BELL v. EPPS

Full title: FREDERICK BELL PETITIONER v. CHRISTOPHER EPPS, ET AL. RESPONDENTS

Court: United States District Court, N.D. Mississippi, Western Division

Date published: Jun 18, 2008

CIVIL ACTION NO.: 3:04CV212-B (N.D. Miss. Jun. 18, 2008)

Opinion

CIVIL ACTION NO.: 3:04CV212-B.

June 18, 2008

MEMORANDUM OPINION

NEAL BIGGERS JR., Senior District Judge

Petitioner Frederick Bell filed the instant petition for writ of habeas corpus under 28 U.S.C. § 2254 seeking to challenge his otherwise final conviction and sentence of death for capital murder.¹

1 Docket entry no. 1

Factual Background and Procedural History

Between the hours of 1:00 and 2:00 p.m. on May 6, 1991, Robert C. "Bert" Bell (hereinafter "Bert" Bell) was shot and killed at Sparks' Stop-and-Go, a rural grocery store in Gore Springs, Mississippi. Gore Springs is located in Grenada County. On May 7, 1991, Petitioner was arrested in Memphis Tennessee, and charged with an unrelated murder. ( See Trial Tr. Vol. 3, 103).² Also arrested in Memphis on that date were Anthony Doss, Petitioner's co-defendant, Frank Coffey, and Bernard Gladney. ( See Ex. D to Pet. Memo, Aff. of Bernard Gladney). Petitioner was interviewed in Memphis about the Grenada County murder on May 9, 1991, by James "Buster" Grantham, an investigator with the Grenada County Sheriff's Department, and Chief Deputy Bruce Partridge. Anthony Doss and Frank Coffey were also interviewed at that time. ( See, e.g., Trial Supp. Vol. 1, 30-31, 34). Petitioner and Doss were indicted on July 19, 1991, for the murder of Bert Bell during the commission of an armed robbery. ( See Trial Tr. Vol. 1, 9). Leland H. Jones, III, was appointed to represent Petitioner on September 29, 1992. ( See Trial Tr. Vol. 1, 12). Doss was appointed different counsel. Pre-trial motions were heard upon counsels' request on November 30, 1992, the date trial was originally set, before Judge Clarence E. Morgan, Jr. ( See Trial Supp. Vol. 1, 2).³ At the hearing, counsel for Doss stated that he joined in all the motions filed by Petitioner's counsel.⁴ ( See Trial Supp. Vol. 1, 4).

Prior to the hearing on pre-trial motions, Petitioner had pleaded guilty to second-degree murder in Tennessee for a killing that occurred on May 6, 1991, subsequent to Bert Bell's murder. ( See, e.g., Trial Tr. Vol. 4, 298). The State and defense represented to the trial court at the motions hearing that they had agreed that the State would not introduce evidence of Petitioner's prior convictions during the guilt phase of the trial unless the defense opened the door to such questioning. ( See Trial Supp. Vol. 1, 3). The trial court asked for clarification regarding the parameters of the stipulation entered into between the prosecution and defense counsel. The prosecutor stated evidence would be presented that "an individual was murdered in Memphis and shot, I believe, 18 times. These two Defendants have both pled guilty to second-degree murder in those cases and the actual facts of that case up there is what we're agreeing not to go into in the case in chief on the guilt phase." (Trial Supp. Vol. 1, 15). Counsel for both defendants agreed to that characterization. ( See Trial Supp. Vol. 1, 15).

Doss' defense counsel, joined by Petitioner's counsel, moved for funds to hire an investigator. ( See Trial Supp. Vol. 1, 16-17). The trial court noted that the defendants had been given adequate preparation for trial and should have had the motion heard earlier, as the trial date had been set for some sixty days. ( See Trial Supp. Vol. 1, 18). The court nonetheless determined that an investigator should be appointed to assist the defendants due to the severity of the penalty sought by the State. ( See Trial Supp. Vol. 1, 19). Kelvin Winbush, a captain-investigator with the Winona Police Department, gave testimony that he would be able to work as an investigator in the case for both defendants, and the trial court appointed Mr. Winbush as an investigator for both Petitioner and Doss. ( See Trial Supp. Vol. 1, 19-20, 25). Doss' counsel moved the trial court to appoint a forensic expert to determine which of the two weapons linked to the crime actually caused Bert Bell's death, which the trial court overruled. ( See Trial Tr. Supp. Vol. 1, 25-26). After hearing the State's argument as to why the case should not be continued to allow for investigation, the trial court continued the case until January 26, 1993, and set December 26, 1992, as the final date for filing preliminary motions. ( See Trial Supp. Vol. 1, 23-24).

On December 28, 1992, Judge Clarence E. Morgan, Jr., called Petitioner and Doss' case to hear motions, and neither of defendants' counsel was present. ( See Trial Supp. Vol. 1, 70). On January 26, 1993, the day Petitioner's trial began, the trial court granted a motion for severance. ( See Trial Tr. Vol. 1, 181). Petitioner's trial was held in the Circuit Court of Grenada County from January 26, 1993, to January 27, 1993, with Judge James C. Sumner presiding, as Judge Morgan died on December 29, 1992. ( See Trial Supp. Vol. 1, 72-73).

No testimony was given at trial about what actually happened inside Sparks' Stop-and-Go on May 6, 1991, during the time Bert Bell was murdered. The State presented the testimonies of Frank Coffey, who was indicted in this case as an accessory after the fact, and Robert James, another individual present moments before the shooting, to provide a narrative of what occurred on that day. At trial, the State presented evidence that on the afternoon of May 6, 1991, Frederick Bell, Anthony Doss, Robert Kennedy James, and Frank Coffey left Coffey's house to go to Sparks' Stop-and-Go. ( See Trial Tr. Vol. 4, 188-190, testimony of Robert James; Trial Tr. Vol. 4, 208, testimony of Frank Coffey). The group bought some chips and beer at the store, and then they sat outside at a picnic table. ( See Trial Tr. Vol. 4, 209). While outside, Bell stated he needed some money to go to Memphis, and he showed the group a .22 caliber pistol that he had in his possession. ( See Trial Tr. Vol. 4, 192; 209-10). Doss also had a gun at that time. ( See Trial Tr. Vol. 4, 192, 210). James and Coffey testified that they left the scene as Bell and Doss went into the store, but that they heard gunshots and yelling moments later. ( See Trial Tr. Vol. 4, 192; 210). Doss and Bell caught up with James and Coffey and showed them a .38 caliber pistol they had taken from the store, along with a box of bullets and a money bag. ( See Trial Tr. Vol. 4, 194; 211-12). Petitioner told James and Coffey that he shot Bert Bell, and Coffey and Doss prevented Bell from carrying out a threat to harm James. ( See Trial Tr. Vol. 4, 195-96; 211-13). Later the same day, Bernard Gladney arrived in Gore Springs and took Bell, Doss, and Coffey to Memphis in Gladney's vehicle. ( See Trial Tr. Vol. 4, 214). At the house in Memphis where Petitioner was later found, two guns were recovered, and a third gun was found in Gladney's vehicle. ( See Trial Tr. Vol. 3, 138). Ultimately, Petitioner was arrested and charged with the murder of Bert Bell. Petitioner maintained throughout trial that he was in Memphis on the day of Bert Bell's murder, though there were no corroborating witnesses. ( See Trial Tr. Vol. 4, 259-68). In addition to the testimonies of James and Coffey, James' sister and Coffey's girlfriend testified that they saw Petitioner with the other men in Grenada County on the day of the murder. ( See Trial Tr. Vol. 4, 269-74).

James Shelby Sparks, the owner of Sparks' Stop-and-Go, testified that a .38 caliber gun, a box of shells, and a money bag were taken from the store during the robbery that resulted in Bert Bell's death. ( See Trial Tr. Vol. 4, 154-55). Dr. Steven Hayne, qualified by the court as an expert in the field of forensic pathology, testified as to the autopsy performed on Bert Bell. ( See Trial Tr. Vol. 4, 225-241). Dr. Hayne testified that Bert Bell received a total of twelve gunshot wounds: three wounds to the forehead, four to the neck area, a single wound through the right chest, a single wound through the left chest, a single wound to the right hand, and two wounds to the left hand. ( See Trial Tr. Vol. 4, 226-27). Dr. Hayne testified that the wounds to the head were of small caliber, and only one of those shots was lethal. ( See Trial Tr. Vol. 4, 228). The wounds to the chest were made from large caliber bullets that were retrieved from the end of the wound tracts during autopsy. ( See Trial Tr. Vol. 4, 230). Dr. Hayne testified it was his medical opinion that Bell died from one wound to the left forehead, one wound to the right chest, and one wound to the left chest. ( See Trial Tr. Vol. 4, 241).

John Michael Allen, an expert in the field of firearm ballistics analysis, testified that some of the bullets removed from Bert Bell's body were fired from the .38 caliber revolver recovered in Memphis, Tennessee. ( See Trial Tr. Vol. 4, 249-50). He testified that the smaller caliber bullets removed from Bert Bell's body had characteristics similar to the .22 caliber weapon linked to the crime. ( See Trial Tr. Vol. 4, 250).

Frederick Bell was the only defense witness to testify during the guilt phase of the trial. Petitioner testified that he had been at his grandmother's house in Memphis, Tennessee, on the day of the murder, and that he had been there for approximately three weeks prior. ( See Trial Tr. Vol. 4, 260). He testified that he saw Coffey and Doss around 7:00 or 8:00 p.m. on May 6, 1991, and that he hid two guns for Doss that night. ( See Trial Tr. Vol. 4, 260-61). The State presented two rebuttal witnesses, each of whom testified they saw Petitioner in Grenada County on May 6, 1991. ( See Trial Tr. Vol. 4, 269-74). The jury subsequently found Petitioner guilty of capital murder, and following a sentencing hearing, the jury found that Petitioner had a culpable intent to murder Bert Bell. ( See Trial Tr. Vol. 2, 240). The jury found three aggravating factors to exist, and they found insufficient mitigating circumstances to outweigh the aggravating circumstances. ( See Trial Tr. Vol. 2, 240). Petitioner was sentenced to death. ( See Trial Tr. Vol. 2, 240).

The Mississippi Supreme Court denied Petitioner's appeal of his conviction and sentence. Bell v. State, 725 So. 2d 836 (Miss. 1998) (" Bell I"), cert denied, 526 U.S. 1122, 119 S. Ct. 1777, 143 L. Ed. 2d 805 (1999). Petitioner's application for post-conviction relief, which alleged the ineffectiveness of trial counsel, was denied by the Mississippi Supreme Court on May 20, 2004. See Bell v. State, 879 So. 2d 423 (Miss. 2004) (" Bell II"), cert denied, 543 U.S. 1155, 125 S. Ct. 1301, 161 L. Ed. 2d 122 (2005). Petitioner filed the instant petition for writ of habeas corpus in this Court on November 22, 2004. On May 23, 2005, the Court granted Petitioner's request to amend the petition, requiring the amended petition be filed by August 22, 2005. No amended petition was filed or request for an extension made. On August 31, 2006, Petitioner moved the Court to amend the petition to include a claim that he is mentally retarded and ineligible for execution pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). Finding that the claim had not been presented in State court and was otherwise time-barred, the Court denied the motion by order dated December 1, 2006.⁵

5 The Court notes that Petitioner had to file his Atkins claim within one year of June 20, 2002, the date Atkins was handed down, or within one year of the date the claim could have first been discovered with the exercise of due diligence. See 28 U.S.C. 2244(d)(1)(C) (D).

Applicable Standard

This petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 324-26, 117 S. Ct. 2059, 2062-63, 138 L. Ed. 2d 481 (1997) (AEDPA applies to all federal habeas applications filed on or after April 24, 1996). Pursuant to the AEDPA's scope of review, habeas corpus relief cannot be granted in connection with any claim adjudicated on the merits in State court proceedings unless that adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established United States Supreme Court precedent; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the presented evidence. See Schriro v. Landrigan, ___ U.S. ___, 127 S. Ct. 1933, 1939-40, 167 L. Ed. 2d 836 (2007); Wiggins v. Smith, 539 U.S. 510, 520, 123 S. Ct. 2527, 2534, 156 L. Ed. 2d 471 (2003); and 28 U.S.C. § 2254(d)(1) (2). The factual findings of the State court are presumed correct, and Petitioner bears the burden of rebutting the presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

The "contrary to" and "unreasonable application" clauses of 28 U.S.C. § 2254(d) have been held to have independent meanings. See, e.g., Bell v. Cone, 535 U.S. 685, 694, 122 S. Ct. 1843, 1850, 152 L. Ed. 2d 914 (2002); and Penry v. Johnson, 532 U.S. 782, 792, 121 S. Ct. 1910, 1918, 150 L. Ed. 2d 9 (2001). Federal habeas relief may be granted under the "contrary to" clause where the State court (1) arrives at a conclusion opposite that reached by the Supreme Court on a question of law; or (2) decides a case differently than the Supreme Court on a set of materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 405, 120 S. Ct. 1495, 1519, 146 L. Ed. 2d 389 (2000). Under the "unreasonable application" clause, a federal court may grant relief where the State court applies the correct legal principle to the facts in an unreasonable manner. See id. at 407-08, 120 S. Ct. at 1520; see also Brown v. Payton, 544 U.S. 133, 141, 125 S. Ct. 1432, 1439, 161 L. Ed. 2d 334 (2005). Whether a decision is "unreasonable" is an objective inquiry, and it does not turn on whether the decision is merely incorrect. See Schriro, ___ U.S. at ___, 127 S. Ct. at 1939 ("The question under the AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable — a substantially higher threshold."); Williams, 529 U.S. at 410-11, 120 S. Ct. at 1522; Morrow v. Dretke, 367 F.3d 309, 313 (5^th Cir. 2004) (habeas relief merited where state decision both incorrect and objectively unreasonable).

Habeas relief does not generally lie for rules of constitutional law which have not been announced or that were announced after the challenged conviction became final on direct review. See Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1075, 103 L.Ed.2d 334 (1989). A new rule is not retroactively applied unless the United States Supreme Court holds the rule to be retroactive. See Tyler v. Cain, 533 U.S. 656, 663, 121 S. Ct. 2478, 2482, 150 L. Ed. 2d 632 (2001). It is a violation of the principles of Teague for a federal court to create new constitutional rules on habeas review. See Wheat v. Johnson, 238 F.3d 357, 361 (5^th Cir. 2001).

A petitioner must exhaust his remedies in State court prior to seeking federal habeas relief. See Martinez v. Johnson, 255 F.3d 229, 238 (5^th Cir. 2001); Wilder v. Cockrell, 274 F.3d 255, 259 (5^th Cir. 2001); 28 U.S.C. § 2254(b)(1). A petitioner has exhausted his claim when he has fairly presented the claim for which he seeks relief to the highest court of the State. See Morris v. Dretke, 379 F.3d 199, 204 (5^th Cir. 2004). The federal claims presented for habeas relief must be the substantial equivalent of those presented to the State court in order to satisfy the requirement of fair presentation. See Morris, 379 F.3d at 204-05; Fisher v. Texas, 169 F.3d 295, 302 (5^th Cir. 1999). A claim is not exhausted for purposes of federal habeas review if a petitioner presents the federal court with different legal theories or factual claims than those pursued in State court. See Wilder, 274 F.3d at 259 ("[W]here petitioner advances in federal court an argument based on a legal theory distinct from that relied upon in the state court, he fails to satisfy the exhaustion requirement."); Finley v. Johnson, 243 F.3d 215, 219 (5^th Cir. 2001). A federal court may not grant federal habeas relief on an unexhausted claim, but relief may be denied on an unexhausted claim. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."); see also Mercadel v. Cain, 179 F.3d 271, 276 (5^th Cir. 1999).

Where a petitioner fails to exhaust his State remedies, but it is clear that the State court to which he would return to exhaust the claim would find the claim procedurally barred, the claim is procedurally defaulted for purposes of federal habeas corpus relief. See, e.g., Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S. Ct. 2546, 2557 n. 1, 115 L. Ed. 2d 640 (1991); Finley v. Johnson, 243 F.3d 215, 220 (5^th Cir. 2001); Sones v. Hargett, 61 F.3d 410, 416 (5^th Cir. 1995). Likewise barred from federal habeas review are claims that the State court held procedurally barred on review on the basis of independent and adequate State law grounds. See, e.g., Coleman, 501 U.S. at 729-30, 111 S. Ct. at 2254 ("The doctrine applies to bar federal habeas claims because the prisoner had failed to meet a state procedural requirement. In these cases, the state judgment rests upon independent and adequate state procedural grounds."); Wainwright v. Sykes, 433 U.S. 72, 87-88, 97 S. Ct. 2497, 2506-07, 53 L. Ed. 2d 594 (1977). In order to receive federal habeas review of procedurally defaulted claims, Petitioner must demonstrate "`cause' for the default and `prejudice attributable thereto,' or demonstrate that failure to consider the federal claim will result in a `fundamental miscarriage of justice.'" Coleman, 501 U.S. at 749-50, 111 S. Ct. at 2564-65 (internal citations omitted).

In order to demonstrate cause, a petitioner must show "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 2645, 91 L. Ed. 2d 397 (1986). Prejudice may be demonstrated by showing that the errors "worked to [the petitioner's] actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Id. at 494, 106 S. Ct. at 2648 (internal quotations omitted). If a petitioner is unable to demonstrate cause and prejudice, he may obtain review of his claim by demonstrating that the application of the procedural bar would result in a miscarriage of justice because he is actually innocent of the crime. See House v. Bell, 547 U.S. 518, 537-38, 126 S. Ct. 2064, 2076-77, 165 L. Ed. 2d 1 (2006). An allegation of actual innocence requires that a petitioner support his claim "with new, reliable evidence that was not presented at trial and show that it was more likely than not that no reasonable juror would have convicted him in light of the new evidence." Fairman v. Anderson, 188 F.3d 635, 655 (5^th Cir. 1999) (citing Schlup v. Delo, 513 U.S. 298, 327, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995)).

Where a State court holds a claim barred on independent and adequate State law grounds and reaches the merits of the claim in the alternative, the bar imposed by the State court is not vitiated. See Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S. Ct. 1038, 1044, n. 10, 103 L. Ed. 2d 308 (1989); Hughes v. Dretke, 412 F.3d 582, 592-93 (5^th Cir. 2005) (alternate holding on merits by state court did not preclude imposition of bar on federal habeas review for petitioner's failure to contemporaneously object on federal constitutional grounds in State court); Thacker v. Dretke, 396 F.3d 607, 614 (5^th Cir. 2005) (procedural bar imposed for petitioner's failure to contemporaneously object and preserve claim for review not circumvented by State court's alternative holding that constitutional claim lacked merit).

Finally, the Court notes that the AEDPA imposes the burden of obtaining an evidentiary hearing in federal court on the petitioner, and it limits the circumstances in which an evidentiary hearing may be granted for those petitioners who fail to diligently seek to establish the factual bases for their claims in state court. See Williams, 529 U.S. at 433-34, 120 S. Ct. at 1489 (prisoners at fault for deficiency in state court record must satisfy heightened standard to obtain evidentiary hearing); Clark v. Johnson, 202 F.3d 760, 765-66 (5th Cir. 2000); McDonald v. Johnson, 139 F.3d 1056, 1059 (5th Cir. 1998); 28 U.S.C. § 2254(e)(2). Even where an evidentiary hearing is not precluded due to a petitioner's lack of diligence, the decision to grant an evidentiary hearing is discretionary. See, e.g., Clark, 202 F.3d at 765-66. In order to be entitled to an evidentiary hearing in federal court, a petitioner must demonstrate that he was denied a "full and fair hearing" in State court and persuade the Court that his allegations, if true, would warrant relief. Id. at 766 (citations omitted).

With the foregoing standards in mind, the Court turns to Petitioner's specific claims for relief.

I. Ineffective Assistance of Counsel ⁶

6 Petitioner notes that his trial attorney, Leland H. Jones, III, was later disbarred for crimes involving dishonesty. (Pet. Memo 8, 75; Pet. Reply 2). See also Mississippi Bar v. Jones, 904 So. 2d 1026 (Miss. 2004).

The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to the effective assistance of counsel. See McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S. Ct. 1441, 1449 n. 14, 25 L. Ed. 2d 763 (1970). A federal habeas petitioner's claim that he was denied the effective assistance of counsel at trial is measured by the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To prevail on a claim of ineffective assistance of counsel, Petitioner must establish that (1) his trial counsel's performance was so deficient that it cannot be said that he was functioning as "counsel" within the meaning of the Sixth Amendment, and (2) the deficient performance prejudiced his defense. See id. at 687, 104 S.Ct. at 2064; see also Boyle v. Johnson, 93 F.3d 180, 187 (5^th Cir. 1996) (ineffective assistance of counsel claims analyzed under Strickland framework).

Where an attorney's representation falls below an objective standard of reasonableness as determined by professional norms, that performance is deficient. See Rompilla v. Beard, 545 U.S. 374, 380, 125 S. Ct. 2456, 2462, 162 L. Ed. 2d 360 (2005); Strickland, 466 U.S. at 687-89, 104 S. Ct. at 2064-65. Courts scrutinizing counsel's performance assume a "strong presumption" that the assistance was adequate and "that the challenged conduct was the product of reasoned trial strategy." West v. Johnson, 92 F.3d 1385, 1400 (5^th Cir. 1996) (citation omitted). This presumption may be overcome if a petitioner can identify acts or omissions of counsel that were not the result of a reasoned, professional judgment. See Wilkerson v. Collins, 950 F.2d 1054, 1065 (5^th Cir. 1992). However, even unreasonable errors by counsel do not warrant relief if the error did not effect the judgment. See Strickland, 466 U.S. at 691, 104 S. Ct. at 2065. Rather, actual prejudice results from the errors of counsel when there exists a reasonable probability that, but for the error, the result of the proceeding would have been different. Id. at 694, 104 S. Ct. at 2068. A reasonable probability is one sufficient to undermine confidence in the outcome. Id. The failure to prove either deficient performance by counsel or actual prejudice as a result of counsel's actions or omissions defeats a claim of ineffective assistance. See Strickland, 466 U.S. at 397, 104 S. Ct. at 2069; Green v. Johnson, 160 F.3d 1029, 1035 (5^th Cir. 1998); Smith v. Puckett, 907 F.2d 581, 584 (5^th Cir. 1990). As claims of ineffective assistance of counsel involve mixed questions of law and fact, claims previously considered and rejected by the State court may be overturned only if "contrary to, or involv[ing] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." See Strickland, 466 U.S. at 698, 104 S. Ct. at 2070; 28 U.S.C. § 2254(d)(1).

Counsel's failure to preserve a claim in State court can in some circumstances constitute cause sufficient to overcome a procedural default. See Coleman, 501 U.S. at 753-54, 111 S. Ct. at 2567. A petitioner claiming ineffective assistance of counsel for the purpose of having the underlying substantive claim reviewed on its merits must ordinarily have presented the ineffective assistance of counsel claim independently in State court before it may be argued as cause to excuse a procedural default. See Edwards v. Carpenter, 529 U.S. 446, 451, 120 S. Ct. 1587, 1591, 146 L. Ed. 2d 518 (2000).

At the outset, the Court notes that many of Petitioner's claims of the ineffective assistance of his trial counsel relate to what Petitioner alleges was the failure of counsel to investigate and develop Petitioner's alibi defense. Petitioner testified at trial that he was in Memphis, Tennessee, at the time of the murders, and that James and Coffey were lying to the trial court in exchange for leniency. Petitioner alleges that numerous witnesses were available to corroborate his alibi defense, but that trial counsel failed to investigate and present these witnesses. Petitioner has attached to his memorandum the affidavits and statements of the individuals he maintains could have corroborated his testimony. ( See Ex. D, Aff. of Bernard Gladney; Ex. E, Aff. of Lonnie Bell; Ex. F, Aff. of Tonja Glaspie; Ex. G, Aff. of Myra Bell; Ex. H, Aff. of Cindy Arnold; Ex. I, Aff. of Essie Jefferson; Ex. BB, Aff. of Leslie Freeman; Ex. CC, Aff. of Terry Jones; Ex. DD, Aff. of Darrell Flowers).

A. Guilt/Innocence Phase Minimum Qualifications

Petitioner maintains that court-appointed counsel, Leland H. Jones, III, rendered ineffective assistance at the guilt phase of his trial. (Pet. Memo 13). First, he contends that trial counsel did not meet the minimum standards of qualification under the American Bar Association's Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases. (Pet. Memo 15, and Ex. A) (citing American Bar Association, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (1989) (hereinafter "ABA Guidelines").⁷ Asserting that the ABA Guidelines are the prevailing norms of practice by which courts evaluate counsel's performance, Petitioner argues that his attorney fell short of the minimum standards of required care in Petitioner's defense. (Pet. Memo 16). Petitioner also contends that the ABA Guidelines require the appointment of two qualified attorneys in a death penalty case, and that trial counsel failed to request the appointment of a second attorney. (Pet. Memo 17, citing ABA Guideline 21).

7 ABA Guideline 5.1 establishes theat lead counsel assignments should be distributed to attorneys who "are experienced and active trial practitioners with at least five years litigation experience in the field of criminal defense; and . . . have prior experience as lead counsel in no fewer than nine jury trials of serious and complex cases which were tried to completion, as well as prior experience as lead counsel or co-counsel in at least one case in which the death penalty was sought."

Petitioner supports his claim by noting that his attorney had never tried a capital murder case prior to Petitioner's trial, save a self-defense murder case in 1988. (Pet. Memo 18). Petitioner also notes that counsel did not present pre-trial motions until the day of trial, and he failed to appear at the motions hearing on December 28, 1992. (Pet. Memo 19). Petitioner contends that trial counsel's representation of two other capital murder defendants at the same time he was representing Petitioner led him to be overworked and unable to devote the time necessary to investigating and preparing Petitioner's case. (Pet. Memo 20).⁸

8 Petitioner's counsel represented William Holly, whose trial occurred in March, 1993, approximately one month after Petitioner was sentenced to death. See State v. Holly, 671 So. 2d 32 (Miss. 1996). Jones was also appointed as co-counsel for Jerome Smith on November 2, 1992. See State v. Smith, 724 So. 2d 280 (Miss. 1998). Both Holly and Smith were capital cases.

Respondents maintain that Petitioner's claim regarding trial counsel's qualifications was raised in State court only on State law grounds, and that it is barred from federal habeas review. (R. Memo 37-42). Respondents further argue that the "two attorneys" argument was never presented in State court and is barred. (R. Memo 42). Respondents assert that the claim is nevertheless foreclosed by Bell v. Watkins, 692 F.2d 999, 1008-09 (5^th Cir. 1982), where the court determined that the Constitution does not require the appointment of two attorneys. (R. Memo 43).

Respondents also assert that trial counsel's heavy caseload was not raised as a federal constitutional claim in State court, and that Petitioner has expanded the claim in his federal habeas proceedings. (R. Memo 44). Respondents argue that Petitioner has failed to identify specific instances where counsel was deficient, and that he has no support for his claim that trial counsel's caseload denied him of the effective assistance of counsel. (R. Memo 45). Respondents note that Petitioner was granted a continuance on the day of trial, such that Petitioner was not prejudiced by the failure to have pre-trial motions heard earlier. (R. Memo 45). Respondents also note that Petitioner's case was the first of three death penalty cases counsel tried that year, rendering it unlikely that the other cases interfered with counsel's representation of Petitioner. (R. Memo 46).

On post-conviction review, the Mississippi Supreme Court considered Petitioner's ineffective assistance claims under the Strickland standard. See Bell II, 879 So. 2d 423, 430-31. Prior to entering into a discussion of the claims, the court noted that "[trial counsel] Jones has represented numerous persons charged with criminal offenses at both the trial and appellate court levels, including several capital offense cases." Id. at 431. The court determined that Petitioner's allegation that trial counsel lacked the experience necessary to try a capital case pursuant to Mississippi Rule of Appellate Procedure ("MRAP") 22(d) was unmeritorious. Id. at 432. The court found that MRAP 22(d) governs the qualifications for attorneys in post-conviction proceedings and was not adopted until after Petitioner's trial and direct appeal were completed. Id. The court determined that Petitioner's argument was essentially a request for the court to apply a heightened standard to his trial counsel, which was contrary to the presumption of reasonable assistance. Id. Despite acknowledging that inexperience does not, in and of itself, render an attorney's performance ineffective, the court noted that Petitioner's attorney had been involved in two appeals involving murder convictions prior to Petitioner's direct appeal. Id. The court also considered Petitioner's argument that trial counsel's juggling of three death penalty cases simultaneously rendered counsel unable to properly defend Petitioner. Id. The court found that Petitioner failed to show specific instances where his attorney's performance suffered due to the workload and found the argument without merit. Id. at 432-33.

Petitioner has never presented the State court with the claim that trial counsel was unqualified under the ABA Guidelines to represent Petitioner, or that trial counsel performed deficiently in failing to seek co-counsel. These claims were not exhausted in State court. See Wilder v. Cockrell, 274 F.3d 255, 259 (5^th Cir. 2001) (petitioner advancing in federal court argument based on legal theory distinct from that presented in state court fails to satisfy the exhaustion requirement). Although these claim have never been presented in State court, they may be considered exhausted for purposes of federal habeas review, as Petitioner would now be barred from bringing the claims in State court. See, e.g., Finley v. Johnson, 243 F.3d 215, 220 (5^th Cir. 2000); see also Miss. Code Ann. § 99-39-27(9) (dismissal of application for post-conviction relief is final judgment barring successive applications) and Miss. Code Ann. § 99-39-5(2) (motion for post-conviction relief in capital case must be made within one year direct appeal made final). Accordingly, Petitioner's claims are procedurally defaulted for purposes of federal habeas review absent a showing of cause and prejudice, or that a fundamental miscarriage of justice will result if the bar is applied to Petitioner's claim. See Fisher v. Texas, 169 F.3d 295, 301 (5^th Cir. 1999). Petitioner does not attempt to argue why this claim was not presented in State court, and it is barred from review.

Even in the absence of a procedural bar, the Court would not find that these claims warrant relief. The Sixth Amendment does not require seasoned counsel, it requires effective counsel. See Riley v. Taylor, 277 F.3d 261, 306 (3^rd Cir. 2001) ("Finally, Riley cites trial counsel's inexperience and the fact that he spent only 14 hours preparing for the penalty phase of the [capital murder] trial. These facts are not comforting, but they do not in themselves establish that counsel was ineffective."); Yohey v. Collins, 985 F.2d 222, 228 (5^th Cir. 1993) (attorney can render effective assistance of counsel even if he has had little prior experience); Oritz v. Stewart, 149 F.3d 923, 933 (9^th Cir. 1998) (holding it "well-established that an ineffective assistance claim cannot be based solely on counsel's inexperience"); see also United States v. Cronic, 466 U.S. 648, 655, 104 S.Ct. 2039, 2050, 80 L.Ed.2d 657 (1984) ("Every experienced criminal defense attorney once tried his first criminal case."). Similarly, though it may be practice to appoint two attorneys in a capital case, such is not constitutionally required. See Bell v. Watkins, 692 F.2d 999, 1009 (5^th Cir. 1982) (appointment of two attorneys not dictated by Constitution); Hatch v. Oklahoma, 58 F.3d 1447, 1456 (10^th Cir. 1995) (equal protection rights of defendant not violated where he was denied appointment of co-counsel even though co-defendant was appointed co-counsel), overruled on other grounds by Daniels v. United States, 254 F.3d 1180, 1188 n. 1 (10^th Cir. 2001).

The United States Supreme Court has accepted the ABA standards as "guides to determining what is reasonable." Wiggins, 539 U.S. at 524, 123 S. Ct. at 2536-37. However, the ABA standards are "only guides," and "[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688-69, 104 S.Ct. at 2065. Petitioner has not demonstrated that there is a constitutional requirement that he be appointed experienced counsel and co-counsel. Petitioner is entitled to federal habeas relief only if he is "in custody pursuant to the judgment of a State Court . . . in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Petitioner's allegations that trial counsel was unqualified under the ABA Guidelines does not demonstrate specific error that would support his claims in the absence of a demonstration that trial counsel did not render an adequate performance.

In his State post-conviction proceedings, Petitioner attached to his petition an affidavit from post-conviction counsel who attested that the simultaneous juggling of three death penalty cases would prevent him from rendering effective assistance. See Bell II, 879 So. 2d at 432. Petitioner supports his argument that counsel was too overworked to render effective assistance in his federal habeas proceedings by noting that counsel failed to appear or otherwise present pre-trial motions until the day of trial. The Court notes that there is no explanation in the record as to why defense counsel was not present on the day preliminary motions were to be heard, nor is there an explanation as to why pre-trial motions had to be taken up the day of trial. If the Court were to assume that these failures by counsel fell below an objective standard of reasonableness, Petitioner would nonetheless be denied relief on his claim as he has not shown any resulting prejudice. The Court cannot presume deficient performance and resulting prejudice based on trial counsel's failure to appear and have motions timely heard. The trial court considered all pre-trial motions filed by Petitioner and granted a continuance to allow for further investigation and preparation. ( See Trial Supp. Vol. 1, 24). Therefore, trial counsel's simultaneous participation in three capital cases has not been shown to satisfy the Strickland standard, and thus, the decision of the Mississippi Supreme Court does not warrant relief under the AEDPA.⁹

9 Jones was appointed counsel for Petitioner on September 29, 1992, and judgment was entered in the instant case on January 26, 1993. The Court is unaware of when Jones was appointed to represent William Joseph Holly, but Holly was indicted on July 31, 1992, and was convicted on March 3, 1993. See Holly v. State, 671 So. 2d 32 (Miss. 1993). Jones was appointed to represent Jerome Pete Smith on November 12, 1992, and judgment was entered in that case on July 1, 1993. See Smith v. State, 724 So. 2d 280, 310 (Miss. 1998).

Failure to Secure Adequate Funds and Investigate

Petitioner maintains that his trial counsel performed ineffectively in failing to secure the funds necessary to hire an independent investigator, which required him to share an investigator with his co-felon, Anthony Doss. (Pet. Memo 21-22). While the trial court granted Petitioner the assistance of Kelvin Winbush as an investigator, the court required Petitioner and Doss, who claimed different defenses, to share the investigator. (Pet. Memo 22-23). Petitioner maintains that as he claimed Doss was the murderer of Bert Bell, it was critical to his defense that he be provided with an independent investigator. (Pet. Memo 23-24). Petitioner also argues that the investigation that was performed was inadequate, as the bill of investigator Kelvin Winbush records a total of eighty-nine hours spent investigating both cases, and almost one-quarter of that was spent in driving time. (Pet. Memo 24).

Petitioner also asserts that trial counsel failed to adequately investigate the case himself. Throughout trial, Petitioner's defense was that he was in Memphis, Tennessee, at the time Bert Bell was killed. Petitioner asserts that all of the trial testimony that placed him at the scene of the murder came from Frank Coffey, Robert McKinney James, Lelesia James, and Gerrydene Golliday, and that trial counsel failed to challenge their statements, despite the fact that all of the aforementioned were either implicated in the events surrounding the robbery/murder or were involved with those who were. (Pet. Memo 27, 39).

First, Petitioner argues that Robert James' identification of Petitioner was the result of an unnecessarily suggestive procedure conducted one week prior to Petitioner's extradition hearing, and that trial counsel was ineffective for failing to move to suppress the identification at both the preliminary hearing and at trial. (Pet. Memo 40-41).¹⁰ Second, Petitioner contends that trial counsel rendered ineffective assistance in failing to impeach Coffey's trial testimony by bringing out inconsistencies between his statements to police on May 7, 1991, and his trial testimony. (Pet. Memo 45-46). During Coffey's police interview on May 7, 1991, Coffey stated that Petitioner was in Memphis at the time of the murder, while he testified at trial that Petitioner was present outside of the Sparks' Stop-and-Go immediately before the murder. (Pet. Memo 45-46). Third, Petitioner asserts that trial counsel failed to elicit testimony to demonstrate the relationships that Lelesia James and Gerrydene Golliday had with James and Coffey. (Pet. Memo 47). Lelesia was James' sister and the mother of Doss' child, while Gerrydene was living with Coffey at the time and had a child by him. (Pet. Memo 47). Fourth, Petitioner cites at length an affidavit from Bernard Gladney, obtained May 14, 2006, to demonstrate that Gladney could have provided critical information to trial counsel implicating James as the triggerman who shot Bert Bell. (Pet. Memo 43-44 Ex. D).¹¹ Next, Petitioner argues trial counsel failed to obtain prior inconsistent statements given by Doss to be used at trial.¹² (Pet. Memo 39). Finally, Petitioner contends that trial counsel rendered ineffective assistance in failing to have the three prints lifted from the crime scene compared with James' prints, as one print matched Doss' and the other two prints could not be linked to Petitioner. (Pet. Memo 48).

10 Petitioner argues that one week prior to the extradition hearing, James was handed one photograph of Petitioner, and separate photographs of Doss and Coffey, who were already known to James. Petitioner maintains James was then asked to identify the men. (Pet. Memo 40).

11 Gladney was arrested along with Petitioner, Doss, and Coffey for an unrelated murder in Memphis, Tennessee, during the late hours of May 6, 1991. Gladney's affidavit states that during the time they were being held and awaiting trial for that crime, both Doss and Coffey each made statements to him that James had killed Bert Bell as part of a gang initiation. Gladney also states that they had all decided to turn State's evidence against Petitioner, who he attests was already in Memphis when the others arrived on May 6, 1991. ( See Pet. Memo, Ex. D).

12 Doss gave a statement to Memphis police on May 9, 1991, stating that Coffey shot Bert Bell, while Doss testified at his own trial that Petitioner shot Bert Bell. (Pet. Memo 39-40 Ex. J, K thereto).

In addition to the examples cited above, Petitioner maintains trial counsel failed to interview witnesses or otherwise investigate Petitioner's alibi defense, even though there was no physical evidence placing Petitioner at the scene of the crime. (Pet. Memo 29-30). Petitioner maintains that trial counsel failed to provide the State with its requested notice of potential alibi witnesses. (Pet. Memo 30). Petitioner, the sole witness in his defense, testified that he hid two weapons for Doss after Doss and Coffey arrived in Memphis, Tennessee, on May 6, 1991. (Pet. Memo 30-31). Petitioner argues that numerous witnesses were available to testify that Petitioner was already in Memphis at the time Bert Bell was murdered, and that trial counsel's failure to call these witnesses denied the jury an opportunity to determine Petitioner's credibility through corroborated testimony. (Pet. Memo 31 Aff. of Bernard Gladney, Ex. D; Aff. of Darrell Flowers, Ex. DD; Aff. of Lonnie Bell, Ex. E; Aff. of Leslie Freeman, Ex. BB; Aff. of Terry Jones, Ex. CC; Aff. of Tonja Glaspie, Ex. F; Aff. of Myra Bell, Ex. G; Aff. of Cindy Arnold, Ex. H; Aff. of Essie Jefferson, Ex. I). Petitioner asserts that his family members were not even aware that his trial had begun until a neighbor informed family members that the guilt phase of the trial had been completed. (Pet. Memo 39).

Respondents argue that Petitioner's claim is a combination of two claims presented in State court (1) trial counsel failed to secure adequate funds for an investigation, and (2) trial counsel failed to investigate critical aspects of the defense. (R. Memo 46). Respondents contend that Petitioner's claim relating to funds for an investigation does not warrant relief, as the Mississippi Supreme Court did not render a decision contrary to or unreasonably applying Strickland. (R. Memo 47). Respondents argue that Petitioner's second sub-claim is unexhausted, as Petitioner presented no affidavits in State court to support his alibi claim. (R. Memo 48-49). Without waiving the bar for Petitioner's failure to exhaust, Respondents assert that the affidavits are not credible. (R. Memo 51). Respondents first assert that Myra Bell submitted an affidavit that was attached to Petitioner's State post-conviction application that did not mention Petitioner being in Memphis on the day of the murder. (R. Memo 51 n. 15, see also Ex. I to PCR Pet., 1999-DR-01287-SCT). Respondents also argue that the affidavits filed for the first time in Petitioner's federal habeas proceedings also have defects (1) the affidavit of Cindy Arnold does not state Petitioner was in Memphis on May 6, 1991 (R. Memo 51); (2) Gladney's affidavit contradicts the testimony he gave at Petitioner's extradition hearing and otherwise omits reference to the two statements he gave to authorities admitting that he took Petitioner from Grenada County to Memphis on May 6, 1991¹³ (R. Memo 54-55); and (3) the statements of Leslie Freeman and Terry Jones are unsworn. (R. Memo 56).¹⁴

13 On cross-examination at the extradition hearing, Gladney stated he remembered giving two separate statements to authorities that he picked Petitioner up in Grenada County and took him to Memphis, Tennessee. ( See Pet. Memo, Ex. N, 6-8).

14 Respondents also note that the statement of Josephine Graham is unsworn. (R. Memo 51). Josephine Graham was the manager of a convenience store in Memphis, Tennessee, who Petitioner argues was never contacted by trial counsel. Petitioner maintains he visited the store between 2:00 and 3:00 p.m. on the day Bert Bell was murdered, and that Ms. Graham might have been able to provide surveillance video showing his presence at the time of the murder had she been contacted. The surveillance tapes have since been destroyed. ( See Pet. Memo 12 Ex. BB, D, and EE).

On post-conviction review, the Mississippi Supreme Court considered Petitioner's claim that trial counsel failed to secure funds for an investigation and found the issue without merit, as funds for an investigator were provided. See Bell II, 879 So. 2d at 433. The court also found that Petitioner's argument that funds should have been allowed for an independent investigation was without merit, as Petitioner merely made a speculative and unsupported argument that an earlier request for an investigator would have allowed a stronger defense. Id. The court also considered Petitioner's claim that trial counsel failed to "investigate critical aspects of the defense," which was brought as a separate claim on post-conviction review. The court noted that counsel has a duty to either make a reasonable investigation or a reasonable decision that further investigation is not necessary. See id. at 433-34. Specifically, the court considered Petitioner's argument that Bud McMillian should have been called as a witness at trial, as he could have supported Petitioner's alibi defense by testifying that he saw someone resembling Doss running from the store the day of the murders. Id. at 434. The court found Petitioner's argument "nonsensical," as Petitioner was attempting to use Mr. McMillian's testimony to establish alibi on the one hand and an alternate theory that Petitioner was merely present but not involved in the crime on the other. Id. The court otherwise noted that no affidavit from McMillian was procured, and that whether to call witnesses is a strategic decision that does not support a finding of ineffective assistance of counsel. Id. The court also found trial counsel could have made a strategic decision not to call Bernard Gladney to testify to corroborate Petitioner's alibi defense, as Gladney was serving a sentence of imprisonment for second degree murder at the time of trial and would have had little credibility with the jury. Id.

First, the Court notes that there is no evidence in the record that the investigator advanced Doss' interests above Petitioner's own interests, or that the fruits of the investigation served to prejudice Petitioner. The record does not yield a wealth of information concerning the investigation performed by Kelvin Winbush. No affidavit outlining his efforts was provided in State court or in these proceedings. However, the investigator submitted a time sheet to the trial court for services performed in State of Mississippi v. Frederick Bell, in which he claimed a total of eighty-nine hours spent in investigation of Petitioner's case, for a total bill of $2,362.00. ( See Trial Tr. Vol. 2, 183). The trial court ordered payment in the amount of $2,362.00 in Petitioner's case on February 1, 1993. ( See Trial Tr. Vol. 2, 246). Trial counsel's itemized time sheet contains at least six references to meetings with Mr. Winbush for scheduling, interviewing, and consultation purposes. ( See Trial Tr. Vol. 2, 255-262). The Court notes that Petitioner's argument on federal habeas review is essentially that he was denied effective investigative assistance, which he has failed to show is a clearly established constitutional right. Regardless, he has not shown trial counsel performed deficiently in failing to secure funds for an independent investigation, nor has he shown prejudice to his defense as a result of Mr. Winbush's retention.

While any alleged omissions in Mr. Winbush's investigation might not raise an ineffective assistance issue, trial counsel's actions based upon the information learned from Mr. Winbush is assuredly relevant to Petitioner's claim. Petitioner argues that trial counsel failed to adequately investigate and prepare his case. In State court, Petitioner argued that it was error for trial counsel to fail to (1) call Bud McMillian to testify; (2) use Doss' prior statement implicating Coffey as an accomplice to murder to support Petitioner's alibi defense; (3) utilize Bernard Gladney's extradition testimony to investigate evidence that would corroborate Petitioner's alibi defense; and (4) give notice to the State of potential alibi witnesses. ( See PCR Pet. 22-27). In his memorandum in support of his federal habeas petition, Petitioner presents arguments under the broader claim that trial counsel performed ineffectively in failing to investigate critical aspects of the case by failing to challenge the statements of witnesses. Next, Petitioner argues trial counsel failed to give notice to the State of potential alibi witnesses, thereby preventing their testimony had they been called to testify at trial. Finally, Petitioner presents nine affidavits¹⁵ in support of his claim that trial counsel failed to develop his alibi defense. In State court, Petitioner only argued that Bud McMillian and Bernard Gladney were potential witnesses whom trial counsel should have investigated and/or called to testify to support Petitioner's alibi defense.

15 The Court notes that two of the submissions are not affidavits, but signed statements. The Court only refers to the group of submitted statements as "affidavits" for purposes of addressing this claim.

Petitioner's arguments that trial counsel performed ineffectively in failing to challenge the statements of witnesses was not presented to the State court in the same posture as it is presented here. Petitioner never argued to the State court the issue of James' identification of Petitioner, counsel's failure to impeach Coffey, the relationship between all of the witnesses, and counsel's failure to have the prints taken from the crime scene compared to James' prints. Petitioner never argued to the State court that Bernard Gladney could provide testimony implicating James as the triggerman who shot Bert Bell. Additionally, the nine affidavits presented to this Court to support Petitioner's claim have never been presented in State court. The Court determines that Petitioner presents significantly new and material factual support for this claim in his federal habeas petition. By failing to present his arguments and affidavits to the State court, Petitioner deprived it of the opportunity to consider "all crucial factual allegations" when it rendered its decision. Morris v. Dretke, 379 F.3d 199, 205 (5^th Cir. 2004). Therefore, this Court is barred from considering the claim on federal habeas review. See, e.g., Anderson v. Johnson, 338 F.3d 382, 386 (5^th Cir. 2003) (new legal theories or factual claims in federal habeas petition that "fundamentally alter" claim render it unexhausted); Fisher v. State, 169 F.3d 295, 302 (5^th Cir. 1999) (petitioner required to present claims to state court prior to seeking federal habeas relief); Graham v. Johnson, 94 F.3d 958, 968 (5^th Cir. 1996) (presentation of material evidentiary support to previously asserted claim for first time in federal habeas renders claim unexhausted).

However, as Petitioner has no available redress in State court, Petitioner may obtain review of this claim upon a demonstration of cause for the default and resulting prejudice. See Martinez v. Johnson, 255 F.3d 229, 239 (5^th Cir. 2001); see also Miss. Code Ann. § 99-39-27(9) (successive petition bar) and Miss. Code Ann. § 99-39-5(2) (time bar). Petitioner argues that had counsel performed adequately, these affidavits and arguments would have been presented, and that this should excuse any default and allow consideration of the claims. (Reply 6-7).¹⁶ Petitioner cannot argue the ineffective assistance of trial counsel to overcome a bar imposed based on his failure to exhaust his claims, as these claims should have been brought during State post-conviction proceedings, where Petitioner was represented by different counsel. Petitioner offers no explanation as to why these facts and arguments were not developed during post-conviction proceedings. Petitioner does not argue, but the Court notes, that a petitioner may not assert a claim of ineffective assistance of post-conviction counsel, as there is no constitutional right to counsel during post-conviction proceedings. See, e.g., Murray v. Giarratano, 492 U.S. 1, 109 S. Ct. 2765, 106 L. Ed. 2d 1 (1989); Pennsylvania v. Finley, 481 U.S. 551, 555-56, 107 S. Ct. 1990, 1993, 95 L. Ed. 2d 539 (1987); Martinez v. Johnson, 255 F.3d 229, 240-41 (5^th Cir. 2001); 28 U.S.C. § 2254(i).

16 Petitioner does not attempt to argue that the new factual allegations and affidavits merely supplement his claim presented in State court. See Anderson, 338 F.3d at 386 (no dismissal required where evidence first presented in federal habeas does not fundamentally alter, but merely supplements, claims presented to state court).

Although Petitioner has failed to exhaust his claim that counsel rendered ineffective assistance in failing to investigate his defense, the Court is satisfied that, if it were to determine that these arguments merely supplemented the claim presented to the State court, Petitioner has not demonstrated an entitlement to relief on his claim. That is to say, Petitioner has not shown that he is entitled to a grant of habeas relief under the principles of Strickland, for the reasons that follow.

Petitioner argues that James' identification of Petitioner at both the preliminary hearing and at trial was the result of an overly suggestive identification procedure. He asserts that James had only first met Petitioner the day of the murder, and James was asked to identify Petitioner from three photographs only one week prior to Petitioner's extradition hearing. Petitioner maintains that the other two photographs were of Doss and Coffey, both of whom were already known to James. ( See Pet. Memo 76-77).

If a pre-trial identification is impermissibly suggestive, courts must examine the totality of the circumstances surrounding the identification to determine whether the suggestive nature of the procedure lead to "irreparable mistaken identification." Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 1972, 18 L. Ed. 2d 1199 (1967). In assessing whether there has been a substantial likelihood of misidentification, courts consider "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct 375, 382, 34 L. Ed. 2d 401 (1972). James' testimony at the extradition hearing was that he was handed three photographs and asked to identify the people in the pictures without law enforcement's suggestion as to who those persons might be. ( See Pet. Memo, Ex. N, 32-34). Petitioner has not demonstrated that the procedure employed was unduly suggestive, nor that there was a substantial likelihood of misidentification if it were. Although James did not know Petitioner personally prior to May 6, 1991, he knew of Petitioner through their mutual friends, Coffey and Doss. He also spent several hours with Petitioner on the day they met, and it is reasonable to assume that the events of May 6, 1991, would be rather memorable to James. This is not 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. James testified that he sat at a picnic table with Petitioner while Petitioner planned a robbery, that he listened to Petitioner confess a murder, and that he watched Petitioner brandish a weapon at him and threaten his life. At trial, Petitioner's counsel attempted to discredit James' identification of Petitioner by questioning James about the fact that James first met Petitioner on May 6, 1991, and that he had not seen him again until trial. (Trial Tr. Vol. 4, 200-01). Had counsel further questioned James in an attempt to demonstrate James could not have been certain about the identification of a person he had met only once, he would have likely elicited more comments from James about how frightened he had become when Petitioner threatened him. ( See Trial Tr. Vol. 4, 194-96). Trial counsel did not deficiently fail to challenge James' identification of Petitioner, and it is not reasonably probable that the trial court would have suppressed the identification had an objection been made.

Petitioner likewise fails to demonstrate he received ineffective assistance of counsel as a result of trial counsel's failure to bring out inconsistencies in Coffey's statements. On May 7, 1991, in two separate statements, Coffey stated to Memphis police that Petitioner was in Memphis, Tennessee, at the time of the murder. ( See Pet. Memo, Ex. L M). At trial, he testified that Petitioner planned and executed the robbery that resulted in Bert Bell's murder. ( See Trial Tr. Vol. 4, 208-15). While he did not question Coffey on the May 7, 1991, statements, trial counsel did obtain Coffey's May 9, 1991, statement to personnel with the Grenada County Sheriff's Department to attempt to demonstrate inconsistencies in Coffey's story. ( See Trial Tr. Vol. 4, 216). Trial counsel elicited from Coffey that he had informed Deputy Grantham at that time that Doss confessed to shooting Bert Bell, that Doss requested that the murder weapons be hidden, that Doss planned the robbery, and that Doss was in possession of the items taken from the store. ( See id. at 217-19). Trial counsel questioned Coffey about being charged as an accessory in the crime at issue, and about whether he received leniency in exchange for his testimony. ( See id. at 221). Trial counsel also submitted, and the trial court gave, a jury instruction requiring the jury to weigh Coffey's testimony "with great care and caution and look upon it with suspicion." ( See Trial Tr. Vol. 2, 191, Instruction No. DG-13). Trial counsel's strategy was clearly to discredit Coffey as a witness, and trial counsel did not perform deficiently in attempting to do so. Moreover, Petitioner has not demonstrated actual prejudice as a result of trial counsel's performance. Had the jury been informed that Coffey had given a statement on May 7, 1991, inconsistent with the statement he made at trial, the jury would have been instructed exactly as it was. Petitioner has not demonstrated that a reasonable probability exists that if counsel had raised the issue, the results would have been different.¹⁷

17 The Court notes that it does not interpret Petitioner's claim to include an argument that Coffey's testimony would have bolstered Petitioner's alibi defense. In order to make such an argument, Petitioner would have to claim that Coffey should have been believed on May 7, 1991, in Memphis, but otherwise discredited. Trial counsel could not establish Coffey's veracity on the one hand and his lack of credibility on the other, and counsel clearly focused on what he believed to be a stronger position.

Petitioner's claim that trial counsel rendered ineffective assistance in failing to inform the jury of the relationships between Gerrydene Golliday, Lelesia James, Robert James, Frank Coffey, and Anthony Doss does not warrant relief. At trial, Golliday was cross-examined about the fact that Coffey was the father of her child. ( See Trial Tr. Vol. 4, 271). Counsel also elicited from Lelesia James she was the cousin of Golliday and sister to Robert James. ( See id. at 274).

Petitioner has not demonstrated that counsel's failure to obtain Doss' May 9, 1991, statement to Memphis police constitutes ineffective assistance of counsel. In that statement, Doss stated that Coffey shot Bert Bell. ( See Pet. Memo, Ex. J). Petitioner's argument is that had counsel obtained the statement, he could have used it to impeach Coffey's testimony at trial. Doss did not testify at Petitioner's trial, and Petitioner has not shown that Doss' statement would have even been admissible at his trial. Without such a showing, Petitioner cannot demonstrate that he was prejudiced. Moreover, the Court has already determined that trial counsel performed adequately in attempting to impeach Coffey's testimony.

Petitioner's argument that trial counsel was ineffective in failing to have James' prints compared with the three prints lifted from the crime scene is without merit. None of the testimony given at trial placed James in the store at the time of the shooting. Not only has Petitioner failed to demonstrate counsel performed deficiently in failing to request a comparison of the prints, he has come forward with no credible evidence properly before the Court to indicate that the results of such a comparison would entitle him to relief. Petitioner's allegation is conclusory and insufficient to support a claim of ineffective assistance of counsel. See, e.g., Miller v. Johnson, 200 F.3d 274, 282 (5^th Cir. 2000) (absent specific showing of how alleged omissions deficient and how prejudiced right to fair trial, there is no merit to claim of ineffective assistance of counsel).

The remainder of Petitioner's arguments concern issues of counsel's alleged ineffectiveness in developing and presenting an alibi defense. The Court first addresses Petitioner's argument that trial counsel performed ineffectively in failing to provide the State with notice of Petitioner's potential alibi witnesses, thereby preventing the defense from calling witnesses at trial. Looking to the record, the Court notes that the State filed a demand for notice of such witnesses on December 4, 1992. ( See Trial Tr. Vol. 2, 160). The time sheet filed by defense counsel and located in the clerk's papers indicates that counsel had a jail conference with Petitioner on January 19, 1993, "again" regarding his alibi defense. ( See Trial Tr. Vol. 2, 260). Trial counsel indicated that on that date, he had a telephone conversation with the prosecutor concerning Petitioner's alibi, and trial counsel stated he was "unable to let [the prosecutor] know about alibi and probably will not know until [Petitioner] takes the stand to testify." ( See id.). As of that date, Petitioner had failed to decide whether he was in Memphis, Tennessee, or Grenada County, Mississippi, at the time of the murder. ( See id.).

In his federal habeas proceedings, however, Petitioner filed an affidavit, sworn on August 22, 2006, that trial counsel was made aware of witnesses available to corroborate his alibi claim several months before trial. ( See Pet. Memo, Ex. AA). If counsel was made aware of the names and locations of any witnesses who were available to testify that Petitioner was not in Mississippi on May 6, 1991, he had a duty to provide a notice of Petitioner's alibi. See, e.g., Bryant v. Scott, 28 F.3d 1411, 1417-18 (5^th Cir. 1994) (ineffective assistance of counsel to fail to investigate known alibi witnesses even though defendant uncooperative); Clinksdale v. Carter, 375 F.3d 430, 443 (6^th Cir. 2004) (trial counsel renders deficient performance in failing to file alibi notice when such failure risks wholesale exclusion of the defense). Petitioner relies upon nine affidavits from friends and family members to establish that trial counsel unreasonably failed to give notice of his alibi defense and to otherwise corroborate his own testimony at trial. As previously noted, these affidavits were not presented in State court during Petitioner's post-conviction proceedings.¹⁸ Even if Petitioner's ineffective assistance of counsel claim was not procedurally barred itself, the Court's consideration of these affidavits is not permitted. Petitioner has divested the State courts of the opportunity to assess the credibility of the affidavits and to make a determination as to whether his sentence would have been affected had the information in the affidavits been made known. See Smith v. Quartmerman, 515 F.3d 392, 406 (5^th Cir. 2008); see also Joyner v. King, 786 F.2d 1317, 1320 (5^th Cir. 1986) (new factual allegations in support of previously asserted legal theory must first be presented to state court). The time sheet submitted to the trial court by defense counsel indicates that trial counsel continued to utilize the services of investigator Winbush to prepare for the presentation of an alibi defense, despite Petitioner's uncertainty as to whether he wished to assert at trial that he was absent from the State at the time of the murder. ( See Trial Tr. Vol. 2, 261). Petitioner has presented the Court with no proper support for his contention that trial counsel was informed of the names and locations of potential alibi witnesses but failed to present testimonial evidence that corroborated his alibi. See Strickland, 466 U.S. at 691, 104 S.Ct. at 2066 (information supplied by client critically affects reasonableness of investigation).

18 The Court notes that Petitioner does not appear to argue actual innocence as a gateway claim to receive review of this defaulted claim. In order to receive federal habeas review under the applicable standard, Petitioner would have to establish that it is more likely than not that no reasonable juror, having been exposed at trial to all evidence, including all of the information alleged omitted, would have found petitioner guilty of the offense. See, e.g., House v. Bell, 547 U.S. 518, 536-37, 126 S. Ct. 2064, 2076-77, 165 L. Ed. 2d 1 (2006). To the extent Petitioner did intend to use a claim of actual innocence to receive review of his ineffective assistance of counsel claim, the Court determines Petitioner fails to establish he is actually innocent under the standard. These affidavits, submitted by friends and family members for the first time fifteen years after Bert Bell's death, are not reliable, credible evidence likely to have an impact on Petitioner's claim. See Schlup v. Delo, 513 U.S. 298, 331-32, 115 S. Ct. 851, 869, 130 L. Ed. 2d 808 (1995) (timing of submission and likely credibility of the affiants a consideration in probable reliability of new evidence submitted to establish claim of actual innocence); see also Herrera v. Collins, 506 U.S. 390, 423, 113 S. Ct. 853, 872, 122 L. Ed. 2d 203 (1993) (last minute affidavits treated with "fair degree of skepticism," as "when a prisoner's life is at stake, he can often find someone new to vouch for him.").

Petitioner has not shown that he is entitled to relief under the AEDPA based on the decision of the Mississippi Supreme Court with regard to the portions of this claim that was presented and reviewed on its merits. See Schaetzle v. Cockrell, 343 F.3d 440, 444 (5^th Cir. 2003) (test for succeeding on ineffective assistance of counsel claim is not whether petitioner makes showing under Strickland but whether State court's decision that petitioner failed to make Strickland showing contrary to or unreasonable application of law). The remaining sub-parts of this claim likewise fail to warrant relief under the AEDPA, and this claim is dismissed.

Failure to Secure Funds/Expert Assistance Challenging State's Evidence

Petitioner maintains that trial counsel performed ineffectively in failing to present his motion for funding for a ballistics expert until the morning of the original trial setting. (Pet. Memo 50).¹⁹ Petitioner asserts that a forensic expert was crucial to his defense, as it was substantiated at trial that Doss was in possession of the .38 caliber murder weapon and left his palm print behind the counter of the store. (Pet. Memo 52). Petitioner also alleges that trial counsel performed ineffectively in stipulating to Dr. Steven T. Hayne's qualifications as an expert in the field of forensic pathology and in failing to challenge Dr. Hayne's results. (Pet. Memo 52-53). Petitioner argues that Dr. Hayne was improperly permitted to give testimony that Bert Bell held his hands in front of his face in a defensive position while he was being shot, which Petitioner alleges was a mere theory that should not have been permitted at trial. (Pet. Memo 53).

19 Petitioner argues that he joined in Doss' motion for a ballistics expert, but the Mississippi Supreme Court held on direct appeal that Petitioner's attorney failed to request a forensic expert or join in Doss' motion for one. See Bell I, 725 So. 2d at 853. During its consideration of Petitioner's argument in the context of ineffective assistance of counsel in post-conviction proceedings, the court did not reference its earlier determination.

Respondents maintain that Petitioner never requested a ballistics expert, and that such an expert would have been no use to Petitioner had one been appointed. (R. Memo 59, 61). Respondents also note that, as a matter of law, it would not matter who fired the fatal shots, because Petitioner was a principal in the crime. (R. Memo 62). Moreover, Respondents contend that since Doss' request for an expert was denied, there is no reason to believe Petitioner's request would have been successful even if he had made one. (R. Memo 62). With regard to Dr. Hayne's testimony, Respondents submit that whether to challenge an expert's qualifications is a matter of trial strategy, and they otherwise argue that Petitioner's argument is "ludicrous" given that Dr. Hayne has testified as a qualified expert in numerous cases in Mississippi courts. (R. Memo 63 n. 22).

The Mississippi Supreme Court rejected Petitioner's argument that trial counsel performed deficiently in failing to request the appointment of a ballistics expert. Bell II, 879 So. 2d at 433. The court noted that Bert Bell suffered fatal wounds from bullets fired from both the .38 caliber and the .22 caliber guns, and that ballistics would have been irrelevant in determining which bullet proved fatal. Id. at 433. The court also noted that the weapon's identity was not an issue at trial, so the request for such an expert would have likely been denied. Id. The court found that as ballistics determines whether a particular gun fired a particular bullet, a ballistics expert would not have proved useful in determining who was the principal who fired the fatal bullet. Id. The Mississippi Supreme Court also rejected Petitioner's separate claim regarding the inaccurate date Dr. Hayne recorded on the autopsy report and testified to at trial. Id. at 440. At trial, Dr. Hayne testified that he performed Bert Bell's autopsy in the evening hours of April 6, 1991, and the autopsy report contained the same date. ( See, e.g., Trial Tr. Vol. 4, 226, 245). The court found that trial counsel did not render ineffective assistance of counsel in failing to object to the superficial error.²⁰ Bell II, 879 So. 2d at 440.

20 The murder of Bert Bell occurred on May 6, 1991.

First, the determination that Petitioner never moved for expert assistance is entitled to a presumption of correctness on federal habeas review. See Thompson v. Keohane, 516 U.S. 99, 109-10, 116 S. Ct. 457, 464, 133 L. Ed. 2d 383 (1995). As that finding is supported by the record, Petitioner has failed to rebut the presumption. ( See Trial Supp. Vol. 1, 25-27, 29). Next, Dr. Hayne testified on cross-examination that he could not determine the order in which the shots were fired. (Trial Tr. Vol. 4, 241). It is known, however, that Bert Bell suffered three lethal wounds made from two different weapons. One wound to the forehead, created by a small caliber weapon, was lethal. ( See id. at 228, 234-35). Bert Bell also suffered lethal wounds to the right chest and the left chest, which were wounds created by a large caliber bullet. ( See id. at 230, 235, 236). Bert Bell suffered fatal wounds from both a .38 caliber and a .22 caliber weapon, and Petitioner was a principal in the murder of Bert Bell. Additionally, Doss' own motion for a ballistics expert was denied. Petitioner cannot demonstrate that he was prejudiced by counsel's omission in light of the trial court's ruling. Finally, a ballistics expert, as noted by the Mississippi Supreme Court, could have performed a firearms analysis. Such an expert could not, however, determine whether Bert Bell died as a result of being wounded by a particular bullet.

Petitioner's allegation of error regarding the admission of Dr. Hayne's testimony as to the defensive nature of Bert Bell's wounds also fails to warrant federal habeas relief.²¹ Petitioner asserts that trial counsel performed deficiently by failing to challenge Dr. Hayne's conclusions, which essentially required the jury to accept as true his theory of the nature of the wounds to Bert Bell's hands. (Pet. Memo 53). At trial, crime scene specialist, David Allen Shaw, testified that there were no bullet holes in the walls at Sparks' Stop-and-Go or in the chair in which the victim was found. ( See Trial Tr. Vol. 4, 166-67). Dr. Hayne testified that there were a total of twelve gunshot wounds to the body, and nine bullets were recovered from Bert Bell's body. ( See id. at 227, 231). Dr. Hayne testified that in order to have twelve wounds to the body, either three bullets were not recovered, or Bert Bell's hands were in front of or near his face when the shots were fired. ( See id. at 239).²²

21 The Court notes that the Mississippi Supreme Court addressed this alleged error as a substantive claim on direct appeal, but the claim was not raised as a ground to support any of Petitioner's ineffective assistance of counsel claims on post-conviction review. See Bell I, 725 So. 2d at 853-54. On post-conviction review, Petitioner only asserted that it was error to stipulate to Dr. Hayne's qualifications as an expert in the field of forensic pathology. ( See PCR Pet. 55).

22 Though not essential to the disposition of this claim, the Court notes that Petitioner's counsel did object to the State's questioning of Dr. Hayne, though he made no specific objection to Dr. Hayne's testimony regarding what might have caused the bullet wounds to the hands. ( See Trial Tr. Vol. 4, 237-38).

At the time of Petitioner's trial, Dr. Hayne had been accepted as an expert on numerous occasions by Mississippi Courts. See, e.g., Duplantis v. State, 708 So. 2d 1327, 1339 (Miss. 1998) (Mississippi Supreme Court noting that Dr. Hayne's testimony in August 1995 trial not suspect for trial court's failure to tender the witness as an expert as "Dr. Hayne is unquestionably qualified to testify in [Mississippi] courts as a forensic pathologist. He has done so many times in the past."). Dr. Hayne was clearly considered qualified by the trial court and the Mississippi Supreme Court to render an expert opinion regarding the trajectory of the bullets that entered Bert Bell's body. Petitioner's argument is that trial counsel performed deficiently in stipulating to Dr. Hayne's qualifications, but he makes no argument that Dr. Hayne was unqualified to give an expert opinion in the area of forensic pathology.²³ Given Dr. Hayne's prolific testimony in Mississippi courts prior to the time of Petitioner's trial, the Mississippi Supreme Court's rejection of Petitioner's charge of deficient performance by trial counsel was reasonable. Even if counsel had performed deficiently in failing to conduct a thorough voir dire examination of Dr. Hayne's qualifications, Petitioner cannot demonstrate prejudice in the absence of a showing that the testimony would not have been allowed had he more thoroughly challenged Dr. Hayne's qualifications. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068 (to demonstrate prejudice petitioner must show that but for counsel's unprofessional errors, the result of the proceedings would have been different). Petitioner has not demonstrated an entitlement to relief on this claim.

23 The Court acknowledges that Dr. Hayne's work has received its share of criticism. See, e.g, Edmonds v. State, 955 So. 2d 787, 802-03 (Miss. 2007) (Diaz J., specially concurring) (disagreeing that Dr. Hayne should be qualified as expert in forensic pathology); see also Press Release, The Innocence Project, Innocence Project Asks State Board to Revoke Steven Hayne's Medical License Based on Repeated Autopsy Misconduct, April 8, 2008, available at http://www.innocenceproject.org/Content/1272.php#.

Deficient Performance in Jury Selection

Petitioner asserts that trial counsel rendered ineffective assistance during jury selection by (1) failing to move for questionnaires to be sent to all prospective jurors along with their summonses; (2) failing to litigate discrimination in the jury selection process; (3) failing to ensure adequate voir dire conditions; (4) failing to conduct a thorough voir dire; and (5) failing to request additional peremptory challenges. (Pet. Memo 53).

First, Petitioner relies upon the ABA Guidelines regarding voir dire to argue that the failure of trial counsel to request that a questionnaire be sent to all prospective jurors resulted in an ineffective voir dire, as counsel did not maximize the amount of information he could have had about the prospective jurors. (Pet. Memo 53-54). Respondents contend that this claim is barred on independent and adequate State procedural grounds, and that there is otherwise no requirement under State law that such questionnaires be completed. (R. Memo 65). On post-conviction review, the Mississippi Supreme Court declined to review Petitioner's claim due to his failure to cite relevant authority in support of his argument. See Bell II, 879 So. 2d at 434. The court otherwise noted that the issue was without merit, as counsel was permitted "extensive latitude" during voir dire. Id.

Petitioner's procedural default in State court bars federal habeas review of the merits of this claim. See Johnson v. Cain, 215 F.3d 489, 494 (5^th Cir. 2000) (holding presumption exists that state procedural ground is adequate and independent and burden is on petitioner to show otherwise). However, Petitioner would not be entitled to relief under the AEDPA even if this claim were not barred. Petitioner has not demonstrated that there is a constitutional right to voir dire through questionnaire, or that he was denied a fair and impartial jury due to trial counsel's failure. See Mu'Min v. Virginia, 500 U.S. 415, 425, 111 S. Ct. 1899, 1905, 114 L. Ed. 2d 493 (1991) (rejecting notion that "content" questions constitutionally required of jurors and noting that juror questionnaires give counsel and court no exposure to demeanor of witness in answering question).

Second, Petitioner maintains that trial counsel failed to raise and litigate the issue of racial discrimination due to counsel's failure to make a record of the races of jurors peremptorily struck. (Pet. Memo 55 n. 1). Petitioner, a black male, was sentenced by a jury composed of eleven white members and one black member. ( See Trial Tr. Vol. 2, 184). At trial, Petitioner's counsel waived objections under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), in order to prevent the State from challenging the strikes made by the defense. ( See Trial Tr. Vol. 3, 99). Petitioner asserts trial counsel waived Batson challenges based on a misunderstanding of the law, which resulted in the loss of a racially balanced jury. (Pet. Memo 55-57). Respondents argue that Petitioner cannot demonstrate prejudice as a result of trial counsel's actions, as he cannot show any juror was struck in violation of Batson. (R. Memo 69). Respondents also note that Petitioner bears the burden of proving purposeful discrimination to succeed on his claim, and that he may not meet his burden by speculating that it must exist since only one black juror was seated. (R. Memo 69, 71).

The Mississippi Supreme Court considered this claim on post-conviction review and determined that trial counsel's misinterpretation of the law did not render trial counsel's performance deficient where the decision was a tactical one made upon his client's instructions. Bell II, 879 So. 2d at 434-35. Citing prior case law, the court noted its unwillingness to grant new trials to defendants who willingly participate in a constitutional violation. Id. at 435-36. The court also noted that Petitioner had failed to demonstrate that the result of his trial would have been different absent trial counsel's actions, and it denied relief. Id. at 436.

At the close of jury selection, Petitioner's counsel stated that he did not assert any Batson objections to any of the State's peremptory challenges. ( See Trial Tr. Vol. 3, 99). Counsel stated:

Your Honor, we'd point this Court to the decision by the Mississippi Supreme Court in Melvin Griffin versus State of Mississippi, decided December 10, 1992, wherein the Supreme Court of the State of Mississippi indicated that Batson applied both to prosecutors and defendants, and it being my understanding if I raise the Batson challenge to them, they would, likewise — I would, likewise, have to justify my challenges, and the challenges of the Defendant, and did not feel that was wise, and for that reason was forebearance on the part of the defense for a tactical reason of not asserting the Batson challenge to any of the peremptory challenges asserted by the State in this cause.

(Trial Tr. Vol. 3, 99).²⁴ Following an off-the-record conversation, the trial court noted that it was uncertain whether the State's right to assert objections was triggered only by the exercise of that right by the defense. ( See Trial Tr. Vol. 3, 99, 100). Defense counsel informed the trial court that he was following his client's instructions with regard to the racial composition of the jury. ( See id. at 100). The trial court noted for the record that trial counsel had conferred with Petitioner regarding each challenge made during jury selection. ( See id.). The trial court then asked whether Petitioner had decided not to object to the State's challenges of black venire members so that the State could not object to Petitioner's challenges of white venire members, and Petitioner responded affirmatively. ( See id.).

24 In Griffin, the court did not indicate that the State's right to make Batson objections was predicated on the defense's own objections. Rather, the court found that "what's sauce for the goose is sauce for the gander." Griffin v. State, 610 So. 2d 354, 356 (Miss. 1992).

The Court notes that trial counsel's misunderstanding of the law does not alone render his performance deficient. See Engle v. Isaac, 456 U.S. 107, 133-34, 102 S. Ct. 1558, 1575, 71 L. Ed. 2d 783 (1982) (reasonable lawyer may fail to recognize or raise issue yet still provide constitutionally effective assistance). In this case, Petitioner requested trial counsel make a strategic choice not to challenge the State's peremptory strikes. Trial counsel's actions must be considered in light of Petitioner's own actions. See Strickland, 466 U.S. at 691, 104 S. Ct. at 2066 ("The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions."). As trial counsel made a tactical decision based upon his client's own instructions, he did not render deficient assistance in failing to raise Batson challenges to the State's peremptory strikes. See, e.g., Teague v. Scott, 60 F.3d 1167, 1172 (5^th Cir. 1995) (counsel's actions during voir dire matter of strategy and will not support claim of ineffective assistance of counsel unless entire trial rendered obviously unfair as a result of unreasonable strategy). However, if the Court were to presume that trial counsel rendered a deficient performance, Petitioner must still show that he was prejudiced as a result of trial counsel's actions in order to receive relief. The only information contained in the record regarding the racial composition of the venire is that the jury was ultimately composed of eleven white members and one black member. ( See Trial Tr. Vol. 2, 184). To accept Petitioner's argument that counsel rendered ineffective assistance in failing to raise Batson challenges, the Court would have to presuppose that discrimination occurred. The burden of proving purposeful discrimination rests with the person alleging the discrimination. See Batson, 476 U.S. at 93, 106 S. Ct. at 1721; see also Johnson v. California, 545 U.S. 162, 170, 125 S. Ct. 2410, 2417, 162 L. Ed. 2d 129 (2005) (In order to make out a prima facie case of racial discrimination and thereby shift the burden to the State to provide adequate, race-neutral justifications for the strikes, a defendant must produce sufficient evidence to allow "the trial judge to draw an inference that discrimination has occurred."). Petitioner offers the Court no support for his argument that racial discrimination occurred in this case. The fact that only one seated juror was black is insufficient to assume racial discrimination was employed in the State's use of its peremptory strikes. See Carter v. Johnson, 131 F.3d 452, 464 (5^th Cir. 1997) (claim based on speculation insufficient to overcome strong presumption of competency and high burden of actual prejudice required to establish ineffective assistance of counsel); Bradford v. Whitley, 953 F.2d 1008, 1012 (5^th Cir. 1992) (petitioner's allegations of "putative chain of events" stemming from trial counsel's allegedly deficient conduct "too indefinite to show prejudice"). Petitioner has not demonstrated that he is entitled to relief based upon the Mississippi Supreme Court's resolution of his claim.

Third, Petitioner argues trial counsel rendered ineffective assistance in failing to (1) present any argument in support of a motion for a sequestered voir dire; (2) adequately voir dire the panel to determine whether potential jurors could be fair and impartial; (3) conduct a thorough voir dire where a high percentage of potential jurors knew the victim, his family, or were related to law enforcement; (4) strike jurors for cause after jurors voicing uncertainty about their ability to be fair were informed by the trial court that they would follow instructions and not be biased²⁵; and (5) request additional peremptory challenges. (Pet. Memo 57-74).

25 The Court notes that Petitioner cited an exchange involving potential juror Glenda Steed, who Petitioner later argues was improperly excused. The exchange cited by Petitioner in his memorandum does not apprise the reader of the context of the trial judge's statement. After Ms. Steed informed the trial court of her familiarity with the mother of the victim and the court's inquiry about whether she had any uncertainty about her ability to be impartial, the following exchange occurred:
[Mrs. Steed]: I would try to be fair and — you know, fair and impartial, but I don't — I don't know.
[Trial court] That's a very candid response. All of us, I want to think, you're going to be able to listen to the evidence, and you're going to give anyone who comes before you a fair trial. But, what Ms. Steed has just indicated to me is a very natural, a very human, and a very honest response. It is, that I will try to, but I don't know that I can. Is that what you're telling me? (Trial Tr. Vol. 4, 24).

Petitioner maintains that the trial court conducted a leading, suggestive voir dire that was insufficient to reveal potential biases. He specifically cites the court's exchanges with potential jurors Billie Chamberlain, Robert Haley, Linda McCuan, and Anita Chapman as examples. (Pet. Memo 60-62). Petitioner notes that trial counsel did not move to strike potential jurors Chamberlain or MuCuan for cause, and while juror Chamberlain was later struck using a peremptory challenge, McCuan ultimately sat on the jury. (Pet. Memo 60-62). Haley was removed by trial counsel's use of a peremptory strike after his challenge for cause was denied. (Pet. Memo 62-63).

Petitioner also maintains that trial counsel failed to ask questions to cure the trial court's deficient inquiry into the jurors' feelings regarding the racial aspects of the crime, as the trial court essentially only admonished the potential jurors against being racist. (Pet. Memo 63-64). Petitioner contends that the trial court also conducted an inadequate voir dire regarding the issue of pre-trial publicity, asking the jury as a whole to raise their hands if they had heard of the case. (Pet. Memo 64-65). Petitioner asserts that the trial court proceeded to question the individuals who affirmatively responded in front of the entire panel, and that the court also answered for them. (Pet. Memo 66). Specifically, Petitioner argues the trial court answered for potential jurors Sherry Parvin, Betty Manning, Debbie Harville, Dorothy Rice, Ottis Stark, and Bobby Thorpe. (Pet. Memo 66). Trial counsel failed to challenge these jurors for cause, and Stark, Thorpe, Parvin, Harville, and Rice sat on the jury. (Pet. Memo 67). Petitioner asserts trial counsel should have objected to the judge's voir dire and lack of meaningful individual examination. Petitioner maintains that the court's reliance upon the potential jurors' self-assessment of their ability to be fair deprived him of his right to a fair trial by an impartial jury. (Pet. Memo 67).

Petitioner contends that trial counsel also failed to utilize the leeway granted by the trial court to ask his own questions to cure the deficiencies in the voir dire. (Pet. Memo 68). Petitioner maintains trial counsel rendered ineffective assistance in failing to ask numerous questions of the venire, including whether they would automatically vote for a sentence of death upon a finding of guilt, and whether they or someone they knew had ever been the victim of a crime. (Pet. Memo 68-70). As another example of faulty voir dire, Petitioner argues that potential jurors Glenda Steed, Charles Lott, Stephen Chism, Ella Russell, Kennedy Willis, and John Parker were improperly excused for cause on the basis of their bias of the death penalty. (Pet. Memo 71). Petitioner maintains that trial counsel failed to rehabilitate these potential jurors or otherwise attempt to demonstrate there was an insufficient basis to excuse them for cause. (Pet. Memo 71). Petitioner argues that other potential jurors should have been excused for cause based on their views of the death penalty, but that trial counsel failed to adequately challenge or question those jurors. (Pet. Memo 72).²⁶

26 Petitioner does not list these potential jurors by name.

Finally, Petitioner argues that eight out of the twelve seated jurors had ties to the victim, the victim's family, or to law enforcement.²⁷ (Pet. Memo 73-74). Petitioner maintains that trial counsel unreasonably accepted six of these eight jurors following the State's challenges for cause, and he failed to request extra peremptory challenges. (Pet. Memo 74).

27 The jurors were: Stark, Harville, Jones, McCuan, Parvin, Pigg, Rice, and Thorpe.

Respondents first argue that Petitioner's argument regarding an individualized, sequestered voir dire is a matter of State law not cognizable on federal habeas review. As the "Stennis Method"²⁸ is employed in Mississippi, and no individualized voir dire is required, Respondents argue Petitioner cannot demonstrate either deficient performance or resulting prejudice as a result of trial counsel's failure to raise the issue. (R. Memo 73-75). Respondents contend that Petitioner's argument regarding the voir dire on the issue of pre-trial publicity does not warrant relief, as Petitioner has failed to demonstrate that the impaneled jury was not fair and impartial. (R. Memo 75-77). Respondents argue that Petitioner's claim that the voir dire was inadequate to properly exercise cause and peremptory challenges is speculative, and that Petitioner has failed to demonstrate any prejudice. (R. Memo 78-80). Respondents also argue that the Court should reject Petitioner's claim regarding trial counsel's failure to rehabilitate jurors who have stated that they cannot return a sentence of death, as the Supreme Court of the United States has never stated it is ineffective assistance of counsel to fail to attempt to rehabilitate jurors based on their views of the death penalty. (R. Memo 81-82). Respondents otherwise contend that trial counsel did attempt to rehabilitate jurors. (R. Memo 82).

28 Prospective jurors are questioned in panels by this method of voir dire. See, e.g., Gray v. State, 375 So. 2d 994, 999-1000 (Miss. 1979).

Respondents next assert that the seated jurors only had tenuous ties to the victim's family or to law enforcement, and that trial counsel was not deficient in failing to challenge them based on ties that were not significant enough to cast doubt on their impartiality. (R. Memo 84). Respondents also argue that Petitioner cannot demonstrate prejudice by speculating that he would not have been sentenced to death if another jury had been seated. (R. Memo 84-85). Finally, Respondents assert that Petitioner has asserted no constitutional violation in his claim that trial counsel rendered ineffective assistance in failing to request additional peremptory challenges, as he has not made any argument as to how the failure was deficient or how it prejudiced him. (R. Memo 85).

The Mississippi Supreme Court addressed Petitioner's voir dire and jury selection claims on post-conviction review. Noting that an attorney's actions during voir dire are matters of trial strategy not forming a basis for ineffective assistance of counsel unless the choices are demonstrated to be so unreasonable that the trial is permeated with unfairness, the court considered the sub-issues to Petitioner's claim. Bell II, 879 So. 2d at 436. The court first considered Petitioner's argument that trial counsel rendered ineffective assistance in failing to present an argument for his motion for an individual, sequestered voir dire, which resulted in the motion being denied. Id. The court determined that Petitioner failed to demonstrate that his request would have been granted or a different panel seated had counsel provided supporting argument for his motion. Id.

Next, the court considered Petitioner's argument regarding the trial court's voir dire examination of the panel. Id. The Mississippi Supreme Court noted that in its consideration of the issue on direct appeal, the court found that the defects in the examination of the jury did not constitute constitutional error. Id. at 437. The court found the ineffective assistance of counsel claim without merit, as "[n]ot only has [Petitioner] failed to show that the performance of trial counsel was deficient, there has been no showing that the jury empaneled was not fair and impartial." Id.

Third, the court considered whether trial counsel examined the panel in a manner sufficient to exercise meaningful cause and peremptory challenges. Id. The court determined that Petitioner failed to demonstrate that the failure to ask the omitted questions was deficient, and he also failed to demonstrate that the resulting panel was not fair and impartial. Id. Fourth, the court found Petitioner's argument that counsel rendered ineffective assistance in failing to rehabilitate potential jurors without merit, as without proof that rehabilitation was possible, no prejudice stemmed from counsel's failure to attempt it. Id. at 437-38.

Next, the court considered whether trial counsel rendered ineffective assistance in failing to object to the impanelment or otherwise seek to remove for cause eight jurors with ties to the victim's family or to law enforcement. Id. at 438. The court noted that on direct appeal it affirmed the trial court's denial of challenges for cause as to other jurors with such relationships, as "mere acquaintances or even family relationships with parties or those related to parties is not sufficient to require that a juror be excused for cause." Id. (citation omitted). The court determined that whether to object or challenge potential jurors is a strategic decision not giving rise to a claim of ineffective assistance of counsel due to the deferential scrutiny given to the attorney's tactics and performance when looking at them from a hind-sight perspective. Id. at 438-39. The court otherwise noted that the relationships were "tenuous" at best, and the trial took place "in a rural Mississippi county with a limited jury pool." Id. at 439. Finding that it was improper to use a hindsight analysis merely because counsel's strategy was unsuccessful, the court determined Petitioner's claim was without merit. Id.

Finally, the court rejected Petitioner's ineffective assistance of counsel claim based on trial counsel's failure to request additional peremptory challenges, and it otherwise noted that Petitioner was attempting to relitigate an issue decided against him on direct appeal by attempting to demonstrate that the court committed error in denying his challenges for cause. Id. (citing Miss. Code Ann. § 99-39-21(3) ("The doctrine of res judicata shall apply to all issues, both factual and legal, decided at trial and on direct appeal.").

At the outset, the Court notes that fundamental fairness requires that a criminal defendant be guaranteed a jury panel composed of impartial, indifferent jurors. See Murphy v. Florida, 421 U.S. 794, 799-800, 95 S. Ct. 2031, 2036, 44 L. Ed. 2d 589 (1975); Irvin v. Dowd, 366 U.S. 717, 722, 81 S. Ct. 1639, 1642, 6 L. Ed. 2d 751 (1961). The purpose of voir dire is to allow the selection of an impartial jury and to provide assistance to counsel in effectively exercising peremptory challenges. Mu'Min, 500 U.S. at 431, 111 S. Ct. at 1908. The trial court is granted broad discretion in conducting voir dire, and that discretion is limited by the requirement that the criminal defendant be afforded due process. See id. at 423, 427, 111 S. Ct. at 1904, 1906; see also Turner v. Murray, 476 U.S. 28, 38 n. 12, 106 S. Ct. 1683, 1689 n. 12, 90 L. Ed. 2d 27 (1986) (scope and conduct of voir dire in discretion of trial court).

It is not a constitutional requirement that an individual, sequestered voir dire be conducted. See Mu' Min, 500 U.S. at 425, 111 S.Ct. at 1905 (rejecting notion that individualized voir dire is a constitutional requirement and finding that trial court's failure to ask questions must render trial fundamentally unfair for the omitted questions to be constitutionally compelled). Therefore, Petitioner has not shown that trial counsel's failure to argue the motion raises an issue of constitutional significance, nor has he demonstrated that he was actually prejudiced as a result of trial counsel's failure.

The second sub-issue under Petitioner's claim is that the trial court's examination failed to fulfill its purpose of ensuring juror impartiality, and that trial counsel failed to ensure that voir dire conditions were adequate. Petitioner asserts that the trial court asked leading questions and suggested the "correct" answers to the potential jurors, such that the court's inquiries into areas such as racial prejudice and pre-trial publicity were essentially useless. Voir dire is constitutionally sufficient if the questions asked are sufficient to expose potential bias and allow defense counsel the ability to make a reasonably knowledgeable exercise of strikes. See United States v. Greer, 968 F.2d 433, 443 (5^th Cir. 1992). In order to sustain a claim of ineffective assistance of counsel based on inadequacies of voir dire, Petitioner must demonstrate that at least one of the challenged jurors was actually biased against him. See Miller v. Francis, 269 F.3d 609, 616 (6^th Cir. 2001); Goeders v. Hundley, 59 F.3d 73, 75 (8^th Cir. 1995) (petitioner must show juror actually biased to maintain claim that he was prejudiced); Rogers v. McMullen, 673 F.2d 1185, 1189 (11^th Cir. 1982) ( Sixth Amendment right to fair and impartial jury not violated without showing a jury member hearing the case was actually biased). In the absence of such a showing, Petitioner cannot demonstrate that he was denied his Sixth Amendment right to a fair and impartial jury. See Smith v. Phillips, 455 U.S. 209, 215, 102 S. Ct. 940, 945, 71 L. Ed. 2d 78 (1982) (prospective jurors presumed impartial; challenger bears burden of proving actual bias to maintain claim that juror prejudiced him).²⁹ Therefore, in considering Petitioner's claim that counsel performed ineffectively in failing to secure adequate voir dire conditions, the Court focuses on portions of the record involving jurors who ultimately sat on the jury and decided Petitioner's fate.

29 The Court notes that the jury was composed of Jurors: (1) Brannan; (2) Elliott; (3) Harville; (4) Jones; (5) Lancaster; (6) Lindley; (7) McCuan; (8) Parvin; (9) Pigg; (10) Rice; (11) Stark; and (12) Thorpe. (Trial Tr. Vol. 2, 184).

Juror McCuan stated that despite knowing the victim's family, she could render a fair and impartial decision. ( See Trial Tr. Vol. 3, 36). The trial court asked follow-up questions to ensure that the relationship was not such that Ms. McCuan's response should be further explored. ( See id.). Though he has argued that there was extensive pre-trial publicity surrounding this case, Petitioner has presented the Court with no evidence of such. However, the trial court did engage in voir dire about the venire members' exposure to pre-trial publicity. After obtaining a show of hands as to who had heard anything about the case, the trial court asked individual venire members questions to explore their exposure to information. Juror Parvin stated she had "heard it in conversation from people who don't know about it," and the trial court interpreted that as a response that she was unaffected by what she had heard. ( See id. at 53-54). Juror Harville stated she knew the family of the victim through ball leagues and community activities, and the trial court asked whether the nature of the relationship was such that she could not be fair and impartial. ( See id. at 31). When Ms. Harville affirmed that she could be fair and impartial, the trial court further inquired as to whether any of her children had been on the same team as any of the children of the victim's family, to which Ms. Harville responded in the negative. ( See id. at 32). The trial court accepted her response. ( See id.).

Juror Rice stated that she knew the victim's father from community softball, and that both of her sons were friends with Bert Bell. (Trial Tr. Vol. 3, 37-38). The trial court inquired into the extent of the relationship between her sons and Bert Bell, and the trial court asked her whether she would be affected by that relationship. ( See id.). Ms. Rice stated she would not be affected. ( See id. at 38). Juror Thorpe stated he had known the victim's family by virtue of being a resident of the county, but that he was not acquainted with them and would not be biased as a result of knowing who they were. ( See id. at 41). Juror Stark stated he knew Bert Bell's father, and when the trial court inquired into the extent of the relationship, Mr. Stark replied that they were "[j]ust friends." ( See id. at 39). The trial court determined through subsequent questioning that the relationship was that of an acquaintance, and Mr. Stark stated he would not be affected by the relationship. ( See id.).

After reviewing the record, the Court determines it does not support a contention that the trial court abandoned or neglected its duty to ask questions sufficient to remove potential jurors with prejudicial biases such that the Mississippi Supreme Court was objectively unreasonable in rejecting Petitioner's Strickland claim for failing to object to the voir dire on that basis.

Also, the record does not support Petitioner's contention that jurors expressing reticence to impose the death penalty were struck on an insufficient showing of bias. The trial court asked the prospective jurors whether any of them felt as though they could not impose a sentence of death upon a finding of guilt regardless of the evidence, facts, or instructions. ( See Trial Tr. Vol. 3, 59). Potential jurors Ms. Steed, Mr. Lott, Mr. Chism, Ms. Russell, Mr. Willis, and Mr. Parker all unequivocally stated that they could not impose a sentence of death upon a finding of guilt. ( See Trial Tr. Vol. 3, 59, 60, 60-61, 61-62, 62-63). A juror who cannot or will not impose the death penalty cannot abide by his oath as a juror in the sentencing phase of a capital case. See, e.g., United States v. Webster, 162 F.3d 308, 340 (5^th Cir. 1998). Trial counsel's decision not to attempt to rehabilitate venire members who unequivocally expressed their opposition to the death penalty does not constitute ineffective assistance of counsel. See, e.g., Moore v. Maggio, 740 F.2d 308, 317 (5^th Cir. 1984).

Petitioner, a black male, was charged with killing Bert Bell, a white male. In this case, the trial court asked a general question to the entire venire about whether their decision would be influenced by racial bias or prejudice, and he then admonished the jury that racial prejudice could play no part in the jury's decision. While Petitioner cites this admonition as error, inasmuch as it was unlikely to ferret out any racial prejudice that did exist, Petitioner has not demonstrated that trial counsel's failure to object to the question or follow-up with his own questions constitutes ineffective assistance of counsel. Questions of racial prejudice are not required simply because victim and defendant are different races. Ristaino v. Ross, 424 U.S. 589, 596, 96 S. Ct. 1017, 1021, 47 L. Ed. 2d 258 (1976) (issue is "whether under all of the circumstances presented there was a constitutionally significant likelihood that, absent questioning about racial prejudice, the jurors would not be `indifferent as [they stand] unsworne.'") (citation omitted). In Turner v. Murray, 476 U.S. 28, 106 S. Ct. 1683, 90 L. Ed. 2d 27 (1986), the Supreme Court held that a capital defendant who is standing trial for an interracial crime is entitled to have jurors questioned about racial bias; however, this right is not self-executing. See 476 U.S. at 36-37, 106 S. Ct. at 1688. Trial counsel's decisions during voir dire are considered issues of trial strategy and do not give rise to a claim of ineffective assistance of counsel unless the decisions render the entire trial unfair. Teague v. Scott, 60 F.3d 1167, 1172 (5^th Cir. 1995) (decision that permeates trial with obvious unfairness gives rise to claim of ineffective assistance of counsel). Petitioner has made no allegation that any seated member of the jury was actually tainted by racial bias, and he has not demonstrated prejudice resulting from trial counsel's actions. See Clark v. Collins, 19 F.3d 959, 965 (5^th Cir. 1994) (petitioner failing to demonstrate that impaneled jury was tainted by racial bias has failed to demonstrate prejudice for purposes of ineffective assistance of counsel claim).

The decision of the Mississippi Supreme Court with regard to trial counsel's failure to attempt to remove for cause eight jurors with ties to the victim's family and/or law enforcement does not warrant federal habeas relief. The record reveals that the venire members' ties to the law enforcement community were insufficient to warrant a removal for cause. Juror Stark's brother-in-law was on the police force. ( See Trial Tr. Vol. 3, 17). The first cousin of Ms. Harville's husband was on the police force. ( See id. at 13). The husband of Ms. Jones had been a deputy sheriff in Grenada County four or five years prior to the murder of Bert Bell. ( See id.). Ms. Parvin's father had been a deputy in another county years prior to Bert Bell's murder. ( See id. at 14). Ms. Pigg had a brother and an uncle on the police force, and Buster Grantham was her first cousin. ( See id. at 14, 79). The trial court inquired further into Ms. Pigg's relationships, and she stated that she could be fair and impartial. ( See id. at 79). Ms. Thorpe's granddaughter was married to the sheriff's nephew. ( See id. at 16). Following a row-by-row questioning as to who had ties to law enforcement, the trial court asked whether anyone felt as though they could not be fair and impartial based on their relationship, however distant, with law enforcement. ( See id. at 19). No prospective juror indicated an inability to be fair and impartial based on their familial relationships with law enforcement.

Petitioner cannot establish bias merely by demonstrating that a relationship existed between seated jurors and members of law enforcement. See, e.g., United States v. Crooks, 83 F.3d 103, 107 n. 16 (5^th Cir. 1996) (marriage to law enforcement official, without more, insufficient to constitute juror bias). Whether to challenge these jurors for cause was a tactical decision, and Petitioner has not demonstrated that counsel's decision permeated his trial with unfairness. See Teague v. Scott, 60 F.3d 1167, 1172 (5^th Cir. 1995). The record reveals that trial counsel did challenge some other potential jurors based on their relationships with members of law enforcement, and the trial court emphasized that the issue was whether their responses indicated an inability to be fair and impartial. At least twice, the trial court declined to grant challenges for cause based solely on the familial connection between potential jurors and members of law enforcement. ( See, e.g., Trial Tr. Vol. 3, 95, 98). The jurors affirmed to the court their ability to render a fair, impartial decision based on the evidence presented at trial, and Petitioner has not demonstrated that any seated juror was biased against him.

Finally, Petitioner has cited no case holding that trial counsel's failure to seek additional peremptory challenges constitutes ineffective assistance of counsel. However, as Petitioner has failed to demonstrate that the jury selected at trial was not fair and impartial, Petitioner can demonstrate no prejudice as a result of trial counsel's failure to seek the challenges.

The Court finds that Petitioner has failed to demonstrate that the decision of the Mississippi Supreme Court with regard to his claims concerning jury selection was based on an unreasonable application of clearly established federal law regarding ineffective assistance of counsel, and he is entitled to no relief on this claim.

No Coherent Theory of Defense

Petitioner asserts that trial counsel failed to develop a meaningful theory of defense at trial. (Pet. Memo 75). In support, Petitioner first argues that defense counsel failed to call witnesses or otherwise develop Petitioner's alibi defense. (Pet. Memo 75). Next, Petitioner asserts that trial counsel waived opening statements at both the guilt and sentencing phases at trial, such that the jury had no outline of the case to follow. Finally, Petitioner maintains that trial counsel's closing argument was incoherent and confusing. (Pet. Memo 75). Respondents assert that Petitioner has never raised the issue of trial counsel's failure to make an opening statement at the guilt phase, and that the issue is barred from this Court's consideration. (R. Memo 86 n. 25). Respondents assert that the remainder of Petitioner's claims do not warrant relief under the precedent of Strickland. (R. Memo 87).

On post-conviction review, the Mississippi Supreme Court considered Petitioner's claim that trial counsel rendered ineffective assistance by presenting conflicting defenses. Petitioner contended that trial counsel argued that Petitioner was in Memphis at the time of the murder and alternately argued Petitioner was present at the scene of the crime but uninvolved in the murder. The court stated that "[a]ny alleged conflicting defenses resulted from the substantial evidence of Bell's guilt. As for the closing argument, trial counsel emphasized the burden of proof, attempted to raise reasonable doubt and attacked the credibility of witnesses. Accordingly, the closing argument was both consistent and effective." Bell II, 879 So. 2d at 439-40. Petitioner also raised trial counsel's failure to make an opening statement during the penalty phase as a separate claim of error. The court found that "[t]he giving of an opening statement in the penalty phase is not required in Mississippi and the failure to do so may be deemed trial strategy, particularly where the prosecution did not make an opening statement." Id. at 442.

At the outset, the Court notes that there exists a strong presumption that the decision to waive opening statement is a matter of trial strategy. See Huffington v. Nuth, 140 F.3d 572, 583 (4^th Cir. 1998) (waiver of opening statement is tactical decision); Williams v. Beto, 354 F.2d 698, 703 (5^th Cir. 1965) (decision not to present opening statement a "matter of professional judgment" because of strength of case against defendant); Fox v. Ward, 200 F.3d 1286, 1296 (10^th Cir. 2000) ("While opening and closing statements are not to be lightly waived in a capital case, it is well-settled that the decision to waive an opening or closing statement is a commonly adopted strategy, and without more, does not constitute ineffective assistance of counsel."). Neither the prosecution nor the defense gave an opening statement in either the guilt or sentencing phases of Petitioner's trial. It is reasonable to assume that trial counsel made a strategic decision to waive opening statement in order to more effectively challenge the State's proof in closing argument.

Moreover, defense counsel did not simultaneously argue two completely different defense theories during closing argument. Defense counsel's closing argument appears to represent a tactical decision to point out areas where reasonable doubt existed. Defense counsel argued that Petitioner had testified he was not in Mississippi at the time of the murder. ( See Trial Tr. Vol. 4, 285). Defense counsel argued that physical evidence placed Doss at the scene while no physical evidence tied Petitioner to the crime scene, and that the only witnesses who placed Petitioner there had motive to lie. ( See id. at 281-291). Given the "doubly deferential" view to which trial counsel's closing argument is entitled, the Court determines Petitioner has not met his burden under the AEDPA with regard to this issue. See Yarborough v. Gentry, 540 U.S. 1, 6, 124 S. Ct. 1, 4, 157 L. Ed. 2d 1 (2003) ("Judicial review of a defense attorney's summation is therefore highly deferential — and doubly deferential when it is conducted through the lens of federal habeas.").

Failure to Impeach James

Petitioner next asserts a claim of ineffective assistance of counsel in that trial counsel failed to challenge Robert James' identification of Petitioner. (Pet. Memo 76-78). James was the only eyewitness to Bert Bell's murder who was not charged with a crime in connection with the murder. James identified Petitioner from a photograph one week prior to Petitioner's extradition hearing, which was almost a year and a half after the murder of Bert Bell. (Pet. Memo 76-77). Petitioner argues that this identification involved the identification of two people already known to James, as well as a third who James knew had been arrested for the crime along with Doss and Coffey. (Pet. Memo 77). Petitioner maintains that this was an "unnecessarily suggestive" procedure in violation of the Fifth Amendment. (Pet. Memo 77) (citing Stovall v. Deno, 388 U.S. 394, 302 (1967); United States v. Wade, 388 U.S. 218, 233 (1967)).

Respondents assert that Petitioner presented the State court with the claim that defense counsel rendered ineffective assistance in failing to bring it to the jury's attention that James had a motive to lie and thereby impeach his testimony. (R. Memo 92). Respondents maintain that Petitioner has never raised the issue of a suggestive identification procedure in State court, and that this claim is unexhausted. (R. Memo 93).

This factual allegation and legal theory has never been presented to any State court and is barred from federal habeas review. See, e.g., Ruiz v. Quarterman, 460 F.3d 638, 643 (5^th Cir. 2006) (argument based on legal theory distinct from that presented in State court fails to meet exhaustion requirement).³⁰ Petitioner has failed to demonstrate that there is an applicable exception to the imposition of a procedural bar with regard to this claim. See id. (if state would now impose procedural bar to unexhausted claim, petitioner may receive review of claim upon showing of cause and prejudice or that application of bar would result in fundamental miscarriage of justice). The Court has also alternatively addressed the merits of this claim and found Petitioner is not entitled to relief under the AEDPA. See Part I.A., supra, 28-30.

30 The Court notes that Petitioner did allege ineffective assistance of trial counsel in State court based on counsel's failure to impeach James' testimony. The Mississippi Supreme Court found: "James received no consideration in return for his testimony. Instead of discussing how this failure prejudiced the defense, Bell presents an unsupported motive for James to lie. Of course, a realistic motive might be based on Bell's immediate threat to kill James. Bell, 725 So. 2d at 841. However, wisely Bell chose not to cite this as a motive. The Court finds this issue without merit." Bell II, 879 So. 2d at 440. The Court has already considered this claim and rejected it as a basis for federal habeas relief.

Failure to Object to Evidence

Petitioner asserts that trial counsel performed ineffectively in stipulating to the introduction of a .25 caliber pistol that was found in Bernard Gladney's vehicle, as this evidence was irrelevant and prejudicial.³¹ (Pet. Memo 79). There was no evidence presented at trial that a .25 caliber pistol was used in the robbery or murder. On post-conviction review, the Mississippi Supreme Court rejected Petitioner's claim. Bell II, 879 So. 2d at 440. The court noted Petitioner failed to discuss how the introduction of this evidence prejudiced him, and it otherwise noted that counsel's decision fell within the realm of trial strategy. Id.

31 Trial counsel stipulated to the introduction of a .22 caliber pistol, a .38 caliber pistol, and a .25 caliber pistol. ( See Trial Tr. Vol. 3, 103-04).

Respondents maintain that Petitioner cannot demonstrate prejudice solely by the fact that he was sentenced to death. (R. Memo 94). Respondents argue that there was trial testimony that prior to the robbery Petitioner had a .22 caliber pistol, Doss had a pistol of unknown caliber, and a .38 caliber pistol was taken from the store. (R. Memo 94). Respondents assert that the fact that no one identified the third pistol as a .25 caliber does not make its introduction prejudicial, as it was found in the car of Bernard Gladney, who was implicated in the Tennessee murder. (R. Memo 95).

At trial, Petitioner's counsel clearly stated that he was stipulating to the introduction of the pistols into evidence for tactical reasons. Counsel stated:

For tactical reasons, the Defendant and the defense does not feel that it would be wise to have the chain of custody attacked or require the State to bear their burden with respect to the chain of custody of these weapons, the facts bearing out that these 3 weapons were recovered from the house, or a house, in Memphis, Tennessee, of which Frederick Bell was an occupant; the factual circumstances being that Mr. Bell was arrested by the Memphis Police Department on May 7, 1991, the day after this incident, and was charged with murder. . . . The purpose of the stipulation being to keep any witnesses from Tennessee coming down here. If they don't get on the stand, Your Honor, they cannot — we do not stand any danger of anything coming out — coming before the jury with respect to the murder in Memphis the next day.

( See Trial Tr. Vol. 3, 103-04).

Petitioner has not demonstrated that trial counsel's tactical decision rendered the proceedings against him unfair; nor has he demonstrated any prejudice as a result of the decision. See, e.g., Teague v. Scott, 60 F.3d 1167, 1172 (5^th Cir. 1995) (decision that permeates trial with obvious unfairness gives rise to claim of ineffective assistance of counsel). Petitioner has not demonstrated that the decision of the Mississippi Supreme Court with regard to this issue warrants relief under the AEDPA, and this claim is denied.

Jury Instruction — Incorrect Statement of Law

Petitioner asserts counsel failed to object to Jury Instruction S-2 at the guilt phase of trial on the ground that it improperly instructed the jury on the elements of aiding and abetting. (Pet. Memo 79). The instruction reads:

The Court instructs the jury that each person present at the time, and consenting to and encouraging the commission of a crime, and knowingly, willfully and feloniously doing any act which is an element of the crime or immediately connected with it, or leading to its commission, is as much a principal as if he had with his own hand committed the whole offense; and if you believe from the evidence, beyond a reasonable doubt, that the defendant, Frederick Bell, did willfully, knowingly, unlawfully and feloniously do any act which is an element of the crime of capital murder or immediately connected with it, or leading to its commission, then and in that event, you should find the defendant guilty as charged.

(Trial Tr. Vol. 2, 193). Petitioner maintains that this instruction allowed the jury to find Petitioner guilty of capital murder if it found he did "any act which is an element" of the crime, thereby absolving the State of its duty to prove beyond a reasonable doubt every element of the charged crime. (Pet. Memo 80).

On direct appeal, the Mississippi Supreme Court found Petitioner's claim barred for failure to contemporaneously object at trial. Bell I, 725 So. 2d at 847. Addressing the claim in the alternative, the court found that the instruction required the jury to find Petitioner "did unlawfully, willfully, and feloniously kill" Bert Bell in the commission of the crime of robbery to find Petitioner guilty of capital murder, and the instruction further directed that Petitioner should be found not guilty if any one or more of the elements were not proved beyond a reasonable doubt. Id. The court cited its prior case law approving of the instruction, and it noted that when read in conjunction with the instructions as a whole, the burden was properly placed on the State to prove beyond a reasonable doubt every element of the underlying felonies with which Petitioner was charged. Id. at 847-48. On post-conviction review, the court considered Petitioner's claim that trial counsel deficiently and prejudicially failed to object to jury instructions containing an incorrect statement of the law. Bell II, 879 So. 2d at 440. The court noted that the instruction had been previously approved by the court, and it found the argument procedurally barred on the grounds of waiver and res judicata. Id.

Respondents argue that the jury instructions given at Petitioner's trial, when read as a whole, do not amount to error. (R. Memo 97-98). Respondents note that the use of this instruction has been long approved by the Mississippi Supreme Court, and it was not until 2001 that the Mississippi Supreme Court held the instruction should not be used in an aiding and abetting situation. (R. Memo 99; see also Milano v. State, 790 So. 2d 179, 184-85 (Miss. 2001)).

A deficient jury charge does not generally form a basis for relief in federal habeas. See Estelle v. McGuire, 502 U.S. 62, 71-72, 112 S. Ct. 475, 481-82, 116 L. Ed. 2d 385 (1991). To collaterally attack the constitutional validity of his judgment on the basis of a jury instruction, Petitioner bears the burden of demonstrating that the instruction "by itself so infected the entire trial that the resulting conviction violates due process." Henderson v. Kibbe, 431 U.S. 145, 154-55, 97 S. Ct. 1730, 1736-37, 52 L. Ed. 2d 203 (1977) (citing Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973)). The review of the challenged instruction requires the court to consider the instruction in the context of the entire trial. See McGuire, 502 U.S. at 72, 112 S. Ct. at 481; see also Cupp v. Naughten, 414 U.S. at 146-47, 94 S. Ct. at 400 ("[A] judgment of conviction is commonly the culmination of a trial which includes testimony of witnesses, argument of counsel, receipt of exhibits in evidence, and instruction of the jury by the judge. Thus not only is the challenged instruction but one of many such instructions, but the process of instruction itself is but one of several components of the trial which may result in the judgment of conviction."). A strong presumption exists that an erroneous jury instruction is subject to a harmless-error analysis. See Galvan v. Cockrell, 293 F.3d 760, 764 (5^th Cir 2002). Therefore, if the instruction did not have a "substantial and injurious effect or influence in determining the jury's verdict," any error in giving the instruction is considered harmless. Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S. Ct. 1710, 1714, 123 L. Ed. 2d 353 (1993).

At the time of Petitioner's trial in 1993, the Mississippi Supreme Court had repeatedly approved of language similar to that in the challenged instruction as a correct statement of the law on aiding and abetting. See, e.g., Fleming v. State, 604 So. 2d 280, 287-88 (Miss. 1992); Davis v. State, 586 So. 2d 817, 821 (Miss. 1991); Kelly v. State, 493 So. 2d 356, 359 (Miss. 1986). Petitioner has failed to demonstrate that the Mississippi Supreme Court's resolution of his claim was unreasonable, given that Petitioner may not establish deficient performance by failing to object to an instruction that was approved at the time it was given. See Moreno v. Dretke, 450 F.3d 158, 173 (5^th Cir. 2006) (failure to anticipate change in the law not ineffective assistance of counsel); Lucas v. Johnson, 132 F.3d 1069, 1078-79 (5^th Cir. 1998) (petitioner "failed to demonstrate deficient performance because counsel is not required to anticipate subsequent developments in the law"); Walker v. Jones, 10 F.3d 1569, 1573 (11^th Cir. 1994) (rejecting ineffective assistance of counsel claim for failure to object to jury charge later held erroneous where lower court had repeatedly rejected challenges to the charge and Supreme Court had not ruled on issue).³²

32 An instruction almost identical to the instruction given in Petitioner's case was considered by the Mississippi Supreme Court in Milano v. State, 790 So. 2d 179, 184-85 (Miss. 2001), where the court rejected the instruction and prospectively adopted the Fifth Circuit's Pattern Jury Instruction on Aiding and Abetting. Id. at 185. The court refused to reverse Milano's conviction and sentence based on the erroneous instruction, however, as the error was held harmless when read in conjunction with the other instructions given at trial. Id.

Additionally, the jury instructions as a whole properly instructed the jury as to the burden of proof and elements of the offenses. Instruction C-2 instructed the jury on the State's burden of proof and Petitioner's entitlement to a presumption of innocence. ( See Trial Tr. Vol. 2, 188). Instruction DG-11 instructed the jury concerning reasonable doubt. ( See id. at 189). Jury Instruction DG-3 instructed the jury that the State bore the burden of proof throughout trial to establish Petitioner's guilt on each and every element of the offenses beyond a reasonable doubt. ( See id. at 190). Jury Instruction S-1 properly instructed the jury regarding the burden of proof and elements of capital murder. ( See id. at 192). Instruction S-5 properly instructed the jury on the burden of proof and elements of armed robbery. ( See id. at 195). The jury in this case was properly instructed upon consideration of the instructions as a whole, and the giving of Jury Instruction S-1 did not have a substantial and injurious effect in determining the jury's verdict. Therefore, assuming, arguendo, that trial counsel performed deficiently in handling jury instructions, Petitioner has failed to demonstrate that he was prejudiced by defense counsel's failure to object to the grant of the instruction.

B. Sentencing Phase Failure to Prepare Case and Present Meaningful Opening Statement

Petitioner asserts that trial counsel's failure to secure a continuance between the guilt and sentencing phases of trial, combined with his failure to make an opening statement, deprived Petitioner of an effective case at sentencing. (Pet. Memo 83). Respondents argue that this issue is not cognizable in federal habeas, as there is no federal constitutional right to a continuance between the guilt and sentencing phases of a capital murder trial. (R. Memo 103). Respondents also maintain that Petitioner has not demonstrated either deficient performance or prejudice, as he has not shown that counsel was unprepared to move forward with sentencing or that the grant of a continuance would have altered the proceedings. (R. Memo 103-05).

On post-conviction review, the Mississippi Supreme Court considered Petitioner's claim that trial counsel performed ineffectively in failing to secure a continuance between the guilt and sentencing phases of trial. Bell II, 879 So. 2d at 441. The court noted that while defense counsel could have requested a continuance until the next morning after the jury found Petitioner guilty at 3:30 p.m., the legislature has determined that the sentencing phase of a capital murder trial should be conducted "as soon as practicable." Id. ( citing Miss. Code Ann. § 99-19-101). The court also noted that neither the defense nor the prosecution presented an opening statement during the penalty phase of Petitioner's trial, and it found that attorneys are not required to give an opening statement under Mississippi law. Id. at 442. The court found the matter to be one of trial strategy and rejected Petitioner's claim. Id.

As the Court noted in an earlier claim involving trial counsel's failure to make an opening statement, such a waiver is generally a matter of trial strategy and is insufficient by itself to establish a deficient performance by counsel. See United States v. Salovitz, 701 F.2d 17, 20-21 (2^nd Cir. 1983) (waiver of opening statement often matter of trial strategy and will not ordinarily form basis for claim of ineffective assistance of counsel); Gilliard v. Scroggy, 847 F.2d 1141, 1147 (5^th Cir. 1988) ("Gilliard's counsel chose not to make an opening statement. That is the essence of a strategic choice."); Williams v. Beto, 354 F.2d 698, 703 (5^th Cir. 1965) (trial counsel decision not to make opening statement "was a matter of professional judgment, and . . . was very likely the wiser course to follow" because of the strong case against the defendant); United States v. Haddock, 12 F.3d 950, 955 (10^th Cir. 1993) (holding defense counsel's decision not to present opening statement because he did not know what defendant would say on witness stand was not constitutionally deficient performance). Petitioner argues that the jury had "no guide" of what to expect because of trial counsel's waiver, but he fails to articulate how an opening statement would have created a probability of a different verdict. Assuming, arguendo, deficient performance by trial counsel, Petitioner has demonstrated no prejudice as a result of trial counsel's waiver.

Petitioner has also failed to demonstrate that he is entitled to relief based on trial counsel's failure to secure a continuance between the guilt and sentencing phases of his trial. In order to obtain relief on the ground that he was denied his right to due process based on counsel's trial error, Petitioner must establish that the trial was made fundamentally unfair by the fact that trial counsel did not seek and secure a continuance. See Kirkpatrick v. Blackburn, 777 F.2d 272, 279 (5^th Cir. 1985). In order to establish a denial of due process on such grounds, Petitioner must establish "`a reasonable probability that the granting of a continuance would have permitted him to adduce evidence that would have altered the verdict.'" McFadden v. Cabana, 851 F.2d 784, 788 (5^th Cir. 1988) (citation omitted). Petitioner has not demonstrated what a continuance would have accomplished, and he has not demonstrated that trial counsel was unprepared to go forward with the sentencing phase of the trial. Petitioner had the services of an investigator to work on producing mitigating evidence for trial, and it is reflected in trial counsel's time sheet that he was preparing for the mitigation phase of the case prior to trial. ( See Trial Tr. Vol. 2, 255-262).

In short, Petitioner merely alleges that he was prejudiced by trial counsel's waiver of an opening statement and failure to secure a continuance. His conclusory allegations are insufficient to establish that counsel rendered ineffective assistance. See Miller v. Johnson, 200 F.3d 274, 282 (5^th Cir. 2000) ("In the absence of a specific showing of how these alleged errors and omissions were constitutionally deficient, and how they prejudiced [petitioner] . . . we [can find] no merit to these claims.") (citation omitted). Petitioner has failed to establish that relief on this claim is warranted under the AEDPA.

Failure to Exclude Aggravating Circumstances Not Applicable

Petitioner argues that trial counsel performed ineffectively in failing to object to the submission of the "avoiding or preventing a lawful arrest" aggravator to the jury, as it was not supported by the evidence presented at trial. (Pet. Memo 84). Pursuant to Mississippi law, the jury may consider as an aggravating circumstance that "[t]he capital offense was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody." See Miss. Code Ann. § 99-19-101(5)(e). The use of the aggravator is permitted where "there is evidence from which it may be reasonably inferred that a substantial reason for the killing was to conceal the identity of the killer or killers or to `cover their tracks' so as to avoid apprehension and eventual arrest by authorities." See Wiley v. State, 750 So. 2d 1193, 1206 (Miss. 1999); Taylor v. State, 672 So. 2d 1246, 1275 (Miss. 1996).

On direct appeal, the Mississippi Supreme Court considered whether the "avoiding or preventing a lawful arrest" aggravator was invalid as applied to the facts of this case. The court found that Petitioner's argument "merits no comment beyond an observation that Bell's own statements and actions are sufficient to warrant an inference by the jury that Bert was shot because he wanted to leave no witnesses." Bell I, 725 So. 2d at 858. On post-conviction review, the court considered the claim in the context of ineffective assistance of counsel based on trial counsel's failure to object. The court cited its prior decision finding the underlying claim without merit. See Bell II, 879 So. 2d at 442. The court otherwise noted that Robert James testified at trial that Petitioner had threatened to kill him in order to eliminate all witnesses and rejected Petitioner's claim. Id.

The claim underlying Petitioner's argument is that the evidence in this case was insufficient to support the jury's finding of the "avoiding arrest" aggravator. Petitioner would be entitled to federal habeas relief on the underlying sufficiency of the evidence claim only if the jury's finding of the aggravator was "so arbitrary or capricious" that it constituted an independent constitutional violation, which is only established if the evidence presented at trial was such that no rational trier of fact could have concluded that Bert Bell was murdered for the purpose of allowing Petitioner to avoid or prevent arrest. See Lewis v. Jeffers, 497 U.S. 764, 781-83, 110 S. Ct. 3092, 3102-04, 111 L. Ed. 2d 606 (1990); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979) (issue for federal court reviewing challenge to sufficiency of evidence at state trial is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt").

In this case, the jury heard testimony that Petitioner had a gun with him when he went to the store. ( See Trial Tr. Vol. 4, 191, 210). The jury heard testimony that Petitioner had planned to "shoot going in" to rob the store. ( Id. at 198). The jury heard witnesses testify that they heard Bert Bell yell after the first or second shot was fired, and that several more shots were fired in succession. ( See id. at 192, 210-11). Witnesses testified that Petitioner initially threatened to kill James shortly after the murder, and that Petitioner wanted to drive back to Mississippi while in route to Memphis in order to eliminate a potential witness by killing James. ( See id. at 195-96, 213, 214-15). Under these facts, a rational juror could have drawn the conclusion that Bert Bell was murdered in order to allow Petitioner to avoid apprehension and arrest.

The Court determines that Petitioner has not established that the decision reached by the Mississippi Supreme Court is an unreasonable application of controlling federal law. As Petitioner has failed to show constitutional infirmity with regard to his claim that the evidence was insufficient to support the giving of the aggravating circumstance, Petitioner cannot demonstrate that he was prejudiced as a result of trial counsel's failure to object based on the sufficiency of the evidence. See Medellin v. Dretke, 371 F.3d 270, 279 (5^th Cir. 2004) (where overall claim without merit, ineffective assistance of counsel claim based on failure to raise issue likewise without merit); see also United States v. Kimler, 167 F.3d 889, 893 (5^th Cir. 1999) (failure to raise meritless argument not ineffective assistance of counsel because result would not have been different had issue been raised); Clark v. Collins, 19 F.3d 959, 966 (5^th Cir. 1994) (failure to raise meritless objection not ineffective assistance of counsel); Williams v. Collins, 16 F.3d 626, 634-35 (5^th Cir. 1994) (where issue is without merit, failure to raise the issue on appeal cannot satisfy prejudice prong of Strickland). Petitioner is not entitled to relief on this claim.

Failure to Conduct Effective Investigation Present Mitigation Evidence

Petitioner argues that trial counsel performed deficiently in failing to present mitigating evidence for the jury's consideration, such as his significant mental limitations and disadvantaged family life. (Pet. Memo 85). Petitioner asserts that trial counsel failed to secure any school, hospital, mental health, or military records, and that combined with trial counsel's failure to perform any sort of reasonably effective investigation, the jury was allowed to sentence him to death without consideration of valuable mitigating evidence. (Pet. Memo 85). Petitioner also maintains that trial counsel failed to properly subpoena witnesses for trial, which resulted in the loss of important testimony regarding Petitioner's alibi defense. (Pet. Memo 85).

Petitioner presents the Court with records and affidavits that purport to establish the wealth of mitigating evidence that was available to trial counsel. Attached as exhibits to his memorandum in support of the petition for writ of habeas corpus in this cause are affidavits from Bernard Gladney (Ex. D); Lonnie Bell (Ex. E); Tonja Glaspie (Ex. F); Myra Bell (Ex. G); Cindy Arnold (Ex. H); Essie Jefferson (Ex. I); Darrell Flowers (Ex. DD); Mike Young (Ex. II); SaDenna Hardin (Ex. JJ); Linda Cooper (Ex. KK); and Bobbye Mason (Ex. OO) ( See Pet. Memo). Petitioner argues that these witnesses could have provided valuable mitigation testimony had they been interviewed and subpoenaed to trial. Petitioner asserts that trial counsel also failed to present evidence of his youth at the time of the offense, as he was nineteen when the murder was committed. (Pet. Memo, Ex. S). Petitioner also attaches school records establishing that he failed three grades in school and was eligible for special education classes. (Pet. Memo, Ex. FF). He asserts that he was evaluated in 1987 when he was almost sixteen years-old and presented a full-scale Intelligence Quotient ("I.Q.") of 81. (Pet. Memo, Ex. T).³³ Petitioner maintains that he was unable to count money or understand the rules of football during school, that he was functioning at a third or fourth grade level in reading at the age of sixteen, that he could not perform division involving multiple digits, that he did not use adverbs in writing, that he did not know the capital of Canada, and that he did not know terms related to weather. ( See Pet. Memo, Ex. HH and T). A May 11, 1992, "Questionnaire for Children Claiming SSI Benefits and Disability" reports that Petitioner was unable to write his own name at the time the questionnaire was completed. (Pet. Memo, Ex. HH). Petitioner argues that despite all of this available mitigating evidence, trial counsel failed to secure testimony from Petitioner's elementary school teachers by failing to properly subpoena them. (Pet. Memo 85 Ex. P). Petitioner asserts that at least four of his elementary school teachers would have testified, but that they were not contacted by trial counsel. (Pet. Memo 86 Ex. II, Aff. of Mike Young; Ex. JJ, Aff. of SaDenna Hardin; Ex. KK, Aff. of Linda Cooper; and Ex. OO, Aff. of Bobbye Mason).

33 Petitioner was re-evaluated in 1993 approximately three weeks before trial and presented a full-scale I.Q. of 61. ( See Pet. Memo, Ex. GG).

Petitioner also asserts that trial counsel failed to interview his family members prior to trial. (Pet. Memo 88). Petitioner contends that neither his mother or his sister had any contact with his counsel until the final day of trial, when they showed up at the courthouse after being advised by a neighbor that Petitioner's trial had begun. (Pet. Memo 88, 89-90 Ex. R, Aff. of Myra Bell; Ex. Q., Aff. of Tonja Bell). Petitioner maintains that when his family appeared at the courthouse, trial counsel asked them if they wished to testify. (Pet. Memo 90 Ex. F, Aff. of Tonja Glaspie). Petitioner's mother, Myra Bell, stated that she was unprepared for the testimony and did not really know what evidence was to be presented. (Pet. Memo 90 Ex. G, Aff. of Myra Bell). Petitioner otherwise maintains that no witnesses were subpoenaed on his behalf at trial, and that counsel did not file anything with the trial court requesting witnesses be subpoenaed until the first day of trial.³⁴ ( See Pet. Memo 89 Ex. P).

34 The State court records contain a sheet of paper from trial counsel indicating what witnesses were interviewed, and the paper had handwritten notes on it indicating that some or all of these witnesses were to be subpoenaed. ( See Trial Tr. Vol. 2, 182).

Petitioner contends that trial counsel failed to investigate his mental illness and the emotional disturbance existing in his paternal line. (Pet. Memo 94). Petitioner argues that his father had two sisters who were mentally retarded, one of which committed suicide, and that his uncle was hospitalized at the Mississippi State Hospital at Whitfield. (Pet. Memo 94-95 Ex. R). Petitioner asserts that his father was a violent and abusive alcoholic, and that he was convicted of murder and sent to prison when Petitioner was eight years old. (Pet. Memo 95, 96 Ex. R). Petitioner also maintains that trial counsel did not explore the fact that Petitioner was raised in poverty and suffered a disadvantaged childhood. (Pet. Memo 95 Ex. R). Finally, Petitioner asserts that trial counsel failed to interview any prison employees to present testimony of Petitioner's good behavior while imprisoned. (Pet. Memo 97).

Respondents contend that the affidavits from Petitioner's mother and sister that were presented on post-conviction review do not indicate what additional testimony they would have provided had they been given adequate preparation. (R. Memo 109). Respondents note that the affidavits of Cindy Arnold, Essie Jefferson, and Darrell Flowers fail to establish what relevant testimony they would have offered had they been summoned to testify. (R. Memo 110). Respondents contend that Petitioner's mental ability has been determined to be in the low-average range of intelligence, such that the presentation of his mental ability would not have been persuasive mitigating evidence. (R. Memo 111). Respondents also argue that nothing has been presented to any court to indicate that he has a good prison record, and that he cannot support his claim in the absence of such proof. (R. Memo 111-12).

On post-conviction review, the Mississippi Supreme Court considered Petitioner's argument that trial counsel performed ineffectively in failing to investigate and present mitigating evidence regarding his youth at the time of the offense, his mental retardation and mental illness, his disadvantaged and abusive childhood, his emotional disturbances, and his good behavior while imprisoned. Bell II, 879 So. 2d at 442-43. The court referenced the trial record, which reflected that trial counsel interviewed at least eight people to prepare Petitioner's case. Id. In so doing, the court noted that Petitioner's argument focused on the degree of trial counsel's investigation rather than the failure of counsel to investigate. Id. Affidavits from Myra Bell, Petitioner's mother, and Tonja Bell, Petitioner's sister, were provided to the court on post-conviction review, but those affidavits failed to indicate what additional information should have been provided. Id. The court otherwise pointed out that Petitioner's mother testified at the sentencing hearing, and it found Petitioner's argument without merit. Id.

The court likewise found Petitioner's claim regarding counsel's failure to present mitigating evidence without merit. Id. The court noted that three witnesses testified for the defense at trial. Id. First, Petitioner's mother gave testimony "focused on the violent and abusive family life which the family endured at the hands of her former husband." Id. at 443-44. Tammy Armstrong, Petitioner's girlfriend at the time of trial and mother of his child, testified "regarding Bell's disposition and his loving relationship with their young son and her daughter." Id. at 444. Petitioner also testified in his own defense. Id. at 443. The court found that the jury was instructed to consider the following as mitigating factors "1) that Bell was 19 years old at the time of the crime; 2) his lack of education; 3) raised in poverty; 4) his violent family life; 5) his abusive father; 6) he was the father of and provider for a 3 year-old child; and 7) he could have merely been an accomplice." Id. at 444.

The court noted that Petitioner had attached a State Department of Education assessment from 1987 to his post-conviction application, and that report stated Petitioner had an I.Q. of 81 and functioned in the low-average range of intelligence. Id. at 444. The court stated:

Aside from the affidavits provided by his mother and sister, Bell's application provides no evidence that he suffers from either emotional or mental problems. The testimony of Myra Bell primarily focused on the disadvantaged and abusive childhood that Bell suffered. She discussed how they lived off of minimum wage and in a one-room apartment with a violent husband. She recalled the problems she had with her husband after the divorce, how on one occasion he "shot-up" the house, and that he had been in and out of jail. Based on her testimony during the penalty phase, evidence was presented regarding Bell's difficult childhood.

Id. at 444. Citing Petitioner's argument that counsel should have presented evidence of his good behavior while incarcerated, the court noted that Petitioner failed "to cite what additional evidence should have been presented and how it would have affected the outcome. Unlike defense counsel in Wiggins v. Smith, who failed to discover and present powerful mitigating evidence, Bell's counsel discovered and presented significant mitigating evidence. Therefore, this claim is without merit." Id. at 444 (internal citations omitted).

The failure of counsel to investigate and present available mitigating evidence may constitute ineffective assistance of counsel unless the failure to do so represents a reasoned tactical decision that such investigation is unnecessary or would not be beneficial. See Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2065. Whether trial counsel rendered deficient performance is an issue resolved by determining the adequacy of trial counsel's performance in light of prevailing professional norms. See Rompilla v. Beard, 545 U.S. 374, 380, 125 S. Ct. 2456, 2462, 162 L. Ed. 2d 360 (2005) (citation omitted). In determining whether counsel's assistance was deficient, courts must not engage in a hindsight analysis of counsel's conduct and must afford the judgments of trial counsel a strong presumption of reasonableness. Id. at 381, 120 S.Ct. at 2462. Petitioner must also establish prejudice as a result of trial counsel's actions. Prejudice is established if Petitioner can demonstrate that, but for the deficient representation he received, the proceedings would have resulted differently. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. That determination is made by re-weighing the aggravating evidence presented against all of the mitigating evidence that was available to counsel at the time of trial. Wiggins v. Smith, 539 U.S. 510, 534, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003).

Petitioner has presented on federal habeas review numerous affidavits from persons who state that they were never contacted by trial counsel or any of his employees, and that they would have provided relevant, mitigating information had they been called to testify. Petitioner also presents school records and social security benefit forms to support his claim that trial counsel failed to conduct enough investigation to make reasoned, strategic decisions about the case. As it begins its review of the submissions Petitioner has offered in support of his claim, the Court notes that its consideration of this claim is limited to the reasonableness of the decision rendered by the Mississippi Supreme Court. See Schaetzle v. Cockrell, 343 F.3d 440, 444 (5^th Cir. 2004) (on federal habeas test is not whether petitioner makes the Strickland showing but whether State court decision warrants relief under AEDPA). The Court now considers the support Petitioner has offered for this claim.

Trial counsel's itemized bill that was filed with the trial court reflects that trial counsel met with Petitioner in November of 1993 to get permission to talk to Petitioner's grandmother and girlfriend, and that trial counsel had a telephone conference with Petitioner's grandmother about Petitioner's background. ( See Trial Tr. Vol. 2, 258). On the same date, trial counsel recorded that he worked on a subpoena for school records. ( See id.). Also in November, trial counsel indicated that he had conferences with the investigator to schedule more witnesses to be interviewed. ( See id. at 259). In December, trial counsel had a meeting with the investigator to go over the investigator's findings and to determine what witnesses were possible. ( See id. at 260). Approximately one week prior to trial, trial counsel had another meeting with the investigator to discuss the results of his investigation and to determine what witnesses would be available for sentencing. ( See id.). Also that week, trial counsel met with Petitioner to discuss his alibi defense, and Petitioner had not yet decided whether he was in Tennessee or Mississippi on the day of the murder. ( See id.). Trial counsel held another telephone conference with the investigator on January 21, 1993, regarding witnesses and Petitioner's alibi. ( See id. at 261). On January 26, 1993, trial counsel recorded that he contacted the investigator to have "witness appear after dinner" the following day. ( See id.).

The clerk's papers indicate that trial counsel interviewed eight persons in connection with Petitioner's defense. ( See Trial Tr. Vol. 2, 182). In his affidavit, Petitioner states that he gave trial counsel the name of witnesses who could testify at the mitigation phase of his trial. Those witnesses were Tyrone Bell, Vickie Sutherland, Mrs. Parker, Mrs. Winters, and Myrtle Gaston. ( See Pet. Memo, Ex. AA, Aff. of Frederick Bell, ¶ V). All of those individuals were listed by trial counsel as persons interviewed during the course of investigating Petitioner's case. ( See Trial Tr. Vol. 2, 182). Handwritten notes appearing at the bottom of the list of interviewed witnesses suggest that trial counsel wished to subpoena some of those individuals for trial on Thursday. ( See id.). There is no indication in the record that subpoenas were issued for any of these individuals. No affidavits from any of the interviewed witnesses have been submitted to any court reviewing Petitioner's claim, and no affidavit from trial counsel has been submitted. Therefore, it is unknown whether these witnesses were unable to give any information that would have been useful at trial, or whether there was simply a failure to subpoena them for trial in spite of their valuable information. Petitioner was the only person who testified for the defense during the guilt phase of the trial. Petitioner, his mother, and his then-girlfriend testified during the sentencing portion of the trial. Myra Bell states in her affidavit that she was not even aware that the trial had begun until the sentencing portion of the trial was in progress. ( See Pet. Memo, Ex. G, Aff. of Myra Bell). The Court has nothing before it that would indicate the reasons witnesses were not subpoenaed or records obtained. At least with regard to the presentation of witnesses, it would appear as though counsel simply failed to subpoena them for trial. Additionally, as no information was presented regarding Petitioner's mental ability or school performance, it could be concluded that trial counsel never completed or had issued the subpoena for Petitioner's school records.

Petitioner has presented the Court with the June 2006 affidavits of his mother, Myra Bell, and his sister, Tonja (Bell) Glaspie, and each state that they were never contacted by trial counsel or any of his employees prior to Petitioner's trial. ( See Pet. Memo, Ex. F, Aff. of Tonja Glaspie; Ex. G, Aff. of Myra Bell). Both Petitioner's mother and sister signed affidavits that were submitted during Petitioner's State post-conviction proceedings, as well. In her December 2001 affidavit, Tonja Bell indicates that she could have provided information that her father was a violent, abusive drunk who had a negative influence on Petitioner. ( See Pet. Memo, Ex. Q, Aff. of Tonja Bell). She also indicates that she met with the investigator prior to trial. ( See id.). In Myra Bell's December 2001 affidavit, she states that Petitioner's father was violent, abusive, and had been in prison for violent and drug-related crimes. ( See Pet. Memo, Ex. R, Aff. of Myra Bell). She declares that Petitioner was abused by his father and negatively influenced by him. ( See id.). She also states that she met with the investigator prior to trial. ( See id.).

A review of the testimony given at trial is helpful to the Court's consideration of the information Petitioner alleges was omitted from the jury's consideration. At trial, Petitioner's mother testified during the sentencing phase. Mrs. Bell testified that she had four children and lived in poverty. ( See Trial Tr. Vol. 4, 307). She testified that Petitioner's father, Lonnie, was "violent" and "terrible," which led to a divorce when Petitioner was seven or eight years old. ( See id. at 308). Mrs. Bell testified that Petitioner and his father did not have a good relationship, and that Lonnie beat the children "for no reason at all." ( See id.). She stated that the divorce affected Petitioner in that he began to seem less able to distinguish right from wrong, and that his grades began to drop. ( See id. at 309). Mrs. Bell testified that around the time Petitioner was twelve or thirteen years of age, he began to visit his father in Memphis, and that Lonnie came back to Mississippi and "shot up in the house" on one occasion. ( See id.). Mrs. Bell testified that Petitioner began to experience difficulties and "developed a mental problem behind that," and that she began having difficulty getting him to talk or do schoolwork. ( See id.).

Mrs. Bell provided positive testimony about Petitioner's character and talents, as well. She testified that Petitioner was talented at drawing and cutting hair. ( See id. at 310). She stated Petitioner learned at school, where he was well-liked by his teachers and cooperated with other kids. ( See id.). Mrs. Bell stated that Petitioner was not the type of person who would start trouble without a reason for doing so, and that she refused to believe that Petitioner went into a store and murdered someone without cause. ( See id.). Mrs. Bell testified that Petitioner had "a lot of good" in him, and that he went to church and provided for his family. ( See id. at 311). Mrs. Bell concluded her testimony with a plea for mercy for her son. ( See id. at 311-12).

Myra Bell's affidavit does not provide any significant and potentially mitigating information beyond that heard by the jury at trial. Tonja Glaspie's affidavit also fails to indicate any mitigating information she could have provided. The other affidavits submitted by Petitioner, which were obtained between May and August of 2006 have similar flaws. While the affidavit from Petitioner's father states that no one contacted him or gave him the opportunity to testify, it does not indicate what mitigating evidence he could have provided. (Pet. Memo, Ex. E). Petitioner's aunt, Cindy Arnold, states that she could have provided testimony regarding Petitioner's childhood "and other information that would have been relevant at the mitigation phase of the trial." (Pet. Memo, Ex. H). Petitioner's aunt, Essie Jefferson, states that had she been called to testify she would "have been able to provide relevant testimony." (Pet. Memo, Ex, I). Petitioner's step-brother, Darrell Flowers, also indicates that had he been called to testify, he could have "provide[d] relevant testimony." (Pet. Memo, Ex. DD). Petitioner's third grade teacher, Mike Young, states that he "would have provided information on [his] interactions with Mr. Bell." (Pet. Memo, Ex. II). SaDeanna Hardin, Petitioner's fifth grade teacher, could have also "provided information" about Petitioner. (Pet. Memo, Ex. JJ). Petitioner's second grade teacher, Bobbye Mason also states that had she been contacted she would "have provided information." (Pet. Memo, Ex. OO). Only the affidavit of one of Petitioner's elementary school teachers, Linda Cooper, contains a reference to specific information that could have been provided. Ms. Cooper's affidavit states that she could have "provided information on [her] interactions with Frederick Bell and . . . acknowledged his slowness." (Pet. Memo, Ex. KK).

Assuming, a rguendo, that trial counsel performed deficiently in not seeking out and interviewing Petitioner's family members and teachers, these affidavits fail to identify any significant information omitted from the jury's consideration. See Lockett v. Anderson, 230 F.3d 695, 713 (5^th Cir. 2000) (to obtain relief, Petitioner must allege with "specificity what the investigation would have revealed and how it would have altered the outcome of the trial") (citation omitted). Petitioner has not demonstrated prejudice as a result of trial counsel's failure to secure the testimonies of the named individuals.

However, the Court must also consider whether trial counsel's failure to present evidence of Petitioner's allegedly significant mental limitations rendered counsel's performance ineffective. Petitioner has presented the Court with school records, a psychological report, and various reports and forms related to Petitioner's requests for Social Security Income ("SSI") and disability benefits. Having reviewed all of the documents submitted, the Court finds that Petitioner fails to sustain his burden of demonstrating that the decision of the Mississippi Supreme Court was an unreasonable application of controlling federal law, for the reasons that follow.

Petitioner argues that his elementary school teachers should have been called to testify about his limitations in school. Petitioner has submitted the affidavits of four of his elementary school teachers in support of his argument. However, the affidavit of Mike Young contains no reference to what mitigating evidence he could have provided at trial. ( See Pet. Memo, Ex. II). SaDeanna Hardin and Bobbye Mason specifically reject in their affidavits that they would have testified at trial that Petitioner was a slow learner. ( See Pet. Memo, Ex. JJ and OO). Only the affidavit of Linda Cooper states that she would have testified at trial to Petitioner's "slowness." ( See Pet. Memo, Ex. KK). Petitioner's school records do establish that he failed the first, third, and sixth grades. ( See Pet. Memo, Ex. FF). At the age of sixteen, Petitioner was deemed eligible to receive special education classes on the basis of a specific learning disability in the area of basic reading. ( See Pet. Memo, Ex. T). At that time, Petitioner was evaluated and obtained a full-scale I.Q. score of 81. ( See id.). Dr. Michael Whelan examined Petitioner just prior to Petitioner's 1993 trial when he was twenty-one years old. ( See Pet. Memo, Ex. GG). During the course of the evaluation, Petitioner obtained a full-scale I.Q. score of 61. ( See id.). Dr. Whelan noted Petitioner's limitations in basic reading skills but concluded that Petitioner's prior I.Q. testing was a better indicator of his intellectual functioning. ( See id.). Dr. Whelan opined that Petitioner's limitations in adaptive behaviors, such as basic living skills, was an issue of attitude rather than ability. ( See id.). Specifically, Dr. Whelan noted that the fact that Petitioner had a driver's license by the time he was sixteen or seventeen, that he had a girlfriend and a child, and that he cut hair to earn money, all indicated that Petitioner's adaptive abilities are "significantly higher than those which would be associated with the test scores that he produced today if they were valid." ( See id.).

Petitioner filed for Social Security Income ("SSI") and disability benefits on May 11, 1992, at the time he was already incarcerated for the murder of Bert Bell. ( See Pet. Memo, Ex. HH). The questionnaire associated with the claim for benefits was witnessed by E.W. Fields, who interviewed Petitioner in prison and indicated Petitioner was unable to write his own name. ( Id.). In the questionnaire, Petitioner self-reported, among other things, that he was a slower learner who could not stand pressure, hold his temper, count money, or understand the rules of football or notes of music. ( Id.). He also reported that he was deemed eligible for special education classes in 1989, and that he was unable to read or write above a second grade level. ( Id.). A January 22, 1993, report from the Mississippi Department of Rehabilitation Services indicates that Petitioner suffers from reading deficiencies, and it notes that Petitioner presented no evidence that would support a diagnosis of mental retardation or autism. ( See Pet. Memo, Ex. GG). Similarly, a January 21, 1993, SSI Child Disability evaluation states that Petitioner suffers from a "significant reading deficit," but concludes that Petitioner was not disabled as of June 27, 1988, and denied benefits. ( Id.).

The records submitted to the Court in support of Petitioner's argument that trial counsel failed to present evidence of his significant limitations in intellectual and adaptive functioning cannot support Petitioner's claim. The record suggests that in November of 1992, trial counsel was attempting to secure school records. At that time, counsel began attempting to contact Dr. Whelan, presumably to secure his services in order that Petitioner might be evaluated. ( See Trial Tr. Vol. 2, 258). Dr. Whelan's report stated that Petitioner was deliberately attempting to appear less capable than he actually is. Dr. Whelan opined that Petitioner's pre-incarceration I.Q. score of 81 was a better indicator of his intellectual functioning than his post-incarceration I.Q. score of 61. Petitioner's intellectual abilities are not so limited that they would have been significantly mitigating. See, e.g., Atkins v. Virginia, 526 U.S. 304, 308 n. 5, 122 S. Ct. 2242, 2245 n. 5 (noting I.Q. score of 70-75 typical cut-off for intellectual functioning prong of mental retardation); see also Chase v. State, 873 So. 2d 1013, 1029 n. 20 (Miss. 2004) (stating cut-off for intellectual functioning prong of Atkins test and noting "defendants with an IQ of 76 or above do not qualify for Eighth Amendment Atkins protection"). Moreover, Dr. Whelan's report was completed after Petitioner was already incarcerated for the murder of Bert Bell, as were the SSI-related reports that found Petitioner was not disabled to the extent that he was entitled to disability benefits. Had Dr. Whelan testified, the prosecution would have been able to cross-examine him regarding his opinion of the likelihood that Petitioner had malingered on the testing, and his testimony would have had little value, if any, for the defense. Trial counsel's decision not to present potentially damaging testimony would appear to be tactical in nature and does not support Petitioner's claim of ineffective assistance of counsel. See United States v. Best, 219 F.3d 192, 201-02 (2^nd Cir. 2000) (choosing not to call witness to avoid "opening the door" to potentially damaging testimony about defendant's character is tactical choice which does not support claim of ineffective assistance of counsel); Boyle v. Johnson, 93 F.3d 180, 1887-88 (5^th Cir. 1996) (claim of ineffective assistance of counsel must fail where counsel makes informed decision not to present double-edged evidence); Moore v. Parker, 425 F.3d 250, 254 (6^th Cir. 2005) (not deficient performance for counsel to fail to introduce evidence that would make it likely jury would view him more unfavorably).

Similarly, while the Court does not know if trial counsel actually secured Petitioner's school records, those records would indicate, at most, that Petitioner suffered from significant deficits in his reading ability and presented intellectual abilities in the low-average range. It is merely speculative that this information would have been mitigating. See Riley v. Dretke, 362 F.3d 302, 307 (5^th Cir. 2004) (prejudice not established by trial counsel's failure to present evidence his client had an I.Q. within the range of borderline mental retardation as such a diagnosis was not indicative of organic damage or mental illness that would necessarily be mitigating). Additionally, the Court notes that Petitioner's arguments regarding trial counsel's failure to present evidence of his youth at the time of the offense or his good behavior while incarcerated are without support. Trial counsel argued Petitioner's youth as a mitigating factor during his closing argument at the sentencing phase, and the jury was instructed on Petitioner's youth as a mitigating factor. ( See Trial Vol. 4, 326; Trial Tr. Vol. 2, 235). Petitioner has submitted nothing to the Court that would indicate he had a good record while imprisoned and awaiting trial, and his argument is speculative.

The affidavits and records submitted in this case are not "evidence of sufficient quality and force to raise a reasonable probability that, had it been presented to the jury, a life sentence would have resulted." See Andrews v. Collins, 21 F.3d 612, 624 (5^th Cir. 1994) (citation omitted). Petitioner's familial history of violence was brought out at trial, as was his youth at the time of the offense. Much of the evidence Petitioner complains of as omitted from the sentencing portion of his trial was obtained from self-reports and partially contradicted by the reports and notes of various examiners. Regardless of whether trial counsel performed deficiently in failing to adequately investigate Petitioner's familial history and school performance, Petitioner has not demonstrated that he was prejudiced as a result of trial counsel's actions or omissions. See Strickland, 466 U.S. at 697, 104 S.Ct. at 2069 (court need not address both deficiency and prejudice prongs where petitioner makes insufficient showing on one). Petitioner suffers from a specific learning disability in the area of reading. Testimony was presented that Petitioner planned and executed a robbery where the store clerk was shot multiple times, that he was involved in another murder later the same evening, and that he threatened to kill one of the men who was with him until moments before the robbery. It is unlikely that his inability to read would have swayed the jury that he was less culpable, and Petitioner has not demonstrated that had the evidence been presented, confidence in the jury's verdict would be undermined. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Petitioner has failed his burden of demonstrating that the decision of the Mississippi Supreme Court with regard to this claim was an unreasonable application of the clearly established law as it relates to claims of ineffective assistance of counsel.

State's Closing Argument

Petitioner alleges that the prosecutor made improper comments during the State's closing argument at sentencing, and that trial counsel rendered ineffective assistance in failing to object to the comments. (Pet. Memo 98). First, he argues that the prosecutor stated the death penalty was being sought because it was "the only appropriate penalty." Next, Petitioner maintains that the prosecutor informed the jury why he thought the death penalty should be imposed. Later, in rebuttal to defense counsel's closing argument, the prosecutor stated that he did not see any good in a person who would kill two people in cold blood. Finally, Petitioner argues that the prosecutor was allowed to argue a non-statutory aggravating factor when he referenced Petitioner's lack of remorse. (Pet. Memo 98-99).

On post-conviction review, the Mississippi Supreme Court considered Petitioner's claim of ineffective assistance of counsel based on trial counsel's failure to object to the prosecutor's comments. Bell II, 879 So. 2d at 444. The court noted that under "plain error" review on direct appeal, it had approved of the prosecutor's closing argument and found that "such comments were permissible deductions and `simply fair commentary on the behavior and testimony by Bell which was in evidence.'" Id. (citation omitted). On direct appeal, the court considered whether the prosecutor improperly interjected his personal opinion of Petitioner's guilt in closing argument. Bell I, 725 So. 2d at 861. While stating that a prosecutor "may not use his personal beliefs and the prestige attendant to his office to bolster his argument or the witnesses or evidence," the court found that a prosecutor is allowed to argue his case using rational inferences which come from the presented evidence. Id. at 861-62. Finding that the prosecutor's statements were deductions from evidence and not personal opinions, the court rejected Petitioner's argument. Id. at 862. The court also considered Petitioner's complaints regarding the prosecutor's reference to the Tennessee conviction and arguments regarding the "cold-blooded nature of that crime." Id. The court noted that the prosecutor merely offered proof of the Tennessee conviction and found that Petitioner offered testimony on direct examination commenting on the details of the crime. Id. The court determined the State only commented on Petitioner's "unwise effort to minimize [the Tennessee crime's] nature and circumstances." Id. Finally, the court considered Petitioner's claim that the prosecutor's comments regarding Petitioner's lack of remorse were improper. The court found that the prosecutor fairly commented on the evidence and testimony, and that the prosecutor's argument neither interjected a non-statutory aggravating factor or impermissibly commented on the Petitioner's failure to testify. Id. at 862-63.

This Court first notes that federal habeas relief does not lie on the basis of prosecutorial misconduct unless the comments to the jury "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 2471, 91 L. Ed. 2d 144 (1986) (quoting Donnelly v DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974)). Petitioner may not establish a due process violation by demonstrating that the prosecutor's comments "were undesirable or even universally condemned." Id. at 181, 106 S. Ct. at 2471. Rather, Petitioner demonstrates the existence of unfairness that warrants federal habeas relief by showing that a reasonable probability exists that he would not have been sentenced to death absent the comments. See Harris v. Cockrell, 313 F.3d 238, 245 (5^th Cir. 2002) ; Barrientes v. Johnson, 221 F.23d 741, 753 (5^th Cir. 2000); Felde v. Blackburn, 795 F.2d 400, 403 (5^th Cir. 1986). Federal habeas relief is rarely granted on the basis of prosecutorial misconduct, as it is only the most egregious argument that creates a constitutional violation. See, e.g., Houston v. Estelle, 569 F.2d 372, 382 (5^th Cir. 1978). In determining whether Petitioner was denied due process as a result of unfair proceedings, this Court examines the comments of the prosecutor within the totality of the trial. See United States v. Young, 470 U.S. 1, 11, 105 S. Ct. 1038, 1044, 84 L. Ed. 2d 1 (1985).

Petitioner cites to Lewis v. Lane, 832 F.2d 1446 (7^th Cir. 1987) in support of his argument that it is ineffective assistance of counsel for trial counsel to fail to object to a prosecutor's argument about an unrelated murder in the penalty phase of a capital murder trial. Petitioner's case is clearly distinguishable from the facts of that case. In Lewis v. Lane, trial counsel stipulated to the existence of four previous felony convictions against Petitioner, and two of those convictions did not exist. See id. at 1457. The court determined that the prosecution had presented knowingly inaccurate and false information to the jury and withheld the information from post-conviction counsel, and that the petitioner was prejudiced as a result of trial counsel's stipulation to the convictions. Id. at 1456-57.

In the instant case, the prosecutor led the jury through the evidence presented at trial to attempt to establish Petitioner's culpability and the presence of three aggravating factors. ( See Trial Tr. Vol. 4, 323-25). The prosecutor did not argue Petitioner's "lack of remorse" as a non-statutory aggravating factor. The prosecutor mentioned the Tennessee conviction for second-degree murder in order to establish the presence of an aggravating circumstance. ( See id.). The prosecutor commented on the appropriateness of the death penalty for someone who senselessly murdered two people in one day and laughed when questioned by police about murder. ( See id.). A prosecutor's comments on what he believes the evidence shows is not prosecutorial misconduct. See Ortega v. McCotter, 808 F.2d 406, 410 (5^th Cir. 1987). Moreover, when a prosecutorial argument urges a particular conclusion based on the evidence presented, it is not reversible error simply because the prosecutor interjects "I" in his summation. See United States v. Rodarte, 596 F.2d 141, 146-47 (5^th Cir. 1979).

Additionally, defense counsel argued that significant doubt should exist that Petitioner was deserving of a sentence of death, as Doss was the only individual who could be affirmatively linked to the crime scene. ( See Trial Tr. Vol. 4, 327). Defense counsel reminded the jury that Petitioner had repeatedly asserted that he was not in Mississippi at the time of the murder of Bert Bell, he reminded the jury of Myra Bell's testimony about the good in Petitioner, and he argued the needlessness of wasting another life by a verdict of death. ( See id.). In concluding argument, the prosecutor attempted to show that the evidence discredited the defense's position that Petitioner was not present at the time of the murder by reminding the jury that James had testified that Petitioner had confessed to shooting Bert Bell. ( See id. at 328). The prosecutor also addressed defense counsel's comments about the good in Petitioner by suggesting that Petitioner had murdered two people in the same day without provocation. ( See id.). Viewed in context, the Court determines that Petitioner has not demonstrated that the decision reached by the Mississippi Supreme Court on this issue was contrary to, or an unreasonable application of, clearly established federal law, and relief is denied.

Ineffective Handling of Sentencing Instructions

Petitioner asserts that a portion of Sentencing Instruction No. 1 given at his trial runs afoul of the Eighth Amendment's requirement that a capital sentencing jury consider all evidence proffered by a defendant as a reason for returning a sentence less than death, as it instructed the jury "not to be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling." (Pet. Memo 99, 100). Petitioner also maintains that the charge instructed the jury several times that they had to reach a unanimous decision but failed to instruct the jurors to consider mitigating circumstances individually. (Pet. Memo 101). Petitioner argues that trial counsel rendered ineffective assistance by failing to object to the "anti-sympathy" instruction given to the jury. He also maintains that trial counsel failed to argue his proposed instruction to the court that would have required the jury to consider mitigating circumstances individually. Additionally, Petitioner maintains that defense counsel failed to present evidence of the effect Petitioner's Tennessee conviction would have if the jury returned a sentence of life imprisonment. (Pet. Memo 101). Petitioner maintains that trial counsel's failure to do so was ineffective assistance of counsel, particularly as the prosecution used the Tennessee conviction to show Petitioner had propensities toward violence. (Pet. Memo 101).

Respondents argue that Petitioner's claim that counsel was ineffective in failing to object to the sentencing instruction on the basis that it required unanimity in the finding of mitigating circumstances has not been presented to any State court and is barred. (R. Memo 115). Without waiving the bar for failure to exhaust, Respondents argue that trial counsel offered two instructions to the trial court that would have instructed the jury that they did not have to be unanimous in their findings of mitigating circumstances. (R. Memo 118). Respondents assert that since the trial court rejected the instructions, there exists no reasonable probability that the trial court would have sustained an objection to the given instruction on the basis that it required juror unanimity with regard to mitigating circumstances. (R. Memo 118). Respondents also argue that Petitioner's claim regarding the "anti-sympathy" instruction has been foreclosed by Supreme Court precedent. (R. Memo 217-18). Respondents also maintain that Petitioner could not have been sentenced to life without parole under Mississippi law at the time of his trial, such that he was not prejudiced by trial counsel's failure to have the jury instructed regarding the effect of the Tennessee conviction. (R. Memo 223-23).

As Sentencing Instruction No. 1 contains several alleged errors, the Court finds it beneficial to here cite it in its entirety. The instruction reads as follows:

You have found the defendant, FREDERICK BELL, guilty of the crime of capital murder. You must now decide whether the defendant will be sentenced to death or life imprisonment for the Capital Murder of Robert C. "Bert" Bell. In reaching your decision, you may objectively consider the detailed circumstances of the offense for which the defendant was convicted, and the character and record of the defendant himself. You should consider and weigh any aggravating and mitigating circumstances, as set forth later in this instruction, but you are cautioned not to be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.

A.

To return the death penalty in this case you must first unanimously find from the evidence beyond a reasonable doubt that one or more of the following facts existed:

1. That the defendant, FREDERICK BELL, actually killed Robert C. "Bert" Bell;

2. That the defendant, FREDERICK BELL, attempted to kill Robert C. "Bert" Bell;

3. That the defendant, FREDERICK BELL, intended the killing of Robert C. "Bert" Bell take place or;

4. That the defendant, FREDERICK BELL, contemplated that lethal force would be employed during the commission of the crime of armed robbery.

B.

To return the death penalty, you must find that the mitigating circumstances — those which tend to warrant the less severe penalty of life imprisonment — do not outweigh the aggravating circumstances — those which tend to warrant the death penalty.

Consider only the following elements of aggravation in determining whether the death penalty should be imposed:

1. Whether defendant, Frederick Bell, was previously convicted of another capital offense or of a felony involving the use or threat of violence to the person.

2. Whether the capital murder of Robert "Bert" Bell was committed while the defendant was engaged or was an accomplice, in the commission of armed robbery.

3. The capital murder of Robert "Bert" Bell was committed for the purpose of avoiding or preventing a lawful arrest.

You must unanimously find, beyond a reasonable doubt, that one or more of the preceding aggravating circumstances exist in this case to return the death penalty. If none of the aggravating circumstances are found to exist, the death penalty may not be imposed, and you shall write the following verdict on a sheet of paper:

"We, the jury, find the defendant should be sentenced to life imprisonment."

If one or more of the above aggravating circumstances is found to exist, then you must consider whether there are mitigating circumstances which outweigh the aggravating circumstance(s). Consider the following elements of mitigation in determining whether the death penalty would not be imposed:

Age 19, lack of education, reared in poverty, violent family life, physical abuse by father, father of and provider for 3-year old child, could have been merely an accomplice.

Any matter or any aspect of the Defendant's character or record and any other circumstance of the offense brought you during the trial of this cause which you, the Jury, deem to be mitigating on behalf of the Defendant.

If you find [from] the evidence that one or more of the preceding elements of mitigation exist, then you must consider whether it (or they) outweigh(s) or overcome(s) the aggravating circumstance(s) you previously found. In the event that you find that the mitigating circumstance(s) do not outweigh or overcome the aggravating circumstance(s), you may impose the death sentence. Should you find that the mitigating circumstance(s) outweigh(s) or overcome(s) the aggravating circumstance(s) you shall not impose the death sentence.

C.

The verdict you return must be written on a separate sheet of paper and [be] signed by the foreman. Your verdict should be written on one of the following forms:

1. "We, the jury, unanimously find from the evidence beyond a reasonable doubt that the following facts existed at the time of the commission of the capital murder:

[List or itemize all facts found, if any, from the list under Section A of this instruction.]

"We, the jury, unanimously find that the aggravating circumstance(s) of: [List or itemize all of the aggravating circumstances presented in Section B of this instruction which you unanimously agree exists [sic] in this case beyond a reasonable doubt.]

Is/are sufficient to impose the death penalty and that there are insufficient mitigating circumstances to outweigh the aggravating circumstance(s), and we further find unanimously that the defendant, FREDERICK BELL, should suffer death.

_____________________________ FOREMAN OF THE JURY

2. Or, you may return the following form:

"We, the jury, find the defendant should be sentenced to life imprisonment."

3. Or, you may return the following form:

"We, the jury, are unable to agree unanimously on punishment."

(Trial Tr. Vol. 2, 233-36).

On post-conviction review, the Mississippi Supreme Court considered Petitioner's claims that trial counsel failed to have the jury instructed as to the effect of his Tennessee conviction and otherwise failed to object to the trial court's "anti-sympathy" instruction. Bell II, 879 So. 2d at 445. The court noted that these claims were held procedurally barred on direct appeal based on Petitioner's failure to object at trial. Id. The court noted that it had also rejected Petitioner's claim regarding the anti-sympathy instruction on direct appeal as otherwise without merit in light of Supreme Court holdings approving of the use of such language. Id. The court determined that the argument did not support Petitioner's claim of ineffective assistance of counsel. Id.

Regarding Petitioner's argument about trial counsel's failure to have the jury instructed as to the effect of his Tennessee conviction, the court stated "[b]ecause Bell fails to cite any case where such failure supports a claim of ineffective assistance of counsel, this issue is without merit." Id. at 445. The court otherwise rejected Petitioner's argument that the holding of Simmons v. South Carolina, 512 U.S. 154, 114 S. Ct. 2187, 129 L. Ed. 2d 133 (1994), supported his claim.³⁵ Id. Referencing its holding on direct appeal regarding the issue of the Tennessee conviction, the court noted that the State argued the violent nature of the crime as an additional aggravating circumstance. Id. The post-conviction court noted that Simmons was decided after Petitioner's direct appeal and did not support Petitioner's argument, and it found that trial counsel's failure to request an instruction on the issue was not deficient performance. Id.

35 Simmons held that when future violent propensities are argued as an aggravating factor and life without parole is a jury option, the defendant is entitled to have the jury instructed that a life sentence will preclude the possibility of parole. Simmons, 512 U.S. at 168-69, 114 S. Ct. at 2196.

First, the Court determines that Petitioner has never raised a claim in State court that trial counsel rendered ineffective assistance in failing to present an argument to the trial court to support his proposed instructions, and this claim is barred. See, e.g., Ruiz v. Quarterman, 460 F.3d 638, 643 (5^th Cir. 2006) (argument based on legal theory distinct from that presented in State court fails to meet exhaustion requirement).³⁶ However, even in the absence of procedural default, Petitioner would not be entitled to relief on the merits of this claim. The United States Supreme Court has held that "each juror [must] be permitted to consider and give effect to mitigating evidence when deciding the ultimate question whether to vote for a sentence of death." McKoy v. North Carolina, 494 U.S. 433, 442-43, 110 S. Ct. 1227, 1233, 108 L. Ed. 2d 369 (1990). A sentencing instruction which creates a substantial likelihood that a juror might believe they are precluded from considering any mitigating evidence unless all jurors agree on the existence of a particular mitigating circumstance is invalid. See Mills v. Maryland, 486 U.S. 367, 108 S. Ct. 1860, 100 L. Ed. 2d 384 (1988). Petitioner attempts to parse out the instructions given to the jury in this case, but the instructions must be evaluated "with a `commonsense understanding of the instructions in light of all that has taken place at the trial.'" See Johnson v. Texas, 509 U.S. 350, 368, 113 S. Ct. 2658, 2669, 125 L. Ed. 2d 290 (1993). Sentencing Instruction No. 1 instructed that the jury must be unanimous in determining Petitioner's eligibility for the death penalty. Unanimity was required with regard to the statutory aggravating circumstances. The jury was instructed as to mitigating circumstances and instructed to weigh them against the aggravating circumstances previously found. The instruction did not require a collective consideration of mitigating circumstances, and the practical effect of the instructions did not require unanimity with regard to the consideration of mitigating circumstances. When unanimity was mentioned in the instruction, it was specifically mentioned with regard to Petitioner's death eligibility, the finding of aggravating circumstances, and the ultimate determination of whether the death penalty should be imposed. Unlike the jury instructions in Mills or McKoy, the jury in this case was not instructed that they had to agree on the existence of mitigating circumstances. Moreover, trial counsel did present two instructions for the trial court's consideration, and its rejection of those instructions as repetitive makes it unlikely that the trial court would have granted the instructions upon counsel's argument. Petitioner's arguments fail to sustain his claim of ineffective assistance of counsel.

36 Petitioner argued on direct appeal that his proffered instructions were erroneously refused. See Bell I, 725 So. 2d at 864. However, he never raised this claim in State court in the context of ineffective assistance of counsel. See Edwards v. Carpenter, 529 U.S. 446, 453, 120 S. Ct. 1587, 1592, 146 L. Ed. 2d 518 (2000) ("[A]n ineffective-assistance-of counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted.").

Petitioner also fails to demonstrate that he is entitled to habeas relief on the basis of the Mississippi Supreme Court's decision with regard to trial counsel's failure to object to the anti-sympathy language in Sentencing Instruction No. 1. It is well-settled that a jury cannot be precluded from considering any factor of a defendant's character or the circumstances of his crime in order to determine whether to return a sentence less severe than death. See Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 2964-65, 57 L. Ed. 2d 973 (1978). However, if a defendant's right to present mitigating evidence is not abridged, no constitutional deficit is created by the giving of an anti-sympathy instruction. There is a "distinction between allowing the jury to consider mitigating evidence and guiding their consideration. It is no doubt constitutionally permissible, if not constitutionally required . . . for the State to insist that `the individualized assessment of the appropriateness of the death penalty [be] a moral inquiry into the culpability of the defendant, and not an emotional response to the mitigating evidence.'" Saffle v. Parks, 494 U.S. 484, 492-93, 110 S.Ct. 1257, 1262, 108 L.Ed.2d 415 (1990) (citing California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 841, 93 L.Ed.2d 934 (1987)). Petitioner acknowledges the Supreme Court precedent on this issue, but he argues that under the law, "an anti-sympathy instruction can be given only if the court allows the defendant to introduce into evidence all factors the defendant believes to be mitigating." (Pet. Memo 100) (emphasis in original). Petitioner does not identify any evidence that he was not allowed to introduce, and he has failed to demonstrate an entitlement to relief on this issue.

Finally, the Court considers whether Petitioner is entitled to relief on the basis of the Mississippi Supreme Court's disposition of his ineffective assistance of counsel claim concerning trial counsel's failure to have the jury instructed as to the effect of Petitioner's Tennessee conviction. At the time of his trial, the jury was given the option of sentencing Petitioner to death or to life imprisonment. Petitioner relies upon Simmons v. South Carolina, to argue that he was entitled to have the jury instructed that he would not be eligible for parole if sentenced to life imprisonment. See Simmons, 512 U.S. at 162 114 S. Ct. at 2193 (in case where future dangerousness argued to jury and life without parole is sentencing option, jury entitled to have jury instructed life sentence will preclude possibility of parole). The Court must assume that Petitioner's argument is that once he had finished serving his sentence in Tennessee, the practical effect of the Mississippi conviction would be that he would never be released on parole. When Petitioner argued this substantive claim on direct appeal, the Mississippi Supreme Court noted that life without the possibility of parole was not an option in Mississippi at the time of Petitioner's 1993 trial, as the statute was not amended to include that option until 1994. See Bell I, 725 So. 2d at 865 (citing Miss Code Ann. § 99-19-101(1)).³⁷ The court also noted that a jury's consideration of whether a defendant might be paroled in the future is speculative and introduces arbitrary factors into sentencing. Id. at 866. The court denied the claim.

37 The Court notes that at the time of Petitioner's trial, a defendant's status as an habitual offender would have entitled him to an instruction regarding parole eligibility. See Miss. Code Ann. § 99-19-83 (1990 Supp.). Petitioner was not tried as an habitual offender.

In Ramdass v. Angelone, 530 U.S. 156, 120 S.Ct. 2113, 147 L.Ed.2d 125 (2000), a plurality of the Supreme Court limited the holding of Simmons to "instances where, as a legal matter, there is no possibility of parole if the jury decides the appropriate sentence is life in prison." Id. at 169, 120 S.Ct. at 2121. In this case, there was no option under the statute to allow the jury to return a verdict of life imprisonment without the possibility of parole. Petitioner has not demonstrated that the Supreme Court of the United States has ever held that a capital sentencing jury must be instructed on parole law where there is no option of sentencing a capital murderer to a term of life imprisonment without the possibility of parole. Petitioner's ineffective assistance of counsel claim is derived from the substantive claim that the trial court should have instructed the jury regarding the effect of his Tennessee conviction, and Petitioner does not demonstrate that such an instruction was required. Therefore, Petitioner cannot sustain a claim that the denial of his ineffective assistance of counsel claim was a decision contrary to, or involving an unreasonable application of, clearly established federal law. This claim is denied.

II. Trial Court's Denial of Challenges for Cause to Five Jurors

Petitioner argues that he was forced to use peremptory challenges to remove five jurors from the venire who were intimately acquainted with the victim's family and/or law enforcement personnel. He asserts that the trial court's refusal to strike these jurors for cause reduced his total number of available peremptory challenges, which resulted in a tainted jury and unfair trial. (Pet. Memo 102). Petitioner maintains that the trial court failed to properly scrutinize juror assurances of impartiality as required by law. (Pet. Memo 102-03). Petitioner argues that he was forced to use his peremptory challenges to correct the trial court's error in violation of the Sixth and Fourteenth Amendments. (Pet. Memo 103).

Specifically, Petitioner asserts that potential juror Mary Ellen Burns should have been excused for cause, as she worked with the victim's mother and voiced hesitation about her ability to be fair. (Pet. Memo 104). He asserts that potential juror Donna Yeager Cook was the daughter of a deputy sheriff in Grenada County and had engaged in conversation about the case. (Pet. Memo 104-05). He argues that potential jurors Robert Lynn Haley and Larry Lynn Sheffield regularly conducted business with the victim's father, and the victim's father told Haley prior to trial that good jurors were needed. (Pet. Memo 105). William Sid Leverette had hired the victim's father to work for him; Mr. Leverette's wife had worked with the victim's mother; the families attended the same church and were at the same ballgames; and Mr. Leverette attended the victim's funeral. (Pet. Memo 107). Petitioner asserts that the trial judge asked leading questions and willingly accepted these jurors' assurances of impartiality, and that the trial court never engaged in the scrutiny necessary to ascertain whether the jurors could actually put aside their personal views and render an unbiased verdict. (Pet. Memo 108).

Respondents maintain that Petitioner received twelve peremptory challenges in his case, which is what he was entitled to under Mississippi law. (R. Memo 123). Respondents assert that forcing a defendant to expend a peremptory challenge to remove a juror does not deny him of a constitutional right, and that Petitioner has not alleged that he was forced to accept an impartial juror because of the trial court's denial of his challenges for cause. (R. Memo 126-27). Respondents concede that the Mississippi Supreme Court did not reach the exact question presented by Petitioner's argument, as it found there had been no error in the denial of the strikes for cause, but they otherwise maintain that the decision of the Mississippi Supreme Court is not an unreasonable application of the clearly established law controlling this issue. (R. Memo 126-27).

On direct appeal, the Mississippi Supreme Court considered whether the previously mentioned five jurors should have been excused for cause. Bell I, 725 So. 2d at 845. The court declined to find that otherwise qualified potential jurors Burns and Cook should have been excused on the basis of their relation to a member of law enforcement. Id. at 846. The court noted that potential jurors Burns, Haley, Leverette, and Sheffield disclosed relationships with the victim's relatives, but that each had declared under oath that they could perform their duties as jurors. Id. The court found no abuse of discretion in the trial court's refusal to strike these jurors for cause. Id.

At the outset, the Court notes that Petitioner and Respondents disagree on the precedent that controls this Court's consideration of this claim. Petitioner argues that United States v. Martinez-Salazar, 528 U.S. 304, 120 S. Ct. 774, 145 L. Ed. 2d 792 (2000), controls. In that case, the Supreme Court of the United States noted that a trial court's deliberate misapplication of the law to force a defendant's use of a peremptory challenge to cure an error created by the trial court's denial of the proper challenge for cause might warrant reversal. Id. at 316, 120 S. Ct. at 782. Respondents argue that Ross v. Oklahoma, 487 U.S. 81, 83-85, 108 S. Ct. 2273, 101 L. Ed. 2d 80 (1988), controls the Court's consideration of this claim, as Martinez-Salazar dealt with an interpretation of Rule 24(b) of the Federal Rules of Civil Procedure.

While the United States Supreme Court has suggested that it might violate a defendant's constitutional rights for a trial court to persistently misapply the law in order to force a defendant's use of peremptory challenge, the Court has not squarely addressed that issue. See Ross, 487 U.S. at 91 n. 5, 108 S. Ct. at 2280 (noting no claim was made that the trial court "repeatedly and deliberately misapplied the law in order to force petitioner to use his peremptory challenges to correct" the error caused by the trial court's refusal to strike prospective jurors for cause); Martinez-Salazar, 528 U.S. at 316, 120 S. Ct. at 782 ("[N]o question is presented here whether [a trial court's deliberate misapplication of the law in order to force the defendant to use a peremptory challenge] would warrant reversal."). Under the AEDPA, Petitioner must demonstrate that the decision reached by the State court was contrary to or involved an unreasonable application of the "holdings, as opposed to the dicta" of the decisions of the United States Supreme Court "as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. at 412, 120 S. Ct. at 1523.

In Ross v. Oklahoma, 487 U.S. 81, 108 S. Ct. 2273, 101 L. Ed. 2d 80 (1988), the Supreme Court determined that the fact that a defendant had to exercise a peremptory challenge to remove a prospective juror that should have been excused for cause did not warrant reversal, despite the possibility that the jury panel might have been different had the court properly excused the juror. Id. at 87-88, 108 S. Ct. at 2277-78. The court determined that "peremptory challenges are not of constitutional dimension. They are a means to achieve an impartial jury. So long as the jury that sits is impartial, the fact that the defendant has to use a peremptory challenge to achieve that result does not mean that the Sixth Amendment was violated." Id. at 88, 108 S.Ct. at 2278 (internal citations omitted). The Supreme Court has also determined that when a defendant chooses to remove a potential juror who should have been excused for cause through the exercise of a peremptory challenge, he has not been deprived of his constitutional rights as long as no biased juror sat on the jury that convicted him. See United States v. Martinez-Salazar, 528 U.S. 304, 315, 120 S. Ct. 774, 781, 145 L. Ed. 2d 792 (2000). Martinez-Salazar noted that it was answering a question left unanswered by Ross, which was whether a defendant's right to the exercise of peremptory challenges pursuant to a federal rule of criminal procedure was violated by his use of a peremptory challenge to remove a juror who should have been excused for cause. See Martinez-Salazar, 528 U.S. at 317, 120 S. Ct. at 782. The Court acknowledged that the due process challenge in Ross was rejected as the defendant "received all that state law allowed him, and the fair trial that the Federal Constitution guaranteed." Id. at 313-14, 120 S. Ct. at 780.

Even if this Court were to assume that Petitioner's argument is clearly controlling federal law, there is no indication that the trial court deliberately misapplied the law in order to force Petitioner to expend his peremptory challenges. As noted by the Supreme Court, "[a] hard choice is not the same as no choice." Martinez, Salazar, 528 U.S. at 315, 120 S.Ct. at 781. The trial court questioned each prospective juror named by Petitioner regarding their ability to be impartial, and it made specific findings regarding the impartiality of each during challenges for cause. ( See Trial Tr. Vol. 3, 25-26, 30, 35-36, 38-39, 52, 65, 78; Trial Supp. Vol. 2, 7, 8-9, 10). The factual findings of the State court regarding the refusal of Petitioner's challenges for cause are afforded a presumption of correctness. See Jones v. Butler, 864 F.2d 348, 362 (5^th Cir. 1988).

The Court notes that Petitioner received the number of peremptory challenges set by statute. See Miss. Code Ann. § 99-17-3 ("In capital cases the defendant and the state shall each be allowed twelve peremptory challenges."). Additionally, none of the prospective jurors complained of here sat on the jury. Petitioner has not demonstrated that he was forced to accept an unqualified juror as a result of the trial court's refusal to strike these jurors for cause. Accordingly, he has not demonstrated that the decision of the Mississippi Supreme Court was contrary to, or involved an unreasonable application of, clearly established federal law. See Mitchell v. Esparza, 540 U.S. 12, 15-16, 124 S. Ct. 7, 10, 157 L. Ed. 2d 263 (2003) (state court need not cite to Supreme Court or even be aware of its precedent as long as the reasoning and result of the decision does not contradict established precedent).

III. Excluding Women from Jury for Cause

Petitioner argues that his Sixth Amendment right to a fair cross-section of the community was denied when the trial court excused Nancy Ringo and Vera Saulters from jury service because both of them were in charge of caring for children. Petitioner maintains that the record establishes that both women could have found someone to care for the children in their absence. (Pet. Memo 108-111). Respondents argue that this claim is barred on independent and adequate State law grounds, as Petitioner failed to make a contemporaneous objection to the challenges for cause granted by the trial court with regard to these two women. (R. Memo 130). Without waiving the bar, Respondents assert that both women were excused for legitimate hardship reasons and not automatically removed on the basis of their gender. (R. Memo 128, 132).

On direct appeal, the Mississippi Supreme Court found that the record did not support Petitioner's claim that these jurors were automatically excluded on the basis of their gender. Bell I, 725 So. 2d at 846. The court first noted that defense counsel did not object when Ringo and Saulters were excused, and it otherwise noted that the women were examined and excused after the trial court considered whether their obligations would make sequestered jury service unduly burdensome or otherwise undermine their ability to focus and perform their duties as jurors. Id. at 847. The court found that Ringo kept her daughter's small children so that their mother would not have to miss work, and that Saulters was the mother of two children whose husband was working out of town for the following two days. Id. The court found no error in the exclusion of the two women, as it was "clearly neither a gender-based exclusion nor the deprivation of a fair cross-section of the community . . . it simply was not an unreasoned, automatic exclusion of women with families. There was no error in the exclusion of these jurors." Id.

At trial, the judge informed prospective jurors that they would likely be sequestered for at least two nights and inquired whether anyone felt as though they would not be able to give the case attention due to some concern for the welfare of the children under their care. ( See Trial Tr. Vol. 3, 65-66). Ms. Vera Saulters informed the trial court that she had two children at home and her husband had an out-of-town business trip planned for the following two days. ( Id. at 66). The trial judge suggested that Ms. Sautlers' husband would simply have to cancel his plans if she were chosen for jury service, to which Ms. Saulters' hesitantly agreed. ( See id. at 71). Ms. Nancy Ringo stated she cared for her two small grandchildren, and that her daughter would have to miss work to care for the children if Ms. Ringo served on the jury. ( See id. at 70-71). During challenges for cause, the State asked that all jurors be struck who stated that they could not be fair and impartial because of their concern for the welfare of their children. ( See id. at 93). The trial judge stated that he would strike those persons who "in some cases [had] . . . absolutely no one who could take care of their children," as well as those who "were not going to be able to give this case the attention it deserved" due to their concern for their children. ( See id. at 93-94). Ringo and Saulters were struck for cause on that basis. ( See id. at 94).

Petitioner argues that the trial court's actions relied upon archaic stereotypes of women as caregivers and engaged in gender-based discrimination in violation of the Equal Protection Clause. See J.E.B. v. Alabama, 511 U.S. 127, 139-140, 114 S. Ct. 1419, 1426-27, 128 L. Ed. 2d 89 (1994). However, States may properly grant exemptions from jury service on the basis of the hardship such service would impose. See Taylor v. Louisiana, 419 U.S. 522, 534, 95 S. Ct. 692, 700, 42 L. Ed. 2d 690 (1975) ("The States are free to grant exemptions from jury service to individuals in case of special hardship or incapacity and to those engaged in particular occupations the uninterrupted performance of which is critical to the community's welfare."). Additionally, under Fourteenth Amendment jurisprudence, peremptory strikes "based on characteristics that are disproportionately associated with one gender could be appropriate, absent a showing of pretext." J.E.B., 511 U.S. at 143, 114 S. Ct. at 1429.

In Taylor, the Court considered whether a statutory provision automatically excluding all women from jury service on the basis of gender absent an affirmative request for service violated a defendant's right to a fair cross-section of the community. The court determined that a defendant's Sixth Amendment right to a fair jury trial is not obtained when "identifiable segments" of the community are excluded from participation. Taylor, 419 U.S. at 530, 95 S. Ct. at 698. The Court also recognized that there must be "much leeway in application" of the fair cross-section principle and stated that as long as "the jury lists or panels are representative of the community," the States remained free to create qualifications for jury service and provide exemptions from service. Id. at 538, 95 S. Ct. at 701.

Unlike the situation in Taylor, this case does not involve an automatic exclusion of women from the jury pool on the basis of gender. The trial court did not attempt to eradicate women from the jury, and Petitioner has not shown that it is unreasonable to find that Ringo and Saulters were not excluded from jury service on the basis of their gender. Petitioner has also made no showing that women in the venire were under-represented due to systematic exclusion. Out of the twelve jurors who heard Petitioner's case, ten of them were women. ( See Trial Tr. Vol. 2, 186)³⁸; see also Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 668, 58 L. Ed. 2d 579 (1979) ("In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a `distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under representation is due to a systematic exclusion of the group in the jury-selection process."). Petitioner has not demonstrated that the Mississippi Supreme Court's disposition of this claim is contrary to or involves an unreasonable application of clearly established federal law, and he is not entitled to federal habeas relief on this claim.

38 Sue Brannan, Pauline Elliott, Debbie Harville, Susan Jones, Lisa Lindley, Linda McCuan, Sherry Parvin, Shelby Pigg, Dorothy Rice, and Bobby Thorpe were all women who served on Petitioner's jury. ( See Trial Tr. Vol. 2, 186). The record indicates that Ottis Stark and Cayce Lancaster were male jurors. ( See Trial Tr. Vol. 2, 184).

IV. Trial Court Prohibited Petitioner from Impeaching Accomplice Coffey for Bias

Petitioner asserts that the trial court improperly prohibited him from introducing evidence that Coffey's trial testimony against him was biased. (Pet. Memo 118).³⁹ (Pet. Memo 118). Coffey had been convicted of solicitation to commit murder in Memphis, Tennessee, subsequent to the crime for which Petitioner was on trial, and he received a sentence of three years' imprisonment for that crime. (Pet. Memo 118). Petitioner received a sentence of twenty-five years for his involvement in the Memphis murder. (Pet. Memo 118). During Petitioner's trial for the murder of Bert Bell, the trial judge sustained the prosecutor's objection to the introduction of evidence of Coffey's conviction in Memphis under Mississippi Rule of Evidence 609.⁴⁰ (Pet. Memo 118). Petitioner argues that the rule only allows discretionary admission of prior convictions. (Pet. Memo 118). Moreover, Petitioner maintains that the trial court failed to weigh on the record the probative value against the prejudicial effect of the prior conviction, as is required pursuant to Mississippi law. (Reply 20).⁴¹

39 Coffey was also indicted in the instant case as an accessory to capital murder. (Pet. Memo 118).

40 For the purpose of attacking the credibility of a witness, (1) evidence that (A) a nonparty witness has been convicted of a crime shall be admitted subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and (B) a party has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the party. Miss. R. Evid. 609.

41 Petitioner also acknowledges that the burden of persuading the trial court to admit the impeachment evidence belonged to him, but that this burden was not met due to defense counsel's ineffectiveness. (Pet. Memo 118-19). Petitioner also argues in this claim that trial counsel failed to impeach Coffey on prior inconsistent statements given to police on May 7, 1991. (Pet. Memo 118-19).

On direct appeal, the Mississippi Supreme Court considered Petitioner's claim and noted the damning testimony Coffey gave against Petitioner. See Bell I, 725 So. 2d at 849. While the court acknowledged that the trial court failed to articulate on the record that the prejudicial effect of the evidence outweighed its probative value as required by Miss. R. Evid. 609(a), the court found the record clear that the trial judge had considered the probative value and prejudicial effect in making his determination. Id. The court also determined that the trial judge noted that the defense could attack Coffey's credibility by bringing out the fact that he was indicted as an accessory in the murder of Bert Bell. Id. The court concluded that:

[h]ere the judge faced a particularly difficult choice, for if he allowed evidence of Coffey's Memphis conviction while excluding that of Bell, the jury would have seen that conviction in an unreal light. Finally, as observed above, the jury was instructed that Coffey's testimony in particular was to be viewed with suspicion. Had he decided to allow both convictions, there is no doubt that Bell would have been seriously prejudiced. Considering all these circumstances, we find that no error was committed by the exclusion of the fact that Coffey had been convicted of the Memphis crime.

Id. at 849.

Following jury selection but prior to the giving of testimony at trial, defense counsel stipulated to the introduction of three pistols found in a house in Memphis where Petitioner was an occupant. Trial counsel made the stipulation to prevent testimony regarding the chain of custody of the pistols, as that testimony might reveal that Petitioner was arrested by the Memphis Police Department on May 7, 1991, for murder. ( See Trial Tr. Vol. 3, 103-04). At that time, defense counsel noted that his motion to prevent the introduction of any evidence of Petitioner's prior bad acts had been granted and that he did not wish to open the door to any testimony involving the Memphis murder. ( See id. at 104-05). Immediately following the discussion about the stipulation of evidence, the State made a motion in limine to prevent defense counsel from asking Frank Coffey questions about his prior bad acts. ( See id. at 105). The State argued that since the prior bad acts of Doss and Petitioner could not be mentioned, the defense should not be allowed to question the State's witness about pleading guilty to a lesser offense for the same crime. ( See id.). The trial court granted the motion insofar as it precluded questioning about the fact that Coffey pled guilty to a crime in Tennessee, but the court agreed to allow defense counsel to present argument on the issue prior to Coffey's testimony. ( See id. at 106).

The following morning, on January 27, 1993, the trial court considered Petitioner's request that he be allowed to introduce evidence of Frank Coffey's conviction in Memphis, and the trial court stated:

[T]he Court understands Mr. Coffey's conviction came as a result of a guilty plea entered in Memphis in connection with a murder in Memphis, to which the Defendant, Frederick Bell, Defendant in this case, also entered a guilty plea, and the Court believes it to be inconceivable I could allow the defense to present evidence about that conviction and not allow the State to do the same in case the Defendant took the stand. I have looked repeatedly at the Peterson case, and it's the Court's opinion that it would be — that the request should be denied, to both the State and the Defendant.

( See Trial Tr. Vol. 4, 206). Subsequently, Coffey gave testimony as one of only two eyewitnesses to the crime. He testified that Petitioner planned and executed the robbery and that Petitioner was in possession of a gun before the robbery. ( See Trial Tr. Vol. 4, 209-10). Coffey also testified that Petitioner had confessed to him that he shot Bert Bell. ( See id. at 224).

Petitioner's claim on federal habeas review is that he was denied his right to show that Coffey was biased, in violation of his rights guaranteed by the Confrontation Clause of the Sixth Amendment. The Supreme Court of the United States has held that the potential bias of a witness may be explored at trial and is "always relevant as discrediting the witness and affecting the weight of his testimony." Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347 (1974). A trial court should allow a great latitude in the cross-examination of a witness who has an incentive to lie or falsify testimony, particularly when that witness is an accomplice or someone cooperating with the government. See United States v. Hall, 653 F.2d 1002, 1008 (5^th Cir. 1981). At issue is whether Petitioner was provided a sufficient opportunity to expose the jury to facts from which it could draw conclusions about Coffey's credibility and potential biases. See United States v. Hamilton, 48 F.3d 1499, 155-56 (5^th Cir. 1995); Mills v. Singletary, 161 F.3d 1273, 1288 (11^th Cir. 1998) (as long as cross-examination is permitted that exposes the jury to sufficient facts to make an evaluation of the witness' credibility and enables the defense to establish a record from which he can argue the witness is not reliable, the Confrontation Clause is satisfied). If Petitioner was allowed a sufficient opportunity to cross-examine Coffey so that no Confrontation Clause violation occurred, the trial judge had authority to place limits on the scope of Coffey's cross examination based on his concern of prejudice to Petitioner. See Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674 (1986) (trial judge possesses "wide latitude" under the Confrontation Clause to place reasonable limits on cross-examination based on legitimate concerns).

The record in this case does not support a finding that Petitioner was denied an opportunity to expose the jury to facts from which it could draw conclusions about Coffey's credibility or biases. During cross-examination, defense counsel questioned Coffey's prior statement to police that implicated only Anthony Doss in the crime. ( See Trial Tr. Vol. 4, 217-218). Counsel also questioned Coffey about the fact that he was being held in jail on a charge of accessory to capital murder for his involvement in the instant case, and counsel questioned him regarding whether he was receiving leniency in exchange for his testimony against Petitioner. ( See id. at 221). Finally, the jury was charged that "the law looks with suspicion on the testimony of an alleged accomplice, and requires the jury to weigh same with great care and caution and suspicion. You should weigh the testimony from alleged accomplice, Frank Coffey, and passing on what weight, if any, you should give this testimony, you should weigh it with great care and caution and look upon it with suspicion." ( See Trial Tr. Vol. 2, 191, Instruction DG-13).

In this case, defense counsel stipulated evidence to avoid opening the door to evidence that an unlimited examination of Coffey would have allowed. Coffey was questioned about his motive to testify against Petitioner at trial, and a cautionary instruction was given to the jury concerning Coffey's testimony. As the jury had sufficient information before it to make a determination as to Coffey's credibility, Petitioner was not prejudiced by the exclusion of evidence of Coffey's Tennessee conviction. Petitioner has not shown that the Mississippi Supreme Court's decision declining to find error in the trial court's exclusion of Coffey's Tennessee conviction was a decision contrary to, or involving an unreasonable application of, the clearly established law with regard to a defendant's right to confrontation of witnesses against him.⁴²

42 The Court notes that if it had found an infringement on Petitioner's Sixth Amendment rights, it would have engaged in a harmless-error analysis regarding the omitted testimony. See Van Arsdall, 475 U.S. at 684, 106 S. Ct. at 1438.

V. "Another Offense" Evidence

Petitioner maintains that it was error for the trial court to allow testimony from Robert James and Frank Coffey that Petitioner had threatened to kill James, as the testimony was essentially propensity evidence that deprived Petitioner of his right to be tried only on the indicted charges. (Pet. Memo 120-22). Petitioner further asserts that this evidence was introduced during the guilt phase of trial, which was inappropriate even if the evidence could have been properly admitted during the penalty phase. (Pet. Memo 122).

The Mississippi Supreme Court considered Petitioner's claim on direct appeal, where it determined Petitioner's argument concerning Mississippi Rule of Evidence 404(a) ⁴³ was inapplicable

43 Pursuant to Mississippi Rules of Evidence, "[e]vidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion," with limited exceptions. Miss. R. Evid. 404(a).

since this evidence was not admitted as character evidence indicative of a propensity to commit murder, but directly as evidence of the crime charged. [Petitioner's] threats upon the life of James, or more accurately, his musings and debates over whether or not to kill James, were made in the midst of describing the killing of Bert and while displaying the weapon used. They show a great deal of concern immediately following the crime of his vulnerability to punishment for the crime charged in this case. On study of the record, we cannot see how these important details could have been related in a sanitized version of James' and Coffey's testimony, nor do we see any obligation on the State to do so.

Bell I, 725 So. 2d at 850.

The court further noted that evidence of Petitioner's unrelated crimes or acts was not admissible to prove conformity with his actions in the crime charged, but that those acts or crimes "intimately connected with the crime charged as to be necessary to the telling of a complete and clear story are admissible." Id. at 850.⁴⁴ The court otherwise found that there was no error in the trial court's failure to make an on-the-record finding regarding the weight of the evidence's probative value against its prejudicial effect, as the evidence at issue was directly related to the charged crime. Id. at 850-51. The court also dismissed Petitioner's argument that the State's reference during closing argument to the testimony of James and Coffey was used as propensity evidence, and the court found the State's comment a "legitimate use of the evidence to show [Petitioner's] fear of retribution." Id. at 851.

44 "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Miss. R. Evid. 404(b).

At trial, defense counsel objected during James' testimony when he believed that the State was preparing to solicit testimony from James that Petitioner had threatened him. ( See Trial Tr. Vol. 4, 194). The State argued that Petitioner's attempt to threaten James to conceal the crime was one of the aggravating circumstances in the case. ( See id. at 194-95). The trial court agreed and added that the testimony was necessary to clarify James' testimony while telling the complete story of the crime. ( See id. at 195). James subsequently testified that Petitioner had told him that "he didn't need no witnesses" while holding a .38 caliber pistol. ( See id.). Frank Coffey also testified that he heard Petitioner threaten James, and that he told Petitioner that James would not say anything about what had happened. ( See id. at 213, 215).

This Court does not review the trial court's evidentiary ruling. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 480, 116 L. Ed. 2d 385 (1991) (court on habeas review may not review state court rulings on admissibility of evidence under state law). Rather, the inquiry is whether the ruling violated Petitioner's right to fundamental fairness. See Neal v. Cain, 141 F.3d 207, 214 (5^th Cir. 1998). Even if the admission of prejudicial evidence was error, the Court must consider whether the admission was a "crucial, highly significant factor" in the jury's decision. Id. In so doing, the Court notes that the United States Supreme Court has determined that the categories of errors by a trial court that violate a defendant's due process rights are defined "very narrowly." See Dowling v. United States, 493 U.S. 343, 352-53, 110 S. Ct. 668, 674, 107 L. Ed. 2d 708 (1990).

Petitioner's argument that he was tried on offenses not contained in the indictment returned against him warrants little discussion. The Fifth Amendment to the Constitution provides a guarantee that a defendant will be tried only for capital or "infamous" offenses that have been presented in an indictment and returned by a grand jury. See U.S. Const. Amend. V. Petitioner's reliance upon Stirone v. United States, 361 U.S. 212, 80 S. Ct. 270, 4 L. Ed. 2d 252 (1960), is without application in this case. Stirone was found guilty of a crime of a greater degree than the one for which he was indicted, while Petitioner was found guilty of the capital murder charged in the indictment. The testimony at trial regarding Petitioner's threats to James did not go to a separate, uncharged crime, but rather, as part of the same series of events for the charged crime. Petitioner was tried on an indictment that charged "the offense for which he was ultimately convicted," and his Fifth Amendment rights were not violated. United States v. Miller, 471 U.S. 130, 140, 105 S. Ct. 1811, 1817, 85 L. Ed. 2d 99 (1985)

Likewise, Petitioner's argument that the admission of the evidence was improper evidence of his propensity to commit the charged crime does not warrant habeas relief. While evidence of another crime is inadmissible to show that a defendant's behavior in the instant crime was in conformity with the prior act, it may be admissible to show "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Ballenger v. State, 667 So. 2d 1242, 1256 (Miss. 1995) (citing Miss. R. Evid. 404(b)). The Mississippi Supreme Court has consistently found that where the other offense evidence is closely related to the offense charged and is necessary in telling the jury a complete story, the evidence is admissible. See, e.g., Underwood v. State, 708 So. 2d 18, 31-32 (Miss. 1998) ("Proof of another crime is admissible where the offense charged and that offered to be proved are so interrelated as to constitute a single transaction or occurrence or a closely related series of transactions or occurrences."); Davis v. State, 530 So. 2d 694, 697-98 (Miss. 1998) (other crime evidence admissible if probative of motive or forms part of a chain of events that must be heard in order to tell complete story); Mackbee v. State, 575 So. 2d 16, 27-28 (Miss. 1990) (evidence given in order to tell rational, complete story admissible even though it might reveal other crimes); Robinson v. State, 497 So. 2d 440, 442 (Miss. 1986) (evidence admissible where other offense formed single transaction with crime charged). The trial court's admission of this evidence was in accordance with State law, and Petitioner was not denied his due process rights by the introduction of this evidence. See Reese v. Wainwright, 600 F.2d 1085, 1090 (5^th Cir. 1979) (evidence of contemporaneous activity not in error where admissible under state law as part of res gestae, and even if error, the admission of the evidence was not error of constitutional proportion). Petitioner has not demonstrated that the Mississippi Supreme Court's resolution of this claim warrants relief under the AEDPA, and federal habeas relief on this claim is denied.

VI. Photographs of Deceased

Petitioner argues that the trial court denied him the right to a fair trial by admitting, over defense counsel's objection, ten unduly prejudicial photographs and corresponding slides of the bleeding victim. (Pet. Memo 122-24). Petitioner argues that these repetitive exhibits went to no contested issue and should have been excluded. (Pet. Memo 124-25). Petitioner asserts that the photographs represent evidence whose probative value was substantially outweighed by the danger of unfair prejudice, and that such an admission is a cognizable due process violation when there is a close question on the issue of guilt. (Pet. Memo 123).

Federal courts review State evidentiary rulings only to determine whether the introduction of the evidence "so infused the trial with unfairness as to deny due process of law." Lisenba v. California, 314 U.S. 219, 228-29, 62 S. Ct. 280, 286, 86 L. Ed. 166 (1941). Therefore, the evidentiary rulings of a state court are not cognizable in federal habeas corpus unless it is determined that the trial was rendered fundamentally unfair as a result of the evidentiary error. See, e.g., McGuire, 502 U.S. at 67-68, 112 S. Ct. at 480; Lisenba, 314 U.S. at 228-29, 62 S. Ct. at 286; Derden v. McNeel, 978 F.2d 1453, 1458 (5^th Cir. 1992) (en banc). An unfair trial is one which has been "largely robbed of dignity due a rational process" in the sense that the erroneous admission was a "crucial, critical, highly significant factor" in the trial. Johnson v. Blackburn, 778 F.2d 1044, 1050 (5^th Cir. 1985) (internal citations omitted).

Under Mississippi law, photographs have evidentiary value and are admissible if they describe circumstances surrounding the death, or if they serve to clarify the testimony of a witness. See, e.g., Neal v. State, 805 So. 2d 520, 524 (Miss. 2002). Such evidentiary rulings will not be disturbed absent an abuse of discretion, and a trial judge's discretion in the admission of such evidence is "almost unlimited . . . regardless of gruesomeness, repetitiveness, and the extenuation of probative value." Brown v. State, 690 So. 2d 276, 289 (Miss. 1996). If the evidence has probative value and will serve an evidentiary purpose, it is admissible, "even if gruesome, grisly, unpleasant, or even inflammatory." Noe v. State, 616 So. 2d 298, 303 (Miss. 1993).

On direct appeal, the Mississippi Supreme Court determined that the photographs "showed the position of the body and the location and nature of the wounds. . . . Here, considering questions raised as to who had which gun, what were the fatal shots, and who fired those shots, we cannot say that the circuit judge committed . . . an abuse [of discretion]." Bell I, 725 So. 2d at 856. A review of the record in this case yields support for a determination that the photographs served an evidentiary purpose. The evidence supplemented and clarified the testimony of Dr. Steven Hayne, the pathologist who testified at trial. Dr. Hayne testified to the number and extent of wounds to the body, and he testified as to which wounds were lethal. ( See Trial Tr. Vol. 4, 226-241). Moreover, defense counsel cross-examined Dr. Hayne regarding the trajectory of the fired bullets, as well as the distance from which the shots were fired. ( See id. at 240-42). The evidence was sufficiently probative to support its introduction. See Kuntzelman v. Black, 774 F.2d 291, 292 (8^th Cir. 1985) (per curiam) (affirming denial of habeas relief where court admitted gruesome photographs of murder victim's body from autopsy because they showed identity and condition of victim, location of wound, and defendant intent); Smallwood v. Gibson, 191 F.3d 1257, 1275 (10^th Cir. 1999) (photographs of victim's burned body probative, crime itself gruesome, and defendant's trial not unfair where "wealth of additional evidence" supported conviction); United States v. Brown, 441 F.3d 1330, 1362-63 (11^th Cir. 2006) (no abuse of discretion by district court in admitting color photographs of victim's body where photographs probative of fact of death, nature of wounds, and presence of aggravating factor of heinous manner of offense). As the photographs had probative value and did not mislead the jury or misrepresent facts, the trial was not rendered unfair by their introduction. See, e.g., Woods v. Johnson, 75 F.3d 1017, 1038-39 (5^th Cir. 1996), cert. denied, 519 U.S. 854, 117 S.Ct. 150, 136 L.Ed.2d 96 (1996). Petitioner is entitled to no relief on this claim.

VII. Unreliable Jury Findings

Petitioner asserts that the circumstances of his case prevented a reliable jury finding that he was requisitely culpable to deserve a sentence of death. (Pet. Memo 128-132). At trial, the jury was given an aiding and abetting instruction that provided, in part, that the jury could find Petitioner guilty as a principal if they found he did any act "immediately connected with" the crime.⁴⁵ Petitioner maintains that the instruction could have led the jury to believe it could transfer Doss' intent to Petitioner, even if Petitioner was merely an accomplice after the fact. (Pet. Memo 127-28).⁴⁶ Petitioner contends that the jury was incorrectly instructed on the law in this case and never made a proper determination as to his intent. (Pet. Memo 129-131). Petitioner relies upon Cabana v. Bullock, 474 U.S. 376, 106 S. Ct. 689, 88 L. Ed. 2d 704 (1986), abrogated on other grounds by Pope v. Illinois, 481 U.S. 497, 503 n. 7, 107 S. Ct. 1918, 1928 n. 7, 95 L. Ed. 2d 439 (1987), to argue that the jury findings in his case are insufficient to sustain a sentence of death. (Pet. Memo 129). Petitioner's argument is essentially that the jury in his case was not required to make a determination that he was actually responsible, as opposed to legally responsible, for the murder of Bert Bell.

45 The Court discussed this instruction, supra, at 61-64. ( See also Trial Tr. Vol. 2, 193, Instruction S-2).

46 The Court notes that Petitioner argues that the evidence at trial "has been demonstrated to be false and unreliable," as Doss has altered his story many times while Petitioner has consistently maintained that he was in Memphis, Tennessee, at the time of the murder. (Pet. Memo 129-30). He also references the affidavits filed during the course of his federal habeas proceedings in support of this argument. (Pet. Memo 130-31). The Court is uncertain how these allegations, none of which were presented to the jury, constitute a fatal flaw in the manner in which the jury was instructed. These allegations are irrelevant to the instant claim.

On direct appeal, the Mississippi Supreme Court considered Petitioner's argument that the accomplice liability instructions in the guilt phase allowed Petitioner to be convicted without a required finding of intent. Bell I, 725 So. 2d at 860. The court noted that Petitioner's argument was essentially a reiteration of the arguments made as to the jury instructions at the guilt phase of trial, which the court found without merit. Id. at 861. Noting that the jury specifically found Petitioner had intended a killing take place and contemplated that lethal force would be employed, the court held that a reliable verdict was reached. Id.

The Court has already addressed Petitioner's argument with respect to the accomplice jury instruction and found the Mississippi Supreme Court's disposition of the claim not unreasonable or contrary to federal law. Therefore, the Court here concerns itself with whether the jury was presented with evidence from which it could make a determination of Petitioner's culpability that would support its finding that he should be sentenced to death. In Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982), the Supreme Court of the United States held that the death penalty may be imposed only where a defendant kills, attempts to kill, intends to kill, or contemplates that lethal force will be employed in carrying out a felony. Id. at 796, 102 S. Ct. at 3376; see also Tison v. Arizona, 481 U.S. 137, 107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987) (holding that major participation in the felony with reckless indifference to human life is an additional category that satisfies the culpability requirement). In finding that Petitioner should be sentenced to death for the murder of Bert Bell, the jury determined that Petitioner actually killed, that he attempted to kill, that he intended to kill, and that he contemplated lethal force would be used in carrying out the armed robbery. ( See Trial Tr. Vol. 2, 240) ( see also Miss. Code Ann. § 99-19-101(7)(a)-(d) (requiring that jury make written finding of at least one of the Enmund factors prior to imposing sentence of death).

Additionally, the Court notes that at issue in Cabana was a consideration of who could properly make a determination as to a defendant's culpability if one of the categories in Enmund was found not satisfied after the jury's verdict. See Cabana, 474 U.S. at 390, 106 S. Ct. at 699 (Court noting purpose of Enmund discussion was to outline the "appropriate course of action for a federal court faced with an Enmund claim when the state courts have failed to make any finding regarding the Enmund criteria"). Sufficient evidence was presented to support a finding that Petitioner was requisitely culpable of the murder of Bert Bell. Moreover, the jury in this case found that all four Enmund factors were present, which forecloses the possibility that they might have convicted Petitioner on the basis of accomplice liability. That finding is afforded a presumption of correctness on federal habeas review. See id. at 387-88, 106 S. Ct. at 697-98. Petitioner has not offered sufficient evidence to rebut that finding, and he is not entitled to relief on this claim.

VIII. Disproportionate Penalty

Petitioner maintains that his death sentence is a disproportionate punishment. (Pet. Memo 136). Petitioner argues that courts faced with the issue of proportionality must first examine how society views the challenged punishment, and then they must determine whether the sentence is purposeless or grossly disproportionate to the crime's severity. (Pet. Memo 137). Petitioner maintains that his death sentence is not proportionate under either prong of the analysis. (Pet. Memo 137).

Petitioner first addresses the issue of society's views of the death penalty. Petitioner cites to statistical data to argue that the number of persons sentenced to death in the last decade has decreased dramatically, which is representative of society's increasing disapproval of the death penalty. (Pet. Memo 138).⁴⁷ He also argues that the categories of defendants eligible to receive the death penalty was narrowed by the United States Supreme Court in Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) (unconstitutional to execute those with mental retardation) and Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2002) (unconstitutional to execute those under age eighteen at the time crime committed). (Pet. Memo 138). Petitioner notes that twelve states plus the District of Columbia do not permit the death penalty as a means of punishment, and that out of the thirty-eight states that currently allow the death penalty, six states have not executed anyone since 1976. (Pet. Memo 138, citing Ex. LL). Finally, Petitioner asserts that the United States' acceptance of capital punishment is not endorsed by international practice. (Pet. Memo 139).

47 Petitioner has attached the document "Death Penalty Information Center Facts" as an exhibit to his memorandum in support of his petition for writ of habeas corpus. ( See Pet. Memo, Ex. LL).

As to the second prong of this analysis, Petitioner argues that his sentence is disproportionate in light of his ancillary involvement in the crime. (Pet. Memo 140).⁴⁸ He maintains that his punishment is clearly excessive in light of the punishment given Coffey and the lack of charges against James, particularly as Petitioner only concealed the weapons after the murder. (Pet. Memo 140-41). He argues that there was no evidence presented to support the State's motive of robbery, and that there was no evidence that he fired any fatal shots. Petitioner contends that analyzing both prongs of the proportionality analysis requires this Court to reverse his death sentence, as it fails to comport with clearly established law requiring that his sentence be proportionate to the crime.

48 Petitioner argues that Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) should guide the Court's analysis. Solem held that a proportionality analysis considers (1) the gravity of the crime and harshness of the resulting penalty; (2) sentences imposed on others in the same jurisdiction; and (3) sentences imposed on others for the same crime in other jurisdictions. See id. at 292, 103 S.Ct. at 3011.

On direct appeal, the Mississippi Supreme Court considered whether Petitioner's sentence was disproportionate when compared to the penalty imposed in similar cases. See Bell I, 725 So. 2d at 867.⁴⁹ The court noted that the jury found that Petitioner:

49 The Mississippi Supreme Court is required by statute to consider "[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant[.]" Miss. Code Ann. § 99-19-105(3)(c).

intended to, attempted to, and did actually kill Bert during the commission of an armed robbery in which he contemplated the use of lethal force. They were aware that he had killed another prior to trial. When given the opportunity, Bell offered no real mitigating circumstances, he simply continued to deny being present or committing the act. The jury had before it evidence that Bell actually fired at least some of the fatal shots. There are no indications that Bell suffered from any mental or emotional deficiency.

Id. Noting that they could not conclude that Petitioner's participation in the murder was comparable to the cases he cited supporting his argument of a disproportionate sentence, the court found Petitioner's sentence was not disproportionate or excessive. Id.

Petitioner's claim, to the extent he has argued that the Mississippi Supreme Court erred in its proportionality review, is not cognizable on federal habeas review. See Lewis v. Jeffers, 497 U.S. 764, 780, 110 S. Ct. 3092, 3102, 111 L. Ed. 2d 606 (1990); McCleskey v. Kemp, 481 U.S. 279, 306-08, 107 S. Ct. 1756, 1774-75, 95 L. Ed. 2d 262 (1987); Pulley v. Harris, 465 U.S. 37, 43-44, 104 S. Ct. 871, 875-76, 79 L. Ed. 2d 29 (1984). A state system of capital punishment that channels the jury's discretion by allowing consideration of particularized characteristics of both the defendant and the offense presumes no constitutional violation in the sentence's imposition. See McCleskey, 481 U.S. at 308, 107 S. Ct. at 1775. This Court is not required to "look behind" a state court's finding of proportionality to avoid the arbitrary or capricious imposition of a death sentence when the state procedure sufficiently guides the sentencer. See Walton v. Arizona, 497 U.S. 639, 655-56, 110 S. Ct. 3047, 3058, 111 L. Ed. 2d 511 (1990), overruled on other grounds by Ring v. Arizona, 536 U.S. 584, 589, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). Moreover, Petitioner cannot support his claim by arguing that similarly situated defendants did not receive a sentence of death. See McCleskey, 481 U.S. at 306-07, 107 S. Ct. at 1775 ("[A]bsent a showing that the [State] capital punishment system operates in an arbitrary and capricious manner, [Petitioner] cannot prove a constitutional violation by demonstrating that other defendants who may be similarly situated did not receive the death penalty.") (emphasis in original).

The Mississippi Supreme Court found that the jury made a determination that Petitioner was culpable of the robbery/murder at issue, and the jury found from the presented evidence that the aggravating circumstances supported a sentence of death. The Supreme Court of the United States has not held that it offends the Eighth Amendment for a person convicted of robbery and murder to be sentenced to death, and Petitioner has not presented this Court with evidence that the Mississippi Supreme Court rejected this claim in a departure from precedent in its review such that this claim could be considered a denial of due process. See Pulley, 465 U.S. at 41-42, 104 S. Ct. at 874-75; Donnelly, 416 U.S. at 642, 94 S. Ct. at 1871 (absent specific constitutional violation, federal habeas review limited to consideration of whether error "so infected the trial with unfairness as to make the resulting conviction a denial of due process"). Petitioner is not entitled to relief on this claim.

IX. Prosecutorial Misconduct ⁵⁰

50 The Court considered the issue of the prosecutor's alleged misconduct in his closing argument during the sentencing phase in the context of Petitioner's ineffective assistance of counsel claim. See Part I, supra at 85-88. The Court has combined what is listed as Ground XI and Ground XIX in the petition for writ of habeas corpus for the sake of convenience, but both claims argue that the closing argument of the prosecutor violated Petitioner's constitutional rights.

Petitioner alleges that the prosecutor improperly vouched for the credibility of the State's witnesses, argued extraneous factors, and gave his personal opinion of Petitioner's guilt during his closing argument at the guilt phase of Petitioner's trial. ( See Pet. Memo 143, 187-94). Petitioner maintains that the prosecutor's misuse of closing argument deprived him of his rights under the Sixth, Eighth, and Fourteenth Amendments. Respondents assert that this claim and its sub-parts are procedurally barred by an independent and adequate State law. (R. Memo 174, 204). Without waiving the bar, Respondents contend that the Mississippi Supreme Court's alternative holding on the merits of the claims does not warrant federal habeas relief. (R. Memo 177, 214).

On direct appeal, the Mississippi Supreme Court determined that trial counsel's failure to contemporaneously object to the prosecutor's closing argument required it to find Petitioner's claim procedurally barred in the absence of a determination that the argument denied Petitioner a fair trial. See Bell I, 725 So. 2d at 851. In an alternative consideration of the merits of Petitioner's claim, the court found that Petitioner's right to a fair trial was not denied by the prosecutor's argument. See id. at 851-853.

Where the State court "clearly and expressly bases its dismissal of a claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal," the claim is procedurally defaulted for purposes of federal habeas review. See, e.g., Bledsue v. Johnson, 188 F.3d 250, 254 (5^th Cir. 1999). In this case, the Mississippi Supreme Court found Petitioner's arguments "all procedurally barred" for failure to lodge a contemporaneous objection and thereby fulfill the State procedural rule. Petitioner has not attempted to argue that Mississippi has not strictly or regularly applied the bar to similar claims, and the Court of Appeals for the Fifth Circuit has held that Mississippi's contemporaneous objection rule has been regularly and consistently applied. See Smith v. Black, 970 F.2d 1383, 1387 (5^th Cir. 1992); Stokes v. Anderson, 123 F.3d 858, 860 (5^th Cir. 1997) (petitioner arguing procedural bar not strictly or regularly applied bears burden of demonstrating State fails to apply bar to similar claims). The Mississippi Supreme Court's alternative discussion of the merits of Petitioner's claims does not vitiate the imposed bar. See Harris v. Reed, 489 U.S. 255, 264 n. 10, 109 S. Ct. 1038, 1044 n. 10, 103 L. Ed. 2d 308 (1989); Fisher v. Texas, 169 F.3d 295, 300 (5^th Cir. 1999) ("A state court expressly and unambiguously bases its denial of relief on a state procedural default even if it alternatively reaches the merits of a defendant's claim.").

Petitioner's claims of ineffective assistance of counsel do not constitute cause for the default and resulting actual prejudice that would overcome the imposition of a procedural bar with regard to his claims, nor has he shown that a fundamental miscarriage of justice would occur from the Court's refusal to consider his claim. See Coleman, 501 U.S. at 750, 109 S. Ct. at 2565; Finley v. Johnson, 243 F.3d 215, 220 (5^th Cir. 2001); Fairman v. Anderson, 188 F.3d 635, 644 (5^th Cir. 1999) (to show dismissal would result in fundamental miscarriage of justice, Petitioner must demonstrate to requisite probability that new, reliable evidence not presented at trial is now available that makes it more likely than not that no reasonable juror would have convicted him if the evidence had been known). Therefore, the Court concludes that Petitioner's claims regarding the closing argument of the prosecutor are barred from review. However, the Court determines that even if not barred, Petitioner's claim would not warrant habeas relief based upon the alternative resolution of the merits by the Mississippi Supreme Court.

As the Court has previously noted, federal habeas relief does not lie on the basis of an improper jury argument unless the argument "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 2471, 91 L. Ed. 2d 144 (1986) (quoting Donnelly v DeChristoforo, 416 U.S. 637, 643, 94 S. Ct. 1868, 1871, 40 L. Ed. 2d 431 (1974)). Petitioner may not establish a due process violation by demonstrating that the prosecutor's comments "were undesirable or even universally condemned." Id. at 181, 106 S. Ct. at 2471. Rather, Petitioner demonstrates the existence of unfairness that warrants federal habeas relief by showing that a reasonable probability exists that he would not have been convicted absent the comments. See Harris v. Cockrell, 313 F.3d 238, 245 (5^th Cir. 2002) ; Barrientes v. Johnson, 221 F.23d 741, 753 (5^th Cir. 2000); Felde v. Blackburn, 795 F.2d 400, 403 (5^th Cir. 1986). Factors that are important in the Court's analysis include whether the prosecutor misstated or manipulated the evidence, whether he implicated Petitioner's specific constitutional rights in his argument, whether his argument was invited by or responsive to defense counsel's own statements, whether curative instructions were issued, and the weight of evidence against Petitioner. See Darden, 477 U.S. at 181-82, 106 S. Ct. at 2472. The Court now addresses Petitioner's specific allegations of error with the foregoing in mind and with consideration of the context in which the statements were made. See Boyd v. California, 494 U.S. 370, 384-85, 110 S. Ct. 1190, 1200, 108 L. Ed. 2d 316 (1990) (arguments of counsel judged in context in which they were made).

Victim's Good Character

Petitioner argues the prosecutor encouraged the jury to remember the victim's good character when determining Petitioner's guilt, and Petitioner maintains that the prosecutor urged the death penalty on irrelevant facts that endorsed the victim. (Pet. Memo 143, 192). One alleged error was made during the State's summary of what happened in Gore Springs on May 6, 1991. The prosecutor stated:

On May 6, 1991, this young man right here, Bert Bell, a man 21 years of age, went to see James Sparks, an individual that he worked for at Sparks' Stop-and-Go, early in the morning to pick up this gun right here and a money bag, containing four or five hundred dollars worth of money. He left, went and opened Sparks' Stop-and-Go out on Cadaretta Road, like he did every Monday, and the place he worked 6 days a week, a place he intended, according to James Sparks, to buy from James Sparks and take that store over one day. That would be his store. Apparently, an industrious young man, 21 years of age, thinking that maybe he was going to be able to own his own store. I commend him for that.

(Trial Tr. Vol. 4, 277-78).

The Mississippi Supreme Court considered Petitioner's argument that the prosecutor argued the victim's good nature by referencing Bert Bell's hard-working, ambitious nature while noting that Bert Bell's life had been "reduced to approximately 50 exhibits." Bell I, 725 So. 2d at 851. Noting that a prosecutor may recall and comment on testimony offered into evidence while drawing reasonable inferences from testimony, the court did not find that the prosecutor's statements were a prejudicial plea for sympathy that exceeded the limits of fair argument. Id.

The prosecutor's statements regarding Bert Bell's future plans were taken from testimony presented at trial. The jury heard testimony from the owner of Sparks' Stop-and-Go that Bert Bell worked for him at least six days per week, and that he and Bert had talked about Bert taking over the business in the future. ( See Trial Tr. Vol. 4, 152-53). The prosecutor did not misstate the evidence or implicate any of Petitioner's constitutional rights in his argument. The statements complained of represent the totality of the prosecutor's comments about Bert Bell's character, and those comments were made during the course of the State's narrative summary of the proof presented. A prosecutor is not required to present a closing argument "devoid of all passion." Williams v. Chrans, 945 F.2d 926, 947 (7^th Cir. 1991). The "human cost of the charged offense" may properly be argued unless the trial is rendered fundamentally unfair by the introduction of prejudicial, inflammatory statements. See Ward v. Whitley, 21 F.3d 1355, 1363-64 (5^th Cir. 1994) (citing Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991).⁵¹ For purposes of determining whether Petitioner was denied due process as a result of the argument, it is not material whether the argument was made during the guilt or penalty phase. See Black v. Collins, 962 F.2d 394, 408 (5^th Cir. 1992) (prosecutor commenting on character of victim and effect of victim's death on others during both guilt and punishment phases of capital murder trial did not deprive defendant of fundamentally fair trial). Petitioner has not demonstrated that the Mississippi Supreme Court reached a decision warranting relief under the AEDPA with regard to this claim, and it is denied.

51 The Court notes that while the statements alleged as error may not constitute victim impact evidence, the analysis is the same.

Alleged Threat to James and Coffey

Petitioner next alleges that the prosecutor in essence urged the jury to convict Petitioner for capital murder based on testimony that Petitioner had threatened James' life. (Pet. Memo 145-46, 192-93). Petitioner argues that the prosecutor's closing encouraged the jury to base its decision on something other than his culpability by encouraging the jury to infer Petitioner had a bad character. On direct review, the Mississippi Supreme Court found the comments not inappropriate and noted that the comments "described Bell's behavior immediately following the crime and his fear of being caught and prosecuted." Bell I, 725 So. 2d at 851-52.

Petitioner references three portions of closing argument in which he claims the prosecutor overstepped the bounds of permissible argument. However, only the first portion cited as error is contained with the State's initial statement to the jury. The two other arguments were in rebuttal to defense counsel's closing. In an effort to properly view the comments in context, the Court considers the arguments of both the State and the defense in the order in which they transpired. As the prosecutor was summarizing the chain of events on May 6, 1991, he stated:

They came out of the store. Frank Coffey and Robert James were out there. Robert James said that Defendant looked him in the eye and say, "We don't need any witnesses." Probably the only reason he wasn't shot at that time, that gun didn't have any bullets in it. It only carried 5, and it was emptied into the body of Bert Bell. Nonetheless, Anthony Doss and Frank Coffey convinced that man right there Robert James wouldn't talk. Robert testified he was fearful for his own safety and the safety of his family, and that's why he did not initially say anything to law enforcement officers about what happened down there.

(Trial Tr. Vol. 4, 279).

During his closing argument, defense counsel argued that no evidence placed Petitioner at the scene of the crime. (Trial Tr. Vol. 4, 282-84). He also argued that Coffey had testified that Doss had two guns in his possession prior to the robbery/murder, and that Doss had the .38 with him when he met up with the others on the road. ( See id. at 284). Defense counsel argued that James' testimony was suspect because of Coffey's testimony that Doss had been in possession of the gun taken from the store. ( See id.). Defense counsel made comments suggesting to the jury that Petitioner would have shown the gun had he had one, in an attempt to discredit James' testimony. ( See id.). Defense counsel stated that both James and Coffey were lying, and that Coffey had lied to obtain favorable treatment from the government. ( See id. at 286, 289). Defense counsel referenced the prosecution's argument that Petitioner had threatened to kill James, stating:

Something that doesn't make sense, somebody say he's going to kill all these people. He's going to kill this witness, and he's going to kill that witness, and he's going to get Coffey and James. They're both here. If he wanted Mr. James dead that day out there, somebody that would do what they say was done here, well, Mr. James would not have been here today. If he didn't want a witness here, there's no explanation why he could have not had them not here today.

(Trial Tr. Vol. 4, 289-90).

Following defense counsel's closing, the prosecution was allowed to give final closing argument. The prosecutor stated:

There's not much that could possibly be proven to a jury that on a murder case that's not been proven in this case. There wouldn't have been near as much evidence if this person over here thought these people were going to testify, because he's definitely capable of killing them. He would have killed James right there. James was convinced of it. He was scared to death, like anybody would have been. He didn't want to die. Yet, when the police came out there, he told them the full story. Something else I want you to consider. He wants you to believe he'd never met James before. Never been to Cadaretta road before. If that's so, how did James know his name to give to the law? He told them when they came out there that's who did it. He told them that he's the one, he's dangerous, he went in, he committed this brutal murder. Everything is there.

(Trial Tr. Vol. 4, 292).

Later, the prosecutor reminded the jury that four witnesses had testified that they had seen Petitioner near the store on the day of the murder, and that two people had testified to Petitioner's direct involvement. The prosecutor stated:

Two of them — now, this is where we're lucky. Usually, when somebody goes in and robs somebody, they don't brag about it and talk about it. Four different people testified that they saw him there. Two of them — now, this is where we're lucky. Usually, when somebody goes in and robs somebody, they don't brag about it and talk about it. If they had thought about it — this one had thought about it, he would have either killed James right there, or, as Coffey said, he was talking on the way to Memphis about turning around and going back and killing him, he would have come back. Mr. Jones wants to say, "Well, why hadn't he killed him?" The reason he hasn't killed him is he's been in jail. He's been in jail every since he was charged with this. The same day that he laughed at Bruce Patridge and Buster Grantham. He's been in jail. He hadn't had a chance.

(Trial Tr. Vol. 4, 294).

A prosecutor can give his opinion as to the conclusion that should be drawn from the evidence. See United States v. Morris, 568 F.2d 396, 401 (5^th Cir. 1978). While the prosecutor's statement that Petitioner probably did not kill James because he had no bullets was pure conjecture, the remainder of the arguments Petitioner cites as error were based around statements introduced into evidence. The prosecutor made reference to the threat against James as part of his summary of events, as well as to offer the jury an explanation as to why James did not immediately contact police. Later, in rebuttal, the prosecutor was clearly attempting to counter defense counsel's attempt to discredit the State's witnesses. The prosecutor's lone statement about Petitioner not having any bullets was not sufficiently egregious to render the trial against Petitioner unfair. Petitioner has not demonstrated that relief on this claim is warranted.

Lack of Remorse

Petitioner next argues that the prosecutor inflamed the jury when he referred to testimony that Petitioner laughed when asked about the crime by law enforcement officials, and that the prosecutor otherwise improperly interjected his personal opinion that Petitioner was "worse" than Doss. (Pet. Memo 146, 193-94). Petitioner argues that the prosecutor's repeated statements about Petitioner's lack of remorse were improper, as they had no bearing on his guilt or innocence. (Pet. Memo 147). The Mississippi Supreme Court rejected Petitioner's argument, noting that the prosecutor's statements were proper comments on the testimony given at trial. Bell I, 725 So. 2d at 852.

At trial, Officer Grantham testified that when he interviewed Petitioner about the crime in Grenada County, Petitioner just "grinned." (Trial Tr. Vol. 3, 128-29). Petitioner testified that when he was asked about the murder, he began laughing, as he thought the officers were playing a joke on him. (Trial Tr. Vol. 4, 263). On cross-examination, the State asked questions of Petitioner about why a person who knew he was charged with capital murder would laugh at law enforcement officials. ( See id. at 265). The prosecutor's comments were based on the evidence presented at trial. Moreover, the prosecutor's reference to Petitioner as a "mean" person who was "worse" than his co-felon is not the type of sufficiently egregious statement by a prosecutor that would warrant a finding that the proceedings against Petitioner were unfair. See, e.g., Darden, 477 U.S. at 180-182, 106 S. Ct. at 2471-72 (Court refusing to grant habeas relief notwithstanding the prosecutor's summation which described the defendant as an "animal"); Kellogg v. Skon, 176 F.3d 447, 451-52 (8^th Cir. 1999) (petitioner called "monster," "sexual deviant," and "liar" by prosecutor not denied fundamentally fair trial, as comments did not misstate evidence, implicate other specific rights of the accused, and weight of evidence against petitioner was great). This claim is dismissed.

Personal Opinion, Facts Not in Evidence, and Vouching for the Credibility of Witnesses

Petitioner next argues that the prosecutor repeatedly interjected his personal opinion in closing argument, argued facts not in evidence, and vouched for the credibility of the State's witnesses. Petitioner first cites as error a portion of the prosecutor's closing where he stated:

I don't doubt that Frederick Bell knew the name of that road. I don't doubt that at all. I don't doubt that he didn't know that that was Sparks' Stop-and-Go. I do doubt that he knew he was in Grenada County, because that wasn't important to him. He and Anthony Doss could just as easily have stopped in Yalobusha County, gone over to Carroll County. It didn't make any difference. Their objective was not where they were, but what they had to do. Anything they could do to get enough money to get to Memphis, for whatever reason, that's what — that's the only thing they cared about.

(Trial Tr. Vol. 4, 279). Petitioner maintains that the prosecutor stated Petitioner was "mean" and "dangerous," and that he was the person who killed Bert Bell. (Pet. Memo 148). Petitioner also contends that the prosecutor vouched for the credibility of the State's witnesses by stating that Coffey and James were telling the truth. (Pet. Memo 148-49, 187-88). Petitioner asserts this statement was particularly harmful as the accounts of these two witnesses were the only direct evidence that Petitioner was guilty. (Pet. Memo 148-49, 187-88). Finally, Petitioner asserts that the prosecutor argued information not supported by the record. Specifically, he argues that the prosecutor suggested that Petitioner provided James information about how the victim was shot, which he urged the jury to accept as true because only Petitioner or Doss could have provided details as to the murder. (Pet. Memo 149).

On direct appeal, the Mississippi Supreme Court rejected Petitioner's claim that the prosecutor's closing argument constituted reversible error based on the presented arguments. Bell I, 725 So. 2d at 852-53. The court specifically noted that whether the defendants were "mean people" was "something to be concluded from the facts proved, and is, within the limits of the argument here, a fair deduction to be drawn in final argument." Id. at 852. The court noted that Coffey was cross-examined by defense counsel as to whether he had received leniency in exchange for his testimony, and Coffey responded that his testimony was the truth. Id. The court determined that "[t]he statements by the prosecutor were based on that testimony and were far from the personal vouching for witnesses which we have condemned." Id. The court did find that the prosecutor's argument concerning the veracity of James' testimony was improper, as it was not based on testimony presented at trial, but it otherwise determined that the error did not warrant reversal when considered in the entirety of the prosecution's closing argument. Id. at 852-53.

First, as the Court has previously noted, Petitioner was not denied his right to a fair trial by the prosecutor's comment that Petitioner was "mean" and "dangerous." See, e.g., Drew v. Collins, 964 F.2d 411, 419 (5^th Cir. 1992) (holding prosecutor's reference to petitioner as "sadistic killer" and "a macho man" insufficient to warrant habeas relief); see also United States v. Malatesta, 583 F.2d 748, 759 (5^th Cir. 1978) (defendant not denied fair trial when prosecutor called defendant "con man" and "hoodlum" where unflattering characterization supported by evidence); United States v. Cook, 432 F.2d 1093, 1106-07 (7^th Cir. 1970) (prosecutor's characterization of defendant as "subhuman man" with "rancid, rotten mind," a "true monster" not improper in view of evidence). Testimony was given that Petitioner planned and executed a robbery in which the store clerk was killed, and that he threatened James to ensure that he was not apprehended for the crime. The prosecutor's statements were not an improper vilification of Petitioner, but a rational inference from the testimony.

Next, the Court notes that a prosecutor may interject a personal opinion if it is clear that the conclusion he is urging is drawn from the evidence. See Foy v. Donnelly, 959 F.2d 1307, 1318 (5^th Cir. 1992). At trial, Petitioner testified that when he was asked about Sparks' Stop-and-Go on Cadaretta Road, he informed Officer Grantham that he did not know anything about it. ( See Trial Tr. Vol. 4, 264). On cross-examination, Petitioner stated he had never been on Cadaretta Road. ( See id. at 267). It was within the bounds of permissible argument for the prosecutor to comment on Petitioner's denials in order to support the State's arguments regarding the weakness of the defense, as well as to argue to the jury that money was the motive for the robbery/murder.

Similarly, the prosecutor did not engage in impermissible vouching by commenting on the truthfulness of James or Coffey. At trial, defense counsel questioned Coffey about whether he was receiving anything in exchange for his agreement to testify against Petitioner. ( See Trial Tr. Vol. 4, 221-22). Coffey responded that he had not been promised anything and was there to tell the truth. ( See id.). The prosecutor's statement in closing was a comment on Coffey's own trial testimony, which was elicited by defense counsel. Petitioner argues that improper vouching occurred a second time, where the prosecutor asserted that "[t]hey're [James and Coffey] telling you what happened. They're telling you the whole truth." ( See id. at 294). This comment was made in response to defense counsel's prior argument that Coffey and James were lying. ( See id. at 286-87, 288, 289). The statement complained of was preceded by a discussion of the charges against Coffey, as well as by statements intended to explain James' fear of retribution that prevented him from approaching police regarding the murder. ( See id. at 294). The prosecutor was not arguing facts not introduced at trial by commenting on the testimony of James and Coffey, and he was making a rebuttal argument to defense counsel's attacks on their credibility. See, e.g., United States v. Bright, 630 F.2d 804, 824 (5^th Cir. 1980) ("The prosecutor is not obliged to sit quietly while character assaults are made on his witnesses; he is entitled to argue fairly their credibility.").

Finally, the Court notes Petitioner's argument that it was error for the prosecutor to state:

And, when Frederick Bell said that, "I know I killed him. I know I put those 2 bullets in his head." — he told Robert James that — Robert James hadn't seen the body. He hadn't talked to any police officers. No one brought out that Robert James was quizzed by Bruce Patridge, Buster, David Shaw. Did they show him any pictures? No. He volunteered that information when he knew nothing about what happened inside that store. Only 1 or 2 people could have told him that, and that man right over there told him, "I know I killed him. I put those 2 in his head. I know I killed him." He was bragging about it.

(Trial Tr. Vol. 4, 280-81).

A review of the record reveals that on direct examination, James testified that Petitioner had told James he had killed Bert Bell and indicated where he shot him. ( See Trial Tr. Vol. 4, 196). The State asked whether, at the time James gave the statement, anyone had shown him anything or told him anything about where the shots were fired. ( See id. at 196-97). James answered that no one had. ( See id. at 197). It would appear to the Court that the prosecutor's argument was an attempt to paraphrase what he believed James' testimony to be and not a deliberate attempt to manipulate or misstate the evidence. Even if this argument constituted an error of constitutional proportions, the Court still must assess whether it had a "substantial and injurious effect or influence in determining the jury's verdict." Fry v. Pliler, ___ U.S. ___, 127 S. Ct. 2321, 2325, 168 L. Ed. 2d 16 (2007). There is no evidence in the record to support a determination that the statement had such an effect, and as such, any error that was arguably made must be deemed harmless.

In this case, the jury was presented with strong evidence of Petitioner's guilt. The jury was instructed to disregard the statements or arguments of counsel not supported by the evidence, and it was instructed that the arguments of counsel were not evidence. ( See Trial Tr. Vol. 2, Instruction C-1). Petitioner has not presented any evidence that the prosecutor's arguments had a prejudicial effect. The Court finds no support for a finding that a reasonable probability exists that the result of the proceedings would have been different absent the arguments and cannot state that the trial was rendered fundamentally unfair by the prosecutor's remarks. Therefore, the Court determines Petitioner has failed to demonstrate that the decision of the Mississippi Supreme Court with regard to his claim represents a decision contrary to, or involving an unreasonable application of clearly established federal law.

X. Voir Dire Inadequate to Reveal Juror Prejudice ⁵²

52 The Court has already addressed the specific facts regarding the jurors' responses in the context of Petitioner's ineffective assistance of counsel claim on the same issue, supra, 54-55.

Petitioner argues that the voir dire in this case failed to probe into the potential prejudices of venire members who knew the victim and/or his family or who had ties with members of law enforcement. (Pet. Memo 166). Petitioner maintains that eight seated jurors had ties to law enforcement and/or the victim's family, and that the trial court took the prospective jurors at their word that they could be impartial without making a determination as to whether they would be improperly influenced.⁵³ (Pet. Memo 166-174). Petitioner argues his right to a fair trial by impartial jurors was denied, such that habeas relief is warranted. Respondents assert that this claim is barred from the Court's consideration, as the Mississippi Supreme Court found the claim defaulted for Petitioner's failure to object to the jury panel. (R. Memo 189-91). Petitioner replies that the claim was considered on its merits by the Mississippi Supreme Court such that it is not procedurally barred by this Court. (Pet. Reply 36).

On direct appeal, the Mississippi Supreme Court did note that trial counsel failed to raise the issue of juror prejudice at trial or in post-trial motions, and that "a party who fails to object to the jury's composition before it is empaneled waives any right to complain thereafter." Bell I, 725 So. 2d at 844. The court nevertheless reviewed the claim for plain error and found that while "[t]he voir dire in this case was extremely poor . . . counsel for the defendant acquiesced in the voir dire and . . . was unfettered in his own voir dire." Id. at 845. The court determined that the defects in the trial court's voir dire did not constitute "fundamental constitutional error." Id. at 844.

Petitioner's claim is barred from federal habeas review based on his failure to comply with Mississippi's contemporaneous objection rule. See Bledsue, 188 F.3d at 254; see also Stokes v. Anderson, 123 F.3d 858, 860 (5^th Cir. 1997) (petitioner arguing procedural bar not strictly or regularly applied bears burden of demonstrating State fails to apply bar to similar claims); Smith v. Black, 970 F.2d 1383, 1387 (5^th Cir. 1992) (Mississippi's contemporaneous objection rule regularly and consistently applied). Petitioner does not present sufficient evidence of cause and prejudice or that a fundamental miscarriage of justice would occur from the Court's refusal to give consideration to his claim.⁵⁴ He does, however, argue that the Mississippi Supreme Court reached the merits of this claim, such that review by this Court is not precluded by his default. The Court determines that the Mississippi Supreme Court's review of Petitioner's claim for plain error does not vitiate the bar. See, e.g., Daniels v. Lee, 316 F.3d 477, 487 (4^th Cir. 2003) (federal court procedurally barred from considering claim where state court merely reviewed whether error "so infected the trial with unfairness as to make the resulting conviction a denial of due process"); Lott v. Hargett, 80 F.3d 161, 165 (5^th Cir. 1996) (reiterating a prior holding that plain error review does not detract from the consistency of procedural rules); Hill v Black, 887 F.2d 513, 516 (5^th Cir. 1989), vacated on other grounds, 498 U.S. 801, 111 S. Ct. 28, 112 L. Ed. 2d 6 (1990) (plain error exception to universal application of procedural bar created by Mississippi contemporaneous objection rule did not make application of rule in Mississippi capital cases improperly haphazard or arbitrary); Scott v. Mitchell, 209 F.3d 854, 865-66 (6^th Cir. 2000) (discretionary review for plain error of alleged violation of Constitution that would otherwise be barred by state contemporaneous objection rule does not preclude rule from serving as independent state law ground); Julius v. Johnson, 840 F.2d 1533, 1546 (11^th Cir. 1988) (existence of plain error rule does not preclude finding of procedural default); see also Osborne v. Ohio, 495 U.S. 103, 123, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990) (where state court reviewed claim for plain error citing exclusively state law, "we have no difficultly agreeing with the State that Osborne's counsel's failure to [contemporaneously object] constitutes an independent and adequate state-law ground preventing us from reaching [the claim]").

54 The Court notes that Petitioner did argue the ineffective assistance of counsel in connection with this claim and recognizes that the ineffective assistance of counsel can, in some circumstances, constitute cause sufficient to overcome a procedural bar. See, e.g., United States v. Walker, 68 F.3d 931, 934 (5^th Cir. 1995). The Court does not find such to be the case here.

Despite finding this claim barred from review, the Court notes it would not find Petitioner entitled to habeas relief based on the merits of his claim. A defendant is afforded his constitutional right to an impartial jury when the seated jurors can render a verdict on the evidence presented, regardless of their knowledge, opinion, or impression of the case prior to trial. See Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S. Ct. 1639, 1642-43, 6 L. Ed. 2d 751 (1961). In determining whether the trial court's voir dire was sufficient in this case, the Court asks "whether `the means employed to test impartiality have created a reasonable assurance that prejudice would be discovered if present.'" United States v. Greer, 968 F.2d 433, 435 (5^th Cir. 1992) (citation omitted). The concern is that Petitioner received a fair trial by an impartial jury. See Beck v. Washington, 369 U.S. 541, 556, 82 S. Ct. 955, 963, 8 L. Ed. 2d 98 (1962) (Court noting that "of course there could be no constitutional infirmity . . . if [the defendant] actually received a fair trial by an impartial jury."). Where the trial judge has made a determination of a juror's impartiality, it is afforded deference and considered presumptively correct. See Patton v. Yount, 467 U.S. 1025, 1036, 1038, 104 S. Ct. 2885, 2891, 2892, 81 L. Ed. 2d 847 (1984); Rosales-Lopez v. United States, 451 U.S. 182, 188-90, 101 S. Ct. 1629, 1634-35, 68 L. Ed. 2d 22 (1981) (trial court's voir dire not readily second-guessed, as trial judge must reach conclusion as to impartiality and credibility by relying on demeanor evidence and responses to questions).

The voir dire in this case was recognized as "extremely poor" by the Mississippi Supreme Court, but the deficiencies in the procedure cannot be heaped upon the trial court alone. See Bell I, 725 So. 2d at 845. The trial judge in this case asked questions to discover and explore potential juror biases. Each of the jurors in this case was questioned by the trial court regarding the nature of his or her relationships with the victim's family and his or her familial ties to members of law enforcement. Each juror was questioned about his or her ability to render a verdict on the evidence presented, and each juror affirmatively stated his or her ability to be impartial. ( See Trial Tr. Vol. 3, 13, 14, 16, 17, 19, 31-32, 36, 37-38, 39, 41, 79). The trial judge asked follow-up questions to ferret out the nature of the relationships once he became aware that a particular juror knew the victim's family or was related in some way to a member of law enforcement. Moreover, trial counsel had every opportunity to ask follow-up questions during his own voir dire, and he could have exercised a peremptory challenge as to any of the complained-of jurors. In sum, the Court cannot determine that the procedure employed by the trial court was insufficient to seat an impartial jury.

The Court has not read Petitioner's claim to include an allegation of bias on the part of any seated juror. To the extent Petitioner is attempting to argue the Court should find actual or presumed bias in this instance, however, the Court determines that these facts are insufficient to so conclude. See, e.g., Montoya v. Scott, 65 F.3d 405, 419-420 (5^th Cir. 1995) (recognizing allegation juror was acquainted with victim does not alone establish bias sufficient to disqualify juror); Andrews v. Collins, 21 F.3d 612, 619-21 (5^th Cir. 1994) (refusing to find presumption of bias where juror's daughter had been married to victim's grandson prior to victim's death); United States v. Munoz, 15 F.3d 395, 396-98 (5^th Cir. 1994) (affirming district court's denial of challenge for cause to juror who was father of two police officers, a brother-in-law who was chief of police in another county, and brother to a retired police chief, as relatives not affiliated with law enforcement agency involved in case, and juror stated he could be fair); Jones v. Butler, 864 F.2d 348, 362 (5^th Cir. 1988) (affirming trial court's denial of defense challenge for cause to prospective juror who knew victim by sight, had lived near her, visited the funeral home, and had worked for one of state's witnesses); Celestine v. Blackburn, 750 F.2d 353, 358-61 (5^th Cir. 1984) (fact that juror knew granddaughter of murder victim did not create presumption of bias requiring striking of juror for cause); Sudds v. Maggio, 696 F.2d 415, 416-17 (5^th Cir. 1983) (trial court's denial of challenge for cause to juror whose nephew was state trooper did not deprive petitioner of fundamental fairness where juror, despite initial hesitation, stated she could weigh the evidence impartially). This claim is dismissed.

XI. Denial of Motion for an Expert

Petitioner asserts that he was denied the "raw materials" necessary to build his defense by the trial court's denial of his request for a ballistics expert. (Pet. Memo 174-76). Petitioner asserts that such an expert might have been able to determine who was the actual perpetrator of Bert Bell's murder by determining which weapon was used to inflict the fatal shot. (Pet. Memo 176-77). Petitioner maintains that the testimony of the expert could have been used in the mitigation phase of trial, as well. The testimony could have established that Doss carried out the crime, discrediting James' testimony that Petitioner insisted that they "go in shooting," and it could have provided information to be used in the cross-examination of Dr. Hayne. (Pet. Memo 177-78).⁵⁵

55 The Court notes that Petitioner has also argued that trial counsel performed ineffectively in failing to move for the appointment of an expert until the morning of trial, which the Court addressed, supra, at 35-38. Petitioner does not argue in this claim, as he did earlier, that he did move to join in Doss' motion for an expert. Rather, he appears to argue that the trial court should have taken on the responsibility to furnish the expert regardless of whether trial counsel moved for the assistance. ( See Reply 37-38).

On direct appeal, the Mississippi Supreme Court stated:

We need not today consider the circumstances under which it may be appropriate for the trial judge to provide expert assistance to the defense, however, because the record does not reflect that Bell ever asked for such assistance. In his brief, Bells says that the court denied his motion. This is incorrect. Doss did move for such assistance, and the motion was denied. However, the record does not include a similar motion by Bell or a joinder by Bell in Doss' request. There is no merit to this assignment of error.

Bell I, 725 So. 2d at 853.

An indigent criminal defendant's right to due process includes the right to expert assistance where such assistance may properly be characterized as necessary to the building of an effective defense. Ake v. Oklahoma, 470 U.S. 68, 77, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985) (holding indigent criminal defendant entitled to psychiatric expert as expert represented "access to the raw materials integral to the building of an effective defense"). In light of Ake, the Fifth Circuit has held that the assistance of a non-psychiatric expert must be provided only where the evidence is "both `critical' to the conviction and subject to varying expert opinion." Yohey v. Collins, 985 F.2d 222, 227 (5<sup>th</sup> Cir. 1993) (citations omitted). "`Critical evidence,' for purposes of the due process clause, is evidence that, when developed by skilled counsel and experts, could induce a reasonable doubt in the minds of enough jurors to avoid a conviction." White v. Maggio, 556 F.2d 1352, 1357-58 (5^th Cir. 1977).

At the outset, the Court notes that Petitioner has offered no support for his argument that the trial court had a duty to appoint a ballistics expert in the absence of his request for one. See Durr v. Mitchell, 487 F.3d 423, 434 (6^th Cir. 2007) (finding it unnecessary and undermining of subsequent precedent to extend Ake to cases where defendant did not request expert assistance); Clisby v. Jones, 960 F.2d 925, 934 n. 12 (11^th Cir. 1992) ("[W]e have held that Ake does not impose upon the trial court a duty sua sponte to appoint a psychiatrist."). Assuming that Petitioner was entitled, as a matter of federal constitutional law, to the assistance of a ballistics expert upon a satisfaction of the two-pronged test found in Yohey, the Court must nonetheless determine that the decision of the Mississippi Supreme Court was not contrary to, nor did it involve an unreasonable application of, clearly established federal law.

Petitioner's argument hinges on the speculation that a ballistics expert could have proven that it was the .38 caliber weapon alone that inflicted the fatal wounds. At trial, ballistics expert John Michael Allen testified that .22 caliber and .38 caliber projectiles were recovered from Bert Bell's body. ( See Trial Tr. Vol. 4, 253). The .38 caliber weapon in evidence fired the projectiles taken from Bert Bell's body. ( See id. at 249-50). The .22 caliber projectiles removed from Bert Bell's body had the same "class characteristics" as the .22 in evidence, though Mr. Allen could not state with certainty that the gun in evidence was used in the murder. ( See id. at 250). Dr. Hayne testified at trial that Bert Bell was shot multiple times with two different weapons. ( See id. at 230). The wounds to Bert Bell's head were created from a small caliber weapon, while the wounds to the chest were created from a larger caliber weapon. ( See id.). Bert Bell received a lethal wound to the left forehead, as well as lethal wounds to both the left and right chest. ( See id. at 234, 235, 236).

Petitioner has not shown that the trial court's failure to appoint a ballistics expert denied him a due process right. Bert Bell was shot with both a .38 caliber weapon and a .22 caliber weapon, and the wounds from either would have been fatal. While further ballistics analysis might have proved helpful in determining with certainty whether the .22 caliber weapon in evidence fired the .22 caliber bullets in evidence, there was no testimony conclusively including the weapon in evidence as the murder weapon. Therefore, it is difficult to imagine how the absence of a positive identification of the weapon recovered from Petitioner's residence prejudiced him. See Aguilar v. Dretke, 428 F.3d 526, 534 (5^th Cir. 2005) (inconclusive state ballistics evidence not "critical" to conviction). Moreover, only a pathologist could have properly determined which wound was fatal, such that there could be no varying expert opinion among ballistics experts as to which bullet inflicted the fatal wound. See White, 556 F.2d at 1358 (if critical evidence is not subject of varying expert opinion, then there is no denial of due process in failing to allow expert to examine). Petitioner's conclusory allegations are insufficient to support a constitutional claim, and he is not entitled to relief on this claim. See Ross v. Estelle, 694 F.2d 1008, 1012 (5^th Cir. 1983); see also Yohey, 985 F.2d at 227 (Petitioner bears burden of demonstrating "more than a mere possibility of assistance" in order to be entitled to expert).

XII. Expert Testimony Concerning Position of Victim's Hands

Petitioner maintains that he was deprived of a fair and reliable jury verdict when Dr. Hayne was permitted to testify, over objection, that the victim's hands were held up in a defensive position in front of his face at the time he was shot. (Pet. Memo 179-80).⁵⁶ Respondents contend that this claim is barred on independent and adequate State law grounds, as Petitioner failed to contemporaneously object to the testimony. (R. Memo 194). Alternatively, Respondents argue that the decision is without merit, waived for failure to cite any support, and/or based upon Mississippi Rule of Evidence ("MRE") 702, which is not of constitutional dimension. (R. Memo 195-99).

56 Petitioner also maintains that the prosecutor used Dr. Hayne's testimony to corroborate testimony that Petitioner had killed Bert Bell to eliminate a witness, and that the testimony was used by the prosecutor to justify the imposition of the death penalty. (Pet. Memo 179).

On direct review, the Mississippi Supreme Court found Petitioner's argument "clearly procedurally barred" for failure to contemporaneously object to the testimony. See Bell I, 725 So. 2d at 853. The court otherwise noted that Dr. Hayne was qualified to give testimony as to how Bert Bell's wounds were received. Id. at 854. The court noted that MRE 702 ⁵⁷ provides for the type of testimony given by Dr. Hayne and concluded that under the rule he could properly "opine as to the path of the lethal gunshot wound . . . through the third finger on the right hand into the left temple." Id.

57 As cited by the Mississippi Supreme Court in its consideration of this claim, MRE 702 states: "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Bell I, 725 So. 2d at 853.

During Dr. Hayne's testimony at trial, the prosecutor asked Dr. Hayne if he had an opinion as to what might have caused the gunshot wounds to Bert Bell's hands. ( See Trial Tr. Vol. 4, 237-38). Defense counsel objected to the question on form and was overruled. ( See id. at 237). Defense counsel then objected on the basis that Dr. Hayne was not testifying as to a medical certainty. ( See id. at 238). After defense counsel was overruled, he again objected and stated the question was improper. ( See id.). The trial court overruled the objection. ( See id.). Dr. Hayne testified that there were two explanations as to the bullet wounds in Bert Bell's hands (1) that the bullets that went through the hands were not found; or (2) that the bullets wounding the hands were also the bullets that were involved with wounds to the body. ( See id. at 237-38). Dr. Hayne testified that the wounds were caused by a small caliber weapon of the type causing the injury to the head and neck of Bert Bell. ( See id. at 238). Dr. Hayne testified that for the wounds to have occurred, the hands would have been up near the face. ( See id. at 238-39).

While Petitioner objected to the State's questioning of Dr. Hayne on the basis that the question regarding the wounds to Bert Bell's hands was itself improper or in improper form, Petitioner did not object to Dr. Hayne's testimony on the subject. ( See Trial Tr. Vol. 4, 237-38). The Mississippi Supreme Court found Petitioner's claim barred, and this Court defers to Mississippi's interpretation and application of its own contemporaneous objection rule. See Young v. Dretke, 356 F.3d 616, 628 (5^th Cir. 2004) (noting that habeas court does not review correctness of state court interpretation of state law under AEDPA). As the Mississippi Supreme Court relied upon Petitioner's failure to fulfill the State's contemporaneous objection requirement to reject this claim, this Court may not review the issue absent a showing of cause and prejudice, or that a fundamental miscarriage of justice would result from the Court's failure to consider the alleged error. See, e.g., Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S. Ct. 2546, 2254, 115 L.Ed.2d 640 (1991) ("The [independent and adequate state law] doctrine applies to bar federal habeas claims because the prisoner had failed to meet a state procedural requirement. In these cases, the state judgment rests upon independent and adequate state procedural grounds."); Wainwright v. Sykes, 433 U.S. 72, 87, 97 S. Ct. 2497, 2506, 53 L. Ed. 2d 594 (1977); Williams v. Puckett, 283 F.3d 272, 280 (5^th Cir. 2002); see also Stokes v. Anderson, 123 F.3d 858, 860-61 (5^th Cir. 1997) (finding Mississippi's contemporaneous objection requirement independent and adequate).

However, the Court determines Petitioner would not be entitled to relief on this claim in the absence of a procedural bar. Although Petitioner cites the ineffective assistance of his trial counsel as "cause" for the default, the Court has rejected Petitioner's contention. Additionally, the alternative resolution of this claim by the Mississippi Supreme Court was based on an evidentiary ruling, which is a matter of State law not cognizable in federal habeas unless Petitioner's trial was rendered fundamentally unfair by the ruling. See Wilkerson v. Cain, 233 F.3d 866, 890 (5^th Cir. 2000); Johnson v. Puckett, 176 F.3d 809, 820 (5^th Cir. 1999); Castillo v. Johnson, 141 F.3d 218, 222 (5^th Cir. 1998). In order to show that he was denied due process as a result of the evidentiary ruling, Petitioner must demonstrate that the erroneous admission of the evidence was "a crucial, critical, highly significant factor" to the trial as a whole. See Johnson, 176 F.3d at 821. Petitioner has failed to even suggest how this testimony deprived him of a fair trial. As a pathologist, Dr. Hayne could certainly offer his opinion of the trajectory of the bullets through Bert Bell's body. Petitioner has not demonstrated an entitlement to relief under the AEDPA, and this claim is dismissed.

XIII. Effect of Petitioner's Tennessee Conviction

Petitioner asserts that the jury should have been informed that Petitioner would not be eligible for parole if sentenced to life for the murder of Bert Bell, as he would first have to serve a sentence for second-degree murder in Tennessee before serving his sentence in Mississippi. (Pet. Memo 198-99). Petitioner asserts that the trial court's failure to so inform the jury allowed a misleading prosecutorial argument that Petitioner should be sentenced to death because he was a future threat to society. (Pet. Memo 198-99). Respondents maintain that this claim is procedurally barred on an independent and adequate State law ground, and that as the disposition of Petitioner's ineffective assistance of counsel claim with regard to this issue did not involve an unreasonable application of Strickland, a claim of ineffective assistance of counsel cannot constitute cause to overcome the imposition of the bar. (R. Memo 223). Without waiving the bar, Respondents otherwise note that Petitioner could not have been sentenced to life without parole under Mississippi law at the time of his trial. (R. Memo 224).

The Mississippi Supreme Court considered this claim on direct appeal, and it noted that at the time of Petitioner's trial, Miss. Code Ann. § 99-19-101 provided only for a sentence of life imprisonment or death. See Bell I, 725 So. 2d at 865. The statute was not amended to allow a possibility of life without parole as a sentencing option until 1994. Id. The court noted that the prosecutor did not argue Petitioner's future dangerousness, but rather, his "violent nature, in a most limited way, as a response to evidence offered on behalf of Bell through his mother." Id. ⁵⁸ The court determined Petitioner's argument was not that he was prohibited from presenting evidence on the Tennessee conviction, either by argument or instruction, but rather, that the court failed to sua sponte instruct the jury. Id. The court noted that unless the failure to so instruct the jury constituted plain error, the argument was procedurally barred, as trial counsel did not object to the instructions on this ground. Id.

58 The argument complained of is as follows from the State's summation at the sentencing phase:

Now, I'm asking you, when you deliberate on this case, to think about what is there, to think about what type of person this is; a person that hadn't committed one murder. He committed two in the same day. His mother asked the question up there, what would stop it. There's only one thing that can stop it, and I think y'all know what that is; that's coming back with the death penalty. We're talking about a person that has no regard for human life whatsoever. What type of person, after killing two people in one day, could sit up and laugh at a law enforcement officer about charges of capital murder? I don't know. But, we are asking you to follow the instructions of the law, to follow your conscience in this case, and return the only appropriate verdict in this case, death.

(Trial Tr. Vol. 4, 325).

In its review for plain error, the court referenced several prior decisions holding, in essence, that (1) a jury should not concern itself with issues of parole; (2) persons being tried as habitual offenders are entitled to have the jury instructed as to whether the defendant is eligible for parole; and (3) speculative instructions as to parole introduce arbitrary factors into sentencing proceedings. Id. at 866. Citing Simmons v. South Carolina, 512 U.S. 154, 114 S. Ct. 2187, 129 L. Ed. 2d 133 (1994), the court noted that when propensity for future dangerousness is a factor argued to the jury and the possibility of life without parole is a jury option, the defendant is entitled to have the jury instructed that the imposition of a life sentence would preclude the possibility of parole. Id. at 867. The court found that Petitioner's "future dangerousness" was not argued at sentencing and denied relief. Id.

This claim is barred from the Court's review. See, e.g., Coleman, 501 U.S. at 750, 111 S. Ct. at 2565 (default of claim in State court on basis of State procedural rule requires petitioner to show cause and prejudice to obtain review of the claim or demonstrate the failure to review the claim would result in fundamental miscarriage of justice); see also Lott v. Hargett, 80 F.3d 161, 165 (5^th Cir. 1996) (reiterating a prior holding that plain error review does not detract from the consistency of procedural rules). This Court has already determined Petitioner could not satisfy the showing necessary under Strickland to obtain relief on this claim, and therefore, he has not demonstrated cause and prejudice to obtain federal habeas review. However, Petitioner would not be entitled to relief in the absence of an imposed bar. At the time of Petitioner's trial in 1993, there was no sentencing option of life without parole unless the defendant was charged as an habitual offender. See, e.g., Patterson v. State, 660 So. 2d 966 (Miss. 1995) (attempt to circumvent life with parole provisions for those committing crimes prior to July 1, 1994, by contract or plea agreement not to seek parole is void and against public policy). The Supreme Court of the United States has never held that either the Fourteenth Amendment or the Eighth Amendment requires a trial court to instruct a sentencing jury on the parole law applicable to "life" where the jury did not, at the time of sentencing, have the option of sentencing a capital murderer to a term of life imprisonment without the possibility of parole. See Ramdass v. Angelone, 530 U.S. 156, 169, 120 S. Ct. 2113, 2121, 147 L. Ed. 2d 125 (2000) (" Simmons applies only to instances where, as a legal matter, there is no possibility of parole if the jury decides the appropriate sentence is life in prison."); Simmons v. South Carolina, 512 U.S. at 171, 114 S. Ct. at 2198. As Petitioner has not demonstrated that the Mississippi Supreme Court reached a decision contrary to or involving an unreasonable application of clearly established law with regard to this issue, this claim is dismissed.

XIV. Error in Jury Instructions

Federal habeas relief is not generally granted on the basis of a challenge to State jury instructions. See Estelle v. McGuire, 502 U.S. 62, 71-72, 112 S. Ct. 475, 481-82, 116 L. Ed. 2d 385 (1991). To collaterally attack the constitutional validity of his judgment on the basis of a jury instruction, or the failure to give an instruction, Petitioner bears the burden of demonstrating that the error "by itself so infected the entire trial that the resulting conviction violates due process." Henderson v. Kibbe, 431 U.S. at 154-55, 97 S. Ct. at 1736-37 (citing Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973)). The review of the challenged instruction requires the court to consider the instruction in the context of the entire trial. See McGuire, 502 U.S. at 72, 112 S. Ct. 475; see also Cupp, 414 U.S. at 146-47, 94 S. Ct. at 400 ("[A] judgment of conviction is commonly the culmination of a trial which includes testimony of witnesses, argument of counsel, receipt of exhibits in evidence, and instruction of the jury by the judge. Thus not only is the challenged instruction but one of many such instructions, but the process of instruction itself is but one of several components of the trial which may result in the judgment of conviction."). Even if error, a strong presumption exists that an erroneous jury instruction is subject to a harmless-error analysis. See Galvan v. Cockrell, 293 F.3d 760, 764 (5^th Cir 2002). Therefore, if the instruction did not have a "substantial and injurious effect or influence in determining the jury's verdict," any error in giving the instruction is considered harmless. Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S. Ct. 1710, 1714, 123 L. Ed. 2d 353 (1993). The Court now considers Petitioner's specific allegations of error.

A. Trial Court's Refusal of Petitioner's Cautionary Instruction

Petitioner argues that the trial court committed error when it rejected defense instruction DG-14, which would have urged the jury to approach Robert James' testimony "with great care and caution" and "distrust and suspicion."⁵⁹ (Pet. Memo 112). Petitioner maintains James was a key witness for the State and one of only two eyewitnesses placing Petitioner at the scene of the murder, and that he was motivated to lie in his testimony for fear that he, too, would be charged with capital murder. (Pet. Memo 113). Petitioner contends that James misidentified the money bag he claimed was taken from the store, and that his testimony was inconsistent with and conflicted with prior testimony. (Pet. Memo 114). Specifically, Petitioner points to testimony given by James that Petitioner confessed to shooting the victim twice, while Coffey testified Petitioner never mentioned how many times Bert Bell was shot. (Pet. Memo 114). Petitioner also argues that James testified Petitioner had possession of the .38 caliber weapon when Petitioner and Doss exited the store, while Coffey testified Doss was in possession of the gun. (Pet. Memo 115). In light of the testimony given, Petitioner maintains he is entitled to a new trial where the jury is instructed as to all facets of James' credibility. (Pet. Memo 116).

59 The instruction offered to the court reads:
The Court instructs the jury that the law looks with suspicion and distrust on the testimony of an alleged informant, and requires the jury to weigh same with great care and caution and suspicion. You should weigh the testimony from alleged informant, Robert James, and passing on what weight, if any, you should give this testimony, you should weigh it with great care and caution, and look upon it with distrust and suspicion. (Trial Tr. Vol. 2, 229, Instruction No. DG-14).

On direct appeal, the Mississippi Supreme Court considered Petitioner's argument that James' prior inconsistent statements warranted an instruction on the effect of impeachment, stating:

[H]ere, no significant prior inconsistent statement by James is called to our attention, nor do we find one. It is true that Frank Coffey had given a statement inconsistent with that of James, but this instruction does not address such an event. Bell suggests that James's pre-trial statement that one of the guns used had black tape on its grip and his courtroom testimony describing the tape as gray is an inconsistency sufficient to justify a cautionary instruction. We do not consider such natural variations in repeated descriptions to be inconsistencies sufficient to justify a cautionary instruction beyond those general instructions given. . . . James . . . was not charged as an accomplice, nor was there any evidence offered that he should have been so charged.

Bell I, 725 So. 2d at 848.

A court may commit reversible error in failing to give a cautionary charge where the prosecution's hope for conviction hinges solely on the persuasiveness of the testimony of an accomplice whose testimony has been shown unreliable. See Tillery v. United States, 411 F.2d 644, 647 (5^th Cir. 1969). However, the misidentification Petitioner complains of is not sufficient to deem James' testimony unreliable. Petitioner's factual support for his assertion that James provided testimony at trial inconsistent with his prior statements relates to the money bag taken from Sparks' store during the robbery. On cross-examination, James was asked to describe the money bag as he described it during his testimony at the preliminary hearing. ( See Trial Tr. Vol. 4, 203). James stated that "[i]t was a Sunburst — I think it had Sunburst Bank — I think it was blue — it was blue or gray." ( See id.). At the preliminary hearing, James testified that he thought the bag was blue with "Sunburst Bank" written on it. ( See Trial Supp. Vol. 3, 6).⁶⁰ At trial, Mr. Sparks testified that a gray money bag with "Bank of Webster County" written on it in red ink was taken from the store during the robbery. ( See Trial Tr. Vol. 4, 157).

60 Respondents contend that the inconsistency complained of was the fact that James testified prior to trial that the pistol had black tape on the grip, while he testified at trial that the tape was gray. (R. Memo 134 n. 31).

Petitioner relies upon United States v. Partin, 493 F.2d 750, 760 (5^th Cir. 1974), for the proposition that a witness' credibility should be carefully scrutinized when the government's case hinges on the jury's belief of the veracity of that witness. Petitioner argues that James' testimony was so crucial to the government's case that a cautionary instruction was necessary. However, Partin dealt with a witness who was an admitted perjurer on the subject of the trial, and the jury in that case was given no general instruction on evaluating witness credibility. See id. at 762. Petitioner also asserts that the court should have given his instruction to warn the jury of James' "good reason" to cooperate with the government. See United States v. Mayer, 556 F.2d 245 (5^th Cir. 1977). Mayer dealt with the reversal of a conviction due to the trial court's failure to allow the defense to adequately cross-examine the prosecution's main witness regarding his plea, and the exacerbation of that effect based on an instruction to the jury that effectively removed from the jury's consideration whether the witnesses' testimony was motivated by their desire to receive a lighter sentence for cooperating with the government. See id. at 250-51. James was not charged with any crime in this case, and there was therefore no issue of governmental leniency to explore in cross-examination. Moreover, no jury instruction was given that charged the jury to consider James' testimony as an uncharged witness who was not receiving leniency. Mayer, therefore, is inapplicable to Petitioner's case.

Finally, Petitioner cites Greene v. Wainwright, 634 F.2d 272 (5^th Cir. 1981), for the proposition that a court must discern whether a witness has an incentive to "shade his testimony" in favor of the prosecution. (Pet. Memo 113). In Greene, the court stated that "[t]he law is clear that if a prosecution witness is presently or recently under actual or threatened criminal charges or investigation leading to such charges, the person against whom the witness testifies in a criminal case has an absolute right to bring those circumstances out on cross-examination or otherwise so that the jury will be fully apprised as to the witness' possible motive or self-interest with respect to the testimony he (or she) gives." Id. at 274. The court determined that when a witness has "substantial reason to cooperate with the government" a defendant must be allowed to "search for an agreement" between the two in order to determine whether "the witness may be shading his testimony in an effort to please the prosecution." Id. at 276. However, defense counsel in this case was not limited in questioning James about his presence at the time of the crime or of his subsequent involvement with law enforcement.

None of the cases cited by Petitioner support his claim that the trial court committed reversible error in refusing to grant a cautionary instruction with respect to James' testimony. The record does not suggest that James was anything other than a witness, and the jury was generally instructed regarding witness credibility. Petitioner has not refuted by clear and convincing evidence the Mississippi Supreme Court's determination that James was not an accomplice or informant, and he has not presented any authority for his contention that it was error not to grant a cautionary instruction under these circumstances. That James was "clearly an accomplice," who testified in order to avoid being charged with capital murder, as Petitioner's suggests, is absolute speculation. See, e.g., Hopper v. Evans, 456 U.S. 605, 611, 102 S. Ct. 2049, 2053, 72 L. Ed. 2d 367 (1982) (charge to jury must be supported by evidence). The fact that two witnesses in this case gave differing testimony about items of physical evidence is likewise not a basis for relief. See United States v. Simmons, 470 F.3d 1115, 1120 (5^th Cir. 2006) (determining credibility of witnesses rests entirely with jury). Petitioner has not carried his burden under the AEDPA with regard to this claim, and it is dismissed.

B. Instructions Had Effect of Requiring Juror Unanimity as to Mitigating Circumstances

Petitioner maintains that the vague and conflicting instructions given at his trial misled the jury and prevented each juror's individualized consideration of the mitigating circumstances of his case. (Pet. Memo 133). Petitioner contends that the jury was instructed it must be unanimous in finding aggravating factors⁶¹; the verdict form directed the jury to find facts unanimously; the jury was instructed it must collectively agree on a verdict⁶²; the jury was instructed it must be unanimous in order to return with a sentence of death⁶³; and the jury was told to consider any mitigating circumstances that "you, the Jury" deem mitigating. (Pet. Memo 133-134). Petitioner argues that the trial court erroneously refused to grant two defense instructions that would have alleviated the risk that jurors might believe they could not individually consider and give effect to mitigating evidence.⁶⁴ (Pet. Memo 134-35). The Mississippi Supreme Court considered this claim on direct appeal, and it rejected Petitioner's argument in keeping with the prior decisions of the court on the same issue. Bell I, 725 So. 2d at 864. Respondents maintain that the Fifth Circuit has addressed this issue and found it without merit, and that the decision of the Mississippi Supreme Court on this issue does not warrant relief. (R. Memo 158-166).

61 Specifically, Petitioner complains that this instruction required the jury to unanimously find aggravating factors beyond a reasonable doubt and then instructed the jury that it must find that the mitigating circumstances did not outweigh the aggravating circumstances. ( See Trial Tr. Vol. 2, 233-236, Sentencing Instruction No. 1).

62 The instruction was given at the guilt phase of trial and reads that: "[t]he verdict of the jury must represent the considered judgment of each juror. In order to return a verdict it will be necessary that each juror agree thereto. In other words, all twelve jurors must agree on a verdict in this case." ( See Trial Tr. Vol. 2, 198, Jury Instruction C-3).

63 The jury was instructed that the it must be unanimous in finding Petitioner should suffer death. ( See Trial Tr. Vol. 2, 239, Sentencing Instruction No. 4).

64 The refused instructions, DS-6 and DS-10, would have instructed the jury that each juror could individually find the existence of a mitigating circumstance and weigh it in deliberations. ( See Pet. Memo 134-35).

The Supreme Court of the United States has held that "each juror [must] be permitted to consider and give effect to mitigating evidence when deciding the ultimate question whether to vote for a sentence of death." McKoy v. North Carolina, 494 U.S. 433, 442-43, 110 S. Ct. 1227, 1233, 108 L. Ed. 2d 369 (1990). A sentencing instruction which creates a substantial likelihood that a juror might believe they are precluded from considering any mitigating evidence unless all jurors agree on the existence of a particular mitigating circumstance is invalid. See Mills v. Maryland, 486 U.S. 367, 108 S. Ct. 1860, 100 L. Ed. 2d 384 (1988). Where an instruction is challenged in the capital sentencing context on the basis that the instruction is ambiguous or otherwise prevents the jury from giving effect to the consideration of mitigating evidence, the issue is "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." Boyde v. California, 494 U.S. 370, 380, 110 S. Ct. 1190, 1198, 108 L. Ed. 2d 316 (1990).

In Stringer v. Jackson, 862 F.2d 1108 (5^th Cir. 1988), vacated and remanded on other grounds, 503 U.S. 222, 112 S. Ct. 1130, 117 L. Ed. 2d 367 (1992), the Fifth Circuit considered a jury instruction addressing mitigating circumstances in which the word "unanimous" appeared, and it held:

Although the trial court undoubtedly added "unanimously" by oversight in the third word in the instructions quoted below, a reading of the entire charge would not have led the jurors to think they were compelled to ignore mitigating circumstances (unless found unanimously) in determining an appropriate sentence for Stringer. The instructions given did not restrict the jury's right and power to consider the appropriateness of the death penalty even after it found that the aggravating circumstances outweighed the mitigating circumstances.

Id. at 112. In the instructions given during Petitioner's trial, the word "unanimous" was not included in any instruction cited by Petitioner in reference to mitigating circumstances. Where it was used, it referred specifically to the jury's verdict or the finding of aggravating circumstances. The jury was also instructed it could consider as mitigating evidence "[a]ny matter or any aspect of the Defendant's character or record and any other circumstance of the offense brought you during the trial of this cause." ( See Trial Tr. Vol. 2, 235, Sentencing Instruction No. 1). It was not unreasonable for the Mississippi Supreme Court to determine Petitioner had failed to demonstrate that the jury was precluded from giving an individualized consideration to constitutionally relevant evidence, and this claim is dismissed.

C. Accessory After the Fact

Petitioner argues that jury instructions S-2 and S-3 allowed the jury to convict him of capital murder upon finding that he hid the murder weapons for Anthony Doss. (Pet. Memo 150). The main thrust of Petitioner's argument is that there was voluminous evidence that supported his contention that he was an accessory after the fact, and not a principal or accessory before the fact. In support, Petitioner notes that (1) Doss gave conflicting accounts of Bert Bell's murder at his own trial; (2) Frank Coffey gave different accounts of the crime between the time of his police interview and the time of Petitioner's trial; (3) Petitioner's own trial testimony that he was not in Mississippi at the time of the murder and hid the guns for Doss subsequent to the crime; and (4) he has filed in this Court numerous affidavits from friends and family members stating he was in Memphis at the time of the murder. ( See Pet. Memo 152-55). Petitioner maintains that the sentencing instructions deprived him of the benefit of this evidence and of his alternate theory of the crime, such that the jury was allowed to convict him upon a finding that he was an accessory after the fact. (Pet. Memo 150).

The challenged instructions read as follows:

The Court instructs the jury that each person present at the time, and consenting to and encouraging the commission of a crime, and knowingly, willfully and feloniously doing any act which is an element of the crime or immediately connected with it, or leading to its commission, is as much a principal as if he had with his own hand committed the whole offense; and if you believe from the evidence, beyond a reasonable doubt, that the defendant, Frederick Bell, did willfully, knowingly, unlawfully and feloniously do any act which is an element of the crime of capital murder or immediately connected with it, or leading to its commission, then and in that event, you should find the defendant guilty as charged. (Trial Tr. Vol. 2, 193, Instruction S-2).

***

The court instructs the jury that if two or more persons are engaged in the commission of a felony, then the acts of each in the commission of such felony are binding upon all, and all are equally responsible for the acts of each in the commission of such felony. (Trial Tr. Vol. 2, 194, Instruction S-3).

Respondents argue that this claim was found barred from review on direct appeal on the basis of an independent and adequate State law ground, and that Petitioner has failed to demonstrate cause and prejudice to overcome the procedural bar to this claim. (R. Memo 178-80). Petitioner maintains that the Mississippi Supreme Court did not "clearly and expressly" rest its judgment on the procedural bar, but that it merely noted it was not bound to consider the argument due to Petitioner's failure to make a contemporaneous objection. (Pet. Reply 31).

On direct appeal, the Mississippi Supreme Court noted that Petitioner did not argue that S-3 was an incorrect statement of the law, nor did he object to it at trial. Bell I, 725 So. 2d at 847. The court also determined Petitioner failed to timely object to sentencing instruction S-2 and stated it was "not bound to consider [the] argument." Id. In the alternative, the court found:

[A]ll instructions charging the jury must be read together, and S-2 cannot be read without regard to others, specifically, S-1, which requires the jury, in order to convict Bell of capital murder, to find that Bell did unlawfully, willfully and feloniously kill Bert, while engaged in the crime of armed robbery. The instruction then directs that "if the State has failed to prove any one or more of the above elements beyond a reasonable doubt, then you shall find the defendant not guilty."

Id. The court further found that the aiding and abetting instruction had been recently approved in Carr v. State, 655 So. 2d 824, 833 (Miss. 1995) and Simmons v. State, 568 So. 2d 1192, 1203-04 (Miss. 1990), and that the instruction properly instructed the jury regarding the elements of the crime and the burden of proof. Id. at 847-48.

This argument is barred from federal review based on Mississippi's contemporaneous objection requirement. See, e.g., Williams v. Puckett, 283 F.3d 272, 280 (5^th Cir. 2002) (habeas consideration of claim precluded by failure to comply with independent and adequate contemporaneous objection rule); Smith v. Black, 970 F.2d 1383, 1387 (5^th Cir. 1992) (Mississippi state courts regularly and consistently apply contemporaneous objection bar). While the court did not use the words "procedural bar" in dismissing this claim, there is no requirement that the court use any particular language to determine a claim is barred from review. See Coleman, 501 U.S. at 739, 111 S. Ct. at 2259. The court notes that Petitioner did object to S-2 during the jury instruction conference. However, he objected to the instruction on the basis that all of the evidence pointed to Petitioner as a principal, rather than an accessory, in the crime. ( See Trial Tr. Vol. 4, 275). Petitioner was required to specify the particular ground on which he was objecting to properly preserve the issue for appellate review. See Blake v. State, 825 So. 2d 707, 708-08 (Miss. 2002). Petitioner has demonstrated no facts upon which the requisite showing of cause and prejudice can be made to allow review of this claim.

However, the Court determines that an alternative consideration of the merits of this claim would fail to provide Petitioner with relief. A cohesive reading of the instructions in this case demonstrates that they properly placed upon the State the burden of proving every element of the charged offenses beyond a reasonable doubt. The jury found Petitioner responsible for Bert Bell's murder, and Petitioner has not demonstrated that the grant of these instructions denied him due process. See Mayabb v. Johnson, 168 F.3d 863, 867 (5^th Cir. 1999) (petitioner asserting erroneous jury charge warrants habeas relief must show instruction so infected trial that resulting conviction denies due process). This claim is dismissed.

D. Constructive Amendment of the Indictment

Petitioner argues that jury instruction S-1 at the guilt phase of his trial constructively amended the indictment, as it did not require that the jury find Petitioner killed the victim with "malice aforethought," as stated in the indictment. Petitioner argues this instruction broadened the basis on which he could be convicted. (Pet. Memo 159-60).⁶⁵ Petitioner asserts the jury instruction left out the vital element of mens rea in violation of the Grand Jury Clause of the Fifth Amendment, and that it also violated the Due Process Clause by failing to require that the government prove beyond a reasonable doubt every element of the crime for which the defendant is charged. (Pet. Memo 161-62).⁶⁶

65 The Indictment filed against Petitioner reads:
That Fredrick Bell and Anthony Doss, late of Grenada County, Mississippi, on or about May 6, 1991, in the county and state aforesaid and within the jurisdiction of this court, did unlawfully, willfully, feloniously and of their malice aforethought, then and there, kill and murder Robert C. Bell, a human being, when engaged in the commission of the crime of armed robbery, in violation of MCA § 97-3-19(2)(e), as amended, against the peace and dignity of the State of Mississippi. (Trial Tr. Vol. 1, 9).

66 Petitioner also makes an argument that the Eighth Amendment was offended by the constructive amendment of the indictment, as the death penalty may not be imposed on someone without a sufficiently culpable mental state, and the instruction at issue did not include a mens rea element. (Pet. Memo 159-60). The Court notes that Instruction S-1 was given at the guilt phase, and that the jury did find that Petitioner had the requisite culpability at the penalty phase of the trial. ( See Trial Tr. Vol. 2, 240).

Respondents contend that the sufficiency of a State indictment is not a federal issue, as the constitutional protection against the constructive amendment of an indictment has never been incorporated into the Fourteenth Amendment's Due Process Clause. (R. Memo 183-84). Therefore, Respondents argue, Petitioner has not raised a federal constitutional claim. In reply to Respondents' argument, Petitioner contends that the instruction violates his Sixth Amendment right to a fair trial. (Pet. Reply 32).

Instruction S-1 charged the jury:

The defendant, Frederick Bell, has been charged by indictment with the crime of capital murder. If you find from the evidence beyond a reasonable doubt in this case that

(1) On or about May 6, 1991, the defendant, Frederick Bell, did unlawfully, willfully, and feloniously kill Robert C. "Bert" Bell, and

(2) Said killing was done while the defendant, Frederick Bell, was engaged in the crime of armed robbery, then you shall find the defendant guilty of capital murder. If the State had failed to prove any one or more of the above elements beyond a reasonable doubt, then you shall find the defendant not guilty.

(Trial Tr. Vol. 2, 192).

On direct appeal, the Mississippi Supreme Court reviewed Petitioner's claim for plain error, as no objection was made regarding the instruction at trial. Bell I, 725 So. 2d at 854-55. The Court noted the principle that when a jury instruction broadens the basis on which the defendant may be found guilty of a crime without requiring proof of the elements alleged in the indictment, the defendant's constitutional rights are violated due to a constructive amendment of the indictment. Id. at 855. The court noted that "[t]he central question is whether the variance [between the indictment and instructions] is such as to substantially alter the elements of proof necessary for a conviction." Id. The court determined that neither a constructive amendment or plain error occurred in this instance, as the indictment against Petitioner "clearly serves notice that Bell is being charged with murder while engaged in the commission of the crime of armed robbery in violation of Miss. Code Ann. § 97-3-12(2)(e) (1994)." Id. at 856.

An accused has the right only to be tried on those charges indicted by a grand jury, and amendments to an indictment that broaden the basis for a defendant's conviction must come from a grand jury. See Stirone v. United States, 361 U.S. 212, 215-16, 80 S. Ct. 270, 272-73, 4 L. Ed. 2d 252 (1960). Where the jury is allowed "to convict the defendant upon a factual basis that effectively modifies an essential elements of the offense charged," a constructive amendment occurs. United States v. Holley, 23 F.3d 902, 912 (5^th Cir. 1994). However, if the proof at trial and instructions to the jury do not broaden the bases of conviction beyond that stated in the indictment, no constructive amendment occurs. See United States v. Miller, 471 U.S. 130, 105 S. Ct. 1811, 85 L. Ed. 2d 99 (1985). Rather, such a variation is "merely another of the flaws in trial that mar its perfection but do not prejudice the defendant." United States v. Young, 730 F.2d 221, 223 (5^th Cir. 1984) (internal citations omitted).

First, the Court notes that the Supreme Court has held that the Fifth Amendment Grand Jury Clause was not incorporated into the Fourteenth Amendment to apply to the States. See, e.g., Rose v. Mitchell, 443 U.S. 545, 557 n. 7, 99 S. Ct. 2993, 3001 n. 7, 61 L. Ed. 2d 739 (1979); Branzburg v. Hayes, 408 U.S. 665, 687-88 n. 25, 92 S. Ct. 2646, 2660 n. 25, 33 L. Ed. 2d 626 (1972). However, a criminal defendant is entitled under the Sixth Amendment and Fourteenth Amendments to fair notice "of the nature and cause of the accusation" against him. See, e.g., Spinkelink v. Wainwright, 578 F.2d 582, 609 n. 32 (5^th Cir. 1979), cert. denied, 440 U.S. 976, 99 S. Ct. 1548, 59 L. Ed. 2d 796 (1979) (citing U.S. Const. Amend. VI and In re Oliver, 333 U.S. 257, 273-74, 68 S. Ct. 499, 507-08, 92 L. Ed. 2d 682 (1948)).

Petitioner relies upon Watson v. Jago, 558 F.2d 330, 339 (6^th Cir. 1977) for his argument that the constructive amendment in his case abridged his right to notice. In that case, however, Watson had to defend at trial against a charge of felony murder, while the indictment charged deliberate and premeditated first-degree murder. Id. at 331. As felony murder and first-degree murder constituted separate crimes, the defendant was not put on notice that he would have to defend against the felony-murder charge. Id. at 334-35. Here, Petitioner was indicted for a violation of Miss. Code Ann. § 97-3-19(2)(e), which provides that capital murder is "[t]he killing of a human being without the authority of law by any means or in any manner . . . [w]hen done with or without any design to effect death, by any person engaged in the crime of . . . robbery . . . or in any attempt to commit such felonies." The indictment returned against Petitioner clearly put him on notice that he was being charged with capital murder for killing Bert Bell during the commission of an armed robbery under the statute, and the jury instruction comported with the statutory provisions. Petitioner was not convicted of a crime not charged in the indictment, nor did he have to defend against such a crime. This claim is dismissed.

E. Trial Court's Refusal of DS-7

Petitioner argues it was error for the trial court to refuse to instruct the jury that each individual juror must find beyond a reasonable doubt that the totality of the aggravating circumstances outweigh the totality of the mitigating circumstances in order to return a sentence of death. (Pet. Memo 162).⁶⁷ Petitioner maintains that Sentencing Instruction No. 1 informed the jury five times that mitigating circumstances must outweigh aggravating circumstances before a life sentence could be imposed, and that the instruction impermissibly shifted the burden of proof to Petitioner. (Pet. Memo 162-63)

67 Instruction DS-7 would have instructed the jury:
Before you may consider imposing the death sentence, each one of you must be convinced beyond a reasonable doubt that the totality of the aggravating circumstances outweigh the totality of the mitigating circumstances. If each one of you are not convinced beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating circumstances, you must return a verdict of life imprisonment. ( See Trial Tr. Vol. 2, 207).

On direct appeal, the Mississippi Supreme Court determined that this argument was barred for Petitioner's failure to object to the trial court's rejection of his proffered instruction. Bell I, 725 So. 2d at 860. The court otherwise noted that the charge to the jury instructed the jury how to weigh aggravating and mitigating circumstances in a manner consistent with the statute, and that it was "neither required nor appropriate that additional redundant instructions be given." Id.

Pursuant to Miss. Code Ann. § 99-19-101(2)(c), after a defendant is found guilty of capital murder and a sentencing proceeding has been held, the jury is required to deliberate and determine "[w]hether sufficient mitigating circumstances exist . . . [to] outweigh the aggravating circumstances found to exist." During the sentencing proceedings of a capital murder trial in Mississippi, defendants do not shoulder a burden of proof. See, e.g., Simmons v. State, 805 So. 2d 452, 500 (Miss. 2001) (finding that in Mississippi's capital sentencing proceedings "[e]very mandatory element of proof is assigned to the prosecution. Neither the burden of production nor the burden of proof ever shifts to the defendant."). Mississippi law requires that aggravating circumstances be found beyond a reasonable doubt, and the jury is required to find the presence of at least one aggravating circumstance before it may consider the death penalty as a sentencing option. See Miss. Code Ann. § 99-19-103; see also Simmons v. State, 805 So. 2d 452, 500 (Miss. 2001); Williams v. State, 684 So. 2d 1179, 1202 (Miss. 1996). During the sentencing phase of Petitioner's trial, the jury was instructed that it "must unanimously find, beyond a reasonable doubt, that one or more . . . aggravating circumstances exist in this case to return the death penalty." ( See Trial Tr. Vol. 2, 234). No similar burden was placed upon the jury's consideration of mitigating circumstances, and the sentencing instructions in this case did not lessen the State's burden to prove the presence of aggravating circumstances. The Fifth Circuit has specifically rejected the contention that Mississippi's death penalty statute creates a presumption that death is the appropriate sentence by shifting the burdens of proof and production to the defendant once an aggravating factor has been established. See Gray v. Lucas, 677 F.2d 1086, 1105-06 (5^th Cir. 1982).

Petitioner cites Jackson v. Dugger, 837 F.2d 1469 (11^th Cir. 1988) in support of his claim. There, the trial court instructed the jury that death was the presumptively proper sentence upon the finding of at least one aggravating circumstance unless the mitigating circumstances overrode the factor(s). Id. at 1473. The jury in Petitioner's case was not instructed that death was the presumptively proper sentence, and Jackson provides no support for Petitioner's claim.

In fact, there is no clearly established Supreme Court precedent requiring the conclusion Petitioner urges. All that is required of Mississippi's death penalty statute is that it narrow the class of defendants who are eligible for the death penalty and allow an individualized consideration of relevant mitigating circumstances. See Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 2524-25, 165 L. Ed. 2d 429 (2006). Moreover, even if Mississippi's statute had required Petitioner to prove the existence of mitigating circumstances, such would not violate his constitutional rights. See Walton v. Arizona, 497 U.S. 639, 650, 110 S. Ct. 3047, 3055, 111 L. Ed. 2d 511 (1990), overruled in part on other grounds by Ring .v Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002) ("[s]o long as a State's method of allocating the burdens of proof does not lessen the State's burden to prove every element of the offense charged, or in this case to prove the existence of aggravating circumstances, a defendant's constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency."); see also Kansas v. Marsh, 548 U.S. 163, 173, 126 S. Ct. 2516, 2524, 165 L. Ed. 2d 429 (2006) ("At bottom, in Walton, the Court held that a state death penalty statute may place the burden on the defendant to prove that mitigating circumstances outweigh aggravating circumstances."). Relief on this claim is denied.

F. Refusal to Instruct on Lesser-Included Offense

Petitioner argues that his Eighth and Fourteenth Amendment rights were violated by the trial court's refusal to give a lesser-included offense instruction to the jury, as he presented evidence that would have supported the instruction. (Pet. Memo 180). First, Petitioner contends that no evidence exists to support felony murder. He maintains that no money was taken from the store, and the .38 pistol introduced into evidence was later determined to belong to someone else. (Pet. Memo 183). Next, Petitioner contends that the evidence offered that Petitioner planned and executed a robbery/murder consisted mainly of the testimony of witnesses who have been shown unreliable. (Pet. Memo 184-85).⁶⁸ Finally, Petitioner contends that he maintained throughout trial that he was not in Mississippi at the time of the murder, and that numerous witnesses have affirmed his claim. (Pet. Memo 185).

68 Specifically, Petitioner references Anthony Doss' "habitual" alteration of his rendition of events in his statements to police and at his own trial. (See Pet. Memo 184-85). Doss did not testify at Petitioner's trial, and no statement from him was placed before the jury for its consideration.

Respondents argue that this claim is barred from the Court's consideration based on trial counsel's failure to object to the trial court's refusal of his lesser-included offense instruction. Without waiving the bar, Respondents argue that there was no evidence presented to the trial court that would support a simple murder instruction. (R. Memo 200-01). Respondents assert that when no evidence is presented to show a "felonious and premeditated intent to kill," there are no grounds on which to give a "simple" murder instruction. (R. Memo 201). Respondents further note that established Supreme Court precedent holds that a defendant is entitled to a lesser-included offense instruction only when evidence is presented that would support such an instruction. (R. Memo 202-04). Respondents contend that since Petitioner's defense was that he was not in Mississippi at the time of the murder, he cannot argue that he was entitled to a lesser-included offense instruction. (R. Memo 204).

On direct appeal, the Mississippi Supreme Court held Petitioner's claim barred for his failure to object to the refusal of the proffered instruction. Bell I, 725 So. 2d at 854. In the alternative, the court cited Abram v. State, 606 So. 2d 1015, 1035 (Miss. 1992), where it found that "the evidence must support a finding that the killing was not committed during the commission of armed robbery in order to justify a simple murder instruction." Id. The court found that there was "simply no evidence in this case to suggest Bert's murder was not committed during an armed robbery, especially in light of the discovery of the .38 caliber pistol belonging to the store under the control of Bell in Memphis." Id.

Petitioner's failure to contemporaneously object to the rejection of the proffered instruction precludes federal habeas review of this claim. See Coleman, 501 U.S. at 729-30, 111 S. Ct. at 2254 (state's finding of default based on failure to meet state procedural requirement bars federal habeas review of claim); Bledsue, 188 F.3d at 254; see also Smith v. Black, 970 F.2d 1383, 1387 (5^th Cir. 1992) (Mississippi's contemporaneous objection rule regularly and consistently applied). However, even if this claim were not barred from review, the alternatively-based decision of the Mississippi Supreme Court is not contrary to, or an unreasonable application of, the clearly established law as it relates to a defendant's entitlement to a lesser-included offense instruction.

Petitioner's due process rights required a jury instruction on the lesser-included offense of murder if the evidence presented at trial "unquestionably establishe[d] that the defendant [was] guilty of a serious, violent offense — but [left] some doubt with respect to an element that would justify conviction of a capital offense." Beck v. Alabama, 447 U.S. 625, 637, 100 S. Ct. 2382, 2389, 65 L. Ed. 2d 392 (1980). At issue is whether there was evidence presented from which a rational jury could have found Petitioner guilty of murder but acquitted him of capital murder. See Hopper v. Evans, 456 U.S. 605, 611-12, 102 S. Ct. 2049, 2053, 72 L. Ed. 2d 367 (1982). Unless the evidence presented at trial warranted a murder instruction, Petitioner was not denied due process by the trial court's refusal to accept the proffered instruction. See id. at 611, 102 S. Ct. at 2053 ("But due process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction.") (emphasis in original).

Mississippi defines murder as "[t]he killing of a human being without the authority of law by any means or in any manner . . . when done with deliberate design to effect the death of the person killed, or of any human being." Miss. Code Ann. § 97-3-19(1)(a). Capital murder is defined as "[t]he killing of a human being without the authority of law by any means or in any manner . . . [w]hen done with or without any design to effect death, by any person engaged in the commission of the crime of . . . robbery . . . or in any attempt to commit [robbery]." Miss. Code Ann. § 97-3-19(2)(e). For Petitioner to be entitled to an instruction for murder under Mississippi law at the time of his trial, proof would have to have been submitted that Petitioner killed Bert Bell with deliberate design but without participating in an armed robbery. Petitioner's defense at trial was that he was not present when Bert Bell was killed. There was no evidence presented from which a reasonable juror could have concluded that Petitioner killed Bert Bell, but that he did not do so during the course of a robbery. See Stringer v Jackson, 862 F.2d 1108, 1115 (5^th Cir. 1988), vacated on other grounds sub nom., Stringer v. Black, 494 U.S. 1074, 110 S. Ct. 1800, 108 L. Ed. 2d 931 (1990) (defendant charged with capital murder not entitled to instruction on lesser included offense of murder or manslaughter where evidence presented at trial proved that "either Stringer led a gang of robbers with the intent to murder the two victims, or he was at home nursing a back pain."). Petitioner has not demonstrated that the decision of the Mississippi Supreme Court was contrary to, or involved an unreasonable application of, clearly controlling federal precedent, and relief on this issue is denied.

G. Anti-Sympathy Instruction and Refusal of Mercy Instruction

Petitioner charges that the trial court erred in refusing his request to instruct jurors that they could consider, in addition to the mitigating circumstances, "any other reason" to impose a sentence less than death. (Pet. Memo 195). Petitioner argues that the trial court's refusal of his mercy instruction, coupled with an anti-sympathy instruction⁶⁹ given at trial, denied Petitioner his right to have the jury consider all proffered and relevant evidence in determining whether a sentence less than death was warranted. (Pet. Memo 195-97).

69 Sentencing Instruction No. 1 instructed the jury, in part, that they "should consider and weigh any aggravating and mitigating circumstances, as set forth later in this instruction, but you are cautioned not to be swayed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling." ( See Trial Tr. Vol. 2, 233).

On direct appeal, the Mississippi Supreme Court held Petitioner's argument procedurally barred for Petitioner's failure to object to the trial court's instructions. See Bell I, 725 So. 2d at 865. In the alternative, the court found Petitioner's argument regarding the anti-sympathy instruction without merit in light of Supreme Court precedent supporting the use of such language. Id. Citing its prior decisions, the court further rejected the argument that a capital defendant is entitled to a mercy instruction. Id.

The Mississippi Supreme Court's determination that Petitioner failed to lodge a contemporaneous objection to rejection of his mercy instruction and the giving of the anti-sympathy instruction constitutes an adequate and independent ground for precluding federal habeas review of this claim. See, e.g., Williams v. Puckett, 283 F.3d 272, 280-81 (5^th Cir. 2002) (Mississippi Supreme Court's determination that claim procedurally barred for petitioner's failure to make contemporaneous objection independent and adequate state rule to preclude habeas review). This Court has already determined that Petitioner was not denied ineffective assistance of counsel with regard to this claim, and therefore, he has not demonstrated cause and prejudice that would vitiate the procedural bar. See, e.g., Sykes, 433 U.S. at 87-88, 97 S.Ct. at 2506-07. Additionally, as the Court previously noted in its discussion of this issue in the context of Petitioner's ineffective assistance of counsel claim, Petitioner was not restricted in his ability to present and have the jury consider mitigating evidence. The jury in this case was instructed that the jurors could consider "[a]ny matter or any aspect of the Defendant's character or record and any other circumstance of the offense brought you during the trial of this cause which you, the Jury, deem to be mitigating on behalf of the Defendant." (Trial Tr. Vol. 2, 235). As noted by the Mississippi Supreme Court in its alternative discussion of the merits of Petitioner's claim, there is no constitutional prohibition against an anti-sympathy instruction, nor is a capital defendant entitled to a mercy instruction. See, e.g., Johnson v. Texas, 509 U.S. 350, 371, 113 S. Ct. 2658, 2671, 125 L. Ed. 2d 290 (1993) ("[W]e have not construed the Lockett line of cases to mean that a jury must be able to dispense mercy on the basis of a sympathetic response to the defendant."); Saffle, 494 U.S. at 492-93, 110 S.Ct. at 1262 (determination regarding appropriateness of death penalty is inquiry into culpability and not emotional response to mitigating evidence). Relief on this claim is denied.

H. Sentencing Instruction No. 1

On direct appeal, Petitioner argued eight separate errors in Sentencing Instruction No. 1. At trial, the instruction was objected to on the basis that it allowed the jury to consider Petitioner's involvement in the Tennessee murder as an aggravating circumstance even though it happened subsequent to the murder of Bert Bell. See Bell I, 725 So. 2d at 856. The court found all of the new objections procedurally barred and waived, and through an alternative discussion of the merits, it determined that no reversible error was committed by the giving of the instruction. Id. at 856-860.

Pursuant to Mississippi law, an objection on a specific ground operates to waive objection on any other ground that was not complained of to the trial court. See, e.g., Stringer v. State, 279 So. 2d 156, 158 (1973); McGarrh v. State, 148 So. 2d 494, 506 (1963); see also Young v. Dretke, 356 F.3d 616, 628 (5^th Cir. 2004) (noting that habeas court does not review correctness of state court interpretation of state law under AEDPA). Therefore, this claim is barred from habeas review absent a showing of cause and prejudice for the default. See, e.g., Coleman, 501 U.S. at 735, 111 S. Ct. at 2257; Sykes, 433 U.S. at 87-88, 97 S. Ct. at 2506-07. Petitioner argues that this Court should not impose a bar to the consideration of his claim due to his counsel's ineffectiveness. (Reply 47). However, out of the list of errors presented here, Petitioner only argued on post-conviction review that trial counsel performed ineffectively in failing to (1) object to the inclusion of the "avoiding or preventing a lawful arrest" aggravating factor and (2) present evidence to support an instruction on the effect of Petitioner's Tennessee conviction. ( See Pet. PCR 86-87). The Mississippi Supreme Court also considered Petitioner's argument that trial counsel performed ineffectively in failing to object to Sentencing Instruction No. 1 on the basis that it allowed the consideration of non-statutory aggravating factors. See Bell II, 879 So. 2d at 442. The Court has already determined Petitioner's ineffective assistance of counsel claims do not warrant habeas relief, so Petitioner's allegation of counsel's ineffectiveness cannot constitute cause to overcome a procedural bar. The remaining allegations of error that Petitioner presents in his habeas petition were not raised in State court in the context of ineffective assistance of counsel and are barred from federal habeas review. See Edwards v. Carpenter, 529 U.S. 446, 453, 120 S. Ct. 1587, 1592, 146 L. Ed. 2d 518 (2000) ("[A]n ineffective-assistance-of counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted.").

The Court determines, however, that Petitioner would not be able to demonstrate an entitlement to relief in the absence of a procedural bar based on the alternative reasoning of the Mississippi Supreme Court. Like the State court, this Court will address the merits of Petitioner's claim in the alternative without excusing his procedural default. See Harris, 489 U.S. at 264 n. 10, 109 S. Ct. at 1044 n. 10.

Failure to Narrow Death-Eligibility

In Mississippi, it is a statutorily enumerated aggravating circumstance that "[t]he capital offense was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody." See Miss. Code Ann. § 99-19-101(5)(e). Petitioner contends that the aggravating factor of "avoiding or preventing a lawful arrest" does not properly limit the type of crime that is death-eligible, as the use of the victim's death to support the underlying murder and as an aggravating circumstance violates the Eighth Amendment by failing to "genuinely narrow" the class of persons who are eligible to receive the death penalty. (Pet. Memo 201-02). Petitioner maintains that since Mississippi law provides for the constitutionally-mandated narrowing at the penalty phase through the use of aggravating circumstances, allowing the jury to find this aggravator simply because the victim was killed subjects all capital murder defendants to the death penalty. (Pet. Memo 201-02).

Pursuant to Mississippi's capital sentencing scheme, the jury must find the presence of at least one aggravating circumstance beyond a reasonable doubt before the death penalty may be imposed. See Miss. Code Ann. § 99-19-103. In addition to the presence of aggravating circumstances, the jury must make a finding that the defendant actually killed, attempted to kill, intended that a killing take place, or that the defendant contemplated that lethal force would be employed in the commission of the felony in order to return a sentence of death. See Miss. Code Ann. § 99-19-101(7). The "avoiding arrest" aggravating factor is not applicable to all capital murder defendants merely because a witness is killed; it applies in cases where there is sufficient evidence to infer that the victim was killed so that the perpetrator might avoid being identified and arrested. See, e.g., Leatherwood v. State, 435 So. 2d 645, 651 (Miss. 1983). Petitioner's argument does not demonstrate that this aggravating circumstance has an overly broad application. See Gray v. Lucas, 677 F.2d 1086, 1110 (5^th Cir. 1982) (finding Mississippi "has construed this aggravating circumstance to refer to purposefully killing the victim of an underlying felony to avoid or prevent arrest for that felony").

Moreover, Petitioner's argument that it is impermissible for the State to use the victim's death to establish the underlying murder and as an aggravating factor is not persuasive. Again, the "avoiding arrest" aggravator was not submitted to the jury merely because Bert Bell was killed. However, to the extent the capital offense and aggravating circumstance do overlap, such is not prohibited by federal law. See Williams v. Taylor, 529 U.S. 362, 393 n. 16, 120 S. Ct. 1495, 1513 n. 16, 146 L. Ed. 2d 389 (2000) (in Lowenfield . . . we held that an aggravating circumstance may duplicate an element of the capital offense if the class of death-eligible defendants is sufficiently narrowed by the definition of the offense itself."); Tuilaepa v. California, 512 U.S. 967, 972, 114 S. Ct. 2630, 2635, 129 L. Ed. 2d 750 (1994) ("The aggravating circumstance may be contained in the definition of the crime or in a separate sentencing factor (or in both).").

Finally, to the extent Petitioner's claim makes an argument regarding the sufficiency of the evidence to support this aggravating circumstance, he must demonstrate that, based upon the record evidence produced at trial, no rational trier of fact could have found that Bert Bell was murdered so that Petitioner could avoid or prevent arrest. See, e.g., Jackson, 443 U.S. at 324, 99 S. Ct. at 2791-92. Petitioner has not demonstrated the evidence in this case was insufficient to support the aggravating circumstance. This claim is barred, and Petitioner otherwise fails to demonstrate an entitlement to relief on this claim.

Double Count of Robbery — As element and aggravator

Petitioner next argues that the sentencing instruction impermissibly allowed the jury to "double count" robbery as both an underlying felony and an aggravating factor. (Pet. Memo 206-08). Petitioner maintains that the instruction fails to properly narrow the class of defendants eligible for the death penalty, as all defendants charged with capital murder based on an underlying felony of robbery are subject to the aggravating factor that the murder was committed while the defendant was engaged in the commission of an armed robbery. (Pet. Memo 208). In consideration of this argument on direct appeal, the Mississippi Supreme Court noted its prior cases rejected "the stacking argument" based on the holding of Lowenfield v. Phelps, 484 U.S. 231, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988), which the court interpreted as holding that "the fact that the sole aggravating circumstance found by the jury in its penalty decision was identical to an element of the underlying offense did not violate the Eighth Amendment." Bell I, 725 So. 2d at 859 (citation omitted).⁷⁰

70 The Court notes that three aggravating circumstances were found by the jury in Petitioner's case.

A capital sentencing scheme "must `genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared with others found guilty of murder.'" Lowenfield, 484 U.S. at 244, 108 S. Ct. at 554 (citation omitted). Aggravating circumstances are a means to accomplish the narrowing function. Id. Aggravating circumstances must satisfy two requirements to be valid (1) they must only apply to a subclass of convicted murders; and (2) they must not be too vague to provide guidance to the jury. See, e.g., Tuilapea, 512 U.S. at 972, 114 S. Ct. at 2635. Mississippi narrows the class of capital defendants who are eligible for the death penalty by statute. See Miss. Code Ann. § 97-3-19(2). It also narrows at the penalty phase through the use of aggravating circumstances. See Miss. Code Ann. § 99-19-101. As Mississippi has provided a narrowing function, "[t]he fact that the aggravating circumstance duplicated one of the elements of the crime does not make [the] sentence constitutionally infirm." Lowenfield, 484 U.S. at 246, 108 S. Ct. at 555.

In addition, the Fifth Circuit has also rejected the argument that an aggravating circumstance fails to adequately narrow the class of capital defendants eligible for the death penalty merely because the aggravating circumstance duplicates an element of the underlying felony. See Wingo v. Blackburn, 783 F.2d 1046, 1051 (5^th Cir. 1986); Evans v. Thigpen, 809 F.2d 239, 241 (5^th Cir. 1987). Petitioner is not entitled to relief on this issue.

Tennessee Conviction as Aggravating Circumstance

At trial, the State introduced a certified copy of a judgment showing that Petitioner had pled guilty to second-degree murder in Tennessee for a murder that was committed on the same day, but subsequent to, Bert Bell's murder. ( See Trial Tr. Vol. 4, 298-301). While he was indicted for first-degree murder for the Tennessee crime, Petitioner ultimately pled guilty to second-degree murder on April 23, 1992. ( See Pet. Memo, Ex. Y). On January 27, 1993, the jury in this case was instructed that it could consider as an aggravating factor that Petitioner "was previously convicted of another capital offense or of a felony involving the use or threat of violence to the person." ( See Trial Tr. Vol. 2, 234). Petitioner maintains that the jury was improperly allowed to consider his Tennessee conviction as an aggravating circumstance, because the Tennessee crime occurred subsequent to the robbery and murder of Bert Bell. (Pet. Memo 208). Petitioner maintains that had he refused to plead guilty, the conviction could not have been used as an aggravating factor against him. (Pet. Memo 210). Petitioner also appears to argue that his right to an unanimous jury verdict was infringed because some of the jurors may have based their verdict on the fact that the prior felony was capital, and Petitioner notes that second-degree murder is a non-capital felony in Tennessee. (Pet. Memo 208-210).

On direct appeal, the Mississippi Supreme Court considered Petitioner's argument that the "another capital offense" language in the instruction rendered the instruction invalid. Bell I, 725 So. 2d at 856. The court noted that "[t]he certificate which accompanied the indictment (which was not admitted into evidence) made reference to the charge in the indictment of murder in the first degree." Id. The court stated that the instruction tracked the disjunctive language of Miss. Code Ann. § 99-19-101(5)(b), which required that the jury find that the defendant had been "convicted of another capital offense or of a felony involving the use or threat of violence" in order to find the aggravating factor. Id. at 857 (emphasis in original). While noting that it would have been better if the trial court had chosen the applicable conviction without the disjunctive language, the court nonetheless determined there was sufficient evidence from which a jury could find Petitioner had been convicted of a felony involving the use or threat of violence to another. Id. The court found that the State never argued the prior crime was capital murder, and that Petitioner's argument was "not strong enough in the face of the State's submission of the judgment of conviction for second degree murder and closing argument." Id. The court found no error. Id.

The Court first notes that the language given to the jury clearly contained disjunctive language, and the indictment was not placed into the record for the jury's consideration. ( See Trial Tr. Vol. 4, 300). It was never argued to the jury that Petitioner had been indicted for capital murder in Tennessee, and Petitioner was cross-examined on the fact that he had pled guilty to second-degree murder in Tennessee. ( See Trial Tr. Vol. 4, 318-19). The fact that the trial court did not remove the "another capital offense" language is not fatal to the instruction where sufficient evidence existed that Petitioner had been previously convicted of a prior felony involving the use or threat of violence to another. See, e.g., Griffin v. United States, 502 U.S. 46, 60, 112 S. Ct. 466, 474, 116 L. Ed. 2d 371 (1991) ("[I]f the evidence is insufficient to support an alternative legal theory of liability, it would generally be preferable for the court to give an instruction removing that theory from the jury's consideration. The refusal to do so, however, does not provide an independent basis for reversing an otherwise valid conviction."). Moreover, Petitioner's argument that the instruction was invalid due to the timing of the crimes does not warrant relief. Petitioner has come forward with no case law to support his position that it violates his federal constitutional rights. Mississippi law has long held that where a conviction is entered prior to trial, even if the crime occurred subsequent to the instant charge, the conviction may be used to support an aggravating circumstance in the instant case. See, e.g., Leatherwood v. State, 435 So. 2d 645, 651-52 (Miss. 1983) (crime occurring subsequent to murder but prior to trial properly admitted into evidence as aggravating circumstance as "[c]rimes committed by a defendant after having committed a capital offense have just as much or more bearing on the question of his character, criminal tendencies, and whether he should suffer the death penalty, as do crimes committed by him prior to having committed the capital offense") (emphasis in original). This claim is dismissed.

Allowed "During Commission of Robbery" Aggravator

Petitioner next argues that Sentencing Instruction No. 1 allowed the jury to consider the aggravating factor of whether the capital murder was committed "during the commission of an armed robbery," even if the defendant was found only to be an accomplice to the robbery. (Pet. Memo 210). Petitioner maintains that clearly established federal law requires that the death penalty not be imposed on a defendant aiding and abetting a felony that results in a murder unless the defendant actually killed, attempted to kill, intended that a killing occur, or intended that lethal force be used to carry out the crime. (Pet. Memo 210-11). Petitioner argues no such finding occurred in his case, as the testimony against him came from Frank Coffey and Robert James, both of whom were present at Bert Bell's murder and had incentive to testify against Petitioner. (Pet. Memo 212). Petitioner maintains that none of the physical evidence placed him at the scene, and that when looking at the entirety of the proceedings, no finding as to Petitioner's culpability was ever made. (Pet. Memo 211-12).

In considering the merits of this claim on direct appeal, the Mississippi Supreme Court stated:

The vice which [Petitioner] finds in this instruction is that, in the guilt phase, the jury was instructed that it could find Bell guilty as an accomplice if he did any act "immediately connected with" the crime. Thus, the argument is that the jury could have found that he was merely an accessory after the fact and misapplied the aggravator. We repeat: the jury instructions must be read as a whole. Certainly, the parts of the State's sentencing instruction must be read together. In that instruction, the jury is charged, before the aggravating circumstances are listed, that they must, in order to impose the death penalty, find that Bell actually killed Bert, or that he attempted to kill him, or that he intended the killing to take place, or, finally, that he contemplated that lethal force would be employed during the commission of the robbery. There is no error in this instruction.

Bell I, 725 So. 2d at 857.

A capital defendant may not receive a sentence of death for aiding and abetting a felony in which someone is killed without a finding that the defendant actually killed, attempted to kill, intended to kill, or intended that lethal force would be employed. See Enmund v. Florida, 458 U.S. 782, 797, 102 S. Ct. 3368, 3376, 73 L. Ed. 2d 1140 (1982); see also Tison v. Arizona, 481 U.S. 137, 157-58, 107 S. Ct. 1676, 1688, 95 L. Ed. 2d 127 (1987) (expanding Enmund to hold capital murder defendant may be sentenced to death if he was a major participant in the underlying felony and acted with reckless indifference to human life). The court's finding that Enmund was satisfied at Petitioner's trial is sufficient if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact" could have made the culpability finding beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979) (emphasis in original). This finding is presumed correct on habeas review. Cabana v. Bullock, 474 U.S. 376, 3787-88, 106 S. Ct. 689, 697-98, 99 L. Ed. 2d 704 (1986), abrogated on other grounds by, Pope v. Illinois, 481 U.S. 497, 503 n. 7, 107 S. Ct. 1918, 1922 n. 7, 95 L. Ed. 2d 429 (1987).

In this case, the jury heard testimony that Petitioner planned to rob the Sparks' Stop-and-Go, that he was going to "go in shooting," that he stated to others he had killed Bert Bell, that he threatened to kill James to eliminate a witness, and that he was in possession of the murder weapons. The jury explicitly found that Petitioner (1) actually killed Bert Bell; (2) attempted to kill Bert Bell; (3) intended that the killing of Bert Bell take place; and (4) contemplated that lethal force would be employed during the commission of an armed robbery. ( See Trial Tr. Vol. 2, 240). A rational juror could have found Petitioner culpable based on the evidence presented. The fact that the jury did not believe Petitioner's defense theory and accepted the evidence presented by the prosecution as true does not make the culpability findings of the jury insufficient. See Schlup v. Delo, 513 U.S. 298, 330, 115 S. Ct. 851, 868, 130 L. Ed. 2d 808 (1995) (under Jackson, assessment of credibility of witnesses generally beyond scope of review); see also United States v. Martinez, 975 F.2d 159, 161 (5^th Cir. 1992) (weight and credibility of evidence within sole province of jury). This claim is dismissed.

Failure to define "avoiding or preventing a lawful arrest"

Petitioner contends that Sentencing Instruction No. 1 was not properly limited, as it failed to define "avoiding or preventing a lawful arrest." (Pet. Memo 212). Under Mississippi law, the jury may consider as an aggravating circumstance whether "[t]he capital offense was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody." See Miss. Code Ann. § 99-19-101(5)(e). Petitioner argues that Maynard v. Cartwright, 486 U.S. 356, 108 S. Ct. 1853, 100 L. Ed. 2d 372 (1988), requires that a capital sentencing jury be given a limiting instruction of an aggravating factor. (Pet. Memo 212; Reply 49). Respondents maintain that there is no requirement that a limiting instruction be given with the aggravating circumstance, and that Mississippi Supreme Court case law provides that this factor is satisfied upon showing that the defendant killed to "cover his tracks." (R. Memo 248).

Contrary to Petitioner's argument, not every aggravating factor requires a limiting instruction to prevent it from being unconstitutionally vague. See Tuilaepa v. California, 512 U.S. 967, 973, 114 S. Ct. 2630, 2635-36, 129 L. Ed. 2d 750 (1994). The United States Supreme Court has determined that the review of an aggravating factor is "quite deferential," and "[a]s long as an aggravating factor has a core meaning that criminal juries should be capable of understanding, it will pass constitutional muster." Jones v. United States, 527 U.S. 373, 400, 119 S. Ct. 2090, 2107-08, 44 L. Ed. 2d 370 (1999). In Petitioner's case, the Mississippi Supreme Court held that a limiting definition of the "avoiding or preventing a lawful arrest" aggravator was not necessary, and it noted that the Fifth Circuit had determined that the factor was not impermissibly broad. Bell I, 725 So. 2d at 858; see also Gray v. Lucas, 677 F.2d at 1110 (5^th Cir. 1982). The court determined that Petitioner's jury did not make an unreasonable inference in concluding that the murder was committed for the purpose of avoiding arrest. Id.

Mississippi case law has held that this aggravating circumstance is not imposed without proof that the defendant killed in order to "cover his tracks," and it has otherwise determined that a limiting instruction is not required. See, e.g., Manning v. State, 735 So. 2d 323, 350 (Miss. 1999); Evans v. State, 725 So. 2d 613, 689-90 (Miss. 1997); Walker v. State, 671 So. 2d 581, 611-12 (Miss. 1995); Leatherwood v. State, 435 So. 2d 645, 651 (Miss. 1983). Additionally, the Fifth Circuit has rejected a substantially similar argument, finding that this aggravating factor does not have an impermissibly broad application. See Gray, 677 F.2d at 1110. Petitioner is not entitled to relief on this claim.

Failure to require written findings of mitigating circumstances

Petitioner next argues that the instruction failed to require the jury to make specific written findings of mitigating circumstances as required by State law. (Pet. Memo 213-14). The Mississippi Supreme Court rejected Petitioner's claim on direct appeal, stating that it had never held that the law required the jury to make written findings of mitigating circumstances. Bell I, 725 So. 2d at 859. The court noted that as there is no requirement that all of the jurors agree concerning mitigating circumstances, imposing a requirement that the findings be written might "undesirably limit the jury's ability to give the defendant the benefit of all those factors." Id.

Pursuant to the Mississippi statute governing the jury's determination of the death penalty, the jury must unanimously make written findings that at least one statutorily-enumerated aggravating circumstance is present, and that there are insufficient mitigating circumstances to outweigh the aggravating circumstances before it may impose a sentence of death. See Miss. Code Ann. § 99-19-101(3). While the statute requires "specific written findings of fact," of aggravating and mitigating circumstances, it does not, on its face, require written findings as to the individual factors found. It merely requires that the jury find in writing that "sufficient" aggravating circumstances are present and that the mitigating circumstances are insufficient to outweigh the aggravating circumstances. However, Miss. Code Ann. § 99-19-103 requires that a jury unanimously recommending a sentence of death "designate in writing . . . the statutory aggravating circumstance or circumstances which it unanimously found beyond a reasonable doubt." The Mississippi Supreme Court has consistently determined that the statute does not require an individual listing of the mitigating circumstances found by the jury. See, e.g., Foster v. State, 639 So. 2d 1263, 1302-03 (Miss. 1994); Conner v. State, 632 So. 2d 1239, 1277-78 (Miss. 1993). Therefore, Petitioner was not deprived of a liberty interest created by the State by the jury's failure to make specific written findings as to the presence or absence of mitigating circumstances in this case. Petitioner has cited no clearly established federal law requiring that a jury make written findings of mitigating circumstances, and this argument has been rejected by several lower courts. See Rook v. Rice, 783 F.2d 401, 407 (4^th Cir. 1986) (holding it is not constitutional violation for trial court to fail to require jury to list mitigating circumstances); Martin v. Maggio, 711 F.2d 1273, 1286-87 (5^th Cir. 1983) (Constitution does not require procedure of written findings of mitigating circumstances); McQueen v. Scroggy, 99 F.3d 1302, 1332 (6^th Cir. 1996) (written findings of mitigating circumstances not required under federal law). This claim is dismissed.

Mitigating factors had to outweigh aggravating factors to impose life sentence

Petitioner next argues that the trial court impermissibly shifted to Petitioner the burden of proving that a death sentence should not be imposed by instructing the jury that the mitigating factors must outweigh the aggravating factors before a life sentence could be given. (Pet. Memo 214). The Mississippi Supreme Court noted in its review of this claim that the language in the instruction was consistent with the death penalty statute, and that the Fifth Circuit had determined that the statute did not shift the burden of production or proof to the defendant. Bell I, 725 So. 2d at 860-61 (citing Gray v. Lucas, 677 F.2d 1086, 1105-06 (5^th Cir. 1982)).

The jury in this case was instructed that it could impose a sentence of death in the event they found the mitigating factors did not outweigh the aggravating factors, but that it could not impose a sentence of death if it found the mitigating factors outweighed the aggravating factors. ( See Trial Tr. Vol. 2, 235). The jury was never instructed that it had to impose a sentence of death upon any particular finding, and death was not the presumed punishment. The burden of proving the presence of aggravating factors beyond a reasonable doubt rested with the State, while no burden of proof existed for mitigating factors. ( See Trial Tr. Vol. 2, 233-36). Additionally, the language in Sentencing Instruction No. 1 comported with Miss. Code Ann. § 99-19-101(c), and the Fifth Circuit has found that the statute assigns "[e]very mandatory element of proof . . . to the prosecution. Neither the burden of production nor the burden of proof ever shifts to the defendant." See Gray, 677 F.2d at 1106. As the State bore the burden of proving the existence of aggravating circumstances beyond a reasonable doubt, the instruction would not result in a constitutional violation even if it did require Petitioner to prove the existence of sufficient mitigating circumstances to warrant a life sentence. See, e.g., Walton v. Arizona, 497 U.S. 639, 650, 110 S. Ct. 3047, 3055, 111 L. Ed. 2d 511 (1990). This claim is dismissed.

Consideration of Non-Stautory Aggravating Circumstances

Petitioner argues that Sentencing Instruction No. 1, when read in conjunction with Sentencing Instruction No. 3, impermissibly expanded the statutory aggravating factors the jury was allowed to consider. (Pet. Memo 215-16). A portion of Sentencing Instruction No. 1 instructed the jury that it could "objectively consider the detailed circumstances of the offense for which the defendant was convicted, and the character and record of the defendant himself" in reaching a decision. (Trial Tr. Vol. 2, 233). Sentencing Instruction No. 3 instructed the jury to weigh aggravating and mitigating circumstances using a "reasoned moral judgment" as to whether a sentence of life imprisonment or death should be imposed "in light of the totality of the circumstances present." (Trial Tr. Vol. 2, 237). Petitioner maintains that the effect of these instructions was to expand the aggravating factors the jury could consider beyond those enumerated in the statute. (Pet. Memo 215).

Respondents argue that Mississippi requires the "detailed circumstances of the offense" language in its sentencing instructions, as the State's presentation of the circumstances of the murder is necessary to prove the intent factors required by the statute and by Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982) (holding it is unconstitutional to execute a criminal defendant without a finding that the defendant actually killed, attempted to kill, intended to kill, or contemplated that lethal force would be employed) (R. Memo 261-62). Respondents also argue that, as a matter of clearly established federal law, the jury was required to consider the circumstances of the crime in making a determination as to whether the death penalty should be imposed. (R. Memo 262-63).

The Mississippi Supreme Court considered Petitioner's argument and noted that while prosecutors cannot create and jurors cannot consider aggravating circumstances beyond those enumerated in the statute, the limitation placed on the jury's consideration does not prevent a reasoned consideration and assessment of the facts and circumstances developed and presented at trial. Bell I, 725 So. 2d at 864. The court further stated:

To do so would be absurd, and to instruct the jury of its duty to exercise such judgment and care simply cannot be called error. In Tuilapea v. California, 512 U.S. 967, 114 S. Ct. 2630, 129 L.Ed.2d 750 (1994), the defendant challenged the jury instruction issued by a California court instructing the jury that it could consider the circumstances of the crime and the defendant's prior criminal activity. The Court held that the "circumstances of the crime are a traditional subject for consideration by the sentencer, and an instruction to consider the circumstances is neither vague nor otherwise improper under our Eighth Amendment jurisprudence." Tuilapea, 512 U.S. at 976, 114 S. Ct. 2630. In Woodson v. North Carolina, 428 U.S. 280, 304, 96 S. Ct. 2978, 49 L.Ed.2d 944 (1976), consideration of the circumstances of an offense was characterized as constitutionally indispensable to a death sentence. The instruction given here was a sensible and clear expression of the jury's duty and cannot be read as interjecting unwarranted aggravating factors or allowing the jury to venture out on a hunt for other justification for ordering Bell's death.

Id. at 864-65.

Petitioner cites no case law in support of his argument that the jury's consideration of the totality of circumstances interjected non-statutory aggravating factor(s) into his sentencing proceeding. Sentencing Instruction No. 1 instructed the jury to consider as aggravating factors only those listed in the instruction. ( See Trial Tr. Vol. 2, 234). After a capital murder defendant has been rendered eligible for the death penalty by conviction of murder and the presence of at least one valid aggravating circumstance, whether that defendant may be selected to receive the death penalty involves "an individualized determination on the basis of the character of the individual and the circumstances of the crime." Tuilapea, 512 U.S. at 972, 114 S. Ct. at 2635 (citation omitted); see also id. at 976, 114 S. Ct. at 2637 ("[T]he sentencer should consider the circumstances of the crime in deciding whether to impose the death penalty. . . . We would be hard pressed to invalidate a jury instruction that implements what we have said the law requires."). This claim is dismissed.

Conclusion

For the reasons set forth above, Petitioner has not demonstrated that the denial of his State petition was contrary to, or involved an unreasonable application of, clearly established federal law, nor has the denial been shown to have been based on an unreasonable determination of facts in light of the evidence presented in the State court proceedings. Accordingly, the Court DENIES federal habeas relief, and the instant petition shall be dismissed with prejudice. A separate order in accordance with this opinion shall issue today.