Broadnax v. Thomas

Filing 20

MEMORANDUM OPINION - Broadnax has not shown that the state appellate court's ruling was "objectively unreasonable," Virginia v. LeBlanc, 137 S. Ct. at 1728, or that no "fairminded jurists could agree with the state court's de cision," Loggins, 654 F.3d at 1220. Therefore, Broadnax's claims are due to be denied and his Petition is due to be dismissed. An Order dismissing Broadnax's Petition for Writ of Habeas Corpus by Prisoner in State Custody Under Death Sentence Pursuant to 28 U.S.C. §2254, doc. 1 , will be entered contemporaneously with this Memorandum Opinion. Signed by Judge Abdul K Kallon on 12/13/2019. (KEK)

FILED
2019 Dec-13 PM 01:02
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DONALD BROADNAX,

)
)
Petitioner,
)
)
vs.
)
)
JEFFERSON S. DUNN, )
Commissioner, Alabama Department )
of Corrections,
)
)
Respondent.
)

CASE NO. 2:13-CV-1142-AKK

MEMORANDUM OPINION
This case is before the court on Donald Broadnax’s Petition for Writ of Habeas
Corpus by Prisoner in State Custody Under Death Sentence Pursuant to 28 U.S.C. §
2254. Doc. 1.1 Broadnax stands convicted of four counts of capital murder for the
murders of his wife, Hector Jan Stamps Broadnax, and her grandson, DeAngelo
Stamps. In his Petition, Broadnax seeks relief from this conviction. After careful
consideration, the Petition, doc. 1, is due to be denied.

1

“Doc. ___” refers to the docket number assigned to each document filed in the court’s
electronic filing system. Citations to the state-court record, (doc. 12), reflect the volume, tab, and
page numbers assigned by respondent.

I. BACKGROUND
The Alabama Court of Criminal Appeals [“ACCA”] set forth the following
with regard to the offense conduct and the proceedings:
In 1997, Broadnax was convicted of four counts of capital murder
for the beating deaths of his wife, Hector Jan Stamps Broadnax, and her
four-year-old grandson, DeAngelo Stamps. The murders were made
capital (1) because two or more persons were murdered pursuant to one
scheme or course of conduct, see § 13A-5-40(a)(10), Ala. Code 1975;
(2) because Broadnax had been convicted of another murder in the 20
years preceding those murders, see § 13A-5-40(a)(13), Ala. Code 1975;
(3) because the murders were committed during the course of a
kidnapping, see § 13A-5-40(a)(1), Ala. Code 1975; and (4) because
DeAngelo Stamps was under 14 years of age at the time of his death, see
§ 13A-5-40(a)(15), Ala. Code 1975.
The jury unanimously
recommended that Broadnax be sentenced to death for his convictions,
and the trial court followed the jury’s recommendation and sentenced
Broadnax to death. [The ACCA] affirmed Broadnax’s convictions and
sentence on appeal, Broadnax v. State, 825 So. 2d 134 (Ala. Crim. App.
2000), and the Alabama Supreme Court affirmed this Court’s judgment,
Ex parte Broadnax, 825 So. 2d 233 (Ala. 2001). . . . The United States
Supreme Court denied certiorari review on June 28, 2002. Broadnax v.
Alabama, 536 U.S. 964, 122 S. Ct. 2675, 153 L. Ed. 2d 847 (2002).
In this Court’s opinion affirming Broadnax’s convictions and
sentence, we set out the facts of the crimes as follows:
“. . . In April 1996, Donald Broadnax, who had been
convicted in 1978 for murder and who was serving a sentence of
99 years’ imprisonment, was residing at a work release center in
Alexander City and working at Welborn Forest Products in
Alexander City. In 1995 Broadnax married Hector Jan Stamps
Broadnax, who at the time of the marriage had a three-year-old
grandson, DeAngelo Stamps. Broadnax and Jan were having
marital problems and Broadnax believed that Jan was partially
2

responsible for a recent denial of parole.2 The evidence indicated
that after 6:00 p.m. on April 25, 1996, Jan and DeAngelo
delivered food to Broadnax at his workplace. Johnny Baker, an
inmate at the work release center and Broadnax’s coworker at
Welborn, testified that he saw Broadnax driving Jan’s car at
Welborn that evening. According to Baker, Broadnax stopped to
talk with him and he saw a child in a child’s safety seat in the
backseat. Baker testified that he was ‘pretty sure’ the child was
alive when he talked with Broadnax.
“At approximately 10:45 p.m. that same night, Mark
Chastain, a [leadman] at Welborn, found Broadnax inside a
building while securing the building for the night. Chastain
testified that he told Broadnax that the alarm had been set and that
they had to exit the building. According to Chastain, when he
asked Broadnax why he was still in the building, Broadnax stated
that the work release van had dropped him off . . . .
“Kathy Chastain, Mark Chastain’s wife, testified that while
she was outside the building waiting for her husband to secure the
building, she saw an individual matching Broadnax’s description
get out of a [white king-cab pickup truck] and run into the
building.
“On April 25, 1996, Robert Williams and his wife were
living across the street from a house in Birmingham that had in
the past been used as a ‘crack-house’ and for prostitution. On that
evening as Williams and his wife left their house at approximately
8:20 p.m., they noticed no cars were parked at the house across
the street. When they returned at approximately 8:50 p.m., they
saw a white Dodge Aries automobile parked behind the house.
Because of the previous illegal activities occurring at the house,
Williams telephoned the police and reported the presence of the
car.

2

Broadnax was denied parole on April 15, 1996. See doc. 12, Vol. 5 at 441.

3

“Alondo McCurdy and Donna Smith, officers for the
Birmingham Police Department, responded to the call and arrived
at the residence at approximately 9:00 p.m. When they
approached the parked car, they noticed blood on the ground
behind the car and on the bumper. Based on their observations,
they immediately radioed their supervisor and the paramedics,
and secured the scene. It was later determined that the car
belonged to Jan Broadnax.
“When the paramedics arrived, they opened the locked
trunk and found the bodies of Jan and DeAngelo in the trunk.
Both Jan and DeAngelo had been beaten. According to Dr.
Robert Brissie, the forensic pathologist who performed the
autopsies on the victims, blunt-force trauma, which could have
been caused by the use of a piece of lumber such as the one found
in the trunk with the bodies, caused the deaths of Jan and
DeAngelo.
“On April 27, 1996, Lawrence Hardnette, an inmate
resident at the work release center in Alexander City, found a
work uniform that did not belong to him stuffed under his bunk.
At about the same time, James Smith, another inmate resident of
the work release center, found a pair of Red Wing brand work
boots under his bunk. The uniform and the boots were turned
over to the supervisors and were later identified as belonging to
Broadnax. Broadnax was the only one at the work center who
wore Red Wing work boots; there were also identifying marks on
the work uniforms indicating that the uniforms had been issued
to Broadnax. When the work uniform and the boots were
examined, bloodstains were found on the uniform [and the boots].
The analysis of the bloodstains [on the uniform] indicated that the
deoxyribonucleic acid (‘DNA’) in these bloodstains matched the
DNA of Jan and DeAngelo.
“On the grounds at Welborn near a finishing products
storage facility, employees found an earring that matched an
earring found on the rear floorboard of Jan’s car. The evidence
4

appeared to indicate that Jan was killed at Broadnax’s workplace
in Alexander City, that her body was placed in the trunk of the
car, and that the car was driven to Birmingham. Officer Vince
Cunningham of the Birmingham Police Department testified that
while conducting the investigation, he traveled from the location
where the bodies were found in Birmingham to Broadnax’s
workplace in Alexander City [several times and determined that
the drive time was no more than one and one-half hours]. [Thus,
a]ccording to Cunningham, Broadnax could have easily traveled
the distance between the two locations within the time frame set
out by the evidence.”
825 So. 2d at 150-51.
In addition to the above, the State presented evidence at trial
indicating that the piece of lumber found in the trunk of the vehicle with
the victims was similar to the lumber used at Welborn and that a blue
cloth similar to cloth used at Welborn was also found in the trunk of the
vehicle. The State also presented evidence indicating that the blood
spatter on the rear of the vehicle was consistent with a beating. The
State presented testimony that a few days before the murders Broadnax
had told a fellow employee at Welborn that he was upset with Jan
regarding the denial of his parole, which had occurred on April 15,
1996, and that he was planning to kill Jan. The State also presented
testimony regarding two statements Broadnax made to the police. In his
statements, Broadnax said that Jan had brought him dinner at Welborn
the night of the murders and that she had left Welborn at approximately
8:20 p.m. Broadnax also said that he had been at Welborn the entire day
and evening of the murders, until approximately 10:45 p.m., and that he
had telephoned his brother from Welborn at approximately 9:00 p.m.
However, the State introduced telephone records indicating that no
telephone call had been made to Broadnax’s brother’s house the night
of April 25, 1996. When questioned specifically about the bloody boots
and the Welborn work uniform belonging to him that were found in the
work-release facility, Broadnax stated that he had sold the boots to
another inmate, although he could not identify that inmate,
approximately a year earlier and that the uniform had been stolen about
5

two months earlier. Broadnax also said that he had reported the theft of
his uniform to the company who made and rented the uniforms to
Welborn; however, the State presented testimony at trial that no report
of a stolen uniform had been made to the uniform company.
Broadnax v. State, 130 So. 3d 1232, 1236-39 (Ala. Crim. App. 2013)(original
footnotes omitted; footnotes added).
At trial:
The State’s theory of the case was that between approximately
6:30 p.m. and 10:30 p.m. the night of April 25, 1996, Broadnax brutally
beat his wife, Jan, to death at Welborn; put Jan’s body in the trunk of her
car; drove the car with Jan’s grandson, DeAngelo, in the backseat, to
Birmingham to a location near Elyton Village where Broadnax had
grown up and presumably had friends; brutally beat DeAngelo to death
in that location; placed DeAngelo’s body in the trunk of the car with
Jan’s body; and found someone to drive him back to Welborn, where
Mark and Kathy Chastain saw Broadnax around 10:30 p.m.
The defense’s theory of the case was that Broadnax had been at
Welborn all day and all evening on April 25, 1996 – as Broadnax had
said in his statements to police – and that the State’s evidence was
insufficient to prove that Broadnax had committed the murders.
Although the defense called no witnesses, they vigorously
cross-examined the State’s witnesses and called into question the State’s
time line of events as well as the credibility of the State’s witnesses,
some of whom were inmates themselves.
Id. at 1239.
The penalty phase of Broadnax’s trial began immediately following the jury’s
verdict. See doc. 12, Vol. 8, Tab 20 at 299-302. The State relied on the evidence it
presented during the guilt phase, and Broadnax offered the testimony of his sister,
6

Dorothy McKinstry. See id., Tab 21 at 307; id., Tab 22 at 308. The jury unanimously
recommended a sentence of death, Broadnax, 825 So. 2d at 150, and the trial court
followed the recommendation, see doc. 12, Vol. 1, Tab 2 at 22.
In its sentencing order, the trial court stated it had found the four aggravating
circumstances offered by the State: (1) “the capital offense was committed by a
person under sentence of imprisonment pursuant to 13A-5-49(1),” (2) “the capital
offense was committed by the Defendant after he had previously been convicted of
a felony involving the use . . . of violence to a person pursuant to 13A-5-49(2),” (3)
“the capital offense was committed while the Defendant was engaged in the
commission of . . . [k]idnapping pursuant to 13A-5-49(4),” and (4) “the capital felony
was especially heinous, atrocious [or] cruel [HAC] pursuant to 13A-5-49([8]).” Id.
at 21. The court stated it had not found a statutory mitigating circumstance pursuant
to Ala. Code § 13A-5-51(1), (4), (5), and (7), id. at 22, or any non-statutory mitigating
circumstances, stating, inter alia, –
No additional testimony was taken during the punishment phase of the
proceedings as the attorneys for the Defendant advised the Court that the
Defendant did not wish to present any evidence at the punishment phase.
The Court specifically asked the Defendant if that was his wish and he
said he did not wish to present any evidence at the evidentiary stage of
the punishment phase. The Court then questioned the Defendant as to
his request, determined that the request was knowingly made by the
Defendant whereby he knowingly waive[d] his right to presentation of
any evidence at the punishment phase.
7

Id. at 18-19. The 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.” Id. at 22.
On appeal, although the ACCA affirmed Broadnax’s conviction and sentence,
it remanded the case to the trial court to correct its sentencing order:
The trial court’s sentencing order does not acknowledge that [Dorothy]
McKinstry testified and does not indicate what, if any, mitigating
evidence was presented through her testimony. In addition, the
sentencing order does not specifically address the existence or
nonexistence of each of the aggravating circumstances provided in §
13A-5-50, Ala. Code 1975; the existence or nonexistence of each of the
mitigating circumstances provided in § 13A-5-51, Ala. Code 1975; or
the existence or nonexistence of any nonstatutory mitigating
circumstances provided in § 13A-5-52, Ala. Code 1975.
After reviewing the trial court’s sentencing order and the record on
appeal, we agree with the state that remand is necessary for the trial
court to correct certain errors and omissions in its sentencing order.
Therefore, this cause is remanded with instructions that the trial court 1)
review those portions of the record concerning the penalty phase of trial,
2) make new findings regarding each of the aggravating circumstances
and the mitigating circumstances, 3) weigh those aggravating and
mitigating circumstances and determine whether the aggravating
circumstances outweigh the mitigating circumstances, and 4) enter a
proper sentencing order as required by § 13A-5-47(d), Ala. Code 1975.
No new sentencing hearing is required. . . . The trial court is granted
the authority to resentence Broadnax in the event the court determines
that death is not the appropriate sentence. See Parker v. State, 587 So.
2d 1072 (Ala. Cr. App.1991), aff’d, 610 So. 2d 1181 (Ala. 1992), cert.
denied, 509 U.S. 929, 113 S. Ct. 3053, 125 L. Ed. 2d 737 (1993). A
return should be made to this Court within 35 days from the date of this
opinion.
8

Broadnax, 825 So. 2d at 221-22 (footnote omitted).
The trial court filed a corrected sentencing order, which found, again, all four
aggravating circumstances offered by the State, and it noted:
The especially heinous, atrocious, or cruel aggravating circumstance
pursuant to § 13A-5-49(8) was well established [by the evidence] which
showed that the victim, Hector J. Stamps, was brutally murdered in the
presence of her grandson, DeAngelo Stamps, and immediately after the
murder, the victim, DeAngelo Stamps’s grandmother, was stuffed into
the trunk of the automobile and driven from the scene of the first
murder[,] approximately one and a half hours away[,] to the scene of the
second murder where the four-year-old grandson, DeAngelo Stamps,
was brutally murdered. The manner in which the death of the
grandmother was caused in the presence of the four-year-old grandson
and the manner in which the death of the four-year-old grandson ensued
and the terror inflicted on the mind of the four-year-old grandson raises
this crime to a conscienceless and pitiless crime which was
unnecessarily torturous to the victim and, therefore, fell into the
category of especially heinous, atrocious, or cruel.
Id. at 230-31 (Appendix A)(original alterations deleted; alterations added). The court
specifically addressed the statutory mitigating circumstances set forth in Ala. Code
§ 13A-5-51(1)-(7) and found none were present. Id. at 231-32. In this sentencing
order, the court addressed Dorothy McKinstry’s testimony, finding that any
mitigating circumstance to which she may have testified “was greatly outweighed by
the aggravating circumstances . . . and that even . . . if [her testimony supported a
finding of] a mitigating circumstance, . . . it [was] totally outweighed by the

9

aggravating circumstances as presented by the evidence.” Id. at 233. Thus, the court
again upheld the jury’s recommendation of a death sentence.
The ACCA affirmed. Id. at 226. And, the Alabama Supreme Court granted
certiorari and affirmed.3 The United States Supreme Court denied certiorari review.
Broadnax v. Alabama, 536 U.S. 964 (2002).
Thereafter, Broadnax filed a petition for post-conviction relief pursuant to Ala.
R. Crim. P. 32. See generally doc. 12, Vol 21, Tab 52 at 192-200 to Vol. 22 at 201293. And, as the ACCA outlined,
On September 24, 2003, the State responded to the petition. On
September 26, 2003, the circuit court summarily dismissed several of the
claims in Broadnax’s petition and ordered Broadnax to amend several
other claims to comply with the pleading requirements in Rule 32.3 and
Rule 32.6(b). After obtaining multiple extensions, Broadnax filed his
first amended petition on January 16, 2004, in which he incorporated all
the claims from his original petition and expanded on some of those
claims. On March 8, 2004, and March 10, 2004, respectively, the State
responded to the first amended petition. On March 23, 2004, the circuit
court summarily dismissed several of the claims in Broadnax’s petition
and scheduled an evidentiary hearing on the remaining claims.

3

Among other things, the Alabama Supreme Court found that “[t]he trial court’s instruction
regarding the standard necessary for finding a mitigating circumstance was incorrect,” Ex parte
Broadnax, 825 So. 2d at 235, 237; that the error was harmless because the incorrect jury instruction
“had no impact on the jury’s recommendation or on the trial court’s sentence of death.” Id. at 237;
and that the trial court’s instruction – “regarding the . . . aggravating circumstance” – had not
“resulted in an overbroad and arbitrary application of this aggravating circumstance,” and that
“[d]espite the fact that the trial court’s instruction did not include the phrase ‘compared to other
capital offenses,’ the instruction, when reviewed in its entirety, adequately narrowed this
circumstance.” Id.

10

On April 8, 2005, Broadnax filed a motion for leave to amend his
petition, a motion for funds for a psychological evaluation and a
sociological report, and a motion for discovery. On April 15, 2005, the
State filed oppositions to all of Broadnax’s motions, and the circuit court
held a hearing on the motions the same day, after which it denied the
motions. The circuit court held an evidentiary hearing on the remaining
claims in Broadnax’s first amended petition on May 23, 2005. On June
14, 2005, the circuit court issued an order denying the remaining claims
in the first amended petition, and Broadnax appealed.
On appeal, [the ACCA] reversed the circuit court’s judgment and
remanded the case for further proceedings on the ground that the circuit
court had erred in denying Broadnax’s April 8, 2005, motion to amend
his petition. Broadnax v. State, 987 So. 2d 631 (Ala. Crim. App. 2007).
The Alabama Supreme Court denied the State’s petition for certiorari
review, and [the ACCA] issued a certificate of judgment on December
21, 2007.
Broadnax, 130 So. 3d at 1239-40.
Broadnax filed a second amended Rule 32 petition in May 2008. After an
evidentiary hearing in 2011, the circuit court denied the petition, see generally doc.
12, Vol. 32, Tab 76, at 54-87, and Broadnax appealed. The ACCA affirmed,
Broadnax, 130 So. 3d at 1268, and the Alabama Supreme Court denied certiorari
review, see id. at 1232. Broadnax timely filed the instant § 2254 habeas petition.
Doc. 1.

11

II. STANDARD OF REVIEW
As to any claim “adjudicated on the merits in State court proceedings,” this
court may not grant the § 2254 habeas petition –
“. . . unless the adjudication of the claim –
“(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
“(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.” [42 U.S.C. § 2254(d).]
In applying this “highly deferential standard for evaluating
state-court rulings, . . . state-court decisions [must] be given the benefit
of the doubt.” [Cullen v.] Pinholster, 563 U.S. [170, 181], 131 S. Ct.
[1388], at 1398 [(2011)](internal quotation marks omitted). They must
be reviewed solely on “the record that was before the state court that
adjudicated the claim on the merits.” Id., at [181] . . . . And the prisoner
must rebut any state court factual findings he seeks to challenge by clear
and convincing evidence under § 2254(e)(1). Burt v. Titlow, 571 U.S.
[12, 18], 134 S. Ct. 10, 15, 187 L. Ed. 2d 348 (2013).
Brumfield v. Cain, 135 S. Ct. 2269, 2288-89 (2015). The “backward-looking
language” of § 2254(d) “requires an examination of the state-court decision at the
time it was made. It follows that the record under review is limited to the record in
existence at that same time i.e., the record before the state court.” Cullen, 563 U.S.
at 182. Also, “[s]tate court decisions are measured against [the Supreme] Court’s
precedents as of ‘the time the state court renders its decision.’” Id. (quoting Lockyer
12

v. Andrade, 588 U.S. 63, 71-72 (2003)). “Deciding whether a state court’s decision
involved an unreasonable application of federal law[, § 2254(d)(1),] or was based on
an unreasonable determination of fact[, § 2254(d)(2),] requires the federal habeas
court to train its attention on the particular reasons – both legal and factual – why
state courts rejected a state prisoner’s federal claims, and to give appropriate
deference to that decision.”

Wilson v. Sellers, 138 S. Ct. 1188, 1191-92

(2018)(internal quotations and citations omitted).
Section 2254(d) “preserves [this court’s] authority to issue the writ in cases
where there is no possibility fairminded jurists could disagree that the state court’s
decision conflicts with [the] Court’s precedents. It goes no further.” Harrington v.
Richter, 562 U.S. 86, 102 (2011)(emphasis in original). “As a condition for obtaining
habeas corpus from [this] court, [Broadnax] must show that the state court’s ruling
on [his] claim . . . was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Id. at 103. “[T]he ruling must be objectively unreasonable, not
merely wrong; even clear error will not suffice.” Virginia v. LeBlanc, 137 S. Ct.
1726, 1728 (2017)(quoting Woods v. Donald, 135 S. Ct. 1372, 1376 (2015)(per
curiam))(internal quotations omitted). In other words, “if some fairminded jurists
could agree with the state court’s decision, although others might disagree, federal
13

habeas relief must be denied.” Loggins v. Thomas, 654 F.3d 1204, 1220 (11th Cir.
2011)(emphasis in original). Nevertheless, “‘[e]ven in the context of federal habeas,
deference does not imply abandonment or abdication of judicial review,’ and ‘does
not by definition preclude relief.’” Brumfield, 135 S. Ct. at 2277 (quoting Miller–El
v. Cockrell, 537 U.S. 322, 340 (2003)).
“When the evidence leads very clearly to the conclusion that a federal claim
was inadvertently overlooked in state court, § 2254(d) entitles the prisoner to an
unencumbered opportunity to make his case before a federal judge.” Johnson v.
Williams, 568 U.S. 289, 303 (2013). However,
When a federal claim has been presented to a state court and the state
court has denied relief, it may be presumed that the state court
adjudicated the claim on the merits in the absence of any indication or
state-law procedural principles to the contrary. That presumption stands
unless rebutted by evidence from the state court’s decision and the
record that leads very clearly to the conclusion that the federal claim was
inadvertently overlooked in state court.
Pittman v. Sec’y, Fla. Dep’t of Corr., 871 F.3d 1231, 1245 (11th Cir. 2017)(internal
citations and quotations omitted).
The court need not determine in every instance whether AEDPA deference
applies:
Courts cannot grant writs of habeas corpus under § 2254 by engaging
only in de novo review when it is unclear whether AEDPA deference
applies, § 2254(d). In those situations, courts must resolve whether
14

AEDPA deference applies, because if it does, a habeas petitioner may
not be entitled to a writ of habeas corpus under § 2254(d). Courts can,
however, deny writs of habeas corpus under § 2254 by engaging in de
novo review when it is unclear whether AEDPA deference applies,
because a habeas petitioner will not be entitled to a writ of habeas
corpus if his or her claim is rejected on de novo review, see § 2254(a).
Berghuis v. Thompkins, 560 U.S. 370, 390 (2010).
III. DISCUSSION OF BROADNAX’S CLAIMS
Broadnax raises claims related to ineffective assistance of counsel (section A
below), alleged improper instructions to the jury (sections B and C), alleged errors
in the sentencing order (Section D), and alleged prosecutorial misconduct (Section
E). The court addresses these claims below.
A. INEFFECTIVE ASSISTANCE OF COUNSEL
1. Standard of Review
The “benchmark” for judging any claim that trial counsel provided ineffective
assistance is “whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied upon as having produced a just
result.” Strickland v. Washington, 466 U.S. 668, 686 (1984). Strickland established
a two-pronged standard for judging, under the Sixth Amendment, the effectiveness
of an attorney’s representation at trial:
A convicted defendant’s claim that counsel’s assistance was so defective
as to require reversal of a conviction or death sentence has two
15

components. First, the defendant must show that counsel’s performance
was deficient. This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense. This requires
showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said that the conviction or
death sentence resulted from a breakdown in the adversary process that
renders the result unreliable.
Id. at 687.4 The two parts are conjunctive, and a petitioner bears the burden of
proving both “deficient performance” and “prejudice” by “a preponderance of
competent evidence.” Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir.
2000)(en banc). “Unless he establishes both requirements, ‘it cannot be said that the
conviction or death sentence resulted from a breakdown in the adversary process that
renders the result unreliable.’” Wilson v. Warden, Georgia Diagnostic Prison, 898
F.3d 1314, 1322 (11th Cir. 2018)(quoting Strickland, 466 U.S. at 687). However, this
court need not address both components;

“[i]f it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course
should be followed.” Id. (quoting Strickland, 466 U.S. at 697). Stated another way,
“[b]ecause both parts of the test must be satisfied in order to show a violation of the
Sixth Amendment, the court need not address the performance prong if the defendant
4

See also Williams v. Taylor, 529 U.S. 362, 390 (2000); Grayson v. Thompson, 257 F.3d
1194, 1215 (11th Cir. 2001).

16

cannot meet the prejudice prong, or vice versa.” Holladay v. Haley, 209 F.3d 1243,
1248 (11th Cir. 2000).
a. The Performance Prong
“The burden of persuasion is on the petitioner to prove by a preponderance of
the evidence that counsel’s performance was unreasonable.” Stewart v. Secretary,
Department of Corrections, 476 F.3d 1193, 1209 (11th Cir. 2007)(citing Chandler,
218 F.3d at 1313). To satisfy the performance prong, a petitioner must prove that
counsel made errors so serious that he or she was not functioning as the counsel
guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. The standard for
gauging attorney performance is “reasonableness under prevailing professional
norms.” Id. at 688.5 “The test of reasonableness is not whether counsel could have
done something more or different,” but whether counsel’s performance “fell within
the broad range of reasonable assistance at trial.” Stewart, 476 F.3d at 1209 (citing
Chandler, 218 F.3d at 1313).

“Furthermore, [the court] must recognize that

omissions are inevitable. But, the issue is not what is possible or what is prudent or
appropriate, but only what is constitutionally compelled.” Id. (quoting Burger v.
Kemp, 483 U.S. 776, 794 (1987))(internal quotations omitted).

5

The Sixth

See also Williams v. Taylor, 529 U.S. at 390-91; Darden v. Wainwright, 477 U.S. 168, 184
(1986); Chandler, 218 F.3d at 1313.

17

Amendment does not guarantee a defendant the very best counsel or the most skilled
attorney, but only counsel that performs within reasonable professional norms. “The
test has nothing to do with what the best lawyers would have done. Nor is the test
even what most good lawyers would have done. [The court] ask[s] only whether
some reasonable lawyer at the trial could have acted, in the circumstances, as defense
counsel acted at trial.” White v. Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992).
The reasonableness of counsel’s performance is judged from the perspective
of the attorney at the time of the alleged error and in light of all the circumstances.6
And, “[u]nder this standard, there are no ‘absolute rules’ dictating what reasonable
performance is or what line of defense must be asserted. . . . Indeed, . . . [a]bsolute
rules would interfere with counsel’s independence — which is also constitutionally
protected — and would restrict the wide latitude counsel have in making tactical
decisions.” Michael v. Crosby, 430 F.3d 1310, 1320 (11th Cir. 2005)(citations and
quotations omitted). Put simply, “[j]udicial scrutiny of counsel’s performance must
be highly deferential,” Strickland, 466 U.S. at 689, and courts must recognize that
“trial advocacy is not a science, but an art; there are few ‘right’ answers in the proper

6

See, e.g., Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001)(giving lawyers “the
benefit of the doubt for ‘heat of the battle’ tactical decisions”); Mills v. Singletary, 161 F.3d 1273,
1285-86 (11th Cir. 1998)(noting that Strickland performance review is a “deferential review of all
of the circumstances from the perspective of counsel at the time of the alleged errors”).

18

way to handle a trial,” Harvey v. Warden, Union Corr. Inst., 629 F.3d 1228, 1238
(11th Cir. 2011)(quoting Strickland, 466 U.S. at 693 (“Representation is an art, and
an act or omission that is unprofessional in one case may be sound or even brilliant
in another.”)). Therefore, this court “must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689. After all,
It is all too tempting for a defendant to second-guess counsel’s
assistance after conviction or adverse sentence, and it is all too easy for
a court, examining counsel’s defense after it has proved unsuccessful,
to conclude that a particular act or omission of counsel was
unreasonable. A fair assessment of attorney performance requires that
every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time. Because of
the difficulties inherent in making the evaluation, a court must indulge
a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy. There are countless
ways to provide effective assistance in any given case. Even the best
criminal defense attorneys would not defend a particular client in the
same way.
Id. (citations and internal quotation marks omitted).
“Based on this strong presumption of competent assistance, the petitioner’s
burden of persuasion is a heavy one: ‘petitioner must establish that no competent
counsel would have taken the action that his counsel did take.’” Stewart, 476 F.3d

19

at 1209 (quoting Chandler, 218 F.3d at 1315). “Even if many reasonable lawyers
would not have done as defense counsel did at trial, no relief can be granted on
ineffectiveness grounds unless it is shown that no reasonable lawyer, in the
circumstances, would have done so.” Rogers, 13 F.3d at 386 (emphasis added).
b. The Prejudice Prong
“A petitioner’s burden of establishing that his lawyer’s deficient performance
prejudiced his case is also high.” Van Poyck v. Florida Department of Corrections,
290 F.3d 1318, 1322 (11th Cir. 2002). “It is not enough for the [habeas petitioner]
to show that the errors had some conceivable effect on the outcome of the
proceeding.” Strickland, 466 U.S. at 693; see also Harrington, 562 U.S. at 112 (“The
likelihood of a different result must be substantial, not just conceivable.”). Instead,
the habeas petitioner “must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the results of the proceeding would have been
different.

A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694. In the context of the death
sentence itself, “the question is whether there is a reasonable probability that, absent
the errors, the sentencer . . . would have concluded that the balance of aggravating
and mitigating circumstances did not warrant death.” Stewart, 476 F.3d at 1209
(quoting Strickland, 466 U.S. at 695).
20

To satisfy this high standard, a petitioner must present competent evidence
proving “that trial counsel’s deficient performance deprived him of ‘a trial whose
result is reliable.’” Brown v. Jones, 255 F.3d 1272, 1278 (11th Cir. 2001)(quoting
Strickland, 466 U.S. at 687). In other words, “[a] finding of prejudice requires proof
of unprofessional errors so egregious that the trial was rendered unfair and the verdict
rendered suspect.” Johnson v. Alabama, 256 F.3d 1156, 1177 (11th Cir. 2001)
(quotations and citations omitted).
c. Deference Accorded State Court’s Decisions
Deference to a state court resolution of a claim of ineffective assistance
involves a double layer of reasonableness. Under the AEDPA, the federal habeas
court may grant relief on such a claim only if the state court determination involved
an “unreasonable application” of Strickland to the facts of the case. Strickland, of
course, requires an assessment of whether counsel’s conduct was professionally
unreasonable or did not result in actual prejudice. These two assessments cannot be
conflated into one. See Harrington, 562 U.S. at 101-02. Thus, habeas relief on a
claim of ineffective assistance of counsel can be granted with respect to a claim
decided on the merits by the state court only if the habeas court determines that it was
“objectively unreasonable” for the state court to find that counsel’s conduct was not

21

“professionally unreasonable” or did not result in actual prejudice. The Harrington
Court explained,
“Surmounting Strickland’s high bar is never an easy task.” Padilla v.
Kentucky, 559 U.S. [356], [371], 130 S. Ct. 1473, 1485, 176 L. Ed. 2d
284 (2010). An ineffective-assistance claim can function as a way to
escape rules of waiver and forfeiture and raise issues not presented at
trial, and so the Strickland standard must be applied with scrupulous
care, lest “intrusive post-trial inquiry” threaten the integrity of the very
adversary process the right to counsel is meant to serve. Strickland, 466
U.S., at 689-690, 104 S. Ct. 2052. Even under de novo review, the
standard for judging counsel’s representation is a most deferential one.
Unlike a later reviewing court, the attorney observed the relevant
proceedings, knew of materials outside the record, and interacted with
the client, with opposing counsel, and with the judge. It is “all too
tempting” to “second-guess counsel’s assistance after conviction or
adverse sentence.” Id., at 689, 104 S. Ct. 2052; see also Bell v. Cone,
535 U.S. 685, 702, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002); Lockhart
v. Fretwell, 506 U.S. 364, 372, 113 S. Ct. 838, 122 L. Ed. 2d 180
(1993). The question is whether an attorney’s representation amounted
to incompetence under “prevailing professional norms,” not whether it
deviated from best practices or most common custom. Strickland, 466
U.S., at 690, 104 S. Ct. 2052.
Establishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The standards
created by Strickland and § 2254(d) are both “highly deferential,” id., at
689, 104 S. Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.
Ct. 2059, 138 L. Ed. 2d 481 (1997), and when the two apply in tandem,
review is “doubly” so, Knowles [v. Mirzayance], 556 U.S.[111, 123],
129 S. Ct. [1411], 1420 [(2009)]. The Strickland standard is a general
one, so the range of reasonable applications is substantial. 556 U.S., at
[123], 129 S. Ct. at 1420. Federal habeas courts must guard against the
danger of equating unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d) applies, the
question is not whether counsel’s actions were reasonable. The question
22

is whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.
Harrington, 562 U.S. at 105. See also Premo v. Moore, 562 U.S. 115, 123 (2011).
When the state court has adjudicated a petitioner’s ineffectiveness claims on
the merits, the findings of historical facts made in the course of evaluating that claim
are subject to a presumption of correctness under 28 U.S.C. § 2254(d)(2) and (e)(1).
See Thompson v. Haley, 255 F.3d 1292, 1297 (11th Cir. 2001). To overcome the state
court’s finding of fact, the petitioner must show that those findings were unreasonable
in light of the evidence before it and carry his burden of proving the facts by clear and
convincing evidence.
With these principles in mind, the court turns to Broadnax’s claims based on
alleged ineffective assistance of counsel.
2. Alleged Failure to Investigate Broadnax’s Alibi (Claim A)
Broadnax alleges that his trial counsel failed to properly search for alibi
evidence because, if they had, they would have discovered that he was at the work
release center [WRC] in Alexander City, Alabama, at the time the State claimed he
was returning from Birmingham. See doc. 1 at 40-59. Consistent with his claim
before this court, Broadnax argued to the ACCA that trial counsel “were ineffective
for not adequately investigating and presenting at the guilt phase of the trial an alibi

23

defense that he was at the [WRC] at 9:00 p.m. on the night of the murders” – “a time
which would have made it impossible for him to have committed the murders and
dumped the bodies in Birmingham, a one and one-half hour drive from Alexander
City, between 8:20 p.m. and 8:55 p.m., as the State’s evidence at trial indicated.”
Broadnax, 130 So. 3d at 1249 (internal quotations omitted). The ACCA rejected this
claim, noting that:
This claim is based on an alibi defense that directly contradicts the alibi
defense presented at Broadnax’s trial. In his statements to police, in his
statements to his trial attorneys . . ., and at trial, Broadnax claimed that
he was at Welborn, not at the [WRC], until about 10:45 p.m. the night
of the murders. Indeed, from all that appears, Broadnax continued
claiming to have been at Welborn that night for many years after his
convictions and sentence. Even in both his original petition, filed in
2003, and his first amended petition, filed in 2004, Broadnax continued
in his assertion that he was at Welborn the night of the murders. It was
not until 2008, 12 years after the crime, and after this Court had reversed
the judgment denying his first amended petition and Broadnax had
obtained new Rule 32 counsel to represent him, that Broadnax suddenly
changed his story regarding his whereabouts the night of the murders
and asserted that he was not at Welborn, as he had alleged for 12 years,
but was at the [WRC] at 9:00 p.m. the night of the murders. Although
we review this claim under the same principles of law as any other
ineffective-assistance-of-counsel claim, we do so with caution, keeping
in mind that it is based entirely on a newfound defense.
Id.
Broadnax contends that his “lack of clarity about facts relevant to establishing
his alibi is unsurprising because we know now, based on Dr. Ken Benedict’s expert

24

mental health evaluation, that he is cognitively impaired.” Doc. 1 at 48 n.127. He
argues, “Dr. Benedict concluded, based on testing, that Mr. Broadnax has either
learning disabilities or acquired traumatic brain damage (possibly both), which he
characterized as ‘serious neuropsychological deficits.’” Id. But, Dr. Benedict’s
diagnoses and opinion do not explain why Broadnax would provide inconsistent
statements that he was at Welborn until 10:45p.m. on the night of the murders when
he purportedly was actually at the WRC at 9:00 p.m. In addition to evidence at trial
showing that Broadnax told Det. Cunningham and his counsel that he was at Welborn
at 9:00 p.m. on the night of the murders, see Broadnax, 130 So. 3d at 1253, 1257,
Mark Chastain testified he saw Broadnax at Welborn between 10:30 and 10:45 p.m.,
see Broadnax, 825 So. 2d at 150, and Kathy Chastain testified that she saw someone
matching Broadnax’s description during the same time period, id. In other words, the
weight of the evidence belies Broadnax’s new contentions about his whereabouts.
More importantly, Dr. Benedict diagnosed Broadnax with “a cognitive disorder, not
otherwise specified, a receptive-expressive language disorder, a reading disorder, and
a disorder of written expression;” he also testified that Broadnax “met only part of the
criteria for a learning disorder and a cognitive disorder.” Broadnax, 130 So. 3d at
1267 (internal quotations and citations omitted). Critically, Dr. Benedict never stated

25

that Broadnax cannot accurately remember actual events,7 nor did he testify or offer
any evidence that, because of his mental condition, Broadnax could not give an
accurate account of his whereabouts on the night of the murders.
Relevant to the court’s inquiry, although Broadnax presented evidence at the
2011 Rule 32 hearing that he was at the WRC by 9:00 p.m. on the night of murders,
he did not present any evidence that his trial attorneys had this information or that
they had any reason to suspect that he was at the WRC, rather than at Welborn as he
had told them and as witnesses at trial had confirmed. In rejecting Broadnax’s
contention, the ACCA held that Broadnax is essentially attacking his lawyers for
information he never provided them, and that consequently counsel did not perform
deficiently.8 And, the court also rejected the claim because Broadnax never

7

Dr. Benedict did opine that Broadnax had “language processing problems in the form of
receptive and expressive language dysfunction . . . , which also has a deleterious impact on auditory
working memory,” but that Broadnax’s “scores on the Visual Memory Test are well within the
average range, if not above average.” Doc. 12, Vol. 36 at 948, 949.
8

In finding that trial counsel’s failure to investigate was not deficient performance under
Strickland, the ACCA stated in pertinent part:
Broadnax now argues, essentially, that his trial counsel should have investigated and
presented evidence to the jury that Broadnax had lied to the police [another] time –
when he had said that he was at Welborn until 10:45 p.m. the night of the murders.
“[W]hen the facts that support a certain potential line of defense are generally known
to counsel because of what the defendant has said, the need for further investigation
may be considerably diminished or eliminated altogether.” Strickland, 466 U.S. at
691, 104 S. Ct. 2052. An attorney’s decision regarding investigation depends
“critically” on information received from his or her client. Id. at 691, 104 S. Ct.
2052. In this case, neither [of Broadnax’s attorneys] had any reason whatsoever to

26

questioned his lawyers about their reasons for not investigating this purported alibi.9
Broadnax, 130 So. 3d at 1256 and n.21.

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. Broadnax told the
police, and both Brower and Bender, that he was at Welborn at 9:00 p.m. the night
of the murders, not at the [WRC]. “Trial counsel’s performance cannot be deemed
ineffective for failing to locate alibi witnesses whose existence was not brought to
his attention.” Adkins v. State, 280 Ga. 761, 762, 632 S.E.2d 650, 653 (2006). See
also Davis v. State, 9 So. 3d 539 (Ala. Crim. App. 2008).
More importantly, even if counsel had some basis for possibly thinking that
Broadnax had lied to them and to the police and may have, in fact, been at the
[WRC] at 9:00 p.m., given that it was clear that Broadnax had lied to the police
regarding other things, we cannot say that any decision to forgo attempting to further
impugn their client’s credibility by presenting additional evidence of Broadnax’s
lying to the police was unreasonable. See, e.g., Traylor v. State, 466 So. 2d 185, 189
(Ala. Crim. App. 1985)(Rule 32 petitioner’s claim that counsel was ineffective for
not calling to testify a witness who could have provided an alibi was meritless where
alibi witness’s testimony would have contradicted petitioner’s own testimony at
trial). Therefore, the circuit court correctly found that Broadnax failed to prove that
his counsel’s performance in this regard was deficient.
Broadnax, 130 So. 3d at 1256-58 (ACCA footnote omitted).
9

The court stated:
In this case, neither [of Broadnax’s attorneys] was ever questioned about whether he
had investigated the possibility of an alibi defense based on Broadnax’s being at the
[WRC] at 9:00 p.m. the night of the murders, much less about why he did not pursue
that defense, as opposed to the alibi defense that counsel did pursue, i.e., that
Broadnax was at Welborn at 9:00 p.m. the night of the murders. Because the record
is ambiguous as to the basis of [Broadnax’s attorneys’] decision in this regard, we
must presume that they exercised reasonable professional judgment. See Whitson v.
State, 109 So. 3d 665 (Ala. Crim. App. 2012)(Rule 32 petitioner failed to prove that
appellate counsel was ineffective where, although petitioner called appellate counsel
to testify at hearing, petitioner did not question appellate counsel about the
ineffective-assistance claims raised in the petition). Thus, the circuit court correctly
found that Broadnax, by failing to question his attorneys about this specific claim,
failed to overcome the presumption that counsel acted reasonably.

27

To succeed on his claim, Broadnax must show that no reasonable lawyer, in
light of information “already in hand” at the time of trial, see Strickland, 466 U.S. at
699, would have neglected to investigate whether Broadnax was at the WRC on the
night of the murders. See Wiggins v. Smith, 539 U.S. 510, 527 (2003)(“In assessing
the reasonableness of an attorney’s investigation, however, a court must consider not
only the quantum of evidence already known to counsel, but also whether the known
evidence would lead a reasonable attorney to investigate further.”). Broadnax has
failed to make this showing. In particular, Broadnax has not shown that counsel knew
or had reason to suspect that Broadnax was at the WRC at the time of the murders.
“[T]he duty to investigate does not force defense lawyers to scour the globe on
the off chance something will turn up; reasonably diligent counsel may draw a line
when they have good reason to think further investigation would be a waste.”
Rompilla v. Beard, 545 U.S. 374, 383 (2005). Therefore, “[i]n assessing the
reasonableness of an attorney’s investigation, . . . a court must consider not only the
quantum of evidence already known to counsel, but also whether the known evidence
would lead a reasonable attorney to investigate further.” Wiggins v. Smith, 539 U.S.
at 527. This “known evidence” includes defendant’s statements and actions, and,
indeed, “[t]he reasonableness of counsel’s actions may be determined or substantially

28

influenced by the defendant’s own statements or actions.” Strickland, 466 U.S. at
691. As Strickland notes:
Counsel’s actions are usually based, quite properly, on informed
strategic choices made by the defendant and on information supplied by
the defendant. In particular, what investigation decisions are reasonable
depends critically on such information. For example, when the facts that
support a certain potential line of defense are generally known to
counsel because of what the defendant has said, the need for further
investigation may be considerably diminished or eliminated altogether.
And when a defendant has given counsel reason to believe that pursuing
certain investigations would be fruitless or even harmful, counsel’s
failure to pursue those investigations may not later be challenged as
unreasonable. In short, inquiry into counsel’s conversations with the
defendant may be critical to a proper assessment of counsel’s
investigation decisions, just as it may be critical to a proper assessment
of counsel’s other litigation decisions.
Id.
Here, Broadnax relies on new evidence that was not available to his lawyers
– i.e. that he was at the WRC on the night of the murders. But this new evidence
“merely conflates the existence of a contrary picture of [his whereabouts on the night
of the murders] developed ex post on collateral review with [trial counsel’s]
therefore-inadequate ex ante actions.” Tharpe v. Warden, 834 F.3d 1323, 1342 (11th
Cir. 2016). In other words, the fact that Broadnax, years after his trial, was able to
present evidence that he was at the WRC at 9:00 p.m. on the night of the murders, and
not at Welborn as he had maintained consistently until his second amended Rule 32

29

petition, does not answer the question of what trial counsel knew, or should have
known, at the time of the trial that made their decision not to investigate further his
whereabouts unreasonable.
A review of the record shows that Broadnax told trial counsel, as well as Det.
Cunningham, that he was at Welborn on the night of the murders – when his
murdered wife brought him dinner, when she left at 8:20 p.m., and when he called his
brother at 9:00 p.m. Broadnax, 130 So. 3d at 1257. Moreover, Johnny Baker
testified he saw Broadnax driving away from Welborn, Kathy Chastain testified she
saw an individual matching Broadnax’s description run into Welborn at 10:30 p.m.,
and Mark Chastain testified that he found Broadnax inside Welborn at 10:45 p.m.
And, Broadnax has not cited any record evidence that would overcome the ACCA’s
finding that he told counsel and Det. Cunningham that he was at Wellborn at 8:20
p.m. and 9:00 p.m. on the night of the murders. Nor has the court found anything in
the record to support a finding that trial counsel knew, or had any reason to suspect,
that Broadnax was instead at WRC at 9:00 p.m. or that further investigation would
have likely led to evidence supporting a valid alibi. And, as noted by the ACCA,
Broadnax did not question his trial counsel about their investigation of his alibi after
he asserted, in his second amended Rule 32 petition, that he was at the WRC at 9:00

30

p.m. on the night of the murders. In short, there is nothing in the record to show that
trial counsel had notice of the alleged alibi or had reason to suspect its existence.
Based on this record, “trial counsel cannot reasonably be faulted for failing to
discover information which was within [Broadnax’s] personal knowledge . . . but
which [he] failed to disclose to his trial counsel.”

Dallas v. Dunn, No.

2:02-CV-777-WKW, 2017 WL 3015690, at *65 (M.D. Ala. July 14, 2017).
Moreover, counsel’s performance was not deficient because they failed to investigate
Broadnax’s whereabouts at 9:00 p.m. on the night of the murders on the “off-chance”
they would find that he was in fact not at Welborn as he had represented to counsel.
Indeed, prior to the second amended Rule 32 petition, the record contains nothing that
suggests or hints that Broadnax returned to the WRC at 9:00 p.m. Accordingly,
Broadnax has not proven that the ACCA’s decision regarding counsel’s investigation
of his alibi defense was based on an unreasonable determination of the facts in light
of the evidence presented or was contrary to or an unreasonable application of
Strickland. This court finds that most, if not all, fairminded jurists would agree with
the ACCA’s decision, and therefore does not reach the court’s decision that Broadnax
was not prejudiced by his trial counsel’s deficient investigation of his alibi, and
whether this was an unreasonable application of clearly established federal law or an
unreasonable factual determination. See Holladay, 209 F.3d at 1248.
31

3. Alleged Failure to Obtain a Psychological Evaluation for Use During
the Penalty Phase (Claim B)
Broadnax alleges also that the ACCA’s decision, that trial counsel were not
ineffective for “failing to obtain a psychological evaluation of him to use at the
mitigation phase of his trial,” is an unreasonable application of Strickland and an
unreasonable determination of the facts. Doc. 1 at 59-60. He argues, “[t]he
[ACCA’s] conclusion that mental health evidence would not have altered the balance
of aggravating and mitigating evidence is legally unsupportable because it implies
that no amount of mitigation would have led a jury to spare Mr. Broadnax’s life,” and
“[f]undamental to the Supreme Court’s death penalty jurisprudence is the notion that
there is no defendant and no crime for which a death sentence can be automatic.” Id.
at 68 (citing Woodson v. North Carolina, 428 U.S. 280, 303 (1976))(footnote
omitted).
The ACCA denied this claim, agreeing with the trial court that counsel’s
performance was not deficient. See Broadnax, 130 So. 2d at 1266-68. It also found
that, even considering the results of post-conviction psychological testing, counsel’s
failure to have Broadnax evaluated did not result in prejudice because the aggravating
circumstances clearly outweighed any and all mitigating circumstances offered at trial
and in the Rule 32 proceedings. Id. at 1267. As explained below, the state court’s

32

decision, which is based on a reasonable interpretation of the facts, is neither contrary
to nor an unreasonable application of Supreme Court precedent.
a. The Performance Prong
To support his claim that trial counsel performed deficiently, Broadnax
contends that counsel made the decision to forego a psychological evaluation without
conducting a reasonable investigation into his background. Allegedly, counsels’
“decision to forego a psychological defense . . . cannot be justified by counsels’
personal observations of Mr. Broadnax,” based on the post-conviction findings of Dr.
Benedict. Doc. 1 at 62-63. He argues:
The [ACCA] found that counsel were reasonable in failing to get a
mental health examination because “counsel indicated that Broadnax
was intelligent, well-spoken, and very cooperative.” In fact, one of his
attorneys described him as a “bright guy.” These observations from
untrained lay persons are ludicrous in light of the facts adduced by a
thorough evaluation from a trained psychologist. Neither of these
conclusions is reasonable based on the evidence that was before the state
court.
Id. at 60 (footnotes omitted). As Broadnax puts it, a reasonable investigation into his
background would have found that he was abused as a child, sexually assaulted by
a neighbor, suffered brain damage from a closed-head injury, and had attempted
suicide – facts which would have signaled the need for a psychological evaluation.
See id. at 60-61; doc. 19 at 29-30.

33

In determining that trial counsel’s performance was not deficient, the ACCA
found:
[A]t the 2005 [Rule 32] hearing, both Brower and Bender testified.
With respect to mitigation, Brower said that he spoke with Broadnax as
well as several members of Broadnax’s family, although he could not
remember exactly whom he had spoken to, and that he had also
personally “met with a number of family members” regarding
mitigation. ([Doc. 12, Vol. 26 at] R. 111.) According to Brower,
Broadnax provided no names of people who could possibly offer
mitigation evidence, other than family members, and he received more
information regarding Broadnax’s history from Broadnax’s eldest sister,
Dorothy McKinstry, than from Broadnax himself. Brower stated that
there was “not a lot of mitigation evidence present.” ([Id. at] R. 142.)
Brower testified that he did not seek a psychological evaluation of
Broadnax because he did not believe, based on his interactions with
Broadnax, that such an evaluation was necessary. Specifically, Brower
said that “Mr. Broadnax did not strike me as being someone who needed
a psychological evaluation at the time. And it’s always been my practice
not to file motions such as a psychological evaluation unless I can
support them with some articulable reason.” ([Id. at] R. 109.) Brower
said that he had no reason to believe that a psychological evaluation
would have been helpful, especially given that he truly believed that
Broadnax was innocent. Brower also said that, even after the jury
returned a guilty verdict after the guilt phase of the trial (which, he said,
was a shock to him) he “still didn’t think that a psychological evaluation
of Mr. Broadnax was warranted.” ([Id. at] R. 113.)
Bender testified that he did “quite a bit” of mitigation investigation, but
could find little mitigating evidence. ([Id., Vol. 25 at] R. 38.) As a
result, only Broadnax’s sister, Dorothy [McKinstry], was called to
testify as a mitigation witness. Bender stated that he prepared Dorothy
for her testimony and that he and Brower “discussed her testimony with
her before she went on the . . . stand in the mitigation phase.” ([Id., Vol.
26 at] R. 135.)
34

Bender said that he went to Welborn and personally spoke “to those
individuals down there,” but that all he discovered was that Broadnax
was “just the average guy working in their facility” and that there was
“nothing different or special about him.” ([Id. at] R. 67.) Bender also
testified that he spoke with Broadnax’s family members, including
Broadnax’s two sisters, brother-in-law, and mother, “quite often” about
mitigation. ([Id., Vol. 25 at] R. 39.) Bender also personally went to
Elyton Village, where Broadnax had grown up, and spoke with as many
people as he could as part of the mitigation investigation, but the people
there simply “couldn’t remember” [Broadnax] because [he] had been in
prison, and away from Elyton Village, for almost 20 years. ([Id. at] R.
40.) Indeed, Bender said that the only person he found who actually
remembered Broadnax from Elyton Village was Vince Cunningham, the
Birmingham police detective who investigated the murders of Jan and
DeAngelo and who testified for the State at Broadnax’s trial.
Bender also testified that he explained to Broadnax the purpose of
mitigation, explained the type of evidence that could be presented as
mitigation, and gave Broadnax “ideas about what I was looking for as
far as mitigation.” ([Id. at] R. 33.) Indeed, he said “that’s what most of
those visits were about.” ([Id., Vol. 26 at] R. 91.) Bender said that
Broadnax clearly understood the concept of mitigation because “[h]e’s
a bright guy,” but was unable to provide Bender with any possible
mitigating evidence. ([Id.]) In fact, Bender said that even though
Broadnax’s “parents [sic] and family told me that he was abused as a
child,” Broadnax denied any such abuse, claiming that he had gotten
into trouble a lot and “was just sort of a tough kid,” so the family “had
to sort of be tough on him.”10 ([Id. at] R. 92.) In addition, according to
Bender, Broadnax’s family said that when he was growing up Broadax
was “normal for the area” and that only after his father died did
Broadnax “sort of g[et] out of control” by getting involved in criminal
activity and eventually committing murder and going to prison. ([Id.,
Vol. 25 at] R. 36.) Bender said that he spoke with both Broadnax and his
family members about this time in Broadnax’s life, before he went to
10

Despite being present at the hearing, Broadnax did not testify that he was abused or deny
that he had told Bender he was not abused.

35

prison, and even specifically asked Broadnax’s mother about any “health
issues that he may have had[,]” ([Id., Vol. 26 at] R. 50)[,] but that
neither “[h]e nor his family members ever told me anything about any
kind of medical history that he’s had, any issues with drugs. They never
told me about him being hit by a car . . . . [T]his [the 2005 Rule 32
hearing] is the first I’m hearing it.” ([Id., Vol. 25 at] R. 36.) Bender
also testified that a suicide attempt in Broadnax’s past would “certainly”
have resulted in his seeking a psychological evaluation of Broadnax, but
that neither Broadnax nor any member of his family told Bender that
Broadnax had attempted suicide. ([Id., Vol. 26 at] R. 49.) Indeed,
Bender said that, despite speaking with Dorothy McKinstry numerous
times by telephone, Dorothy did not even mention to him before trial
that Broadnax had lived with her for a year; Dorothy said only that
Broadnax had visited her in the summers and on special occasions.
When questioned about the decision not to seek a psychological
evaluation of Broadnax, Bender explained:
“My basis, and Mr. Brower and I discussed this, was this:
Obviously, once you meet your client, you have a chance to talk
to him[,] . . . see them on an occasion or two. And if there are
things about the person’s demeanor, if there are things about the
person’s conversation, if there are things about the persons’s
behavior that would suggest to you that they’re not stable, then
obviously you want to have them evaluated. It was just the
opposite with Mr. Broadnax.
....
“Mr. Broadnax was, in my opinion, in having dealt with, up to
that point, having dealt with a lot of people who were in prison
and who had committed crimes, he was a bright person. He was
very fluent in his conversation. He was eloquent to a degree. He
had – his handwriting was magnificent. He explained – those
things that he explained to [me], he explained them to me in . . .
a good sort of common sense. He had ideas. As I explained the
facts to him as we knew them, he had ideas to sort of explain why
36

these things couldn’t be, why this couldn’t be this way. And so
there was absolutely nothing about him, his demeanor, his
conversation, his behavior, his hygiene [–] You know, hygiene is
one of those things you can normally look at and tell whether a
person has mental or emotional issues [–] [h]e had none of those
things. So there was no reason, in my opinion, to have him
evaluated. The fact that he was charged with this really
horrendous crime is not a basis just to have him evaluated,
especially when he tells you he didn’t have anything to do with it.
And to be honest with you, I believed him.”
([Id., Vol. 25 at] R. 29-31.) Bender also described Broadnax as “[w]ell
spoken” and “mild mannered” and said that Broadnax “could write” and
that he “conversed well.” ([Id., Vol. 26 at] R. 97.) He further said that
Broadnax was very cooperative, “as cooperative as any individual I
probably ever represented before that and even since that.” ([Id., Vol.
25 at] R. 32.) He also said that Broadnax was clearly capable both
mentally and emotionally to assist in his defense.
Broadnax, 130 So. 3d at 1261-64 (footnote added).
Broadnax did not question his attorneys about Dr. Benedict’s findings or about
his mental impairments or learning disabilities. His trial counsel were questioned
however about their efforts to obtain Broadnax’s school records. And, records for
three schools years (6th through 8th grades) obtained by Rule 32 counsel were
admitted at the 2005 hearing. Doc. 12, Vol. 25 at 951; id., Vol. 26 at 44-48. The
school records however do not reflect the level of impairment described by Dr.
Benedict.11
11

Broadnax’s letter grades by subject for each school year were: (1) sixth grade – an A in
physical education; a B in art; C’s in library, music, and science; and D’s in English, math, and social

37

In addition to addressing the testimony of trial counsel at the 2005 hearing, the
ACCA noted that Broadnax’s family – “his two sisters Dorothy McKinstry and
Annette McKinstry, his two nephews LaQuintas McKinstry and Joseph DeAngelo
McKinstry, and his niece Chiquita Swift” – testified at the hearing, and that their
testimony “did not support, but refuted, several of Broadnax’s allegations about his
childhood.” Broadnax, 130 So. 3d at 1245. The ACCA found:
For example, in his original petition, Broadnax alleged that, when he
lived with his older sister, Dorothy McKinstry, in Michigan for a year
when he was a teenager, his sister and brother-in-law physically abused
him and starved him. He also alleged in his second amended petition
that while living in Michigan he attempted to commit suicide. However,
at the 2005 hearing, Dorothy testified that neither she nor her husband
physically abused Broadnax and that he was well fed while he lived with
them. She also said that Broadnax’s alleged suicide attempt was not, in
fact, a suicide attempt, but was an accidental overdose from a mixture
of alcohol and pain medication Broadnax had stolen from her.
Broadnax also alleged in his original petition and second amended
petition that he was physically abused by his mother. However, at the
2005 hearing, Broadnax’s younger sister, Annette McKinstry, testified
that, although Broadnax was punished with “whippings” with a switch
or a belt whenever he got into trouble, he was not punished excessively.
([Doc. 12, Vol. 26 at] R. 149.)
Id. at 1261 n.24.

studies; (2) seventh grade – an A in art; B’s in library, science, and writing; C’s in language,
literature, math, music, physical education, and speech arts; and D’s in social studies and spelling;
and (3) eighth grade – a year when Broadnax missed 26 days of schools – an A in art; a B+ in
physical education; a B in writing; a C+ in library; C’s in literature, science, and social studies; and
D’s in math and spelling. Doc. 12, Vol. 25 at 951.

38

In reviewing the performance of trial counsel, this court’s “test has nothing to
do with what the best lawyers would have done. Nor is the test even what most good
lawyers would have done. [The court] ask[s] only whether some reasonable lawyer
at the trial could have acted, in the circumstances, as defense counsel acted at trial.”
White v. Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992). Generally, in a death
penalty case, trial counsel has an obligation to thoroughly investigate defendant’s
background for possible mitigation evidence. See Wiggins, 539 U.S. at 522. But,
while “[c]ounsel representing a capital defendant must conduct an adequate
background investigation, . . . it need not be exhaustive.” Raulerson v. Warden, 928
F.3d 987, 997 (11th Cir. 2019)(citation omitted).
“In assessing the reasonableness of an attorney’s investigation, . . . a court
must consider not only the quantum of evidence already known to counsel, but also
whether the known evidence would lead a reasonable attorney to investigate further.”
Wiggins, 539 U.S. at 527. “[A] particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances, applying a heavy measure of
deference to counsel’s judgments.” Strickland, 466 U.S. at 691. “‘[W]hat
investigation decisions are reasonable depends critically’ upon the information the
defendant furnishes to his counsel,” Pooler v. Secretary, Florida Dept. of
Corrections, 702 F.3d 1252, 1269 (quoting Strickland, 466 U.S. at 691), and
39

information family members furnish to counsel, see Stewart, 476 F.3d at 1211. Of
course, as with all issues related to judging the reasonableness of counsel’s
performance under Strickland, “a court must avoid using ‘the distorting effects of
hindsight’ and must evaluate the reasonableness of counsel’s performance ‘from
counsel’s perspective at the time.’” Chandler v. United States, 218 F.3d 1305, 1316
(11th Cir. 2000)(quoting Strickland, 466 U.S. at 689).
Moreover, “counsel is not required to seek an independent [mental] evaluation
when the defendant does not display strong evidence of mental problems.” Holladay,
209 F.3d at 1250 (citing Bertolotti v. Dugger, 883 F.2d 1503, 1511 (11th Cir. 1989)).
Indeed, in cases where the defendant did not “exhibit[ ] any ‘red flags’ or ‘obvious
indicators’ of substantial mental health problems, which would have led a reasonable
attorney to delve further into possible mental health issues,” Gissendaner v. Seaboldt,
735 F.3d 1311, 1332 (11th Cir. 2013), or where a defendant did not “have trouble
communicating and was generally cooperative” and “never did or said anything to
indicate to [counsel] that he had any mental problems,” Baldwin v. Johnson, 152 F.3d
1304, 1314 (11th Cir. 1998), counsel’s failure to request a psychiatric examination
was not deficient.
As discussed supra, the testimony of trial counsel, when considered in light of
Broadnax’s family members’ testimony at the 2005 Rule 32 hearing, and Dorothy
40

McKinstry’s testimony during the penalty phase of the trial, demonstrates that trial
counsel had no indication that a psychological evaluation was warranted or would
assist in their presentation of a mitigation case. Broadnax’s presentation and
demeanor did not indicate the presence of a mental or behavioral disorder. And,
although Broadnax faults trial counsel for failing to discover that he was physically
abused as a child, sexually abused by a neighbor, suffered a closed-head injury, and
had attempted suicide, no evidence in the record establishes that Broadnax or his
family members ever gave this information to counsel or that counsel ignored
indications or red flags that indicated further investigation was required.12
Indeed, Broadnax has not pointed to any facts of record that would support a
finding that counsel had notice, much less “strong evidence,” of the need to have
Broadnax independently evaluated for mental and/or psychological impairments. See
Holladay, 209 F.3d at 1250. To the contrary, based on the record, after talking with
family members and interacting with Broadnax prior to trial, counsel had no reason
to suspect the existence of a psychological or mental impairment related to
Broadnax’s ability to engage in written expression that was later diagnosed by Dr.
12

See Rompilla, 545 U.S. at 390 (if counsel had looked in the file of petitioner’s prior
conviction, which was easily accessible and which the State planned to use to prove aggravating
circumstances, “they would have found a range of mitigation leads that no other source had opened
up”); Hardwick v. Sec'y, Fla. Dep't of Corr., 803 F.3d 541, 552 (11th Cir. 2015)(court found
counsel’s performance was deficient because counsel “was aware of a number of red flags,” but
unreasonably failed to investigate further).

41

Benedict. And, Broadnax has not identified what “red flags” his trial counsel should
have seen that would have led a reasonable lawyer to have Broadnax evaluated by
a mental health professional.
To close, Broadnax’s reliance on Dr. Benedict’s post-trial evaluation and report
has “merely conflate[d] the existence of [the] contrary picture of [his] upbringing [and
mental condition] developed ex post on collateral review [by Dr. Benedict] with [trial
counsel’s] therefore-inadequate ex ante actions.” Tharpe, 834 F.3d at 1342. Stated
differently, that Broadnax presented evidence developed years after trial that he
suffered cruelly as a child and that he had cognitive and learning impairments does
not answer the question of what trial counsel knew, or should have known, at the time
of trial that made their decision not to seek a psychological evaluation unreasonable.
Therefore, Broadnax has not “established that no competent counsel would have
taken the action that his counsel did take,” Chandler, 218 F.3d at 1315, and, because,
most, if not all, fairminded jurists would agree with the ACCA’s decision, habeas
relief on this issue is due to be denied.
b. The Prejudice Prong
In light of the finding related to trial counsel’s performance, the court need not
decide whether Broadnax suffered any prejudice. However, the court provides the
following with regard to the exclusion of Dr. Benedict’s hearsay testimony and the
42

purported prejudice from counsel’s failure to obtain an independent psychological
evaluation.
i. Whether the Exclusion of Hearsay Evidence at the Rule 26
Hearing Violated Broadnax’s Due Process Rights (Claim C)
Broadnax contends that the state court violated his due process rights by
excluding hearsay testimony at his Rule 32 hearing, even though that testimony
would have been admissible at the penalty phase of his case. Doc. 1 at 75. Under
Alabama law, hearsay testimony is not admissible in Rule 32 proceedings. Davis v.
Allen, No. CV 07-S-518-E, 2016 WL 3014784 at *94-95 (N.D. Ala. May 26,
2016)(citing Hunt v. State, 940 So. 2d 1041, 1051 (Ala. Crim. App. 2005)).
Consistent with the law, the trial court excluded hearsay testimony Broadnax offered
from Dr. Benedict at the 2011 hearing, and Broadnax contends this ruling violated his
due process rights.
“The standard of review for state evidentiary rulings in federal habeas corpus
proceedings is a narrow one. Only when evidentiary errors ‘so infused the trial with
unfairness as to deny due process of law’ is habeas relief warranted.” Felker v.
Turpin, 83 F.3d 1303, 1311-12 (11th Cir. 1996)(quoting Lisenba v. California, 314
U.S. 219, 228 (1941), quoted and applied in Estelle v. McGuire, 502 U.S. 62, 75
(1991); and citing Baxter v. Thomas, 45 F.3d 1501, 1509 (11th Cir. 1995); Kight v.

43

Singletary, 50 F.3d 1539, 1546 (11th Cir. 1995)). Therefore, “a federal court
reviewing a state prisoner’s habeas petition may not ‘reexamine state-court
determinations on state-law questions,’ but it may review state evidentiary rulings to
determine whether the rulings violated the petitioner’s due process rights.” Smith v.
Jarriel, 429 F. App’x. 936, 937 (11th Cir. 2011) (quoting Estelle, 502 U.S. at 67-68;
other citations omitted).
Based on the court’s review of the record, the exclusion of Dr. Benedict’s
testimony as hearsay did not violate Broadnax’s due process rights. As the ACCA
pointed out, Broadnax could have presented the substance of these hearsay statements
through the testimony of Broadnax and the relevant family members. However,
despite being present at the evidentiary hearing, Broadnax did not testify as to the
events described in Dr. Benedict’s proffer, and he did not call any family members
to testify to the events that were the subject of statements to Dr. Benedict. Because
Broadnax was not denied the opportunity to present these facts in an admissible form
at the evidentiary hearing, he cannot show that the failure to allow Dr. Benedict to
offer this testimony denied him a fundamentally fair proceeding. Simply arguing that
hearsay statements are admissible in the penalty phase proceedings is insufficient to
establish that exclusion of hearsay testimony made the Rule 32 proceeding so

44

fundamentally unfair that it violated his right to due process. Therefore, Broadnax’s
claim on this issue is due to be denied.13
ii. Whether Counsel’s Failure to Obtain a Psychological
Evaluation Prejudiced Broadnax
“Under Strickland, a defendant is prejudiced by his counsel’s deficient
performance if ‘there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’” Porter v. McCollum,
558 U.S. 30, 40 (2009)(quoting Strickland, 466 U.S. at 694). “[W]hen defense
counsel’s alleged deficiency occurred at the penalty phase of a capital trial, a habeas
petitioner needs to show that, ‘but for his counsel’s deficiency, there is a reasonable
probability he would have received a different sentence.’” Waldrop v. Comm’r,
Alabama Dep’t of Corr., 711 F. App’x 900, 910 (11th Cir. 2017)(quoting Porter, 558
U.S. at 41).

“A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694. Again, to assess this
“reasonable probability,” the court must “evaluate the totality of the available

13

In evaluating the reasonableness of the State court’s prejudice determination, the federal
habeas court “evaluate[s] the totality of the available mitigation evidence – both that adduced at trial
and the evidence adduced in the habeas proceeding – in reweighing it against the evidence in
aggravation.” Williams, 529 U.S. at 397-98 (citing Clemons v. Mississippi, 494 U.S. 738, 751-52
(1990)); see also Jones v. GDCP Warden, 753 F.3d 1171, 1185 (11th Cir. 2014). This “available
mitigating evidence” includes Dr. Benedict’s offer of proof. Therefore, if Broadnax had shown
deficient performance, this court would have considered Dr. Benedict’s proffered hearsay testimony
as available mitigating evidence and weighed that evidence against the aggravating evidence.

45

mitigation evidence – both that adduced at trial, and the evidence adduced in the
habeas proceeding – in reweighing it against the evidence in aggravation.” Williams,
529 U.S. at 397-98 (citing Clemons, 494 U.S. at 751-52). The petitioner has the
burden of showing “that the evidence on the prejudice question is so one-sided in his
favor that the [ACCA’s determination that he was not prejudiced by counsel’s failure
to have him psychologically evaluated] is, as the Supreme Court has phrased it,
‘beyond any possibility for fairminded disagreement.’” Holsey v. Warden, Georgia
Diagnostic Prison, 694 F.3d 1230, 1258 (11th Cir. 2012)(quoting Harrington, 562
U.S. at 103).
With regard to the question of prejudice, the Rule 32 court held:
To support his claim that he was prejudiced by the absence of
psychological testimony, Broadnax offered the testimony of Dr. Kenneth
Benedict, a psychologist . . . Dr. Benedict testified regarding a number
of tests he administered to Broadnax, including an ‘I.Q.’ test that
showed Broadnax to be in the average to low average intelligence range.
Dr. Benedict opined that Broadnax suffered from . . . Cognitive Disorder
Not Otherwise Specified, Expressive Language Disorder, Reading
Disorder, and Disorder of Written Expression.
The State offered evidence of four aggravating circumstances at the
penalty phase and the jury . . . unanimously recommended the death
penalty. There is no reasonable probability that testimony that Broadnax
suffers from “Cognitive Disorder Not Otherwise Specified” and
language disorders would have led to a different result in this case.
Similarly, the Court finds that the test results testified to by Dr. Benedict
do not give rise to a reasonable probability that the result of his trial
would have been different had trial counsel presented them. . . .
46

Broadnax, 130 So. 3d at 1265 (quoting doc. 12, Vol. 32, Tab 76 at 79-80)(internal
quotations omitted). The Rule 32 court also noted:
Prior to the evidentiary hearing, the State filed a motion in limine
seeking to exclude the presentation of hearsay evidence through Dr.
Benedict. The Court granted the State’s motion, but allowed Broadnax
to make a proffer regarding the testimony he expected from Dr.
Benedict. The proffer included statements made to Dr. Benedict by
Broadnax and his family regarding Broadnax’s childhood and Dr.
Benedict’s opinions based on those statements. For instance, Broadnax
told Dr. Benedict that he [was] sexually assaulted by a neighbor when
he was an adolescent. Based on this statement Dr. Benedict was
expected to opine that Broadnax suffered from post traumatic distress
syndrome and other mental problems. Though the evidence described
in Broadnax’s proffer was not before the Court, the Court has
considered it for the purposes of an alternative finding. Broadnax was
thirty-five when he murdered the victims in this case. The court finds
that it is not reasonably probable that a diagnosis of PTSD based on an
event that occurred more than twenty years earlier would have had any
impact on the jury’s decision. As such, the Court finds that even
considering the proffered evidence, Broadnax failed to demonstrate
prejudice.
Doc. 12, Vol. 32, Tab 76 at 81-82.
The ACCA did not address this alternative prejudice decision by the circuit
court. Broadnax, 130 So. 3d at 165 n.25. However, it did agree with the circuit
court’s prejudice finding, stating that after “thoroughly review[ing] the record from
Broadnax’s direct appeal, . . . we agree with the circuit court that even if evidence had
been presented to the jury that Broadnax had a cognitive disorder, not otherwise
specified, a receptive-expressive language disorder, a reading disorder, and a disorder
47

of written expression, such evidence would not have altered the balance of
aggravating and mitigating circumstances in this case.” Broadnax, 130 So. 3d at
1267-68. Consequently, the court found “the circuit court also correctly found that
Broadnax failed to prove that he was prejudiced by his counsel’s decision not to have
him evaluated.” Id.
This court has reviewed, de novo, “(1) evidence from the original
guilt-innocence phase, (2) evidence from the original penalty phase, [and] (3)
evidence the petitioner presented to the state habeas court,” including Dr. Benedict’s
hearsay evidence. See Whatley, 927 F.3d at 1176. Based on its review, the court
finds no substantial likelihood that Broadnax would have received a different
sentence if the decisionmakers had heard Dr. Benedict’s complete opinion.
To begin, as the ACCA found:
The jury’s verdicts from the guilt phase of Broadnax’s trial established
beyond a reasonable doubt the aggravating circumstances that the
capital offense was committed during a kidnapping and that Broadnax
had committed the capital offense after having been convicted of a
felony involving the use . . . of violence, i.e., murder.14 See Coral v.
State, 628 So. 2d [954,] 965-66 [(Ala. Crim. App. 1982)].
Additionally, the evidence presented during the guilt phase of trial was
uncontroverted that Broadnax was serving a sentence of imprisonment

14

At the 2005 Rule 32 evidentiary hearing, the State offered details about the 1978 murder,
including that, after the victim had turned to leave, Broadnax shot at him six times and then reloaded
and fired three more shots. Doc. 12, Vol. 26 at 214.

48

at the time of the offenses. The state also argued that the killings of Jan
and DeAngelo were “especially heinous, atrocious, and cruel”15 because
of the “nature of the killings” and because of the extensive mental
anguish suffered by DeAngelo before his death. The state emphasized
the testimony during the guilt phase of Dr. Brissie that Jan’s and
DeAngelo’s wounds indicated that they were lying on the ground
defenseless when they were stabbed. The state reiterated Dr. Brissie’s
testimony that Jan received at least 13 head wounds and that
DeAngelo’s skull was brutally crushed. The state further argued that
because the evidence indicated that DeAngelo saw his grandmother, Jan,
being beaten and then had to ride in terror for approximately one and a
half hours before Broadnax decided to kill him, DeAngelo’s murder was
especially [HAC] as compared to other capital offenses.
Broadnax, 825 So. 2d at 214-15 (footnote added).16

15

Heinous, atrocious, and cruel are hereafter referred to as HAC.

16

In her concurrence, Judge Cobb wrote:

The evidence indicates that Broadnax viciously beat his wife, Jan, to death with his
fists and with wooden sticks in the presence of her four-year-old grandson. The
evidence indicates that Broadnax then stuffed his wife’s body into the trunk of her
automobile and drove the automobile from his prison work-release workplace, with
her grandson in the car with him. After taking the four-year-old from the scene of
his first murder, Broadnax then beat the young child to death with such force that it
caused the top of his brain to be ripped and lacerated. . . . It boggles the mind to
consider the terror of a small child abducted by a man whom he had just watched
brutally beat his grandmother to death, realizing he was about to meet the same
grizzly fate.
Broadnax, 825 So. 2d at 223 (Cobb, J., concurring specially).

49

Despite this overwhelming evidence supporting the aggravating circumstances,
Broadnax argues that trial counsel erred, in part, by failing to present mitigating
evidence regarding psychological problems, including his alleged suicide attempt.17
But, Broadnax overlooks that overwhelming evidence of aggravating circumstances
can indeed outweigh prejudice caused by counsel’s failure to present mitigating
evidence. This is especially the case where, as here, the alleged psychological trauma
is years removed from the murders in question. As the Eleventh Circuit found in a
case involving a similar issue:
The mitigation evidence offered at the Rule 32 hearing primarily
concerned physical abuse [petitioner] suffered as a child, yet [petitioner
was 35 when he committed the crime. When a defendant is several
decades removed from the abuse being offered as mitigation evidence
its value is minimal. See Francis v. Dugger, 908 F.2d 696, 703 (11th
Cir.1990) (according “little, if any, mitigating weight” to evidence of a
deprived and abusive childhood where defendant was 31 years old when
he committed the murder). . . . Overall, the mitigation evidence offered
on [petitioner’s] behalf was less than compelling.
On the other hand, the state court found three aggravating factors: the
crime was committed while [petitioner] was under sentence of
imprisonment; [petitioner] had been previously convicted of a crime of
violence; and the murder was committed during a kidnapping. We have
previously noted that “[m]any death penalty cases involve murders that
are carefully planned, or accompanied by torture, rape or kidnapping.”

17

The record shows that trial counsel had no evidence to support this contention regarding
a suicide attempt. Dorothy McKinstry, at whose house the alleged suicide attempt occurred, testified
that Broadnax did not attempt suicide, and that Broadnax overdosed instead on pain pills and alcohol
he took in an effort to get high.

50

Dobbs v. Turpin, 142 F.3d 1383, 1390 (11th Cir. 1998) (alteration in
original)(quotations omitted). “In these types of cases, this court has
found that the aggravating circumstances of the crime outweigh any
prejudice caused when a lawyer fails to present mitigating evidence.”
Id. While that is obviously not an absolute rule, it demonstrates the
burden a defendant faces when trying to overcome such harsh
aggravating factors with mitigating evidence. See Clisby v. Alabama,
26 F.3d 1054, 1057 (11th Cir.1994) (“[S]ometimes the best lawyering,
not just reasonable lawyering, cannot convince the sentencer to overlook
the facts of a brutal murder – or, even, a less brutal murder for which
there is strong evidence of guilt in fact.”); see also Crawford v. Head,
311 F.3d 1288, 1321 (11th Cir. 2002)(finding no prejudice in part
because of the “strength of the evidence both of Crawford’s guilt and of
the aggravating circumstances”).
Callahan v. Campbell, 427 F.3d 897, 937-38 (11th Cir. 2005).
Indeed, here, the alleged trauma Broadnax cites is many years removed from
the murders. Moreover, the evidence belies Dr. Benedict’s contentions regarding the
alleged impact of the on Broadnax. For example, family members testified that
Broadnax is a gifted artist and one nephew added that Broadnax offered him some art
instruction. They testified also that Broadnax made small gifts for them from scrap
lumber. In addition, counsel testified that Broadnax had “magnificent” handwriting,
and, at the hearing, Broadnax’s sister Annette read a card that Broadnax sent her on
the occasion of her anniversary. The sentiment, apparently composed by Broadnax,
demonstrates that he, at least in that instance, did not have difficulty with written
composition. Yet, Dr. Benedict diagnosed Broadnax with difficulty with his fine

51

motor skills and a written expression disorder. But, fine motor skills are necessary
for drawing, woodworking, and handwriting. And, a component of the disorder of
written expression includes problems with handwriting and composition. Put simply,
the testimony of the family belied Dr. Benedict’s diagnosis.
The evidence also contradicts Dr. Benedict’s opinion that Broadnax would
have difficulty making decisions under novel problem-solving conditions. To begin,
as trial counsel testified, Broadnax was quick to supply information regarding his
alibi, including the 9:00 p.m. phone call to his brother and information that his
murdered wife left Welborn at 8:20 p.m. – times when the jury found Broadnax was
in Birmingham or returning from Birmingham. And, the evidence showed also that
Broadnax hid his bloody uniform and boots, and when these items were subsequently
discovered, he explained that he sold or someone had stolen the items long before the
murders. While the jury’s verdict indicates that it did not believe Broadnax’s
explanations, the fact that Broadnax provided the police and his counsel with these
explanations belies the contention that he has a cognitive disorder severely limiting
his ability to plan and to react when faced with novel conditions.
The medical evidence also undermines Dr. Benedict’s findings. For example,
although the medical record obtained by Dr. Benedict did not report that Broadnax
sustained a head injury when he was hit by a car, Dr. Benedict determined
52

nevertheless that “[a]t the age of 13 Mr. Broadnax was struck by a car such that he
was pinned between the car and a brick wall. Physical injuries included a broken leg
and fractured pelvis. He was discharged from the hospital with minimal medical care,
and the conclusion that there was no head injury was based on the absence of loss of
consciousness.” Doc. 12, Vol. 36 at 956. He noted:
Information pertaining to Mr. Broadnax’s physical trauma, his
experiences during adolescence and adulthood, and his neurocognitive
profile lead the evaluator to conclude that, despite the negative (i.e.,
absence of) findings from a notably cursory evaluation immediately
following his being directly struck by a car, Mr. Broadnax demonstrates
the tell-tale signs of a brain injury secondary to closed head trauma.
Most telling are his deficits in verbal memory and executive functions
mediated by the temporal and frontal lobes — those most vulnerable to
the effects of closed head injury, and the extensive compensatory
mechanisms he employs in attempting to adapt (e.g., attempting to read
lips, asking others to write for him, and heavy reliance on models in the
form of received mail, used to remember the way certain words are
formed).
Id. at 958 (emphasis added). Even if Dr. Benedict is correct, trial counsel’s failure
to discover Broadnax’s alleged closed-head injury, which is not contained in
Broadnax’s medical records and which the record contains no evidence of anyone
mentioning to counsel, is not indicative of an inadequate investigation.
Finally, the evidence presented and proffered by Dr. Benedict “would not be
enough to alter the outcome [of the sentencing phase] in the face of the aggravating
circumstances.” Ferguson v. Sec’y for Dep’t of Corr., 580 F.3d 1183, 1202 (11th Cir.
53

2009). To the contrary, as the Eleventh Circuit has repeatedly held, substantial
evidence of aggravating circumstances undermine a showing of prejudice. See, e.g.,
Holsey v. Warden, Georgia Diagnostic Prison, 694 F.3d 1230, 1268-69 (11th Cir.
2012).18 Based on Circuit precedent, the strong evidence of four aggravating

18

The Holsey opinion contains the following passage:

“This is not a case where the weight of the aggravating circumstances or the evidence
supporting them was weak.” Sochor [v. Sec’y Dep’t of Corr.], 685 F.3d [1016,] 1030
[(11th Cir. 2012)] (alteration omitted); accord Kokal [v. Sec’y Dep’t of Corr.], 623
F.3d [1331,] 1347 [(11th Cir. 2010)]. Not at all. There was, and is, substantial
evidence of aggravating circumstances, which makes it more difficult to establish
prejudice under Strickland. See Sochor, 685 F.3d at 1030-33 (holding that a
petitioner did not establish the prejudice prong of Strickland in part because there
was strong evidence of the aggravating circumstance that the murder was “especially
[HAC]”); Rose v. McNeil, 634 F.3d 1224, 1242 (11th Cir. 2011)(holding that a
petitioner did not establish the prejudice prong of Strickland in part because there
was “substantial evidence in aggravation”); Callahan [v. Campbell], 427 F.3d [897,]
938 [(11th Cir. 2005)](holding that strong aggravation “demonstrates the burden a
defendant faces when trying to overcome ... harsh aggravating factors with mitigating
evidence”); Kokal, 623 F.3d at 1347-48 (finding that the Florida Supreme Court’s
holding that a petitioner had not shown prejudice was not an unreasonable
application of Strickland in part because “the aggravating circumstances . . . are
especially powerful”); Rutherford v. Crosby, 385 F.3d 1300, 1316 (11th Cir.
2004)(“A third reason why the Florida Supreme Court’s decision that [the petitioner]
had not established prejudice is not objectively unreasonable is that this is not a case
where the weight of the aggravating circumstances or the evidence supporting them
was weak.”); Crawford v. Head, 311 F.3d 1288, 1321 (11th Cir. 2002)(finding no
prejudice in part because of the “strength of the evidence both of [the petitioner’s]
guilt and of the aggravating circumstances”); Hall v. Head, 310 F.3d 683, 706 (11th
Cir. 2002)(holding “that the state court’s calculus as to prejudice was [not] an
unreasonable one” in part “because the aggravating evidence is strong”); cf. Williams
[v. Allen], 542 F.3d [1326,] 1343 [(11th Cir. 2008)](“Further supporting a finding of
prejudice is the fact that this case is not highly aggravated.”).
Holsey v. Warden, Georgia Diagnostic Prison, 694 F.3d 1230, 1268-69 (11th Cir. 2012).

54

circumstances,19 balanced against the equivocal mitigating evidence,20 convinces this
court that no reasonable possibility exists that the jury would not have recommended
a sentence of death had counsel presented evidence of the results of Dr. Benedict’s
evaluation during the penalty phase of the trial.21 “[A] reasonable jurist could
conclude that the horrific facts of the murder[s] would have completely eviscerated
the effect of [evidence of mitigation gleaned from a psychological evaluation, such
as that performed by Dr. Benedict].” See Brooks v. Comm’r, Alabama Dep’t of Corr.,
719 F.3d 1292, 1302 (11th Cir. 2013). Therefore, even if the court assumes trial
counsel performance was deficient, it is satisfied, based on a de novo review of the
record, that Broadnax cannot establish that he was prejudiced by counsel’s failure to
have him psychologically evaluated before trial.

19

The aggravating circumstances included the kidnapping and beating to death of the fouryear-old witness to the beating death of his grandmother by a convicted murderer serving a 99-year
sentence.
20

The mitigation evidence included that Broadnax suffered cognitive impairments and
learning disabilities affecting his ability to process language, perhaps from a closed head injury, that
he may have been raped and abused as a child, and that he may have tried to kill himself as a
teenager.
21

See Williams v. Allen, 458 F.3d 1233, 1245 (11th Cir. 2006)(“weak and unpersuasive”
mitigating evidence of defendant’s “(1) . . . anti-social personality disorder, (2) a non-violent
criminal history, (3) an unstable family life, and (4) an extensive alcohol and drug abuse problem”
was not sufficient to “have tipped the sentencing scales, especially when the trial court noted that
the statutory aggravators far outweighed the mitigating factors”).

55

To close, Broadnax has not demonstrated that his trial counsel were ineffective
for failing to have him psychologically evaluated prior to trial. This court finds that
most, if not all, fairminded jurists would agree with the ACCA’s decision, that
“Broadnax failed to prove that his counsel’s decision not to seek a psychological
evaluation constituted deficient performance.” Broadnax, 130 So. 3d at 1266.
Therefore, habeas relief on this issue is due to be denied.
B. GUILT PHASE JURY INSTRUCTION – “REASONABLE DOUBT” (Claim
J)
Broadnax alleges the jury instruction as to reasonable doubt “violated clearly
established United States Supreme Court precedent because it lowered the state’s
burden of proof.” Doc. 1 at 97. Specifically, he contends:
In Cage v. Louisiana, [498 U.S. 39, 41 (1990)] the United States
Supreme Court reversed the defendant’s conviction because[,] when
instructing the jury, the trial court equated reasonable doubt with “grave
uncertainty” and “an actual substantial doubt” and stated that they
needed to have a “moral certainty” that the defendant was guilty. Such
an instructional error is a structural error and requires reversal.
A close examination of the instruction in this case indicates that it has
the same flaws as the instructions in Cage. Just as the trial court did in
Cage, the trial court here equated “reasonable doubt” to a “moral
certainty.” The court defined the types of doubts that the jury could
have as those that are “sensible” and “sound.” The court then went on
to say that[,] if they did not have an “abiding conviction” that the
defendant is guilty, they should find him not guilty. This of course
implies the converse, that if they do have an abiding conviction that Mr.
Broadnax is guilty, they should convict him.
56

This instruction, when viewed as a whole, lessened the prosecution’s
burden of proof in this case. The word “conviction,” as the trial court
used it, means “The mental state or condition of being convinced; strong
belief on the ground of satisfactory reasons or evidence; settled
persuasion.” A “strong belief” is not the same as “beyond a reasonable
doubt.” When examined as a whole, the trial court’s instruction to the
jury lowered the prosecution’s burden of proof.
Id. at 98-99. In rejecting this contention, the ACCA held that “the trial court’s
definition of reasonable doubt substantially tracks the instruction in the Alabama
Pattern Jury Instructions: Criminal (3d ed. 1994),” and that “taken as a whole, the
instruction adequately defined reasonable doubt so that there is no reasonable
likelihood that the jury would have applied it in an unconstitutional manner.”
Broadnax, 825 So. 2d at 199.
In evaluating state-court jury instructions regarding“reasonable doubt,” the
court is mindful that:
The beyond-a-reasonable-doubt standard is a requirement of due
process, “but the Constitution neither prohibits trial courts from defining
reasonable doubt nor requires them to do so as a matter of course.”
[Victor v. Nebraska, 511 U.S. 1, 5 (1994)]. As long as a trial judge
“instructs the jury on the necessity that the defendant’s guilt be proved
beyond a reasonable doubt, the Constitution does not require that any
particular form of words be used in advising the jury of the
government’s burden of proof.” Id. (citation omitted). Taken as a
whole, the jury instructions must convey the concept of reasonable
doubt correctly to the jury. Id. When reviewing the correctness of
reasonable-doubt charges, the inquiry is “whether there is a reasonable
likelihood that the jury understood the instructions to allow conviction
based on” a lower burden of proof than that required by the
57

Constitution. Johnson v. Alabama, 256 F.3d 1156, 1191 (11th Cir.
2001)(citation and internal quotation marks omitted).
Icenhour v. Medlin, 567 F. App’x. 733, 737 (11th Cir. 2014).
A review of the record shows that the state court “convey[ed] the concept of
reasonable doubt correctly to the jury.”22 In fact, the trial court repeatedly instructed

22

The relevant portion of the court’s instruction to the jury states:

Now, this defendant, as a matter of law, enters into this trial with the presumption
that he is not guilty as charged in the indictment, and that is a presumption that he is
innocent. . . . And the burden is on the State of Alabama to so convince you from the
evidence of the defendant’s guilt beyond a reasonable doubt and to a moral certainty
of the guilt of the defendant before you would be authorized to convict. . . .
A reasonable doubt . . . may grow out of all of the evidence, it may grow out of a part
of the evidence, or it may grow out of a lack of the evidence. The terms “reasonable
doubt” and “moral certainty” are equivalents of each other. And this means that if
you are convinced from the evidence of the defendant’s guilt beyond a reasonable
doubt, then you would be convinced to a moral certainty. And, of course, the reverse
of this is true.
The term “reasonable doubt” is self-defining. It means a doubt that is reasonable, a
doubt for which a reason can be given. And by reason, the law means a sound,
sensible reason. And since this is true, a reasonable doubt does not mean an
imaginary doubt, a speculative doubt, or a fanciful doubt. It means just as it says, a
reasonable doubt.
Moral certainty does not mean to a mathematical certainty, . . . The best way I know
of putting this, ladies and gentlemen: If after a full and fair consideration of all of
the evidence . . . , there remains in your minds an abiding conviction that the
defendant is guilty as charged, then you would be so convinced beyond a reasonable
doubt. And in that event, the defendant should be convicted. On the other hand, if
after that same full and fair consideration of all of the evidence . . . there does not
remain in your minds an abiding conviction that the defendant is guilty as charged,
then you would not be so convinced beyond a reasonable doubt. And in that event,
the defendant should be acquitted.
...
A person charged with a felony should not be convicted unless the evidence excludes

58

the jury that the State had the burden of proving each element of each count beyond
a reasonable doubt.23 And, the court informed the jury that only if the State met this
burden of proof could the jury find Broadnax guilty.24 Otherwise, the court instructed
the jury that it must find Broadnax not guilty if it is not convinced by the evidence of
Broadnax’s guilt as to each element of each of the four counts.25 Taken as a whole,

to a moral certainty every reasonable hypothesis but that of his guilt. No matter how
strong the circumstances are, they do not come up to the full measure of proof which
the law requires if they can be reasonably reconciled for the theory that he is
innocent.
Now, the test of the sufficiency of circumstantial evidence is whether the
circumstances, as proven, produce a moral conviction to the exclusion of all
reasonable doubt of the guilt of the accused. . . . You must be convinced from the
evidence of the defendant’s guilt beyond a reasonable doubt and to a moral certainty
before you would be authorized to convict. And the burden is on the State of
Alabama to so convince you from the evidence.
Doc. 12,Vol. 8, Tab 19 at 253-56, 262-63, 264-65.
23

See, e.g., doc. 12,Vol. 8, Tab 19 at 269 (“[T]o convict, the State must prove beyond a
reasonable doubt each of the following elements of an intentional murder of two or more persons,”
which was Count 1 of the Indictment); see also id. at 260-61, 272-73, 275, 277-78, 279, 283.
24

See, e.g., doc. 12,Vol. 8, Tab 19 at 285 (“[I]f after a full and fair consideration of all the
evidence in this case, if you are convinced from the evidence beyond a reasonable doubt and to a
moral certainty, that the defendant is guilty of the offense of capital murder as charged in Count 1
of the indictment, then the form or your verdict should be: We, the jury, find the defendant guilty
of capital murder as charged in Count 1 of the indictment.”); see also id. at 273, 277-78, 282, 284,
286, 287, 288-89.
25

See, e.g., doc. 12,Vol. 8, Tab 19 at 285-86 (“However, if you are not so convinced from the
evidence beyond a reasonable doubt and to a moral certainty that the defendant is guilty of the
offense of capital murder as charged in the indictment, then the form of your verdict should reflect
that finding. And in that event, the form of your verdict should be: We, the jury, find the defendant
not guilty as charged in Count 1 of the indictment.”); see also id. at 273, 278, 282, 284-85, 286-87,
289.

59

by “[e]mphasizing the state’s burden and the jury’s obligation to focus on the
evidence presented, the entire instruction establishes it was not reasonably likely the
jury applied the instruction in an unconstitutional manner.” Icenhour, 567 F. App’x.
at 737 (citing Victor, 511 U.S. at 5; Johnson, 256 F.3d at 1190-94). Most, if not all,
fairminded jurists would agree with the ACCA’s decision that “the trial court’s
instruction to the jury on reasonable doubt, . . . taken as a whole, . . . adequately
defined reasonable doubt so that there is no reasonable likelihood that the jury would
have applied it in an unconstitutional manner.” Broadnax, 825 So. 2d at 199.
Therefore, Broadnax is not entitled to relief on this issue.
C. COURT’S PENALTY PHASE INSTRUCTIONS
Broadnax also challenges comments the court made to the jury during the
penalty phase of the trial.
1. Whether the Court Issued an Instruction That Created a Presumption
that Death was a Proper Punishment (Claim H)
Broadnax argues that the trial court’s instructions to the jury at the beginning
of the penalty phase created a presumption that death was the appropriate
punishment.26 Doc. 1 at 90. Relevant here, immediately after polling the jury

26

As Broadnax puts it, “[i]t is essential that the capital-sentencing process allows the jury
to consider all mitigation evidence relevant to the offender or the offense. The trial court’s statement
to the jury violates the Eighth Amendment because it implied to the jury that once it found an
aggravating circumstance, the proper sentence is death unless the defendant introduces mitigation

60

regarding the guilty verdicts they rendered, the court stated, in part, that “what will
be presented will be aggravating circumstances . . . by the State, which would tend
to cause the jury to return a verdict recommending death . . . and mitigating
circumstances . . . by the defense, which would tend to try to get the jury to return a
verdict . . . imposing life in the penitentiary without parole.”27 Doc. 12, Vol. 8 at 300-

evidence sufficient to outweigh the aggravating evidence.” Doc. 1 at 91-92 (footnotes omitted).
27

The court stated in relevant part:

Now, ladies and gentlemen, at the jury selection process, you were told that in the
event that the jury did find the defendant guilty of capital murder, that we would go
into a sentencing hearing, which we will do . . . [in] just a few minutes.
Now, what the sentencing hearing is, is a hearing similar to the guilt phase of the
trial. I have never known one to take that long, but usually – well, I don’t know what
evidence will be presented. But what will be presented will be aggravating
circumstances presented by the State, which would tend to cause the jury to return
a verdict recommending death by electrocution and mitigating circumstances as
presented by the defense, which would tend to try to get the jury to return a verdict
finding – or imposing life in the penitentiary without parole.
Now, these are advisory verdicts, so that ultimately the decision is made by the
Court. But these are advisory verdicts rendered by the jury, which you feel are most
appropriate in this case.
After you have been presented evidence first by the State, then by the defense, then
we will have summation. And then after that, I will recharge you as to the manner in
which you are to consider the evidence that you have heard in this punishment phase.
So before we go into that hearing, let me send you back to the jury room for just a
few minutes, . . . And as soon as we are ready to proceed, then we will bring you
back out and we will proceed with the punishment phase of the proceedings.
Doc. 12, Vol. 8 at 300-02.

61

02. Broadnax asserts this statement infected the jury’s evaluation of the case during
the penalty phase.
The ACCA “reject[ed] Broadnax’s contention that the trial court’s comment
created a presumption of death.” Broadnax, 825 So. 2d at 211. It noted that the trial
court had instructed the jury that the State had the burden to prove any aggravating
circumstances beyond a reasonable doubt and that the aggravating circumstances
must outweigh the mitigating circumstances before it could recommend the penalty
of death. Id. The court also found that “[a]ny misunderstanding that may have been
caused by the trial court’s earlier comment was cured by [a later] instruction.”28 Id.
Broadnax contends that the trial court’s statement “violate[d] the Eighth
Amendment because it implied to the jury that once it found an aggravating
circumstance, the proper sentence is death unless the defendant introduces mitigation

28

At the end of the penalty phase, the trial judge charged the jury, in part:

While it is your duty to follow the instructions which the Court has given you, no
statement, question, ruling, remark, or other expression that I have made at any time
during this trial, either during the guilt phase or during the sentence hearing is
intended to indicate any opinion of what the facts are or what the punishment should
be.
It is your responsibility to determine the facts and fix the punishment; and in doing
so, you should not be influenced in any way by what you may imagine to be my
views on such subject.
Broadnax, 825 So. 2d at 211 (quoting doc. 12, Vol. 8, Tab 26 at 355).

62

evidence sufficient to outweigh the aggravating evidence.” Doc. 1 at 91-92. The
record does not support this contention. To begin, Roberts v. Louisiana, 431 U.S.
633, 637 (1977), which Broadnax cites, stands for the broad proposition that “it is
essential that the capital-sentencing decision allow for consideration of whatever
mitigating circumstances may be relevant to either the particular offender or the
particular offense.” Id. The alleged improper comment did not limit the jury’s
consideration of any mitigating circumstance, and, as such, did not violate Roberts.
Moreover, even if the trial court’s comment constituted error, it did not have
a “substantial and injurious effect or influence in determining the jury’s verdict.” See
Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). The trial judge made the
challenged comment during the transition from the guilt to the penalty phase. Taken
in context, the comment merely explained to the jury the sequence the penalty
proceeding would follow, described the distinction between aggravating and
mitigating circumstances, and informed the jury the party who will present each type
of evidence. Contrary to Broadnax’s contention, the trial judge’s comment did not
imply that Broadnax had the burden to “introduce[] mitigation evidence sufficient to
outweigh the aggravating evidence” or outline a scenario when a death verdict would
purportedly be automatic. Moreover, the trial court’s instructions to the jury at the
end of the penalty phase cured any misunderstanding that may have occurred had a
63

juror misinterpreted the court’s earlier comments in the unlikely manner Broadnax
proposes. For these reasons, and in light of the horrific circumstances of the crimes
and Broadnax’s unique characteristics and circumstances, including that he
committed these murders while serving time for another murder, Broadnax has failed
to establish that the innocuous introductory comment by the trial court had any effect,
much less a substantial and injurious one, on the jury’s penalty phase verdict.
Therefore, habeas relief on this claim is due to be denied.
2. Whether the trial court erred by instructing the jury that Broadnax
had to prove mitigating circumstances to a “Reasonable Satisfaction” –
Harmless Error (Claim D)
Broadnax asserts next that the trial judge erred by instructing the jury that
Broadnax “had to prove mitigating circumstances to the jury’s ‘reasonable
satisfaction.’”29
29

Doc. 1 at 76-77. To Broadnax, the state courts’ “conclusion

The relevant instruction the jury stated:

Now, instructing you on aggravating or mitigating circumstances, that does not
assume or mean to assume as true any matter referred to in these instructions
concerning aggravating or mitigating circumstances, but it leaves, instead to you, for
you to determine what the facts are and what the punishment should be.
....
Now, the law of this State provides a list of some of the mitigating circumstances
which you may consider. But that list is not a complete list of the mitigating
circumstances you may consider. There are others I will instruct you on later.
Now, by reading the list of these mitigating circumstances on which you may
consider from the evidence . . it is not the Court saying that these mitigating
circumstances do exist, but these are statutory mitigating circumstances on which I
charge you and for you to consider. And these mitigating circumstances must be only

64

that this error was harmless is an unreasonable application of clearly established
federal law, . . . .” Id. He argues that the instruction prejudiced him, taking it outside
the harmless error sphere, “because it skewed the jury’s analysis of the mitigation

established from the evidence only to your reasonable satisfaction. . . .
....
Now, in addition to these seven . . . statutory mitigating circumstances that I have just
given to you, you may also consider . . . any aspect of the defendant’s character and
life and any of the circumstances of the capital offense which tend to indicate that the
defendant should not be sentenced to death.
Mitigating circumstance does not have to be included in the list which I have read to
you in order for it to be considered by you. . .
If you are satisfied from the evidence presented . . . that a mitigating circumstance
exists in this case, then you may consider it. A mitigating circumstance need merely
be proven to your reasonable satisfaction and not beyond a reasonable doubt and
to a moral certainty.
....
Now, ladies and gentlemen, if after a fair consideration of all of the evidence . . . , if
you are convinced beyond a reasonable doubt to a moral certainty that aggravating
circumstances do exist and that they outweigh, or that there are no mitigating
circumstances proven to your reasonable satisfaction, the form of your verdict
should be: ‘We, the jury, fix the punishment of the defendant, Donald Broadnax, as
death by electrocution.’
....
If you are reasonably satisfied as to the existence of any mitigating circumstances,
and if, in your judgment, those mitigating circumstances outweigh the aggravating
circumstances – . . . It is not the number of aggravating circumstances versus
mitigating circumstances, or mitigating circumstances versus aggravating
circumstances, but the seriousness of the aggravating circumstances and the
mitigation as shown to your reasonable satisfaction. . . . .
And if you are reasonably satisfied that mitigating circumstances exist and that they
outweigh the aggravating circumstances, then the form of your verdict should be:
‘We, the jury, fix the punishment of Donald Broadnax at life imprisonment without
parole.’”
Broadnax, 825 So. 2d at 212-13 (quoting doc. 12, Vol. 8, Tab 26 at 342-57).

65

evidence and could have led [the jury to conclude] that there was no mitigation
evidence, even though some jurors believed there was.” Id. at 77-78.
Although the ACCA held that the court’s instructions were erroneous,30 it
found the error harmless, noting that:
The evidence in support of the aggravating circumstances is
overwhelming; the evidence in support of the mitigating circumstances
is minimal. In light of the overwhelming evidence presented in support
of the aggravating circumstances, there is no question, that, had the jury
been properly instructed, it would still have recommended death as the
penalty. The facts presented to the jury established, beyond any doubt,
that the aggravating circumstances clearly outweighed the mitigating
circumstances. Even if the jury had been properly instructed and had
found that the mitigating circumstances existed, the aggravating
circumstances overpower any mitigation. Because we conclude that the
evidence, as presented, conclusively establishes, that no rational jury,
properly instructed, could have found otherwise, the trial court’s
erroneous instruction was harmless.
Broadnax, 825 So. 2d at 216. And, the Alabama Supreme Court affirmed, finding that
the instruction had no impact on the jury’s recommendation or on the trial court’s
sentence of death.31

30

The court held – “The defendant has the burden of interjecting a mitigating circumstance;
he does not, as the trial court’s instruction suggests, have to establish the existence of a mitigating
circumstance to the reasonable satisfaction of the jury.” Broadnax, 825 So. 2d at 214.
31

The Alabama Supreme Court found:
In the trial court’s instruction to the jury during the penalty phase, the trial court
stated: “these mitigating circumstances must be only established from the evidence
only to your reasonable satisfaction.” As the [ACCA] held, this instruction was
erroneous. Therefore, we must determine if the [ACCA] improperly concluded that
the error was harmless.

66

“[H]armless-error analysis applies to instructional errors so long as the error
at issue does not categorically vitiate all the jury’s findings.” Hedgpeth v. Pulido,
555 U.S. 57, 61 (2008)(internal citations and quotations omitted). “[A] federal court
may grant habeas relief based on trial error only when that error had substantial and
...
[A]n erroneous instruction on the consideration to give mitigating evidence is subject
to a harmless-error review. . . . .
Here, three aggravating circumstances were established beyond a reasonable doubt
as evidenced by the jury’s verdicts from the guilt phase. A review of the record
adequately supports the finding that the killings of Jan and DeAngelo were
“especially heinous, atrocious, or cruel” when compared to other capital offenses, .
. . . Thus, the state presented compelling evidence of the aggravating circumstances.
Although the defense was not limited in presenting evidence of mitigating
circumstances, the mitigating evidence was minimal. Broadnax argued that because
the murders were committed shortly after he had been denied parole, he was “under
the influence of extreme mental or emotional disturbance” when he committed the
murders, . . . He also presented testimony from his sister Dorothy McKinstry of
nonstatutory mitigating circumstances.
During the argument portion of the penalty phase, both the state and defense counsel
argued that it was proper for the jury to consider the mitigating evidence . . .
presented. The trial court stated in its order imposing the death sentence that, when
it weighed the aggravating and mitigating circumstances, it considered “all of the
matters that were presented . . . , the testimony heard at trial and the sentencing
hearing . . . , both in mitigation and by aggravation.”
After carefully reviewing all the evidence presented during the penalty phase, we
unhesitatingly conclude that even if the jury had been properly instructed on the
consideration it should give the statutory and nonstatutory mitigating circumstances,
the jury would have recommended a death sentence . . . Moreover, the trial court’s
sentencing order indicates that it gave the mitigation evidence proper consideration.
Considering the totality of the circumstances, we hold that the jury instruction,
although erroneous, had no impact on the jury’s recommendation or on the trial
court’s sentence of death.
Ex parte Broadnax, 825 So. 2d at 235-37 (emphasis in original).

67

injurious effect or influence in determining the jury’s verdict,” Calderon v. Coleman,
525 U.S. 141, 145 (1998)(quoting Brecht, 507 U.S. at 637)(internal quotations
omitted), “that is, more than a reasonable possibility that the error contributed to the
sentence,” Horsley v. Alabama, 45 F.3d 1486, 1493 (11th Cir. 1995). The Brecht
standard –
reflects the presumption of finality and legality that attaches to a
conviction at the conclusion of direct review. It protects the State’s
sovereign interest in punishing offenders and its good-faith attempts to
honor constitutional rights, while ensuring that the extraordinary remedy
of habeas corpus is available to those whom society has grievously
wronged.
A federal court upsets this careful balance when it sets aside a
state-court conviction or sentence without first determining that the error
had a substantial and injurious effect on the jury’s verdict. The social
costs of retrial or resentencing are significant, and the attendant
difficulties are acute in cases such as [Calderon], where the original
sentencing hearing took place in November 1981, some 17 years ago.
The State is not to be put to this arduous task based on mere speculation
that the defendant was prejudiced by trial error; the court must find that
the defendant was actually prejudiced by the error.
Calderon, 525 U.S. at 145-46 (internal citations and quotations omitted).
The court finds that Broadnax has failed to show actual prejudice rather than
mere speculation of such. A review of the record shows that the trial court’s
instructions did not have a substantial and injurious effect or influence on the death
sentence in this case. First, even if the court assumes the mitigating factors of

68

“emotional distress and a cruel childhood,” which were before the jury, “the full force
of the savage facts of [these] crime[s],” Horsley, 45 F.3d at 1492, are such that no
jury would have found that the mitigating circumstances outweighed the aggravating
circumstances. Second, the sentencing court and the state appeals courts reviewed
independently the aggravating and mitigating circumstances, and each court found
death was the appropriate penalty. Ex parte Broadnax, 825 So. 2d at 236-37;
Broadnax, 825 So. 2d at 214-17 (ACCA opinion); id. at 224-26 (ACCA opinion on
return from remand); id. at 233 (Appendix A, circuit court’s sentencing order).
“[T]he imbalance between aggravating and mitigating (including nonstatutory
factors) circumstances marked by Alabama’s appellate courts” is “persuasive, as a
factual matter, in [this court’s] weighing of injurious effect on the sentencer.”
Horsley, 45 F.3d at 1492. Therefore, after reviewing the record de novo, the court
finds that the instructional error during the penalty phase was harmless, as it did not
have a substantial and injurious effect or influence on the jury’s recommendation, or
on the trial judge who gave the mitigation evidence needed consideration before
deciding to sentence Broadnax to death. As such, habeas relief on this issue is due
to be denied.

69

3. Whether the Trial Court Gave an Inaccurate Instruction on
Heinous, Atrocious, or Cruel Aggravating Circumstance (Claim E)
Broadnax claims the trial court erred by failing to instruct the jury in such a
way as to narrow the vague HAC aggravator.32 Doc. 1 at 79-80. Specifically, he
contends, “[t]he judge instructed the jury on the [HAC] aggravator but did not instruct
the jury that they had to find that the murder[s] [were HAC] ‘as compared to other
capital murders,’” and “the trial court’s removal of [this] phrase . . . expanded the
[HAC] aggravator.” Id. (quoting Ala. Code § 13A-5-49(8)). Therefore, he argues,
“the aggravator was not properly narrowed, and the Alabama Supreme Court’s
conclusion to the contrary derived from an unreasonable application of clearly
established United States Supreme Court precedent.” Id. at 81.33
32

See n.15 supra.

33

The Alabama Supreme Court, citing Ex parte Kyzer, 399 So. 2d 330, 334 (Ala.1981), and
Ex parte Bankhead, 585 So. 2d 112, 124-25 (Ala. 1991), held that “The [ACCA] properly applied
the well-established law defining and applying this aggravating circumstance,” and that “[d]espite
the fact that the trial court’s instruction did not include the phrase ‘compared to other capital
offenses,’ the instruction, when reviewed in its entirety, adequately narrowed this circumstance.”
Ex parte Broadnax, 825 So. 2d at 237 (emphasis in original). As the Eleventh Circuit has held:
Since the 1981 case of Kyzer v. Alabama, . . ., the Alabama appellate courts have
confined the application of the [HAC] aggravating factor to “those conscienceless or
pitiless homicides which are unnecessarily torturous to the victim.” Kyzer, 399 So.
2d at 334 (citing State v. Dixon, 283 So. 2d 1 (Fla.1973)). The class of cases that are
“unnecessarily torturous to the victim” is not too indefinite to serve the narrowing
function mandated by the eighth amendment. See Proffitt v. Florida, 428 U.S. 242,
255-56, 96 S. Ct. 2960, 2986, 49 L. Ed. 2d 913 (opinion of Stewart, Powell, Stevens,
JJ.), reh’g denied, 429 U.S. 875, 97 S. Ct. 198, 50 L. Ed. 2d 158 (1976). Thus, when
Lindsey was sentenced in 1982, the courts of Alabama had already developed and
consistently applied a narrowing construction of the term “heinous, atrocious or cruel

70

“A trial judge has considerable discretion in choosing the language of an
instruction so long as the substance of the relevant point is adequately expressed.”
Boyle v. United States, 556 U.S. 938, 946 (2009). Here, the trial court instructed the
jury “what is intended to be included in these [HAC] aggravating circumstances are
those capital offenses . . . where the actual commission of the capital offense was
accomplished by such additional act as to set the crime apart from the norm of capital
offenses.” Doc. 12, Vol. 8, Tab 26 at 346. The trial court added that, “[f]or a capital
offense to be especially heinous . . . or atrocious, any brutality which was involved
in it must have exceeded that which is normally present in any capital offense,” and
“[f]or a capital offense to be especially cruel, it must be conscienceless or a pitiless
crime which was unnecessarily tortuous to the victim.” Id. at 346-47.
These instructions required the jury to find the murders were heinous,
atrocious, or cruel as compared to other capital murders, even if the trial court did not
quote the language of the statute. The substance of the “compared to other capital
offenses” requirement was adequately expressed in the trial court’s instructions to the
jury that, to find Broadnax’s murders of the two victims satisfied the aggravator, they
had to find (1) additional acts that set apart these murders from the norm, (2) that the

as compared to other capital offenses.”
Lindsey v. Thigpen, 875 F.2d 1509, 1514 (11th Cir. 1989).

71

murders were more brutal than the normal capital offense, and (3) that Broadnax was
unnecessarily torturous to his victims. This court finds no error in the Alabama
Supreme Court’s decision that, “[d]espite the fact that the trial court’s instruction did
not include the phrase ‘compared to other capital offenses,’ the instruction, when
reviewed in its entirety, adequately narrowed this circumstance.” Ex parte Broadnax,
825 So. 2d at 237. Therefore, because most, if not all, fairminded jurists would agree,
habeas relief on this issue is due to be denied.
4. Whether the Trial Court Erred by Instructing the Jury
Regarding the Advisory Nature of Jury’s Recommendation of Death
(Claim I)
Broadnax argues next that the court erred by instructing the jury that their
recommendation of a sentence was only advisory, stating:
In Caldwell v. Mississippi, [472 U.S. 320 (1985),] the . . . Court held
that it was improper for a judge or prosecutor to inform the jury that
their decision was reviewable. Here, the judge and the prosecutor
stressed to the jury that their verdict was merely advisory. The judge
and prosecutor trivialized the jury’s role in the proceedings by not
explaining to them that their decision must be given some weight as the
judge is determining the ultimate sentence. The Court of Criminal
Appeals rejected this argument because it found that the statements were
a correct recitation of Alabama law. This conclusion is both an
unreasonable application of Caldwell and an unreasonable determination
of the facts.
Doc. 1 at 92-93 (footnotes omitted). Although Broadnax concedes that the trial
court’s statement to the jury regarding the advisory nature of its verdict was
72

“accurate,” id. at 95, he contends Caldwell held that “it is constitutionally
impermissible to rest a death sentence on a determination made by a sentencer who
has been led to believe that the responsibility for determining the appropriateness of
the defendant’s death rests elsewhere,” id. at 94 (quoting Caldwell). He argues that
“Caldwell does not have a ‘correctness’ exception,” and that the ACCA
“unreasonably applied clearly established federal law when it concluded that
Caldwell was not violated because the trial court’s statement was correct.” Id. at 96.

“To establish a Caldwell violation, a defendant necessarily must show that the
remarks to the jury improperly described the role assigned to the jury by local law.”
Romano v. Oklahoma, 512 U.S. 1, 9 (1994)(quoting Dugger v. Adams, 489 U.S. 401,
407 (1989)). As the Court explained,
The plurality [in Caldwell] concluded that the prosecutor’s remarks,
along with the trial judge’s affirmation, impermissibly “minimize[d] the
jury’s sense of responsibility for determining the appropriateness of
death.” Id., at 341, 105 S. Ct., at 2646. Such a diminution, the plurality
felt, precluded the jury from properly performing its responsibility to
make an individualized determination of the appropriateness of the
death penalty. Id., at 330-331 . . . Justice O’Connor, in her opinion
concurring in part and concurring in the judgment, identified more
narrowly the infirmity in the prosecutor’s remarks: “In my view, the
prosecutor’s remarks were impermissible because they were inaccurate
and misleading in a manner that diminished the jury’s sense of
responsibility.” Id., at 342 . . . .

73

As Justice O’Connor supplied the fifth vote in Caldwell, and concurred
on grounds narrower than those put forth by the plurality, her position
is controlling. . . . Accordingly, we have since read Caldwell as
“relevant only to certain types of comment – those that mislead the jury
as to its role in the sentencing process in a way that allows the jury to
feel less responsible than it should for the sentencing decision.” Darden
v. Wainwright, 477 U.S. 168, 184, n.15, 106 S. Ct. 2464, 2473, n.15, 91
L. Ed. 2d 144 (1986). Thus, “[t]o establish a Caldwell violation, a
defendant necessarily must show that the remarks to the jury improperly
described the role assigned to the jury by local law.” Dugger v. Adams,
....
Id. at 8-9. Here, however, Broadnax concedes that the trial court’s statement was
“accurate.” Doc. 1 at 95. Therefore, he has no claim that the ACCA unreasonably
applied Caldwell to his case, and habeas relief on this issue is due to be denied.
D. ERRORS IN THE TRIAL COURT’S SENTENCING ORDER (Claim F)
Broadnax challenges next the trial court’s sentencing order: “The trial court
made numerous factual and legal errors in Mr. Broadnax’s sentencing order. He did
so even after the [ACCA] remanded the case to correct those errors. These errors
indicate that he did not consider mitigation.” Doc. 1 at 81. Broadnax adds that:
The [ACCA’s] conclusion that the sentencing order was satisfactory
constitutes an unreasonable application of Woodson, Lockett, and
Brown.34 The trial court’s inclusion of events that did not occur and his
warping of the testimony indicates that he was not giving Mr. Broadnax
the individualized consideration the Constitution requires. Even more
than the trial court’s three failed attempts at writing an accurate order is
34

See California v. Brown, 479 U.S. 538 (1987); Lockett v. Ohio, 438 U.S. 586 (1978);
Woodson v. North Carolina, 428 U.S. 280 (1976).

74

the way the mitigation evidence was treated. The trial court took
Dorothy McKinstry’s testimony and turned it into a diagnosis of
anti-social personality disorder, something that is typically considered
harmful, not helpful. There was no mental health expert testimony
presented, and in fact, . . . Mr. Broadnax’s attorneys never had him
evaluated for mental health issues. The [ACCA’s] conclusion that the
trial court gave the mitigation evidence the proper constitutionally
required review is an unreasonable application of clearly established .
. . precedent.
Id. at 83-85 (original footnotes omitted; footnote added).
The only specific portion of the third and final sentencing order Broadnax
objects to is the trial court’s treatment of Dorothy McKinstry’s testimony. In
particular, Broadnax challenges the court’s statement that “[t]he Defense [had]
presented testimony by the Defendant’s sister concerning the manner in which the
Defendant was reared and his antisocial behavior during his teenage years.”
Broadnax, 825 So. 2d 134, 227 (Appendix A). The trial court stated that Dorothy
McKinstry testified that Broadnax “did not have normal social contact with people
and that he never really learned how to behave around other people,” and that he did
not have “very many friends.” Id. at 229. And, viewing this testimony in the “most
favorable light” to Broadnax, the trial court found Mrs. McKinstry “may have
testified to” a “mitigating circumstance of an antisocial personality disorder.” Id. at
233. Still, the trial court found that, even “if this [antisocial behavior/antisocial
personality disorder] is a mitigating circumstance, . . . it is totally outweighed by the
75

aggravating circumstances as presented by the evidence.” Id. The ACCA affirmed,
finding that “[a]fter an independent weighing [of the aggravating circumstance and
the mitigating circumstances], . . . that the sentence of death is the appropriate
sentence in this case.” Id. at 225.
According to Broadnax, the ACCA’s finding “that the sentencing order was
satisfactory” is an unreasonable application of Woodson, Lockett, and California.35
But, the trial court’s third sentencing order and the ACCA’s opinion establish
unequivocally that these courts considered Dorothy McKinstry’s testimony and
accorded Broadnax the required “individualized sentencing.”36 Consideration of
mitigation evidence does not mean, however, that the court has to give the evidence
any specific weight. To the contrary, as the Court held in Kansas v. Marsh,
In aggregate, [Supreme Court] precedents confer upon defendants the
right to present sentencers with information relevant to the sentencing
decision and oblige sentencers to consider that information in
determining the appropriate sentence. The thrust of [Supreme Court]
mitigation jurisprudence ends here. “[The Court has] never held that a
specific method for balancing mitigating and aggravating factors in a
capital sentencing proceeding is constitutionally required.” Franklin [v.
Lynaugh, 487 U.S. 164,] 179, 108 S. Ct. 2320 [(1988)(plurality
opinion)](citing Zant [v. Stephens, 462 U.S. 862,] 875–876, n.13, 103
S. Ct. 2733 [(1983)]). Rather, [the] Court has held that the States enjoy
35

See n.34 supra.

36

See Kansas v. Marsh, 548 U.S. 163, 174 (2006)(“The use of mitigation evidence is a
product of the requirement of individualized sentencing.”)(citing Graham v. Collins, 506 U.S. 461,
484-89 (1993) (Thomas, J., concurring)).

76

“‘a constitutionally permissible range of discretion in imposing the death
penalty.’” Blystone [v. Pennsylvania], 494 U.S. [299,] 308, 110 S. Ct.
1078 [(1990)](quoting McCleskey v. Kemp, 481 U.S. 279, 305-306, 107
S. Ct. 1756, 95 L. Ed. 2d 262 (1987)). See also 494 U.S., at 307, 110 S.
Ct. 1078 (stating that “[t]he requirement of individualized sentencing in
capital cases is satisfied by allowing the jury to consider all relevant
mitigating evidence”); Graham, supra, at 490, 113 S. Ct. 892
(THOMAS, J., concurring)(stating that “[o]ur early mitigating cases may
thus be read as doing little more than safeguarding the adversary process
in sentencing proceedings by conferring on the defendant an affirmative
right to place his relevant evidence before the sentencer”).
548 U.S. at 175. Stated differently,
The United States Supreme Court has held [only] that the Eighth and
Fourteenth Amendments require that a sentencer not be prohibited from
considering as mitigation “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.” Eddings v.
Oklahoma, 455 U.S. 104, 110, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982)
(quoting Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 57 L. Ed.
2d 973 (1978)). The trial court may determine the appropriate weight
to be afforded such mitigation, but it may not exclude such evidence, as
a matter of law, from consideration altogether. Id. at 114-15, 102 S. Ct.
869. As we have explained, however, the Constitution “does not dictate
the effect that must be given once the evidence is considered; it does not
require the sentencer to conclude that a particular fact is mitigating or
to give it any particular weight.” Schwab v. Crosby, 451 F.3d 1308,
1329 (11th Cir. 2006). All that is forbidden is for sentencing courts to
give mitigating evidence “no weight by excluding such evidence from
their consideration.” Eddings, 455 U.S. at 115, 102 S. Ct. 869
(emphasis added). Thus, our consideration is “completed once it is
established that a full hearing was conducted in which appellant’s
counsel was given an opportunity to present all of the mitigation
evidence.” Baldwin v. Johnson, 152 F.3d 1304, 1323 (11th Cir. 1998)
(quoting Palmes v. Wainwright, 725 F.2d 1511, 1523 (11th Cir. 1984)).

77

Clark v. Attorney Gen., Fla., 821 F.3d 1270, 1286-87 (11th Cir. 2016).
A review of the third sentencing order shows that the trial court “considered”
the substance of Dorothy McKinstry’s testimony. To the extent Broadnax’s claim is
based on the trial court’s alleged assumption that this testimony supported a finding
that Broadnax suffered from anti-social personality disorder,37 he has not shown that
such an assumption was an unreasonable application of Supreme Court precedent,38
or that Supreme Court cases establish clearly that the trial court, as the sentencer,
could not give this effect to the testimony. And, to the extent the trial court erred in
assuming that Dorothy McKinstry testified that Broadnax suffered from anti-social
personality disorder, the error did not have a substantial and injurious effect on
Broadnax’s sentence. See Schwab, 451 F.3d at 1330. The ACCA found, “[a]fter an
independent weighing [of the aggravating and mitigating circumstances], . . . that the
37

The trial court stated:

The Court, in considering the testimony of the Defendant’s sister, even in the most
favorable light on behalf of the Defendant found that any mitigating circumstance of
an anti-social personality disorder that she may have testified to was greatly out
weighed by the aggravating circumstances as presented in the evidence in this case
and that even in consideration, if this is a mitigating circumstance, that it is totally
outweighed by the aggravating circumstances as presented by the evidence.
Broadnax, 825 So. 2d at 233 (Appendix A)(emphasis added).
38

See Schwab v. Crosby, 451 F.3d 1308, 1329 (11th Cir. 2006)(“The Constitution requires
that the sentencer be allowed to consider and give effect to evidence offered in mitigation, but it does
not dictate the effect that must be given once the evidence is considered; it does not require the
sentencer to conclude that a particular fact is mitigating or to give it any particular weight.”).

78

sentence of death is the appropriate sentence in this case,” and “that similar offenses
have been punished with sentences of death.” Broadnax, 825 So. 2d at 225 (citing,
inter alia, Ex parte Melson, 775 So. 2d 904 (Ala. 2000); Ex parte Ingram, 779 So. 2d
1283 (Ala. 2000); Ferguson v. State, 814 So. 2d 925 (Ala. Crim. App. 2000); Ex
parte Borden, 769 So. 2d 950 (Ala. 2000); Ward v. State, 814 So. 2d 899 (Ala. Crim.
App. 2000); Perkins v. State, 808 So. 2d 1041 (Ala. Crim. App. 1999)). Based on a
review of the record, this court finds “[t]here is no possibility that any error the judge
may have made in [assuming that Dorothy McKinstry’s testimony] offered in
mitigation [described Broadnax as suffering from an antisocial personality disorder]
had any effect or influence on his sentencing decision, much less a substantial and
injurious one.” See Schwab, 451 F.3d at 1330.
To close, Broadnax has failed to demonstrate that the ACCA’s rejection of this
claim applied law contrary to established Supreme Court precedent or in a manner
that was objectively unreasonable in light of such precedent. Nor has Broadnax
established that the trial court’s consideration of McKinstry’s testimony had a
substantial and injurious influence on his sentence. Therefore, Broadnax is not
entitled to habeas relief on this ground.
E. PROSECUTORIAL MISCONDUCT

79

Broadnax challenges also allege misconduct by the prosecutor during closing
arguments.
1. Whether Purported Comments About Broadnax’s Silence Violated the
Fifth Amendment (Claim G)
Broadnax argues that the prosecutors violated his constitutional right to remain
silent by making two references to his failure to testify during closing arguments.
Doc. 1 at 86. “[T]he Fifth Amendment, in its . . . bearing on the States by reason of
the Fourteenth Amendment, forbids . . . comment by the prosecution on the accused’s
silence.” Griffin v. California, 380 U.S. 609, 615 (1965). But, “[a] comment on the
failure of the defense, as opposed to that of the defendant, to counter or explain the
testimony presented or evidence introduced is not an infringement of the defendant’s
fifth amendment privilege.” Duncan v. Stynchcombe, 704 F.2d 1213, 1215-16 (11th
Cir. 1983)(emphasis in original; citation omitted). As explained by the Eleventh
Circuit,
The Fifth Amendment prohibits a prosecutor from commenting directly
or indirectly on a defendant’s failure to testify. A prosecutor’s statement
violates the defendant’s right to remain silent if either (1) the statement
was manifestly intended to be a comment on the defendant’s failure to
testify; or (2) the statement was of such a character that a jury would
naturally and necessarily take it to be a comment on the failure of the
accused to testify. The question is not whether the jury possibly or even
probably would view the remark in this manner, but whether the jury
necessarily would have done so. The defendant bears the burden of
establishing the existence of one of the two criteria. The comment must
80

be examined in context, in order to evaluate the prosecutor’s motive and
to discern the impact of the statement.
United States v. Knowles, 66 F.3d 1146, 1162-63 (11th Cir. 1995)(emphasis in
original; quotations and footnotes omitted). With this background in mind, the court
turns now to Broadnax’s specific contentions.
a. “Are they giving me another reasonable explanation for this?”
Broadnax contends that the prosecutor commented on his failure to testify by
saying to the jury that they should question whether defense counsel “are . . . giving
me another reasonable explanation for this?” Doc. 1 at 86-87 (quoting doc. 12, Vol.
7 at 161). He argues, “[w]hen viewed in context, . . . [i.e. that] [t]his statement was
made before the defense had the opportunity to make its closing argument to the
jury[,] . . . it could only have been designed to make the jury believe that Mr.
Broadnax had to explain these things to the jury.” Id. at 89. But, in context, the
prosecutor’s statements do not “manifestly” comment on Broadnax’s failure to testify,
nor are they of such a character that the jury would naturally and necessarily take
them as such.39 To the contrary, the statements refer specifically to Broadnax’s
39

The relevant portion of the prosecutor’s argument consisted of the following:

The Judge is going to give you an instruction on circumstantial evidence. And I think
it will be something like this: To convict on circumstantial evidence alone, there
cannot be any other reasonable explanation for this set of circumstances. I like to
turn that around a little bit, because the flip side of that is true also. If you look at all
the circumstances and you determine that there is no other reasonable explanation for

81

attorneys and the explanation they will offer during their closing argument to counter
the circumstantial evidence. In particular, the prosecutor asked the jury to consider
whether Broadnax’s attorneys offered a reasonable explanation for the presence of
the victims’ blood on Broadnax’s boots, which Broadnax told Det. Cunningham he
sold to a “white guy” a year before the murders, and on his work uniform, which he
told Det. Cunningham someone had stolen, and how these articles had ended up in
the WRC after the murders. The prosecutor did not tell the jury – directly or
indirectly – that they should find Broadnax guilty because of his failure to counter
this circumstantial evidence. Instead, the prosecutor asked the jury specifically to
consider whether, during closing argument, Broadnax’s attorneys offered a reasonable
explanation of the circumstantial evidence. As such, the prosecutor’s closing
argument neither manifestly commented on Broadnax’s failure to testify nor was it
all these things, then he’s guilty, and you have to find him guilty if there’s no other
reasonable explanation.
And he’s got two fine attorneys. And what 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? I mean, I don’t know what their story
is. Is it that this white guy that he supposedly sold these boots to a year before was
picked up [as] a hitchhiker by Jan and killed her. And then, in the meantime, had
broken into [the WRC] and stole some of his uniforms and then brought them back
into [the WRC], with his boots and uniforms and framed him? And if so, what is the
person’s motives? Look at whether they provide you with a reasonable explanation.
Doc. 12, Vol. 7, Tab 16 at 160-62.

82

of such a character that the jury naturally and necessarily would take it as a comment
on Broadnax’s failure to testify.
b. “There’s absolutely no tape of this defendant that’s been played
in here where [Broadnax] was saying, ‘I tried to call my brother.’”
Broadnax argues next that “[t]he prosecutor made one reference to [his] failure
to testify in reference to whether [he] called his brother during the evening that his
wife and grandson were murdered.” Doc. 1 at 87 (quoting doc. 12, Vol. 8 at 246-47.
At issue here are comments the parties made during their respective closing
arguments. Specifically, in closing, Broadnax’s attorney repeatedly referred to
statements Broadnax made to Det. Cunningham that he purportedly “tried” to call his
brother –
•

“[Detective Vince Cunningham] talked to Donald the next [day],
and y’all will remember, he said he talked to Donald on the 26th.
The murder occurred on the 25th. Donald told him, ‘I was on the
phone trying to make a call to my brother.’ Vince asked him what
time was that. He said, ‘About 9:15.’” Doc. 12, Vol. 8 at 220.

•

“Johnny Baker told Vince Cunningham at a later date, ‘I saw him
on the phone at 9:15,’ you see. That coincides exactly with what
Vince had got from [Broadnax] when he talked to him on the
26th. [‘]I was on the phone at 9:15 trying to call my brother.[‘]”
Id.

•

“[The prosecutor,] Mr. Cochran, being the good lawyer he is, he
stood and told you that the tape recording said, ‘I was talking to
my brother.’ That was not what Cunningham said, and that is not

83

what that tape said. What it said was, ‘I was trying to call my
brother.’” Id. at 220-21.
And, in response to these statements by Broadnax’s counsel, the prosecutor in rebuttal
argued her view of the evidence – that Det. Cunningham did not testify that Broadnax
told him he had “tried” to call his brother and that the tape-recorded statement
Broadnax gave Det. Cunningham did not contain any such statement.40
Based on the record and viewing the prosecutor’s argument in context, the
court finds no error in the state court’s determination that the prosecutors did not
comment on Broadnax’s failure to testify.41 Broadnax has failed to demonstrate that
40

The prosecutor said –
There’s absolutely no tape of this defendant that’s been played in here where he was
saying, “I tried to call my brother.” Again, that came from Mr. Bender who has not
taken the oath. There was no testimony of [Broadnax] saying, “I tried to call my
brother.” What did Detective Cunningham say? [“Broadnax] said, [‘]I called my
brother.[’]” And Detective Cunningham asked him for the number so he could check
it out.
Now, do you think if he had said, “I didn’t reach him,” don’t you think these lawyers
are good enough to have asked Detective Cunningham that if it had been said?
Absolutely.
Doc. 12, Vol. 8, Tab 18 at 247.
41

The ACCA rejected this claim. After noting that defense counsel had argued that Broadnax
told Det. Cunningham that he had “tried” to call his brother from the Welborn break room, the
ACCA held that the prosecutor’s argument in rebuttal was proper:
When viewing the entire context of the prosecutor’s closing argument, it is obvious
that the prosecutor was not commenting on Broadnax’s failure to testify. The state
was merely commenting on whether Cunningham’s testimony and a tape recording
of a statement showed that Broadnax told the police that he had telephoned his
brother from Alexander City, or that he had tried to telephone him. The prosecutor

84

the state court’s rejection of this claim applied law contrary to established Supreme
Court precedent or in a manner that was objectively unreasonable in light of such
precedent. Therefore, Broadnax is not entitled to habeas relief on this issue.
2. Whether the Prosecutor Improperly Shifted the Burden of Proof (Claim
K)
Broadnax argues next that “[d]uring his first closing argument, the prosecutor
told the jury that they should ask whether Mr. Broadnax had given them an
explanation for what occurred in this case,” and that “[t]his statement impermissibly
shifted the burden of proof from the State to Mr. Broadnax . . . .” Doc. 1 at 100. In
relevant part, the prosecutor stated in her closing argument that the jury should “be
thinking the whole time” during counsel for Broadnax’s closing argument whether
counsel have provided “another reasonable explanation for [the evidence].”42 Doc. 12,

argued that the evidence demonstrated that Broadnax had told Cunningham that he
had telephoned his brother at 9:15 p.m. Thus, the prosecutor’s argument consisted
of a proper argument on the evidence introduced at trial. Coral v. State, 628 So. 2d
[954,] 985 [(Ala. Crim. App. 1992)].
Given that the defense and the prosecution had conflicting interpretations of the
statement made by Broadnax to Cunningham concerning a telephone call on the night
of the offense, and that the telephone call was critical to Broadnax’s alibi defense, the
prosecutor’s comment concerning the statement was not improper. Thus, the trial
court did not commit plain error in permitting the prosecutor to comment on the
statement Broadnax made to Cunningham.
Broadnax, 825 So. 2d at 189 (emphasis in original).
42

In relevant context, the prosecutor argued:

The Judge is going to give you an instruction on circumstantial evidence. And I think

85

Vol. 7, Tab 16 at 151-53, 160-62. On direct appeal, the ACCA rejected Broadnax’s
argument that the prosecutor had improperly shifted the burden of proof, finding that
“the state did not attempt to shift the burden of proof to Broadnax,” that “[t]here is
no suggestion from the [prosecutor’s closing] argument that Broadnax had an
obligation to produce any evidence or to prove his innocence,” and that “the trial
court, at the conclusion of the closing arguments, instructed the jury as to the state’s
burden of proof and Broadnax’s presumption of innocence.”43 Broadnax, 825 So. 2d
it will be something like this: To convict on circumstantial evidence alone, there
cannot be any other reasonable explanation for this set of circumstances. I like to
turn that around a little bit, because the flip side of that is true also. If you look at all
the circumstances and you determine that there is no other reasonable explanation for
all these things, then he’s guilty, and you have to find him guilty if there’s no other
reasonable explanation.
And he’s got two fine attorneys. And what 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? I mean, I don’t know what their story
is. Is it that this white guy that he supposedly sold these boots to a year before was
picked up . . . hitchhik[ing] by Jan and killed her. And then, in the meantime, had
broken into work release and stole some of [Broadnax’s] uniforms and then brought
them back into work release, with his boots and uniforms and framed him? And if
so, what is the person’s motives? Look at whether they provide you with a
reasonable explanation.
Doc. 12, Vol. 7, Tab 16 at 151-53, 160-62.
43

With regard to circumstantial evidence, the trial court instructed the jury: “[T]he test of
the sufficiency of circumstantial evidence is whether the circumstances, as proven, produce a moral
conviction to the exclusion of all reasonable doubt of the guilt of the accused. . . . [W]hether the
evidence is direct or circumstantial, . . . the burden of proof and the measure of proof remain the
same. You must be convinced from the evidence of the defendant’s guilt beyond a reasonable doubt
and to a moral certainty before you would be authorized to convict. And the burden is on the State

86

134, 184-85

Consequently, the court “reject[ed] Broadnax’s argument and

conclude[d] that no reasonable juror would have construed the state’s comment to
mean that Broadnax had any burden of proof. No plain error occurred.” Id. Broadnax
contends that the ACCA’s decision finding no plain error is an unreasonable
application of Sandstrom v. Montana and In re Winship. Id. at 101-02 and nn. 287288, 290-91 (citing Sandstrom v. Montana, 442 U.S. 510, 513, 525 (1979) and Estelle
v. Williams, 425 U.S. 501, 503 (1976)(quoting In re Winship, 397 U.S. 358 (1970)).
With regard to improper argument from a state prosecutor, the Eleventh Circuit
has held:
The Supreme Court declared in In re Winship that “the Due Process
Clause protects the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to constitute the
crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90
S. Ct. 1068, 1073, 25 L. Ed. 2d 368 (1970). Additionally, the Supreme
Court has held that a defendant does not have to disprove anything nor
prove innocence, and state-created presumptions to the contrary are
violative of due process. See Sandstrom v. Montana, 442 U.S. 510, 99
S. Ct. 2450, 61 L. Ed. 2d 39 (1979); Mullaney v. Wilbur, 421 U.S. 684,
95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975).
[The Eleventh Circuit], in recognizing the government’s burden and
obligation of proving guilt beyond a reasonable doubt, has recognized
that a prosecutor’s comment may be so prejudicial as to shift the burden
of proof. See Duncan v. Stynchcombe, 704 F.2d 1213, 1216 (11th Cir.
1983). Such prosecutorial misconduct, if “so pronounced and persistent
that it permeates the entire atmosphere of the trial,” requires reversal.
of Alabama to so convince you from the evidence.” Doc. 12, Vol. 8, Tab 19 at 265.

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United States v. Alanis, 611 F.2d 123, 126 (5th Cir.), cert. denied, 445
U.S. 955, 100 S. Ct. 1607, 63 L. Ed. 2d 791 (1980)(quoting United
States v. Blevins, 555 F.2d 1236 (5th Cir. 1977), cert. denied, 434 U.S.
1016, 98 S. Ct. 733, 54 L. Ed. 2d 761 (1978)). Prosecutors must observe
the distinction between the permissible practice of arguing evidence and
suggesting inferences which the jury might draw from it and the
impermissible practice of arguing suggestions beyond the evidence. See
Houston v. Estelle, 569 F.2d 372, 380 (5th Cir. 1978). Additionally,
prosecutors must refrain from making burden-shifting arguments which
suggest that the defendant has an obligation to produce any evidence or
to prove innocence. See Winship, 397 U.S. at 364, 90 S. Ct. at 1072. .
. . “[T]he limits of proper argument find their source in notions of
fairness, the same source from which flows the right to due process of
law.” Houston, 569 F.2d at 380.
United States v. Simon, 964 F.2d 1082, 1086 (11th Cir. 1992).
Considering the prosecutor’s statements in context, this court finds the
prosecutor directed his statement at defense counsel and their offered explanations
for the circumstantial evidence. The statements did not have the effect of shifting the
burden of proof to Broadnax. But, even if it did, because “the prejudice from the
comments of a prosecutor which may result in a shifting of the burden of proof can
be cured by a court’s instruction regarding the burden of proof,” Simon, 964 F.2d at
1087 (citing, inter alia, Duncan, 704 F.2d at 1216 (11th Cir.1983)), any alleged error
was rendered harmless by the trial court’s instructions to the jury that the State, and
not Broadnax, had the burden to prove each element of each count. See doc. 12, Vol.
8, Tab 19 at 253-54, 265, 347. Therefore, the ACCA’s holding, that the prosecutor

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had “not attempt[ed] to shift the burden of proof to Broadnax,” Broadnax, 825 So. 2d
at 185, was not unreasonable. Alternatively, the ACCA’s determination that any
possible prejudice was cured by the trial court’s instructions regarding the burden of
proof was not unreasonable in light of existing Supreme Court precedent.
3. Whether the Prosecutor Fabricated a Conversation Between Broadnax
and Det. Cunningham (Claim L)
Broadnax argues also that the prosecutor violated his constitutional rights when
she made the following statements in closing:
[Broadnax] tells Vince [Cunningham] – he’s got an answer for
everything. Blood on the uniform at the third interview: ‘Oh, Man,
somebody had stolen my uniform, and I had let the uniform company
know.’ Well, what do we know? That’s a lie.
Well, what about the blood on your boots, Donald?
Oh, I sold those to a white guy about a year ago.
An answer for everything. And we know that it is all one big lie.
Is he lying just because for some reason he left the work release center
to go and have a drink or to go and do something else? Absolutely not.
He’s lying because he’s guilty of murder. Not one, but two.
Doc. 1 at 103-04; doc. 12, Vol 8, Tab 18 at 237-38. As Broadnax puts it, “[t]he
prosecutor created this argument to make it appear that Mr. Broadnax was actively
lying to the police in response to their questions,” and, in fact, “Mr. Broadnax [had]

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made a voluntary statement telling the police what happened to the items they had
previously asked him about.” Doc. 1 at 103-04.
In rejecting Broadnax’s claim, the ACCA held that “the prosecutor was merely
attacking the credibility of Broadnax’s statement to law enforcement officers,” that
“[t]hese comments are within the scope of legitimate closing argument,” and that “the
prosecutor was arguing her interpretation of the evidence presented to refute
Broadnax’s statement; we find no plain error.” Broadnax, 825 So. 2d at 185-86
(internal citations omitted). Broadnax contends that this finding that “the
prosecution’s fabricated conversation was proper is an unreasonable application of
United States Supreme Court precedent.” Doc. 1 at 103-04 (citing Miller v. Pate, 386
U.S. 1, 7 (1967); Donnelly v. DeChristoforo, 416 U.S. 637, 646 (1974)).
This court’s “inquiry is limited to whether the state court unreasonably applied
a holding of the Supreme Court, Williams [v. Taylor], 529 U.S. [362,] 412, 120 S. Ct.
[1495,] 1523 [(2000)], and the Supreme Court has never held that a prosecutor’s
closing arguments were so unfair as to violate the right of a defendant to due
process.” Reese v. Sec’y, Fla. Dep’t of Corr., 675 F.3d 1277, 1287 (11th Cir. 2012).
“The clearly established Federal law relevant here is [the Court’s] decision in Darden
v. Wainwright, 477 U.S. 168, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986), which
explained that a prosecutor’s improper comments will be held to violate the
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Constitution only if they so infected the trial with unfairness as to make the resulting
conviction a denial of due process.”

Parker v. Matthews, 567 U.S. 37, 45

(2012)(quoting Darden, 477 U.S. at 181 (quoting Donnelly, 416 U.S. at 643)). And,
in this Circuit, to prevail “the defendant must show a reasonable probability that, but
for the prosecutor’s statements, the result of the proceeding would have been
different.” Davis v. Zant, 36 F.3d 1538, 1545 (11th Cir. 1994) (citations omitted).
This court has reviewed the trial testimony and finds that the evidence
supports the prosecutor’s argument about Broadnax’s responses to Det.
Cunningham’s questions regarding the uniform and boots.

The prosecutor’s

argument accurately summarized Det. Cunningham’s testimony that he asked
Broadnax about the blood on the boots and the uniform during the third interview,
and that Broadnax informed him that he sold the boots about a year before the
murders to a “white guy,” and that someone had stolen his uniform and that he
reported the theft to the uniform company.44 Broadnax has not shown that the
prosecutor’s “conversation” was fabricated – Det. Cunningham indeed testified that
Broadnax had responded to his questions regarding the boots and the uniform in the
manner argued by the prosecutor during rebuttal. And, the prosecutor’s argument

44

Jimmy Wood, a representative from the uniform company, testified that he never received
a report from Broadnax or anyone else about a stolen or missing uniform. Doc. 12, Vol. 6 at 647,
654-55.

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closely followed Det. Cunningham’s testimony, and, in that respect, she did not
mislead or confuse the jury, even if she did not precisely quote Det. Cunningham’s
questions and Broadnax’s responses.
To close, Broadnax has not shown that the prosecutor’s argument was
improper, and has not established that any alleged improper argument “so infected the
trial with unfairness as to make the resulting conviction a denial of due process.” See
Parker, 567 U.S. at 45. Therefore, this claim for habeas relief is also due to be denied.
CONCLUSION
Broadnax has not shown that the state appellate court’s ruling was “objectively
unreasonable,” Virginia v. LeBlanc, 137 S. Ct. at 1728, or that no “fairminded jurists
could agree with the state court’s decision,” Loggins, 654 F.3d at 1220. Therefore,
Broadnax’s claims are due to be denied and his Petition is due to be dismissed. An
Order dismissing Broadnax’s Petition for Writ of Habeas Corpus by Prisoner in State
Custody Under Death Sentence Pursuant to 28 U.S.C. §2254, doc. 1, will be entered
contemporaneously with this Memorandum Opinion.
DONE and ORDERED this 13th day of December, 2019.

_______________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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