United States Court of Appeals

for the Fifth Circuit

No. 19-70014

James Garfield Broadnax, 

Petitioner—Appellant,

versus

Bobby Lumpkin, Director, Texas Department of 

Criminal Justice, Correctional Institutions Division, 

Respondent—Appellee.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:15-CV-1758

Before Jones, Higginson, and Oldham, Circuit Judges.

Edith H. Jones, Circuit Judge:

James Garfield Broadnax was convicted of capital murder and 

sentenced to death for robbing and fatally shooting two men. After 

exhausting his state remedies, Broadnax filed a federal habeas petition under 

28 U.S.C. § 2254. The district court rejected his petition and denied a 

certificate of appealability (“COA”). Broadnax sought a COA under 

28 U.S.C. § 2253(c)(2) to appeal numerous issues. We granted a COA and 

received additional briefing on a single issue pertinent to his Batson 

challenges to the jury’s makeup: “Whether the district court erroneously 

United States Court of Appeals

Fifth Circuit

FILED

February 8, 2021

Lyle W. Cayce

Clerk

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concluded that the spreadsheet was barred by Pinholster and 28 U.S.C. 

§ 2254(d)(2).” Broadnax v. Davis, 813 F. App’x 166 (5th Cir. 2020) (per 

curiam). We now AFFIRM the district court’s refusal to consider newly 

discovered evidence relevant to Broadnax’s Batson claim because Cullen v. 

Pinholster, 563 U.S. 170, 131 S. Ct. 1388 (2011), bars its consideration. We 

also explain why COA is DENIED on Broadnax’s other claims.

I. BACKGROUND

On June 19, 2008, Broadnax and Demarius Cummings fatally shot and 

robbed Stephen Swan and Matthew Butler in Garland, Texas. Broadnax was 

convicted of capital murder and sentenced to death. After his arrest, 

Broadnax gave several interviews with local news stations which became the 

foundation of the State’s case at trial. In them, he confessed to the murder 

and robbery and provided explicit details of the murder. He admitted that he 

alone killed Swan and Butler, that he had no remorse, and he hoped for the 

death penalty.

During voir dire, Broadnax challenged the prosecution’s use of 

peremptory strikes to remove all prospective black jurors and a Hispanic 

juror based on Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986).1 The 

trial court initially denied all Broadnax’s challenges but eventually reseated

one of the struck jurors. At trial, Broadnax did not dispute that he killed the 

victims, but he developed an extensive mitigation case that focused on his 

drug use at the time of the offenses. Broadnax presented expert testimony to 

the effect that because he committed the crimes at the age of nineteen, his 

brain would not have been fully developed. Dr. Frank Lane, a jail physician 

1 Batson held that “the Equal Protection Clause forbids the prosecutor to challenge 

potential jurors solely on account of their race or on the assumption that black jurors as a 

group will be unable impartially to consider the State’s case against a black defendant.” 

476 U.S. at 89, 106 S. Ct. at 1719.

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who treated Broadnax, testified that Broadnax claimed he was hallucinating, 

was paranoid, and did not remember talking to the media. Broadnax also told 

him that he had used PCP at the time of the offense. Because of this, Dr. Lane 

opined that Broadnax was most likely suffering from mood and perceptual 

disturbances due to prior PCP use.

On direct appeal, Broadnax raised fifty-six points of error, including

his challenges to the trial court’s Batson rulings. The Texas Court of 

Criminal Appeals (“TCCA”) affirmed the conviction and sentence. 

Broadnax v. State, AP-76,207, 2011 WL 6225399 (Tex. Crim. App. Dec. 14, 

2011), cert. denied, 568 U.S. 828 (2012). Broadnax then filed his state habeas 

corpus petition. After an evidentiary hearing, the trial court recommended 

denial of relief and the TCCA adopted the trial court’s findings and 

conclusions. Ex parte Broadnax, WR-81,573-01, 2015 WL 2452758 (Tex. 

Crim. App. May 20, 2015), cert. denied, 136 S. Ct. 77 (2015).

Having exhausted state remedies, Broadnax petitioned for federal 

habeas relief claiming ineffective assistance of counsel, Batson violations, 

erroneous evidentiary rulings, and errors in the punishment phase jury 

charge. He also challenged the constitutionality of the Texas capital 

punishment scheme and the death penalty. As part of his Batson challenges, 

Broadnax submitted for the first time a spreadsheet created by the Dallas 

County District Attorney’s Office in preparation for voir dire. The 

spreadsheet specified the race and gender of the veniremembers and bolded 

the names of prospective black jurors. As Broadnax admits, this document 

was previously withheld by the District Attorney’s Office as privileged work 

product, and he only gained access when the office revised its policy. The 

spreadsheet was not part of the record before the state court.

The district court refused to consider the spreadsheet because in 

Pinholster, the Supreme Court “bar[red] [the court] from considering new 

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evidence that was not properly before the Texas Court of Criminal Appeals 

when it rejected Broadnax’s Batson claims on direct appeal.”2 Subsequently, 

the district court denied habeas relief on all grounds and further denied a

COA on all claims. Broadnax appealed to this court and moved for a COA. 

This court granted a COA for one issue: “Whether the district court 

erroneously concluded that the spreadsheet was barred by Pinholster and 

28 U.S.C. § 2254(d)(2).” Broadnax v. Davis, 813 F. App’x 166 (5th Cir. 

2020) (per curiam).

We first address the Pinholster/Batson claim and then the denial of 

COA on Broadnax’s other issues.

II. STANDARD OF REVIEW

Federal habeas proceedings are governed by the Antiterrorism and 

Effective Death Penalty Act of 1996 (“AEDPA”), and a petitioner must first 

obtain a COA before he may appeal the district court’s denial of habeas relief. 

See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335–36, 

123 S. Ct. 1029, 1039 (2003) (“Miller-El I”). To obtain a COA, a petitioner 

must make “a substantial showing of the denial of a constitutional right.” 

28 U.S.C. § 2253(c)(2). This standard requires the petitioner to 

demonstrate “that reasonable jurists could debate whether (or, for that 

matter, agree that) the petition should have been resolved in a different 

manner or that the issues presented were adequate to deserve encouragement 

to proceed further.” Miller–El I, 537 U.S. at 336, 123 S. Ct. at 1039 (internal 

quotes omitted). “[A]ny doubt as to whether a COA should issue in a death2 “If a claim has been adjudicated on the merits by a state court, a federal habeas 

petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that 

state court.” Pinholster, 563 U.S. at 185, 131 S. Ct. at 1400. “Similarly, § 2254(d)(2) 

expressly limits review to the state court record.” Halprin v. Davis, 911 F.3d 247, 255 (5th 

Cir. 2018).

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penalty case must be resolved in favor of the petitioner.” Pippin v. Dretke, 

434 F.3d 782, 787 (5th Cir. 2005).

When considering a COA application, this court has jurisdiction to 

determine only whether a COA should issue, not the ultimate merits of the 

petitioner’s claims. Ward v. Stephens, 777 F.3d 250, 255 (5th Cir. 2015). 

“This threshold inquiry does not require full consideration of the factual or 

legal bases adduced in support of the claims. In fact, the statute forbids it.” 

Miller-El I, 537 U.S. at 336, 123 S. Ct. at 1039. Indeed, “[t]he question is the 

debatability of the underlying constitutional claim, not the resolution of that 

debate,” and a “claim can be debatable even though every jurist of reason 

might agree, after the COA has been granted and the case has received full 

consideration, that petitioner will not prevail.” Id. at 338, 342, 123 S. Ct. at 

1040, 1042.

If a COA is granted, our jurisdiction extends only to “the issue 

specified in the COA.” Simmons v. Epps, 654 F.3d 526, 535 (5th Cir. 2011) 

(per curiam). “In a habeas corpus appeal, we review the district court’s 

finding of fact for clear error and its conclusions of law de novo.” Higgins v. 

Cain, 720 F.3d 255, 260 (5th Cir. 2013). AEDPA bars habeas relief for a claim 

adjudicated on the merits by a state court absent a showing that the decision 

was either (1) “contrary to, or involved an unreasonable application of, 

clearly established Federal law, as determined by the Supreme Court of the 

United States” or (2) “based on an unreasonable determination of the facts 

in light of the evidence presented in the State court proceeding.” 28 U.S.C. 

§ 2254(d). A state court decision is “contrary to” federal law if, on 

materially indistinguishable facts, it reaches a conclusion opposite of a 

Supreme Court case. Williams v. Taylor, 529 U.S. 362, 413, 120 S. Ct. 1495, 

1523 (2000). The decision is an unreasonable application of federal law if the 

state court correctly identified the governing legal principle but unreasonably 

applied it to the facts of the case. Id. Factual findings by the state court are 

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presumed correct unless rebutted “by clear and convincing evidence.” 

28 U.S. § 2254(e)(1).

III. PINHOLSTER , the JUROR SPREADSHEET, and the BATSON 

CLAIM

This court granted a COA in order to consider more fully the 

contention that the federal district court should have admitted the racially 

annotated juror spreadsheet, not made available in the state courts, when it 

evaluated Broadnax’s Batson claim. In Pinholster, the Supreme Court 

considered “whether review under [AEDPA] § 2254(d)(1) permits 

consideration of evidence introduced in an evidentiary hearing before the 

federal habeas court.” 563 U.S. at 180, 131 S. Ct. at 1398. This provision 

limits federal court habeas review to claims that were “adjudicated on the 

merits” in state courts. For such claims, the Court concluded that “the 

record under review is limited to the record in existence at that same time

i.e., the record before the state court.” Id. at 182, 131 S. Ct. at 1398. Further, 

the Court noted, § 2254(d)(2) provides “additional clarity” by expressly 

confining review of the underlying evidence to “evidence presented in the 

State court proceeding.” Id. at 185 n.7, 131 S. Ct. at 1400 n.7.

The point of AEDPA, the Court explained, is to require prisoners first 

to exhaust state court remedies before seeking federal relief, and “[i]t would 

be contrary to that purpose to allow a petitioner to overcome an adverse statecourt decision with new evidence introduced in a federal habeas court and 

reviewed by that court in the first instance effectively de novo.” Id. at 182, 

131 S. Ct. at 1399. The Court added that, “[a]lthough state prisoners may 

sometimes submit new evidence in federal court, AEDPA’s statutory scheme 

is designed to strongly discourage them from doing so.” Id. at 186, 131 S. Ct. 

at 1401.

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Pinholster thus confirms limitations on a federal habeas court’s 

consideration of new evidence when reviewing claims that have been 

adjudicated on the merits in state court.

3 In such circumstances, the 

petitioner must demonstrate that habeas relief is warranted under § 2254(d)

on the state court record alone. If the petitioner succeeds in satisfying this 

threshold requirement, then a federal habeas court may entertain new 

evidence pursuant to the limitations of § 2254(e)(2). See, e.g., Smith v. Cain, 

708 F.3d 628, 634–35 (5th Cir. 2013) (holding that an evidentiary hearing was 

permissible after the federal trial court first determined “on the basis of the 

state court record that the state court’s Batson analysis was contrary to, or at 

least involved an unreasonable application of, clearly established Federal 

law” (internal quotations omitted)). Broadnax principally asserts that a 

narrow exception to Pinholster benefits him here. Alternatively, he claimsthe 

spreadsheet is admissible under the approach of Smith v. Cain. We disagree 

with both contentions.

A. The Pinholster-Exception Theory

While admitting that he raised Batson challenges to the prosecutors’ 

peremptory strikes of minority jurors and exhausted that claim in state court, 

Broadnax alleges that the spreadsheet “fundamentally alters” his Batson 

claim because it was “withheld” by the prosecution and was made

unavailable to him in state proceedings. He relies on a footnote in Pinholster, 

which recognized that in some instances new evidence may present a new 

claim of which federal habeas courts may take cognizance. Pinholster, 

531 U.S. at 186 n.10, 131 S. Ct. at 1401 n.10 (stating that the dissent’s 

“hypothetical involving new evidence of withheld exculpatory witness 

3 If a claim was not adjudicated on the merits in state court, § 2254(e)(2) applies. 

Broadnax does not seek introduction of the spreadsheet based on § 2254(e)(2) because his 

Batson claim, as he acknowledges, was adjudicated on the merits in state court.

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statements . . . may well present a new claim”). But the Court declined in 

that footnote “to draw the line between new claims and claims adjudicated 

on the merits.” Id.

Broadnax asserts that under this exception-to-Pinholster, the 

“withheld” spreadsheet constitutes such “new evidence” that 

“fundamentally alters” his Batson claims and should have been added to the 

district court’s analysis. This theory raises a difficult question at the outset. 

Despite repeated insinuations, Broadnax does not allege that the state 

improperly withheld the juror spreadsheet during state court proceedings. 

Indeed, Broadnax’s initial federal habeas attorney admitted that the 

spreadsheet was nondiscoverable attorney work product that was only 

disclosed to the defense, after the federal habeas proceeding commenced, 

because of a change in the District Attorney’s policies. The spreadsheet does 

not pertain to Broadnax’s guilt or innocence and therefore fell outside the 

prosecution’s Brady disclosure obligations. In contrast, Pinholster’s majority 

footnote considers a hypothetical framed around exculpatory evidence and a 

potential Brady violation. Logically, more than one habeas “claim” could be 

predicated on distinct failures to disclose exculpatory or impeaching 

information pursuant to Brady. Broadnax ignores the distinction between the 

separability of Brady claims and the mere (alleged) evidentiary enhancement 

of a singular Batson claim by the introduction of the spreadsheet. Broadnax’s

“new claim” is not just non-exculpatory but does not support any kind of 

freestanding Batson “claim” at all.4 Whatever lines might be drawn pursuant 

to the Pinholster footnote, they are not implicated here.

4 Moreover, to the extent that the District Attorney’s office did not “withhold” 

the spreadsheet in contravention of any legal duty, that evidence stands on essentially the 

same footing as any other evidence newly found, or created, and offered for the first time 

in federal habeas proceedings.

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An additional impediment to the Pinholster exception theory is that

this court’s post-Pinholster precedent offers no support for it. Within a year 

after the Supreme Court’s decision, this court held that “[t]he import of 

Pinholster is clear: because Lewis’s claims have already been adjudicated on 

the merits, § 2254 limits our review to the record that was before the state 

court.” Lewis v. Thaler, 701 F.3d 783, 791 (5th Cir. 2012). In so doing, the 

court refused to consider expert mitigation evidence offered for the first time 

in federal habeas. Another decision rejected the notion that, after Pinholster, 

the federal court should consider whether newly offered mitigation evidence 

constituted an unexhausted claim or “simply supplement[ed]” petitioner’s 

state court claim. Clark v. Thaler, 673 F.3d 410, 417 (5th Cir. 2012). Instead, 

the court stated, “[w]e consider only the record that was before the state 

habeas court.” Id. In yet another case, this court rejected the parties’ joint 

position on appeal that newly offered mitigation evidence concerning mental 

illness rendered a petitioner’s federal habeas claim unexhausted.5 Ward, 

777 F.3d at 258. Then, in addressing the merits, the court cited Pinholster and 

analyzed the § 2254(d)(1) claim in light of the state court record alone. Ward, 

777 F.3d at 264. Notably, Smith is this court’s sole foray into applying 

Pinholster to a Batson claim. And when this court applied Pinholster, it 

reviewed only the state court record for its conclusion that the state courts 

decided a Batson claim “unreasonably” pursuant to § 2254(d)(1). Smith, 

708 F.3d at 634–35. As a result, only then did the Smith court take into

consideration additional evidence offered in federal court. Id.

5 The allegedly unexhausted claim in Ward was a “new” diagnosis of mental 

illness, different from the diagnosis originally presented in state court. This court 

concluded that although the petitioner’s evidence “arguably places his [ineffectiveness of 

counsel] claim in a stronger evidentiary position, . . . it does not place the claim in a 

‘significantly different legal posture.’” 777 F.3d at 259 (citation omitted).

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The Fifth Circuit cases cited by Broadnax, when carefully read, do not 

challenge this court’s otherwise uniform adherence to Pinholster. One of 

these granted a COA on an ineffectiveness claim. First and most important, 

a COA is not a definitive ruling on the merits of an issue in habeas.6 See 

Nelson v. Davis, 952 F.3d 651, 671–72 (5th Cir. 2020). Nelson is not a binding 

statement of law on the issue garnering a COA. Second, the COA issue in 

Nelson concerned exhaustion. Citing Pinholster’s footnote 10 (refusing to 

draw lines between new claims and claims unadjudicated in state courts), 

Nelson stated that, “while ‘merely putting a claim in a stronger evidentiary 

posture is not enough,’ new evidence that ‘fundamentally alters the legal 

claim’ or ‘place[s] the claim in a significantly different legal posture’ can 

render it a new claim that was not adjudicated on the merits by the state 

court.” Id. (quoting the discussion of exhaustion in Ward, 777 F.3d at 258–

59). For COA purposes, the court declared, the issue was that “reasonable 

jurists could debate whether Nelson’s [ineffective assistance]-Participation 

allegations ‘fundamentally alter’ his [counsel ineffectiveness] claim, and so 

constitute a different and unexhausted claim.” Id. at 672. Two factually 

distinct theories of ineffective assistance were at least theoretically 

implicated. How this court might rule on the ultimate COA issue and a 

number of intertwined issues in Nelson is unknown at this time. Most 

important, Broadnax has never argued that his spreadsheet evidence 

represents an unexhausted claim.

Escamilla v. Stephens, 749 F.3d 380, 394–95 (5th Cir. 2014), also fails 

to support Broadnax. That case held forthrightly that where a petitioner’s 

habeas counsel had raised an issue in the state habeas court, albeit 

6 “[A] claim can be debatable even though every jurist of reason might agree, after 

the COA has been granted and the case received full consideration, that petitioner will not 

prevail.” Miller-El I, 537 US at 338, 123 S. Ct. at 1040.

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ineffectively from a constitutional standpoint, the petitioner was barred by 

Pinholster from offering new evidence in federal court precisely because the 

original claim had been “fully adjudicated on the merits” in state court. Id. 

Contrary to Broadnax’s view, in light of Escamilla’s clear and unequivocal 

holding,7 this court did not find that an exception to Pinholster exists 

whenever newly offered evidence “fundamentally alters” a claim previously 

presented to the state courts. The court merely stated that the additional 

evidence submitted to the federal habeas court in that case effected no such 

alteration. Id. at 395.

Broadnax’s out-of-circuit citations are also unhelpful. He cites Wolfe 

v. Clark, but that case does not even cite, much less apply Pinholster. For that 

reason alone, Wolfe is inapposite. Wolfe held that a long-concealed police 

report, first offered in federal court, supported a new and separable Brady

claim that had not been adjudicated in state court, rendering § 2254(d) 

irrelevant. 691 F.3d 410, 423 (4th Cir. 2012). Like Nelson, this aspect of 

Wolfe concerns the exhaustion doctrine. The spreadsheet fails to rise to that 

level, and the Batson claim raised here was adjudicated in state courts. 

Broadnax made a detailed showing in state court by pointing out alleged 

inconsistencies in the treatment of jurors as well as the final make-up of the 

empaneled jury. The spreadsheet offered in federal court reflects the 

prosecutors’ awareness of the race of prospective jurors. But it is not the 

“single, plainly momentous item of suppressed . . . evidence” for which 

7 “Thus, once a claim is considered and denied on the merits by the state habeas 

court, Martinez is inapplicable, and may not function as an exception to Pinholster’s rule 

that bars a federal habeas court from considering evidence not presented to the state habeas 

court.” Escamilla, 749 F.3d at 395.

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habeas relief is warranted. Wolfe, 691 F.3d at 417. Thus, Broadnax’s Batson

claim remains subject to the limitations of § 2254(d).8

Finally, even if we were to accept the Pinholster-exception theory 

espoused by Broadnax, his argument would fail. The spreadsheet, at most, 

places Broadnax’s Batson claim “in a stronger evidentiary position;” in no 

way does it “fundamentally alter” the preexisting claim. As the district court 

noted, the spreadsheet “does nothing more than indicate that the Dallas 

County District Attorney’s Office made a point of memorializing the 

ethnicity and gender of the remaining members of the jury venire prior to the 

exercise of its peremptory challenges.” Broadnax v. Davis, No. 3:15-CV1758-N, 2019 WL 3302840, at *43 n.73 (N.D. Tex. July 23, 2019). Batson 

claims are evaluated under a three-step process: (1) the defendant makes a 

prima facie showing that the peremptory challenge was based on race; (2) the 

prosecution provides a race-neutral basis for the strike; (3) the trial court 

determines whether the prosecutor purposefully discriminated against the 

juror. Foster v. Chatman, 136 S. Ct. 1737, 1747 (2016). The spreadsheet 

arguably enhances Broadnax’s argument at the first step, and it may be 

relevant to the third. But the prosecution was still required to—and did—

provide racially neutral reasons for each of the strikes. The spreadsheet alone 

is no smoking gun; it fails to render all those reasons merely pretextual. 

Moreover, the district court observed that the Dallas County District 

Attorney’s Office has twice been criticized by the United States Supreme 

Court for the use of racially discriminatory peremptory strikes.9 Broadnax, 

8 His other Fourth Circuit citation is readily distinguishable. In Winston v. Pearson, 

the court determined that the Supreme Court of Virginia’s prior dismissal was not an 

adjudication on the merits, hence, Pinholster had no applicability. 683 F.3d 489, 501 (4th 

Cir. 2012).

9 See, e.g., Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317 (2005); Miller-El v. 

Cockrell, 537 U.S. 322, 123 S. Ct. 1029 (2003).

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2019 WL 3302840, at *43 n.73. The office would have had considerable 

motivation to identify which jury venire members belonged to a protected 

class when preparing to defend its use of peremptory challenges.10

For all these reasons, we reject the theory that a narrow exception 

articulated in footnote 10 of Pinholster’s majority opinion required the federal 

district court to admit and evaluate the District Attorney’s spreadsheet 

pertinent to Broadnax’s fully adjudicated and exhausted Batson claim.

B. Smith v. Cain Approach

Broadnax alternatively contends that the state court decision was 

“contrary to, or involved an unreasonable application of, clearly established 

Federal law, as determined by the Supreme Court of the United States” and 

was “based on an unreasonable determination of the facts in light of the 

evidence presented in the State court proceeding,” rendering Pinholster’s 

prohibition on new evidence inapplicable. 28 U.S.C. § 2254(d); Smith, 

708 F.3d at 634–35. This argument finds no traction in the record.

Broadnax alleges that the State exercised its peremptory challenges in 

a racially discriminatory manner and intentionally struck every nonwhite 

veniremember. He marshals three arguments in support of this contention. 

First, Broadnax asserts that “the State treated white and nonwhite 

veniremembers differently.” Second, Broadnax raises as prima facie 

evidence of discrimination that the prosecution used its peremptory strikes 

to remove 100% of the nonwhite venire members. Finally, Broadnax argues 

that the trial court’s reinstatement of one struck African-American juror was 

not a sufficient remedy for the Batson violation.

10 At the time of his trial, Dallas had elected the first African-American District 

Attorney in Texas, and his office prosecuted Broadnax.

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The district court conducted a lengthy analysis of the state’s

contemporaneously expressed reasons for exercising strikes on each of the

challenged jurors. In the end, it concluded that “Broadnax has failed to 

present this Court with clear and convincing evidence showing the state trial 

court’s implicit credibility findings (regarding the prosecution’s race-neutral 

reasons for its peremptory strikes against these venire members) were 

erroneous,” as required by 28 U.S.C. § 2254(e)(1). Broadnax, 2019 WL 

3302840, at *43. Thus, the prior dismissal of the Batson claims was “neither 

contrary to, nor involved an unreasonable application of, clearly established 

Federal law, as determined by the Supreme Court of the United States, nor 

resulted in a decision that was based on an unreasonable determination of the 

facts in light of the evidence presented in his trial and direct appeal.” Id. For 

the following reasons, we agree.

After a seventeen-page evaluation of the trial court record concerning 

the state’s peremptory strike on each of eight African-American 

veniremembers, one of whom was eventually seated, the district court found 

that the proffered justifications for the challenges “all constituted racially 

neutral, objectively verifiable, record-based, reasons for a prosecutorial 

peremptory strike.”11

We need not repeat the district court’s exhaustive and convincing 

examination of each strike, but the strikes share common, race-neutral 

characteristics. The state gave each prospective juror a questionnaire. Two 

questions on the first page of the questionnaire are relevant to this issue. The 

first asked “Are you in favor of the death penalty?” The state struck every 

veniremember, regardless of race, who indicated he or she was not in favor of 

11 Seven of the struck veniremembers were not empaneled. The eighth 

veniremember, Juror Patterson, was struck but eventually included in the jury.

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the death penalty, including five against whose strikes Broadnax’s counsel 

raised Batson objections. Each of the five gave various explanations for 

opposing the death penalty, ranging from a belief in second chances to 

concern about erroneous convictions.

Second, the questionnaire asked veniremembers to circle one out of 

five possible responses to the following question: “With reference to the 

death penalty, which of the following statements best represents your 

feelings?” Option three stated: “Although I do not believe that the death 

penalty ever ought to be invoked, as long as the law provides for it, I could 

assess it under the proper set of circumstances.” Again, the state struck 

every veniremember, regardless of race, who selected option three. 

Broadnax’s counsel raised Batson objections to the strikes of two 

veniremembers who indicated this option.

Broadnax counters that the state did not strike several white 

veniremembers who answered their questionnaires similarly to minority 

veniremembers who were struck. But with the exception of Juror Long, every 

Batson-challenged veniremember who was excluded from the jury indicated 

he or she was not in favor of the death penalty and/or believed the death 

penalty ought not be invoked. The state struck all who answered this way, a 

fact Broadnax glosses over. Moreover, while defendants need not 

demonstrate that white and nonwhite veniremembers were identical in all 

respects to demonstrate a Batson challenge, “the comparator-juror must be 

similar in the relevant characteristics.” Herbert v. Rogers, 890 F.3d 213, 223 

(5th Cir. 2018). As the district court noted, given the extensive nature of the 

questionnaire, it is “hardly surprising—or conclusive of anything” that there 

would be similarities in some answers between struck and non-struck 

veniremembers. Broadnax, 2019 WL 3302840, at *43 n.73.

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Juror Long was the sole minority veniremember who expressed 

support for the death penalty and did not select option three. However, Long 

indicated that she would be “automatically prevented” from imposing the 

death penalty if the defendant was using drugs or alcohol at the time of the 

offense. As the state knew that intoxication would be a core component of 

the defense theory, Long’s answer was highly prejudicial to the state’s case. 

Moreover, several of Long’s explanations for her answers revealed mixed 

feelings about the death penalty. While one other veniremember considered 

intoxication to be a mitigating circumstance, Broadnax musters no other 

potential juror who believed that intoxication automatically rendered a 

defendant ineligible for the death penalty. Yet this automatic ineligibility 

formed the core of the state’s justification to the trial court for a peremptory

strike. The district court correctly concluded that the state courts did not 

unreasonably apply Batson in rejecting this claim.

Broadnax further urges that the state court erred in not properly 

considering several important circumstances in the state’s use of its 

peremptory strikes to remove 100% of the nonwhite veniremembers. Not so. 

As this court has previously emphasized, “[t]he Supreme Court has 

instructed that, when analyzing Batson challenges, ‘bare statistics’ are not 

the be-all end-all.” Chamberlin v. Fisher, 885 F.3d 832, 840 (5th Cir. 2018) 

(en banc) (quoting Miller-El v. Dretke, 545 U.S. 231, 241, 125 S. Ct. 2317, 

2325 (2005) (Miller-El-II)). The “[m]ore powerful” evidence is a “side-byside comparison[] of some black venire panelists who were struck and white 

panelists allowed to serve.” Miller-El-II, 545 U.S. at 241, 125 S. Ct. at 2325. 

The district court thoroughly conducted side-by-side analysis of the state 

courts’ determinations and correctly concluded that Batson was not 

unreasonably applied.

Finally, Broadnax challenges the district court’s conclusion that the 

state courts did not unreasonably apply Batson in agreeing that reseating Juror 

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Patterson was a sufficient response to the State’s Batson violation. After 

initially accepting the prosecution’s peremptory strike, the trial court found 

a Batson violation regarding Patterson and reseated him. Interestingly, the 

TCCA found on direct appeal that no Batson violation occurred. Broadnax, 

2011 WL 6225399, at *4. Nevertheless, Broadnax proceeds as if a Batson

violation occurred and disputes only the propriety of the remedy. He asserts 

that the trial court should have struck the entire jury panel and begun voir 

dire anew.

The district court explained that no clearly established Supreme 

Court law requires dismissal of an entire jury panel in the face of a single 

Batson violation. Nor has Broadnax brought any such authority to the 

attention of this court. Batson itself expressly disavowed requiring trial 

courts to dismiss the entire panel and noted that reinstating the improperly 

challenged juror could be an adequate remedy. Batson, 476 U.S. at 99 n.24, 

106 S. Ct. at 1725 n.24. While some other jurisdictions have suggested that 

dismissing the entire panel is the “better practice,” see, e.g., United States v. 

Walker, 490 F.3d 1282, 1295 (11th Cir. 2007), Texas views reinstating any

excluded veniremember as an appropriate remedy for a Batson violation. See, 

e.g., State ex rel. Curry v. Bowman, 885 S.W.2d 421, 425 (Tex. Crim. App. 

1993). In any event, the district court explained that “the new rule advocated 

by Broadnax in this federal habeas corpus proceeding is foreclosed by the 

nonretroactivity doctrine of Teague.” We find no error in the district court’s 

conclusions. Accordingly, because Broadnax did not surmount the standards 

embodied in § 2254(d), he had no basis to offer evidence outside the state 

court record, and the spreadsheet was correctly barred from consideration in 

federal court.

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IV. PETITION FOR COA

Broadnax advanced five other claims for relief in which he sought a 

COA. These contentions include: (1) an unqualified juror sat on his jury; 

(2) the District Attorney’s decision to seek the death penalty was racially 

motivated; (3) Broadnax was unconstitutionally denied counsel when he gave 

media interviews; (4) his appellate counsel was ineffective for failing to 

challenge the admission of certain expert testimony on appeal; and (5) the 

district court applied erroneous legal standards and inadequately reviewed 

the record.

A. Refusal of Strike for Cause

Broadnax contends that reasonable jurists could debate the district 

court’s rejection of his claim that the state courts erroneously refused to 

disqualify juror John Vessels. Broadnax alleges that Vessels was unable to 

consider mitigation evidence. After reviewing Vessels’s responses, we 

conclude that the district court’s resolution of this issue is not debatable.

A trial court must strike for cause a prospective juror who would 

automatically impose the death penalty without considering mitigating 

circumstances. Morgan v. Illinois, 504 U.S. 719, 729, 112 S. Ct. 2222, 2229 

(1992). Despite this, the law does not oblige jurors to consider any specific 

circumstances as mitigating. See Soria v. Johnson, 207 F.3d 232, 244 (5th Cir. 

2000). When asked during voir dire to give examples of mitigating evidence 

that would convince him to change a death sentence to a life sentence, 

Vessels responded he could not think of any. Additionally, Vessels expressed 

suspicion of evidence of intoxication and the defendant’s troubled 

upbringing as mitigating factors.

The district court agreed with the TCCA that while Vessels 

considered these circumstances not to be mitigating, he would not absolutely 

refuse to consider mitigating evidence. As this court has explained, these 

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types of evidence can be double-edged and may even be perceived as 

aggravating. Id.; see also Dorsey v. Quarterman, 494 F.3d 527, 533 (5th Cir. 

2007) (“[T]he law is clear that a defendant in a capital case is not entitled to 

challenge prospective jurors for cause simply because they might view the 

evidence the defendant offers in mitigation of a death sentence as an 

aggravating rather than a mitigating factor.”). Vessels expressly stated that 

he could consider the mitigation special issue with an open mind and that he 

could answer “yes” on the issue. Thus, Vessels was not unwilling to put 

aside personal views, consider all the evidence, and follow the law; rather, he 

honestly acknowledged his suspicions concerning certain types of mitigating 

evidence.

Reasonable jurists would not debate the district court’s determination 

that the state court reasonably rejected Broadnax’s claim that the trial court 

had to disqualify juror Vessels for cause.

B. Selective Prosecution

Broadnax raises a selective prosecution claim, arguing that the State 

sought to impose the death penalty on the basis of his race. The district court 

noted, without holding, that this claim was unexhausted, but it ruled on the 

merits instead. To succeed on his selective prosecution claim, Broadnax 

must overcome the presumption that a prosecutor acts in good faith and 

within his discretion; hence a defendant’s burden is to present clear evidence 

showing that the prosecutor’s decisions had both a discriminatory effect and 

a discriminatory motive or purpose. United States v. Armstrong, 517 U.S. 456, 

465, 116 S. Ct. 1480, 1487 (2006); In re United States, 397 F.3d 274, 284 (5th 

Cir. 2005). To establish a racially discriminatory effect, a defendant must 

show that similarly situated individuals of a different race were not 

prosecuted. Armstrong, 517 U.S. at 465, 116 S. Ct. at 1486–87; In re United 

States, 397 F.3d at 284.

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The district court found that Broadnax is not “similarly situated” to 

any other offender of any race in Dallas County because of his media 

interviews. In the interviews, Broadnax confessed, described the crimes in 

graphic detail, repeatedly denied feelings of remorse, and demanded to 

receive the death penalty. What he said in the interviews “put Broadnax in 

a class by himself.”

Broadnax argues this finding is debatable in light of a statistical study 

that allegedly shows the death penalty was imposed in Dallas County more 

often against African American defendants accused of victimizing whites 

than against other offenders and victims of other races. But such statistical 

evidence alone does not establish that “the decisionmakers in his case acted 

with discriminatory purpose.” McCleskey v. Kemp, 481 U.S. 279, 292, 

107 S. Ct. 1756, 1767 (1987). Indeed, the Baldus study in McCleskey identified 

some stark statistical discrepancies. Id. at 287, 107 S. Ct. at 1764; 

Nevertheless, the Supreme Court denied relief. Further, the discretionary 

nature of the decision to seek a death sentence led the Court to caution 

against inferring discriminatory motive from statistical disparities alone. Id.

at 297, 107 S. Ct. at 1770.

Finally, Broadnax argues that the district court’s focus on Broadnax’s 

media interviews treats the “similarly situated” requirement too narrowly. 

We disagree. The prosecution relied on them extensively at trial, and the 

district court deemed their content sufficiently unusual that it declared 

Broadnax “sui generis.” The interviews graphically and voluntarily 

confessed Broadnax’s guilt, cravenness, and extreme future dangerousness. 

Moreover, Broadnax’s proffered view of “similarly situated,” by invoking 

broad generic commonalities such as racial characteristics and crimes 

charged, would render comparisons essentially meaningless. Thus, although 

in some circumstances there might be uncertainty about how to identify 

“similarly situated” offenders relevant to a selective prosecution claim, this 

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is not such a case. The district court’s conclusion that Broadnax was not 

selectively prosecuted is not reasonably debatable.

C. Uncounseled Media Interviews

Broadnax next argues that he was denied his Sixth Amendment right 

to counsel while giving the media interviews, which he contends were 

“critical stages” of his trial. The interviews, which Broadnax voluntarily 

conducted, occurred after his initial appearance before the magistrate judge 

on June 21, 2008, but before he was appointed counsel on June 24. Before 

trial, Broadnax moved to suppress the interviews. The trial court denied the 

motion. Significantly, Broadnax signed the stations’ request forms seeking 

interviews, the reporters were not employed by law enforcement, and no law 

enforcement officer had requested that they conduct the interviews.

An accused is guaranteed the right to counsel during all “critical 

stages” of his trial. Critical stages are “proceedings between an individual 

and agents of the State, whether ‘formal or informal, in court or out,’ that 

amount to ‘trial-like confrontations,’ at which counsel would help the 

accused ‘in coping with legal problems or . . . meeting his adversary.’” 

Rothgery v. Gillespie County, 554 U.S. 191, 212 n.16, 128 S. Ct. 2578, 2591 n.16 

(2008) (cleaned up) (emphasis added). “[W]hat makes a stage critical is 

what shows the need for counsel’s presence.” Id. at 212, 128 S. Ct. at 2591.

The district court concluded, pursuant to AEDPA, that the state 

courts, which examined numerous ways in which Broadnax sought to attack 

the admissibility of the interviews, did not unreasonably apply governing 

Supreme Court law nor unreasonably apply the facts to the legal standards, 

nor did they unreasonably determine the facts in light of the record. The 

court accordingly rejected his Fifth and Sixth Amendment claims.

The district court alternatively ruled against Broadnax under a de novo

standard. In so doing, the court examined whether the reporters who 

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interviewed Broadnax were acting as agents of the State. Concluding they 

were not, the district court held that Broadnax’s Sixth Amendment claims 

lacked merit. In reaching its conclusion, the district court considered this 

circuit’s two-prong test for determining whether an informant was a 

government agent: whether the informant “(1) was promised, reasonably led 

to believe, or actually received a benefit in exchange for soliciting information 

from the defendant; and (2) acted pursuant to instructions from the State, or 

otherwise submitted to the State’s control.” Creel v. Johnson, 162 F.3d 385, 

393 (5th Cir. 1998). There is no evidence in the record supporting either of 

these claims. The mere fact that reporters followed Sheriff’s Department

procedures to request interviews does not prove that they submitted to the 

State’s control or received some benefit. The district court correctly 

observed that “[t]o hold otherwise would transform every media interview 

conducted with an individual under custodial detention into a custodial 

interrogation by a de facto state agent.”

Not only does Broadnax lack evidence to support his “critical stage” 

assertion, but he cites no legal authority for the proposition that voluntary 

media interviews, conducted within days of an initial appearance, are a 

“critical stage” of a prosecution requiring the presence of defense counsel. 

The Teague principle, ensconced in AEDPA, forbids federal courts to make 

“new rules” of criminal procedure in habeas corpus review of final state 

convictions. Woods v. Donald, 575 U.S. 312, 317, 135 S. Ct. 1372, 1376–77 

(2015); Teague v. Lane, 489 U.S. 288, 299–310, 109 S. Ct. 1060, 1069–1075 

(1989).

Reasonable jurists would not debate the district court’s conclusion 

that the state courts reasonably rejected this claim.

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D. Ineffective Assistance of Appellate Counsel

Broadnax contends that his appellate counsel was ineffective for 

failing to challenge the admission of Dr. Price’s testimony on direct appeal. 

He alleges that although Dr Price, a rebuttal witness for the prosecution, did 

not render an expert diagnosis that Broadnax is a “psychopath,” his 

testimony concerning such a diagnosis was inflammatory, inadmissible and 

harmful under various provisions of Texas law. Despite this, Broadnax’s 

counsel did not raise the issue among nearly five dozen appellate issues he 

did assert. The district court acknowledged that Broadnax had not exhausted 

the claim in the state courts but rejected it on de novo review, concluding that 

the appellate counsel did not render ineffective assistance by failing to assert 

a meritless challenge to Dr. Price’s testimony. See Davila v. Davis, 137 S. Ct. 

2058, 2067 (2017) (declining to raise a claim on appeal is not deficient 

performance unless that claim was plainly stronger than those actually 

presented to the appellate court).

The district court found neither prong of the Strickland test for 

ineffective assistance of counsel satisfied. See Smith v. Robbins, 528 U.S. 259, 

285, 125 S. Ct. 746, 764 (2000) (explaining that the Strickland test inquires 

whether counsel’s conduct was objectively unreasonable under then-current 

legal standards and whether counsel’s allegedly deficient performance 

“prejudiced” the petitioner). In addition, appellate counsel is not required 

to raise every non-frivolous claim on appeal. Id. at 288, 125 S. Ct. at 765–66.

We need not review the professional quality of counsel’s appellate 

work under Strickland, because we cannot fault the district court’s 

conclusion that Broadnax failed to show that the admission of this evidence 

was harmful. On cross-examination, Dr. Price admitted “(1) psychopathy is 

not listed in the DSM-IV, (2) the closest thing to psychopathy in the DSMIV is a personality disorder, (3) people who have the traits of psychopathy 

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may not be a psychopath, and (4) some of the traits of a psychopath are 

consistent with those of an immature person.” Dr. Price admitted he was not 

making a mental health evaluation of Broadnax. When this testimony is 

viewed in light of the heinousness of the crime and Broadnax’s utter lack of 

remorse, even if its admission was erroneous under state law, the testimony 

was not prejudicial. Broadnax did not demonstrate that but for appellate 

counsel’s error, there was a reasonable likelihood that he would not have 

been sentenced to death. Strickland v. Washington, 466 U.S. 668, 687–91, 

694, 104 S. Ct. 2052, 2064–66, 2068 (1984). The district court’s rejection of 

this ineffectiveness claim is not debatable by reasonable jurists.

E. Relevant Legal Standards

Lastly, Broadnax argues that the district court failed to apply the 

correct legal standards when reviewing his claims. This contention, at its 

core, is merely an attempt to dispute the court’s reasoning and portions of 

the evidence the district court considered in its monumental opinion. These 

assertions are meritless.

First, the district court did not misapply AEDPA standards, because 

no change in the statutory standards relevant here was occasioned by Wilson 

v. Sellers, 138 S. Ct. 1188 (2018). The district court reviewed the state courts’ 

reasoning in accord with AEDPA.

Second, the district court did not fail to base its conclusion about 

Broadnax’s selective prosecution claim on an independent review of the 

evidence in the record. Even a cursory reading of the district court’s opinion 

reveals that it carefully examined the record and new statistical evidence he

raised. The district court did not consider the statistical evidence persuasive 

because Broadnax was not “similarly situated” to other defendants.

Next, Broadnax challenges the district court’s finding of fact 

concerning when the State’s spreadsheet detailing the race and sex of 

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veniremembers was created. That determination is irrelevant to the court’s 

conclusion, addressed above, that the spreadsheet was barred from 

consideration by Pinholster.

Finally, Broadnax errs in claiming the district court made its own 

finding of fact that Broadnax was not under the influence of drugs at the time 

of his media interviews and thus ignored the testimony of mental health 

experts who examined Broadnax. This is inaccurate. The district court did 

consider testimony of each of these individuals concerning Broadnax’s drug 

use, even as it observed deficiencies in their statements. The district court 

also considered Broadnax’s demeanor during the taped interviews and the 

testimony of the jail employee who accompanied Broadnax to his interviews.

V. CONCLUSION

For these reasons, we have DENIED COA in part and AFFIRM

the district court’s judgment in part.

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