# Hamilton v. Ayers

> District Court, E.D. California · October 30, 2006 · 458 F. Supp. 2d 1075

URL: https://www.frixlaw.com/law-library/cases/2568116

## Case

- **Full name:** Michael Allen HAMILTON, Petitioner, v. Robert L. AYERS, Jr., Acting Warden of San Quentin State Prison, Respondent
- **Court:** District Court, E.D. California
- **Decided:** October 30, 2006
- **Citations:** 458 F. Supp. 2d 1075; 2006 U.S. Dist. LEXIS 94773; 2006 WL 3114258
- **Precedential status:** Published
- **Opinion:** Opinion by Wanger
- **Judges:** Wanger
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed in part, on other grounds by Hamilton v. Ayers, 583 F.3d 1100 (2009).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2568116

## Opinion text

Final Memorandum Decision and Order Denying Petition for Writ of Habeas Corpus and Granting in Part Certifí-cate of Appealability
WANGER, District Judge.
Petitioner Michael Allen Hamilton (“Hamilton”) first appeared in federal court June 12, 1990, requesting a stay of execution and appointment of counsel. Hamilton filed his petition for writ of habe-as corpus under 28 U.S.C. § 2254 December 3, 1991, and amended his petition January 11, 1993. Hamilton was ordered to exhaust state remedies March 18, 1993, and his second state habeas petition was filed in July, 1994. After informal briefing, the California Supreme Court issued an order to show cause (“OSC”) on July 17, 1996, addressing issues of juror bias and misconduct. The matter was referred to the trial court, a referee was appointed, and an evidentiary hearing was held November 4 and 5, 1997. The California Supreme Court discharged the OSC and denied the petition May 6, 1999, holding the evidence did not show the juror’s failure to fully disclose her pretrial knowledge and opinions about the case resulted in the seating of a biased juror since her omissions were inadvertent, and her contemplation of her deceased uncle did not bear on her ability to be fair and was not a pretrial event which she was required to disclose in voir dire.
In re Hamilton,
20 Cal.4th 273 , 84 Cal.Rptr.2d 403 , 975 P.2d 600 (1999). The remainder of Hamilton’s claims in his second state habeas petition were summarily denied.
Hamilton filed his fully exhausted petition with supporting points and authorities April 14, 2000. Respondent Robert Ayers (“the State”) filed an answer with supporting points and authorities July 19, 2000, and Hamilton’s traverse was filed November 20, 2000. Hamilton filed his motion for evidentiary hearing December 5, 2000, and the State’s opposition to an evidentia-ry hearing was filed January 2, 2001. The State was granted leave to file a supplemental opposition to Hamilton’s motion for evidentiary hearing January 15, 2002, and Hamilton’s response to the supplemental opposition was filed March 1, 2002.
Hamilton’s motion for evidentiary hearing was granted in part on Claim 2b, addressing the issue of whether trial counsel’s performance was deficient for failing
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to present mitigating evidence. Claims 8, 10, 12,14,15, 21, and subclaims a, g, h, i, o, u, w, aj, ak, ao, and as, of Claim 2, were denied an evidentiary hearing and denied on the merits.
1
See
Memorandum and Order Granting in Part and Denying in Part Motion for Evidentiary Hearing, dated November 12, 2002.
An evidentiary hearing was held December 3 and 4, 2003, at which testimony was received from
Strickland
expert Phillip Cherney, trial counsel David M. Liebowitz, defense investigator Danny Wells, and Hamilton. Following the hearing, Hamilton was allowed to supplement the record, and did so with documents filed January 26, 2004. Hamilton filed his post-hearing brief March 16, 2004, and the State filed their post-hearing brief on March 29, 2004.
The State objected to a copy of a letter by Hamilton about his background dated September 20, 1982, first submitted with the supplemental records filed January 26, 2004.
See
Ex. 133D. The State argued the late submission, fourteen years after the ineffective assistance of counsel claim was raised and after the completion of habeas discovery and the evidentiary hearing, raises serious questions about its authenticity and reliability. The State submitted a declaration from trial counsel stating he was certain he never saw this document. The State contended these issues must be resolved before any weight could be given to this document. The State’s motion to reopen the evidentiary hearing was granted and a hearing addressing the limited issue of the credibility of Exhibit 133D was held September 9, 2004. Hamilton filed his supplemental brief October 26, 2004, and the State filed its supplemental brief November 2, 2004.
I. PROCEDURAL HISTORY
Hamilton was convicted of the November 2, 1981 shooting of his wife and their unborn child. The jury found Hamilton personally used a firearm in the murders. Two special circumstances, financial gain and multiple murder, were found true as to Hamilton’s wife, and the special circumstance of multiple murder was found true as to the fetus. Hamilton was sentenced to death on December 16, 1982. On direct appeal the California Supreme Court set aside one of the multiple murder special circumstances and otherwise affirmed the judgment in full.
People v. Hamilton,
48 Cal.3d 1142 , 259 Cal.Rptr. 701 , 774 P.2d 730 (1989). Hamilton’s first state habeas corpus petition, filed March 14, 1989, was summarily denied August 31, 1989, and certiorari was denied March 19,1990.
II. FACTS
In 1981, Hamilton, his wife Gwendolyn (Gwen) who was pregnant, and their four children, ages six, four, three and one, lived in Bakersfield. RT 7:1725, 1740; RT 9:2039-40. In March of that year, the Hamiltons purchased life insurance policies, $175,000 on Hamilton and $100,000 on Gwen, paying the initial premium for coverage until June. RT 7:1715-17. When they did not pay the second quarterly payment on time, the agent personally collected the payment from Hamilton, extending the policy into September.
Id.
at 1717, 1722. When the third premium was not received, the agent again visited the Ham-iltons on October 17, collecting payment for two months from Gwen, extending the policies into November.
Id.
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In September, Hamilton began an extramarital relationship with Brenda Burns. RT 8:1798-99. In October, he called his sister Carolyn Hamilton to ask if she knew anyone who would do something illegal for money.
Id.
at 1852-58. Later he told Carolyn he wanted someone to kill Gwen and offered her $20,000 from the insurance on Gwen’s life if she would help find someone to do the killing.
Id.
at 1855, 1857-60. Hamilton told both Carolyn and his brother-in-law Lyle Palmer that he had a girlfriend, but if he left or divorced Gwen he wouldn’t have his kids.
Id.
at 1857; RT 7:1744-45. Brenda’s sister Sharon Burns also testified that Hamilton told her he didn’t like the way Gwen was in bed, sexually, and he wanted to divorce her so he could live with Brenda. RT 8:1842.
Carolyn first asked another sister, Victoria (Vicki) Hamilton, who agreed to kill Gwen for $10,000 of the insurance money. RT 8:1861; RT 9:2045. However, Vicki moved to Texas a few days later. RT 8:1959-68. Carolyn then approached Gilbert Garay, a prior acquaintance she met when both worked as security guards for Porterville Private Patrol.
Id.
at 1856, 1865-67, 1972-77. Gilbert agreed to kill Gwen for $10,000.
Id.
at 1867, 1974-75.
On October 31, Hamilton and Brenda Burns went to K-Mart in Bakersfield and purchased a single-shot 12-gauge shotgun. RT 8:1776, 1801. Hamilton said he left his identification in the car, so Brenda purchased the gun and shells with money furnished by Hamilton.
Id.
at 1776; 1802-OS, 1805-06.
That evening Hamilton, Gwen, and their children drove to Porterville to take their kids trick-or-treating with Carolyn’s son. RT 8:1868. While accompanying the children trick-or-treating, Hamilton, Carolyn and Gilbert discussed plans for the murder.
Id.
at 1869-70. Hamilton told Carolyn he would start to drive his family home, but then stop on Highway 65 claiming one tire was flat, so that Carolyn and Gilbert could drive by and shoot Gwen.
Id.
at 1869-70, 1982. Carolyn and Gilbert left in Carolyn’s truck a few minutes after Hamilton.
Id.
at 1981. As planned, Carolyn and Gilbert found Hamilton crouched down by the tire with Gwen standing beside him holding a flashlight.
Id.
at 1872-73. Although Carolyn drove by three to four times, Gilbert never pulled the trigger, so they eventually returned to Porter-ville.
Id.
at 1874,1984-85.
Hamilton phoned Carolyn about an hour later to ask what happened. RT 8:1875. Carolyn made excuses and Hamilton said they would come back to Porterville the next day.
Id.
at 1875-76. The next day Hamilton phoned Carolyn to say he would pretend to have lost his wallet while changing the tire.
Id.
at 1876-77, 1987. Hamilton and Gwen would stop at the same place on the pretext of looking for his wallet.
Id.
at 1877, 1987. Carolyn and Gilbert would follow them and shoot Gwen as previously planned.
Id.
That evening, Hamilton and his family again visited Carolyn, his mother and stepfather, Jacqueline (Jackie) and Sam Piper, in Porterville. RT 8:1877, 1988. Carolyn and Gilbert followed Hamilton about a half-hour after he left, and found him and Gwen at the same place, looking for the “lost” wallet.
Id.
at 1878-79, 1989. Carolyn and Gilbert drove' by several times, but again Gilbert did not shoot.
Id.
at 1879— 80, 1990-91. Hamilton was mad when he called Carolyn about an hour later, and she made more excuses.
Id.
at 1881.
The following day Hamilton called Carolyn with a new plan. RT 8:1882. As part of this plan, Carolyn called Gwen and told her that Hamilton’s wallet had been found.
Id.
at 1993. Hamilton and Gwen for the first time left their children with Gwen’s sister, who also lived in Bakersfield, and drove a white pickup truck to Porterville.
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RT 7:1726-28. When they arrived, Hamilton surreptitiously gave Carolyn his wallet, so she could return it to him in front of the family. RT 8:1884. Hamilton and Carolyn went to pick up Gilbert, and Carolyn and Gilbert told Hamilton they weren’t going to shoot Gwen.
Id.
at 1886-87, 1998. Hamilton said he would do it.
Id.
at 1888. Hamilton said he would be hitchhiking, and instructed Carolyn and Gilbert to pick him up and take him back to his pickup.
Id.
at 1995.
This time everything went according to the new plan. Carolyn gave Hamilton an icepick, which he used to jab a hole in one of his pickup’s tires.
Id.
at 1888-89. Hamilton stopped the pickup along the highway because one tire was going flat. RT 7:1696. He left Gwen in the truck and walked along the highway, ostensibly to find a place where he could phone for help.
Id.
Carolyn and Gilbert picked him up in Carolyn’s truck and drove him to a phone booth, where Hamilton called his mother and asked her to come help him. RT 8:1892, 1998; RT 7:1613. Mrs. Piper said she could not come until Carolyn returned with the truck.
Id.
at 1614. Carolyn and Gilbert then drove Hamilton back to where Gwen was waiting in the pickup. RT 8:1892, 1998. Hamilton took the shotgun, walked over to the pickup, and shot Gwen.
Id.
1894, 2001. He returned to the truck and demanded another shell.
Id.
at 1894, 2003. After reloading, he went back and shot Gwen again.
Id.
at 1896, 2003-04.
Gilbert drove back to the phone booth where they left Hamilton. RT 8:1897-98, 2006. Carolyn returned home with the truck after she dropped Gilbert off at a friend’s house.
Id.
at 1899-1900. Carolyn called Hamilton back at the phone booth and said their mother and stepfather were on the way.
Id.
at 1900; RT 7:1615. The Pipers drove Carolyn’s truck to pick up Hamilton at the phone booth, and then to where Hamilton “discovered” that Gwen had been killed.
Id.
at 1615-16.
An autopsy revealed the cause of Gwen’s death was shotgun wounds to the throat arid chest, fired at close range. RT 7:1677-81. The fetus was viable and died from anoxia caused by Gwen’s death.
Id.
at 1682-84; RT 8:1929-30.
Hamilton first told the police that Gwen had been killed while he was hitch-hiking to the phone booth. RT 7:1695-98. The next day, however, he said that she was killed by a Canadian whom he refused to identify.
Id.
at 1699. Eventually Vicki told the police of the plan to kill Gwen. RT 9:2052-53. With Vicki’s consent, the police taped two phone calls between her and Carolyn.
Id.
at 2054. Carolyn and Gilbert each confessed when they were arrested, and were each charged with two counts of first degree murder with special circumstances. RT 8:1904, 2011-12. Both Carolyn and Gilbert agreed to plead guilty to second degree murder with a dangerous-weapon enhancement, and be sentenced to 16 years to life, in return for their testimony against Hamilton at trial.
Id.
at 1904, 2013. Carolyn and Gilbert both testified at trial, identifying Hamilton as Gwen’s killer.
Id.
at 1894-96, 2000-04.
At trial, the defense attempted to show that Gilbert might have been the actual killer. Lilly Bardsley, the clerk from K-Mart who testified for the prosecution that she sold the shotgun to Brenda and Hamilton, was recalled by the defense and testified instead that she sold the gun to Brenda’s sister Sharon, who was accompanied by both Hamilton and Gilbert. RT 9:2145-51, 2157-68. Sharon, also recalled by the prosecution in rebuttal, denied purchasing the shotgun.
Id.
at 2177-80. The ATF form filled out at the time the gun was purchased was signed with Brenda’s name, and the prosecutor presented expert testimony that the signature was in Bren
*1089
da’s, not Sharon’s, handwriting.
Id.
at 2211-24. Vicki testified that when she first talked to Carolyn after the murder, she assumed Gilbert was the shooter.
Id.
at 2050. Another defense witness testified that prior to Gwen’s murder, Hamilton told her he suspected Vicki and her boyfriend, Stephen Fitzherbert (who was Canadian), were planning to kill him. Hamilton stated, “Well, you know my family, if they want anything bad enough, they’ll kill for it.” RT 9:2138-41. Hamilton did not testify.
The jury found Hamilton guilty as charged, and found true the charged special circumstances of intentional murder for financial gain, and two counts of multiple murder. RT 10:2347-58. The penalty trial was brief. The prosecutor presented documentary evidence that ten years previously Hamilton was convicted of grand theft.
Id.
at 2373-74. Defense counsel called Hamilton’s mother, who testified that as a child Hamilton had been removed from the family home because of abusive conduct by his father, and placed in a series of foster homes.
Id.
at 2382-84. Hamilton requested permission to read a statement telling the penalty jury he was not guilty, but for unspecified reasons beyond his control he was not permitted to testify or present exonerating evidence, and asking the jury to “return with the penalty described by law for the crime that you have me guilty of.”
Id.
at 2374-81. Defense counsel objected, and the court refused to permit Hamilton to read the statement.
Id.
After approximately four hours, the jury returned a verdict imposing the death penalty.
Id.
at 2419-20.
III. APPLICABILITY OF THE AED-PA; STANDARD OF REVIEW
On April 24, 1996, Congress passed the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), amending Chapter 153 ( 28 U.S.C. §§ 2241-2255 ), which governs federal habeas corpus proceedings. The United States Supreme Court held the provisions of the AEDPA apply only to cases filed
after
its effective date.
Lindh v. Murphy,
521 U.S. 320, 336 , 117 S.Ct. 2059 , 138 L.Ed.2d 481 (1997). Under previous Ninth Circuit authority, a capital habeas corpus case was pending or filed when an application for appointment of counsel and a request for a stay of execution was filed.
Calderon v. U.S. Dist. Court (Kelly V),
163 F.3d 530 , 540 (9th Cir.1998) (en banc). However,
Woodford v. Garceau,
538 U.S. 202 , 123 S.Ct. 1398 , 155 L.Ed.2d 363 (2003), overturned
Kelly V,
holding that only an application for habeas relief which seeks adjudication on the merits of a petitioner’s claims qualifies a case as “pending” under amended § 2254(d).
Id.
at 207, 123 S.Ct. 1398 .
The holding of
Garceau
does not affect the previous rulings that Hamilton is not subject to the limitations of the AEDPA. Hamilton’s initial federal habeas petition, which sought adjudication on the merits of his claims, was filed on December 3, 1991. Hamilton’s case was pending at the time the AEDPA was enacted and is not subject to the amendments to Chapter 153.
Constitutional violations are categorized as either trial error or structural error.
Arizona v. Fulminante,
499 U.S. 279, 306-10 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991). Trial errors “occur during the presentation of the case to the jury,” and are amenable to harmless-error analysis because they can “be quantitatively assessed in the context of other evidence presented” to determine the effect on the trial.
Fulminante,
499 U.S. at 307-308 , 111 S.Ct. 1246 . Structural errors are “defects in the constitution of the trial mechanism, which defy analysis by ‘harmless-error’ standards,”
id.
at 309 , 111 S.Ct. 1246 , and require “automatic reversal of the conviction because they infect the entire trial process.”
Brecht v. Abrahamson,
*1090
507 U.S. 619, 629-30 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993).
The limited scope of federal habeas review does not warrant relief unless trial errors had a “substantial and injurious effect or influence in determining the jury’s verdict” and deprived Hamilton of a fair trial in violation of his right to due process.
Brecht,
507 U.S. at 623 , 113 S.Ct. 1710 . In the rare case where a court is in “grave doubt” or “virtual equipoise” about the harmlessness of the error, the error should not be treated as harmless.
O’Neal v. McAninch,
513 U.S. 432, 435 , 115 S.Ct. 992 , 130 L.Ed.2d 947 (1995). Mixed questions of fact and law require de novo review.
Dickson v. Sullivan,
849 F.2d 403, 405 (9th Cir.1988). State court findings of historical fact are entitled to a presumption of correctness under 28 U.S.C. § 2254 (d) (effective until April 23, 1996), and are reviewed for clear error.
Jeffries v. Blodgett,
5 F.3d 1180, 1187 (9th Cir.1993).
TV. PRE-TRIAL CLAIMS
1. CLAIM 21: COMPETENCE TO STAND TRIAL
Hamilton contends he was incompetent to stand trial and that no inquiry was made by the court, the prosecutor, or defense counsel, into his mental state even though they were on notice of his possibly disordered or impaired mentality. Competence to stand trial is a fundamental right which implicates due process.
Cooper v. Oklahoma,
517 U.S. 348, 354 , 116 S.Ct. 1373 , 134 L.Edüd 498 (1996). The test for competency to stand trial is whether the defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.”
Dusky v. United States,
362 U.S. 402 , 80 S.Ct. 788 , 4 L.Ed.2d 824 (1960) (per curiam);
Godinez v. Moran,
509 U.S. 389, 396 , 113 S.Ct. 2680 , 125 L.Ed.2d 321 (1993).
Cases finding sufficient evidence of incompetency have entailed either extremely erratic and irrational behavior during trial or a lengthy history of acute psychosis and psychiatric treatment.
Compare Boag v. Raines,
769 F.2d 1341, 1343 (9th Cir.1985) (no real and substantial doubt of competency because five attempted suicides were too distant from the crime, no mental impairment from repeated head injuries and alcoholism, and diagnosis as a sociopath does not affect competency);
and de Kaplany v. Enomoto,
540 F.2d 975, 983-85 (9th Cir.1976) (no bona fide doubt of competency despite two emotional and inappropriate outbursts at trial, expert testimony of severe disturbance and paranoid schizophrenia, and a bizarre and gruesome crime);
with Tillery v. Eyman,
492 F.2d 1056, 1057-58 (9th Cir.1974) (incompetence found where the defendant displayed erratic and irrational behavior during trial, such as screaming throughout the night, laughing at the jury, gesturing to the bailiff, disrobing in the courtroom and butting his head through a glass window);
Moore v. United States,
464 F.2d 663, 665 (9th Cir.1972) (incompetence shown by the defendant’s lengthy history of acute psychosis, repeat hospitalization for acute mental illness and hallucinations, and evidence of psychiatric treatment); and
Odle v. Woodford,
238 F.3d 1084, 1088 (9th Cir.2001) (competency hearing required where section of Odle’s brain was removed and had history of psychotic episodes, despite calm appearance in court).
On collateral review, the determination of competence is reviewed as of the time of trial,
de Kaplany,
540 F.2d at 979-80 (evidence before the state trial judge reviewed to determine if there should have been a bona fide doubt as to competence). A claim of trial court error
*1091
requires a showing that a reasonable judge would have had a bona fide doubt as to the defendant’s competence to stand trial.
Amaya-Ruiz v. Stewart,
121 F.3d 486, 489 (9th Cir.1997);
cf. Torres v. Prunty,
223 F.3d 1103, 1109 (9th Cir.2000) (trial court’s finding of no bona fide doubt was not supported by the record). A bona fide doubt arises if there is substantial evidence of incompetence, which includes irrational behavior, demeanor at trial, and any prior medical opinion on competence.
Amaya-Ruiz, id.; Drope v. Missouri,
420 U.S. 162, 180 , 95 S.Ct. 896 , 43 L.Ed.2d 103 (1975).
Hamilton contends he had a previous psychiatric history including an admission to a psychiatric ward, was psychiatrically and neuropsychologically impaired during the commission of the crime and pre-trial detention, and suffered from major mental illnesses, all of which required professional intervention and medications while awaiting trial, including treatment for: (1) major depression; (2) suicidal tendencies with at least one attempted suicide while awaiting trial; (3) post-traumatic stress disorder; and (4) psychosis. Hamilton contends he was administered medications for depression, agitation, anxiety and emotional instability which were not supported by reliable medical or judicial determinations and were contra-indicated for a patient with hyperthyroidism and emotional instability.
Hamilton presents in support of this claim the opinion of George Woods, M.D., who asserts that Hamilton’s mental state deteriorated during his incarceration before trial. Dr. Woods relates that Hamilton was observed by medical staff to be anxious, depressed, experienced sleep disturbances and nightmares, and was suicidal, that a psychologist noted his difficulty in concentration, blunted affect (feeling, emotion), exhaustion, sadness and tearfulness, that he was medicated with Etrafon (an antipsychotic drug), Tofranil (an antidepressant) and Benadryl, medications which could have been contra-indicated given his medical history, that he was observed by court staff and jurors to be emotionally constricted, remarkably expressionless, lacking emotion and seemingly detached, while at other times emotionally labile (unstable), weepy and suddenly uncontrollable, and that his emotional responses intensified and he began shouting and crying during a conversation with counsel after his dosage of Etrafon was increased. Dr. Woods concludes these reports point to a pharmaceutically-induced or aggravated state of confusion, agitation and inattention that likely affected Hamilton’s ability to make decisions, testify relevantly, and respond appropriately to courtroom proceedings and developments, and made it extremely unlikely he would have been able to weigh and consider such issues as the advantages and disadvantages about testifying and to reach a rational decision about testifying. Dr. Woods also concludes that Hamilton’s family history of genetic disorders, childhood physical and psychological abuse and atmosphere of sexual abuse, burdened him with extreme mental and emotional impairments, including serious psychiatric disorders, that compromised his ability to fully appreciate the nature and consequences of his acts or to conform his conduct to the requirements of the law. See Ex. 48.
No medical records are presented in support of this claim. Hamilton instead offers the opinion of Dr. Woods, concluding that contemporaneous observations of Hamilton’s emotional state during his trial indicate Hamilton’s preexisting mental condition was exacerbated by the drugs he was given, rendering it extremely unlikely Hamilton was able to make rational decisions. No declaration regarding Hamilton’s competency is submitted from trial counsel.
*1092
Further, Hamilton has not cited, and the record does not show, one instance of Hamilton acting irrationally during the pretrial, trial' or sentencing proceedings. To the contrary, on the three occasions when the trial court conversed with Hamilton regarding his request to be moved to an alternate cell, his
Marsden
2
motion, and his request to read a statement to the jury, Hamilton responded appropriately and intelligently, indicating an understanding of the court’s explanations. See RT May 17, 1982; RT June 22, 1982; RT 10:2374-81. Even Hamilton’s proclamation of his innocence prior to sentencing indicates his ability to control his emotions and communicate, despite facing an extremely stressful event. See RT December 16, 1982.
Finally and very importantly, Hamilton has not shown that he was unable to understand the nature of the proceedings against him or to assist counsel. To the contrary, Hamilton’s discourses with the trial court indicate he was fully aware of what was occurring and was able to communicate his thoughts and opinions to counsel.
Hamilton filed supplemental records on January 26, 2004, which included Tulare County Jail Medical Records from December 1981 through March 1982, as well as medical records from Kings View Clinic of a mental health evaluation on April 8, 1982, and medication orders for May through October, 1982. The jail records show that Hamilton was receiving medication for depression in March, 1982, and that it had been discontinued for an unknown reason.
See
Ex. 140. The Kings View diagnosis attributed Hamilton’s blunted affect (feelings, emotions) and depressed mood to being incarcerated and charged with murder.
See
Ex. 134. The supplemental ■ evidence does not support Hamilton’s claim that he was incompetent.
When the record is viewed as a whole, the evidence presented by Dr. Woods does not raise a “bona fide doubt” as to Hamilton’s competence to stand trial. Based on the evidence presented, defense counsel was not ineffective for failing to raise the issue of Hamilton’s competence. The record fairly supports the California Supreme Court’s summary denial of this claim. Claim 21 is denied on the merits.
2. CLAIMS 1 & 2ab: CHANGE OF VENUE; INEFFECTIVE ASSISTANCE OF COUNSEL
Hamilton contends the trial court erred by twice denying his request to change venue. Hamilton also argues trial counsel provided ineffective assistance by failing to pursue the interlocutory appeal of the trial court’s denial of his change of venue motion. Hamilton asserts the publicity before and during his trial in Tulare County was so pervasive it was not possible to impanel an impartial jury. Hamilton alleges the media coverage included grave inaccuracies, extra-judicial proof of guilt, references to inadmissable evidence, and opinions by court officers and state agents about his guilt and the appropriateness of the death penalty.
The California Supreme Court reviewed this claim on direct appeal, examining (1) the nature and extent of pretrial publicity, (2) the county’s population, (3) the nature and gravity of the offense, (4) the status of the victim and of the accused in the community, (5) the existence of political overtones in the case, and the actual jury voir dire. The Court denied this claim, finding the trial court’s denial of Hamilton’s change of venue motion did not result in a reasonable likelihood of an unfair trial.
Hamilton,
48 Cal.3d at 1156-57 , 259 Cal.Rptr. 701 , 774 P.2d 730 .
*1093
Hamilton claims approximately 83% of the potential jurors (126 of 147) and of the impaneled jurors (10 of 12) had been exposed to the extensive media coverage of the murder. Hamilton maintains the selection of the jury and the conduct of the trial resulted in the prejudicial exposure to inaccurate, exaggerated, inflammatory publicity and extrajudicial information about his guilt or innocence. Hamilton alleges several jurors read a great deal about the case before being called for jury duty, several had extrajudicial information about fetal viability which they shared with other jurors, and one juror thought she saw Hamilton’s sister near her house during trial.
A criminal defendant is entitled to an impartial jury.
Irvin v. Dowd,
366 U.S. 717, 722 , 81 S.Ct. 1639 , 6 L.Ed.2d 751 (1961). Where prejudicial publicity makes seating an impartial jury impossible, a motion for change of venue must be granted.
Harris v. Pulley,
885 F.2d 1354, 1360 (9th Cir.1988);
Gallego v. McDaniel,
124 F.3d 1065, 1070 (9th Cir.1997). Prejudice of the venire may be presumed or actual. On habeas review, the district court must make an independent review of the record to determine if prejudice existed which denied the petitioner a fair trial.
Jeffries v. Blodgett,
5 F.3d 1180, 1189 (9th Cir.1993).
Presumed Prejudice
“Prejudice is presumed when the record demonstrates that the community where the trial was held was saturated with prejudicial and inflammatory media publicity about the crime.”
United States v. Sherwood,
98 F.3d 402, 410 (9th Cir.1996). Prejudice is rarely presumed “because ‘saturation’ defines conditions found only in extreme situations.”
Jeffries,
5 F.3d at 1189 . Prejudice is not established where the nature of the news coverage was factual and not inflammatory, and the bulk of the publicity occurred months before jury selection began.
Id.
The evidence presented does not undermine the California Supreme Court’s finding that the publicity in this case was not inflammatory nor very extensive for a crime of this magnitude.
Hamilton,
48 Cal.3d at 1157 , 259 Cal.Rptr. 701 , 774 P.2d 730 ; Ex. 60. The submitted evidence includes news articles from three area newspapers. Six of the articles were published in first five days following the murder (through November 7, 1981) and another nine articles in the next twenty-five days (through December 3, 1981). Until the start of jury selection on October 6, 1982, ten articles were published: three in February, two in March, one in April, two each in June and September. The submitted evidence supports the state court’s finding that the majority of news articles appeared immediately following the crime and almost a year before the trial, that the publicity was not persistent and pervasive, and that it did not create a reasonable likelihood Hamilton would be deprived of a fair trial.
Id.
at 1157-58 , 259 Cal.Rptr. 701 , 774 P.2d 730 . Prejudice cannot be presumed in this case.
Actual Prejudice
To establish actual prejudice, the defendant must demonstrate that the jurors exhibited “actual partiality or hostility that could not be laid aside.”
Harris,
885 F.2d at 1363 . A defendant is entitled to an impartial jury, but that does not mean a jury completely ignorant of the facts.
United States v. Flores-Elias,
650 F.2d 1149 (9th Cir.1981). “The relevant question is ... whether the jurors ... had such fixed opinions that they could not judge impartially the guilt of the defendant.”
Patton v. Yount,
467 U.S. 1025, 1035 , 104 S.Ct. 2885 , 81 L.Ed.2d 847 (1984). A key factor in evaluating the
*1094
reliability of jurors’ assurances of impartiality is the percentage of veniremen who “will admit to disqualifying prejudice.”
Murphy v. Florida,
421 U.S. 794, 803 , 95 S.Ct. 2031 , 44 L.Ed.2d 589 (1975). Prejudice was not been established where 25 per cent of the venire were excused because they indicated an opinion about the defendant’s guilt.
Id.; contra, Irvin v. Dowd,
366 U.S. 717, 727 , 81 S.Ct. 1639 , 6 L.Ed.2d 751 (1961) (90 per cent of venire held some opinion as to guilt, over 60 per cent were excused for cause as having a fixed opinion of defendant’s guilt).
Here about 20 per cent, 30 of the 152 persons in the venire, were excused because they had formed a bias from the publicity about the case. Many of the potential jurors who had heard about the case but were not excused for cause had only heard Hamilton’s version of the events (he had car trouble, he left to get help and returned to find his wife murdered). Actual prejudice is not established in this ease. Counsel was not deficient in failing to pursue a meritless appeal of venue. The record fairly supports the California Supreme Court’s denial of this claim. Claim 1 and Claim 2ab are denied on the merits.
3. CLAIM 5: IMPAIRED RIGHT TO TRIAL BY JURY
3
a.
WITHERSPOON
ERROR
Hamilton contends that jurors were excused who did not meet the
Witherspoon
standard, as they were excused without being informed of their duty to subordinate their views and follow the law.
Witherspoon v. Illinois,
391 U.S. 510 , 88 S.Ct. 1770 , 20 L.Ed.2d 776 (1968);
Wainwright v. Witt,
469 U.S. 412, 420 , 105 S.Ct. 844 , 83 L.Ed.2d 841 (1985).
Hamilton does not indicate which excu-sáis of potential jurors he objects to, and no argument is presented in support of this claim. The excusal of Mr. Skidmore was raised and rejected in Hamilton’s direct appeal. The California Supreme Court found Mr. Skidmore’s excusal complied with
Witherspoon
and
Witt ,
because he made it unmistakably clear that, regardless of the evidence, he would not vote for the death penalty unless he was an eyewitness to the murder.
Hamilton,
48 Cal.3d at 1165-66 , 259 Cal.Rptr. 701 , 774 P.2d 730 .
Hamilton further asserts that the trial court erred in not excusing two “pro-death” jurors, Wendell Webb and Geneva Gholston. Although Hamilton raises this claim in his petition, the claim is not included in his supporting argument.
4
*1095
A prospective juror is required to be excused under Witherspoom and Witt if his or her views on capital punishment would prevent or substantially impair the performance of the juror's duties. The inquiry on review is whether the finding is fairly supported by the record. Hendricks v. Vasquez, 974 F.2d 1099 (9th Cir.1992). A trial judge's factual finding about juror bias is entitled to a presumption of correctness under (former) 28 U.S.C. § 2254 (d). Witt, 469 U.S. at 429 , 105 5.Ct. 844; Hendricks, at 1103. Even assuming for the sake of argument the trial judge incorrectly denied an excusal for cause, the question is whether the jury which actually was impaneled was impartial. Ross v. Oklahoma, 487 U.S. 81, 86 , 108 S.Ct. 2273 , 101 L.Ed.2d 80 (1988).
Hamilton has presented no evidence to overturn the presumption of correctness given the trial court's findings regarding juror bias. Further, review of the pertinent portions of the trial transcript, including the voir dire of jurors Webb and Gholston, fails to indicate the impaneled jury was not impartial. Defense counsel was not ineffective for failing to object to the jury's composition. The record fairly supports the California Supreme Court's denial of this claim. Claim 5a is denied on the merits.
e. FAIR CROSS-SECTION CLAIM
Hamilton alleges that Hispanics and other minorities were systematically excluded from his jury. Hamilton contends 30% of Tulare County was Hispanic in 1980-81. (The 1980 census indicates 73,290 Hispanics and 245,738 total population.) Hamilton asserts that the Tulare County jury book for 1981 contained 14% Hispanic surnames (Appendix B: 1,461 of 10,495), that his jury pooi was 11% Hispanic (Appendix C: 20 of 160), and that no Hispanics were seated on his jury. Hamilton contends the county erred by using voter registration and DMV records when there was access to lists reflecting a more accurate cross-section of the population. Hamilton further asserts the county was able to control the racial/ethnic composition of panels through computerized data processing.
The Sixth Amendment guarantees a criminal defendant an impartial jury drawn from a fair cross-section of the community. Taylor v. Louisiana, 419 U.S. 522, 530 , 95 S.Ct. 692 , 42 L.Ed.2d 690 (1975). "In order to establish a prima fade violation of the fair-cross-section requirement, the defendant must show: (1) that the group alleged to be excluded is a `distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under-representation is due to the systematic exclusion of the group in the jury selection process." Duren v. Missouri, 439 U.S. 357, 364 , 99 S.Ct. 664 , 58 L.Ed.2d 579 (1979).
Proof of unconstitutional discrimination has not been established by statistics showing a 10% or less absolute disparity between the group representation on the jury venire and in the community. "We cannot say that purposeful discrimination based on race alone is satisfactorily proved by showing that an identifiable group in a community is under-represented by as much as 10%." Swain v. Alabama, 380 U.S. 202, 208-09 , 85 S.Ct. 824 , 13 L.Ed.2d 759 (1965), overruled on other grounds by Batsort v. Kentucky, 476 U.S. 79, 90-96 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986).
The 1980 census showed that the adult population of Hispanics in Tulare County was 24.85%. People v. Howard, 1 Cal.4th 1132 , 5 Cal.Rptr.2d 268 , 824 P.2d 1315 (1992); Appendix A (Total adult popula-
*1096
41,142 = 24.85%). The number of people with Hispanic surnames in Hamilton’s jury-pool was 22. (Appendix D omitted Jerry Rocha and Mary Rodarte.) The percentage of Hispanics on Hamilton’s venire was 13.75% (22 of 160). These figures represent a 11.1% absolute disparity between the Hispanic representation on Hamilton’s jury venire and in the county’s adult Hispanic population.
Although this percentage of under-representation is slightly greater than the amount held inadequate to alone show purposeful discrimination in
Swain ,
Hamilton fails to address other issues which would narrow the gap between adult population and the jury pool, such as citizenship, prior felony conviction, or the ability to speak and understand English.
See
California Code of Civil Procedure section 230 and
United States v. Torres-Hernandez,
447 F.3d 699, 701 (9th Cir.2006) (holding a determination of under-representation must rely on evidence that most accurately reflects the jury-eligible population).
Hamilton provides no evidence to support his allegation that the disparity is due to the systematic exclusion of Hispanics in the jury selection process. In fact, Hamilton’s allegation of computerized manipulation is undermined by the declaration of Steve Konishi, court administrator for Tu-lare County, stating that no procedures to monitor racial composition exist, nor has the county ever been required to study racial representation on jury panels. See Appendix F.
Even assuming that Hamilton has presented sufficient evidence to meet the second prong of
Duren ,
there is no evidence that the under-representation was caused by a systematic exclusion of Hispanics from the jury selection process. Based on this evidence, defense counsel was not ineffective for failing to object to the composition of the jury. The record fairly supports the California Supreme Court’s summary denial of this claim. Claim 5e is denied on the merits.
f.
BATSON
CLAIM
Hamilton contends the prosecutor exercised peremptory challenges to remove Hispanics or other minorities, as well as persons with scruples against the death penalty, from the jury. However, Hamilton has provided no evidence, factual explanation or argument in support of this claim, instead he only lists page citations for the voir dire of Hispanics on his jury venire. See Appendix D. This claim was not raised at trial.
The improper exercise by a prosecutor of a peremptory challenge can deny a defendant the Equal Protection of the laws under
Batson v. Kentucky.
Although Hamilton was tried before the Supreme Court decided
Batson,
both state and federal law grounds existed under which he could have challenged the jury selection process.
People v. Wheeler,
22 Cal.3d 258, 272 , 148 Cal.Rptr. 890 , 583 P.2d 748 (1978) (prosecutor’s use of peremptory challenges to remove prospective jurors on basis of race violates state constitution);
Ford v. Georgia,
498 U.S. 411, 420 , 111 S.Ct. 850 , 112 L.Ed.2d 935 (1991) (defendant who was tried before
Batson
and raised a contemporaneous objection to jury selection based on
Swain v. Alabama
preserved a
Batson
claim for direct appeal). Under California law, a challenge to the composition of the jury based on a prosecutor’s improper exercise of peremptory challenges must be made prior to the completion of jury selection, that is, before the jury is sworn or alternates are impaneled.
Wheeler,
22 Cal.3d at 280-282 , 148 Cal.Rptr. 890 , 583 P.2d 748 ;
People v. Ortega,
156 Cal.App.3d 63, 69-70 , 202 Cal.Rptr. 657 (1984).
To excuse procedural default, Hamilton must establish both cause and
*1097
actual prejudice.
United States v. Frady,
456 U.S. 152, 169 , 102 S.Ct. 1584 , 71 L.Ed.2d 816 (1982). An attorney’s ignorance or inadvertent error does not establish cause for procedural default unless the attorney’s performance is constitutionally defective.
Murray v. Carrier,
477 U.S. 478, 488 , 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986) (citing
Strickland v. Washington,
466 U.S. 668, 690 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984)). Thus, “the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for procedural default.”
Carrier,
477 U.S. at 486-87 , 106 S.Ct. 2639 . Further, the establishment of a new federal claim does not provide cause for a default if the alleged error also violated established state law and no objection was made on state law grounds.
Dugger v. Adams,
489 U.S. 401, 407-08 , 109 S.Ct. 1211 , 103 L.Ed.2d 435 (1989). Actual prejudice requires that Hamilton show “the errors at his trial ... worked to his actual and substantial disadvantage, infecting his entire trial with errors of constitutional dimension.”
Frady,
456 U.S. at 170 , 102 S.Ct. 1584 .
Hamilton’s failure to raise this claim during trial, when it could have been timely addressed, renders adequate review difficult, since the opportunity for the prosecutor to provide a basis for his peremptory challenges was lost. For five of the seven potential jurors with Hispanic surnames the prosecutor excused, a nonracial basis for each excusal is apparent on the face of the record. Since this claim was not raised during trial, when the prosecutor could have articulated non-racial reasons for the challenges which are not apparent from the cold record, and because Hamilton has shown no error resulting from the prosecutor’s exercise of peremptory challenges which worked to his actual or substantial disadvantage, it cannot be assumed that the other two challenges were improper. Review of the record establishes that, overall, an “inference of discrimination” is not raised.
Johnson v. California,
545 U.S. 162, 168 , 125 S.Ct. 2410 , 162 L.Ed.2d 129 (2005). This evidence from the record that no discriminatory exercise of challenges occurred means defense counsel was not ineffective for failing to object to the jury selection process. The record fairly supports the California Supreme Court’s summary merits denial of this claim. Claim 5f is denied on the merits.
4. CLAIM 6: JUROR MISCONDUCT
d. FAILURE TO DISCLOSE BIAS
Hamilton alleges Geneva Gholston failed to disclose that prior to being summoned for jury duty she formed the opinion Hamilton was guilty, that she was motived to serve to avenge certain crimes, that she was guided by a dead uncle to impose death, and that she had extrajudicial contact with and fear of Hamilton’s sister Vicki and her boyfriend Stephen Fitzherbert (who she saw parked in the alley behind her house) which prompted her to request police protection. Hamilton asserts Ms. Gholston’s failure to disclose her bias violated his right to an impartial jury and prevented trial counsel from examining her to determine prejudice.
On state exhaustion, the California Supreme Court ordered an evidentiary hearing on this claim. The state trial court held, based on factual findings by the referee, that even if Ms. Gholston’s voir dire answers understated her pretrial awareness and impressions about the case, particularly with respect to Hamilton’s claim of a Canadian killer, her omissions did not lead to the seating of a biased juror.
In re Hamilton,
20 Cal.4th at 298 , 84 Cal.Rptr.2d 403 , 975 P.2d 600 . The state court found that Ms. Gholston stated on voir dire she was impartial, and
regardless of any
*1098
'pretrial impressions,
she could and would judge the case solely on the evidence; that she has since insisted at all stages. her exposure to pretrial information did not affect her fairness at trial; that the referee, after watching Ms. Gholston testify, explicitly credited her claim of impartiality. The state supreme court found the circumstantial evidence did not rebut the findings and there was no basis to conclude Ms. Gholston’s failure to disclose fully her pretrial knowledge and opinions about Hamilton’s case resulted in the seating of a biased juror.
Id.,
20 Cal.4th at 301 , 84 Cal.Rptr.2d 403 , 975 P.2d 600 .
The state court further held “the evidence provides no convincing reason to credit [Ms.] Gholston’s 1994 declaration [which was prepared by a defense investigator], so lurid as to raise doubts on its face, over her subsequent [contrary] and more reasonable disclaimers both in writing and on the witness stand.”
Id.
at 304 , 84 Cal.Rptr.2d 403 , 975 P.2d 600 . Like the referee, the state court accepted Ms. Gholston’s assurance that “the 1994 declaration does not accurately set forth the ‘Uncle Frank’ episode, and that the true experience is one which could have no bearing on her fairness as a juror.”
Id.
at 304 , 84 Cal.Rptr.2d 403 , 975 P.2d 600 . The Court also found no substantial likelihood that the alleged alley incident with Vicki Hamilton and Stephen Fitzherbert, as described by Ms. Gholston, caused her to develop actual bias against Hamilton.
Id.
at 306 , 84 Cal.Rptr.2d 403 , 975 P.2d 600 .
Hamilton does not seek to present any additional facts on this claim, but disputes the conclusions reached by the state referee, which were adopted by the California Supreme Court. Hamilton contends the referee’s findings were contrary to the facts and that he has stated a claim for relief under federal law. Hamilton asserts Ms. Gholston’s bias was entrenched; that the opinion she formed about Hamilton’s guilt during the conversation with her neighbor was not superficial; that her fear of Hamilton’s sister affected her decision; that the “presence” of her uncle contributed to her prejudgment of the case; that she is not a competent witness of her own mental state; and that her statements at the hearing and to investigators were demonstrative of bias. Hamilton contends Ms. Gholston was profoundly influenced by both pretrial bias and bias which developed during the trial such that he did not receive a fair trial.
The Sixth Amendment entitles a criminal defendant to a verdict rendered by impartial, indifferent jurors. To justify a new trial based on a claim of juror bias, a petitioner must show a dishonest answer was given on voir dire to a material question and that the correct response would have provided a valid basis for a challenge for cause.
McDonough Power Equipment, Inc. v. Greenwood,
464 U.S. 548, 556 , 104 S.Ct. 845 , 78 L.Ed.2d 663 (1984) (plurality opinion);
Tinsley v. Borg,
895 F.2d 520, 524 (9th Cir.1990). A voir dire question is material when the honest response would reflect bias, prejudice or partiality against a party.
Coughlin v. Tailhook Ass’n.,
112 F.3d 1052, 1061 (9th Cir.1997) (finding a juror’s dishonest answers on voir dire were unrelated to material questions as they did not result in any bias to the defendant);
Dyer v. Calderon,
151 F.3d 970, 973 (9th Cir.1998) (an intentionally dishonest answer to a voir dire question is not fatal unless it indicates a bias). “Few voir dires are impeccable, and most irregularities can be shrugged off as immaterial to the fairness of the trial.”
Dyer,
151 F.3d at 984 .
State-court determinations of factual issues are presumed correct unless an exception is present. 28 U.S.C. § 2254 (d). The exceptions to § 2254(d)’s presumption
*1099
of correctness essentially codified the standards requiring an evidentiary hearing from
Townsend v. Sain,
372 U.S. 293 , 83 S.Ct. 745 , 9 L.Ed.2d 770 (1963).
Thompson v. Keohane,
516 U.S. 99, 108-09 , 116 S.Ct. 457 , 133 L.Ed.2d 383 (1995). If a habeas petitioner has had a full and fair hearing resulting in reliable findings, the federal court ordinarily should accept the facts as found by the state tribunal.
Id.
at 109 , 116 S.Ct. 457 . The determination of basic, primary, or historical facts are subject to the presumption of correctness, while the application of a legal standard, the ultimate question, generally is not subject to § 2254(d).
Here, the credibility determination by the referee accepting Ms. Gholston’s testimony given at the evidentiary hearing is exclusively a factual finding, subject to the presumption of correctness. The state court’s conclusions that any failure to fully disclose pretrial impressions was inadvertent,
In re Hamilton,
20 Cal.4th at 301 , 84 Cal.Rptr.2d 403 , 975 P.2d 600 ; that the “Uncle Frank” episode was not accurately set forth in the 1994 declaration; that Ms. Gholston experienced no direct encounter with her Uncle Frank’s spirit,
id.
at 302 , 84 Cal.Rptr.2d 403 , 975 P.2d 600 ; and that although it was doubtful she saw Hamilton’s sister Vicki and her boyfriend Stephen near her house, any failure to disclose this brief, ambiguous incident was inadvertent,
id.
at 306 , 84 Cal.Rptr.2d 403 , 975 P.2d 600 ; are all entitled to a presumption of correctness. Hamilton has presented no evidence nor persuasive argument these presumptions of correctness should be set aside.
Whether the facts as found by the referee and state court resulted in the seating of a biased juror is the ultimate legal question, subject to de novo review. In each instance, the state court concluded after an evidentiary hearing that the undisclosed incidents experienced by Ms. Gholston did not result in the seating of a bias juror.
In re Hamilton,
20 Cal.4th at 301-02, 306 , 84 Cal.Rptr.2d 403 , 975 P.2d 600 . Hamilton has not shown, nor does review of the record reveal, that Ms. Ghol-ston was biased against him. Any omissions about her pretrial impressions did not impact her ability, or stated intention, to be a fair and impartial juror. There is no evidence that any “feeling of the ‘presence’ ” of her Uncle Frank’s spirit, nor any alleged contact with Vicki Hamilton and Stephen Fitzherbert resulted in a bias against Hamilton. Nothing in the facts found by the state court indicates prejudice or partiality against Hamilton.
Based on this evidence, defense counsel was not ineffective for failing to discover and impeach Ms. Gholston’s alleged bias. The record fairly supports the California Supreme Court’s denial of this claim. Claim 6d is denied on the merits.
5. FOURTH AMENDMENT ISSUES
a. CLAIM 13: ILLEGAL AR-RE ST/PRE-TRIAL DETENTION
Hamilton contends that his arrest was without warrant or probable cause, and made solely because he discovered the crime. Hamilton asserts that law enforcement exploited his unlawful detention, preying upon his lack of sleep and food to obtain a statement in violation of his Fourth Amendment rights which was used against him at trial.
5
Hamilton argues this statement was prejudicial, in part because the fact that Gwen had been shot had not been made public, and that it was a product of his unlawful detention. Ham
*1100
ilton also contends his arrest was merely a pretext for a warrantless search incident to arrest, allowing the seizure of his clothing and Brenda Burns’ address and phone number from his wallet. Hamilton also contends he is entitled to habeas relief on this claim because trial counsel was ineffective in failing to object to the admission of the above evidence, resulting in his denial of a full and fair hearing on the claim in state court.
The issue of probable cause to support Hamilton’s arrest was properly litigated prior to trial during a hearing on a defense motion to suppress. RT 1538.5 Motion, Sept. 20 — 21, 1982. Hamilton there argued that Brenda Burns’ name and address were improperly obtained from his wallet following his unlawful arrest, and thus evidence of the shotgun and its purchase should be excluded.
Id.
at 25. To make a determination whether the seizure of Hamilton’s wallet was proper, evidence was received about the basis for Hamilton’s arrest.
Id.
at 47. The trial court found that there was probable cause to arrest Hamilton.
Id.
at 76-77. Further, the trial court determined that, even assuming Hamilton’s arrest was without probable cause, an independent source for Ms. Burn’s address existed.
Id.
at 75-76.
The question of probable cause to support Hamilton’s arrest received a full and fair California Penal Code section 1538.5 hearing prior to trial. The only evidence supporting the contention that Ms. Burn’s name and address were obtained from Hamilton’s wallet comes from her testimony of what the officers told her. This evidence was before the trial court and fully considered in denying the motion to suppress. A claim based on the alleged violation of a Fourth Amendment right is not cognizable on federal habeas corpus unless the petitioner shows the state did not provide an opportunity for full and fair litigation of the claim.
Stone v. Powell,
428 U.S. 465, 494 , 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (1976);
Woolery v. Arave, 8
F.3d 1325 (9th Cir.1993). Since Hamilton was provided the full opportunity to fairly litigate this claim in state court, it is not cognizable on federal habeas corpus review.
Sixth Amendment claims of ineffective assistance of counsel based on incompetent representation with respect to Fourth Amendment issues are not barred from habeas review.
Kimmelman v. Morrison,
477 U.S. 365 , 106 S.Ct. 2574 , 91 L.Ed.2d 305 (1986). However, the record establishes defense counsel was not ineffective for failing to object to the introduction of Hamilton’s statement, since the issue of probable cause to arrest had already been resolved by the 1538.5 suppression hearing and order. Claim 13 is denied on the merits.
b. CLAIMS 14
&
15:
MIRANDA
VIOLATIONS AND COERCED STATEMENT BY HAMILTON
Hamilton alleges in Claim 14 that he was denied sleep, food, drink and cigarettes on the night of the murder; that when he was finally allowed into a cell, he was forced to attempt sleep with a radio and the intercom playing at high volume; that he was badgered and berated by the police; that he was told Gilbert was an officer’s brother and would not take the fall for the crime; that gory pictures of Gwen’s and the baby’s autopsies were shoved in his face; and that he was denied basic hygiene prior to making statements. Hamilton further asserts that on the third day he was in custody (not the afternoon following the murder as Detective Byrd testified), in response to a question about who might have committed the crime, he suggested a Canadian (meaning his sister Vicki’s boyfriend Stephen Fitzherbert) might have had a motive. Hamilton also
*1101
contends he was not given Miranda
6
warnings again prior to this questioning. Hamilton argues he would not have made the statements he did in the absence of this coercion.
Hamilton asserts in Claim 15 that he was interrogated and made statements without a proper warning or waiver; that interrogation and a request for a waiver occurred after he requested counsel; and that he was interrogated, from which the police obtained statements, after he was represented by counsel.
Some of the allegations in Claims 14 and 15 are contradicted by Hamilton’s own declaration of November 28, 2000. Ex. A to Motion for Evidentiary Hearing. The petition alleges that Hamilton was given no drink or cigarettes, which along with other deprivations coerced him into making the statement that a Canadian killed his wife. However, Hamilton’s declaration states that after he called his Uncle Marvin to arrange for clothing for his children, he was given coffee and cigarettes. Ex. A, ¶ 21. The petition alleges Hamilton made the statement about a Canadian on November 5 or 6, just prior to his release. However, Hamilton’s declaration states he made the statement about a Canadian early on the morning of November 3.
Id.
¶¶ 22, 23. The petition alleges Hamilton was interrogated and made the statement about a Canadian after he requested and was represented by counsel. However, Hamilton’s declaration states he made the statement about a Canadian on November 3, before and after the polygraph examination,
id.
¶¶ 22-24, and that he first asked to speak to a lawyer when put in a holding cell after the polygraph examination and subsequent interview.
Id.
¶ 30.
The allegations in the petition also are contradicted by Lt. Byrd’s testimony at trial, where he related Hamilton’s statement about a Canadian was made on November 3rd. RT 7:1698-99. Further, there is no evidence the police had any suspicion that Gilbert was involved in the murder before Vicki contacted the detectives around November 19th, so Hamilton could not have been coerced to make the statement about a Canadian by threats about Gilbert’s police connections. Hamilton was only held for a few days after the murder: he was taken from the scene late on the second of November and first questioned about 2:30 a.m. on the third of November. RT 7:1670-76. He was released on the fifth of November. Ex. 38A to Hamilton’s Pro Se Motion filed Jan. 13, 2006. Hamilton’s sister Vicki informed law enforcement of the plan to kill Gwen about a week before Thanksgiving. RT 9:2074. Based on November 2nd being a Monday, RT 8:1882, Thanksgiving was on November 26. Gilbert was arrested on November 30th.
Id.
at 2011.
In addition, Hamilton made more than one statement on the record which shows his ability to communicate with the trial judge. See RT May 17, 1982:7
et seq.
(request move to another cell due to inmate harassment); RT June 22, 1982:8
et seq.
(Marsden
7
motion); RT 10:2374-81 (November 18, 1982 request to read statement to jury as part of closing argument at penalty); RT December 16, 1982:1 (statement of innocence at sentencing). No evidence has been presented showing Hamilton was prevented during trial from asserting that his statement had been coerced.
*1102
There is no evidence beyond Hamilton's self-serving statements to support these claims. Based on the total lack of evidence supporting these claims, Hamilton cannot establish defense counsel was ineffective for failing to seek exclusion of Hamilton’s pre- and post-arrest statements. The contradictions between the allegations in the petition and Hamilton’s own declaration, prepared just seven months following the filing of the amended petition, cast doubt on the credibility of both Hamilton’s declaration and the allegations in his petition. Claims 14 and 15 are denied on the merits.
6. CLAIM 9: DENIAL OF MOTION TO RECUSE DA’s OFFICE
Hamilton contends the trial court improperly denied his motion to recuse the District Attorney’s Office. Hamilton asserts that prior to his preliminary hearing, with the assistance of a jail employee, he informed Mr. Richmond (the district attorney who originally prosecuted his case) that he wanted to speak with him. Mr. Richmond instructed his chief investigator Mr. Tucker to speak with Hamilton. Mr. Tucker obtained a statement from Hamilton, and Mr. Richmond notified defense counsel of the contact the following day. Deputy district attorney Patrick O’Hara prosecuted the case against Hamilton. Defense counsel instituted disciplinary proceedings against Mr. Richmond with the State Bar of California, which Hamilton alleges created a direct conflict of interest between defense counsel and the District Attorney’s Office.
8
At trial Hamilton’s counsel sought the prosecutor’s recusal on two bases: the prosecutor’s misconduct in communicating with Hamilton without his counsel’s consent, and the bias arising from defense counsel’s complaint against the prosecutor filed with the State Bar. The trial court denied recusal, relying on the fact that Hamilton himself initiated the contact with the prosecutor, questioning whether California Rule of Professional Conduct 7-103, prohibiting contact with a party known to be represented by counsel, applied to a public prosecutor, and questioning whether prosecutorial bias or “ill will” against a defendant constitutes a conflict of interest. RT March 2, 1982:5-18. Hamilton’s counsel appealed this denial, but the claim was rejected by the Fifth District Court of Appeal and the California Supreme Court.
The California Supreme Court, on direct review, found that Hamilton'—
presented no evidence of actual antagonism on the part of the district attorney or any attorney from the prosecutor’s office. He points to nothing in the conduct of the case which suggests bias against him. Under these circumstances the possibility of hidden bias engendered by defense counsel’s complaint to the State Bar is insufficient to overturn the trial court’s ruling.
Hamilton,
48 Cal.3d at 1155-56 , 259 Cal. Rptr. 701 , 774 P.2d 730 .
Hamilton asserts that California law does not exclude from the requirements of Rule 7-103 claims by a represented party who contacted the opposing attorney or claims where the opposing counsel was a public official. Hamilton also contends that the potential for bias was grounds for recusal, and the context of this error in a capital prosecution warrants reversal of his conviction. Hamilton cites
People v. Superior Court (Greer),
19 Cal.3d 255 , 137 Cal.Rptr. 476 , 561 P.2d 1164 (1977) in support of his contention that the prosecutor’s potential for bias justifies recusal.
Greer
states that a conflict disqualifies a District
*1103
Attorney if the conflict either affects or appears to affect his ability to faithfully perform the discretionary functions of his office. However,
Greer
was superceded by statue in 1980.
See People v. Conner,
34 Cal.3d 141, 147-48 , 193 Cal.Rptr. 148 , 666 P.2d 5 (1983). The standard applicable at the time of Hamilton’s trial, from California Penal Code section 1424, stated that a motion to recuse may not be granted unless evidence shows a conflict of interest exists that would render it unlikely the defendant would receive a fair trial.
Hamilton has presented no evidence showing the district attorney had a conflict that affected Hamilton’s ability to receive a fair trial. Hamilton contacted the prosecutor. His counsel made a complaint for misconduct against the prosecutor. There is a total absence of evidence that Mr. O’Hara, Mr. Richmond, or any other prosecutor bore Hamilton any animus, arising out of what are expected and often strategically asserted defense requests for sanctions against prosecutors in criminal cases. The record fairly supports the California Supreme Court’s denial of this claim. Claim 9 is denied on the merits.
7. CLAIM 12: STATE INTERFERENCE WITH TRIAL PREPARATION
Hamilton asserts agents of the State of California, including Tulare County Sheriffs Officers, incited jail inmates against him and housed him with “problem” inmates resulting in threats and assaults. Hamilton states his complaints and legal actions were ineffectual, and he could not sleep, eat, concentrate or communicate effectively with counsel. Hamilton further contends his mental state and competence were adversely affected by the improper administration of drugs.
The record reveals that on May 17,1982, Hamilton requested that he be moved to another cell because of harassment by other inmates. RT May 17, 1982:8-9. Judge Conn stated he would make an informal inquiry into the matter.
Id.
at 10. The record does not contain the result of the judge’s inquiry, however on June 22, defense counsel stated, in response to Hamilton’s
Marsden
motion, that he didn’t have time to get involved in “certain aspects of the jail,” that Hamilton would have to “take a certain amount of ... c_ that they dish out in the way of words,” and that Judge Conn had investigated and did not perceive Hamilton’s treatment as different from other inmates. RT June 22, 1982:16.
As noted-above in Claim 21, neither medical records nor declaration from trial counsel were presented to support Hamilton’s claim of incompetence. Hamilton instead relied on the opinion of Dr. Woods, which concludes that Hamilton’s preexisting mental condition was exacerbated by the drugs he was given, rendering it extremely “unlikely” he was able to make rational decisions. Ex. 48:18.
9
The record does not show any irrational actions by Hamilton during trial, but reveals several occasions where Hamilton responded appropriately and intelligently while conversing with the trial court. See RT May 17, 1982; RT June 22, 1982; RT 10:2374-81; RT December 16, 1982.
Finally and most importantly, Hamilton has not shown that he was unable to understand the nature of the proceedings against him or to assist counsel. To the contrary, Hamilton’s discourses with the trial court demonstrate he was aware of what was occurring and was able to com
*1104
municate his thoughts and opinions to counsel.
The record as a whole fails to support Hamilton’s allegations of state interference and of improper medication. Based on this evidence, defense counsel was not ineffective for failing to further raise Hamilton’s assertions of state interference or issues of improper medication affecting Hamilton’s competence. The record fairly supports the California Supreme Court’s summary denial of this claim. Claim 12 is denied on the merits.
V. TRIAL CLAIMS
— GUILT
PHASE
1. CLAIMS INVOLVING CO-CONSPIRATORS
a. CLAIM 10: INSUFFICIENT EVIDENCE/FACTUAL INNOCENCE
Hamilton asserts that instructions, court comments and argument led the jury to believe the beyond a reasonable doubt standard was not required to determine the viability of the fetus, but instead implied that viability only needed to be proved by a preponderance of the evidence.
10
Hamilton contends there was insufficient evidence of the fetus’s viability, to support the financial gain special circumstance, to support a finding of first degree murder of either Gwen or the fetus, to support a finding that he personally used a firearm, or to establish the alleged aggravating factors.
Hamilton contends, in support of his claim that he did not kill his wife and did not know of the plan to kill her, that prior to the murder he agreed with his sister Carolyn and her friend Gilbert to assist them in the robbery of an unnamed drug dealer. Ex. 62:1, Declaration of Michael Allen Hamilton, dated November 28, 2000. Hamilton asserts his role in the robbery was to buy a shotgun and then after the robbery to fence the stolen goods.
Id.
at 1-2. Hamilton contends that after he heard the police had discovered the paperwork for the shotgun purchase, he asked Carolyn to return the gun so he could turn it in.
Id.
at 9-10. Hamilton states that eventually Carolyn revealed she could not return the gun because Gilbert had disposed of it.
Id.
at 10. When Hamilton replied he had to tell the police about the gun to stay out of trouble, he asserts Carolyn begged him not to, admitting Gilbert had shot Gwen and she had been with him, driving the truck.
Id.
Hamilton asserts defense counsel was ineffective for failing to investigate the timing discrepancy (a minimum of 15 minutes) in Carolyn’s and Gilbert’s accounts between the total time (from when Hamilton and Gwen left and Carolyn returned) and the time required for all the activities they recounted, and for failing to pursue testing to establish the lack of gunpowder residue, blow-back and/or other physical evidence on Hamilton’s clothes or person from firing a shotgun. Hamilton contends prosecutorial misconduct occurred by failing to disclose secret benefits or agreements conferred on witnesses and by the knowing use of perjured testimony when his sister Vicki testified she received no promises regarding the bad check charges.
11
Hamilton points to the following discrepancies in the evidence: the conclusion that Gwen was relaxed and unalarmed despite a vehicle, occupied by people she knew, repeatedly driving by on a lonely road three nights in a row; that Vicki originally said Gilbert was the one who shot Gwen; and differing testimony
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about the color of the shotgun shells. Hamilton also claims that investigation of the driver of the Mustang who drove him to the telephone that night was insufficient in light of his detailed description of the car, that Gilbert had an opportunity to shower after the murder to get rid of any evidence, and that extreme acrimony existed between Hamilton and both his sisters, such that concerted action between them was unlikely and which provided a motive for his sisters to transfer blame for the murder to Hamilton.
In
Herrera v. Collins,
506 U.S. 390 , 113 S.Ct. 853 , 122 L.Ed.2d 203 (1993), the United States Supreme Court assumed for the sake of argument that a “truly persuasive demonstration of ‘actual innocence’ ... would render the execution of a defendant unconstitutional
.Id.
at 417, 113 S.Ct. 853 . However, the Court held that, due to the disruptive effect entertaining a substantive claim of actual innocence would have on the finality of capital cases, “the threshold showing for such an assumed right would necessarily be extraordinarily high.”
Id.
Alternatively, a claim of actual innocence may be a procedural gateway to allow consideration of a constitutional claim otherwise procedurally barred from federal review.
Schlup v. Delo,
513 U.S. 298, 327 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995). Either claim of actual innocence requires the presentation of new, reliable evidence, such as exculpatory scientific evidence, trust-worthy eyewitness accounts, or critical physical evidence.
Id.
at 324 , 115 S.Ct. 851 .
The standard for a substantive actual innocence claim requires the petitioner to show by clear and convincing evidence that no reasonable juror would have found him guilty and/or eligible for the death penalty.
Sawyer v. Whitley,
505 U.S. 333, 339, 350 , 112 S.Ct. 2514 , 120 L.Ed.2d 269 (1992). The standard for a procedural actual innocence claim requires a finding that in light of the new evidence, it is more likely than not that no reasonable juror would have convicted the petitioner.
Schlup,
513 U.S. at 327 , 115 S.Ct. 851 .
Evaluating a request for evidentiary hearing on a claim of actual innocence requires a court to assess the probative force of the new evidence in light of the evidence of guilt presented at trial.
Schlup,
513 U.S. at 331-32 , 115 S.Ct. 851 . This test may consider the timing of the submission and the affiants’ likely credibility when determining the probable reliability of the new evidence.
Id.
at 332 , 115 S.Ct. 851 .
The California Supreme Court addressed the underlying basis for Hamilton’s insufficient evidence allegations on direct appeal, finding that the evidence was sufficient to support the jury’s finding that the fetus was viable, that although the evidence supporting the financial gain special circumstance was relatively weak it was properly admitted and sufficient to support the jury’s true finding, and that although “other aggravating evidence was not overwhelming, the capital crimes themselves were exceptionally brutal.”
Hamilton,
48 Cal.3d at 1185 , 259 Cal.Rptr. 701 , 774 P.2d 730 ;
see also id.
at 1172-73, 259 Cal.Rptr. 701 , 774 P.2d 730 (fetal viability), 1173-79 (financial gain special circumstance), 1185 (aggravating factor evidence) and 1187 (evidence of first degree murder). Hamilton has not pointed to any evidence which, when considered in light of the entire record, undermines the findings of the California Supreme Court. Further, the allegation the jury was mislead to believe that fetal viability could be proved by only a preponderance of the evidence is refuted by the record. The jury instructions expressly state “you must find
beyond a reasonable doubt
that the fetus
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was viable.” RT 10:2322 (emphasis added).
Defense counsel argued the fact that no evidence of blood or gunpowder was found on Hamilton. The implication that the lack of blood cleared Hamilton was undercut by the testimony of criminalist Steve O’Clair stating the lack of blood or blood stains on Hamilton’s clothes or hands was not unusual as it is possible to shoot someone without getting blood on the shooter. RT 9:2033-35. Defense counsel was not ineffective for failing to further test for blood or gunpowder.
The allegation that Carolyn’s and Gilbert’s accounts of the night of the murder lack credibility because of insufficient time to accomplish all they testified to does not establish a claim of actual innocence. The time discrepancies are insignificant. Contrary to Hamilton’s allegations, Carolyn did testify she looked at a clock when Hamilton and Gwen left at 8:45 p.m., RT 8:1912, neither Carolyn nor Gilbert testified Hamilton left at the two-minute warning of the Monday Night Football game, no source was provided to place the time of the two-minute warning at 9:00 to 9:05 p.m., and Gilbert testified he drove past Hamilton’s truck twice, stopping the third time, but only one time drove “a ways” down Terra Bella Road.
12
RT 8:1999-2000. The minimal time discrepancy of fifteen minutes is not sufficient to support even a colorable claim in light of the conflict between the record and the allegations in the petition. Defense counsel was not ineffective for failing to investigate the timing issue.
The argument that Carolyn planned the murder and Gilbert was the actual killer was presented as a defense at trial, RT 10:2273-83, but was rejected by the jury. The allegation that extreme acrimony between Hamilton and his sisters would have made any conspiracy between them unlikely is contradicted by Hamilton’s own declaration, where he contends the purchase of the shotgun and his repeated trips to Port-erville were prompted by an agreement with Carolyn to rob a drug dealer. Ex. 62:1-2.
Beyond Hamilton’s current assertions, no evidence shows his innocence. Even the proposed opinion of Mr. Morion, if rendered as Hamilton contends, would not render it more likely than not that no reasonable juror would have convicted Hamilton.
See
Claim 2a below. The evidence presented at trial overwhelmingly supports Hamilton’s conviction. The record fairly supports the California Supreme Court’s denial of this'claim. Claim 10 is denied on the merits.
b. CLAIM 8: LAW ENFORCEMENT CONFLICT REGARDING GILBERT
Hamilton contends that Detective Salazar’s close friendship with Gilbert and his family resulted in a conflict of interest which affected the investigation and prosecution of this crime. Hamilton asserts that the prosecutorial misconduct set forth in Claim 3 (failure to disclose benefits to Vicki on bad check charges, failure to disclose instructions to Gilbert not to deviate from prior statement) was part of a plan to reduce Gilbert’s culpability for a capital offense and afford him special, lenient treatment. Hamilton argues this plan left reasonable and obvious lines of investigation unexplored, coerced witnesses to reduce Gilbert’s involvement and to give false and misleading testimony against Hamilton.
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Hamilton presents a declaration from Gilbert, stating that his plea agreement included a requirement that he testify truthfully, and that the prosecutor reviewed the statement he made to law enforcement to ensure there was nothing to add. Gilbert declares that when Lilly Bardsley identified him as being at K-Mart when the shotgun was purchased, the prosecutor threatened to withdraw his deal and reinstate the death penalty charges because that evidence made him more involved in the planning of the crime than his confession had admitted. Gilbert states the prosecutor allowed his brother to obtain rebuttal witnesses asserting he was with his child on Halloween afternoon, and then he was allowed to testify.
13
See
Ex. 23.
A recent Ninth Circuit case found pros-ecutorial misconduct justified the presumption of truthfulness of a declaration recanting a co-conspirator’s testimony, and establishing Smith’s actual innocence claim sufficient to excuse his procedural default.
Smith v. Baldwin,
466 F.3d 805 (9th Cir.2006). Smith’s co-conspirator signed two declarations, one seven years after the crime and one twelve years after the crime, recanting his testimony and declaring that Smith was not the killer. The government informed the co-conspirator that if he persisted with a recantation of his trial testimony on federal habeas, the plea agreement would be set aside and he could be subject to capital murder charges for the killing, but that if he reaffirmed his trial testimony identifying Smith as the murderer, the state would not pursue perjury charges against him. After conferring with counsel, the co-conspirator invoked his Fifth Amendment rights and refused to testify in the federal proceedings.
Although the holding of
Smith
appears to apply to this claim, there are significant facts which distinguish
Smith
from Hamilton’s claim. First, Gilbert’s declaration does not in any way clear Hamilton of responsibility for Gwen’s death. There is sufficient evidence that Hamilton was the one who wanted Gwen killed, and that he solicited Carolyn, and through her Gilbert, to assist him. Even assuming Gilbert was the actual shooter, which is
not
supported by any statement in Gilbert’s declaration, Hamilton and Carolyn are still equally guilty of the murder. Second, the State has made no current threat of further prosecution, and has not in any way attempted to suppress the facts presented in Gilbert’s declaration. No evidence presented by Hamilton shows misconduct by the prosecution, or any constitutional error.
Gilbert’s plea agreement required he testify truthfully. The prosecutor’s warning to Gilbert not to deviate from his prior statement was no more than an attempt to ascertain that Gilbert had given the full truth in his statement, and to communicate the expectation that Gilbert must also tell the full truth at trial. The assertion the prosecutor was angry Lilly Bardsley identified Gilbert does not establish that the subsequent rebuttal witnesses presented false, manufactured testimony. The rebuttal witnesses’ testimony was in fact consistent with Gilbert’s testimony on direct examination, given long before Lilly Bardsley identified him, that he had taken his child trick-or-treating prior to going to Carolyn’s house on Halloween. RT 8:1978.
Similarly, Vicki’s testimony, consistent with her declaration, that Detective Salazar talked to the District Attorney to get a
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misdemeanor disposition on her felony check charges, does not establish sufficient basis under
Brady
for failing to disclose benefits regarding her bad check charges.
Brady v. Maryland,
373 U.S. 83, 87 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963). Vicki’s declaration does not say that those benefits were received prior to her testimony at trial.
See
Ex. 22. Even assuming the benefits were given before trial, in light of the benefits which Vicki did disclose to the jury, that she and Stephen received money to fly from Texas to California and for seven months of living expenses, it is unlikely the non-disclosure of any benefit regarding the bad check charges was material to the jury’s evaluation of her credibility. The record fairly supports the California Supreme Court’s summary denial of this claim. Claim 8 is denied on the merits.
c. CLAIM 11: ACCOMPLICE TESTIMONY
Hamilton asserts (1) the trial court erred by refusing to instruct the jury that Vicki was an accomplice as a matter of law, (2) that in light of Lilly Bardsley’s identification of Sharon Burns, the jury should have been instructed to determine whether Sharon also was an accomplice, and (3) that without these errors, the case against him would lack corroboration.
14
The California Supreme Court addressed this claim on direct review, holding the uncontradicted evidence did not show Vicki was an accomplice to murder as a matter of law. Vicki’s participation was limited to two conversations with Carolyn. An aider and abettor as a matter of law must “act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.”
People v. Beeman,
35 Cal.3d 547, 560 , 199 Cal.Rptr. 60 , 674 P.2d 1318 (1984). The state court found the evidence regarding Vicki’s intent ambiguous since she stated she would participate in the murder, suggested the appropriate weapon, but shortly after her statements moved to Texas and did not participate in the murder. Because her actions are subject to a variety of interpretations her accomplice status was properly left for the jury to determine.
Hamilton,
48 Cal.3d at 1169-70 , 259 Cal.Rptr. 701 , 774 P.2d 730 .
The California court did find that whether Sharon Burns was an accomplice should have been submitted to the jury, but found the error was harmless. There was no evidence Sharon intended the killing. The jury could not find Sharon was an accomplice without rejecting her testimony and finding that she did buy the gun. Since an accomplice finding could not be made without rejecting Sharon’s credibility, a subsequent instruction to view her testimony with caution would have little effect. Lastly, even if all Sharon’s testimony was viewed with caution, the prosecution’s case would not have been affected. Sharon testified that Hamilton told her he was unhappy with his sex life with Gwen and wanted a divorce, but considerable other evidence supports that testimony. Shar
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on’s discovery of the shotgun shells in Brenda’s apartment was not significant in the case. And even if the jury concluded that Sharon purchased the gun instead of Brenda, that conclusion would do little to detract from the evidence that Hamilton used the gun to kill his wife.
Hamilton,
48 Cal.3d at 1170-71 , 259 Cal.Rptr. 701 , 774 P.2d 730 .
Hamilton contends that the evidence shows Vicki agreed to join the plan to kill Gwen, suggested the weapon to use, and was to have been the person to do the actual shooting, and that even after her move to Texas she still stated her intent to participate in the murder. Hamilton asserts this evidence makes Vicki equally liable as a co-conspirator, so her testimony was required to be viewed with distrust. Hamilton argues the numerous benefits Vicki received in exchange for her testimony suggest she was an accomplice. Hamilton concludes that had the court instructed Vicki was an accomplice as a matter of law the case against him would have lacked corroboration.
Hamilton further alleges the failure to include Sharon Burns in the accomplice instructions implied that Lilly Bardsley’s identification of her as the purchaser of the gun was not to be believed. Hamilton contends he was prejudiced by this error since the rebuttal identification of Sharon as the gun purchaser cast doubt on the entire version of events given by the prosecution’s witnesses. This notion was rejected because Brenda testified she purchased the gun for Hamilton, Sharon denied purchasing the gun, Brenda’s name was on the gun purchase form, and a handwriting expert confirmed Brenda signed the gun purchase form.
The State asserts the trial court was correct to instruct the jury to determine whether Vicki was an accomplice, since the uncontradicted evidence reveals she was not an accomplice as a matter of law, and that no accomplice instruction regarding Sharon was proper since there was no evidence she knew of Hamilton’s criminal purpose. The State urges that even if the instructions were erroneous, the error was unquestionably harmless since Brenda Burns testified as to Hamilton’s motive, purchase of the gun, and later consciousness of guilt; and the prosecution’s case remained almost unaffected without Sharon’s testimony.
It is undisputed law in California that whether a person is an accomplice is a question of fact for the jury, unless there is no dispute as to either the facts or the inferences to be drawn regarding accomplice status.
People v. Tewksbury,
15 Cal.3d 953, 960 , 127 Cal.Rptr. 135 , 544 P.2d 1335 (1976). Generally, federal habeas relief is not available for errors of state law, unless the error amounts to a deprivation of constitutional rights.
Estelle v. McGuire,
502 U.S. 62, 67-69 , 112 S.Ct. 475 , 116 L.Ed.2d 385 (1991). The denial or misapplication of state procedures implicates a federally recognized liberty interest only if it results in the deprivation of a substantive right.
Olim v. Wakinekona,
461 U.S. 238, 250-51 , 103 S.Ct. 1741 , 75 L.Ed.2d 813 (1983).
Hamilton’s contention, that if Vicki had been included in the accomplice as a matter of law instruction and Sharon included in the accomplice instructions, the result of his trial would have been different, lacks support. The evidence presented at trial of Hamilton’s affair with Brenda; his financial troubles; the life insurance on Gwen; Brenda’s testimony of her purchase of the shotgun for Hamilton and his later attempt to conceal that fact; Jackie Piper’s testimony about his unusual visits to Porterville three days in a row; the inconsistencies in his statements to police and his prevarication about a Canadian suspect were independent evidence and sufficient
*1110
to corroborate the testimony of Carolyn, Gilbert, and Vicki. Nothing in this claim shows that Hamilton was deprived of a constitutional right.
Based on this evidence, defense counsel was not ineffective for failing to further object to the failure to instruct that Vicki was an accomplice as a matter of law or to seek Sharon’s inclusion in the accomplice instructions. The record fairly supports the California Supreme Court’s denial of this claim. Claim 11 is denied on the merits.
d. CLAIMS 2a & u: INEFFECTIVE ASSISTANCE OF COUNSEL ■
Hamilton first asserts that defense counsel was ineffective because he failed to investigate and present evidence that others planned and committed the murder. Hamilton contends there was a conspiracy between Carolyn, Vicki, Jackie and Sam Piper to kill Gwen and then coerce Hamilton into sharing with or loaning them a portion of the insurance proceeds. Hamilton alleges that Jackie, believing she would be repaid by the insurance, funded Vicki’s travel to Texas so Vicki could talk Stephen into shooting Gwen. Hamilton asserts that Carolyn convinced Hamilton to buy the shotgun for another purpose, that when Vicki and Stephen did not return from Texas, Carolyn convinced Gilbert to act as the shooter, and that Vicki contacted the police because Carolyn attempted to exclude her and Stephen from sharing in the insurance. Hamilton states that Patti Ket-chum saw Gilbert “anxiously brush past her” upon returning after the murder, shower and carry away his soiled clothes, Ex. 27, ¶17; Ex. 16, ¶5 (declaration of Ron Stafford), and that Vicki confirmed Gilbert was the one who shot Gwen. RT 9:2050, 2079. Hamilton asserts counsel failed to subpoena phone records of Jackie, Brenda, Hamilton’s residence, and the phone booth to impeach the witnesses’ claims, failed to hire a ballistics expert to show the absence of gun powder residue and blood on his clothes and hands pointed to someone else as the shooter, and failed to locate witnesses to show Hamilton was looking forward to the birth of his fifth child with Gwen and was not in terrible financial straits.
As stated below in Claim 2, in order to establish an ineffective assistance of counsel claim, a petitioner must show: that counsel’s performance was deficient and that the deficiency prejudiced the defense.
Strickland v. Washington,
466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).
Gilbert’s actions as related by Patti Ket-chum (brushing past her and showering) also can be consistent with just witnessing (instead of performing) a murder. Gilbert taking his clothes away does not conclusively imply that gunpowder/blood was on them, but could be seen as reasonable since he was not living with Patti at that time. Vicki’s statement that Carolyn said Gilbert did the shooting was introduced at trial and fully argued by the defense in closing. RT 9:2279-81, 2292. Expert testimony presented the opinion that the lack of gun powder residue and/or blood on Hamilton did not exclude him as the one who shot Gwen.
Id.
at 2034-35. The absence of gun powder residue or blood tying Hamilton to the shooting also was argued by the defense in closing. RT 10:2286. Testimony regarding Hamilton’s history of paying his debts even when money was tight was presented at trial and also argued in closing.
Id.
at 2284, 2287, 2296-97.
Hamilton has presented no evidence supporting the allegation that his mother and step-father, Jackie and Sam Piper, were involved in any way in the conspiracy. As observed by the State, Hamilton has failed to come forward with phone records or witnesses to his happiness about Gwen’s latest pregnancy to
*1111
show prejudice from counsel’s failure to investigate and present this evidence. Even if expert testimony was now presented stating the lack of blood and/or gunpowder residue exculpates Hamilton, this would only cumulate the expert testimony and argument presented to the jury at trial. In light of the damaging testimony by Vicki, Carolyn and Gilbert, the blood spatter and gunpowder residue evidence were not so consequential as to change the outcome. That Carolyn planned the murder and carried it out with Gilbert’s assistance was the main defense Hamilton presented at trial. It was defense counsel’s main argument in closing and was rejected by the jury. The record fairly supports the California Supreme Court’s summary denial of this claim. Claim 2a is denied on the merits.
Second, Hamilton alleges that defense counsel was ineffective because he failed to make motions in limine regarding damaging, inadmissible evidence, the tape of the phone call between Vicki and Carolyn, photos and testimony about the crime scene and victims, and Hamilton’s statements. See Claims 4a and 4b below and Claims 14 and 15 above. As discussed separately, all this evidence was properly admitted. Counsel cannot be ineffective for failing to seek exclusion of this admissible evidence. The record fairly supports the California Supreme Court’s summary denial of this claim. Claim 2u is denied on the merits.
e. CLAIMS 3a(6), (11)
&
(14): IMPROPER ARGUMENT BY PROSECUTOR
Hamilton alleges the prosecutor misstated the law during argument to the jury by expressing his opinion that as a matter of law Vicki could not be prosecuted as an accomplice. Hamilton also alleges the prosecutor improperly argued that Carolyn’s hearsay statement was admitted as a prior consistent statement and could be considered to prove the truth of the matter, when it was admitted only for limited purposes. Lastly, Hamilton alleges the prosecutor misstated witness testimony, e.g., that Carolyn testified Hamilton committed the murder for financial gain, when she gave no such testimony. See Claim 2g below.
A prosecutor’s improper argument does not justify federal habeas relief unless it so infects the trial with unfairness as to make the resulting conviction a denial of due process. “Improper argument does not, per se, violate a defendant’s constitutional rights.”
Thompson,
74 F.3d at 1576 (citing
Darden v. Wainwright,
477 U.S. 168, 181 , 106 S.Ct. 2464 , 91 L.Ed.2d 144 (1986)). Moreover, prosecutorial comments to which a defendant fails to object are reviewed for plain error.
Jeffries,
5 F.3d at 1191 .
First, the prosecutor’s statement that Vicki was not an accomplice as a matter of law was not misconduct as the trial judge made that specific legal ruling in submitting the issue of Vicki’s accomplice status to the jury for decision. The record fairly supports the California Supreme Court’s denial of this claim. Claim 3a(6) is denied on the merits.
Second, defense counsel, during cross-examination of Carolyn, asked whether she told Vicki that Gilbert did the shooting. RT 8:1910. Carolyn denied making such a statement.
Id.
Gilbert also denied being the actual killer.
Id.
at 2022. Later Vicki testified she had “assumed” Gilbert was the killer because she was to have been the shooter and Gilbert took her place in the plot. RT 9:2050. The prosecution then introduced over objection a tape recording of a November 27, 1981 telephone conversation between Vicki and Carolyn, where Carolyn said that Hamilton, not Gilbert, shot Gwen.
Id.
at 2061-63.
*1112
The conversation was admitted as a prior consistent statement under an exception to the hearsay rule.
Id.
at 2062, 2101-02.
Defense counsel’s objection impliedly asserted that Carolyn’s testimony, stating Hamilton and not Gilbert did the shooting, was a recent fabrication made to minimize her and Gilbert’s role in the murder.
Hamilton,
48 Cal.3d at 1168 , 259 Cal.Rptr. 701 , 774 P.2d 730 . The issue is whether the admitted conversation took place “before the bias, motive for fabrication, or other improper motive is alleged to have arisen.”
Id.
The California Supreme Court, addressing this claim on direct appeal, found that at the time Carolyn made the taped statement she had consistently denied all involvement in the crime, but Hamilton was under arrest so she might have already anticipated arrest and reasoned that her involvement in the murder would appear less if Hamilton instead of Gilbert were the triggerman (although this was unlikely).
Id.
The state supreme court observed the testimony did not explore Carolyn’s state of mind at the time of the conversation, so arguably, the prosecution failed to show that the statement was made before the motive for fabrication arose, however, any error was found harmless.
Id.
Hamilton contends the prosecutor improperly urged the taped conversation could be considered to establish the truth of Carolyn’s assertion that Hamilton shot Gwen when in fact it was admitted on a limited basis. The record, however, does not reflect that any limiting instruction was given as to the taped telephone conversation, but in fact the court’s instructions told the jury that prior consistent statements could be considered for the truth of the facts as stated. RT 10:2313. Even assuming, arguendo, this instruction and therefore the argument by the prosecutor were erroneous, Hamilton cannot show prejudice since the taped conversation duplicates testimony given by Carolyn and Gilbert at trial. The record fairly supports the California Supreme Court’s denial of this claim. Claim 3a(ll) is denied on the merits.
Third, the California Supreme Court concluded the prosecutor’s misstatement, attributing the statement to live testimony instead of the tape which was played for the jury, did not prejudicially affect the outcome of the trial because it was clear that Carolyn said Hamilton wanted to kill Gwen for money.
Hamilton,
48 Cal.3d at 1178 , 259 Cal.Rptr. 701 , 774 P.2d 730 . The record fairly supports the California Supreme Court’s denial of this claim. Claim 3a(14) is denied on the merits.
f. CLAIMS 3b(l), (2) & (4): KNOWING USE OF PERJURED TESTIMONY
Hamilton asserts the prosecution presented perjured testimony by failing to disclose consideration given to Vicki and Carolyn, and by insisting that Gilbert not deviate from his prior statement.
Under
Brady v. Maryland,
373 U.S. 83, 87 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), “the suppression by the prosecution of evidence favorable to an accused
[Brady
evidence] violates due process where the evidence is material either to guilt or to punishment.” There are two general types of
Brady
evidence: knowing use of perjured testimony, and failure to disclose exculpatory evidence.
United States v. Agurs,
427 U.S. 97 , 96 S.Ct. 2392 , 49 L.Ed.2d 342 (1976);
United States v. Bagley,
473 U.S. 667, 678 , 105 S.Ct. 3375 , 87 L.Ed.2d 481 (1985).
Presentation of false evidence violates due process and requires a new trial.
Mooney v. Holohan,
294 U.S. 103, 112 , 55 S.Ct. 340 , 79 L.Ed. 791 (1935). This is so
*1113
even where the prosecution does not solicit the false information but only allows it to go uncorrected,
Napue v. Illinois,
360 U.S. 264, 269 , 79 S.Ct. 1173 , 3 L.Ed.2d 1217 (1959), irrespective of the good or bad faith of the prosecution.
Brady,
373 U.S. at 87 , 83 S.Ct. 1194 . “The principal [underlying
Brady
] is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted, but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.”
Id.
The knowing use of perjured testimony is material “if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.”
Brady,
373 U.S. at 87 , 83 S.Ct. 1194 ;
Agurs,
427 U.S. at 103 , 96 S.Ct. 2392 . This is equivalent to the
Chapman v. California,
386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967) harmless error standard.
Bagley,
473 U.S. at 679 -80 n. 9, 105 S.Ct. 3375 .
See also Napue,
360 U.S. at 267 n. 2 and 271-72, 79 S.Ct. 1173 (finding the primary witness testified falsely, the prosecutor knew he did so, and in light of the record showing insufficient evidence without the witness’s testimony, a new trial was required).
Hamilton alleges the prosecution failed to disclose consideration given to Vicki in exchange for her testimony, specifically that she would not be prosecuted for conspiracy to commit capital murder; that she received a favorable disposition of insufficient fund cheek charges pending against her (i.e., her warrants were cleared, and a misdemeanor disposition was secured on felony charges); that Stephen was not deported; and that she was protected from loss and/or prosecution for an accident while driving a police vehicle. Ex. 22. As discussed in Claim 8 above, it is unclear that the favorable disposition of the bad check charges occurred before her testimony, and even if it did, in light of the benefits of airfare from Texas to California and seven months of living expenses she received which were disclosed, it is unlikely the additional disclosure would have been material. Similarly, Vicki’s statement in her declaration that the prosecutor agreed not to deport Stephen is cumulative of impeachment evidence which was disclosed, and not material to her credibility. Lastly, that Vicki was not held responsible for the alleged accident in Detective Salazar’s vehicle is not material to her credibility. It is not reasonably likely that any of the alleged undisclosed benefits, individually or collectively, even if they had been disclosed to the jury, would have affected the judgment. The record fairly supports the California Supreme Court’s summary denial on state habeas of this claim. Claim 3b(l) is denied on the merits.
Hamilton asserts consideration was given to Carolyn in the form of favorable treatment while she was in custody and special treatment for her and her son J.R. which was not disclosed. Ex. 25. Hamilton contends the undisclosed benefits were that Carolyn’s son was allowed to visit her in jail and a picture of them together was taken; that Carolyn was allowed to wait in a jury room prior to a hearing where Gilbert’s family brought them food; and that Carolyn was allowed out of her cell more than other people charged with murder before the trial.
Even assuming these alleged benefits were bestowed to Carolyn, in light of the damaging disclosures she made about her involvement in the murder, it is unlikely the disclosure of these minor benefits were material to her credibility or would have affected the judgment of the jury. The record fairly supports the California Supreme Court’s summary denial on state
*1114
habeas of this claim. Claim 3b(2) is denied on the merits.
Hamilton contends the prosecution made it a condition of Gilbert’s plea bargain that he not deviate in his testimony from the prior statement given to the police, which allegedly precluded the defense from discovering Gilbert’s ability to describe the shooting in vivid detail, to impeach his trial testimony. Ex. 23. As discussed in Claim 8 above, the prosecutor’s requirement that Gilbert not deviate from his prior statement was not misconduct. For a prosecutor to condition immunity on the witness testifying truthfully and not committing perjury is not prohibited. No limit was placed by the court on the type of cross-examination of Gilbert at trial. The record fairly supports the California Supreme Court’s summary denial on state habeas of this claim. Claim 3b(4) is denied on the merits.
g. CLAIMS 3c(8) & (9):
BRADY
VIOLATION
Hamilton asserts the prosecutor’s failure to disclose the requirement that Gilbert adhere to his prior statement, as well as the additional benefits granted to Vicki violated
Brady .
As discussed in Claims 3b(2), 3b(4) and 8 above, even assuming the prosecutor should have disclosed the disputed evidence, it was not material and its lack of disclosure did not violate due process in light of the extent of the benefits which were disclosed to the jury. Defense counsel was free to inquire whether any limits had been placed on Gilbert’s testimony. The record fairly supports the California Supreme Court’s summary denial on state habeas of this claim. Claims 3c(8) and (9) are denied on the merits.
h. CLAIM 3e: PATTERN OF PROS-ECUTORIAL MISCONDUCT
Hamilton contends the prosecutor engaged in a pattern of misconduct, in order to shift the blame for Gwen’s murder from Gilbert to Hamilton, by requiring that Gilbert not deviate from his prior statement, see Claim 8 above, and by coercing Brenda Burns to make a statement consistent with the prosecution theory and to testify in accordance with that statement although it did not reflect her recollection. See Claim 3b(3) below. As discussed above, a requirement that Gilbert not deviate from his statement does not provide the basis for constitutional error. As discussed below, the record does not support the allegation that Brenda’s testimony was coerced. The record fairly supports the California Supreme Court’s summary denial on state habeas of this claim. Claim 3e is denied on the merits.
i.CLAIM 4a: ADMISSION OF HEARSAY
Hamilton argues the taped conversation between Vicki and Carolyn was admitted in violation of California law. Hamilton asserts admission of a hearsay statement under the prior consistent statement exception requires either that there was an intervening inconsistent statement admitted to attack credibility, or that a charge of recent fabrication or bias has been made and the statement was made before any motive to fabricate arose. Hamilton contends the phone call between Vicki and Carolyn that was played for the jury failed to meet either of these requirements.
Federal courts have no authority to review claims that a state’s evidentiary rules were violated, but can only determine if the admission of evidence rendered the trial so fundamentally unfair as to violate due process.
McGuire,
502 U.S. at 72 , 112 S.Ct. 475 ;
Windham v. Merkle,
163 F.3d 1092, 1103 (9th Cir.1998). Even if evidence was admitted in violation of a state rule of evidence, due process is not violated unless the evidence is “of such quality as necessarily prevents a fair trial.”
Id.
at
*1115
1103 (citing
Kealohapauole v. Shimoda,
800 F.2d 1463, 1465 (9th Cir.1986)). However, a state court finding that an eviden-tiary admission was harmless error is a question of law or a mixed question of law and fact, not a factual finding entitled to a presumption of correctness.
Dickson v. Sullivan,
849 F.2d 403, 405 (9th Cir.1988).
The California Supreme Court addressed this claim on direct appeal, finding that although the evidence showed defense counsel implied Carolyn’s statement from the taped phone call, that Hamilton not Gilbert did the shooting, was a recent fabrication the prosecution arguably failed to show the statement was made before the motive for fabrication arose by not exploring Carolyn’s state of mind. The state high court found that any error, however, was harmless. The California Supreme Court found although Carolyn’s statement rebutted Hamilton’s theory that Gilbert fired the fatal shots, the admission of the taped conversation was not significant due to the absence of any evidence to support Hamilton’s theory. Even if the taped conversation had been excluded, the jury would still have heard the testimony of Carolyn and Gilbert that Hamilton was the actual killer, their unequivocal denial that Gilbert was the killer, and no contrary testimony or evidence whatever.
Hamilton,
48 Cal.3d at 1166-68 , 259 Cal.Rptr. 701 , 774 P.2d 730 .
The State contends the taped conversation was properly admitted to counter the defense’s charge of recent fabrication, since any motive to fabricate did not arise until Carolyn was confronted with her involvement in the murder when she was arrested. The State asserts even if the taped conversation was admitted in error, it was harmless since there was no evidence that Gilbert shot Gwen and the evidence against Hamilton was strong.
From a temporal and logical perspective, Carolyn had no incentive to falsely accuse Hamilton shortly after the murder. The exact time of Carolyn’s prior statement, and whether it was made before any motive to fabricate arose, was not precisely established. Even if the statement was not made before a motive to fabricate arose, the admission of the taped conversation did not render Hamilton’s trial fundamentally unfair. Both Carolyn and Gilbert testified at trial to the same matters discussed in the taped conversation, that Hamilton was the one who actually shot Gwen. Even assuming the taped conversation was erroneously admitted, it does not justify habeas relief. The record fairly supports the California Supreme Court’s denial of this claim. Claim 4a is denied on the merits.
2. CLAIM 2: INEFFECTIVE ASSISTANCE OF COUNSEL AT GUILT PHASE
A petitioner must satisfy two components to establish an ineffective assistance of counsel claim: that counsel’s performance was deficient and that the deficiency prejudiced the defense.
Strickland,
466 U.S. at 687 , 104 S.Ct. 2052 ;
Wiggins v. Smith,
539 U.S. 510, 521 , 123 S.Ct. 2527 , 156 L.Ed.2d 471 (2003). The deficient performance prong requires a showing that counsel’s errors were so serious that he was “not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Strickland,
466 U.S. at 687 , 104 S.Ct. 2052 . The question is whether “counsel’s representation fell below an objective standard of reasonableness.”
Id.
at 688 , 104 S.Ct. 2052 . There is a “strong presumption that counsel’s performance falls within the ‘wide range of reasonable professional assistance.’ ”
Kimmelman v. Morrison,
477 U.S. 365, 381 , 106 S.Ct. 2574 , 91 L.Ed.2d 305 (1986) (quoting
Strickland,
466 U.S. at 689 , 104 S.Ct. 2052 ). Every effort must be made to “eliminate the distorting effects of hind
*1116
sight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”
Strickland,
466 U.S. at 689 , 104 S.Ct. 2052 ;
Bonin v. Calderon,
59 F.3d 815, 833 (9th Cir.1995).
In order for counsel’s inadequate performance to constitute a Sixth Amendment violation, a petitioner must show counsel’s failures prejudiced his defense.
Wiggins,
539 U.S. at 534 , 123 S.Ct. 2527 (citing
Strickland,
466 U.S. at 692 , 104 S.Ct. 2052 ). The prejudice prong requires a showing of reasonable probability that without counsel’s unprofessional errors the “result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Strickland,
466 U.S. at 694 , 104 S.Ct. 2052 .
Hamilton presents the following instances which he claims resulted in ineffective assistance of counsel:
a. failure to investigate and present evidence that others planned and committed the murder,
b. failure to investigate and present mitigation (psychological disorders, physical/sexual abuse, addiction),
c. failure to investigate and present issues from Claims 5-7, 10-15, 20-21 (impartial jury, juror misconduct, unreliable penalty, factual innocence,
15
accomplice testimony, state interference with trial, illegal arrest, coerced statements,
Miranda
violations, improper aggravation, incompetence),
d. failure to object to admission of hearsay evidence regarding financial gain special circumstance,
e. failure to object to instruction on financial gain special circumstance and accomplice corroboration,
f. failure to object to instruction regarding motive,
g. failure to object to prosecutor’s misstatement of evidence regarding financial gain,
h. failure to object to prosecutor’s misleading argument that no mitigation equals aggravation,
i. failure to object to prosecutor’s argument in favor of the death penalty based on mathematical weighing,
j. submission of erroneous instructions regarding financial gain special circumstance and accomplice corroboration,
k. failure to investigate and present guilt/penalty issues,
l. failure to research and demonstrate the death penalty is excessive based on inter-proportionality,
m. failure to research and demonstrate the death penalty is excessive based on intra-proportionality,
n. failure to prepare defense to aggravation,
o. failure to investigate and present evidence of deal with prosecution witness,
p. failure to adequately cross-examine accomplice witnesses,
16
q. failure to investigate and present forensic evidence of Hamilton’s innocence in the shooting,
17
r. failure to investigate and present evidence of unequal treatment of accomplices,
s. failure to impeach and exclude witness testimony,
t. failure to object to jury composition,
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u. failure to make motions in limine regarding damaging, inadmissible evidence (tape of phone calls, crime scene and victim photos and testimony, Hamilton’s statements, evidence seized in violation of Fourth Amendment),
v. failure to obtain discovery,
w. failure to object to prosecutor’s and judge’s misstatements during voir dire,
x. failure to investigate constitutionality of means to prepare jury roll,
y. failure to prevent continuation of conduct in section XIII,
18
z. failure to raise incompetence,
19
aa. failure to procure psychological/neurological exam, research and present evidence of sanity, incompetence or diminished capacity,
20
ab. failure to prosecute writs regarding denial of change of venue,
ac. failure to cross-examine regarding gun powder residue tests,
21
ad. failure to adequately prepare for closing argument,
ai.
22
failure to object to admission of damaging, inadmissible evidence (knife, disc removed from body, shotgun and shells),
aj. failure to object to admission of excluded news reports and their use in closing argument,
ak. failure to object to prosecutor’s argument in closing of facts not in evidence and of excluded evidence, in effect “testifying” as a criminal law expert,
ai. unreasonable stipulation to use of Carolyn’s taped statement, the only statement that Hamilton wanted his wife killed for the insurance money,
am. unreasonable stipulation to use of prior testimony at penalty instead of recalling witnesses to point out inconsistencies in testimony,
an. failure to object at penalty to evidence regarding Hamilton’s prior crime,
ao. lack of competence — no assistance, conflicting caseload, and first capital trial,
ap. appellate counsel’s failure to raise federal grounds, instead relying on state grounds,
aq. failure to interview known witnesses,
ar. inadequate knowledge of relevant law,
as. failure to object to prosecutor’s inaccurate and out of context statements,
at. failure to investigate to support tactical decision for any alleged error.
The State urges that all but seven sub-claims should be dismissed because they are conclusory and fail to state a prima facie case.
23
Hamilton’s points and authorities address the failure of counsel to properly investigate his background and mental state (subclaim b: failure to investigate and present mitigation, i.e., psychological disorders, physical/sexual abuse, addiction and subclaim aq:- failure to interview known family and other mitigation witnesses), his incompetence (subclaim c: Claim 21-failure to raise incompetence), and his mental state at the time of the murder (subclaim b: failure to investigate and present mitigation). Subclaims a, b, o
*1118
and aq are argued in the petition. See pages 7-12, 12-15, and 16-17. Sufficient reference is made in the petition and/or the state record to determine the bases for subclaims c, g, h, i, 1, m, p, u, y, ab, ac, ad, ai, aj, al, and ao.
Subclaims d, e, f, j, k, n, r, s, t, v, w, x, ak, am, an, ap, ar, as, and at, to the extent that they present allegations not discussed in other claims, are denied on the merits as they fail to state a prima facie claim upon which relief may be granted. Sub-claims a and u are discussed above with the claims involving Hamilton’s co-conspirators. Subclaim c is discussed in Claims 5-7, 10-15, 20 and 21. Subclaim ab is discussed above in the analysis of Claim 1. Subclaims p, q, y, z, aa, ac, ae, af, ag, and ah are denied on the merits as they present claims which are included in other subclaims of Claim 2.
g. FAILURE TO OBJECT TO PROSECUTOR’S MISSTATEMENT OF EVIDENCE REGARDING FINANCIAL GAIN
In his closing argument during the guilt phase, the prosecutor stated Carolyn Hamilton “testified on the stand” that the killing was for money and that she “told Vicki that [Hamilton] was going to kill Gwendolyn for the insurance money.” RT 10:2256. Hamilton alleges defense counsel’s failure to object to this misstatement constitutes ineffective assistance of counsel.
The California Supreme Court addressed this claim on direct appeal, finding that defense counsel’s failure to object to the prosecutor’s misstatement of financial gain evidence during closing argument did not constitute ineffective assistance of counsel since it did not result in the withdrawal of a potentially meritorious defense.
Hamilton,
48 Cal.3d at 1177 , 259 Cal.Rptr. 701 , 774 P.2d 730 . The state court found, in spite of the fact that Carolyn made this statement to a police detective instead of to her sister and that it came before the jury through a taped confession instead of direct testimony, that it was clear she stated that Hamilton stated he wanted to kill his wife for the money, so the credibility of the statement was not significantly affected.
Id.
at 1178 , 259 Cal.Rptr. 701 , 774 P.2d 730 . The state court concluded that the prosecutor’s misstatement, and defense counsel’s failure to object to it, did not prejudicially affect the outcome of the trial.
Id.
Hamilton does not present any offer of proof or other showing which indicates defense counsel’s failure to object resulted in ineffective assistance of counsel, nor that in any other way refutes the state court’s analysis of the record. The record fairly supports the California Supreme Court’s summary denial of this claim. Claim 2g is denied on the merits.
o. FAILURE TO INVESTIGATE AND PRESENT BENEFITS GIVEN TO PROSECUTION WITNESS
Hamilton alleges defense counsel’s failure to uncover evidence of the prosecution’s undisclosed consideration to Vicki in exchange for her testimony resulted in ineffective assistance of counsel. See Claims 3b(l) and (8) above. As discussed above, there was no prosecutorial misconduct, so defense counsel cannot have provided ineffective assistance by failing to uncover the alleged additional benefits.
Hamilton does not present any offer of proof or showing which indicates defense counsel’s actions resulted in ineffective assistance of counsel. The record fairly supports the California Supreme Court’s summary denial of this claim. Claim 2o is denied on the merits.
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ad. FAILURE TO ADEQUATELY PREPARE FOR CLOSING ARGUMENT
Hamilton argues that defense counsel’s failure to prepare for closing argument resulted in a rambling, nearly incoherent presentation which left major inconsistencies and arguments unaddressed. Review of defense counsel’s closing argument reveals not a “rambling, nearly incoherent presentation,” but repeated attacks on inconsistencies in the testimony of Carolyn, Gilbert and Vicki, bolstering the theory that they planned and carried out Gwen’s murder and then framed Hamilton.
Hamilton does not present any offer of proof or showing which indicates defense counsel’s actions resulted in ineffective assistance of counsel. The record fairly supports the California Supreme Court’s summary denial of this claim. Claim 2ad is denied on the merits.
ai FAILURE TO OBJECT TO ADMISSION OF DAMAGING, INADMISSIBLE EVIDENCE
Hamilton contends defense counsel’s failure to object to the admission of damaging, inadmissible evidence, including a knife, shot cups removed from Gwen’s body, the shotgun pieces, and shotgun shells, was unreasonable and resulted in ineffective assistance of counsel. Hamilton asserts testimony established the knife had no connection to the case, the shot cups were not identified and had no foundational chain of custody, and the shotgun and shells were not shown to have been used in the murder.
The knife, People’s Exhibit No. 29, was taken from Hamilton at the crime scene, tested by criminologist Steven O’Clair and determined not to have made the hole in the tire of Hamilton’s pickup truck. RT 8:1769; RT 9:2029-30. The shot cups (which are the part of shotgun shells that hold the pellets together until they leave the barrel of the gun, RT 8:1771) were removed from Gwen’s neck and chest during the autopsy, tested by O’Clair and determined they could have come from a 12-gauge shotgun with number 8 shot. RT 8:1770-71, RT 9:2031-33. The shotgun parts were found where Gilbert said he disposed of them, RT 7:1966, RT 8:2008-09. The serial number on the recovered shotgun part matched the serial number on the ATF form of the sale to Brenda Burns on October 31, 1981. RT 8:1777-78; 1788.
Hamilton does not present any offer of proof or showing which indicates any undue prejudice from admission of this. evidence, or that defense counsel’s failure to object resulted in ineffective assistance of counsel. Further, Hamilton does not present any basis for the allegation that any of this evidence was inadmissible. See Claim 4e and f below. The record fairly supports the California Supreme Court’s summary denial of this claim. Claim
2ai
is denied on the merits.
aj. FAILURE TO OBJECT TO ADMISSION OF EXCLUDED NEWS REPORTS, USE IN CLOSING ARGUMENT
24
Hamilton contends defense counsel failed to object when a properly excluded news release was put into evidence, and again failed to object when the prosecutor referred to that evidence in closing argument.
Review of the record reveals defense counsel did object to the admission
*1120
of the news release into evidence, and the trial court ruled it was not admitted. RT 9:2100. Review of the prosecutor’s arguments to the jury reveals that although reference was made to the news release, the argument was based on the testimony of Lt. Byrd, who related Hamilton’s statement that he knew Gwen was shot with a shotgun because he saw a news release, and indicating the news release stated Gwen was shot, but did not reveal the type or caliber of weapon. RT 10:2263, RT 7:1700-01. These references to a news release were invited by Hamilton’s post-arrest statement to Lt. Byrd which made reference to the news release as bearing on whether such a news release existed as related to the credibility of Hamilton’s post-arrest statement. The record fairly supports the California Supreme Court’s summary denial of this claim. Claim 2aj is denied on the merits.
al. UNREASONABLE STIPULATION TO USE CAROLYN’S TAPED STATEMENT
Hamilton contends that the tape of Carolyn’s November 27, 1981 confession to

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2568116. Public record. Not legal advice.