Opposition Brief — James Garfield Broadnax, Petitioner v. Texas
Supreme Court briefApr 27, 2026
Ask Donna
What actually matters in this document.
Text
No. 25-1198 & 25A1158
IN THE
Supreme Court of the United States
__________________________
JAMES GARFIELD BROADNAX,
Petitioner,
v.
TEXAS,
Respondent.
_________________________
On Petition for Writ of Certiorari to the
Court of Criminal Appeals of Texas
___________________________
RESPONDENT’S BRIEF IN OPPOSITION
___________________________
KEN PAXTON
Attorney General of Texas
BRENT WEBSTER
First Assistant Attorney
General
JOSH RENO
Deputy Attorney
General for Criminal
Justice
TOMEE M. HEINING
Chief, Criminal Appeals
Division
STEPHEN HOFFMAN
Deputy Chief, Criminal
Appeals Division
Counsel of Record
OFFICE OF THE ATTORNEY
GENERAL OF TEXAS
P.O. Box 12548
Austin, Texas 78711
Counsel for Respondent
i
CAPITAL CASE
QUESTIONS PRESENTED
James Broadnax was convicted and sentenced to
death for killing two men during a robbery. After the
trial court set Broadnax’s execution date and just six
weeks before his execution, Broadnax belatedly filed a
subsequent state habeas application. The Texas Court of
Criminal Appeals (CCA) dismissed Broadnax’s
application as an abuse of the writ without considering
the merits of his claims. Broadnax’s petition for a writ of
certiorari and application for a stay of execution now
present the following questions for review:
1. Whether the state court’s disposition, which relied
upon an adequate and independent state procedural
ground, forecloses certiorari review and a stay of
execution?
2. Whether the Court should review Broadnax’s
jurisdictionally-barred claim that a new jury must
evaluate whether he has the requisite culpability for
the death penalty in light of highly questionable new
evidence from his accomplice when Broadnax never
objected to the lack of appropriate parties and antiparties instructions at trial despite knowing about
his purportedly new facts, when his claim is barred
by the invited error doctrine and nonretroactivity
principles, and when Broadnax consistently,
repeatedly, and profanely admitted in media
interviews to being the triggerman?
ii
3. Whether the Court should expend its limited
resources reviewing Broadnax’s latest rehashing of
his jurisdictionally-barred and meritless Batson 1
claim after numerous previous iterations have been
rejected by the state and federal courts?
1
Batson v. Kentucky, 476 U.S. 79 (1986).
iii
PARTIES TO THE PROCEEDING
The Petitioner is James Garfield Broadnax. The
Respondent is the State of Texas. Because no party is a
corporation, a corporate disclosure statement is not
required under Supreme Court Rule 29.6.
iv
LIST OF PROCEEDINGS
State v. Broadnax, No. F08-24667-Y (Crim. Dist. Ct. No.
7 Dallas Cty., Tex., Aug. 21, 2009) (capital murder
conviction and death sentence)
Broadnax v. State, No. AP-76,207 (Tex. Crim. App. Dec.
14, 2011) (affirming conviction and sentence on direct
appeal)
Ex parte Broadnax, No. WR-81,573-01 (Tex. Crim. App.
May 20, 2015) (denying initial state habeas application)
Ex parte Broadnax, No. WR-81,573-02 (Tex. Crim. App.
Jun. 7, 2023) (dismissing subsequent state habeas
application)
Ex parte Broadnax, No. WR-81,573-03 (Tex. Crim. App.
Nov. 6, 2025) (dismissing subsequent state habeas
application)
Ex parte Broadnax, No. WR-81,573-04 (Tex. Crim. App.
Apr. 7, 2026) (dismissing subsequent state habeas
application)
Broadnax v. Davis, No. 3:15-CV-1758-N (N.D. Tex. July
23, 2019) (denying federal habeas relief)
Broadnax v. Lumpkin, No. 19-70014 (5th Cir. July 24,
2020) (granting in part and denying in part a certificate
of appealability)
v
Broadnax v. Lumpkin, No. 19-70014 (5th Cir. Feb. 8,
2021) (affirming federal district court’s denial of habeas
relief)
Broadnax v. Tex., No. 11-9294 (Oct. 1, 2012) (denying
certiorari off direct review)
Broadnax v. Tex., No. 14-9964 (Oct. 5, 2015) (denying
certiorari off initial state habeas review)
Broadnax v. Lumpkin, No. 21-267 (Jan. 18, 2022)
(denying certiorari off federal habeas review)
Broadnax v. Tex., No. 23-248 (June 24, 2024) (denying
certiorari review of dismissal of subsequent state habeas
application)
Broadnax v. Tex., Nos. 25-938 & 25A899 (denying
certiorari review of denial of suggestion for
reconsideration of dismissal of subsequent state habeas
application)
Broadnax v. Tex., Nos. 25-939 & 25A900 (denying
certiorari review of dismissal of subsequent state habeas
application)
vi
TABLE OF CONTENTS
QUESTIONS PRESENTED ........................................ i
PARTIES TO THE PROCEEDING..........................iii
LIST OF PROCEEDINGS ......................................... iv
TABLE OF CONTENTS ............................................. vi
TABLE OF AUTHORITIES ................................... viii
INTRODUCTION ......................................................... 1
STATEMENT OF THE CASE .................................... 5
I.
Guilt-innocence Evidence ............................ 5
II. Punishment Evidence ................................... 7
III. Course of Proceedings .................................. 8
REASONS FOR DENYING THE WRIT ................. 11
I.
The Petition Does Not Warrant This
Court’s Review.............................................. 11
II. Certiorari Review and a Stay of Execution
Are Foreclosed by an Independent and
Adequate State-Procedural Bar. .............. 13
III. Broadnax’s Tison Claim Is Meritless. ...... 21
IV. Broadnax’s Batson Claim Is Meritless. ... 29
V. Broadnax Is Not Entitled to a Stay. ......... 33
A. Broadnax has not made a strong
showing that he will succeed on the
merits. ...................................................... 34
B. Broadnax is unlikely to suffer
irreparable harm. .................................. 35
vii
C. The State and the public have a strong
interest in seeing the state court
judgment carried out. ........................... 36
CONCLUSION............................................................ 37
viii
TABLE OF AUTHORITIES
Cases
Aguilar v. Dretke, 428 F.3d 526 (5th Cir. 2005) ...........13
Balentine v. Thaler, 626 F.3d 842 (5th Cir. 2010) .......15
Barefoot v. Estelle, 463 U.S. 880 (1983)..................33, 35
Barr v. Lee, 591 U.S. 979 (2020) .....................................4
Barrientes v. Johnson, 221 F.3d 741 (5th Cir.
2000) ....................................................................15
Batson v. Kentucky, 476 U.S. 79 (1986)......................... ii
Beard v. Kindler, 558 U.S. 53 (2009) ......................14, 15
Bouie v. City of Columbia, 378 U.S. 347 (1964) ...........21
Broadnax v. Davis, 813 F. App’x 166 (5th Cir.
2020) ......................................................................9
Broadnax v. Davis, No. 3:15-CV-1758-N, 2019 WL
3302840 (N.D. Tex. July 23, 2019)7, 9, 25, 28, 30,
32
Broadnax v. Lumpkin, 142 S. Ct. 859 (2022) .................9
Broadnax v. Lumpkin, 987 F.3d 400 (5th Cir.
2021) .................................... 1, 9, 12, 30, 31, 32, 33
Broadnax v. State, No. AP-76,207, 2011 WL
6225399 (Tex. Crim. App. Dec. 14, 2011) ..7, 8, 30
Broadnax v. Tex., 144 S. Ct. 2700 (2024) .................9, 29
Broadnax v. Tex., 568 U.S. 828 (2012)… ........................8
Broadnax v. Tex., 577 U.S. 842 (2015) ...........................9
Bucklew v. Precythe, 587 U.S. 119 (2019).................4, 36
ix
Busby v. Davis, 925 F.3d 699 (5th Cir. 2019) ...............18
Buxton v. Collins, 925 F.2d 816 (5th Cir. 1991) ...........34
Cabana v. Bullock, 474 U.S. 376 (1986) .................22, 23
Calderon v. Thompson, 523 U.S. 538 (1998) ................34
Coleman v. Thompson, 501 U.S. 722 (1991). 2, 14, 16, 17
Cotton v. Cockrell, 343 F.3d 746 (5th Cir. 2003) ..........22
Cruz v. Arizona, 598 U.S. 17 (2023) .............................21
Drew v. State, 743 S.W.2d 207 (Tex. Crim. App.
1987) ....................................................................20
Druery v. Thaler, 647 F.3d 535 (5th Cir. 2011) ............23
Edwards v. Vannoy, 593 U.S. 255 (2021) .....................24
Emery v. Johnson, 139 F.3d 191 (5th Cir. 1997)..........15
Enmund v. Florida, 458 U.S. 782 (1982) .....................21
Ex parte Broadnax, No. WR-81,573-01, 2015 WL
2452758 (Tex. Crim. App. May 20, 2015) ............9
Ex parte Broadnax, No. WR-81,573-02, 2023 WL
3855947 (Tex. Crim. App. June 7, 2023) .......9, 30
Ex parte Broadnax, No. WR-81,573-03, 2025 WL
3095921 (Tex. Crim. App. Nov. 6, 2025) ..............9
Ex parte Broadnax, No. WR-81,573-04, 2026 WL
937859 (Tex. Crim. App. Apr. 7, 2026) ................1
Ex parte Campbell, 226 S.W.3d 418 (Tex. Crim.
App. 2007) ...........................................................19
Ex parte Davila, 2018 WL 1738210 (Tex. Crim.
App. Apr. 9, 2018) ...............................................18
x
Ex parte Sales, No. WR-78,131-02, 2023 WL
382321 (Tex. Crim. App. Jan. 25, 2023) ............19
Flanagan v. Johnson, 154 F.3d 196 (5th Cir. 1998)
.............................................................................12
Foster v. Chatman, 578 U.S. 488 (2016).......................13
Fuller v. Johnson, 158 F.3d 903 (5th Cir. 1998) ..........15
Herb v. Pitcairn, 324 U.S. 117 (1945) ...........................16
Herrera v. Collins, 506 U.S. 390 (1993) ..................20, 34
Hill v. McDonough, 547 U.S. 573 (2006) ............ 4, 33, 35
Hilton v. Braunskill, 481 U.S. 770 (1987) ....................34
Hogue v. Johnson, 131 F.3d 466 (5th Cir. 1997) ..........23
Hopkins v. Reeves, 524 U.S. 88 (1998) ..........................22
James v. Kentucky, 466 U.S. 341 (1984).......................14
Kyles v. Whitley, 498 U.S. 931 (1990) ...........................11
Lambrix v. Singletary, 520 U.S. 518 (1997) .................16
Lee v. Kemna, 534 U.S. 362 (2002) ...............................14
Martel v. Clair, 565 U.S. 648 (2012) .............................37
Matchett v. Dretke, 380 F.3d 844 (5th Cir. 2004) .........15
Michigan v. Long, 463 U.S. 1032 (1983) ......................16
Moore v. Texas, 122 S. Ct. 2350 (2002) .........................15
Nelson v. Campbell, 541 U.S. 637 (2004) ...............33, 35
Nken v. Holder, 556 U.S. 418 (2009) ............................34
Pope v. Illinois, 481 U.S. 497 (1987) .............................22
Rocha v. Thaler, 626 F.3d 815 (5th Cir. 2010) .......17, 18
xi
Ruiz v. Quarterman, 504 F.3d 523 (5th Cir. 2007) ......18
Saffle v. Parks, 494 U.S. 484 (1990) .............................24
Schriro v. Summerlin, 542 U.S. 348 (2004) .................24
Sochor v. Florida, 504 U.S. 527 (1992) .........................16
Stewart v. Smith, 536 U.S. 856 (2002) .........................14
Teague v. Lane, 489 U.S. 288 (1989) ........................3, 24
Tison v. Arizona, 481 U.S. 137 (1987) ......................1, 21
Ylst v. Nunnemaker, 501 U.S. 797 (1991) ....................16
Constitutional Provisions & Statutes
28 U.S.C. § 2244(b) ........................................................15
28 U.S.C. § 2244(b)(1) ...................................................12
28 U.S.C. § 2244(b)(2) ...................................................12
28 U.S.C. § 2244(d) ..................................................12, 13
28 U.S.C. § 2253 ............................................................33
Tex. Code Crim. Pro. art. 11.071, § 5 ......... 11, 13, 16, 17
Tex. Code Crim. Pro. art. 11.071, § 5(a) .......................14
Tex. Code Crim. Pro. art. 11.071, § 5(a)(1) .............17, 19
Tex. Code Crim. Pro. art. 11.071, § 5(c) .......................15
Tex. Code Crim. Pro. art. 11.071, § 5(e) .......................19
Rules & Regulations
Sup. Ct. R. 10.................................................................11
Sup. Ct. R. 29.6.............................................................. iii
xii
Other Authorities
The Antiterrorism and Effective Death Penalty
Act of 1996 ..........................................................18
1
INTRODUCTION
Broadnax was convicted of capital murder and
sentenced to death after robbing and fatally shooting
two men. After his arrest, Broadnax gave interviews to
several local news stations. Broadnax v. Lumpkin, 987
F.3d 400, 404 (5th Cir. 2021). During the interviews, he
confessed to the murder and robbery and offered
explicit details. Id. Broadnax admitted that he alone
killed the victims, had no remorse, and asked for the
death penalty. Id.
Broadnax is presently scheduled to be executed
sometime after 6:00 P.M. on April 30, 2026. App.D.
Broadnax has already availed himself of the full state
and federal appeals provided to death-row inmates in
Texas, including multiple state writ proceedings. Now, a
mere ten days before his scheduled execution, Broadnax
seeks certiorari review of the CCA’s decision to dismiss
his subsequent state habeas application, which itself
was only filed six weeks before Broadnax’s execution
date. Ex parte Broadnax, No. WR-81,573-04, 2026 WL
937859 (Tex. Crim. App. Apr. 7, 2026); App.B. In his
dilatory petition for certiorari (Pet.), Broadnax first
asserts that the Eighth Amendment precludes his
execution because questionable new evidence purports
to show that he did not shoot the victims, and he is
therefore entitled to a new jury determination of his
culpability. Pet.10–17 (citing Tison v. Arizona, 481 U.S.
137 (1987)). Secondly, Broadnax argues that the
prosecution engaged in racial discrimination during jury
selection. Id. at 18–26.
2
However, these claims are not worthy of the Court’s
review. Review is jurisdictionally barred by the CCA’s
application of an adequate and independent state
procedural ground for dismissal, namely, Texas’s abuseof-the-writ bar. Broadnax contends that the Court
should find jurisdiction to review his claims because the
CCA’s decision rests on a merits-based application of
federal law. Pet.26–29. However, the CCA was explicit—
it dismissed Broadnax’s subsequent application without
considering the merits of his claims. This Court will not
presume that there is no independent and adequate
state ground for a state court decision unless the
decision “fairly appear[s] to rest primarily on federal law
or to be interwoven with federal law.” Coleman v.
Thompson, 501 U.S. 722, 735 (1991). Here, the Court is
dealing with a commonplace abuse-of-the-writ bar,
straightforwardly applied.
Broadnax also asserts that the CCA misapplied its
own law and should have permitted merits review of
his claims because they were previously unavailable.
Pet.26–27. Broadnax contends that he could not have
raised his Tison claim until he obtained an affidavit
from his cousin and accomplice Demarius Cummings in
which Cummings explains that he, and not Broadnax,
actually shot the victims in this case, but the duo
agreed to lie and place the blame for the murders on
Broadnax. However, by his own consistent and vulgar
media admissions—not recanted and offered to anyone
who would listen—Broadnax is the actual triggerman.
And, even assuming the truth of Cummings’s dubious
assertions, Broadnax would have known both that he
was not the triggerman and about his conspiracy to lie
3
since before trial, meaning any claim predicated on
those facts was previously available. Likewise,
Broadnax has repeatedly pressed variations on his
Batson claim in both state and federal court. His
argument that his Batson claim was previously
unavailable because he lacked the State’s spreadsheet
from Cummings’s trial is demonstrably incorrect.
Regardless, Broadnax’s claims fail on the merits. His
Tison claim fails for lack of a contemporaneous objection,
constitutes invited error, and is barred by Teague v.
Lane, 489 U.S. 288 (1989). Moreover, Broadnax clearly
had the requisite culpability for a death sentence.
Broadnax admitted to being the triggerman and was
convicted as such. App.C at 8a. By his own words, “I
pulled the trigger, he was just there.” Id. And, “We
robbed them. I killed them.” Id. But even if Cummings’s
assertions are true, Broadnax still had the requisite
culpability for a death sentence under Tison because he
was a major participant in the robbery and displayed
reckless indifference for human life. As for his Batson
claim, Broadnax has repeatedly and unsuccessfully
raised this claim in state and federal court. His current
rehashing provides no compelling reason to revisit those
prior rejections.
Simply put, Broadnax’s petition does not
demonstrate any special or important reason for this
Court to review the CCA’s procedural decision, and this
Court does not typically engage in routine error
correction. Certiorari review is therefore unwarranted.
4
Concomitantly, Broadnax’s request for a stay is
meritless. Broadnax has the burden of persuasion on his
stay request, and he is required to make “a clear
showing” that he is entitled to one. Hill v. McDonough,
547 U.S. 573, 584 (2006). “Last-minute stays should be
the extreme exception, not the norm[.]” Bucklew v.
Precythe, 587 U.S. 119, 150 (2019); see also Barr v. Lee,
591 U.S. 979, 981 (2020). As the Court has explained:
“[T[he last-minute nature of an application” that
“could have been brought” earlier, or “an
applicant’s attempt at manipulation,” “may be
grounds for denial of a stay.” Hill, 547 U.S. at 584
(internal quotation marks omitted). . . . [F]ederal
courts “can and should” protect settled state
judgments from “undue interference” by invoking
their “equitable powers” to dismiss or curtail suits
that are pursued in a “dilatory” fashion or based
on “speculative” theories. [Hill, 547 U.S. at 584–
85].
Bucklew, 587 U.S. at 150–51 (footnote omitted).
By delaying until the last minute to raise his claims,
Broadnax fails to make the requisite showing to justify
interference by the federal courts. As shown below,
Broadnax’s claims have been available since trial or
before. Furthermore, almost eighteen years have passed
since Broadnax killed his victims. The ensuing delay in
carrying out Broadnax’s sentence should weigh heavily
in the evaluation of this application for a stay, and
justice for Broadnax’s victims should be denied no
longer. Simply put, “[t]he people of [Texas], the
5
surviving victims of [Broadnax]’s crimes, and others like
them deserve better.” Id. at 149. The State’s interest in
the timely enforcement of Broadnax’s sentence is not
outweighed by the unlikely possibility that certiorari
will be granted. Broadnax thus fails to demonstrate that
he is entitled to a stay of execution under this Court’s
precedent. Accordingly, Broadnax’s request for a stay
should be denied alongside his petition.
STATEMENT OF THE CASE
I. Guilt-innocence Evidence
On direct appeal, the CCA provided the following
summary of the facts of the crime:
A man riding his bicycle home from work saw
the bodies of Stephen Swan and Matthew Butler
in the street outside their recording studio in
Garland shortly after 1:00 a.m. on June 19, 2008.
The man alerted Garland firefighters at a nearby
fire station. Upon arriving at the scene, the
firefighters quickly determined that both Swan
and Butler were recently deceased. At
[Broadnax]’s trial, the medical examiner testified
that Swan had suffered an intermediate-range
gunshot wound to the head, in addition to a
gunshot wound to the left chest.
Later that day, [Broadnax] and his cousin,
[Cummings], arrived at the Southeast Dallas
apartment where [Broadnax] had been staying
with family members. While there, [Broadnax]
6
boasted of “hit[ting] a lick”—street slang for
committing a robbery—and displayed Swan’s
driver’s license. [Broadnax] and Cummings left
the apartment in Swan’s Ford Crown Victoria,
after telling those present that they planned to
sell the vehicle. Fifteen minutes after [Broadnax]
and Cummings left, [Broadnax]’s aunt’s friend
who had been present in the apartment saw news
reports of the double homicide. She realized that
[Broadnax] and Cummings were likely involved,
and she called the Garland Police.
That evening, police officers in Texarkana
(which is about 150 miles from Garland) saw
Swan’s car in a high-crime area. After a check of
the license plates returned information for a
Cadillac, rather than a Ford, officers pulled the
vehicle over. [Broadnax] gave the officers his
name, and after they learned that there were
warrants for [Broadnax]’s arrest, the officers
placed [Broadnax] in custody. The arresting
officer testified that [Broadnax] did not appear to
be intoxicated when he was pulled over.
After being returned to Dallas, [Broadnax]
gave
multiple
interviews
to
television
broadcasters in the Dallas area. These interviews
became the crux of the State’s case at trial. In
them, [Broadnax] confessed to murdering and
robbing Swan and Butler, and he provided
explicit details of the crimes. He said that he and
Cummings had traveled to Garland that day with
the specific intent of committing a robbery.
7
[Broadnax] said that while Cummings had
participated in the robberies, [Broadnax], alone,
had murdered the victims. [Broadnax] told
reporters that he had no remorse for his actions,
and that he hoped a jury would sentence him to
death.
At trial, the defense conceded that [Broadnax]
had shot Swan and Butler, but argued that
[Broadnax] was under the influence of marijuana
and PCP at the time of the murders. The defense
further posited that [Broadnax] was still
intoxicated at the time of his multiple television
interviews and confessions four days after his
arrest. Several of the State’s witnesses were
skeptical of [Broadnax]’s theory. In addition to
the arresting officer’s testimony that [Broadnax]
was lucid at the time of his arrest, the reporters
who interviewed him described [Broadnax] as
intelligent and rational. The jail nurse, too,
testified that [Broadnax] did not appear to be
under the influence of alcohol or drugs.
Broadnax v. State, No. AP-76,207, 2011 WL 6225399, at
*1 (Tex. Crim. App. Dec. 14, 2011).
II. Punishment Evidence
At punishment, the prosecution presented victim
impact testimony from Swan and Butler’s mothers.
Broadnax v. Davis, No. 3:15-CV-1758-N, 2019 WL
3302840, at *2 (N.D. Tex. July 23, 2019). The State also
showed that Broadnax was a violent and noncompliant
8
inmate. Id. A member of the Dallas Police Department’s
gang unit testified that Broadnax’s drawings and
writings suggested that he belonged to a gang. Id.
For its part, Broadnax’s defense team called experts
to testify about “brain development in humans,”
Broadnax’s “substance abuse-induced psychosis,” and
the possibility that “Broadnax was under the influence
of marijuana and PCP” during the crime and his media
interviews. Id. The defense presented numerous family
members who testified to Broadnax’s good character and
his abusive, unstable childhood. Id. It also suggested
that Broadnax was not the instigator of a jail fight
presented by the State. Id.
In rebuttal, the prosecution introduced “a series of
recordings of telephone calls Broadnax made from the
Dallas County Jail on the same day the jury returned its
[guilt-innocence] verdict” in which Broadnax laughed,
joked, and flirted. Id. at *3, *65. The State also called “a
forensic psychologist, who read a list of the
characteristics of a psychopathic personality” but who
did not interview Broadnax or opine that he possessed
those traits Id. Finally, the prosecution presented more
victim impact testimony. Id.
III. Course of Proceedings
In 2009, Broadnax was convicted of capital murder
and sentenced to death. Broadnax, 2011 WL 6225399, at
1, cert. denied sub nom. Broadnax v. Tex., 568 U.S. 828
(2012). The CCA affirmed on automatic appeal. Id.
9
Broadnax filed an initial state habeas application.
The CCA adopted the trial court’s findings and
conclusions and denied relief. Ex parte Broadnax, No.
WR-81,573-01, 2015 WL 2452758, at *1 (Tex. Crim. App.
May 20, 2015), cert. denied sub nom. Broadnax v. Tex.,
577 U.S. 842 (2015).
Broadnax then sought federal habeas relief. The
district court denied relief on all claims and declined to
issue a certificate of appealability (COA). Broadnax,
2019 WL 3302840, at *1. Broadnax then asked the Fifth
Circuit for a COA, which was granted. Broadnax v.
Davis, 813 F. App’x 166 (5th Cir. 2020). The Fifth Circuit
ultimately affirmed the district court’s denial of habeas
relief. Broadnax, 987 F.3d at 400, cert. denied, 142 S. Ct.
859 (2022).
Broadnax then filed his first subsequent state habeas
application. The CCA denied it as an abuse of the writ.
Ex parte Broadnax, No. WR-81,573-02, 2023 WL
3855947, at *1 (Tex. Crim. App. June 7, 2023)
(reconsideration denied November 6, 2025), cert. denied
sub nom. Broadnax v. Tex., 144 S. Ct. 2700 (2024).
Broadnax then filed a second subsequent state habeas
application and suggested that the CCA reconsider his
first subsequent application. The CCA denied
reconsideration and dismissed Broadnax’s second
subsequent application as an abuse of the writ on the
same day. Id.; see also Ex parte Broadnax, No. WR81,573-03, 2025 WL 3095921, at *1 (Tex. Crim. App.
Nov. 6, 2025). On December 17, 2025, the trial court set
Broadnax’s execution for April 30, 2026. Tex. v.
10
Broadnax, No. F08-24667-Y (Crim. Dist. Ct. No. 7,
Dallas Cty, Texas, Dec. 17, 2025); App.D.
Broadnax filed two certiorari petitions challenging,
respectively, the CCA’s denial of his suggestion for
reconsideration of the dismissal of his first subsequent
state habeas application and the CCA’s dismissal of his
second subsequent state habeas application. Broadnax
v. Tex., Nos. 25-938 (suggestion) & 25-939 (application).
He also moved the Court to stay his execution. Broadnax
v. Tex., Nos. 25A899 (suggestion), 25A900 (application). 2
The Court denied certiorari review in both causes on
April 27, 2026.
On March 19, 2026, Broadnax filed a third
subsequent state habeas application, which the CCA
dismissed as an abuse of the writ without considering
the merits. App.B at 4a. Broadnax now seeks certiorari
review of that decision and has concurrently moved for
a stay of execution.
Broadnax also has a civil rights lawsuit pending in the Eastern
District of Texas. Broadnax v. Elliot, et al., No. 9:25-cv-00040-MJTZJH (E.D. Tex.). In this suit, Broadnax alleged deliberate
indifference by prison staff to a medical event Broadnax
purportedly experienced in September 2023. Id. (ECF No. 110 at 2).
Following mediation, the parties agreed to settle. Id. (ECF No. 138).
2
11
REASONS FOR DENYING THE WRIT
I. The Petition Does Not Warrant This Court’s
Review.
The questions that Broadnax presents for review are
unworthy of the Court’s attention. Supreme Court Rule
10 provides that review on writ of certiorari is not a
matter of right, but of judicial discretion, and will be
granted only for “compelling reasons.” Where a
petitioner asserts only factual errors or that a properly
stated rule of law was misapplied, certiorari review is
“rarely granted.” Id. Broadnax identifies no conflict
among the courts of appeals, no departure from accepted
and usual judicial standards, and no important question
of federal law that warrants this Court’s intervention in
the CCA’s rote application of its abuse-of-the-writ bar.
Indeed, the issues in this case involve only the lower
court’s proper application of state procedural rules for
collateral review of death sentences. Specifically,
Broadnax was cited for abuse of the writ because he did
not meet the subsequent application requirements of
Texas Code of Criminal Procedure Article 11.071,
Section 5. The state court’s disposition, which relied
upon an adequate and independent state procedural
ground and did not reach the merits of Broadnax’s
claims, forecloses a stay of execution or certiorari review.
Additionally, as Justice Stevens noted, concurring in
the denial of an application for a stay in Kyles v. Whitley,
498 U.S. 931, 932 (1990):
12
This Court rarely grants review at this stage
of the litigation even when the application for
state collateral relief is supported by arguably
meritorious
federal
constitutional
claims.
Instead, the Court usually deems federal habeas
proceedings to be the more appropriate avenues
for consideration of federal constitutional claims.
However, if Broadnax attempted to raise his claims
in federal habeas proceedings now, a new habeas
petition would be impermissibly successive 3 and barred
by the statute of limitations. 4 A federal court would also
Broadnax raised a Batson claim in his initial federal habeas
proceeding. Broadnax, 987 F.3d at 406. “A claim presented in a
second or successive habeas corpus application under section 2254
that was presented in a prior application shall be dismissed.” 28
U.S.C § 2244(b)(1). Broadnax’s Tison claim is new, but it fails to
meet requirements of 28 U.S.C. § 2244(b)(2)(A). Broadnax fails to
show that he could not have diligently raised the claim earlier
because—even assuming the truth of the Cummings affidavit—
Broadnax was aware of his own purported conspiracy with
Cummings to lie about the shooting since before trial and could
have raised it then or in any of his state or federal habeas
proceedings in the seventeen years since trial. Likewise, the
Cummings affidavit fails to show that Broadnax is actually
innocent, especially given that Broadnax has not recanted his own
incriminating statements and that even under his current telling a
properly instructed jury would have found Broadnax guilty as a
party, if not as the principal shooter.
3
Both of Broadnax’s claims have been available since trial or
before, meaning that the federal statute of limitations has long
since expired. 28 U.S.C. § 2244(d)(1). And Broadnax’s incremental
addition of evidence does not alter the statute of limitations start
date. See, e.g., Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir.
1998) (“[Petitioner] is confusing his knowledge of the factual
4
13
find any new claims defaulted by virtue of the CCA’s
application of Section 5. 5
Certiorari review should be denied.
II. Certiorari Review and a Stay of Execution Are
Foreclosed by an Independent and Adequate
State-Procedural Bar.
“This Court lacks jurisdiction to entertain a federal
claim on review of a state court judgment ‘if that
judgment rests on a state law ground that is both
‘independent’ of the merits of the federal claim and an
‘adequate’ basis for the court’s decision.’” Foster v.
Chatman, 578 U.S. 488, 497 (2016) (quoting Harris v.
Reed, 489 U.S. 255, 260 (1989))). 6 The state law ground
predicate of his claim with the time permitted for gathering
evidence in support of that claim . . . [§] 2244(d)(1)(D) does not
convey a statutory right to an extended delay . . . while a habeas
petitioner gathers every possible scrap of evidence that might . . .
support his claim.”). The relevant question is when Broadnax was
first aware of the factual predicates of his claims, not when he
obtained the most recent piece of evidence supporting the claims.
Aguilar v. Dretke, 428 F.3d 526, 533 (5th Cir. 2005) (“Texas’
abuse-of-writ rule is ordinarily an ‘adequate and independent’
procedural ground on which to base a procedural default ruling.”).
5
Foster is illustrative of a failed bar. The Foster Court held the
state court’s bar of the petitioner’s Batson claim was not
independent of the merits of his federal claim because the state
court “engaged in four pages of” a Batson analysis and concluded
the claim was without merit. 578 U.S. at 498. Here, the CCA’s terse
order explicitly stated it did not review the merits of Broadnax’s
claims.
6
14
barring federal review may be “substantive
procedural.” Coleman, 501 U.S. at 729.
or
To be adequate, a state law ground must be “firmly
established and regularly followed.” Lee v. Kemna, 534
U.S. 362, 375 (2002) (quoting James v. Kentucky, 466
U.S. 341, 348 (1984)). Discretion does not deprive a state
law ground of its adequacy because “a discretionary rule
can be ‘firmly established’ and ‘regularly followed’—even
if the appropriate exercise of discretion may permit
consideration of a federal claim in some cases but not
others.” Beard v. Kindler, 558 U.S. 53, 60–61 (2009).
Ultimately, situations where a state law ground is found
inadequate are a “small category of cases.” Kemna, 534
U.S. at 381.
A state law ground is “independent of federal law
[when it] do[es] not depend upon a federal constitutional
ruling on the merits.” Stewart v. Smith, 536 U.S. 856,
860 (2002). There is no presumption of federal law
consideration. Coleman, 501 U.S. at 735–36. To so find,
the state court’s decision must “fairly appear to rest
primarily on federal law, or to be interwoven with the
federal law.” Id. Where there is no “clear indication that
a state court rested its decision on federal law, a federal
court’s task will not be difficult.” Id. at 739–40.
Here, Article 11.071 Section 5(a) of the Texas Code of
Criminal Procedure forbids state courts to consider a
prisoner’s subsequent state habeas application unless
the prisoner can show previous unavailability of his
claims or actual innocence of the crime or the death
penalty. This statute, like the federal habeas “second or
15
successive” writ prohibition, works to limit the number
of attempts an inmate may seek to collaterally attack a
conviction, subject to certain, limited exceptions.
Compare Tex. Code Crim. Pro. art. 11.071 § 5(a), with 28
U.S.C. § 2244(b); see also Beard, 558 U.S. at 62 (federal
courts should not “disregard state procedural rules that
are substantially similar to those to which we give full
force in our own courts.”).
Here, the CCA dismissed Broadnax’s application as
“an abuse of the writ without reviewing the merits of his
claims.” App.B at 4a (citing Tex. Code Crim. Pro. art.
11.071, § 5(c)). Broadnax’s claims are therefore
unequivocally procedurally barred because the state
court’s disposition of the claims relies upon an adequate
and independent state law ground, i.e., the Texas abuseof-the-writ statute. See, e.g., Moore v. Texas, 122 S. Ct.
2350, 2352–53 (2002) (Scalia, J., dissenting); Balentine
v. Thaler, 626 F.3d 842, 857 (5th Cir. 2010) (recognizing
that Section 5 is an adequate state law ground for
rejecting a claim); Matchett v. Dretke, 380 F.3d 844, 848
(5th Cir. 2004) (“Texas’ abuse-of-the-writ rule is
ordinarily an ‘adequate and independent’ procedural
ground on which to base a procedural default ruling.”);
Barrientes v. Johnson, 221 F.3d 741, 758–59 (5th Cir.
2000); Fuller v. Johnson, 158 F.3d 903, 906 (5th Cir.
1998); Emery v. Johnson, 139 F.3d 191, 195–96 (5th Cir.
1997).
As noted above, this Court “will not review a question
of federal law decided by a state court if the decision of
that court rests on a state law ground that is
independent of the federal question and adequate to
16
support the judgment,” Coleman, 501 U.S. at 729,
because “[the Court] in fact lack[s] jurisdiction to review
such independently supported judgments on direct
appeal: since the state-law determination is sufficient to
sustain the decree, any opinion of this Court on the
federal question would be purely advisory.” Lambrix v.
Singletary, 520 U.S. 518, 523 (1997) (citing Herb v.
Pitcairn, 324 U.S. 117, 125–26 (1945) & Sochor v.
Florida, 504 U.S. 527, 533–34 & n.112 (1992)); Michigan
v. Long, 463 U.S. 1032, 1042 (1983). Despite this longstanding precedent, Broadnax now argues that Section
5 is not adequate and independent. Pet.26–28. But even
considering this Court’s federal habeas jurisprudence—
which does not apply to a jurisdictional bar—Broadnax’s
arguments fail. In Long, the Court made clear that, in
determining whether a state court judgment is
independent and adequate on direct review, it would
first decide whether a state court decision “fairly
appears to rest primarily on federal law, or to be
interwoven with the federal law.” 463 U.S. at 1040. If
this predicate was met, the Court would presume that
the state court’s decision turned on federal law unless
the “adequacy and independence of any possible state
law ground” was “clear from the face of the opinion.” Id.
at 1040–41. This framework was imported into the
federal habeas context in Harris, 489 U.S. at 260–63,
and it has since been called the “Harris presumption”
when it is applied in such matters. See, e.g., Ylst v.
Nunnemaker, 501 U.S. 797, 802 (1991).
The Court later made clear in Coleman that a twopart, conjunctive test is required: “In habeas, if the
decision of the last state court to which the petitioner
17
presented his federal claims fairly appeared to rest
primarily on resolution of those claims, or to be
interwoven with those claims, and did not clearly and
expressly rely on an independent and adequate state
ground, a federal court may address the petition.” 501
U.S. at 735. Coleman rejected the notion that Harris
imposed a “clearly and expressly” requirement on all
procedural default holdings. Id. at 736. Rather, the
Court explained that the Harris presumption, and
hence the “clearly and expressly” requirement,
“appl[ies] only in those cases in which it fairly appears
that the state court rested its decision primarily on
federal law.” Id. (internal quotation marks omitted);
see also id. at 735 (describing this “predicate to the
application of the Harris presumption”). Thus, there
is no presumption of federal-law consideration unless
it is first determined that the state court decision
“fairly appears to rest primarily on federal law, or to
be interwoven with the federal law.” Id. at 735.
In Rocha v. Thaler, 626 F.3d 815 (5th Cir. 2010),
the Fifth Circuit considered the independent nature
of Texas’s Section 5 bar in the federal habeas context.
There, the court rejected Rocha’s contention “that
§ 5(a)(1) is dependent on federal law in all cases.” Id.
at 835. Instead, whether a § 5(a)(1) dismissal is
independent of federal law turns on case-specific
factors. Id. As the court held,
If the CCA’s decision rests on availability, the
procedural bar is intact. If the CCA determines
that the claim was unavailable but that the
application does not make a prima facie showing
18
of merit, a federal court can review that
determination under the deferential standards of
AEDPA.[ 7]
Rocha, 626 F.3d at 835.
But in this case, there is no need to assume. The CCA
dismissed Broadnax’s application as “an abuse of the
writ without reviewing the merits[.]” App.B at 4a. The
CCA conducts the availability and prima facie inquiries
sequentially, Rocha, 626 F.3d at 834, and there is no
indication the CCA proceeded to a prima facie merit
analysis instead of resting its decision on availability.
Broadnax argues that the CCA does not mean it when it
says it dismisses a claim without reviewing the merits,
because sometimes the CCA finds no prima facie merit
and still says that it is not reaching the merits. Pet.27–
28. However, the CCA’s instant order does not resemble
Broadax’s cited orders, some of which specifically
reference the “prima facie” requirement, Ex parte
Davila, 2018 WL 1738210, at *1 (Tex. Crim. App. Apr. 9,
2018), present an uncertain decisional basis stemming
from a lack of a plurality, Ruiz v. Quarterman, 504 F.3d
523, 527 (5th Cir. 2007), or involve a recognized
exception for categorical ineligibility for the death
penalty, Busby v. Davis, 925 F.3d 699, 707 (5th Cir.
2019). Rocha, 626 F.3d at 823–24, 826–27.
Finally, Broadnax appears to contest the Section 5
bar’s adequacy by asserting that the CCA misapplied its
own law. Pet.26–27. However, this is not a situation
7
The Antiterrorism and Effective Death Penalty Act of 1996.
19
where the imposition of the bar was exorbitant. See, e.g.,
Kemna, 534 U.S. at 376, 381–84. Broadnax’s meritless
claims have been available since trial, and it is utterly
unremarkable that the CCA refused to authorize further
proceedings.
Broadnax argues that he could not have previously
raised his claims because he was not able to review the
Cummings jury selection materials until January 2025
and he did not acquire the information in the Cummings
affidavit until a meeting with Cummings on February
20, 2026. 8 Stay Application (Stay Appl.) at 4; App.E at
23a. But Broadnax has been raising Batson since trial,
see generally 42.RR 9, and offered iterations on the claim
on direct appeal and in both state and federal habeas.
Concerning his Tison claim, it is indisputable that if
Broadnax did not shoot Swan and Butler and lied during
his media interviews, he would know as much through
his personal knowledge. Indeed, if Broadnax did not pull
An applicant can prove either factual or legal unavailability of
a claim. Tex. Code Crim. Pro. art. 11.071, § 5(a)(1). This requires
proof of unavailability in all prior state habeas applications. See Ex
parte Campbell, 226 S.W.3d 418, 421 (Tex. Crim. App. 2007); Ex
parte Sales, No. WR-78,131-02, 2023 WL 382321, at *1 (Tex. Crim.
App. Jan. 25, 2023) (“[T]he factual basis must have been
unavailable as to all previous applications.” (emphasis added)). A
claim is not factually available when its factual basis “was not
ascertainable through the exercise of reasonable diligence,” Tex.
Code Crim. Pro. art. 11.071, § 5(e). Broadnax filed his second
subsequent application on August 20, 2024, meaning his claims
must have been unavailable on that date.
8
“RR” refers to the reporter’s record of transcribed trial
proceedings, preceded by volume number and followed by page
number.
9
20
the trigger, he has been fully aware of that fact
throughout the entirety of his legal proceedings. He
would have necessarily known that any trial evidence
suggesting that he shot the victims was categorically
false, and he could have related the same to his trial,
appellate, state habeas, and federal habeas attorneys,
who could have pursued his remedies. As noted by the
concurrence below, “if [Broadnax’s confessions were lies,
he knew that at the time he made his confessions, and
he has had 16 years and 3 prior applications in which he
could have recanted those confessions and argued that
they were false.” App.C at 5a–6a, 9a–10a (“He has had
three prior habeas applications in which he could have
presented his claim that his own confessions were false.
He could easily have executed an affidavit recanting his
confessions. He did not and still has not.”). The
concurrence further observed “[Broadnax] has not
shown diligence” and the “highly questionable
proposition” that “Cummings’s conscience was
awakened on the eve of execution” is negated by the fact
that his conscience might have been awakened earlier
had Broadnax bothered to pursue his claims. 10 Id. at
10a.
Drew v. State, 743 S.W.2d 207, 228–29 (Tex. Crim. App. 1987)
(“It is not unusual for one of two convicted accomplices to assume
the entire fault and thus exculpate his codefendant by the filing of
a recanting affidavit or other statement. . . . In such situations
recanting affidavits, other statements and witnesses are viewed
with extreme suspicion by the courts.”); Herrera v. Collins, 506 U.S.
390, 423 (1993) (O’Connor, J., concurring) (“such affidavits are to be
treated with a fair degree of skepticism”).
10
21
This is simply not an “exceptional case[]” or “one of
rarest of situations, [where] ‘an unforeseeable and
unsupported state-court decision on a question of state
procedure does not constitute an adequate ground to
preclude this Court’s review of a federal question.”’ Cruz
v. Arizona, 598 U.S. 17, 26 (2023) (citing Bouie v. City of
Columbia, 378 U.S. 347, 354 (1964)). Certiorari review
must be denied.
III.
Broadnax’s Tison Claim Is Meritless.
Broadnax claims that his death sentence violates the
Eighth Amendment because he did not kill the victims
or intend to kill them. Pet.10–17. In Enmund 11 and
Tison, the Court addressed the culpability required for
assessing the death penalty in felony-murder
convictions. The Court held in Enmund that the death
penalty may not be imposed on one who “aids and abets
a felony in the course of which murder is committed by
others but who does not himself kill, attempt to kill, or
intend that a killing take place or that a level of lethal
force will be employed.” 458 U.S. at 797. But the Court
created an exception in Tison when it was faced with two
brothers who assisted their father in an armed prison
escape and went on to commit robberies to further that
escape. It held that the concerns of Enmund are not
implicated where an accomplice was a major participant
in the felony and displayed a “reckless indifference to
human life.” Tison, 481 U.S. at 158. It explained that
reckless disregard for human life is “implicit in
knowingly engaging in criminal activities known to
11
Enmund v. Florida, 458 U.S. 782 (1982).
22
carry a grave risk of death” and represents a highly
culpable mental state when that conduct “causes its
natural, though also not inevitable, lethal result.” Id. at
157–58. Critically, the Court did not establish any
procedural guidelines or instructions on how to
implement Enmund. Later, the Court expressly left
discretion to the states: “Enmund does not impose any
particular form of procedure upon the States.” Cabana
v. Bullock, 474 U.S. 376, 386 (1986). 12 A determination
of requisite culpability, then, can be made at any point
in the proceedings—and it can be made by a jury, a
judge, or an appellate court. Id. at 386–87; see also
Hopkins v. Reeves, 524 U.S. 88, 99–100 (1998) (states
can comply with Enmund requirement at sentencing or
on appeal).
Here, Broadnax’s claim suffers from numerous fatal
defects. First, Broadnax has not demonstrated that he
objected to the lack of a parties instruction at guiltinnocence or a corresponding anti-parties instruction at
punishment. 47.RR.148–51 (charge conference); App.C
at 14a–15a. In fact, Broadnax conceded at trial he was
responsible for the crime as charged. 45.RR.58–59 (“Now
some trials are about whether or not the person on trial
is responsible for the act they’re charged with. This is
not that case. James Broadnax is responsible for the
deaths of Matthew Butler and Stephen Swan.”). Even if
this claim could be considered, it would likely be barred
for lack of a contemporaneous objection. Cotton v.
Cockrell, 343 F.3d 746, 754 (5th Cir. 2003) (holding that
Cabana has been called into question, but not for this
proposition. Pope v. Illinois, 481 U.S. 497, 503 n.7 (1987).
12
23
a violation of the Texas contemporaneous objection rule
is an adequate and independent barrier to federal
habeas review); Hogue v. Johnson, 131 F.3d 466, 496
(5th Cir. 1997).
Second, even if the CCA had considered this claim, it
would have been denied as invited error. Druery v.
Thaler, 647 F.3d 535, 545 (5th Cir. 2011) (“The invitederror doctrine provides that ‘a defendant cannot
complain on appeal of alleged errors which he invited or
induced[.]’” (citation omitted)). “No one disputes that
[Broadnax] participated in a robbery with Cummings.”
App.C at 13a. Accordingly, Broadnax would have been
liable for the death penalty under the law of parties
coupled with an antiparties special issue, which the jury
would have received if not for Broadnax’s purported lies
to the court and media. Id. Such an instruction was not
given at trial and would have been improper based on
the evidence, but that “was largely [Broadnax]’s fault.”
Id. at 14a. It would “distort” jurisprudence to allow
Broadnax to prevail on the absence of the parties and
antiparties instructions when it was his own purported
lies that caused the instructions to be omitted in the first
place. Id. at 15a. Indeed, this would simply reward
Broadnax and Cummings for their alleged deceptions.
Third, this claim is barred by Teague. While this
Court’s precedent provides for a retroactive culpability
assessment, it does not require a retrial by a jury. Pet.3,
11, 13 (requesting jury reassessment); Cabana, 474 U.S.
at 384–85. Likewise, precedent does not require that the
reassessment occur with post-conviction evidence. See
generally id. Habeas is generally not an appropriate
24
avenue for the recognition of new constitutional rules.
Teague, 489 U.S. at 310. Thus, for the most part, new
constitutional rules do not apply to convictions final
before the new rule was announced. Id. The inquiry
then turns on whether the rule Broadnax proposes is
substantive or a watershed rule of criminal procedure. It
is neither. The proposed rule is not substantive—it does
not “prohibit the imposition of capital punishment on a
particular class of persons.” Saffle v. Parks, 494 U.S.
484, 495 (1990). Rather, it is clearly procedural. Cf.
Schriro v. Summerlin, 542 U.S. 348, 353 (2004) (“[R]ules
that regulate only the manner of determining the
defendant’s culpability are procedural.”). And because
the “watershed” exception is “moribund,” Edwards v.
Vannoy, 593 U.S. 255, 272 (2021), Broadnax’s proposed
rule does not qualify for retroactive application. As such,
Teague’s non-retroactivity bar applies.
Finally, even assuming that Broadnax could bypass
the myriad procedural hurdles standing in his way, the
Court has ample evidence to find that Broadnax’s claim
is meritless, both with and without the Cummings
affidavit. Hopkins, 524 U.S. at 99–100 (culpability
determination can be made on appeal). The evidence at
trial clearly established that Broadnax was a major
participant in the crime who displayed reckless
indifference to human life because he identified himself
as the actual killer/triggerman. As observed by the
federal district court, “Broadnax and his cousin
[Cummings] fatally shot and robbed [Swan and Butler]
in the parking lot of Butler’s recording studio in
downtown Garland. There is no genuine dispute about
25
these facts.” Broadnax, 2019 WL 3302840, at *1
(emphasis added). The district court further explained:
If a picture is worth a thousand words,
Broadnax’s videotaped interviews were worth
multiple sets of encyclopedia in terms of
permitting his jury to intelligently evaluate
Broadnax’s culpability and lack of remorse for his
crimes. In his interviews, Broadnax gave
multiple, detailed, almost clinical accounts of how
he approached two people he had never met
before, engaged them in casual conversation,
asked for a cigarette, and, when one of the men
reached to get one, Broadnax withdraw his
handgun and, without first making a demand for
money or car keys, shot the first victim in the
chest. Broadnax then described, albeit at times in
crude terms, how his first victim responded to the
first shot and how his second victim reacted
physically when Broadnax shot him the first time.
Broadnax casually explained how he proceeded to
shoot both victims again in the head to make sure
they were dead. Broadnax also described how,
after they robbed both victims, he casually wiped
the blood off his gun as Cummings drove them
away from the crime scene in Swan’s vehicle.
Id. at *34; see also id. at *55–58. 13
It is also worthing noting that “Broadnax’s crude,
The federal district court provided an exhaustive appendix
detailing the guilt-innocence phase in its opinion.
13
26
dismissive comments about his victim’s families were
consistent throughout his [ ] interviews. During [one
interview], Broadnax replied to a question about what
he would tell the widow of one of his victims with ‘I laugh
in her face.’ During [another interview], Broadnax made
a similarly vulgar reply when [ ] asked what he would
say to his victims’ families.” Id. at *56. “Even months
after his arrest, in his telephone conversations with
family and friends, Broadnax continued to display
absolutely no remorse for his offenses and no empathy
for his victims or their families.” Id. at *35. At one point,
“[w]hen asked . . . what he thought would happen to him,
Broadnax replied ‘Hopefully, the death penalty.’
Broadnax followed that comment by explaining that if
they did not give him the death penalty, he would kill
again, declaring there would be more bodies if he did not
receive the death penalty.” Id. at *56.
The CCA’s concurrence likewise observed:
[Broadnax]
made
numerous
damning
statements inculpating himself as the shooter: A
friend of his aunt testified that, after coming back
from the robbery, Cummings had the “big gun”
and [Broadnax] had a “pistol.” The friend also
testified about [Broadnax] that, “the last thing he
said was that if it comes out, he did it.”
In an interview with the local Channel 4,
[Broadnax] described the shootings, essentially
bragging about his conduct. In describing one of
the shootings, he said that he was sure the victim
would’ve died, but he “shot his bitch ass again”
27
just to make sure. When asked whether he was
worried about getting caught later, [Broadnax]
said, “I got nothin’ to live for.” He also said he
“kinda” regretted what he did. When asked what
he would like to say to the families, [Broadnax]
looked directly into the camera and said, “Fuck
’em . . . Straight up.” When the interviewer asked
what was going through [Broadnax]’s head “right
now,” [Broadnax] hung up the phone and walked
away. As he was walking away, he said, “tell ’em
I said fuck ’em.”
In an interview with the local Channel 5,
[Broadnax] gave the exact story he told Channel
4 and added that he wanted the death penalty. He
further said that if he gets life, he will go crazy
and kill someone else. And when asked what he
would say to the people who find his conduct
reprehensible, he said “Fuck em, fuck em, fuck
em, even if they celibate.” [Broadnax] also made
the following statements:
I pulled the trigger, he was just there.
We robbed them. I killed them.
I popped they bitch ass, you know what I’m
sayin’.
Fuck his family too. Both of them.
[Broadnax]’s confessions were not halfhearted. They were detailed and showed a lack of
28
remorse. And he has not recanted any of them.
App.C at 7a–8a.
The federal district court also noted evidence beyond
the media interviews:
[A]n acquaintance of Broadnax’s aunt, [ ] testified
that the day after the double murder/robbery (a)
she saw Broadnax and Cummings at Broadnax’s
aunt’s residence driving a Crown Victoria vehicle,
(b) Broadnax and Cummings said they had “hit a
lick,” which she construed as meaning they had
committed a robbery, (c) Broadnax was carrying a
pistol, (d) Cummings looked scared but Broadnax
appeared “bold,” (e) Broadnax appeared to be the
leader of the two, (f) she saw Stephen Swan’s
identification, (g) she saw various items in the
trunk of the Crown Victoria, (h) Broadnax and
Cummings said they planned to sell the vehicle,
(i) later that same day she saw Stephen Swan’s
picture on the television and realized Broadnax
and Cummings had robbed and murdered Swan.
Broadnax, 2019 WL 3302840, at *56.
Even with the Cummings affidavit, the evidence
would still show that Broadnax was the triggerman by
his own admission, he was armed with a pistol, he
appeared to be duo’s leader, and he and Cummings had
the fruits of the robbery. Moreover, the CCA concurrence
aptly noted that “without a recantation of [Broadnax]’s
own confessions, there is absolutely no basis for
29
discounting them.” App.C at 13a. Accordingly,
Broadnax’s culpability is clear, as is his eligibility for a
death sentence.
IV.Broadnax’s Batson Claim Is Meritless.
As Broadnax acknowledges, his instant Batson claim
is “substantively the same” as the claim presented in the
petition he filed in cause number 25-938. Pet.18. This
petition was denied on April 27th. Broadnax explains
that he “re-presented” the Batson claim here—now
challenging the CCA’s dismissal of his third subsequent
state habeas application—to ensure this Court has
jurisdiction. However, the State has already adequately
briefed this issue and correctly explained that there is
no compelling reason for further review of Broadnax’s
Batson claim even if there was jurisdiction. Brief in
Opposition (BIO) at 19–35, Broadnax v. Tex., No. 25-938
(U.S.) (filed Mar. 25, 2026).
Further, this Court previously denied review of his
Batson claim both two years ago 14, and his “new
evidence” does not alter the analysis of that claim. Id. As
previously shown, Broadnax’s Batson claim is entirely
meritless because the State’s peremptory strikes in
question were not based on race, rather, they were based
on the jurors’ responses to written questionnaires and
during individual voir dire.
In his current petition, Broadnax emphasizes the
racial identifiers on the Broadnax and Cummings juror
14
Broadnax, 144 S. Ct. at 2700.
30
spreadsheets, the purported disparate questioning of
minority jurors, the racial disparity in jury statistics,
and the history of Batson violations in Dallas County.
Pet.18–21. But, as the State previously noted, the Court
can readily reject these arguments because most are
duplicative of the complaints that this Court declined to
review two years ago. In fact, over the last fifteen years
Broadnax’s assorted Batson arguments have been
repeatedly and correctly rebuffed by the CCA on direct
appeal 15, by this Court following Broadnax’s petition for
certiorari off direct appeal 16, by the Northern District of
Texas 17, by the Fifth Circuit 18, by this Court following
Broadnax’s petition for certiorari off federal habeas 19, by
the CCA following Broadnax’s first subsequent state
habeas application20, by this Court following Broadnax’s
petition for certiorari off Broadnax’s first subsequent
state habeas application21, by the CCA following
Broadnax, 2011 WL 6225399, at *2–4. On appeal, the CCA
actually found that the trial court had improperly upheld a Batson
challenge to ensure a racially diverse jury despite explicitly finding
no racial discrimination by the State. Id. at *4.
15
16
Pet., Broadnax v. Tex., No. 11-9294 (U.S.) (filed Mar. 9, 2012).
17
Broadnax, 2019 WL 3302840, at *36.
18
Broadnax, 987 F.3d at 406.
19
Pet., Broadnax v. Lumpkin, 21-267 (U.S.) (filed Aug. 20, 2021).
20
Ex parte Broadnax, 2023 WL 3855947, at *1.
21
Pet., Broadnax v. Tex., No. 23-248 (U.S.) (filed Sept. 5, 2023).
31
Broadnax’s suggestion to reconsider 22, by the CCA
following the instant third subsequent state habeas
application, 23 and by this Court in its certiorari denial of
April 27th.
Broadnax argues that “the newly disclosed jury
selection chart” from Cummings’s trial undermines the
State’s argument—endorsed by the federal courts—that
it only listed the races on the spreadsheet in Broadnax’s
case 24 to prepare for a Batson hearing because it shows
that “the State was engaging in a systemic and
intentional practice of considering race during jury
selection.” Pet.21. But the seated jury in Cummings’s
trial was composed of fifty percent minority jurors—six
white, four African-American, and two Hispanic
individuals. Petition at 17 (jury selection chart),
Broadnax v. Tex., No. 25-938 (U.S.). And the State has
previously represented that records show each party
exercised ten peremptory challenges, and of the total
twenty individuals that were struck—sixteen were
white, two were African-American, one was Hispanic,
and one was Asian. BIO.26. This diversity shows there
was no prima facie case of race-discrimination in
Ex parte Broadnax, No. WR-81,573-02 (Nov. 6, 2025 docket
entry).
22
23
App.B.
“The spreadsheet alone is no smoking gun . . . [the State had]
considerable motivation to identify which jury venire members
belonged to a protected class when preparing to defend its use of
peremptory challenges.” Broadnax, 987 F.3d at 410 (footnote
omitted). The same argument applies to the Cummings
spreadsheet.
24
32
Cummings’s trial, and Broadnax’s “newly disclosed”
chart therefore fails to show the State engaged in any
systemic or intentional racial discrimination.
Lastly, Broadnax argues that “[d]eclarations from
Black venire members further confirm that the State
struck qualified jurors based on their race.” Pet.22. But
this Court should disregard the declarations because
Batson determinations are generally made on jurors’
statements during voir dire, not statements made
sixteen years later and beyond the knowledge of the
prosecution. Indeed, the State had valid, race-neutral
reasons for its strikes based on its information at the
time—namely, the juror questionnaires. Five of the six
excluded African-American jurors in Broadnax’s case
indicated that they were not in favor of the death
penalty or believed it should never be invoked. BIO.20;
Broadnax, 987 F.3d at 411–12 (“The State struck every
veniremember, regardless of race, who indicated he or
she was not in favor of the death penalty, including five
against whose strikes Broadnax’s counsel raised Batson
objections.”). Regarding a prospective African-American
juror (A.L) that did not oppose the death penalty, that
juror indicated that the defendant being on drugs at the
time of the offense would automatically prevent the
juror from assessing a death sentence. BIO.22 (A.L.
questionnaire); Broadnax, 2019 WL 3302840, at *42
n.72 (listing A.L.’s problematic answers). As the federal
district court correctly determined, the stricken “venire
members’ questionnaire answers or voir dire testimony
. . . all constituted racially neutral, objectively verifiable,
record-based, reasons for a prosecutorial peremptory
strike.” Broadnax, 2019 WL 3302840, at *41–43. On
33
appeal, the Fifth Circuit agreed, properly rejecting
Broadnax’s arguments based on statistics, disparate
questioning, and the State’s spreadsheet. Broadnax, 987
F.3d at 410–12 (footnote omitted). Broadnax shows no
compelling reason why he should be entitled to a redo of
his Batson claim at this late date when so many courts
have already spurned it.
V. Broadnax Is Not Entitled to a Stay.
A stay of execution is an equitable remedy. Hill, 547
U.S. at 584. “It is not available as a matter of right, and
equity must be sensitive to the State’s strong interest in
enforcing its criminal judgments without undue
interference from the federal courts.” Id. (citing Nelson
v. Campbell, 541 U.S. 637, 649–50 (2004)). “It is wellestablished that there must be a reasonable probability
that four members of the Court would consider the
underlying issue sufficiently meritorious for the grant of
certiorari[ ]; there must be a significant possibility of
reversal of the lower court’s decision; and there must be
a likelihood that irreparable harm will result if that
decision is not stayed.” Barefoot v. Estelle, 463 U.S. 880,
895 (1983) (internal quotations and citation omitted),
superseded on other grounds by 28 U.S.C. § 2253(c)(2).
Indeed, “[a]pplications for stays of death sentences are
expected to contain the information and materials
necessary to make a careful assessment of the merits of
the issue and so reliably to determine whether plenary
review and a stay are warranted.” Id. at 896. To
demonstrate an entitlement to a stay, a petitioner must
offer more than “the absence of frivolity” or “good faith.”
Id. at 892–93. Rather, the petitioner must make a
34
substantial showing of the denial of a federal right. Id.
In a capital case, a court may properly consider the
nature of the penalty in deciding whether to grant a
stay, but “the severity of the penalty does not in itself
suffice.” Id. at 893. The State’s “powerful and legitimate
interest in punishing the guilty,” as well as its interest
in finality, must also be considered, especially in a case
such as this where the State and victims have for years
borne the “significant costs of federal habeas review.”
Herrera, 506 U.S. at 421 (O’Connor, J., concurring);
Calderon v. Thompson, 523 U.S. 538, 556 (1998) (both
the State and the victims of crime have an important
interest in the timely enforcement of a sentence).
Thus, in deciding whether to grant a stay of
execution, the Court must consider four factors:
“(1) whether the stay applicant has made a strong
showing that he is likely to succeed on the merits;
(2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will
substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies.” Nken
v. Holder, 556 U.S. 418, 434 (2009) (quoting Hilton v.
Braunskill, 481 U.S. 770, 776 (1987)); see also Buxton v.
Collins, 925 F.2d 816, 819 (5th Cir. 1991).
A. Broadnax has not made a strong showing
that he will succeed on the merits.
Given the procedurally defective and meritless
nature of his claims, Broadnax fails to show that there
is any significant possibility that the Court will grant
certiorari. As amply demonstrated above, Broadnax’s
35
failure to offer a sound claim for relief supports the
denial of a stay of execution.
B. Broadnax is unlikely to suffer irreparable
harm.
In a capital case, a court may properly consider the
nature of the penalty in deciding whether to grant a
stay, but “the severity of the penalty does not in itself
suffice.” Barefoot, 463 U.S. at 893. Broadnax’s stay
application mostly points to the severity of penalty in
attempting to show harm, which is insufficient. Stay
Appl.12–13. Broadnax also suggests that a stay is
necessary so the Court can address his claims in the
normal course. Id. However, the fact that Broadnax’s
claims cannot be considered in the normal course cuts
against him. “A court considering a stay must also apply
‘a strong equitable presumption against the grant of a
stay where a claim could have been brought at such a
time as to allow consideration of the merits without
requiring entry of a stay.’” Hill, 547 U.S. at 584 (quoting
Nelson, 541 U.S. 650). Broadnax entered into his
purported conspiracy with Cummings to deceive the
courts, State, and public before trial. His Batson claim
has been available since trial. His Batson claim is also,
by his own admission, “substantially the same” as the
one raised in his earlier certiorari petition, Pet.18, and
that petition is being addressed in the normal course.
Any rush in processing the instant claims is
unequivocally Broadnax’s own fault.
36
C. The State and the public have a strong
interest in seeing the state court judgment
carried out.
The State and crime victims have a “powerful and
legitimate interest in punishing the guilty.” Calderon v.
Thompson, 523 U.S. 538, 556 (1998) (citation omitted).
And “[b]oth the State and the victims of crime have an
important interest in the timely enforcement of a [death]
sentence,” Bucklew, 587 U.S. at 149 (quotation omitted);
see Nelson, 541 U.S. at 650 (“a State retains a significant
interest in meting out a sentence of death in a timely
fashion”); Gomez v. United States Dist. Court, 503 U.S.
653, 654 (1992) (per curiam) (“[e]quity must take into
consideration the State’s strong interest in proceeding
with its judgment”). Once post-conviction proceedings
“have run their course . . . finality acquires an added
moral dimension.” Calderon, 523 U.S. at 556. “Only with
an assurance of real finality can the State execute its
moral judgment in a case” and “the victims of crime
move forward knowing the moral judgment will be
carried out.” Id. The State should be allowed to pursue
its “strong interest in enforcing its criminal judgments
without undue interference from the federal courts.”
Crutsinger v. Davis, 936 F.3d 265, 273 (5th Cir. 2019)
(citations and internal quotations omitted).
Broadnax has already passed through the state and
federal collateral review process. This proceeding
derives from his fourth state habeas application. He has
filed a half-dozen certiorari petitions. The public’s
interest is not advanced by postponing Broadnax’s
execution, and the State opposes any action that would
37
cause further delay. Martel v. Clair, 565 U.S. 648, 662
(2012) (“Protecting against abusive delay is an interest
of justice.”) (emphasis in original).
CONCLUSION
For the forgoing reasons, Broadnax’s petition for a
writ of certiorari should be denied. Moreover, the State’s
strong interest in the timely enforcement of Broadnax’s
death sentence is not outweighed by the unlikely
possibility that Broadnax’s petition will be granted.
Thus, Broadnax’s application for a stay should be denied
too.
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
BRENT WEBSTER
First Assistant Attorney
General
JOSH RENO
Deputy Attorney General for
Criminal Justice
TOMEE M. HEINING
Chief, Criminal Appeals
Division
38
STEPHEN HOFFMAN*
Deputy Chief, Criminal
Appeals Division
P.O. Box 12548
Austin, Texas 78711-2548
(512) 936-1400
stephen.hoffman@oag.texas.gov
*Counsel for Respondent
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.