Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Broadnax v. Davis

United States District Court, N.D. Texas, Dallas Division

July 23, 2019

JAMES GARFIELD BROADNAX, Petitioner,
v.
LORIE DAVIS, Director, Respondent.

          MEMORANDUM OPINION AND ORDER

          DAVID C. GODBEY, UNITED STATES DISTRICT JUDGE.

         Petitioner James Garfield Broadnax filed this federal habeas corpus action pursuant 28 U.S.C. § 2254 challenging his August 2009 Dallas County conviction for capital murder and sentence of death. For the reasons discussed below, Broadnax is not entitled to federal habeas corpus relief or a Certificate of Appealability from this Court.

         I. BACKGROUND

         A. The Offense and Aftermath

         During the early morning hours of June 19, 2008, Broadnax and his cousin Demarius Cummings fatally shot and robbed Stephen Swan and Matthew Butler in the parking lot of Butler's recording studio in downtown Garland. There is no genuine dispute about these facts. Within days of his arrest, Broadnax gave a series of recorded interviews with four Dallas area television stations during which he confessed in graphic terms to fatally shooting Swan and Butler, robbing them, and driving away from the crime scene in Swan's vehicle.[1] During one of his television interviews, all of which were later broadcast, Broadnax informed his interviewer that he hoped to receive the death penalty and insisted that, if he did not receive the death penalty, he would kill again.

         B. Indictment

         On September 15, 2008, a Dallas County grand jury indicted Broadnax on a single count of capital murder, to wit, intentionally causing the death of Stephen Swan by shooting Swan with a firearm, a deadly weapon, in the course of committing and attempting to commit Swan's robbery.[2]

         C. Guilt - Innocence Phase of Trial

         The guilt-innocence phase of Broadnax's capital murder trial commenced on August 10, 2009.[3] The prosecution called three of the television reporters who interviewed Broadnax and played recordings of their interviews with Broadnax, as well as presented a host of other witnesses who (a) established Swan's cause of death, (b) linked Broadnax and Cummings to Swan's vehicle (the one in which they were traveling at the time of their arrest) and a set of tools belonging to Swan which Cummings and Broadnax pawned the day of the murders, and (c) linked Broadnax and Cummings to a handgun later determined to be the murder weapon. The defense presented a series of witnesses through whom it attempted to show that Broadnax was intoxicated on PCP and marijuana at the time of his offense and was suffering from the long-lasting effects of his PCP ingestion, including experiencing psychotic delusions, at the time he gave his televised interviews. The jury returned its verdict on August 12, 2009, finding Broadnax guilty of capital murder.[4]

         D. Punishment Phase of Trial

         The punishment phase of Broadnax's capital murder trial commenced on August 13, 2009.[5]The prosecution presented (1) victim impact testimony from Butler's mother and Swan's mother, (2) testimony concerning the results of Butler's autopsy, (3) the custodian of Dallas County Jail inmate telephone records, (4) a pair of investigators for the Dallas County District Attorney's Office, (5) a Dallas County Jail Special Response Team officer who helped supervise a shakedown of Broadnax's cell during which Broadnax became agitated and had to be restrained physically, (6) a Dallas County Jail detention officer who broke up a fight between Broadnax and another inmate in the jail's recreational area, (7) a Dallas County Jail detention officer who witnessed Broadnax strike a different inmate in an unprovoked assault only weeks before the start of Broadnax's capital murder trial and the inmate Broadnax assaulted, (8) a member of the Dallas Police Department's gang unit, who identified various symbols and phrases Broadnax employed in his drawings and writings as indicating Broadnax's gang membership, [6] and (9) the assistant Warden of a Texas Department of Criminal Justice (“TDCJ”) unit, who explained the TDCJ's system for classifying prisoners, the TDCJ's prison disciplinary procedures, and other aspects of prison life in Texas.[7]

         Broadnax's defense team called (1) a research psychologist who testified regarding the processes of brain development in humans, (2) a psychiatrist who treated Broadnax at the Dallas County Jail and diagnosed Broadnax with substance abuse-induced psychosis, (3) a professor and researcher in clinical pharmacology who opined that Broadnax was under the influence of marijuana and PCP at the time of his offense and during his interviews several days later, (4) a cousin of Broadnax's mother, who testified to Broadnax's good character as a child, (5) a trio of Broadnax's maternal aunts, concerning Broadnax's abusive childhood, (6) Broadnax's mother, who testified extensively regarding her own difficulties growing up, Broadnax's family background, her many unstable relationships with men, and Broadnax's extremely unstable, difficult, childhood, (7) Broadnax's brother-in-law, who testified regarding Broadnax's good character traits and responsible behavior as a baby sitter, (8) two of Broadnax's cousins, who testified to Broadnax's good character, (9) the Dallas County Jail inmate with whom Broadnax fought in the recreational area, who testified he started the fight between them because he felt Broadnax had disrespected him, (10) two persons who knew Broadnax's family, who testified via deposition about the difficult challenges Broadnax faced growing up, (11) Broadnax's sister, who testified about Broadnax's unstable abusive childhood, her own experiences growing up with their abusive mother, and Broadnax's difficult teenage years, and (12) one of Broadnax's mother's ex- husbands, who testified that he ended their relationship and threw Broadnax's mother out of his house after she beat Broadnax so badly his back was bloody.

         After the defense rested at the punishment phase of trial, in rebuttal the prosecution (1) introduced Broadnax's Dallas County Jail commissary account records and a series of recordings of telephone calls Broadnax made from the Dallas County Jail on the same day the jury returned its verdict at the guilt-innocence phase of trial, (2) presented the testimony of a forensic psychologist, who read a list of the characteristics of a psychopathic personality, explained in layman's terms what each of the terms in the list meant, but also admitted that he had not interviewed Broadnax and expressly declined to offer an opinion as to whether Broadnax possessed any of the traits of a psychopathic personality he identified and defined for the jury, [8]and (3) presented more victim impact testimony from Swan's younger sister and brother.

         On August 20, 2009, the jury returned its punishment phase verdict, answering the Texas capital sentencing scheme's future dangerousness special issue affirmatively and the mitigation special issue negatively.[9] After excusing the jury, the trial court pronounced sentence, imposing the death penalty.[10]

         E. Direct Appeal

         Broadnax appealed his conviction and sentence.[11] The Texas Court of Criminal Appeals affirmed Broadnax's conviction and sentence. Broadnax v. State, AP-76, 207, 2011 WL 6225399 (Tex. Crim. App. Dec. 14, 2011), cert. denied, 568 U.S. 828 (2012).

         F. State Habeas Corpus Proceeding

         Broadnax subsequently filed an application for state habeas corpus relief.[12] The state trial court held an evidentiary hearing in Broadnax's state habeas corpus proceeding on December 7, 2012 and heard testimony from (1) a trio of Dallas area criminal defense attorneys regarding their experiences with media requests to interview their own clients at the Dallas County Jail and their belief the Dallas County Sheriff's Department encouraged jail inmates to talk to the media, (2) Broadnax's trial defense team's court-appointed investigator regarding his unsuccessful efforts prior to trial to interview and serve subpoenas on the members of the media who interviewed Broadnax, (3) an educational specialist and gang awareness trainer who represented himself as a gang expert, (4) two of Broadnax's three criminal defense attorneys from his capital murder trial, who testified concerning their strategic decision-making, and (5) a professor of psychology at Texas A&M University who opined that the list of psychopathic personality characteristics which Dr. Price introduced to the jury and the definition of Antisocial Personality Disorder introduced during the cross-examination of Dr. Lane were both scientifically invalid as predictors of future violence in prison.[13]

         On September 17, 2014, the state habeas trial court issued its findings of fact and conclusions of law and recommendation that state habeas corpus relief be denied, concluding in pertinent part that (1) the reporters who interviewed Broadnax prior to trial were not acting as his interviews by the media violated his rights under the Fifth, Sixth, and Fourteenth Amendments, (2) his trial counsel rendered ineffective assistance in violation of the Sixth Amendment by (a) failing to adequately investigate and present evidence showing his media interviews violated constitutional principles, (b) failing to object to the admission of gang affiliation expert testimony and failing to cross-examine the prosecution's gang expert, (c) opening the door to the admission of expert testimony concerning antisocial personality disorder during the direct testimony of Dr. Lane, and (d) failing to cross-examine and rebut prosecution witness Dr. Price concerning his characterizations of a psychopathic personality, (3) the prosecution knowingly introduced false and misleading expert testimony regarding Broadnax's gang affiliation, (4) the admission of evidence of Broadnax's gang affiliation violated his First Amendment rights, and (5) the trial court admitted false and misleading testimony regarding Broadnax's antisocial personality disorder. agents of the State, (2) there was no showing the testimony of either B.K. Nelson or Dr. Price was factually inaccurate or otherwise false, (3) Chapter 61 of the Texas Code of Criminal Procedure does not deal with the admissibility of evidence of gang membership, (4) the evidence of Broadnax's fascination with the Gangster Disciples was overwhelming, and (5) attorney Lollar furnished credible testimony regarding the defense team's strategic reasons for not challenging the punishment phase trial testimony of Dr. Price and Detective Nelson.[14] On May 20, 2015, the Texas Court of Criminal Appeals denied Broadnax's state habeas corpus application in an unpublished order adopting the trial court's findings and conclusions. Ex parte James Garfield Broadnax, WR-81, 573-01, 2015 WL 2452758 (Tex. Crim. App. May 20, 2015), cert. denied, 136 S.Ct. 77 (2015).[15]

         G. Proceedings in this Court

         Broadnax filed his original petition for federal habeas corpus relief on May 18, 2016 [ECF no. 29]. On November 18, 2016, Broadnax filed his first amended federal habeas corpus petition, asserting a variety of claims of ineffective assistance by his state trial and appellate counsel, claims of alleged Batson violations and other allegedly erroneous rulings by the state trial court during jury selection, and a host of other claims, including assertions of erroneous evidentiary rulings, alleged errors in his punishment phase jury charge, a plethora of challenges to the Texas capital sentencing special issues, and an Eighth Amendment challenge to death penalty [ECF no. 48]. Respondent filed her answer on June 26, 2017 [ECF no. 63]. Broadnax filed his reply brief on October 4, 2017 [ECF no. 69].

         II. STANDARD OF REVIEW

         Because Broadnax filed his federal habeas corpus action after the effective date of the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), this Court's review of Broadnax's claims for federal habeas corpus relief is governed by AEDPA. Penry v. Johnson, 532 U.S. 782, 792 (2001). Under the AEDPA standard of review, this Court cannot grant Broadnax federal habeas corpus relief in connection with any claim that was adjudicated on the merits in state court proceedings, unless the adjudication of that claim either: (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. Brown v. Payton, 544 U.S. 133, 141 (2005); Williams v. Taylor, 529 U.S. 362, 404-05 (2000); 28 U.S.C. § 2254(d).

         The Supreme Court has concluded the “contrary to” and “unreasonable application” clauses of Title 28 U.S.C. Section 2254(d)(1) have independent meanings. Bell v. Cone, 535 U.S. 685, 694 (2002). Under the “contrary to” clause, a federal habeas court may grant relief if (1) the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or (2) the state court decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Brown v. Payton, 544 U.S. at 141, 125 S.Ct. at 1438; Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (“A state court's decision is ‘contrary to' our clearly established law if it ‘applies a rule that contradicts the governing law set forth in our cases' or it ‘confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.'”). A state court's failure to cite Supreme Court authority does not, per se, establish the state court's decision is “contrary to” clearly established federal law: “the state court need not even be aware of our precedents, ‘so long as neither the reasoning nor the result of the state-court decisions contradicts them.'” Mitchell v. Esparza, 540 U.S. at 16.

         Under the “unreasonable application” clause, a federal habeas court may grant relief if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the petitioner's case. Brown v. Payton, 544 U.S. at 141; Wiggins v. Smith, 539 U.S. 510, 520 (2003). A federal court making the “unreasonable application” inquiry should ask whether the state court's application of clearly established federal law was “objectively unreasonable.” McDaniel v. Brown, 558 U.S. 120, 132-33 (2010) (“A federal habeas court can only set aside a state-court decision as ‘an unreasonable application of . . . clearly established Federal law,' § 2254(d)(1), if the state court's application of that law is ‘objectively unreasonable.'”); Wiggins v. Smith, 539 U.S. at 520-21. The focus of this inquiry is on whether the state court's application of clearly established federal law was objectively unreasonable; an “unreasonable” application is different from a merely “incorrect” one. Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (“The question under the AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold.”); Wiggins v. Smith, 539 U.S. at 520; Price v. Vincent, 538 U.S. 634, 641 (2003) (“it is the habeas applicant's burden to show that the state court applied that case to the facts of his case in an objectively unreasonable manner”). “Under the Antiterrorism and Effective Death Penalty Act, a state prisoner seeking a writ of habeas corpus from a federal court ‘must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'” Bobby v. Dixon, 565 U.S. 23, 24 (2011) (quoting Harrington v. Richter, 562 U.S. 86, 101(2011)).

         Legal principles are “clearly established” for purposes of AEDPA review when the holdings, as opposed to the dicta, of Supreme Court decisions as of the time of the relevant state-court decision establish those principles. Yarborough v. Alvarado, 541 U.S. 652, 660-61 (2004) (“We look for ‘the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'”); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).

         AEDPA also significantly restricts the scope of federal habeas review of state court fact findings. Section 2254(d)(2) of Title 28, United States Code, provides federal habeas relief may not be granted on any claim that was adjudicated on the merits in the state courts unless the state court's adjudication of the claim resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Wood v. Allen, 558 U.S. 290, 301(2010) (“[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.”); Williams v. Taylor, 529 U.S. at 410 (“[A]n unreasonable application of federal law is different from an incorrect application of federal law.”). Even if reasonable minds reviewing the record might disagree about the factual finding in question (or the implicit credibility determination underlying the factual finding), on habeas review, this does not suffice to supersede the trial court's factual determination. Wood v. Allen, 558 U.S. at 301; Rice v. Collins, 546 U.S. 333, 341-42 (2006).

         In addition, section 2254(e)(1) provides a federal habeas petitioner challenging state court factual findings must establish by clear and convincing evidence that the state court's findings were erroneous. Schriro v. Landrigan, 550 U.S. at 473-74 (“AEDPA also requires federal habeas courts to presume the correctness of state courts' factual findings unless applicants rebut this presumption with ‘clear and convincing evidence.'”); Rice v. Collins, 546 U.S. 333, 338-39 (2006) (“State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by ‘clear and convincing evidence.'”); Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (“[W]e presume the Texas court's factual findings to be sound unless Miller-El rebuts the ‘presumption of correctness by clear and convincing evidence.'”); 28 U.S.C. §2254(e)(1). It remains unclear at this juncture whether section 2254(e)(1) applies in every case presenting a challenge to a state court's factual findings under section 2254(d)(2). See Wood v. Allen, 558 U.S. at 300-01 (choosing not to resolve the issue of section 2254(e)(1)'s possible application to all challenges to a state court's factual findings); Rice v. Collins, 546 U.S. at 339 (likewise refusing to resolve the Circuit split regarding the application of Section 2254(e)(1)).

         The deference to which state-court factual findings are entitled under AEDPA does not imply an abandonment or abdication of federal judicial review. See Miller-El v. Dretke, 545 U.S. at 240 (the standard is “demanding but not insatiable”); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (“Even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief.”).

         Finally, in this Circuit, a federal habeas court reviewing a state court's rejection on the merits of a claim for relief pursuant to AEDPA must focus exclusively on the propriety of the ultimate decision reached by the state court and not evaluate the quality, or lack thereof, of the state court's written opinion supporting its decision. See Evans v. Davis, 875 F.3d 210, 216-17 (5th Cir. 2017) (section 2254(d) directs federal habeas courts to review only a state court's ultimate decision and not the written opinion explaining that decision and requires the federal court to consider all the arguments and theories that could have supported the state court's decision), cert. denied, 139 S.Ct. 78 (2018); Woodfox v. Cain, 609 F.3d 774, 789 (5th Cir. 2010) (“[W]e review for objective reasonableness the state court's ultimate legal decision, not necessarily the state court's opinion and legal reasoning for its ultimate decision.”); Maldonado v. Thaler, 625 F.3d 229, 239 (5th Cir. 2010) (federal habeas review of a state court's adjudication involves review only of a state court's decision, not the written opinion explaining the decision), cert. denied, 565 U.S. 829 (2011).

         III. CONSTITUTIONALITY OF THE DEATH PENALTY

         In his final claim for federal habeas relief in his amended petition, Broadnax argues that the death penalty is in all cases an unconstitutional violation of the Eighth Amendment's prohibition against cruel and unusual punishments.[16] In support of this claim, Broadnax cites to the Supreme Court's holdings in three cases appealed directly to that court from the highest appellate courts of Louisiana, Missouri, and Virginia. See Kennedy v. Louisiana, 554 U.S. 407, 446-47 (2008) (holding the Eighth Amendment prohibits imposition of the death penalty for rape of a child where the crime did not result, and was not intended to result, in the death of the victim); Roper v. Simmons, 543 U.S. 551, 578 (2005) (holding the execution of individuals who were under eighteen years of age at the time of their capital crimes is prohibited by the Eighth and Fourteenth Amendments); Atkins v. Virginia, 536 U.S. 304, 321 (2002) (holding executions of mentally retarded criminals are cruel and unusual punishments prohibited by the Eighth Amendment). Therein lies the rub for Broadnax: not any of those cases were federal habeas corpus proceedings subject to the constraints imposed by AEDPA. As explained above, AEDPA greatly limits the ability of this Court to grant federal habeas corpus relief when a state court has acted in a manner consistent with clearly established federal law, as set forth in the precedents of the Supreme Court. The Supreme Court recently reaffirmed the constitutional vitality of capital punishment. See Bucklew v. Precythe, 139 S.Ct. 1112, 1122 (2019) (“The Constitution allows capital punishment.”). Because the Supreme Court has never declared the death penalty unconstitutional per se, the rejection on the merits of Broadnax's Eighth Amendment challenge to his sentence by the Texas Court of Criminal Appeals in the course of Broadnax's direct appeal was wholly consistent with clearly established federal law and does not furnish a basis for federal habeas corpus relief.

         Likewise, because they were direct appeal cases accepted for certiorari review by the Supreme Court from state appellate courts, none of the three Supreme Court opinions relied upon by Broadnax in his federal habeas corpus petition were limited by the Supreme Court's longstanding nonretroactivity doctrine announced in Teague v. Lane, 489 U.S. 288 (1989), which forecloses adoption of the new principles of federal constitutional criminal procedure in federal habeas corpus proceedings. Under the holding in Teague, federal courts are generally barred from applying new constitutional rules of criminal procedure retroactively on collateral review. Caspari v. Bohlen, 510 U.S. 383, 389-90 (1994). A “new rule” for Teague purposes is one which was not dictated by precedent existing at the time the defendant's conviction became final. See O'Dell v. Netherland, 521 U.S. 151, 156 (1997) (holding a “new rule” either “breaks new ground, ” “imposes a new obligation on the States or the Federal Government, ” or was not “dictated by precedent existing at the time the defendant's conviction became final”). Under this doctrine, unless reasonable jurists hearing the defendant's claim at the time his conviction became final would have felt compelled by existing precedent to rule in his favor, a federal habeas court is barred from doing so on collateral review. Id.

         The holding in Teague is applied in three steps: first, the court must determine when the petitioner's conviction became final; second, the court must survey the legal landscape as it then existed and determine whether a state court considering the petitioner's claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule he seeks was required by the Constitution; and third, if the rule advocated by the petitioner is a new rule, the court must determine whether the rule falls within one of the two narrow exceptions to the nonretroactivity principle. Caspari v. Bohlen, 510 U.S. at 390.

         The only two exceptions to the Teague nonretroactivity doctrine are reserved for (1) new rules forbidding criminal punishment of certain primary conduct and rules prohibiting a certain category of punishment for a class of defendants because of their status or offense and (2) “watershed” rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding, i.e., a small core of rules requiring observance of those procedures that are implicit in the concept of ordered liberty. O'Dell v. Netherland, 521 U.S. at 157. Broadnax's proposed new rule barring the imposition of the death penalty in all criminal cases satisfies neither of these two exceptions. A conviction becomes final for Teague purposes when either the United States Supreme Court denies a certiorari petition on the defendant's direct appeal or the time period for filing a certiorari petition expires. Caspari v. Bohlen, 510 U.S. at 390. Broadnax's conviction became final for Teague purposes no later than October 1, 2012, i.e., the date the United States Supreme Court denied Broadnax's petition for writ of certiorari following the Texas Court of Criminal Appeals' affirmation of his conviction and sentence. See Beard v. Banks, 542 U.S. 406, 411-12 (2004) (recognizing a state criminal conviction ordinarily becomes final for Teague purposes when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for writ of certiorari has elapsed or a timely filed petition for certiorari has been denied); Caspari v. Bohlen, 510 U.S. at 390 (“A state conviction and sentence become final for purposes of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied.”)

         Teague remains applicable after the passage of AEDPA. See Horn v. Banks, 536 U.S. 266, 268-72 (2002) (applying Teague in an AEDPA context); Robertson v. Cockrell, 325 F.3d 243, 255 (5th Cir. 2003) (recognizing the continued vitality of the Teague nonretroactivity doctrine under AEDPA). As of the date Broadnax's conviction and sentence became final for Teague purposes no federal court had ever held a Texas criminal defendant was entitled to have his capital sentence vacated on Eighth Amendment grounds because the sentence of death is in all cases “cruel or unusual” under Eighth Amendment principles. Thus, under Teague, Broadnax's final claim does not warrant federal habeas corpus relief under even a de novo standard of review.

         IV. CHALLENGES TO TEXAS CAPITAL SENTENCING SCHEME & JURY CHARGE

         Broadnax challenges four aspects of the Texas capital sentencing scheme, specifically, (1) the absence of a burden of proof in the mitigation special issue, (2) the presence of allegedly vague terms in both of the two capital sentencing special issues submitted in his trial, (3) the validity of the Texas twelve/ten rule, and (4) the trial court's failure to instruct his capital sentencing jury that it was required to consider all mitigating evidence individually.[17] For the reasons discussed below, all of these arguments lack arguable merit.[18]

         A. Absence of a Burden of Proof in the Mitigation Special Issue

         Neither the Supreme Court's opinion in Apprendi nor any of the Supreme Court's subsequent opinions construing its holding in Apprendi (including the holdings in Hurst, Ring, and Alleyne cited by Broadnax), mandate imposition of a burden of proof on the prosecution with regard to the Texas capital sentencing scheme's mitigation special issue. Kansas v. Carr, 136 S.Ct. 633, 642 (2016); Allen v. Stephens, 805 F.3d 617, 626-28 (5th Cir. 2015). In fact, the Supreme Court has expressly recognized the lack of efficacy in selection phase jury instructions addressing mitigating evidence:

[W]e doubt whether it is even possible to apply a standard of proof to the mitigating-factor determination (the so-called “selection phase” of a capital-sentencing proceeding). It is possible to do so for the aggravating-factor determination (the so-called “eligibility phase”), because that is a purely factual determination. The facts justifying death set forth in the Kansas statute either did or did not exist-and one can require the finding that they did exist to be made beyond a reasonable doubt. Whether mitigation exists, however, is largely a judgment call (or perhaps a value call); what one juror might consider mitigating another might not. And of course the ultimate question whether mitigating circumstances outweigh aggravating circumstances is mostly a question of mercy-the quality of which, as we know, is not strained. It would mean nothing, we think, to tell the jury that the defendants must deserve mercy beyond a reasonable doubt; or must more-likely-than-not deserve it. It would be possible, of course, to instruct the jury that the facts establishing mitigating circumstances need only be proved by a preponderance, leaving the judgment whether those facts are indeed mitigating, and whether they outweigh the aggravators, to the jury's discretion without a standard of proof. If we were to hold that the Constitution requires the mitigating-factor determination to be divided into its factual component and its judgmental component, and the former to be accorded a burden-of-proof instruction, we doubt whether that would produce anything but jury confusion. In the last analysis, jurors will accord mercy if they deem it appropriate, and withhold mercy if they do not, which is what our case law is designed to achieve.

Kansas v. Carr, 136 S.Ct. at 642.

         Furthermore, the Fifth Circuit has repeatedly rejected the arguments underlying Broadnax's call for imposing a burden of proof on the mitigation special issue. See, e.g., Blue v. Thaler, 665 F.3d 647, 668 (5th Cir. 2011) (“No Supreme Court or Circuit precedent constitutionally requires that Texas' mitigation special issue be assigned a burden of proof.”); Druery v. Thaler, 647 F.3d 535, 546 (5th Cir. 2011) (“In Avila v. Quarterman, this court rejected a petitioner's argument ‘that allowing a sentence of death without a jury finding beyond a reasonable doubt that there were no mitigating circumstances sufficient to warrant a sentence of life imprisonment violated his Sixth and Fourteenth Amendment right to due process and a fair trial.' 560 F.3d 299, 315 (5th Cir.2009). Other decisions have likewise rejected the argument that failure to instruct the jury that the State has the burden of proof beyond a reasonable doubt on the mitigation issue is unconstitutional.”); Coleman v. Quarterman, 456 F.3d 537, 542 (5th Cir. 2006) (“‘[N]o Supreme Court or Circuit precedent constitutionally requires that Texas's mitigation special issue be assigned a burden of proof.'” (quoting Rowell v. Dretke, 398 F.3d 370, 378 (5th Cir. 2005)). Broadnax makes no good faith effort to distinguish any of the foregoing Supreme Court or Fifth Circuit authorities.

         The Texas Court of Criminal Appeals' rejection on the merits during Broadnax's direct appeal of his complaint about the absence of a burden of proof in the mitigation special issue was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in Broadnax's trial and direct appeal. This Court therefore denies relief on this claim.

         B. Allegedly Vague Terms in the Texas Capital Sentencing Special Issues

         Likewise, the Fifth Circuit has repeatedly rejected challenges to the terms in the Texas capital sentencing special issues identified by Broadnax as allegedly unconstitutionally vague. See, e.g., Sprouse v. Stephens, 748 F.3d 609, 622-23 (5th Cir. 2014) (denying Certificate of Appealability (“CoA”) on complaints about the lack of definitions of “probability, ” “criminal acts of violence, ” and “continuing threat to society” in a Texas capital sentencing jury charge); Paredes v. Quarterman, 574 F.3d 281, 294 (5th Cir. 2009) (holding the terms “probability, ” “criminal acts of violence, ” and “continuing threat to society” “have a plain meaning of sufficient content that the discretion left to the jury is no more than that inherent in the jury system itself”); Turner v. Quarterman, 481 F.3d 292, 299-300 (5th Cir. 2007) (rejecting claims that the terms “probability, ” “criminal acts of violence, ” and “continuing threat to society” were so vague as to preclude a capital sentencing jury's consideration of mitigating evidence); Leal v. Dretke, 428 F.3d 543, 552-53 (5th Cir. 2005) (listing numerous Fifth Circuit opinions rejecting complaints about the failure of Texas courts to define the terms “probability, ” “criminal acts of violence, ” and “continuing threat to society”). Thus, all of the key terms in his punishment phase jury charge about which Broadnax complains have a common understanding in the sense that they ultimately mean what the jury says by their final verdict they mean and do not require further definition. James v. Collins, 987 F.2d 1116, 1120 (5th Cir. 1993); Milton v. Procunier, 744 F.2d 1091, 1096 (5th Cir. 1984). Broadnax's constitutional complaints about the trial court's failure to define the terms “probability, ” “criminal acts of violence, ” and “continuing threat to society” have repeatedly been rejected by the Fifth Circuit and are frivolous.

         The constitutional standard for evaluating the propriety of a capital sentencing jury charge is set forth in Boyde v. California, 494 U.S. 370, 380 (1990), where the Supreme Court held the test for determining whether jury instructions satisfy the Constitution is “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Johnson v. Texas, 509 U.S. 350, 367-368 (1993). Broadnax identifies no potentially mitigating evidence before the jury at the punishment phase of his trial which he contends the jury was unable to properly consider in answering one or more of the Texas capital sentencing special issues because of the lack of definitions of the terms “personal moral culpability, ” “moral blameworthiness, ” or “mitigating circumstances.” See Beazley v. Johnson, 242 F.3d 248, 259-60 (5th Cir. 2001) (holding the Texas capital sentencing scheme's statutory definition of “mitigating evidence” as that which renders the defendant less morally blameworthy did not preclude consideration of any aspect of the defendant's character or record or any of the circumstances of the offense the defendant proffers as a basis for a sentence less than death). Likewise, the Fifth Circuit has repeatedly rejected arguments that the Texas capital sentencing scheme's definition of “mitigation” is too narrow. See, e.g., Sprouse v. Stephens, 748 F.3d at 622-23 (denying a CoA on this same issue); Blue v. Thaler, 665 F.3d 647, 665-66 (5th Cir. 2011) (Article 37.071 does not unconstitutionally preclude the jury from considering as a mitigating factor any aspect of a defendant's character or record and any of the circumstances of the offense the defendant proffers as a basis for a life sentence); Beazley v. Johnson, 242 F.3d at 260 (“The definition of mitigating evidence does not limit the evidence considered under the third special issue (whether mitigating circumstances warrant a life, rather than a death, sentence). ‘[V]irtually any mitigating evidence is capable of being viewed as having some bearing on the defendant's ‘moral culpability' apart from its relevance to the particular concerns embodied in the Texas special issues'.”). Broadnax's complaints about the lack of definitions of key terms and alleged vagueness in the Texas capital sentencing special issues and his punishment phase jury charge are frivolous.

         The Texas Court of Criminal Appeals' rejection on the merits during Broadnax's direct appeal of his complaints about the lack of definitions of key terms in the special issues in his punishment phase jury charge was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in Broadnax's trial and direct appeal. This Court therefore denies relief on this claim.

         C. Challenge to the Texas Twelve/Ten Rule

         The Fifth Circuit has also repeatedly rejected the same arguments underlying Broadnax's challenge to the Texas capital sentencing scheme's requirement of jury unanimity for a verdict favorable to the prosecution but only ten votes for a verdict favorable to the defense on the capital sentencing special issues. See, e.g., Blue v. Thaler, 665 F.3d at 669-70 (rejecting an Eighth Amendment challenge to the Texas twelve/ten rule); Alexander v. Johnson, 211 F.3d 895, 897 (5th Cir. 2000) (specifically rejecting both Fourteenth and Eighth Amendment challenges to the Texas twelve/ten rule in the course of affirming this Court's rejection of claims virtually identical to those raised by Broadnax); Miller v. Johnson, 200 F.3d 274, 288-89 (5th Cir. 2000) (holding Mills inapplicable to a Texas capital sentencing proceeding); Woods v. Johnson, 75 F.3d 1017, 1036 (5th Cir. 1988) (holding the same); Hughes v. Johnson, 191 F.3d 607, 628-29 (5th Cir. 1999) (holding both Mills and McKoy inapplicable to the Texas capital sentencing scheme); Jacobs v. Scott, 31 F.3d 1319, 1328-29 (5th Cir. 1994) (“Under the Texas system, all jurors can take into account any mitigating circumstance. One juror cannot preclude the entire jury from considering a mitigating circumstance. Thus, Mills is inapplicable.”). Because the Texas capital sentencing scheme is vastly different from those employed in Maryland and North Carolina, Broadnax's reliance on the Supreme Court's opinions in McKoy and Mills is misplaced. Alexander v. Johnson, 211 F.3d at 897; Miller v. Johnson, 200 F.3d at 288-89; Woods v. Johnson, 75 F.3d at 1036; Jacobs v. Scott, 31 F.3d at 1328-29. Broadnax's challenge to the Texas twelve/ten rule is frivolous.

         The Texas Court of Criminal Appeals' rejection on the merits during Broadnax's direct appeal of his complaints about the Texas twelve/ten rule was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in Broadnax's trial and direct appeal. This Court therefore denies relief on this claim.

         D. Individualized Consideration of Mitigating Evidence

         The fundamental problem with Broadnax's complaint about the trial court's failure to instruct the jury at the punishment phase of trial that jurors were required to consider mitigating evidence individually is that Broadnax never requested the state trial court give such an instruction.[19] Moreover, Broadnax does not identify any Supreme Court precedent mandating the type of punishment phase jury instruction which he now complains his state trial court failed to issue sua sponte. Regardless whether this Court may deem Broadnax's requested instruction advisable, in the absence of any clearly established Supreme Court precedent mandating the giving of such an instruction or declaring the absence of such an instruction constitutional error, the Texas Court of Criminal Appeals' rejection on the merits of this complaint during Broadnax's direct appeal is not objectionable under AEDPA's narrow standard of review. For the same reasons discussed in section IV.C. above, Broadnax's reliance upon the Supreme Court's opinions in Mills and McKoy is misplaced. Respondent also correctly points out the “new rule” advocated by Broadnax in this claim is foreclosed by the nonretroactivity doctrine of Teague.

         Furthermore, even when viewed under a de novo standard, this complaint about Broadnax's punishment phase jury charge does not warrant federal habeas relief. As explained above, the Supreme Court has established the constitutional standard for evaluating the propriety of a jury instruction at the punishment phase of a capital murder trial is “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. at 380. The Supreme Court has consistently applied this standard to evaluate challenges to punishment-phase jury instructions. See Weeks v. Angelone, 528 U.S. 225, 226 (2000) (emphasizing the Boyde test requires a showing of a reasonable likelihood, as opposed to a mere possibility, the jury construed the jury instructions to preclude its consideration of relevant mitigating evidence); Jones v. United States, 527 U.S. 373, 390 & n.9 (1999) (holding the same); Calderon v. Coleman, 525 U.S. 141, 146 (1998) (holding the same); Buchanan v. Angelone, 522 U.S. 269, 276 (1998) (holding the same); Johnson v. Texas, 509 U.S. 350, 367 (1993) (holding Boyde requires a showing of a reasonable likelihood the jury interpreted the jury instructions so as to preclude it from considering relevant mitigating evidence). This “reasonable likelihood” standard does not require that a capital murder defendant prove the jury “more likely than not” interpreted the challenged instruction in an impermissible way; however, he must demonstrate more than “only a possibility” of an impermissible interpretation. Johnson v. Texas, 509 U.S. at 367; Boyde v. California, 494 U.S. at 380.

         This Court must analyze the challenged language included in the jury charge within the context of the overall jury charge. Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). “In evaluating the instructions, we do not engage in a technical parsing of this language of the instructions, but instead approach the instructions in the same way that the jury would--with a ‘commonsense understanding of the instructions in the light of all that has taken place at the trial.'” Johnson v. Texas, 509 U.S. at 368; Boyde v. California, 494 U.S. at 381. Nothing in Broadnax's punishment-phase jury charge can reasonably be construed as foreclosing the consideration by the jury of any of the extensive, potentially mitigating, evidence actually presented during his capital murder trial. Simply put, Broadnax identifies no potentially mitigating evidence properly before his jury to which his jury was unable to adequately give effect because of the lack of a jury instruction mandating the “individualized” consideration he did not request at trial but now demands.

         Finally, improper jury instructions in state criminal trial do not generally form the basis for federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991); Galvan v. Cockrell, 293 F.3d 760, 764-65 (5th Cir. 2002). The fact that a jury instruction was incorrect under state law is not a basis for federal habeas relief. Gilmore v. Taylor, 508 U.S. 333, 342 (1993); Estelle v. McGuire, 502 U.S. at 71; Marshall v. Lonberger, 459 U.S. 422, 438 n.6 (1988). Rather, the question is whether the allegedly ailing instruction by itself so infected the entire trial that the resulting conviction violates due process. Estelle v. McGuire, 502 U.S. at 72; Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Cupp v. Naughten, 414 U.S. at 147; Johnson v. Puckett, 176 F.3d 809, 824 (5th Cir. 1999) (“as a federal habeas court, our question is whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process, not merely whether the instruction is undesirable, erroneous, or even universally condemned.”). “An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of law.” Henderson v. Kibbe, 431 U.S. at 155.

         The relevant inquiry is whether the failure to give an instruction by itself so infected the entire trial that the resulting conviction violates due process. Cupp v. Naughten, 414 U.S. at 147; Galvan v. Cockrell, 293 F.3d at 764-65. A federal court may reverse a state court criminal conviction based upon erroneous jury instructions only when the instructions in question render the entire trial fundamentally unfair. Henderson v. Kibbe, 431 U.S. at 154; Cupp v. Naughten, 414 U.S. at 147; Mayabb v. Johnson, 168 F.3d 863, 867 (5th Cir. 1999). Moreover, there is a strong presumption that errors in jury instructions are subject to harmless error analysis. Galvan v. Cockrell, 293 F.3d at 765 (recognizing under Brecht v. Abrahamson, 507 U.S. 619, 623-24 (1993), the test for harmless error in federal court is “whether the error had a substantial and injurious effect or influence in determining the jury's verdict”). Having independently reviewed the entirety of Broadnax's punishment phase jury charge, this Court concludes after de novo review that any error in the failure of the state trial court to instruct Broadnax's punishment phase jury to give mitigating evidence “individual” consideration did not render the punishment phase of Broadnax's capital murder trial fundamentally unfair and did not have a substantial and injurious effect or influence on the outcome of the jury's punishment phase verdict as required by Brecht. Thus, regardless of the standard of review employed, this complaint about Broadnax's punishment phase jury charge does not warrant federal habeas relief.

         The Texas Court of Criminal Appeals' rejection on the merits during Broadnax's direct appeal of his complaint about the absence of a punishment phase jury instruction mandating individualized consideration of mitigating evidence was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in Broadnax's trial and direct appeal. This Court therefore denies relief on this claim.

         V. SELECTIVE PROSECIUTION

         Broadnax presents an unexhausted complaint that he was selectively prosecuted on the basis of race.[20] Selective prosecution claims are disfavored because they (1) call for the imposition of judicial review upon the usually unfettered discretion exercised by the executive authority responsible for prosecuting criminal offenses and (2) necessarily begin with a presumption of good faith and constitutional compliance by prosecutors. United States v. Armstrong, 517 U.S. 456, 463-64 (2006); Reno v. American-Arab Anti-Discrim. Comm., 525 U.S. 471, 489 (1999); In re United States, 397 F.3d 274, 284 (5th Cir. 2005). In the ordinary case, “so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.” United States v. Armstrong, 517 U.S. at 464 (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)); In re United States, 397 F.3d at 284.

         Nonetheless, a prosecutor's discretion is subject to constitutional constraints, including equal protection principles. United States v. Armstrong, 517 U.S. at 464; In re United States, 397 F.3d at 284. That is, the decision to prosecute may not be based on an unjustifiable standard such as race, religion, or other arbitrary classification. United States v. Armstrong, 517 U.S. at 464. To dispel the presumption that a prosecutor has not violated equal protection principles, a defendant must present clear evidence showing that the prosecutor's decisions had both a discriminatory effect and a discriminatory motive or purpose. United States v. Armstrong, 517 U.S. at 465; In re United States, 397 F.3d at 284. To establish discriminatory effect in a race case, a defendant must show that similarly situated individuals of a different race were not prosecuted. United States v. Armstrong, 517 U.S. at 465; In re United States, 397 F.3d at 284.

         Despite the statistical case and new evidence presented by Broadnax in this Court for the very first time, Broadnax has failed to identify a single individual of another race who was “similarly situated” to him in one critical regard: Broadnax gave multiple interviews following his arrest in which he not only confessed to his capital offense in graphic and precise detail with a cold and calculating demeanor but also repeatedly denied that he felt any remorse for his crimes, repeatedly used crude and offensive language when asked what he had to say to the families of his victims, insisted that he would not serve a sentence of life without parole, and demanded to receive the death penalty, even going so far during one interview as to threaten to kill again if he did not receive a sentence of death.[21] This Court is aware of criminal defendants who have given media interviews prior to trial in which they confessed to committing a capital offense.[22] But Broadnax has identified no one else, and this Court is unaware of any other criminal defendant in the history of Dallas County criminal prosecutions, who has ever given multiple pretrial interviews denying he felt any remorse for his victims and their families, demanding to receive the death penalty, and threatening to kill again unless he received a death sentence. In every sense of the term, Broadnax put himself in a class by himself. His cold, antisocial, behavior on camera makes him sui generis.[23]There is no one else of any race “similarly situated” to Broadnax for equal protection purposes. Thus, Broadnax has failed to allege any facts showing that a criminal defendant of another race who was genuinely “similarly situated” to Broadnax was not prosecuted for capital murder or that Dallas County prosecutors brought a capital murder prosecution against but did not seek the death sentence for such a nonexistent offender. For that reason, under a de novo standard of review, Broadnax's race-based selective prosecution claims fails.

         VI. ADMISSION OF EXPERT TESTIMONY REGARDING GANG MEMBERSHIP

         A. The Complaints

         Broadnax argues the state trial court erroneously admitted the testimony of Dallas Police Officer Barrett Nelson regarding the meaning of various symbols contained on the walls of Broadnax's cell and throughout the spiral notebooks found among Broadnax's belongings in the trunk of Swan's stolen vehicle, as well as his expert opinion that Broadnax was either a Gangster Disciple member or potential member.[24] In addition to arguing that the state trial court erred in admitting Officer Nelson's testimony, under both state evidentiary rules and federal due process principles, Broadnax also argues Officer Nelson's testimony was false or misleading, the prosecution used this false or misleading testimony to secure Broadnax's capital sentence, and Nelson's testimony regarding gang membership violated Broadnax's First Amendment right to freedom of association.

         B. Due Process Claim

         Federal habeas corpus relief will not issue to correct errors of state constitutional, statutory, or procedural law, unless a federal issue is also presented. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (holding complaints regarding the admission of evidence under California law did not present grounds for federal habeas relief absent a showing that admission of the evidence in question violated due process); Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (recognizing that federal habeas relief will not issue for errors of state law); Pulley v. Harris, 465 U.S. 37, 41 (1984) (holding a federal court may not issue the writ on the basis of a perceived error of state law). In the course of reviewing state criminal convictions in federal habeas corpus proceedings, a federal court does not sit as a super-state appellate court. Estelle v. McGuire, 502 U.S. at 67-68; Lewis v. Jeffers, 497 U.S. at 780; Pulley v. Harris, 465 U.S. at 41.

When a federal district court reviews a state prisoner's habeas petition pursuant to 28 U.S.C. § 2254 it must decide whether the petitioner is “in custody in violation of the Constitution or laws or treaties of the United States.” The court does not review a judgment, but the lawfulness of the petitioner's custody simpliciter.

Coleman v. Thompson, 501 U.S. 722, 730 (1991).

         Insofar as Broadnax argues his state trial court erroneously accepted Nelson as an expert witness and improperly allowed Nelson to express an opinion regarding Broadnax's gang membership, Broadnax's complaints turn initially on interpretations of state evidentiary rules. The Texas Court of Criminal Appeals' conclusion in the course of Broadnax's direct appeal that Detective Nelson's testimony was admissible under applicable state evidentiary rules is binding upon this Court in this federal habeas corpus proceeding. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly held that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.”); Garza v. Stephens, 738 F.3d 669, 677 (5th Cir. 2013) (holding a Texas habeas court's interpretation of evidentiary rules was binding in a federal habeas case); Paredes v. Quarterman, 574 F.3d 281, 291 (5th Cir. 2009) (a state court's interpretation of state law binds a federal court sitting in habeas corpus).

         A federal court may grant habeas relief based on an erroneous state court evidentiary ruling only if the ruling violates a specific federal constitutional right or is so egregious it renders the petitioner's trial fundamentally unfair. Payne v. Tennessee, 501 U.S. 808, 825 (1991); Darden v. Wainwright, 477 U.S. 168, 179-83 (1986); Wood v. Quarterman, 503 F.3d 408, 414 (5th Cir. 2007); Brown v. Dretke, 419 F.3d 365, 376 (5th Cir. 2005). Thus, the question before this Court is not whether the state trial court properly applied state evidentiary rules but, rather, whether Broadnax's federal constitutional rights were violated by the state trial court's rulings on evidentiary matters. See Bigby v. Dretke, 402 F.3d 551, 563 (5th Cir. 2005) (holding federal habeas review of a state court's evidentiary ruling focuses exclusively on whether the ruling violated the federal Constitution).

Due process is implicated only for rulings “of such a magnitude” or “so egregious” that they “render the trial fundamentally unfair.” It offers no authority to federal habeas courts to review the mine run of evidentiary rulings of state trial courts. Relief will be warranted only when the challenged evidence “played a crucial, critical, and highly significant role in the trial.”
The due process inquiry must consider the significance of the challenged evidence “in the context of the entire trial.” We have held that the Due Process Clause does not afford relief where the challenged evidence was not the principal focus at trial and the errors were not “‘so pronounced and persistent that it permeates the entire atmosphere of the trial.'” This is a high hurdle, even without AEDPA's added level of deference.

Gonzales v. Thaler, 643 F.3d 425, 430-31 (5th Cir. 2011) (footnotes omitted).

         The admission of Detective Nelson's testimony regarding the symbols employed by the Gangster Disciples (and found throughout Broadnax's drawings) did not render the punishment phase of Broadnax's capital murder trial fundamentally unfair. Broadnax has identified nothing factually inaccurate about Detective Nelson's recitation of the history, reputation, or symbols of the Gangster Disciples as an organization. While Broadnax does take issue with Detective Nelson's expert opinion that Broadnax's drawings incorporating numerous Gangster Disciples symbols, use of the phrase “Folk Nation, ” references to the leader of the Gangster Disciples, and a hand gesture Broadnax gave during a televised interview suggest Broadnax is a member of the Gangster Disciples, even if that opinion was incorrect, it was far from an unreasonable inference based on the evidence then before the trial court. Moreover, even if Broadnax was not an official, card-carrying, member of the Gangster Disciples, as Detective Nelson's testimony and Broadnax's own correspondence, drawings, and rap lyrics made very clear, Broadnax was most certainly fascinated with the Gangster Disciples.

         Moreover, Broadnax's sister testified that Broadnax's older brother is a member of the Gangster Disciples. During a recorded telephone conversation with his mother's boyfriend that was admitted into evidence and played for the jury (State Exhibit no. 570) Broadnax identified himself as being associated with the Gangster Disciples. The only direct evidence Broadnax offered at trial disputing his membership in the Gangster Disciples consisted of his own sister's testimony (hardly an unbiased witness) stating that she believed Broadnax was merely a Gangster Disciple “wannabe” because Broadnax associated with another person (Mario) whom she believed to be a “wannabe” in a rival gang. Under these circumstances, even if Detective Nelson's conclusion that Broadnax was a “member” of the Gangster Disciples were proven to have been incorrect, the admission of Detective Nelson's testimony as a whole did not render the punishment phase of Broadnax's capital murder trial fundamentally unfair. Officer Nelson's explanations regarding the association of various symbols found throughout Broadnax's notebooks and on Broadnax's cell walls (including pitchforks, winged figures, and six-pointed stars) with the Gangster Disciples quite possibly prevented the jury from drawing an erroneous (and potentially even more disadvantageous) inference that those symbols were satanic in nature.

         The Texas Court of Criminal Appeals' rejection on the merits during Broadnax's direct appeal of Broadnax's Due Process complaints about the admission of Nelson's trial testimony was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in Broadnax's trial and direct appeal. This Court therefore denies relief on this claim.

         C. First Amendment Claim

         As he argued in his fifth claim for state habeas corpus relief, Broadnax again argues that the admission of Officer Nelson's testimony regarding his gang membership violated Broadnax's First Amendment rights.[25] Broadnax's reliance upon the Supreme Court's opinion in Dawson v. Delaware, 503 U.S. 159 (1992), in support of his First Amendment claim is misplaced. As Respondent accurately argues, in Dawson, the Supreme Court held that evidence showing a criminal defendant was associated with the Aryan Brotherhood, unaccompanied by evidence showing the Aryan Brotherhood had committed unlawful or violent acts or endorsed such acts, was not relevant at the punishment phase of a capital trial to prove any aggravating circumstance or disprove any mitigating circumstance. Dawson v. Delaware, 503 U.S. at 166-67. The Supreme Court made clear, however, that the prosecution can easily cure this constitutional defect by introducing evidence beyond that of a defendant's association with a particular organization, i.e., evidence showing the organization of which the defendant was a member had committed unlawful or violent acts or endorses such acts: “A defendant's membership in an organization that endorses the killing of any identifiable group, for example, might be relevant to a jury's inquiry into whether the defendant will be dangerous in the future.” Id. at 166.

         Officer Nelson's punishment phase testimony does not embody the defect identified in Dawson. Officer Nelson testified without contradiction that the Gangster Disciples was a longstanding, highly organized, violent, criminal street gang that engaged in drug dealing, robberies, and murders to raise money for its organization. Broadnax's own sister admitted the Gangster Disciples was a ruthless street gang. The Supreme Court made clear in Dawson that the Constitution does not erect a per se barrier to the admission of evidence concerning beliefs and associations at sentencing. Id. at 161. Under such circumstances, admission of Detective Nelson's punishment phase testimony did not violate Broadnax's First Amendment rights. See Fuller v. Johnson, 114 F.3d 491, 498 (5th Cir. 1997) (holding evidence showing the defendant was a member of the Aryan Brotherhood was admissible at the punishment phase of a capital murder trial to prove future dangerousness when accompanied by evidence showing the gang had committed unlawful or violent acts, including homicides, multiple stabbings, drug dealing, and aggravated assaults).

         The state habeas court's rejection on the merits of Broadnax's First Amendment claim was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in Broadnax's state habeas corpus proceeding. This Court therefore denies this claim for relief.

         D. Giglio/Napue Claim

         As he did in his fourth claim in his state habeas corpus application, Broadnax argues the prosecution improperly used false and misleading evidence, in the form of Officer Nelson's “erroneous” expert opinion that Broadnax was a member of the Gangster Disciples, to secure a death sentence.[26] A state denies a criminal defendant due process when it knowingly uses perjured testimony at trial or allows untrue testimony to go uncorrected. Giglio v. United States, 405 U.S. 150, 153-54 (1972); Napue v. Illinois, 360 U.S. 264, 269-70 (1959). To succeed in showing a due process violation from the use of allegedly perjured testimony, a defendant has the burden of establishing that (1) the witness in question actually gave false testimony, (2) the falsity was material in that there was a reasonable likelihood that it affected the judgment of the jury, and (3) the prosecution used the testimony in question knowing that it was false. Giglio v. United States, 405 U.S. at 153-54; Canales v. Stephens, 765 F.3d 551, 573 (5th Cir. 2014) (a conviction obtained through false evidence known to be such by representatives of the State violates a defendant's constitutional rights); Kinsel v. Cain, 647 F.3d 265, 271 (5th Cir. 2011) (“The Supreme Court has held that the Due Process Clause is violated when the government knowingly uses perjured testimony to obtain a conviction.”); Reed v. Quarterman, 504 F.3d 465, 473 (5th Cir. 2007).

         The state habeas court's factual finding that Nelson's trial testimony was in all respects accurate and credible (not false or misleading) is a factual determination entitled to deference by this federal habeas court pursuant to 28 U.S.C. § 2254(e)(1). See Schriro v. Landrigan, 550 U.S. at 473-74 (“AEDPA also requires federal habeas courts to presume the correctness of state courts' factual findings unless applicants rebut this presumption with ‘clear and convincing evidence.'”); Rice v. Collins, 546 U.S. at 338-39 (“State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by ‘clear and convincing evidence.'”); Miller-El v. Dretke, 545 U.S. at 240 (“[W]e presume the Texas court's factual findings to be sound unless Miller-El rebuts the ‘presumption of correctness by clear and convincing evidence.'”). The record before the state habeas court was bereft of any evidence establishing that Nelson furnished any false or misleading testimony to the jury regarding the nature of the Gangster Disciples, its history, symbols, or criminal nature. Broadnax presented the state habeas court with no evidence showing that Nelson's inference from Broadnax's use of a gang hand sign, references to “Folk Nation, ” penchant for drawing symbols utilized by the Gangster Disciples, telephonic profession that he was associated with that organization, and apparent knowledge of the history and details of the organization of the Gangster Disciples that Broadnax was either a member or “wannabe” gang member was anything other than objectively reasonable.

         The fact Broadnax's state habeas counsel found an expert willing to express a divergent opinion about Broadnax's gang membership (albeit without apparently examining the same evidence as Nelson) does not establish that Nelson's expert opinion was false or misleading. See Clark v. Johnson, 202 F.3d 760, 766-67 (5th Cir. 2000) (holding that a disagreement between experts regarding the conclusions to be drawn from the physical evidence was insufficient to overcome the presumption of correctness afforded a state habeas court's factual finding that an expert trial witness had not testified falsely at trial or otherwise misled the jury). As was true with the forensic pathologist in Clark, whose expert opinions were fully supported by the physical evidence in that case, the evidence supporting Nelson's expert opinion that Broadnax was a gang member (or at least that Broadnax seemed in Nelson's opinion to possess an intimate knowledge of the Gangster Disciples) was evident from Broadnax's own writings and drawings. More importantly, Broadnax presented the state habeas court with no specific factual allegations, much less any evidence, showing the prosecution knowingly employed false or misleading evidence to secure Broadnax's death sentence.

         Insofar as Broadnax attempts to overcome the state habeas court's factual findings through the presentation of new affidavits and other evidence not presented to the state habeas court, his efforts are in vain. Because the state habeas court denied Broadnax's Giglio/Napue claim on the merits, this Court is precluded from considering any new or additional evidence in the course of reviewing this same claim. See Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011):

We now hold that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. Section 2254(d)(1) refers, in the past tense, to a state-court adjudication that “resulted in” a decision that was contrary to, or “involved” an unreasonable application of, established law. This backward-looking language 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.

         Thus, this Court may not consider any of the new evidence Broadnax has attached to his federal habeas corpus petition in resolving Broadnax's Giglio/Napue claim.[27] Because the state habeas court found Officer Nelson's trial testimony to be factually accurate and not false or misleading, and those factual determinations are fully supported by the evidentiary record before the state habeas court, the state habeas court's rejection on the merits of Broadnax's Giglio/Napue claim was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in his state habeas corpus proceeding. This Court therefore denies this claim for relief.

         VII. ADMISSION OF DR. PRICE'S TESTIMONY REGARDING PSYCHOPATHY

         As he argued in his seventh ground for state habeas corpus relief, Broadnax argues the admission of Dr. Price's punishment phase rebuttal testimony regarding the factors mental health professionals examine to make a diagnosis of psychopathic personality violated his due process rights because (1) that testimony was irrelevant to Broadnax, (2) the checklist from which Dr. Price read during his testimony is a highly unreliable predictor of future dangerousness, and (3) Broadnax has subsequently been diagnosed by a different mental health professional as not possessing a psychopathic personality.[28] Initially, Broadnax's reliance upon the Supreme Court's holding in Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993), is unpersuasive. The Fifth Circuit has repeatedly held that Daubert does not control the admission of expert mental health testimony regarding future dangerousness offered at the punishment phase of a capital murder trial. See, e.g., Williams v. Stephens, 761 F.3d 561, 571 (5th Cir. 2014) (“Daubert does not apply to the standards governing the admissibility of expert evidence at a capital sentencing hearing”); United States v. Fields, 483 F.3d 313, 341-43 (5th Cir. 2007) (explaining the Supreme Court's opinion in Barefoot v. Estelle, 463 U.S. 880 (1983), rejected as “contrary to our cases, ” the argument that psychiatric testimony regarding future dangerousness was constitutionally inadmissible at the punishment phase of a capital murder trial and, therefore, holding Daubert inapplicable to the admission of such testimony).

         Insofar as Broadnax argues that the admission of Dr. Price's testimony violated due process principles, Broadnax's arguments are likewise unpersuasive. The expert testimony of Dr. Lane (regarding the DSM-IV-TR's criteria for a diagnosis of ASPD) and Dr. Price (regarding the traits of a psychopathic personality) did not render the punishment phase of Broadnax's capital murder trial fundamentally unfair. Neither of those two experts linked ASPD or psychopathy to Broadnax. Despite Broadnax's suggestions to the contrary in his federal habeas corpus petition, Dr. Lane never testified that Broadnax had ASPD. Instead, Dr. Lane admitted during his cross-examination only that his notes indicated that, at one point during his treatment of Broadnax he wanted to attempt to rule out ASPD as a possible diagnosis but he was unable to make any further evaluation of a possible ASPD diagnosis because he lacked accurate information concerning Broadnax's behavior prior to age fifteen. Thus, there was no testimony during Broadnax's trial from Dr. Lane or anyone else establishing that Broadnax had ever been diagnosed with ASPD. Likewise, Dr. Price took great pains to explain during his rebuttal testimony that he had not interviewed Broadnax and was not testifying that Broadnax possessed any of the traits of a psychopathic personality. Dr. Price also admitted on cross-examination that the term “psychopath” was not a diagnosis appearing in the DSM-IV-TR.

         Furthermore, as explained in Appendix II, Broadnax's trial counsel put on one of the most comprehensive and compelling cases in mitigation this Court has ever seen in a Texas capital murder trial. But ultimately it was not enough. The reason Broadnax's jury answered the two capital sentencing special issues in a manner favorable to the prosecution, in all reasonable likelihood, had nothing to do with the trial testimony of either Dr. Lane, Dr. Price, or any other mental health professional.

         Rather, at the start of its deliberations at the punishment phase of trial, Broadnax's jury had before it compelling, overwhelming, evidence establishing that (1) Broadnax had described his capital offense in highly detailed, albeit crude, and graphic terms during his videotaped interviews (thus belying his trial counsels' arguments that Broadnax was intoxicated, under the influence of drugs, or otherwise suffering from a mental impairment at the time of his offense), (2) Broadnax felt no remorse for fatally shooting two strangers multiple times at close range (in his own words, to make sure they were dead) without warning and then robbing them, (3) in the months following his arrest, Broadnax had never retracted or withdrawn any of the crude, highly offensive, hateful statements he had made during his interviews about the families of his victims but, instead, had continued to make crude, dismissive, comments whenever asked during telephone conversations about his victims or their families, (4) the day the jury returned its guilty verdict at the guilt-innocence phase of trial, Broadnax remained unrepentant and remorseless, telling a female acquaintance in a series of telephone conversations that stretched late into the night that he felt certain he would prevail on appeal, and (5) perhaps most tellingly, Broadnax had never retracted or withdrawn his demand to receive a death sentence or his threat to kill again if the jury failed to impose a sentence of death.

         Given the foregoing evidence, as well as the massive amount of double-edged punishment phase testimony from Broadnax's family and friends establishing that Broadnax (1) suffered a physically abusive and emotionally abusive childhood, (2) grew up in an environment bereft of stability and positive role models, and (3) was battered by a physically abusive, emotionally and physically distant, mother and tortured by an emotionally and physically abusive, racist, grandmother, Broadnax's jury could easily have concluded that, as the product of such an negative environment (even disregarding Broadnax's demonstrated willingness to brutally murder individuals he did not know, his lack of remorse, his demand to be executed, and his threat to kill again unless he was sentenced to death), the evidence before it mandated an affirmative answer to the future dangerousness special issue and a negative answer to the mitigation special issue. See Brown v. Thaler, 684 F.3d 482, 499 (5th Cir. 2012) (explaining that mitigating evidence is “double-edged” when it might permit an inference that the defendant is not as morally culpable for his behavior but also might suggest that, as the product of his environment, he is likely to continue to be dangerous in the future); Ladd v. Cockrell, 311 F.3d 349, 360 (5th Cir. 2002) (“Although the evidence of Ladd's inadequate supervision as a child might permit an inference that he is not as morally culpable for his behavior, it also might suggest Ladd, as a product of his environment, is likely to continue to be dangerous in the future.”).

         This Court alternatively concludes after independent, de novo review of the entire record from Broadnax's capital murder trial, including careful scrutiny of Broadnax's videotaped interviews and audiotaped telephone calls, that any error in the admission of Dr. Price's rebuttal testimony did not exceed that of harmless error under the standard of Brecht v. Abrahamson.

         For the foregoing reasons, the state habeas court's rejection on the merits of Broadnax's due process complaints about the admission of Dr. Price's testimony was neither contrary to, nor involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, nor resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in Broadnax's state habeas corpus proceeding. This Court therefore denies this claim for relief.

         VIII. ADMISSION OF ITEMS DISCOVERED IN JAIL CELL SEARCH

         Broadnax's Fourth and Fourteenth Amendment federal habeas corpus claims addressing the evidence admitted during his trial showing the contents of his jail cell (including photographs of drawings on his cell walls, titles of books found inside his cell, and some of his writings collected during the search)[29] are foreclosed by the Supreme Court's holding in Stone v. Powell, 428 U.S. 465, 489-95 (1976), which provides that complaints about alleged Fourth Amendment violations (made actionable against the States through the Fourteenth Amendment) are not cognizable in federal habeas corpus proceedings if the defendant was afforded a full and fair opportunity to litigate those claims on direct appeal. See Stone v. Powell, 428 U.S. at 494 (“we conclude that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced during his trial.”); Bridgers v. Dretke, 431 F.3d 853, 861 (5th Cir. 2005) (holding federal habeas petitioner who was afforded a full and fair opportunity to litigate his Fourth Amendment claim in state court was barred from seeking federal habeas relief by the holding in Stone).

         Broadnax was afforded a full and fair opportunity to fully litigate the validity of the search of his cell during his state trial court proceeding and had an opportunity to challenge on direct appeal the state trial court's ruling admitting the evidence in question. Broadnax took full advantage of his opportunity, raising a complaint about the validity of the search of his jail cell in a pretrial motion and then again in his twenty-eighth point of error on direct appeal.[30] The Texas Court of Criminal Appeals rejected Broadnax's illegal search claim on the merits. Broadnax v. State, AP-76, 207, 2011 WL 6225399, at *10.[31]

         Furthermore, having reviewed the entire record from Broadnax's capital murder trial, this Court concludes that any arguable error in the admission of the contents of Broadnax's jail cell was harmless under the standard set forth in Brecht v. Abrahamson. The drawings and writings found inside Broadnax's jail cell (reflected in State Exhibit nos. 456-83 & 495-99) which Officer Nelson linked to the Gangster Disciples were duplicative of the numerous Gangster Disciples symbols, images, and rap lyrics found in the two spiral notebooks (one red and one black) found among Broadnax's personal property in the trunk of Swan's vehicle at the time of Broadnax's arrest that were introduced into evidence in a pretrial hearing as State Exhibit nos. 14 and 15 and at trial as State Exhibit nos. 131-I and 131-J.[32] Thus, the photographs of the walls and contents of Broadnax's jail cell represented additional evidence in the prosecution's compelling mountain of evidence establishing Broadnax's fascination with the culture and symbols of a violent criminal street gang. Admission of the largely redundant photographs of items in Broadnax's jail cell, even if erroneous, did not have a substantial and injurious effect or influence in determining the jury's punishment phase verdict.

         IX. DENIAL OF DEFENSE'S CHALLENGES FOR CAUSE

         A. The Proper Scope of the Claim

         Broadnax complains that the state trial court erroneously denied the defense's challenges for cause to more than a dozen members of the jury venire.[33] Respondent correctly points out, however, that insofar as Broadnax complains about the state trial court's failure to grant defense challenges for cause made against venire members against whom Broadnax later exercised peremptory challenges, Broadnax's complaints are non sequitur. See Ross v. Oklahoma, 487 U.S. 81, 88 (1988) (“So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated.”). If a criminal defendant exercises a peremptory challenge to exclude an allegedly biased venire member from service on the jury, no constitutional violation occurs. See United States v. Martinez-Salazar, 528 U.S. 304, 307 (2000) (“[I]f the defendant elects to cure such error by exercising a peremptory challenge, and is subsequently convicted by a jury on which no biased juror sat, he has not been deprived of any rule-based or constitutional right.”). Thus, this Court's focus is limited to examining the propriety of the state trial court's ruling on Broadnax's challenge for cause to the only member of the jury venire Broadnax identifies as biased who ultimately served on Broadnax's petit jury, i.e., qualified juror no. 43, J_ V_ (listed in the original jury venire as potential juror no. 1345).[34]

         B. Defense Voir Dire Examination of Qualified Juror No. 43 & Outcome on Appeal

         The relevant portions of Broadnax's trial counsel's voir dire examination of qualified juror no. 43 are as follows:

Q. Now, here's where we get into our problems. A juror can go into this and know that by the way he votes on these issues is going to determine whether or not a person gets life or death.
A. Right.
Q. Okay. And if we have a juror who tells us, Yes, I think that both life without parole and death are both very serious punishments and are satisfactory punishments and I can honestly look at these issues to let them guide me on how I vote on these issues to get to the end.
A. Right.
Q. Okay. That's one thing. But, [name omitted], and this is where I'm concerned because what you've told us here in your questionnaire quite plainly is that you have a bias against life without parole, is that right?
A. I don't know if I have a bias against it. I don't know if it is not more cruel than the death penalty.
Q. Well, let me go through some of your answers that you gave us in your questionnaire. Here on Page 2 you tell us the best argument for the death penalty is, Willful taking of another person's life should be the forfeiture of the assailant's life -- should result in the forfeiture of the assailant's life.
A. Okay.
Q. Is that what you thought?
A. Yes.
Q. And I assume, obviously, that you told us the truth when you made the answers to your questionnaire.
A. Yes.
Q. And that is how you felt. When we go over here to Page 4 we ask you, For what crimes do you think the death penalty should be available in Texas and you said, first-degree murder or murder in the commission of a felony.
A. Okay.
Q. If we go over to Page 5 we ask you, Do you think spending a lifetime in prison is equivalent to the death penalty? And you said, No. We asked you, Which of the following accurately states your general belief regarding a sentence of life without the possibility of parole? And you told us you were strongly opposed to that.
A. Right.
Q. And in explaining your response you said, I believe that lifetime incarceration is both a financial burden on society and morally the criminal deprived another person of their life and should not be allowed to suffer for years in a cell.
A. Right.
Q. And then we ask you, For what purpose, if any, do you believe life without the possibility serves? And your answer was nothing. And then the next one, What purposes, if any, do you believe the death penalty serves? And you said, It ends the actions someone may repeat if unused.
If the death penalty is not used, they may repeat their willful taking of another person's life, is that what you meant there?
A. Yes, sir.
Q. Okay. So tell me where I'm wrong.
A. Okay. I will.
Q. Basically, it seems to me like you told us that you'd consider if you got the ability to answer these questions in such a way that a person gets death or life without parole, you would favor giving them death because it would be a financial burden on the taxpayers to keep them alive for life, it is morally wrong to give them life - and you're afraid they may repeat their actions if you don't give them death.
A. Okay.
Q. Is that fair?
A. Yes. I guess.
Q. See, that's where I'm having a problem.
A. Okay.
Q. I'm not mad at you. Believe me.
A. I know.
Q. We're just trying to pick twelve people who can be fair to both sides.
A. I completely understand.
Q. Please understand, I'm not mad at you or criticizing you for having your opinions.
A. Right.
Q. Ain't nobody going to try to change your opinions, but this is a process where we try to pick people who can be fair to both sides.
A. Okay, sure.
Q. And if we have a juror - a potential juror that tells us, I'm against life without parole and particularly for a person that I have found has willfully caused the death of another person and has done that during the course of committing a robbery and if that's what you're telling me, fine, we'll go on to the next juror. [Prosecutorial Objection Overruled - Colloquy Omitted]
Q. Tell me where you stand.
A. Well, honestly, yes, there are kind of my opinions. It's, like, I don't think the death penalty should be used for just anything less than murder and things like that that are going on. I guess the statement - I think lifetime incarceration is a horrid thing. That's, like, who would want to be locked up for absolutely the rest of their life and never get out? But I do think that I would judge this case honestly and fairly. I mean, there are my opinions, but it doesn't mean that I couldn't make the judgment. I didn't know about these special issues and how the situation worked. I mean, I think I can take the evidence and honestly judge it.
Q. Do you think you could vote in such a way that the defendant would get life without parole even if you personally dislike a ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.