Brewer v. Lumpkin ( 2023 )

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United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 22-70006 April 27, 2023
____________
Lyle W. Cayce
Brent Ray Brewer, Clerk
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent—Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:15-CV-50
______________________________
Before Jones, Oldham, and Wilson, Circuit Judges.
Edith H. Jones, Circuit Judge:
Brent Ray Brewer was convicted of capital murder and sentenced to
death by a Texas court in 1991. The United States Supreme Court ordered
Brewer resentenced in 2007. After he was sentenced to death a second time,
Brewer exhausted his state remedies and then petitioned for federal habeas
relief. The district court denied his petition and did not certify any questions
for appellate review. Brewer now seeks a certificate of appealability
(“COA”) under 28 U.S.C. § 2253(c)(2). For the following reasons, we
DENY his application for a COA.
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I. Background
On April 26, 1990, then 19-year-old Brent Brewer and his girlfriend,
Kristie Nystrom, approached Robert Laminack outside his flooring store in
Amarillo, Texas and asked for a ride to the Salvation Army. Laminack invited
the young couple to get in his truck; Nystrom took the front seat, and Brewer
sat in the back. While en route, Brewer grabbed Laminack and began to stab
him in the neck with a butterfly knife. Laminack begged for his life while
obeying Brewer’s demand to hand over his keys and wallet. He was wounded
in the carotid artery and jugular vein. After losing consciousness, he bled to
death.
In 1991, Brewer was convicted of capital murder and sentenced to
death. A multi-year saga of direct and collateral challenges to his conviction
and sentence ended in 2007 when the United States Supreme Court, ruling
on the adequacy of jury instructions for the sentencing phase, ordered that
Brewer be resentenced. See Brewer v. Quarterman, 550 U.S. 286, 127 S. Ct.
1706 (2007).
In a 2009 retrial of the sentencing, the state presented many of the
same witnesses and evidence as it had at Brewer’s first capital murder trial.
These included: Robert Laminack’s widow and daughter; numerous crime
scene photographs; blood spatter testimony and other physical evidence,
such as Brewer’s bloody fingerprint on the butterfly knife found at the crime
scene; testimony that Brewer “smirked and giggled” when describing to a
witness how Laminack begged for his life; testimony that Brewer told a
former cellmate that Laminack pleaded “please don’t kill me, Boy” as
Brewer stabbed him; and a photograph of Brewer “shooting the finger” while
exiting the courthouse around the time of his arraignment for Laminack’s
murder. Dr. Richard Coons, a forensic psychiatrist, testified that there was
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a probability that Brewer would commit criminal acts of violence in the
future, as he had opined before at Brewer’s 1991 trial.
Unlike in 1991, Kristie Nystrom, Brewer’s former girlfriend and
accomplice in the murder of Robert Laminack, agreed to testify in order to
obtain a favorable parole consideration. Nystrom gave a chilling firsthand
account of the killing, which contained details the 1991 jury did not hear, such
as that Brewer began to stab Laminack before asking for his wallet or truck
keys.
The defense presented testimony from Brewer’s mother and sister,
who described Brewer’s childhood and teenage years, and numerous
correctional officers, who testified that Brewer had been an exemplary inmate
for nearly two decades both on and off death row. The defense also used
Dr. John Edens, a forensic psychologist, to attack Dr. Coons’s methodology
as having no basis in legitimate science. Finally, in order to counter the
state’s aggravating evidence and show Brewer’s remorse, the defense put
Brewer on the stand. He described his childhood, his former relationship
with Kristie Nystrom, and the murder of Robert Laminack. He said he was
sorry for what he had done to Laminack and his family.
A unanimous jury again found beyond a reasonable doubt that there
was a probability that Brewer would commit criminal acts of violence that
would constitute a continuing threat to society. The jury also found that the
mitigating evidence presented by defense counsel was insufficient to merit a
life sentence. The trial court resentenced Brewer to death.
The Texas Court of Criminal Appeals (“TCCA”) affirmed Brewer’s
sentence. See Brewer v. State, 2011 WL 5881612 (Tex. Crim. App. Nov. 23,
2011). Brewer then sought state habeas corpus review. The state trial court
held an evidentiary hearing and received testimony from Dr. Coons and
Brewer’s two 2009 trial counsel: Anthony Odiorne and Edward Keith, Jr.
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The court entered findings of fact, conclusions of law, and a recommendation
that the TCCA deny habeas relief. The TCCA adopted that
recommendation in large part and denied relief. 1 See Ex parte Brewer,
2014 WL 5388114 (Tex. Crim. App. Sept. 17, 2014).
In March 2020, nearly thirty years after he murdered Robert
Laminack, Brewer filed his second amended petition for a writ of habeas
corpus in federal district court, asserting fourteen claims for relief. 2
The district court adopted and supplemented the magistrate judge’s
extensive findings, conclusions, and recommendations, denied all claims for
relief, and declined to grant Brewer’s request for a COA. Brewer renews his
application for a COA in this court.
II. Standard for Certificate of Appealability
Under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), a state court prisoner must obtain a COA before appealing a
federal district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1)(A).
This is warranted upon a “substantial showing of the denial of a
constitutional right.” Id. § 2253(c)(2). In Miller-El v. Cockrell, the Supreme
Court clarified: “The petitioner must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims
debatable or wrong.” 537 U.S. 322, 338, 123 S. Ct. 1029, 1040 (2003).
As held by the Supreme Court, the grant or denial of a COA turns not on the
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1
The TCCA did not adopt two paragraphs of legal conclusions pertaining to a
disputed autopsy report, which is not at issue in this petition.
2
In 2018, Brewer filed a petition for habeas relief in federal district court and
moved to hold his case in abeyance while he returned to state court to exhaust state habeas
remedies on new claims. Brewer v. Davis, 2018 WL 4585357 (N.D. Tex. Sept. 25, 2018).
The district court granted the motion, and the TCCA subsequently dismissed Brewer’s
new claims under state writ-abuse principles without considering the merits. Ex parte
Brewer, 2019 WL 5420444 (Tex. Crim. App. Oct. 23, 2019).
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ultimate merits of a petitioner’s claims but on whether “a threshold inquiry
into [their] underlying merit” finds the claims “debatable.” Id. at 327, 336,
123 S. Ct. at 1034, 1039; see also Buck v. Davis, 580 U.S. 100, 114–16,
137 S. Ct. 759, 773–74 (2017). Accordingly, this court has made a “general
assessment” of Brewer’s claims. Miller-El, 537 U.S. at 336, 123 S. Ct. at
1039.
And in doing so, this court nevertheless “must be mindful of the
deferential standard of review the district court applied to [the habeas
petition] as required by . . . AEDPA.” Williams v. Stephens, 761 F.3d 561, 566
(5th Cir. 2014) (quoting Miniel v. Cockrell, 339 F.3d 331, 336 (5th Cir. 2003))
(alteration in original). That standard requires that state-court decisions “be
given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773, 130 S. Ct.
1855, 1862 (2010). To prevail, the petitioner must prove that the
adjudication by the state court “resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States” or “resulted in a
decision that was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d). Thus, a “state prisoner must show that the state court’s ruling
. . . was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 562 U.S. 86, 103, 131 S. Ct. 786–87
(2011). Further, “the federal court may review the claim based solely on the
state-court record.” Shinn v. Ramirez, 142 S. Ct. 1718, 1732 (2022).
“The petitioner carries the burden of proof” to overcome this standard,
known as “AEDPA deference,” which is “difficult to meet” by design.
Cullen v. Pinholster, 563 U.S. 170, 181, 131 S. Ct. 1388, 1398 (2011).
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III. Discussion
Brewer raises three ineffective assistance of trial counsel claims in this
court: first, that his 2009 counsel failed to properly challenge the state
expert’s testimony on future dangerousness; second, that counsel neglected
to develop and present a mitigation defense; and third, that counsel did not
adequately investigate and rebut the state’s evidence of his prior bad acts.
To establish that he was denied constitutionally effective assistance of
counsel, Brewer must demonstrate that “(1) counsel’s representation fell
below an objective standard of reasonableness and . . . (2) there is a
reasonable probability that prejudice resulted.” Druery v. Thaler, 647 F.3d
535, 538 (5th Cir. 2011) (citing Strickland v. Washington, 466 U.S. 668, 694,
104 S. Ct. 2052, 2068 (1984)). “Both of these prongs must be proven, and
the failure to prove one of them will defeat the claim, making it unnecessary
to examine the other prong.” Williams, 761 F.3d at 566–67 (citing Strickland,
466 U.S. at 687–88, 104 S. Ct. at 2064–65). For the first prong, Brewer
“must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” Strickland,
466 U.S. at 689, 104 S. Ct. at 2065 (internal quotation mark omitted).
To show prejudice, Brewer “must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694, 104 S. Ct. at 2068. This “requires a
‘substantial,’ not just ‘conceivable,’ likelihood of a different result.”
Pinholster, 563 U.S. at 189, 131 S. Ct. at 1403 (quoting Richter, 562 U.S. at 112,
131 S. Ct. at 791).
A federal court’s review of a state court’s adjudication on the merits
of an ineffective assistance of counsel claim is “doubly deferential” because
we “take a highly deferential look at counsel’s performance [under
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Strickland] through the deferential lens of § 2254(d).” Id. at 190, 131 S. Ct.
at 1403 (internal quotation marks omitted).
A. Expert Testimony on Future Dangerousness
Brewer argues that his 2009 trial counsel were ineffective for failing to
timely object to the expert testimony by Dr. Coons that he constituted a
future threat to society. Brewer contends that because the TCCA later held
Dr. Coons’s testimony inadmissible in Coble v. State, 330 S.W.3d 253 (Tex.
Crim. App. 2010), it likely would have done the same in this case had a timely
objection been made.
The state habeas court found that although counsel failed to preserve
an objection to Dr. Coons’s testimony for appellate review, counsel
reasonably strategized to prevent Dr. Coons from testifying by attacking his
methodology at an evidentiary hearing. 3 The court found further that
counsel’s performance must be “measured against the law in effect at the
time of trial,” and Coble was decided the year after Brewer’s 2009 retrial.
By 2009, Dr. Coons had testified in at least sixteen Texas judicial
proceedings on the special issue of future dangerousness, including Brewer’s
1991 trial. Coble marked the first time that Dr. Coons’s testimony had been
deemed inadmissible. 4
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3
During the voir dire, Brewer’s counsel elicited admissions from Dr. Coons that
he has a “different definition of criminal act of violence than other people in this field,”
that he has never performed “any follow-up . . . to determine whether or not [the]
predictions were accurate,” and that he had not interviewed Brewer in this particular case.
4
In fact, Coble’s counsel were ultimately unsuccessful, because the TCCA held
the admission of Dr. Coons’s testimony there was harmless error. As an aside, the district
court stated that the TCCA’s “primary reason” in Coble for holding Dr. Coons’s
testimony inadmissible “was because Dr. Coons had not evaluated the defendant for 18
years before he testified.” (citing Coble, 330 S.W.3d at 279–80). More completely
considered, the TCCA found a number of additional significant deficiencies in Dr. Coons’s
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Thus, the district court concluded that Brewer’s counsel cannot be
faulted for lacking the “clairvoyance” “to follow the same strategy that had
proved unsuccessful during Coble’s . . . retrial.” Of course, “[c]lairvoyance
is not a required attribute of effective representation.” United States v. Fields,
565 F.3d 290, 295 (5th Cir. 2009). Reasonable jurists could not debate the
district court’s conclusion that the state courts did not act unreasonably in
holding that trial counsel were not ineffective for failing to make what at that
time would have been a futile objection to the introduction of Dr. Coons’s
testimony.
Brewer also alleges that his counsel were ineffective for failing to rebut
Dr. Coons’s testimony with an alternative expert opinion on his future
dangerousness. Specifically, Brewer argues that counsel should have enlisted
Dr. Mark Cunningham, who had previously examined Brewer, or Dr. John
Edens, the defense’s forensic psychologist, to evaluate Brewer afresh.
The state habeas court found that Brewer’s counsel executed a
“reasonable and plausible” strategy to counter Dr. Coons’s testimony: Trial
counsel would “attack Dr. Coons’s testimony and methodology on cross-
examination,” and Dr. Edens would “rebut Dr. Coons’s testimony on direct
examination.” The court articulated several reasons supporting counsel’s
decision to forego an independent expert evaluation of Brewer. These
included: (1) the state would then have been entitled to have its own expert
examine Brewer; (2) the state would likely have attacked the defense expert’s
evaluation, “which would reflect poorly on [Brewer] and distract from the
defense’s attack on Dr. Coons”; and (3) the jury may have viewed “the
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testimony, such as Dr. Coons’s failure to cite any “books, articles, journals, or even other
forensic psychiatrists who practice in this area,” and the dearth of any “objective source
material in [the] record to substantiate Dr. Coons’s methodology.” Coble, 330 S.W.3d at
277.
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defense expert in the same light as Dr. Coons” or “become lost in the
science.” Ultimately, Brewer’s counsel opted to focus the jury’s attention
on the fact that Brewer had not engaged in any violent criminal activity during
his 18 years of incarceration on death row as the “best evidence” that Brewer
“was not a future danger.”
Finally, the state habeas court held that even if counsel’s strategy to
challenge Dr. Coons’s testimony was unsound, and despite any error in
preserving an objection for appeal, Brewer has not shown that he was likely
prejudiced as a result. Specifically, the court concluded that the brutal facts
of the capital murder offense, in addition to several violent episodes from
Brewer’s adolescent and adult years, independently supported the jury’s
verdict on the future dangerousness special issue. Importantly, the 2009 trial
jury heard eyewitness testimony from both Brewer and Nystrom, who
provided detailed and consistent accounts of the gruesome murder—
evidence not presented at the 1991 trial.
Additionally, the state court found that Dr. Coons’s testimony was
“not particularly powerful, certain, or strong” because, among other things,
Dr. Coons admitted before the jury that he had no “statistical data” or
“research to support his opinion” and that he rarely, if ever, followed up “to
determine if his predictions were accurate.” Moreover, Dr. Edens
“effectively rebutted and refuted” the methodological flaws underlying
Dr. Coons’s conclusions regarding “predictions of future dangerousness.”
Dr. Edens emphasized that the predictions are not borne out with any
statistical significance in the behavior of death row inmates. He also
recounted his voluminous scholarship on the subject, as juxtaposed against
Dr. Coons’s scant curriculum vitae. Thus, the court concluded that neither
the absence of Dr. Coons’s testimony nor an independent expert evaluation
submitted on Brewer’s behalf would likely have changed the result.
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Reviewing these findings and the magistrate judge’s
recommendation, which it adopted, the district court held that the state court
reasonably concluded that counsel’s 2009 trial strategy as to Dr. Coons was
reasonable under Strickland. The district court alternatively found the state
court’s rejection of prejudice to be reasonable under Strickland, especially
considering the jury’s opportunity to assess Brewer’s credibility in light of
the eyewitness description of the crime’s brutality. No reasonable jurist
could find the district court’s assessment debatable or wrong. See Slack v.
McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1604 (2000).
B. Mitigating Evidence
Brewer’s second ineffective assistance claim is based upon his
counsel’s alleged failure to investigate potentially mitigating evidence or
prepare an effective mitigation defense. The Supreme Court has interpreted
the Sixth Amendment to require defense counsel “to make reasonable
investigations [into potential mitigating evidence] or to make a reasonable
decision that makes particular investigations unnecessary.” Wiggins v.
Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 2535 (2003) (quoting Strickland,
466 U.S. at 691, 104 S. Ct. at 2066). Brewer argues that he likely would not
have received the death penalty a second time if the jury had seen additional
evidence of his troubled childhood coupled with the results of a mental health
evaluation.
Specifically, Brewer asserts that an adequate investigation would have
produced additional mitigating evidence of neglect by his mother during his
infancy, traumatic incidents of sex play with a male friend and sexual abuse
by a babysitter, and the “full extent” of his biological father’s “violence and
depravity.” He alleges further that his counsel should have submitted a
mental health evaluation, like that performed on him in 1996 by
Dr. Cunningham, to show that Brewer suffered from mental illness.
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Brewer bolsters this claim with a new declaration from 2009 trial counsel
Odiorne, in which Odiorne states “that the defense team did no investigation
of Mr. Brewer’s mental health.”
As an initial matter, neither Dr. Cunningham’s 1996 mental health
evaluation nor Odiorne’s declaration were part of the state habeas record.
Because this claim was adjudicated on the merits by the state court, this new
evidence is barred from federal court consideration under Cullen v. Pinholster.
563 U.S. at 181, 131 S. Ct. at 1398. Further, the declaration is wholly
inconsistent with Odiorne’s testimony before the state habeas court, and, as
such, is “viewed . . . with extreme suspicion.” Summers v. Dretke, 431 F.3d
861, 872 (5th Cir. 2005) (collecting cases).
In rejecting Brewer’s claim, the state habeas court found that his 2009
counsel properly investigated and presented strong mitigating evidence.
With the assistance of in-house investigator Rob Cowie, counsel investigated
and developed a mitigation defense by reviewing the 1991 trial transcript
along with trial counsel’s notes and by traveling to Mississippi to interview
Brewer’s mother and sister, both of whom testified.
The court found that the jury heard evidence of Brewer’s troubled
childhood. Specifically, counsel presented evidence that Brewer’s biological
father, Albert Brewer, was absent during Brewer’s formative years. Brewer’s
step-father, whom his mother married when Brewer was four years old,
“would repeatedly beat him with an extension cord or a belt,” so Brewer
“would often run away from home for months at a time in order to get away
from his step-father.” The jury also learned that Brewer “was diagnosed
with scoliosis” when he was eleven years old, which required extensive
surgery, three weeks in the hospital, and eight weeks in a body brace. Because
this condition prevented him from “playing his beloved sports,” he began
“hanging out with ‘stoners’ and using drugs when he was about twelve years
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old.” Counsel also presented evidence that Albert, who had rejoined the
family when Brewer was fifteen, was “mean, violent, and abusive” to Brewer
and his mother. Albert nearly broke Brewer’s nose with a piece of wood on
one occasion, and Brewer beat Albert with a broom on another “to stop
Albert from hurting” Brewer’s mother. Following “the broom incident,”
Brewer moved cities to live with his grandmother and continued his drug and
alcohol use. While with his grandmother, Brewer wrote a suicide note and
was subsequently committed to a state hospital. The state court also found
that Brewer’s counsel presented mitigating evidence to show that Brewer
had been an exemplary inmate in jail and for eighteen years on death row.
The habeas court concluded that the unoffered mitigating evidence
would have been cumulative of the evidence already presented. United States
v. Bernard, 762 F.3d 467, 476 (5th Cir. 2014) (citing Strickland, 466 U.S. at
687, 104 S. Ct. at 2064) (“A plea for ‘more of the same’ does not, in the
circumstances of this case,” show that counsel “were not functioning as
counsel guaranteed to [petitioner] by the Sixth Amendment.”). Thus,
Brewer could not show how he was prejudiced by its absence. See Howard v.
Davis, 959 F.3d 168, 173 (5th Cir. 2020) (“Cumulative testimony generally
cannot be the basis” of an ineffective assistance of counsel claim.); Norman
v. Stephens, 817 F.3d 226, 233 (5th Cir. 2016).
The district court approved the state court’s implicit finding that
counsel reasonably decided an expert mental health evaluation would have
been unnecessary and even harmful to Brewer’s case. The same sound
strategy undergirding counsel’s decision to forgo an expert examination on
future dangerousness also supported the decision to refuse a mental health
evaluation. Further, “[t]here is no suggestion in the record that Petitioner
suffers from an intellectual disability or that he functions anywhere below the
average range of intellectual functioning. Petitioner’s mental-health records
. . . introduced during his 2009 retrial showed no mental-health referrals
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despite his suicide attempt.” With regard to prejudice, the court emphasized
that given the “graphic and grisly” testimony by Brewer and Nystrom, along
with the state’s other evidence, there is not a “substantial likelihood” that a
mental health evaluation or additional evidence from Brewer’s childhood
would have influenced the jury’s balancing of the aggravating and mitigating
factors. See Bernard, 762 F.3d at 476.
Reasonable jurists could not debate the district court’s conclusion
that, as evidenced in extremely thorough opinions by the state court and
magistrate judge, the state court reasonably applied Strickland in holding that
trial counsel were not ineffective in preparing and presenting a mitigation
defense.
C. Prior Bad Acts
Brewer’s final ineffective assistance claim is that his trial counsel
failed to adequately investigate and rebut the state’s evidence of his future
dangerousness. Brewer presented a similar claim in his subsequent state
habeas application, which the TCCA dismissed as an abuse of the writ
without considering the merits. Ex parte Brewer, 2019 WL 5420444 (Tex.
Crim. Ap. Oct. 23, 2019). Thus, this claim, or portions of it, are barred by
the doctrine of procedural default. See Ramirez, 142 S. Ct. at 1732
(“[F]ederal courts generally decline to hear any federal claim that was not
presented to the state courts consistent with [the State’s] own procedural
rules.” (internal quotation marks omitted, alteration in original)).
Nevertheless, the district court “cut straight to the merits to deny his claim,”
rather than decide whether Brewer could overcome his default. Murphy v.
Davis, 901 F.3d 578, 589 n.4 (5th Cir. 2018).
The Supreme Court has held that constitutionally deficient assistance
can take the form of failing “adequately to investigate the State’s aggravating
evidence, thereby foregoing critical opportunities to rebut the case in
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aggravation.” Andrus v. Texas, 140 S. Ct. 1875, 1881–82 (2020); see also
Rompilla v. Beard, 545 U.S. 374, 385, 125 S. Ct. 2456, 2465 (2005). Brewer
points to three “prior bad acts” from the state’s aggravation case: (1) an
assault against his high school girlfriend that dislocated three discs in her
spine and temporarily paralyzed her arm; (2) an arrest for possessing a
concealed knife in Florida; and (3) the assault against Albert with a broom
handle, which left the man bleeding from the nose, mouth, and side of the
head, and led to his hospitalization. 5 Had his 2009 counsel interviewed the
witnesses supplying this testimony, argues Brewer, counsel would have been
able to garner the evidence needed to undermine the state’s case for future
dangerousness. Brewer then would not have taken the stand.
Brewer supports this claim with six new declarations, including one by
defense investigator Cowie, another by trial counsel Odiorne, and his own
affidavit. All of these are barred under Shinn v. Ramirez. 142 S. Ct. at 1734
(“[U]nder § 2254(e)(2), a federal habeas court may not . . . consider
evidence beyond the state-court record based on ineffective assistance of
state postconviction counsel.”). Further, several should be viewed with
“extreme suspicion” for containing statements that are inconsistent with
previous testimony. Spence v. Johnson, 80 F.3d 989, 1003 (5th Cir. 1996).
The district court found that Brewer’s counsel reasonably decided
“to rely upon their interviews with him” and “on the sworn testimony of
prosecution witnesses when deciding not to interview those witnesses prior
to the 2009 trial.” The court noted that these witnesses testified at Brewer’s
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5
Brewer also alleges that his counsel failed to investigate a fight he had with a
former inmate, in which Brewer threatened to shove a pencil in the man’s eye. It does not
appear that the state submitted any evidence of this fight at Brewer’s 2009 trial. If so,
Brewer’s counsel cannot be faulted for failing to rebut aggravating evidence never seen by
the jury. Regardless, the district court found that an interview with the inmate would not
have softened the severity of Brewer’s threat.
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1991 trial and gave the same or very similar testimony at his 2009 trial, so the
additional details that could have been gleaned from fresh interviews would
have been minor. Taking them one by one, the district court found first that
even if a new interview with Brewer’s high school girlfriend revealed that the
assault was out of character and that he did not intend to hurt her, the
testimony of the severe injury he inflicted upon her would remain unchanged.
Next, any new evidence gleaned from an interview with the alleged owner of
the knife for which Brewer was arrested in Florida would have been
cumulative. Similarly, the district court found that additional evidence of
Albert’s “violence and depravity” would have been cumulative.
The district court then emphasized that the state’s case in aggravation
was significantly stronger in 2009 than it was in 1991, given Nystrom’s
eyewitness account of the murder. The district court concluded that the
decision to put Brewer on the stand to show the jury his remorse, empathy,
and non-violence during incarceration, rather than to quibble with minor
details of the prosecution’s witnesses’ testimony, was an eminently
reasonable one.
“There are countless ways to provide effective assistance in any given
case,” and the district court concluded that Brewer’s 2009 trial counsel
found and employed one. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
Reasonable jurists could not debate the district court’s assessment of this
claim.
For the foregoing reasons, Brewer’s request for a COA is DENIED.
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