Full opinion text
MEMORANDUM BLAKE, District Judge. On August 17, 1990, petitioner John Booth-El was sentenced to death for his role in the murders of Irvin and Rose Bronstein. Currently before the court is Booth-El’s Petition for Writ of Habeas Corpus. After considering the parties’ briefs and arguments, the court concludes that the removal of diminished capacity as a result of intoxication as a statutory mitigating factor at Booth-El’s 1990 re-sentencing violated the Ex Post Facto Clause. Accordingly, it will grant relief as to that claim. Booth-El’s remaining claims either were procedurally defaulted or do not provide a basis for relief. For the reasons that follow, therefore, the court will grant in part the Petition for Writ of Habeas Corpus. BACKGROUND On May 20,1983, the bodies of Irvin and Rose Bronstein were found in the living room of their West Baltimore home. Both were bound and gagged. Each had been stabbed twelve times. Their home had been ransacked. Property, including televisions, jewelry, and a 1972 Chevrolet Impala, was missing. Petitioner, John Booth-El, (“Booth-El”), and William “Sweetsie” Reid, (“Reid”), were charged with the murders. Booth-El’s first trial in 1984 ended in a mistrial because the prosecution had failed to turn over certain information prior to trial. Booth v. State, 301 Md. 1, 481 A.2d 505 (1984) (“Booth I ”). In a second trial held in the fall of 1984, Booth-El was convicted of first degree murder of Mr. and Mrs. Bronstein as well as two counts of robbery and one count of conspiracy. He was sentenced to death for the murder of Mr. Bronstein. Appellate Proceedings On direct appeal Booth-El argued that: 1. The trial judge erred in refusing to strike for cause a juror who had heard that a prior guilty verdict had been reversed and who stated that he would give greater weight to the testimony of a police officer. 2. The trial judge erred by refusing to order a psychiatric evaluation of Veronda Mazyck, a state’s witness. 3. The trial judge erred in admitting testimony by Eddie Smith that Reid admitted to killing some white people. 4. The trial judge gave an incorrect jury instruction on premeditation. 5. There was insufficient evidence to support the conspiracy to commit robbery conviction. 6. The trial judge improperly excluded potential jurors who opposed the death penalty. 7. The trial judge gave an erroneous instruction regarding the inferences that could be drawn from the possession of stolen property. His conviction and sentence were affirmed by the Maryland Court of Appeals. Booth v. State, 306 Md. 172, 507 A.2d 1098, 1103 (1986) (“Booth II”). The United States Supreme Court reversed the death sentence, finding the requirement of victim impact statements at sentencing violated the Eighth Amendment. Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), overruled by Payne v. Tennessee, 501 U.S. 808, 828-830, 111 S.Ct. 2597, 2610-11, 115 L.Ed.2d 720-(1991). A new sentencing proceeding was held in 1988, and Booth-El again was sentenced to death. The sentence was vacated by the Maryland Court of Appeals because the trial judge had refused to admit evidence relating to parole eligibility. Booth v. State, 316 Md. 363, 558 A.2d 1205 (1989) (“Booth III”). A third sentencing proceeding was conducted in the summer of 1990. Again, a death sentence was imposed. On direct appeal, Booth-El argued that: 1. The trial judge erred in giving an Allen-type instruction. 2. The trial judge erred by not bifurcating the sentencing proceeding. 3. His right to present mitigating evidence was violated by the trial judge’s refusal to list non-statutory mitigating factors on the sentencing form and by the judge’s refusal to allow him to testify under oath as to mitigating factors only. 4. The trial judge erred by not allowing the jury to consider imposition of a sentence of life without parole. 5. The trial judge erred in refusing to list on the sentencing sheet as a mitigating factor that the murder was committed while his capacity was substantially impaired by intoxication. 6. His right to allocution was unfairly denigrated by the trial judge’s instruction and the prosecutor’s closing argument. 7. The trial judge erred by allowing the prosecution to reveal remarks Booth-El made during allocution in the 1984 sentencing proceedings. 8. There was insufficient evidence to support the finding that he was a principal in the first degree. 9. There was plain error in the jury instruction on joint principals in the first degree. 10. The trial judge erred by refusing to allow three defense witnesses to testify as experts. 11. The trial judge erred by striking testimony that Booth-El has been raped while at Boys’ Village. 12. The trial judge erred by not allowing Veronda Mazyck’s probation officer to offer an opinion as to Ms. Mazyck’s credibility. 13. Remarks by the prosecutor during rebuttal deprived him of a fair sentencing hearing. 14. The trial judge erred by refusing to recuse himself. The sentence was affirmed by the Maryland Court of Appeals. Booth v. State, 327 Md. 142, 608 A.2d 162 (1992) (“Booth IV”). Certiorari was denied by the United States Supreme Court in the fall of 1992. Booth v. Maryland, 506 U.S. 988, 113 S.Ct. 500, 121 L.Ed.2d 437 (1992). On July 12, 1993, Booth-El, through counsel, filed a petition for post-conviction relief in the Circuit Court for Baltimore City. In it he asserted: 1. Ineffective assistance of counsel during the guilt/innocenee trial for: a. Failing to present forensic evidence to rebut the State’s theory of premeditation. b. Failing to impeach the testimony of Eddie Smith, Veronda Mazyck, and Jewell Edwards Booth. c. Failing to investigate and develop the alternative theory of the case that the Bronsteins were killed by three men observed jumping a fence on the evening of the murders. d. Failing to object to a jury pool which contained a biased and prejudiced panel. e. Failing to ensure he received the maximum number of peremptory challenges then permitted by Maryland law. f. Failing to request the removal of a juror — Gail Graves — who during the trial indicated she was afraid of being on the jury. g. Failing to preserve any objections to the voir dire other than Witherspoon issues and bifurcation. h. Committing errors which, collectively, deprived him of a fair trial and amounted to ineffective assistance. 2. Ineffective assistance of guilt/innocence appellate counsel for: a. Failing to order a complete transcript of the 1984 voir dire proceedings. b. Failing to raise on appeal the issue of bias by the second jury panel. c. Failing to raise on appeal the issue of the number of peremptory strikes. d. Failing to raise on appeal the fact that, while two members of the second jury panel stated they had heard other panel members speaking about the case, no one on the panel admitted to having the conversations. e. Committing errors which, collectively, prejudiced the outcome of the appeal and amounted to ineffective assistance. 3. Ineffective assistance of sentencing counsel for: a. Failing to use the proper death qualification standard during voir dire. b. Failing to preserve voir dire objections by using all peremptory strikes and objecting to the jury panel. c. Failing to object to the prosecutor’s reference to Booth-El as a “serial killer.” d. Committing errors which, collectively, deprived him of a fair hearing and amounted to ineffective assistance. 4. Ineffective assistance of sentencing appellate counsel for: a. Failing to raise as an issue the striking of a juror, Laurel Gilbert, who indicated she had changed her mind about the death penalty. b. Failing to raise the issue of the availability of Veronda Mazyck. c. Failing to fully argue Judge Ange-letti’s refusal to recuse himself. d. Failing to raise as an issue the prosecutor’s use of the term “serial killer.” e. Failing to raise as an issue Judge •Angeletti’s ex parte communication with Ms. Gilbert. f. Committing errors which, collectively, prejudiced the outcome of the appeal and amounted to ineffective assistance. 5. The prosecution withheld evidence, i.e., statements and an affidavit by Darryl Brooks and information concerning possible involvement by Charles Westry, in violation of the Brady rule. 6. Violation of his due process right to a fan- trial because: a. The second jury panel was contaminated with extrinsic information by their discussions of the case. b. Ms. Graves was allowed to remain on the jury after she indicated a predisposition to find Booth-El guilty by voicing fear. c. The failure of appellate counsel to raise issues concerning jury selection amounted to a constructive denial of the right to counsel. d. The prosecution committed misconduct by: i) coaching Veronda Mazyck’s 1984 trial testimony and failing to make a good faith effort to find her in 1990 for the re-sentencing, ii) manipulating the testimony of Eddie Smith, a witness at the 1990 re-sentencing, to incriminate Booth-El, in) coaching and threatening Jewell Edwards Booth in order to obtain inaccurate testimony at both the 1984 trial and 1990 re-sentencing, iv) engaging in conduct which, cumulatively, biased the outcomes of the 1984 trial and 1990 re-sentencing. 7. Violation of his Miranda rights in connection with a statement given to police on May 18,1983. 8. Judge Angeletti’s phone conversation with a juror, Laurel Gilbert, and subsequent striking of her without allowing counsel an opportunity to rehabilitate her, violated Booth-El’s right of confrontation. Booth-El filed a pro se amendment to his post-conviction petition on March 18, 1994. In it he asserted: 1.The trial court gave an erroneous reasonable doubt instruction in the 1984 guilt/innocence trial. 2. During the guili/innocence trial the prosecution knowingly used false, perjured or misleading testimony by Jewell Booth and Veronda Mazyck; withheld evidence relating to the credibility of Ms. Mazyck; and withheld evidence relating to a pair of gloves found at the crime scene. 3. He was denied the right to be tried by a jury of his peers as defined in the Dred Scott decision. 4. He was denied the right to confront and cross examine witnesses when a statement by Willie Reid was introduced without a showing that Mr. Reid was unavailable. 5. Unspecified ineffective assistance of counsel. 6. Maryland sentencing procedures in capital cases are constitutionally deficient because they do not provide for a “mercy option.” 7. The death penalty was sought in this case for racially biased reasons and is constitutionally disproportionate to other sentences for first degree murder in Baltimore City. A hearing was held over several days in March 1994 in front of the Honorable Kathleen O’Ferrall Friedman. On December 22, 1994, Judge Friedman denied relief. (State’s Answer, Ex. 52.) A timely application for leave to appeal was denied by the Maryland Court of Special Appeals on March 7, 1995. (Id., Ex. 53.) A motion for reconsideration was denied on May 12, 1995. Certiorari was denied by the United States Supreme Court on October 2, 1995. Booth v. Maryland, 516 U.S. 897, 116 S.Ct. 251, 183 L.Ed.2d 176 (1995). On April 3, 1996, Booth-El, through counsel, filed a motion to reopen the post-conviction proceedings. In it he requested the proceedings be reopened to address issues raised in his original petition but not addressed by the court; and to address 1) a Brady violation; 2) the improper use of Ms. Mazyck’s trial testimony in the 1990 sentencing proceedings; 3) the trial judge’s refusal to recuse himself; 4) the trial judge’s conduct during the sentencing proceedings, which violated his right to a fair trial; and 5) his contention that it would be unconstitutional to execute him twelve years after he was first sentenced to death. (State’s Answer, Ex. 61.) Booth-El filed a pro se Amendment to the motion to reopen which presented legal argument but no new claims. (Id., Ex. 66.) Judge Friedman denied the motion to reopen on April 22, 1997. (Id., Ex. 69.) Booth-El filed a timely application for leave to appeal to the Maryland Court of Appeals. On June 30, 1997, the Maryland Court of Appeals granted the application for leave to appeal and affirmed Judge Friedman’s decision on all claims except for the one involving Brady material. On that claim it vacated her decision and remanded for consideration of the merits of the claim. Booth v. State, 346 Md. 246, 696 A.2d 440 (1997). An evidentiary hearing was held on the Brady issue on October 16, 1997. On January 20, 1998, Judge Friedman issued a memorandum opinion denying relief on the Brady issue. Booth-El again sought leave to appeal. His application was denied on April 7,1998. Booth v. State, 349 Md. 421, 708 A.2d 681 (1998) (“Booth V”). Booth-El’s Habeas Claims In this, his first federal habeas corpus petition, Booth-El raises the following claims: 1. He was denied due process when the trial judge refused to bifurcate the 1990 sentencing proceedings so that the jury would determine whether he was a first degree principal before any evidence regarding aggravating and mitigating factors was presented. 2. He was denied the right to have the sentencing jury consider all relevant mitigating evidence because the trial judge: a) refused to fist certain non-statutory mitigating factors on the sentencing form; and b) the trial judge refused to allow him to testify under oath as to mitigating factors only. 3. The 1983 change to the Maryland death penalty statute that removed intoxication from the list of statutory mitigating factors violated the Ex Post Facto Clause. 4. The trial judge erred by giving an instruction on joint principals in the first degree, because there was no evidence of joint first-degree principalship. 5. There was insufficient evidence to support the finding that Booth-El was a first degree principal in the murder of Mr. Bronstein. 6. Not allowing the sentencing jury to consider the option of a sentence of life without parole deprived him of due process and rendered the sentencing proceedings unreliable in violation of the Eighth and Fourteenth Amendments. 7. The trial judge erred in giving an Allen-type charge to the sentencing jury after it indicated that it was split on whether Booth-El was a first degree principal. 8. His constitutional right to confront witnesses was denied when the trial testimony of Veronda Mazyck was read to the sentencing jury; appellate sentencing counsel was ineffective for not raising this issue on direct appeal. 9. He was denied due process when the trial judge refused to recuse himself despite having personal knowledge concerning the availability of Ms. Mazyck. 10. Using his participation in a robbery both to sustain the felony murder conviction and as the sole aggravating factor warranting the death penalty renders his sentence unconstitutional. 11. The conduct of the trial judge during the sentencing proceedings violated Booth-El’s right to a fair trial. 12. Maryland’s failure to provide for automatic appellate review for ineffective assistance of counsel claims violates the Sixth, Eighth, and Fourteenth Amendments. 13. Execution of a prisoner who has spent nearly seventeen years on death row constitutes cruel and unusual punishment. 14. Ineffective assistance of counsel during his 1984 guilt/innocence trial for: a. Not investigating or presenting forensic evidence regarding the prosecution’s theory that two knives were involved and that Booth-El and Reid each killed one of the Bronsteins; b. Failing to properly object to, and thus preserve for appeal, issues relating to bias or prejudice of the second jury panel; c. Failing to request removal for cause of a juror, Gail Graves, who expressed fear for her family because she worked near the location of the crime; d. Preserving for appeal only voir dire objections relating to bifurcation and Witherspoon violations and, thus, waiving all other objections; e.Engaging in conduct that, taken cumulatively, amounted to ineffective assistance and deprived him of a fair trial. 15. Ineffective assistance of guilt/innocence appellate counsel for: a. Failing to order a complete transcript of the 1984 voir dire proceedings; b. Failing to raise the issue of bias in the second jury panel; c. Failing to discover false answers given by two members of the second jury panel and faffing to raise the issue on appeal. 16. Ineffective assistance of sentencing counsel for: a. Failing to preserve voir dire objections by exhausting peremptory challenges or by objecting to the composition of the panel before the jury was sworn; b. Failing to use proper death qualification standards during voir dire; c. Failing to object to the prosecution’s use of the term “serial killer” during its closing rebuttal; d. Faffing to adequately question Ces-sie Alphonso, a social worker called by the defense, about Booth-El’s background. 17. Ineffective assistance of sentencing appellate counsel for: a. Failing to raise on appeal the trial judge’s ex parte communication with, and refusal to conduct additional voir dire of, a juror, Laurel Gilbert, after she indicated that she changed her mind about being able to impose the death penalty; b. Failing to raise on appeal the prosecutor’s use of the term “serial killer.” 18. Booth-El’s fundamental rights were violated when: a. Extrinsic information was introduced to the sentencing jury panel; b. A clearly biased juror, Ms. Graves, was included on the final panel; c. The trial judge refused to permit the sentencing trial counsel to ask certain questions on voir dire; d. He was constructively denied his right to counsel by his sentencing appellate attorney’s failure to raise issues relating to the jury and jury panel on appeal; e. His right to confront Ms. Gilbert concerning her change of mind on the death penalty was violated when the trial judge questioned her outside of Booth-El’s presence and did not allow counsel an opportunity to rehabilitate her. 19. The prosecutor’s remarks during closing rebuttal at the sentencing proceedings deprived Booth-El of a fair hearing in violation of the Due Process Clause. 20. At the guilt/innocence trial, the judge issued an erroneous instruction on reasonable doubt. 21. In violation of Brady v. Maryland, the prosecution failed to turn over certain evidence, i.e., a forensic report on a pair of gloves and a statement by Darryl Brooks, prior to the guilt/innocence trial. 22. In Maryland, the death penalty is imposed in an arbitrary, wanton, and freakish manner. 23. In Maryland, the death penalty is imposed in a racially discriminatory manner. 24. The combination of the unanimity requirement, Judge Angeletti’s supplemental instruction on principalship, and the Allen charge violated Booth-El’s constitutional rights. ANALYSIS Procedural Default Before a petitioner may seek habeas relief in federal court, he must exhaust the remedies available in state court for each claim presented. See Rose v. Lundy, 455 U.S. 509, 521-22, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982). This exhaustion requirement is satisfied by seeking review of the claim in the highest state court with jurisdiction to consider it. See O’Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S.Ct. 1728, 1734, 144 L.Ed.2d 1 (1999); 28 U.S.C. § 2254(b)-(c). In Maryland, depending on the nature of the claim, such review may be accomplished either by direct appeal or through post-conviction proceedings. Exhaustion is not required if the petitioner has no available state remedy at the time a federal petition is filed. Teague v. Lane, 489 U.S. 288, 297-98, 109 S.Ct. 1060, 1068, 103 L.Ed.2d 334 (1989); Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir.1990). Where a petitioner has failed to present a claim to the highest state court with jurisdiction to hear it, whether by failing to raise it on direct appeal or at post-conviction proceedings, or by failing to note a timely appeal, the claim may be procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 749-50, 111 S.Ct. 2546, 2564-65, 115 L.Ed.2d 640 (1991) (failure to note timely appeal); Murray v. Carrier; 477 U.S. 478, 491, 106 S.Ct. 2639, 2647, 91 L.Ed.2d 397 (1986) (failure to raise claim on direct appeal); Murch v. Mottram, 409 U.S. 41, 46-47, 93 S.Ct. 71, 74, 34 L.Ed.2d 194 (1972) (failure to raise claim during post conviction); Bradley v. Davis, 551 F.Supp. 479, 481 (D.Md.1982) (failure to seek leave to appeal denial of post-conviction relief). Claims may also be procedurally defaulted where a state court declines “to consider their merits on the basis of an adequate and independent state procedural rule.” Yeatts v. Angelone, 166 F.3d 255, 260 (4th Cm.), cert. denied, 526 U.S. 1095, 119 S.Ct. 1517, 143 L.Ed.2d 668 (1999). The requirement in Maryland that certain claims be presented on direct appeal, see Md. Ann.Code Art. 27, § 645A, is such an adequate and independent state procedural rule. See Johnson v. Smith, 981 F.Supp. 944, 947-48 (D.Md.1997). When invoked, the procedural default doctrine bars consideration of a claim in a federal petition for habeas corpus absent a showing of cause and prejudice or actual innocence. Murray, 477 U.S. at 494-95, 106 S.Ct. at 2649; Wainwright v. Sykes, 433 U.S. 72, 86, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977). To avoid a procedural default, however, the cause shown must be more than ignorance or a mistake. In some circumstances, ineffective assistance of counsel as determined under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), may be sufficient cause. See Edwards v. Carpenter, 529 U.S. 446, 450-51, 120 S.Ct. 1587, 1591, 146 L.Ed.2d 518 (2000). Otherwise, “[i]n order to demonstrate ‘cause’ for the default, [petitioner] must establish ‘that some objective factor external to the defense impeded counsel’s [or petitioner’s] efforts’ to raise the claim in state court at the appropriate time.” Breard v. Pruett, 134 F.3d 615, 620 (4th Cir.) (quoting Murray, 477 U.S. at 488, 106 S.Ct. at 2645), cert. denied, Breard v. Greene, 523 U.S. 371, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998). Ignorance of the availability of an appeal in a collateral proceeding, even when based on erroneous legal advice, is not cause for failing to file a timely appeal. See Tower v. Phillips, 7 F.3d 206, 211 (11th Cir.1993). Even where a petitioner fails to show cause and prejudice for a procedural default, a court may still reach the merits of the petitioner’s claims in order to prevent a fundamental miscarriage of justice. See Schlup v. Delo, 513 U.S. 298, 314-15, 115 S.Ct. 851, 861, 130 L.Ed.2d 808 (1995). The miscarriage of justice exception applies where a petitioner shows that “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray, 477 U.S. at 496, 106 S.Ct. at 2649. Thus, the miscarriage of justice standard is directly linked to innocence. Schlup, 513 U.S. at 321, 115 S.Ct. at 864. Innocence, however, is not an independent claim; rather, it is the “gateway” through which a petitioner must pass before a court may consider constitutional claims which are defaulted. Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 862, 122 L.Ed.2d 203 (1993). “ ‘To be credible,’ a claim of actual innocence must be based on reliable evidence not presented at trial.” Calderon v. Thompson, 523 U.S. 538, 559, 118 S.Ct. 1489, 1503, 140 L.Ed.2d 728 (1998) (quoting Schlup, 513 U.S. at 324, 115 S.Ct. at 865). Standard of Review Effective April 24, 1996, the Anti-Terrorism and Effective Death Penalty Act of 1996 amended 28 U.S.C. § 2254(d) to provide that: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. A decision is contrary to clearly established federal law if a state court applies a rule that contradicts Supreme Court precedent or “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a [different] result .... ” Williams v. Taylor, 529 U.S. 362, 406, 120 S.Ct. 1495, 1519-20, 146 L.Ed.2d 389 (2000). Further “[a] state court decision that correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case certainly would qualify as a decision involving] an unreasonable application of ... clearly established Federal law.” Id. at 407-08, 120 S.Ct. at 1520. See also Bell v. Jarvis, 236 F.3d 149, 157 (4th Cir.2000); Vick v. Williams, 233 F.3d 213, 216 (4th Cir.2000); Fisher v. Lee, 215 F.3d 438, 447 (4th Cir.2000). Thus, habeas corpus relief may not be granted simply because a federal court determines that a state court erroneously or incorrectly applied clearly established federal law. Williams, 529 U.S. at 411, 120 S.Ct. at 1522 (O’Connor, J. for the Court). However, “a state determination may be set aside under this standard if, under clearly established federal law, the state court was unreasonable in refusing to extend the governing legal principle to a context in which the principle should have controlled.” Ramdass v. Angelone, 530 U.S. 156, 166, 120 S.Ct. 2113, 2120, 147 L.Ed.2d 125 (2000). Bifurcation of Sentencing Proceedings: Claim I To be eligible for the death penalty under Maryland law, a defendant must be a principal in the first degree except in cases of murder for hire. Md.Code. Ann. Art. 27, § 413(e)(1). The sentencing judge or jury decides whether the defendant was a principal in the first degree. If the sentencing judge or jury determines that the defendant is not a principal in the first degree, a sentence of life imprisonment is imposed. If it is determined that the defendant is a principal in the first degree, the sentencing judge or jury then determines and weighs aggravating and mitigating circumstances. See Md. Rule 4-343. Evidence concerning principalship and aggravating/mitigating circumstances generally is presented during a single proceeding after completion of the trial. Prior to his 1990 sentencing, Booth-El requested that the proceeding be bifurcated so that the jury would determine whether he was a principal in the first degree prior to hearing any evidence relating only to aggravating or mitigating factors. (State’s Answer, Ex. 13 at 80-93.) His request was denied. (Id. at 104-05.) Booth-El argues that the failure to bifurcate the sentencing proceedings violated his constitutional right to due process. First, he asserts that the proceedings were so infected with unfairness as to violate his right to due process because the sentencing jury heard evidence concerning his criminal record, drug addiction, and psychological characteristics before determining whether he was a principal in the first degree. In making this argument, Booth-El relies upon Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974). Second, relying on Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), Booth-El asserts the unitary sentencing proceeding itself violates due process because: 1) he has a significant private interest in the outcome of the proceeding; 2) there is a significant risk that the jury will improperly consider prejudicial information relevant only to aggravating/mitigating factors when- deciding principalship; and 3) while there might be additional fiscal and administrative burdens on the government in using bifurcated sentencing proceedings, the potential risk to the defendant outweighs the additional burden on the government. Booth-El raised the failure to bifurcate claim on direct appeal. At that time, the focus of his claim was that the trial judge had erred in deciding he did not have the authority to bifurcate the proceeding. (State’s Answer, Ex. 38 at 41-53.) To the extent he made a constitutional argument, Booth-El relied upon Gregg v. Georgia, in which the Court discusses the advantages of bifurcating the guilt and sentencing phases of capital trials. 428 U.S. 153, 190-92, 96 S.Ct. 2909, 2933-34, 49 L.Ed.2d 859 (1976). Although Booth-El’s constitutional argument was not well defined on direct appeal, his claim that he was prejudiced by the decision to allow the jury to consider information from his presentence report before determining principalship, (State’s Answer, Ex. 38 at 42-44), is essentially the same as the Donnelly argument raised in the present petition. Although it is a closer call, his challenge to the constitutionality of the prohibition on bifurcated sentencing proceedings, (id., Ex. 38 at 51 n. 10), adequately raised the claim based upon Mathews presented in this petition. The Maryland Court of Appeals concluded that Judge Angeletti was correct in finding that he did not have the authority to bifurcate the sentencing proceeding. In rejecting the constitutional claim, the Court held: Booth suggests that refusal further to bifurcate would violate the eighth amendment because principalship is an issue of guilt, rather than an issue of penalty, and Gregg v. Georgia ... suggested that issues of guilt should be decided separately in a bifurcated proceeding. But Booth had been found guilty of murder in the first degree before the sentencing proceeding began. Booth IV, 608 A.2d at 171. This decision is not an unreasonable application of dearly established federal law. See Grandison v. Corcoran, 225 F.3d 654, 2000 WL 1012953 *14 (4th Cir. July 24, 2000) (unpublished), pet. for cert. filed — U.S. —, 121 S.Ct. 1658, — L.Ed.2d — (2001). Consideration of Mitigating Evidence: Claim II A. Verdict Sheet Maryland law specifies a number of mitigating factors and explicitly permits consideration of “any other facts which the jury or the court specifically sets forth in writing that it finds as a mitigating circumstance in the case.” Md. Ann. Code Art. 27, § 413(g)(8). At sentencing, Booth-El requested that the non-statutory mitigating factors he presented be listed on the verdict sheet. That request was denied. (State’s Answer, Ex. 23 at 209.) Booth-El argues that Judge Angeletti’s refusal to list the non-statutory mitigating factors impeded his right to have the jury consider evidence in mitigation of punishment. On direct appeal, the Maryland Court of Appeals concluded the Constitution does not require that non-statutory mitigating factors be listed on the verdict sheet. Booth IV, 608 A.2d at 171-72. The Supreme Court has held that the sentencer in a capital case cannot be “precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” Mills v. Maryland, 486 U.S. 367, 374, 108 S.Ct. 1860, 1865, 100 L.Ed.2d 384 (1988) (emphasis omitted) (quoting Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S.Ct. 869, 874, 71 L.Ed.2d 1 (1982)). See also McKoy v. North Carolina, 494 U.S. 433, 442, 110 S.Ct. 1227, 1233, 108 L.Ed.2d 369 (1990) (“Any barrier to [consideration of mitigating evidence] must therefore fall.”). Similarly, “the sentencer may not refuse to consider or be precluded from considering any relevant mitigating evidence .... ” Mills, 486 U.S. at 374-75, 108 S.Ct. at 1865 (emphasis, internal citations, and quotations omitted). Booth-El contends' that the sentencing court’s failure to list non-statutory mitigating factors on the sentencing form violated Mills, McKoy, and similar holdings by forcing the jury: “(1) to decide whether [the potentially mitigating] evidence met each juror’s personal test for what evidence should be weighed as a mitigating circumstance and (2) to then articulate that evidence as a mitigating circumstance that could be considered in weighing [the] sentence.” (Petition at 28-29.) The Supreme Comet’s “consistent concern has been that restrictions on the jury’s sentencing determination not preclude the jury from being able to give effect to mitigating evidence.” Buchanan v. Angelone, 522 U.S. 269, 276, 118 S.Ct. 757, 761, 139 L.Ed.2d 702 (1998). To determine whether jury instructions satisfy this principle, the reviewing court must determine “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Id. (quoting Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990)). In this case, there is no reasonable likelihood that the jury applied the instruction in a manner that precluded the consideration of mitigating factors or any other constitutionally relevant evidence. Admittedly, a juror first had to find that each non-statutory mitigating factor argued by the defense was mitigating before giving it consideration. The Supreme Court, however, has “never ... held that the state must affirmatively structure in a particular way the manner in which juries consider mitigating evidence.” Id. See also Weeks v. Angelone, 528 U.S. 225, 233, 120 S.Ct. 727, 732, 145 L.Ed.2d 727 (2000). In fact, the Supreme Court has upheld the use of a “catch-all” category in which the jury can consider any mitigating factor not expressly listed on the verdict form. See Weeks, 528 U.S. at 232 & n. 2, 120 S.Ct. at 732; Boyde, 494 U.S. at 380-82, 110 S.Ct. at 1198-99. Maryland’s system for presenting mitigating evidence does not preclude consideration of any factor that the jury, or any particular juror, may consider mitigating. If an individual juror is convinced that a particular factor is mitigating and that the defense has proven it, she is free to credit that mitigating factor and weigh it against the aggravating factors in determining the sentence. Thus, unlike Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), two cases cited by Booth-El, the jurors in Booth-El’s case were allowed to consider all potentially mitigating evidence and to give it whatever weight they chose. The last sentence of paragraph 8(b) of Section IV of the verdict sheet states: “If the jury or any juror determines that one or more mitigating circumstances exist, complete Section V.” (State’s Answer, Ex. 39 at 179.) After the jury returned with its verdict, Judge Angeletti required them to go back and complete Section V. (Id., Ex. 26 at 4-5.) In his supplemental memorandum, Booth-El argues that, because Section V was completed, the jury must have found a mitigating factor, and the fact that no such factor was listed in Part IV indicates the jury was confused. (See Pet’r Suppl. Mem. at 9-10.) This argument is without merit. The Court of Appeals explained the jury form used in Booth-El’s sentencing: Section IV, Question 8(a) of the sentencing form submitted to Booth’s jury stated: “We unanimously find by a preponderance of the evidence that the following additional mitigating circumstances exist.” -Question 8(b) read: “One or more of us, but fewer than all 12, find by a preponderance of the evidence that the following additional mitigating circumstances exist.” Section V of the sentencing form provided: “Each individual juror shall weigh the aggravating circumstances found unanimously to exist against any mitigating circumstances found unanimously to exist, as well as against any mitigating circumstances found by that individual juror to exist.” “We unanimously find that the State has proven by A PREPONDERANCE OF THE EVIDENCE that the aggravating circumstances marked ‘proven’ in Section III outweigh the mitigating circumstances in Section IV. [Yes or No]” Booth IV, 608 A.2d at 172. Question 8(b) of Section IV explicitly states that the finding of a particular mitigating circumstance need not be unanimous. Rather, “[o]ne or more” of the jurors, “but fewer than all 12,” can find that a mitigating circumstance exists. Section V reinforces this point by telling each individual juror to weigh the aggravating circumstances “against any mitigating circumstances found by that individual juror to exist.” The likely result is that no juror found any circumstances proven which should be considered mitigating and, therefore, did not list a mitigating circumstance in Section IV. The jury then correctly followed the instructions in paragraph 8(b) and did not complete Section V. Judge Angeletti, in an attempt to guarantee that the jury completed the entire form, however, asked the jury to complete Section V. While that final instruction may have been in error, it does not indicate that the jury was confused by the form. Booth-El is correct in stating that “we do not know if the Judge instructed the jury to fill out Section V because of information submitted on individual forms as to statutory or non-statutory mitigating factors or because he just thought it should be filled out.” (Pet’r Suppl. Mem. at 10.) The Supreme Court, however, does not require a reviewing court to be certain that the jury correctly applied the instructions. Rather, the court need only determine “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Buchanan, 522 U.S. at 276, 118 S.Ct. at 761 (quoting Boyde, 494 U.S. at 380, 110 S.Ct. at 1198). Here, no such reasonable likelihood exists. Thus, the Maryland Court of Appeals’ conclusion is not an unreasonable application of clearly established federal law. B. Mitigation Testimony During his sentencing, Booth-El requested permission to testify as to mitigation without being cross-examined about the events of May 1983. (State’s Answer, Ex. 22 at 218.) His request was denied. (Id. at 219-21.) Booth-El did not testify, though he briefly addressed the jury during closing arguments. (Id., Ex. 24 at 92-95.) Judge Angeletti instructed the jury that Booth-El’s statement was not testimony or evidence. (Id. at 61-62.) That instruction was repeated by the prosecution during its closing argument. (Id. at 125.) Booth-El argues he should have been permitted to testify regarding mitigating evidence without subjecting himself to cross-examination on the circumstances surrounding the crime. On direct appeal, the Court of Appeals concluded he had no constitutional right to testify without being cross-examined. Booth IV, 608 A.2d at 172-73. Although the Supreme Court apparently has never addressed the issue, the Fourth Circuit has held that a criminal defendant does not have a constitutional right to allocute before a sentencing jury. See United States v. Barnette, 211 F.3d 803, 820 (4th Cir.2000) (citing United States v. Hall, 152 F.3d 381 (5th Cir.1998)). Given that a criminal defendant does not have a constitutional right to give an unsworn statement to the sentencing jury without subjecting himself to cross-examination, the Maryland Court of Appeals’ holding that Booth-El did not have a constitutional right to give a sworn statement is not contrary to Supreme Court precedent. Deletion of Intoxication as a Statutory Mitigating Factor: Claim III At the time of the Bronsteins’ murders, Maryland’s death penalty statute listed seven mitigating circumstances, including: The murder was committed while the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired as a result of mental incapacity, mental disorder, emotional disturbance, or intoxication. Md. AnmCode Art. 27, § 413(g)(4) (1957). Effective July 1, 1983, the words “or intoxication” were removed from this section. 1983 Md. Laws ch. 296. Both before and after the 1983 change, the statute contained a catch-all provision which allowed the jury to consider “[a]ny other facts which the jury or the court specifically sets forth in writing that it finds as mitigating circumstances in the case.” Md. AnmCode Art. 27, § 413(g)(8) (1957, 2000). The Maryland Court of Appeals described the effect of the 1983 change as follows: Prior to the 1983 enactment the burden was on the murderer to prove by a preponderance of the evidence diminished capacity as a result of intoxication. If the jury found that fact, then the statute determined that that circumstance was mitigating and that it was to be considered in weighing whether the aggravating circumstance outweighed intoxication and any other mitigating circumstances. After the change, the murderer has the burden of proving by a preponderance of the evidence both 'the fact of diminished capacity due to intoxication and that that fact is a mitigating circumstance. Booth IV, 608 A.2d at 175 (citations omitted). During the 1990 sentencing proceedings, Booth-El requested that the verdict form contain the pre-July 1, 1983 language. (State’s Answer, Ex. 39 at 48-51.) That request was denied. On direct appeal, Booth-El argued that the refusal to include the pre-July 1, 1983 language on the verdict sheet violated the Ex Post Facto Clause because it required him to prove by a preponderance of the evidence that intoxication was a mitigating circumstance. (Id., Ex. 38 at 75-81.) The Court of Appeals found that the change did not fit within any of the “three” categories of ex post facto laws defined in Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). Booth IV, 608 A.2d at 175. It also concluded that the change was procedural and that “[n]one of the purposes of the prohibition against ex post facto laws would be served by applying the prohibition” in this case. Id. at 175, 177. Article I, § 10 of the U.S. Constitution provides that “[n]o State shall ... pass any ... ex post facto Law.” In 1798, Justice Chase described four categories of laws that he believed ran afoul of this provision: 1st. Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798). The continuing vitality of these four categories recently was affirmed by the Supreme Court in Carmell v. Texas, 529 U.S. 513, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000). In Carmell, the Court held that an amendment to a Texas statute deleting the requirement that a victim’s testimony be corroborated in certain sexual assault cases violated the Ex Post Facto Clause. Explaining the importance of the fourth Calder category, the Court stated: A law reducing the quantum of evidence required to convict an offender is as grossly unfair as, say, retrospectively eliminating an element of the offense, increasing the punishment for an existing offense, or lowering the burden of proof. In each of these instances, the government subverts the presumption of innocence by reducing the number of elements it must prove to overcome that presumption; by threatening such severe punishment so as to induce a plea to a lesser offense or a lower sentence; or by making it easier to meet the threshold for overcoming the presumption. Reducing the quantum of evidence necessary to meet the burden of proof is simply another way of achieving the same end. Id. at 532-33, 120 S.Ct. at 1632-33. The change in the statute that was applied to Booth-El, which effectively lowered the prosecution’s burden of proof by increasing the burden placed on the defendant, falls within the fourth ex post facto category. The Maryland Court of Appeals’ failure in Booth IV to recognize the fourth Calder category no doubt was the result of what the Court in Carmell described as “rather cryptic” language in Collins, a decision issued shortly before Booth-El’s 1990 re-sentencing. Carmell, 529 U.S. at 538, 120 S.Ct. at 1635. In Collins, the Court found that a Texas statute allowing an appellate court to reform an improper sentence rather than order a new trial did not violate the Ex Post Facto Clause. 497 U.S. at 52, 110 S.Ct. at 2724. Collins began by quoting the four Calder categories, but also described the three-category formulation in Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925), as a “faithful” rendition of the “original understanding” of the Clause, even though it omitted the fourth Calder category. See Carmell, 529 U.S. at 538, 120 S.Ct. at 1635 (quoting Collins, 497 U.S. at 43, 110 S.Ct. at 2719). Collins continued by specifically overruling the Court’s decisions in Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1883), and Thompson v. Utah, 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061 (1898), which had expanded the four Calder categories to cover laws which “in relation to the offense or its consequences, alter[ ]the situation of a party to his disadvantage.” Kring, 107 U.S. at 228-29, 2 S.Ct. at 449 (citation omitted). Collins did not, however, overrule Calder. In response to the argument made by Texas and the United States in Carmell that the fourth category had been “effectively cast out,” the Court emphatically replied that “Collins held no such thing.” Carmell, 529 U.S. at 537, 120 S.Ct. at 1635. Indeed, even in Collins, the Court explained that “the prohibition which may not be evaded is the one defined by the Calder categories.” 497 U.S. at 46, 110 S.Ct. at 2721. Accordingly, the Maryland Court of Appeals’ conclusion that the statutory amendment in Booth-El’s case did not fit into any of the ex post facto categories violates Supreme Court precedent and therefore is contrary to clearly established federal law. See Williams, 529 U.S. at 406, 120 S.Ct. at 1519-20. A further step in the analysis, however,' is required. “Procedural” changes, even those which disadvantage a defendant, do not fall into any of the four Calder categories and therefore do not violate the Ex Post Facto Clause. See Dobbert v. Florida 432 U.S. 282, 293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977). The court in Booth IV concluded that the change in the statute was merely procedural. 608 A.2d at 177. It did so, however, without the benefit of recognizing the existence and significance of the fourth Calder category. Procedural changes are “changes in the procedures by which a criminal case is adjudicated, as opposed to changes in the substantive law of crimes.” Collins, 497 U.S. at 45, 110 S.Ct. at 2720. Procedural changes include those relating to the admissibility of evidence, see Hopt v. Utah, 110 U.S. 574, 590, 4 S.Ct. 202, 210, 28 L.Ed. 262 (1884) (witness competency); Thompson v. Missouri, 171 U.S. 380, 386-87, 18 S.Ct. 922, 924-25, 43 L.Ed. 204 (1898) (handwriting comparisons), as well as those affecting the way in which a case is adjudicated, see Dohbert, 432 U.S. at 292, 97 S.Ct. at 2297 (change in jury’s function in death penalty cases); Beazell, 269 U.S. at 170, 46 S.Ct. at 68-69 (requirement of joint trials for persons jointly indicted); Mallett v. North Carolina, 181 U.S. 589, 597, 21 S.Ct. 730, 733, 45 L.Ed. 1015 (1901) (change permitting the state to appeal the grant of a new trial); Gibson v. Mississippi, 162 U.S. 565, 590, 16 S.Ct. 904, 910, 40 L.Ed. 1075 (1896) (juror qualification). The change in § 413(g)(4) of the Maryland law is not procedural. It does not alter the type of evidence that is admissible during the sentencing proceeding, nor does it merely change the procedure for determining mitigating circumstances. Rather, it imposes on the defendant an additional burden, i.e., he must now show not only that intoxication substantially impaired his ability to appreciate the criminality of his conduct or conform his conduct to the requirements of law, but also that this constitutes a mitigating circumstance. The amendment thus imposes an impermissible change in the amount or degree of proof. See Carmell, 529 U.S. at 540-41, 120 S.Ct. at 1636-37; Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 328, 18 L.Ed. 356 (1866) (striking down loyalty oath requirement of state constitution); see also Gall v. Parker, 231 F.3d 265, 305-06 (6th Cir.2000) (finding that state court decisions removing the state’s burden to prove the absence of extreme emotional distress as an element of murder were equivalent to an ex post facto violation). While the court in Booth TV reviewed many of the Supreme Court’s decisions involving changes that were found to be procedural, it did so without analyzing the change in the burden of proof effected by the amendment in this case. This is illustrated by its analysis of U.S. v. Mest, 789 F.2d 1069 (4th Cir.1986), a case involving an insanity defense to a murder prosecution where the offense was committed pri- or to enactment of the Insanity Defense. Reform Act (“IDRA”), but the trial was conducted thereafter. The Booth TV court reviewed the IDRA’s change in the Federal Rules of Evidence, which was found not to violate the Ex Post Facto Clause, but did not distinguish the change in the burden of proof and the definition of insanity brought about by the IDRA, which the parties agreed were “substantive,” and the court did not apply retroactively. Id. at 1073 n. 3. See also United States v. Lakey, 610 F.Supp. 210, 213-14 (S.D.Tex.1985) (holding retroactive application of IDRA would violate the ex post facto clause); United States v. Kowal, 596 F.Supp. 375 (D.Conn.1984) (same). The Maryland Court of Appeals made several other arguments to bolster its conclusion that the change in the Maryland statute did not constitute an ex post facto law. First, the court stated that the purposes for the prohibition of ex post facto laws would not be served by applying the prohibition in Booth-El’s case. The court stated that “[Booth’s] reliance interest [on the benefits of being intoxicated while he murdered] hardly deserves mention, let alone respect.” Booth IV, 608 A.2d at 177 (quoting L. Tribe, American Constitutional Law § 10-3, at 640 (2d ed.1988)). The Supreme Court, however, has explicitly rejected this justification. In Carmell, the Court stated that “the absence of a reliance interest is not an argument in favor of abandoning the [fourth] category itself.” 529 U.S. at 531 n. 21, 120 S.Ct. at 1632 n. 21. If [the absence of a reliance interest were enough to abandon the fourth ex post facto category], the same conclusion would follow for Colder’s third category (increases in punishment), as there are few, if any, reliance interests in planning future criminal activities based on the expectation of less severe repercussions. Id. The Maryland Court of Appeals also stated that there was no risk of legislative abuse in Booth-El’s case because, based on the timing of the bill’s introduction, “the Legislature could not have, and did not, contemplate John Booth when it deleted intoxication as an express mitigating circumstance on the sentencing form.” Booth IV, 608 A.2d at 178. Though this statement is true, the law may still be ex post facto. The Supreme Court has shown concern with alterations that only benefit the government. See Carmell, 529 U.S. at 532-33 & n. 23, 120 S.Ct. at 1632-33 & n. 23. Here, by eliminating diminished capacity resulting from intoxication as an automatic mitigating factor upon proof of that diminished capacity, the legislature has benefitted only the state. Therefore, this law is not one that is “ordinarily evenhanded, in the sense that [it] may benefit either the State or the defendant in any given case.” Id. at 533 n. 23, 120 S.Ct. at 1633 n. 23. This fact distinguishes Booth-El’s case from Dobbert, which is relied upon by the State. In Dobbert, a jury in a death penalty case recommended life imprisonment. 432 U.S. at 287, 97 S.Ct. at 2295. At the time the murder was committed, this recommendation would have been binding. Id. at 294, 97 S.Ct. at 2299. By the time that Dobbert stood trial, however, the law was changed, such that a jury’s recommendation of a sentence in a death penalty case was advisory only. Id. at 290-92, 97 S.Ct. at 2297. The judge overruled the jury and imposed the death sentence. Id. at 287, 97 S.Ct. at 2295. In Dobbert, the change in the law could just as easily have benefitted the defendant as the government. The jury could have imposed death and been overruled by a judge who felt that life imprisonment was more appropriate. The Dobbert Court emphasized this fact in upholding the law as applied to the defendant. According to the Court: [T]he new statute affords significantly more safeguards to the defendant than did the old. Death is not automatic, absent a jury recommendation of mercy, as it was under the old procedure .... Perhaps the ultimate proof of this fact is that this old statute was held to be violative of the United States Constitution ... while the new law was upheld by this Court .... Id. at 2299-2300. The ameliorative quality of the law in Dobbert is absent from the change in Maryland’s law. Finally, Carmell emphasizes “fundamental justice” as a principal interest to be served by the Ex Post Facto Clause: There is plainly a fundamental fairness interest, even apart from any claim of reliance or notice, in having the government abide by the rules of law it establishes to govern the circumstances under which it can deprive a person of his or her liberty or life. 529 U.S. at 533, 120 S.Ct. at 1633. This interest was not discussed by the court in Booth IV. I have considered carefully whether the Booth TV court’s decision can be termed an unreasonable application of clearly established federal law, see Williams, 529 U.S. at 406, 120 S.Ct. at 1519-20, particularly in light of the strong dissent in Carmell and the “cryptic” language in Collins. It is critical to my conclusion that the dissent in Carmell, while it disagreed with the majority’s interpretation of the Texas statute, and indeed questioned the applicability of the Ex Post Facto Clause to changes in evidentiary rules, nonetheless advanced an understanding of the fourth Calder category that applies to the change at issue in Booth IV: Laws that reduce the burden of persuasion the prosecution must satisfy to win a conviction may not be applied to offenses committed before their enactment. 529 U.S. at 572, 120 S.Ct. at 1653 (Ginsburg, J. dissenting). This description includes “a statute retroactively increasing the defendant’s burden of persuasion as to an affirmative defense.” Id. at 572, 120 S.Ct. at 1653-54. Accordingly, the Booth IV court’s acknowledgment that the change placed an additional burden on the defendant, 608 A.2d at 175, combined with its failure to recognize that the change thereby violated the Ex Post Facto Clause, constitutes an unreasonable application of clearly established federal law. On this issue, the petitioner is entitled to relief. Jury Instruction on Joint First-Degree Principals: Claim IV At sentencing, Judge Angeletti instructed the jury: A principal in the first degree, again, is the immediate perpetrator of the crime while a principal in the second degree is one who did not commit the crime with his own hands, but was present aiding and abetting the perpetrator. Under Maryland law, only a principal in the first degree may be sentenced to death. You are further instructed that if you find from the evidence that two people inflicted the fatal wound, you may find that they are joint principals in the first degree. (State’s Answer, Ex. 24 at 27-28.) No exception was taken to this instruction. Booth-El argues, however, that the instruction was plain error because there was no evidence to support a finding that more than one person inflicted the injuries that resulted in Mr. Bronstein’s death. On direct appeal, the Maryland Court of Appeals concluded that the evidence that more than one person murdered Mr. Bron-stein was sufficient to justify an instruction on joint principals in the first degree. According to the Court: The instruction was generated by evidence, most of which was elicited through the defendant’s witness, Dr. William Brownlee .... Dr. Brownlee testified that the wounds inflicted on Mrs. Bronstein were consistent with their having been made by a certain bent knife found under or next to her body. There was a nick on the blade of that knife. The witness also testified that the wounds to Mr. Bronstein were consistent with having been made by the same bent knife.... Dr. Brownlee said that the nick on that knife was caused by something metallic, possibly a knife.... He acknowledged that “[i]t would be a hypothesis” that the nick was caused by striking another knife “at the same time of the perpetration.” Booth IV, 608 A.2d at 183-84. To the extent that Booth-El relies on violations of state law, his claim is not cognizable in this court. See Roach v. Angelone, 176 F.3d 210, 215-17 (4th Cir.1999). To the extent that his claim is based on a violation of federal constitutional rights, the assertion is without merit. Indeed, to constitute grounds for federal habeas corpus relief, a jury instruction must not merely be incorrect; rather, it must “violate[] some right which was guaranteed to the defendant by the Fourteenth Amendment.” Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). Booth-El has identified no such right. The fact that the State did not pursue a joint principal theory did not preclude the trial judge from giving an instruction on that theory if he deemed it appropriate and supported by the evidence introduced at trial. See United States v. Gray, 47 F.3d 1359, 1369 (4th Cir.1995); United States v. Horton, 921 F.2d 540, 543-44 (4th Cir.1990). Sufficiency of the Evidence — First-Degree Principal: Claim V Booth-El argues that the evidence presented during the 1990 re-sentencing was insufficient to support the jury’s finding that he was a principal in the first degree. In that proceeding, Jewell Booth testified: “I am not too sure, but I think [Booth-El] said Sweetsie killed the woman and he killed the man and then he went into this ridiculous statement about his grandmother.” (State’s Answer, Ex. 20 at 137.) She stated further that, when she asked Booth-El whether he killed the Bronsteins, he responded: “I am surprised you would ask me something like that. Of course not. Go to bed.” (Id. at 138.) Booth-El contends that this testimony was too equivocal and uncertain to be believed beyond a reasonable doubt and cannot support a finding that he was a principal in the first degree. The Court of Appeals disagreed. It noted Eddie Smith’s testimony that, shortly after the murder, Reid said in the presence of Booth-El, “we [referring to Reid and Booth-El] or he [referring to Booth-El] just killed a couple mother fuckers” and Veronda Mazyck’s statement that, after the murder, she asked why Petitioner and Reid had killed the Bronsteins and he responded “because they knew me and my nephew.” Booth IV, 608 A.2d at 182. Circumstantial evidence further supports such a finding. As explained by the Court of Appeals: There was evidence that the wound patterns on the two bodies were substantially different, which tended to show that two separate people did the killings. There was evidence showing that the Bronsteins knew and could identify Booth but not Reid, which suggested that Booth had the greater motivation for murdering the couple. Id. Courts review the sufficiency of the evidence necessary to prove the existence of an aggravating fact