Opposition Brief — James Garfield Broadnax, Petitioner v. Texas

Supreme Court briefApr 27, 2026

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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.

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Opposition Brief — James Garfield Broadnax, Petitioner v. Texas | Frix