Brewer v. Lewis

• Decision Date: 02 March 1993
• Docket Number: No. 93-99003,93-99003
• Citation: 989 F.2d 1021
• Parties: Elsie BREWER, individually and as next friend of John George Brewer, Petitioner-Appellant, v. Samuel LEWIS, Director of the Arizona Department of Corrections, et al., Respondents-Appellees, John George Brewer, Real Party In Interest.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1021

989 F.2d 1021

Elsie BREWER, individually and as next friend of John George Brewer, Petitioner-Appellant, v. Samuel LEWIS, Director of the Arizona Department of Corrections, et al., Respondents-Appellees John George Brewer, Real Party In Interest.

No. 93-99003.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 1, 1993.

Decided March 2, 1993.

Robert Bartels, Arizona State University College of Law, Tempe, AZ, for petitioner-appellant.

Paul J. McMurdie, Chief Counsel, Crim. Appeals Section, Office of the Atty. Gen., Phoenix, AZ, for respondents-appellees.

Lisa M. Sommer, O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, Phoenix, AZ, for the real party in interest.

Appeal from the United States District Court for the District of Arizona.

Before: BROWNING, NORRIS, and HALL, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Elsie Brewer seeks to appeal the district court's denial of her petition for habeas corpus and motion for stay of execution filed on behalf of her son, John Brewer, who is scheduled to be executed on Wednesday, March 3, 1993.

I. FACTUAL BACKGROUND

A complete description of Brewer's offense and the state court proceedings appears in State v. Brewer, 170 Ariz. 486, 826 P.2d 783 (1992). On November 19, 1987, Brewer was indicted for the murder of Rita Brier. In July 1988, Brewer expressed his desire to plead guilty to the charge. The On the basis of the record I find that the defendant knowingly, intelligently and voluntarily enters into a plea of guilty to the charge of First Degree Premeditated Murder. That there is a factual basis for it.

                trial court held a hearing to determine whether Brewer understood his rights and the consequences of his plea, and to determine if he was competent to ignore the advice of his attorney and plead guilty.   The state trial court had before it the reports of Dr. Gerstenberger and Dr. Bayless stating that Brewer was competent to enter a plea.   At the hearing, the trial judge questioned Brewer at length and heard from his trial attorney.   The court concluded
                

I find that upon review of the psychological reports, the demeanor of the defendant, his responses to the court's inquiries, his full understanding of consequences of the sentencing options available to the court, and there being only two, Mr. Brewer. Further in light of his education he has versed himself fairly in legal procedures and he does understand the complexities of this case.

Based upon all of the foregoing I hereby accept the plea of guilty.

The court, over Brewer's objections, ordered Brewer's trial counsel to present mitigation evidence at the sentencing hearing. At the sentencing hearing, the state presented evidence that the victim suffered great pain. Brewer's attorney called the jail pastor to testify that originally Brewer expressed bewilderment and remorse for his actions. Brewer's attorney also called Dr. Bayless to testify in mitigation. Dr. Bayless testified that Brewer was legally competent and has an IQ of 132. He stated that Brewer showed no signs of hallucinations or delusions. However, Dr. Bayless stated that Brewer had a dependency on his mother and a phobia of being alone. He stated further that when Rita Brier told Brewer that she was going to leave him, Brewer's willingness to look at reasonable solutions and to depend on himself became impaired, and he lashed out in anger and killed her. Dr. Bayless stated, though, that Brewer was oriented to reality and definitely had a capacity to appreciate the difference between right and wrong.

Brewer addressed the court at length, and said that he killed Rita Brier and that he believed execution was the only proper punishment for the premeditated murder of which he was guilty. The sentencing court found the aggravating factor that the murder was committed in an especially heinous, cruel and depraved manner, and that Brewer's capacity to appreciate the wrongfulness of his conduct was not impaired. The court found that the evidence and argument in mitigation was insufficient to outweigh the aggravating circumstances, and imposed a sentence of death.

Brewer then filed a letter with the Arizona Supreme Court requesting that he be allowed to abandon all appeals. The Arizona Supreme Court denied his request because a direct appeal in a capital case is mandatory under Arizona law. Brewer, 170 Ariz. at 493, 826 P.2d at 790. The court affirmed Brewer's conviction and sentence, stating with respect to Brewer's competency that there was "sufficient evidence to conclude that [Brewer's] ability to make rational choices and to understand the attendant consequences was not substantially impaired at the time of the guilty plea." Id. 826 P.2d at 793.

Brewer's attorney filed a petition for certiorari without Brewer's knowledge or consent. After the United States Supreme Court denied certiorari, --- U.S. ----, 113 S.Ct. 206, 121 L.Ed.2d 147 (1992), and pursuant to the Arizona Rules of Criminal Procedure, the clerk of the Arizona Supreme Court filed an automatic notice of post-conviction relief on November 6, 1992. Brewer then filed a motion to dismiss the post-conviction relief, and on November 23, 1992, the trial court held a hearing on Brewer's motion.

At that hearing, the trial judge addressed Brewer personally, and after assuring himself that Brewer understood his right to have counsel, found Brewer competent to represent himself in the proceeding. Brewer's former attorney requested that a competency hearing be held in light of an Thereafter, Brewer's mother filed her petition in the district court as next friend of Brewer, which we review herein. The district court, after hearing evidence, determined that Elsie Brewer

                affidavit from a Dr. Rollins stating that Brewer was not competent to proceed.   Dr. Rollins's affidavit was not based on a personal examination of Brewer, was inconsistent with the opinions of two experts who had examined Brewer, was contrary to the trial court's previous holding and the Arizona Supreme Court's finding on appeal, and was not supported by any reports from the Arizona Department of Corrections, which is required by law to file a statement in state court if it determines Brewer has a psychological problem.   The trial court ruled that Brewer's competency "has already been determined.   It has already been addressed by the Supreme Court of this state.   I do not see sufficient information in the Affidavit of Dr. Rollins to change my position, nor do I suspect that the Supreme Court would change its position."   After extensively examining Brewer regarding his request to dismiss the state post-conviction relief proceedings, the trial court found Brewer competent to file the motion to dismiss and granted the motion.   The Arizona Supreme Court then issued a warrant of execution for March 3, 1993
                

has failed to sustain her burden [of proving that she has standing] and thus the Court lacks jurisdiction to act on the motion for stay of execution and it lacks jurisdiction to act upon the petition for writ of habeas corpus on behalf of a person in state custody. And accordingly, the motion for stay and the petition for writ are denied.

Elsie Brewer then appealed to this court. ¹

II. PETITIONER IS NOT ENTITLED TO AN AUTOMATIC STAY UNDER NINTH CIRCUIT RULE 22-3

We must first consider whether this case qualifies for an automatic stay of execution under our Circuit Rule 22-3(c), which provides:

On the first petition [for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 for a petitioner under a sentence of death], ² if a certificate of probable cause and a stay of execution have not been entered by the district court ... upon application of the petitioner a certificate of probable cause will be issued and a stay of execution will be granted by this court pending the issuance of its mandate.

The issue here is whether petitioner Elsie Brewer, as purported next friend of John Brewer, qualifies as the "petitioner" for purposes of our rule prior to establishing her standing as a next friend. We hold that she does not. Until Elsie Brewer demonstrates that she has standing to bring a petition on behalf of her son, she may not obtain an automatic stay of the execution of Brewer over his strong objections. To interpret the rule as providing for the entry of a stay at the request of a "next friend' without a showing that the defendant is unable to act on his own behalf would be inconsistent with the holding in Demosthenes v. Baal, 495 U.S. 731, 737, 110 S.Ct. 2223, 2226, 109 L.Ed.2d 762 (1990), that The dissent to this order asserts that we are "reading language into the rule" on first petitions. We read nothing into the rule. We simply apply the rule in light of the fundamental principle of jurisdiction that a party must have standing to litigate in federal court. A grant of a stay is an exercise of judicial power, and we are not authorized to exercise such power on behalf of a party who has not first established standing. See Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204-05, 45 L.Ed.2d 343 (1975) ("In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues."). Standing determines the power of the court to entertain a suit. Id.

"[b]efore granting a stay, ... federal courts must make certain that an adequate basis exists for the exercise of federal power."

The dissent further contends that we have decided the "merits" of the petitioner's claim, and that this indicates we acknowledge she has made a colorable claim of standing. We have simply decided under relevant Supreme Court authority that the district court correctly concluded that petitioner has failed to establish her standing to petition the federal courts. Standing is a jurisdictional question that must be addressed at the threshold of any case.

Finally, the dissent's citation to Bell v. Hood, 327...