Brewer v. Dretke, Not Reported in F.Supp.2d, 2005 WL 2283924 (E.D. Tex. 2005) (Habeas)

MEMORANDUM OPINION

DAVIS, J.

Lawrence Russell Brewer (“Brewer”), an inmate confined to the Texas Department of Criminal Justice, Institutional Division, filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and 2254. Brewer challenged his capital murder conviction and death sentence imposed by the 219 th Judicial District Court of Brazos County, Texas in cause No. 27,037, styled The State of Texas vs. Lawrence Russell Brewer. Respondent Doug Dretke (“the Director”) filed a motion for summary judgment as to all fourteen claims in Brewer's application. The Court stayed this case to allow Brewer to return to state court to exhaust a claim. On July 29, 2005, the Director moved to lift the stay on the grounds that Brewer had not attempted to file a successive petition for post-conviction relief within a reasonable time. Brewer has not responded to this motion. Under Local Rule CV-7 of the United States Court for the Eastern District of Texas, the Court assumes that Brewer has no opposition to the motion, so the Court will grant the motion, lift the stay, and determine the Director's motion for summary judgment. For the reasons set forth below, the Court finds that the motion is well-taken and it will be granted.

I. Facts

Brewer and John King were passengers in a truck driven by Shawn Berry. At 1:30 a.m. on June 7, 1998, the men, all white, offered a ride to James Byrd, Jr, a black man. Byrd was walking home from a party. The men drove to a country road outside of Jasper, Texas. As they stood by the truck smoking, the three men attacked Byrd, tied his feet with a chain, and dragged him behind the truck, eventually decapitating him. The men left Byrd's body on the road.

King and Brewer had been involved in racist groups while they were in prison together, and King had prepared materials to start a racist organization in Jasper. Shortly after being released from prison, Brewer had accepted King's offer to visit him in Jasper. Some of King's materials were found among Brewer's possessions. The prosecution argued that King intended the killing to be a signal that his racist organization was up and running.

Brewer admitted to participating in the attack on Byrd, but testified that he did not join in the dragging and in fact tried to stop it. He also testified that Berry had cut Byrd's throat before the dragging began.

II. Procedural History

On October 30, 1998, Brewer was indicted for capital murder by the District Court of Jasper County, Texas. On June 23, 1999, venue was transferred to Brazos County. Brewer's trial commenced on August 30, 1999, and on September 20, 1999, he was found guilty of capital murder. After a punishment determination hearing, the jury found that there was a probability that Brewer would commit acts of criminal violence which would pose a continuing threat to society. The jury also found that there were no mitigating circumstances which should result in his receiving a sentence of life imprisonment, so under Texas law the trial judge was required to sentence Brewer to death, which he did on September 23, 1999. Brewer's conviction and sentence were affirmed on direct appeal, Brewer v. State, No. 73,641 (Tex.Crim.App. Apr. 3, 2002), and while his appeal was pending, Brewer filed a petition for post-conviction relief in state court, which was denied. Ex parte Brewer, No. 53,057-01 (Tex.Crim.App. Sept. 11, 2002.) On September 10, 2003, Brewer filed an application for a writ of habeas corpus with this Court.

III. Claims

Brewer raised fifteen claims in his application: 1. The state procedures which required him to file his application for post-conviction relief before the court decided his direct appeal violated his right to the due process of law. 2. His trial counsel rendered ineffective assistance by failing to properly object to the admission of a scrapbook. 3. He was denied a fair trial by the prosecution's knowingly offering perjured testimony by its pathologist. 4. His trial counsel's failure to object to the pathologist's testimony constituted ineffective assistance. 5. His trial counsel's failure to perform a thorough background investigation in order to obtain mitigating evidence for the punishment-determination phase of the trial constituted ineffective assistance. 6. His right to a fair trial was violated by the admission of unreliable expert (psychiatric) testimony. 7. His trial counsel's failure to object to the psychiatrist's testimony on the grounds of reliability constituted ineffective assistance. 8. His rights to a fair trial and to freedom of association were violated by the admission of evidence of his racist beliefs. 9. His trial counsel's failure to object to evidence of his racist beliefs constituted ineffective assistance. 10. His right to be free from self-incrimination was violated by the trial court's ordering him to submit to a psychiatric evaluation by the prosecution's psychiatrist, and by the psychiatrist's not warning him of his right to remain silent, and by the trial court's admitting the psychiatrist's testimony during the state's case in chief at the punishment-determination phase of his trial. 11. His trial counsel's failure to object to the admission of the psychiatrist's testimony on the grounds of his right to remain silent constituted ineffective assistance. 12. The Texas death penalty statute is unconstitutionally vague and over-broad. 13. The evidence admitted in the guilt-determination phase of his trial was factually and legally insufficient to support his conviction. 14. The evidence admitted in the punishment-determination phase of his trial was factually and legally insufficient to support the jury's finding of future dangerousness. 15. His appellate counsel's failure to raise grounds 11, 12 and 13 on direct appeal constituted ineffective assistance.

IV. Standard of review

28 U.S.C. § 2254(d) provides that relief in habeas corpus may not be granted with respect to any claim which was adjudicated on the merits in State court proceedings unless the adjudication of the claim resulted in a decision that was either (1) contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, or (2) based upon an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. Pure questions of law and mixed questions of law and fact are reviewed under § 2254(d)(1), while pure questions of fact are reviewed under § 2254(d)(2). Moore v. Johnson, 225 F.3d 495, 501 (5th Cir.2000), cert. denied, 532 U.S. 949, 121 S.Ct. 1420, 149 L.Ed.2d 360 (2001).

28 U.S.C. § 2254(b) generally prohibits granting relief on claims not previously presented to the state courts. If an application contains any such claims, it will usually be dismissed without prejudice so that the applicant can return to state court and present them to the state court in a successive petition. Rose v. Lundy, 455 U.S. 509, 520-22, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). If the federal court is convinced that the state court would refuse to hear a successive petition on procedural grounds, however, the federal court can treat the unexhausted claims as if they were already procedurally defaulted. See Finley v. Johnson, 243 F.3d 215, 220 (5th Cir.2001). The Court will not review procedurally defaulted claims unless the applicant can establish either that he had good cause for failing to present his claims, and he would be prejudiced by not being given an opportunity to do so in the federal court, or that the Court's failing to address the claims would result in a fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 749-750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Finley v. Johnson, 243 F.3d 215, 220 (5th Cir.2001). If it is not entirely clear that the state court would refuse to hear a successive petition containing the new claims, the federal court should dismiss the federal habeas corpus application without prejudice to allow the state court to consider the claims. See e.g. Wilder v. Cockrell, 274 F.3d 255, 262-63 (5th Cir.2001).

V. Analysis

Brewer's first claim is that the state procedures which required him to file his application for post-conviction relief before the state appellate court decided his direct appeal violated his right to the due process of law. The Court finds that this claim does not state a ground for relief in habeas corpus. See Rudd v. Johnson, 256 F.3d 317, 319-20 (5th Cir.), cert. denied, 534 U.S. 1001, 122 S.Ct. 477, 151 L.Ed.2d 391 (2001). The Court earlier determined, however, that to the extent that Brewer was prohibited from fairly presenting the ineffective assistance of counsel claim to the state courts due to these procedures, he should be allowed an opportunity to do so. On February 2, 2005, it stayed these proceedings and directed him to file a successive petition with the state court.

Because Brewer did not comply with this Court's order, the Director moved on July 29, 2005 to lift the stay. Brewer did not responded to this motion, so the Court assumes he does not oppose it. See Local Rule CV-7 (d). The Court therefore grants the motion to lift the stay. Since Brewer did not exhaust the ineffective assistance part of his first claim and did not raise it as a separate claim in federal court, the Court will not consider it now. The Court will grant the Director's motion for summary judgment as to Brewer's first claim.

Brewer's second claim is that his trial counsel rendered ineffective assistance of counsel by failing to preserve for appeal the allegedly improper admission at trial of exhibit # 41, a red Lamar folder which belonged to John King, into evidence. This claim was decided on the merits by the state court, so the issue for the Court is whether the adjudication of the claim was contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.FN1 See 28 U.S.C. § 2254(d)(1).

FN1. The trial court initially determined that this claim should have been raised on direct appeal. See Findings of Fact Nos. 50 and 51. This is contrary to Texas law which states that ineffective assistance of counsel claims should be brought in post-conviction proceedings. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App.2002). Because the trial court determined the merits of the claim in the alternative, however, the Court will disregard the erroneous procedural default ruling and review the state court's ruling on the merits.

To obtain relief on a claim of ineffective assistance of counsel, a petitioner must establish both that (1) counsel's performance was deficient, and (2) had counsel performed adequately, there is a reasonable probability that the result in his case would have been different. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In the present case, Brewer's claim is that had counsel properly objected to the admission of the notebook on the grounds that it had not been authenticated as to Brewer, there is a reasonable probability that his conviction and/or death sentence would have been reversed on appeal.

Regarding the first element of the Strickland test, the State court found that “[Brewer} has failed to allege or prove facts which, if true, would establish by a preponderance of the evidence that counsel acted outside the range of effective representation in refraining from objecting to exhibit 41.” This finding is both contradicted by the record and unreasonable. It is contradicted by the record because defense counsel did in fact object to exhibit # 41. He did not, however, state the grounds of his objection, so the objection was not properly preserved for appeal. See Trial Transcript Vol. 22, pp. 206-07. The finding is unreasonable because, while counsel may have tactical considerations for failing to object, this Court can imagine no tactical reasons for objecting improperly. Brewer has therefore established that his trial counsel's failure to properly preserve the issue of the allegedly improper admission of exhibit 41 was deficient performance.

The second issue is whether, had Brewer properly preserved the issue for appeal, there is a reasonable probability that the Texas Court of Criminal Appeals would have reversed either his conviction or his death sentence. The Court finds that there is not. Tex.R.Evid. 901(a) provides that “the requirement of authentication as a condition to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” In the present case, a deputy sheriff testified about searching co-perpetrator John King's apartment, where Brewer was staying at the time of the killing. The deputy affirmed that a red Lamar notebook was found in the closet, and that exhibit 41 was the actual Lamar folder. See Trial Transcript Vol. 22, pp. 202-203.

The Court finds that based upon this testimony, there is not a reasonable probability that the Texas Court of Criminal Appeals would have found that exhibit 41 had been improperly authenticated, since evidence supported what the proponent claimed, that it was a folder found in the closet of John King's apartment. Further, assuming arguendo that the Lamar folder belonged to King, because the prosecution theorized that King and Brewer acted together out of shared racial hatred, evidence of King's own animosity, and the similarity between the racist materials in the folder and Brewer's own papers, would have been relevant regardless of whether the folder was “authenticated as to Brewer.” Because the Court finds that there is not a reasonable probability that the result in his case would have been different had Brewer's counsel preserved an authentication objection for appeal, it will grant the Director's motion for summary judgment as to Brewer's second claim.

Brewer's third claim is that he was denied a fair trial by the prosecution's knowingly offering perjured testimony by its pathologist. This claim was not presented to the state courts, so it is unexhausted. Because the Court finds that the state court would not consider this claim were it presented in a successive petition, it will treat the claim as if it were procedurally defaulted. See Finley v. Johnson, 243 F.3d 215, 220 (5th Cir.2001). A federal court will not consider the merits of a claim which has been procedurally defaulted in state court unless the applicant can establish either that he had good cause for failing to present his claims, and he would be prejudiced from not being given an opportunity to do so in the federal court, or that the Court's failing to address the claims would result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 749-750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Brewer contends that treating this claim as if it were procedurally barred would result in a fundamental miscarriage of justice because he is actually innocent of the offense. To establish actual innocence in this context, Brewer must establish that no reasonable juror would have convicted him in light of the new evidence presented in his application. See Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).

Brewer's argument is as follows. His capital murder conviction was based upon Byrd's being killed in the course of being kidnaped. Byrd voluntarily entered the truck, however, so he was not kidnaped until his freedom to leave was restrained. Byrd was therefore free to leave until he was chained to the back of the truck. Brewer contends that Byrd was killed by Shawn Berry in the course of fighting, and was not chained to the back of the truck until after he was dead. Accordingly, he was never kidnaped, so Brewer cannot be guilty of capital murder.

Brewer was convicted because the State relied on the testimony of Dr. Tommy Brown, a pathologist, who testified that pre-mortem wounds appear red in color and post-mortem wounds appear yellow in color because bleeding stops when a person dies. Because many of Byrd's dragging wounds were red, Brown testified that Byrd was alive while being dragged.

The new evidence Brewer offers in his application is the testimony of Dr. Lloyd White, a pathologist who testified in the trial of co-perpetrator Shawn Berry. Dr. White agreed with Dr. Brown's conclusion that Byrd was alive while he was being dragged, although he disagreed with Dr. Brown's further conclusion that Byrd was conscious for some time while being dragged. Brewer also contends, without citing any expert authority, that the absence of any blood in Byrd's body cavity during his autopsy establishes that all of his blood must have been forced out of his body through the centrifugal force of being dragged at high speed. He contends that the forced evacuation of Byrd's blood could have occurred post-mortem, and could have therefore made Byrd's dragging wounds, which Brewer contends were post-mortem, appear red (pre-mortem).

While Brewer's explanation for Byrd's red wounds appears plausible, because it is not supported by any expert authority, the Court is not persuaded that no reasonable juror would have convicted him in light of the new evidence presented in his application, the standard under Schlup v. Delo. Because Brewer has not established that he is actually innocent, refusing to consider the merits of his procedurally defaulted due process claim will not constitute a fundamental miscarriage of justice. The Court will grant the Director's motion for summary judgment as to Brewer's third claim. FN2. Although the Court found it unnecessary to address the merits of Brewer's third claim, it notes that that analysis would be almost identical to the fundamental miscarriage of justice analysis. Brewer contended that, in light of his argument, Dr. Brown's testimony was “clearly incorrect on it's (sic) face.” Because of its obvious falsity, the prosecution would have had to also know that it was false, and thus knowingly offered perjured testimony.

The Court disagrees. While Brewer's alternative explanation for Byrd's red wounds appears plausible, if Brown's explanation were truly clearly incorrect on its face, other experts would have refuted it. Dr. White, however, did not, and the Court authorized Brewer to employ an expert of his choosing for these proceedings, yet Brewer has not offered any contrary expert opinion. Because Brewer could not have established that Dr Brown's conclusion that Byrd was alive while he was being dragged was clearly incorrect on it's face, the Court would have found that the prosecution could not have knowingly used perjured testimony.

Brewer's fourth claim is that his trial counsel's failure to object to Dr. Brown's testimony constituted ineffective assistance. Like his previous claim, this claim was not presented to the state courts, so it is unexhausted. Because the Court finds that the state courts would not consider this claim were it presented in a successive petition, it will treat the claim as if it were procedurally defaulted. See Finley v. Johnson, 243 F.3d 215, 220 (5th Cir.2001). A federal court will not consider the merits of a claim which has been procedurally defaulted in state court unless the applicant can establish either that he had good cause for failing to present his claims, and he would be prejudiced from not being given an opportunity to do so in the federal court, or that the Court's failing to address the claims would result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 749-750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Again, as with his third claim, Brewer contends that treating this claim as if it were procedurally barred would result in a fundamental miscarriage of justice because he is actually innocent of the offense. Because the Court has already found that Brewer cannot meet the requirements of Schlup v. Delo, it finds that refusing to consider the merits of his ineffective assistance of counsel claim will not constitute a fundamental miscarriage of justice. The Court will grant the Director's motion for summary judgment as to Brewer's fourth claim.

Brewer's fifth claim is that his trial counsel rendered ineffective assistance by failing to perform a thorough background investigation in order to obtain mitigating evidence for the punishment-determination phase of his trial. As was the case with his previous two claims, this claim was not presented to the state courts, so it is unexhausted. Because the state courts would not consider this claim were it presented in a successive petition, this Court will treat the claim as if it were procedurally defaulted. See Finley v. Johnson, 243 F.3d 215, 220 (5th Cir.2001). A federal court will not consider the merits of a claim which has been procedurally defaulted in state court unless the applicant can establish either that he had good cause for failing to present his claims, and he would be prejudiced from not being given an opportunity to do so in the federal court, or that the Court's failing to address the claims would result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 749-750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

Brewer offers two reasons for failing to present this claim. First, he contends that the legal basis of his claim was unavailable, because Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), the case upon which he bases his claim, was not decided until after he filed his state application for post-conviction relief. Brewer argues that, prior to Wiggins, Fifth Circuit precedent appeared to suggest that the Constitution requires a less thorough investigation than that which his trial counsel performed, so the argument that his trial counsel should have done more was not available until that precedent was established.

In Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984), the Supreme Court of the United States held that a petitioner's reasonable lack of knowledge of the existence of a constitutional claim could constitute cause excusing his failure to present the claim to a state court. The Court affirmed its earlier holding in Engle that a petitioner could not excuse a failure to raise a claim in state court on the basis that, at the time the petitioner was in state court, raising the claim would have been futile. It also reaffirmed its statement in that case that a petitioner's lack of knowledge of a futile claim could not, as a matter of logic, be reasonable, because the published decisions denying the claim would give counsel notice of the claim. See Ross, 468 U.S. at 19-20; Engle, 456 U.S. at 133 n. 41.

These two cases establish that it is the novelty of an unknown claim, not the futility of a known claim, that constitutes good cause to excuse petitioner's failure to present it to the state courts. In the present case, Brewer contends that his claim was unavailable because it was futile, based upon Fifth Circuit precedent.FN3 The Court cannot excuse Brewer's procedurally defaulting this claim on that basis.

FN3. While Engle was based upon futility in light of state, rather than federal precedent, the Court considers this distinction insignificant.

Second, Brewer contends that the factual basis of his claim was unavailable because his post-conviction counsel was denied access to his trial counsel's records. Brewer's conclusion is not, however, supported by the evidence. He has not provided affidavits from either his trial counsel or his post-conviction counsel which could support his implied allegation that his post-conviction counsel requested the file and was refused. Rather, it appears from the facts cited in Brewer's reply that post-conviction counsel did not request the file. The Court therefore finds that, whatever the reason was for Brewer's not presenting this claim to the state courts, it was not because his trial counsel refused to show his files to Brewer's post-conviction counsel. The Court cannot excuse Brewer's procedurally defaulting this claim on that basis.

Because neither of the circumstances alleged constitute good cause to excuse procedural default, the Court will grant the Director's motion for summary judgment as to Brewer's fifth claim. Brewer's sixth claim is that his right to a fair trial was violated by the admission of unreliable expert (psychiatric) testimony. Dr. Edward Gripon testified during the punishment-determination phase of Brewer's trial that in his professional opinion Brewer has a substantial propensity for committing acts of criminal violence in the future. Brewer claims that because psychiatric predictions of future violence are not scientifically reliable, this testimony was inadmissible and its admission denied him a fair trial.

As was the case with his previous three claims, this claim was not presented to the state courts, so it is unexhausted. Because the state courts would not consider this claim were it presented in a successive petition, this Court will treat the claim as if it were procedurally defaulted. See Finley v. Johnson, 243 F.3d 215, 220 (5th Cir.2001). A federal court will not consider the merits of a claim which has been procedurally defaulted in state court unless the applicant can establish either that he had good cause for failing to present his claims, and he would be prejudiced from not being given an opportunity to do so in the federal court, or that the Court's failing to address the claims would result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 749-750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

Brewer contends that failing to address the merits of this claim would result in a fundamental miscarriage of justice, because he was actually innocent of the death penalty. To establish this exception to the procedural default bar, Brewer must show by clear and convincing evidence that, but for constitutional error, no reasonable juror would have found that there was a probability that he would commit future acts of criminal violence which would constitute a continuing threat to society. See Sawyer v. Whitley, 505 U.S. 333, 336, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992).

Even without Dr. Gripon's testimony, the jury would still have been aware of Brewer's leadership position and committed membership in an Aryan supremacist organization which endorsed violence against African-Americans, his participation in the particularly brutal, race-inspired murder of the victim in this case, and his lack of remorse. Brewer has not shown by clear and convincing evidence, based upon this evidence alone, that a reasonable juror could not have found beyond a reasonable doubt that there was a probability that Brewer would have committed future acts of criminal violence which would constitute a continuing threat to society. The Court finds that failing to address the merits of this claim would not result in a miscarriage of justice. Accordingly, it grants the Director's motion for summary judgment as to Brewer's sixth claim.

Brewer's seventh claim is that his trial counsel rendered ineffective assistance by failing to object to the psychiatrist's testimony on the grounds of reliability. As was the case with his previous four claims, this claim was not presented to the state courts, so it is unexhausted. Because the state courts would not consider this claim were it presented in a successive petition, this Court will treat the claim as if it were procedurally defaulted. See Finley v. Johnson, 243 F.3d 215, 220 (5th Cir.2001). A federal court will not consider the merits of a claim which has been procedurally defaulted in state court unless the applicant can establish either that he had good cause for failing to present his claims, and he would be prejudiced from not being given an opportunity to do so in the federal court, or that the Court's failing to address the claims would result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 749-750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

Brewer contends that he had good cause for failing to raise this issue on appeal, because his state appellate lawyer was also his trial counsel. Brewer points out that a lawyer considering whether to raise his own ineffectiveness as a claim has a conflict of interest. Brewer is correct, but his argument does not explain why he did not raise this claim in his State post-conviction proceedings.FN4 Indeed, the Texas courts have repeatedly stated that ineffectiveness claims should be raised in post-conviction, rather than appellate proceedings. See, e.g., Ex parte White, 160 S.W.3d 46, 2004 WL 2179272 (Tex.Crim.App.2004). The Court finds that Brewer has failed to establish cause for failing to present this claim to the state courts. Accordingly, it will grant the Director's motion for summary judgment as to Brewer's seventh claim.

FN4. Brewer contends that he did raise this claim in his state application for post-conviction relief. See Brewer's reply to answer and motion for summary judgment at 37. In fact, however, in his application for post-conviction relief Brewer claimed only that his counsel should have objected to the trial court's allowing the psychiatrist to testify during the guilt-determination phase of the trial. See St. Writ Tr. at 43-44.

Brewer's eighth claim is that his rights to a fair trial and to freedom of association were violated by the admission of evidence of his racist beliefs. As was the case with his previous five claims, this claim was not presented to the state courts, so it is unexhausted. Because the State court would not consider this claim were it presented in a successive petition, this Court will treat the claim as if it were procedurally defaulted. See Finley v. Johnson, 243 F.3d 215, 220 (5th Cir.2001). A federal court will not consider the merits of a claim which has been procedurally defaulted in state court unless the applicant can establish either that he had good cause for failing to present his claims, and he would be prejudiced from not being given an opportunity to do so in the federal court, or that the Court's failing to address the claims would result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 749-750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

Brewer contends that he had good cause for failing to raise this issue on appeal, because his state appellate lawyer was also his trial counsel. But Brewer does not explain why he did not raise this claim in his State post-conviction proceedings. The Court finds that Brewer has failed to establish cause for failing to present this claim to the state courts. Accordingly, it will grant the Director's motion for summary judgment as to Brewer's eighth claim.

Brewer's ninth claim is that his trial counsel's failure to object to the admission of evidence of his racist beliefs constituted ineffective assistance. As was the case with his previous six claims, this claim was not presented to the state courts, so it is unexhausted. Because the state courts would not consider this claim were it presented in a successive petition, this Court will treat the claim as if it were procedurally defaulted. See Finley v. Johnson, 243 F.3d 215, 220 (5th Cir.2001). A federal court will not consider the merits of a claim which has been procedurally defaulted in state court unless the applicant can establish either that he had good cause for failing to present his claims, and he would be prejudiced from not being given an opportunity to do so in the federal court, or that the Court's failing to address the claims would result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 749-750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

Brewer contends that he had good cause for failing to raise this issue on appeal, because his state appellate lawyer was also his trial counsel. Brewer points out that a lawyer considering whether to raise his own ineffectiveness at trial as a claim on appeal has an innate conflict of interest. Brewer is correct, but his argument does not explain why he did not raise this claim in his state post-conviction proceedings. As pointed out previously, the Texas courts have repeatedly stated that ineffectiveness claims should be raised in post-conviction, rather than appellate proceedings. See, e.g., Ex parte White, 160 S.W.3d 46, 49 2004 WL 2179272 (Tex.Crim.App.2004). The Court finds that Brewer has failed to establish cause for failing to present this claim to the state courts. Accordingly, it will grant the Director's motion for summary judgment as to Brewer's ninth claim.

Brewer's tenth claim is that his right to be free from self-incrimination was violated on three occasions: by the trial court's ordering him to submit to an examination by the prosecution's psychiatrist, by the psychiatrist's not warning him of his right to remain silent, and by the trial court's admitting the psychiatrist's testimony during the prosecution's case-in-chief in the punishment-determination phase of his trial. Unlike the previous seven claims, this claim was presented to the state court. The state court denied the first sub-claim on the merits. It stated that the second claim was procedurally barred because it was not raised on appeal, but, in the alternative, it denied this claim on the merits as well.FN5 Finally, it refused to reach the merits of the third sub-claim on the grounds that the error had not been properly preserved for review. FN5. The Court will refrain from addressing the procedural ruling on this claim.

In his first sub-claim, Brewer contended that the trial court violated his right to be free from self-incrimination when it ordered him to disclose whether he intended to offer psychiatric testimony on the issue of his future dangerousness, and, if he did intend to do so, to submit to an examination by the prosecution's psychiatrist. The Texas Court of Criminal Appeals held that the prosecution was entitled to pre-trial notice of whether Brewer intended to introduce psychiatric testimony on the issue of whether there was a probability that he would be a future danger to society, and, once Brewer indicated that he did intend to introduce such testimony, the prosecution was entitled to have its own psychiatrist examine Brewer. The state court relied on its opinion in LaGrone v. State, 942 S.W.2d 602 (Tex.Crim.App.) ( en banc ), cert. denied, 522 U.S. 917, 118 S.Ct. 305, 139 L.Ed.2d 235 (1997), which so held. Brewer contends that the rule in LaGrone is contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. The United States Court of Appeals for the Fifth Circuit, however, held that it is not. See LaGrone v. Cockrell, 2003 WL 22327519 (5th Cir.2003) cert. denied, 540 U.S. 1172, 124 S.Ct. 1198, 157 L.Ed.2d 1225 (2004). The Court finds that the Director is entitled to summary judgment on this sub-claim.

In his second sub-claim, Brewer contends that “[at] no point during the interview did Dr. Gripon warn Mr. Brewer that he was waiving his Fifth Amendment right not to incriminate himself by taking part in the interview. Dr. Gripon never warned Mr. Brewer that Dr. Gripon would use the information Mr. Brewer provided to help secure a death sentence for Mr. Brewer.” Pet. at 52. The state court rejected this claim, stating: “The court further finds that Dr. Gripon did in fact admonish applicant regarding his right to remain silent, as well as the role Dr. Gripon was undertaking for the prosecution in examining applicant and the possible use against applicant at trial during the punishment phase of any statements made by applicant.” See Finding of Fact and Conclusion of Law 26, SCHR p. 320. Under 28 U.S.C. § 2254, this finding of fact by the state court is presumed correct, and Brewer has the burden of rebutting it by clear and convincing evidence. Because Brewer has produced no evidence to do so, the Court finds that the Director is entitled to summary judgment on this sub-claim.

In his third sub-claim, Brewer contends that Dr. Gripon should not have been allowed to testify until after Brewer introduced the testimony of his own expert witness. The State court found that Brewer had not properly preserved this issue for appeal, because he had not objected at trial when Dr. Gripon was called to the witness stand. When the state court declines to address the merits of a claim based upon an adequate and independent ground, the federal court will also refuse to consider the merits of that claim unless the applicant can show either that he had good cause for failing to comply with the state procedures and he would be prejudiced by the federal court's not considering the merits of his claim, or that a miscarriage of justice would occur unless the federal court addressed the merits of his claim. Brewer contends that he had cause for failing to preserve the error, because his trial counsel rendered ineffective assistance, and he also raised the ineffectiveness claim as his eleventh claim. Brewer is correct that ineffective assistance of trial counsel constitutes cause for defaulting a claim. Accordingly, the Court will analyze Brewer's eleventh claim and then apply the resolution of the ineffective assistance issue back to this sub-claim.

To prevail on a claim of ineffective assistance of counsel, an applicant must establish both that his counsel's conduct was deficient, and that, had his counsel performed adequately, there is a reasonable probability that the result in his case would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In analyzing deficient performance, courts are required to presume that counsel's conduct was reasonable, in the absence of evidence to the contrary. In the present case, the state court found that Brewer's trial counsel's failure to object to Dr. Gripon testifying before his own expert was not deficient performance. The state court found that, had defense counsel objected, all that would have happened is that the prosecution would have been required to call Dr. Gripon in rebuttal, after the defense psychiatrist had testified, rather than before he testified. See SHCR at 327-329.FN6 Brewer presents no authority, and the Court will not presume, that having one's own psychiatric expert testify first is so obviously advantageous that it was unreasonable for Brewer's counsel not to insist that this protocol be followed. Because the Court finds that the state court's finding that Brewer's counsel's performance was not deficient was based upon a reasonable application of clearly established federal law, as determined by the Supreme Court of the United States in Strickland, it will grant the Director's motion for summary judgment as to Brewer's eleventh claim. Because the Court found that Brewer's counsel did not render ineffective assistance in failing to object to Dr. Gripon's testimony, it finds that Brewer cannot establish cause for defaulting the third sub-claim of his tenth claim, so the Director is entitled to summary judgment on that sub-claim. Finally, because the Court found that the Director is entitled to summary judgment as to all three sub-claims of Brewer's tenth claim, it will grant the director's motion for summary judgment as to that claim. FN6. The Court will refrain from addressing the state court's procedural ruling on this claim.

Brewer's twelfth claim is that the Texas death penalty statute is unconstitutionally vague and over-broad. He contends that kidnaping is defined so broadly under Texas law that some form of kidnaping occurs in nearly every murder. As a result, classifying murder committed in the course of a kidnaping as a capital crime does not significantly narrow the class of murderers eligible for capital punishment from those who are not eligible.

This claim was presented to the state court. That court found that the claim was procedurally barred for two reasons: first, no objection was raised at trial, and second, it was not presented on direct appeal. In the alternative, the state court rejected the claim on the merits. The question for the Court is whether the state court's denial of this claim is directly contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.FN7 See 28 U.S.C. § 2254(d)(1). FN7. The Court will refrain from addressing the state court's procedural rulings on this claim.

Brewer contends that the state court's denial of his claim on the merits was the result of an unreasonable application of Godfrey v. Georgia, 46 U.S. 420 (1980), in which the Supreme Court held that a capital sentencing scheme must provide a meaningful basis for distinguishing the few cases in which the death penalty is imposed from the many cases in which it is not. In Santellan v. Cockrell, 271 F.3d 190, 196 n. 5 (5th Cir.2001), cert. denied, 535 U.S. 982, 122 S.Ct. 1463, 152 L.Ed.2d 461 (2002), United States Court of Appeals for the Fifth Circuit held that Texas' classification of murder committed in the course of a kidnaping as a capital crime does significantly narrow the class of murderers eligible for capital punishment from those who are not eligible. This Court is bound by Santellan to find that the state court's denial of Brewer's twelfth claim did not result from an unreasonable application of Godfrey v. Georgia, so the Court will grant the Director's motion for summary judgment as to this claim.

Brewer's thirteenth claim is that the evidence admitted in the guilt-determination phase of his trial was factually and legally insufficient to support his conviction for capital murder, because there was insufficient evidence that he intended to kidnap the victim. The state court found that this claim was procedurally barred, but it also denied the claim on the merits. The question for the Court is whether the state court finding that the evidence was sufficient to support a finding that Brewer intended to kidnap the victim was reasonable in light of the evidence presented to that court.FN8 See 28 U.S.C. § 2254(d)(2). FN8. The Court will refrain from addressing the state court's procedural rulings on this claim.

Evidence is constitutionally sufficient if, viewed in the light most favorable to the verdict, it would allow any rational finder of fact to find the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The prosecution's theory was that the kidnaping occurred when the victim was chained by his feet to the back of the truck. Among the evidence that the jury heard was that Brewer was motivated by racial animus, that he joined in the attack on the victim and in fact injured his toe kicking the victim while he was down, and that he had stated in a letter to his wife prior to the offense that he felt as though he had been dragged 120 miles chained by his feet to the bumper of a car. From this evidence, a rational jury could have found that it was Brewer's idea to chain the victim by his feet to the back of the truck and drag him. The Court therefore finds that based upon this evidence, it was not unreasonable for the state court to find that there was constitutionally sufficient evidence that Brewer intended to kidnap Byrd. The Court will grant the Director's motion for summary judgment as to Brewer's thirteenth claim.

Brewer's fourteenth claim is that the evidence admitted in the punishment-determination phase of his trial was factually and legally insufficient to support the jury's finding of future dangerousness. The state court found that this claim was procedurally barred for two reasons, but in the alternative, denied the claim on the merits. The issue for the Court is whether the state court's finding that the evidence was constitutionally sufficient to support the jury's determination of future dangerous was reasonable in light of the evidence presented to that court.FN9 See 28 U.S.C. § 2254(d)(2). FN9. The Court will refrain from addressing the state court's procedural rulings on this claim.

In this context, evidence is constitutionally sufficient if, viewed in the light most favorable to the verdict, it would allow any rational finder of fact to find beyond a reasonable doubt that there was a probability that Brewer would commit acts of criminal violence which would constitute a continuing threat to society. See Woods v. Cockrell, 307 F.3d 353, 357 (5th Cir.2002). In the present case, the state presented the testimony of a psychiatrist that Brewer “would run a substantial risk of propensity for future violent criminal acts.” From the term “substantial risk,” a rational jury could find a “probability.” Added to Brewer's leadership of a virulently racist organization, the fact that the victim was selected for no apparent reason other than his race, the particularly cruel and brutal method of killing the victim, the probability that the method was Brewer's idea, and Brewer's lack of remorse, and the Court finds that the state court's determination that the evidence was sufficient for a rational jury to find beyond a reasonable doubt that there was a probability that Brewer would be dangerous in the future was not unreasonable. The Court will grant the Director's motion for summary judgment as to Brewer's fourteenth claim.

Brewer's fifteenth and final claim is that his appellate counsel's failure to raise his eleventh, twelfth and thirteenth claims on direct appeal constituted ineffective assistance. This claim was presented to the state court and rejected on the merits. The issue for the Court is whether the state court's adjudication of this claim was directly contrary to, or resulted in an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d)(1).

To prevail on a claim of ineffective assistance of counsel, an applicant must establish both that his counsel's conduct was deficient, and that, had his counsel performed adequately, there is a reasonable probability that the result in his case would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In the present case, the Court must determine whether, had Brewer's appellate counsel raised these three claims on direct appeal, there is a reasonable probability that one of the claims would have been successful. As discussed infra, although the state court found that these claims were procedurally barred because of counsel's failure to raise them on direct appeal, it also denied them on the merits. The Court finds that there is not a reasonable probability that, had Brewer's appellate counsel raised these claims on direct appeal, the state court would have decided the merits of the claims differently than it did when they were presented in post-conviction proceedings. Accordingly, the Court will grant the Director's motion for summary judgment as to Brewer's fifteenth claim.

VI. Conclusion

For the above reasons, the Court will grant the Director's motion for summary judgment as to all fifteen claims in Brewer's application for a writ of habeas corpus. An Order and Judgment will be entered.

Brewer v. Quarterman, 466 F.3d 344 (5th Cir. 2006) (Habeas)

Background: After his state court conviction for murder and sentence of death were affirmed on appeal, defendant petitioned for writ of habeas corpus. The United States District Court for the Eastern District of Texas, Leonard E. Davis, J., 2005 WL 2283924, denied petition, and defendant appealed.

Holding: The Court of Appeals, Emilio M. Garza, Circuit Judge, held that defendant's argument that aggravating factor of kidnapping in Texas capital murder statute was unconstitutionally vague and overbroad was procedurally barred from being raised in a federal habeas corpus proceeding. Affirmed.

EMILIO M. GARZA, Circuit Judge:

Lawrence Russell Brewer (“Brewer”) seeks a Certificate of Appealability (“COA”) to appeal the district court's denial of habeas relief under 28 U.S.C. § 2254. In addition, Brewer appeals from the district court's denial of his habeas petition, after the granting of a COA by the district court.

I

Brewer was convicted of capital murder and sentenced to death for the murder of James Byrd, Jr. Brewer's conviction and sentence were affirmed by the Texas Court of Criminal Appeals (“TCCA”). He then filed a timely application for habeas relief in the state court, which was denied. After the TCCA affirmed the state court's denial of relief, Brewer petitioned for federal habeas relief. He raised fifteen issues, all of which were denied by the district court. Brewer then filed a motion to correct the judgment, arguing that the district court had erred in denying claims three through nine and claim twelve. The district court again denied the motion. Brewer filed a notice of appeal and moved in the district court for a COA on “the matters raised within Petitioner's previously filed Motion to Correct Judgment.”

Stating specifically that it was considering only those matters raised in the Motion to Correct Judgment, the district court reiterated its denial of claims three through nine, but granted a COA as to issue twelve. Issue twelve asserts that “because of the broad definition of kidnaping under Texas law, some form of kidnaping occurs in virtually every murder, and that as a result, defining capital murder as murder committed in the course of kidnaping does not sufficiently narrow the class of murderers who should be death eligible from those who are not.”

Brewer then filed a merits brief in this court on issue twelve, as well as requesting a COA on two further issues, which correspond with issues ten and thirteen of his original habeas petition. We will first address his request for a COA, and then turn to the merits of Brewer's appeal from the district court's denial of habeas relief.

II

To receive a COA, Brewer must demonstrate a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He must show that “jurists of reason could disagree with the district court's resolution of his claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Moreno v. Dretke, 450 F.3d 158, 163 (5th Cir.2006).

Brewer requests a COA on two issues. First, Brewer argues that it is debatable amongst jurists of reason whether it is a violation of his Fifth Amendment right against self-incrimination to compel his psychiatric examination by the State prior to the defense's presentation of psychiatric evidence at trial. Second, Brewer argues that the evidence is insufficient to support his conviction for capital murder, in his case, intentional murder occurring in the course of a kidnapping. He reasons that there is a “clear overlap” in the specific intent to restrain the decedent, with the specific intent to cause the decedent's death.FN1 In light of such an overlap, the evidence is insufficient to support a finding of mens rea with respect to both the predicate kidnapping and the murder.

FN1. Byrd was killed by being chained by his ankles to the back of a vehicle and dragged down a road until his body struck a culvert, decapitating him. The prosecution argued that the act of chaining Byrd to the pickup was a predicate offense of kidnapping.

We need not consider whether jurists of reason would find the district court's resolution of these issues debatable because Brewer has waived these claims. These two issues correspond with the tenth and thirteenth issues presented in Brewer's original petition before the district court. As noted in the district court's consideration of Brewer's motion for a COA, the district court considered only issues three through nine and issue twelve: those issues corresponding with the claims raised in Brewer's Motion to Correct the Judgment. Brewer thus never requested a COA from the district court on these two issues.

We have stated that “ ‘[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, 45 (5th Cir.1997)). Thus, prior to appellate review, the district court must “deny a COA as to each issue presented by the applicant.” Whitehead, 157 F.3d at 388 . Parsing the interplay between 28 U.S.C. § 2253(c)(3) and Federal Rule of Appellate Procedure 22(b), governing the grant of a writ of habeas corpus, we have explained that “a petitioner must make his request for a COA from a district court before seeking a COA from the Court of Appeals.” United States v. Kimler, 150 F.3d 429, 430 (5th Cir.1998) (emphasis added). In this case, the district court's order made it clear that it was considering only those issues raised in the Motion for a Corrected Judgment. As such, Brewer has failed to seek a COA from the district court on these two issues, which were not raised in that Motion. We therefore will not consider those issues. Whitehead, 157 F.3d at 388.

III

We next turn to Brewer's appeal from the district court's denial of habeas relief on his claim that the aggravating factor of kidnapping in the Texas capital murder statute is unconstitutionally vague and overbroad. As the Supreme Court has explained, “To pass constitutional muster, a capital sentencing scheme must ‘genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.’ ” Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988) (quoting Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983)). Typically, the jury must find at least one aggravating circumstance prior to imposing the death penalty. Id. Under the Texas Penal Code, murder is defined as capital murder if “the person intentionally commits the murder in the course of committing or attempting to commit kidnapping.” Tex. Penal Code § 19.03(a)(2) (Vernon 2003). Brewer argues that the aggravating factor of kidnapping is unconstitutionally vague and thus neither gives the jury sufficient guidance in making a death-eligibility decision nor sufficiently narrows the class of persons who are death-penalty eligible.

A federal habeas court “will not consider a claim that the last state court rejected on the basis of an adequate and independent state procedural ground.” Busby v. Dretke, 359 F.3d 708, 718 (5th Cir.2004) (citing Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). In this case, the state habeas court explicitly found both that “because Applicant should have, but failed, to raise this issue on direct appeal, he is procedurally barred from raising the issue by way of habeas corpus” and “that appellant has waived review of any complaint regarding the constitutionality of [Tex. Penal Code §] 19.03 by his failure to specifically raise the issue and obtain a ruling in the trial court.” See, e.g., Ex parte Gardner, 959 S.W.2d 189, 199 (Tex.Crim.App.1996) (finding that failure to raise an issue on direct appeal bars consideration of that issue under habeas corpus proceedings); Green v. State, 912 S.W.2d 189, 194-95 (Tex.Crim.App.1995) (finding that failure to adequately raise an issue before the trial court bars appellate review of that issue). As a result, Brewer's constitutional challenge to the Texas capital murder statute is procedurally barred from being raised in a federal habeas corpus proceeding.

We will consider procedurally defaulted claims if the prisoner can show cause to overcome the default. Such cause is shown where “the prisoner can demonstrate actual prejudice as a result of the alleged violation of federal law,” or where it would work “a fundamental miscarriage of justice,” Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). However, in this case Brewer has addressed neither the issue of procedural default nor the issue of cause to overcome the default. Therefore, habeas review is foreclosed. See Busby, 359 F.3d at 718 (finding a review foreclosed where “the state habeas court expressly stated that [petitioner's] claim was procedurally barred because he did not raise it on direct appeal”).

IV