Broadnax v. Lumpkin ( 2021 )

Case: 19-70014 Document: 00515736266 Page: 1 Date Filed: 02/08/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 19-70014
FILED
February 8, 2021
Lyle W. Cayce
James Garfield Broadnax, 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. 3:15-CV-1758
Before Jones, Higginson, and Oldham, Circuit Judges.
Edith H. Jones, Circuit Judge:
James Garfield Broadnax was convicted of capital murder and
sentenced to death for robbing and fatally shooting two men. After
exhausting his state remedies, Broadnax filed a federal habeas petition under
28 U.S.C. § 2254. The district court rejected his petition and denied a
certificate of appealability (“COA”). Broadnax sought a COA under
28 U.S.C. § 2253(c)(2) to appeal numerous issues. We granted a COA and
received additional briefing on a single issue pertinent to his Batson
challenges to the jury’s makeup: “Whether the district court erroneously
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No. 19-70014
concluded that the spreadsheet was barred by Pinholster and 28 U.S.C.
§ 2254(d)(2).” Broadnax v. Davis, 813 F. App’x 166 (5th Cir. 2020) (per
curiam). We now AFFIRM the district court’s refusal to consider newly
discovered evidence relevant to Broadnax’s Batson claim because Cullen v.
Pinholster, 563 U.S. 170, 131 S. Ct. 1388 (2011), bars its consideration. We
also explain why COA is DENIED on Broadnax’s other claims.
I. BACKGROUND
On June 19, 2008, Broadnax and Demarius Cummings fatally shot and
robbed Stephen Swan and Matthew Butler in Garland, Texas. Broadnax was
convicted of capital murder and sentenced to death. After his arrest,
Broadnax gave several interviews with local news stations which became the
foundation of the State’s case at trial. In them, he confessed to the murder
and robbery and provided explicit details of the murder. He admitted that he
alone killed Swan and Butler, that he had no remorse, and he hoped for the
death penalty.
During voir dire, Broadnax challenged the prosecution’s use of
peremptory strikes to remove all prospective black jurors and a Hispanic
juror based on Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986). 1 The
trial court initially denied all Broadnax’s challenges but eventually reseated
one of the struck jurors. At trial, Broadnax did not dispute that he killed the
victims, but he developed an extensive mitigation case that focused on his
drug use at the time of the offenses. Broadnax presented expert testimony to
the effect that because he committed the crimes at the age of nineteen, his
brain would not have been fully developed. Dr. Frank Lane, a jail physician
1
Batson held that “the Equal Protection Clause forbids the prosecutor to challenge
potential jurors solely on account of their race or on the assumption that black jurors as a
group will be unable impartially to consider the State’s case against a black defendant.”
476 U.S. at 89, 106 S. Ct. at 1719.
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who treated Broadnax, testified that Broadnax claimed he was hallucinating,
was paranoid, and did not remember talking to the media. Broadnax also told
him that he had used PCP at the time of the offense. Because of this, Dr. Lane
opined that Broadnax was most likely suffering from mood and perceptual
disturbances due to prior PCP use.
On direct appeal, Broadnax raised fifty-six points of error, including
his challenges to the trial court’s Batson rulings. The Texas Court of
Criminal Appeals (“TCCA”) affirmed the conviction and sentence.
Broadnax v. State, AP-76,207, 2011 WL 6225399 (Tex. Crim. App. Dec. 14,
2011), cert. denied, 568 U.S. 828 (2012). Broadnax then filed his state habeas
corpus petition. After an evidentiary hearing, the trial court recommended
denial of relief and the TCCA adopted the trial court’s findings and
conclusions. Ex parte Broadnax, WR-81,573-01, 2015 WL 2452758 (Tex.
Crim. App. May 20, 2015), cert. denied, 136 S. Ct. 77 (2015).
Having exhausted state remedies, Broadnax petitioned for federal
habeas relief claiming ineffective assistance of counsel, Batson violations,
erroneous evidentiary rulings, and errors in the punishment phase jury
charge. He also challenged the constitutionality of the Texas capital
punishment scheme and the death penalty. As part of his Batson challenges,
Broadnax submitted for the first time a spreadsheet created by the Dallas
County District Attorney’s Office in preparation for voir dire. The
spreadsheet specified the race and gender of the veniremembers and bolded
the names of prospective black jurors. As Broadnax admits, this document
was previously withheld by the District Attorney’s Office as privileged work
product, and he only gained access when the office revised its policy. The
spreadsheet was not part of the record before the state court.
The district court refused to consider the spreadsheet because in
Pinholster, the Supreme Court “bar[red] [the court] from considering new
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evidence that was not properly before the Texas Court of Criminal Appeals
when it rejected Broadnax’s Batson claims on direct appeal.” 2 Subsequently,
the district court denied habeas relief on all grounds and further denied a
COA on all claims. Broadnax appealed to this court and moved for a COA.
This court granted a COA for one issue: “Whether the district court
erroneously concluded that the spreadsheet was barred by Pinholster and
28 U.S.C. § 2254(d)(2).” Broadnax v. Davis, 813 F. App’x 166 (5th Cir.
2020) (per curiam).
We first address the Pinholster/Batson claim and then the denial of
COA on Broadnax’s other issues.
II. STANDARD OF REVIEW
Federal habeas proceedings are governed by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), and a petitioner must first
obtain a COA before he may appeal the district court’s denial of habeas relief.
See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335–36,
123 S. Ct. 1029, 1039 (2003) (“Miller-El I”). To obtain a COA, a petitioner
must make “a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). This standard requires the petitioner to
demonstrate “that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement
to proceed further.” Miller–El I, 537 U.S. at 336, 123 S. Ct. at 1039 (internal
quotes omitted). “[A]ny doubt as to whether a COA should issue in a death-
2
“If a claim has been adjudicated on the merits by a state court, a federal habeas
petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that
state court.” Pinholster, 563 U.S. at 185, 131 S. Ct. at 1400. “Similarly, § 2254(d)(2)
expressly limits review to the state court record.” Halprin v. Davis, 911 F.3d 247, 255 (5th
Cir. 2018).
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penalty case must be resolved in favor of the petitioner.” Pippin v. Dretke,
434 F.3d 782, 787 (5th Cir. 2005).
When considering a COA application, this court has jurisdiction to
determine only whether a COA should issue, not the ultimate merits of the
petitioner’s claims. Ward v. Stephens, 777 F.3d 250, 255 (5th Cir. 2015).
“This threshold inquiry does not require full consideration of the factual or
legal bases adduced in support of the claims. In fact, the statute forbids it.”
Miller-El I, 537 U.S. at 336, 123 S. Ct. at 1039. Indeed, “[t]he question is the
debatability of the underlying constitutional claim, not the resolution of that
debate,” and a “claim can be debatable even though every jurist of reason
might agree, after the COA has been granted and the case has received full
consideration, that petitioner will not prevail.” Id. at 338, 342, 123 S. Ct. at
1040, 1042.
If a COA is granted, our jurisdiction extends only to “the issue
specified in the COA.” Simmons v. Epps, 654 F.3d 526, 535 (5th Cir. 2011)
(per curiam). “In a habeas corpus appeal, we review the district court’s
finding of fact for clear error and its conclusions of law de novo.” Higgins v.
Cain, 720 F.3d 255, 260 (5th Cir. 2013). AEDPA bars habeas relief for a claim
adjudicated on the merits by a state court absent a showing that the decision
was either (1) “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the
United States” or (2) “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). A state court decision is “contrary to” federal law if, on
materially indistinguishable facts, it reaches a conclusion opposite of a
Supreme Court case. Williams v. Taylor, 529 U.S. 362, 413, 120 S. Ct. 1495,
1523 (2000). The decision is an unreasonable application of federal law if the
state court correctly identified the governing legal principle but unreasonably
applied it to the facts of the case. Id. Factual findings by the state court are
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presumed correct unless rebutted “by clear and convincing evidence.”
28 U.S. § 2254(e)(1).
III. PINHOLSTER , the JUROR SPREADSHEET, and the BATSON
CLAIM
This court granted a COA in order to consider more fully the
contention that the federal district court should have admitted the racially
annotated juror spreadsheet, not made available in the state courts, when it
evaluated Broadnax’s Batson claim. In Pinholster, the Supreme Court
considered “whether review under [AEDPA] § 2254(d)(1) permits
consideration of evidence introduced in an evidentiary hearing before the
federal habeas court.” 563 U.S. at 180, 131 S. Ct. at 1398. This provision
limits federal court habeas review to claims that were “adjudicated on the
merits” in state courts. For such claims, the Court concluded that “the
record under review is limited to the record in existence at that same time
i.e., the record before the state court.” Id. at 182, 131 S. Ct. at 1398. Further,
the Court noted, § 2254(d)(2) provides “additional clarity” by expressly
confining review of the underlying evidence to “evidence presented in the
State court proceeding.” Id. at 185 n.7, 131 S. Ct. at 1400 n.7.
The point of AEDPA, the Court explained, is to require prisoners first
to exhaust state court remedies before seeking federal relief, and “[i]t would
be contrary to that purpose to allow a petitioner to overcome an adverse state-
court decision with new evidence introduced in a federal habeas court and
reviewed by that court in the first instance effectively de novo.” Id. at 182,
131 S. Ct. at 1399. The Court added that, “[a]lthough state prisoners may
sometimes submit new evidence in federal court, AEDPA’s statutory scheme
is designed to strongly discourage them from doing so.” Id. at 186, 131 S. Ct.
at 1401.
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Pinholster thus confirms limitations on a federal habeas court’s
consideration of new evidence when reviewing claims that have been
adjudicated on the merits in state court. 3 In such circumstances, the
petitioner must demonstrate that habeas relief is warranted under § 2254(d)
on the state court record alone. If the petitioner succeeds in satisfying this
threshold requirement, then a federal habeas court may entertain new
evidence pursuant to the limitations of § 2254(e)(2). See, e.g., Smith v. Cain,
708 F.3d 628, 634–35 (5th Cir. 2013) (holding that an evidentiary hearing was
permissible after the federal trial court first determined “on the basis of the
state court record that the state court’s Batson analysis was contrary to, or at
least involved an unreasonable application of, clearly established Federal
law” (internal quotations omitted)). Broadnax principally asserts that a
narrow exception to Pinholster benefits him here. Alternatively, he claims the
spreadsheet is admissible under the approach of Smith v. Cain. We disagree
with both contentions.
A. The Pinholster-Exception Theory
While admitting that he raised Batson challenges to the prosecutors’
peremptory strikes of minority jurors and exhausted that claim in state court,
Broadnax alleges that the spreadsheet “fundamentally alters” his Batson
claim because it was “withheld” by the prosecution and was made
unavailable to him in state proceedings. He relies on a footnote in Pinholster,
which recognized that in some instances new evidence may present a new
claim of which federal habeas courts may take cognizance. Pinholster,
531 U.S. at 186 n.10, 131 S. Ct. at 1401 n.10 (stating that the dissent’s
“hypothetical involving new evidence of withheld exculpatory witness
3
If a claim was not adjudicated on the merits in state court, § 2254(e)(2) applies.
Broadnax does not seek introduction of the spreadsheet based on § 2254(e)(2) because his
Batson claim, as he acknowledges, was adjudicated on the merits in state court.
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statements . . . may well present a new claim”). But the Court declined in
that footnote “to draw the line between new claims and claims adjudicated
on the merits.” Id.
Broadnax asserts that under this exception-to-Pinholster, the
“withheld” spreadsheet constitutes such “new evidence” that
“fundamentally alters” his Batson claims and should have been added to the
district court’s analysis. This theory raises a difficult question at the outset.
Despite repeated insinuations, Broadnax does not allege that the state
improperly withheld the juror spreadsheet during state court proceedings.
Indeed, Broadnax’s initial federal habeas attorney admitted that the
spreadsheet was nondiscoverable attorney work product that was only
disclosed to the defense, after the federal habeas proceeding commenced,
because of a change in the District Attorney’s policies. The spreadsheet does
not pertain to Broadnax’s guilt or innocence and therefore fell outside the
prosecution’s Brady disclosure obligations. In contrast, Pinholster’s majority
footnote considers a hypothetical framed around exculpatory evidence and a
potential Brady violation. Logically, more than one habeas “claim” could be
predicated on distinct failures to disclose exculpatory or impeaching
information pursuant to Brady. Broadnax ignores the distinction between the
separability of Brady claims and the mere (alleged) evidentiary enhancement
of a singular Batson claim by the introduction of the spreadsheet. Broadnax’s
“new claim” is not just non-exculpatory but does not support any kind of
freestanding Batson “claim” at all.4 Whatever lines might be drawn pursuant
to the Pinholster footnote, they are not implicated here.
4
Moreover, to the extent that the District Attorney’s office did not “withhold”
the spreadsheet in contravention of any legal duty, that evidence stands on essentially the
same footing as any other evidence newly found, or created, and offered for the first time
in federal habeas proceedings.
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An additional impediment to the Pinholster exception theory is that
this court’s post-Pinholster precedent offers no support for it. Within a year
after the Supreme Court’s decision, this court held that “[t]he import of
Pinholster is clear: because Lewis’s claims have already been adjudicated on
the merits, § 2254 limits our review to the record that was before the state
court.” Lewis v. Thaler, 701 F.3d 783, 791 (5th Cir. 2012). In so doing, the
court refused to consider expert mitigation evidence offered for the first time
in federal habeas. Another decision rejected the notion that, after Pinholster,
the federal court should consider whether newly offered mitigation evidence
constituted an unexhausted claim or “simply supplement[ed]” petitioner’s
state court claim. Clark v. Thaler, 673 F.3d 410, 417 (5th Cir. 2012). Instead,
the court stated, “[w]e consider only the record that was before the state
habeas court.” Id. In yet another case, this court rejected the parties’ joint
position on appeal that newly offered mitigation evidence concerning mental
illness rendered a petitioner’s federal habeas claim unexhausted. 5 Ward,
777 F.3d at 258. Then, in addressing the merits, the court cited Pinholster and
analyzed the § 2254(d)(1) claim in light of the state court record alone. Ward,
777 F.3d at 264. Notably, Smith is this court’s sole foray into applying
Pinholster to a Batson claim. And when this court applied Pinholster, it
reviewed only the state court record for its conclusion that the state courts
decided a Batson claim “unreasonably” pursuant to § 2254(d)(1). Smith,
708 F.3d at 634–35. As a result, only then did the Smith court take into
consideration additional evidence offered in federal court. Id.
5
The allegedly unexhausted claim in Ward was a “new” diagnosis of mental
illness, different from the diagnosis originally presented in state court. This court
concluded that although the petitioner’s evidence “arguably places his [ineffectiveness of
counsel] claim in a stronger evidentiary position, . . . it does not place the claim in a
‘significantly different legal posture.’” 777 F.3d at 259 (citation omitted).
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The Fifth Circuit cases cited by Broadnax, when carefully read, do not
challenge this court’s otherwise uniform adherence to Pinholster. One of
these granted a COA on an ineffectiveness claim. First and most important,
a COA is not a definitive ruling on the merits of an issue in habeas. 6 See
Nelson v. Davis, 952 F.3d 651, 671–72 (5th Cir. 2020). Nelson is not a binding
statement of law on the issue garnering a COA. Second, the COA issue in
Nelson concerned exhaustion. Citing Pinholster’s footnote 10 (refusing to
draw lines between new claims and claims unadjudicated in state courts),
Nelson stated that, “while ‘merely putting a claim in a stronger evidentiary
posture is not enough,’ new evidence that ‘fundamentally alters the legal
claim’ or ‘place[s] the claim in a significantly different legal posture’ can
render it a new claim that was not adjudicated on the merits by the state
court.” Id. (quoting the discussion of exhaustion in Ward, 777 F.3d at 258–
59). For COA purposes, the court declared, the issue was that “reasonable
jurists could debate whether Nelson’s [ineffective assistance]-Participation
allegations ‘fundamentally alter’ his [counsel ineffectiveness] claim, and so
constitute a different and unexhausted claim.” Id. at 672. Two factually
distinct theories of ineffective assistance were at least theoretically
implicated. How this court might rule on the ultimate COA issue and a
number of intertwined issues in Nelson is unknown at this time. Most
important, Broadnax has never argued that his spreadsheet evidence
represents an unexhausted claim.
Escamilla v. Stephens, 749 F.3d 380, 394–95 (5th Cir. 2014), also fails
to support Broadnax. That case held forthrightly that where a petitioner’s
habeas counsel had raised an issue in the state habeas court, albeit
6
“[A] claim can be debatable even though every jurist of reason might agree, after
the COA has been granted and the case received full consideration, that petitioner will not
prevail.” Miller-El I, 537 US at 338, 123 S. Ct. at 1040.
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ineffectively from a constitutional standpoint, the petitioner was barred by
Pinholster from offering new evidence in federal court precisely because the
original claim had been “fully adjudicated on the merits” in state court. Id.Contrary to Broadnax’s view, in light of Escamilla’s clear and unequivocal
holding, 7 this court did not find that an exception to Pinholster exists
whenever newly offered evidence “fundamentally alters” a claim previously
presented to the state courts. The court merely stated that the additional
evidence submitted to the federal habeas court in that case effected no such
alteration. Id. at 395.
Broadnax’s out-of-circuit citations are also unhelpful. He cites Wolfe
v. Clark, but that case does not even cite, much less apply Pinholster. For that
reason alone, Wolfe is inapposite. Wolfe held that a long-concealed police
report, first offered in federal court, supported a new and separable Brady
claim that had not been adjudicated in state court, rendering § 2254(d)
irrelevant. 691 F.3d 410, 423 (4th Cir. 2012). Like Nelson, this aspect of
Wolfe concerns the exhaustion doctrine. The spreadsheet fails to rise to that
level, and the Batson claim raised here was adjudicated in state courts.
Broadnax made a detailed showing in state court by pointing out alleged
inconsistencies in the treatment of jurors as well as the final make-up of the
empaneled jury. The spreadsheet offered in federal court reflects the
prosecutors’ awareness of the race of prospective jurors. But it is not the
“single, plainly momentous item of suppressed . . . evidence” for which
7
“Thus, once a claim is considered and denied on the merits by the state habeas
court, Martinez is inapplicable, and may not function as an exception to Pinholster’s rule
that bars a federal habeas court from considering evidence not presented to the state habeas
court.” Escamilla, 749 F.3d at 395.
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habeas relief is warranted. Wolfe, 691 F.3d at 417. Thus, Broadnax’s Batson
claim remains subject to the limitations of § 2254(d). 8
Finally, even if we were to accept the Pinholster-exception theory
espoused by Broadnax, his argument would fail. The spreadsheet, at most,
places Broadnax’s Batson claim “in a stronger evidentiary position;” in no
way does it “fundamentally alter” the preexisting claim. As the district court
noted, the spreadsheet “does nothing more than indicate that the Dallas
County District Attorney’s Office made a point of memorializing the
ethnicity and gender of the remaining members of the jury venire prior to the
exercise of its peremptory challenges.” Broadnax v. Davis, No. 3:15-CV-
1758-N, 2019 WL 3302840, at *43 n.73 (N.D. Tex. July 23, 2019). Batson
claims are evaluated under a three-step process: (1) the defendant makes a
prima facie showing that the peremptory challenge was based on race; (2) the
prosecution provides a race-neutral basis for the strike; (3) the trial court
determines whether the prosecutor purposefully discriminated against the
juror. Foster v. Chatman, 136 S. Ct. 1737, 1747 (2016). The spreadsheet
arguably enhances Broadnax’s argument at the first step, and it may be
relevant to the third. But the prosecution was still required to—and did—
provide racially neutral reasons for each of the strikes. The spreadsheet alone
is no smoking gun; it fails to render all those reasons merely pretextual.
Moreover, the district court observed that the Dallas County District
Attorney’s Office has twice been criticized by the United States Supreme
Court for the use of racially discriminatory peremptory strikes. 9 Broadnax,
8
His other Fourth Circuit citation is readily distinguishable. In Winston v. Pearson,
the court determined that the Supreme Court of Virginia’s prior dismissal was not an
adjudication on the merits, hence, Pinholster had no applicability. 683 F.3d 489, 501 (4th
Cir. 2012).
9
See, e.g., Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317 (2005); Miller-El v.
Cockrell, 537 U.S. 322, 123 S. Ct. 1029 (2003).
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2019 WL 3302840, at *43 n.73. The office would have had considerable
motivation to identify which jury venire members belonged to a protected
class when preparing to defend its use of peremptory challenges. 10
For all these reasons, we reject the theory that a narrow exception
articulated in footnote 10 of Pinholster’s majority opinion required the federal
district court to admit and evaluate the District Attorney’s spreadsheet
pertinent to Broadnax’s fully adjudicated and exhausted Batson claim.
B. Smith v. Cain Approach
Broadnax alternatively contends that the state court decision was
“contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States” and
was “based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding,” rendering Pinholster’s
prohibition on new evidence inapplicable. 28 U.S.C. § 2254(d); Smith,
708 F.3d at 634–35. This argument finds no traction in the record.
Broadnax alleges that the State exercised its peremptory challenges in
a racially discriminatory manner and intentionally struck every nonwhite
veniremember. He marshals three arguments in support of this contention.
First, Broadnax asserts that “the State treated white and nonwhite
veniremembers differently.” Second, Broadnax raises as prima facie
evidence of discrimination that the prosecution used its peremptory strikes
to remove 100% of the nonwhite venire members. Finally, Broadnax argues
that the trial court’s reinstatement of one struck African-American juror was
not a sufficient remedy for the Batson violation.
10
At the time of his trial, Dallas had elected the first African-American District
Attorney in Texas, and his office prosecuted Broadnax.
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The district court conducted a lengthy analysis of the state’s
contemporaneously expressed reasons for exercising strikes on each of the
challenged jurors. In the end, it concluded that “Broadnax has failed to
present this Court with clear and convincing evidence showing the state trial
court’s implicit credibility findings (regarding the prosecution’s race-neutral
reasons for its peremptory strikes against these venire members) were
erroneous,” as required by 28 U.S.C. § 2254(e)(1). Broadnax, 2019 WL
3302840, at *43. Thus, the prior dismissal of the Batson claims was “neither
contrary to, nor involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States, nor
resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in his trial and direct appeal.” Id. For
the following reasons, we agree.
After a seventeen-page evaluation of the trial court record concerning
the state’s peremptory strike on each of eight African-American
veniremembers, one of whom was eventually seated, the district court found
that the proffered justifications for the challenges “all constituted racially
neutral, objectively verifiable, record-based, reasons for a prosecutorial
peremptory strike.” 11
We need not repeat the district court’s exhaustive and convincing
examination of each strike, but the strikes share common, race-neutral
characteristics. The state gave each prospective juror a questionnaire. Two
questions on the first page of the questionnaire are relevant to this issue. The
first asked “Are you in favor of the death penalty?” The state struck every
veniremember, regardless of race, who indicated he or she was not in favor of
11
Seven of the struck veniremembers were not empaneled. The eighth
veniremember, Juror Patterson, was struck but eventually included in the jury.
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the death penalty, including five against whose strikes Broadnax’s counsel
raised Batson objections. Each of the five gave various explanations for
opposing the death penalty, ranging from a belief in second chances to
concern about erroneous convictions.
Second, the questionnaire asked veniremembers to circle one out of
five possible responses to the following question: “With reference to the
death penalty, which of the following statements best represents your
feelings?” Option three stated: “Although I do not believe that the death
penalty ever ought to be invoked, as long as the law provides for it, I could
assess it under the proper set of circumstances.” Again, the state struck
every veniremember, regardless of race, who selected option three.
Broadnax’s counsel raised Batson objections to the strikes of two
veniremembers who indicated this option.
Broadnax counters that the state did not strike several white
veniremembers who answered their questionnaires similarly to minority
veniremembers who were struck. But with the exception of Juror Long, every
Batson-challenged veniremember who was excluded from the jury indicated
he or she was not in favor of the death penalty and/or believed the death
penalty ought not be invoked. The state struck all who answered this way, a
fact Broadnax glosses over. Moreover, while defendants need not
demonstrate that white and nonwhite veniremembers were identical in all
respects to demonstrate a Batson challenge, “the comparator-juror must be
similar in the relevant characteristics.” Herbert v. Rogers, 890 F.3d 213, 223
(5th Cir. 2018). As the district court noted, given the extensive nature of the
questionnaire, it is “hardly surprising—or conclusive of anything” that there
would be similarities in some answers between struck and non-struck
veniremembers. Broadnax, 2019 WL 3302840, at *43 n.73.
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Juror Long was the sole minority veniremember who expressed
support for the death penalty and did not select option three. However, Long
indicated that she would be “automatically prevented” from imposing the
death penalty if the defendant was using drugs or alcohol at the time of the
offense. As the state knew that intoxication would be a core component of
the defense theory, Long’s answer was highly prejudicial to the state’s case.
Moreover, several of Long’s explanations for her answers revealed mixed
feelings about the death penalty. While one other veniremember considered
intoxication to be a mitigating circumstance, Broadnax musters no other
potential juror who believed that intoxication automatically rendered a
defendant ineligible for the death penalty. Yet this automatic ineligibility
formed the core of the state’s justification to the trial court for a peremptory
strike. The district court correctly concluded that the state courts did not
unreasonably apply Batson in rejecting this claim.
Broadnax further urges that the state court erred in not properly
considering several important circumstances in the state’s use of its
peremptory strikes to remove 100% of the nonwhite veniremembers. Not so.
As this court has previously emphasized, “[t]he Supreme Court has
instructed that, when analyzing Batson challenges, ‘bare statistics’ are not
the be-all end-all.” Chamberlin v. Fisher, 885 F.3d 832, 840 (5th Cir. 2018)
(en banc) (quoting Miller-El v. Dretke, 545 U.S. 231, 241, 125 S. Ct. 2317,
2325 (2005) (Miller-El-II)). The “[m]ore powerful” evidence is a “side-by-
side comparison[] of some black venire panelists who were struck and white
panelists allowed to serve.” Miller-El-II, 545 U.S. at 241, 125 S. Ct. at 2325.
The district court thoroughly conducted side-by-side analysis of the state
courts’ determinations and correctly concluded that Batson was not
unreasonably applied.
Finally, Broadnax challenges the district court’s conclusion that the
state courts did not unreasonably apply Batson in agreeing that reseating Juror
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Patterson was a sufficient response to the State’s Batson violation. After
initially accepting the prosecution’s peremptory strike, the trial court found
a Batson violation regarding Patterson and reseated him. Interestingly, the
TCCA found on direct appeal that no Batson violation occurred. Broadnax,
2011 WL 6225399, at *4. Nevertheless, Broadnax proceeds as if a Batson
violation occurred and disputes only the propriety of the remedy. He asserts
that the trial court should have struck the entire jury panel and begun voir
dire anew.
The district court explained that no clearly established Supreme
Court law requires dismissal of an entire jury panel in the face of a single
Batson violation. Nor has Broadnax brought any such authority to the
attention of this court. Batson itself expressly disavowed requiring trial
courts to dismiss the entire panel and noted that reinstating the improperly
challenged juror could be an adequate remedy. Batson, 476 U.S. at 99 n.24,
106 S. Ct. at 1725 n.24. While some other jurisdictions have suggested that
dismissing the entire panel is the “better practice,” see, e.g., United States v.
Walker, 490 F.3d 1282, 1295 (11th Cir. 2007), Texas views reinstating any
excluded veniremember as an appropriate remedy for a Batson violation. See,
e.g., State ex rel. Curry v. Bowman, 885 S.W.2d 421, 425 (Tex. Crim. App.
1993). In any event, the district court explained that “the new rule advocated
by Broadnax in this federal habeas corpus proceeding is foreclosed by the
nonretroactivity doctrine of Teague.” We find no error in the district court’s
conclusions. Accordingly, because Broadnax did not surmount the standards
embodied in § 2254(d), he had no basis to offer evidence outside the state
court record, and the spreadsheet was correctly barred from consideration in
federal court.
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IV. PETITION FOR COA
Broadnax advanced five other claims for relief in which he sought a
COA. These contentions include: (1) an unqualified juror sat on his jury;
(2) the District Attorney’s decision to seek the death penalty was racially
motivated; (3) Broadnax was unconstitutionally denied counsel when he gave
media interviews; (4) his appellate counsel was ineffective for failing to
challenge the admission of certain expert testimony on appeal; and (5) the
district court applied erroneous legal standards and inadequately reviewed
the record.
A. Refusal of Strike for Cause
Broadnax contends that reasonable jurists could debate the district
court’s rejection of his claim that the state courts erroneously refused to
disqualify juror John Vessels. Broadnax alleges that Vessels was unable to
consider mitigation evidence. After reviewing Vessels’s responses, we
conclude that the district court’s resolution of this issue is not debatable.
A trial court must strike for cause a prospective juror who would
automatically impose the death penalty without considering mitigating
circumstances. Morgan v. Illinois, 504 U.S. 719, 729, 112 S. Ct. 2222, 2229
(1992). Despite this, the law does not oblige jurors to consider any specific
circumstances as mitigating. See Soria v. Johnson, 207 F.3d 232, 244 (5th Cir.
2000). When asked during voir dire to give examples of mitigating evidence
that would convince him to change a death sentence to a life sentence,
Vessels responded he could not think of any. Additionally, Vessels expressed
suspicion of evidence of intoxication and the defendant’s troubled
upbringing as mitigating factors.
The district court agreed with the TCCA that while Vessels
considered these circumstances not to be mitigating, he would not absolutely
refuse to consider mitigating evidence. As this court has explained, these
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types of evidence can be double-edged and may even be perceived as
aggravating. Id.; see also Dorsey v. Quarterman, 494 F.3d 527, 533 (5th Cir.
2007) (“[T]he law is clear that a defendant in a capital case is not entitled to
challenge prospective jurors for cause simply because they might view the
evidence the defendant offers in mitigation of a death sentence as an
aggravating rather than a mitigating factor.”). Vessels expressly stated that
he could consider the mitigation special issue with an open mind and that he
could answer “yes” on the issue. Thus, Vessels was not unwilling to put
aside personal views, consider all the evidence, and follow the law; rather, he
honestly acknowledged his suspicions concerning certain types of mitigating
evidence.
Reasonable jurists would not debate the district court’s determination
that the state court reasonably rejected Broadnax’s claim that the trial court
had to disqualify juror Vessels for cause.
B. Selective Prosecution
Broadnax raises a selective prosecution claim, arguing that the State
sought to impose the death penalty on the basis of his race. The district court
noted, without holding, that this claim was unexhausted, but it ruled on the
merits instead. To succeed on his selective prosecution claim, Broadnax
must overcome the presumption that a prosecutor acts in good faith and
within his discretion; hence a defendant’s burden is to present clear evidence
showing that the prosecutor’s decisions had both a discriminatory effect and
a discriminatory motive or purpose. United States v. Armstrong, 517 U.S. 456,
465, 116 S. Ct. 1480, 1487 (2006); In re United States, 397 F.3d 274, 284 (5th
Cir. 2005). To establish a racially discriminatory effect, a defendant must
show that similarly situated individuals of a different race were not
prosecuted. Armstrong, 517 U.S. at 465, 116 S. Ct. at 1486–87; In re United
States, 397 F.3d at 284.
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The district court found that Broadnax is not “similarly situated” to
any other offender of any race in Dallas County because of his media
interviews. In the interviews, Broadnax confessed, described the crimes in
graphic detail, repeatedly denied feelings of remorse, and demanded to
receive the death penalty. What he said in the interviews “put Broadnax in
a class by himself.”
Broadnax argues this finding is debatable in light of a statistical study
that allegedly shows the death penalty was imposed in Dallas County more
often against African American defendants accused of victimizing whites
than against other offenders and victims of other races. But such statistical
evidence alone does not establish that “the decisionmakers in his case acted
with discriminatory purpose.” McCleskey v. Kemp, 481 U.S. 279, 292,
107 S. Ct. 1756, 1767 (1987). Indeed, the Baldus study in McCleskey identified
some stark statistical discrepancies. Id. at 287, 107 S. Ct. at 1764;
Nevertheless, the Supreme Court denied relief. Further, the discretionary
nature of the decision to seek a death sentence led the Court to caution
against inferring discriminatory motive from statistical disparities alone. Id.
at 297, 107 S. Ct. at 1770.
Finally, Broadnax argues that the district court’s focus on Broadnax’s
media interviews treats the “similarly situated” requirement too narrowly.
We disagree. The prosecution relied on them extensively at trial, and the
district court deemed their content sufficiently unusual that it declared
Broadnax “sui generis.” The interviews graphically and voluntarily
confessed Broadnax’s guilt, cravenness, and extreme future dangerousness.
Moreover, Broadnax’s proffered view of “similarly situated,” by invoking
broad generic commonalities such as racial characteristics and crimes
charged, would render comparisons essentially meaningless. Thus, although
in some circumstances there might be uncertainty about how to identify
“similarly situated” offenders relevant to a selective prosecution claim, this
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is not such a case. The district court’s conclusion that Broadnax was not
selectively prosecuted is not reasonably debatable.
C. Uncounseled Media Interviews
Broadnax next argues that he was denied his Sixth Amendment right
to counsel while giving the media interviews, which he contends were
“critical stages” of his trial. The interviews, which Broadnax voluntarily
conducted, occurred after his initial appearance before the magistrate judge
on June 21, 2008, but before he was appointed counsel on June 24. Before
trial, Broadnax moved to suppress the interviews. The trial court denied the
motion. Significantly, Broadnax signed the stations’ request forms seeking
interviews, the reporters were not employed by law enforcement, and no law
enforcement officer had requested that they conduct the interviews.
An accused is guaranteed the right to counsel during all “critical
stages” of his trial. Critical stages are “proceedings between an individual
and agents of the State, whether ‘formal or informal, in court or out,’ that
amount to ‘trial-like confrontations,’ at which counsel would help the
accused ‘in coping with legal problems or . . . meeting his adversary.’”
Rothgery v. Gillespie County, 554 U.S. 191, 212 n.16, 128 S. Ct. 2578, 2591 n.16
(2008) (cleaned up) (emphasis added). “[W]hat makes a stage critical is
what shows the need for counsel’s presence.” Id. at 212, 128 S. Ct. at 2591.
The district court concluded, pursuant to AEDPA, that the state
courts, which examined numerous ways in which Broadnax sought to attack
the admissibility of the interviews, did not unreasonably apply governing
Supreme Court law nor unreasonably apply the facts to the legal standards,
nor did they unreasonably determine the facts in light of the record. The
court accordingly rejected his Fifth and Sixth Amendment claims.
The district court alternatively ruled against Broadnax under a de novo
standard. In so doing, the court examined whether the reporters who
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interviewed Broadnax were acting as agents of the State. Concluding they
were not, the district court held that Broadnax’s Sixth Amendment claims
lacked merit. In reaching its conclusion, the district court considered this
circuit’s two-prong test for determining whether an informant was a
government agent: whether the informant “(1) was promised, reasonably led
to believe, or actually received a benefit in exchange for soliciting information
from the defendant; and (2) acted pursuant to instructions from the State, or
otherwise submitted to the State’s control.” Creel v. Johnson, 162 F.3d 385,
393 (5th Cir. 1998). There is no evidence in the record supporting either of
these claims. The mere fact that reporters followed Sheriff’s Department
procedures to request interviews does not prove that they submitted to the
State’s control or received some benefit. The district court correctly
observed that “[t]o hold otherwise would transform every media interview
conducted with an individual under custodial detention into a custodial
interrogation by a de facto state agent.”
Not only does Broadnax lack evidence to support his “critical stage”
assertion, but he cites no legal authority for the proposition that voluntary
media interviews, conducted within days of an initial appearance, are a
“critical stage” of a prosecution requiring the presence of defense counsel.
The Teague principle, ensconced in AEDPA, forbids federal courts to make
“new rules” of criminal procedure in habeas corpus review of final state
convictions. Woods v. Donald, 575 U.S. 312, 317, 135 S. Ct. 1372, 1376–77
(2015); Teague v. Lane, 489 U.S. 288, 299–310, 109 S. Ct. 1060, 1069–1075
(1989).
Reasonable jurists would not debate the district court’s conclusion
that the state courts reasonably rejected this claim.
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D. Ineffective Assistance of Appellate Counsel
Broadnax contends that his appellate counsel was ineffective for
failing to challenge the admission of Dr. Price’s testimony on direct appeal.
He alleges that although Dr Price, a rebuttal witness for the prosecution, did
not render an expert diagnosis that Broadnax is a “psychopath,” his
testimony concerning such a diagnosis was inflammatory, inadmissible and
harmful under various provisions of Texas law. Despite this, Broadnax’s
counsel did not raise the issue among nearly five dozen appellate issues he
did assert. The district court acknowledged that Broadnax had not exhausted
the claim in the state courts but rejected it on de novo review, concluding that
the appellate counsel did not render ineffective assistance by failing to assert
a meritless challenge to Dr. Price’s testimony. See Davila v. Davis, 137 S. Ct.
2058, 2067 (2017) (declining to raise a claim on appeal is not deficient
performance unless that claim was plainly stronger than those actually
presented to the appellate court).
The district court found neither prong of the Strickland test for
ineffective assistance of counsel satisfied. See Smith v. Robbins, 528 U.S. 259,
285, 125 S. Ct. 746, 764 (2000) (explaining that the Strickland test inquires
whether counsel’s conduct was objectively unreasonable under then-current
legal standards and whether counsel’s allegedly deficient performance
“prejudiced” the petitioner). In addition, appellate counsel is not required
to raise every non-frivolous claim on appeal. Id. at 288, 125 S. Ct. at 765–66.
We need not review the professional quality of counsel’s appellate
work under Strickland, because we cannot fault the district court’s
conclusion that Broadnax failed to show that the admission of this evidence
was harmful. On cross-examination, Dr. Price admitted “(1) psychopathy is
not listed in the DSM-IV, (2) the closest thing to psychopathy in the DSM-
IV is a personality disorder, (3) people who have the traits of psychopathy
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may not be a psychopath, and (4) some of the traits of a psychopath are
consistent with those of an immature person.” Dr. Price admitted he was not
making a mental health evaluation of Broadnax. When this testimony is
viewed in light of the heinousness of the crime and Broadnax’s utter lack of
remorse, even if its admission was erroneous under state law, the testimony
was not prejudicial. Broadnax did not demonstrate that but for appellate
counsel’s error, there was a reasonable likelihood that he would not have
been sentenced to death. Strickland v. Washington, 466 U.S. 668, 687–91,
694, 104 S. Ct. 2052, 2064–66, 2068 (1984). The district court’s rejection of
this ineffectiveness claim is not debatable by reasonable jurists.
E. Relevant Legal Standards
Lastly, Broadnax argues that the district court failed to apply the
correct legal standards when reviewing his claims. This contention, at its
core, is merely an attempt to dispute the court’s reasoning and portions of
the evidence the district court considered in its monumental opinion. These
assertions are meritless.
First, the district court did not misapply AEDPA standards, because
no change in the statutory standards relevant here was occasioned by Wilson
v. Sellers, 138 S. Ct. 1188 (2018). The district court reviewed the state courts’
reasoning in accord with AEDPA.
Second, the district court did not fail to base its conclusion about
Broadnax’s selective prosecution claim on an independent review of the
evidence in the record. Even a cursory reading of the district court’s opinion
reveals that it carefully examined the record and new statistical evidence he
raised. The district court did not consider the statistical evidence persuasive
because Broadnax was not “similarly situated” to other defendants.
Next, Broadnax challenges the district court’s finding of fact
concerning when the State’s spreadsheet detailing the race and sex of
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No. 19-70014
veniremembers was created. That determination is irrelevant to the court’s
conclusion, addressed above, that the spreadsheet was barred from
consideration by Pinholster.
Finally, Broadnax errs in claiming the district court made its own
finding of fact that Broadnax was not under the influence of drugs at the time
of his media interviews and thus ignored the testimony of mental health
experts who examined Broadnax. This is inaccurate. The district court did
consider testimony of each of these individuals concerning Broadnax’s drug
use, even as it observed deficiencies in their statements. The district court
also considered Broadnax’s demeanor during the taped interviews and the
testimony of the jail employee who accompanied Broadnax to his interviews.
V. CONCLUSION
For these reasons, we have DENIED COA in part and AFFIRM
the district court’s judgment in part.
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