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Dretke, U. 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. 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.

See Kennedy v. 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. 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 long-standing nonretroactivity doctrine announced in Teague v.

Under the holding in Teague, federal courts are generally barred from applying new constitutional rules of criminal procedure retroactively on collateral review.

Caspari v. 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. 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.

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.

Bohlen, U. 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.

O'Dell v. Netherland, U. 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.

Broadnax's conviction became final for Teague purposes no later than October 1, , i. See Beard v. See Horn v. 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.

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. In fact, the Supreme Court has expressly recognized the lack of efficacy in selection phase jury instructions addressing mitigating evidence:.

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. 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.

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. 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.

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. 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.

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.

Likewise, the Fifth Circuit has repeatedly rejected arguments that the Texas capital sentencing scheme's definition of "mitigation" is too narrow.

Stephens, F. Johnson, F. 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.

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.

Thaler, F. 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, 75 F. Scott, 31 F. 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.

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. 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.

California, U. The Supreme Court has consistently applied this standard to evaluate challenges to punishment-phase jury instructions.

See Weeks v. 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, U. This Court must analyze the challenged language included in the jury charge within the context of the overall jury charge.

Cupp v. Nothing in Broadnax's punish-mentphase 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. The fact that a jury instruction was incorrect under state law is not a basis for federal habeas relief.

Gilmore v. McGuire, U. Rather, the question is whether the allegedly ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.

Naughten, U. Kibbe, U. 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.

Cockrell, F. 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. Moreover, there is a strong presumption that errors in jury instructions are subject to harmless error analysis. Galvan v. 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.

Broadnax presents an unexhausted complaint that he was selectively prosecuted on the basis of race. United States v. American-Arab Anti-Discrim.

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.

Armstrong, U. Nonetheless, a prosecutor's discretion is subject to constitutional constraints, including equal protection principles.

That is, the decision to prosecute may not be based on an unjustifiable standard such as race, religion, or other arbitrary classification.

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.

To establish discriminatory effect in a race case, a defendant must show that similarly situated individuals of a different race were not prosecuted.

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.

In every sense of the term, Broadnax put himself in a class by himself. His cold, antisocial, behavior on camera makes him sui generis.

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.

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.

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. 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.

Jeffers, U. Harris, U. Coleman v. 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. 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. 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. Gonzales v. 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.

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.

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.

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, U. 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.

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 long-standing, 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.

Under such circumstances, admission of Detective Nelson's punishment phase testimony did not violate Broadnax's First Amendment rights.

See Fuller v. 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. 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.

Giglio v. 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.

United States, U. 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.

See Schriro v. 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. 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.

See Cullen v. 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.

Merrell Dow Pharm. 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.

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. Price regarding the traits of a psychopathic personality did not render the punishment phase of Broadnax's capital murder trial fundamentally unfair.

Despite Broadnax's suggestions to the contrary in his federal habeas corpus petition, Dr. 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. 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.

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. 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. 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. 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.

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.

See Stone v. Powell, U. 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.

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.

The drawings and writings found inside Broadnax's jail cell reflected in State Exhibit nos. 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.

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.

See Ross v. 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. 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.

The relevant portions of Broadnax's trial counsel's voir dire examination of qualified juror no. Immediately after this latter series of exchanges, the defense challenged this member of the jury venire because: "He told us if he finds the defendant guilty of capital murder he's going to answer Special Issue No.

We feel the juror is not qualified. Broadnax complained on direct appeal that the venire member's voir dire answers revealed 1 he was unable to identify exactly what particular mitigating evidence he would need to hear to answer the mitigation special issue in a manner favorable to defense and 2 he would "automatically" answer the future dangerousness special issue affirmatively based upon a finding the defendant was guilty of a capital offense.

The state appellate court also concluded there was no requirement that venire members be able to think of sufficiently mitigating circumstances on their own or that they find any particular circumstances sufficiently mitigating.

In Adams v. Adams v. The Supreme Court emphasized in Adams that the State could, consistent with Witherspoon, exclude prospective jurors whose views on capital punishment are such as to make them unable to follow the law or obey their oaths; but excluding jurors on broader grounds based on their opinions concerning the death penalty is impermissible.

In Wainwright v. Witt, U. The two were stopped hours after the murders in Swan's car. Source: The Dallas Morning News.

August 21, Minutes after he learned a jury had sentenced him to death, killer James Broadnax laughed at the mother of one of his murder victims as she told him how he had devastated her life.

But assistant district attorney David Alex later said he saw it happen. As she left the stand, Butler admonished Broadnax to stop laughing. He appeared to have no reaction earlier when he was sentenced to die by lethal injection for the murder of Stephen Swan.

He also has confessed to killing Matthew Butler as the two left a Garland recording studio in June When the sentence was announced, friends and relatives of the victims smiled grimly, embraced and wiped away tears.

The jury deliberated for about eight hours over two days. Patterson, the lone African-American on the jury, was placed on the panel at the insistence of judge Michael Snipes, who was concerned that the group sitting in judgment on the bi-racial defendant be racially diverse.

Defense attorney Brad Lollar insisted his client does regret his actions. Jamie Butler Cole, widow of Matthew Butler, referred to the letter she received when she told Broadnax during her statement that she forgave him.

She did so, she stressed, for her sake, not his. She has not been able to forgive Broadnax, she said. Broadnax, 20, was convicted last week of killing Stephen Swan, He also admitted killing Matthew Butler, Jurors began to consider Broadnax's punishment Thursday morning.

In closing arguments, Assistant District Attorney Andrea Handley reminded jurors to remember the victims and their brutal deaths. He was crawling.

Give that child mercy. A co-defendant, Demarius Cummings, a cousin of Broadnax's, is awaiting trial. The two were stopped hours after the murders in Swan's car.

Minutes after he learned a jury had sentenced him to death, killer James Broadnax laughed at the mother of one of his murder victims as she told him how he had devastated her life.

James Garfield Broadnax Video

The James Garfield Song James garfield broadnax Die Naked in the car der Verdammten. Resident Evil - Extinction. Hollow Man: Unsichtbare Gefahr. Anthony Woods. UK 68 1 Wo. See Japanese twink tumblr v. Richter, the Texas Court of Criminal Appeals' Xxx casero anal on the merits of this ineffective assistance claim during the course of Broadnax's state habeas corpus proceeding 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 James garfield broadnax corpus proceeding. A federal court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable. While Broadnax does take issue with Detective Nelson's expert opinion that Animated sex vids drawings incorporating numerous Gangster Disciples symbols, use of the phrase "Folk Nation," references to the leader of the Gangster Disciples, and a Naked legs spread gesture Broadnax gave during a televised interview suggest Broadnax is a member of the Gangster Disciples, Free vivid videos if that opinion was incorrect, it was far from an unreasonable inference based on Ana foxx anal evidence then before the trial court. As explained in Porn you tube video in Section XI above, Broadnax's Janice griffith - bitch reporter counsel raised timely Batson challenges Aleida nunez porn the prosecution's use of eight peremptory strikes against various Mingle2day members. Broadnax's Batson claims do not warrant federal habeas corpus relief.

James Garfield Broadnax - Inhaltsverzeichnis

Mission: Imposible 3. From Dusk Till Dawn. US 26 Gold 18 Wo. UK 9 12 Wo. Die Säulen der Erde. Jump Sparkle. TilleyLonny W. CH 50 1 Wo. Die Legende von Beowulf. Doom - Der Granny vögeln. Das Jesus Video. Ansichten Lesen Bearbeiten Quelltext bearbeiten Amateur wife stockings. Love Me Righ Jump to It. Flucht aus Absolom. Trial at[ ECF atof 86]. He was sentenced to death in Dallas County on Hund knullar tjej 21, Lane were both scientifically invalid as predictors of future violence in prison. McDaniel, U. Reporter Pickett said it best when he replied to a question during the pretrial hearing Single women looking for men Broadnax's motion to suppress about his failure to give Broadnax Miranda warnings by pointing out the obvious — he was a reporter, not a police officer.

A co-defendant, Demarius Cummings, a cousin of Broadnax's, is awaiting trial. The two were stopped hours after the murders in Swan's car. Minutes after he learned a jury had sentenced him to death, killer James Broadnax laughed at the mother of one of his murder victims as she told him how he had devastated her life.

But assistant district attorney David Alex later said he saw it happen. As she left the stand, Butler admonished Broadnax to stop laughing.

He appeared to have no reaction earlier when he was sentenced to die by lethal injection for the murder of Stephen Swan. He also has confessed to killing Matthew Butler as the two left a Garland recording studio in June When the sentence was announced, friends and relatives of the victims smiled grimly, embraced and wiped away tears.

The jury deliberated for about eight hours over two days. Broadnax's trial counsel raised a Batson challenge to the prosecution's peremptory strike of qualified juror no.

Trial at 26 [ ECF at 26 of 86]. The prosecution then explained that 1 this juror indicated on page one of his juror questionnaire that he is not in favor of the death penalty and chose option three from the list described above, 2 on page four of his questionnaire listed himself as a "1" on a scale of one to ten asking how strongly he believed in the death penalty with "1" being the lowest score , 3 on page six of his questionnaire and during his voir dire examination, this juror indicated that he believed drugs and alcohol alter the mind which the prosecution expected to be a major defense contention at trial , 4 has a cousin in prison for murder, 5 emphasized that he has two good parents, and 6 has a son about the same age as the defendant and said during voir dire that he saw his son in this room.

Broadnax's trial counsel argued it was illogical for the prosecution to strike a potential juror because he had two good parents and relatives in prison but the presiding judge denied the challenge.

Trial at 44 [ ECF at 44 of 86]. The prosecution then explained that this juror 1 stated on page one of her questionnaire that she had mixed feelings about the death penalty, 2 seemed in her questionnaire answers to want to limit the scope of the death penalty to cases of torture or death of a child or the elderly, 3 indicated in her questionnaire answers she was strongly in favor of life without parole, 4 indicated on page six of her questionnaire that she believed drugs alter a person's ways of thinking and acting, 5 indicated she did not believe a non-shooter should get the same punishment as a shooter, 6 had been placed on probation for theft by check, and 7 appeared to have displayed a different, more receptive demeanor during voir dire examination by Broadnax's trial counsel.

Broadnax's counsel argued the court should disregard the prosecution's observations about the juror's allegedly shifting demeanor during voir dire in part because the voir dire examinations had not been videotaped and suggested the prosecution's arguments were pretext but the presiding judge denied the challenge.

Broadnax's trial counsel raised a Batson challenge to the prosecution's peremptory challenge to qualified juror no. Trial at 51 [ ECF at 51 of 86]. The prosecution explained that this potential juror 1 gave voir dire answers to the defense's questions indicating he does not believe in the death penalty and placed it in the same category as abortion, 2 had served as the foreperson of a jury that acquitted a defendant in a murder trial, 3 had a very narrow view of a crime of violence, believing a physical assault was not a crime of violence — seemed to insist that the use of a weapon was required for it to be a "crime of violence," 4 on his own raised the issue of jury nullification during his voir dire examination in the context of a discussion of the mitigation special issue, and 5 suggested during his voir dire examination that if a person's background included growing up in a crime-infested neighborhood, with no parental supervision, and had been involved with a gang, but had no history of criminal activity, that might furnish a basis for an affirmative answer to the mitigation special issue.

Broadnax's trial counsel argued this juror was eminently qualified and was the best member of the jury venire but the presiding judge denied the challenge.

Trial at , [ ECF at , of 86]. Trial at 69 [ ECF at 69 of 86]. Trial at 70 [ ECF at 70 of 86]. Broadnax's trial counsel argued the prosecution's reasons were pretext but the presiding judge denied the challenge.

Trial at 71 [ ECF at 71 of 86]. The prosecution explained that this juror 1 indicated on page one of his juror questionnaire that he was not in favor of the death penalty, 2 stated during his voir dire testimony his belief that people in prison can change, 3 on page two of his questionnaire stated that he believed that use of drugs was an argument against the death penalty, 4 on pages four and six of his questionnaire gave answers that suggested he believed intoxication was clearly a mitigating factor to a criminal offense, 5 during his voir dire examination indicated that he has a strong interest in helping kids, 6 had a cousin who was killed as a teenager by a police officer, and 7 believed that people change after age eighteen.

Broadnax's trial counsel argued the prosecution's peremptory strikes reflected a continued policy of striking all black members of the jury venire from capital murder trials but the presiding judge denied the challenge.

On July 27, , Broadnax filed a motion asking the trial court to either restore qualified juror no. At the start of that hearing, the trial judge noted that while he recognized the juror whom Broadnax had asked to be reinstated had served as the foreperson of a jury that had acquitted a murder defendant and the same venire member had raised the issue of jury nullification sua sponte but the judge nonetheless expressed concern that the prosecution had peremptorily struck every black member of the jury venire and invited the prosecution to address the comparative juror analysis contained in Broadnax's motion.

Trial at [ ECF at 6 of 24]. Trial at [ ECF at of 24]. Broadnax's trial counsel then argued 1 because voir dire examination had not been videotaped, the prosecution could not rely on the demeanor of venire members to justify a peremptory strike, 2 another member of the jury whom the prosecution did not strike [qualified juror no.

The prosecution responded with arguments that 1 the venire member in question had been the foreperson of a jury that acquitted a murder defendant not merely a member of a jury that acquitted in a DWI case, 2 contrary to his questionnaire answers, the venire member in question volunteered during voir dire examination that was not in favor of the death penalty and did so in unmistakable terms, 3 the female venire member identified by the defense as having vacillated in terms of her feelings about the death penalty had given a very pro-prosecution response to a question about mitigating evidence.

The trial judge then declared that he could not conclude the prosecution had subjectively presented pretextual reasons for striking the venire member in question but explained he was going to restore the venire member to the jury nonetheless.

Trial at [ ECF at 13 of 24]. The ensuing problem of excess jurors became moot several days later when another member of the jury was excused for medical reasons.

Trial at [ ECF at 15 of 84]. Without making any specific factual findings regarding the prosecution's intent to discriminate on the basis of race, the trial judge concluded that restoring the venire member in question to the jury was the proper course.

In his first seven points of error on direct appeal, Broadnax argued the trial court erred in denying his Batson challenges to the six other black venire members and one hispanic venire member peremptorily struck by the prosecution.

In Batson v. See Batson v. Kentucky, U. Batson provides a three-step process for a trial court to use in adjudicating a claim that a peremptory challenge was based on race: first, the defendant must make out a prima facie case of discriminatory jury selection by the totality of the relevant facts concerning a prosecutor's conduct during the defendant's own trial; second, once the defendant makes the prima facie showing, the burden shifts to the State to come forward with a race-neutral explanation for challenging jurors within the arguably targeted class; finally, the trial court must determine if the defendant established purposeful discrimination by the prosecution.

Foster v. A trial judge's findings in connection with a Batson challenge turn primarily upon an evaluation of the prosecutor's credibility and are entitled to deference.

Davis v. Ayala, S. Having independently examined the voir dire testimony and juror questionnaire answers given by each of these venire members, this Court finds the questionnaire answers and voir dire testimony given by these seven venire members fully supported the race-neutral reasons given by the prosecution for peremptorily striking each of them.

The prosecution stated on the record at both of the Batson hearings held in Broadnax's case that it had determined to peremptorily strike any venire member who indicated in their juror questionnaire answers or their voir dire testimony that they were not in favor of the death penalty.

There were two questions on the first page of the juror questionnaire relevant to this issue. The first asked simply "Are you in favor of the death penalty?

A second question on page one of the juror questionnaire asked the venire members to selfidentify from a list of five pre-printed options their views of the death penalty.

Option three stated "Although I do not believe that the death penalty ever ought to be invoked, as long as the law provides for it, I could assess it under the proper set of circumstances.

While none of the respective venire members' questionnaire answers or voir dire testimony in question may have risen to the level of a basis for a challenge for cause, they all constituted racially neutral, objectively verifiable, record-based, reasons for a prosecutorial peremptory strike.

The state trial court's rejections of Broadnax's Batson challenges to the prosecution's peremptory strikes of these seven venire members were fully supported by the evidence before that court.

Broadnax has failed to present this Court with clear and convincing evidence showing the state trial court's implicit credibility findings regarding the prosecution's race-neutral reasons for its peremptory strikes against these venire members were erroneous.

Broadnax's Batson claims do not warrant federal habeas corpus relief. Broadnax also argues the state trial court should have dismissed the entire jury panel after granting Broadnax's motion to reinstate qualified juror no.

While Broadnax cites to authorities from other state jurisdictions holding that reinstatement of an improperly stricken venire member is not an adequate remedy for a Batson violation, he cites no clearly established Supreme Court legal authority holding that dismissal of an entire jury panel is required whenever a trial court determines there has been a single Batson violation.

This Court's independent research has likewise revealed no such clearly established Supreme Court authority. The Texas Court of Criminal Appeals' rejection on the merits of this additional Batson claim on direct appeal 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.

Furthermore, Respondent correctly argues that the new rule advocated by Broadnax in this federal habeas corpus proceeding is foreclosed by the nonretroactivity doctrine of Teague.

Scattered throughout his first amended federal habeas corpus petition, Broadnax raises a host of conclusory complaints about the performance of his state trial counsel.

More specifically, he complains that his trial counsel 1 failed to call Dr. Roache to testify at the guilt-innocence phase of Broadnax's trial regarding Broadnax's lack of capacity to consent to his media interviews, 75 2 failed to properly object to the prosecution's use of peremptory strikes against minority members of the jury venire, 76 3 failed to rebut the trial testimony of Dr.

Price regarding the traits of a psychopathic personality, 77 and 4 failed to cross-examine Officer Nelson regarding evidence of Broadnax's gang membership and the characteristics of the Gangster Disciples.

In his state habeas corpus application, Broadnax presented complaints that his trial counsel rendered ineffective assistance by 1 failing to investigate and present the facts surrounding the appointment of Broadnax's lead trial counsel and Broadnax's media interviews, 2 failing to a object to testimony by, and cross-examine, the prosecution's gang expert Officer Nelson and b call a rebuttal expert, 3 opening the door to the admission of testimony regarding Antisocial Personality Disorder "ASPD" by calling Dr.

Lane to testify, and 4 failing to cross-examine Dr. The constitutional standard for determining whether a criminal defendant has been denied the effective assistance of trial counsel, as guaranteed by the Sixth Amendment, was announced by the Supreme Court in Strickland v.

To satisfy the first prong of Strickland, i. In so doing, a convicted defendant must carry the burden of proof and overcome a strong presumption that the conduct of his trial counsel falls within a wide range of reasonable professional assistance.

Strickland v. Washington, U. Courts are extremely deferential in scrutinizing the performance of counsel and make every effort to eliminate the distorting effects of hindsight.

See Wiggins v. Under the well-settled Strickland standard, the Supreme Court recognizes a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

To satisfy the "prejudice" prong, a convicted defendant must establish a reasonable probability that, but for the objectively unreasonable misconduct of his counsel, the result of the proceeding would have been different.

Wiggins v. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding.

In those instances in which the state courts failed to adjudicate either prong of the Strickland test such as those complaints the state courts summarily dismissed under the Texas writ-abuse statute or which the petitioner failed to fairly present to the state courts , this Court's review of the un-adjudicated prong is de novo.

See Porter v. Under AEDPA's deferential standard of review, claims of ineffective assistance adjudicated on the merits by a state court are entitled to a doubly deferential form of federal habeas review.

AEDPA, by setting forth necessary predicates before state-court judgments may be set aside, "erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court.

Respondent correctly notes that while Broadnax presented a multi-faceted challenge during his state habeas corpus proceeding to his trial counsels' handling of the admissibility of Broadnax's media interviews, Broadnax has never fairly presented any state court with his new complaint that his trial counsel should have called Dr.

Roache to testify that Broadnax was not competent to consent to his media interviews. This Court will, therefore, undertake de novo review.

As explained in detail in Section X above, however, because the state trial court and state appellate courts found the television reporters who interviewed Broadnax were not acting as state agents, there was no constitutional impediment to the admission of Broadnax's interviews.

As explained in subsection X. Even if Dr. Roache who is a pharmacologist, not a psychologist or psychiatrist had testified at the pretrial hearing on the admissibility of Broadnax's media interviews or at the guilt-innocence phase of trial that he believed Broadnax was suffering from the debilitating effects of a PCP-induced psychosis at the time Broadnax gave his media interviews, Dr.

Roache gave no testimony suggesting there had been any coercive police action to induce Broadnax's media interviews. Roache's punishment-phase trial testimony would not have served as a legal barrier to the admission of Broadnax's media interviews.

At best, Dr. Roache's punishment phase testimony would have added to the testimony of Dr. Mirmesdagh and Mr. Varghese that Broadnax voiced a variety of complaints, including entirely subjective complaints of hallucinations and anxiety, on the morning of his interviews.

Significantly, Dr. Mirmesdagh who is a psychiatrist concluded Broadnax was alert and oriented and did not prescribe any medication for Broadnax that morning after examining him.

Having independently reviewed the entire record from Broadnax's trial, direct appeal, and state habeas corpus proceeding, this Court concludes after de novo review that 1 the failure of Broadnax's trial counsel to call Dr.

Roache to testify at the pretrial hearing on the admissibility of Broadnax's media interviews or at the guilt-innocence phase of trial did not cause the performance of his trial counsel to fall below an objective level of reasonableness and 2 there is no reasonable probability that, but for the failure of Broadnax's trial counsel to call Dr.

Roache to testify at either the pretrial suppression hearing or the guilt-innocence phase of Broadnax's trial, the outcome of either phase of Broadnax's capital murder trial would have been any different.

This complaint fails to satisfy either prong of the Strickland standard and does not warrant federal habeas relief. As was true of Broadnax's first complaint of ineffective assistance, Broadnax's complaints that that his trial counsel failed to a properly raise and preserve his Batson challenges and b object to the trial court's failure to strike the entire jury panel after granting one of Broadnax's Batson challenges were not fairly presented to the state courts during Broadnax's state habeas corpus proceeding.

This Court will undertake de novo review. As explained in detail in Section XI above, Broadnax's trial counsel raised timely Batson challenges to the prosecution's use of eight peremptory strikes against various venire members.

The Texas Court of Criminal Appeals addressed all of those challenges on direct appeal, found the state trial court had correctly rejected seven of the Broadnax's Batson challenges, and held the state trial court erroneously ruled in Broadnax's favor on the eighth such challenge.

Likewise, as discussed in Section XI, Broadnax's complaints about the denial of his Batson challenges and the trial court's failure to strike the entire jury panel after it granted one of Broadnax's Batson challenges and reinstated one of the stricken jurors are refuted by the record and without arguable legal merit.

Broadnax failed to identify any white jurors against whom the prosecution failed to exercise a peremptory strike who were genuinely similarly situated in terms of their questionnaire answers and voir dire testimony to those whom the prosecution struck peremptorily.

The state appellate court held on direct appeal that the trial court had not erred in failing to dismiss the entire jury panel and begin jury selection anew after granting a single Batson challenge.

No clearly established Texas or federal law requires such an outcome. Under such circumstances, this Court concludes after de novo review that 1 the conduct of Broadnax's trial counsel in connection with both Broadnax's Batson challenges including the state trial court's granting of one such challenge did not cause the performance of Broadnax's trial counsel to fall below an objective level of reasonableness and 2 there is no reasonable probability that, had Broadnax's trial counsel objected more strenuously or persistently to the trial court's failure to begin the entire jury selection process anew after granting a single Batson challenge, the outcome of either phase of Broadnax's capital murder trial or Broadnax's direct appeal would have been any different.

The state appellate court addressed and rejected on the merits Broadnax's complaint that the trial court failed to begin jury selection anew after granting a single Batson challenge.

Thus, the conduct of Broadnax's trial counsel did not prevent Broadnax from obtaining a ruling on the merits of this complaint from the state appellate court.

This Court independently concludes there is no reasonable likelihood that different or more emphatic objections by Broadnax's trial counsel with regard to Broadnax's Batson challenges would have resulted in a different result at trial or on direct appeal.

This unexhausted ineffective assistance claim fails to satisfy either prong of the Strickland standard and does not warrant federal habeas relief.

Price's rebuttal testimony was narrow he testified to the characteristics of a psychopathic personality without ever stating that Broadnax actually possessed any of those traits.

As explained in Appendix III below, Broadnax's lead and second chair trial counsel testified at length at the evidentiary hearing in Broadnax's state habeas corpus proceeding that they made a deliberate decision not to call a mental health expert to rebut Dr.

Price's trial testimony because 1 they believed it might open the door to harmful hypothetical testimony on cross-examination by the prosecution, 2 none of the prosecution's mental health experts had testified Broadnax either was a psychopath or had ASPD, and 3 they felt they had obtained favorable admissions from Dr.

Price on cross-examination. The state habeas trial court reasonably found this testimony credible. Broadnax has presented this Court with no clear and convincing evidence showing the state habeas court's findings or conclusions on this claim were objectively unreasonable.

This Court's independent review of the record compels a finding that the strategic decision-making of Broadnax's trial counsel on this point was objectively reasonable.

Furthermore, given the narrow focus of Dr. Price's rebuttal testimony, this Court independently concludes there is no reasonable probability that, but for the failure of Broadnax's trial counsel to rebut Dr.

Price's testimony, the outcome of the punishment phase of Broadnax's capital murder trial would have been any different. Under the doubly deferential standard of review applicable under Harrington v.

Richter, the Texas Court of Criminal Appeals' rejection on the merits of this ineffective assistance claim during the course of Broadnax's state habeas corpus proceeding 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.

The Court therefore denies this claim for relief. As explained at length in Appendix III, Broadnax's trial counsel explained during their testimony in Broadnax's state habeas corpus proceeding that they decided not to challenge Officer Nelson's testimony regarding Broadnax's gang membership because 1 there was no evidence Broadnax's gang membership was related to the murder, 2 Broadnax had self-admitted to gang membership, and 3 it would be difficult to present a credible case that Broadnax's use of gang symbols was meaningless.

The state habeas court also reasonably found there was nothing false or misleading about Officer Nelson's testimony, a conclusion which this Court shares after review of the entirety of the trial record.

Broadnax's trial counsel did introduce testimony from Broadnax's sister that she believed Broadnax was only a gang "wannabe," as opposed to a full-fledged gang member like their older brother.

Broadnax's red and black spiral notebooks contained numerous drawings and rap lyrics which reflected Broadnax's fascination with gang culture in general and the Gangster Disciples in particular.

This Court concludes that, under such circumstances, the state habeas court reasonably concluded Broadnax's complaints about his trial counsels' failure to cross-examine or rebut Officer Nelson's expert testimony failed to satisfy either prong of the Strickland test.

Under the doubly deferential standard of review applicable under the Supreme Court's holding in Harrington v.

Richter, the Texas Court of Criminal Appeals' rejection on the merits of this ineffective assistance 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.

Broadnax also argues that his state appellate counsel rendered ineffective assistance by failing to challenge the admission of Dr.

Price's testimony on direct appeal. The same two-pronged standard for evaluating ineffective assistance claims against trial counsel announced in Strickland applies to complaints about the performance of counsel on appeal.

See Smith v. Thus, the standard for evaluating the performance of counsel on appeal requires inquiry into whether appellate counsel's performance was deficient, i.

Smith v. Robbins, U. Appellate counsel who files a merits brief need not and should not raise every nonfrivolous claim but, rather, may select from among them in order to maximize the likelihood of success on appeal.

The process of winnowing out weaker arguments on appeal and focusing on those more likely to prevail is the hallmark of effective appellate advocacy.

Barnes, U. Where, as in Broadnax's case, appellate counsel presented, briefed, and argued, albeit unsuccessfully, one or more nonfrivolous grounds for relief on appeal and did not seek to withdraw from representation without filing an adequate Anders brief, the defendant must satisfy both prongs of the Strickland test in connection with his claims of ineffective assistance by his appellate counsel.

See Roe v. Broadnax failed to present fairly his complaint of ineffective assistance by his state appellate counsel to the state courts.

The Court will review it de novo. Price's testimony lack arguable merit. Price's testimony that Daubert altered the rule in Barefoot authorizing mental health expert opinion testimony regarding future dangerousness.

Broadnax's state appellate counsel did not render ineffective assistance by failing to assert a meritless constitutional challenge to the admission of Dr.

Price's testimony. See Davila v. Davis, S. Dretke, F. Price's rebuttal punishment phase testimony was not a plainly stronger argument than the claims Broadnax's state appellate counsel actually raised on direct appeal.

Broadnax's points of error on direct appeal complaining of alleged Batson violations, while ultimately without merit, were clearly stronger than his newly proffered complaint about the admission of Dr.

Price's rebuttal testimony. Price emphasized on direct examination that he was not making a mental health evaluation of Broadnax and admitted on cross-examination that 1 psychopathy is not listed in the DSM-IV, 2 the closest thing to psychopathy in the DSM-IV is a personality disorder, 3 people who have the traits of psychopathy may not be a psychopath, and 4 some of the traits of a psychopath are consistent with those of an immature person.

Broadnax's state appellate counsel could reasonably have believed that a complaint on direct appeal about the admission of Dr.

Price's rebuttal testimony would not withstand applicable state harmless error analysis. See Taylor v. By the time of the punishment phase of Broadnax's capital murder trial, the jury had already found Broadnax guilty beyond a reasonable doubt of Swan's brutal murder in the course of a robbery.

Broadnax's videotaped confessions to multiple television reporters and his audiotaped telephone conversations had been admitted into evidence and established beyond any doubt his lack of sincere contrition and genuine remorse for his crimes.

Under such circumstances, even if erroneous under state law, the admission of Dr. Price's rebuttal testimony at the punishment phase of trial did not, in all reasonable likelihood, constitute reversible error under state law or rise above the level of harmless error under the Brecht standard.

Therefore, this Court concludes there is no reasonable probability that, but for the failure of Broadnax's state appellate counsel to challenge the admission of Dr.

Price's punishment phase rebuttal trial testimony on direct appeal, the outcome of Broadnax's direct appeal would have been any different.

This claim satisfies neither prong of the Strickland standard. Broadnax argues he has now presented new evidence showing that he is not a psychopath and, therefore, he is entitled to federal habeas corpus relief because he is "actually innocent" of the death penalty.

Floyd v. As explained above, Broadnax has failed to establish that a constitutional violation took place during his capital murder trial.

Therefore, his assertion that he has new evidence showing that he is not a psychopath does not furnish an independent basis for federal habeas corpus relief.

Analysis of the lone Supreme Court opinion cited by Broadnax in support of his actual innocence claim further supports this conclusion.

In Sawyer v. At no point in Sawyer did the Supreme Court suggest that satisfying the standard set forth in that decision would entitle a federal habeas corpus petitioner to relief from a sentence of death.

Furthermore, Broadnax's proffered "new evidence" that he is not a psychopath does not even begin to approach the "actual innocence" test set forth in Sawyer.

Broadnax's jury did not answer the Texas capital sentencing special issue addressing future dangerousness affirmatively or the mitigation special issue negatively because of any of the mental health testimony offered during Broadnax's trial.

Price's punishment phase testimony listing the factors mental health professionals consider before diagnosing an individual as a psychopathic personality was not tied to Broadnax.

On the contrary, Dr. Price took great pains during his testimony to make clear he was not suggesting Broadnax possessed any of the traits of a psychopathic personality.

Thus, despite Broadnax's assertions in his federal habeas petition to the contrary, no one offered any testimony at Broadnax's trial establishing that Broadnax is a psychopathic personality.

Likewise, despite Broadnax's complaints in his federal habeas corpus petition, Dr. The Court therefore, denies this claim for relief.

Broadnax requests an evidentiary hearing. Under AEDPA, the proper place for development of the facts supporting a federal habeas claim is the state court.

See Harrington v. Richter, U. Where a petitioner's claims have been rejected on the merits, further factual development in federal court is effectively precluded by virtue of the Supreme Court's holding in Cullen v.

Pinholster, U. Thus, Broadnax is not entitled to a federal evidentiary hearing on any of his claims which were rejected on the merits by the state courts, either on direct appeal or during his state habeas corpus proceeding.

With regard to the new factual allegations and new legal arguments Broadnax failed to fairly present to the state courts, and for which this Court has undertaken de novo review, Broadnax is likewise not entitled to an evidentiary hearing.

In the course of conducting de novo review, this Court has assumed the factual accuracy of all the specific facts alleged by Broadnax in support of his unexhausted claims for relief.

Even when the truth of all of Broadnax's new factual allegations supporting his unexhausted claims is assumed, his unexhausted claims do not warrant federal habeas relief.

Thus, Broadnax is not entitled to an evidentiary hearing with regard to any of his unexhausted claims. Under AEDPA, before a petitioner may appeal the denial of a habeas corpus petition filed under section , the petitioner must obtain a Certificate of Appealability "CoA".

Miller-El v. See Crutcher v. In other words, a CoA is granted or denied on an issue-by-issue basis, thereby limiting appellate review to those issues on which CoA is granted.

Crutcher v. A CoA will not be granted unless a petitioner makes a substantial showing of the denial of a constitutional right. Johnson, U.

To make such a showing, the petitioner need not show he will prevail on the merits but, rather, must demonstrate that reasonable jurists could debate whether or, for that matter, agree the petition should have been resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further.

This Court is required to issue or deny a CoA when it enters a final Order such as this one adverse to a federal habeas petitioner.

The showing necessary to obtain a CoA on a particular claim is dependent upon the manner in which the District Court has disposed of a claim.

McDaniel, U. In a case in which the petitioner wishes to challenge on appeal this Court's dismissal of a claim for a reason not of constitutional dimension, such as procedural default, limitations, or lack of exhaustion, the petitioner must show jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and whether this Court was correct in its procedural ruling.

See Slack v. This Court did not dispose of any of Broadnax's federal habeas corpus claims on procedural grounds. In death penalty cases, any doubt as to whether a CoA should issue must be resolved in the petitioner's favor.

Avila v. Nonetheless, a CoA is not automatically granted in every death penalty habeas case. Cockrell, U. As she left the stand, Butler admonished Broadnax to stop laughing.

He appeared to have no reaction earlier when he was sentenced to die by lethal injection for the murder of Stephen Swan.

He also has confessed to killing Matthew Butler as the two left a Garland recording studio in June When the sentence was announced, friends and relatives of the victims smiled grimly, embraced and wiped away tears.

The jury deliberated for about eight hours over two days. Patterson, the lone African-American on the jury, was placed on the panel at the insistence of judge Michael Snipes, who was concerned that the group sitting in judgment on the bi-racial defendant be racially diverse.

Defense attorney Brad Lollar insisted his client does regret his actions. Jamie Butler Cole, widow of Matthew Butler, referred to the letter she received when she told Broadnax during her statement that she forgave him.

She did so, she stressed, for her sake, not his. She has not been able to forgive Broadnax, she said. Family of murder victim puts son's music online Steve Swan loved music.

His mother, Jean Swan, said her son never promoted himself like he should have before being killed and robbed in outside a Christian music recording studio in Garland.

So, she's doing it for him on the website cdbaby. She hopes to put more songs online after the trial.

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