Brewer v. Dretke

Citations: 442 F.3d 273; 2006 U.S. App. LEXIS 5314; 2006 WL 477142Docket: No. 04-70034

Court: Court of Appeals for the Fifth Circuit; February 28, 2006; Federal Appellate Court

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The petition for panel rehearing is denied, and the previous opinion in Brewer v. Dretke is withdrawn, with a new opinion issued. The district court had conditionally granted Brent Brewer's habeas corpus petition under 28 U.S.C. § 2254, citing that the jury's special issues during sentencing inadequately considered mitigating evidence. The state appealed, arguing that the district court improperly evaluated the state court's adjudication and misapplied relevant legal precedents. The appellate court reversed the district court's decision, denying Brewer's habeas petition.

Brewer was sentenced to death for murder during a robbery, presenting various mitigating factors at trial, including his mental health struggles, manipulation by his co-defendant, and a history of familial abuse. He chose not to present expert psychological evidence based on his attorney's advice. The trial court rejected his proposed jury instructions related to mitigating evidence, only allowing questions on deliberateness and future dangerousness. Following unsuccessful state habeas proceedings, Brewer sought federal relief, which the district court initially granted.

The opinion outlines the standards for granting habeas corpus under the Antiterrorism and Effective Death Penalty Act (AEDPA), specifying that relief is only warranted if the state court's decision was contrary to or involved an unreasonable application of clearly established federal law, or if it was based on an unreasonable factual determination. The appellate court emphasized the need for deference to state court findings unless they reflect an unreasonable interpretation of the evidence.

The federal district court’s findings of fact are reviewed for clear error, while conclusions of law are reviewed de novo, as established in Martinez v. Johnson. The critical legal conclusion is that a jury would likely view the evidence as solely aggravating, indicating that the failure to present mitigation evidence was an unreasonable application of federal law and Supreme Court precedent. Under Section 2254(d)(1), the review focuses on whether the state court’s decision contradicts or misapplies established Supreme Court law. The trial court instructed the jury on two special issues regarding the defendant, Brent Ray Brewer, relating to his conduct causing death and the probability of future violent acts.

Significant jurisprudence surrounding Texas Code of Criminal Procedure article 37.071 is examined. In Jurek v. Texas, the Supreme Court upheld the special issues approach for capital trials, emphasizing that it must allow for the inclusion of mitigation evidence. Franklin v. Lynaugh clarified that some mitigation evidence could be considered under the existing framework, while Penry v. Lynaugh (Penry I) determined that the special issues did not adequately address evidence of mental retardation and abuse history, as these factors could mitigate blameworthiness despite indicating future dangerousness. Johnson v. Texas reaffirmed that the future dangerousness issue could constitutionally encompass considerations of youth, thereby supporting the notion that while some evidence may lack sufficient mitigating effect, other evidence can still be effectively addressed within the special issues framework.

The imposition of the death penalty under the pre-Penry I scheme does not violate the Eighth Amendment when the mitigating evidence does not require special instructions. A two-part test determines the need for such instructions: (1) the evidence must be constitutionally relevant as it relates to severe, permanent handicaps not caused by the defendant, and (2) it must be beyond the effective reach of jurors. The Supreme Court in Tennard rejected the previous definition of constitutional relevance, stating it should align with general relevance, meaning evidence must make a consequential fact more or less probable.

For mitigating evidence to be effectively considered by the jury, special interrogatories must allow for constitutionally sufficient mitigating effects. The court has debated whether this sufficiency implies "full" or "some" effect; however, both terms ultimately require constitutional sufficiency. The district court's assessment of how this standard applied in the case at hand is critical.

In evaluating the jury's ability to consider mitigating evidence, the habeas court assesses whether there was any reasonable likelihood the jury felt prevented from considering relevant mitigating factors. A de novo review revealed that the district court failed to apply this standard correctly. Brewer presented various mitigating evidence, including his depression, brief hospitalization, manipulation by a co-defendant, and a history of abuse and drug use. However, the district court primarily focused on mental illness and drug abuse for potential habeas relief. 

The distinction between mental retardation and mental illness does not alter the standard interrogatory process. Past cases have shown that only chronic or immutable mental illnesses warrant Penry I violations. The court referenced Graham, noting that extending Penry to encompass transient issues would undermine established precedents. The circumstances of youth and family background in Graham's case were not seen as fundamentally different from those in Jurek, which allows for constitutional consideration of youth.

Evidence of a troubled childhood may influence the special dangerousness instruction, as elucidated in Cole, where expert testimony suggested that despite a turbulent upbringing and diminished impulse control, the defendant, Cole, was capable of change and not necessarily a future danger. The court referenced Coble, affirming that mitigating evidence, including mental illness, could be relevant to future dangerousness if such conditions are manageable or can remit. The decisions in Cole and Coble reinforce the idea that evidence of a destructive family background falls within Texas’s broad special issue framework. In Cole, evidence pointed to both organic neurological defects and potential for learning from mistakes, differentiating it from prior rulings like Penry, where mental retardation was deemed an aggravating factor due to the defendant's inability to understand the wrongness of his actions. Conversely, in Brewer's case, insufficient evidence was presented to indicate a permanent mental condition or cognitive limitations. The court rejected claims that substance abuse could mitigate sentencing without adjustment to related issues. Consequently, the district court's decision to grant Brewer's habeas corpus petition was deemed erroneous, leading to a reversal of that judgment. Brewer’s mental illness claim lacked strong factual support, as he was not considered mentally retarded but had a history of major depression and polysubstance abuse, substantiated by a suicide note.

On January 25, Brewer voluntarily admitted himself to Big Springs State Hospital for fourteen days. Unlike the case of Bigby v. Dretke, which involved severe chronic schizophrenia impacting the petitioner’s perception and relationships, Brewer's case lacked compelling medical evidence of mental illness affecting his volition; it was primarily supported by lay observations regarding his relationship dynamics. Evidence regarding Brewer's history of child abuse and marijuana use as a teenager did not demonstrate cognitive impairment. The state court's factual determinations are presumptively correct unless clearly rebutted, as outlined in 28 U.S.C. 2254(e)(1). The interpretation of Brewer's evidence as either aggravating or mitigating is debated; while the district court dismissed seven additional habeas claims, Brewer did not cross-appeal those decisions. Youth is acknowledged as a potential mitigating factor due to the transient nature of youthful behavior, allowing jurors to consider it in assessing future dangerousness. The case references the significance of impaired intellectual functioning and troubled childhood as mitigating factors, emphasizing a constitutional distinction between severe abuse and mere troubled upbringing. Although Brewer experienced some abuse from his father, it occurred later in his childhood and did not reach the severity present in comparable cases like Penry.

Brewer and his attorney chose not to present expert psychiatric testimony, impacting the assessment of mitigating factors in his case. The legal precedent established in Penry I evaluates mental retardation and child abuse collectively as mitigating evidence. Most subsequent cases have treated mental retardation separately, raising doubts about whether Brewer's child abuse alone could serve as sufficient mitigating evidence under the Eighth Amendment without evidence of cognitive impairment. The court noted that issues beyond mental illness, substance abuse, and troubled childhood likely did not prevent consideration of mitigating evidence related to future dangerousness. Previous rulings indicate that special issues regarding future dangerousness and deliberateness can accommodate mitigating evidence, even after the Tennard decision, which only revised the methodology for assessing the relevance of such evidence. The Bigby case illustrated that when mental illness cannot be controlled or treated, it may not serve as effective mitigating evidence. Various cases presented mitigating evidence of difficult childhood circumstances, including familial alcoholism and abandonment, which were deemed capable of influencing jury decisions. Lastly, it was emphasized that Brewer's IQ of 115 suggests he possesses normal cognitive abilities, which complicates claims of diminished capacity in moral or analytical reasoning.