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

                                                 FILED
                                                                        September 28, 2009
                                       No. 08-70031
                                                                       Charles R. Fulbruge III
                                                                               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. 3:07-CV-212




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


       Frederick Bell appeals the denial of his petition for writ of habeas corpus.
We affirm.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-70031

                                        I.
      On May 6, 1991, Robert “Bert” Bell (“Bert Bell,” no relation to the petition-
er) was shot and killed at Sparks’ Stop-and-Go, a grocery store in Grenada Coun-
ty, Mississippi, where he worked as a clerk. Later that day, Frederick Bell
(“Bell”) committed an unrelated murder in Memphis, Tennessee. On May 7, Bell
was arrested for the Memphis murder along with Anthony Doss, Frank Coffey,
and Bernard Gladney. Bell, Doss, and Coffey were interviewed concerning the
Mississippi murder two days later, and on July 19, Bell and Doss were indicted
for the murder of Bert Bell during the commission of an armed robbery. Bell’s
trial began on January 26, 1993.
      As the court a quo explained, “[n]o 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.” Bell v. Epps, No. 3:04-CV-212-B, 2008 WL 2690311,
at *2 (N.D. Miss. June 20, 2008) (Bell III). Instead, the state presented testi-
mony laying out the following narrative:

             [Early on the afternoon of May 6, Bell, Doss, Coffey, and Rob-
      ert Kennedy James] left Coffey’s house for the short journey up to
      Sparks’. Testimony showed that the four of them entered Sparks’
      and purchased some chips and beer from Bert Bell. They went out-
      side, sat on a picnic table, drank the beer and ate the chips. Bell
      talked of going to Memphis and said that he needed some money.
      As they talked, he announced he was going to rob the store and
      showed the group a .22 caliber pistol which he had in his possession.
      Doss also had a gun at this point, but, apparently, it would not fire.
      James and Coffey testified that they refused to take part in the ac-
      tion and departed the scene as Bell and Doss went in the store. A
      minute or so later, James and Coffey heard gunshots and hollering.

            When Bell and Doss caught up with the other two, they
      showed them a .38 caliber pistol which they had taken from the
      store along with a box of bullets and a money bag. At this point,
      Bell threatened to kill James because he did not want any witness-
      es. Coffey and Doss stepped in to prevent this. Both James and


                                        2
                                   No. 08-70031

      Coffey testified that Bell said he shot Bert.

            After the incident Bell, Doss and Coffey were taken to Mem-
      phis by Bernard Gladney. On the way to Memphis, Bell again said
      he wanted to kill James to prevent him from telling anyone about
      the Grenada murder. According to the criminal investigator in
      charge, two of the guns were recovered from the house where Bell
      was found in Memphis. The third was found in Gladney’s vehicle.

Bell v. State, 725 So. 2d 836, 841 (Miss. 1998), cert. denied, 526 U.S. 1122 (1999)
(Bell I). The state’s forensic pathologist testified “that Bell died from one wound
to the left forehead, one wound to the right chest, and one wound to the left
chest.” Bell III, 2008 WL 2690311, at *3. The forehead wound, according to the
state’s ballistics expert, was fired from a small-caliber weapon consistent with
the one that Bell had reportedly displayed before the murder, and the wounds
to Bert Bell’s chest had been fired from a .38 caliber gun that was among the
weapons seized in Memphis. Id. A .38 caliber gun, a box of shells, and a money
bag were taken from the store during the robbery. Id.
      Bell presented only his own testimony in defense. He claimed to have been
in Memphis at his grandmother’s house throughout the day of Bert Bell’s mur-
der and for three weeks prior, that he saw Coffey and Doss in Memphis when
they arrived from Mississippi on the evening of May 6, and that he hid two guns
for Doss that night. Bell presented no witnesses to corroborate his alibi. In ad-
dition to bringing James and Coffey, the state tendered James’s sister and Cof-
fey’s girlfriend to rebut Bell’s alibi with testimony that they had seen Bell in
Grenada County. Id.
      The jury found Bell guilty of capital murder and sentenced him to death.
Id. The Mississippi Supreme Court affirmed in Bell I. Bell’s petition for collat-
eral relief failed in state court as well. Bell v. State, 879 So. 2d 423 (Miss. 2004),
cert. denied, 543 U.S. 1155 (2005) (Bell II). Bell then filed the instant federal ha-
beas petition, which was denied. The district court granted a certificate of ap-

                                          3
                                        No. 08-70031

pealability on the two issues now before this court, both concerning the adequacy
of Bell’s counsel’s representation.


                                               II.
       Bell asserts that his counsel was constitutionally deficient under Strick-
land v. Washington, 466 U.S. 668 (1984), in failing to investigate an alibi defense
before trial. The district court held, and the state now argues, that because Bell
did not present his alibi-investigation claim to the Mississippi state courts in the
same factual posture as in the federal district court, it is procedurally barred.1
Bell III, 2008 WL 2690311, at *15. For this court to consider Bell’s arguments,
he must have (1) exhausted his state remedies 2 and (2) done so properly, in
compliance with state procedures.3
       This court has summed up the standard for exhaustion as follows:
             To satisfy the exhaustion requirement, a habeas petitioner
       must have fairly presented the substance of his claim to the state
       courts. This requirement is not satisfied if the petitioner presents
       new legal theories or factual claims in his federal habeas petition.
       We have consistently held that a petitioner fails to exhaust state
       remedies when he presents material additional evidentiary support
       to the federal court that was not presented to the state court.



      1
           See 28 U.S.C. § 2254(b)(1)(A) (requiring exhaustion of state-law remedies).
       2
           See Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir. 1999) (per curiam).
       3
       See Amos v. Scott, 61 F.3d 333, 338 (5th Cir. 1995). The doctrines of exhaustion and
procedural default are complementary:

              A habeas petitioner who has defaulted his federal claims in state court
       meets the technical requirements for exhaustion; there are no state remedies
       any longer “available” to him. In the absence of the independent and adequate
       state ground doctrine in federal habeas, habeas petitioners would be able to
       avoid the exhaustion requirement by defaulting their federal claims in state
       court.

Coleman v. Thompson, 501 U.S. 722, 732 (1991) (citations omitted).

                                               4
                                   No. 08-70031

             Although exhaustion inquiries are fact-specific, as a general
      rule dismissal is not required when evidence presented for the first
      time in a habeas proceeding supplements, but does not fundamental-
      ly alter, the claim presented to the state courts. Courts have ex-
      plained that although a habeas petitioner will be allowed to present
      bits of evidence to a federal court that were not presented to the
      state court, evidence that places the claims in a significantly differ-
      ent legal posture must first be presented to the state courts.

Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir. 2003) (footnotes and quotation
marks omitted). On appeal, Bell argues that his new evidence supplements,
without fundamentally altering, the alibi-investigation claims he fairly present-
ed in the state courts.
      In Anderson, the petitioner claimed that his trial counsel was constitution-
ally ineffective for failing to interview and subpoena an eyewitness who would
have testified that the petitioner was not the man he saw commit the crime. Id.
at 388. In his pro se state petition, the petitioner had identified “the non-testify-
ing eyewitness” by name, and in federal court he added an affidavit from that
witness. Id. at 386. The affidavit, we concluded, “d[id] not ‘fundamentally alter’
Anderson’s state claim; it merely confirm[ed] what he ha[d] been asserting all
along.” Id. at 388. Similarly, in Dowthitt v. Johnson, 230 F.3d 733, 746 (5th Cir.
2000), where the petitioner “had presented to the state habeas court his asser-
tions of mental illness,” his inclusion in federal court of affidavits from two ex-
perts confirming that diagnosis did not render those assertions unexhausted.
      Anderson and Dowthitt bear a certain resemblance to the present case.
Bell has consistently argued that Gladney would have corroborated his alibi if
he had been called at trial. In state court, Bell claimed that Gladney would have
testified, if contacted by Bell’s trial counsel, that Bell was in Memphis at the
time of Bert Bell’s murder and that investigation of Gladney’s testimony would
have revealed still more alibi witnesses. In the district court, Bell brought nine
signed statements and affidavits from various persons, including Gladney, as-

                                         5
                                        No. 08-70031

serting the same thing. In bringing Gladney’s affidavit to federal court, at least,
Bell has merely presented evidence confirming that Gladney would have said
what he has said he would say. All this militates in favor of finding that Bell’s
alibi-investigation claim, at least as it concerns Gladney, was presented in fed-
eral court in a similar factual posture and is therefore exhausted.4
       Other considerations, however, dictate the opposite conclusion. To begin
with, Bell never argued in federal district court that the statements he submit-
ted were only supplemental. That court specifically noted that failure,5 and Bell
has not suggested on appeal that the court misunderstood his argument. “[W]e
have repeatedly held that a contention not raised by a habeas petitioner in the
district court cannot be considered for the first time on appeal from that court’s
denial of habeas relief.” 6
       Furthermore, Bell’s argument is procedurally barred for failure to present
it properly in state court. Because federal courts do not review state court deci-
sions resting on “independent and adequate” state-law grounds, the procedural
bar prevents federal courts from considering federal habeas claims “when a state
court declined to address a prisoner’s federal claims because the prisoner had
failed to meet a state procedural requirement.” Coleman, 501 U.S. at 729-30.
       Under Mississippi law, all claims for post-conviction collateral relief rest-



       4
         Anderson provides no support to Bell with regard to the other alibi witnesses whose
affidavits he presented in federal district court. In the state courts, he never mentioned those
witnesses or their likely testimony and so deprived those courts of any opportunity to consider
them. See Smith v. Quarterman, 515 F.3d 392, 402-03 (5th Cir. 2008) (distinguishing Ander-
son and Dowthitt on that basis). As to those witnesses, then, Bell’s Washington claim is un-
questionably barred. He has not tried to overcome that bar by “demonstrat[ing] cause for his
default and actual prejudice or show[ing] that the failure to consider his claims will result in
a fundamental miscarriage of justice.” Id. at 403 (quotation marks omitted).
       5
           Bell III, 2008 WL 2690311, at *15 n.16
       6
         Goodrum v. Quarterman, 547 F.3d 249, 259 n.49 (5th Cir. 2008) (quoting Johnson v.
Puckett, 930 F.2d 445, 448 (5th Cir. 1991)), cert. denied, 129 S. Ct. 1612 (2009).

                                               6
                                        No. 08-70031

ing on “facts which are not within the prisoner’s personal knowledge” must in-
clude “[a]ffidavits of the witnesses who will testify and copies of documents or
records that will be offered” as evidence. M ISS. C ODE A NN. § 99-39-9(1)(e). The
Mississippi Supreme Court, in denying Bell’s argument that “counsel was inef-
fective because he failed to secure the attendance of witnesses to corroborate his
alibi,” pointed out that Bell had not brought affidavits from Gladney or anyone
else and, except for Gladney, had not named any of the witnesses he suggested
would have supported him. In Gladney’s case, Bell brought only the transcript
of Bell’s extradition hearing at which Gladney had testified. Bell II, 879 So. 2d
at 440.7
       There is no question that Bell was required to bring affidavits from Glad-
ney and other alleged alibi witnesses.8 In Washington, 466 U.S. at 691-92, the
Court required a showing of prejudice resulting from ineffective assistance, and
Bell could not have established prejudice resulting from either failure to inves-
tigate or failure to present alibi witnesses without bringing live testimony from
those witnesses. Because witnesses such as Gladney would have had to testify,
the § 99-39-9(1)(e) affidavit requirement applies. Thus, even if Bell “fairly pre-
sented” the general substance of his alibi-investigation claim in state court, and
even if the affidavits he brought in the district court supplemented the claims
he had asserted all along, he failed to comply with state procedural require-
ments.
       In light of Bell’s failure to bring the required affidavits, the court dis-


       7
         The Mississippi Supreme Court cited Lewis v. State, 776 So. 2d 679, 682 (Miss. 2000),
for the proposition that “the statute requires affidavits of those witnesses that will testify” in
support of state habeas. Bell II, 879 So. 2d at 440.
       8
         Bell has not argued that the extradition hearing transcript constitutes a Gladney
“affidavit” within the meaning of § 99-39-9. See Wilcher v. State, 862 So. 2d 719, 744 (Miss.
2003) (requiring that an affidavit be written or printed under oath, confirmed by oath or af-
firmation taken before a person with authority to administer the oath or affirmation). The
Mississippi Supreme Court appears not to have taken it as such. See Bell II, 879 So. 2d at 440.

                                                7
                                       No. 08-70031

missed his claim concerning the attendance of alibi witnesses as “without merit.”
Bell II, 879 So. 2d at 440. Such an obvious statement by the Mississippi Su-
preme Court that state law precluded consideration of Bell’s claim easily consti-
tutes reliance on an independent state-law ground.9 Because the state’s highest
court relied on that ground, we defer to its denial of relief.10
       Bell could have sought to excuse his state court procedural default by
showing cause and prejudice or by demonstrating that ignoring the federal claim




       9
          Coleman, 501 U.S. at 732-33 (describing a “conclusive presumption” that there is a
state law ground when the state court says so “clearly and expressly”) (quoting Michigan v.
Long, 463 U.S. 1032, 1041 (1983)). Of course, “a state procedural rule barring federal habeas
review of a federal claim must be adequate” as well. Amos, 61 F.3d at 339. Adequacy requires
the state courts to have “strictly or regularly applied [the rule] evenhandedly to the vast ma-
jority of similar claims.” Id. (citing Dugger v. Adams, 489 U.S. 401, 410 n.6 (1989)) (emphasis
omitted).

       We presume that procedural bars asserted by state courts are adequate unless the
petitioner makes a showing to the contrary. Paredes v. Quarterman, 574 F.3d 281, 289 (5th
Cir. 2009) (per curiam). Bell makes no objection to the adequacy of § 99-39-9, for example by
drawing our attention to cases in which the Mississippi Supreme Court has declined to apply
it. Besides, that court has indeed considered state habeas petitions precluded for failure to
comply with § 99-39-9, and district courts in this circuit have accordingly considered those
claims defaulted. See Stewart v. Epps, No. 2:06-CV-164, 2007 WL 1826924, at *1-*2 (N.D.
Miss. June 22, 2007). The petitioner in Anderson seems to have made the same error that Bell
did here in failing to present affidavits to the Mississippi Supreme Court, but the state court
in that case did not say that it was relying on that default in denying relief, so there was no
independent and adequate state ground on which this court could rely. Anderson, 338 F.3d
at 385-86.
       10
          The Mississippi Supreme Court also found, in the alternative, that Bell’s counsel’s
investigation of Bell’s alibi was adequate on the merits. Bell II, 879 So. 2d at 433-34. This
court must apply the procedural bar nonetheless, for an alternative conclusion on the merits
does not vitiate the state court’s procedural holding. Hughes v. Dretke, 412 F.3d 582, 592-93
(5th Cir. 2005) (citing Cook v. Lynaugh, 821 F.2d 1072, 1077 (5th Cir. 1987)).

        The fact that the Mississippi Supreme Court, on its own terms, dismissed the investiga-
tion of Bell’s alibi on the merits and the presentation of alibi witnesses by applying § 99-39-9
is not material. Compare Bell II, 879 So. 2d at 433-34, with id. at 440. Section 99-39-9 applies
to both.

                                               8
                                       No. 08-70031

would result in a fundamental miscarriage of justice.11 A showing of cause re-
quires an “objective external factor [that] impeded the defense counsel’s ability
to comply with the state’s procedural rules”; miscarriage of justice requires a
showing of “actual innocence.” Martin v. Maxey, 98 F.3d 844, 849 (5th Cir. 1996)
(quoting Hill v. Black, 932 F.2d 369, 372-73 (5th Cir. 1991)). Bell has not made
any such showings. His argument that his trial counsel was inadequate for fail-
ure to investigate witnesses to corroborate his alibi is therefore both waived and
procedurally barred.


                                            III.
       Bell claims that his trial counsel was ineffective at sentencing for failure
to develop additional testimony on potential mitigating factors. To challenge his
attorney’s representation, Bell must show that it “fell below an objective stan-
dard of reasonableness,” Washington, 466 U.S. at 688, and that it resulted in
prejudice, id. at 691-92. 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 constitution-
ally adequate assistance of counsel at sentencing, we can grant relief only on a
finding that that conclusion “was contrary to, or involved an unreasonable appli-
cation of,” the Washington standard.12
       The Mississippi Supreme Court explained that Bell’s counsel interviewed
Bell’s mother, grandmother, brother, and three elementary school teachers and



       11
            Coleman, 501 U.S. at 749-50 (quoting Murray v. Carrier, 477 U.S. 478, 485, 495
(1986)).
       12
         28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 391 (2000). We may not, in
other words, undertake a de novo review of whether Bell has established a Washington claim.
Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir. 2003).

                                             9
                                   No. 08-70031

presented the testimony of Bell’s mother. Bell II, 879 So. 2d at 443. Bell’s
attorney also presented Bell’s girlfriend—who attested to “Bell’s disposition and
his loving relationship with their young son and her daughter”—and Bell himself
at sentencing. Id. at 444. Based on the testimony presented, the trial court in-
structed the jury to consider a list of seven different mitigating factors. Id.
      Bell now argues, however, that counsel failed adequately to investigate or
present mitigating evidence on his (1) purported mental disabilities, (2) age at
the time of the crime, and (3) unfortunate childhood. Bell’s objections go only to
the degree of his trial counsel’s investigation; he claims that the attorney did not
conduct enough interviews, review enough records, or call enough witnesses on
his behalf. Such objections to trial strategy are typically subject to a “strong pre-
sumption that counsel’s conduct falls within the wide range of reasonable profes-
sional assistance,” and reviewing courts must make every effort to account for
the distorting effect of hindsight on ultimately unsuccessful trial decisions.
Washington, 466 U.S. at 689.
      Bell’s counsel argued youth as a mitigating factor to the jury, Bell III, 2008
WL 2690311, at *44, and the trial court instructed the jury to take Bell’s age into
account, Bell II, 879 So. 2d at 444. There is no constitutional requirement of fur-
ther investigation or presentation of evidence on the subject of Bell’s age.
      With regard to Bell’s childhood, the trial court instructed the jury to con-
sider Bell’s lack of education and the fact that he was raised in poverty and had
an abusive and violent father. Id. Bell and his mother testified on the subject,
and Bell’s counsel interviewed several other individuals familiar with it. Though
Bell has brought affidavits from additional persons saying that they would have
testified on his behalf at sentencing, neither he nor the affidavits explain what
additional information those witnesses would have brought if they had been in-
terviewed or presented; they seem to be merely cumulative. Bell II, 879 So. 2d
at 443.

                                         10
                                  No. 08-70031

      Bell presents no more than conclusional argumentation about what differ-
ence those witnesses might have made. Although additional testimony may, in
retrospect, have been helpful, we can hardly conclude that his counsel was objec-
tively unreasonable in not presenting further testimony or that any prejudice re-
sulted. Given the investigation and presentation of evidence actually performed,
the Mississippi Supreme Court’s conclusion that Bell was adequately repre-
sented meets the requirements of AEDPA.
      As for Bell’s mental disabilities—including his possible low intelligence
and mental or emotional illnesses—no evidence was presented to the jury, but
Bell’s counsel made an investigation. As mentioned above, he interviewed Bell’s
schoolteachers. He seems also to have attempted to secure school records, and
he hired a psychiatrist to evaluate Bell’s intellectual functioning. Bell III, 2008
WL 269 WL 2690311, at *43-*44. The evidence that could have been presented
after that inquiry appears to have been conflicting, to say the least, perhaps even
damaging to Bell. Counsel’s decision, made after investigation, not to present
that evidence is therefore protected by the strong deference always afforded to
the strategic decisions of trial counsel. Washington, 466 U.S. at 691. The Mis-
sissippi Supreme Court was not unreasonable in concluding that the decision not
to present that testimony met minimal standards.
      The denial of habeas relief is AFFIRMED on the two issues on which the
district court granted a COA. This is without prejudice to this court’s considera-
tion of any other issue on which we may decide to grant a COA.




                                        11
                                   No. 08-70031

CARL E. STEWART, Circuit Judge, specially concurring:
      While I join the majority’s opinion, I write separately because the
Mississippi Supreme Court failed to “clearly and expressly” hold that Bell’s
claims were procedurally barred due to a violation of Miss. Code Ann. § 99-39-9.
Nonetheless, I concur in the judgment affirming the district court. Bell has
failed to raise a claim that would allow this court to grant relief under the highly
deferential standard set out in the Antiterrorism and Effective Death Penalty
Act (“AEDPA”), 28 U.S.C. § 2254(d).
      This court has previously explained that we will not review “a question of
federal law decided by a state court if the decision of that state court rests on a
state ground that is both independent of the merits of the federal claim and
adequate to support that judgment.” Amos v. Scott, 61 F.3d 333, 338 (5th Cir.
1995). The majority opinion concludes that the Mississippi Supreme Court’s
decision rests on a state ground that is independent of the merits of Bell’s federal
claims. Specifically, the majority opinion states that Bell did not meet the
procedural requirements found in Miss. Code Ann. § 99-39-9, which sets out the
standards for filing a petition for post-conviction collateral relief. I disagree.
      In Amos, we explained that
      [p]rocedural default does not bar federal court review of a federal
      claim raised in a habeas petition unless the last state court
      rendering a judgment in the case has “clearly and expressly”
      indicated that its judgment is independent of federal law, e.g., rests
      on a state procedural bar.

Id. at 338 (emphasis added). Thus, one must carefully examine the Mississippi
Supreme Court’s opinion to determine if it “clearly and expressly” indicated that
it denied Bell’s claims based on independent state law grounds.




                                        12
                                   No. 08-70031

      In Bell II, the Mississippi Supreme Court addressed three broad issues
raised by Bell on appeal: (1) “timeliness”, (2) “ineffective assistance of counsel at
culpability phase”, and (3) “ineffective assistance of counsel during the penalty
phase.” See generally, Bell II, 879 So. 2d at 423. In addressing Bell’s second
claim, the Mississippi Supreme Court addressed and analyzed fourteen separate
sub-issues over a span of ten pages: (A) cumulative error, (B) counsel’s
qualifications, (C) secure adequate funds for investigation, (D) secure funds for
experts   needed,   (E)   investigate   critical   aspects   of   defense,   (F)   jury
questionnaires, (G) discrimination in jury pool, (H) voir dire, (I) meaningful and
consistent theme of defense, (J) impeachment of witness), (K) stipulation of
State’s expert evidence, (L) objection to evidence, (M) attendance of witnesses,
and (N) jury instructions. Id. at 430-40. The majority opinion’s holding rests on
the Mississippi Supreme Court’s treatment of sub-issue (M), which states:
      Bell claims that counsel was ineffective because he failed to secure
      the attendance of witnesses to corroborate his alibi. Save Bernard
      Gladney, Bell fails to name the witness counsel failed to call. In a
      motion under Miss. Code Ann. § 99-39-9, Bell is required to: “name
      the state of Mississippi as respondent and shall contain . . .
      affidavits of the witnesses who will testify and copies of documents
      or records that will be offered shall be attached to the motion.” See
      also Lewis v. State, 776 So. 2d 679, 682 (P16) [sic] (Miss. 2000) (the
      statute requires affidavits of those witnesses that will testify). This
      issue is without merit.

Id. at 440 (emphasis added).
      This brief discussion by the Mississippi Supreme court is the entire
analysis the majority opinion rests its holding on. But this passage does not
“clearly or expressly” hold that Bell’s claims are procedurally barred due to a


                                         13
                                 No. 08-70031

failure to adhere to Miss. Code. Ann. § 99-39-9. This point is especially notable
because in discussing sub-issue (N), the Mississippi Supreme Court explicitly
states “this issue is procedurally barred in accordance [with] Miss. Code Ann. §
99-39-21(2) & (3) (2000).” Id. (emphasis added). I conclude that the Mississippi
Supreme Court did not “clearly and expressly” indicate that Bell was
procedurally barred due to a violation of § 99-39-9. The Mississippi Supreme
Court made no such express holding, instead it said Bell’s claim was “without
merit.” That disposition is not the same as holding that Bell’s claims were
procedurally barred.     The words “without merit” are not synonymous with
“procedurally barred.”
      Furthermore, I disagree with the majority opinion’s conclusions regarding
the requirements found in § 99-39-9, which governs the requirements of motion
and service for post-conviction proceedings. Section 99-39-9 states that a motion
must contain several items, including the following.
      (e) A specific statement of the facts which are not within the
      prisoner’s personal knowledge. The motion shall state how or by
      whom said facts will be proven. Affidavits of the witnesses who will
      testify and copies of documents or records that will be offered shall
      be attached to the motion. The affidavits of other persons and the
      copies of documents and records may be excused upon a showing,
      which shall be specifically detailed in the motion, of good cause why
      they cannot be obtained. This showing shall state what the prisoner
      has done to attempt to obtain the affidavits, records and documents,
      the production of which he requests the court to excuse.

Miss. Code Ann. § 99-39-9(1)(e) (emphasis added).
      I do not dispute that Bell failed to exhaust his administrative remedies
with respect to the eight previously unnamed witnesses. The concern is whether

                                       14
                                        No. 08-70031

Bell properly presented evidence of what Gladney would have testified to during
the state court trial. If Bell had planned to call Gladney as a witness during a
post-conviction proceeding, then he would have been required to attach an
affidavit from Gladney to his petition for post-conviction collateral relief. He did
not do so. But Bell did attach and cite to an extradition hearing where Gladney
testified that Bell was in Memphis at the time of the crime at issue in this case.
This qualifies as a “record” under § 99-39-9(1)(e), and was properly before the
Mississippi Supreme Court. The majority opinion states that “Bell could not
have established prejudice . . . without bringing live testimony from these
witnesses.”     That is an assumption, albeit not an unreasonable one.                     That
assumption, however, does not negate the fact that the Mississippi Supreme
Court failed to “clearly and expressly” state that Bell’s claims on sub-issue (M)
were procedurally barred as is required under Amos.
       I now briefly turn to the merits of Bell’s ineffective assistance of counsel
claim.1 Federal habeas petitioners must demonstrate that the state court’s
adjudication was either: (1) contrary to, or involved an unreasonable application
of, clearly established federal law, as determined by the United States Supreme
Court, or (2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the state court
proceeding. 28 U.S.C. § 2254(d). Federal habeas relief is merited only when the
state court decision is both incorrect and objectively unreasonable regardless of
whether this court would reach the same conclusion. Woodford v. Visciotti, 537
U.S. 19, 27 (2002). Bell has failed to meet this burden.



       1
          I recognize that the majority opinion also rests its holding on the conclusion that Bell
waived his right to argue that Gladney’s affidavit serves as merely supplementary evidence
to that presented before the Mississippi Supreme Court. I believe the issue of waiver is a
much closer call than the majority opinion suggests. Because I would affirm the district
court’s judgment on the merits, I do not reach the waiver issue.

                                               15
                                  No. 08-70031

      After a careful review of the Mississippi Supreme Court’s opinion, I can
find no “objectively unreasonable” application of Supreme Court law related to
the ineffective assistance of counsel claim. It is important to remember that the
inquiry under AEDPA focuses solely on the state court’s application of Supreme
Court, not court of appeals, law. I mention this because under the law of this
circuit, Bell has a rather strong claim for ineffective assistance of counsel.
Before Congress passed AEDPA, this court held that failure to investigate
known alibi witnesses constitutes ineffective assistance of counsel. Bryant v.
Scott, 28 F.3d 1411, 1418 (5th Cir. 1994). Bell has not cited, and I have not
found, a Supreme Court case with a similar holding as that found by this court
in Bryant regarding a failure on the part of counsel to investigate known alibi
witnesses. Thus, Bell has failed to establish that the Mississippi Supreme
Court’s decision is an incorrect or objectively unreasonable application of
Supreme Court law. I would therefore affirm the district court’s judgment on
the merits of Bell’s ineffective assistance of counsel claim.




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