Broadnax v. Dunn

          MEMORANDUM OPINION

          ABDUL K. KALLON, UNITED STATES DISTRICT JUDGE

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

         I. BACKGROUND

         The Alabama Court of Criminal Appeals [“ACCA”] set forth the following with regard to the offense conduct and the proceedings:

In 1997, Broadnax was convicted of four counts of capital murder for the beating deaths of his wife, Hector Jan Stamps Broadnax, and her four-year-old grandson, DeAngelo Stamps. The murders were made capital (1) because two or more persons were murdered pursuant to one scheme or course of conduct, see § 13A-5-40(a)(10), Ala. Code 1975; (2) because Broadnax had been convicted of another murder in the 20 years preceding those murders, see § 13A-5-40(a)(13), Ala. Code 1975; (3) because the murders were committed during the course of a kidnapping, see § 13A-5-40(a)(1), Ala. Code 1975; and (4) because DeAngelo Stamps was under 14 years of age at the time of his death, see § 13A-5-40(a)(15), Ala. Code 1975. The jury unanimously recommended that Broadnax be sentenced to death for his convictions, and the trial court followed the jury's recommendation and sentenced Broadnax to death. [The ACCA] affirmed Broadnax's convictions and sentence on appeal, Broadnax v. State, 825 So.2d 134 (Ala.Crim.App.2000), and the Alabama Supreme Court affirmed this Court's judgment, Ex parte Broadnax, 825 So.2d 233 (Ala. 2001). . . . The United States Supreme Court denied certiorari review on June 28, 2002. Broadnax v. Alabama, 536 U.S. 964, 122 S.Ct. 2675, 153 L.Ed.2d 847 (2002).

In this Court's opinion affirming Broadnax's convictions and sentence, we set out the facts of the crimes as follows:

“. . . In April 1996, Donald Broadnax, who had been convicted in 1978 for murder and who was serving a sentence of 99 years' imprisonment, was residing at a work release center in Alexander City and working at Welborn Forest Products in Alexander City. In 1995 Broadnax married Hector Jan Stamps Broadnax, who at the time of the marriage had a three-year-old grandson, DeAngelo Stamps. Broadnax and Jan were having marital problems and Broadnax believed that Jan was partially responsible for a recent denial of parole.^[2] The evidence indicated that after 6:00 p.m. on April 25, 1996, Jan and DeAngelo delivered food to Broadnax at his workplace. Johnny Baker, an inmate at the work release center and Broadnax's coworker at Welborn, testified that he saw Broadnax driving Jan's car at Welborn that evening. According to Baker, Broadnax stopped to talk with him and he saw a child in a child's safety seat in the backseat. Baker testified that he was ‘pretty sure' the child was alive when he talked with Broadnax.

“At approximately 10:45 p.m. that same night, Mark Chastain, a [leadman] at Welborn, found Broadnax inside a building while securing the building for the night. Chastain testified that he told Broadnax that the alarm had been set and that they had to exit the building. According to Chastain, when he asked Broadnax why he was still in the building, Broadnax stated that the work release van had dropped him off . . . .

“Kathy Chastain, Mark Chastain's wife, testified that while she was outside the building waiting for her husband to secure the building, she saw an individual matching Broadnax's description get out of a [white king-cab pickup truck] and run into the building.

“On April 25, 1996, Robert Williams and his wife were living across the street from a house in Birmingham that had in the past been used as a ‘crack-house' and for prostitution. On that evening as Williams and his wife left their house at approximately 8:20 p.m., they noticed no cars were parked at the house across the street. When they returned at approximately 8:50 p.m., they saw a white Dodge Aries automobile parked behind the house. Because of the previous illegal activities occurring at the house, Williams telephoned the police and reported the presence of the car.

“Alondo McCurdy and Donna Smith, officers for the Birmingham Police Department, responded to the call and arrived at the residence at approximately 9:00 p.m. When they approached the parked car, they noticed blood on the ground behind the car and on the bumper. Based on their observations, they immediately radioed their supervisor and the paramedics, and secured the scene. It was later determined that the car belonged to Jan Broadnax.

“When the paramedics arrived, they opened the locked trunk and found the bodies of Jan and DeAngelo in the trunk. Both Jan and DeAngelo had been beaten. According to Dr. Robert Brissie, the forensic pathologist who performed the autopsies on the victims, blunt-force trauma, which could have been caused by the use of a piece of lumber such as the one found in the trunk with the bodies, caused the deaths of Jan and DeAngelo.

“On April 27, 1996, Lawrence Hardnette, an inmate resident at the work release center in Alexander City, found a work uniform that did not belong to him stuffed under his bunk. At about the same time, James Smith, another inmate resident of the work release center, found a pair of Red Wing brand work boots under his bunk. The uniform and the boots were turned over to the supervisors and were later identified as belonging to Broadnax. Broadnax was the only one at the work center who wore Red Wing work boots; there were also identifying marks on the work uniforms indicating that the uniforms had been issued to Broadnax. When the work uniform and the boots were examined, bloodstains were found on the uniform [and the boots]. The analysis of the bloodstains [on the uniform] indicated that the deoxyribonucleic acid (‘DNA') in these bloodstains matched the DNA of Jan and DeAngelo.

“On the grounds at Welborn near a finishing products storage facility, employees found an earring that matched an earring found on the rear floorboard of Jan's car. The evidence appeared to indicate that Jan was killed at Broadnax's workplace in Alexander City, that her body was placed in the trunk of the car, and that the car was driven to Birmingham. Officer Vince Cunningham of the Birmingham Police Department testified that while conducting the investigation, he traveled from the location where the bodies were found in Birmingham to Broadnax's workplace in Alexander City [several times and determined that the drive time was no more than one and one-half hours]. [Thus, a]ccording to Cunningham, Broadnax could have easily traveled the distance between the two locations within the time frame set out by the evidence.”

825 So.2d at 150-51.

In addition to the above, the State presented evidence at trial indicating that the piece of lumber found in the trunk of the vehicle with the victims was similar to the lumber used at Welborn and that a blue cloth similar to cloth used at Welborn was also found in the trunk of the vehicle. The State also presented evidence indicating that the blood spatter on the rear of the vehicle was consistent with a beating. The State presented testimony that a few days before the murders Broadnax had told a fellow employee at Welborn that he was upset with Jan regarding the denial of his parole, which had occurred on April 15, 1996, and that he was planning to kill Jan. The State also presented testimony regarding two statements Broadnax made to the police. In his statements, Broadnax said that Jan had brought him dinner at Welborn the night of the murders and that she had left Welborn at approximately 8:20 p.m. Broadnax also said that he had been at Welborn the entire day and evening of the murders, until approximately 10:45 p.m., and that he had telephoned his brother from Welborn at approximately 9:00 p.m. However, the State introduced telephone records indicating that no telephone call had been made to Broadnax's brother's house the night of April 25, 1996. When questioned specifically about the bloody boots and the Welborn work uniform belonging to him that were found in the work-release facility, Broadnax stated that he had sold the boots to another inmate, although he could not identify that inmate, approximately a year earlier and that the uniform had been stolen about two months earlier. Broadnax also said that he had reported the theft of his uniform to the company who made and rented the uniforms to Welborn; however, the State presented testimony at trial that no report of a stolen uniform had been made to the uniform company.

Broadnax v. State, 130 So.3d 1232, 1236-39 (Ala.Crim.App.2013)(original footnotes omitted; footnotes added).

         At trial:

The State's theory of the case was that between approximately 6:30 p.m. and 10:30 p.m. the night of April 25, 1996, Broadnax brutally beat his wife, Jan, to death at Welborn; put Jan's body in the trunk of her car; drove the car with Jan's grandson, DeAngelo, in the backseat, to Birmingham to a location near Elyton Village where Broadnax had grown up and presumably had friends; brutally beat DeAngelo to death in that location; placed DeAngelo's body in the trunk of the car with Jan's body; and found someone to drive him back to Welborn, where Mark and Kathy Chastain saw Broadnax around 10:30 p.m.

The defense's theory of the case was that Broadnax had been at Welborn all day and all evening on April 25, 1996 - as Broadnax had said in his statements to police - and that the State's evidence was insufficient to prove that Broadnax had committed the murders. Although the defense called no witnesses, they vigorously cross-examined the State's witnesses and called into question the State's time line of events as well as the credibility of the State's witnesses, some of whom were inmates themselves.

Id. at 1239.

         The penalty phase of Broadnax's trial began immediately following the jury's verdict. See doc. 12, Vol. 8, Tab 20 at 299-302. The State relied on the evidence it presented during the guilt phase, and Broadnax offered the testimony of his sister, Dorothy McKinstry. See id., Tab 21 at 307; id., Tab 22 at 308. The jury unanimously recommended a sentence of death, Broadnax, 825 So.2d at 150, and the trial court followed the recommendation, see doc. 12, Vol. 1, Tab 2 at 22.

         In its sentencing order, the trial court stated it had found the four aggravating circumstances offered by the State: (1) “the capital offense was committed by a person under sentence of imprisonment pursuant to 13A-5-49(1), ” (2) “the capital offense was committed by the Defendant after he had previously been convicted of a felony involving the use . . . of violence to a person pursuant to 13A-5-49(2), ” (3) “the capital offense was committed while the Defendant was engaged in the commission of . . . [k]idnapping pursuant to 13A-5-49(4), ” and (4) “the capital felony was especially heinous, atrocious [or] cruel [HAC] pursuant to 13A-5-49([8]).” Id. at 21. The court stated it had not found a statutory mitigating circumstance pursuant to Ala. Code § 13A-5-51(1), (4), (5), and (7), id. at 22, or any non-statutory mitigating circumstances, stating, inter alia, -

No additional testimony was taken during the punishment phase of the proceedings as the attorneys for the Defendant advised the Court that the Defendant did not wish to present any evidence at the punishment phase. The Court specifically asked the Defendant if that was his wish and he said he did not wish to present any evidence at the evidentiary stage of the punishment phase. The Court then questioned the Defendant as to his request, determined that the request was knowingly made by the Defendant whereby he knowingly waive[d] his right to presentation of any evidence at the punishment phase.

Id. at 18-19. The court found “beyond a reasonable doubt and to a moral certainty that the aggravating circumstances outweigh the mitigating circumstances and [are] sufficient to uphold the jury's recommendation of punishment at death.” Id. at 22.

         On appeal, although the ACCA affirmed Broadnax's conviction and sentence, it remanded the case to the trial court to correct its sentencing order:

The trial court's sentencing order does not acknowledge that [Dorothy] McKinstry testified and does not indicate what, if any, mitigating evidence was presented through her testimony. In addition, the sentencing order does not specifically address the existence or nonexistence of each of the aggravating circumstances provided in § 13A-5-50, Ala. Code 1975; the existence or nonexistence of each of the mitigating circumstances provided in § 13A-5-51, Ala. Code 1975; or the existence or nonexistence of any nonstatutory mitigating circumstances provided in § 13A-5-52, Ala. Code 1975.

After reviewing the trial court's sentencing order and the record on appeal, we agree with the state that remand is necessary for the trial court to correct certain errors and omissions in its sentencing order. Therefore, this cause is remanded with instructions that the trial court 1) review those portions of the record concerning the penalty phase of trial, 2) make new findings regarding each of the aggravating circumstances and the mitigating circumstances, 3) weigh those aggravating and mitigating circumstances and determine whether the aggravating circumstances outweigh the mitigating circumstances, and 4) enter a proper sentencing order as required by § 13A-5-47(d), Ala. Code 1975. No new sentencing hearing is required. . . . The trial court is granted the authority to resentence Broadnax in the event the court determines that death is not the appropriate sentence. See Parker v. State, 587 So.2d 1072 (Ala. Cr. App.1991), aff'd, 610 So.2d 1181 (Ala. 1992), cert. denied, 509 U.S. 929, 113 S.Ct. 3053, 125 L.Ed.2d 737 (1993). A return should be made to this Court within 35 days from the date of this opinion.

Broadnax, 825 So.2d at 221-22 (footnote omitted).

         The trial court filed a corrected sentencing order, which found, again, all four aggravating circumstances offered by the State, and it noted:

The especially heinous, atrocious, or cruel aggravating circumstance pursuant to § 13A-5-49(8) was well established [by the evidence] which showed that the victim, Hector J. Stamps, was brutally murdered in the presence of her grandson, DeAngelo Stamps, and immediately after the murder, the victim, DeAngelo Stamps's grandmother, was stuffed into the trunk of the automobile and driven from the scene of the first murder[, ] approximately one and a half hours away[, ] to the scene of the second murder where the four-year-old grandson, DeAngelo Stamps, was brutally murdered. The manner in which the death of the grandmother was caused in the presence of the four-year-old grandson and the manner in which the death of the four-year-old grandson ensued and the terror inflicted on the mind of the four-year-old grandson raises this crime to a conscienceless and pitiless crime which was unnecessarily torturous to the victim and, therefore, fell into the category of especially heinous, atrocious, or cruel.

Id. at 230-31 (Appendix A)(original alterations deleted; alterations added). The court specifically addressed the statutory mitigating circumstances set forth in Ala. Code § 13A-5-51(1)-(7) and found none were present. Id. at 231-32. In this sentencing order, the court addressed Dorothy McKinstry's testimony, finding that any mitigating circumstance to which she may have testified “was greatly outweighed by the aggravating circumstances . . . and that even . . . if [her testimony supported a finding of] a mitigating circumstance, . . . it [was] totally outweighed by the aggravating circumstances as presented by the evidence.” Id. at 233. Thus, the court again upheld the jury's recommendation of a death sentence.

         The ACCA affirmed. Id. at 226. And, the Alabama Supreme Court granted certiorari and affirmed.^[3] The United States Supreme Court denied certiorari review. Broadnax v. Alabama, 536 U.S. 964 (2002).

         Thereafter, Broadnax filed a petition for post-conviction relief pursuant to Ala. R. Crim. P. 32. See generally doc. 12, Vol 21, Tab 52 at 192-200 to Vol. 22 at 201-293. And, as the ACCA outlined,

On September 24, 2003, the State responded to the petition. On September 26, 2003, the circuit court summarily dismissed several of the claims in Broadnax's petition and ordered Broadnax to amend several other claims to comply with the pleading requirements in Rule 32.3 and Rule 32.6(b). After obtaining multiple extensions, Broadnax filed his first amended petition on January 16, 2004, in which he incorporated all the claims from his original petition and expanded on some of those claims. On March 8, 2004, and March 10, 2004, respectively, the State responded to the first amended petition. On March 23, 2004, the circuit court summarily dismissed several of the claims in Broadnax's petition and scheduled an evidentiary hearing on the remaining claims.

On April 8, 2005, Broadnax filed a motion for leave to amend his petition, a motion for funds for a psychological evaluation and a sociological report, and a motion for discovery. On April 15, 2005, the State filed oppositions to all of Broadnax's motions, and the circuit court held a hearing on the motions the same day, after which it denied the motions. The circuit court held an evidentiary hearing on the remaining claims in Broadnax's first amended petition on May 23, 2005. On June 14, 2005, the circuit court issued an order denying the remaining claims in the first amended petition, and Broadnax appealed.

On appeal, [the ACCA] reversed the circuit court's judgment and remanded the case for further proceedings on the ground that the circuit court had erred in denying Broadnax's April 8, 2005, motion to amend his petition. Broadnax v. State, 987 So.2d 631 (Ala.Crim.App.2007). The Alabama Supreme Court denied the State's petition for certiorari review, and [the ACCA] issued a certificate of judgment on December 21, 2007.

Broadnax, 130 So.3d at 1239-40.

         Broadnax filed a second amended Rule 32 petition in May 2008. After an evidentiary hearing in 2011, the circuit court denied the petition, see generally doc. 12, Vol. 32, Tab 76, at 54-87, and Broadnax appealed. The ACCA affirmed, Broadnax, 130 So.3d at 1268, and the Alabama Supreme Court denied certiorari review, see id. at 1232. Broadnax timely filed the instant § 2254 habeas petition. Doc. 1.

         II. STANDARD OF REVIEW

         As to any claim “adjudicated on the merits in State court proceedings, ” this court may not grant the § 2254 habeas petition -

“. . . unless the adjudication of the claim -

“(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

“(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” [42 U.S.C. § 2254(d).]

In applying this “highly deferential standard for evaluating state-court rulings, . . . state-court decisions [must] be given the benefit of the doubt.” [Cullen v.] Pinholster, 563 U.S. [170, 181], 131 S.Ct. [1388], at 1398 [(2011)](internal quotation marks omitted). They must be reviewed solely on “the record that was before the state court that adjudicated the claim on the merits.” Id., at [181] . . . . And the prisoner must rebut any state court factual findings he seeks to challenge by clear and convincing evidence under § 2254(e)(1). Burt v. Titlow, 571 U.S. [12, 18], 134 S.Ct. 10, 15, 187 L.Ed.2d 348 (2013).

Brumfield v. Cain, 135 S.Ct. 2269, 2288-89 (2015). The “backward-looking language” of § 2254(d) “requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time i.e., the record before the state court.” Cullen, 563 U.S. at 182. Also, “[s]tate court decisions are measured against [the Supreme] Court's precedents as of ‘the time the state court renders its decision.'” Id. (quoting Lockyer v. Andrade, 588 U.S. 63, 71-72 (2003)). “Deciding whether a state court's decision involved an unreasonable application of federal law[, § 2254(d)(1), ] or was based on an unreasonable determination of fact[, § 2254(d)(2), ] requires the federal habeas court to train its attention on the particular reasons - both legal and factual - why state courts rejected a state prisoner's federal claims, and to give appropriate deference to that decision.” Wilson v. Sellers, 138 S.Ct. 1188, 1191-92 (2018)(internal quotations and citations omitted).

         Section 2254(d) “preserves [this court's] authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the] Court's precedents. It goes no further.” Harrington v. Richter, 562 U.S. 86, 102 (2011)(emphasis in original). “As a condition for obtaining habeas corpus from [this] court, [Broadnax] must show that the state court's ruling on [his] claim . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103. “[T]he ruling must be objectively unreasonable, not merely wrong; even clear error will not suffice.” Virginia v. LeBlanc, 137 S.Ct. 1726, 1728 (2017)(quoting Woods v. Donald, 135 S.Ct. 1372, 1376 (2015)(per curiam))(internal quotations omitted). In other words, “if some fairminded jurists could agree with the state court's decision, although others might disagree, federal habeas relief must be denied.” Loggins v. Thomas, 654 F.3d 1204, 1220 (11th Cir. 2011)(emphasis in original). Nevertheless, “‘[e]ven in the context of federal habeas, deference does not imply abandonment or abdication of judicial review,' and ‘does not by definition preclude relief.'” Brumfield, 135 S.Ct. at 2277 (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).

         “When the evidence leads very clearly to the conclusion that a federal claim was inadvertently overlooked in state court, § 2254(d) entitles the prisoner to an unencumbered opportunity to make his case before a federal judge.” Johnson v. Williams, 568 U.S. 289, 303 (2013). However,

When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary. That presumption stands unless rebutted by evidence from the state court's decision and the record that leads very clearly to the conclusion that the federal claim was inadvertently overlooked in state court.

Pittman v. Sec'y, Fla. Dep't of Corr., 871 F.3d 1231, 1245 (11th Cir. 2017)(internal citations and quotations omitted).

         The court need not determine in every instance whether AEDPA deference applies:

Courts cannot grant writs of habeas corpus under § 2254 by engaging only in de novo review when it is unclear whether AEDPA deference applies, § 2254(d). In those situations, courts must resolve whether AEDPA deference applies, because if it does, a habeas petitioner may not be entitled to a writ of habeas corpus under § 2254(d). Courts can, however, deny writs of habeas corpus under § 2254 by engaging in de novo review when it is unclear whether AEDPA deference applies, because a habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review, see § 2254(a).

Berghuis v. Thompkins, 560 U.S. 370, 390 (2010).

         III. DISCUSSION OF BROADNAX'S CLAIMS

         Broadnax raises claims related to ineffective assistance of counsel (section A below), alleged improper instructions to the jury (sections B and C), alleged errors in the sentencing order (Section D), and alleged prosecutorial misconduct (Section E). The court addresses these claims below.

         A. INEFFECTIVE ASSISTANCE OF COUNSEL

         1. Standard of Review

         The “benchmark” for judging any claim that trial counsel provided ineffective assistance is “whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984). Strickland established a two-pronged standard for judging, under the Sixth Amendment, the effectiveness of an attorney's representation at trial:

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687.^[4] The two parts are conjunctive, and a petitioner bears the burden of proving both “deficient performance” and “prejudice” by “a preponderance of competent evidence.” Chandler v. United States, 218 F.3d 1305, 1313 (11th Cir. 2000)(en banc). “Unless he establishes both requirements, ‘it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.'” Wilson v. Warden, Georgia Diagnostic Prison, 898 F.3d 1314, 1322 (11th Cir. 2018)(quoting Strickland, 466 U.S. at 687). However, this court need not address both components; “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.” Id. (quoting Strickland, 466 U.S. at 697). Stated another way, “[b]ecause both parts of the test must be satisfied in order to show a violation of the Sixth Amendment, the court need not address the performance prong if the defendant cannot meet the prejudice prong, or vice versa.” Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000).

         a. The Performance Prong

         “The burden of persuasion is on the petitioner to prove by a preponderance of the evidence that counsel's performance was unreasonable.” Stewart v. Secretary, Department of Corrections, 476 F.3d 1193, 1209 (11th Cir. 2007)(citing Chandler, 218 F.3d at 1313). To satisfy the performance prong, a petitioner must prove that counsel made errors so serious that he or she was not functioning as the counsel guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. The standard for gauging attorney performance is “reasonableness under prevailing professional norms.” Id. at 688.^[5] “The test of reasonableness is not whether counsel could have done something more or different, ” but whether counsel's performance “fell within the broad range of reasonable assistance at trial.” Stewart, 476 F.3d at 1209 (citing Chandler, 218 F.3d at 1313). “Furthermore, [the court] must recognize that omissions are inevitable. But, the issue is not what is possible or what is prudent or appropriate, but only what is constitutionally compelled.” Id. (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987))(internal quotations omitted). The Sixth Amendment does not guarantee a defendant the very best counsel or the most skilled attorney, but only counsel that performs within reasonable professional norms. “The test has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. [The court] ask[s] only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial.” White v. Singletary, 972 F.2d 1218, 1220 (11th Cir. 1992).

         The reasonableness of counsel's performance is judged from the perspective of the attorney at the time of the alleged error and in light of all the circumstances.^[6]And, “[u]nder this standard, there are no ‘absolute rules' dictating what reasonable performance is or what line of defense must be asserted. . . . Indeed, . . . [a]bsolute rules would interfere with counsel's independence - which is also constitutionally protected - and would restrict the wide latitude counsel have in making tactical decisions.” Michael v. Crosby, 430 F.3d 1310, 1320 (11th Cir. 2005)(citations and quotations omitted). Put simply, “[j]udicial scrutiny of counsel's performance must be highly deferential, ” Strickland, 466 U.S. at 689, and courts must recognize that “trial advocacy is not a science, but an art; there are few ‘right' answers in the proper way to handle a trial, ” Harvey v. Warden, Union Corr. Inst., 629 F.3d 1228, 1238 (11th Cir. 2011)(quoting Strickland, 466 U.S. at 693 (“Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another.”)). Therefore, this court “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. After all,

It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.

Id. (citations and internal quotation marks omitted).

         “Based on this strong presumption of competent assistance, the petitioner's burden of persuasion is a heavy one: ‘petitioner must establish that no competent counsel would have taken the action that his counsel did take.'” Stewart, 476 F.3d at 1209 (quoting Chandler, 218 F.3d at 1315). “Even if many reasonable lawyers would not have done as defense counsel did at trial, no relief can be granted on ineffectiveness grounds unless it is shown that no reasonable lawyer, in the circumstances, would have done so.” Rogers, 13 F.3d at 386 (emphasis added).

         b. The Prejudice Prong

         “A petitioner's burden of establishing that his lawyer's deficient performance prejudiced his case is also high.” Van Poyck v. Florida Department of Corrections, 290 F.3d 1318, 1322 (11th Cir. 2002). “It is not enough for the [habeas petitioner] to show that the errors had some conceivable effect on the outcome of the proceeding.” Strickland, 466 U.S. at 693; see also Harrington, 562 U.S. at 112 (“The likelihood of a different result must be substantial, not just conceivable.”). Instead, the habeas petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. In the context of the death sentence itself, “the question is whether there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Stewart, 476 F.3d at 1209 (quoting Strickland, 466 U.S. at 695).

         To satisfy this high standard, a petitioner must present competent evidence proving “that trial counsel's deficient performance deprived him of ‘a trial whose result is reliable.'” Brown v. Jones, 255 F.3d 1272, 1278 (11th Cir. 2001)(quoting Strickland, 466 U.S. at 687). In other words, “[a] finding of prejudice requires proof of unprofessional errors so egregious that the trial was rendered unfair and the verdict rendered suspect.” Johnson v. Alabama, 256 F.3d 1156, 1177 (11th Cir. 2001) (quotations and citations omitted).

         c. Deference Accorded State Court's Decisions

         Deference to a state court resolution of a claim of ineffective assistance involves a double layer of reasonableness. Under the AEDPA, the federal habeas court may grant relief on such a claim only if the state court determination involved an “unreasonable application” of Strickland to the facts of the case. Strickland, of course, requires an assessment of whether counsel's conduct was professionally unreasonable or did not result in actual prejudice. These two assessments cannot be conflated into one. See Harrington, 562 U.S. at 101-02. Thus, habeas relief on a claim of ineffective assistance of counsel can be granted with respect to a claim decided on the merits by the state court only if the habeas court determines that it was “objectively unreasonable” for the state court to find that counsel's conduct was not “professionally unreasonable” or did not result in actual prejudice. The Harrington Court explained,

“Surmounting Strickland's high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. [356], [371], 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284 (2010). An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest “intrusive post-trial inquiry” threaten the integrity of the very adversary process the right to counsel is meant to serve. Strickland, 466 U.S., at 689-690, 104 S.Ct. 2052. Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is “all too tempting” to “second-guess counsel's assistance after conviction or adverse sentence.” Id., at 689, 104 S.Ct. 2052; see also Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). The question is whether an attorney's representation amounted to incompetence under “prevailing professional norms, ” not whether it deviated from best practices or most common custom. Strickland, 466 U.S., at 690, 104 S.Ct. 2052.

Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both “highly deferential, ” id., at 689, 104 S.Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review is “doubly” so, Knowles [v. Mirzayance], 556 U.S.[111, 123], 129 S.Ct. [1411], 1420 [(2009)]. The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S., at [123], 129 S.Ct. at 1420. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.

Harrington, 562 U.S. at 105. See also Premo v. Moore, 562 U.S. 115, 123 (2011).

         When the state court has adjudicated a petitioner's ineffectiveness claims on the merits, the findings of historical facts made in the course of evaluating that claim are subject to a presumption of correctness under 28 U.S.C. § 2254(d)(2) and (e)(1). See Thompson v. Haley, 255 F.3d 1292, 1297 (11th Cir. 2001). To overcome the state court's finding of fact, the petitioner must show that those findings were unreasonable in light of the evidence before it and carry his burden of proving the facts by clear and convincing evidence.

         With these principles in mind, the court turns to Broadnax's claims based on alleged ineffective assistance of counsel.

         2. Alleged Failure to Investigate Broadnax's Alibi (Claim A)

         Broadnax alleges that his trial counsel failed to properly search for alibi evidence because, if they had, they would have discovered that he was at the work release center [WRC] in Alexander City, Alabama, at the time the State claimed he was returning from Birmingham. See doc. 1 at 40-59. Consistent with his claim before this court, Broadnax argued to the ACCA that trial counsel “were ineffective for not adequately investigating and presenting at the guilt phase of the trial an alibi defense that he was at the [WRC] at 9:00 p.m. on the night of the murders” - “a time which would have made it impossible for him to have committed the murders and dumped the bodies in Birmingham, a one and one-half hour drive from Alexander City, between 8:20 p.m. and 8:55 p.m., as the State's evidence at trial indicated.” Broadnax, 130 So.3d at 1249 (internal quotations omitted). The ACCA rejected this claim, noting that:

This claim is based on an alibi defense that directly contradicts the alibi defense presented at Broadnax's trial. In his statements to police, in his statements to his trial attorneys . . ., and at trial, Broadnax claimed that he was at Welborn, not at the [WRC], until about 10:45 p.m. the night of the murders. Indeed, from all that appears, Broadnax continued claiming to have been at Welborn that night for many years after his convictions and sentence. Even in both his original petition, filed in 2003, and his first amended petition, filed in 2004, Broadnax continued in his assertion that he was at Welborn the night of the murders. It was not until 2008, 12 years after the crime, and after this Court had reversed the judgment denying his first amended petition and Broadnax had obtained new Rule 32 counsel to represent him, that Broadnax suddenly changed his story regarding his whereabouts the night of the murders and asserted that he was not at Welborn, as he had alleged for 12 years, but was at the [WRC] at 9:00 p.m. the night of the murders. Although we review this claim under the same principles of law as any other ineffective-assistance-of-counsel claim, we do so with caution, keeping in mind that it is based entirely on a newfound defense.

Id.

         Broadnax contends that his “lack of clarity about facts relevant to establishing his alibi is unsurprising because we know now, based on Dr. Ken Benedict's expert mental health evaluation, that he is cognitively impaired.” Doc. 1 at 48 n.127. He argues, “Dr. Benedict concluded, based on testing, that Mr. Broadnax has either learning disabilities or acquired traumatic brain damage (possibly both), which he characterized as ‘serious neuropsychological deficits.'” Id. But, Dr. Benedict's diagnoses and opinion do not explain why Broadnax would provide inconsistent statements that he was at Welborn until 10:45p.m. on the night of the murders when he purportedly was actually at the WRC at 9:00 p.m. In addition to evidence at trial showing that Broadnax told Det. Cunningham and his counsel that he was at Welborn at 9:00 p.m. on the night of the murders, see Broadnax, 130 So.3d at 1253, 1257, Mark Chastain testified he saw Broadnax at Welborn between 10:30 and 10:45 p.m., see Broadnax, 825 So.2d at 150, and Kathy Chastain testified that she saw someone matching Broadnax's description during the same time period, id. In other words, the weight of the evidence belies Broadnax's new contentions about his whereabouts. More importantly, Dr. Benedict diagnosed Broadnax with “a cognitive disorder, not otherwise specified, a receptive-expressive language disorder, a reading disorder, and a disorder of written expression;” he also testified that Broadnax “met only part of the criteria for a learning disorder and a cognitive disorder.” Broadnax, 130 So.3d at 1267 (internal quotations and citations omitted). Critically, Dr. Benedict never stated that Broadnax cannot accurately remember actual events, ^[7] nor did he testify or offer any evidence that, because of his mental condition, Broadnax could not give an accurate account of his whereabouts on the night of the murders.

         Relevant to the court's inquiry, although Broadnax presented evidence at the 2011 Rule 32 hearing that he was at the WRC by 9:00 p.m. on the night of murders, he did not present any evidence that his trial attorneys had this information or that they had any reason to suspect that he was at the WRC, rather than at Welborn as he had told them and as witnesses at trial had confirmed. In rejecting Broadnax's contention, the ACCA held that Broadnax is essentially attacking his lawyers for information he never provided them, and that consequently counsel did not perform deficiently.^[8] And, the court also rejected the claim because Broadnax never questioned his lawyers about their reasons for not investigating this purported alibi.^[9]Broadnax, 130 So.3d at 1256 and n.21.

         To succeed on his claim, Broadnax must show that no reasonable lawyer, in light of information “already in hand” at the time of trial, see Strickland, 466 U.S. at 699, would have neglected to investigate whether Broadnax was at the WRC on the night of the murders. See Wiggins v. Smith, 539 U.S. 510, 527 (2003)(“In assessing the reasonableness of an attorney's investigation, however, a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.”). Broadnax has failed to make this showing. In particular, Broadnax has not shown that counsel knew or had reason to suspect that Broadnax was at the WRC at the time of the murders.

         “[T]he duty to investigate does not force defense lawyers to scour the globe on the off chance something will turn up; reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste.” Rompilla v. Beard, 545 U.S. 374, 383 (2005). Therefore, “[i]n assessing the reasonableness of an attorney's investigation, . . . a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.” Wiggins v. Smith, 539 U.S. at 527. This “known evidence” includes defendant's statements and actions, and, indeed, “[t]he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions.” Strickland, 466 U.S. at 691. As Strickland notes:

Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable. In short, inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions, just as it may be critical to a proper assessment of counsel's other litigation decisions.

Id.

         Here, Broadnax relies on new evidence that was not available to his lawyers - i.e. that he was at the WRC on the night of the murders. But this new evidence “merely conflates the existence of a contrary picture of [his whereabouts on the night of the murders] developed ex post on collateral review with [trial counsel's] therefore-inadequate ex ante actions.” Tharpe v. Warden, 834 F.3d 1323, 1342 (11th Cir. 2016). In other words, the fact that Broadnax, years after his trial, was able to present evidence that he was at the WRC at 9:00 p.m. on the night of the murders, and not at Welborn as he had maintained consistently until his second amended Rule 32 petition, does not answer the question of what trial counsel knew, or should have known, at the time of the trial that made their decision not to investigate further his whereabouts unreasonable.

         A review of the record shows that Broadnax told trial counsel, as well as Det. Cunningham, that he was at Welborn on the night of the murders - when his murdered wife brought him dinner, when she left at 8:20 p.m., and when he called his brother at 9:00 p.m. Broadnax, 130 So.3d at 1257. Moreover, Johnny Baker testified he saw Broadnax driving away from Welborn, Kathy Chastain testified she saw an individual matching Broadnax's description run into Welborn at 10:30 p.m., and Mark Chastain testified that he found Broadnax inside Welborn at 10:45 p.m. And, Broadnax has not cited any record evidence that would overcome the ACCA's finding that he told counsel and Det. Cunningham that he was at Wellborn at 8:20 p.m. and 9:00 p.m. on the night of the murders. Nor has the court found anything in the record to support a finding that trial counsel knew, or had any reason to suspect, that Broadnax was instead at WRC at 9:00 p.m. or that further investigation would have likely led to evidence supporting a valid alibi. And, as noted by the ACCA, Broadnax did not question his trial counsel about their investigation of his alibi after he asserted, in his second amended Rule 32 petition, that he was at the WRC at 9:00 p.m. on the night of the murders. In short, there is nothing in the record to show that trial counsel had notice of the alleged alibi or had reason to suspect its existence.

         Based on this record, “trial counsel cannot reasonably be faulted for failing to discover information which was within [Broadnax's] personal knowledge . . . but which [he] failed to disclose to his trial counsel.” Dallas v. Dunn, No. 2:02-CV-777-WKW, 2017 WL 3015690, at *65 (M.D. Ala. July 14, 2017). Moreover, counsel's performance was not deficient because they failed to investigate Broadnax's whereabouts at 9:00 p.m. on the night of the murders on the “off-chance” they would find that he was in fact not at Welborn as he had represented to counsel. Indeed, prior to the second amended Rule 32 petition, the record contains nothing that suggests or hints that Broadnax returned to the WRC at 9:00 p.m. Accordingly, Broadnax has not proven that the ACCA's decision regarding counsel's investigation of his alibi defense was based on an unreasonable determination of the facts in light of the evidence presented or was contrary to or an unreasonable application of Strickland. This court finds that most, if not all, fairminded jurists would agree with the ACCA's decision, and therefore does not reach the court's decision that Broadnax was not prejudiced by his trial counsel's deficient investigation of his alibi, and whether this was an unreasonable application of clearly established federal law or an unreasonable factual determination. See Holladay, 209 F.3d at 1248.

         3. Alleged Failure to Obtain a Psychological Evaluation for Use During the Penalty Phase (Claim B)

         Broadnax alleges also that the ACCA's decision, that trial counsel were not ineffective for “failing to obtain a psychological evaluation of him to use at the mitigation phase of his trial, ” is an unreasonable application of Strickland and an unreasonable determination of the facts. Doc. 1 at 59-60. He argues, “[t]he [ACCA's] conclusion that mental health evidence would not have altered the balance of aggravating and mitigating evidence is legally unsupportable because it implies that no amount of mitigation would have led a jury to spare Mr. Broadnax's life, ” and “[f]undamental to the Supreme Court's death penalty jurisprudence is the notion that there is no defendant and no crime for which a death sentence can be automatic.” Id. at 68 (citing Woodson v. North Carolina, 428 U.S. 280, 303 (1976))(footnote omitted).

         The ACCA denied this claim, agreeing with the trial court that counsel's performance was not deficient. See Broadnax, 130 So.2d at 1266-68. It also found that, even considering the results of post-conviction psychological testing, counsel's failure to have Broadnax evaluated did not result in prejudice because the aggravating circumstances clearly outweighed any and all mitigating circumstances offered at trial and in the Rule 32 proceedings. Id. at 1267. As explained below, the state court's decision, which is based on a reasonable interpretation of the facts, is neither contrary to nor an unreasonable application of Supreme Court precedent.

         a. The Performance Prong

         To support his claim that trial counsel performed deficiently, Broadnax contends that counsel made the decision to forego a psychological evaluation without conducting a reasonable investigation into his background. Allegedly, counsels' “decision to forego a psychological defense . . . cannot be justified by counsels' personal observations of Mr. Broadnax, ” based on the post-conviction findings of Dr. Benedict. Doc. 1 at 62-63. He argues:

The [ACCA] found that counsel were reasonable in failing to get a mental health examination because “counsel indicated that Broadnax was intelligent, well-spoken, and very cooperative.” In fact, one of his attorneys described him as a “bright guy.” These observations from untrained lay persons are ludicrous in light of the facts adduced by a thorough evaluation from a trained psychologist. Neither of these conclusions is reasonable based on the evidence that was before the state court.

Id. at 60 (footnotes omitted). As Broadnax puts it, a reasonable investigation into his background would have found that he was abused as a child, sexually assaulted by a neighbor, suffered brain damage from a closed-head injury, and had attempted suicide - facts which would have signaled the need for a psychological evaluation. See id. at 60-61; doc. 19 at 29-30.

         In determining that trial counsel's performance was not deficient, the ACCA found:

[A]t the 2005 [Rule 32] hearing, both Brower and Bender testified. With respect to mitigation, Brower said that he spoke with Broadnax as well as several members of Broadnax's family, although he could not remember exactly whom he had spoken to, and that he had also personally “met with a number of family members” regarding mitigation. ([Doc. 12, Vol. 26 at] R. 111.) According to Brower, Broadnax provided no names of people who could possibly offer mitigation evidence, other than family members, and he received more information regarding Broadnax's history from Broadnax's eldest sister, Dorothy McKinstry, than from Broadnax himself. Brower stated that there was “not a lot of mitigation evidence present.” ([Id. at] R. 142.)

Brower testified that he did not seek a psychological evaluation of Broadnax because he did not believe, based on his interactions with Broadnax, that such an evaluation was necessary. Specifically, Brower said that “Mr. Broadnax did not strike me as being someone who needed a psychological evaluation at the time. And it's always been my practice not to file motions such as a psychological evaluation unless I can support them with some articulable reason.” ([Id. at] R. 109.) Brower said that he had no reason to believe that a psychological evaluation would have been helpful, especially given that he truly believed that Broadnax was innocent. Brower also said that, even after the jury returned a guilty verdict after the guilt phase of the trial (which, he said, was a shock to him) he “still didn't think that a psychological evaluation of Mr. Broadnax was warranted.” ([Id. at] R. 113.)

Bender testified that he did “quite a bit” of mitigation investigation, but could find little mitigating evidence. ([Id., Vol. 25 at] R. 38.) As a result, only Broadnax's sister, Dorothy [McKinstry], was called to testify as a mitigation witness. Bender stated that he prepared Dorothy for her testimony and that he and Brower “discussed her testimony with her before she went on the . . . stand in the mitigation phase.” ([Id., Vol. 26 at] R. 135.)

Bender said that he went to Welborn and personally spoke “to those individuals down there, ” but that all he discovered was that Broadnax was “just the average guy working in their facility” and that there was “nothing different or special about him.” ([Id. at] R. 67.) Bender also testified that he spoke with Broadnax's family members, including Broadnax's two sisters, brother-in-law, and mother, “quite often” about mitigation. ([Id., Vol. 25 at] R. 39.) Bender also personally went to Elyton Village, where Broadnax had grown up, and spoke with as many people as he could as part of the mitigation investigation, but the people there simply “couldn't remember” [Broadnax] because [he] had been in prison, and away from Elyton Village, for almost 20 years. ([Id. at] R. 40.) Indeed, Bender said that the only person he found who actually remembered Broadnax from Elyton Village was Vince Cunningham, the Birmingham police detective who investigated the murders of Jan and DeAngelo and who testified for the State at Broadnax's trial.

Bender also testified that he explained to Broadnax the purpose of mitigation, explained the type of evidence that could be presented as mitigation, and gave Broadnax “ideas about what I was looking for as far as mitigation.” ([Id. at] R. 33.) Indeed, he said “that's what most of those visits were about.” ([Id., Vol. 26 at] R. 91.) Bender said that Broadnax clearly understood the concept of mitigation because “[h]e's a bright guy, ” but was unable to provide Bender with any possible mitigating evidence. ([Id.]) In fact, Bender said that even though Broadnax's “parents [sic] and family told me that he was abused as a child, ” Broadnax denied any such abuse, claiming that he had gotten into trouble a lot and “was just sort of a tough kid, ” so the family “had to sort of be tough on him.”^[10] ([Id. at] R. 92.) In addition, according to Bender, Broadnax's family said that when he was growing up Broadax was “normal for the area” and that only after his father died did Broadnax “sort of g[et] out of control” by getting involved in criminal activity and eventually committing murder and going to prison. ([Id., Vol. 25 at] R. 36.) Bender said that he spoke with both Broadnax and his family members about this time in Broadnax's life, before he went to prison, and even specifically asked Broadnax's mother about any “health issues that he may have had[, ]” ([Id., Vol. 26 at] R. 50)[, ] but that neither “[h]e nor his family members ever told me anything about any kind of medical history that he's had, any issues with drugs. They never told me about him being hit by a car . . . . [T]his [the 2005 Rule 32 hearing] is the first I'm hearing it.” ([Id., Vol. 25 at] R. 36.) Bender also testified that a suicide attempt in Broadnax's past would “certainly” ...