Citations
- 42 F. Supp. 2d 1059
Full opinion text
MEMORANDUM OPINION AND ORDER
DANIEL, District Judge.
I. INTRODUCTION
THIS MATTER is before the Court on the Petition for Writ of Habeas Corpus filed by Frank D. Rodriguez (“Petitioner” or “Rodriguez”) on January 27, 1997, which seeks to have his death sentence overturned. This Court’s review of the state courts’ decisions in this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter “AEDPA” or “the Act”), Pub.L. No. 104 - 132, 110 Stat. 1214 (1996). The AEDPA governs my review of this case since the petition was filed after April 24, 1996, the effective date of the Act.
This Court granted Petitioner’s motion to stay execution by Order dated November 14, 1996. The Court also granted Petitioner’s motion to proceed under 28 U.S.C. § 1916. Petitioner filed his opening brief on January 27, 1997. The government filed its response on March 7, 1997, and a reply was filed on April 4, 1997. The parties filed additional briefs in connection with the standard of review and Petitioner’s claim that he is entitled to an evidentiary hearing. A hearing was held on May 30, 1997. In order to complete this opinion, the Court conducted independent legal research on the proper interpretation of the AEDPA and its effect on the standard of review, as well as the substantive issues raised by the petition. Also, the Court spent considerable time reviewing the voluminous record generated during the state court proceeding.
In rendering an opinion on the merits of the petition, I first discuss the pertinent facts of the case, the applicable standard of review, Petitioner’s constitutional objections to the standard of review adopted by me and, finally, my decision on the merits of each argument raised by the petition.
II. FACTUAL BACKGROUND
Petitioner’s death sentence was pronounced following his conviction of first-degree murder, first-degree felony murder, first-degree sexual assault, first-degree aggravated motor vehicle theft, second-degree kidnapping, aggravated robbery, conspiracy to commit first-degree murder, conspiracy to commit second-degree kidnapping, and conspiracy to commit first-degree aggravated motor vehicle theft in December, 1986, by a jury in the District Court for the City and County of Denver, Colorado. Record on Appeal, v. 32, pp. 2-6. These convictions resulted from the kidnapping, rape, and murder of Lorraine Martelli (“Martelli”) on November 14, 1984.
The evidence presented at trial was that Petitioner, his brother Chris Rodriguez, David Martinez and Patricia Thomas kidnapped Martelli in her own car after she left her work place. They drove Martelli around for several hours during which Petitioner sexually assaulted, raped, beat, sodomized and eventually stabbed her 28 times with a knife, resulting in Martelli’s death. Martelli also sustained shallow knife cuts around her neck and face, indicating that she was tortured. Before the killing, Martelh pled for her life and asked what would become of her. Chris Rodriguez said they would probably let her go, but Petitioner said that Martelli had seen their faces and that they had to kill her.
Chris Rodriguez was convicted of first-degree murder and other charges, and was sentenced to life imprisonment. David Martinez was convicted of second-degree kidnapping and sentenced to 20 years. Patricia Thomas was granted immunity in exchange for her testimony and was not charged. A more detailed statement of the facts of the ease is contained in the opinions issued by the state court, particularly, People v. Rodriguez, 794 P.2d 965 (Colo.1990), cert. denied, 498 U.S. 1055, 111 S.Ct. 770, 112 L.Ed.2d 789 (1991).
After the conclusion of the guilt phase of the trial, the state district court conducted a habitual criminal proceeding in which the jury, on December 13, 1986, adjudicated Petitioner a habitual offender on the basis of three (3) prior felony convictions pursuant to Colo.Rev.Stat. § 16-13-103 (1984 Supp.). ROA, v. 33, p. 63, II. 6-24. Petitioner’s previous felony convictions subjected him to mandatory life imprisonment on the basis of a conviction for any of the several felonies committed against Martel-li. See Colo.Rev.Stat. § 16-13-101 (1986).
The matter then proceeded to the penalty phase where the state sought the death penalty. Of the seven (7) separate aggravating factors which were alleged pursuant to Colo.Rev.Stat. § 16-11-103, the jury found six (6) proven beyond a reasonable doubt. These included: (1) intentionally killing a kidnap victim (ROA, v.52, p. 746); (2) intentionally causing the death of Mar-telh in furtherance of a class 3 or greater felony (id. at p. 748); (3) agreeing with others to kill Martelli and intentionally killing her in furtherance of this agree-der while under a sentence of imprisonment for a prior class 3 felony (id. at p. 750); (5) committing murder for the purpose of avoiding or preventing a lawful arrest or prosecution (id. at p. 751); and (6) committing murder in an especially heinous, cruel, or depraved manner (id. at p. 752). See also id. at v. 43, pp. 3-4. The sole aggravating factor that was not found by the jury to be established beyond a reasonable doubt was the allegation that the murder was committed for pecuniary gain. Id. at v. 52, p. 747.
In addition to the aggravating factors that were given to the jury to consider, the jury was instructed that it could consider certain factors in mitigation. They included the roles of Petitioner and his co-defendants in the crimes, the co-defendants’ sentences, and any other non-specific mitigating factor which constituted a reason for not imposing a death sentence. Id. at v. 52, p. 778. The jury returned a verdict on December 17, 1986, finding that the mitigating factors did not outweigh the aggravating factors and that a sentence of death was appropriate. Id. at v. 52, p. 753. Petitioner was sentenced to death on January 28, 1987. He also serves five (5) consecutive life sentences for convictions arising out of the same incident.
Petitioner, through the Colorado State Public Defender’s Office, then filed a direct appeal of his death sentence to the Colorado Supreme Court. Defense counsel received four (4) extensions of time to file the opening brief on this appeal. The brief was filed on February 1, 1989, nearly two (2) years after the case was docketed in the State Supreme Court. The opening brief, entitled “Partial Opening Brief,” contained 138 pages of text and raised 9 separate issues. ÁROA, v. 18, pp. 1-151. An appendix was attached to the brief which listed 102 additional issues, including issues about the guilt phase, which counsel indicated he wanted to raise but could not because of the purportedly “unreasonable time limitations placed on the filing of the Opening Brief’ and the “inadequate” record on appeal. See Partial Opening Brief, AROA, v. 5, pp. 1219-1231. On April 7, 1989, defense counsel attempted to file a second partial opening brief. Id. at v. 52, p. 1232. This was disallowed by the Colorado Supreme Court.
After oral argument on the direct appeal, the prosecution learned of the existence of confidential material which could be deemed exculpatory. The prosecution requested a limited remand to determine whether this evidence needed to be disclosed. People v. Rodriguez, 786 P.2d 1079 (Colo.1989) (“Rodriguez II”). After a remand to trial court, the Colorado Supreme Court ruled that the material had to be disclosed to Petitioner. People v. Rodriguez, 794 P.2d 964, 965 (Colo.1990) (“Rodriguez III ”).
On May 29, 1990, the Colorado Supreme Court issued its decision on the direct appeal which affirmed the trial court on a 4-3 vote. People v. Rodriguez, 794 P.2d 965 (Colo.1990) (“Rodriguez IV”). The three Justices who wrote dissents, Quinn, Lohr, and Kirshbaum, each concluded that legal errors required a reversal of the death sentence. Id. at 998-1006. Petitioner sought certiorari from the United States Supreme Court which was denied in January, 1991. Rodriguez v. Colorado, 498 U.S. 1055, 111 S.Ct. 770, 112 L.Ed.2d 789 (1991).
Petitioner next filed motions for post-conviction relief in the state district court pursuant to Colo.R.Crim.P. 35. One of the motions was over 700 pages long and raised 319 separate unnumbered claims. AROA, w. 11, 12. The district court appointed separate counsel, Richard Hostet-ler, to handle the allegations of ineffective assistance of counsel. These claims were denied by the state trial court in a written order issued on October 7, 1993. See Respondent’s Brief, Appendix (“App.”) A.
On February 14, 1994, the state trial court issued an order denying all of Petitioner’s remaining postconviction claims except those dealing with the felony murder and conspiracy convictions and newly discovered evidence. The district court ultimately vacated Petitioner’s convictions for first-degree felony murder, conspiracy to commit second-degree kidnapping, and conspiracy to commit first-degree aggravated motor vehicle theft on the grounds they were duplicitous with his convictions for first-degree deliberated murder and conspiracy to commit first degree murder. Further, the district court conducted a hearing on the claims of newly discovered evidence on March 17, 1994 and denied those claims in a ruling from the bench. ROA, v. 67, pp. 171-184.
The trial court’s orders on the postcon-viction claims were appealed to the Colorado Supreme Court. Petitioner was represented by counsel, Nora Kelly, on the ineffective assistance of counsel claims as well as a claim of state interference with Petitioner’s direct appeal which asserted that the record was inadequate. See Respondent’s Brief, App. B. Petitioner was also represented in this appeal by Michael Heher, who filed a separate brief. See Respondent’s Brief, App. C. The prosecution appealed the trial court’s decision to vacate the three lesser offenses.
In an opinion dated March 11, 1996, the Colorado Supreme Court affirmed in part, reversed in part, and remanded in part. People v. Rodriguez, 914 P.2d 230, 246 (Colo.1996) (“Rodriguez V”). Specifically, Rodriguez’ conviction for first-degree sexual assault as a class 2 felony was remanded to the trial court with directions to vacate that judgment and enter a judgment for the lesser included offense of first-degree sexual assault as a class 3 felony. The Colorado Supreme Court affirmed the district court’s denial of Petitioner’s postconviction claims in all other regards, including the denial of his ineffective assistance of counsel claims, and affirmed the vacating of the duplicitous convictions and the refusal to vacate the sentence of death. Petitioner then instituted this federal court habeas proceeding seeking review of the state court’s actions.
III. STANDARD OF REVIEW
28 U.S.C. § 2254, as amended by the passage of the AEDPA, governs the standard of review in this case. In pertinent part, it provides as follows:
(d) 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.
(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual matter made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
The amendments to the AEDPA, which took effect on April 24, 1996, substantively changed the standard of review applicable to federal habeas cases filed subsequent to the Act. Prior to the amendments, the court reviewed questions of law and mixed questions of law and fact on a de novo basis and accepted factual findings unless they were clearly erroneous. See, e.g., Houchin v. Zavaras, 107 F.3d 1465, 1469 (10th Cir.1997). Now, the parties agree that the statute requires the court to:
(1) consider only issues that have been adjudicated on the merits in state court proceedings;
(2) the focal point of the inquiry, rather than conduct the review as if the state court had not issued its opinion;
(8) review state court opinions based on federal law as determined by the Supreme Court, not as determined by other federal court decisions; and
(4) review state court opinions on the basis that the factual determinations are presumed to be correct, unless rebutted by “clear and convincing evidence.”
Id. Further, if the petitioner challenges the sufficiency of the evidence adduced in the state court proceeding to support the determination of a factual issue made therein, the petitioner, if able, shall produce that part of the record pertinent to that issue.
The parties’ primary disagreement is how § 2254, as amended, should be interpreted with respect to legal questions and mixed questions of law and fact. Petitioner argues that § 2254(d) requires this Court to give procedural deference only to qualifying state court legal decisions, i.e., that the Court treat the state court’s decision on both the law and fact as dispositive unless the petitioner demonstrates that it is incorrect or “contrary to ... federal law.” He further argues that the amendments to § 2254(d) do not require this Court to defer to decisions of the state court in any substantive way but, instead, require the exercise of the Court’s best legal judgment, ie., plenary review. Substantive deference should be given only to factual questions.
Petitioner asserts that to read § 2254(d) to require substantive deference on the law would be contrary to its plain language, legislative history and prior interpretations by courts, and would offend several provisions of the Constitution, including the requirement of an independent judiciary and the Due Process and Suspension Clauses. Rodriguez concludes that the “contrary to law” portion of § 2254(d)(1) applies to both legal questions and mixed questions of law and fact, e.g., when the outcome is attacked. Further, he concludes that the “unreasonable application” portion of § 2254(d)(1) applies to the state court’s process of deciding what is attacked, e.g., the state court’s refusal to consider an argument for procedural reasons.
Respondent disagrees with the distinction between procedural and substantive deference. It argues that the plain language of the statute does not provide for plenary review. Instead, a federal court may review questions of law by determining whether the state court decision was contrary to clearly established Supreme Court law. As to mixed questions of law and fact, the court must conduct a deferential review to determine whether the state court’s application of federal law was “reasonable.”
I conclude that Petitioner’s arguments are not consistent with the majority of other federal courts that have considered the issue. The Tenth Circuit has not directly addressed this issue. In Houchin, the Tenth Circuit stated as follows:
The AEDPA amended the standards for reviewing state court judgments in § 2254 proceedings. Section 2254(e), like the prior § 2254(d), provides that a state court’s determination of a factual issue “shall be presumed to be correct.” The amended § 2254(e), goes further, however, and states that the habeas petitioner “shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” In addition, § 2254(d) now sets forth the deference to be afforded the state’s legal determinations....
Thus, the AEDPA increases the deference to he paid by the federal courts to the state court’s factual findings and legal determinations.
Id. at 1470 (emphasis added). See also McCarty v. Dorsey, 113 F.3d 1246 (Table, Text in WESTLAW), Unpublished Disposition, No. 96-2132, 1997 WL 259444, at *1 n. 2 (10th Cir.), cert. denied, — U.S. -, 118 S.Ct. 313, 139 L.Ed.2d 242 (1997) (referring to “(stricter) provisions” of the AEDPA as compared with prior standard).
There is a split among the circuit courts as to the meaning and interpretation of the amendments to § 2254(d). The Sixth Circuit’s recent opinion in Nevers v. Killinger, 169 F.3d 352, 358-62 (6th Cir.1999) provides a comprehensive summary of the various approaches adopted by the circuit courts. The Fifth Circuit holds that the “contrary to ... clearly established federal law” portion of 2254(d)(1) applies to legal questions and the “unreasonable application of clearly established federal law” portion of 2254(d)(1) applies to mixed questions of law and fact. See Drinkard v. Johnson, 97 F.3d 751, 767-68 (5th Cir.1996), cert. denied, 520 U.S. 1107(997), 117 S.Ct. 1114, 137 L.Ed.2d 315; Carter v. Johnson, 110 F.3d 1098, 1103 (5th Cir.), cert. granted and judgment vacated on other grounds, — U.S. -, 118 S.Ct. 409, 139 L.Ed.2d 313 (1997). The Seventh and Ninth Circuits have adopted a similar approach. Lindh v. Murphy, 96 F.3d 856, 868-71 (7th Cir.1996), rev’d on other grounds, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Moore v. Calderon, 108 F.3d 261, 265 n. 3 (9th Cir.), cert. denied, 521 U.S. 1111, 117 S.Ct. 2497, 138 L.Ed.2d 1003 (1997).
The Eleventh Circuit’s approach is articulated in Neelley v. Nagle, 138 F.3d 917 (11th Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 811, 142 L.Ed.2d 671 (1999). It first requires the court “to ascertain the federal law applicable to the petitioner’s claim that is ‘clearly established’ by the Supreme Court at the time of the state court’s adjudication.” Id. at 924. Second, “the court must determine whether the state court adjudication was contrary to the clearly established Supreme Court case law....” Id. Finally, “[i]f the state court’s decision is not contrary to law, the reviewing court must then determine whether the state court unreasonably applied the relevant Supreme Court authority.” Id. In that regard, the court stated that “[b]y its very language, ‘unreasonable application’ refers to mixed questions of law and fact, ... when a state court has ‘unreasonably1 applied clear Supreme Court precedent to the facts of a given case.” Id.
Even though the Fifth, Seventh, Ninth and Eleventh Circuits appear to agree on the general standard, they differ in its application. As to the court’s review of questions of law under the “contrary to ... clearly established federal law” standard, some courts hold that it is de novo while other courts hold that it is a little more deferential. See Lindh, 96 F.3d at 868-69 (“[F]ederal courts are free to express an independent review on all legal issues in the case.... Section 2254(d) requires us to give state courts’ opinions a respectful reading, and to listen carefully to their conclusions, but when the state court addresses a legal question, it is the law ‘as determined by the Supreme Court of the United States’ that prevails.”); Pitsonbarger v. Gramley, 103 F.3d 1293, 1297 (7th Cir.1996) (de novo review), cert, granted, judgment vacated on other grounds, — U.S. -, 118 S.Ct. 37, 139 L.Ed.2d 6 (1997); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir.), cert. denied, — U.S. -, 118 S.Ct. 586, 139 L.Ed.2d 423 (1997) (de novo review); Neelley, 138 F.3d at 923-924 (two situations render decision “contrary to” Supreme Court law — when the state court failed to apply the proper Supreme Court precedent or because the state court reached a different conclusion on substantially similar facts); Perez v. Marshall, 946 F.Supp. 1521, 1532 (S.D.Cal.1996), aff'd, 121 F.3d 716, 1997 WL 469645 (9th Cir.1997) (holding that the AEDPA does not allow de novo review of either or language of the new § 2254(d)(1), on its face, clearly expresses the congressional intent, to create a more deferential standard of review”).
However, these Circuits all agree that the review of mixed questions of law and fact under the “unreasonable application ... of clearly established federal law” is deferential, requiring “more than ... simple disagreement with the state court’s decision.” Drinkard v. Johnson, 97 F.3d at 768. The definition of “unreasonable application” varies. The Fifth Circuit holds that:
an application of law to facts is unreasonable only when it can be said that reasonable jurists considering the question would be of one view that the state court ruling was incorrect. In other words, we can grant habeas relief only if a state court decision is so clearly incorrect that it would not be debatable among reasonable jurists.
Id. at 769. See also Brown v. Cain, 104 F.3d 744, 749 (5th Cir.), cert. denied, 520 U.S. 1195, 117 S.Ct. 1489, 137 L.Ed.2d 699 (1997); Neelley, 138 F.3d at 924-25; Carter v. Johnson, 110 F.3d at 1103 n. 4. The Fifth Circuit has characterized this standard as “a somewhat hybrid standard of review that is probably most closely akin to the traditional ‘clearly erroneous’ standard than to any other established standard of review.” Mata v. Johnson, 99 F.3d 1261, 1267 (5th Cir.1996), vacated in part on other grounds, 105 F.3d 209 (5th Cir.1997).
Other courts have adopted different definitions. See Lindh, 96 F.3d at 870-71; Mata, 99 F.3d at 1268 (5th Cir.1996) (“reasonable, good faith application of Supreme Court precedent will immunize the state court conviction from federal habeas reversal, even if federal courts later reject that view of the applicable precedent”); Childress v. Johnson, 103 F.3d 1221, 1225 (5th Cir.1997) (same); Sweeney v. Parke, 113 F.3d 716, 718 (7th Cir.1997) (declaring that “criterion for assessing the reasonableness of a state court’s application of Supreme Court caselaw ... is ‘whether the determination is at least minimally consistent with the facts and circumstances of the case’ ”) (quoting Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir.), cert. denied, — U.S. -, 118 S.Ct. 72, 139 L.Ed.2d 32 (1997)); Porter v. Gramley, 112 F.3d 1308, 1313 (7th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 886, 139 L.Ed.2d 873 (1998) (stating that an unreasonable application of clearly established federal law “means ... ‘a responsible, thoughtful answer reached after a full opportunity to litigate’”) (quoting Lindh, 96 F.3d at 871).
The Fourth Circuit adopted a slightly different approach in Green v. French, 143 F.3d 865 (4th Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 844, 142 L.Ed.2d 698 (1999), holding:
If a state court decision is in square conflict with a precedent (supreme court) which is controlling as to law and fact, then the writ of habeas corpus should issue; if no such controlling decision exists, the writ should issue only if the state court’s resolution of pure law rests upon an objectively unreasonable derivation of legal principles from the relevant supreme court precedents, or if its decision rests upon an objectively unreasonable application of established principles to new facts.
Id. at 870.
The Fourth Circuit further stated, “a decision is ‘contrary to’ precedent only when, either through a decision of pure law or the application of law to facts indistinguishable in any material way from those on the basis of which the precedent was decided, that decision reaches a legal conclusion or a result opposite to and irreconcilable with that reached in the precedent that addresses the identical issue.” A decision “represents an ‘unreasonable application of precedent only when that decision applies a precedent in a context different from the one in which the precedent was decided and one to which extension of the legal principle of the precedent is not reasonable, when the decision fails to apply the principle of a precedent in a context where such failure is unreasonable, or when that decision recognizes the correct principle from the higher court’s precedent, but unreasonably applies that principle to the facts before it .... ”) Id.
The First Circuit criticized the “bifurcated standard” adopted by the Fifth and Seventh Circuits that distinguished between “questions of law” and “mixed questions of law and fact” as being inconsistent with the statute and its legislative history. O’Brien v. Dubois, 145 F.3d 16, 22 (1st Cir.1998). It has adopted the following approach:
A federal habeas court charged to weigh a state court decision must undertake an independent two-step analysis of that decision. First, the habeas court asks whether the Supreme Court has prescribed a rule that governs the petitioner’s claim. If so, the habeas court gauges whether the state court decision is ‘contrary to’ the governing standard. In the absence of a governing rule, the ‘contrary to’ clause drops from the equation and the habeas court takes the second step. At this stage, the habeas court determines whether the state court’s use of (or failure to use) existing law in deciding the petitioner’s claim involved an ‘unreasonable application’ of Supreme Court precedent.
Id. at 24. With respect to the “contrary to” standard, “a habeas petitioner must show that Supreme Court precedent requires an outcome contrary to that reached by the relevant state court.” Id. ■ at 24-25. To obtain relief under the “unreasonable application” standard, “the state court decision must be so offensive to existing precedent, so devoid of record support, or so arbitrary, as to indicate that it is outside the universe of plausible, credible outcomes.” Id. at 25.
The Tenth Circuit, although not definitively addressing this issue, decided in a case subject to the AEDPA that a mixed question of law and fact that involved primarily considerations of legal principles, ineffective assistance of counsel, was subject to a de novo analysis. Miller v. Champion, 161 F.3d 1249, 1254 (10th Cir.1998). Because the Tenth Circuit failed to explain what it meant by a “de novo” standard, I am left with the task of determining what standard should be applied. Given the Tenth Circuit’s limited statement in Miller, I conclude that the most rationale approach with respect to the standard of review is the one adopted by the First Circuit. The Tenth Circuit’s holding does not appear to lend itself to the Fifth and Seventh Circuits’ holding that questions of law are reviewed under the “contrary to” law standard while mixed questions of law and fact are reviewed under the “unreasonable application” of law. Further, I find that the First Circuit approach, with minor modifications, is most consistent with the actual language of the statute and its legislative history.
Accordingly, the standard of review used in this case includes these factors. I will first analyze whether the state court’s decision is contrary to law under a de novo standard. If the decision is not contrary to law, I will then determine whether the state court’s decision is an unreasonable application of law, as defined by the First Circuit. Finally, I note in connection with the standard of review that federal habeas corpus review is unavailable based on errors óf state law. Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).
IV. CONSTITUTIONAL ISSUES RAISED BY RODRIGUEZ
I next address Petitioner’s arguments that interpreting § 2254, as amended, to require more deference to mixed questions of law and fact would be unconstitutional as violating Article Ill’s requirement of an independent judiciary, the Due Process Clause and the Suspension Clause. I adopt the Seventh Circuit’s well reasoned opinion in Lindh which rejected these arguments.
First, as to the Suspension Clause, Lindh held that an argument that the amendment to § 2254 violates that clause was “feckless”, stating
[I]f the new § 2254(d) “suspends” the Great Writ, it does so no less for cases filed on April 25, 1996, than for cases pending on April 24. Yet to alter the standards of writs issue is not to ‘suspend’ the privilege of writ.
96 F.3d at 867. Lindh further discussed the history of the writ and concluded, “[a]ny suggestion that the Suspension Clause forbids every contraction of the powers bestowed by Congress in 1885, and expanded by the 1948 and 1966 amendments to § 2254, is untenable. The Suspension Clause is not a ratchet.” Id. at 868.
I agree with this analysis, and further note that Lindh’s holding is supported by the Supreme Court’s opinion'in Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996). There, the Supreme Court recognized that the AEDPA “codifies some of the preexisting limits on successive petitions and further restricts the availability of relief to habeas petitioners.” Id. at 664, 116 S.Ct. 2333. Nonetheless, the Supreme Court held that “ ‘the power to award the writ by any of the courts of the United States, must be given by written law’ ” and that “judgments about the proper scope of the writ are normally for Congress to make.” Id. (quotations omitted). Accordingly, it held that the new restrictions on successive petitions (another amendment to the AEDPA) “are well within the compass of this evolutionary process, and ... they do not amount to a ‘suspension of the writ contrary to Article I, § 9’ ”. Id. I think this holding is equally applicable to the other restrictions on ha-beas relief, including the amendments to § 2254(d). See also Perez v. Marshall, 946 F.Supp. 1521, 1531-32 (S.D.Cal.1996), aff'd, 121 F.3d 716, 1997 WL 469645 (9th Cir.1997).
With respect to Rodriguez’ argument that the amendments to § 2254(d) violate Article Ill’s requirement of an independent judiciary, the Seventh Circuit in Lindh stated that this argument “neglects] a basic distinction ...: Congress cannot tell courts how to decide a particular case, but it may make rules that affect classes of cases.” 96 F.3d at 872. The Seventh Circuit further stated:
Regulating relief is a far cry from limiting the interpretative power of the courts, however, and Congress has ample power to adjust the circumstances under which the remedy of the writ of habeas corpus is deployed.... This distinction between rights and remedies is fundamental. Every day, courts decline to distui’b judgments that they know are wrong. This is the principal function of the law of judgments.
The Seventh Circuit concluded:
Th[e] expression of the longstanding distinction between unlawful custody, which supported a writ of habeas corpus, and unlawful procedure in the course of a trial, which did not, reflected the law of the United States until 1953. Congress has elected to move back in that direction—but hardly very far, preserving independent federal review on pure questions of law, and subjecting mixed questions of law and fact to review for reasonableness. We would have to cast history to the winds to say that this decision, which respects fully-litigated judgments unless the state court has gone seriously wrong, transgresses constitutional limitations.
Id. at 873. I think that this reasoning is sound and rely upon it to reject Petitioner’s Article III argument. See also Perez, 946 F.Supp. at 1531.
Finally, the kSeventh Circuit rejected Petitioner’s argument that interpreting § 2254 to require deference to state court opinions violates the Due Process Clause because plenary review is a fundamental right. In doing so, it stated as follows:
Th[e] summary of collateral review in Part I.D of this opinion, and Learned Hand’s assessment of the state of the law in 1949, should disabuse any observer of the belief that plenary federal review of state criminal judgments is so firmly rooted in American tradition that any alteration has passed beyond legislative power. The Constitution contains an express limit on the power of Congress over the writ of habeas corpus— the Suspension Clause. It is not an appropriate exercise of the “judicial Power” to supplement the Suspension Clause with a rule that enhancements of the 20th Century cannot be altered.
Lindh, 96 F.3d at 874. Again, I believe that this reasoning is sound, and reject Petitioner’s argument that the standard as adopted by this Court violates the Due Process Clause. See also Perez, 946 F.Supp. at 1531.
V. ANALYSIS OF THE MERITS OF THE HABEAS PETITION
1. Claims Which Were Procedurally Defaulted In State Court That Will Not Be Considered Here
Respondent argues that a number of arguments asserted by Petitioner are barred because they were procedurally defaulted in the state court proceedings. 28 U.S.C. § 2254(b)(1) provides that “[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that—(A) the applicant has exhausted the remedies available in the courts of the State.” Thus, in order to obtain habeas corpus relief, a state prisoner must normally establish that he has exhausted state remedies, i.e., that he has “ ‘fairly presented’ to the state courts the ‘substance’ of his federal claim.” Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982).
Further, federal courts “wall not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). “The doctrine applies to bar federal habeas when a state court declined to address a prisoner’s federal claims because the prisoner had failed to meet a state procedural requirement.” Id. at 729-30, 111 S.Ct. 2546. The Supreme Court stated:
When the independent and adequate state ground supporting a habeas petitioner’s custody is a state procedural default, an additional consideration comes into play. This Court has long held that a state prisoner’s federal habe-as petition should be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims.
Id. at 731, 111 S.Ct. 2546. This is “grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner’s federal rights.” Id.
If the petitioner fails to present his claims to the state court in a timely manner or otherwise procedurally defaults the claims in state court, “federal habeas review is barred unless [the petitioner] can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Id. at 750. “Cause” must be “something external to the petitioner, something that cannot fairly be attributed to him.” Id. at 753, 111 S.Ct. 2546. The failure to establish cause eliminates the need to consider actual prejudice. See Engle v. Isaac, 456 U.S. 107, 134 n. 43, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982).
In this case, the Colorado Supreme Court found that Petitioner procedurally defaulted on several claims raised by the habeas petition herein. First, it found that certain issues were inadequately raised in the Rule 35 motion to the state district court and on appeal in that these issues failed to inform the court “both as to the specific errors relied upon and as to the grounds, supporting facts and authorities therefor.” Rodriguez V, 914 P.2d 230, 250 (Colo.1996). It further held:
[0]ur consideration of such issues on appeal of the district court’s order would effectively grant Rodriguez a successive 35(c) motion without also burdening him with the harsher standard of review appropriate to a successive motion.... We decline to grant Rodriguez this deference and, instead, uphold the district court’s dismissal of these claims, regardless of the adequacy of their presentation upon this appeal. We refuse to review the[se] ... issues because of Rodriguez’ failure to adequately specify the errors and legal grounds for relief at the district court level.
Id. at 251.
The Colorado Supreme Court also noted that the district court disallowed 191 claims which were “available for appeal” but which were not properly raised in the direct appeal. Id. at 252. In that regard, the court held that Petitioner had waived all of the alleged errors: “(1) that do not rise to the level of constitutional error; or (2) which Rodriguez does not reassert on this appeal.” Id. at 254.
The Colorado Supreme Court held that the following issues pertinent to the ha-beas petition herein were procedurally defaulted (as numbered by the Colorado Supreme Court): Issue 24 (alleging discovery violations in connection with the trial court’s refusal to provide discovery regarding Joseph Council); Issue 32 (alleging discovery violations which allegedly resulted in the denial of due process); Issue 43 (challenging the admissibility of the prosecution’s evidence concerning the cuts on David Martinez’ hands); Issue 48 (alleging unreasonable restrictions on voir dire); Issues 52 and 78 (alleging trial court error in refusing to excuse for cause prospective jurors who knew of Chris Rodriguez’ conviction and sen-tenee); Issue 58 (alleging defects in procedure on the first day of jury selection); Issue 59 (alleging inadequate voir dire of one jury panel due to defense counsel’s inexperience); Issue 68 (alleging defective jury summoning and selection); Issue 64 (alleging undue limitations on voir dire); Issue 66 (alleging limitations on voir dire concerning the commutation of death row inmates in New Mexico); Issue 77 (alleging improper excusal of potential jurors for cause due to their death penalty views); Issue 86 (alleging error in the exclusion of evidence of David Martinez’ physical condition after arrest); Issue 98 (alleging inadequate representation on the first day of jury selection); and Issue 102 (alleging the trial court’s failure to comply with a Supreme Court order regarding the first day of jury selection). Id. at 250-52, 255 n. 24.
With respect to each of the above enumerated issues, I find that federal habeas review is barred. The Colorado Supreme Court decided that these issues are procedurally barred, thus providing a state law ground that is independent of the federal question and adequate to support the judgment. Further, I find that Petitioner has not shown cause for these procedural defaults or that he has suffered actual prejudice. Finally, Petitioner has not shown that failure to consider his defaulted claims will result in a miscarriage of justice.
2. Ineffective Assistance Of Counsel Claims
A. Whether Petitioner was Denied the Assistance of Counsel during the Direct Appeal Process and Post-Conviction Proceedings Based upon the Admitted Fact that the State Intercepted Communications with his Lawyers in Violation of the Fifth, Sixth, Eighth and Fourteenth Amendments
Petitioner asserts that from the commencement of his incarceration on death row at Centennial Correctional Facility (“CCF”), he has been the victim of a systematic pattern of constitutional rights deprivations inflicted upon him by the State of Colorado. Petitioner states that he repeatedly sought relief in the Colorado courts from intentional incursions into his right to counsel by the State, all to no avail. These efforts are detailed in his Opening Brief at pp. 13-17. On March 3, 1992, Petitioner filed a civil lawsuit in this Court against the Department of Corrections (“DOC”) for violating his constitutional rights, captioned Rodriguez v. Zavvaras et al., Civil Action No. 92-N-425 (hereinafter referred to as “the civil action”) before Judge Nottingham. On January 17, 1997, pursuant to agreement of the parties, a judgment was entered against Defendants. Petitioner argues that, by accepting judgment, the State admitted to intentionally violating his constitutional rights during the direct appeal and postconviction proceeding. This admission, according to Petitioner, must result in the vacating of the death penalty.
Specific to the Sixth Amendment claim of the denial of assistance of counsel, Petitioner argues that the State intentionally opened and read his legal mail, denied him access to a telephone with which to contact counsel and/or monitored the calls, thei-eby violating the Sixth and FouiTeenth Amendments. Further, Petitioner alleges that he suffered Sixth Amendment violations during visits by his attorney, either by being denied access to the attorney or by having his visits monitored by audio and/or video tape. Petitioner asserts that the State conceded in its pleadings filed in the civil suit that it used one or more video cameras to monitor attorney visits until February' 1994, that it thereafter used audio tapes, and that the communications were not confidential. This forms part of the judgment in the civil suit. Further, it is argued that the State’s intentional interference with the attorney-client privilege deprived Petitioner and his counsel, Michael Heher (“Heher”), from being able to effectively communicate regarding the substance of the issues Heher desired to raise on direct appeal and in the postconviction proceedings in violation of the Sixth Amendment.
Petitioner asserts that the violation of the Sixth and Fourteenth Amendments is apparent from even a cursory reading of the Colorado Supreme Court’s denial of relief to Petitioner in the appeal from his .Rule 35(c) motion. The Colorado Supreme Court in Rodriguez V allegedly repeatedly criticized defense counsel for having inadequately represented Petitioner. Given the nature of the Colorado Supreme Court’s decision in Rodriguez V, Petitioner contends it is clear that the requirements of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) are met. In that regard, Petitioner points to the court’s finding that his counsel attached an appendix to the “Partial Opening Brief’ that listed 102 additional issues that he wanted to raise, but claimed that he could not because of unreasonable time limitations and an inadequate record on appeal. Rodriguez V, 914 P.2d 230, 247 (Colo.1996). Petitioner argues that appellate counsel’s failure to properly present these issues is ineffective assistance of counsel.
Petitioner also points to other statements by the Colorado Supreme Court which allegedly show that counsel was ineffective, including, but not limited to, (i) a conclusion that Petitioner’s failure to specifically reassert in the Rule 35(c) proceeding claims which the district court disposed of as previously litigated on the direct appeal was a conscious relinquishment of those claims (id. at 249 and 254); (ii) a finding that the postconviction motion raised many issues that were inadequately raised or presented (id. at 250-52); (iii) a finding that certain claims were waived by Rodriguez’ counsel (id. at 252); and (iv) a finding that Rodriguez “exploits this statutory right [to bring postconviction proceedings] through his exceedingly long and disjointed presentation 253).
Petitioner further asserts that his counsel failed to raise numerous issues in the 35(c) proceeding for no strategic reason, and that this was criticized by the Colorado Supreme Court. Other examples of ineffective assistance of counsel according to Petitioner are the failure to certify the record; the failure to state sufficient facts in a 35(b) motion to justify a reduction in the death sentence, even though abundant facts existed; making inadequate investigation in the Rule 35(c) proceeding to justify to the Court why funds for an investigator should have been expended for a new mitigation investigation; and the failure to adequately present evidence of mental illness. He asserts that counsel’s failure to make any showing at the Rule 35(c) proceeding that he suffered actual prejudice from trial counsel’s failure to present evidence of mental illness is a prime example of ineffective assistance of counsel. See id. at 297.
Petitioner argues that at the time the Colorado Supreme Court made its findings criticizing counsel, it was not even aware that the State of Colorado would soon concede that it had embarked upon a premeditated course of conduct designed to impair his counsel’s ability to adequately represent Petitioner. Whether the ineffectiveness resulted from the State’s interference or simple ineffectiveness is unknown. Nor, given the law which presumes prejudice in the face of Sixth Amendment violations, does it matter. Petitioner argues that he is not responsible for the shortcomings of his court-appointed attorney, and that he may forfeit his life because his state appointed attorney did such a poor job of representing him that his meritorious claims were never presented. This defect must be laid squarely at the door of the State of Colorado for its repeated intrusions into his right to counsel.
Turning to the authority upon which Petitioner relies, he argues that courts have consistently held that violations of the Sixth Amendment of a lesser magnitude than this case can impair the validity of the proceeding to such an extent that extreme relief must be granted. Among other cases, Petitioner relies on Shillinger v. Haworth 70 F.3d 1132, 1142 (10th Cir.1995) for the proposition that the Tenth Circuit finds a per se violation of the Sixth Amendment when there are intentional intrusions by the state into the attorney-client relationship. Petitioner also relies on Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), holding that “nominal representation on an appeal ... does not ... make the proceedings constitutionally adequate,” and United States v. DiDomenico, 78 F.3d 294, 299 (7th Cir.), cert. denied, 519 U.S. 1006, 117 S.Ct. 507, 136 L.Ed.2d 398 (1996), where the court allegedly referred to the sort of violations at issue here as “totalitarian-style” breaches of the Constitution.
In summary, Petitioner asserts that he was precluded from consulting with his attorney in confidence during the pen-dency of his direct appeal and the post-conviction proceedings. He contends that the Sixth Amendment intrusions were pervasive and ongoing, and were admitted through the form of judgment entered in favor of Rodriguez in the civil action before Judge Nottingham of this Court. Petitioner alleges that the intentional violations of the Sixth Amendment should result in one of several remedies. He argues that he should be given the right to a new direct appeal, and should be given a hearing to determine whether a new appeal is feasible in light of the passage of time. Similarly, Petitioner requests that the Court hold that all of the prior post-conviction proceedings were a “nullity” since he was unable to consult meaningfully with his counsel. Alternatively, Petitioner requests that the death sentence be vacated.
The Colorado Supreme Court, in reviewing this issue, characterized the issue as one of control of internal procedures by the correctional institutions. In that regard, it stated that “[t]he supervision and management of the internal procedures of correctional institutions is within the discretion of institutional officials and is not subject to judicial review absent exceptional circumstances.” Rodriguez V, 914 P.2d 230, 290 (Colo.1996). It further noted that the State Public Defender’s Office had brought an action in the Eleventh Judicial District on behalf of Rodriguez and another inmate and that the district court was correct in its analysis that it could not properly review another judicial district’s action. Id. at 290-91. Finally, the Colorado Supreme Court rejected Petitioner’s assertion that the district court’s denial of his motions on this issue without a hearing constituted reversible error, holding that “the district court properly found that Rodriguez’ claims lacked merit and did not warrant a hearing.” Id. at 291.
Regarding my findings on this issue, it is somewhat unclear from the Petitioner’s Opening Brief whether this is a claim for ineffective assistance of counsel or a claim for intentional intrusions into the attorney-client relationship, or both. In his reply, however, Petitioner clarifies that this claim relates to the denial of counsel and is not a claim for ineffective assistance of counsel. Accordingly, I will treat this issue as one for denial of counsel through intentional interference with the attorney-client relationship. Issues concerning ineffective assistance of counsel are addressed in the following section of this Order. I next discuss the standard of review applicable to this type of claim.
In Strickland v. Washington, the Supreme Court, while primarily focusing on a claim for ineffectiveness of counsel, did recognize that in certain Sixth Amendment contexts, prejudice is presumed. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Specifically, it held:
Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice. So are various kinds of state interference with counsel’s assistance. See United States v. Cronic, 466 U.S. at [648] 659, and n. 25[, 104 S.Ct. 2089, 80 L.Ed.2d 657 (1984)].... Prejudice in these circumstances is so likely that case-by-case inquiry into prejudice is not worth the cost.
Id. at 692, 104 S.Ct. 2052; see also Perry v. Leeke, 488 U.S. 272, 280, 109 S.Ct. 594, 102 L.Ed.2d 624 (1989).
I find that this situation does not involve one where Petitioner was deprived of counsel altogether so that prejudice can be presumed. It is undisputed that, even despite the alleged interference with the attorney-client relationship, counsel was able to and did represent Petitioner in the direct appeal and in the postconvietion proceeding. Counsel filed lengthy briefs in both forums. Further, although Petitioner argues that the state at times denied him the right to see or call his counsel, he does not allege that he was completely denied the right to see or speak with his counsel or that he was denied the right to counsel during some critical stage of the appeal.
I find the Colorado Supreme Court’s analysis of when a denial of counsel can be found, and prejudice presumed, to be an accurate statement of the law and adopt it herein. There, the court found that a denial of counsel occurs “only when counsel was either totally absent or altogether prevented from assisting the defendant during a critical stage of the proceeding.” Rodriguez V, 914 P.2d at 299-300. This appears to be the correct analysis. See Jackson v. Johnson, 150 F.3d 520, 524-25 (5th Cir.1998), petition for cert, filed (Jan. 20, 1998) (No. 98-7812) (“[t]he Supreme Court has held that when a criminal defendant receives no meaningful assistance at all from his court-appointed lawyer, he is constructively denied his Sixth Amendment rights to counsel ... [a] constructive denial of counsel ... occurs in only a very narrow spectrum of cases where the circumstances leading to counsel’s ineffectiveness are so egregious that the defendant was in effect denied any meaningful assistance at all”). Petitioner does not cite any Supreme Court or other authority for the argument that the type of interference at issue herein arises to the level of a denial of counsel. The only case cited by Petitioner on this issue, Gideon v. Wainwright, 872 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), dealt with a denial of counsel altogether, which is clearly not the situation here.
Accordingly, I find that the controlling legal authority deals, not with denial of counsel, but with the state’s interference in the attorney-client relationship. Since this case involves an admitted interference with the attorney-client relationship, at least in part, through the judgment in Civil Action No. 92-N-425, the overriding issue is whether Petitioner needs to show prejudice in order to obtain relief in this proceeding. The government claims that prejudice is required to be proven, relying primarily on Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977), while Petitioner claims that prejudice must be presumed, relying primarily on Shillinger v. Haworth, 70 F.3d 1132 (10th Cir.1995).
Weatherford is the seminal case on this issue. It dealt with attorney-client conversations that were overheard by a government informant. The Supreme Court rejected the Fourth Circuit’s adoption of a per se rule of a violation of the Sixth Amendment in this context, without any showing of prejudice. In so doing, it distinguished two electronic surveillance cases relied on by the Fourth Circuit, Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26 (1966) and O’Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94 (1967), holding that these cases did not establish such a per se rule. 429 U.S. at 551-52, 97 S.Ct. 837. In fact, it stated, “[i]f anything is to be inferred from these two cases with respect to the right to counsel, it is that when conversations with counsel are overheard, the constitutionality of the conviction depends on whether the overheard conversations have produced, either directly or indirectly, any of the evidence offered at trial.” Weatherford, 429 U.S. at 552, 97 S.Ct. 837. The Supreme Court went on to state that the Sixth Amendment was. not violated unless the petitioner showed that the informant “communicated the substance of the ... conversations and thereby created at least a realistic possibility of injury to [petitioner] or benefit to the State.” 429 U.S. at 558, 97 S.Ct. 837.
The Tenth Circuit further addressed government monitoring of attorney-client conversations in Shillinger. In that case, a deputy sheriff was present during several pretrial preparatory sessions between defense counsel and his client. Although defense counsel was paying the. deputy sheriff, and told him to consider himself an employee of defense counsel during the sessions, it later became apparent that the deputy sheriff had communicated to the prosecutors the substance of some of the conversations.
The Tenth Circuit reviewed the cases in which state interference with the right to counsel has been held to violate a defendant’s Sixth Amendment rights per se (none of which circumstances are presented in the case at hand) after which it fashioned the following rule for intentional intrusions into the attorney-client relationship:
[W]e hold that when the state becomes privy to confidential communications because of its purposeful intrusion into the attorney-client relationship and lacks a legitimate justification for doing so, a prejudicial effect on the reliability of the trial process must be presumed. In adopting this rule, we conclude that no other standard can adequately deter this sort of misconduct. We also note that ‘[prejudice in these circumstances is so likely that case-by-case inquiry into prejudice is not worth the cost.’
Id. at 1142, citing Strickland v. Washington, 466 U.S. at 692, 104 S.Ct. 2052.
However, the Tenth Circuit stated that “this case presents a situation unlike Weatherford in that the intrusion here was not only intentional, but also lacked a legitimate law enforcement purpose.” Id. at 1139. In Shillinger, the “state’s interest in effective law enforcement” was not at issue; instead, “the prosecutor, by his own admission, proceeded for the purpose of determining the substance of [the defendant’s] conversations with his attorney, and attorney-client communications were actually disclosed.” Id. at 1141. The Tenth Circuit further made clear that where this type of situation does not exist, ie., where the state has a legitimate law enforcement purpose for its intrusion, the per se analysis does not apply and the petitioner must present “proof of ‘a realistic possibility of injury to [the defendant] or benefit to the State’ in order to constitute a violation of [petitioner’s] Sixth Amendment rights.’ ” Id. at 1142.
Thus, contrary to Petitioner’s argument, the Tenth Circuit does not support a finding that all intentional intrusions into the attorney-client relationship require a per se finding of a violation of the Sixth Amendment. Instead, the Tenth Circuit looks to whether there was some improper motive of the law enforcement officials.
In the case at hand, Petitioner argues by implication that the fact that the defendants in the civil action made an Offer of Judgment which was accepted by Petitioner means that they admitted they had an improper motive in monitoring Petitioner’s conversations with his counsel. Petitioner presents no evidence or argument as to what was the improper motive.
I have reviewed the Judgment and the Offer of Judgment in Civil Action No. 92-N-425. Contrary to Petitioner’s assertion, the Judgment is not an admission of liability by the state defendants. Instead, the Offer of Judgment upon which the Judgment is based states only that defendants “will allow judgment to be taken against them in the form of an order requiring the defendants to destroy all videotapes of attorney-inmate visits and enjoining defendants from videotaping visits between plaintiffs and their attorneys at the Colorado State Penitentiary (“CSP”) ..., and requiring CSP correctional officers to refrain from observing the contents of documents and to avoid overhearing normal conversation levels during plaintiffs’ attorney-client visits, with reasonable and appropriate costs.... ” See Offer of Judgment in 92-N-425. At most, this is an admission that there was some interference with the attorney-client relationship, not that this interference was based on an improper motive or violated Petitioner’s constitutional rights. Indeed, throughout the proceedings in that case, the state maintained that the interference was conducted for a legitimate penological interest.
Accordingly, I find that Petitioner has not shown that the prison officials had an improper motive for interfering in his attorney-client relationship, ie., one based on something other than a law enforcement purpose. Therefore, both Shilling-er and Weatherford, require a showing that the state benefitted in some way from the interference before prejudice will be presumed. This is consistent with the decisions from other Circuits that have considered this issue. See Mastrian v. McManus, 554 F.2d 813, 821 (8th Cir.), cert. denied, 433 U.S. 913, 97 S.Ct. 2985, 53 L.Ed.2d 1099 (1977); Sinclair v. Schriber, 916 F.2d 1109, 1112-13 (6th Cir.1990); Clark v. Wood, 823 F.2d 1241, 1250 (8th Cir.), cert. denied, 484 U.S. 945, 108 S.Ct. 334, 98 L.Ed.2d 361 (1987); United States v. Ofshe, 817 F.2d 1508, 1515 (11th Cir.), cert. denied, 484 U.S. 963, 108 S.Ct. 451, 98 L.Ed.2d 391 (1987).
Although I conclude that prejudice should not be presumed here, I acknowledge that circumstances may exist where state interference with the attorney-client relationship could chill communication between the client and his counsel. Indeed, as the Supreme Court recognized in Weatherford, there is a distinction between electronic surveillance and an informant overhearing conversations between defense counsel and his client. Id., 429 U.S. at 554 n. 4, 97 S.Ct. 837. In both situations there is an “inhibition of free exchanges between defendant and counsel because of the fear of being overheard.” Id. However, “a fear that some third party may turn out to be a government agent will inhibit attorney-client communication to a lesser degree than the fear that the government is monitoring those communications through electronic eavesdropping, because the former intrusion may be avoided by excluding third parties from defense meetings or refraining from divulging defense strategy when third parties are present at those meetings.” Id.
The Seventh Circuit recognized this in United States v. DiDomenico, 78 F.3d 294 (7th Cir.1996), when it gave the following-example:
The government adopts and announces a policy of taping all conversations between criminal defendants and their lawyers. It does not turn the tapes over to the prosecutors. It merely stores them in the Natio