Full opinion text
Final Memorandum Decision and Order Denying Petition for Writ of Habeas Corpus and Granting in Part Certifí-cate of Appealability WANGER, District Judge. Petitioner Michael Allen Hamilton (“Hamilton”) first appeared in federal court June 12, 1990, requesting a stay of execution and appointment of counsel. Hamilton filed his petition for writ of habe-as corpus under 28 U.S.C. § 2254 December 3, 1991, and amended his petition January 11, 1993. Hamilton was ordered to exhaust state remedies March 18, 1993, and his second state habeas petition was filed in July, 1994. After informal briefing, the California Supreme Court issued an order to show cause (“OSC”) on July 17, 1996, addressing issues of juror bias and misconduct. The matter was referred to the trial court, a referee was appointed, and an evidentiary hearing was held November 4 and 5, 1997. The California Supreme Court discharged the OSC and denied the petition May 6, 1999, holding the evidence did not show the juror’s failure to fully disclose her pretrial knowledge and opinions about the case resulted in the seating of a biased juror since her omissions were inadvertent, and her contemplation of her deceased uncle did not bear on her ability to be fair and was not a pretrial event which she was required to disclose in voir dire. In re Hamilton, 20 Cal.4th 273, 84 Cal.Rptr.2d 403, 975 P.2d 600 (1999). The remainder of Hamilton’s claims in his second state habeas petition were summarily denied. Hamilton filed his fully exhausted petition with supporting points and authorities April 14, 2000. Respondent Robert Ayers (“the State”) filed an answer with supporting points and authorities July 19, 2000, and Hamilton’s traverse was filed November 20, 2000. Hamilton filed his motion for evidentiary hearing December 5, 2000, and the State’s opposition to an evidentia-ry hearing was filed January 2, 2001. The State was granted leave to file a supplemental opposition to Hamilton’s motion for evidentiary hearing January 15, 2002, and Hamilton’s response to the supplemental opposition was filed March 1, 2002. Hamilton’s motion for evidentiary hearing was granted in part on Claim 2b, addressing the issue of whether trial counsel’s performance was deficient for failing to present mitigating evidence. Claims 8, 10, 12,14,15, 21, and subclaims a, g, h, i, o, u, w, aj, ak, ao, and as, of Claim 2, were denied an evidentiary hearing and denied on the merits. See Memorandum and Order Granting in Part and Denying in Part Motion for Evidentiary Hearing, dated November 12, 2002. An evidentiary hearing was held December 3 and 4, 2003, at which testimony was received from Strickland expert Phillip Cherney, trial counsel David M. Liebowitz, defense investigator Danny Wells, and Hamilton. Following the hearing, Hamilton was allowed to supplement the record, and did so with documents filed January 26, 2004. Hamilton filed his post-hearing brief March 16, 2004, and the State filed their post-hearing brief on March 29, 2004. The State objected to a copy of a letter by Hamilton about his background dated September 20, 1982, first submitted with the supplemental records filed January 26, 2004. See Ex. 133D. The State argued the late submission, fourteen years after the ineffective assistance of counsel claim was raised and after the completion of habeas discovery and the evidentiary hearing, raises serious questions about its authenticity and reliability. The State submitted a declaration from trial counsel stating he was certain he never saw this document. The State contended these issues must be resolved before any weight could be given to this document. The State’s motion to reopen the evidentiary hearing was granted and a hearing addressing the limited issue of the credibility of Exhibit 133D was held September 9, 2004. Hamilton filed his supplemental brief October 26, 2004, and the State filed its supplemental brief November 2, 2004. I. PROCEDURAL HISTORY Hamilton was convicted of the November 2, 1981 shooting of his wife and their unborn child. The jury found Hamilton personally used a firearm in the murders. Two special circumstances, financial gain and multiple murder, were found true as to Hamilton’s wife, and the special circumstance of multiple murder was found true as to the fetus. Hamilton was sentenced to death on December 16, 1982. On direct appeal the California Supreme Court set aside one of the multiple murder special circumstances and otherwise affirmed the judgment in full. People v. Hamilton, 48 Cal.3d 1142, 259 Cal.Rptr. 701, 774 P.2d 730 (1989). Hamilton’s first state habeas corpus petition, filed March 14, 1989, was summarily denied August 31, 1989, and certiorari was denied March 19,1990. II. FACTS In 1981, Hamilton, his wife Gwendolyn (Gwen) who was pregnant, and their four children, ages six, four, three and one, lived in Bakersfield. RT 7:1725, 1740; RT 9:2039-40. In March of that year, the Hamiltons purchased life insurance policies, $175,000 on Hamilton and $100,000 on Gwen, paying the initial premium for coverage until June. RT 7:1715-17. When they did not pay the second quarterly payment on time, the agent personally collected the payment from Hamilton, extending the policy into September. Id. at 1717, 1722. When the third premium was not received, the agent again visited the Ham-iltons on October 17, collecting payment for two months from Gwen, extending the policies into November. Id. In September, Hamilton began an extramarital relationship with Brenda Burns. RT 8:1798-99. In October, he called his sister Carolyn Hamilton to ask if she knew anyone who would do something illegal for money. Id. at 1852-58. Later he told Carolyn he wanted someone to kill Gwen and offered her $20,000 from the insurance on Gwen’s life if she would help find someone to do the killing. Id. at 1855, 1857-60. Hamilton told both Carolyn and his brother-in-law Lyle Palmer that he had a girlfriend, but if he left or divorced Gwen he wouldn’t have his kids. Id. at 1857; RT 7:1744-45. Brenda’s sister Sharon Burns also testified that Hamilton told her he didn’t like the way Gwen was in bed, sexually, and he wanted to divorce her so he could live with Brenda. RT 8:1842. Carolyn first asked another sister, Victoria (Vicki) Hamilton, who agreed to kill Gwen for $10,000 of the insurance money. RT 8:1861; RT 9:2045. However, Vicki moved to Texas a few days later. RT 8:1959-68. Carolyn then approached Gilbert Garay, a prior acquaintance she met when both worked as security guards for Porterville Private Patrol. Id. at 1856, 1865-67, 1972-77. Gilbert agreed to kill Gwen for $10,000. Id. at 1867, 1974-75. On October 31, Hamilton and Brenda Burns went to K-Mart in Bakersfield and purchased a single-shot 12-gauge shotgun. RT 8:1776, 1801. Hamilton said he left his identification in the car, so Brenda purchased the gun and shells with money furnished by Hamilton. Id. at 1776; 1802-OS, 1805-06. That evening Hamilton, Gwen, and their children drove to Porterville to take their kids trick-or-treating with Carolyn’s son. RT 8:1868. While accompanying the children trick-or-treating, Hamilton, Carolyn and Gilbert discussed plans for the murder. Id. at 1869-70. Hamilton told Carolyn he would start to drive his family home, but then stop on Highway 65 claiming one tire was flat, so that Carolyn and Gilbert could drive by and shoot Gwen. Id. at 1869-70, 1982. Carolyn and Gilbert left in Carolyn’s truck a few minutes after Hamilton. Id. at 1981. As planned, Carolyn and Gilbert found Hamilton crouched down by the tire with Gwen standing beside him holding a flashlight. Id. at 1872-73. Although Carolyn drove by three to four times, Gilbert never pulled the trigger, so they eventually returned to Porter-ville. Id. at 1874,1984-85. Hamilton phoned Carolyn about an hour later to ask what happened. RT 8:1875. Carolyn made excuses and Hamilton said they would come back to Porterville the next day. Id. at 1875-76. The next day Hamilton phoned Carolyn to say he would pretend to have lost his wallet while changing the tire. Id. at 1876-77, 1987. Hamilton and Gwen would stop at the same place on the pretext of looking for his wallet. Id. at 1877, 1987. Carolyn and Gilbert would follow them and shoot Gwen as previously planned. Id. That evening, Hamilton and his family again visited Carolyn, his mother and stepfather, Jacqueline (Jackie) and Sam Piper, in Porterville. RT 8:1877, 1988. Carolyn and Gilbert followed Hamilton about a half-hour after he left, and found him and Gwen at the same place, looking for the “lost” wallet. Id. at 1878-79, 1989. Carolyn and Gilbert drove' by several times, but again Gilbert did not shoot. Id. at 1879— 80, 1990-91. Hamilton was mad when he called Carolyn about an hour later, and she made more excuses. Id. at 1881. The following day Hamilton called Carolyn with a new plan. RT 8:1882. As part of this plan, Carolyn called Gwen and told her that Hamilton’s wallet had been found. Id. at 1993. Hamilton and Gwen for the first time left their children with Gwen’s sister, who also lived in Bakersfield, and drove a white pickup truck to Porterville. RT 7:1726-28. When they arrived, Hamilton surreptitiously gave Carolyn his wallet, so she could return it to him in front of the family. RT 8:1884. Hamilton and Carolyn went to pick up Gilbert, and Carolyn and Gilbert told Hamilton they weren’t going to shoot Gwen. Id. at 1886-87, 1998. Hamilton said he would do it. Id. at 1888. Hamilton said he would be hitchhiking, and instructed Carolyn and Gilbert to pick him up and take him back to his pickup. Id. at 1995. This time everything went according to the new plan. Carolyn gave Hamilton an icepick, which he used to jab a hole in one of his pickup’s tires. Id. at 1888-89. Hamilton stopped the pickup along the highway because one tire was going flat. RT 7:1696. He left Gwen in the truck and walked along the highway, ostensibly to find a place where he could phone for help. Id. Carolyn and Gilbert picked him up in Carolyn’s truck and drove him to a phone booth, where Hamilton called his mother and asked her to come help him. RT 8:1892, 1998; RT 7:1613. Mrs. Piper said she could not come until Carolyn returned with the truck. Id. at 1614. Carolyn and Gilbert then drove Hamilton back to where Gwen was waiting in the pickup. RT 8:1892, 1998. Hamilton took the shotgun, walked over to the pickup, and shot Gwen. Id. 1894, 2001. He returned to the truck and demanded another shell. Id. at 1894, 2003. After reloading, he went back and shot Gwen again. Id. at 1896, 2003-04. Gilbert drove back to the phone booth where they left Hamilton. RT 8:1897-98, 2006. Carolyn returned home with the truck after she dropped Gilbert off at a friend’s house. Id. at 1899-1900. Carolyn called Hamilton back at the phone booth and said their mother and stepfather were on the way. Id. at 1900; RT 7:1615. The Pipers drove Carolyn’s truck to pick up Hamilton at the phone booth, and then to where Hamilton “discovered” that Gwen had been killed. Id. at 1615-16. An autopsy revealed the cause of Gwen’s death was shotgun wounds to the throat arid chest, fired at close range. RT 7:1677-81. The fetus was viable and died from anoxia caused by Gwen’s death. Id. at 1682-84; RT 8:1929-30. Hamilton first told the police that Gwen had been killed while he was hitch-hiking to the phone booth. RT 7:1695-98. The next day, however, he said that she was killed by a Canadian whom he refused to identify. Id. at 1699. Eventually Vicki told the police of the plan to kill Gwen. RT 9:2052-53. With Vicki’s consent, the police taped two phone calls between her and Carolyn. Id. at 2054. Carolyn and Gilbert each confessed when they were arrested, and were each charged with two counts of first degree murder with special circumstances. RT 8:1904, 2011-12. Both Carolyn and Gilbert agreed to plead guilty to second degree murder with a dangerous-weapon enhancement, and be sentenced to 16 years to life, in return for their testimony against Hamilton at trial. Id. at 1904, 2013. Carolyn and Gilbert both testified at trial, identifying Hamilton as Gwen’s killer. Id. at 1894-96, 2000-04. At trial, the defense attempted to show that Gilbert might have been the actual killer. Lilly Bardsley, the clerk from K-Mart who testified for the prosecution that she sold the shotgun to Brenda and Hamilton, was recalled by the defense and testified instead that she sold the gun to Brenda’s sister Sharon, who was accompanied by both Hamilton and Gilbert. RT 9:2145-51, 2157-68. Sharon, also recalled by the prosecution in rebuttal, denied purchasing the shotgun. Id. at 2177-80. The ATF form filled out at the time the gun was purchased was signed with Brenda’s name, and the prosecutor presented expert testimony that the signature was in Brenda’s, not Sharon’s, handwriting. Id. at 2211-24. Vicki testified that when she first talked to Carolyn after the murder, she assumed Gilbert was the shooter. Id. at 2050. Another defense witness testified that prior to Gwen’s murder, Hamilton told her he suspected Vicki and her boyfriend, Stephen Fitzherbert (who was Canadian), were planning to kill him. Hamilton stated, “Well, you know my family, if they want anything bad enough, they’ll kill for it.” RT 9:2138-41. Hamilton did not testify. The jury found Hamilton guilty as charged, and found true the charged special circumstances of intentional murder for financial gain, and two counts of multiple murder. RT 10:2347-58. The penalty trial was brief. The prosecutor presented documentary evidence that ten years previously Hamilton was convicted of grand theft. Id. at 2373-74. Defense counsel called Hamilton’s mother, who testified that as a child Hamilton had been removed from the family home because of abusive conduct by his father, and placed in a series of foster homes. Id. at 2382-84. Hamilton requested permission to read a statement telling the penalty jury he was not guilty, but for unspecified reasons beyond his control he was not permitted to testify or present exonerating evidence, and asking the jury to “return with the penalty described by law for the crime that you have me guilty of.” Id. at 2374-81. Defense counsel objected, and the court refused to permit Hamilton to read the statement. Id. After approximately four hours, the jury returned a verdict imposing the death penalty. Id. at 2419-20. III. APPLICABILITY OF THE AED-PA; STANDARD OF REVIEW On April 24, 1996, Congress passed the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), amending Chapter 153 (28 U.S.C. §§ 2241-2255), which governs federal habeas corpus proceedings. The United States Supreme Court held the provisions of the AEDPA apply only to cases filed after its effective date. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under previous Ninth Circuit authority, a capital habeas corpus case was pending or filed when an application for appointment of counsel and a request for a stay of execution was filed. Calderon v. U.S. Dist. Court (Kelly V), 163 F.3d 530, 540 (9th Cir.1998) (en banc). However, Woodford v. Garceau, 538 U.S. 202, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003), overturned Kelly V, holding that only an application for habeas relief which seeks adjudication on the merits of a petitioner’s claims qualifies a case as “pending” under amended § 2254(d). Id. at 207, 123 S.Ct. 1398. The holding of Garceau does not affect the previous rulings that Hamilton is not subject to the limitations of the AEDPA. Hamilton’s initial federal habeas petition, which sought adjudication on the merits of his claims, was filed on December 3, 1991. Hamilton’s case was pending at the time the AEDPA was enacted and is not subject to the amendments to Chapter 153. Constitutional violations are categorized as either trial error or structural error. Arizona v. Fulminante, 499 U.S. 279, 306-10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Trial errors “occur during the presentation of the case to the jury,” and are amenable to harmless-error analysis because they can “be quantitatively assessed in the context of other evidence presented” to determine the effect on the trial. Fulminante, 499 U.S. at 307-308, 111 S.Ct. 1246. Structural errors are “defects in the constitution of the trial mechanism, which defy analysis by ‘harmless-error’ standards,” id. at 309, 111 S.Ct. 1246, and require “automatic reversal of the conviction because they infect the entire trial process.” Brecht v. Abrahamson, 507 U.S. 619, 629-30, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). The limited scope of federal habeas review does not warrant relief unless trial errors had a “substantial and injurious effect or influence in determining the jury’s verdict” and deprived Hamilton of a fair trial in violation of his right to due process. Brecht, 507 U.S. at 623, 113 S.Ct. 1710. In the rare case where a court is in “grave doubt” or “virtual equipoise” about the harmlessness of the error, the error should not be treated as harmless. O’Neal v. McAninch, 513 U.S. 432, 435, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). Mixed questions of fact and law require de novo review. Dickson v. Sullivan, 849 F.2d 403, 405 (9th Cir.1988). State court findings of historical fact are entitled to a presumption of correctness under 28 U.S.C. § 2254(d) (effective until April 23, 1996), and are reviewed for clear error. Jeffries v. Blodgett, 5 F.3d 1180, 1187 (9th Cir.1993). TV. PRE-TRIAL CLAIMS 1. CLAIM 21: COMPETENCE TO STAND TRIAL Hamilton contends he was incompetent to stand trial and that no inquiry was made by the court, the prosecutor, or defense counsel, into his mental state even though they were on notice of his possibly disordered or impaired mentality. Competence to stand trial is a fundamental right which implicates due process. Cooper v. Oklahoma, 517 U.S. 348, 354, 116 S.Ct. 1373, 134 L.Edüd 498 (1996). The test for competency to stand trial is whether the defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam); Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). Cases finding sufficient evidence of incompetency have entailed either extremely erratic and irrational behavior during trial or a lengthy history of acute psychosis and psychiatric treatment. Compare Boag v. Raines, 769 F.2d 1341, 1343 (9th Cir.1985) (no real and substantial doubt of competency because five attempted suicides were too distant from the crime, no mental impairment from repeated head injuries and alcoholism, and diagnosis as a sociopath does not affect competency); and de Kaplany v. Enomoto, 540 F.2d 975, 983-85 (9th Cir.1976) (no bona fide doubt of competency despite two emotional and inappropriate outbursts at trial, expert testimony of severe disturbance and paranoid schizophrenia, and a bizarre and gruesome crime); with Tillery v. Eyman, 492 F.2d 1056, 1057-58 (9th Cir.1974) (incompetence found where the defendant displayed erratic and irrational behavior during trial, such as screaming throughout the night, laughing at the jury, gesturing to the bailiff, disrobing in the courtroom and butting his head through a glass window); Moore v. United States, 464 F.2d 663, 665 (9th Cir.1972) (incompetence shown by the defendant’s lengthy history of acute psychosis, repeat hospitalization for acute mental illness and hallucinations, and evidence of psychiatric treatment); and Odle v. Woodford, 238 F.3d 1084, 1088 (9th Cir.2001) (competency hearing required where section of Odle’s brain was removed and had history of psychotic episodes, despite calm appearance in court). On collateral review, the determination of competence is reviewed as of the time of trial, de Kaplany, 540 F.2d at 979-80 (evidence before the state trial judge reviewed to determine if there should have been a bona fide doubt as to competence). A claim of trial court error requires a showing that a reasonable judge would have had a bona fide doubt as to the defendant’s competence to stand trial. Amaya-Ruiz v. Stewart, 121 F.3d 486, 489 (9th Cir.1997); cf. Torres v. Prunty, 223 F.3d 1103, 1109 (9th Cir.2000) (trial court’s finding of no bona fide doubt was not supported by the record). A bona fide doubt arises if there is substantial evidence of incompetence, which includes irrational behavior, demeanor at trial, and any prior medical opinion on competence. Amaya-Ruiz, id.; Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). Hamilton contends he had a previous psychiatric history including an admission to a psychiatric ward, was psychiatrically and neuropsychologically impaired during the commission of the crime and pre-trial detention, and suffered from major mental illnesses, all of which required professional intervention and medications while awaiting trial, including treatment for: (1) major depression; (2) suicidal tendencies with at least one attempted suicide while awaiting trial; (3) post-traumatic stress disorder; and (4) psychosis. Hamilton contends he was administered medications for depression, agitation, anxiety and emotional instability which were not supported by reliable medical or judicial determinations and were contra-indicated for a patient with hyperthyroidism and emotional instability. Hamilton presents in support of this claim the opinion of George Woods, M.D., who asserts that Hamilton’s mental state deteriorated during his incarceration before trial. Dr. Woods relates that Hamilton was observed by medical staff to be anxious, depressed, experienced sleep disturbances and nightmares, and was suicidal, that a psychologist noted his difficulty in concentration, blunted affect (feeling, emotion), exhaustion, sadness and tearfulness, that he was medicated with Etrafon (an antipsychotic drug), Tofranil (an antidepressant) and Benadryl, medications which could have been contra-indicated given his medical history, that he was observed by court staff and jurors to be emotionally constricted, remarkably expressionless, lacking emotion and seemingly detached, while at other times emotionally labile (unstable), weepy and suddenly uncontrollable, and that his emotional responses intensified and he began shouting and crying during a conversation with counsel after his dosage of Etrafon was increased. Dr. Woods concludes these reports point to a pharmaceutically-induced or aggravated state of confusion, agitation and inattention that likely affected Hamilton’s ability to make decisions, testify relevantly, and respond appropriately to courtroom proceedings and developments, and made it extremely unlikely he would have been able to weigh and consider such issues as the advantages and disadvantages about testifying and to reach a rational decision about testifying. Dr. Woods also concludes that Hamilton’s family history of genetic disorders, childhood physical and psychological abuse and atmosphere of sexual abuse, burdened him with extreme mental and emotional impairments, including serious psychiatric disorders, that compromised his ability to fully appreciate the nature and consequences of his acts or to conform his conduct to the requirements of the law. See Ex. 48. No medical records are presented in support of this claim. Hamilton instead offers the opinion of Dr. Woods, concluding that contemporaneous observations of Hamilton’s emotional state during his trial indicate Hamilton’s preexisting mental condition was exacerbated by the drugs he was given, rendering it extremely unlikely Hamilton was able to make rational decisions. No declaration regarding Hamilton’s competency is submitted from trial counsel. Further, Hamilton has not cited, and the record does not show, one instance of Hamilton acting irrationally during the pretrial, trial' or sentencing proceedings. To the contrary, on the three occasions when the trial court conversed with Hamilton regarding his request to be moved to an alternate cell, his Marsden motion, and his request to read a statement to the jury, Hamilton responded appropriately and intelligently, indicating an understanding of the court’s explanations. See RT May 17, 1982; RT June 22, 1982; RT 10:2374-81. Even Hamilton’s proclamation of his innocence prior to sentencing indicates his ability to control his emotions and communicate, despite facing an extremely stressful event. See RT December 16, 1982. Finally and very importantly, Hamilton has not shown that he was unable to understand the nature of the proceedings against him or to assist counsel. To the contrary, Hamilton’s discourses with the trial court indicate he was fully aware of what was occurring and was able to communicate his thoughts and opinions to counsel. Hamilton filed supplemental records on January 26, 2004, which included Tulare County Jail Medical Records from December 1981 through March 1982, as well as medical records from Kings View Clinic of a mental health evaluation on April 8, 1982, and medication orders for May through October, 1982. The jail records show that Hamilton was receiving medication for depression in March, 1982, and that it had been discontinued for an unknown reason. See Ex. 140. The Kings View diagnosis attributed Hamilton’s blunted affect (feelings, emotions) and depressed mood to being incarcerated and charged with murder. See Ex. 134. The supplemental ■ evidence does not support Hamilton’s claim that he was incompetent. When the record is viewed as a whole, the evidence presented by Dr. Woods does not raise a “bona fide doubt” as to Hamilton’s competence to stand trial. Based on the evidence presented, defense counsel was not ineffective for failing to raise the issue of Hamilton’s competence. The record fairly supports the California Supreme Court’s summary denial of this claim. Claim 21 is denied on the merits. 2. CLAIMS 1 & 2ab: CHANGE OF VENUE; INEFFECTIVE ASSISTANCE OF COUNSEL Hamilton contends the trial court erred by twice denying his request to change venue. Hamilton also argues trial counsel provided ineffective assistance by failing to pursue the interlocutory appeal of the trial court’s denial of his change of venue motion. Hamilton asserts the publicity before and during his trial in Tulare County was so pervasive it was not possible to impanel an impartial jury. Hamilton alleges the media coverage included grave inaccuracies, extra-judicial proof of guilt, references to inadmissable evidence, and opinions by court officers and state agents about his guilt and the appropriateness of the death penalty. The California Supreme Court reviewed this claim on direct appeal, examining (1) the nature and extent of pretrial publicity, (2) the county’s population, (3) the nature and gravity of the offense, (4) the status of the victim and of the accused in the community, (5) the existence of political overtones in the case, and the actual jury voir dire. The Court denied this claim, finding the trial court’s denial of Hamilton’s change of venue motion did not result in a reasonable likelihood of an unfair trial. Hamilton, 48 Cal.3d at 1156-57, 259 Cal.Rptr. 701, 774 P.2d 730. Hamilton claims approximately 83% of the potential jurors (126 of 147) and of the impaneled jurors (10 of 12) had been exposed to the extensive media coverage of the murder. Hamilton maintains the selection of the jury and the conduct of the trial resulted in the prejudicial exposure to inaccurate, exaggerated, inflammatory publicity and extrajudicial information about his guilt or innocence. Hamilton alleges several jurors read a great deal about the case before being called for jury duty, several had extrajudicial information about fetal viability which they shared with other jurors, and one juror thought she saw Hamilton’s sister near her house during trial. A criminal defendant is entitled to an impartial jury. Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Where prejudicial publicity makes seating an impartial jury impossible, a motion for change of venue must be granted. Harris v. Pulley, 885 F.2d 1354, 1360 (9th Cir.1988); Gallego v. McDaniel, 124 F.3d 1065, 1070 (9th Cir.1997). Prejudice of the venire may be presumed or actual. On habeas review, the district court must make an independent review of the record to determine if prejudice existed which denied the petitioner a fair trial. Jeffries v. Blodgett, 5 F.3d 1180, 1189 (9th Cir.1993). Presumed Prejudice “Prejudice is presumed when the record demonstrates that the community where the trial was held was saturated with prejudicial and inflammatory media publicity about the crime.” United States v. Sherwood, 98 F.3d 402, 410 (9th Cir.1996). Prejudice is rarely presumed “because ‘saturation’ defines conditions found only in extreme situations.” Jeffries, 5 F.3d at 1189. Prejudice is not established where the nature of the news coverage was factual and not inflammatory, and the bulk of the publicity occurred months before jury selection began. Id. The evidence presented does not undermine the California Supreme Court’s finding that the publicity in this case was not inflammatory nor very extensive for a crime of this magnitude. Hamilton, 48 Cal.3d at 1157, 259 Cal.Rptr. 701, 774 P.2d 730; Ex. 60. The submitted evidence includes news articles from three area newspapers. Six of the articles were published in first five days following the murder (through November 7, 1981) and another nine articles in the next twenty-five days (through December 3, 1981). Until the start of jury selection on October 6, 1982, ten articles were published: three in February, two in March, one in April, two each in June and September. The submitted evidence supports the state court’s finding that the majority of news articles appeared immediately following the crime and almost a year before the trial, that the publicity was not persistent and pervasive, and that it did not create a reasonable likelihood Hamilton would be deprived of a fair trial. Id. at 1157-58, 259 Cal.Rptr. 701, 774 P.2d 730. Prejudice cannot be presumed in this case. Actual Prejudice To establish actual prejudice, the defendant must demonstrate that the jurors exhibited “actual partiality or hostility that could not be laid aside.” Harris, 885 F.2d at 1363. A defendant is entitled to an impartial jury, but that does not mean a jury completely ignorant of the facts. United States v. Flores-Elias, 650 F.2d 1149 (9th Cir.1981). “The relevant question is ... whether the jurors ... had such fixed opinions that they could not judge impartially the guilt of the defendant.” Patton v. Yount, 467 U.S. 1025, 1035, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984). A key factor in evaluating the reliability of jurors’ assurances of impartiality is the percentage of veniremen who “will admit to disqualifying prejudice.” Murphy v. Florida, 421 U.S. 794, 803, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). Prejudice was not been established where 25 per cent of the venire were excused because they indicated an opinion about the defendant’s guilt. Id.; contra, Irvin v. Dowd, 366 U.S. 717, 727, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961) (90 per cent of venire held some opinion as to guilt, over 60 per cent were excused for cause as having a fixed opinion of defendant’s guilt). Here about 20 per cent, 30 of the 152 persons in the venire, were excused because they had formed a bias from the publicity about the case. Many of the potential jurors who had heard about the case but were not excused for cause had only heard Hamilton’s version of the events (he had car trouble, he left to get help and returned to find his wife murdered). Actual prejudice is not established in this ease. Counsel was not deficient in failing to pursue a meritless appeal of venue. The record fairly supports the California Supreme Court’s denial of this claim. Claim 1 and Claim 2ab are denied on the merits. 3. CLAIM 5: IMPAIRED RIGHT TO TRIAL BY JURY a. WITHERSPOON ERROR Hamilton contends that jurors were excused who did not meet the Witherspoon standard, as they were excused without being informed of their duty to subordinate their views and follow the law. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); Wainwright v. Witt, 469 U.S. 412, 420, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). Hamilton does not indicate which excu-sáis of potential jurors he objects to, and no argument is presented in support of this claim. The excusal of Mr. Skidmore was raised and rejected in Hamilton’s direct appeal. The California Supreme Court found Mr. Skidmore’s excusal complied with Witherspoon and Witt, because he made it unmistakably clear that, regardless of the evidence, he would not vote for the death penalty unless he was an eyewitness to the murder. Hamilton, 48 Cal.3d at 1165-66, 259 Cal.Rptr. 701, 774 P.2d 730. Hamilton further asserts that the trial court erred in not excusing two “pro-death” jurors, Wendell Webb and Geneva Gholston. Although Hamilton raises this claim in his petition, the claim is not included in his supporting argument. A prospective juror is required to be excused under Witherspoom and Witt if his or her views on capital punishment would prevent or substantially impair the performance of the juror's duties. The inquiry on review is whether the finding is fairly supported by the record. Hendricks v. Vasquez, 974 F.2d 1099 (9th Cir.1992). A trial judge's factual finding about juror bias is entitled to a presumption of correctness under (former) 28 U.S.C. § 2254(d). Witt, 469 U.S. at 429, 105 5.Ct. 844; Hendricks, at 1103. Even assuming for the sake of argument the trial judge incorrectly denied an excusal for cause, the question is whether the jury which actually was impaneled was impartial. Ross v. Oklahoma, 487 U.S. 81, 86, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). Hamilton has presented no evidence to overturn the presumption of correctness given the trial court's findings regarding juror bias. Further, review of the pertinent portions of the trial transcript, including the voir dire of jurors Webb and Gholston, fails to indicate the impaneled jury was not impartial. Defense counsel was not ineffective for failing to object to the jury's composition. The record fairly supports the California Supreme Court's denial of this claim. Claim 5a is denied on the merits. e. FAIR CROSS-SECTION CLAIM Hamilton alleges that Hispanics and other minorities were systematically excluded from his jury. Hamilton contends 30% of Tulare County was Hispanic in 1980-81. (The 1980 census indicates 73,290 Hispanics and 245,738 total population.) Hamilton asserts that the Tulare County jury book for 1981 contained 14% Hispanic surnames (Appendix B: 1,461 of 10,495), that his jury pooi was 11% Hispanic (Appendix C: 20 of 160), and that no Hispanics were seated on his jury. Hamilton contends the county erred by using voter registration and DMV records when there was access to lists reflecting a more accurate cross-section of the population. Hamilton further asserts the county was able to control the racial/ethnic composition of panels through computerized data processing. The Sixth Amendment guarantees a criminal defendant an impartial jury drawn from a fair cross-section of the community. Taylor v. Louisiana, 419 U.S. 522, 530, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). "In order to establish a prima fade violation of the fair-cross-section requirement, the defendant must show: (1) that the group alleged to be excluded is a `distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under-representation is due to the systematic exclusion of the group in the jury selection process." Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). Proof of unconstitutional discrimination has not been established by statistics showing a 10% or less absolute disparity between the group representation on the jury venire and in the community. "We cannot say that purposeful discrimination based on race alone is satisfactorily proved by showing that an identifiable group in a community is under-represented by as much as 10%." Swain v. Alabama, 380 U.S. 202, 208-09, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), overruled on other grounds by Batsort v. Kentucky, 476 U.S. 79, 90-96, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The 1980 census showed that the adult population of Hispanics in Tulare County was 24.85%. People v. Howard, 1 Cal.4th 1132, 5 Cal.Rptr.2d 268, 824 P.2d 1315 (1992); Appendix A (Total adult popula-41,142 = 24.85%). The number of people with Hispanic surnames in Hamilton’s jury-pool was 22. (Appendix D omitted Jerry Rocha and Mary Rodarte.) The percentage of Hispanics on Hamilton’s venire was 13.75% (22 of 160). These figures represent a 11.1% absolute disparity between the Hispanic representation on Hamilton’s jury venire and in the county’s adult Hispanic population. Although this percentage of under-representation is slightly greater than the amount held inadequate to alone show purposeful discrimination in Swain, Hamilton fails to address other issues which would narrow the gap between adult population and the jury pool, such as citizenship, prior felony conviction, or the ability to speak and understand English. See California Code of Civil Procedure section 230 and United States v. Torres-Hernandez, 447 F.3d 699, 701 (9th Cir.2006) (holding a determination of under-representation must rely on evidence that most accurately reflects the jury-eligible population). Hamilton provides no evidence to support his allegation that the disparity is due to the systematic exclusion of Hispanics in the jury selection process. In fact, Hamilton’s allegation of computerized manipulation is undermined by the declaration of Steve Konishi, court administrator for Tu-lare County, stating that no procedures to monitor racial composition exist, nor has the county ever been required to study racial representation on jury panels. See Appendix F. Even assuming that Hamilton has presented sufficient evidence to meet the second prong of Duren, there is no evidence that the under-representation was caused by a systematic exclusion of Hispanics from the jury selection process. Based on this evidence, defense counsel was not ineffective for failing to object to the composition of the jury. The record fairly supports the California Supreme Court’s summary denial of this claim. Claim 5e is denied on the merits. f. BATSON CLAIM Hamilton contends the prosecutor exercised peremptory challenges to remove Hispanics or other minorities, as well as persons with scruples against the death penalty, from the jury. However, Hamilton has provided no evidence, factual explanation or argument in support of this claim, instead he only lists page citations for the voir dire of Hispanics on his jury venire. See Appendix D. This claim was not raised at trial. The improper exercise by a prosecutor of a peremptory challenge can deny a defendant the Equal Protection of the laws under Batson v. Kentucky. Although Hamilton was tried before the Supreme Court decided Batson, both state and federal law grounds existed under which he could have challenged the jury selection process. People v. Wheeler, 22 Cal.3d 258, 272, 148 Cal.Rptr. 890, 583 P.2d 748 (1978) (prosecutor’s use of peremptory challenges to remove prospective jurors on basis of race violates state constitution); Ford v. Georgia, 498 U.S. 411, 420, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991) (defendant who was tried before Batson and raised a contemporaneous objection to jury selection based on Swain v. Alabama preserved a Batson claim for direct appeal). Under California law, a challenge to the composition of the jury based on a prosecutor’s improper exercise of peremptory challenges must be made prior to the completion of jury selection, that is, before the jury is sworn or alternates are impaneled. Wheeler, 22 Cal.3d at 280-282, 148 Cal.Rptr. 890, 583 P.2d 748; People v. Ortega, 156 Cal.App.3d 63, 69-70, 202 Cal.Rptr. 657 (1984). To excuse procedural default, Hamilton must establish both cause and actual prejudice. United States v. Frady, 456 U.S. 152, 169, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). An attorney’s ignorance or inadvertent error does not establish cause for procedural default unless the attorney’s performance is constitutionally defective. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (citing Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Thus, “the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for procedural default.” Carrier, 477 U.S. at 486-87, 106 S.Ct. 2639. Further, the establishment of a new federal claim does not provide cause for a default if the alleged error also violated established state law and no objection was made on state law grounds. Dugger v. Adams, 489 U.S. 401, 407-08, 109 S.Ct. 1211, 103 L.Ed.2d 435 (1989). Actual prejudice requires that Hamilton show “the errors at his trial ... worked to his actual and substantial disadvantage, infecting his entire trial with errors of constitutional dimension.” Frady, 456 U.S. at 170, 102 S.Ct. 1584. Hamilton’s failure to raise this claim during trial, when it could have been timely addressed, renders adequate review difficult, since the opportunity for the prosecutor to provide a basis for his peremptory challenges was lost. For five of the seven potential jurors with Hispanic surnames the prosecutor excused, a nonracial basis for each excusal is apparent on the face of the record. Since this claim was not raised during trial, when the prosecutor could have articulated non-racial reasons for the challenges which are not apparent from the cold record, and because Hamilton has shown no error resulting from the prosecutor’s exercise of peremptory challenges which worked to his actual or substantial disadvantage, it cannot be assumed that the other two challenges were improper. Review of the record establishes that, overall, an “inference of discrimination” is not raised. Johnson v. California, 545 U.S. 162, 168, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005). This evidence from the record that no discriminatory exercise of challenges occurred means defense counsel was not ineffective for failing to object to the jury selection process. The record fairly supports the California Supreme Court’s summary merits denial of this claim. Claim 5f is denied on the merits. 4. CLAIM 6: JUROR MISCONDUCT d. FAILURE TO DISCLOSE BIAS Hamilton alleges Geneva Gholston failed to disclose that prior to being summoned for jury duty she formed the opinion Hamilton was guilty, that she was motived to serve to avenge certain crimes, that she was guided by a dead uncle to impose death, and that she had extrajudicial contact with and fear of Hamilton’s sister Vicki and her boyfriend Stephen Fitzherbert (who she saw parked in the alley behind her house) which prompted her to request police protection. Hamilton asserts Ms. Gholston’s failure to disclose her bias violated his right to an impartial jury and prevented trial counsel from examining her to determine prejudice. On state exhaustion, the California Supreme Court ordered an evidentiary hearing on this claim. The state trial court held, based on factual findings by the referee, that even if Ms. Gholston’s voir dire answers understated her pretrial awareness and impressions about the case, particularly with respect to Hamilton’s claim of a Canadian killer, her omissions did not lead to the seating of a biased juror. In re Hamilton, 20 Cal.4th at 298, 84 Cal.Rptr.2d 403, 975 P.2d 600. The state court found that Ms. Gholston stated on voir dire she was impartial, and regardless of any 'pretrial impressions, she could and would judge the case solely on the evidence; that she has since insisted at all stages. her exposure to pretrial information did not affect her fairness at trial; that the referee, after watching Ms. Gholston testify, explicitly credited her claim of impartiality. The state supreme court found the circumstantial evidence did not rebut the findings and there was no basis to conclude Ms. Gholston’s failure to disclose fully her pretrial knowledge and opinions about Hamilton’s case resulted in the seating of a biased juror. Id., 20 Cal.4th at 301, 84 Cal.Rptr.2d 403, 975 P.2d 600. The state court further held “the evidence provides no convincing reason to credit [Ms.] Gholston’s 1994 declaration [which was prepared by a defense investigator], so lurid as to raise doubts on its face, over her subsequent [contrary] and more reasonable disclaimers both in writing and on the witness stand.” Id. at 304, 84 Cal.Rptr.2d 403, 975 P.2d 600. Like the referee, the state court accepted Ms. Gholston’s assurance that “the 1994 declaration does not accurately set forth the ‘Uncle Frank’ episode, and that the true experience is one which could have no bearing on her fairness as a juror.” Id. at 304, 84 Cal.Rptr.2d 403, 975 P.2d 600. The Court also found no substantial likelihood that the alleged alley incident with Vicki Hamilton and Stephen Fitzherbert, as described by Ms. Gholston, caused her to develop actual bias against Hamilton. Id. at 306, 84 Cal.Rptr.2d 403, 975 P.2d 600. Hamilton does not seek to present any additional facts on this claim, but disputes the conclusions reached by the state referee, which were adopted by the California Supreme Court. Hamilton contends the referee’s findings were contrary to the facts and that he has stated a claim for relief under federal law. Hamilton asserts Ms. Gholston’s bias was entrenched; that the opinion she formed about Hamilton’s guilt during the conversation with her neighbor was not superficial; that her fear of Hamilton’s sister affected her decision; that the “presence” of her uncle contributed to her prejudgment of the case; that she is not a competent witness of her own mental state; and that her statements at the hearing and to investigators were demonstrative of bias. Hamilton contends Ms. Gholston was profoundly influenced by both pretrial bias and bias which developed during the trial such that he did not receive a fair trial. The Sixth Amendment entitles a criminal defendant to a verdict rendered by impartial, indifferent jurors. To justify a new trial based on a claim of juror bias, a petitioner must show a dishonest answer was given on voir dire to a material question and that the correct response would have provided a valid basis for a challenge for cause. McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984) (plurality opinion); Tinsley v. Borg, 895 F.2d 520, 524 (9th Cir.1990). A voir dire question is material when the honest response would reflect bias, prejudice or partiality against a party. Coughlin v. Tailhook Ass’n., 112 F.3d 1052, 1061 (9th Cir.1997) (finding a juror’s dishonest answers on voir dire were unrelated to material questions as they did not result in any bias to the defendant); Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir.1998) (an intentionally dishonest answer to a voir dire question is not fatal unless it indicates a bias). “Few voir dires are impeccable, and most irregularities can be shrugged off as immaterial to the fairness of the trial.” Dyer, 151 F.3d at 984. State-court determinations of factual issues are presumed correct unless an exception is present. 28 U.S.C. § 2254(d). The exceptions to § 2254(d)’s presumption of correctness essentially codified the standards requiring an evidentiary hearing from Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). Thompson v. Keohane, 516 U.S. 99, 108-09, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). If a habeas petitioner has had a full and fair hearing resulting in reliable findings, the federal court ordinarily should accept the facts as found by the state tribunal. Id. at 109, 116 S.Ct. 457. The determination of basic, primary, or historical facts are subject to the presumption of correctness, while the application of a legal standard, the ultimate question, generally is not subject to § 2254(d). Here, the credibility determination by the referee accepting Ms. Gholston’s testimony given at the evidentiary hearing is exclusively a factual finding, subject to the presumption of correctness. The state court’s conclusions that any failure to fully disclose pretrial impressions was inadvertent, In re Hamilton, 20 Cal.4th at 301, 84 Cal.Rptr.2d 403, 975 P.2d 600; that the “Uncle Frank” episode was not accurately set forth in the 1994 declaration; that Ms. Gholston experienced no direct encounter with her Uncle Frank’s spirit, id. at 302, 84 Cal.Rptr.2d 403, 975 P.2d 600; and that although it was doubtful she saw Hamilton’s sister Vicki and her boyfriend Stephen near her house, any failure to disclose this brief, ambiguous incident was inadvertent, id. at 306, 84 Cal.Rptr.2d 403, 975 P.2d 600; are all entitled to a presumption of correctness. Hamilton has presented no evidence nor persuasive argument these presumptions of correctness should be set aside. Whether the facts as found by the referee and state court resulted in the seating of a biased juror is the ultimate legal question, subject to de novo review. In each instance, the state court concluded after an evidentiary hearing that the undisclosed incidents experienced by Ms. Gholston did not result in the seating of a bias juror. In re Hamilton, 20 Cal.4th at 301-02, 306, 84 Cal.Rptr.2d 403, 975 P.2d 600. Hamilton has not shown, nor does review of the record reveal, that Ms. Ghol-ston was biased against him. Any omissions about her pretrial impressions did not impact her ability, or stated intention, to be a fair and impartial juror. There is no evidence that any “feeling of the ‘presence’ ” of her Uncle Frank’s spirit, nor any alleged contact with Vicki Hamilton and Stephen Fitzherbert resulted in a bias against Hamilton. Nothing in the facts found by the state court indicates prejudice or partiality against Hamilton. Based on this evidence, defense counsel was not ineffective for failing to discover and impeach Ms. Gholston’s alleged bias. The record fairly supports the California Supreme Court’s denial of this claim. Claim 6d is denied on the merits. 5. FOURTH AMENDMENT ISSUES a. CLAIM 13: ILLEGAL AR-RE ST/PRE-TRIAL DETENTION Hamilton contends that his arrest was without warrant or probable cause, and made solely because he discovered the crime. Hamilton asserts that law enforcement exploited his unlawful detention, preying upon his lack of sleep and food to obtain a statement in violation of his Fourth Amendment rights which was used against him at trial. Hamilton argues this statement was prejudicial, in part because the fact that Gwen had been shot had not been made public, and that it was a product of his unlawful detention. Hamilton also contends his arrest was merely a pretext for a warrantless search incident to arrest, allowing the seizure of his clothing and Brenda Burns’ address and phone number from his wallet. Hamilton also contends he is entitled to habeas relief on this claim because trial counsel was ineffective in failing to object to the admission of the above evidence, resulting in his denial of a full and fair hearing on the claim in state court. The issue of probable cause to support Hamilton’s arrest was properly litigated prior to trial during a hearing on a defense motion to suppress. RT 1538.5 Motion, Sept. 20 — 21, 1982. Hamilton there argued that Brenda Burns’ name and address were improperly obtained from his wallet following his unlawful arrest, and thus evidence of the shotgun and its purchase should be excluded. Id. at 25. To make a determination whether the seizure of Hamilton’s wallet was proper, evidence was received about the basis for Hamilton’s arrest. Id. at 47. The trial court found that there was probable cause to arrest Hamilton. Id. at 76-77. Further, the trial court determined that, even assuming Hamilton’s arrest was without probable cause, an independent source for Ms. Burn’s address existed. Id. at 75-76. The question of probable cause to support Hamilton’s arrest received a full and fair California Penal Code section 1538.5 hearing prior to trial. The only evidence supporting the contention that Ms. Burn’s name and address were obtained from Hamilton’s wallet comes from her testimony of what the officers told her. This evidence was before the trial court and fully considered in denying the motion to suppress. A claim based on the alleged violation of a Fourth Amendment right is not cognizable on federal habeas corpus unless the petitioner shows the state did not provide an opportunity for full and fair litigation of the claim. Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); Woolery v. Arave, 8 F.3d 1325 (9th Cir.1993). Since Hamilton was provided the full opportunity to fairly litigate this claim in state court, it is not cognizable on federal habeas corpus review. Sixth Amendment claims of ineffective assistance of counsel based on incompetent representation with respect to Fourth Amendment issues are not barred from habeas review. Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). However, the record establishes defense counsel was not ineffective for failing to object to the introduction of Hamilton’s statement, since the issue of probable cause to arrest had already been resolved by the 1538.5 suppression hearing and order. Claim 13 is denied on the merits. b. CLAIMS 14 & 15: MIRANDA VIOLATIONS AND COERCED STATEMENT BY HAMILTON Hamilton alleges in Claim 14 that he was denied sleep, food, drink and cigarettes on the night of the murder; that when he was finally allowed into a cell, he was forced to attempt sleep with a radio and the intercom playing at high volume; that he was badgered and berated by the police; that he was told Gilbert was an officer’s brother and would not take the fall for the crime; that gory pictures of Gwen’s and the baby’s autopsies were shoved in his face; and that he was denied basic hygiene prior to making statements. Hamilton further asserts that on the third day he was in custody (not the afternoon following the murder as Detective Byrd testified), in response to a question about who might have committed the crime, he suggested a Canadian (meaning his sister Vicki’s boyfriend Stephen Fitzherbert) might have had a motive. Hamilton also contends he was not given Miranda warnings again prior to this questioning. Hamilton argues he would not have made the statements he did in the absence of this coercion. Hamilton asserts in Claim 15 that he was interrogated and made statements without a proper warning or waiver; that interrogation and a request for a waiver occurred after he requested counsel; and that he was interrogated, from which the police obtained statements, after he was represented by counsel. Some of the allegations in Claims 14 and 15 are contradicted by Hamilton’s own declaration of November 28, 2000. Ex. A to Motion for Evidentiary Hearing. The petition alleges that Hamilton was given no drink or cigarettes, which along with other deprivations coerced him into making the statement that a Canadian killed his wife. However, Hamilton’s declaration states that after he called his Uncle Marvin to arrange for clothing for his children, he was given coffee and cigarettes. Ex. A, ¶ 21. The petition alleges Hamilton made the statement about a Canadian on November 5 or 6, just prior to his release. However, Hamilton’s declaration states he made the statement about a Canadian early on the morning of November 3. Id. ¶¶ 22, 23. The petition alleges Hamilton was interrogated and made the statement about a Canadian after he requested and was represented by counsel. However, Hamilton’s declaration states he made the statement about a Canadian on November 3, before and after the polygraph examination, id. ¶¶ 22-24, and that he first asked to speak to a lawyer when put in a holding cell after the polygraph examination and subsequent interview. Id. ¶ 30. The allegations in the petition also are contradicted by Lt. Byrd’s testimony at trial, where he related Hamilton’s statement about a Canadian was made on November 3rd. RT 7:1698-99. Further, there is no evidence the police had any suspicion that Gilbert was involved in the murder before Vicki contacted the detectives around November 19th, so Hamilton could not have been coerced to make the statement about a Canadian by threats about Gilbert’s police connections. Hamilton was only held for a few days after the murder: he was taken from the scene late on the second of November and first questioned about 2:30 a.m. on the third of November. RT 7:1670-76. He was released on the fifth of November. Ex. 38A to Hamilton’s Pro Se Motion filed Jan. 13, 2006. Hamilton’s sister Vicki informed law enforcement of the plan to kill Gwen about a week before Thanksgiving. RT 9:2074. Based on November 2nd being a Monday, RT 8:1882, Thanksgiving was on November 26. Gilbert was arrested on November 30th. Id. at 2011. In addition, Hamilton made more than one statement on the record which shows his ability to communicate with the trial judge. See RT May 17, 1982:7 et seq. (request move to another cell due to inmate harassment); RT June 22, 1982:8 et seq. (Marsden motion); RT 10:2374-81 (November 18, 1982 request to read statement to jury as part of closing argument at penalty); RT December 16, 1982:1 (statement of innocence at sentencing). No evidence has been presented showing Hamilton was prevented during trial from asserting that his statement had been coerced. There is no evidence beyond Hamilton's self-serving statements to support these claims. Based on the total lack of evidence supporting these claims, Hamilton cannot establish defense counsel was ineffective for failing to seek exclusion of Hamilton’s pre- and post-arrest statements. The contradictions between the allegations in the petition and Hamilton’s own declaration, prepared just seven months following the filing of the amended petition, cast doubt on the credibility of both Hamilton’s declaration and the allegations in his petition. Claims 14 and 15 are denied on the merits. 6. CLAIM 9: DENIAL OF MOTION TO RECUSE DA’s OFFICE Hamilton contends the trial court improperly denied his motion to recuse the District Attorney’s Office. Hamilton asserts that prior to his preliminary hearing, with the assistance of a jail employee, he informed Mr. Richmond (the district attorney who originally prosecuted his case) that he wanted to speak with him. Mr. Richmond instructed his chief investigator Mr. Tucker to speak with Hamilton. Mr. Tucker obtained a statement from Hamilton, and Mr. Richmond notified defense counsel of the contact the following day. Deputy district attorney Patrick O’Hara prosecuted the case against Hamilton. Defense counsel instituted disciplinary proceedings against Mr. Richmond with the State Bar of California, which Hamilton alleges created a direct conflict of interest between defense counsel and the District Attorney’s Office. At trial Hamilton’s counsel sought the prosecutor’s recusal on two bases: the prosecutor’s misconduct in communicating with Hamilton without his counsel’s consent, and the bias arising from defense counsel’s complaint against the prosecutor filed with the State Bar. The trial court denied recusal, relying on the fact that Hamilton himself initiated the contact with the prosecutor, questioning whether California Rule of Professional Conduct 7-103, prohibiting contact