Monday, September 19, 2011
Media Advisory: Lawrence Russell Brewer scheduled for execution

Pursuant to a court order by 1-A District Court of Jasper County, Lawrence Russell Brewer is scheduled for execution after 6 p.m. on September 21, 2011. In 1998, a Brazos County jury found Brewer guilty of murdering James Byrd, Jr.

The U.S. District Court for the Eastern District of Texas, Tyler Division, described the murder of Mr. Byrd as follows:

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.

PROCEDURAL HISTORY

On October 30, 1998, Brewer was indicted for capital murder by a Jasper County grand jury. Venue was transferred to Brazos County for trial in June 1999.

On September 20, 1999, Brewer was convicted of capital murder. After a separate punishment proceeding, Brewer was sentenced to death on September 23, 1999.

On April 3, 2002, Brewer’s conviction and sentence were affirmed by the Texas Court of Criminal Appeals on direct appeal. Brewer did not appeal the state court’s decision to the U.S. Supreme Court. Instead, he filed an application for habeas corpus relief which was denied by the Texas Court of Criminal Appeals on September 11, 2002.

On September 10, 2003, Brewer filed a petition for writ of habeas corpus in the U.S. District Court for the Eastern District of Texas, Tyler Division. The federal court denied this petition on September 1, 2005.

On September 29, 2006, the U.S. Court of Appeals for the Fifth Circuit rejected Brewer’s appeal and affirmed the denial of habeas corpus relief by the district court.

Brewer filed a petition for writ of certiorari in the U.S. Supreme Court on April 30, 2007, but the Supreme Court denied certiorari review on October 1, 2007.

PRIOR CRIMINAL HISTORY

Under Texas law, the rules of evidence prevent certain prior criminal acts from being presented to a jury during the guilt-innocence phase of the trial. However, once a defendant is found guilty, jurors are presented information about the defendant’s prior criminal conduct during the second phase of the trial – which is when they determine the defendant’s punishment.

During the penalty phase of Brewer’s trial, jurors learned that Brewer was convicted of burglary of a habitation in 1986 and sentenced to 10 years in prison, probated for 7 years. He was again convicted of burglary of a habitation in 1987 and sentenced to 10 years in prison, probated for 10 years. His probation was revoked in 1987 and he was sentenced to 7 years in prison. In 1988, Brewer was released on parole. In 1989, he was convicted of possession of cocaine. His parole was revoked and he was sentenced to 15 years in prison. In 1991, Brewer was released on parole again. In 1993, his parole was revoked again for failure to report to his parole officer. Brewer was returned to prison to serve his 15-year sentence. In 1997, Brewer was released again on parole and remained on parole until he was arrested for the murder of Mr. Byrd in 1998.

Texas Execution Information Center by David Carson.

Lawrence Russell Brewer, 44, was executed by lethal injection on 21 September 2011 in Huntsville, Texas for the abduction and murder of a 49-year-old man.

In the early morning of 7 June 1998, James Byrd Jr., 49, was at a party in Jasper, in east Texas. Wanting to leave and unable to find a ride, he began walking down the road towards home, which was about a mile from the party. At the same time, Brewer, then 31, and John King, 23, were riding in a truck driven by Shawn Berry, 23. The men spotted Byrd and offered him a ride, which he accepted. Witnesses later testified seeing Byrd, who was black, riding in the bed of an old-model, step-side, primer-gray pickup truck with three white people in the cab.

The men drove to an isolated logging road, stopped the vehicle, and got out. They then attacked Byrd, tied his feet with a logging chain, and attached the chain to the back of the truck. They then drove along Huff Creek Road, dragging Byrd behind the truck until he was dead. They left Byrd's body on the road in front of a church attended by black residents. The body was found by townsfolk later that morning. It was missing the head, neck, and right arm.

Police followed a trail of blood, drag marks, and body parts for about a mile and a half, culminating in an area of matted-down grass that appeared to have been the scene of a struggle. At this site and all along the asphalt road ending in front of the church, police discovered clothing and personal items belonging to Byrd, including his wallet, keys, and dentures. They also found items apparently belonging to others, including a cigarette lighter engraved with the words "Possum" and "KKK", a nut driver inscribed with the name "Berry", three cigarette butts, a pack of cigarettes, and beer bottles.

The next evening, police stopped Berry for a traffic violation in his primer-gray 1982 Ford pickup. Behind the front seat, police discovered a set of tools matching the wrench found at the fight scene. Berry was arrested. Byrd's blood was found underneath the truck and on the tires. Police also noticed a rust stain in the bed of the pickup that was in the pattern and outline of a large chain.

At Berry's apartment, which he shared with Brewer and King, police and FBI agents found items of clothing stained with Byrd's blood belonging to all three men. They also found a large amount of racial pamphlets and paraphernalia. DNA tests on the three cigarette butts found at the crime scene established Berry, Brewer, and King as the major DNA contributors. In the woods where the three suspects were known to play paintball, police found a covered hole containing a 24-foot logging chain that matched the rust pattern in the bed of Berry's pickup.

Byrd's murder stunned the nation and made the name Jasper synonymous with racist hate. Various state and federal "hate crime" laws were enacted around the country soon afterward. These laws typically call for harsher punishments for crimes motivated from racial hatred or certain other kinds of hatred.

At Brewer's trial, which was held six counties away, in Brazos County, a pathologist testified that Byrd was still alive until he was dragged across a culvert, and this is what severed his head and arm from the rest of his body.

Brewer and King had met in prison, where they were both members of the Confederate Knights of America, a white supremacist prison gang affiliated with the Ku Klux Klan. Prosecutors presented evidence that Brewer was a leader in the gang, bearing the title of Exalted Cyclops. At King's trial, prosecutors asserted that King, whose prison name was "Possum", planned to start a white supremacist group in Jasper. Byrd's killing, followed by the public display of his body, were intended as a signal to the community that the group was up and running.

Brewer admitted to participating in the attack on Byrd, but testified that he did not join in the dragging and instead tried to stop it. He also testified that Berry had cut Byrd's throat before the dragging began. Under Texas law, a defendant can be found guilty as a party to capital murder, regardless of whether he or she personally inflicts the fatal injury.

Brewer had been in and out of prison three times for previous felonies. In October 1986, he was sentenced to 7 years for burglary of a habitation. He was paroled in February 1988. A year later, he was sentenced to 15 years for cocaine possession. He was released in May 1991 after serving 2 years of that sentence. (In the late 1980's and early 1990's, early release was common in Texas due to strict prison population caps imposed by U.S. District Judge William Wayne Justice.) Brewer was returned to prison in 1994 for failing to report to his parole officer. He was released again in May 1997.

A jury convicted Brewer of capital murder in September 1999 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in April 2002. All of his subsequent appeals in state and federal court were denied.

The other two defendants were tried in Jasper. John William King was convicted of capital murder and sentenced to death. He is currently on death row. Shawn Allen Berry was convicted of capital murder and sentenced to life in prison. He remains in custody as of this writing.

"I know in my heart,I participated in assaulting him," Brewer said in an interview from death row about six weeks before his execution. "I had nothing to do with the killing, as far as the dragging, or driving the truck, or anything ... I literally seen Shawn Berry use a knife to cut Byrd's throat."

During the interview, Brewer explained that his views on race were formed in prison, where he witnessed blacks and Mexicans commit brutal beatings on others. He joined a white prison gang because "I just wanted to be around white people," he said. He also showed the reporter some of the tattoos on his arm: "Confederate flag, a cross burning, an intertwined KKK ..." "I wouldn't consider it white supremacist," he said, "more of a separatist. Like you do your thing, and we do our thing."

Brewer supported the death penalty, even though he thought he didn't deserve it. "I'm for the death penalty. I feel that if you take a life you should pay for it by taking your own life, if you're actually guilty of taking a life." Despite his claim of innocence, Brewer was not angry about his fate. "This is a good out for me," he said. "I don't want a life sentence, period, with or without parole. I wouldn't be happy with that ... I'm glad it's about to come to an end," he said.

Billy Rowles, who was the Jasper County sheriff when Byrd was killed, disagreed with Brewer's account of Byrd's murder. "There was absolutely no throat cut," he said. The state of Texas has traditionally allowed condemned inmates to request a last meal. Prior to his execution, Brewer requested two chicken fried steaks, a triple-meat bacon cheeseburger, fried okra, a pound of barbecue, three fajitas, a meat lover's pizza, a pint of ice cream, and a slab of peanut butter fudge with crushed peanuts. After the meal arrived, he told prison officials he was not hungry and declined to eat any of it.

"No. I have no final statement," Brewer replied when asked if he had any last words. While lying on the gurney, he looked toward the witness room occupied by his parents and brother. He did not look at the victim's two sisters and niece, who were in an adjoining room. The lethal injection was started at 6:11 p.m. He was pronounced dead at 6:21 p.m.

Although Brewer was not the first condemned prisoner to lose his appetite after ordering a feast for his last meal, this instance hit a nerve with state senator John Whitmire, who wrote a letter to Brad Livingston, the executive director of the Texas Department of Criminal Justice, urging him to end the "last meal of choice" tradition. Whitmire wrote that he would seek a state law to prohibit the "ridiculous" practice if it continued.

"Mr. Byrd didn't get to choose his last meal. The whole deal is so illogical," Whitmire told a reporter. Director Livingston concurred. "Effective immediately," he replied, "no such accommodations will be made. They will receive the same meal served to other offenders on the unit."

Reuters News

"Texas executes man in race-motivated dragging death," by Karen Brooks. (Wed, Sep 21 2011)

AUSTIN (Reuters) - Texas executed a white supremacist on Wednesday convicted of helping to kill a black man by dragging him behind a truck in what some call the most notorious race crime of the post-Civil Rights era.

Lawrence Russell Brewer, 44, was convicted of capital murder along with two other men also found guilty of taking part in the kidnapping and slaying of James Byrd Jr. in 1998. Brewer was given a lethal injection of drugs and pronounced dead at 6:21 p.m. local time in Huntsville, Texas, according to Michelle Lyons of the Texas Department of Criminal Justice. He had no last words.

Brewer, together with the two other men, offered Byrd a ride home, attacked him on a country road, chained his ankles to the back of a pickup, and then dragged him behind the truck for several miles in the vicinity of Jasper, Texas, according to a report by the Texas Attorney General's Office. The east Texas killing touched off a national movement to strengthen punishments for crimes motivated by hate.

Of the two other men convicted in the killing, white supremacist John King is on death row awaiting an execution date. Shawn Berry is serving a life sentence. "One down, one to go," Billy Roles, who was Jasper County Sheriff at the time and led the investigation into Byrd's death, told Reuters.

Brewer was the 11th person executed in Texas and the 34th in the United States in 2011. He visited with friends and family for four hours prior to the execution.

For his last meal, Brewer requested a number of items, including chicken-fried steak and Bluebell ice cream, and then declined them all, saying he wasn't hungry, officials said.

Byrd's wife and three children, who were not present for the execution, have argued against the death penalty for his killers, but other members of his family have said they thought it was the right sentence.

VICTIM'S SON OPPOSED EXECUTION

Byrd's two sisters and a niece, in a press conference in Huntsville, called the execution "the next step to total justice for James," Lyons said. "Hopefully, today we have been reminded that racial hatred and prejudice can lead to tragic consequences for both the victim and his family, as well as the perpetrator and his family," said Clara Taylor, Byrd's sister. "Our sincere condolences to the family of Lawrence Brewer."

The victim's only son, Ross Byrd, said late on Tuesday that he wished the state would show the mercy toward the condemned man that the killers never showed his father, who died while his son was in military training. "Life in prison would have been fine," Ross Byrd, 32, told Reuters. "I know he can't hurt my daddy anymore. I wish the state would take in mind that this isn't what we want."

While Brewer blamed Berry for the killing, prosecutors said it happened because King and Brewer wanted to start a white supremacist group in Jasper, according to the Attorney General's report. Texas state Senator Rodney Ellis, a Houston Democrat who helped pass the state's James Byrd Jr. Hate Crimes Act in 2001, said the death sentence in Brewer's case "will close a chapter in this tragic story."

"I cannot say for certain that it is a requirement in order for justice to be served," Ellis told Reuters, "but as Mr. Brewer was a ringleader in the most brutal hate crime in the post-Civil Rights era, it is certainly a very appropriate sentence."

Texas has the country's most active death row, executing more than four times as many people as any other state since the death penalty was reinstated in the United States in 1976, according to the Death Penalty Information Center.

Huntsville Item

"Brewer's execution draws crowd," by Brandon Scott. (September 21, 2011)

HUNTSVILLE — Family of the slain James Byrd Jr., a black man who was dragged to death by three white men in a racially charged hate crime 13 years ago in Jasper, said the execution of Lawrence Russell Brewer was a step toward complete justice for Byrd. Clara Taylor, Byrd’s sister, was among three victim witnesses of Brewer’s execution, who was officially pronounced dead at 6:21 p.m. Brewer’s personal witnesses included his father, mother, brother and two friends.

Brewer refused to make a final statement before the lethal drugs were injected into his veins. He did, however, look to his family with a cracked smile before shedding a tear. Brewer’s lip trembled as the drugs began to affect him, leaving him coughing, and then snoring into his death.

“James Byrd’s murder was racially motivated,” Taylor said following the execution. “Hopefully today we have been reminded that racial hatred and prejudice can lead to tragic consequences for both, the victim and his family as well as the perpetrator and his family. Our sincere condolences go out to the family of Lawrence Brewer.” Taylor also said Byrd’s seven siblings promised their mother, who passed away last October, they would seek justice for Byrd until the end. “It’s been a long time,” she added. “We’re still working on closure.”

Brewer’s mother Helen sobbed when she first noticed her son struggling to breathe. His father, the elder Lawrence, witnessed the execution while sitting in his walker and appeared reluctant to leave his son when it was all over. Brewer’s brother, John, could hardly bare to look through the glass of the death chamber. Instead, he glared at the few media witnesses with tears in his eyes.

For his last meal, Brewer ordered two chicken fried steaks, smothered in gravy with sliced onions; a triple meat bacon cheeseburger; a cheese omelet with ground beef, tomatoes, onions and jalapeños; a large bowl of fried okra with ketchup; a pound of BBQ with a half loaf of white bread; fajitas and Blue Bell Homemade Ice Cream. Brewer, however, did not eat any of the food he requested.

More than 50 spectators gathered outside the Huntsville “Walls” Unit in observation. The spectators ranged from media to filmmakers, protesters and even celebrities. Comedian and civil rights activist Dick Gregory sat in a lawn chair across from the prison facility in the midst of other protesters. Gregory had come from speaking at rallies in Jasper as well as Georgia, the site of the controversial potential execution of Troy Davis.

Gregory said he came to Huntsville for the same reason he fought for civil rights, to show opposition to government administration of the death penalty. “I just don’t believe the state should have the right to kill people,” Gregory said. “If you put a man in jail for life, that’s punishment. When you start killing people, that’s revenge. It’s crazy and we let our government get by with it.” Another gentleman, who left shortly after arriving to the Huntsville Unit, wore an anti-protesting sign. It read, “Bring back old Sparky.”

Brewer’s execution was the 11th in Texas this year, the nation’s capital punishment leader. There are three more executions scheduled for this year, all within the next month.

Houston Chronicle

"Hate crime killer executed," by Allan Turner. (07:57 a.m., Thursday, September 22, 2011)

HUNTSVILLE - As the sisters of his victim watched solemnly but dry-eyed, Lawrence Russell Brewer was executed Wednesday for the 1998 Jasper dragging murder of James Byrd Jr. - a racially motivated killing that stunned the nation. He was the first of two Byrd killers scheduled to be put to death. A third killer was sentenced to life in prison. Brewer, 44, made no final statement before the lethal drugs were started at 6:11 p.m. He was declared dead 10 minutes later.

Brewer, visibly pale, looked toward the witness room occupied by his parents and brother. He did not make eye contact with Byrd's two sisters and niece, who occupied an adjoining witness room. Tears began to form in his eyes as he breathed heavily and died.

Clara Taylor and Louvon Harris, the victim's sisters, stood silently as the execution took place. "Tonight we witnessed the next step toward complete justice for James - the execution of Lawrence Brewer for his part in this brutal murder," Taylor said afterward. "Hopefully today we have been reminded that racial hatred and prejudice can lead to tragic consequences for both the victim and his family as well as the perpetrator and his family." Taylor said she was "still processing" the execution. "Maybe in the midnight hour I'll process it," she said. "It was quick and sobering." Taylor said she wanted to hear a final statement from the killer, but also was afraid of what he might say. "My understanding is he had no remorse, he was unrepentant," she said. " … It could have gone in any direction." Brewer's relatives, who wept during the execution, made no public statement.

Shocked the nation

The Byrd killing, occurring in Deep East Texas, the portion of the state most closely tied to the American South and its history of lynching, shocked and sickened the nation. Byrd, 49, was abducted as he walked along a Jasper road, beaten, urinated on and dragged about 2 miles behind a pickup by log chains attached to his ankles. He was decapitated when his body struck a culvert.

Brewer and his accomplices, John William King and Shawn Allen Berry, dumped their victim's mangled body at an African-American cemetery and went to eat barbecue. Investigators found Brewer's DNA on a cigarette and beer bottle at the crime scene and Byrd's blood on his shoes. The brutality of the crime fueled efforts to enact state and federal hate crime laws. Jasper County law officers who recently visited Brewer on death row said he expressed no remorse. King, like Brewer, was sentenced to die for the crime; Berry was sent to prison for life.

Prison authorities, who - uncertain of the number or nature of protests the execution might spawn - ringed the Walls Unit with extra guards. But raucous protests never developed. By late afternoon, dozens of demonstrators - including African-American comedian Dick Gregory - assembled in an area near the prison set aside for protests. "Any state killing is wrong," he said. "If Adolf Hitler were to be executed, I would be here to protest … I believe life in prison is punishment. Execution is revenge."

Among outnumbered capital punishment supporters was Sam Houston State University political science student Josh Ruschenberg, who lofted a sign urging reinstatement of "Ol' Sparky," the state's decommissioned electric chair. "I've always been for the death penalty," he said. "I think the state should be able to assess the maximum punishment for maximum offenses. The crime they committed was so heinous."

Prison officials said Brewer, whose appeals were exhausted, appeared to be in good spirits hours before the execution and joked with the prison warden and chaplain. Brewer ordered - but did not eat - a final meal of two chicken fried steaks, a triple-meat bacon cheeseburger, a cheese omelet, a large bowl of fried okra, three fajitas, a pint of Blue Bell ice cream, and a pound of barbecue with a half loaf of white bread.

Brewer and King - both members of a white supremacist gang - met at Tennessee Colony's Beto Unit, where Brewer was serving time for burglary and drug possession.

TIME U.S.

"Lawrence Russell Brewer Executed in Texas," by (HUNTSVILLE, Texas) — White supremacist gang member Lawrence Russell Brewer was executed Wednesday evening for the infamous dragging death slaying of James Byrd Jr., a black man from East Texas. Byrd, 49, was chained to the back of a pickup truck and pulled whip-like to his death along a bumpy asphalt road in one of the most grisly hate crime murders in recent Texas history. Brewer, 44, was asked if he had any final words, to which he replied: "No. I have no final statement." A single tear hung on the edge of his right eye.

He was pronounced dead at 6:21 p.m., 10 minutes after the lethal drugs began flowing into his arms, both covered with intricate black tattoos.

Brewer's parents and two of Byrd's sisters were in attendance. Appeals to the courts for Brewer were exhausted and no last-day attempts to save his life were filed.

Besides Brewer, John William King, now 36, also was convicted of capital murder and sent to death row for Byrd's death, which shocked the nation for its brutality. King's conviction and death sentence remain under appeal. A third man, Shawn Berry, 36, received a life prison term. "One down and one to go," Billy Rowles, the retired Jasper County sheriff who first investigated the horrific scene, said. "That's kind of cruel but that's reality."

Byrd's sister, Clara Taylor, said someone from her brother's family needed to be present to watch Brewer die so she was among witnesses in the death chamber. "He had choices," she said Tuesday, referring to Brewer. "He made the wrong choices."

While the lethal injection wouldn't compare to the horrible death her brother endured, "Knowing you're going to be executed, that has to be a sobering thought," she said. (See "Stevens' Case Against the Death Penalty: Shirking the Blame.")

It was about 2:30 a.m. on a Sunday, June 7, 1998, when witnesses saw Byrd walking on a road not far from his home in Jasper, a town of more than 7,000 about 125 miles northeast of Houston. Many folks knew he lived off disability checks, couldn't afford his own car and walked where he needed to go. Another witness then saw him riding in the bed of a dark pickup.

Six hours later and some 10 miles away on Huff Creek Road, the bloody mess found after daybreak was thought at first to be animal road kill. Rowles, a former Texas state trooper who had taken office as sheriff the previous year, believed it was a hit-and-run fatality but evidence didn't match up with someone caught beneath a vehicle. Body parts were scattered and the blood trail began with footprints at what appeared to be the scene of a scuffle. "I didn't go down that road too far before I knew this was going to be a bad deal," he said at Brewer's trial. Fingerprints taken from the headless torso identified the victim as Byrd.

Testimony showed the three men and Byrd drove out into the county about 10 miles and stopped along an isolated logging road. A fight broke out and the outnumbered Byrd was tied to the truck bumper with a 24½-foot logging chain. Three miles later, what was left of his shredded remains was dumped between a black church and cemetery where the pavement ended on the remote road. Brewer, King and Berry were in custody by the end of the next day.

The crime put Jasper under a national spotlight and lured the likes of the Ku Klux Klan and the Black Panthers, among others, to try to exploit the notoriety of the case which continues — many say unfairly — to brand Jasper more than a decade later.

King was tried first, in Jasper. Brewer's trial was moved 150 miles away to Bryan. Berry was tried back in Jasper.

ProDeathPenalty.Com

George Mahathy, a life-long acquaintance of the victim, James Byrd, Jr., saw him at a party on Saturday night, June 6, 1998. Byrd left the party around 1:30 or 2:00 in the morning. Byrd asked Mahathy for a ride home, but Mahathy was riding home with someone else. As Mahathy was leaving the party, he saw Byrd walking down the road towards home, which was about a mile from the party. Steven Scott, who had known Byrd for several years, also saw him walking down the road that night. After arriving home a few minutes later, at around 2:30 a.m., Scott saw Byrd pass by in the back of an old model, step-side pickup truck painted primer-gray. Three white people were riding in the cab of the truck.

On June 7, 1998, police officers responded to a call to go to Huff Creek Road in the town of Jasper. In the road, in front of a church, they discovered the body of an African-American male missing the head, neck, and right arm. The remains of pants and underwear were gathered around the victim's ankles. About a mile and a half up the road, they discovered the head, neck, and arm by a culvert in a driveway. A trail of smeared blood and drag marks led from the victim's torso to the detached upper portion of the victim's body and continued another mile and a half down Huff Creek Road and a dirt logging road. A wallet found on the logging road contained identification for James Byrd Jr., a Jasper resident. Along the route, police also found Byrd's dentures, keys, shirt, undershirt, and watch.

At the end of the logging road, the trail culminated in an area of matted-down grass, which appeared to be the scene of a fight. At this site and along the logging road, the police discovered a cigarette lighter engraved with the words “Possum” and “KKK,” a nut driver wrench inscribed with the name “Berry,” three cigarette butts, a can of “fix-a-flat,” a compact disk, a woman's watch, a can of black spray paint, a pack of Marlboro Lights cigarettes, beer bottles, a button from Byrd's shirt, and Byrd's baseball cap. Chemical analysis revealed a substance on James Byrd's shirts and cap consistent with black spray paint.

The following evening, police stopped Shawn Berry for a traffic violation in his primer-gray pickup truck. Behind the front seat, police discovered a set of tools matching the wrench found at the fight scene. They arrested Berry and confiscated the truck. DNA testing revealed that blood spatters underneath the truck and on one of the truck's tires matched Byrd's DNA. In the bed of the truck, police noticed a rust stain in a chain pattern and detected blood matching Byrd's on a spare tire. Six tires that were on or associated with Berry's truck were examined. Three of the four tires on the truck were of different makes. Tire casts taken at the fight scene and in front of the church where the torso was found were consistent with each of these tires. An FBI chemist detected a substance consistent with fix-a-flat inside one of the six tires.

Shawn Berry shared an apartment with Lawrence Russell Brewer and John William King. Police and FBI agents searched the apartment and confiscated King's drawings and writings as well as clothing and shoes of each of the three roommates. DNA analysis revealed that the jeans and boots that Berry had been wearing on the night of the murder were stained with blood matching Byrd's DNA. An analyst with the FBI lab determined that a shoe print found near a large blood stain on the logging road was made by a Rugged Outback brand sandal. King owned a pair of Rugged Outback sandals and had been seen wearing them on the evening of the murder. Shawn Berry also owned a pair of Rugged Outback sandals that were a half size different from King's. One of the pairs of these sandals confiscated from the apartment bore a blood stain matching Byrd's DNA. A Nike tennis shoe with the initials “L.B.” in the tongue also was stained with blood matching Byrd's. Although Shawn Berry's brother, Lewis Berry, stayed at the apartment from time to time and shares the same initials as Lawrence Brewer, Lewis Berry testified that the shoes were not his and demonstrated that his foot was significantly larger than Brewer's.

DNA analysis was also conducted on three cigarette butts taken from the fight scene and logging road. DNA on one of the cigarette butts established King as the major contributor, and excluded Berry and Brewer as contributors, but could not exclude Byrd as a minor contributor. The FBI forensic examiner explained that a minor contributor deposits less DNA than a major contributor. This occurs, for instance, when another person takes a “drag” off of a cigarette. Brewer was the sole contributor of DNA on the second cigarette butt. The third cigarette butt revealed DNA from both a major and minor contributor. Shawn Berry was established as the major contributor of DNA on the third cigarette butt. However, King, Brewer, and Byrd were all excluded as possible minor contributors of the additional DNA.

Tommy Faulk testified that Berry, Brewer, and King frequented his home and had played paintball in the woods behind his trailer. Police conducted a search of these woods and found a large hole covered by plywood and debris. Underneath the cover, they discovered a 24-foot logging chain that matched the rust imprint in the bed of Berry's truck.

The evidence reveals that Byrd's body was severed about a mile and a half down the logging and asphalt roads, resulting in death, but that his torso was dragged another mile and a half before it was deposited in front of the church. Byrd's injuries reveal not only that he was alive during half of his tortuous journey, but also that he was conscious for most, if not all, of that time-attempting to hold up his head and relieve the pain of the asphalt scraping and tearing his skin. Byrd was made to suffer the most cruel and horrific pain before his body was finally torn apart by the culvert.

Wikipedia: Murder of James Byrd Jr.

Born: May 2, 1949 Beaumont, Texas, United States

Died: June 7, 1998 (aged 49) Jasper, Texas, United States

James Byrd, Jr. (May 2, 1949 – June 7, 1998) was an African-American who was murdered by three white supremacists in Jasper, Texas, on June 7, 1998. Shawn Berry, Lawrence Brewer, and John King dragged Byrd behind a pick-up truck along an asphalt pavement after they wrapped a heavy logging chain around his ankles. Byrd was pulled along for about two miles as the truck swerved from side to side.[1]

Byrd, who remained conscious throughout most of the ordeal, was killed when his body hit the edge of a culvert severing his right arm and head. The murderers drove on for another mile before dumping his torso in front of an African-American cemetery in Jasper.[1] Byrd's lynching-by-dragging gave impetus to passage of a Texas hate crimes law. It later led to the Federal October 22, 2009 Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, commonly known as the Matthew Shepard Act. President Barack Obama signed the bill into law on October 28, 2009.

James Byrd, Jr. was born in Beaumont, Texas, one of nine children, to Stella (1925 – October 7, 2010) and James Byrd, Sr. (born 1924).[2]

Ross Byrd, the only son of James Byrd, has been involved with Murder Victims' Families for Reconciliation, an organization that opposes capital punishment. He has campaigned to spare the lives of those who murdered his father and appears briefly in the documentary Deadline about the death penalty in Illinois.[3]

On June 7, 1998, Byrd, age 49, accepted a ride from Shawn Berry (age 24), Lawrence Brewer (age 31), and John King (age 23). Berry, who was driving, was acquainted with Byrd from around town. Instead of taking Byrd home, the three men took Byrd to a remote county road out of town, beat him with anything they could find, urinated on his unconscious body, chained him by his ankles to their pickup truck dragging him for three miles. Brewer later claimed that Byrd's throat had been slashed by Berry before he was dragged. However, forensic evidence suggests that Byrd had been attempting to keep his head up while being dragged, and an autopsy suggested that Byrd was alive during much of the dragging. Byrd died after his right arm and head were severed after his body hit a culvert. His body had caught the culvert on the side of the road, resulting in Byrd's decapitation.[4]

Berry, Brewer, and King dumped their victim's mutilated remains in front of an African-American cemetery on Huff Creek Road; the three men then went to a barbecue. Along the area where Byrd was dragged, authorities found a wrench with "Berry" written on it. They also found a lighter that was inscribed with "Possum", which was King's prison nickname.[5] The following morning, Byrd's limbs were found scattered across a seldom-used road. The police found 75 places that were littered with Byrd's remains. State law enforcement officials, along with Jasper's District Attorney, determined that since Brewer and King were well-known white supremacists, the murder was a hate crime. They decided to call upon the Federal Bureau of Investigation less than 24 hours after the discovery of Byrd's remains.[citation needed]

King had several tattoos considered to be racist: a black man hanging from a tree, Nazi symbols, the words "Aryan Pride," and the patch for a gang of white supremacist inmates known as the Confederate Knights of America.[6] In a jailhouse letter to Brewer that was intercepted by jail officials, King expressed pride in the crime and said he realized in committing the murder he might have to die. "Regardless of the outcome of this, we have made history. Death before dishonor. Sieg Heil!" King wrote.[4] An officer investigating the case also testified that witnesses said King had referenced The Turner Diaries after beating Byrd.[7]

Berry, Brewer, and King were tried and convicted for Byrd's murder. Brewer and King received the death penalty, while Berry was sentenced to life in prison. Brewer was executed by lethal injection on September 21, 2011.

Perpetrators

Shawn Allen Berry

The driver of the truck, Berry was the most difficult to convict of the three defendants because there was a lack of evidence to suggest that he was a racist.[citation needed] Berry had also claimed that Brewer and King were entirely responsible for the crime. Brewer, however, testified that it was Berry who cut Byrd's throat before he was tied to the truck. The jury decided that there was little evidence to support this claim.[8] As a result, Berry was spared the death penalty and was sentenced to life in prison. Berry, TDCJ#00894758, is in the Ramsey Unit in Brazoria County, Texas,[9] and his parole eligibility date is June 7, 2038.[10] As of 2003 Berry is in protective custody; he spends 23 hours per day in a 8-foot (2.4 m) by 6-foot (1.8 m) cell, with one hour for exercise. Berry married a woman named Christie Marcontell by proxy.[11] Marcontell was Berry's girlfriend at the time of the murder. The two have a child together.

Lawrence Russell Brewer

Brewer was a white supremacist who, prior to Byrd's murder, had served a prison sentence for drug possession and burglary. He was paroled in 1991. After violating his parole conditions in 1994, Brewer was returned to prison. According to his court testimony, he joined a white supremacist gang with King in prison in order to safeguard himself from other inmates.[12] Brewer and King became friends in the Beto Unit prison.[9] A psychiatrist testified that Brewer did not appear repentant for his crimes. Brewer was ultimately convicted and sentenced to death.[13] Brewer, TDCJ#999327,[14] was on death row at the Polunsky Unit.[9] Brewer was executed in the Huntsville Unit on September 21, 2011.[15] The day before his execution, Brewer told KHOU 11 News in Houston: "As far as any regrets, no, I have no regrets. No, I'd do it all over again, to tell you the truth."[16]

John William King

King was accused of beating Byrd with a bat and then dragging him behind a truck until he died. King had previously claimed that he had been gang-raped in prison by black inmates.[17] Although he had no previous record of racism, King had joined a white supremacist prison gang, allegedly for self-protection.[18] He was found guilty and sentenced to death for his role in Byrd's kidnapping and murder.[19] King, TDCJ#999295,[20] is on death row at the Polunsky Unit.[9]

Reactions to the murder

Numerous aspects of the Byrd murder echo lynching traditions. These include mutilation or decapitation and revelry, such as a barbecue or a picnic, during or after. Byrd's murder was strongly condemned by Jesse Jackson and the Martin Luther King Center as an act of vicious racism and focused national attention on the prevalence of white supremacist prison gangs.

The victim's family created the James Byrd Foundation for Racial Healing after his death. In 1999 Chantal Akerman, inspired by the literary works of William Faulkner, set out to make a film about the beauty of the American South. However, after arriving on location (in Jasper, Texas) and learning of the brutal racist murder, she changed her focus. Akerman made Sud (French for "South") a meditation on the events surrounding the crime and the history of racial violence in the United States. In 2003, a movie about the crime, titled Jasper, Texas, was produced and aired on Showtime. The same year, a documentary named Two Towns of Jasper, made by filmmakers Marco Williams and Whitney Dow, premiered on PBS's P.O.V. series.[21]

Basketball star Dennis Rodman offered to pay for Byrd's funeral. Although Byrd's family declined this offer, they accepted a $25,000 donation by Rodman to a fund started to support Byrd's family.

While at radio station WARW in Washington, D.C., DJ Doug Tracht (also known as "The Greaseman") made a derogatory comment about James Byrd after playing Lauryn Hill's song "Doo Wop (That Thing)".[22] The February 1999 incident proved catastrophic to Tracht's radio career, igniting protests from black and white listeners alike. He was quickly fired from WARW and lost his position as a volunteer deputy sheriff in Falls Church, Virginia.

Impact on US politics

Some advocacy groups, such as the NAACP National Voter Fund, made an issue of this case during George W Bush's presidential campaign in 2000. They accused Bush of implicit racism since, as governor of Texas, he opposed hate crime legislation. Also, citing a prior commitment, Bush could not appear at Byrd's funeral. Because two of the three murderers were sentenced to death and the third to life in prison (all charged with and convicted of capital murder, the highest felony level in Texas) Governor Bush maintained that 'we don't need tougher laws'. The 77th Texas Legislature passed the James Byrd, Jr. Hate Crimes Act. With the signature of Governor Rick Perry who inherited the balance of Bush's unexpired term, the act became Texas state law in 2001.[23] In 2009, the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act expanded the 1969 United States federal hate-crime law to include crimes motivated by a victim's actual or perceived gender, sexual orientation, gender identity, or disability.[24]

Musical tributes

In 2010, Alabama musician Matthew Mayfield penned, recorded, and released a song in Byrd's honor. The tune, titled "Still Alive", is the fourth track on Mayfield's EP You're Not Home. "Still Alive" clearly related a stark bitterness towards racism and equated such hate crimes to genocide. "The Ballad of James Byrd" is another tribute to Byrd, written and performed by Southern Californian musician Ross Durand. "The New Hell" by death metal band The Famine mentions Byrd on their album The Architects of Guilt (2011). "Jasper", by Confrontation Camp, is the fifth track on the album Objects in the Mirror Are Closer Than They Appear (2000).

References

1."3 whites indicted in dragging death of black man in Texas". CNN. 1998-07-06. Retrieved 2010-07-24.
2.Mother of James Byrd, Jr. dies (October 7, 2010)
3.Jeralyn. "Families of Murder Victims Opposed to Capital Punishment". The Politics of Crime. TalkLeft.com. Retrieved 27 August 2011.
4. "Closing arguments today in Texas dragging-death trial," CNN, February 22, 1999
5."Justice in Jasper," Texas Observer, September 17, 1999
6."Texas sheriff 'knew somebody was murdered because he was black'," CNN, February 16, 1999
7.The officer's account of the initial stages of the investigation through an affidavit filed in Jasper County, Texas on June 9, 1998.
8."Texas NAACP". Archived from the original on April 30, 2007. Retrieved June 19, 2007.
9. Keys, Perryn. "JASPER: THE ROAD BACK: Did prison time turn man into one of Byrd's killers?" Beaumont Enterprise. June 9, 2008. Retrieved on July 23, 2010.
10."Berry, Shawn Allen." Texas Department of Criminal Justice. Retrieved on January 5, 2010.
11.King, Joyce. Hate Crime: The Story of a Dragging in Jasper, Texas. Random House, Inc., 2002. 207. Retrieved from Google Books on November 3, 2010. ISBN 0375421327, 9780375421327.
12."Court TV Online". Retrieved June 19, 2007.
13."Brewer, Lawrence Russell." Texas Department of Criminal Justice. Retrieved on January 5, 2010.
14."Brewer, Lawrence Russell." Texas Department of Criminal Justice. Retrieved on August 25, 2010.
15.Heather Nolan and Jessica Lipscomb (September 22, 2011). "Lawrence Russell Brewer executed in 1998 dragging death". Beaumont Enterprise. Retrieved September 22, 2011.
16.Troy Davis And Lawrence Brewer, A Tale Of Two Executions
17."Justice Fellowship". "Prison Rape - It's No Joke". Retrieved February 9, 2007.
18.Nolan, Pat: "Prison Rape - It's No Joke" Washington Post, June 25, 2009
19."King, John William." Texas Department of Criminal Justice. Retrieved on January 5, 2010.
20."King, John William." Texas Department of Criminal Justice. Retrieved on August 25, 2010.
21.PBS.org
22."The Reliable Source" Annie Groer, Ann Gerhart. The Washington Post. Washington, D.C.: March 18, 1999. pg. C.03
23."Texas governor signs into law hate-crimes bill". The Deseret News. Associated Press: p. A2. May 11, 2001.
24.Obama Signs Defense Policy Bill That Includes 'Hate Crime' Legislation

Further reading: King, Joyce. Hate Crime: The Story of a Dragging in Jasper, Texas. Pantheon, 2002. Temple-Raston, Dina. A Death in Texas: A Story of Race, Murder, and a Small Town's Struggle for Redemption. Henry Holt and Co., January 6, 2002.

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