Full opinion text
OPINION AND ORDER JONES, Chief Judge. Edward N. Bell was convicted by a Virginia jury of the murder of Winchester police officer Ricky L. Timbrook and sentenced to death. After unsuccessfully challenging his conviction and the imposition of the death penalty both on direct appeal and in state habeas corpus proceedings, Bell now petitions for a writ of habe-as corpus from this court. Through his appointed attorneys, Bell raises a number of constitutional claims. Among other things, he contends that the state knowingly used perjured testimony against him and failed to disclose exculpatory evidence. He argues that one of his attorneys had a conflict of interest that adversely affected the defense. He also asserts that he is mentally retarded and thus cannot legally be executed. After a very careful review of the record, I find that all of Bell’s claims except one are without merit and should be dismissed. However, I will hold an evidentia-ry hearing on Bell’s claim that his lawyers failed to present available mitigating evidence at the sentencing phase of the trial, leaving the jury with no alternative but to fix the death penalty in lieu of life imprisonment without parole. I make no decision on the claim at this point, but I find that Bell is entitled to an opportunity to prove his assertion at a hearing. While largely circumstantial, the evidence at trial that Bell murdered police officer Timbrook was very strong, and I am convinced that none of the errors Bell complains of affected the fundamental fairness of his conviction. Nevertheless, at this point, I cannot say that the jury’s decision to sentence Bell to death was not unaffected by the alleged errors of his attorneys. The full reasons for my decisions in this case follow. TABLE OF CONTENTS I. Facts 670 II. Procedural History.........................................................673 A. State Proceedings......................................................673 B. Federal Proceedings ...................................................675 III. Analysis ..................................................................676 A. Claim I — Napue and Brady Violations....................................677 B. Claim II — Conflict of Interest...........................................690 C. Claim III — Mental Retardation..........................................691 D. Claim IV — Ineffective Assistance of Counsel...............................696 E. Claim V — Future Dangerousness ........................................712 F. Claim VI — Violation of Bell’s Right to Trial by Jury........................712 G. Claim VII — Violation of Bell’s Right to be Present at Trial..................721 H. Claim VIII — Deprivation of the Presumption of Innocence ..................724 I. Claim IX — Violation of the Vienna Convention on Consular Relations.........726 J. Claim X — Defects in Virginia’s DNA Testing Procedures....................732 K. Claim XI — Random and Arbitrary Administration of the Death Penalty in Virginia.............................................................734 L. Claim XII — Unconstitutional Execution Procedures in Virginia ..............735 IV. Conclusion ................................................................737 I. Facts. In affirming Bell’s conviction and sentence on direct appeal, the Supreme Court of Virginia summarized the facts in the light most favorable to the prosecution as follows: On the evening of October 29, 1999, Sergeant Timbrook and two probation and parole officers were working together in a program known as Community Oriented Probation and Parole Services. One aspect of Sergeant Timbrook’s responsibilities was to assist the probation officers in making home visits to individuals on probation or parole. On that particular evening, these three individuals were patrolling in an unmarked car in Winchester and were, among other things, searching for Gerrad Wiley, who was wanted for violating the terms of his probation. The officers went to Wiley’s residence on Woodstock Lane in Winchester several times that evening to no avail. Just before midnight, when they returned to Wiley’s residence for the sixth time, they saw an individual standing in a grassy area between a trash dumpster and an apartment building. As one of the probation officers and Sergeant Tim-brook exited the vehicle and approached that individual, who was later identified as Daniel Charles Spitler, another person, who had “dipped behind in the shadows,” began running away. Sergeant Timbrook pursued that individual while calling for assistance on his radio. Spitler identified the individual who ran from Sergeant Timbrook as Bell. Spitler testified that, on the evening in question, he was in the area of Woodstock Lane for the purpose of obtaining cocaine from Wiley. After no one answered his knock on the door of Wiley’s residence, Spitler started walking down a nearby alley where he encountered Bell. Spitler did not tell Bell that he wanted cocaine, but, according to Spit-ler, Bell “put his hands on [Spitler] like to pat [him] down to check and see if [Spitler] had a wire on [him].” During that encounter, Sergeant Timbrook and the two probation officers arrived in the unmarked vehicle. When the vehicle’s headlights illuminated Spitler and Bell, Spitler started walking toward the headlights, but Bell stepped into the shadows of a building. Spitler identified Sergeant Timbrook as one of the individuals who emerged from the vehicle. According to Spitler, Bell then started running away and Sergeant Timbrook chased after him, yelling “We have one running. Stop.” Spitler lost sight of Bell and Sergeant Timbrook when they ran behind a building, but Spitler testified that he heard a shot soon thereafter. Sergeant Timbrook chased Bell along several streets and down an alley between two houses located at 301 and 303 Piccadilly Street. These houses were separated by a fence approximately two or three feet in height. As Sergeant Timbrook started to climb over the fence, a shot rang out. A police officer, Robert L. Bower, who had responded to Sergeant Timbrook’s radio call for assistance, described the incident in this manner: [A]s [Sergeant Timbrook] started to cross over, I took my eyes off of him, and directed it toward the subject. I noticed it stopped. And, I saw a, what appeared to be a left shoulder as it stopped. All I could was ... it was like a black material .... As soon as I saw it stop, I looked back at [Sergeant] Timbrook to say something, at which time I heard the shot. And, I saw [Sergeant] Timbrook falling. Sergeant Timbrook’s body was found lying on the ground with his feet close to the fence and his upper torso leaning against a wall. His gun was still in its holster. Sergeant Timbrook was transported to a local hospital where he was pronounced dead. The cause of death was a single gunshot wound above his right eye, caused by a bullet which was fired from a distance of between six and eighteen inches. Brad Triplett, one of the probation officers who had been patrolling with Sergeant Timbrook that evening, ran in a parallel direction during part of Sergeant Timbrook’s pursuit of Bell. At one street intersection, he saw Sergeant Timbrook running after the “same dark[ly] dressed figure” who had originally fled from Sergeant Timbrook. Triplett described that person’s clothing as a “dark black type of jumpsuit, nylon material,” with “reflective like stripes on the jacket.” Several times during the pursuit, Triplett heard Sergeant Tim-brook yelling, “Stop running. Police.” He also heard the gunshot. The police searched the area for the suspect throughout the night by securing a perimeter around the neighborhood where the shooting had occurred and by using a helicopter equipped with a heat-sensitive “Forward Looking Infrared” camera and a spotlight. At one point during the search, Officer Brian King spotted an individual lying on the back steps of a house located at 305 Piccadilly Street. King stated that the person was wearing a dark colored jacket with reflective strips on the sleeves that “li[t] up like a Christmas [t]ree” when he shined his flashlight on the individual. The person then stood up and disappeared behind a bush. Emily Marlene Williams, who lived at 305 Piccadilly Street, testified that she heard the gunshot on the evening in question and about five minutes later heard a “crash” in the basement of her house. After she told the police about the noise in her basement, the police evacuated her and her family from their home. The following morning, the police discovered Bell, a Jamaican national, hiding in a coal bin in the basement of the Williams’ residence. He was wearing a “LUGZ” black nylon jacket and a black beret cap with a gold pin. The jacket had reflective stripes on the sleeves. Spitler identified both of these items of clothing as those that Bell had been wearing on the evening when Sergeant Timbrook was shot. Before Bell was transported from the Williams’ residence to the police department, a gunshot residue test' was administered to Bell’s hands and the recovered particles were subsequently identified as gunshot primer residué. During a search of the backyard of the Williams’ residence the day after Bell was apprehended, a deputy sheriff found a pearl-handled, Smith and Wesson .38 Special double action revolver. The gun was located under the edge of a porch on the Williams’ house and was covered with leaves and twigs. Forensic testing established that this handgun fired the bullet that killed Sergeant Timbrook. Forensic testing of DNA that was recovered by swabbing the grips, butt, trigger, and. trigger guard of this revolver could not eliminate Bell as a co-contributor of that DNA, which was consistent with a mixture- of DNA from at least three individuals. When questioned by the police after his arrest, Bell admitted that he had been on Woodstock Lane when “a white guy” allegedly began bothering him for information. Bell said that when a car drove up and a man got out of the car, .he “was scared” and ran. He said he did not know who was chasing him or why, and that when he heard a shot ■fired, he hid in the basement of the house where he was later discovered. Bell denied having a gun. However, while Bell was confined in jail awaiting trial, he told another inmate that he shot Sergeant Timbrook, threw the gun underneath a porch, and then broke into a house and changed clothes in the basement. Justin William Jones testified that, around nine o’clock on the evening of the shooting, he saw Bell in the vicinity of Piccadilly Street. According to Jones, Bell showed him a revolver' and asked if Jones knew of anyone who wanted to buy a weapon. Jones identified the pearl-handled, .38 caliber revolver introduced at trial as the same weapon that Bell had shown him. The evening Sergeant Timbrook was shot was not the first encounter between Timbrook and Bell. Sergeant Timbrook had arrested Bell for carrying a concealed weapon in May 1997. The following year, in September 1998, Sergeant Timbrook was present during the execution of an Immigration and Naturaliza- . tion Service order to detain Bell. Eight months later, Sergeant Timbrook assisted in executing a search warrant at Bell’s home. Bell was present during that search. In the summer of 1999, one of Bell’s friends heard Bell state, as Sergeant Timbrook drove by in a vehicle, “Somebody needs to bust a cap in his ass.” Another of Bell’s acquaintances testified that she heard Bell say that he would like to see Sergeant Tim-brook dead, and that if he ever came face to face with Sergeant Timbrook, he would shoot Sergeant Timbrook in the head because he knew that Sergeant Timbrook wore a bullet-proof vest. Bell v. Commonwealth, 264 Va. 172, 563 S.E.2d 695, 701-703 (2002) (“Bell I”). ■During the penalty phase of the trial, the state presented the following evidence on Bell’s criminal history, Bell’s propensity for violence, and the effect of Sergeant Timbrook’s death on Timbrook’s family: A police officer from Jamaica provided information about Bell’s commission of the crimes of assault and destruction of property in 1985. In 1997, an officer with the Winchester Police Department found a .38 caliber handgun concealed in the trunk of a car being driven by Bell. The serial number of the gun had been filed off. An officer with the West Virginia State Police stated that when he stopped Bell for speeding in 1999, Bell gave him a false name. When the officer started to arrest Bell and place him in handcuffs, Bell ran away into a cornfield. Another West Virginia law enforcement officer found five .38 caliber rounds of ammunition on Bell’s person during a “stop and frisk” in 1999. Finally, two employees of the jail where Bell was confined while awaiting trial testified that Bell had threatened them. Another witness, Billy Jo Swartz, testified about an incident in 1997 when Bell grabbed her head and slammed it into his car. He also held a gun to her head. During the same incident, Bell got into a fight with his pregnant girlfriend and knocked her to the ground. Swartz further stated that she had seen Bell with illegal drugs. Other witnesses likewise testified about buying illegal drugs from Bell. Members of Sergeant Timbrook’s family described their relationship with him and the effect that his death has had on the family. His wife was pregnant with their first child when Sergeant Timbrook was killed. The only evidence that Bell introduced during the penalty phase was from his sister and father. Id. at 703. II. Procedural History. A. State Proceedings. On January 11, 2000, a grand jury in the City of Winchester, Virginia, indicted Bell for capital murder, alleging that on October 29, 1999, Bell deliberately, willfully, and with premeditation killed a police officer for the purpose of interfering with the performance of the officer’s official duties, in violation of section 18.2-31(6) of the Code of Virginia. See Va.Code Ann. § 18.2-31(6) (Michie 2004). Counsel was appointed for Bell and he was tried by a jury in the Circuit Court of the City of Winchester. The jury found Bell guilty of capital murder on January 25, 2001, and, on January 26, 2001, fixed his punishment at death. The jury based the death sentence on its finding that there was a probability that Bell would commit criminal acts of violence in the future that would constitute a continuing serious threat to society. See Va.Code Ann. § 19.2-264.2 (Michie 2004). The trial court entered a final judgment on June 12, 2001, sentencing Bell to death in accordance with the jury’s verdict. Bell appealed to the Supreme Court of Virginia from his capital murder conviction and sentence of death. Bell presented twenty-eight assignments of error, but the court considered eleven of those assignments of error waived for failure to brief them on appeal. Bell I, 563 S.E.2d at 703. The court unanimously affirmed the conviction and sentence on June 7, 2002. Id. at 719. Bell filed a petition for rehearing on July 3, 2002, which the court denied on July 30, 2002. Thereafter, Bell sought a writ of certiorari from the United States Supreme Court, which was denied on January 13, 2003. Bell v. Virginia, 537 U.S. 1123, 123 S.Ct. 860, 154 L.Ed.2d 805 (2003). Post-conviction counsel was appointed, and Bell filed his initial petition for a writ of habeas corpus with the Supreme Court of Virginia on March 14, 2003. This initial petition was ninety-five pages long, and the court denied Bell’s accompanying motion to exceed the fifty-page limit established by its rules. Bell filed a corrected petition on April 21, 2003, conforming to the page limitation. This corrected petition asserted fourteen claims and requested expert assistance, discovery, and an evidentiary hearing. The state filed a motion to dismiss Bell’s petition on May 21, 2003. On January 9, 2004, Bell filed a supplement to his petition that alleged seven additional claims and presented eight new exhibits. In a lengthy opinion, the Supreme Court of Virginia denied Bell’s supplement and request for expert assistance and granted the state’s motion to dismiss Bell’s habeas petition. Bell v. True, No. 030539, slip op. at 30-31 (Va. April 29, 2004) (“Bell II ”). Bell filed a petition for rehearing on May 28, 2004, and filed a motion to amend his habeas petition on August 18, 2004. The Supreme Court of Virginia denied the motion to amend on September 2, 2004, and denied the petition for rehearing on November 17, 2004. The Winchester Circuit Court then scheduled Bell’s execution for January 7, 2005. B. Federal Proceedings. On December 22, 2004, Bell filed a motion in this court to stay his scheduled execution, a notice of intent to file a petition for a writ of habeas corpus pursuant to 28 U.S.C.A. § 2254 (West 1994 & Supp. 2004), and a motion to appoint counsel. This court stayed Bell’s execution pending consideration of his federal habeas petition and appointed counsel. In an amended habeas petition filed June 13, 2005, Bell sets forth the following twelve grounds for federal habeas relief: I. The prosecution knowingly elicited false testimony from witnesses in violation of Napue v. Illinois, and failed to disclose exculpatory evidence in violation of Brady v. Maryland; II. Bell’s attorney had an actual conflict of interest which adversely affected his performance, violating Bell’s right to be represented by counsel with undivided loyalties; III. Bell is mentally retarded, prohibiting his execution; IV. Bell’s trial counsel’s representation fell below the objective standard of reasonableness and prejudiced his defense; V. The jury’s assessment of future dangerousness violated Bell’s rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments; VI. Bell’s rights to trial by jury were systematically violated; VII. The trial court violated Bell’s right to be present at his own trial; VIII. Bell was shackled in view of the jury, depriving him of the presumption of innocence; IX. Bell was deprived of his right under the Vienna Convention on Consulate Relations to be notified of his right to communicate with the Jamaican Consulate; X. Defects in Virginia’s DNA testing procedures entitle Bell to habeas relief; XI. Virginia administers the death penalty in an unconstitutionally random and arbitrary manner; XII. Virginia’s execution procedures violate Bell’s Eighth and Fourteenth Amendment rights. (Pet. at 44-236). The state has filed an answer and motion to dismiss. The motion to dismiss has been extensively briefed by the parties and oral argument was held on September 21, 2005. Accordingly, the motion to dismiss is now ripe for decision. III. Analysis. In his federal habeas petition, Bell presents twelve claims for relief. In analyzing each of these claims, I must first consider whether the claim is procedurally defaulted. A claim is procedurally defaulted if: (1) the state court relied on an adequate and independent state procedural rule to deny relief on that claim, Fisher v. Angelone, 168 F.3d 835, 844 (4th Cir.1998); or (2) the petitioner failed to present a claim to the state court and that claim may not now be presented, Gray v. Netherland, 518 U.S. 152, 161-62, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996); Bassette v. Thompson, 915 F.2d 932, 936 (4th Cir.1990). If a claim is procedurally defaulted, then petitioner must fail on that claim unless he can show that cause and prejudice or a fundamental miscarriage of justice might excuse his default. Fisher v. Angelone, 163 F.3d at 844. If a claim was adjudicated in the state court on the merits, it is not procedurally defaulted and I must review the state court’s decision on the merits. When reviewing such claims, the AEDPA provides that a federal court may grant habe-as relief only if the state court’s adjudication resulted in a decision that was: (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) “based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C.A. § 2254(d)(1), (2). A state court adjudication is “contrary to” clearly established federal law only if “the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court decision involves an “unreasonable application” of clearly established federal law if the court identifies the correct governing legal principle, but “unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413, 120 S.Ct. 1495. “It is not enough that a federal habeas court, in its ‘independent review of the legal question’ is left with a ‘firm conviction’ that the state court was ‘erroneous’ .... [r]ather, that application must be objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (quoting Andrade v. Attorney Gen. of Cal., 270 F.3d 743, 753 (9th Cir.2001), overruled on other grounds, Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)). A state court’s factual determination is entitled to a “presumption of correctness.” 28 U.S.C.A. § 2254(e)(1). That presumption is rebutted only by “clear and convincing” evidence that the state court decision was “based on [an] unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” Id.; 28 U.S.C.A. § 2254(d)(2); Wiggins v. Smith, 539 U.S. 510, 528, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). The presumption applies equally to the factual findings of state courts that conducted postconviction proceedings. Howard v. Moore, 131 F.3d 399, 422 (4th Cir.1997) (citing Rushen v. Spain, 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983) (per curiam), and Johnson v. Maryland, 915 F.2d 892, 896 (4th Cir.1990)). Even if a writ of habeas corpus is authorized under § 2254(d), a petitioner still is not entitled to relief unless he can show that any constitutional error committed had a substantial and injurious effect or influence on the jury’s verdict. Wilson v. Ozmint, 352 F.3d 847, 855 (4th Cir.2003) (citing Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), and Fullwood v. Lee, 290 F.3d 663, 679 (4th Cir.2002) (applying Brecht after enactment of the AEDPA)). With these principles in mind, I will address each of petitioner’s claims in turn. A. Claim I — Napue and Brady Violations. In his first claim for federal habeas relief, the petitioner asserts that the prosecution knowingly elicited false testimony in violation of Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), and failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). While the Napue and Brady claims have many issues in common, I will consider each in turn for the sake of clarity. 1. Napue Violations. In Napue, the Supreme Court explained that “a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment” and that “[t]he same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” 360 U.S. at 269, 79 S.Ct. 1173. In the Fourth Circuit, a Napue claim requires a showing of both (1) the falsity and materiality of testimony and (2) the prosecutor’s knowledge of the falsity. Basden v. Lee, 290 F.3d 602, 614 (4th Cir.2002). In this context, false testimony “is material if ‘there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.’ ” Id. (quoting United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)). The petitioner alleges Napue violations in connection with the testimony of Timothy Berry, Terry Lee Johnson, Lieutenant Tim Rice, and Justin Jones. 2. Timothy Berry. Bell contends that Timothy Berry perjured himself at Bell’s trial when he testified that (1) Bell had said someone needed to “bust a cap in [Timbrook’s] ass” and (2) he was not offered any consideration for his testimony. Bell further claims that this false testimony was a result of coercion by the prosecution, and that this misconduct had a reasonable possibility of affecting the jury’s judgment given that Berry’s testimony supplied motive. This claim was adjudicated on the merits in state habeas review, and the Supreme Court of Virginia found that the allegations of perjury regarding Berry’s testimony were not supported by the record. Accordingly, the court denied Bell’s Napue claim relating to witness Berry. The factual determination of the state habeas court, finding that Berry had not committed perjury, must be afforded the presumption of correctness. The fact that the state court dismissed this Napue claim on the basis of affidavits, without holding an evidentiary hearing, does not disturb this presumption. See Carter v. Johnson, 131 F.3d 452, 460 n. 13 (5th Cir.1997) (holding that findings of fact based on affidavits alone are generally sufficient to warrant the presumption under § 2254(d)). On review of the record, I find that the state court’s factual findings on this claim and accompanying decision to deny Bell’s Berry Napue claim were reasonable and deny relief. The affidavit from Berry that Bell presented on state habeas review stated that Ricky Bush, a Winchester police officer, (1) threatened to send Berry to jail for an alleged crack sale if he did not testify and (2) coached Berry as to what he should say on the stand. Berry also alleged in the affidavit that he never actually heard Bell use Timbrook’s name or directly threaten Timbrook. Nonetheless, the record before the state court contained evidence sufficient to refute these claims. The record shows that Berry repeatedly and specifically described to authorities the threat that Bell made on Timbrook’s life. In sworn grand jury testimony, Berry testified that Bell, when referring to Timbrook, said he would “like to bust the cop in his ass.” (Berry Grand Jury Test, at 143, Resp’t’s State App., Ex. 1.) Similarly, in interviews with Sergeant Bush and FBI agent Stiefvater, Berry stated that he heard Bell comment that “he would like to put a cap in [Timbrook’s] ass.” (Berry FBI Interview at 2, Resp’t’s State App., Ex. 4.) Furthermore, an affidavit from Bush that was presented to the state court stated that Bush told Berry the police would not give him any consideration or benefit for his information and that neither Bush nor Stiefvater had any knowledge upon which to base a drug charge against Berry. Based on this evidence, I find that the state court’s finding that Bell’s perjury claim regarding Berry lacked merit was reasonable. Therefore, I deny this Napue claim. 3. Terry Lee Johnson. Similar to his contentions with regard to Berry, Bell claims that the prosecutor knew of and suborned material false testimony from witness Terry Lee Johnson. Johnson’s key testimony was that, while he and Bell were in jail together, Bell confessed to shooting Sergeant Timbrook. Bell claims that Johnson lied when he testified that Bell confessed to the murder and also when he testified that he did not receive any promises in exchange for his testimony. This Napue claim was adjudicated on the merits in state habeas review, thus I must again apply the deferential standard of review set forth in § 2254(d). The Supreme Court of Virginia denied Bell’s Johnson Napue claim on the merits for the same reasons that it rejected the Berry Napue claim. Specifically, the court found that “[t]he record, including the affidavits of police officers who interviewed Berry and Johnson, demonstrates that ... no consideration was promised in exchange for ... Johnson’s testimony” and that Johnson did not state in his affidavit that his sworn trial testimony was a lie. Bell II, slip op. at 2. Bell argues that the state court’s decision on this claim was contrary to or involved an unreasonable application of clearly established federal law and that it was based on an unreasonable determination of the facts in light of the record before the state court. Alternatively, Bell argues that, even if the Supreme Court of Virginia’s decision was reasonable, he has rebutted the finding of no perjury with a new affidavit from Terry Lee Johnson. Upon review of the record and applicable law, I find that the Supreme Court of Virginia’s decision regarding Johnson’s testimony was reasonable and that Bell has failed to overcome the presumption of correctness that attaches to that decision. Therefore, I deny relief on the Johnson Napue claim. Bell argues that habeas relief is available under § 2254(d)(1) because the Supreme Court of Virginia unreasonably applied federal law when it struck an affidavit from Jonathan Sheldon and refused to give Bell a hearing on his Terry Lee Johnson claim. The Supreme Court of Virginia was presented with an affidavit from Johnson and an affidavit from attorney-investigator Jonathan Sheldon in support of the Johnson Napue claim. The Sheldon affidavit recounted several things that Johnson allegedly told Sheldon, including that (1) Johnson’s conversations with the prosecutor were recorded; (2) Johnson told both the detectives and the prosecutor that he didn’t know anything about Bell’s case; (3) the prosecutor promised Johnson work release, a more favorable facility, and release from prison in “nine months, tops” in exchange for his testimony; and (4) Johnson would not sign an affidavit stating that his trial testimony was a lie because he did not want to be prosecuted for perjury. (Sheldon Aff., Pet’r’s State App., Ex. 28.) The court granted the State’s motion to strike this affidavit on hearsay grounds, however, and thus the court did not consider it when it made the determination that the Johnson Napue claim was without merit. Therefore, the only evidence the court considered in support of the Johnson Napue claim was the Johnson affidavit. In this affidavit Johnson stated that: (1) the detectives reviewed newspaper articles about Bell’s case with him, (2) conversations between him and the police regarding Bell were recorded, (3) the police let him walk freely in the courthouse, (4) the police gave him gifts of cigarettes and sandwiches, (5) the prosecutor threatened him with a three-year mandatory minimum sentence if he refused to take the oath swearing to the truth of his trial testimony, and (6) he was afraid to cooperate further with Bell’s investigators because of fear that the police and prosecutors would come after him. (Johnson Aff., Pet’r’s State App., Ex. 9.) Bell claims that the Supreme Court of Virginia’s method of examining the record constituted an unreasonable application of federal law based on the Fourth Circuit case of United States v. Mason, 52 F.3d 1286 (4th Cir.1995). Mason held that it was error for a court to ignore hearsay affidavits prepared by defense counsel when considering whether to conduct a competency hearing. Id. at 1292. Mason was a pre-AEDPA case, however, and the “decision ... was grounded in a statute which plainly requires judges to grant a competency hearing when a defendant has shown ‘reasonable cause.’ ” United States v. Cropp, 127 F.3d 354, 362 (4th Cir.1997) (quoting 18 U.S.C. § 4241(a)) (qualifying Mason). The Supreme Court of Virginia relied on its own state evidentiary rules in striking the Sheldon affidavit, and it can hardly be said that failure to consider such inadmissible hearsay when considering a Napue claim constitutes error, let alone an unreasonable application of federal law. Bell next contends that habeas relief is independently available for his Johnson Napue claim under § 2254(d)(2) because the Supreme Court of Virginia’s factual determination that Johnson’s testimony was not false was unreasonable in light of the record before the state court. To support this contention, Bell again argues that the state court should have considered the Sheldon affidavit. Bell contends that the Sheldon affidavit established that Johnson twice perjured himself. Bell further asserts that the Sheldon affidavit in conjunction with the Johnson affidavit provides overwhelming support for his Johnson Na-pue claim, making the Supreme Court of Virginia’s factual finding unreasonable. Bell admits that if the hearsay affidavit was excluded on an independent and adequate state ground, there would be a procedural bar to the evidence contained therein and this court could not consider it in assessing the reasonableness of the state court’s decision. See Burket v. Angelone, 208 F.3d 172, 186 (4th Cir.2000). Bell asserts, however, that the order striking the Sheldon affidavit as hearsay was not an independent and adequate state ground and in the alternative that he can establish cause and prejudice sufficient to override it. I disagree, and hold that the state court’s factual determination was reasonable in light of the evidence before it. Bell argues that the law surrounding admission of affidavits in original actions before the Supreme Court of Virginia is too confused to give rise to an adequate state ground barring federal review. In Burket v. Angelone, however, the Fourth Circuit clearly explained that federal courts “do not sit to review the admissibility of evidence under state law unless erroneous evidentiary rulings were so extreme as to result in a denial of a constitutionally fair proceeding.” 208 F.3d at 186. At issue in Burket was the Supreme Court of Virginia’s order striking two affidavits on state habeas. Id. at 185. The Fourth Circuit explained that striking of one of the affidavits was not erroneous because it was “obviously inadmissible hearsay” and further noted that “even if the Virginia Supreme Court’s evidentiary ruling was erroneous, the ruling was not so extreme as to result in the denial of a constitutionally fair proceeding.” Id. at 186. Thus the Fourth Circuit concluded that it could not consider the stricken hearsay affidavit in its review of the claims before it. Id. Similarly, I find that the Supreme Court of Virginia struck the Sheldon affidavit on adequate and independent state grounds. Therefore, I cannot consider it on review of Bell’s Johnson Napue claim absent a showing of cause and prejudice or fundamental miscarriage of justice. Bell argues that even if the exclusion of the affidavit was an independent and adequate state ground, he can overcome the procedural bar by showing cause and prejudice. “[Clause for a procedural default ... ordinarily requires a showing of some external impediment preventing counsel from constructing or raising the claim.” Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Bell argues that Johnson’s claim that he was afraid to cooperate with Bell’s habeas investigator constitutes cause. Bell further contends that prejudice is established because if the Sheldon affidavit had been considered, an eviden-tiary hearing on the Johnson Napue claim would have been warranted. I find that Johnson’s unexplained “fear” does not establish the cause necessary to overcome the procedural bar to consideration of the hearsay affidavit, and thus I need not address the prejudice prong. Without the Sheldon affidavit, thé only evidence before the Supreme Court of Virginia suggesting any false testimony by Johnson was the Johnson affidavit. This affidavit stated only that detectives had reviewed newspaper articles about Bell’s case with Johnson, that Johnson’s interviews with the police were tape-recorded, that he was given sandwiches and cigarettes during interviews, that the prosecutor threatened him with a three-year'mandatory sentence when he refused to be sworn after giving his trial testimony, and that he was afraid to cooperate with Bell’s habeas investigator. The record before the state cburt showed that Johnson never identified any promises allegedly made to him in exchange for his testimony. As the Supreme Court of Virginia pointed out in its opinion, affidavits of police officers who interviewed Johnson stated that no consideration was promised in exchange for Johnson’s testimony. The Supreme Court of Virginia further noted that Johnson did not state in his affidavit that his testimony at trial was false or that he received any consideration for his testimony. I find that the Supreme Court of Virginia’s finding that the claims of perjury with respect to Johnson were without merit is reasonable in light of the record before it. Finally, Bell contends that even if the Supreme Court of Virginia’s resolution of Bell’s Napue claim regarding Johnson was not unreasonable and the presumption of correctness attaches under § 2254(e)(1), the new Johnson affidavit serves to overcome that presumption by clear and convincing evidence. I find that Bell failed to develop the factual basis of this claim .in state court and thus the new Johnson affidavit cannot be considered on federal ha-beas review. In "the alternative, I find that even if the information in the new Johnson affidavit is considered, Bell’s claim is without merit. Under § 2254(e)(1) a habeas petitioner can rebut the presumption of correctness that attaches to a reasonable state court decision by clear and convincing evidence, and § 2254(e)(2) dictates when a petitioner may adduce new evidence to do so. . Under § 2254(e)(2), a petitioner cannot present new facts in federal court unless (1) he was diligent in developing his claim in state court or (2) he was not diligent but his claim relies on either a new rule of constitutional law made retroactive by the Supreme Court or new facts that could not have been previously discovered through the exercise of due. diligence and the facts would be sufficient to establish, by clear and convincing evidence, that but for the constitutional error, no reasonable .factfinder would have found the applicant guilty of the underlying offence. Williams v. Taylor, 529 U.S. 420, 435-36, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). If the petitioner can pass this hurdle, then this court can consider the new evidence. Bell argues that because he made requests for evidentiary hearings, funding for investigators, and discovery before and during state habeas proceedings, he was diligent and can thus present the new Johnson affidavit. He also contends that his multiple meetings with Johnson establishes diligence in developing the Johnson Napue claim. Bell attempts to draw parallels between the efforts deemed sufficiently diligent in Williams and the efforts he took during the state proceedings, and suggests that his efforts actually exceed those deemed diligent in Williams. Williams did state that “if the prisoner has made a reasonable effort to discover the claims to commence or continue state proceedings” through requests for investigators and expert services denied in the state proceedings, “ § 2254(e)(2) will not bar him from developing them in federal court.” Id. at 443, 120 S.Ct. 1479. However, Bell ignores the fact that in his state habeas case he did have at least one investigator who met with Johnson several times. He had full access to Johnson, and there is nothing in the new Johnson affidavit explaining why he was unable to make the new affidavit during the state court proceedings. Therefore, I find that Bell was not diligent in developing his Johnson claim under Williams. Bell does not claim that he can make the stronger showing required when diligence is not exercised, thus the new affidavit is barred by § 2254(e). Moreover, even if Bell were diligent in developing his Johnson claim in state court and I were to consider the new Johnson affidavit, it does not establish by “clear and convincing” evidence that the decision of the Supreme Court of Virginia was unreasonable. See 28 U.S.C.A. § 2254(d)(1), (e)(1). The new affidavit states that the prosecutor promised Johnson a- more favorable facility and a shorter sentence to get him to testify, gave him cigarettes and other gifts during the interview, gave him reports about Bell’s case to read, and promised him contact visits with his family. It also states that he initially told police he did not know what happened in Bell’s case. Nonetheless, Johnson still does not claim that he lied about Bell’s jailhouse confession. As to the alleged consideration for his testimony, there are affidavits from police officers stating that they never promised Johnson anything in exchange for his testimony. Furthermore, it is uncontested that Johnson was sentenced to prison before he had contact with the police regarding Bell’s case, which tends to show that there could have been no promises made that would have affected his sentence. Therefore, even if I consider the new Johnson affidavit, Bell has failed to provide clear and convincing evidence that the Virginia court’s finding of no perjury was unreasonable. As a fallback position, Bell argues that even if the new Johnson affidavit does not provide clear and convincing evidence on its face, it provides sufficient evidence to warrant an evidentiary hearing. A petitioner may receive an evidentiary hearing if he: (1) alleges additional facts which, if true, would entitle him to relief and (2) satisfies one of the six factors identified in Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). See Walker v. True, 401 F.3d 574, 584 (4th Cir.2005). Even if a petitioner can make such a showing, however, any failure to develop the factual basis of a claim in state court bars an evidentiary hearing. Id. (citing 28 U.S.C.A. § 2254(e)(2) and Fullwood v. Lee, 290 F.3d 663, 681 (4th Cir.2002)). Because I have found that Bell failed to develop the factual basis of his Johnson Napue claim, an evidentiary hearing on the issue is precluded. 4. Timothy Rice. Bell makes a Napue claim regarding the search for the murder weapon, alleging that the prosecution knowingly solicited false and misleading testimony from police Lieutenant Timothy Rice about the initial search. At trial, Rice testified that the metal detectors used during the initial search on October 30, 1999, could not be used within five feet of the house because of complications caused by metal inside the home. When asked about the number of officers involved in the initial search, he claimed that he could not remember the exact number and noted that there were more than five officers at various times. Bell argues that this testimony was false and was purposely used by the prosecution to minimize the search conducted on October 30, thereby undermining the defense theory that someone else shot Timbrook and that the real shooter planted the gun when the crime scene was left unsecured after the initial search. It is Bell’s contention that the search on October 30 was actually quite thorough, and thus the gun would have been discovered if it were there at the time. Bell argues that the allegedly false testimony from Officer Rice makes the October 30 search seem less extensive than it actually was and therefore unfairly strengthens Bell’s connection to the gun. To support the argument that Rice’s testimony was perjured, Bell relies on a police report written by Officer Greggs describing the October 30 search. This report states that on that day, “[utilizing all the manpower at the scene[,] all three properties were searched from front to back, looking for a weapon, with negative results.” (Pet’r’s Supp. State App., Ex. 1, at 2.) The report further states that approximately thirty police officers participated in the search. To argue that the testimony about the metal detector was false, Bell relies on an affidavit from Larry Peters, in which Peters states that there was no metal or interference at the spot the gun was found. At the end of this claim, Bell adds a claim of ineffective assistance of counsel for trial counsel’s failure to effectively cross-examine Rice or call rebuttal witnesses. Because I find that the Napue claim regarding the search and the accompanying ineffective assistance claims were procedurally defaulted during the state court proceedings, I deny relief. Bell did not present this claim to the Supreme Court of Virginia until January 9, 2004 — ten months after he initially filed his state habeas petition' — when he filed a “supplement” to his original petition, followed by a motion to supplement. The state made a motion to strike the supplement on the ground that it was untimely under section 8.01-654.1 of the Virginia Code. In its April 29, 2004, order, the Supreme Court of Virginia denied Bell’s motion to supplement by saying “[t]he Court denies petitioner’s ... ‘supplement to claims I and XIV. in petition for writ of habeas corpus.’ ” Bell II, slip op. at 30. Bell argues that this dismissal was not in reliance on a procedural bar. He argues that if such were the case, the court would have said so. Bell further contends that if the denial had been truly based on a procedural bar, the court would have granted the state’s motion to strike rather addressing the supplement directly. It is true that “if ‘it fairly appears that the state court rested its decision primarily on federal law,’ [a federal court] may reach the federal question on review unless the state court’s opinion contains a ‘plain statement’ that [its] decision rests upon adequate and independent state grounds.” Harris v. Reed, 489 U.S. 255, 261, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (quoting Michigan v. Long, 463 U.S. 1032, 1042, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983)). However, this plain statement requirement “applies only when it fairly appears that a state court judgment rested primarily on federal law or was interwoven with federal law, that is, in those cases where a federal court has good reason to question whether there is an independent and adequate state ground for the decision. In the rest of the cases, there is little need for a conclusive presumption [that the state court relied on federal law].” Coleman v. Thompson, 501 U.S. 722, 739, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). There is nothing in the Supreme Court of Virginia’s order denying Bell’s motion to supplement that makes it “fairly appear” that the court was relying on federal law. Furthermore, the “surrounding circumstances (in particular the fact that the State had rested its argument entirely upon a procedural bar), indicated that the basis was procedural default.” Ylst v. Nunnemaker, 501 U.S. 797, 802, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). Therefore, I find that Bell’s Napue claim regarding the search for the weapon and the accompanying ineffective assistance claim is procedurally defaulted. When a state court has declined to consider the merits of a constitutional claim on the basis of an adequate and independent state procedural rule, a federal habeas court may not review the claim absent cause and prejudice. See Harris, 489 U.S. at 262, 109 S.Ct. 1038. To demonstrate cause, the petitioner must “show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Bell did not attempt to argue cause in the event this claim was deemed defaulted, and the record shows that cause is notably absent. Bell had access to Officer Gregg’s police report throughout his trial, and thus it cannot be said that a factor “external to the defense” was responsible for state ha-beas counsel’s failure to raise the murder weapon search issue in a timely manner. See Swisher v. True, 325 F.3d 225, 231 (4th Cir.2003). Bell cannot rely on the alleged ineffectiveness of his trial counsel because “[t]he requisite ineffective assistance ... ‘is itself an independent constitutional claim’ subject to the requirement of exhaustion in state court and to the doctrine of procedural default.” Id. (quoting Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000)). Furthermore, even if Bell had cause for this procedural default, he suffered no prejudice. Nothing in Officer Rice’s testimony directly conflicts with Officer Gregg’s report, and thus Bell’s claim that this testimony was perjured is weak at best. Additionally, in view of the strong circumstantial case against Bell and the minimal role of Rice’s testimony, I cannot find that there is a reasonable likelihood that the jury would have acquitted Bell had it known that Rice’s testimony was misleading or arguably false.. I therefore find that Bell has failed to demonstrate prejudice to overcome the default of this claim. 5. Justin Jones. Bell raises a Napue claim that the prosecutor elicited false testimony from trial witness Justin Jones, and supports this claim with a new affidavit first filed in this court. At trial, Justin Jones testified that Bell attempted to sell him the gun later determined to be the murder weapon. In the affidavit filed with Bell’s federal habe-as petition, Justin Jones states that he “initially told the police, at least three times, that [he] knew nothing about the incident or the gun and [he] denied involvement in any way.” (J. Jones Aff., ¶ 3, Pet’r’s Supp. App., at 1.) This claim was not presented to the state court until Bell filed the supplement to his original petition on January 9, 2004, which the Supreme Court of Virginia refused. As set forth above, I find that this ruling was based on adequate and independent state grounds and serves as a procedural bar to federal habeas review absent a showing of cause and prejudice. Attempting to excuse the untimeliness of his Jones Napue claim, Bell focuses on § 2254(e)(2) and argues that he did not fail to develop the factual basis of this claim in state court. He contends that he diligently sought resources for investigation, appointment of an additional attorney, more time for investigation, and an evidentiary hearing in state court and is thus permitted to introduce new evidence under Williams. Because I find that Bell raised his Jones Napue claim in state court and the Supreme Court of Virginia dismissed it on procedural grounds, the question of whether Bell can raise it on federal review is better analyzed under the cause-and-prejudice exception to procedural default rather than under § 2254(e)(2). See Swisher v. True, 325 F.3d 225, 230-31 (4th Cir.2003) (applying cause-and-prejudice analysis to determine if petitioner could assert a claim in his federal habeas petition that the state court found defaulted). Nonetheless, this makes little practical difference given that the Williams diligence standard is modeled after the cause-and-prejudice standard applied to procedurally defaulted claims. See Williams v. Taylor, 529 U.S. 420, 433, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). I find that Bell’s efforts fall short of both the Williams diligence standard and the cause-and-prejudice standard for procedurally defaulted claims and thus deny his Jones Napue claim. While Bell did seek discovery and resources for more investigation during state habeas proceedings, he never suggested in his original state habeas petition that his Napue claim might involved the testimony of Justin Jones. Furthermore, Bell has never been denied access to Justin Jones, yet he never attempted to have his investigators develop this claim in a timely fashion. Thus, Bell cannot show the cause necessary to excuse his default. In addition, even if I did not find that the Jones Napue claim was foreclosed from federal review, it appears from the record that it is without merit. Nothing in the Jones affidavit asserts that Jones committed perjury at trial, or that the prosecution knowingly presented perjury from him. 6. Brady Violations. In Brady v. Maryland, the Court held “that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The three necessary elements of a Brady claim are: “(1) the evidence must be favorable to the accused; (2) it must have been suppressed by the government, either willfully or inadvertently; and (3) the suppression must have been material.” Monroe v. Angelone, 323 F.3d 286, 299-300 (4th Cir.2003) (citing Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)). In this context, “favorable evidence is material, and constitutional error results from its suppression by the government, ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ” Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (opinion of Blackmun, J.)). The disclosure requirement covers both impeachment material and other exculpatory evidence. Id. Bell claims Brady violations in connection with several of the state’s witnesses. 7. Timothy Berry and Terry Lee Johnson. Bell claims that the alleged promises made to or threats made against Johnson and Berry and the fact that Johnson initially told the police he knew nothing about Bell’s case constituted Brady material that should have been disclosed by the state. Because I find that the state court’s decision on this claim was reasonable, I deny relief. In its order dismissing Bell’s state habe-as petition, the Supreme Court of Virginia held that the Brady claims with respect to Berry and Johnson were without merit. Bell II, slip op. at 2-3. Specifically, the court found that the record did not support Bell’s claims that either Berry or Johnson received consideration for their testimony or were untruthful on the stand. Id. Based on the record before the state court as outlined above, I find this decision was reasonable. Additionally, I decline to consider the new Johnson affidavit in analyzing Bell’s Johnson Brady claim because, as explained above, Bell failed to develop this evidence in the state court. 8. Patrick Simpson. In July of 2004, Bell’s counsel became aware of a witness named Patrick Simpson who stated in an affidavit that he had been present on Piccadilly Street on the night of the shooting, had seen a white man with a gun whom he believed to be the shooter, and had seen several civilians entering and leaving the crime scene. Simpson noted that he had recounted all of these observations to the police the following morning. Bell argues that the prosecution failed to disclose these statements made to the police in violation of Brady. Because I find this claim was procedurally defaulted in the state court proceeding and Bell cannot demonstrate cause and prejudice to overcome that default, I must deny relief. Bell did not present this argument to the state court until he filed a motion for leave to amend the original state habe-as petition on August 18, 2004, four months after the Supreme Court of Virginia had dismissed his habeas petition. The State opposed the motion on the procedural ground that Virginia state law forbids the filing of new claims after the statutory limitations period has run. See Morrisette v. Warden, 270 Va. 188, 613 S.E.2d 551, 555 n. 3 (2005). The Supreme Court of Virginia denied Bell’s untimely motion in an order dated September 2, 2004. The order stated only that “the Court denies the motion,” but, as discussed above, this brevity does not foreclose a finding that the ruling was based on an independent and adequate state ground. Based on the analysis set forth above, I find that the denial was indeed based on an independent and adequate state ground and thus constitutes a procedural default. Bell again argues diligence under Williams to circumvent the default, and for the reasons stated above, I find that this claim is properly analyzed under the eause-and-prejudice rule applicable to procedural default. Bell contends that he was diligent throughout his trial, appeal, and collateral proceedings and that the only reason he failed to assert this claim in a timely fashion was that his multiple requests for assistance and information were denied. However, Bell did have assistance from investigators and the evidence shows that a police report containing Simpson’s account of what he witnessed on the night of the murder was provided to Bell’s trial counsel before trial. Thus, it cannot be said that “some objective factor external to the defense impeded counsel’s efforts” to assert this claim in Bell’s initial state habe-as petition. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Thus, I find that Bell cannot establish cause to excuse his default and deny relief on this claim. 9. Jason Plummer and Marlene Combs. Jason Plummer and Marlene Combs both testified at Bell’s trial about a conversation between the three of them in a car. In essence, the testimony of both of these witnesses was that Bell had threatened to shoot Sergeant Timbrook. After trial, Plummer declared in an affidavit that the police had threatened to charge him as an accessory to Timbrook’s murder if he did not testify and that the police had put him and Combs together in a room to get their stories straight. It is Bell’s contention that these facts provided valuable impeachment evidence and the prosecution’s failure to disclose such facts constituted a Brady violation. This claim was not presented to the state court until Bell filed the supplement to his original petition on January 9, 2004, which the Supreme Court of Virginia dismissed without opinion. As set forth above, I find that this ruling was based on adequate and independent state grounds and serves as a procedural bar to federal habeas review absent a showing of cause and prejudice. Bell claims that the same trial and state habeas efforts he relied upon to show diligence and cause with respect to his Brady claim regarding Simpson, namely the denied requests for discovery and investigatory assistance throughout his state habeas proceedings, establish diligence and cause excusing the default of his Brady claims regarding Plummer and Combs. I find that Bell lacks sufficient cause, however, given that Bell had investigatory help and was never denied access to Plummer. I see no reason “external to the defense” why Bell’s state habeas counsel could not have obtained the affidavit from Plummer in time to present this claim to the state court in a timely fashion. See Murray, 477 U.S. at 488, 106 S.Ct. 2639. I therefore deny relief on this claim. 10. Terry, Starks-Cadet, Swartz, and Others. Bell also contends that the prosecution withheld Brady material with respect to Aretta Terry, Rosa Starks-Cadet, Billie Joe Swartz, and other trial witnesses. Terry testified at Bell’s trial that she had disposed of bullets from Bell’s car after the murder. Bell has now presented an affidavit from Terry in which she claims that the police approached her and threatened to charge her as an accessory or conspirator to the murder of Timbrook if she did not testify. She also states that her meeting with the police was recorded and that during the interrogation she told police that she had seen Bell on the night of the murder at 11 p.m. on the outskirts of Winchester returning from the Charles-town Racetrack. Bell contends that this constituted significant exculpatory evidence because the fact that Terry saw Bell returning from the racetrack at that time tends to undermine Jones’ testimony that Bell attempted to sell him the murder weapon earlier that evening around 9 p.m. Bell claims that the police withheld exculpatory evidence regarding Rosa Starks-Cadet becaus