Full opinion text
ORDER ON RESPONDENT’S MOTION FOR EARLY SUMMARY JUDGMENT/ADJUDICATION WILSON, District Judge. DEATH PENALTY I. INTRODUCTION Before this Court is Respondent’s Motion for Early Summary Judgment/Adjudication. The motion came before the Court for oral argument on February 9, 1998. Having carefully considered all papers filed in support of and in opposition to the motion, and oral argument thereon, the Court hereby GRANTS IN PART the Motion for Early Summary Judgment/Adjudication. II. BACKGROUND A. 7-Eleven Murder Alvin Owens was an employee at a 7-Eleven store in Whittier. Alfred Coward, known as “Blackie,” testified as an immunized witness at petitioner’s trial and gave the following account of Owens’s death: At approximately 10:30 p.m. on February 27, 1979, petitioner Stanley Williams came to Coward’s house. The two went to the home of James Garrett (where petitioner was staying) and petitioner went inside, returning with a sawed-off shotgun. He was accompanied by a man named Darryl. The three men made several stops, including one to obtain “sherms” (cigarettes containing phencyclidine (PCP)). They all shared a sherm, then picked up Tony Sims. Petitioner shared a second sherm with Coward and Sims, and asked Sims if he knew where they could “make money” in Pomona. Taking two cars, the foursome made two unsuccessful restaurant and liquor store robbery attempts, and eventually went to a 7-Eleven where Owens, the victim, was sweeping the parking lot. Sims and Darryl went into the store followed by Owens, petitioner, and Coward. Coward testified that he saw no one with a weapon except petitioner, who approached Owens and told him to keep walking. Owens walked toward the back rooms of .the store with petitioner and Coward following him. Petitioner told Owens to lie down and he complied. Coward heard a gun being loaded, heard a shot and glass breaking, followed by two more shots. The group then returned to Sims’s house where the money was divided. Sims asked petitioner why he had shot Owens and petitioner explained he did not want to leave any witnesses. He also said the shotgun shells could not be traced and that he had retrieved a few of them. Coward saw petitioner later that morning at petitioner’s brother’s house. He stated that petitioner told his brother, “You should have heard the way he sounded when I shot him.” Petitioner then made a growling noise and laughed hysterically. B. The Brookhaven Motel Murders Robert Yang and his family owned and lived in the Brookhaven Motel on South Vermont Street in Los Angeles. About 5 a.m. on March 11, 1979, Yang heard a woman’s screams and three or four shots. A few minutes later he left his bedroom and saw that the door separating the motel office from the living quarters had been forced open from the outside. He discovered his father, mother, and sister had all been fatally wounded. The cash drawer was open and empty. The police found two shotgun shell casings at the scene. A firearms expert testified that one of the shells could have been fired only from a weapon identified as having been purchased by petitioner in 1974. Three witnesses provided testimony regarding petitioner’s involvement in the Brookhaven Motel murders. Samuel Cole-' man, a friend of petitioner’s, testified as an immunized witness that on March 10, he and petitioner went to the Showcase Bar where he remained until it closed around 6 a.m. He last remembered seeing petitioner about 2:30 a.m. The next day petitioner told him that he had robbed and killed some people on Vermont Street. James Garrett testified that petitioner kept some of his possessions at the Garrett house and stayed there approximately five days a week. Early on the morning of March 13, 1979, petitioner told Garrett and Garrett’s wife, Esther, that he had heard that some Chinese people had been killed on Vermont Street. Petitioner said he did not know how the killings had occurred but thought the killers were professionals because no shells or witnesses had been left. He went on to say that he heard the killings had occurred at 5 a.m., that two men had knocked down the door, and that the men had taken $600. Later, petitioner again spoke about how the people were killed, stating “after the big guy knocked the door down, he went in the motel, and there was a guy laying on the couch, and he blew him away.” Petitioner said the man on the couch and a woman at the cash register were shot twice, and another woman was also shot. Petitioner told Garrett he was the “big guy.” Esther Garrett testified to essentially the same matters as her husband. Esther also said petitioner told them the killers were using the money to buy PCP and that the killers had picked up the bullets so there would be no evidence for the police. After her husband left, petitioner told Esther he had committed the murders with his brother-in-law. George Oglesby, also known as “Gunner,” provided additional testimony. Oglesby was an inmate who was housed in the same cell block as petitioner, a few cells away. Oglesby testified that in late April 1979, petitioner asked him about the chances of escaping from Atascadero or Patton, where petitioner believed he might be sent. He later asked Oglesby if he wished to be included in an escape plan and Oglesby indicated he did. Petitioner outlined a plan complete with drawings that involved escaping while being transferred from jail to court. According to the plan, as summarized by Oglesby, two people from “the outside” would disarm the officer driving the bus. Petitioner planned to kill a person on the bus who was to testify against him as well as the two officers who would accompany the bus. Petitioner later modified the plan to include blowing up the bus to prevent the authorities from quickly determining who had escaped. Oglesby received two notes from petitioner relating to the escape plan. A few days after receiving the notes Ogles-by told a police officer, Lieutenant Fitzgerald, what he knew about the escape. After talking to Fitzgerald, Oglesby communicated several more times with petitioner about an escape and petitioner sent several notes to Oglesby regarding the escape. In addition to relating the escape plans, Oglesby testified that petitioner told him that he, Blackie, and two others had robbed a motel and had shot the people inside — a man, a woman, and a child, possibly a daughter. Petitioner presented an alibi defense. Beverly McGowan testified that on February 27, 1979, the night of Owens’s murder, she and petitioner dined and spent the night together. Fred Holiwell, petitioner’s stepfather, testified that on Sunday morning, March 11, the night of the Brookhaven murders, he arrived at the Showcase Bar around 3:30 a.m. He thought he saw petitioner in the parking lot at about 5 a.m. Eugene Riley, an inmate in the same cell block as petitioner, testified that on the morning of March 11, he saw petitioner in the parking lot of the Showcase Bar about 5 a.m. and gave him a ride home around 5:30 a.m. Joseph McFarland, another inmate in petitioner’s cell block, testified he knew Oglesby was a “jailhouse rat” and that others knew this as well. McFarland stated that inmates gave Oglesby false information because they knew he was an informant. III. PROCEDURAL HISTORY The jury convicted petitioner of four counts of murder. They found true the special circumstance allegation that the murders were committed in the course of robberies, and multiple murder. No evidence was presented by either side at the penalty phase. The jury sentenced petitioner to death. Petitioner’s conviction and sentence were automatically appealed to the California Supreme Court. In 1984, Williams filed a petition for writ of habeas corpus in the state supreme court. The direct appeal and habeas petition were consolidated. The California Supreme Court ordered an evidentiary hearing on the issue of whether Oglesby deliberately elicited incriminating statements from petitioner in violation of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). After the hearing, the state court denied the petition, finding that no Massi-ah/Henry violation occurred, and affirmed petitioner’s conviction and sentence. People v. William; In re Williams (Williams I), 44 Cal.3d 1127, 245 Cal.Rptr. 635, 751 P.2d 901 (1988). On January 9, 1989, Williams filed a second state habeas petition. The petition was denied without explanation on January 18, 1989. On January 23, 1989, Williams filed a federal habeas petition. Respondent filed an answer on March 3, 1989. Petitioner was ordered to return to state court for exhaustion and the Court held the federal proceedings in abeyance pending completion of the state proceedings. On September 1, 1989, Williams filed a third state habeas petition. The state supreme court ordered an evidentiary hearing on the claims in the petition. The evidentiary hearing concluded in May 1992. The California Supreme Court denied the third state habeas petition on April 11, 1994. In re Williams (Williams II), 7 Cal.4th 572, 29 Cal.Rptr.2d 64, 870 P.2d 1072 (1994). Williams filed a fourth state habeas petition on April 15, 1994. On June 21, 1995, the California Supreme Court denied the petition on the merits and on procedural grounds. Petitioner filed an amended federal petition on November 13, 1995. Respondent filed an answer to the amended petition on February 10, 1997, and filed the instant motion on April 7,1997. IV. LAW ON MOTIONS FOR SUMMARY JUDGMENT To succeed on a motion for summary judgment, a defendant may demonstrate that there is no genuine issue of material fact by pointing to the absence of evidence produced by the plaintiff to support his case, Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In the alternative, a defendant may demonstrate affirmatively through admissible evidence that there is no triable issue of material fact as to each element of its affirmative defenses and that it is therefore entitled to judgment as a matter of law. See Fed.R.Civ.Pro. 56(c). See also Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir.1986). A motion for summary judgment is properly brought in ha-beas corpus proceedings. Blackledge v. Allison, 431 U.S. 63, 80, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). To overcome a defendant’s motion for summary judgment, a plaintiff must set forth specific facts indicating that there is a genuine issue for trial. In other words, plaintiff must present evidence sufficient for a reasonable fact finder to find for him or her. Fed.R.Civ.Pro. 56(e); Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court is not to determine issues of credibility on a motion for summary judgment; instead, the truth of each party’s affidavits is assumed. T.W. Elec. Serv. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.1987). In a case where the judge is the sole factfinder, summary judgment should be granted where the underlying evidence is undisputed and the record on the motion persuades the court that an evidentiary hearing would add nothing to its ability to decide the case. TransWorld Airlines v. American Coupon Exch., 913 F.2d 676, 684-85 (9th Cir.1990). V. ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996 (“AEDPA”) The AEDPA does not apply to cases where a federal habeas petition was filed before April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2061, 138 L.Ed.2d 481 (1997). Williams filed his federal habeas petition on July 13, 1989, therefore, the AEDPA does not apply to his case. In ruling on this motion, the Court applies the habeas law as it existed prior to April 24, 1996. VI. MERITS OF RESPONDENT’S MOTION FOR SUMMARY JUDGMENT In his motion, respondent identifies various claims to which he asserts he is entitled to summary judgment. The claims are addressed seriatim below. Claim A: Procedural and Substantive Incompetence to Stand Trial Petitioner claims his constitutional rights were violated because he was tried while incompetent. In addition, petitioner claims his due process rights were violated when his trial attorney failed to request a competency hearing and the trial court failed to sua sponte conduct a competency hearing. (Amended Petition for Writ of Habeas Corpus [“Pet.”] at 12.) The Due Process Clause of the Fourteenth Amendment prohibits the criminal prosecution of a defendant who is not competent to stand trial. Medina v. California, 505 U.S. 437, 439, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992). The prohibition against trying an incompetent defendant “is fundamental to an adversary system of justice.” Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). The test for competency to stand trial is whether the defendant had “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he [had] a rational as well as factual understanding of the proceedings against him.” Boag v. Raines, 769 F.2d 1341, 1343 (1985) (quoting Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam)). Petitioner is pursuing both a procedural and a substantive incompetency claim. A procedural claim asserts that the trial court failed to conduct a competency hearing on its own initiative in violation of Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), because, at the time of trial, there was sufficient evidence of petitioner’s incompetence to warrant a hearing. A substantive incompetency claim asserts that petitioner’s due process rights were violated because he was tried while incompetent, regardless of whether the court should have conducted a Pate hearing. 1. Procedural Incompetence The United States Supreme Court held in Pate that “where the evidence raises a bona fide doubt’ as to a defendant’s competence to stand trial,” the judge on his or her own motion must conduct a competency hearing. 383 U.S. at 385, 86 S.Ct. 836. A Pate hearing is required wherever a reasonable judge would be expected to have a bona fide doubt as to the defendant’s competence. Moran v. Godinez, 57 F.3d 690, 695 (9th Cir.1994). In addressing a procedural incompetence claim, a federal habeas court may consider only the evidence that was before the trial court. United States v. Lewis, 991 F.2d 524, 527 (9th Cir.1993). No particular facts signal incompetence, however, suggestive evidence includes a defendant’s demeanor, previous irrational behavior, and available medical evaluations. Drope, 420 U.S. at 180, 95 S.Ct. 896. Petitioner has not presented facts sufficient to establish that a reasonable judge would have had a bona fide doubt as to his competency to stand trial, therefore, the trial court did not err in failing to hold a competency hearing. Neither trial counsel, the trial court, nor the deputy district attorney raised the issue of petitioner’s competence. The state court record is devoid of any reference to bizarre or inappropriate behavior by petitioner. The only mental health expert who interviewed petitioner and could provide an assessment stated that he was competent to stand trial. (Opp.Ex. 82; CT 378.) The fact that petitioner was briefly hospitalized for a drug-induced psychotic episode several years before the trial was insufficient to warrant a hearing. The transcript of petitioner’s statement to police contains no evidence of bizarre behavior or mental impairments, and petitioner responded appropriately to all questions asked by the police. Moreover, nothing in the nature of the crime suggests that the perpetrator was suffering from any mental disease or defect. Based on the foregoing, the trial court did not err in failing to hold a competency hearing, and the Court GRANTS the motion for summary judgment on petitioner’s procedural incompetence claim. 2. Substantive Incompetence To obtain relief on a substantive incompetence claim, petitioner must present evidence “sufficient to positively, unequivocally, and clearly generate a real, substantial and legitimate doubt as to [his] mental capacity.” Watts v. Singletary, 87 F.3d 1282, 1290 (11th Cir.1996) (quoting Bruce v. Estelle, 483 F.2d 1031, 1043 (5th Cir.1973)). “In a habeas proceeding, a petitioner is entitled to an evidentiary hearing on the issue of competency to stand trial if he presents sufficient facts to create a' real and substantial doubt as to his competency, even if those facts were not presented to the trial court.” Boag, 769 F.2d at 1343 (citation omitted). Although retrospective determinations of competency are not prohibited, they are disfavored, and the Court will give considerable weight to the lack of contemporaneous evidence of petitioner’s incompetence. See Odle v. Calderon, 919 F.Supp. 1367, 1378 (N.D.Cal.1996). a. Evidence of Incompetence The only significant difference between a substantive and procedural incompetence claim is the evidence the Court can consider. To determine if petitioner was actually incompetent, the Court is not limited to the information available to the state trial judge. Watts, 87 F.3d at 1290. The following is a summary of the evidence petitioner has presented to support his substantive incompetence claim. i. Declaration of Dr. Coodley Dr. Coodley is a psychiatrist. He examined petitioner before trial and provided a report to the trial court. In his report, he noted that petitioner indicated a high degree of paranoia, but he could not say that petitioner was insane. He also stated that petitioner understood the nature of the proceedings and could cooperate in a relatively rational manner with counsel. He then opined that petitioner was unable to prepare or conduct his own defense in a rational manner. (Opp.Ex.82.) Dr. Coodley also prepared a declaration in 1995 discussing his assessment of petitioner. Much of his declaration is a summary of the report he provided to the state court. However, habeas counsel provided him. with additional information regarding petitioner’s background before he prepared the most recent declaration. He asserted that the information about petitioner’s drug use and brain damage, had it been brought to his attention in 1979, would have cast his findings in a different light. He stated that “[t]he extent of mental illness in Mr. Williams’ family, the frequency and severity of his own psychiatric decompensations, the likelihood of organic brain damage, and the chronicity of his drug use all create major questions as to his competency. While he may have understood the nature of the proceedings against him, his ability to assist his counsel was very likely impaired.” (Opp.Ex.2, ¶ 22.) ii. Declaration of Dr. Froming Dr. Froming is a neuropsychiatrist. She interviewed petitioner and gave him the full range of neuropsychological tests as well as a mental status exam. Her declaration details petitioner’s family’s history of mental illness, his head injuries as a child, his drug abuse, and her diagnosis of his organic brain damage to the frontal lobe and right hemisphere. She concluded that this information “suggests] that he suffered depression, withdrawal, and quite plainly did not initially comprehend the seriousness of his confinement, the proceedings or the charges levied against him.” She also stated that petitioner’s “extreme responses to stress ..., his autonomic responses to constant shackling and security, and the neurocognitive deficits he exhibited (particularly his inability to comprehend new material without repetition and his distortion of information imparted to him) make it reasonably likely that he was unable to understand the proceedings, to know and assess the options open to him, or rationally cooperate with counsel during the trial process.” (Opp.Ex.3, ¶ 61.) iii.Declaration of Dr. Woods Dr. Woods is a psychiatrist. In preparing his declaration filed in support of the federal habeas petition, Dr. Woods interviewed petitioner, reviewed extensive documents relating to his medical and family history, and reviewed the results of Dr. Froming’s tests. Dr. Woods opined that “[i]t is clear from the observations of those who knew [petitioner] perhaps better than anyone else, that he was unaware of the proceedings at times, let alone seriousness [sic] of the charges facing him and he lacked the mental faculties to assist counsel.” (Opp.Ex.4, ¶ 95.) iv.Declaration of Donald Archie Donald Archie stated in his declaration that he had known petitioner since junior high school. He discussed petitioner’s background and childhood, including his drug abuse. He then stated that he visited petitioner in jail during the trial, and that petitioner “was definitely not himself. In my estimation, it took well over a year for the effects of the sherm and whatever else he was using, to wear off. He was so out of it; he didn’t realize where he was or why he was there. I recall [petitioner] telling me at one point that he was on medication. Although he did not say it specifically, I understood it to be psychiatric medication. For most of the time that [petitioner] was in jail, he looked like a zombie; he looked deranged. During his trial, he did not seem to be paying attention.” (Opp.Ex.6, ¶ 15.) v.Declaration of Rossalyn Blanson Ms. Blanson was petitioner’s girlfriend at the time of the murders, and was involved in his plan to escape from custody. In her declaration, she discussed his background and the various problems he experienced. She then stated: I visited Stanley in jail the day after he was arrested. He was so out of it that he barely recognized me. He was dazed and did not appear to know why he was in jail. I was present at his arraignment. He was giggling like a child throughout the hearing.... It was just so obvious that Stanley wasn’t all there. I visited [petitioner] every day while he was awaiting trial, and I know that he did not come to his senses and start acting normally until some time during the middle of his trial. I could tell that the old Tookie was trying to come back when towards the end of his trial, he finally started trying to pay attention as best he could and trying to ask his lawyers a few questions. (Opp.Ex.lO, ¶¶ 12-14.) vi.Declaration of Joseph McFarland McFarland was in the same section of the jail as petitioner while he was on trial. McFarland stated that petitioner was “childish and naive.” The prison guards would bring him cookies and in exchange he would flex his muscles and break out of handcuffs. McFarland stated that it was not normal for a black prisoner to fraternize with white guards, and that “it was obvious to me from the first time I met [petitioner] that he was POP dazed.” (Opp.Ex.42, ¶ 5.) McFarland also stated that petitioner “did not seem to comprehend the seriousness of the charges against him. He told me that the police had arrested the wrong person, and that it would be cleared up within a matter of days.” (Opp.Ex.42, ¶ 6.) vii.Declaration of Tony Sims Sims was petitioner’s co-defendant in the Owens murder. He stated that he had known petitioner for eight years before the murders. He saw petitioner on a prison bus when they were being transported to court, but petitioner did not recognize him. As petitioner approached the bus, “he stopped abruptly and turned around in circles about five or six times. The deputy stepped back and let him complete his circles. It was very strange. On the bus, he just sat zombie-like, and stared straight ahead, not reacting to anything or anyone around him.” (Opp.Ex.50, ¶ 7.) viii. Declaration of Bonnie Taylor Taylor was married to petitioner from 1972 to 1974. In her declaration, she discussed his drug use, harassment by the police, and general character. She visited him once in jail. She stated that he “acted very silly and immature, as if he had no clue where he was, or what he was facing.” (Opp.Ex.57, ¶ 11.) ix. Declaration of Ceola Williams Ms. Williams is petitioner’s mother. In her declaration, she discussed petitioner’s background and childhood, including his head injuries and drug use. She also stated that, when she visited him in jail, he was “dazed and confused, and on several occasions, did not recognize me or my husband Fred Holiwell. Mentally, he was far, far away. Often he was unable to answer even simple questions such as ‘How are you?’, seeming not to understand. When he would answer, he would often lose his train of thought before finishing. He had no idea why he was in jail, and at times seemed even unaware that he was in jail.” (Opp.Ex.60, ¶ 13.) x. Declaration of Sherry Wiseman Wiseman was an alternate juror on petitioner’s case. She stated that petitioner “seemed ‘spaced out’ and not all there. He looked to me as if he was on drugs.... Although once in a while he made comments to his lawyers when witnesses were testifying, most of the time he did not look at the witnesses or make eye contact with anyone in the courtroom. He seemed oblivious to what was going on and in another world.” (Opp.Ex.63, ¶ 2.) b. Merits of Petitioner’s Substantive Incompetence Claim The evidence submitted in support of petitioner’s claim is not trivial. Declarations from witnesses who knew him well state that he was “dazed and confused,” “out of it,” “spaced out,” and “had no clue where he was or what he was facing.” Petitioner's stepfather informed the state court judge that he thought petitioner needed psychiatric assistance. (1 RT A-18.) Petitioner was hospitalized for at least one day after a psychotic episode during which he took off all his clothes and ran down the street screaming. Although this episode was determined to be drug-induced, it is evidence of mental problems, and evidence was presented at trial that petitioner had been ingesting drugs around the time of the murders. Petitioner has submitted declarations from three mental health experts stating that they believe that as a result of mental illness, frontal lobe damage, chronic and excessive drug abuse, and head injuries, petitioner was not competent to stand trial. There is evidence in the state court record that petitioner did not immediately respond to the court during a pre-trial hearing. Although Dr. Coodley stated that petitioner was competent to stand trial, according to Dr. Coodley’s 1995 declaration, he was not provided with all of the relevant information about petitioner’s family’s mental illness, his head injuries, his drug abuse, and his frontal lobe damage. Dr. Coodley stated that this additional information would have changed his views regarding petitioner’s competency. Taken as a whole and without addressing the credibility of the witnesses who provided the declarations, petitioner has presented some evidence that he was incompetent at trial. On the other hand, there is substantial evidence tending to show that petitioner was competent at trial. There is no indication in the record that petitioner behaved inappropriately during trial. He did not act out or disrupt the proceedings. Defense counsel did not raise the issue of his competency, nor did the trial judge or deputy district attorney. The only contemporaneous evaluation done of petitioner concluded that he was competent. The mental health evaluations submitted by petitioner to this Court were based on interviews conducted ten years after the trial. Petitioner addressed the state court at least twice during the state court proceedings and appeared to understand the proceedings against him. (1 RT A-56; 12 RT 2988.) He was sufficiently aware of his surroundings to request a continuance to have his retained counsel present. Petitioner also appeared rational during questioning by police. (See Opp.Ex. 80.) The Court is inclined to find that the facts alleged by petitioner do not create a real and substantial doubt about his competency. However, since the Court has already ordered an evidentiary hearing on other claims and trial counsel will be appearing to give testimony, the parties may explore this issue with trial counsel. If his responses create additional concerns, the Court will consider granting an expanded hearing on this issue. Claim B: Shackling and Excessive Security Petitioner argues that his constitutional rights were violated because he was subjected to excessive security and shackling without permissible justification and necessity, and in the absence of a hearing thereon. (Pet. at 15.) In support of this claim, petitioner argues that his hands were shackled during trial, that the shackles were visible to jurors and spectators, and that an unusual number of deputy sheriffs were present in the courtroom during the trial. He also alleges that his attorney was deficient in failing to object to the physical restraints and excessive security. One of the jurors in petitioner’s trial stated in a declaration that petitioner “was handcuffed from the beginning of trial until its end. I recall the handcuffs because I remember wondering how they could find cuffs which could fit around his wrists. I could see these restraints whenever Mr. Williams’ hands were visible.” (Opp.Ex.37, ¶ 2.) An alternate juror stated in a declaration that “[djuring Mr. Williams’ trial there were generally four marshals in the courtroom; one near Mr. Williams, one near the jury, and one on each side of the gate from the spectators section.” (Opp.Ex.63, ¶ 5.). 1. Shackling A criminal defendant has a constitutional right to appear before a jury free of restraints such as shackles. Jones v. Meyer, 899 F.2d 883, 884 (9th Cir.1990) (quoting Spain v. Rushen, 883 F.2d 712, 716 (9th Cir.1989)). This right is grounded both on the presumption of innocence and due process grounds. Duckett v. Godinez, 67 F.3d 734, 747-48 (9th Cir.1995), cert. denied, 517 U.S. 1158, 116 S.Ct. 1549, 134 L.Ed.2d 651 (1996). The use of restraints has several inherent disadvantages: physical restraints may cause jury prejudice and impair the presumption of innocence; they may detract from the dignity and decorum of the courtroom; they may impede the defendant’s ability to communicate with his counsel; they may confuse and embarrass the defendant; and they may cause pain. Id. The right to appear before a jury free of shackles is not absolute. Shackling is inherently prejudicial, but it is not per se unconstitutional. See Rushen, 883 F.2d at 716. Under certain circumstances, “ ‘shackling ... may be appropriate because of the public’s competing interest in courtroom security and the just administration of law.’ ” Duckett, 67 F.3d at 748 (quoting Rushen, 883 F.2d at 722). However, “it is a denial of due process if a trial court orders a defendant shackled without first engaging in a two-step process. First, the court must be persuaded by compelling circumstances that some measure is needed to maintain security of the courtroom. Second, the court must pursue less restrictive alternatives before imposing physical restraints.” Id. at 748 (quotations and citations omitted). There is no information in the state court record regarding petitioner’s shackling. There is no indication that the issue was ever discussed by counsel and the trial court. There is no record that the court ordered petitioner to be shackled or that trial counsel objected to the shackling. Consequently, the trial court did not articulate its reasons for allowing petitioner to remain shackled and there is no indication whether any less restrictive alternatives were available and would have been adequate. The trial court is not required to state on the record all its reasons for imposing shackles, nor must it conduct a hearing on the necessity before ordering the use of physical restraints. Duckett, 67 F.3d at 749 n. 7. However, “the basis for the decision to shackle should be apparent from the record. If it is not, the [federal habeas court] must hold an evidentiary hearing to determine whether shackling was justified.” Id. It is impossible to tell from the record before the Court whether the shackling was justified. Respondent argues that the court had several reasons for shackling petitioner, including his massive size, the fact that he founded the notorious street gang, the Crips, and his escape plan. However, respondent cites no case supporting his argument that a defendant may be shackled because he is a bodybuilder or is physically large. The mere fact that petitioner is a gang member, or the leader of a gang, does not establish that he will be a security problem. It is not even clear that the trial court knew that petitioner was the alleged founder of the Crips. In each Ninth Circuit case in which shackling has been approved, “there has [ ] been evidence of disruptive courtroom behavior, attempts to escape from custody, assaults or attempted assaults while in custody, or a pattern of defiant behavior toward corrections officials and judicial authorities.” Duckett, 67 F.3d at 749 (citing Morgan v. Bunnell, 24 F.3d 49, 51 (9th Cir.1994); Hamilton v. Vasquez, 17 F.3d 1149, 1154— 55 (9th Cir.1994); United States v. Baker, 10 F.3d 1374, 1401 (9th Cir.1993); King v. Rowland, 977 F.2d 1354, 1358 (9th Cir. 1992); Jones, 899 F.2d at 885; Stewart v. Corbin, 850 F.2d 492, 498 (9th Cir.1988); Wilson v. McCarthy, 770 F.2d 1482, 1485 (9th Cir.1985)). With the exception of the escape plan, none of these appear to be present in Williams’s case. Attempted escapes while in custody are clearly relevant. Morgan, 24 F.3d at 51. However, there is no evidence that petitioner’s escape ideas went beyond the planning stage and, until Oglesby testified about the escape plans at the end of the guilt phase, it is not clear that the trial court was aware of the escape plans. In addition, Oglesby testified that the escape plan ended over a year and a half prior to trial. Therefore, the basis for the shackling is not apparent from the record, and it is impossible to say that petitioner’s shackling was appropriate or justified. The remaining question is whether the error, if any, had “a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Given the inadequacy of the record, it is impossible to resolve that issue on summary judgment. Although the effect of shackles has been described as inherently prejudicial, the actual prejudice will vary depending on the degree of restraint. See, e.g., Castillo v. Stainer, 983 F.2d 145, 149 (9th Cir.1992), modified, 997 F.2d 669 (9th Cir.1993) (holding shackling at trial harmless because the defendant wore only a waist chain which could not be seen by the jury.) To determine whether petitioner suffered prejudice, the Court must determine “how onerous the shackles were” and the “extent to which they were visible by the jury.” Duckett, 67 F.3d at 749. Based on the foregoing, the Court DENIES summary judgment on this portion of the claim and the shackling claim will be subject to the evidentiary hearing already scheduled in this case. B. Excessive Security Petitioner also alleges that the presence of four uniformed deputy sheriffs at trial prejudiced the jury. The deployment of security personnel during trial is not the sort of “inherently prejudicial practice that, like shackling, should be permitted only where justified by an essential state interest.” Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986). On federal habeas review, a federal court “is not to determine whether it might have been feasible for the State to have employed less conspicuous security measures in the courtroom.... All a federal court may do in such a situation is look at the scene presented to jurors and determine whether what they saw was so inherently prejudicial as to pose an unacceptable threat to defendant’s right to a fair trial; if the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over.” Id. at 572, 106 S.Ct. 1340. Respondent has established that he is entitled to relief as a matter of law on the excessive security portion of this claim. The only evidence petitioner has alleged to support this claim is an alternate juror’s declaration that there were four deputy sheriffs in the courtroom during his trial, instead of the usual two. The Court assumes this allegation is true. However, the use of four deputies, by itself, is not sufficient to establish a denial of the right to a fair trial. Holbrook, 475 U.S. at 572, 106 S.Ct. 1340 (presence of four uniformed state troopers held constitutional); King v. Rowland, 977 F.2d 1354, 1358 (9th Cir. 1992) (use of three deputy sheriffs to guard defendant held constitutional); Ainsworth v. Calderon, 138 F.3d 787, 797 (9th Cir.1998) (use of four, and sometimes six, deputy sheriffs held constitutional). Petitioner does not allege that the presence of the two additional deputies impaired his ability to have access to his attorney or to assist in his defense. Moreover, there is no evidence to suggest that the jurors knew that additional security personnel were being used. In her declaration, alternate juror Wiseman stated that she knew that there were usually only two deputies present during trial because her brother was a marshall. (Opp.Ex.63, ¶ 5.) There is no evidence that any other juror was aware that only two deputies were normally used. Therefore, there is no reason to conclude that the presence of four deputies denied petitioner a fair trial. Because the use of additional security measures is not inherently prejudicial, the State is not required to justify its decision to deploy two additional deputies. Morgan, 946 F.2d at 1465. Therefore, the trial court’s failure to hold a hearing on the issue of the additional security does not change the analysis. Based on the foregoing, the Court GRANTS summary judgment on this portion of Claim B. Claim C: Racial Animus in Jury Selection and Prosecution Petitioner argues that his constitutional rights were denied by the prosecutor’s use of peremptory challenges to remove all African-American women from the jury and to remove an African-American male alternate juror and by the prosecutor’s “thinly-veiled appeal to racial prejudice during the penalty phase of trial.” (Pet. at 16.) 1. Batson Claim To prevail on a claim under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), petitioner must establish a prima facie case of purposeful discrimination in the jury selection process. To establish a prima facie ease, he must show that “(1) the defendant is a member of a cognizable racial group; (2) the prosecution has removed members of such a racial group; and (3) circumstances raised an inference that the challenges were motivated by race.” Turner v. Marshall, 63 F.3d 807, 812 (9th Cir.1995). Once he has established a prima facie case, the burden then shifts to the prosecutor to present a race-neutral explanation for the use of the peremptory challenges. If a race-neutral explanation is tendered, the trial court must decide whether petitioner has proved purposeful discrimination. Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). Although it was not decided until several years after petitioner’s trial, Batson applies retroactively to cases — like petitioner’s — that were pending on direct appeal at the time it was decided. Griffith v. Kentucky, 479 U.S. 314, 326-28, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). a. Trial Counsel’s Failure to Object ■ Respondent argues that summary judgment should be granted because petitioner’s trial counsel failed to object to the prosecutor’s use of peremptory challenges at trial, therefore, petitioner did not establish a prima facie case of purposeful discrimination. Petitioner argues that counsel’s failure to object is not fatal to his claim, and, if it is, the Court has discretion to excuse such failures in the interests of justice. An objection based on Batson should be made as soon as possible. See United States v. Contreras-Contreras, 83 F.3d 1103, 1105 (9th Cir.), cert. denied, 519 U.S. 903, 117 S.Ct. 259, 136 L.Ed.2d 184 (1996). Even assuming it does not bar review of the claim, the failure to object and consequently to perfect a record makes appellate review of the prosecution’s use of peremptory challenges difficult if not impossible. A “contemporaneous objection is especially pertinent as to Batson claims, where innocent oversight can so readily be remedied and an accurate record of the racial composition of the jury is crucial on appeal.” United States v. Pulgarin, 955 F.2d 1, 2 (1st Cir.1992). Unless the facts supporting the Batson claim are articulated at trial, “they are lost to the record and appellate review becomes impossible.” United States v. Changco, 1 F.3d 837, 840 (9th Cir.1993). The “ ‘decision to exercise a peremptory challenge ... is subjective; and, often, the reasons behind that decision cannot be reasonably articulated.’ ” McCrory v. Henderson, 82 F.3d 1243, 1247 (2nd Cir. 1996) (quoting Thomas v. Moore, 866 F.2d 803, 805 (5th Cir.1989)). The trial judge must rule on whether the prosecutor’s justifications for the challenges are legitimate or are a subterfuge for discrimination. Given the often subtle reasons for the exercise of peremptory challenges, the trial court’s ruling on the Batson claim may turn on the court’s observations of the prospective jurors and the prosecutor. Id. at 1248. Neither the Ninth Circuit nor United States Supreme Court has squarely addressed the issue of how to resolve a Batson claim where trial counsel failed to object. The Ninth Circuit has noted in dicta that “the defendant whose counsel fails to make a timely objection to a peremptory challenge merely forfeits the right to object and may argue on appeal that the peremptory challenge constituted plain error.” Contreras-Contreras, 83 F.3d at 1105 n. 1. Plain error is an actual error that is “clear” and “obvious” under current law. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). When plain error affects “substantial rights” the court has the authority to exercise its discretion in reversing a conviction. Id. at 732-37, 113 S.Ct. 1770. A plain error affects substantial rights when the error was prejudicial in that it “affected the outcome of the [trial court] proceedings.” Id. at 734, 113 S.Ct. 1770. “It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.” Id. The discretion to correct the error should be used only in those cases “ ‘in which a miscarriage of justice would otherwise result.’ ” Id. at 736, 113 S.Ct. 1770 (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)). Contreras-Contreras was a direct appeal case, not a habeas case. As the United States Supreme Court has noted, “[f]ederal habeas challenges to state convictions ... entail greater finality problems and special comity concerns. We remain convinced that the burden of justifying federal habeas relief for state prisoners is ‘greater than the showing required to establish plain error on direct appeal.’ ” Engle v. Isaac, 456 U.S. 107, 134-35, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977)). Therefore, to prevail on this claim, petitioner must make a showing greater than that required to show plain error on direct appeal. Assuming petitioner has not waived this claim by failing to object at trial, he has failed to establish that the prosecutor’s use of peremptory challenges constitutes plain error and has thus failed to meet the greater burden of showing that he is entitled to federal habeas relief. Petitioner has failed to make a prima facie showing of purposeful discrimination. He has failed to show that the “circumstances raised an inference that the challenges were motivated by race.” Turner, 63 F.3d at 812. He has failed to allege how many jurors the prosecutor struck with a peremptory challenge, how many of those jurors were African-American, how many of the jurors in the venire were African-American, and how many African-Aneri-can jurors actually sat on his jury. He has also failed to allege facts showing that the African-Anerican jurors were struck for an improper reason, and has failed to show that the prosecutor did not have a valid, race-neutral reason for striking the African-American jurors. In view of petitioner’s failure to present evidence to meet his burden, the Court GRANTS summary judgment on the Batson claim. c. Ineffective Assistance of Counsel Petitioner claims his trial attorney provided ineffective assistance by failing to object to the prosecutor’s use of peremptory challenges to exclude potential African-American jurors. To prevail on a claim of ineffective assistance of counsel, petitioner must show that (1) his attorney’s performance was deficient, and (2) prejudice resulted from the attorney’s acts or omissions. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Deficient performance requires a showing that counsel’s representation fell below an objective standard of reasonableness. Id. at 688, 104 S.Ct. 2052. In reviewing his performance, great deference should be afforded counsel’s tactical decisions. Prejudice requires a showing of a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. A reasonable probability is defined as one that is sufficient to undermine confidence in the outcome. Id. at 694, 104 S.Ct. 2052. The first issue is whether trial counsel could have provided ineffective assistance by failing to raise an objection based on a case that had not been decided at the time of petitioner’s trial. Petitioner was tried in 1981; Batson was not decided until 1986. Normally, counsel “need not ‘anticipate a change in existing law’ to render constitutionally effective assistance of counsel.” Carier v. Hopkins, 92 F.3d 666, 670 (8th Cir.1996) (quoting Ruff v. Armontrout, 11 F.3d 265, 268 (8th Cir. 1996)). However, petitioner’s attorney could have raised the issue on state law grounds. People v. Wheeler, 22 Cal.3d 258, 272, 148 Cal.Rptr. 890, 583 P.2d 748 (1978). Similarly, the attorney could have raised an objection to the exclusion of nonwhite jurors under existing federal law. See Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); cf. Ford v. Georgia, 498 U.S. at 425, 111 S.Ct. 850 (holding that defendant tried before Bat-son decided who raised contemporaneous objection to jury selection based on Swain also preserved Batson claim for review on direct appeal). Therefore, trial counsel could conceivably be found deficient for failing to object to the prosecutor’s discriminatory use of peremptory challenges. Even assuming trial counsel could have provided deficient performance, the ineffective assistance of counsel subclaim suffers from the same infirmities as the Batson claim. Given the strong presumption that trial counsel provided effective representation, petitioner will be unable to show that his attorney provided deficient performance or that he suffered prejudice from the failure to object. He has failed to establish that any reasonable attorney under the circumstances would have objected to the prosecution’s use of peremptory challenges and cannot establish that the objection would have been sustained. Therefore, the Court GRANTS the motion for summary judgment as to the ineffective assistance subclaim. 2. Prosecutorial Misconduct Petitioner argues that his constitutional rights were violated when the prosecutor made a racist analogy during his closing argument. During his penalty phase closing argument, the prosecutor argued: I’m going to close with an analogy. As I say, an analogy sometimes takes up from the familiar to the unfamiliar. As if we were to take a friend, a wife, a visitor from out of town down to San Diego and perhaps go to Mission Bay and perhaps go to the zoo; and if we went to the zoo, we might pass a place that had a high fence and a moat; and in the background you would see, sleepily, really, striped animals, mother, father, maybe some cubs sunning themselves in the shade while we stood there perhaps eating a candy bar or something looking at them. And there’s a little brass plate, and it says, “Bengal Tiger.” And you tell your friends or your children that that’s a Bengal Tiger, when, as a matter of fact, it is not a Bengal Tiger. Why do I say that? The same reason that all during this trial you have seen the defendant, Stanley Williams, sitting there in his suit, coming into court each day. We’re seeing him in a sanitized atmosphere in a courtroom, the judge with a jury, the spectators, bailiff, defense attorneys, prosecutor, all in suits and ties. Very civilized proceeding. And, so, if you were to take your wife and those same children or a visitor out of town and go to India and there take a trip into the back country, into the hinterlands; and you have a pack on, and you’re walking through palm tree and scrub brush; and suddenly you push a large palm aside and as you do so, you see flashing bright eyes of a mother Bengal Tiger with her cubs. Now, you are seeing a Bengal Tiger. This is not the San Diego Zoo. This is you in the habitat, in the environment. And, by the same token, as we look at the evidence from the 7-11, we look at the evidence from the Brookhaven Motel, that as the defendant — there’s the defendant. There’s the defendant in his environment, with his shotgun, killing people unnecessarily for a pittance of money. (12 RT 3043-44.) Respondent argues that he is entitled to summary judgment because the state supreme court’s rejection of a similar claim in another case is a finding of fact entitled to a presumption of correctness. Pursuant to 28 U.S.C. § 2254(d), a state court’s written findings of fact made after a hearing on the merits of a factual issue are presumed tú be correct unless petitioner establishes one of eight exceptions. However, respondent’s argument has two problems. First, the state court’s decision in People v. Duncan, 53 Cal.3d 955, 281 Cal.Rptr. 273, 810 P.2d 131 (1991), regarding a similar argument made by the same prosecutor who tried petitioner’s case, is not a finding of fact entitled to a presumption of correctness. Respondent has cited no authority for the proposition that a federal court may presume correct findings of fact made by a state court in another case and thereby deny petitioner federal habeas relief. Second, the underlying facts of the prosecutorial misconduct claim are undisputed and do not need to be “found.” The prosecutor made a closing argument which was transcribed and included in the state court record. The state supreme court’s decision relating to the closing argument in Duncan was not a finding of fact, but rather a characterization of the argument. However, in the alternative, respondent argues that the Court should grant summary judgment because the prosecutor’s argument was harmless. The Court has independently reviewed the argument made by the prosecutor at the guilt phase of petitioner trial and finds that the argument did not so infect “the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). The prosecutor’s argument was not overly inflammatory. He was merely trying to show that petitioner’s appearance and demeanor in court was not inconsistent with his violent behavior on the night of the murders. Using the analogy of a caged predator versus a wild one to illustrate this point does not invoke racial overtones. In addition, the Ninth Circuit recently denied an almost identical claim. McDowell v. Calderon, 107 F.3d 1351, 1365 (9th Cir. 1997), overruled on other grounds, 130 F.3d 833 (9th Cir.1997) (en banc). Based on the foregoing, the Court finds that the prosecutor’s argument did not rende r the sentencing phase fundamentally unfair and GRANTS summary judgment on this claim. Claim D: Trial Counsel’s Failure to Present a Mens Rea Defense Petitioner claims his trial attorney failed to investigate and present evidence that he lacked the requisite mens rea for murder and robbery due to his serious mental disorder and/or drug-induced psychosis or intoxication due primarily to the combined effects of his underlying organic affective disorder and chronic use of mind altering drugs. Respondent argues that he is entitled to summary judgment on this claim for the following reasons: (1) trial counsel’s decision to present an alibi defense instead of a diminished capacity defense cannot be considered deficient performance, and (2) petitioner suffered no prejudice from counsel’s failure to present a diminished capacity or insanity defense because it would not have succeeded. (Mot. at 116-157.) At trial, petitioner’s attorney presented an alibi defense. A mental state defense would have contradicted this defense by conceding petitioner’s presence at the scenes of the murders. The Ninth Circuit recently held that a habeas petitioner was not entitled to an evidentiary hearing on a similar claim. Correll v. Stewart, 137 F.3d 1404 (9th Cir.1998). The circuit held that “it was within the broad range of professionally competent assistance for [petitioner’s] attorney to choose not to present psychiatric evidence which would have contradicted the primary defense theory.” Id. at 1411. Therefore, the Court GRANTS respondent’s motion as to this claim. Claim E: Samuel Coleman’s Coerced Statement Petitioner contends that his constitutional rights were violated by the admission of the illegally coerced and involuntary testimony of a key prosecution witness, Samuel Coleman. Coleman and petitioner were arrested while driving in Coleman’s car. Coleman was arrested for carrying a loaded shotgun in the trunk of his car and petitioner was arrested for the 7-Eleven and Brookhaven Motel murders. Petitioner alleges that the police beat Coleman then offered him immunity to testify against petitioner, and that Coleman agreed to testify because he feared further physical abuse. 1. Coleman’s Trial Testimony was not Coerced At trial, Coleman testified that he and petitioner were acquaintances and that he saw petitioner at around 2 a.m. on March 11, 1979, at the Showcase Bar. The next day they walked their dogs together in Griffith Park. While at the park, petitioner ' told Coleman that he had robbed and killed some people and that he was going to use the proceeds of the robbery to buy PCP. (7 RT 1563.) In general, petitioner does not have standing to challenge an alleged violation of Coleman’s constitutional rights. However, “[e]onfessions wrung out of their makers may be less reliable than voluntary confessions, so that using one person’s coerced confession at another’s trial violates his rights under the due process clause.” Clanton v. Cooper, 129 F.3d 1147, 1158 (10th Cir.1997) (quoting Buckley v. Fitzsimmons, 20 F.3d 789, 795 (7th Cir. 1994)). The Ninth Circuit caselaw appears to follow this analysis. See United States v. Mattison, 437 F.2d 84, 85 (9th Cir.1970). Although petitioner’s claim is cognizable, he has failed to allege facts sufficient to entitle him to relief. For the purposes of this analysis, the Court assumes that Coleman’s claim that he was beaten by police is true. Under Mattison, petitioner must establish that the third party witness’s trial testimony was coerced. Mattison, 437 F.2d at 85. As the court in Mattison noted, “[b]y the time of trial, the psychologically coercive atmosphere of that interrogation must have dissipated. There is no indication that [the witness] was told at any time by anyone what he should say on the witness stand.” Id. The court also pointed out that the witness’s testimony was subject to cross-examination and that the jury could observe his demeanor and gauge his credibility. Petitioner’s claim suffers from the same infirmities as the-claim in Mattison. Even assuming the police beat Coleman and forced him to inculpate petitioner when he was arrested in 1979, by the time he testified in 1982, the coercive atmosphere of the interrogation had dissipated. Coleman had a lawyer, who, according to Coleman’s testimony at trial, negotiated the grant of immunity which Coleman received from the prosecution in exchange for his testimony. (7 RT 1554.) The grant of immunity was unnecessary because Coleman was never charged with any crime and the prosecution never alleged that he was involved in the murders. Coleman was represented and the police had nothing to hold over his head at trial. According to Coleman’s declaration, petitioner was aware that Coleman had been beaten by the police, and trial counsel was free to interview Coleman about his treatment by police. (Opp.Ex.19, ¶ 3.) Petitioner had the opportunity to cross-examine Coleman about petitioner’s statements to him and could have inquired about the alleged beating. In addition, the jury was given the appropriate instructions as to reasonable doubt, credibility, and immunity to aid them in assessing the value of Coleman’s testimony. Therefore, the admission of Coleman’s trial testimony did not violate petitioner’s due process rights. 2. Any Error in the Admission of Coleman’s Testimony was Harmless Respondent also argues that he is entitled to summary judgment on this claim because any error in the admission of Coleman’s trial testimony was harmless because his testimony was corroborated by the testimony of other witnesses. Petitioner argues that the error was not harmless because Coleman was the only witness who was not an accomplice, inmate, or career criminal. Corroboration of the alleged coerced testimony of a third party witness from other sources can demonstrate the reliability and nonprejudicial impact of the testimony. Wilcox v. Ford, 813 F.2d 1140, 1149 (11th Cir.1987). In this case, Coleman’s testimony was corroborated by the testimony of James and Esther Garrett, George Oglesby, and by the testimony of a firearms expert that a shotgun shell casing found at the scene was fired from petitioner’s shotgun. Although Coleman’s testimony may have been more believable because he was not an accomplice, career criminal, or jail inmate, this difference was not so significant that the introduction of his testimony denied petitioner a fair trial. The admission of Coleman’s testimony at trial, assuming it was error, did not have “a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 638, 113 S.Ct. 1710. Based on the foregoing, the Court GRANTS summary judgment on this claim. Claim F: Prosecution’s Suppression of Material Evidence Regarding James Garrett Petitioner claims that, contrary to James Garrett’s testimony at trial, the District Attorney’s Office made promises to assist him in the receiving stolen property and extortion cases for which he was awaiting sentencing at the time of petitioner’s tidal in exchange for his testimony against petitioner. (Pet. at 31-32.) Respondent argues that he is entitled to summary judgment on this claim because petitioner has failed to allege facts proving the existence of an agreement and that any agreement was not material. The prosecution has a duty to turn over all exculpatory evidence to the defense. The Supreme Court held in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that “the suppression by the prosecution of evidence favorable to an accused upon request violates Due Process where the evidence is material either to guilt or to punishment, irrespective of the good or bad faith of the prosecution.” Later, the Supreme Court expanded the scope of the rule, holding that “[w]hen the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within thi