Federal district courts have been inclined to this view as well. See, e.g., United States v. Robertson, No. 17-cr-02949, 2020 WL 85134, at *10 (D.N.M. Jan. 7, 2020) (unpublished) (finding that a witness's "apparent familiarity with [the defendant] prior to the shooting" supported reliability); Bell v. Epps, No. 3:04-cv-212, 2008 WL 2690311, at *16 (N.D. Miss. June 20, 2008) (unpublished), aff'd, 347 F. App'x 73 (5th Cir. 2009) (distinguishing between a case where the witness "knew of [the defendant] through their mutual friends" before they met and "spent several hours with [the defendant] on the day [that] they met," and "a case where a witness met a defendant on the street in passing with no indication that his identification of this stranger would later be important"); Hernandez v. Artus, No. 09-cv-05694, 2020 WL 2769404, at *13 (E.D.N.Y. May 28, 2020) (unpublished) (finding that, although " 'identification of strangers is proverbially untrustworthy,' [t]he trial and pre-trial record d[id] not warrant these concerns" because the witness knew the defendant (quoting Wade, 388 U.S. at 228, 87 S.Ct. 1926)); Brown v. Kernan, No. C-06-04194, 2009 WL 2030347, at *10 (N.D. Cal. July 9, 2009) (unpublished) (finding that "the risk of possible misidentification was low because . . . the two witnesses were acquainted with [the defendant] from previous drug-related encounters and could recognize him more readily than
” Bell v. Epps, No. CIV.A. 3:04CV212-B, 2008 WL 2690311, at *73 (N.D. Miss. June 20, 2008), aff'd in part, 347 Fed.Appx. 73 (5th Cir. 2009). Mississippi's contemporaneous objection rule is an independent and adequate state ground foreclosing federal review.
That the state court reviewed this claim “for plain error review does not vitiate this bar.” Bell v. Epps, No. CIV.A. 3:04CV212-B, 2008 WL 2690311, at *73 (N.D. Miss. June 20, 2008), aff'd in part, 347 Fed.Appx. 73 (5th Cir. 2009) (collecting cases). Scott has not demonstrated cause and prejudice, or that a fundamental miscarriage of justice would occur if this claim was not considered.
The mere fact that the strategy proved unsuccessful is not evidence that counsel performed deficiently. See Bell v. Epps, No. 08-70031, 347 F. App'x 73, 79 (5th Cir. 2009) (unpublished) (holding that reviewing courts must make "every effort to account for the distorting effect of hindsight on ultimately unsuccessful trial decisions") (quoting Strickland, 466 U.S. at 689). Furthermore, given the trial strategy, the evidence would not have supported a verdict of manslaughter and therefore the agreed-upon exclusion of the responsive verdict of manslaughter would have been proper.
¶135. Powers likens Juror Bond's situation to the facts in United States v. Scott, 854 F.2d 697 (5th Cir. 1988)-a case "on all fours," he maintains-and Bell v. Epps, No. 3:04 cv 2128, 2008 WL 2690311 (N.D. Miss. June 20, 2008), aff'd in part, 347 Fed.Appx. 73 (5th Cir. 2009). In Scott, the Fifth Circuit held that juror bias required reversal.
On September 28, 2009, the Fifth Circuit Court of Appeals affirmed the denial of federal habeas relief on those issues "on which the district court granted a COA." Bell v. Epps, 347 Fed.Appx. 73, 80 (5th Cir. 2009). On November 29, 2010, for the third time, the United States Supreme Court denied relief to Bell.