Parsons v. Galetka (57 F. Supp. 2d 1151, 1999)

ORDER

SAM, Chief Judge.

The petitioner, Joseph Mitchell Parsons, an inmate at the Utah State Prison, filed this action for a writ of habeas corpus under 28 USC § 2254 seeking relief from his conviction in the Utah courts for First Degree Murder and a sentence of death. The case was referred to the magistrate judge under 28 USC § 2254. The magistrate judge made a report and recommendation that the petition for habeas corpus be denied. No objection has been taken to the report and recommendation. Parsons has indicated to the court that he does not wish to pursue further federal remedies. The court has reviewed the file and hereby adopts the report and recommendation of the magistrate judge. Therefore,

IT IS HEREBY ORDERED the petition of Joseph Mitchell Parsons for a writ of habeas corpus under 28 USC § 2254 is DENIED.

REPORT & RECOMMENDATION

BOYCE, United States Magistrate Judge.

Petitioner, Joseph M. Parsons, an inmate at the Utah State Prison (USP) at Draper has filed a petition for habeas corpus under 28 USC § 2254. The petitioner was convicted on a plea of guilty of murder in the first degree, aggravated robbery, and theft of an operable motor vehicle in Fifth District Court, Iron County, State of Utah, which offenses allegedly occurred August 31, 1987. He was sentenced to death on January 29,1988 after a jury trial on the capital sentence.

Petitioner appealed his conviction to the Utah Supreme Court which affirmed the conviction and sentence. State v. Parsons, 781 P.2d 1275 (Utah, 1989). On petitioners’s appeal to the Utah Supreme Court, he challenged the constitutionality of the Utah capital offense statute as denying due process and violating double jeopardy. The double jeopardy argument was rejected and the claim of denial of due process was also rejected, both results based on the fact that defendant entered an unconditional plea of guilty, thereby waiving defects in the jury process or in the alleged unconstitutional manner of determining guilt. No challenge was made to the petitioner’s plea of guilty before the Utah Supreme Court, 781 P.2d at 1278, or in any other proceeding.

Petitioner claimed defects in the sentencing proceeding conducted under Utah Code Ann. § 76-3-207. Petitioner sought to have the death sentence vacated and a life sentence entered. Id. at 1279. The Utah Supreme Court found the standards applied in the trial court were proper and in accord with the Utah Supreme Court’s instructions in State v. Wood, 648 P.2d 71, 83-85 (1982). The petitioner challenged the special verdict form submitted to the jury whereby it was required to answer yes or no as to whether three aggravating circumstances were proved by the evidence beyond a reasonable doubt. The Utah Supreme Court upheld the use of the special verdict form. Id. at 1280.

Petitioner challenged the discriminatory application of the death penalty as to him. The argument was actually an argument for a proportionality review which is not constitutionally required, Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984), and has not been adopted by the Utah Supreme Court as a part of the Utah death penalty procedure.

The petitioner also challenged the actions of the trial judge, the admission of other aggravating circumstance evidence beyond the charged aggravating conduct, alleged improper influence because another district judge sat in the courtroom and watched his son who was prosecuting the case, and alleged improper closing argument by the prosecutor. All of these matters were rejected, by the Utah Supreme Court as a basis for a reversal.

Petitioner raised an issue as to contact between a juror and a witness. Id. at 1284. The petitioner had waived any prejudice claim on that matter in the state trial court, however, the Utah Supreme Court said it would consider the merits of the claim because of the death verdict. A record on the contact issue was made in the trial court. Defense counsel indicated he was not sure there was any prejudice and he would not move for a mistrial. The Utah Supreme Court, however, did not decide the matter of prejudice but found that petitioner had invited any error and could not make a challenge for reversal based on the incident.

Finally, the petitioner raised a claim of instructional error on the basis of failure to give a “two reasonable hypotheses” instruction, which claim was rejected as contrary to settled Utah law.

Thereafter, petitioner pursued a petition for habeas corpus relief in Third District Court, State of Utah. That court denied habeas corpus relief and the petitioner’s case was again appealed to the Utah Supreme Court. The Utah Supreme Court affirmed the denial of post conviction relief. Parsons v. Barnes, 871 P.2d 516 (Utah, 1994). The petitioner claimed ineffectiveness of trial counsel. Eight allegations of ineffectiveness were raised on appeal before the Utah Supreme Court.

First, it was contended petitioner was denied due process of law under the Sixth and Fourteenth Amendments to the United States Constitution because the Iron County attorney, after charges had been filed, took sworn recorded statements from witnesses, akin to depositions, without notice to and attendance by petitioner or counsel. Second, ineffectiveness was claimed because defense counsel allegedly advised petitioner to plead guilty as charged to capital homicide without obtaining any meaningful benefit. Third, counsel failed to adequately explore the contact between a juror and a prosecution witness. Fourth, counsel failed to file discovery motions or formal requests for discovery material. Fifth, defense counsel advised Parsons that he could only waive his preliminary hearing by pleading guilty as charged. Sixth, counsel failed to spend adequate time with petitioner in order to prepare a defense. Seventh, it was asserted that defense counsel was ineffective because he failed to object to the verdict form that asked for the jury’s findings on three aggravating circumstances where only one existed under the law, and eighth, counsel failed to explore the need for and ask for a change of venue.

The opinion of the Utah Supreme Court treated the “deposition” issue, as argued by appellate counsel, as raising a due process right for counsel and the petitioner to be present and a right of confrontation at the time the statements were taken. 871 P.2d at 518-521. The Utah court observed that on the same day that petitioner was charged, the prosecutor took statements from two witnesses under oath. One was from the victim’s wife, Beverly Ernest, and the other from Chad Williams, an employee at a convenience store to which petitioner had taken the victims’ vehicle, changed his clothes, cleaned out the car, and discarded the victim’s personal property. The Utah Supreme Court reviewed the merits of Parson’s arguments. Id. at 519. The court concluded that depositions were not taken, as could be done under Rule 14, Utah R.Cr.P. The action was an investigation and was only to take sworn statements by a careful prosecutor/investigator. The court concluded this was not a violation of due process and that Parsons bene-fitted by the preservation of the evidence when it was fresh in the minds of the witnesses. Id. at 520.

The court found there was no Sixth Amendment violation of the right to confrontation since the live witnesses were called at trial. The court also found any threat of a possible perjury prosecution did not show any chilling effect on their testimony and the oath probably had its “intended effect” of obtaining the truth. Id. at 520. The statements were not introduced into evidence at trial.

The court’s decision on the claim of denial of counsel at the taking of the sworn statements did not consider whether any right to counsel existed, at that time but that there was no indication the benefit of counsel, at that time, would have been different from the cross-examination at the sentencing hearing. Id. at 521. The court found no constitutional violation and then addressed the issues of ineffective assistance of counsel.

The Utah Supreme Court stated there were thirteen claims of ineffectiveness of counsel, made in the habeas trial court but, as noted before, the petitioner’s post conviction brief on appeal, listed eight claims and those were all the claims presented on appeal from the post conviction hearing.

A more specific discussion of the Utah Supreme Court’s post conviction ruling is required. On the first issue, the failure of defense counsel to object to the taking of sworn statements by the prosecutor was alleged as a basis for relief. However, because the Utah Court found there was nothing wrong in that procedure, the failure to object could not be a basis for a claim of ineffectiveness of counsel.

The court addressed the claim of the alleged lack of substantial investigation by counsel. The Utah Supreme Court stated that petitioner has “consistently maintained” he reacted violently to the victim’s homosexual advances and petitioner claimed there was inadequate investigation and an autopsy should have been requested and a private investigator provided. The court noticed there was no evidence of the victim being a homosexual and the evidence was of the victim’s heterosexual relationships. The Utah court found petitioner had not met the prejudice prong requirement for relief under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Actually, the record in this case also shows counsel had an autopsy examination report that showed no evidence of anal sexuality.

As to petitioner’s contention that counsel advised him to plead guilty to first degree murder without any benefit being received in return, the Utah court concluded this was part of a “a legitimate trial strategy and was therefore professionally reasonable.” 871 P.2d at 524. Defense counsel had testified at the state habeas hearing that the plea of guilty would blunt the effect of the evidence presented during sentencing. The Utah court said the strategy was legitimate and petitioner did receive the benefit of being able to waive the preliminary hearing which he strenuously wished to do. Id. at 525.

The court also noted petitioner could not claim ineffectiveness of counsel based on the prosecutor’s refusal to waive a preliminary hearing that allegedly pressured petitioner to plead guilty, because under Rule 7(g)(1) U.R.Cr.P. the prosecutor’s consent was necessary to waive a preliminary hearing. The prosecutor had a right to refuse to waive the preliminary hearing. Id. at 525. Further, defendant could show no prejudice in either issue. The petitioner did not claim he would have gone to trial if he had not been advised to plead guilty. 871 P.2d at 525. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

On the issue of juror-witness contact, the court observed the issue had been raised on direct appeal and that no error had resulted from the contact and any objection of counsel would have been futile.

The Utah court addressed the failure to file discovery requests. It noted that under Rule 16, U.R.Cr.P. informal discovery was authorized and disclosure in this case was informal. An open file policy was in existence. The prosecutor had given Parson’s counsel everything from “day one” and no evidence was used that had not been disclosed. 871 P.2d at 526. The court also concluded no prejudice had been shown.

On the inadequate trial preparation claim, the evidence in the State habeas hearing was conflicting. The evidence was that counsel spent between four and twenty hours with the petitioner. The Utah Supreme Court declined to find any particular amount of consultation time was required and declined to grant any relief because the petitioner had not shown prejudice.

The Utah Supreme Court addressed the question of whether counsel had failed to conduct an adequate voir dire examination of the jurors. This was not raised as a specific issue in appellant’s brief on appeal in the post conviction proceedings but was addressed in the brief of the appellee. The petitioner then addressed the issue in his reply brief and the Utah Supreme Court addressed the issue. The issue was also apparently not a part of the post conviction trial judge’s findings of fact and conclusions of law (addendum 4, respondent’s supplemental material in this court). The trial judge asked jurors whether and from what source they had heard or read anything about the case. Parsons claimed they should have been asked “what ” they had read. The extent of juror exposure to media reporting on the case was disclosed in the voir dire. The Utah court said there was no demonstration that further inquiry would have altered the outcome of the sentencing hearing. Therefore, the ineffectiveness claim failed.

On the issue of the verdict form, petitioner argued on direct appeal the effect of a special verdict form on aggravating circumstances was to mislead the jury to find only aggravating circumstances and not consider mitigating circumstances. He also claimed special verdict forms should be forbidden in capital cases or the form include both aggravating and mitigating circumstances. The Utah court noted it had rejected these arguments in the direct appeal.

The Utah Supreme Court observed in the habeas case, that the verdict form contained three questions. First, was whether the jury found, beyond reasonable doubt, an intentional killing was in the course of an aggravated robbery. Second, was whether the victim was killed for financial gain and third, whether petitioner “being a person on parole, knowingly possessed or had in his custody or under his control a firearm.” 871 P.2d at 527. This later circumstance was not an element ag-gravator in the first degree murder information. The Utah court, however, said that under Utah law the aggravating facts in the sentencing phase were not limited to the statutory aggravators defining the offense. The same standard applied to mitigating factors that are also listed in Utah Code Ann. § 76-8-2.

Petitioner argued counsel did not object because the jury form omitted the aggravating circumstance of being previously convicted of a felony involving the use or threat of violence to another, he intentionally or knowingly caused the death of another. (See § 76-5-202(h)). This was one of the aggravated elements to which petitioner pled guilty and was in the information. 871 P.2d at 527. The Utah court said to include it in the verdict form would have been superfluous. It was a matter of evidence, its omission from the jury form might have worked to petitioner’s benefit.

Petitioner also challenged the use of the robbery aggravator and the pecuniary gain aggravator as “double-counting” since it was asserted robbery necessarily involves the element of pecuniary gain. The Utah Supreme Court agreed. The Court said in the future in a robbery case the pecuniary gain, aggravator should not be used. However, referring to the prejudice prong of Strickland, supra, the Court found it was not present because the instructions to the jury required that the totality of the aggravating circumstances had to outweigh the mitigating circumstances beyond a reasonable double “not in terms of the relative numbers ... but in terms of their respective substantiality and persuasiveness.” Id. at 529. This instruction, the court concluded, eliminated any prejudice under Strickland.

Finally, petitioner argued that he had a constitutional right to state-compensated counsel in his state habeas proceedings. Petitioner was represented by counsel, but apparently counsel was not compensated. The Utah Supreme Court rejected the contention as a basis for relief.

Petitioner sought a rehearing before the Utah Supreme Court which was denied. He also sought review by writ of certiorari to the United States Supreme Court, which was also denied. The petition in this court is the first effort at federal habeas relief sought by petitioner.

Petitioner has sought relief in this court pursuant to 28 USC § 2254. The petition was made prior to the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA) and the petition is considered under the provisions of 28 USC § 2254 existing at the time the petition was filed. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The petition lists three categories of claims of error for relief. First, a claim of denial of due process under the sixth and fourteenth amendments because the prosecuting attorney took depositions from witnesses after charges had been filed. This issue was raised on direct appeal and on collateral challenge in the Utah courts. Second, petitioner has raised claims of ineffective assistance of counsel. The claims are eight in number and are substantially similar to those raised in the state post conviction petition with some variations. Third, the petitioner contended he had a federal constitutional right to paid counsel in his state post conviction proceedings.

The respondent, warden of the Utah State Prison, Hank Galetka, was ordered to respond (File Entry # 9). The respondent made a motion to dismiss the petition (File Entry #18). A memorandum with attachments was filed (File Entry # 19). The memorandum contains the basis of the respondent’s motion to dismiss. The respondent claims that several of the issues raised were unexhausted claims and that some of the claims are precluded under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Petitioner submitted a memorandum in opposition to the motion to dismiss. The petitioner contends there has been full exhaustion of state remedies (File Entry # 23) and that Teague v. Lane, supra, was inappropriate (Id.).

A hearing was held on the motion to dismiss and on the merits of the petition (File Entry # 34). At that hearing, three witnesses were called by the petitioner. James Shumate, petitioner’s counsel at petitioner’s state trial and on his first appeal, was called. Edward Barton an investigator for petitioner testified. Petitioner testified. Respondent submitted a trial brief (File Entry # 36) as did petitioner (File Entry # 38).

At the hearing before this court, James L. Shumate, petitioner’s counsel, testified he was a sole practitioner. He had served as the Iron County Attorney for four years (prosecutor) and as a public defender for eleven years on contract (Tr. pp. 26-27). Shumate had been associate counsel in one capital case and lead counsel in two others prior to his representing Parsons (Tr. p. 27). When Shumate was a prosecutor he also had training in capital cases (Tr. p. 28).

Shumate, petitioner’s counsel, received a flat fee of $10,000 for representation of Parsons. An investigator could have been employed at the time but one was not used (Tr. p. 30). Parsons did advise Shumate that the victim had made homosexual advances to Parsons (Id.). Shumate spoke informally with the family of the deceased, Mr. Ernest, about the matter (Tr. p. 31). He did not directly ask if the deceased was a homosexual, but asked the deceased’s wife, from whom the deceased was estranged, what information she could provide that would support Parson’s claim (Tr. p. 32). There was information that the deceased, after the separation from his wife, lived with a person named Bruce Opt (Tr. p. 37). The deceased was going to Colorado when he was killed to live with a person named John Longstrom (Tr. p. 33). Shumate never spoke to Longstrom. Shu-mate did discuss the alleged homosexual aspect of the case with J. Lowe Barton, an agent with the Utah Department of Adult Probation and Parole, who prepared the presentence report (Tr. at. 34; Ex. at 12). There was information in the report about Parsons having homosexual contact at the Nevada State Prison (Tr. p. 35). No inquiry was made by Shumate about that matter. That matter was left alone (Tr. p. 35-36). It would have been adverse to Parson’s claim of a severe reaction to the deceased’s homosexual advance as mitigation for the killing (Tr. p. 36).

Shumate testified he did “hundreds of ■ hours” of legal research. He spent two or three days with the Salt Lake Legal defender’s office talking to that organization’s leading attorneys about the case, and spoke to the deceased victim’s family members about the deceased’s sexual orientation (Tr. p. 39). He talked about the reasons for the dissolution of the victim’s marriage. He asked about Mr. Opt and was advised he was a Mend of the deceased (Tr. p. 40). They worked together and had a long standing friendship (Id.). No inquiry was made of Mr. Longstrom, the man the deceased was going to Colorado to live with. The victim, Mr. Ernest, was a carpenter in the construction business (Tr. p. 41). Shumate had no independent evidence that the victim was a homosexual (Tr. p. 41). He examined the autopsy report to determine if the deceased had a physical condition in the anal area that would suggest homosexual behavior. There was no such indication (Id.).

The petitioner had consistently told Shu-mate that petitioner was not a homosexual, had no such inclinations or relationships, and was heterosexual (Tr. p. 43).

The presentence report was never presented to the jury (Tr. p. 45). The defense strategy was to present the case as petitioner having killed the victim due to the homosexual attack and to remain consistent in that position (Tr. pp. 45-46). The prosecution introduced no evidence to impeach Parsons on this point (Tr. p. 46). Shumate did ask the victim’s wife if the marital breakup was due to any extramarital affair, but did not specifically ask about homosexuality (Tr. pp. 47-48).

Edward M. Barton, an investigator, was retained by post conviction counsel in this court, to find background information about the victim, Mr. Ernest (Tr. p. 53). Ernest was from Southern California and Barton went to Los Angeles to determine if there was evidence of homosexuality (Tr. p. 53). He was unable to find persons who had such information (Tr. p. 54). He was unable to find Bruce Opts and knew of no other areas of investigation as to Opts (Tr. p. 54). Barton found no information as to Opt’s sexual orientation (Tr. p. 55). Also, there was no history of any criminal activity as to Ernest (Id.).

Barton testified (Tr. p. 55, line 16-24):

Q Sitting here today, are you aware again as an experienced investigator of anything else that could be reasonably done in cost, effort and that to obtain additional information about the sexual orientation of Mr. Ernest that has not been done?

A No. And particularly in view of the testimony of Mr. Ernest’s family, that to pursue family members did not seem to be fruitful to me, and that’s why I did not do it because of the testimony at the sentencing hearing.

Barton said more witnesses might have been available in 1988, however, this was speculation (Tr. p. 56). Barton checked and determined that the Nevada State Prison had transmitted a report to Utah that petitioner had been involved in a homosexual relationship in that prison (Tr. p. 56). The report was forwarded to Utah authorities for the presentence investigation. A confirmation could not be made by Barton. There was no evidence of any homosexual activity by Parsons at the Utah State Prison (Tr. p. 57). Barton said he had made an investigation of what could be done (Tr. p. 58). There was no evidence that Parsons was ever a victim of prison rape or that he had become homophobic (Tr. pp. 60-61).

Petitioner, Joseph M. Parsons, testified (Tr. p. 62). He saw defense counsel about two to three days following his arrest. Parsons told Shumate what happened with Ernest after Parson’s arrest and his detention at the Iron County Jail (Tr. p. 63). Parsons testified to his version of the events including the killing of Ernest at the rest stop in Southern Utah between two and three o’clock in the morning of August 31, 1987 (Tr. p. 64). Parsons testified that Ernest made an aggressive homosexual attack on Parsons, grabbing him and calling him names and preventing Parsons from leaving the vehicle in which the two were located. As a result, Parsons stabbed Ernest numerous times, killing him (Tr. pp. 68-69). This was the story Parsons provided to Shumate.

Parsons denied he had crab lice while in the Iron County Jail, although one prisoner on the tier where Parsons was confined had such a malady and all inmates were deloused. This, Parsons said, could be a reason why the presentence report said he had such a condition (Tr. p. 70). Parsons denied he had any homosexual experience while he was in the Nevada State Prison (Tr. p. 71). The presentence report that contained such information referred to a person named Hank, who Parsons said was his crime partner with whom he had been arrested (Id.). They were not housed in the same Nevada prison (Tr. pp. 71-72). Parsons testified at the Utah trial sentencing hearing to the circumstances of the killing as well as to other details of his life (Tr.Vol. TV., January 28, 1988, 5th District Court, pp. 1000-1144). Parsons was twenty-three years old at the time (Tr.Vol. IV at 1000). Parsons’ testimony at the sentencing hearing went well beyond the issues pertinent to his habeas petition. At his habeas hearing in this court, the record of some of Parsons’ testimony about the event was submitted by the respondent’s counsel (Tr. pp. 75-78). However, the information and examination of Parsons about the killing was tangential to this petition, at best (See Tr. pp. 78-82).

The first time Parsons met with his attorney, the events of the stabbing were fully discussed (Tr. p. 83). Nothing about crab lice was presented to the jury (Tr. p. 84). The jury’s verdict under Utah procedure was binding on the sentencing judge.

The amended information on which the petitioner was prosecuted charged' as to the offense of murder in the first degree (state file p. 1).:

Count I: MURDER IN THE FIRST DEGREE, a capital felony, in violation of Title 76, Chapter 5, Sections 201 and 202, Utah Code, as amended, in that said Joseph Mitchell Parsons, on or about the 31st day of August, 1987, in Iron County, State of Utah, intentionally or knowingly caused the death of another, to wit: Richard L. Ernest, under any of the following circumstances:

1. While the said Joseph Mitchell Parsons was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit aggravated robbery, and/or

2. For pecuniary gain, and/or

3. While the said Joseph Mitchell Parsons having previously been convicted of a felony involving the use or threat of violence to a person.

It was filed on September 10,1987.

On September 17, 1987, the petitioner, with the consent of the prosecution, which had originally objected, waived preliminary hearing (state record file p. 76). The state record also reflects petitioner’s counsel, prior to sentencing, received a psychological evaluation on petitioner on November 7,1987 from Dr. Robert J. Howell, a forensic psychologist (Document file). Records of petitioner’s prior criminal conviction were also available to defense counsel (Id.).

The petitioner appeared in Fifth District Court, Iron County, Utah on September 18, 1987 and entered a plea of guilty to all charges in the amended information (state record at 87). A plea of guilty to a capital felony was authorized by Utah law, Utah Code Ann. § 76-3-207(1) (1982). A pre-sentence report was prepared, but the sentencing jury did not see it.

The petitioner’s sentencing trial began January 25, 1988, pursuant to Utah Code Ann. § 76-3-207 (1982). The petitioner was tried before a jury (state record at 157). The jury was instructed, after hearing the evidence (state record at 252-254). The jury was instructed in accord with Utah law that after considering the totality of the circumstances, that the death penalty could only be imposed if the total aggravating circumstances outweighed the total mitigating circumstances beyond a reasonable doubt. In addition, the jury had to be persuaded beyond a reasonable doubt that the imposition of the death penalty was “justified and appropriate in the circumstances.” (Id. at 265, instruction No. 12). The jury was instructed on the statutory aggravating and mitigating factors and that any other mitigating factor could be considered (Id. at 267-78, instruction No. 14).

The court instructed the jury on a special verdict form the court was submitting to the jury (Id. at 283, instruction No. 27). The instruction provided:

When you retire bo deliberate, you should appoint one of your fellow jurors to act as foreperson, who will preside over your deliberations and who will sign the verdict to which you agree. In this proceeding a unanimous concurrence of all jurors is required before a verdict can be reached. Your verdict must be in writing and, when found by you, must be returned into court. Two verdict forms have been prepared for your consideration together with three Special Verdict Questions, which will aid in your deliberations, and which must be answered by unanimous finding during your deliberations. If the final vote of the jury members is “No” or less than a unanimous “Yes” as to any Special Verdict Question, then you may not consider the elements of that individual question as aggravating circumstances. Your foreperson will sign the Special Verdict Questions and the verdict which correctly reflects the result of your deliberations.

The following are the Special Verdict Questions which have been prepared for you:

After duly considering the evidence and applying the law as instructed, do you find beyond a reasonable doubt that the defendant, Joseph Mitchell Parsons, intentionally or knowingly caused the death of Richard L. Ernest while the said Joseph Mitchell Parsons was engaged in the commission of, or an attempt to commit, or flight after committing or attempting to commit Aggravated Robbery.

After duly considering the evidence and applying the law as instructed, do you find beyond a reasonable doubt that the defendant, Joseph Mitchell Parsons, intentionally or knowingly caused the death of Richard L. Ernest for pecuniary gain.

After duly considering the evidence and applying the law as instructed, do you find beyond a reasonable doubt that the defendant, Joseph Mitchell Parsons, being a person on parole, knowingly possessed or had in his custody or under his control a firearm.

The Verdict forms which will be furnished to you are as follows:

We the jury, duly-empaneled in the above-entitled case, unanimously render a verdict imposing the sentence of death.

OR

We the jury, duly-empaneled in the above-entitled case, unanimously render a verdict imposing the sentence of life imprisonment.

Your foreperson will sign the appropriate Verdict form and return both forms to the Court.

State Record at 283-284.

The special verdict instruction and forms said nothing about mitigation factors and no special verdict questions on mitigation were submitted to the jury. However, an instruction was given that the aggravating and mitigating circumstances were not to be counted in numbers, but weighed in the totality. The totality of the aggravating circumstances had to outweigh the mitigating circumstances beyond a reasonable doubt or the death sentence was not proper. The special verdict questions were submitted to the jury (state record at 297) and answered affirmatively and unanimously as to each of the questions posed. The jury also executed verdict form No. 1, (state record at 299) unanimously imposing a sentence of death. This was on January 29,1988.

The petition for habeas corpus of Joseph Mitchell Parsons has been referred to the magistrate judge under 28 USC § 636(b)(1)(B). This report and recommendation is submitted on the petition for habeas corpus under 28 USC § 2254.

Discussion and Analysis

Taking of Witnesses’ Statements Without Petitioner or His Counsel Being Present

In point A of petitioner’s petition for habeas corpus he contends his Sixth Amendment rights and his right to due process were violated when on September 2, 1987, the prosecutor, after charges had been filed, took recorded, sworn statements from witnesses. A statement was taken from Beverly Dawn Ernest, the deceased victim’s estranged wife. Also, a statement was taken from Chad M. Williams. Williams saw Parsons take certain actions with regard to the victim Ernest’s vehicle and personal property following the petitioner killing Ernest.

The petitioner contends these were “depositions” and he and his counsel had a right to notice and to be present. The witnesses were sworn and questioned before a court reporter and their responses to the prosecutor’s questions were recorded. The prosecutor questioning Williams referred to the process as taking a statement for purposes of a criminal investigation (See PL Exhibit p. 7, Circuit Court, Iron County, State of Utah) (See pp. 2-3 William’s statement). Williams was never advised he was subject to perjury for a false answer (Id.). This statement was taken by Scott M. Burns, Iron County Attorney.

The statement of Beverly Dawn Ernest, was taken by Deputy Iron County Attorney, Keith F. Oehler. It was a sworn statement before a court reporter. Oehler referred to the matter as a “deposition”. Oehler also advised Mrs. Ernest if there were differences in her trial testimony from her statement, the difference could be pointed out to the judge or jury. Oeh-ler advised Mrs. Ernest that he simply wanted the truth (Statement, Exhibit p. 6, Circuit Court, Iron County at 2-3). He did not mention perjury or make any threat. No witness was warned of perjury. No false statements were made by the prosecutors to the witnesses.

Petitioner contends these statements were analogous to a “tainted line up”. The witnesses were not threatened or intimidated or told not to speak with defense counsel. See Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972) (witness threatened and refused to testify); United States v. Heller, 830 F.2d 150 (11th Cir.1987) (witness threatened); United States v. Blanche, 149 F.3d 763 (8th Cir.1998) (interference with a defense witness). The Utah Supreme Court characterized the process as a continuation of the investigation by a cautious prosecutor and getting evidence while fresh in the witnesses’ minds. Parsons v. Barnes, 871 P.2d at 520. Both witnesses testified at trial and the pretrial statements were not introduced into evidence. They were not used as depositions. There was no confrontation issue presented.

The respondent, in the motion to dismiss, urged that if petitioner was referring to other witnesses than Ernest and Williams, that the claim had not been exhausted as required under 28 USC § 2254. However, petitioner in his trial memorandum (File Entry # 38) states that other statements from prisoners at the Iron County Jail were not an issue. Reference is made to a deposition of a highway patrol dispatcher, but only Williams and Mrs. Ernest are discussed. No evidence as to any other person has been presented. The petitioner has only referred to the two statements. Therefore, the issue is confined to two statements and respondent’s claim of non-exhaustion must be rejected.

The statements were not taken as depositions pursuant to Rule 14(h), U.R.Cr.P. The statements were only investigative recordings of material witnesses’ evidence. There is no evidence that the process resulted in any false statement or any indication the witnesses’ statements were detrimental to petitioner at his sentencing hearing, or beyond their trial evidence. Any suggestion of a chilling influence or adverse effect is purely speculative. “Both sides have an equal right, and should have an equal opportunity to interview [witnesses].” Gregory v. United States, 369 F.2d 185, 188 (D.C.Cir.1966). Petitioner could have done the same. Petitioner had the benefit of access to the witnesses statements and was not surprised.

Defendant [petitioner] has a right to be present at every critical stage of the proceedings. Hopt v. Utah, 110 U.S. 574, 579, 4 S.Ct. 202, 28 L.Ed. 262 (1884); Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892); Diaz v. United States, 223 U.S. 442, 450, 32 S.Ct. 250, 56 L.Ed. 500 (1912); Snyder v. Massachusetts, 291 U.S. 97, 107-108, 54 S.Ct. 330, 78 L.Ed. 674 (1934) (viewing crime scene in absence of defendant did not deny due process); Rushen v. Spain, 464 U.S. 114, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983) (ex parte communications between judge and juror did not violate accused’s right to be present); Gomez v. United States, 490 U.S. 858, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989); Kentucky v. Stincer, 482 U.S. 730, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987) (defendant had no right to be present during testing of the competency of a child witness); Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (probable cause presentation to the judge is not a critical stage where there is a right to counsel).

The defendant’s right to be present at a critical stage is rooted to a large extent in the confrontation clause. United States v. Gagnon, 470 U.S. 522, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985). It is a part of the adversary system. Presence of the accused or counsel during interviews with witnesses has not been considered to be a confrontation right. United States v. Coven, 662 F.2d 162 (2d Cir.1981); Doss v. United States, 431 F.2d 601 (9th Cir.1970) (no right to be present at lineup interview); United States v. Parker, 549 F.2d 1217, 1223 (9th Cir.1977) (same). See also United States v. Benlian, 63 F.3d 824 (9th Cir.1995) (counsel not required at presen-tence interview). The defendant has no right to a prosecutor’s interview notes. United States v. Milikowsky, 896 F.Supp. 1285 (D.Conn.1994). In this case, petitioner had an exact record of what occurred in the taking of the witnesses’ statements and was effectively advantaged in that regard.

A similar conclusion was reached by the Court of Military Appeals (now Court of Appeals of the Armed Forces) in United States v. Morris, 24 M.J. 93 (1987) (accused not denied due process or Sixth Amendment rights where prosecutor interviewed a witness but a defense investigator had to interview the witness with judge advocate present). In State v. Smith, 235 Mont. 99, 765 P.2d 742 (1988), the court held the confrontation clause did not require defendant to be present during a pretrial interview with the victim.

Therefore, it must be concluded that there was no due process or confrontation violation by the prosecutor in this case in taking ex parte sworn statements from witnesses without defendant’s presence.

Further, there was no prejudice to petitioner. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).

The right to counsel exists at all critical stages of the proceedings. However, the interview of witnesses in a non-adversarial proceeding is not a critical state of the proceedings. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984); Van Nattan v. United States, 357 F.2d 161 (10th Cir.1966); United States v. Washington, 11 F.3d 1510, 1517 (10th Cir.1993). Claudio v. Scully, 982 F.2d 798 (2d Cir.1992) (right to counsel only at “critical stages”). In United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), the defendant contended he had a right to counsel at a post indictment photographic display conducted by the prosecutor with witnesses who would be called at trial. The court said the core right to counsel was “when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor.” Id. at 309, 93 S.Ct. 2568. The court found the photo lineup interview stage not to be critical.

Even if we were willing to view the counsel guarantee in broad terms as a generalized protection of the adversary process, we would be unwilling to go so far as to extend the right to a portion of the prosecutor’s trial-preparation interviews with witnesses.

Id. at 317, 93 S.Ct. 2568.

The court noted the practice of counsel interviewing witnesses predated the Sixth Amendment and defense counsel could interview witnesses himself. Id. at 318, 93 S.Ct. 2568. Cases noted above also apply to presence of the accused or counsel.

There is no right to counsel when a witness views a photograph lineup. United States v. Barker, 988 F.2d 77 (9th Cir.1993). Therefore, the petitioner in this case has no valid claim of a violation of his constitutional rights because counsel was not present at the witness interviews.

Right to Compensated Counsel in State Post Conviction Proceedings

Petitioner argues he was denied a federal constitutional right by the fact his state post conviction counsel were not paid. He claims this denied him equal protection and due process of law. The position has not been significantly urged in petitioner’s trial brief and has been stated to be abandoned.

The respondent contends that petitioner’s claim is barred under the doctrine of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). In Teague, the Supreme Court held a habeas corpus petitioner may not seek to enforce a “new rule” of law announced after his conviction has become final unless the new rule fits into two narrow exceptions. The first exception is if the new rule “places certain kinds of primary, private individual conduct beyond the power of the criminal law making authority to proscribe.” 489 U.S. at 307, 109 S.Ct. 1060. The second is if the ruling “requires the observance of those procedures that ... are implicit in the concept of ordered liberty.” Id.; Earnest v. Dorsey, 87 F.3d 1123 (10th Cir.1996). Neither of these exceptions has application on this issue. Obviously the requirement of payment of state post conviction counsel has not been recognized before now, in any case, as a requirement of ordered liberty.

A “case announces a new rule if the result was not dictated by precedent existing at the time defendant’s conviction became final.” Teague, 489 U.S. at 301, 109 S.Ct. 1060. A state conviction “[becomes] final for purposes of [Teague] retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing of a petition for a writ of certiorari has elapsed or a timely filed petition has been denied.” Caspari v. Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994); Earnest, 87 F.3d at 1132; Teague, 489 U.S. at 310, 109 S.Ct. 1060. Thus, petitioner’s conviction in this case was final when his petition for certiorari to the United States Supreme Court was denied. The petitioner’s claim on this issue is a new rule and barred by Teague.

Further, it is barred by existing precedent. In Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) the Supreme Court indicated there was no obligation for appointment of counsel beyond the first appeal as a matter of right and as concluded in Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). See also Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982). The court also said in Finley as to its holding in Ross:

We also concluded that the equal protection guarantee of the Fourteenth Amendment does not require the appointment of an attorney for an indigent appellant just because an affluent defendant may retain one.

481 U.S. at 556, 107 S.Ct. 1990.

Therefore, the petitioner’s due process and equal protection claims fail.

In Murray v. Giarratano, 492 U.S. 1, 10, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989) the Supreme Court held its position in Finley and Ross also applied in a capital case and the defendant was not entitled to appointed counsel in a post conviction proceeding. If petitioner was not entitled to appointed counsel, he is not entitled to compensated counsel. He had the services of two highly accomplished counsel in his state post conviction proceedings. This satisfies any constitutional requirement.

The claim for compensated post conviction counsel is without merit.

In addition, as noted before, in the petitioner’s reply to the respondent’s motion to dismiss, this claim was abandoned (File Entry #23). Further, there is no prejudice. Brecht v. Abrahamson, supra.

Ineffectiveness of Counsel

The petitioner contends his trial counsel, James L. Shumate, was ineffective in his representation of petitioner and petitioner’s right to counsel under the Sixth Amendment was violated.

The petitioner has raised, in this court, eight specific claims of alleged ineffectiveness of his defense counsel. (See File Entry #2, Subsection B, paragraphs ah). Most of the claims have not been amplified in this court in petitioner’s brief and were briefed and presented in the state post conviction proceedings.

Strickland v. Washington

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) the United States Supreme Court set out the standards for consideration of an ineffectiveness of counsel claim under the Sixth Amendment. The same standard applies at trial or sentencing. Strickland was a capital case. Id. at 675, 104 S.Ct. 2052. It came before the Supreme Court on a claim for collateral relief. The court recognized a defendant has a right to effective “assistance of counsel.” Id. at 686, 104 S.Ct. 2052 citing McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). The court said the “benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial [sentencing] cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052. The court noted a capital sentencing procedure is like an adversarial trial.

The court said there are two “components” required for an assessment of ineffectiveness of counsel. “First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant in the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.” Id. at 687, 104 S.Ct. 2052. To prevail on the failure of counsel’s performance, “the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052 (emphasis added). Reasonableness is the governing standard “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689, 104 S.Ct. 2052. Second guessing should not be undertaken in making the effectiveness evaluation. There is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance” and petitioner must overcome the presumption. Id. The standard is as of the time of the conduct; hindsight is not the point of assessment. Id. Counsel’s statements of performance must be credited and a “heavy measure of deference [given] to counsel’s judgments.” Id. at 691, 104 S.Ct. 2052. “[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id. at 691, 104 S.Ct. 2052. Matters of strategy are virtually unassailable. Id. at 690, 104 S.Ct. 2052. The facts of the case will determine what is reasonable. Id. What defendant says about the case will affect what counsel is required to do. Id. at 691, 104 S.Ct. 2052.

The court indicated that when “defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695, 104 S.Ct. 2052. “When a defendant challenges a death sentence such as the one at issue in this ease, the question is whether there is a reasonable probability that, absent the errors, the sentencer, ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Id. at 695, 104 S.Ct. 2052.

The court may go directly to the prejudice prong of the assessment so as to avoid the burdensomeness of the ineffectiveness claim. This also applies to federal collateral proceedings. Id. at 697, 104 S.Ct. 2052. A finding of effectiveness by the state tribunal is not binding on the federal court, but a mixed question of law and fact. Id. at 698, 104 S.Ct. 2052. The state decision is at least entitled to consideration.

Most recently, the Court of Appeals for the Tenth Circuit addressed and considered the standard. Boyd v. Ward, 179 F.3d 904, 913-14 (10th Cir.1999), the court said:

To establish ineffective assistance of counsel, a petitioner must prove that counsel’s performance was constitutionally deficient and that counsel’s deficient performance prejudiced the defense, depriving the petitioner of a fair trial with a reliable result. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove deficient performance, Mr. Boyd must overcome the presumption that counsel’s conduct was constitutionally effective. See Duvall v. Reynolds, 139 F.3d 768, 777 (10th Cir.), cert. denied, — U.S. -, 119 S.Ct. 345, 142 L.Ed.2d 284 (1998). Specifically, he “must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (quotation omitted). For counsel’s performance to be constitutionally ineffective, it must have been completely unreasonable, not merely wrong. See Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir.1997).

To establish prejudice, Mr. Boyd must show that, but for counsel’s errors, there is a reasonable probability that the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052; see also Newsted, 158 F.3d at 1090. If the alleged ineffective assistance occurred during the guilt/innocence stage, we determine whether there is a reasonable probability the jury would have had reasonable doubt regarding guilt. See Strickland, 466 U.S. at 695, 104 S.Ct. 2052. In assessing prejudice, we look at the totality of the evidence, not just the evidence helpful to Mr. Boyd. See Cooks v. Ward, 165 F.3d 1283, 1293 (10th Cir.1998).

If the alleged ineffectiveness occurred during the sentencing phase, we consider whether there is a “reasonable probability that, absent the errors, the sen-tencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct. 2052; see also Cooks, 165 F.3d at 1296 (requiring court to consider strength of the government’s case and the aggravating factors the jury found as well as the mitigating factors that might have been presented).

We “may address the performance and prejudice components in any order, but need not address both if [Mr. Boyd] fails to make a sufficient showing of one.” Id. at 1292-93; see also Davis, 100 F.3d at 760 (noting that court can proceed directly to prejudice without addressing performance).

Therefore, the above standards must be used in determining petitioner’s claims of ineffectiveness in this case.

The petitioner has the burden of proof. Parke v. Raley, 506 U.S. 20, 31, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992); Brecheen v. Reynolds, 41 F.3d 1343 (10th Cir.1994).

“In general, in federal postconviction relief proceedings, the burden is on the convicted person to prove his well-pleaded claim by a preponderance of the evidence.” Donald E. Wilkes, Jr., Federal Post Conviction Remedies and Relief, § 1-7 (1996). Also, petitioner must have made an adequate record in state court or before this court to support his contention. Petitioner was granted discovery in this court, an investigator was appointed, and a hearing held to allow petitioner to present evidence on his claims. Finally, the factual findings of the state court are entitled to a presumption of correctness. Thompson v. Keohane, 516 U.S. 99, 109, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Steele v. Young, 11 F.3d 1518, 1520 n. 2 (10th Cir.1993); Brecheen v. Reynolds, 41 F.3d at 1348 n. 1.

Argument of Respondent to Dismiss

Respondent contends several of the petitioner’s claims with regard to ineffectiveness of counsel are barred by the standards of Teague v. Lane, supra. This argument cannot be accepted. The requirement of effectiveness of counsel was clearly established in Strickland in 1984 before petitioner’s sentencing trial. Therefore, the petitioner’s argument for effective counsel does not create a “new rule” under Teague. It is not the application of different contentions on ineffectiveness or new facts that creates a new rule. In Strickland the Supreme Court stated the standard, “In every case, the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process ...” 466 U.S. at 696, 104 S.Ct. 2052 (emphasis added).

Teague v. Lane, supra, would have application if petitioner were arguing for a new rule of procedure not based on a claim of ineffectiveness of counsel. However, where ineffectiveness of counsel is the claim, it is counsel’s performance that is at issue in the particular case, not a new rule. Therefore, respondent’s claims of a Teague bar must be denied.

The respondent also claims that some of the ineffectiveness of counsel claims, as presented to this court, were not fairly presented to the Utah Supreme Court in the same manner as now presented to this court. See O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). Therefore, respondent contends the claims are not exhausted and the petition should be dismissed.

If a “mixed” petition of exhausted and unexhausted claims has been presented to this court, the petition could properly be dismissed without prejudice. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982); Harris v. Champion, 48 F.3d 1126 (10th Cir.1994); Hernandez v. Starbuck, 69 F.3d 1089 (10th Cir.1995) (dismissed without prejudice).

However, if the claims were fairly presented to the Utah Supreme Court, Parsons v. Barnes, supra, so that that court was given fair notice of the claims, then exhaustion has occurred for purposes of 28 USC § 2254. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Humphrey v. Cady, 405 U.S. 504, 516 n. 8, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972); Bowser v. Boggs, 20 F.3d 1060, 1063 (10th Cir.1994); Nichols v. Sullivan, 867 F.2d 1250, 1252 (10th Cir.1989).

In this case, the essence of petitioner’s ineffectiveness of counsel claims were presented to and addressed by the Utah Supreme Court in Parsons v. Barnes, 871 P.2d at 523-30. There may be some small variances but the essence of the claim was before the Utah courts. In Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) the Supreme Court said the expansion of a federal habe-as petition’s facts over what was presented in state court did not circumvent the exhaustion requirement if the substance of the federal claim has been fairly presented to the state courts and the additional evidence does not fundamentally alter the claim. See Demarest v. Price, 130 F.3d 922, 932 (10th Cir.1997). It is concluded under Vasquez v. Hillary, there has been exhaustion of petitioner’s claims of ineffectiveness in this case.

In addition, given the initial appeal and exhaustive post conviction consideration, it is concluded that it would be futile to expect the Utah Supreme Court to consider further ineffectiveness issues. This is apparent in Rule 65B(b)(5) U.R.C.P. which limits post conviction consideration under Utah law. Also, where it would be futile for a petitioner to proceed further in state court, the exhaustion requirement is excused. Bear v. Boone, 173 F.3d 782 (10th Cir.1999); Goodwin v. Oklahoma, 923 F.2d 156 (10th Cir.1991); Wallace v. Cody, 951 F.2d 1170 (10th Cir.1991).

Therefore, this court will address the petitioner’s individual ineffectiveness claims. Any variance in petitioner’s claim from that presented in state courts may be defeated if the claim is without support in the record. The respondent’s motion to dismiss should be denied.

A. Failure to Investigate

In the petition for habeas corpus submitted by Parsons he alleges defense counsel failed to conduct an appropriate investigation “in that he did not interview key persons in the state of California which were identified to him.” Petitioner’s petition does not identify who these persons were and what the interview could have disclosed. The petitioner’s trial brief also does not develop this issue. The evidence before this court is that defense counsel Shumate did talk to Mrs. Ernest, the deceased’s estranged wife. He had her statement given to the prosecutor on September 2, 1987. He did not directly ask her about any homosexual tendencies the deceased may have had, Nut did ask relevant questions related to the matter. Her trial testimony was adverse to petitioner. Counsel did ask as to reasons for the estrangement of the deceased and his wife. It appears unrelated to petitioner’s line of mitigation.

Also, petitioner’s investigator, in this case, went to Southern California but could not uncover any evidence of the deceased being a homosexual. No evidence could be obtained from the person, Bruce Opt, the victim lived with a short time after the deceased’s estrangement from his wife. Opt testified at the trial and gave no indication of any homosexual relationship. The breakup of the deceased and his wife was because she was having an affair. The deceased, when he stayed with Opt, slept in the deceased’s van (Trial Tr. Vol. Ill, at 827-830). There is no evidence of record of any kind that would have been a benefit to petitioner or that counsel could have obtained that would have corroborated petitioner’s claim of Ernest’s alleged homosexuality or otherwise have assisted his petition. The state trial habeas corpus judge concluded “the court cannot find any basis upon which to conclude that a further investigation would have yielded other information which would have affected the result.” That court also noted petitioner had presented no evidence regarding any further information as to Ernest that would support a claim of homosexuality. The Utah Supreme Court also found the claim without merit. 871 P.2d at 523-24.

Petitioner had the right to have counsel make an adequate investigation under the facts of the case. Strickland, at 690-691, 104 S.Ct. 2052; Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); Boyd v. Ward, supra; Brecheen v. Reynolds, supra. However, the extent of an investigation must be based on what counsel’s professional judgement dictates as reasonably likely to be helpful. Burger v. Kemp, 483 U.S. 776, 794, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987).

In this case, even if it is assumed counsel could have done more, petitioner cannot meet the prejudice requirement of Strickland. Boyd v. Ward, supra, United States v. Blackwell, 127 F.3d 947 (10th Cir.1997) (counsel not deficient for failure to investigate); Ingrassia v. Armontrout, 902 F.2d 1368, 1370-71 (8th Cir.1990). There is no merit to this claim and petitioner has not met his burden of proof to obtain relief.

B. Plea of Guilty Without Benefit to Petitioner

The petitioner asserts ineffectiveness of counsel, because he was advised to 'plead guilty without getting some kind of plea benefit. The record, in this case, does not show what benefit petitioner felt should have been obtained. The position that petitioner advocates would require a standard that a plea of guilty could never be entered to a charge unless there were some kind specific benefit extended to the accused by the prosecution. Petit