Brewer v. Quarterman

• Decision Date: 29 September 2006
• Docket Number: No. 05-70056.,05-70056.
• Citation: 466 F.3d 344
• Parties: Lawrence Russell BREWER, Petitioner-Appellant, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

466 F.3d 344

Lawrence Russell BREWER, Petitioner-Appellant, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 05-70056.

United States Court of Appeals, Fifth Circuit.

September 29, 2006.

Alexander Lee Calhoun, Law Office of Alex Calhoun, Austin, TX, for Brewer.

Gena Blount Bunn, Asst. Atty. Gen., Austin, TX, for Quarterman.

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

Before SMITH, GARZA and PRADO, Circuit Judges.

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.¹ 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.

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...