Donald Broadnax v. Commissioner, Alabama Department of Corrections ( 2021 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-12600
________________________
D.C. Docket No. 2:13-cv-01142-AKK
DONALD BROADNAX,
Petitioner - Appellant,
versus
COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,
Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(May 7, 2021)
Before WILSON, MARTIN, and JILL PRYOR, Circuit Judges.
MARTIN, Circuit Judge:
Donald Broadnax, an Alabama death row prisoner, appeals the District
Court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Mr.
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Broadnax raises three issues in this appeal. First, he says trial counsel was
ineffective for failing to investigate his alibi for the time of the crime. Second, Mr.
Broadnax argues that Alabama’s application of its hearsay rules to exclude
testimony at his state habeas evidentiary hearing violated his due process rights.
Finally, he argues the prosecutor engaged in misconduct by shifting the burden of
proof from the state to Mr. Broadnax. After careful consideration, and with the
benefit of oral argument, we affirm the denial of Mr. Broadnax’s habeas petition.
I. BACKGROUND AND PROCEDURAL HISTORY
A. TRIAL AND OFFENSE CONDUCT
In April 1996, Mr. Broadnax was serving a sentence of 99 years’
imprisonment and lived at a prison work release center in Alexander City,
Alabama. Broadnax v. State (“Broadnax I”), 825 So. 2d 134, 150 (Ala. Crim. App.
2000). He was assigned to work at Wellborn Forest Products, also in Alexander
City.1 Id. Wellborn made wooden furniture like cabinets, doors, and other items.
Mr. Broadnax was married to Hector Jan Stamps Broadnax, and Jan would on
occasion have dinner with Broadnax while he was on his break at Wellborn. Id.One of these occasions was April 25, 1996. See id.1
Different courts have used two different spellings of Wellborn—“Welborn” and
“Wellborn.” This opinion will use the latter spelling.
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At around 6:00 p.m. that day, Jan brought her three-year-old grandson,
DeAngelo Stamps, with her to Wellborn to visit Mr. Broadnax and bring him
dinner. Id. at 150, 201. A few hours later, around 8:50 p.m., Jan’s car was
discovered in Birmingham, Alabama. Id. at 150–51. Jan and DeAngelo were
found beaten to death in the vehicle’s locked trunk. Id. at 151. The evidence
shows that Alexander City, where Mr. Broadnax lived and worked, is about an
hour and a half drive from Birmingham where Jan and DeAngelo were found.
The next day, Birmingham detectives questioned Mr. Broadnax at the
Alexander City work release center. Mr. Broadnax told detectives he last saw Jan
and DeAngelo at around 8:20 p.m. the previous night, when they left after bringing
him some food. Mr. Broadnax said that after Jan and DeAngelo left, he remained
at Wellborn, working and making at least one phone call. He denied going to
Birmingham and denied any involvement in the murders. Nevertheless, Mr.
Broadnax was arrested for the murders a few days later.
Trial began in June 1997. Mr. Broadnax was represented by William
Brower and Darryl Bender, two lawyers appointed to represent him. The state’s
theory of the case was that Jan did not know Mr. Broadnax was serving a prison
sentence for murder until he was turned down for parole. After she learned the
truth, the state said, she planned to divorce Mr. Broadnax and stop helping him in
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his efforts to obtain parole. The state said this was the reason Mr. Broadnax killed
her.
The state’s evidence was circumstantial, but three witnesses were called to
testify about what they saw at Wellborn that night. Johnny Baker, a prisoner at the
Alexander City work release center who was Mr. Broadnax’s coworker at
Wellborn, testified that he saw Broadnax driving Jan’s car at Wellborn on the
evening of April 25, 1996. Broadnax I, 825 So. 2d at 150. According to Mr.
Baker, Mr. Broadnax stopped to talk and Baker saw a child in the backseat. Id.Mr. Baker testified that he was “pretty sure” the child was alive when he spoke
with Mr. Broadnax. Id.Next, the state offered witnesses that tended to show Mr. Broadnax was seen
returning to Wellborn within a time window that would have permitted him to
drive to Birmingham and back. Mark Chastain, a security guard at Wellborn, and
Mark’s wife Kathy, testified they saw Mr. Broadnax at Wellborn between 10:30
and 10:45 p.m. that night. Id. Mark was in charge of locking the building and
setting the alarm system for the night. After he set the alarm, Mark saw someone
run past him in the shop. Mark asked the person who they were, and the person
“called back . . . ‘It’s me, Donald.’” Mark told Mr. Broadnax they needed to hurry
and get out before the alarm sounded, so the two men left the building. Once they
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were outside, Mr. Broadnax asked Mark to call the work release center van for
him. Mark couldn’t go back into Wellborn to use the phone, so he stopped at a gas
station a mile down the road and called the work release center and told them to
come get Mr. Broadnax.
Meanwhile, Kathy Chastain had been in the Wellborn parking lot waiting to
pick up Mark. As Kathy was waiting, she saw a white truck pull into the parking
lot. A man got out and entered Wellborn carrying a small cooler.2 A few minutes
later, Mark came out with the same person Kathy had seen going inside.
The jury also heard testimony about physical evidence from detectives and
crime scene analysts. Two pieces of evidence were found at the Alexander City
work release center: a work uniform that said “Donald” on the shirt and a pair of
Red Wing brand boots. Broadnax I, 825 So. 2d at 151. There was blood on both
items. Id. DNA tests performed on the shirt indicated the blood belonged to Jan
and DeAngelo. Id. Another piece of evidence was found at Wellborn a few days
later. Employees turned in an earring, which was found outside the back door near
where employees would take their breaks. Id. The Wellborn earring matched an
earring found on the rear floorboard of Jan’s car in Birmingham. Id. Finally, a
2
The jury heard testimony that when Jan left her house on April 25, she took plastic
containers full of food to bring to Mr. Broadnax. Officers later collected the containers, with the
food still inside, from Wellborn.
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detective testified that Mr. Broadnax had time to travel from Wellborn in
Alexander City to where Jan’s car was found in Birmingham within the time frame
indicated by the state’s evidence. Id.Mr. Broadnax’s attorneys did not present any evidence to rebut the state’s
case. They did, however, emphasize the absence of evidence directly implicating
Mr. Broadnax, and cross-examine witnesses to undermine the state’s circumstantial
evidence. Trial counsel also argued that Mr. Broadnax had an alibi and that he
could not have driven from Alexander City to Birmingham and back within the
relevant time frame.
On June 6, 1997, after deliberating for less than two hours, the jury returned
with its verdict. Mr. Broadnax was convicted of four counts of capital murder for
the deaths of Jan and DeAngelo. Broadnax v. State (“Broadnax III”), 130 So. 3d
1232, 1236 (Ala. Ct. Crim. App. 2013). The penalty phase began immediately
after the jury’s verdict. The state relied on the evidence it presented during the
guilt phase. Mr. Broadnax presented only the testimony of his sister, Dorothy
McKinstry. Dorothy told the jury about Mr. Broadnax’s childhood. Essentially,
he “didn’t have a childhood.”
After deliberating for 24 minutes, the jury unanimously recommended Mr.
Broadnax be sentenced to death. Broadnax III, 130 So. 3d at 1236. The trial court
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followed the jury’s recommendation. Id. In its sentencing order, the trial court
said it found four aggravating circumstances. The trial court did not find any
statutory mitigating circumstances. Even when taking Dorothy McKinstry’s
testimony into account, the trial court found “beyond a reasonable doubt and to a
moral certainty that the aggravating circumstances outweigh the mitigating
circumstances and [are] sufficient to uphold the jury’s recommendation of
punishment at death.” See Broadnax I, 825 So. 2d at 233 (Appendix A, corrected
sentencing order).
The Alabama Court of Criminal Appeals (“CCA”) ultimately affirmed Mr.
Broadnax’s convictions and sentence. See Broadnax I, 825 So. 2d at 222(affirming conviction); see id. at 226 (affirming sentence following remand). The
Alabama Supreme Court granted certiorari and affirmed the CCA’s decision. Ex
parte Broadnax, 825 So. 2d 233, 235, 237 (Ala. 2001). The United States Supreme
Court denied certiorari. Broadnax v. Alabama, 536 U.S. 964, 122 S. Ct. 2675(2002) (Mem.).
B. STATE POSTCONVICTION
On June 25, 2003, Mr. Broadnax timely filed a state postconviction motion
under Alabama Rule of Criminal Procedure 32, which challenged his convictions
and sentence. Broadnax III, 130 So. 3d at 1239. The first of two evidentiary
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hearings was held on May 23, 2005. Id. at 1240. Mr. Broadnax presented
testimony from eight witnesses. Relevant to his claims in this appeal, Mr. Bender
and Mr. Brower, Mr. Broadnax’s trial counsel, testified about their work on
Broadnax’s case.
The Rule 32 court found that the performance of Mr. Broadnax’s trial
counsel was not deficient. The court also found Mr. Broadnax could not show
prejudice. On June 14, 2005, the Rule 32 court issued a final order denying Mr.
Broadnax’s Rule 32 petition.
Mr. Broadnax appealed this decision to the CCA, which reversed the Rule
32 court, saying that the court made a procedural error. The CCA remanded Mr.
Broadnax’s case for further proceedings. Broadnax III, 130 So. 3d at 1240; see
Broadnax v. State (“Broadnax II”), 987 So. 2d 631, 642 (Ala. Ct. Crim. App.
2007). Back before the Rule 32 court, Mr. Broadnax filed an amended petition
asserting additional claims. The Rule 32 court ordered a second evidentiary
hearing limited to issues of ineffective assistance of counsel in the guilt and
penalty phases of trial. The second hearing was held on March 14 and 15, 2011.
Mr. Broadnax presented the testimony of an additional eight witnesses. In
pertinent part, Mr. Broadnax raised a new guilt-phase theory, arguing that trial
counsel were ineffective for failing to investigate his alibi. He claimed he was at
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the work release center in Alexander City between 9:00 and 10:00 p.m. on the
night of the murders and therefore could not have possibly been in Birmingham
around 8:50 p.m. to abandon the car containing Jan’s and DeAngelo’s bodies. In
support of this theory, Mr. Broadnax presented witnesses who said they saw him at
the work release center and offered a document that prisoners used to log the time
they left the center and the time they returned. The prisoner sign-in log indicated
that Mr. Broadnax left the work release center at 5:30 a.m. for the “c. shop,” or
cabinet shop (meaning Wellborn), and returned at 9:00 p.m. Mr. Broadnax also
offered evidence to show counsel did not properly investigate mitigating evidence
for sentencing. This evidence included, among other things, testimony from Dr.
Kenneth Benedict, an expert in psychology, about intellectual disability tests he
administered to Mr. Broadnax.
The state introduced two exhibits to rebut Mr. Broadnax’s alibi evidence.
First, the state offered Mr. Broadnax’s original statement he gave to police the day
after the murders. In this statement, he told police he stayed at Wellborn after his
shift because Jan was bringing him food. He tried calling Jan around 10:30 p.m. to
make sure she got home safe when a man named Mark turned off the lights and
told Mr. Broadnax they had to hurry and get out of the building because the alarm
was set. The second exhibit was the Alexander City work release center log of
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prisoners’ comings and goings. This log was kept by the officers and indicated
Mr. Broadnax returned to the work release center at 11:50 p.m.
On May 6, 2011, the Rule 32 court issued its final order denying relief on
Mr. Broadnax’s petition. He appealed and the CCA affirmed the denial of relief on
February 15, 2013. Broadnax III, 130 So. 3d at 1268.
C. FEDERAL HABEAS
Mr. Broadnax filed his federal habeas petition on June 17, 2013. Relevant to
this appeal, he raised three claims. First, Mr. Broadnax raised a guilt-phase
ineffective assistance claim. He said that trial counsel did not conduct a reasonable
investigation related to the guilt phase because counsel did not speak with anyone
at the Alexander City work release center. He said the CCA placed an improper
burden of proof on him by imposing “an outcome-determinative burden . . . to
establish his innocence” to meet the prejudice requirement under Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Second, he said Alabama’s
evidentiary rule prohibiting hearsay evidence during Rule 32 hearings—
specifically, in relation to the background information Dr. Benedict would have
discussed—violated his due process rights. Finally, Mr. Broadnax argued that the
state shifted the burden of proof from it to him by asking whether he presented any
evidence or explanation of what happened.
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The District Court denied the federal petition, and denied Mr. Broadnax’s
Rule 59 motion to reconsider the final judgment. Mr. Broadnax timely appealed.
II. STANDARD OF REVIEW
We review de novo a district court’s denial of a habeas corpus petition.
Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir. 2010). A petitioner is entitled to
habeas relief only if his claim is meritorious and the state court’s resolution of that
claim was contrary to, or an unreasonable application of, clearly established
Supreme Court precedent, or was based on an unreasonable determination of the
facts presented in the state court proceeding. 28 U.S.C. § 2254(d).
III. DISCUSSION
A. THE CCA’S DENIAL OF MR. BROADNAX’S GUILT-PHASE
INEFFECTIVE ASSISTANCE CLAIM WAS NOT AN UNREASONABLE
DETERMINATION OF THE FACTS OR CONTRARY TO CLEARLY
ESTABLISHED LAW
The CCA upheld the Rule 32 court’s three findings resulting in the denial of
this ineffective assistance claim. Broadnax III, 130 So. 3d at 1255–60. First, the
CCA agreed with the Rule 32 court that because Mr. Broadnax failed to call either
Mr. Brower or Mr. Bender to testify at the second evidentiary hearing, the record
was silent as to trial counsel’s reasons for their alleged failure to investigate and
present evidence showing Broadnax was at the work release center at 9:00 p.m. Id.at 1255–56. Second, the CCA upheld the Rule 32 court’s finding that Mr.
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Broadnax failed to prove counsel’s performance was deficient, because neither Mr.
Brower nor Mr. Bender “had any reason whatsoever to think that an investigation
into the possibility that Broadnax was somewhere other than Welborn at 9:00
p.m.” was necessary, based on Broadnax’s statements that he was at Wellborn until
around 10:45 p.m. Id. at 1256–58. Finally, the CCA agreed that the testimony at
the second evidentiary hearing “failed to prove that [Broadnax] was at the work-
release facility at 9:00 p.m.,” such that Mr. Broadnax failed to prove he was
prejudiced by counsel’s conduct. Id. at 1258–60.
Mr. Broadnax argues that the CCA’s decisions were objectively
unreasonable. First, he claims the CCA misapplied Strickland because Strickland
does not limit proof of counsel’s deficient performance to counsel’s own
testimony. Second, he says the CCA’s ruling that counsel properly limited the
scope of their investigation based on his statements misapplies Strickland, because
that precedent “requires that counsel undertake reasonable investigations.” Finally,
Mr. Broadnax argues that the CCA improperly discounted the evidence he
provided to support his alibi.
1. Legal Standard
To prevail on an ineffective assistance of counsel claim, a habeas petitioner
must show both that his counsel’s performance was deficient and that counsel’s
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deficient performance prejudiced him. See Strickland, 466 U.S. at 687, 104 S. Ct.
at 2064. A petitioner must overcome the presumption that, under the
circumstances, the challenged action “might be considered sound trial strategy.”
Id. at 689, 104 S. Ct. at 2065 (quotation marks omitted). “[S]trategic choices made
after thorough investigation of law and facts relevant to plausible options are
virtually unchallengeable,” but “strategic choices made after less than complete
investigation are reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.” Id. at 690–91, 104 S. Ct. at
2066.
To establish prejudice, a petitioner must show “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at
2068. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. The inquiry into prejudice at the guilt phase still
“requires us to evaluate the totality of the evidence—both that adduced at trial, and
the evidence adduced in the habeas proceedings.” Reaves v. Sec’y, Fla. Dep't of
Corr., 717 F.3d 886, 901 (11th Cir. 2013) (quotation marks omitted) (analyzing
guilt-phase ineffective assistance claim).
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2. Trial Counsel’s Performance
Mr. Broadnax first argues the CCA unreasonably applied Strickland by
presuming counsel was competent “absent more specific questioning about why
counsel had not offered evidence to support a particular alibi.” Although this
argument seems persuasive at first glance, it ultimately fails because Mr. Broadnax
has offered no evidence to show counsel should have investigated an alibi that
contradicted the alibi Broadnax told the police and counsel in the beginning.
On this record, we cannot conclude the CCA unreasonably applied
Strickland by finding counsel’s performance was not deficient. However, it is first
worth noting the CCA improperly emphasized the fact that trial counsel “were
never specifically questioned” about their failure to investigate an alibi defense.
See Broadnax III, 130 So. 3d at 1255–56. Mr. Broadnax did not raise the claim
that trial counsel were ineffective for failing to investigate an alibi until he filed his
second amended Rule 32 petition. Id. at 1255. And he made this filing only after
the first evidentiary hearing when Mr. Brower and Mr. Bender testified. See id.Because the lawyers were not called as witnesses at the second evidentiary hearing,
they were never asked about their investigation into this alibi. Nevertheless, the
record is not completely silent about their investigation, and counsel’s lack of
investigation is troubling. For example, counsel filed no motions, including the
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motion for funds to hire an investigator, until May 9, 1997. The court granted the
motion for funds on May 14. This was mere weeks before voir dire began on June
2. Beyond that, counsel did not appear to investigate Mr. Broadnax’s statement
that he was speaking with someone on the phone at Wellborn around 9:00 p.m.,
because the state surprised defense counsel with phone records (which showed no
call was placed) on the last day of trial.3 Troubling though this lack of
investigation may be, Mr. Broadnax does not make these arguments here in this
appeal because they do not further the alibi he asserted before the Rule 32 court.
In relation to the specific alibi claim before us, this record does not support
the conclusion that the CCA unreasonably determined “the record is ambiguous”
and presumed counsel exercised reasonable professional judgment. See Broadnax
III, 130 So. 3d at 1256. Even though counsel did not officially retain an
investigator until mere weeks before trial, Mr. Bender testified that the investigator
probably began to work on Mr. Broadnax’s case before the motion for funds to hire
an investigator was granted. Mr. Brower testified that the investigator “started
fairly quickly after the preliminary hearing,” and the reason they waited to file
pretrial motions until May was “[b]ecause that’s when the judge asked us to file
3
Trial counsel objected at trial on the grounds that they did not receive the phone records
until the week of trial at the earliest, and the morning of the day before the verdict, at the latest.
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them.” The record also indicates that counsel instructed the investigator “to talk to
people in the Elyton Village area who may have seen any part of the crime, . . . and
to talk to people at the work release center” or at Wellborn. This record is silent as
to any failure on the investigator’s part, and the only evidence appears to show
there simply was no exculpatory evidence to discover. Mr. Bender said the
investigation was “[n]ot a whole lot” of assistance “because there was just so little
to what we could find relative to this particular crime. It happened in a confined
setting. And so the people involved were, the number was restricted.” Based on
these facts, we cannot conclude counsel’s investigation was unreasonable. Thus,
the CCA reasonably presumed counsel’s performance was not deficient. See
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 (explaining that courts “must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance”).
Second, the CCA did not make an unreasonable determination of the facts
when it found Mr. Broadnax failed to prove counsel’s alibi investigation was
deficient. See Broadnax III, 130 So. 3d at 1256–58. The CCA upheld the Rule 32
court’s findings that Mr. Broadnax’s new alibi was inconsistent with the alibi he
offered at trial, so counsel merely performed a reasonable investigation based on
the information Broadnax supplied. See id. at 1249, 1256–57. At trial, the defense
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theory was that Mr. Broadnax was present at Wellborn the whole night. The
defense theory now proffered is that Mr. Broadnax was back at the work release
center around 9:00 p.m. See id. at 1258. The CCA said that based on Mr.
Broadnax’s statements to police and to counsel, “neither Brower nor Bender had
any reason whatsoever to think that an investigation into the possibility that
Broadnax was somewhere other than Welborn at 9:00 p.m. the night of the murders
was necessary.” Id. This seems right to us.
The information provided by a defendant with regard to any possible
defenses is relevant to the scope of counsel’s investigation. Pooler v. Sec’y, Fla.
Dep’t of Corr., 702 F.3d 1252, 1269–70 (11th Cir. 2012) (citing Strickland, 466
U.S. at 691, 104 S. Ct. at 2066). Because Broadnax did “not mention” he was at
the work release center at the time of the murders, his “lawyer[s] [were] not
ineffective for failing to discover or to offer [such] evidence.” Newland v. Hall,
527 F.3d 1162, 1202 (11th Cir. 2008) (quotation marks omitted); see also Callahan
v. Campbell, 427 F.3d 897, 934–35 (11th Cir. 2005) (holding counsel’s
investigation was reasonable when defendant did not tell counsel he was abused
and there was no documentation of abuse in records counsel obtained). And, to the
extent Mr. Broadnax argues that a reasonable investigation required counsel to at
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least interview people at the work release center or seek records there, Broadnax
cannot show prejudice, as described below.
3. Prejudice
Mr. Broadnax argues that the CCA’s finding that he “failed to prove” he was
actually at the work release center at 9:00 p.m. is objectively unreasonable because
(1) that finding fixated on 9:00 p.m. to the exclusion of other relevant evidence;
(2) factual inconsistencies in the trial and postconviction evidence do not foreclose
the existence of reasonable doubt; and (3) the Rule 32 court made “wholly
speculative and adverse credibility assessments” about whether jurors would have
believed Broadnax’s exculpatory evidence.
Mr. Broadnax’s first argument fails. The only “relevant alibi evidence” he
specifically points to as being excluded is the affidavit of Phillip Holsemback, who
was also incarcerated at the Alexander City work release center. Mr. Holsemback
did say he saw Mr. Broadnax in the sergeant’s office before 10:00 p.m. on April
25, 1996. But most of the affidavits Mr. Broadnax offered, including Mr.
Holsemback’s affidavit, were only proffered to the Rule 32 court and never entered
into evidence. Mr. Broadnax did not challenge this evidentiary ruling on appeal to
the CCA. See Broadnax III, 130 So. 3d at 1250 n.15. Neither has he argued—
before us or the District Court—that the state courts erred by not considering the
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affidavits on appeal. We simply cannot consider the affidavits for the first time
now.
Mr. Broadnax also takes issue with the CCA’s finding that the prisoner sign-
in log, which indicates Broadnax signed into the work release center at 9:00 p.m.,
could have been altered. He says this finding “pretermitted consideration of
several material facts” in witnesses’ testimony. But this argument fails because the
function of a trial court is to weigh inconsistencies in the evidence. And this is
what the Rule 32 court (as affirmed by the CCA) did. Broadnax III, 130 So. 3d at1258–59. The CCA held that none of the witness testimony “indicated that anyone
saw Broadnax at the work-release facility at 9:00 p.m.” Id. at 1259.
This finding is not unreasonable. Marcus Whetstone, an officer, testified he
remembered seeing Mr. Broadnax on April 25, 1996, sometime before he
conducted the last head count, which was around 11:00 p.m. or midnight. James
Smith, a prisoner, remembers seeing Mr. Broadnax around 11:00 p.m. in the
sergeant’s office as the sergeant told him the news about Jan. Floyd Cumbie, an
officer, did not see Mr. Broadnax but remembered the head count conducted
around 9:00 p.m. cleared and no prisoners were missing. Yet Mr. Cumbie also
admitted that if Mr. Broadnax requested to work late (as he claimed before the
Rule 32 court), it was possible Broadnax would not have been deemed missing at
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the 9:00 p.m. head count. Mr. Broadnax points to Donald Bowden’s testimony—
that Mr. Bowden picked Broadnax up at Wellborn between 9:00 and 10:00 p.m.—
as hard evidence contradicting the state’s trial theory. But the CCA upheld the
Rule 32 court’s finding that Mr. Bowden’s testimony conflicted with the work
release log, which showed Bowden made only one trip at 9:00 p.m., and Mr.
Broadnax was not listed on the work release log as being present on that trip.
Broadnax III, 130 So. 3d at 1258–59. Rather, the log shows Mr. Bowden left with
three prisoners at 9:00 p.m. (and presumably dropped them somewhere), picked up
Roger Stolz and an R. Williams, and returned with Stolz and Williams at 10:45
p.m. The log also shows Mr. Bowden going out “to C. shop” at 11:12 and
returning with Mr. Broadnax and another prisoner at 11:50 p.m.
Based on this evidence, the CCA held that Mr. Broadnax failed to prove that
he was “at the work-release center ‘at a time which would have made it impossible
for him to have committed a murder in Birmingham’ as he alleges.” Broadnax III,
130 So. 3d at 1260. This also shows that although the CCA looked at the 9:00 p.m.
mark based on Mr. Broadnax’s Rule 32 theory, it did not “fixate” on that time to
the exclusion of other evidence. We therefore cannot disagree with the CCA’s
decision to uphold the Rule 32 court’s resolution of conflicting testimony and
evidence. See Nejad v. Att’y Gen., State of Ga., 830 F.3d 1280, 1292 (11th Cir.
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2016) (holding that when a state court is “presented with squarely conflicting
testimony on [a] critical factual dispute,” we are “powerless to revisit [the state
court’s determination] on federal habeas review” absent “clear and convincing
evidence in the record to rebut this credibility judgment”).
Second, Mr. Broadnax says that factual inconsistencies in the trial and
postconviction evidence do not foreclose the existence of reasonable doubt. But,
as explained above, we are bound by the Rule 32 court’s findings after it weighed
the evidence. Neither did the CCA obviously misstate the prejudice standard. It
looked at whether the Rule 32 evidence refuted or contradicted the state’s theory
that Mr. Broadnax could make it to Birmingham and back within the timeframe
reflected by the evidence, such that the jury would have a reasonable doubt
respecting guilt. See Broadnax III, 130 So. 3d at 1260 (holding that because Mr.
Broadnax failed to prove he was at the work release center at 9:00 p.m., he failed
to show it was “impossible for him to have committed a murder in Birmingham”).
Mr. Broadnax’s third argument, that the Rule 32 court made “wholly
speculative and adverse credibility assessments” about whether jurors would have
believed Broadnax’s exculpatory evidence, fares no better. Mr. Broadnax points to
the CCA’s decision to uphold the findings that (1) Mr. Bowden was not credible;
and (2) the “infer[ence]” that “the jury surely would have” reached based on the
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inconsistencies between the work release and prisoner sign-in logs is that “when
Broadnax returned to the center at 11:50 p.m. he simply wrote down ‘9:00.’”
Broadnax III, 130 So. 3d at 1259. But again, we must defer to the Rule 32 court’s
credibility determinations unless they are clearly erroneous. See Consalvo v. Sec’y
for Dep’t of Corr., 664 F.3d 842, 845 (11th Cir. 2011) (per curiam) (“Determining
the credibility of witnesses is the province and function of the state
[postconviction] courts . . . .”); see Landers v. Warden, 776 F.3d 1288, 1294 (11th
Cir. 2015). Mr. Broadnax has not argued that those findings are unreasonable
determinations of the facts, and we see no basis in this Circuit’s precedent to
conclude that the CCA’s decision is contrary to clearly established law. In sum,
Mr. Broadnax has not established prejudice.
* * *
Because Mr. Broadnax has failed to show the CCA’s denial of his guilt-
phase ineffective assistance claim was based on an unreasonable determination of
the facts, or was contrary to, or an unreasonable application of, clearly established
federal law, we must affirm the District Court’s denial of this claim.
B. FEDERAL LAW DOES NOT CLEARLY ESTABLISH THAT ALABAMA’S
HEARSAY RULES CREATE A DUE PROCESS VIOLATION
Mr. Broadnax also argues the CCA unreasonably rejected his argument that
the Rule 32 court violated his due process rights when, citing hearsay grounds, it
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prohibited Dr. Benedict from testifying about statements from Broadnax and
Broadnax’s family. At the second evidentiary hearing before the Rule 32 court,
Mr. Broadnax called Dr. Benedict as an expert witness to testify about intellectual
disability tests Benedict administered to Broadnax.
Before Dr. Benedict was asked about Mr. Broadnax’s test results, the state
moved to prevent Benedict from testifying to hearsay evidence under Waldrop v.
State, 987 So. 2d 1186 (Ala. Crim. App. 2007). In Waldrop, the CCA confirmed
that because the Alabama Rules of Evidence apply to Rule 32 proceedings, hearsay
testimony must be excluded even though it would have been admissible if offered
during the penalty phase of trial. Id. at 1190; see also Whatley v. State, 146 So. 3d
437, 486 (Ala. Ct. Crim. App. 2010) (“The Rules of Evidence to not apply to
sentencing hearings.” (citing Ala. R. Evid. 1101(b)(3)). The state said that because
information Dr. Benedict gained from speaking with Mr. Broadnax and his family
members is not subject to cross-examination, Broadnax could not “back door
hearsay in through this psychologist.”
Ultimately, the court agreed that although Dr. Benedict could have testified
about what he learned at sentencing, Rule 32 evidentiary rules prohibited any
information Benedict learned from Mr. Broadnax’s family members, because that
was hearsay testimony. Postconviction counsel thus proffered what Dr. Benedict
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learned about Mr. Broadnax’s history, 4 but the Rule 32 court considered the
proffered evidence only to find that Broadnax could not show prejudice on an
alternative ground.5
In this appeal, Mr. Broadnax argues that both the CCA and the District Court
misapplied Sears v. Upton, 561 U.S. 945, 130 S. Ct. 3259 (2010) (per curiam), and
Green v. Georgia, 442 U.S. 95, 99 S. Ct. 2150 (1979) (per curiam), which he says
require reliable hearsay evidence to be introduced where there are “substantial
reasons” to assume its reliability.
In Green, the defendant appealed his capital sentence for murder. 442 U.S.
at 95–96, 99 S. Ct. at 2151. Mr. Green was indicted with Carzell Moore. Id. The
evidence at trial showed that Mr. Moore and Mr. Green, “acting either in concert or
separately,” raped and murdered the victim. Id. at 96, 99 S. Ct. at 2151. At the
4
Counsel proffered the following facts: Mr. Broadnax’s mother was fourteen when she
married her first husband; his mother suffered from social phobia and rarely left the house; his
father was emotionally and physically absent during Broadnax’s childhood and had a gambling
addiction; his sister struggled with “disabling anxiety” like Broadnax; he was raped at age 12; at
13, he was hit by a car and pinned between the car and a brick wall; he witnessed the shooting
and killing of a good friend; he was beaten by his mother; he started drinking alcohol and “made
a serious attempt on his life by taking [his sister Dorothy’s] pain medication”; he faced bullying,
ridicule, and knife attacks from gang members (which counsel believed led to Broadnax’s first
murder conviction); his father suffered a stroke and Broadnax became his father’s primary
caretaker until he died when Broadnax was 16; and when incarcerated for murder at 17, he
fended off several sexual assaults.
5
The Rule 32 court found that “it is not reasonably probable” that Dr. Benedict’s
diagnosis of post-traumatic stress disorder based on Mr. Broadnax’s childhood sexual assault,
which “occurred more than twenty years earlier,” would have had any impact whatsoever on the
jury’s decision to sentence Broadnax to death.
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penalty phase of trial, Mr. Green tried to introduce the testimony of Thomas Pasby,
who would have testified that Mr. Moore told Pasby he killed the victim after
ordering Green to run an errand. Id. The trial court refused to allow Mr. Pasby to
testify, citing Georgia’s hearsay rules. Id. The Supreme Court reversed and
vacated Mr. Green’s sentence, holding that under these facts, the exclusion of Mr.
Pasby’s testimony constituted a due process violation. Id. at 97, 99 S. Ct. at 2151.
It cited two considerations: (1) “[t]he excluded testimony was highly relevant to a
critical issue” in the penalty phase, and (2) there were several reasons to assume
the statement was reliable. Id. Therefore, in those “unique circumstances, the
hearsay rule may not be applied mechanistically to defeat the ends of justice.” Id.
at 97, 99 S. Ct. at 2151–52 (quotation marks omitted).
In Sears, the petitioner appealed Georgia’s denial of postconviction relief.
561 U.S. at 946, 130 S. Ct. at 3261. Mr. Sears claimed trial counsel was
ineffective for failing to present mitigating evidence. Id. at 947–48, 130 S. Ct. at3261–62. That evidence would have shown that Mr. Sears had an abusive home
life, was sexually abused, suffered from substantial deficits in cognition, and that
Sears’s brother introduced him to a life of crime. Id. at 948–50, 130 S. Ct. at3262–63. In holding that the state court misapplied Strickland’s prejudice prong,
the Supreme Court mentioned that “the fact that some of [the mitigating] evidence
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may have been ‘hearsay’ does not necessarily undermine its value—or its
admissibility—for penalty phase purposes.” Id. at 950, 130 S. Ct. at 3263. In a
footnote, the court cited Green for the principle that reliable, relevant hearsay
evidence “should not be excluded by rote application of a state hearsay rule.” Id.at 950 n.6, 130 S. Ct. at 3263 n.6.
First, assuming that Green and Sears do stand for the premise that mitigating
hearsay evidence is always admissible at the postconviction stage, Mr. Broadnax
has not persuaded us that the testimony from Dr. Benedict would have met Green’s
reliability prong. Mr. Broadnax says the interviews “were corroborated by testing”
and, vice-versa, that the interviews corroborated the results of the psychological
tests. But corroboration was just one of several reasons the Green court held that
Mr. Pasby’s testimony was reliable. See id. at 97, 99 S. Ct. at 2151. Unlike in
Green, Mr. Broadnax relies only on the mutual corroboration of the interviews and
testing, and no other reliability considerations. Further, the type of corroboration
Mr. Broadnax offers is different than what was present in Green. Mr. Broadnax’s
postconviction counsel did not introduce evidence at the Rule 32 hearing to
corroborate each piece of evidence proffered to the Rule 32 judge. See Chambers
v. Mississippi, 410 U.S. 284, 300–01, 93 S. Ct. 1038, 1048 (1973) (holding that
each hearsay statement “was corroborated by some other evidence in the case”).
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Thus the CCA’s decision was not contrary to clearly established Supreme Court
precedent. Cf. Randolph v. McNeil, 590 F.3d 1273, 1277 (11th Cir. 2009) (per
curiam) (holding that petitioner could not overcome AEDPA deference to show a
due process violation).
And, although questions of admissibility under Alabama’s hearsay rule,
regarding exclusion or admission, are subject to constitutional requirements
(including due process), see Ala. R. Evid. 802 advisory committee’s note, there is
no precedent that clearly establishes Mr. Broadnax was deprived of a fair
postconviction proceeding. That is because Mr. Broadnax was not prevented from
calling other witnesses to testify firsthand about the information Dr. Benedict
learned. Cf. Chambers, 410 U.S. at 298–303, 93 S. Ct. at 1047–50 (holding that
petitioner was denied a fair trial when the court refused to allow him to introduce
hearsay testimony and refused to permit him to call other witnesses); see also
Broadnax III, 130 So. 3d at 1245 (“[N]othing prevented Broadnax from calling his
family members to testify or from testifying himself regarding the same
information that had allegedly been provided to Dr. Benedict.” (footnote omitted)).
Postconviction counsel, for whatever reason, chose not to call the corroborating
witnesses. The CCA did not unreasonably determine Mr. Broadnax was not
denied due process. See Broadnax III, 130 So. 3d at 1245–46.
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C. THE CCA’S DETERMINATION THAT THE PROSECUTOR DID NOT
SHIFT THE BURDEN OF PROOF TO MR. BROADNAX WAS NEITHER
UNREASONABLE NOR CONTRARY TO CLEARLY ESTABLISHED LAW
In a criminal proceeding, the government has the burden of proving every
element of the charged offense beyond a reasonable doubt. United States v. Nerey,
877 F.3d 956, 970 (11th Cir. 2017). As a result, “prosecutors must refrain from
making arguments that improperly shift the burden of proof to the defendant.” Id.Mr. Broadnax says that during closing arguments, the prosecutor told the jurors
they should consider whether Broadnax’s counsel is giving them “another
reasonable explanation” for Jan’s and DeAngelo’s murders. The prosecutor said,
in full, that Mr. Broadnax had two fine attorneys and:
[W]hat I want you to be thinking the whole time they’re
up here is: Are they giving me another reasonable
explanation for all of this? Are they explaining this in a
reasonable way? Does it make sense, or is it like that little
boy with the cookie stains on his mouth saying that
Martians beamed into the kitchen and took that bite out of
the cookie? . . . Look at whether they provide you with a
reasonable explanation.
Mr. Broadnax argues that these statements shifted the burden of proof to him, and
that the CCA’s and the District Court’s rejection of this claim is contrary to the
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Supreme Court’s decision in Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450(1979).6
Because the CCA rejected this claim on direct appeal, we look to Broadnax I
as “the last reasoned decision of the state courts” on this claim. See Lee v.
Comm’r, Ala. Dep’t of Corr., 726 F.3d 1172, 1203 (11th Cir. 2013). The CCA
held that the prosecutor’s argument did “no[t] suggest[] . . . that Broadnax had an
obligation to produce any evidence or to prove his innocence”; rather, the
prosecutor “merely asked the jury to consider the evidence presented” and
determine whether there was a reasonable doubt as to Broadnax’s guilt. Broadnax
I, 825 So. 2d at 185. The CCA also said no reasonable juror would have construed
the prosecutor’s comments to mean Mr. Broadnax had any burden of proof because
the trial court instructed the jury regarding the state’s burden of proof and
Broadnax’s presumption of innocence. Id. The District Court agreed, finding that
“the prosecutor directed his statement at defense counsel and their offered
explanations for the circumstantial evidence.” The court also agreed with the CCA
6
Sandstrom held that a jury instruction—“the law presumes that a person intends the
ordinary consequences of his voluntary acts”—shifted the burden of proof to the defendant
because the jury could have interpreted the “presum[ption]” as requiring the defendant offer
some proof of a lack of intent. 442 U.S. at 513, 517, 99 S. Ct. at 2453, 2456 (alteration adopted).
Mr. Broadnax places great weight on Sandstrom, but because he is not arguing about the
instructions given to the jury, we rely on more factually similar cases.
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that any possible prejudice to Mr. Broadnax was cured by the jury instructions
regarding the burden of proof.
“Prosecutorial misconduct requires a new trial only if we find the remarks
(1) were improper and (2) prejudiced the defendant’s substantive rights.” United
States v. Hernandez, 145 F.3d 1433, 1438 (11th Cir. 1998) (quotation marks
omitted). The first element is determined by looking to four factors: “(1) the
degree to which the challenged remarks have a tendency to mislead the jury and to
prejudice the accused; (2) whether they are isolated or extensive; (3) whether they
were deliberately or accidentally placed before the jury; and (4) the strength of the
competent proof to establish the guilt of the accused.” Nerey, 877 F.3d at 970
(quotation marks omitted). The second element, prejudice, is shown “when a
reasonable probability arises that, but for the remarks, the outcome of the trial
would have been different.” United States v. Merrill, 513 F.3d 1293, 1307 (11th
Cir. 2008) (quotation marks omitted). Where there is “sufficient independent
evidence of guilt,” a defendant cannot show he was prejudiced by any misconduct
by the prosecutor. See id. (quotation marks omitted).
In reviewing the prosecutor’s comment in context, we cannot say the CCA’s
finding was unreasonable. Though “perhaps improper,” the prosecutor’s closing
argument comments did not shift the burden of proof to Mr. Broadnax. Nerey, 877
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F.3d at 971. Rather, the prosecutor’s comments “appeared to concern the failure of
the defense to counter the evidence presented by the government,” not Mr.
Broadnax’s failure to show evidence of his innocence. See United States v.
Watson, 866 F.2d 381, 386 (11th Cir. 1989) (finding proper prosecutor’s comment
in response to defense counsel’s argument that the government failed to disprove
alternative explanations). When “the prosecutor merely emphasize[s] the
defense’s failure to produce” evidence to rebut the government’s argument, “such
an argument [is] permissible.” Hernandez, 145 F.3d at 1439 (emphasis omitted).
That is what happened here. During voir dire, the prosecutor asked potential
jurors whether they would have an issue with convicting a defendant based only on
circumstantial evidence. The prosecutor explained circumstantial evidence by
telling the jury to picture a snowy front yard:
And when you went to bed that Friday night and you
looked out and you saw the snow falling, you saw a fresh
coat [of] undisturbed . . . white snow on your yard. You
got up early the next morning and you saw some dog prints
through the snow. Now, you did not see that dog walking
across your yard in the snow, but from the prints left
behind you could reasonably conclude that a dog had
crossed your yard and left those prints there in the snow.
That, ladies and gentlemen, is circumstantial evidence.
Trial counsel for Mr. Broadnax referenced this instruction in his opening
statement, and said “those tracks don’t tell you which dog went across there. It
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might tell you if it was a big dog or a little dog, but it’s not going to tell you
whether it was a hound dog or a hunting dog or a poodle. That’s for y’all to
determine.” Counsel also told the jurors he would “question the evidence” and try
to show them “that it means something besides what the State says it does.” These
remarks by the defense were the lead-in to the prosecutor’s closing argument
comment about what other “reasonable explanation” there could possibly be for the
evidence at trial.
And even though this case was based on circumstantial evidence, the
evidence tended to show that Mr. Broadnax was the only person who knew Jan and
DeAngelo, was seen with Jan and DeAngelo around 8:00 p.m., and who returned
around 10:45 p.m. in a vehicle driven by an unidentified person. Thus there was
other evidence that tended to show Mr. Broadnax’s guilt, which weighs against a
showing of both prosecutorial misconduct elements. See Nerey, 877 F.3d at 970;
Merrill, 513 F.3d at 1307.
In sum, the CCA’s finding that the prosecutor did not shift the burden of
proof to Mr. Broadnax was neither unreasonable nor contrary to clearly established
Supreme Court precedent.
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IV. CONCLUSION
We affirm the District Court’s denial of Mr. Broadnax’s federal habeas
petition. The Rule 32 court’s determinations that Mr. Broadnax’s trial counsel’s
performance was not deficient, and that Broadnax could not show prejudice, were
not unreasonable. Neither can we hold that Alabama’s application of its hearsay
rules to exclude testimony at his state habeas evidentiary hearing violated his due
process rights under clearly established federal law. Finally, the CCA’s finding
that the prosecutor did not improperly shift the burden of proof to Mr. Broadnax
was not unreasonable, nor was it contrary to clearly established federal law.
AFFIRMED.
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MARTIN, Circuit Judge, joined by JILL PRYOR, Circuit Judge, concurring:
Donald Broadnax is an Alabama prisoner sentenced to die for his crimes.
Throughout his state habeas proceedings, Mr. Broadnax’s attempt to prove the
ineffectiveness of his trial counsel was met with notable resistance. Relying on
Alabama’s evidentiary rules, the Rule 32 court prevented Mr. Broadnax’s expert
from testifying about background information the expert relied on in reaching his
opinion. The Rule 32 court also repeatedly discounted and dismissed witnesses’
testimony offered to show that there were mitigating circumstances in Mr.
Broadnax’s life that the jury should have heard at sentencing. I write separately
about these two details, because they may have determined the outcome of Mr.
Broadnax’s claim.
I.
I first write to observe how a seemingly small difference in the Alabama
Rule of Evidence may have had a monumental impact on Mr. Broadnax’s chances
for postconviction relief.
In 2010, Alabama’s rule did not allow an expert to base an opinion on
testimony that was inadmissible. Under that version of Alabama Rule of Evidence
703 in effect from 1996 to September 30, 2013, an expert could base his opinion
only on “[t]he facts or data in the particular case” that are “perceived by or made
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known to the expert at or before the hearing.” Ala. R. Evid. 703 (1996); see also
Craft v. State, 90 So. 3d 197, 217 n.3 (Ala. Crim. App. 2011) (quoting 1996 rule).
Thus, under the old rule, an expert generally could not consider inadmissible
hearsay in reaching his opinion. See Ala. R. Evid. 703 (1996) advisory
committee’s note.
However, the current version of Alabama’s Rule 703 adds a second and third
sentence that brings it into line with Federal Rule of Evidence 703:
The facts or data in the particular case upon which an
expert bases an opinion or inference may be those
perceived by or made known to the expert at or before the
hearing. If of a type reasonably relied upon by experts in
the particular field in forming opinions or inferences upon
the subject, the facts or data need not be admissible in
evidence in order for the opinion or inference to be
admitted. Facts or data that are otherwise inadmissible
shall not be disclosed to the jury by the proponent of the
opinion or inference unless the court determines that their
probative value in assisting the jury to evaluate the
expert’s opinion substantially outweighs their prejudicial
effect.
Ala. R. Evid. 703 & advisory committee’s note to 2013 amendment. That means,
if Mr. Broadnax brought his Rule 32 petition today, Dr. Benedict would be
permitted to testify about the background evidence the Rule 32 court excluded in
2011. See Knight through Kerr v. Miami-Dade Cnty., 856 F.3d 795, 809 (11th Cir.
2017) (applying Federal Rule of Evidence 703 to hold that “as we have long
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recognized, an expert may rely on hearsay evidence as part of the foundation for
his opinion so long as the hearsay evidence is the type of evidence reasonably
relied upon by experts in the particular field in forming opinions or inferences on
the subject” (quotation marks omitted)).
For the reasons set out in the main opinion, the standards of review imposed
by the Anti-Terrorism and Effective Death Penalty Act of 1996 allow no relief to
Mr. Broadnax for the exclusion of Dr. Benedict’s testimony that relied partly on
hearsay. Still, it strikes me as wrong to deprive mental health experts, retained by
habeas petitioners under a sentence of death, of any ability to rely on family
interviews. After all, expert witnesses routinely rely on hearsay in every other
context I am aware of. See, e.g., Raulerson v. Warden, 928 F.3d 987, 992–93,
997–98 (11th Cir. 2019) (upholding Georgia state court’s denial of ineffective
assistance claim where trial counsel retained five mental health experts who
opined, based in part on family interviews, that Raulerson was intellectually
disabled).
At the oral argument of this case, I was able to ask Alabama’s counsel
whether, if Mr. Broadnax’s case were before the Rule 32 court today, and
assuming there is no reason to think the reports from Broadnax’s family were
unreliable, Dr. Benedict could have testified about what he learned from those
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family members. I believe the obvious answer to this question is “yes,” but
Alabama’s counsel did not seem to agree. See Oral Argument at 38:34–40:30
(State: “A psychiatrist might rely on that [the fact that a child was raped], but that
doesn’t necessarily mean that a court should allow that fact to come in in a manner
that’s untested.”); see also id. at 50:59–51:59 (acknowledging that today, the
state’s motion in limine may “potentially” be denied). But certainly, the hearsay
evidence Dr. Benedict relied on is the “type reasonably relied upon by experts in
the particular field in forming opinions or inferences upon the subject.” Ala. R.
Evid. 703. That means Dr. Benedict would have been permitted to describe the
evidence he gained from the family interviews he conducted. This record reflects
that Dr. Benedict relied on significant historical and psychosocial factors to
conclude that, in addition to a cognitive disorder, not otherwise specified, Mr.
Broadnax suffered from panic disorder with agoraphobia and posttraumatic stress
disorder. And we know that historical and psychosocial factors are of the type of
evidence reasonably relied on by psychologists in forming their opinions. Cf.
Rompilla v. Beard, 545 U.S. 374, 392, 125 S. Ct. 2456, 2469 (2005) (explaining
that postconviction experts, “alerted by information from school, medical, and
prison records . . . , found plenty of ‘red flags’ pointing up a need to test further,”
which led them to opine on Rompilla’s impairments).
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With regard to showing prejudice,1 evidence of a defendant’s difficult
childhood, poverty, mental problems, and other similar background evidence is
sufficient to establish prejudice if that evidence “might well have influenced the
jury’s appraisal of his moral culpability.” Williams v. Taylor, 529 U.S. 362, 398,
120 S. Ct. 1495, 1515 (2000). If the CCA had been allowed to consider the
evidence we now know to exist as to Mr. Broadnax’s penalty-phase ineffective
assistance claim, that Court may well have found that the Rule 32 court
unreasonably discounted the evidence of the abuse Broadnax suffered. See
Broadnax v. State, 130 So. 3d 1232, 1261 (Ala. Ct. Crim. App. 2013) (declining to
consider Dr. Benedict’s inadmissible hearsay evidence proffered at the Rule 32
hearing). I certainly would have.
Notably, the Rule 32 court made the alternative finding that Dr. Benedict’s
diagnosis of PTSD based on Mr. Broadnax’s childhood sexual assault would have
had zero impact on the jury’s decision to sentence Broadnax to death, because it
“occurred more than twenty years earlier.” This is plainly contrary to Supreme
Court precedent. See Porter v. McCollum, 558 U.S. 30, 43, 130 S. Ct. 447, 455
(2009) (per curiam) (holding that it “is unreasonable to discount to irrelevance the
1
Here, I do not address Mr. Broadnax’s showing of deficient performance.
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evidence of [a petitioner’s] abusive childhood, especially when that kind of history
may have particular salience for a jury” evaluating the petitioner’s interpersonal
relationships).
Thus, if Mr. Broadnax had appealed his penalty-phase ineffective assistance
claim, and if we were able to look at the evidence Dr. Benedict relied on, I believe
a de novo review would have been proper. The jury had no knowledge of all the
mitigating evidence now in the record. Had the jury heard the background
evidence Dr. Benedict relied on, it seems to me there is a reasonable probability
that the result of the penalty phase of Mr. Broadnax’s trial would have been
different. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068
(1984).
II.
It is also important to remember that the universe of evidence that may be
considered mitigating is vast and the sentencer is entitled to hear that evidence. At
several points in Mr. Broadnax’s Rule 32 proceedings, the court appeared to think
otherwise.
For example, when Mr. Broadnax’s postconviction counsel asked
Broadnax’s sister, Annette McKinstry, about Broadnax’s relationship with her
children, the Rule 32 court interrupted to ask, “Why is this important?” The court
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accepted Annette’s testimony as proffered testimony only, and then said it had
heard all it needed to hear about Mr. Broadnax’s home life. This effectively
dismissed all remaining testimony on this topic. Next, during another witness’s
testimony, postconviction counsel attempted to ask questions to rebut the state’s
theory that Jan was going to divorce Mr. Broadnax. The Rule 32 court said, “I’m
not dealing with that today,” and counsel ended the direct examination. In yet
another instance, during Mr. Broadnax’s nephew’s testimony about what a good
influence Broadnax was on him, the Rule 32 court said:
I’m not trying a trial, guys, you know. I’m not the trial
judge. This is a Rule 32 hearing. The allegation was that
he had ineffective assistance of counsel and was therefore
denied a fair trial. . . . That’s all I want to hear about,
evidence towards that. I don’t want to hear about what a
nice guy he is over there. I don’t need to hear that.
Finally, when postconviction counsel attempted to present testimony to corroborate
the fact that Mr. Broadnax grew up in an impoverished environment where gang
activity was present, the Rule 32 court sustained the state’s relevance objection. In
response to that ruling, Mr. Broadnax’s counsel tried to create a record to show this
witness grew up near Broadnax’s childhood home, but the Rule 32 court dismissed
the testimony because “[e]verybody knows” that area of town. And finally, when
counsel attempted to show Mr. Broadnax grew up impoverished and without any
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structure from his parents in a housing project, the Rule 32 court again dismissed
the testimony, saying:
[F]or the record, I grew[]up in that same neighborhood on
2nd Street North. Not two blocks from Elyton Village.
Judge Houston Brown grew[]up three blocks from Elyton
Village, right there off Center Street. And Judge Helen
Shores Lee, also a Circuit Judge, grew up across the street
from Judge Brown. And numerous other doctors, and
other professionals grew up out of that same community,
and went on to be successful, facing whatever influences
was in that area. And I would, if I had to guess -- Well, I
won’t do that. . . . [P]eople have to be responsible for their
own behavior[.]
“‘The purpose of [mitigation] investigation is to find witnesses to help
humanize the defendant, given that a jury has found him guilty of a capital
offense.’” Hardwick v. Crosby, 320 F.3d 1127, 1163 (11th Cir. 2003) (quoting
Strickland, 466 U.S. at 691, 104 S. Ct. at 2066). In other words, “[t]he purpose of
mitigating evidence is precisely to show that the defendant is a good person.”
Chandler v. United States, 218 F.3d 1305, 1353 (11th Cir. 2000) (en banc)
(Barkett, J., dissenting). As a result, mitigating evidence may include “any aspect
of a defendant’s character or record and any of the circumstances of the offense
that the defendant proffers as a basis for a sentence less than death.” Lockett v.
Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 2965 (1978).
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But when “[a] process . . . accords no significance to relevant facets of the
character and record of the individual offender,” it excludes from the sentencer’s
consideration “the possibility of compassionate or mitigating factors stemming
from the diverse frailties of humankind.” Woodson v. North Carolina, 428 U.S.
280, 304, 96 S. Ct. 2978, 2991 (1976). Preventing the jury from hearing—and on
postconviction review, the petitioner from presenting—relevant mitigating
evidence results in treating the defendant as one member of “a faceless,
undifferentiated mass to be subjected to the blind infliction of the penalty of
death.” Id.; see also Eddings v. Oklahoma, 455 U.S. 104, 114–15, 102 S. Ct. 869,
876–77 (1982) (holding that the sentencer and a reviewing court may determine
the weight to be given relevant mitigating evidence, but may not give it no weight
by excluding such evidence from consideration). It is by now well established that
because imposition of a death sentence means the State will be taking a life, “the
sentencer in capital cases must be permitted to consider any relevant mitigating
evidence.” Abdul-Kabir v. Quarterman, 550 U.S. 233, 248, 127 S. Ct. 1654, 1665
(2007) (quotation marks omitted).
I believe the Rule 32 court made consequential mistakes here, albeit not
mistakes that federal courts are allowed to address in the habeas context. The
evidence that Mr. Broadnax’s postconviction counsel sought to present was
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indisputably relevant mitigating evidence. See Eddings, 455 U.S. at 115, 102 S.
Ct. at 877 (“Evidence of a difficult family history and of emotional disturbance is
typically introduced by defendants in mitigation.”). But the Rule 32 court
repeatedly hindered counsel from presenting—and at times even excluded—this
relevant evidence. Doing so is contrary to the clearly established precedent
described above.
* * *
Had it not been for the application of a now obsolete evidentiary rule and the
Rule 32 court’s skewed view of what qualifies as mitigating evidence, Mr.
Broadnax may well have met success in pursuing his habeas claims. Although the
standard of review that governs here requires us to affirm the denial of the claims
Mr. Broadnax has raised on appeal, I recognize that Broadnax faced burdens
throughout his habeas proceedings in putting forth evidence that would have
impacted his ineffective assistance claims, and as a result, the resulting sentence he
now faces.
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