               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                              UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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




                               19
