United States 5th Circuit Court of Appeals Reports

BREWER v. QUARTERMAN, 05-70056 (5th Cir. 12-29-2006)
LAWRENCE RUSSELL BREWER, Petitioner — Appellant, v.
Respondent — Appellee. No. 05-70056. United States
Court of Appeals, Fifth Circuit. Filed December 29, 2006.

Appeal from the United States District Court for the
Eastern District of Texas.

Before SMITH, GARZA, and PRADO, Circuit judges.



Lawrence Russell Brewer seeks rehearing on our decision
treating as waived his request for certificate of
appealability (COA) on two issues that he did not raise in
his previous request for 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 petition on 15 issues. The
district court denied all 15. Following the denial, Brewer
filed with the district court a Rule 59 motion to correct
judgment as to eight of the 15 claims. This was also
denied. Then Brewer filed in the district court a notice of
appeal and application for COA, which stated, “Petitioner
respectfully requests this Court grant a Certificate of
Appealability upon the matters raised within Petitioner’s
previously filed Motion to Correct Judgment.” Treating this
as a request for COA only as to those eight issues raised
in the motion 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 for
COA as to two issues for which habeas had been denied but
which were not included in Brewer’s motion to correct
judgment, and therefore were not included in Brewer’s
initial request for COA. Ultimately, this court denied
Brewer’s appeal as to the issue for which Brewer was
granted a COA and denied as waived the two issues in his
request for COA filed in this court not previously filed
with the district court.

Brewer’s motion for rehearing relates only to the two
issues we treated as waived. He raises three arguments.
First Brewer argues that had the district court treated his
notice of appeal as a request for COA on all claims denied
habeas, then the two claims would now be properly before
this court. Although 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
for COA is filed. See 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 that when an appellant fails to
file an express request for a COA with 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 for COA and properly limited the
request for COA to those eight claims raised in the motion
to correct judgment.

Next Brewer contends that he should be allowed to file a
request for COA in the circuit court on issues not
previously denied COA in the district court. For this
reason, Brewer argues, the two claims were properly before
this court. The framework created by the statute, 28 U.S.C.
— 2253(c)(1), and the procedural rule, Fed.R.App.P.
22(b), is not crystal clear on this point, but our caselaw
is: “‘A district court must deny the COA before a
petitioner can request one from this court.'” Whitehead 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
district 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

Brewer’s third argument is that even if all requests for
COA must go through the district court before reaching the
circuit court, a request for COA filed with the 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 attempting 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
for COA with the district court, and then, six months after
the district court’s decision, filed a different request for
COA in this court. By filing multiple COA applications
raising different claims in different courts, Brewer has
attempted to extend and complicate the process for habeas
appeals. The legislative intent behind the creation of the
COA procedure, as a threshold requirement to appealing a
denial of habeas, was to have the opposite effect. See
Barefoot v. Estelle, 463 U.S. 880, 892 (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 frivolous
appeals from delaying the States’ abilit y to impo se
sentences, including death sentences.”). Requiring that all
claims be raised at once is no more burdensome for a
petitioner requesting COA than 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. See also Foster
v. Quarterman, 466 F.3d 359, 366 (5th Cir. 2006) (“[I]n a
situation such as this, where [the petitioner] appealed the
denial of relief on various claims and requested a COA for
that, he generally would have waived any claim not
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 for
granting a COA, the petitioner “must demonstrate that
‘jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists
could conclude the issues presented are adequate to deserve
encouragement to proceed further.'” Pippin v. Dretke, 434
F.3d 782, 787 (5th Cir. 2005) (citing Miller-El v.
Cockrell, 537 U.S. 322, 327 (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 district
court defers to a state court’s adjudication of a
petitioner’s claims on the merits unless the state court’s
decision was: (1) “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.” A
state court’s decision is deemed contrary to clearly
established federal law if it reaches a legal conclusion
in direct conflict with 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 constitutes an
unreasonable application of clearly established federal
law if it is objectively unreasonable.

Id. at 336-337 (citing 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 petitioner,” Pippin, 434 F.3d at 787, Brewer
does not establish that reasonable jurists would find the
district court’s denial of habeas on the two waived claims
to be debatable or wrong.

Brewer’s first claim actually consists of two sub-parts.
One sub-part claims that Brewer’s Fifth Amendment right
against self-incrimination was violated when the state
court ordered him to submit to an examination by the
prosecution’s psychiatric expert before he presented any
psychiatric evidence at trial.[fn1] Although Brewer had not
yet presented any psychiatric evidence, he had explicitly
indicated to the court an intent 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 that a trial court may “order criminal
defendants to submit to a state-sponsored psychiatric exam
on future dangerousness when the defense introduces, or
plans to introduce, its own future dangerousness expert
testimony.” Id. at 611 (emphasis in original).

The district court, in denying habeas on this claim, found
that Lagrone was neither contrary to nor an unreasonable
application of clearly established. Although the Supreme
Court has never directly addressed the constitutionality of
the Texas rule, it has signaled that an intent to present
psychiatric evidence is material to determining the
petitioner’s Fifth Amendment rights. See Estelle v. Smith,
451 U.S. 454, 465-66 (1981) (“When a defendant asserts the
insanity defense and introduces supporting psychiatric
testimony, his silence may deprive the State of the only
effective means it has of controverting his proof on an
issue that he interjected into the case. . . . Respondent,
however, introduced no psychiatric evidence, nor had he
indicated that he might do so.”). In this case, Brewer did
indicate that he might introduce psychiatric evidence. The
Texas courts have stated that the purpose behind ordering
the defendant to submit to the prosecutor’s psychiatric
examination is to protect the effectiveness of that
examination as rebuttal. Lagrone, 942 S.W.2d at 611
(“Prohibiting the trial court from ordering a psychiatric
exam until after the defense has actually presented his own
expert testimo ny is bound to work against the State in
almost every case.”). It can hardly be said that jurists of
reason would debate with 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 that Brewer’s
constitutional rights were violated when the state offered
its psychiatric testimony before Brewer presented any of
his own psychiatric testimony, rather than in rebuttal.
Brewer, though, failed to object to this at trial. On
direct appeal, the state appellate court refused to address
the merits of the claim and treated it as procedurally
defaulted. “Procedural default of a federal claim in state
court bars federal habeas review of that claim unless the
petitioner can show ’cause’ for the default and ‘prejudice’
attributable thereto or demonstrate that 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 the 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 his claim for cause, finding
that the conduct of Brewer’s attorney did not constitute
ineffective assistance of counsel. In his request for COA
on this claim, Brewer does not challenge the district
court’s determination that he failed to demonstrate cause
for the procedural default; he only argues that the state
should not be allowed to present its psychiatric evidence
first. Because Brewer does not even argue that 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 for which Brewer seeks COA is whether
there was constitutionally sufficient evidence to support a
finding that Brewer had the requisite mens rea for 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 Jackson v. Virginia,
443 U.S. 307, 319 (1979), the district court reviewed the
evidence in the light most favorable to the verdict and
determined that a rational juror could have determined that
the evidence establishes the essential elements of both
kidnapping and murder.

The kidnapping statute states, “A person commits an offense
if he intentionally or knowingly abducts another person.”
Tex. Penal Code § 20.03(a).[fn2] “Abduction means to
restrain a person with intent to prevent his liberation by
(a) secreting or holding him in a place he is not likely to
be found; or (b) using or threatening to use deadly force.”
Rayford 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 without consent so as to
interfere substantially with the person’s liberty by moving
the person from one place to another or by confining the
person.” Rayford, 125 S.W.3d at 526 (citing Tex. Penal Code
§ 20.01(1)).

It is not debatable that a rational juror could infer from
the facts of this case that Brewer acted intentionally or
knowingly when he and two others abducted the victim, thus
satisfying the mens rea requirement for kidnapping. Brewer
and two other defendants picked up the victim and drove him
to a remote location, where they physically subdued him,
chained him to the back of a pick-up truck, and dragged the
victim for a mile and a half. A rational juror is entitled
to believe that Brewer performed these actions with the
knowledge or intention that he was preventing the victim’s
liberation through the use of deadly force.

The murder statute states, “A person commits an offense if
he intentionally or knowingly causes the death of an
individual [or] intends to cause serious bodily injury and
commits an act clearly dangerous to human life that causes
the death of an individual” Tex. Penal Code §
19.02(b)(1)-(2). “Intent 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 intent, at the very least, to commit an act
clearly dangerous to human life.

Brewer argues that there is substantial overlap between the
intent requirements for kidnapping and murder and that this
“coincidence of conduct does not permit the jury to reach a
rational conclusion that [he] intended to commit two
distinct offenses — kidnaping and murder — as
opposed to simply murder or felony murder.” This argument
is meritless. The kidnapping statute focuses on the intent
to restrain the victim and the murder statute focuses on
the intent to murder or cause serious bodily injury to the
victim. It is not debatable among rational jurists that the
district court was correct to dismiss this claim.
Therefore, we would have denied COA on this claim.

IT IS ORDERED that the petition for rehearing is denied.

[fn1] It should be noted that Brewer is not now claiming
that his counsel was not notified or that he was given
inadequate warnings prior to examination. His claim, in
this sub-part, is only that he cannot be ordered to submit
to an examination until after he has presented psychiatric

[fn2] The statutory definitions for “intentionally” and
“knowingly” are set out in Tex. Penal Code § 6.03(a)
and § 6.03(b), respectively.