United States District Court, N.D. Alabama, Southern Division
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” ...