on the merit s unless the state court's decision was: (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determ

ined by the Supreme Court of the Unit ed States;” or (2) “resulted in a decision th at was based on an unreasonable determination of the facts1 It should be noted th at Brewer is not now claiming th at his counsel was not notified or th at

he was given inadequate warnings prior to examination. His claim, in this sub-part, is only th at he cannot be ordered to submit to an examination until after he has presented psychiatric evidence
. 5 in light of the evidence presented in the State court proce eding.” A state court's decision is deem

ed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict wit h a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court based on materially indistinguishable facts. A state court's decision const it utes an unreasonable application of clearly established federal law if it is objectively unreasonable. Id. at 336-337 (ci

ting Williams v. Taylor , 529 U.S. 362, 408-09 (2000)). Even though “any doubt

as to whether a COA should issue in a death-penalty case must be resolved in favor of the peti tioner,” Pippin , 434 F.3d at 78 7, Brewer does not establish t hat reasonable jurists would find the district court’s denial of habeas on the two waived claims to be debatable or wrong. Brewer’s fir st claim actually consists of two sub-parts. One sub-part claims that Brewer’s Fift h Amendment right against self-incrimination was violated when the state court ordered him to submit to an examinat io n by the prosecution’s psychiatric expert before he presented any psychiatric evidence at tri al. 1 Alt hough Brewer had not yet presented any psychiatric evidence, he had explicitly indicated to the court an int ent to do. The Texas Court of Criminal Appeals upheld the trial court’s decision, relying on Lagrone v. State , 942 S.W.2d 602 (Tex. Crim. App. 1997), which states th at a tri al court may “o rder criminal defendants to submit to a state-sponsored psychiatric exam on future dangerou sness when the defense introduces, o r plans to introduce , it s own future dangerousness expert testimo ny.” Id. at 611 (em phasis in original). The district court, in denying habeas on this claim, fo und th at Lagrone was neit her contrary to nor an unreasonable application of clearly established. Although the Supreme Court has never di rectly addressed the constitutionality of the Texas rule, it has signaled that an intent to present6

psychiatric evidence is mat erial to determ ining the peti

tioner’s Fift h Amendment rights. S ee Estelle

v. Smith , 451 U.S. 454, 465-66 (1981) (“When a defend ant asserts the insanit y defense and int roduces supporting psychiatric testimo ny, his silence may deprive the State of the only effective

means it has of controverting his proof on an issue th at he int erjected int o the case. . . . Respondent, however, int roduced no psychiatric eviden ce, nor had he indicated that he might do so.”). In this case, Brewer did indicate th at he might int roduce psychiatric evidence. The Texas courts have stated th at the purpose behind ordering the defendant to submit to the prosecutor’s psychiatric examinat io n i s to protect the effectiveness of that examination as rebuttal. L agrone , 942 S.W.2d at 611 (“Prohi b it ing the tri al court from ordering a psychiatric exam until aft er the defense has actually presented his own expert testimo ny is bound to work against the State in almo st every case.”). It can hardly be said th at jurists of reason would debate wit h the district court’s decision to deny habeas on this claim. Therefore, we would have denied COA on this sub-part of Brewer’s claim. The next sub-part of this claim is th at Brewer’s constitutional rights were vio lat ed when the state of fered it s psychiatric testimo ny before Brewer presented any of his own psychiatric testimo ny, rather th an in rebuttal
. Brewer, though, failed to object to this at trial. On direct appeal, the state appellate court r efused to address the m erits of the claim and treated it as procedurally defaulted. “Procedural default of a federal claim in state court bars federal habeas review of th at cl aim unless the peti tioner can show ‘cause’ fo r the default and ‘prejudice’ attri butable thereto or demonstrate th at failure to consider the federal claim will result in a ‘fundamental miscarriage of justice.’” Finley v. Johnson , 243 F.3d 215, 220 (5th Cir. 2001) (citing Murray v. Carrier , 477 U.S. 478, 485, 495 (1986)). Brewer did not argue in t he habeas petition, and does not argue here, that there was a fundamental miscarriage of justice. He did argue cause and prejudice. The district court rejected his2 The statutory definit io ns fo r “int entionally” and “knowingly” are set out in Tex. Penal Code

§ 6.03(a) and § 6.03(b), respectively. 7 claim fo r cause, finding th at the conduct of Brewer’s attorney did not constitute ineffect ive assistance of counsel. In his request for COA on this claim, Brewer does not challenge the district court’s determ inat io n th at he failed to demonstrate cause fo r the procedural default; he only argues th at the state should not be allo wed to present it s psychiatric evidence fir st. Because Brewer does not even argue th at he meets the cause and prejudice standard, we would have denied COA on this sub-part of Brewer’s claim as well. The second claim fo r which Brewer seeks COA is whether there was constitutionally sufficient evidence to support a finding th at Brewer had the requisite mens rea fo r both the kidnapping and the murder, the two charges used to support the capital murder charge in this case. Tex. Penal Code § 19.03(a)(2). Consistent with J ackson v. Virginia , 443 U.S . 307, 319 (1979), the di strict court reviewed the evidence in the light mo st favorable to the verdict and determ ined th at a rational juror could have determ

ined that the evidence establishes the essential elements of both kidnapping and murder. The kidnapping statute states, “A person com mit s an of fense if he int entionally or knowingly abducts another person.” Tex. Penal Code § 20.03(a). 2 “Abduction means to restrain a person with int ent to prevent his liberation by (a) secreting or holding him in a place he is not likely to be fo und;

or (b) using or th

reatening to use deadly fo rce.” R ayford v. State , 125 S.W.3d 521, 526 (Tex. Crim. App. 2003) (citing Tex. Penal Code § 20.01(2)). “Restrain means to restrict a person's movements wit hout consent so as to int erfere substantially with the person's liberty by mo ving the person from

one place to another or by confining the person.” R ayford , 125 S.W.3d at 526 (citing Tex. Penal8

Code § 20.01(1)). It is not debatable th at a rational juror could infer from the facts of this case th at Brewer acted int entionally or knowingly when he and two others abducted the vict im, thus sati sfying the mens rea requirement fo r kidnapping. Brewer and two other defendants picked up the vict im and drove him to a remote lo cation, where they physically subdued him, chained him to the back of a pick-up truck, and dragged the vict im fo r a mile and a half. A rational juro r i s entitled to bel ieve that Brewer performed these actions wit h the knowledge or int ention th at he was preventing the vict im’s liberation th rough the use of deadly force. The murder statute states, “A person com mit s an of

fense if he int entionally or knowingly

causes the death of an individual [or] int ends to cause serious bodily injury and com mit s an act clearly dangerous to human life th at causes the death of an individual” Tex. Penal Code § 19.02(b)(1)-(2). “Inte nt can be inferred from the acts, words, and conduct of the accused.” Patrick v. State , 906 S.W.2d 481, 487 (Tex. Crim. App. 1995). Dragging the victim from behind a pick-up truck for a mile and half certainly indicates an int ent, at the very lea st, to commit an act clearly dangerous to human life. Brewer argues th at there is substantial overlap between the int ent requirements fo r kidnapping and murder and th at this “coincidence of conduct does not permit the jury to reach a rational conclusion th at [he] int ended to com mit two distinct of

fenses )) kidnaping and murder)) as opposed to simply murder or felo ny murder.” This argument is meritless. The kidnapping statute focuses on the int ent to restrain the vict im and the murder statute fo cuses on the int ent to murder or cause serious bodily injury to the vict im. It i s not debatable among rational jurists that the district court was correct to di smiss t his claim. Therefore, we would have denied COA on this claim.9

IT IS ORDERED that the petition for rehearing is denied.