* Pursuant to 5 TH C IR

. R. 47.5, the Court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5 TH C IR

. R.

47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 01-40340

Civil Docket #5:99-CV-00209

_______________________

WALTER BELL, JR.,

Petitioner-Appellant,

versus

JANIE COCKRELL, Director,

Texas Department of Criminal Justice - Institutional Division,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

_________________________________________________________________ December 13, 2001

Before JONES, BARKSDALE, and BENAVIDES, Circuit Judges.

By EDITH H. JONES: *

Petitioner Walter Bell was denied habeas corpus relief by

the federal district court on his conviction for the capital murder

of Ferd Chisum, his former employer, in Port Arthur, Texas, in

1974. Bell presents two contentions in this court. First, he

argues that evidence o f mild mental retardation presented at his1 The Antiterrorism and Effective Death Penalty Act of

1996.

2 Both the district court and the magistrate judge analyzed

Bell’s claims de novo , without reference to the substantive

limitations imposed by AEDPA. While we need not question our

brethren’s analysis, it is important to recognize that AEDPA’s

standards reflect the deference that Congress has ruled we must pay

to state court convictions.

2 trial disqualifies him from the death penalty by virtue of an

alleged evolving national consensus against executing the mentally

retarded. The district court granted a certificate of

appealability (COA) on this contention. Bell applies for a COA,

however, after being turned d own on his second contention, that

newly discovered evidence demonstrates his confession was coerced

by police brutality. Finding no merit in either contention under

the standards of review adopted by AEDPA 1

, we affirm the judgment

on the first contention and deny COA on the second. 2

1. Whether the Constitution prohibits execution of the

mentally retarded.

Under AEDPA, we review the state court decision denying

relief on this claim to determine (1) whether it was contrary to or

involved an unreasonable application of clearly established Federal

law as expressed by the Supreme Court, 28 U.S.C. § 2254(d)(1), or

(2) whether the facts found by the state courts were unreasonable

in light of the record. 28 U.S.C. § 2254(d)(2). Relief is not

barred on this claim by the Teague non-retroactivity doctrine. S ee3

Penry v. Lynaugh

, 492 U.S. 302, 331, 109 S.Ct. 2934, 2953 (1989).

Bell’s initial conviction was reversed, and he received

a second trial for capital murder of Ferd Chisum so that the state

courts could apply the then-new Supreme Court decision in Penry v.

Lynaugh

. Penry held that a jury must be permitted to find that a

defendant’s mental retardation mitigates against infliction of the

death pen alty because his condition limits his culpability. 492

U.S. at 320-28, 109 S.Ct. at 2947-52. Penry refused to hold that

the Eighth Amendment requires a categorical exclusion of mentally

retarded defendants from receiving the death penalty. 492 U.S. at

331-35, 109 S.Ct. at 2953-55. The Texas Court of Criminal Appeals

so applied P enry to Bell’s second appeal. B ell v. State

, 9 3 8

S.W.2d 35, 55 (1996).

Penry has not been subsequently overturned by the U.S.

Supreme Court. Until it is, the standard for granting habeas

relief under AEDPA, which requires state court decisions to conform

to Federal law articulated by the Supreme Court, will not be

satisfied. Bell’s argument, formulated on a still evolving

national consensus made up of over a dozen states that have

legislatively decided to place limits on executions of the mentally

retarded, is thus irrelevant in the lower federal courts.

In addition, Bell’s case exemplifies the wisdom behind

Penry ’s decision to allow juries to examine the impact of mental4

retardation on culpability on a case-by-case basis. While Bell has

scored at a level of mild mental retardation throughout his life,

an expert also testified that he was competent to stand trial and

knew the difference between right and wrong. He carefully planned

the murders of Ferd and Eileen Chisum, assembling papers, a knife,

handcuffs, and extension cords from which he had removed the ends,

and he tricked the Chisums into letting him into their house on the

pretext that he wanted their advice about attending school. He

forced Eileen Chisum to write a false name on several checks before

he killed her, and he then tr ied to cash one of those checks the

day after the murder. The murders were executed ruthlessly and

brutally. There was, in short, plenty of evidence to support the

jury’s post- Penry weighing of Bell’s mental retardation against his

moral culpability.

As a footnote, we, like the state courts, reject the

argument that the federal Americans with Disabilities Act somehow

entitles Bell to exoneration from the death penalty. The ADA

neither addresses the imposition of criminal penalties, nor does it

suggest that mentally disabled Americans should be treated

differently from other Americans who commit crimes.

The state courts did not render an unreasonable decision

in rejecting Bell’s contentions concerning his mental retardation.5

2. Whether Bell made a substantial showing that he was

denied any constitutional right regarding newly

discovered evidence.

Under AEDPA, a COA will issue only if Bell makes “a

substantial showing” that he was denied a fed eral constitutional

right. 28 U.S.C. § 2253(c)(2). A substantial showing means that

reasonable jurists would find the state courts’ assessment of

Bell’s claim debatable or wrong. S lack v. McDaniel

, 529 U.S. 473,

478, 120 S.Ct. 1595, 1600 (2000). The federal court’s assessment

of Bell’s claim depends, in turn, on the “reasonableness” of the

state court’s decision. 28 U.S.C. § 2254(d) and (e).

To obtain relief from a judgment based on newly

discovered evidence, a petitioner generally must demonstrate that

(1) the evidence is newly discovered and was unknown to the

defendant at the time of trial; (2) the defendant’s failure to

detect the evidence was not due to a lack of due diligence; (3) the

evidence is material, not merely cumulative or impeaching; and (4)

the evidence would probably produce an acquittal at a new trial.

Lucas v. Johnson

, 132 F.3d 1069, 1076 n.3 (5th Cir.), cert dism’d

.,

524 U.S. 965 (1998).

Bell contends that affidavits procured in 1997 from his

mother, his cousin, and most prominently, his former co-defendant

Sheppard Watson, would have demon strated that Bell was beaten by

law enforcement officers to induce him to confess. He goes on to3 Bell’s mother’s evidence could not be “new,” as she

testified similarly in both of his trials. And Bell knew that his

cousin had seen him in jail.

6 argue that based on this evidence, his confession would have been

excluded, and he would not have been convicted of capital murder.

In his appellate brief, Bell focuses on Watson’s affidavit, which

described Watson’s alleged beating by the police and Watson’s

suspicion that Bell was beaten and, somehow, is supposed to fortify

Bell’s claim that he was physically forced to confess.

The state habeas court rejected this claim, finding both

that Bell did not prove that the “new evidence” was unknown to him

at the time of trial and that his attorneys at the second trial

conceded the admissibility of Bell’s confession, which had been

admitted at the first trial despite a claim of police brutality.

Bell disagrees only with the former finding, but he does not make

a substantial showing, by clear and convincing evidence, to rebut

it. 3 See 28 U.S.C. § 2254(e)(1). The state court findings are

thus presumed correct.

Bell hopes to circumvent the adverse findings by alleging

that his attorneys were constitutio nally ineffective for not

“discovering” the “new evidence” and for not moving to suppress his

confess ion at the second trial. S ee generally Strickland v.

W ashington , 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). The

state courts responded that Bell had to know about evidence7

bolstering his coerced confession c laim. His attorneys were not

defective if he failed to communicate with them. The state courts

alternatively found that the attorneys’ performance could not have

prejudiced Be ll, because even if the cousin’s and Watson’s

testimony had been offered at trial, it would have been cumulative

and, from such biased sources, not very credible. We agree. There

was substantial incriminating evi d ence even apart from Bell’s

confession. Bell was not prejudiced by his attorneys’ conduct.

The state co urts’ analysis of S trickland reasonably applies the

relevant constitutional law in light of the state court record.

Bell has failed t o make a substantial showing that his

constitutional rights were violated by his attorneys’ errors or by

the absence at his second trial of newly discovered evidence.

CONCLUSION

For the foregoing reasons, the judgment of the district

court denying habeas corpus rel ief on Bell’s first contention is

AFFIRMED

. We D ENY a certificate of appealability on Bell’s second

contention.