Brewer v. Johnson

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-10059
BRENT RAY BREWER,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON,
Respondent-Appellee.
Appeal from the United States District Court
For the Northern District of Texas
April 17, 1998
Before SMITH, EMILIO M. GARZA and PARKER, Circuit Judges.
PER CURIAM:
Petitioner Brent Ray Brewer, a Texas prisoner under sentence
of death, appeals the order lifting his stay of execution and
dismissing his federal habeas corpus action. We affirm.
PROCEDURAL HISTORY
On June 30, 1995, Brewer filed a motion to stay his execution
and requested that the court appoint counsel for the purpose of
filing a petition for federal habeas corpus. The district court
granted a stay of execution and appointed the Federal Public
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Defender (“FPD”) to represent Brewer. On January 22, 1996, Brewer
filed a Notification of Intent to Return to State Court to Apply
for State Habeas Corpus Relief and a motion to hold the federal
proceedings in abeyance, to continue appointment of federally
funded counsel and to permit federal appointed counsel to work on
unexhausted claims in the state court of Texas. On the same date,
Brewer filed his second request in state court for the appointment
of counsel to represent him in state court.
On April 24, 1996, the Antiterrorism and Effective Death
Penalty Act (“AEDPA”) was signed into law.
On November 22, 1996, the State of Texas appointed attorney
Rick Keffler to represent Brewer in seeking to obtain or exhaust
state remedies. Brewer, with the assistance of Keffler, filed an
application for writ of habeas corpus in state court on April 23,
1997 and an amended application on August 19, 1997. That
application is currently pending.
On January 10, 1997, the district court dismissed the federal
proceeding without prejudice and lifted the federal stay of
execution. Brewer appealed. This court ordered that the appeal
proceed without the necessity of a Certificate of Appealability or
Certificate of Probable Cause.
ANALYSIS
The district court’s denial of a motion to abate federal
proceedings pending the exhaustion of state remedies and its order
of dismissal without prejudice are reviewed for abuse of
discretion. See Sterling v. Scott, 57 F.3d 451, 454 (5th Cir.
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1995); Johnson v. Texas, 878 F.2d 904, 906 (5th Cir. 1989).
Likewise, the district court’s refusal to grant a stay in a habeas
proceeding is reviewed for abuse of discretion. See McFarland v.
Scott, 512 U.S. 849, 858 (1994).
Brewer contends that the district court abused its discretion
when it dismissed his federal action, denying his requests to hold
his federal proceeding in abeyance, to continue the stay of
execution, and to allow federally appointed counsel to continue to
represent him in the federal proceeding1 while he pursues his state
remedies. In McFarland v. Scott, 512 U.S. 849, 858 (1994), the
Supreme Court held that the right to federally appointed counsel in
post conviction habeas challenges to death sentences exists
regardless of whether a federal petition is pending, stating that
“the right to counsel necessarily includes the right for that
counsel meaningfully to research and present a defendant’s habeas
claims.” Id.
The district court clearly had authority to either abate or
dismiss the action. See, e.g., Coleman v. Thompson, 501 U.S. 722,
731 (1991)(“This Court has long held that a state prisoner’s
federal habeas petition should be dismissed if the prisoner has not
exhausted available state remedies as to any of his federal
claims.”); see also, e.g., Johnson v. Texas, 878 F.2d 904 (5th Cir.
1989)(treating a § 1983 action as a § 2254 action and affirming the
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We note that Brewer is not seeking to use federally funded
counsel to litigate his state claims. Therefore, the decision in
Sterling v. Scott, 57 F.3d 451, 453 (5th Cir. 1995), barring such
use does not expressly address the issue presented in this appeal.
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district court’s decision to hold the action in abeyance pending
exhaustion.)
A. Discretion to dismiss or abate
Brewer begins by arguing that the district court made a
mistake of law by failing to recognize that it had discretion to
abate the proceedings rather than dismiss them. Brewer focuses on
language in the Order of Dismissal and Lifting Stay of Execution:
The Court . . . finds that this action must be dismissed
for failure to exhaust state court remedies pursuant to
Richardson v. Procunier, 762 F.2d 429, 431 (5th Cir.
1985).
Brewer correctly points out that neither Richardson, nor any other
controlling precedent dictated the dismissal of the federal action
in this case. However, Brewer’s argument fails because, after
reviewing the record as a whole, it is clear to us that the
district court recognized its authority to dismiss or abate,
weighed the factors that supported each of the possible outcomes
and exercised its discretion to dismiss. Specifically, the
magistrate’s report and recommendation, adopted by the district
court, considered the various arguments and authorities supporting
abatement put forward by Brewer, and rejected them on their merits.
B. Did the district court abuse its discretion?
Brewer argues that the one year statute of limitations imposed
by the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. §
2244(d)(1), (“AEDPA”) may deprive him of the opportunity for
meaningful representation in his federal habeas petition unless the
order of dismissal is reversed.
The time during which a properly filed application for state
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post conviction or other collateral review with respect to Brewer’s
conviction is pending is not counted toward the limitations period.
See 28 U.S.C. § 2244(d)(2). Therefore, the limitations period is
currently tolled by the pending state habeas petition, regardless
of the dismissal of the federal case. Brewer has not established
that the AEDPA limitations period will preclude the refiling of his
federal proceeding after he has properly exhausted his state
remedies. For that reason, we hold that the district court did not
abuse its discretion in dismissing Brewer’s federal action.
AFFIRMED.
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