Bell v. Kelly , 260 F. App'x 599 ( 2008 )

Certiorari dismissed, November 17, 2008
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-22
EDWARD NATHANIEL BELL,
Petitioner - Appellant,
versus
LORETTA K. KELLY, Warden, Sussex I State
Prison,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James P. Jones, Chief District
Judge. (7:04-cv-00752-jpj)
Argued: October 30, 2007 Decided: January 4, 2008
Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished opinion. Judge Shedd wrote the opinion, in
which Judge Niemeyer and Judge Duncan joined.
ARGUED: Matthew K. Roskoski, LATHAM & WATKINS, L.L.P., Washington,
D.C., for Appellant. Katherine P. Baldwin, Senior Assistant
Attorney General, OFFICE OF THE ATTORNEY GENERAL, Richmond,
Virginia, for Appellee. ON BRIEF: Katharine R. Saunders, LATHAM &
WATKINS, L.L.P., Washington, D.C.; Robert Lee, VIRGINIA CAPITAL
REPRESENTATION RESOURCE CENTER, Charlottesville, Virginia; James G.
Connell, III, Jonathan P. Sheldon, Randi R. Vickers, DEVINE,
CONNELL & SHELDON, P.L.C., Fairfax, Virginia, for Appellant.
Robert F. McDonnell, Attorney General, Jerry P. Slonaker, Senior
Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
SHEDD, Circuit Judge:
A Virginia jury convicted Edward N. Bell of murdering
Winchester police sergeant Ricky L. Timbrook, and he was sentenced
to death. After unsuccessfully appealing his conviction and
sentence in state court on direct review and in state habeas
proceedings, Bell filed a petition in federal district court for a
writ of habeas corpus. See 28 U.S.C. § 2254(d). The district
court dismissed Bell’s petition, and he now appeals, arguing that
the district court erred in concluding that the dismissal by the
state court of his ineffective assistance of counsel claim was
reasonable. We affirm.
I.
In affirming Bell’s conviction and sentence on direct appeal,
the Supreme Court of Virginia found the following facts:
“On the evening of October 29, 1999, Sergeant Timbrook and two
probation and parole officers were working together in a program
known as Community Oriented Probation and Parole Services. One
aspect of Sergeant Timbrook’s responsibilities was to assist the
probation officers in making home visits to individuals on
probation or parole. On that particular evening, these three
individuals were patrolling in an unmarked car in Winchester and
were, among other things, searching for Gerrad Wiley, who was
wanted for violating the terms of his probation.
3
“The officers went to Wiley’s residence on Woodstock Lane in
Winchester several times that evening to no avail. Just before
midnight, when they returned to Wiley's residence for the sixth
time, they saw an individual standing in a grassy area between a
trash dumpster and an apartment building. As one of the probation
officers and Sergeant Timbrook exited the vehicle and approached
that individual, who was later identified as Daniel Charles
Spitler, another person, who had ‘dipped behind in the shadows,’
began running away. Sergeant Timbrook pursued that individual
while calling for assistance on his radio.
“Spitler identified the individual who ran from Sergeant
Timbrook as Bell. Spitler testified that, on the evening in
question, he was in the area of Woodstock Lane for the purpose of
obtaining cocaine from Wiley. After no one answered his knock on
the door of Wiley’s residence, Spitler started walking down a
nearby alley where he encountered Bell. Spitler did not tell Bell
that he wanted cocaine, but, according to Spitler, Bell ‘put his
hands on [Spitler] like to pat [him] down to check and see if
[Spitler] had a wire on [him].’ During that encounter, Sergeant
Timbrook and the two probation officers arrived in the unmarked
vehicle.
“When the vehicle’s headlights illuminated Spitler and Bell,
Spitler started walking toward the headlights, but Bell stepped
into the shadows of a building. Spitler identified Sergeant
4
Timbrook as one of the individuals who emerged from the vehicle.
According to Spitler, Bell then started running away and Sergeant
Timbrook chased after him, yelling ‘We have one running. Stop.’
Spitler lost sight of Bell and Sergeant Timbrook when they ran
behind a building, but Spitler testified that he heard a shot soon
thereafter.
“Sergeant Timbrook chased Bell along several streets and down
an alley between two houses located at 301 and 303 Piccadilly
Street. These houses were separated by a fence approximately two
or three feet in height. As Sergeant Timbrook started to climb
over the fence, a shot rang out. A police officer, Robert L.
Bower, who had responded to Sergeant Timbrook’s radio call for
assistance, described the incident in this manner:
[A]s [Sergeant Timbrook] started to cross over, I took my
eyes off of him, and directed it toward the subject. I
noticed it stopped. And, I saw a, what appeared to be a
left shoulder as it stopped. All I could was ... it was
like a black material.... As soon as I saw it stop, I
looked back at [Sergeant] Timbrook to say something, at
which time I heard the shot. And, I saw [Sergeant]
Timbrook falling.
“Sergeant Timbrook’s body was found lying on the ground with
his feet close to the fence and his upper torso leaning against a
wall. His gun was still in its holster. Sergeant Timbrook was
transported to a local hospital where he was pronounced dead. The
cause of death was a single gunshot wound above his right eye,
5
caused by a bullet which was fired from a distance of between six
and eighteen inches.
“Brad Triplett, one of the probation officers who had been
patrolling with Sergeant Timbrook that evening, ran in a parallel
direction during part of Sergeant Timbrook’s pursuit of Bell. At
one street intersection, he saw Sergeant Timbrook running after the
‘same dark[ly] dressed figure’ who had originally fled from
Sergeant Timbrook. Triplett described that person’s clothing as a
‘dark black type of jumpsuit, nylon material,’ with ‘reflective
like stripes on the jacket.’ Several times during the pursuit,
Triplett heard Sergeant Timbrook yelling, ‘Stop running. Police.’
He also heard the gunshot.
“The police searched the area for the suspect throughout the
night by securing a perimeter around the neighborhood where the
shooting had occurred and by using a helicopter equipped with a
heat-sensitive ‘Forward Looking Infrared’ camera and a spotlight.
At one point during the search, Officer Brian King spotted an
individual lying on the back steps of a house located at 305
Piccadilly Street. King stated that the person was wearing a dark
colored jacket with reflective strips on the sleeves that ‘li[t] up
like a Christmas [t]ree’ when he shined his flashlight on the
individual. The person then stood up and disappeared behind a
bush.
6
“Emily Marlene Williams, who lived at 305 Piccadilly Street,
testified that she heard the gunshot on the evening in question and
about five minutes later heard a ‘crash’ in the basement of her
house. After she told the police about the noise in her basement,
the police evacuated her and her family from their home. The
following morning, the police discovered Bell, a Jamaican national,
hiding in a coal bin in the basement of the Williams’ residence.
He was wearing a ‘LUGZ’ black nylon jacket and a black beret cap
with a gold pin. The jacket had reflective stripes on the sleeves.
Spitler identified both of these items of clothing as those that
Bell had been wearing on the evening when Sergeant Timbrook was
shot. Before Bell was transported from the Williams’ residence to
the police department, a gunshot residue test was administered to
Bell’s hands and the recovered particles were subsequently
identified as gunshot primer residue.
“During a search of the backyard of the Williams’ residence
the day after Bell was apprehended, a deputy sheriff found a pearl-
handled, Smith and Wesson .38 Special double action revolver. The
gun was located under the edge of a porch on the Williams’ house
and was covered with leaves and twigs. Forensic testing
established that this handgun fired the bullet that killed Sergeant
Timbrook. Forensic testing of DNA that was recovered by swabbing
the grips, butt, trigger, and trigger guard of this revolver could
7
not eliminate Bell as a co-contributor of that DNA, which was
consistent with a mixture of DNA from at least three individuals.
“When questioned by the police after his arrest, Bell admitted
that he had been on Woodstock Lane when ‘a white guy’ allegedly
began bothering him for information. Bell said that when a car
drove up and a man got out of the car, he ‘was scared’ and ran. He
said he did not know who was chasing him or why, and that when he
heard a shot fired, he hid in the basement of the house where he
was later discovered. Bell denied having a gun. However, while
Bell was confined in jail awaiting trial, he told another inmate
that he shot Sergeant Timbrook, threw the gun underneath a porch,
and then broke into a house and changed clothes in the basement.
“Justin William Jones testified that, around nine o’clock on
the evening of the shooting, he saw Bell in the vicinity of
Piccadilly Street. According to Jones, Bell showed him a revolver
and asked if Jones knew of anyone who wanted to buy a weapon.
Jones identified the pearl-handled, .38 caliber revolver introduced
at trial as the same weapon that Bell had shown him.
“The evening Sergeant Timbrook was shot was not the first
encounter between Timbrook and Bell. Sergeant Timbrook had
arrested Bell for carrying a concealed weapon in May 1997. The
following year, in September 1998, Sergeant Timbrook was present
during the execution of an Immigration and Naturalization Service
order to detain Bell. Eight months later, Sergeant Timbrook
8
assisted in executing a search warrant at Bell’s home. Bell was
present during that search. In the summer of 1999, one of Bell’s
friends heard Bell state, as Sergeant Timbrook drove by in a
vehicle, ‘Somebody needs to bust a cap in his ass.’ Another of
Bell’s acquaintances testified that she heard Bell say that he
would like to see Sergeant Timbrook dead, and that if he ever came
face to face with Sergeant Timbrook, he would shoot Sergeant
Timbrook in the head because he knew that Sergeant Timbrook wore a
bullet-proof vest.
“During the penalty phase, the Commonwealth presented evidence
regarding Bell’s criminal history. Several law enforcement
officers testified about incidents involving Bell. A police
officer from Jamaica provided information about Bell’s commission
of the crimes of assault and destruction of property in 1985. In
1997, an officer with the Winchester Police Department found a .38
caliber handgun concealed in the trunk of a car being driven by
Bell. The serial number of the gun had been filed off. An officer
with the West Virginia State Police stated that when he stopped
Bell for speeding in 1999, Bell gave him a false name. When the
officer started to arrest Bell and place him in handcuffs, Bell ran
away into a cornfield. Another West Virginia law enforcement
officer found five .38 caliber rounds of ammunition on Bell’s
person during a ‘stop and frisk’ in 1999. Finally, two employees
9
of the jail where Bell was confined while awaiting trial testified
that Bell had threatened them.
“Another witness, Billy Jo Swartz, testified about an incident
in 1997 when Bell grabbed her head and slammed it into his car. He
also held a gun to her head. During the same incident, Bell got
into a fight with his pregnant girlfriend and knocked her to the
ground. Swartz further stated that she had seen Bell with illegal
drugs. Other witnesses likewise testified about buying illegal
drugs from Bell.
“Members of Sergeant Timbrook’s family described their
relationship with him and the effect that his death has had on the
family. His wife was pregnant with their first child when Sergeant
Timbrook was killed. The only evidence that Bell introduced during
the penalty phase was from his sister and father.” Bell v.
Commonwealth, 563 S.E.2d 695, 701-703 (Va. 2002), cert. denied, 537
U.S. 1123 (2003)(alterations in original)(footnote omitted).
II.
A grand jury in Winchester, Virginia, indicted Bell for
capital murder, alleging that he deliberately, willfully, and with
premeditation killed a police officer for the purpose of
interfering with the performance of the officer’s official duties.
See Va. Code Ann. § 18.2-31(6). The jury found Bell guilty and he
10
was sentenced to death based on the probability that he would
commit criminal acts of violence in the future that would
constitute a continuing serious threat to society. See Va. Code
Ann. § 19.2-264.2. The Supreme Court of Virginia affirmed his
conviction and sentence and denied his petition for rehearing. The
United States Supreme Court subsequently denied his writ of
certiorari. Bell thereafter filed a state petition for writ of
habeas corpus asserting 21 claims, all of which the Supreme Court
of Virginia dismissed in a 31-page opinion.
In the portion of the opinion denying Bell’s claim that he
received ineffective assistance of counsel, the Supreme Court of
Virginia stated the following:
The Court holds that claim (III)(a) satisfies
neither the ‘performance’ nor the ‘prejudice’ prong of
the two-part test enunciated in Strickland. The record,
including the affidavit of counsel, demonstrates that
after interviewing petitioner, his sisters and his
mother, counsel believed that there was little mitigation
evidence available to assist petitioner. However, the
transcript of the sentencing hearing establishes that
counsel introduced evidence of petitioner’s background
and family life and such evidence was heard by the jury
through petitioner’s sister and father. Petitioner’s
sister testified that petitioner was one of fourteen
children and that, except for one speeding incident in
which she was involved after petitioner’s arrest, no
member of the family ever had legal problems.
Petitioner’s father testified that he started traveling
to the United States in 1966 to do agricultural work and
that, except for speeding violations; he also never had
any legal troubles. While counsel did not introduce
evidence of petitioner’s drug and alcohol use, evidence
that both petitioner’s parents had multiple children with
different partners, or evidence that petitioner supported
five children borne of three different women, counsel is
11
not ineffective for failing to present evidence that
could be ‘cross-purpose evidence’ capable of aggravation
and mitigation. Petitioner fails to proffer additional
information that counsel should have discovered or
presented during the penalty phase of petitioner’s trial
that would have assisted in mitigating his offense of
capital murder. For example, there is not sufficient
evidence in the record from a psychologist or a
psychiatrist to show that petitioner’s background and
family life had an effect upon his development. Thus,
petitioner has failed to demonstrate how counsel’s
performance was unreasonable or that there is a
reasonable probability that, but for counsel’s alleged
failure to investigate and present the alleged available
mitigation evidence, the result of the proceeding would
have been different. In finding no prejudice, the Court
has weighed the evidence in aggravation against the
mitigation evidence presented at the penalty phase of the
trial and on habeas.
Bell v. True, No. 030539, slip op. at 8-9 (Va. April 29,
2004)(citations omitted).
The Supreme Court of Virginia denied Bell’s motion for
rehearing and his motion to amend his habeas petition. Bell then
filed a federal habeas petition. The district court denied all of
Bell’s grounds for relief without a hearing, except for his claim
that his trial counsel’s failure to investigate or present
mitigating evidence constituted ineffective assistance of counsel.
On this claim, the district court granted an evidentiary
hearing on Bell’s allegation that the decision of the Supreme Court
of Virginia was an unreasonable determination of the facts in light
of the evidence before it and an unreasonable application of
12
precedent of the Supreme Court of the United States.1 See §
2254(d). After its evidentiary hearing, the district court found
that Bell received deficient performance from counsel and that the
decision of the Supreme Court of Virginia to the contrary was
unreasonable. See Wiggins v. Smith, 539 U.S. 510, 521 (2003).
However, the district court also found that the decision of the
Supreme Court of Virginia that counsel’s performance did not
prejudice Bell was reasonable.2 See Strickland v. Washington, 466
U.S. 668, 694 (1984). The district court granted a certificate of
appealability on the issue of whether counsel’s investigation and
presentation of mitigation evidence constituted ineffective
assistance of counsel. This appeal followed.
III.
We review a district court’s decision to grant or deny habeas
relief de novo. See Williams v. Ozmint, 494 F.3d 478, 483 (4th
1
The district court granted Bell an evidentiary hearing
because it appeared to the district court that the fact-finding
procedure employed by the state court was not adequate to afford a
full and fair hearing. See Townsend v. Sain, 372 U.S. 293, 313
(1963). Because we find that counsel’s performance did not
prejudice Bell, we need not decide whether the district court
correctly granted an evidentiary hearing.
2
The district court’s written order granting an evidentiary
hearing noted the deferential standard of review required by §
2254(d). J.A. 752-53. Although the district court’s oral order
dismissing Bell’s petition did not explicitly apply this standard
of review, we read the district court’s oral order as consonant
with its written order.
13
Cir. 2007). A federal court may not grant habeas relief unless the
state court’s decision was (1) “contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States” or (2) “based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” See 28 U.S.C. §
2254(d)(1)&(2). Under this standard, the federal court determines
not whether “the state court’s determination was incorrect but
whether that determination was unreasonable — a substantially
higher threshold.” Schriro v. Landrigan, 127 S. Ct. 1933, 1939,
(2007)(citations omitted).
Bell claims that he received ineffective assistance of counsel
and that the findings of the Supreme Court of Virginia to the
contrary were unreasonable. To prevail on a claim of ineffective
assistance of counsel, Bell must demonstrate (1) deficient
performance, meaning that “counsel’s representation fell below an
objective standard of reasonableness” in light of “prevailing
professional norms;” and (2) prejudice, meaning that “there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 688, 694.
On performance, Bell claims that counsel was deficient for
failing to investigate and present available mitigating evidence
from his ex-girlfriend, ex-wife, ex-wife’s sister, ex-girlfriend’s
14
mother, and a co-worker.3 See Wiggins, 539 U.S. at 522. He
further claims that if counsel had presented such evidence, there
is a reasonable probability that he would have received a life
sentence. Id. at 534. Finally, Bell argues that the findings of
the Supreme Court of Virginia to the contrary were unreasonable.
See § 2254(d). We conclude that the district court correctly found
that the finding of the Supreme Court of Virginia on prejudice was
reasonable, and therefore Bell is not entitled to relief on his
claim of ineffective assistance of counsel. Under these
circumstances, it is unnecessary for us to address the district
court’s conclusion that the finding of the Supreme Court of
Virginia that Bell did not receive deficient performance was
unreasonable. See Strickland, 466 U.S. at 697-98.
In concluding that counsel’s performance did not prejudice
Bell, the Supreme Court of Virginia found that the evidence from
Bell’s witnesses constituted cross-purpose evidence, which is
evidence capable of both aggravation and mitigation. See Barnes v.
Thompson, 58 F.3d 971, 980 (4th Cir. 1995)(citations omitted). In
making its prejudice determination, the Supreme Court of Virginia
3
Bell also claims that the district court should have allowed
him to present a report of witnesses from Jamaica, and should have
appointed him two mental health experts. Ordinarily, we would
review such rulings for abuse of discretion. See United States v.
Forrest, 429 F.3d 73, 79 (4th Cir. 2005). However, since a
certificate of appealability was never granted on these issues, we
do not have jurisdiction to consider them. See Reid v. True, 349
F.3d 788, 795-98 (4th Cir. 2003).
15
weighed this cross-purpose mitigation evidence against the evidence
in aggravation. See Wiggins, 539 U.S. at 534.
At the district court’s evidentiary hearing, Bell presented
testimony from the five witnesses he claims should have testified
for him during the penalty phase of the trial. After reviewing
testimony from these witnesses, the district court concluded that
the Supreme Court of Virginia was reasonable in finding that the
absence of their testimony did not prejudice Bell because the
evidence in aggravation outweighed the mitigation evidence
presented at trial and on state and federal habeas.
In reviewing the district court’s decision that the Supreme
Court of Virginia was reasonable in finding no prejudice, we review
the evidence that the district court found would have been the most
beneficial to Bell had it been presented during the penalty phase
of Bell’s trial. After its evidentiary hearing, the district court
identified Dawn Jones, Barbara Bell Williams, Carol Baugh
Anderson4, and Joanne Nicholson as Bell’s strongest witnesses.5
Ex-girlfriend Dawn Jones testified that Bell helped pay her
bills when she was pregnant and was a good father to their child.
4
This witness is referred to as Carol Baugh Williams in the
district court’s oral order.
5
Bell also presented testimony from his coworker, Precious
Henderson, but the district court considered her testimony less
helpful because she was unaware that Bell had been terminated from
his job for substance abuse.
16
However, Jones also testified that Bell physically assaulted her
three or four times during their five-year relationship. While
Jones was pregnant in 1993, Bell returned to Jamaica and married
Barbara Williams, with whom he had previously fathered a child.
Furthermore, after their relationship ended, Bell displayed a
firearm during an argument with a man at Jones’ house.6 Finally,
although Bell sent gifts to Jones, he never paid child support.
Ex-wife Barbara Williams testified that Bell was hard-working,
loving, and a good father. However, she also testified that while
she was pregnant in 1992, Bell left her and went to the United
States. Bell never paid child support to Williams.
Prior to moving in with Williams, Bell lived in the same house
with her sister, Carol Baugh Anderson, for approximately eighteen
months.7 Anderson testified to the district court that Bell was
hard-working, helpful around the house, and non-violent. However,
Anderson’s testimony allowed the prosecution to question her on
Bell’s relationship with her sister.
Joanne Nicholson is grandmother to the three children Bell
fathered with his ex-girlfriend, Tracy Nicholson. Joanne testified
6
Jones is the only one of the five witnesses to testify during
the penalty phase of the trial. She testified for the prosecution
regarding Bell’s display of a firearm during this incident.
7
Carol Baugh Anderson testified to the district court that she
and Bell lived in separate rooms and did not have a romantic
relationship.
17
to the district court that Bell was a good father and that she
never saw him hit Tracy. However, her testimony was undermined by
police reports showing that Bell assaulted Tracy. Joanne also
testified that she saw the incident with Billy Jo Schwartz and
stated that Bell did not have a gun and did not hit Tracy.
However, Schwartz testified that Joanne was not present when Bell
held a gun to Schwartz’s head. Additionally, Joanne’s account of
the incident conflicts with both Schwartz’s testimony and Tracy’s
affidavit.8 Finally, her testimony allowed the prosecution to
emphasize that Bell gave gifts, but did not provide child support
to Tracy.
After review, we conclude that the district court correctly
concluded that the finding of the Supreme Court of Virginia on
prejudice was reasonable. Evidence from each of these witnesses
was cross-purpose because it would have allowed the prosecution to
emphasize multiple instances of Bell’s infidelity; abandonment of
his children, wife and girlfriend; domestic abuse; and failure to
provide child support. Furthermore, focusing on Bell’s domestic
relationships likely would have caused the jury to compare Bell
unfavorably to Officer Timbrook, whose death left behind a pregnant
wife. When weighed against the aggravating factors of Bell’s
criminal record and propensity for violence, we find it reasonable
8
Both Tracy and Schwartz state that during the incident Tracy
was on top of Bell’s car while it was moving. Joanne denied that
Tracy was ever on top of Bell’s car.
18
for the Supreme Court of Virginia to conclude that the factors in
aggravation outweighed the mitigation evidence. Accordingly, we
affirm the district court’s decision denying Bell’s petition for
writ of habeas corpus.
AFFIRMED
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