William Henry Bell v. JON E. OZMINT, Director, South No. 02-21  Carolina Department of Corrections

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 WILLIAM HENRY BELL,
Petitioner-Appellant,
v.
JON E. OZMINT, Director, South No. 02-21  Carolina Department of Corrections;
HENRY DARGAN MCMASTER,
Attorney General, State of South
Carolina,
Respondents-Appellees. 
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
David C. Norton, District Judge.
(CA-00-1777-3-18BC)
Argued: May 7, 2003
Decided: June 12, 2003
Before WILKINS, Chief Judge, and WILKINSON and
MOTZ, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Chief Judge Wilkins and Judge Wilkinson joined.
COUNSEL
ARGUED: Mark Evan Olive, LAW OFFICES OF MARK E.
OLIVE, P.A., Tallahassee, Florida, for Appellant. Donald John

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Zelenka, Assistant Deputy Attorney General, Columbia, South Caro-
lina, for Appellees. ON BRIEF: Diana L. Holt, DIANA HOLT,
L.L.C., Columbia, South Carolina, for Appellant.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
A South Carolina jury convicted William Henry Bell of the armed
robbery and murder of Dennis Hepler. On the jury’s recommendation,
the state trial court sentenced Bell to death. After exhausting his state
remedies, Bell filed a petition for federal habeas relief, challenging
his convictions and death sentence on numerous grounds. The district
court denied habeas relief, but granted a certificate of appealability on
all claims. Finding no error, we affirm the denial of federal habeas
relief.
I.
On direct appeal, the Supreme Court of South Carolina upheld
Bell’s conviction and sentence. See State v. Bell, 406 S.E.2d 165 (S.C.
1991). In doing so, that court described the facts of this case as fol-
lows:
The victim in this case, Dennis Hepler, was the principal of
West Franklin Street Elementary School in Anderson, South
Carolina. His body was found outside the school around
1:00 o’clock a.m. on September 1, 1988. He had been shot
twice with a .25 caliber pistol, once in the back and once in
the back of the head. Appellant’s fingerprints were found on
the victim’s red car which was parked on the street in front
of the school. Two witnesses from a nearby apartment com-
plex placed appellant in the area between 10:00 and 11:00
o’clock p.m. on August 31 with John Glen and Kevin
Young.
Appellant was arrested on the night of September 1. That
night, he gave police officers the first of four statements in
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which he denied ever having been at the West Franklin
Street School. On September 3, appellant asked a guard at
the detention center to contact the arresting officers. Appel-
lant then gave a second statement. He stated he was walking
near the school with John Glen and Kevin Young. Appellant
stopped to talk with a girl. When he rejoined his friends,
John Glen was inside a red car that was parked in front of
the school and was trying to remove a cassette player. At
Glen’s request, appellant held the car door open. A man
came out of the school and shouted at them. Kevin Young
stepped from behind a wall in front of the school and shot
the man in the back. While appellant and Glen ran from the
scene, they heard a second gunshot. When Young caught up
with them, the three obtained a ride with a fourth youth.
Young still had the gun. The next day, Young threw the gun
into some bushes in front of his house.
On September 4, appellant gave two more statements. First,
he told police officers that he, Young, and Glen were walk-
ing on the school grounds on the night of August 31. Appel-
lant and Glen attempted unsuccessfully to get the cassette
player out of the car. They heard the sound of a door open-
ing and joined Young behind a wall near the school build-
ing. Young said, "The man probably has a wallet." When a
man came out of the school, Young moved behind him and
told him to relinquish his wallet. The victim complied and
Young shot him in the back. The gun jammed. The victim
begged them not to shoot him again. Young shot again. The
three fled the scene and obtained a ride with a fourth youth.
They split $67.00 from the wallet, $20.00 for each of the
three and $7.00 for the driver of the car, and threw the wal-
let out of the car.
Finally, appellant gave a fourth statement essentially identi-
cal to the third except that it states he took the gun from
Young after it jammed, unjammed it, and shot the victim
himself. All four statements were admitted into evidence
after an extensive Jackson v. Denno hearing. Appellant did
not testify at either phase of the trial.
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Id. at 167-68 (footnote omitted).
After the Supreme Court of the United States denied Bell’s petition
for a writ of certiorari, Bell v. South Carolina, 502 U.S. 1038 (1992),
Bell filed an application for state post-conviction relief. The state
post-conviction (PCR) court permitted discovery and held an eviden-
tiary hearing but denied relief in a lengthy written order. The Supreme
Court of South Carolina denied review.
Bell then petitioned the district court for federal habeas relief, chal-
lenging his convictions and sentence on twenty-seven grounds. A
magistrate judge issued a report and recommendation, finding all
claims either procedurally barred or without merit. The district court,
after conducting a de novo review and correcting certain legal errors,
issued a comprehensive, eighty-seven-page opinion denying all fed-
eral habeas relief. Bell applied for a certificate of appealability on all
claims presented in his petition, which the district court granted. See
28 U.S.C.A. § 2253(c) (West 1994 & Supp. 2003).
On appeal, Bell raises numerous challenges to his convictions and
sentence. He argues that the state court erred in denying him an evi-
dentiary hearing on two different juror partiality claims. Bell also
maintains that the State unlawfully based its decision to seek the
death penalty on his race and the race of his victim. He similarly
asserts that the prosecutor peremptorily struck a potential African-
American juror because of her race. Additionally, Bell contends that
he was denied effective assistance of trial counsel because of his law-
yer’s failure to request a certain jury instruction. Finally, Bell asserts
that the district court applied an incorrect standard of review in evalu-
ating his claims. We consider each of these arguments, beginning
with the challenge to the standard of review.1
1Bell also asserts that "cumulative error" requires reversal. In this
cumulative error argument, the fifth in his brief, Bell advances a number
of claims, with varying degrees of completeness. We have carefully
reviewed the record and the parties’ arguments on these claims and agree
with the district court, for the reasons expressed in its well-reasoned
opinion, that none of these claims merit federal habeas relief.
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II.
We conduct de novo review of a "district court’s decision on a peti-
tion for writ of habeas corpus based on a state court record." Spicer
v. Roxbury Corr. Inst., 194 F.3d 547, 555 (4th Cir. 1999). Under 28
U.S.C.A. § 2254(d), as amended by the Antiterrorism and Effective
Death Penalty Act (AEDPA), a federal court may grant an application
for habeas relief on a claim that has been previously adjudicated on
the merits in state court only if that adjudication "(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 in the State court proceeding." The Supreme Court has
directed that "[u]nder § 2254(d)(1)’s ‘unreasonable application’
clause . . . a federal habeas court may not issue the writ simply
because that court concludes in its independent judgment that the rele-
vant state-court decision applied clearly established federal law erro-
neously or incorrectly. Rather, that application must also be
unreasonable." Williams v. Taylor, 529 U.S. 362, 411 (2000). Bell
contends that the district court erred in choosing to apply § 2254(d)’s
deferential standard of review, and that "this case must be remanded
to the district court for a de novo review of the facts and law with
respect to every claim for relief." Brief of Appellant at 38 (footnote
omitted). Bell bases his claim on the fact that the state PCR court,
after receiving post-hearing briefs, invited proposed findings of fact
and conclusions of law from both parties; it received none from Bell
and largely adopted the State’s proposed memorandum and order. In
response to Bell’s post-judgment challenge to this procedure, the state
PCR court noted that the "proposed Order was examined line by line
and considered with the entire record" but acknowledged that "a sub-
stantial portion of [the State’s] proposed Order was adopted by the
Court," explaining that this was "due to [the States’s] cogent reason-
ing and thorough treatment of the issues."
Although we do not applaud this practice, circuit precedent dictates
that it does not provide any basis for applying de novo review. Indeed,
we recently rejected precisely this claim by Kevin Young, one of
Bell’s co-perpetrators. See Young v. Catoe, 205 F.3d 750, 755 n.2 (4th
Cir. 2000). Young "maintain[ed] that the standard of review mandated
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by the AEDPA amendments should not govern his ineffective assis-
tance claim, inasmuch as the PCR Court’s Order of Dismissal adopted
almost verbatim the state’s legal memorandum" which "evidences the
lack of a considered ‘decision’ within the meaning of Paragraphs (1)
and (2) of § 2254(d)." Id. In rejecting Young’s claim, we held that the
"disposition of a petitioner’s constitutional claims in such a manner
is unquestionably an ‘adjudication’ by the state court. If that court
addresses the merits of the petitioner’s claim, then § 2254(d) must be
applied." Id. (citations omitted).
Recognizing Young’s force here, Bell attempts to distinguish the
case. He asserts that "Young primarily involved a challenge under
2254(d)(1), with Young claiming that the signing of a party’s pro-
posed order" was not an adjudication while in Bell’s case "2254(d)(2)
is implicated, not just (d)(1)" and § 2254(d)(2) "requires fact-finding
that is reliable and reasonable." Brief of Appellant at 43. The distinc-
tion fails. As the district court noted, in Young we stated that the peti-
tioner was proceeding under both prongs of § 2254 and did not
differentiate between those prongs in rejecting his argument. Young,
205 F.3d at 755 n.2. In sum, Young forecloses Bell’s de novo standard
of review argument. Thus, the district court correctly applied § 2254’s
deferential standard of review to Bell’s claims, as will we.
III.
Bell argues that his Sixth Amendment right to an impartial and
competent jury was violated because, during the evening, the seques-
tered jurors consumed alcohol and "part[ied]" with the South Carolina
Law Enforcement Division (SLED) officers, who guarded the jury
(but did not testify at trial), which "lessened [the jury’s] sense of
responsibility." Brief of Appellant at 9. Bell contends that he is enti-
tled to an evidentiary hearing on these claims.
After the trial, SLED conducted an investigation and issued a
report on these allegations. Bell moved for a new trial based on this
report. The Supreme Court of South Carolina denied the motion. The
state PCR court, however, permitted Bell to attempt to secure substan-
tiation of these allegations by taking limited depositions of jurors and
alternates. Bell deposed and produced affidavits from multiple jurors,
as well as SLED officers, a patron at the hotel bar, and a defense
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investigator. The discovery indicated that, while the sequestered
jurors and SLED officers may have consumed alcohol together at the
hotel during the evenings after trial days, SLED officers did not influ-
ence or attempt to influence the verdict in any way.
For example, alternate juror Bobbie Sue Smith, who made the
majority of the allegations, initially stated that some jurors drank
excessively during the evenings and that she suspected another alter-
nate juror (who did not deliberate) was having an affair with a SLED
officer. However, Ms. Smith later admitted (in one of many discrep-
ancies between her affidavit and deposition testimony) that she did
not know if the two "had sexual relations so the word affair then may
very well need to be taken off." Ms. Smith also later acknowledged
that none of the jurors "appear[ed] to be under the influence of alco-
holic beverages" when they left the hotel in the morning to go to
court. Another juror stated that jurors drank during meals and in the
evening but "[n]o one, however, was incapacitated or incompetent to
be a juror because of drinking." Still another juror, Donald Brock, tes-
tified that SLED agents did not purchase alcohol for jurors, although
they would bring in alcohol brought by family members to the hotel
parking lot for jurors to drink in the evenings. He stated that the
SLED officer identified by Ms. Smith acted "professional[ly]," and
that he did not suspect or have any information that the officer was
romantically involved with any juror.
The parties also deposed James Smith, a hotel bar patron, who had
telephoned Bell’s defense counsel after the trial and reported that he
had observed jurors drinking in the hotel. Smith was in the hotel bar
during two nights of the jury sequestration. He testified that he
observed a person he believed to be a juror purchasing and consuming
an excessive amount of alcohol at the bar. He also related that he had
glanced a couple of times for "maybe five seconds" into a room that
he thought contained jurors, who were drinking. In addition, Bell
proffered that the hotel bartender would testify to "things very similar
to Mr. Smith," that is that jurors came in and obtained "drinks on vari-
ous nights, several nights, three trays with 10 to 12 drinks per tray,
and would then take it back to the day room." Finally, a defense
investigator authored a hearsay affidavit relating asserted post-verdict
interviews with various jurors. None of those hearsay statements indi-
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cated that SLED agents attempted to talk to the jurors about the case
prior to or during jury deliberations.
After discovery, the State filed a motion in limine to exclude the
deposition testimony of all jurors. The state PCR court held a hearing,
at which it found that before it could "go behind a jury’s verdict[,]"
"there has to be strong and clear evidence that jurors were corrupted
in some fashion." Failing to find such evidence, the court concluded
that the "further testimony of any juror as subpoenaed would be held
inadmissible under Rule 606-B of the South Carolina Rules of Civil
Procedure [Evidence]." The court also excluded the testimony of bar
patron Smith and the hotel bartender because of the lack of any sug-
gestion in that testimony that alcohol affected jury deliberations.2
The state PCR court’s order, made pursuant to South Carolina Rule
of Evidence 606(b), which is identical to the federal rule, was not
contrary to clearly established federal law. Federal Rule of Evidence
606(b) prohibits juror testimony regarding "any matter or statement
occurring during the course of the jury’s deliberations or to the effect
of anything upon that or any other juror’s mind or emotions as influ-
encing the juror to assent to or dissent from the verdict . . . or con-
cerning the juror’s mental processes" but permits juror testimony "on
the question whether extraneous prejudicial information was improp-
erly brought to the jury’s attention or whether any outside influence
was improperly brought to bear upon any juror."
In Tanner v. United States, 483 U.S. 107, 116 (1987), the Supreme
Court construed Rule 606(b) in considering a defendant’s argument
that a trial court erred "in not ordering an additional hearing at which
jurors would testify concerning drug and alcohol use during the trial."
2In its final written order, the state PCR court further noted that the
issue had been previously ruled upon by it and the Supreme Court of
South Carolina in a decision arising out of a sealing order. See Ex Parte
Greenville News, 482 S.E.2d 556, 557 n.1 & 558 (S.C. 1997). Bell
argues that we should disregard the supreme court’s sealing order deci-
sion because he was not a party to that appeal. We need not reach that
contention; because the state PCR court’s final order (which incorporated
its prior ruling) was the last reasoned opinion on the claim, we review
that order. Cf. Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991).
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Unlike this case, in Tanner, the jurors allegedly used drugs and "con-
sumed alcohol during the lunch breaks at various times throughout the
trial, causing them to sleep through the afternoons." Id. at 113. The
Supreme Court held that, under Rule 606(b), "juror intoxication is not
an ‘outside influence’ about which jurors may testify to impeach their
verdict." Id. at 125.3 Under Tanner, the juror testimony offered by
Bell — that jurors consumed alcohol during the evening hours at the
hotel, possibly with the assistance of and in the company of non-
witness SLED officers — is clearly inadmissible. Indeed, Tanner held
that much more serious allegations of juror drinking during trial
lunch breaks and drug use during the trial did not render juror testi-
mony admissible.
Although Bell also proffered evidence of juror alcohol consump-
tion from nonjurors (the hotel bar patron and bartender) — evidence
permitted under Tanner, 483 U.S. at 127 — the state PCR court rea-
sonably found this evidence did not indicate any outside influence on
the jury verdict. Importantly, Bell has produced no evidence that
SLED officers attempted to influence the verdict in this case at any
time prior to or during deliberations. Thus, the state PCR court’s deci-
sion was not contrary to clearly established federal law.
IV.
Bell next argues that he was entitled to an evidentiary hearing on
his claim that the husband of the only African-American juror, Debo-
rah Williams, received a threatening phone call at home during the
trial, and that he told his wife (Ms. Williams) about the threat.
The state PCR court permitted Bell to take discovery on this claim
3The Court has granted relief only when a defendant has proffered evi-
dence of such "outside influence" on a jury verdict. See, e.g., Parker v.
Gladden, 385 U.S. 363, 364 (1966); Remmer v. United States, 350 U.S.
377, 381-82 (1956); see also Fullwood v. Lee, 290 F.3d 663, 676-77,
680-82 (4th Cir. 2002) (remanding for evidentiary hearing in habeas case
when petitioner offered evidence that a juror’s husband, who was
"strongly pro-death penalty," influenced his wife during the trial and
deliberations by "constantly telling" her that she should convict petitioner
and sentence him to death).
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as well. Bell again bases his claim on the allegations of alternate juror
Bobbie Sue Smith, who testified that Deborah Williams called home
to her husband who said there had been some phone calls to their
home. Ms. Smith did not "remember [Ms. Williams’] mentioning spe-
cifics about what they said, or what they were going to do to them or
anything of that nature. She indicated that they were threats." Ms.
Smith testified that Ms. Williams looked shaken, surprised, and
frightened. She further testified that three other jurors heard Ms. Wil-
liams discuss the phone calls to her home.
The parties also deposed the juror, Ms. Williams, who directly con-
tradicted Ms. Smith’s testimony. Ms. Williams testified that, although
she received a phone call from her husband, she did not tell the other
jurors about it; rather she only reported it to one of the SLED officers
guarding the jury. Moreover, she described the call as follows: "All
I told him [the SLED officer] was that somebody called asking was
I there, and that was it, you know. I guess he wrote it down. That was
all there was to it. It was nothing to it." Her husband "didn’t seem to
be concerned about it, because they didn’t say anything." Her hus-
band "didn’t get any threatening phone calls" and she "never received
any threats whatsoever." According to Ms. Williams, the caller also
did not mention the Bell case. Finally, Ms. Williams testified that
nothing happened during the trial that made her feel pressured or
coerced as a juror.
After reviewing the depositions, the state PCR court refused to per-
mit additional testimony because "there ha[d] been no suggestion"
that Ms. Williams "actually felt threatened or coerced to the point that
it affected her deliberations." In its final written order, the state PCR
court reiterated that this claim was without merit because it was "re-
futed by the deposition testimony of this juror."
We must "presume[ ]" that the state court correctly determines fac-
tual issues. See 28 U.S.C.A. § 2254(e)(1). Bell has the "burden of
rebutting the presumption of correctness by clear and convincing evi-
dence." Id. He has not carried that burden in this case given Ms. Wil-
liams’ sworn deposition testimony that her husband did not receive
"any threatening phone calls," that the caller merely asked if she was
home and did not mention the Bell case, and that she did not feel
coerced or pressured in any way during the trial. In the light of this
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record and the state court’s factual findings, the state PCR court did
not err in denying Bell an evidentiary hearing.
V.
Bell, an African-American, also argues that he is entitled to relief
under McCleskey v. Kemp, 481 U.S. 279 (1987), because the state
solicitor’s decision to seek the death penalty rested on racial animus.
Bell bases this claim on a study conducted for the defense by Profes-
sor Theodore Eisenberg, who examined the solicitor’s patterns of
seeking the death penalty where "the defendant [was] black and the
victim was white, versus cases where both the defendant and victim
were black." Brief of Appellant at 46.
A.
At the outset of the McCleskey Court’s Fourteenth Amendment
analysis, it noted that "to prevail under the Equal Protection Clause,
McCleskey must prove that the decisionmakers in his case acted with
discriminatory purpose." Id. at 292 (emphasis in original). The Court
acknowledged that it "ha[d] accepted statistics as proof of intent to
discriminate in certain limited contexts," such as venire-selection and
Title VII cases. Id. at 293. However, it distinguished capital sentenc-
ing decisions on a number of grounds, including the fact that "[e]ach
jury is unique in its composition," that any decision to impose the
death penalty "[r]ests on consideration of innumerable factors that
vary according to the characteristics of the individual defendant and
the facts of the particular capital offense," and that, whereas in venire-
selection and Title VII contexts, "the decisionmaker has an opportu-
nity to explain the statistical disparity," in the capital sentencing con-
text, the State has no "practical opportunity to rebut" such studies
given the prohibitions against questioning jurors on the motives and
influences that led to their verdict. Id. at 294-96 (citations omitted).
In capital sentencing cases, moreover, the "policy considerations
behind a prosecutor’s traditionally wide discretion suggest the impro-
priety of our requiring prosecutors to defend their decisions to seek
death penalties, often years after they were made." Id. at 296 (internal
quotation marks, footnotes, and citation omitted). Thus, "absent far
stronger proof," the Court held that "it is unnecessary to seek such a
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rebuttal, because a legitimate and unchallenged explanation for the
decision is apparent from the record: McCleskey committed an act for
which the United States Constitution and Georgia laws permit imposi-
tion of the death penalty." Id. at 296-97 (footnote omitted). In conclu-
sion, the Court held that "[b]ecause discretion is essential to the
criminal justice process, we would demand exceptionally clear proof
before we would infer that the discretion has been abused." Id. at 297.
In McCleskey, 481 U.S. at 292 n.9, the Court also cited with
approval our decision in Shaw v. Martin, 733 F.2d 304 (4th Cir.
1984). There, the habeas petitioner argued, based on a study, that
South Carolina prosecutors were more likely to seek the death penalty
if a defendant had killed a white victim than if he had killed an
African-American victim. Shaw, 733 F.2d at 311-12. We found the
study flawed because it: (1) included cases in which the prosecutor
had no discretion to seek the death penalty; (2) did not adequately
compare murders of similar atrocity; and (3) failed to take into
account many other factors entering prosecutorial discretion, such as
the willingness of the defendant to plead guilty or whether the prose-
cutor has sufficient evidence to prove a defendant guilty. Id. at 312-
13. We held that the proffered evidence "would not have been of suf-
ficient probative value on the issue of discriminatory intent to have
required response," and, thus, "no evidentiary hearing was . . .
required." Id. at 313 (citation omitted).
With these principles in mind, we turn to Bell’s contention.
B.
Bell argues, based on Professor Eisenberg’s study, that race was a
significant factor in the prosecution of homicide cases by George
Ducworth, the solicitor who chose to seek the death penalty against
Bell. Brief of Appellant at 44-45. Bell asserts that the study "exposed
significant disparity in the prosecutor’s decision to seek the death
penalty where the defendant is black and the victim was white, versus
cases where both the defendant and victim were black." Id. at 46.
Thus, "based on the compelling statistical evidence and the facts of
this case, the illegitimate factor of race infected the prosecutor’s deci-
sion to seek the death penalty against [Bell], in violation of the Four-
teenth Amendment." Id. at 49.
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The state PCR court carefully considered Professor Eisenberg’s
study, in which he analyzed data compiled by researchers associated
with Bell’s post-conviction counsel. In an evidentiary hearing before
the state PCR court, Professor Eisenberg explained that "there seems
to be a correlation between race of defendant and race of victim and
prosecutorial decisions to issue notices of intent to seek death in
Anderson County in particular when a black defendant is charged
with the murder of a white victim." Specifically, the researchers
found data on eleven cases in which Anderson County prosecutors
sought the death penalty from 1979-89. African-American defendants
were charged with killing white victims in six cases, and the Ander-
son County prosecutors issued a notice of intent to seek death in four
of the cases (66.7%). In the 84 other murder cases involving other
racial combinations, prosecutors issued a notice in seven cases (8%).
Applying McCleskey and Shaw, inter alia, the state PCR court
found the Eisenberg study flawed for a number of reasons, including:
(1) the study was unable to account for the existence or lack of statu-
tory aggravating circumstances, without which the prosecution may
not seek the death penalty, and also was unable to account for the
existence or lack of mitigating circumstances; (2) the study was
unable to compare murders of a similar aggravating nature and to
consider other factors pertinent to the decision to seek the death pen-
alty, such as the defendant’s role in the murder, his prior record, his
willingness to plead guilty and the sufficiency of the evidence; and
(3) the study included 1979 and 1980 cases, although Ducworth was
not elected until 1981.
The court further concluded that Ducworth, like the prosecutor in
McCleskey, had a legitimate reason for seeking the death penalty,
namely that Bell committed a crime that permitted the death penalty
under the United States Constitution and South Carolina law. Finally,
the PCR court held that, even if Bell had made a prima facie showing
of discriminatory intent, the "solicitor’s credible testimony at the
post-conviction relief hearing clearly rebut[ted] any claim of discrimi-
nation." At the hearing, Ducworth explained that he sought the death
penalty in Bell’s case based on, inter alia: (1) the strength of the
State’s case; (2) the existence of aggravating circumstances; (3) the
desires of the victim’s family; and (4) Bell’s role in the murder.
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The state PCR court’s application of McCleskey was not unreason-
able. In McCleskey, the Court "set forth very exacting standards for
entitlement to constitutional relief based on statistical evidence of
race-of-defendant and race-of-victim effects." Sexton v. French, 163
F.3d 874, 888 (4th Cir. 1998). The Eisenberg study, which suffers
from some of the shortcomings we identified in Shaw, does not con-
stitute "the exceptionally clear proof" demanded by McCleskey.4 481
U.S. at 297; see also Sexton, 163 F.3d at 888-89. Moreover, the state
PCR court reasonably considered the fact that Bell committed a crime
punishable by death, McCleskey, 481 U.S. at 296-97, and Ducworth’s
explanation of his reasons for seeking the death penalty in Bell’s case.
VI.
Bell next contends that the State peremptorily struck a prospective
African-American juror, Katherine Galloway, for racially discrimina-
tory reasons in violation of his equal protection rights and Batson v.
Kentucky, 476 U.S. 79 (1986). He argues that the prosecutor’s stated
grounds for striking Galloway, namely her views on the death pen-
alty, constituted pretext given similar responses of seated white
jurors.
A.
When a party raises a Batson challenge, "the trial court must con-
duct a three-part inquiry." Matthews v. Evatt, 105 F.3d 907, 917 (4th
Cir. 1997). First, the defendant "must make a prima facie showing
4We recognize that the Eisenberg study differed in design and method-
ology from those at issue in McCleskey and Shaw. While the studies in
Shaw and McCleskey focused on the imposition of the death penalty
state-wide, the Eisenberg study focused on decisions to seek the death
penalty by the Anderson County solicitor over a period of time that
included Ducworth’s prosecution of Bell. See McCleskey, 481 U.S. at
286; Shaw, 733 F.2d at 311. Despite such differences, however, the state
PCR court was not unreasonable in its application of McCleskey: there
is simply no basis in Eisenberg’s correlations for concluding that Duc-
worth discriminated against Bell in this case, given the shortcomings of
this type of statistical study, the discretion granted prosecutors in seeking
the death penalty, and the rebuttal evidence provided by Ducworth.
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that the prosecutor has exercised peremptory challenges on the basis
of race." Hernandez v. New York, 500 U.S. 352, 358 (1991) (plurality
opinion) (citing Batson, 476 U.S. at 96-98). Second, if a prima facie
case of discrimination is made, "the burden shifts to the prosecutor to
articulate a race-neutral explanation for striking the jurors in ques-
tion." Id. at 358-59. Third, the trial court "must determine whether the
defendant has carried his burden of proving purposeful discrimina-
tion." Id. at 359.
At Bell’s trial, the prosecutor had five peremptory strikes and used
four of them, three against African-American jurors (including one
alternate) and one against a white juror. The jury had one African-
American member. During voir dire, the court and the attorneys
engaged in the following colloquy with Ms. Galloway on the death
penalty:
Court: Are you in favor of the death penalty, opposed to
it or just where do you sit?
A: I — I believe in our legal system, and I feel when
everything is brought to the court and presented to the court,
I do believe in the jury selection, well, choosing a verdict.
I don’t really — can’t say yes or no.
Court: You’re going to have to come pretty close to it.
A: Do I have to?
Q: Well —
A: I believe it’s wrong for someone to take somebody
else’s life.
Q: Well, could you, however — could you, just answer,
not in this case, but if the facts were bad enough, could you
return a death penalty?
A: If all the evidence pointed to that person, I believe I
could.
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. . .
A: I think it would be kind of difficult [to sign a death ver-
dict], but I — if I — if that’s what we chose as a verdict[.]
Prosecutor: Could you sign your name to a death penalty?
A: If that was the decision that all of us made that’s
involved.
. . .
Prosecutor: Would the fact that the defendant might be
about the same age as some of your [eight] children might
make it more difficult for you to vote for the death penalty?
A: That’s hard to say. I don’t — I, of course, think that I
have a child that age. I sound ruthless when I say, but this
is something that needs to be decided upon, and if I have
been chose as a juror, I would do my best with everybody
else to be fair, and I would sign.
After the trial court qualified Ms. Galloway, the prosecutor used a
peremptory strike; Bell then raised a Batson objection. Without mak-
ing a prima facie finding, the trial court, at Bell’s request, allowed the
prosecutor to make a record of his explanation. The prosecutor stated:
The reason for the State excluding this particular juror is
that she appeared to be very weak on the death penalty. She
stated that she believes in our legal system, but she initially
said I can’t really say she believes in the death penalty. Then
after a good bit more questioning she finally said she could
return a death penalty, but she seemed to be very reluctant
in that — in saying that, and also the fact that she has sev-
eral children about the same age as this Defendant is another
reason the State feels that she would have a very difficult
time returning the death penalty.
In an apparent later ruling on the Batson motion, the trial court stated
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that the prosecutor gave a "satisfactory" reason for striking Ms. Gallo-
way.5
B.
Bell contends that the prosecutor did not strike three white jurors
(jurors Gast, Kaiser, and Richey) with assertedly similar views on the
death penalty, and, therefore, the prosecutor’s reasons for striking Ms.
Galloway were pretextual. The Supreme Court recently commented
on a similar contention, noting that while it did not need to resolve
the question, evidence of "a comparative juror analysis" indicating
"the prosecutors’ rationales to have been pretexts for discrimination
. . . does make debatable the District Court’s conclusion that no pur-
poseful discrimination occurred." Miller-El v. Cockrell, 123 S. Ct.
1029, 1043 (2003) (emphasis added). Thus, comparative juror analy-
sis clearly is a relevant consideration in the Batson analysis; neverthe-
less, "[b]oth the prosecutor and defense counsel must be allowed to
make credibility determinations when exercising peremptory chal-
lenges." Howard v. Moore, 131 F.3d 399, 408 (4th Cir. 1997) (en
banc).
As an initial matter, we believe that, of the three white jurors iden-
tified by Bell, only one, juror Gast, expressed views on the death pen-
alty sufficiently similar to those of Ms. Galloway to form the basis for
a Batson challenge.6 See id. (comparing similarity of anti-death pen-
5Because, in response to Bell’s Batson challenge, the prosecutor "of-
fered a racial-neutral explanation" — that is, Ms. Galloway’s views on
the death penalty and the similar age of her children to the defendant —
"the preliminary issue of whether [Bell] established a prima facie case
of discrimination is moot." Matthews, 105 F.3d at 918 (citing Hernandez,
500 U.S. at 359); cf. United States v. Barnette, 211 F.3d 803, 812 (4th
Cir. 2000) (concluding that juror’s views on death penalty constituted a
race-neutral explanation for use of peremptory strike).
6By way of contrast to Ms. Galloway and juror Gast, juror Kaiser
straightforwardly responded "yes" when asked by the court whether she
could, "if the evidence were bad enough in a case, . . . return a verdict
of death[.]" Similarly, juror Richey stated that he "favor[ed]" the death
penalty "in certain instances, especially if something’s premeditated" and
he was "not strictly against it[.]"
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alty sentiments); Matthews, 105 F.3d at 918. Juror Gast variously
stated that "[p]ersonally I feel if somebody admits to a crime that they
have murdered somebody, then I feel like the death penalty is in
order[,]" "[e]ven if we have all of this evidence and, you know, eleven
other people in that room says, you know, yes, the death penalty on
that, you know, I look at it I’m the last vote, hypothetical situation,
would I be able to say, you know, put my vote in and say yes. To me
it’s like playing God in some cases. I don’t know. I’ve never been in
that position. I don’t know what I would do[,]" and that she could
"possibly" "return a verdict of death along with the eleven other
jurors[.]"
On direct appeal, the Supreme Court of South Carolina, over a dis-
sent by Justice Finney, held that "[v]acillating responses to voir dire
questions regarding the death penalty will support the use of a
peremptory strike against a Batson challenge," and noted that the
court had "repeatedly declined to substitute its judgment for that of
the Solicitor regarding subjective responses to death penalty voir dire
questions in the face of claims comparable white jurors were seated."
Bell, 406 S.E.2d at 168 (citations omitted). Thus, the court apparently
viewed comparison of the death penalty answers of white and
African-American jurors as irrelevant to the purposeful discrimination
analysis required under Batson. The Supreme Court has made it clear
that such a view is erroneous. See, e.g., Miller-El, 123 S. Ct. at 1043.
We cannot conclude, however, that the state court’s application of
Batson was ultimately unreasonable.
The Supreme Court of South Carolina further explained its rejec-
tion of the Batson argument, reasoning that "[s]eated jurors with chil-
dren appellant’s age did not vacillate regarding the death penalty."
Bell, 406 S.E.2d at 168. This conclusion is not unreasonable. The
prosecutor stated that he struck Ms. Galloway both because of her
death penalty responses and his concern regarding the similarity in
ages between her children and Bell.7 Although juror Gast had similar
7Bell appears to suggest that, because Ms. Galloway was not sure if
any of her children were Bell’s age, the prosecutor’s reason for striking
her was untrue. Brief of Appellant at 49-50. During voir dire, Ms. Gallo-
way stated that she had eight children between the ages of 12 and 28;
Bell was 20 at the time of the trial. Given that the prosecutor likely knew
Bell’s age and that it might well be revealed at trial or in the sentencing
proceeding, we do not find the prosecutor’s explanation to be pretextual.
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death penalty responses, Bell does not contend that she had children
of similar age to Bell. Thus, Ms. Galloway and juror Gast were "not
similarly situated," Matthews, 105 F.3d at 918.8
VII.
Bell contends that his trial counsel was ineffective because counsel
did not request, as state law then permitted, that the court instruct the
jury that a sentence of life imprisonment would require Bell to serve
thirty years in prison before being eligible for parole.
On direct appeal to the Supreme Court of South Carolina, Bell
"claim[ed] that since the record contain[ed] no waiver of his ‘right’
to have parole eligibility charged under State v. Atkins, 293 S.C. 294,
360 S.E.2d 302 (1987), the trial judge erred in failing to give the
charge." Bell, 406 S.E.2d at 171. The Supreme Court rejected Bell’s
argument, explaining: "In Atkins, this Court held a capital defendant
. . . may request that the jury be charged regarding parole eligibility.
There is no requirement this charge be given absent a request and it
is the defendant’s burden to show a request was made." Id. (emphasis
in original).
The state PCR court treated Bell’s Atkins claim, in part, as one of
ineffective assistance of counsel.9 It found neither deficient perfor-
mance nor prejudice:
8Bell also raised his Batson claim on state post-conviction review. The
state PCR court held that the claim was barred because it was raised and
ruled upon on direct appeal. In the alternative, it also found the claim
without merit, considering Bell’s proffered statistical evidence of a study
by Dr. William Jacoby, in which he found that strike patterns in Solicitor
Ducworth’s office showed higher rates for prospective African-American
jurors than for white jurors. The state PCR court was not unreasonable
in holding that "[a]t most this testimony would have helped [Bell] pre-
sent a prima facie case under Batson," but that the prosecution could
rebut that evidence by establishing racially "neutral reasons for striking
the black jurors in Bell’s trial itself." The prosecutor did exactly that in
this case.
9The state PCR court also rejected any entitlement to a jury instruction,
under Simmons v. South Carolina, 512 U.S. 154 (1994), which provides
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[I]t is clear Applicant has not shown any prejudice resulting
from trial counsel’s failure to request a jury charge on
Applicant’s parole eligibility under then-existing law, i.e.,
Atkins. The mere fact that he had the right to request such
an instruction is not determinative. "To hold otherwise
would grant [Applicant] a windfall to which [he is] not enti-
tled." Lockhart v. Fretwell, 506 U.S. 364, 366, 113 S. Ct.
838, 841 (1992).
To prove ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668 (1984), Bell must first demonstrate that his
"counsel’s performance was deficient." Id. at 687. As the Court elabo-
rated, "[t]his requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed [a] defendant
by the Sixth Amendment." Id. Our review of counsel’s performance
is "highly deferential[;]" that is, "the defendant must overcome the
presumption that, under the circumstances, the challenged action
might be considered sound trial strategy." Id. at 689 (internal quota-
tion marks and citation omitted). Bell must also "show that the defi-
cient performance prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable." Id. at 687.
We do not believe the state PCR court was unreasonable in finding
neither deficient performance nor prejudice in trial counsel’s failure
to request a parole eligibility instruction under Atkins. First, trial
counsel could certainly have made a strategic decision not to request
an instruction telling the jury that Bell would be eligible for parole in
thirty years if the jury recommended life imprisonment. For, as the
Supreme Court has recognized, "[i]n a State in which parole is avail-
able, how the jury’s knowledge of parole availability will affect the
that "[w]here the State puts the defendant’s future dangerousness in
issue, and the only available alternative sentence to death is life impris-
onment without possibility of parole, due process entitles the defendant
to inform the capital sentencing jury — by either argument or instruction
— that he is parole ineligible." 512 U.S. at 177 (O’Connor, J., concurring
in the judgment). Bell disavows any reliance on Simmons before us.
Reply Brief at 22, 28.
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decision whether or not to impose the death penalty is speculative."
Simmons, 512 U.S. at 168 (plurality opinion). Trial counsel could cer-
tainly have been concerned that telling jurors that Bell could be out
on the street in thirty years would dissuade them from recommending
"life" imprisonment. Thus, the state PCR court reasonably found no
deficient performance.10
Second, the state PCR court’s application of Lockhart v. Fretwell,
506 U.S. 364 (1992), to the prejudice question was not unreasonable.
Fretwell was convicted of capital felony murder based on the aggra-
vating factor of murder committed for pecuniary gain, which dupli-
cated an element of the underlying felony. 506 U.S. at 366. Prior to
the trial, the United States Court of Appeals for the Eighth Circuit had
held such double counting impermissible. Id. at 367. Fretwell’s attor-
ney did not make such an objection at trial. Id. Before Fretwell’s fed-
eral habeas claim reached the Eighth Circuit (and the Supreme Court),
the case on which Fretwell relied had been overruled. Id. at 368.
In light of the intervening case, the Supreme Court held that a
"counsel’s failure to make an objection in a state criminal sentencing
proceeding — an objection that would have been supported by a deci-
sion which subsequently was overruled — [does not] constitute[ ]
‘prejudice’ within the meaning" of Strickland. Id. at 366. The Court
concluded that to "hold otherwise would grant criminal defendants a
windfall to which they are not entitled." Id.; see also id. at 374
(O’Connor, J., concurring).
Likewise, in this case, the Supreme Court of South Carolina had
overruled Atkins seven years before the state PCR court’s decision.
See State v. Torrence, 406 S.E.2d 315, 323 (S.C. 1991) (Chandler, J.,
10The state PCR court also held inadmissible, under South Carolina
Rule of Evidence 606(b), supra at 10, an affidavit from a defense investi-
gator in which she alleged that jurors told her in post-verdict interviews
that they believed Bell would be "back on the streets in a few years if
they sentenced him to life." The state court’s exclusion of this evidence
was not contrary to clearly established federal law. See supra at 11-12.
Moreover, despite Bell’s contention to the contrary, Ramdass v. Ange-
lone, 530 U.S. 156 (2000), did not hold that such "[e]vidence from jurors
is proper under these circumstances." Reply Brief at 26.
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concurring). Therefore, the state PCR court did not unreasonably
apply Fretwell in finding no prejudice from trial counsel’s failure to
request a jury instruction under Atkins, which it knew to be "wholly
meritless under current governing law." Fretwell, 506 U.S. at 374
(O’Connor, J., concurring).
VIII.
For the foregoing reasons, the judgment of the district court is in
all respects
AFFIRMED.
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