                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 07a0700n.06
                            Filed: September 26, 2007

                                            No. 06-6023

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT



BILLY JOE BENTLEY,                                     :
                                                       :
       Petitioner-Appellant,                           :    On Appeal From the United States
                                                       :    District Court for the Eastern
vs.                                                    :    District of Kentucky
                                                       :
JOHN MOTLEY,                                           :
                                                       :
       Respondent-Appellee.                            :


BEFORE: GIBBONS and SUTTON, Circuit Judges; BECKWITH, District Judge.*

       SANDRA S. BECKWITH, District Judge. Billy Joe Bentley appeals the district court’s

dismissal of his habeas corpus petition. Bentley was convicted by a Kentucky state court jury of

wanton murder, and subsequently sentenced to a twenty-year term of imprisonment. After

exhausting his state remedies, Bentley filed a petition for habeas relief. The district court dismissed

his petition after finding no merit to his claims. The parties have waived oral argument pursuant to

Sixth Circuit Rule 34(j). Upon review, this panel unanimously agrees that oral argument is

unnecessary. Fed. R. App. P. 34(a). We affirm.


                                                  I.


       *
        The Honorable Sandra S. Beckwith, Chief Judge, United States District Court for the
Southern District of Ohio, sitting by designation.

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       The facts giving rise to this case are undisputed and are summarized in the Kentucky

Supreme Court’s opinion affirming Bentley’s conviction:

       On the night of March 20-21, 1997, [Bentley] went to Marlowe’s in the company of
       Chester and Janet Newsome. Upon arriving at the nightclub, [Bentley] left a .357
       Ruger handgun which he had borrowed ‘for protection’ on the middle bench of the
       Newsomes’ van. [Bentley] and the Newsomes remained at Marlowe’s until it closed.
       Upon returning to the van, Chester Newsome got into the driver’s seat and Janet
       Newsome into the front passenger seat. Appellant entered the sliding side door of
       the van and sat down on the right side of the van’s middle bench directly behind
       Janet Newsome. According to [Bentley], the .357 Ruger was laying on the bench
       adjacent to his left thigh.

       Chester Newsome noticed Ricky Elswick in the parking lot and called out to him.
       According to Newsome, [Bentley] asked him not to invite Elswick over to the van.
       Nevertheless, Elswick approached the vehicle, opened the sliding side door to where
       [Bentley] was sitting, touched [Bentley] on the right shoulder, and told him to move
       over. As Elswick started to enter the van, both Newsomes heard a gunshot. Chester
       Newsome asked [Bentley], “What are you doing, Bill?” whereupon a second shot
       was fired. One of the shots struck Elswick in the face and killed him. The other
       went through the floorboard of the van near [Bentley’s] feet.

J.A. 81-82. Bentley testified at his trial that he fired the shots accidentally. Bentley and Elswick

were friends and Bentley said he had no conflicts with Elswick that would cause Bentley to shoot

his friend. The jury convicted Bentley of wanton murder, a conviction affirmed by the Kentucky

appellate courts.

       Bentley then sought post-conviction relief on several grounds.1 Bentley contended that his

trial attorney, Ms. Harolyn Howard, provided ineffective assistance of counsel due to an alleged

conflict of interest. Howard’s son was a close friend of Elswick’s son and was at Marlowe’s the

night of the shooting. Bentley also argued that Howard failed to effectively cross-examine Mrs.

Newsome, who was a trial witness for the state, and failed to subpoena another witness to testify


       1
         Bentley raised several errors in his post-conviction proceedings but only two survive in
his appeal to this Court.

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about why Bentley had the gun the night of Elswick’s murder. After an evidentiary hearing, the state

court denied Bentley relief. Evidence presented at the hearing established that Howard met with

Bentley at the jail the night he was arrested. She disclosed the information about her son to Bentley,

who then signed a written waiver of any possible conflict. Bentley again waived any possible

conflict prior to his trial under questioning from the trial judge.

        The state court concluded that no actual conflict of interest existed between Bentley and

Howard. It also found that Bentley’s waiver of any potential conflict was knowing and voluntary.

The court rejected Bentley’s argument that Howard should have called additional witnesses or cross-

examined Newsome more vigorously, concluding that these did not rise to the level of ineffective

assistance. The state appellate courts affirmed. Bentley timely filed his habeas corpus petition in

the federal district court on January 27, 2005.

        The Magistrate Judge recommended that Bentley’s petition be dismissed. (JA 80) The

Magistrate Judge’s Report notes that the Kentucky courts analyzed Bentley’s ineffective assistance

claims under Strickland v. Washington, 466 U.S. 668 (1984), and concluded that Bentley did not

show “a reasonable probability, but for counsel’s deficiencies, that the result of the proceeding would

have been different,” id. at 694. The Magistrate Judge concluded that the state courts correctly

applied Strickland in a reasonable manner. Bentley objected to the Report, arguing that Howard

had an actual conflict of interest and prejudice should therefore be presumed. Bentley also argued

that the Kentucky courts unreasonably applied Strickland by focusing on what Howard did during

his trial rather than evaluating what she failed to do. The district court rejected Bentley’s objections,

adopted the Magistrate Judge’s Report, and dismissed Bentley’s petition. Bentley timely appealed.




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                                                  II.

       Bentley’s petition was filed after the effective date of the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”). Under 28 U.S.C. §2254(d) as amended by AEDPA, Bentley is

not entitled to habeas relief unless the underlying state court proceedings

       (1) resulted in a decision that was contrary to, or involved an unreasonable
       application of, clearly established Federal law, as determined by the Supreme Court
       of the United States; or (2) resulted in a decision that was based on an unreasonable
       determination of the facts in light of the evidence presented at the State court
       proceedings.2

We review de novo the district court’s conclusions of law and mixed questions of law and fact, and

its factual findings for clear error. Ruimveld v. Birkett, 404 F.3d 1006, 1010 (6th Cir. 2005). We

presume that a state court’s factual findings are correct as required by 28 U.S.C. §2254(e)(1).

       A.      Howard’s Conflict of Interest.

       Bentley argues that Howard had an actual conflict of interest because of her son’s friendship

with Elswick and his animosity towards Bentley. Bentley argues that prejudice should be presumed

to result, relying on Cuyler v. Sullivan, 446 U.S. 335 (1980). Cuyler dealt with a dual representation

conflict. The Supreme Court has held that Cuyler’s “presumed prejudice” test is limited to cases

involving multiple concurrent representation. See Mickens v. Taylor, 535 U.S. 162, 175 (2002). As

this Court noted in Stewart v. Wolfenbarger, 468 F.3d 338 (6th Cir. 2006): “This Court has

consistently held that, for Section 2254 cases, the Sullivan standard does not apply to claims of

conflict of interest other than multiple concurrent representation; in such cases, including successive

representation, the Strickland standard applies.” Id. at 351 (internal citations omitted). The state



       2
         Bentley contends that AEDPA standards do not apply to his claims. This is plainly
incorrect. See Williams v. Bagley, 380 F.3d 932, 943 (6th Cir. 2004).

                                                 -4-
court properly rejected Bentley’s argument that the presumed prejudice rule should apply to his

claims.

          Moreover, we find no error in the state court’s conclusion that there was no actual conflict

between Bentley and Howard. Howard testified at the evidentiary hearing that she did not believe

there was a conflict but advised Bentley of the facts out of an abundance of caution. Howard

admitted that Bentley’s representation caused family tension because her son believed Bentley to be

guilty of murder. But she also clearly stated that her son’s opinions did not affect her professional

judgment as trial counsel. The court credited Howard’s testimony that her son’s feelings did not

burden her with a professional conflict of interest. The state court also noted the many efforts

Howard undertook in Bentley’s defense and concluded that her representation was zealous and

conflict-free. We agree.

          Bentley must therefore establish that Howard’s performance was deficient and that his

defense was prejudiced to establish an ineffective assistance of counsel claim under Strickland.

          B.     Howard’s Failure to Call Her Son as an Adverse Witness.

          It is undisputed that Howard’s son James was at Marlowe’s bar the night Elswick was shot.

James was at Elswick’s side when he died although James did not witness the shooting. Howard

went to the jail the night of the killing after James called her to tell her about it. Howard promptly

told Bentley about James’ potential involvement. Bentley signed a written waiver of any possible

conflict that night at the jail. At Bentley’s arraignment, Howard informed the trial court about her

son’s relationship with Elswick, stating that she “probably” or “possibly” might call him as a hostile

witness during the trial. Bentley affirmed his waiver of any possible conflict at the arraignment and

again under questioning from the trial judge just before his trial started. After his sentence was


                                                  -5-
imposed, Bentley filed a complaint against Howard with the state bar. That complaint was dismissed

for lack of merit.

       Howard testified at Bentley’s evidentiary hearing that she was afraid James would have said

anything to send Bentley to prison for the rest of his life. James believed that Bentley intentionally

killed Elswick. Bentley contends, however, that James should have been a witness because he would

have admitted that Bentley and Elswick were friends, and also would have testified about things he

“may have known” but did not disclose to his mother.

       The state court concluded that Bentley knowingly and intelligently waived any potential

conflict on three separate occasions. The Kentucky Court of Appeals agreed, finding no evidence

in the record to suggest that Bentley did not understand the nature of the potential conflict or the

effect of his waiver. The Court of Appeals also noted that Howard approached Bentley’s defense

with vigor and zeal, and that his accidental-shooting defense was fully presented to the jury. The

Court of Appeals found that Bentley did not show a “reasonable probability” that the outcome of his

trial would have been different if he had been represented by a different lawyer.

       The district court below found that the state courts properly applied the Strickland test. The

court rejected Bentley’s assertions about what James “might” have testified because they were based

on mere speculation. We agree that the Kentucky courts properly applied Strickland to reject

Bentley’s claim. “Pure speculation” about whether the outcome might have been different is

insufficient to establish prejudice. See Baze v. Parker, 371 F.3d 310, 322 (6th Cir. 2004).

        C.     Howard’s Failure to Call Additional Witnesses and Cross-Examine Newsome.

       Bentley argues that Howard failed to call Desi Mullins, who would have testified that Bentley

was carrying the gun because he had been threatened by someone else. He also contends that


                                                 -6-
Howard failed to effectively cross-examine Janet Newsome about her statement to the police that

she did not hear any “fighting words” between Bentley and Elswick. These arguments were

presented to the state court and included in the certificate of appealability. We conclude, however,

that these claims lack merit. Bentley did not contest that he fired the shots that night. The particular

reason he had a gun was not crucial to a “wanton murder” conviction under Kentucky law. See

Elliott v. Commonwealth, 976 S.W.2d 416 (Sup. Ct. Ky. 1998), noting that under the Kentucky

penal code, “Wanton murder requires proof that the defendant ‘caused the death of another person’

by ‘wantonly engaging in conduct’ creating a grave risk of death to another person under

circumstances manifesting extreme indifference to human life.” Id. at 418 (internal citation omitted).

        Bentley also argues that Howard’s cross-examination of Newsome was constitutionally

ineffective, because she asked only one question. If this was error at all, it does not rise to the level

of ineffective assistance. In Strickland, the Supreme Court stated that our review of counsel’s

strategy and trial tactics should be “highly deferential” and should avoid second-guessing.

Strickland, 466 U.S. at 689. Bentley has not articulated a basis to conclude that Howard’s choice

to limit Newsome’s cross-examination was objectively unreasonable, or outside the realm of

reasonable professional judgments. Moreover, as noted above, wanton murder does not require

proof that Bentley was angry at Elswick; the lack of “fighting words” between them prior to the

shooting does not compel a conclusion that Bentley is not guilty of wanton murder.


                                                  III.

        For these reasons, we affirm the judgment of the district court dismissing Bentley’s petition.




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