SCOTUSwiki Preview: Bell v. Kelly
Below, Karen Williams previews next term’s Bell v. Kelly (No. 07-1223). Karen is a summer associate at Akin Gump and a third-year at American University, Washington College of Law. Please note that the Bell SCOTUSwiki page, here, will continue to be updated throughout the upcoming term.
28 U.S.C. § 2254(d) provides that:
“[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (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.”
Pursuant to Section 2254(d), a federal court, therefore, does not determine if the state court's determination was wrong but whether it was unreasonable, which is a higher threshold. The question before the Court is whether the Fourth Circuit erroneously applied Section 2254(d)'s deferential standard to a claim based on new evidence "“ not considered by the state court "“ that the habeas petitioner was prejudiced by the ineffective assistance of his counsel.
This case stems from Edward N. Bell's conviction in 2001 for capital murder for the death of Richard Timbrook, a police officer. On October 29, 1999, Officer Timbrook and two probation officers came across two men in a high-crime area of Winchester, Virginia. After one man ran, Timbrook pursued him on foot. During the chase, the fleeing man turned and shot Timbrook in the head. When Bell was found the next morning, hiding in the basement of a house near the shooting, he had gunshot residue on his hands. The murder weapon was found near that house, and forensic tests could not exclude Bell as a possible user of the weapon.
After interviewing Bell, his sisters, and his mother, defense counsel concluded that there was little evidence to mitigate the case against Bell. Defense counsel, comprised of two attorneys, did not interview Bell's wife, past girlfriends, or children, nor did they inquire into Bell's education or mental capacity. They also did not investigate the prosecution's evidence of aggravation.
Virginia's capital punishment statute permitted a jury to return a death sentence only if at least one of two aggravating conditions "“ that the defendant posed a risk of future dangerousness or that the crime was "wantonly vile" "“ was present. Because the trial court ruled that Officer Timbrook's murder was not "wantonly vile," Bell could be sentenced to death only if the jury determined that he was likely to commit future acts of violence. Thus, during the penalty phase, the government introduced evidence of alleged prior bad acts, such as assaults and altercations involving Bell, to prove Bell's dangerousness. Because of their failure to adequately investigate and prepare, Bell's counsel was unprepared to cross-examine the government's witnesses effectively. Officer Timbrook's family provided victim impact statements; Bell provided none. Defense counsel called only Bell's sister and father but elicited harmful testimony from both witnesses. After finding that Bell continued to pose a serious danger, the jury sentenced Bell to death for the capital murder.
On direct appeal, Bell argued that Virginia's lethal injection procedures were unconstitutional, but the Supreme Court of Virginia affirmed, reasoning Bell could choose between lethal injection and electrocution. The Supreme Court of the United States denied Bell's petition for writ of certiorari.
Bell then filed a state habeas petition, arguing that he was denied effective assistance of counsel because his counsel failed to investigate and present mitigating evidence during the penalty phase. In 2004, the Supreme Court of Virginia denied Bell's habeas corpus petition on the ground that Bell was unable to satisfy either prong of Strickland v. Washington "“ viz., that (1) his counsel's performance fell below an objective standard of reasonableness; and (2) there was a reasonable probability of prejudice as a result of his counsel's inadequate performance. Furthermore, the state supreme court held that his counsel's failure to present the evidence on which Bell now sought to rely did not render his counsel ineffective because a jury could consider that evidence to be "cross-purpose" "“ that is, evidence that had characteristics of both aggravating and mitigating evidence.
Bell raised several challenges in a federal habeas petition, including ineffective assistance of counsel and the constitutionality of Virginia's lethal injection procedures. Dismissing all other claims, the district court ordered an evidentiary hearing on Bell's claim that his trial attorneys were constitutionally ineffective in their investigation and presentation of mitigating evidence at sentencing. After the two-day hearing, the district court found that Bell was not entitled to relief. Although the district court agreed with Bell that his defense counsel's performance at trial had been ineffective "“ and therefore the Supreme Court of Virginia's contrary finding was unreasonable "“ it deemed the state supreme court's finding of no prejudice, the second prong of Strickland, reasonable. After reviewing the testimony of the witnesses that Bell claimed should have testified at trial, the district court concluded that the evidence of aggravation outweighed the mitigation evidence presented at trial and on state and federal habeas and thus found no prejudice. Nonetheless, the district court granted a certificate of appealability limited to the ineffective counsel claim.
On appeal, the Fourth Circuit affirmed in an opinion that focused only on the prejudice prong of Strickland. Bell argued that because the state court did not consider mitigating evidence relevant to prejudice that was first introduced in the federal habeas petition, the prejudice issue should be reviewed de novo rather than under the deferential standard of 28 U.S.C. § 2254(d), which simply considers whether the lower court's determination was reasonable. The Fourth Circuit rejected this argument. Instead, it limited its review to whether the Virginia Supreme Court's determination was unreasonable "“ which, it concluded, it was not in light of the cross-purpose nature of the evidence. In particular, the court of appeals theorized, if witnesses had discussed Bell's domestic relationships with his ex-wife, girlfriends, and children, the jury would likely have compared Bell to Officer Timbrook, casting more of a negative light upon Bell.
Bell filed a petition for certiorari in the Supreme Court on March 25, 2008.
II. Petition for Certiorari
Bell presented three issues to the Court for certiorari: (1) whether the deferential 28 U.S.C. § 2254(d) standard should apply to a claim resting on evidence that the state court did not consider and was thus introduced for the first time on federal habeas; (2) whether the Fourth Circuit erred when it discounted mitigating evidence that could also have aggravating qualities; and (3) whether Virginia's lethal injection procedures violate the Cruel and Unusual Punishment Clause.
Bell begins by arguing that the deferential Section 2254(d) standard does not apply to his ineffective assistance claim, which was not "adjudicated on the merits in State court proceedings" because some of the mitigating evidence was not presented to the state-level courts. Bell argues that Strickland instructs the reviewing court to "consider the totality of the evidence" to determine whether the defendant was prejudiced by the ineffective assistance of his counsel. Citing decisions of the Ninth and Tenth Circuits, Bell argues that once a defendant has qualified for an evidentiary hearing and additional evidence is introduced, any prior state adjudication can no longer be deemed to have been "on the merits," and Section 2254(d) does not apply. By contrast, Bell notes, the Fifth, Sixth, and Seventh Circuits apply Section 2254(d)'s deferential standard even if new evidence has arisen on federal habeas. Finally, the Fourth Circuit, according to Bell, has employed a hybrid approach, applying the Ninth and Tenth Circuits' standard to Brady challenges "“ in which the court considers whether evidence withheld from the defendant was material either to the defendant's guilt or punishment – but applying the deferential standard of the Fifth, Sixth and Seventh Circuits to the prejudice prong of Strickland.
Second, Bell argues that the federal courts of appeals and the state supreme courts are divided on the weight to be given to evidence that has both mitigating and aggravating qualities. The Fourth and Fifth Circuits have, according to Bell, held that this cross-purpose evidence may be ignored or discounted; by contrast, he explains, the Third, Tenth, and Eleventh Circuits give weight to all mitigating evidence. Moreover, Bell asserts, had the court given the new mitigating evidence appropriate consideration, it would have concluded that the ineffective counsel prejudiced Bell's case.
Third and finally, Bell sought to have the Court hold his case pending a decision in Baze v. Rees, a Kentucky lethal injection case that was still pending before the Court when Bell's petition was filed. (The opinion in Baze was issued on April 16, eight days after the petition was filed.)
Opposing certiorari, the state advances three basic arguments. First, it asserts that the Court has no jurisdiction to review Bell's lethal injection claim, pointing out that the courts below denied a certificate of appealability for the lethal injection claim and that the Fourth Circuit did not address this claim in its decision. Second, the state argues that although the Federal Rules of Appellate Procedure required him to indicate what standard of review applied to his claims, Bell did not raise the question whether the Section 2254(d) standard should apply until he filed for rehearing. Furthermore, the government disagrees that the Fourth Circuit has adopted a split standard for Brady claims and Strickland claims and disputes that new evidence was presented at the federal evidentiary hearing. Third, the state denies that the Fourth Circuit has adopted the categorical rule which Bell attributes to it on the cross-purpose (or, as the state calls it, "double-edged") evidence question. Instead, the state argues, the Fourth Circuit merely concluded that the state supreme court's decision weighing the cross-purpose mitigation evidence against the aggravating evidence was reasonable.
In his reply brief, Bell sought to demonstrate that he had properly preserved the Section 2254(d) standard question in his appellate briefs, reiterated that the circuits were indeed divided on the question, and clarified that he was seeking to vacate the Fourth Circuit decision denying the certificate of appealability and remand for proceedings not inconsistent with Baze.
The Supreme Court granted the petition for certiorari on May 12, 2008 on only the first of the three questions presented. The Court also stayed Bell's execution pending its judgment in the case.