   Case: 08-70031       Document: 00511096885          Page: 1    Date Filed: 04/30/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            April 30, 2010
                                       No. 08-70031
                                                                            Lyle W. Cayce
                                                                                 Clerk



FREDERICK BELL,

                                                   Petitioner-Appellant,

versus

CHRISTOPHER B. EPPS,
Commissioner, Mississippi Department of Corrections,

                                                   Respondent-Appellee.




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                                 No. 3:04-CV-212




Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Frederick Bell, a death row inmate, seeks an expanded certificate of ap-
pealability (“COA”) to include additional issues. We deny the application.

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 08-70031       Document: 00511096885       Page: 2   Date Filed: 04/30/2010

                                       No. 08-70031

                                              I.
      In 1993, a jury found Bell guilty of capital murder and sentenced him to
death. The Mississippi Supreme Court affirmed. Bell v. State, 725 So. 2d 836
(Miss. 1998), cert. denied, 526 U.S. 1122 (1999). Bell unsuccessfully petitioned
for collateral relief. Bell v. State, 879 So. 2d 423 (Miss. 2004), cert. denied, 543
U.S. 1155 (2005). Bell was denied federal post-conviction relief. Bell v. Epps,
2008 WL 2690311 (N.D. Miss. Jun. 20, 2008).
      Bell then moved for a COA, which the district court denied for most of the
claims but granted on two issues. Bell v. Epps, 2008 WL 3823766 (N.D. Miss.,
Aug. 13, 2008). As to those two, we affirmed, Bell v. Epps, 347 F. App’x 73 (5th
Cir. 2009), whereupon Bell filed the instant motion for an expanded COA.


                                             II.
      A party seeking an expanded COA must meet the ordinary requirements
for a COA. See, e.g., United States v. Kimler, 150 F.3d 429, 431 (5th Cir. 1998).
That is, he must make a “substantial showing of the denial of a constitutional
right,” 28 U.S.C. § 2253(c)(2), by demonstrating that “reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or
wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Jackson v. Dretke,
450 F.3d 614, 618 (5th Cir. 2006).
      Bell seeks to expand his COA to include three issues: (1) that the trial
court erroneously denied his jury challenges for cause; (2) that counsel rendered
ineffective assistance by waiving Bell’s Batson 1 right to contest the state’s use
of peremptory challenges; and (3) that the voir dire was deficient. Each of those
issues was presented to the district court in Bell’s earlier request for a COA.
The court denied that request, incorporating by reference the reasoning in its


      1
          Batson v. Kentucky, 476 U.S. 79 (1986).

                                              2
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                                       No. 08-70031

comprehensive denial of Bell’s habeas petition. Because the district court’s
disposition is not debatable by jurists of reason, we deny an expanded COA.


                                             III.
       Bell contends that the trial court erroneously denied his challenges for
cause as to four jurors, which required him to use four of his peremptory chal-
lenges to keep them off the jury. His claim that that violated his constitutional
rights is foreclosed by United States v. Martinez-Salazar, 528 U.S. 304, 317
(2000), which held that “a defendant’s exercise of peremptory challenges . . . is
not denied or impaired when the defendant chooses to use a peremptory chal-
lenge to remove a juror who should have been excused for cause.” Bell, like Mar-
tinez-Salazar, “had the option of letting [each allegedly-biased potential juror]
sit on the petit jury and, upon conviction, pursu[e] a Sixth Amendment challenge
on appeal.” Id. at 315. But instead, Bell, like Martinez-Salazar, elected to re-
move the four jurors because he did not want them on the jury. See id.
       “In choosing to remove [each juror] rather than taking his chances on ap-
peal, [Bell] did not lose a peremptory challenge. Rather, he used the challenge
in line with a principal reason for peremptories: to help secure the constitutional
guarantee of trial by an impartial jury.” Id. at 315-16. The district court’s dis-
missal of the claim is not unreasonable or debatable among jurists of reason.2


                                              IV.
       Bell contends that his trial counsel rendered ineffective assistance by fail-


       2
         Nowhere in his brief does Bell make the claim that the “trial court deliberately mis-
applied the law in order to force [him] to use a peremptory challenge to correct the court’s er-
ror, Martinez-Salazar, 528 U.S. at 316, and nothing in the record suggests that that was the
case. At any rate, Martinez-Salazar merely left open the question whether deliberate action
by the district court would warrant reversal, see id. (“[N]o question is presented here whether
such an error would warrant reversal.”), and so would not constitute “clearly established Fed-
eral law, as determined by the Supreme Court,” 28 U.S.C. § 2254(d)(1).

                                               3
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                                   No. 08-70031

ing to challenge the state’s allegedly discriminatory use of peremptory challeng-
es, as was his right under Batson v. Kentucky, 476 U.S. 79 (1986). A successful
ineffective-assistance claim requires showing both that counsel’s performance
was deficient and that the deficient performance prejudiced the defense. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel must have “made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed . . .
by the Sixth Amendment.” Id. Deficiency is judged by an objective standard, id.
at 688-89, with a “strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance,”id. at 689. Prejudice requires
a “reasonable probability that, but for the deficient performance of his trial coun-
sel, the outcome of his capital murder trial would have been different.” Avila v.
Quarterman, 560 F.3d 299, 313 (5th Cir.), cert. denied, 130 S. Ct. 536 (2009).
      As we stated in a previous iteration of this case,
      Bell’s sentencing claim was adequately developed in state court, so
      it is analyzed under the usual standards of the Antiterrorism and
      Effective Death Penalty Act of 1996 (“AEDPA”). Thus, because the
      Mississippi Supreme Court determined, on the merits, that Bell had
      received constitutionally adequate assistance of counsel at sentenc-
      ing, we can grant relief only on a finding that that conclusion ‘was
      contrary to, or involved an unreasonable application, of’ the Wash-
      ington standard.”

Bell, 347 F. App’x at 79 (citations omitted).3

      Bell points us to the portion of the transcript where his counsel discussed
Batson immediately after jury selection, stating that “the failure by the Defen-
dant to assert a Batson challenge to any of the peremptory challenges exercised
by the State was a tactical decision that was made after due consideration . . . .”
After referencing a recent Mississippi opinion, counsel added, “[I]t [is] my un-



      3
        Our review is removed somewhat from this standard, given our limited focus on
whether the disposition is debatable by reasonable jurists.

                                         4
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                                        No. 08-70031

derstanding that if I raised the Batson challenge to them . . . I would, likewise,
have to justify my challenges, and the challenges of the Defendant, and did not
feel that [sic] was wise . . . ,” and then added again that his reason was “tactical.”
       The Mississippi Supreme Court, hearing the claim on post-conviction re-
view, concluded that counsel had misinterpreted the relevant caselaw. We agree
that, to the extent that counsel felt that the state’s ability to challenge the de-
fendant’s use of peremptories hinged on the defendant’s decision to make a simi-
lar challenge, he misinterpreted federal law. Nevertheless, as both the Missis-
sippi Supreme Court and the federal district court pointed out, see Bell, 879 So.
2d at 435-36; Bell, 2008 WL 2690311, at *22, such a misunderstanding does not
inexorably lead to a finding of deficiency, see, e.g., Engle v. Isaac, 456 U.S. 107,
134 (1982). Indeed, “[t]he constitutional requirement does not demand errorless
counsel, but rather ‘counsel . . . rendering reasonably effective assistance, given
the totality of the circumstances.” United States v. Cockrell, 720 F.2d 1423, 1425
(5th Cir. 1983) (citations omitted).
       There is a “strong presumption” of competency in ineffective-assistance
cases.4 Even if counsel misunderstood the precise contours of Batson, the record
indicates that he informed Bell of that right,5 discussed with him whether to
raise such a challenge, and made a tactical decision not to do so.6


       4
       See, e.g., Wesbrook v. Thaler, 585 F.3d 245, 251 (5th Cir. 2009), cert. denied, 78
U.S.L.W. 3547 (U.S. Mar. 22, 2010).
       5
        This makes Bell’s reliance on Winters v. Cook, 466 F.2d 1393 (5th Cir. 1972), rev’d en
banc, 489 F.2d 174 (5th Cir. 1973), especially perplexing. In contrast to Bell, Winters “had no
idea that he could object to the jury composition.” Id. at 1395. (At any rate, we later reversed
en banc the holding bolstered by the language on which Bell relies.) And, however imperfect
counsel’s performance was, Bell provides nothing beyond his mere assertion to support his
claim that counsel was grossly negligent or incompetent. Cf. Winters v. Cook, 489 F.2d 174,
178 (5th Cir. 1973) (en banc).
       6
         Furthermore, there is no indication that counsel’s labeling of the reason for his failing
to raise a Batson challenge as tactical was a post-hoc rationalization “rather than a genuine
                                                                                   (continued...)

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                                        No. 08-70031

       Furthermore, Bell’s request for relief ultimately fails, because he is unable
to make the requisite showing that he was prejudiced.7 Bell asks us to infer dis-
crimination from the mere facts that he is black, the victim was white, and the
jury consisted of eleven whites and only one black. He points to nothing in the
record that suggests he could make out a prima facie case of purposeful discrim-
ination; bereft of data and affidavits, he has only his conclusional statement that
discrimination must have occurred.8 That is too speculativeSSparticularly so in
light of the “high burden of actual prejudice required to prove ineffective assis-
tance of counsel.” Carter v. Johnson, 131 F.3d 452, 464 (5th Cir. 1997). As to
this, we conclude, reasonable jurists could not disagree.


                                               V.
       Bell takes issue with the voir dire. Specifically, he claims that the trial
court’s and counsel’s inaction failed to result in an unbiased jury.
       Bell’s complaint about the adequacy of the voir dire is procedurally
barred.9 The Mississippi Supreme Court determined as much on direct review,



       6
        (...continued)
account of [his] decision-making process.” Richards v. Quarterman, 566 F.3d 553, 569 (5th
Cir. 2009).
       7
        Cf., e.g., Blanton v. Quarterman, 543 F.3d 230, 235 (5th Cir. 2008) (stating that peti-
tioner bears the burden of proving prejudice), cert. denied, 129 S. Ct. 2383 (2009).
       8
         Bell claims, in the alternative, that prejudice should be presumed because (1) there
was state involvement in the violation, and (2) the assistance of counsel was effectively denied
entirely. But Bell’s statement that the “trial judge inaccurately explained Batson to Petitioner
and reinforced trial counsel’s incorrect explanation of Batson” is not true. And, likewise, noth-
ing in the record lends credence to the claim that Bell’s counsel was so deficient that he “failed
to subject the prosecution’s case to meaningful adversarial testing,” United States v. Cronic,
466 U.S. 648, 659 (1984), such that there was “actual or constructive denial of the assistance
of counsel altogether,” Washington, 466 U.S. at 692.
       9
        AEDPA requires a petitioner to exhaust state remedies in compliance with state pro-
cedures. See, e.g., Amos v. Scott, 61 F.3d 333, 338 (5th Cir. 1995); see also 28 U.S.C.

                                                6
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                                        No. 08-70031

noting that “a party who fails to object to the jury’s composition before it is em-
paneled waives any right to complain thereafter.” Bell, 725 So. 2d at 844. That
holding was in keeping with the longstanding rule in its caselaw.10 Further-
more, the fact that that court then went on to discuss the merits of the issue is
irrelevant. We “must apply the procedural bar nonetheless, for an alternative
conclusion on the merits does not vitiate the state court’s procedural holding.”
Bell, 347 F. App’x at 78 n.10 (citing Hughes v. Dretke, 412 F.3d 583, 592-93 (5th
Cir. 2005)).
       Where a state prisoner has defaulted his federal claims in state court un-
der an independent and adequate state procedural rule, “federal habeas review
of the claims is barred unless the prisoner can demonstrate cause for the default
and actual prejudice as a result of the alleged violation of federal law, or demon-
strate that failure to consider the claims will result in a fundamental miscar-
riage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). Bell points
to no “objective external factor [that] impeded the defense counsel’s ability to
comply with the state’s procedural rules,” Martin v. Maxey, 98 F.3d 844, 849 (5th
Cir. 1996) (quoting Hill v. Black, 932 F.2d 369, 372-73 (5th Cir. 1991), nor does
he claim to be actually innocent, see id. He cannot show actual prejudice or a
fundamental miscarriage of justice, cf. id., so reasonable jurists would not disa-
gree with the district court’s disposition of the claim.
       The application for an expanded COA is DENIED.




       9
        (...continued)
§ 2254(b)(1)(A).
       10
         See, e.g., Hunter v. State, 684 So. 2d 625, 631 (Miss. 1996); Foster v. State, 639 So. 2d
1263, 1270 (Miss. 1994); Myers v. State, 565 So. 2d 554, 557 (Miss. 1990); Cole v. State, 525 So.
2d 365, 369 (Miss. 1994); Pickett v. State, 443 So. 2d 796, 799 (Miss. 1983).

                                                7
