Full opinion text
MEMORANDUM AND ORDER STOHR, District Judge. I. INTRODUCTION This matter is before the Court on the petition of Missouri state prisoner Michael S. Roberts, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On March 28, 1995, in the Circuit Court of St. Louis County, Missouri, a jury found petitioner guilty of murder in the first degree. On May 26, 1995, the trial judge sentenced petitioner to death in accordance with the jury’s verdict. In his petition, filed January 11, 1999, Roberts asserts thirty-six grounds for relief. II. PROCEDURAL BACKGROUND Petitioner was arrested on February 18, 1994 and charged with the first degree murder of Mary L. Taylor. Additionally, petitioner was charged with two counts of armed criminal action, one count of first degree robbery, one count of second degree burglary, one count of stealing and one count of stealing a motor vehicle. Resp.Exh. A-I, pp. 11-16. The first degree murder charge was severed from the other counts. On March 28, 1995, the jury found petitioner guilty of first degree murder in violation of § 565.020.1. Resp.Exh. A-III, p. 433. On March 29, 1995, based on its finding that petitioner committed the murder “for the purpose of the defendant receiving money or any other thing of monetary value” and because the murder involved depravity of mind in that defendant committed repeated and excessive acts of physical abuse upon the victim, the jury recommended that petitioner be sentenced to death. See Resp.Exh. A-III, p. 453. On April 24, 1995, petitioner filed a motion for judgment of acquittal or, in the alternative for new trial, for new penalty phase trial or for reduction in punishment, asserting ninety-eight grounds for relief. Resp.Exh. A-III, pp. 468-498. The trial court denied petitioner’s motion on May 26, 1995, and petitioner was sentenced to death and a warrant of execution was issued. Resp.Exh. A-III, pp. 499-502. Petitioner then appealed his conviction and sentence to the Supreme Court of Missouri. Resp.Exh. A-III, p. 518. On September 29, 1995, petitioner filed a pro se motion to vacate, set aside or correct the judgment or sentence, pursuant to Missouri Supreme Court Rule 29.15. Resp.Exh. E-I, pp. 5-9. On December 11, 1995, with the assistance of appointed counsel, petitioner filed his first amended motion to vacate sentence and judgment, including eighteen claims for relief with multiple subparts. Resp.Exh. E-I, pp. 31-120. The circuit court held an evidentiary hearing on the grounds asserted in the motion. The hearing began on April 15, 1996 and concluded on April 18, 1996. Resp.Exh. E-IV, p. 486. The circuit court denied petitioner’s motion on the record on April 18, 1996 and issued findings of fact and conclusions of law on May 15, 1996. Resp.Exh. E-IV, pp. 484-608. Petitioner appealed the denial of his Rule 29.15 motion on June 24, 1996. Resp.Exh. E-V, p. 614. The direct appeal and the appeal from the denial of the Rule 29.15 motion were consolidated and petitioner was appointed new counsel. The Missouri Supreme Court affirmed petitioner’s sentence and conviction as well as the trial court’s decision overruling petitioner’s 29.15 motion. State v. Roberts, 948 S.W.2d 577 (Mo. banc 1997). Petitioner’s motion for rehearing was denied on August 19, 1997. On January 12, 1998, the United States Supreme Court denied Roberts’ petition for a writ of certiorari. Roberts v. Missouri, — U.S. -, 118 S.Ct. 711, 139 L.Ed.2d 652 (1998). On November 12, 1997, petitioner filed a motion for appointment of counsel in the instant habeas corpus action. This Court appointed counsel for petitioner on March 12, 1998. The instant petition and request for evidentiary hearing were filed on January 11,1999. III. FACTS The Missouri Supreme Court summarized the facts of the case as follows: From Michael Roberts’s videotaped confession, the jury learned that on February 16, 1994, Roberts and his friends ran out of crack cocaine and money at the same time. He promised his friends that he would remedy the situation, went to his house, obtained a hammer and walked to the home of fifty-six-year-old Mary Taylor, eight doors away. Roberts claimed Ms. Taylor as a friend and believed that her “stuff’ had value as a result of his familiarity with it. Roberts rang Ms. Taylor’s doorbell between 10:30 and 11:00 p.m. She let him in. They watched television together. Ms. Taylor took a phone call from her nephew. When the call ended, she and Roberts talked until Ms. Taylor said she wanted to go to sleep and asked Roberts to leave. The two walked toward the front door. Roberts suddenly turned, pushed Ms. Taylor over a table and began hitting her in the head with the hammer as she lay defenseless on the floor. Ms. Taylor pleaded with Roberts to stop. After hitting her in the head with a hammer more than fifteen times, he stopped the beating and went into the kitchen where he knew she kept her purse. Finding the purse, Roberts began rummaging through it until he heard Ms. Taylor move in the front room. Roberts returned to the living room and kicked Ms. Taylor in the head and side, telling her to stay still. Apparently not convinced that she would obey, he ripped the telephone cord from the wall, wrapped it around her neck, and pulled it as tight as he could. She continued to breathe. He ran to the kitchen, grabbed a steak knife and stabbed her repeatedly until he noticed that the knife’s blade bent in that process. He tossed the steak knife aside, retrieved a butcher knife from the kitchen and began stabbing Ms. Taylor again. When that weapon did not seem “like it was penetrating her clothes,” he went to the kitchen again, filled a large soup pan with water, took it to Ms. Taylor and held her face under the water. Noticing that brain matter had oozed onto his hands, Roberts felt queasy, but decided to continue. He repositioned his hand and forced her head under the water. When her body started to twitch, he “freaked out,” released her head, took an answering machine and $200 and left, leaving the hammer and his Cleveland Indians baseball cap behind. He returned to Ms. Taylor’s house twice — the first time to steal more valuables and her car and the second time to pretend to find her body and report the crime to the police. State v. Roberts, 948 S.W.2d 577, 585 (Mo. banc 1997). IY. PROCEDURAL BAR ANALYSIS A federal court reviewing a state conviction in a 28 U.S.C. § 2254 proceeding may consider only those claims which the petitioner has presented to the state court in accordance with state procedural rules. Gilmore v. Armontrout, 861 F.2d 1061, 1065 (8th Cir.1988), cert. denied, 490 U.S. 1114, 109 S.Ct. 3176, 104 L.Ed.2d 1037 (1989). This requirement implicates both the question of whether petitioner has exhausted all remedies available in the state courts (the exhaustion requirement), and whether he has preserved his claims for federal habeas corpus review by complying with state procedural rules governing their presentation (the procedural default inquiry). Id. The question of whether a claim is procedurally barred is distinct from the inquiry concerning whether a claim has been exhausted. Satter v. Leapley, 977 F.2d 1259, 1261 (8th Cir.1992). A federal court may entertain a claim which has been procedurally defaulted in the state courts if petitioner can show cause to excuse his state court default as well as resulting prejudice from the default, or if petitioner can show that a fundamental miscarriage of justice would result from the Court’s failure to entertain the claim. Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Coleman v. Thompson, 501 U.S. 722, 750-52, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Failure to satisfy the procedural default analysis mandates rejection of that particular ground. Respondent concedes that petitioner has exhausted his available state remedies in that he has either afforded the state courts a full and fair opportunity to review the claims, or there is not a non-futile state remedy available for these claims. See Resp. to Order to Show Cause, p. 10. However, respondent contends that petitioner did not afford the state courts a full and fair opportunity to review several of the grounds for relief that are now before the Court. The Court will address respondent’s procedural default contentions in its analysis of the grounds at issue. Y. ANALYSIS As a preliminary matter, the Court makes general observations regarding the format of the petition. Throughout the instant petition, petitioner cites a laundry list of constitutional amendments in support of each ground for relief. However, petitioner frequently fails to enunciate and explain specific constitutional theories for relief based on each cited amendment. Furthermore, the Court notes that for many grounds, petitioner fails to cite any relevant authority supporting relief. The Court’s analysis of each ground will track the petitioner’s treatment and address petitioner’s constitutional claims generally. In stating each ground for relief, the Court will quote directly from petitioner’s § 2254 petition. Finally, the Court notes that nowhere in the petition does petitioner argue that he did not kill the victim. A. Grounds for Relief Ground I: Respondent’s custody over the petitioner violates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States in that the state trial judge refused to instruct the jury that in deciding whether the prosecution had proved beyond a reasonable doubt each element of the offense of first-degree murder, it could not consider the evidence of psychiatrists who examined petitioner to determine the existence of mental disease or defect. In his first ground for relief, petitioner claims that he has been deprived of his constitutional rights under the Fifth, Sixth, Eighth and Fourteenth Amendments as a result of the state trial judge’s refusal to instruct the jury that it could not consider the evidence presented by psychiatrists which related to the existence of a mental disease or defect in determining whether or not the prosecution had proved each element of the crime beyond a reasonable doubt. Petitioner points to revelations in different doctors’ testimony regarding bad acts in petitioner’s past which could be considered in relation to petitioner’s propensity to commit the instant crime. Petitioner asserts that where a defendant interposes a mental-health defense to negate the existence of the required mens rea of a crime, that the Missouri legislature and Missouri Supreme Court have mandated the use of pattern instructions to insure that there is no reduction in the prosecution’s burden of proof or improper consideration of evidence presented in the development of the mental health defense. In April of 1994, petitioner filed a notice of intent to rely on the defense of mental disease or defect. Resp.Exh. A-I, p. 33. Pursuant to §§ 552.020-552.030 R.S.Mo., the trial court granted petitioner’s motion for mental examination to determine petitioner’s capacity to stand trial, as well as his ability to appreciate the nature, quality or wrongfulness of his conduct at the time of the alleged offense. Resp.Exh. A-I, pp. 39 — 42, 45-46. Additionally, in July of 1994, the trial court granted petitioner’s motion for a second psychiatric examination by a physician of petitioner’s choosing at petitioner’s expense. Resp.Exh. A-I, p. 75. Subsequently, on February 16, 1995, petitioner filed a withdrawal of intent to rely on the defense of mental disease or defect with respect to excluding criminal responsibility and thereafter filed a notice of intent to present a defense of mental disease or defect negating only the culpable mental state. Resp.Exh. A-II, pp. 309, 329. Prior to the testimony of Dr. Michael Stacy regarding petitioner’s mental health, petitioner’s counsel requested that the trial judge read the following instruction: INSTRUCTION D The next witness to testify is [name of doctor]. He will testify concerning the mental condition of the defendant at the time of the alleged offense. In the course of his testimony, [name of doctor] may testify to statements and information that were received by him during or in connection with his inquiry into the mental condition of the defendant. In that connection, the Court instructs you that under no circumstances should you consider that testimony as evidence that the defendant did or did not commit the acts charged against him. Resp.Exh. A-III, p. 379 (MAI-CR 3d 300.20). Petitioner contends that the aforementioned instruction was required to have been read prior to the testimony of Dr. John Rabun as well. Additionally, petitioner requested the following instruction be included in the trial court’s final charge to the jury: INSTRUCTION G You will recall that certain doctors testified to statements that they said were made to them and information that they said had been received by them during or in connection with their inquiry into the mental condition of the defendant. In that connection, the Court instructs you that under no circumstances should you consider that testimony as evidence that the defendant did or did not commit the acts charges [sic] against him. Resp.Exh. A-III, p. 388 (MAI-CR 3d 306.04). The trial court refused both instructions. As a result of the refusal of the trial court to give these instructions, petitioner contends that the jury was permitted to hear prejudicial facts including his prior incestuous behavior with his siblings as well as prior violent and aberrant behavior. The alleged prejudicial information included statements that petitioner: had sexual intercourse with and sodomized his five year old sister, deliberately set a fire or fires with the intention of causing serious damage, assaulted his mother, performed fellatio on his younger brother, broke into the Florissant Mitsubishi car dealership, assaulted someone with a trash can, threatened other students with a knife, assaulted a therapist, assaulted and attempted to kill an inmate while in jail, hit an inmate in the face, threatened to assault a female security officer, attempted to get a gun with the intention of killing two people who stole a vehicle from him, ... had intercourse with his other sister, committed a robbery in 1996, and choked a cat to death. Petition, p. 17 (citations to trial transcript omitted). While petitioner concedes that these incidents were relevant to his mental condition, he insists that the prejudicial nature of this information, coupled with the trial court’s refusal to give the requested limiting instructions, denied him the right to an impartial jury. In reviewing this issue on appeal, the Missouri Supreme Court found that because the testimony of the doctors resulted from an examination pursuant to § 552.030 R.S.Mo., the trial court was required to inform the jury, both orally at the time of admission, and later, by instruction, that it could not consider the testimony in determining whether the accused committed the act charged. State v. Roberts, 948 S.W.2d 577, 587 (Mo. banc 1997), citing State v. Kreutzer, 928 S.W.2d 854 (Mo. banc 1996), cert. denied, 519 U.S. 1083, 117 S.Ct. 752, 136 L.Ed.2d 689 (1997). The state supreme court concluded that although the failure to give the required instruction was error, reversal was not mandated because petitioner suffered no prejudice as a result of the error in that his counsel acknowledged to the jury throughout the trial that petitioner had killed Ms. Taylor. By conceding that he killed the victim, Roberts could not have been harmed by the failure of the trial court to give the limiting instructions. This is because the only issue before the jury after the admission was whether Roberts deliberated prior to doing what he admitted he did. The jury did not need to be warned that it should not use the mental health experts’ testimony as proof that Roberts committed the murder. Roberts’s trial admission removed that issue from the jury’s consideration. Roberts, 948 S.W.2d at 588. Petitioner now argues that the trial court’s failure to give the required instructions constitutes an arbitrary withdrawal of the procedural protection afforded by §§ 552.020-552.030 R.S.Mo., and thus violates his due process rights under the United States Constitution. Petition, p. 18, citing Wilkins v. Bowersox, 933 F.Supp. 1496, 1525-26 (W.D.Mo.1996), aff'd, 145 F.3d 1006 (8th Cir.1998). [U]nder the case law related to habeas proceedings, the trial court’s refusal to give a requested instruction must have amounted to a fundamental defect which inherently resulted in a complete miscarriage of justice, or an omission inconsistent with the rudimentary demands of fair procedure, before that failure may be the basis for habeas relief. Closs v. Leapley, 18 F.3d 574, 579 (8th Cir.1994) (internal quotations and citations omitted); see also Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). The Court has read the entire trial transcript. Throughout the proceedings, counsel for defendant admitted that defendant had committed the acts alleged, and contested only whether defendant had a mental disease or defect rendering him unable to coolly reflect or deliberate. In light of defense counsel’s concessions as well as the overwhelming evidence, including defendant’s confession, that defendant committed the act, the failure of the trial court to read the required limiting instruction did not constitute “a fundamental defect resulting in a complete miscarriage of justice.” Closs, 18 F.3d at 579. Additionally, even were the Court to conclude that the failure to read the required instructions constituted a violation of petitioner’s constitutional rights, “an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” Beets v. Iowa Dept. of Corrections Services, 164 F.3d 1131, 1134 (8th Cir.1999), citing Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). Viewing the record as a whole, the testimony alleged to be prejudicial to petitioner could only have been used to determine whether defendant was capable of formulating the requisite mental state, and not whether he committed the act. Accordingly, no relief can be granted on this ground because the state court adjudicated the claim on the merits and the adjudication did not result “in a decision that was contrary to, or involved an unreasonable application of clearly established Federal law ...” nor did it result “in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d). Therefore, the Court will deny all relief requested in Ground I of the petition. Ground II: Respondent’s custody over the petitioner violates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States in that the state trial court refused to allow the petitioner to introduce evidence of substantial cocaine consumption at the time of the offense for which he was on trial, when experts for both the prosecution and defense agreed that ingestion of cocaine would substantially exacerbate the petitioner’s preexisting mental disease, defect, or disorder, and would diminish his capacity and ability to reflect coolly on his actions, which is an essential element of the offense of murder in the first degree. At trial, petitioner presented the testimony of two mental health care experts, Drs. Michael Stacy and Dorsey Dysart. See Resp.Exh. B-X, pp. 1864, 1941. Both doctors testified that petitioner suffered from a mental disease or defect called epileptiform, affecting the frontal temporal lobes of the brain which control behavior and impulsivity. Petitioner contends, without citation to authority, that the trial court’s decision to preclude him from introducing evidence that the ingestion of cocaine exacerbated his existing mental disease at the time of the homicide violated his constitutional rights. Additionally, petitioner maintains that the error was exacerbated when the State was permitted to present evidence that cocaine residue was found on items seized from petitioner’s home. Resp.Exh. B-VIII, pp. 1550-52. The trial court also instructed the jury that, when determining guilt or innocence, intoxication does not relieve a person of responsibility for his conduct. Resp.Exh. A-III, p. 402 (MAI-CR 3d 310.50). Petitioner argues that his proffered evidence regarding the effects of his cocaine ingestion on his mental state was highly relevant to demonstrate that his ability to deliberate was substantially impaired and diminished, and that the evidence should have been admitted especially in light of the evidence regarding cocaine offered by the state and the instruction read to the jury. Accordingly, petitioner made offers of proof concerning that evidence. Resp. Exh. B-X, pp. 1899-1902, Resp.Exh. B-XI, pp.2022-2032. The trial court granted the State’s motion in limine to exclude evidence that petitioner’s voluntary intoxication precluded him from forming the requisite mental state for first degree murder. This evidence was excluded based on the principle that a jury is not permitted to consider intoxication on the issue of defendant’s mental state. See State v. Erwin, 848 S.W.2d 476, 482 (Mo. banc), cert. denied, 510 U.S. 826, 114 S.Ct. 88, 126 L.Ed.2d 56 (1993); see also § 562.076 R.S.Mo. Section 562.076.3 R.S.Mo. provides: Evidence that a person was in a voluntarily intoxicated or drugged condition may be admissible when otherwise relevant on issues of conduct but in no event shall it be admissible for the purpose of negating a mental state which is an element of the offense. In a trial by jury, the jury shall be so instructed when evidence that a person was in a voluntarily intoxicated or drugged condition has been received into evidence. On appeal, the Missouri Supreme Court held that the evidence was being offered for purposes expressly prohibited by § 562.076.3 R.S.Mo., specifically, to demonstrate that defendant could not deliberate. Roberts, 948 S.W.2d at 589-90. The state supreme court further found that petitioner’s claim that cocaine exacerbated the attack failed to rebut the state’s evidence of deliberation prior to the attack. Respondent contends that although petitioner now references various constitutional amendments in the instant ground for relief, the challenge is essentially one regarding the application of state evidentiary law, and therefore the claim is not cognizable in a federal habeas corpus proceeding. To the extent petitioner attempts to reargue the admissibility of the evidence at issue as a matter of state law, this Court is without authority to determine that the evidence is admissible under Missouri law. Sweet v. Delo, 125 F.3d 1144, 1154, 1157 (8th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1197, 140 L.Ed.2d 326 (1998), citing Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Therefore, the Court’s review of petitioner’s claim is limited to whether “[t]he exclusion of this evidence violated petitioner’s due process rights, regardless of the propriety of the court’s action under state law.” Id. at 1157. Respondent argues that any such constitutional claim has been proeedurally defaulted because petitioner failed to present the claim on constitutional grounds before the state courts. Although the Missouri Supreme Court did not address the constitutional implications of the exclusion of the evidence, on direct appeal, petitioner did contend that the exclusion of this evidence “deprived Mr. Roberts of his rights to due process, a fair trial, and to be free from cruel and unusual punishment, as guaranteed by the Sixth, Eighth and Fourteenth Amendments to the United States Constitution ...” Resp.Exh. G, p. 20. In order to preserve a claim for federal habeas corpus review, petitioner must have presented the claim on federal constitutional grounds to the state courts, relying upon “a specific federal constitutional right, a particular constitutional provision, a federal constitutional case, or a state case raising a pertinent federal constitutional issue.” Kelly v. Trickey, 844 F.2d 557, 558 (8th Cir.1988) (internal quotations omitted); see also McDonald v. Bowersox, 101 F.3d 588, 598 (8th Cir.1996), cert. denied, 521 U.S. 1127, 117 S.Ct. 2527, 138 L.Ed.2d 1027 (1997); McCall v. Benson, 114 F.3d 754, 757 (8th Cir.1997); Myre v. Iowa, 53 F.3d 199, 200 (8th Cir.1995). Here, the Court finds that petitioner sufficiently stated a specific federal constitutional right on direct appeal and therefore, the instant constitutional claim is not procedurally barred. The Court must therefore determine whether: the asserted error was “so conspicuously prejudicial or of such magnitude that it fatally infected the trial and deprived [the defendant] of fundamental fairness.” Sweet, 125 F.3d at 1157, quoting Logan v. Lockhart, 994 F.2d 1324, 1330 (8th Cir.1993). “Where the state interest [in excluding evidence] is strong, only the exclusion of critical, reliable and highly probative evidence will violate due process.” Id. at 1158, quoting Stallings v. Benson, 26 F.3d 817, 819 (8th Cir.1994) (emphasis in original). As is evidenced by state legislation, specifically § 562.076 R.S.Mo., the state has a strong interest in holding persons accountable for conduct committed while voluntarily intoxicated. The Court has reviewed the testimony of Drs. Dysart, Stacy and Rabun presented by petitioner in his offers of proof regarding the effect of voluntary intoxication on petitioner’s alleged mental defect. See Resp.Exh. B-X, pp. 1899-1901, Exh. B-XI, pp.2022-2030, Exh. XII, pp. 2275-2282. Dr. Dysart testified that the ingestion of crack cocaine could make the electrical activity in petitioner’s brain more abnormal, affecting his behavior and possibly his ability to coolly reflect and deliberate. Dr. Stacy testified that crack cocaine would at least have an additive effect and would make it more difficult for defendant to deliberate. Dr. Rabun also testified that crack cocaine could cause an increase in petitioner’s violent behaviors. However, the testimony of Dr. Bruce Harry during the penalty phase of the trial indicates that many of the effects of the crack cocaine had worn off during the passage of time between petitioner’s ingestion of crack cocaine and the time of the murder. Resp.Exh. B-XIII, pp. 2532-45. If petitioner’s brain abnormality did not result in sufficient diminished capacity to negate the required mental state, then voluntary intoxication which aggravates the alleged abnormalities does not serve to negate the mental state either. Moreover, defendant cites no authority for the proposition that to hold a defendant criminally responsible for behavior influenced by voluntary intoxication is unconstitutional and the Court is unpersuaded that a rule of law such as Missouri’s violates any constitutional principle. Under these circumstances, the Court cannot conclude that the preclusion of evidence regarding voluntary crack cocaine ingestion to demonstrate a heightened mental defect fatally infected the trial with fundamental unfairness. Therefore, the Court will deny the relief requested in Ground II. Ground III: Respondent’s custody over the petitioner violates the Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States in that the state trial court allowed the prosecution to introduce evidence of the petitioner’s alleged “prior bad acts” that had no legal relevance or probative value. In his next ground, petitioner contends that at trial the prosecution was permitted, over objection, to introduce “a virtual mountain of evidence of defendant’s prior acts, the vast majority of which had no legal relevance to the crime the petitioner was charged with having committed.” Petition, p. 21. Petitioner complains that his videotaped statement and the testimony of other witnesses included evidence regarding petitioner’s theft of license plates and tags, his request for a pistol with which to kill the individuals who had stolen the victim’s car from him, and his burglary of a car dealership. The Missouri Supreme Court addressed this issue on appeal and found that evidence regarding petitioner’s anger at those individuals that stole the victim’s car from him related directly to the “sequence of events that presents a coherent picture of Roberts’s crime.” Roberts, 948 S.W.2d at 590-91. Therefore, the state supreme court found that this evidence was relevant to demonstrate a “coherent picture of Roberts’s crime.” Id. at 591. However, the court concluded that the trial court erred in failing to exclude the evidence regarding the theft of license plates and the car dealership burglary, and went on to conclude that there was no danger that the error resulted in prejudice to the proceeding in light of the overwhelming evidence of petitioner’s guilt. Id. As in Ground II, respondent argues that petitioner’s claim fails to implicate a federal constitutional right, and instead attempts to reargue matters of state eviden-tiary law. On habeas review, evidentiary errors are only relevant to the extent that the presentation or admission of particular proof infringed on “a specific constitutional protection or was so prejudicial as to deny due process.” Hobbs v. Lockhart, 791 F.2d 125, 127 (8th Cir.1986) (quotation omitted). Only evidentiary errors that are so grossly prejudicial that they fatally infect the entire trial, preventing it from being fundamentally fair, will justify habeas corpus relief. Rainer v. Department of Corrections, 914 F.2d 1067, 1072 (8th Cir.1990). To make this determination, we “review the totality of the' facts in the ease and analyze the fairness of the particular trial under consideration.” Hobbs, 791 F.2d at 128. Henderson v. Norris, 118 F.3d 1283, 1286 (8th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1081, 140 L.Ed.2d 138 (1998). No due process violation exists for the admission of prior bad acts testimony unless it can be said that the testimony was “so conspicuously prejudicial or of such magnitude that it fatally infected the trial and deprived [defendant] of fundamental fairness.” McDaniel v. Lockhart, 961 F.2d 1358, 1360 (8th Cir.1992). After reading the entire trial transcript, the Court finds that the admission into evidence of these uncharged crimes did not fatally infect the fairness of petitioner’s trial. The record reveals overwhelming evidence that petitioner committed the murder of Mary Taylor as well as ample evidence that defendant deliberated upon the act. In light of the entire record, the Court does not find that petitioner was denied due process by the admission of these relatively minor prior bad acts in light of the strength of the evidence that petitioner committed this major violent crime. Accordingly, all relief requested in Ground III will be denied. Ground IV: Respondent’s custody over the petitioner violates the Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States in that the state trial court permitted the prosecutor to make improper arguments during the guilt-or-innocence phase of the trial. In Ground IV, petitioner contends that the trial court violated his constitutional rights in allowing the prosecutor to make numerous improper statements during the closing argument of the guilt-or-innocence phase of the trial. The remarks regarding which petitioner complains include the suggestion that petitioner’s commission of prior bad acts justified a finding that petitioner had deliberated on the murder of Taylor, and improper attempts to encourage inappropriate personalization by the jury. Specifically, petitioner points to the prosecutor’s references to petitioner’s sexual abuse of family members, conduct in kindergarten, jailhouse fight involvement, and car dealership burglary. Additionally, ■ the comments that petitioner alleges constitute improper personalization include asking the jury to imagine how painful the injuries to the victim were and asking the jury to become a branch of law enforcement in a war against crime. Petitioner asserts that allowing the prosecutor to make these arguments deprived him of his right to a fair trial. Respondent argues, and petitioner apparently concedes, that this claim is procedurally barred as a result of petitioner’s trial counsel’s failure to lodge a contemporaneous objection to the alleged improper arguments. Petitioner raised the issue on direct appeal. Resp.Exh. G, p. 56. In its opinion, the Missouri Supreme Court noted petitioner’s counsel’s failure to object to these arguments at trial and declined to exercise discretionary plain error review. Nonetheless, because the court found that petitioner had failed to demonstrate that a manifest injustice had resulted, in effect, plain error review was conducted. Roberts, 948 S.W.2d at 592. The Eighth Circuit has itself several times acknowledged the disagreement in its decisions: “There appears to be a decisional split within our Circuit on whether plain-error review by a state appellate court waives a procedural default by a habeas petitioner, allowing collateral review by this court.” Mack v. Caspari, 92 F.3d 637, 641 n. 6 (8th Cir.1996); see also Burns v. Gammon, 173 F.3d 1089, 1095 (8th Cir.1999); Kilmartin v. Dormire, 161 F.3d 1125, 1127 (8th Cir.1998); Sweet v. Delo, 125 F.3d 1144, 1152 (8th Cir.1997); Mitchell v. Kemna, 109 F.3d 494, 496 (8th Cir.1997); Hornbuckle v. Groose, 106 F.3d 253, 257 (8th Cir.1997). Some cases have held that a plain error review by a state court does not cure a procedural default, but others have concluded that if the state court has conducted plain error review, the court should review for plain error in a habeas action. As several of these cases suggest, until the split is resolved by the Eighth Circuit, a court faced with the question “cannot resolve this divergence ..., [but] may choose which line of cases to follow.” Hornbuckle, 106 F.3d at 257; see also Burns, 173 F.3d at 1095; Kilmartin, 161 F.3d at 1127; Sweet, 125 F.3d at 1152; Mitchell, 109 F.3d at 496. This Court adopts the view that the plain error review does not lift the procedural bar, and on that basis concludes that the instant claim is procedurally barred, and therefore denies petitioner’s requested relief on this ground. To excuse the procedural default, petitioner argues that the ineffective assistance of his trial counsel is sufficient cause. Petitioner did raise the ineffectiveness of his trial counsel for failing to object to the prosecutor’s arguments as a ground for relief in his post-conviction motion. Resp. Exh. E-I, pp. 74-79. Additionally, petitioner appealed the denial of his post-conviction motion on this ground. Resp.Exh. G, pp. 56-59. To prevail on a claim of ineffective assistance of counsel, petitioner must show that his counsel’s performance was deficient as a matter of constitutional law and that petitioner was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A constitutionally deficient performance is one that falls “outside the wide range of professionally competent assistance.” Id. at 690, 104 S.Ct. 2052. A defendant is prejudiced by deficient performance if “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. In analyzing petitioner’s ineffective assistance claim, the Missouri Supreme Court concluded that, with respect to counsel’s failure to object to argument regarding petitioner’s prior bad acts, petitioner failed to demonstrate a reasonable probability that his counsel’s performance resulted in a different outcome at the trial, and with respect to counsel’s failure to object to allegedly improper jury personalization, that the prosecutor’s arguments were permissible and failure to object to them was not error. Roberts, 948 S.W.2d at 593-94. The conclusion of the Missouri Supreme Court that trial counsel did not render ineffective assistance is not a finding of fact binding on this Court to the extent stated by 28 U.S.C. § 2254(d). “However, the findings made by the state court in deciding the claim are subject to the deference required by that statute.” Nave v. Delo, 62 F.3d 1024, 1037 (8th Cir.1995), citing Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. 2052; see also Sloan v. Delo, 54 F.3d at 1382 (ineffective assistance claims are mixed questions of law and fact; legal conclusions are reviewed de novo and state court findings of fact are presumed to be correct under 28 U.S.C. § 2254(d)). Having had reviewed the prosecutor’s entire closing argument, the Court finds that petitioner has failed to demonstrate any resulting prejudice from his counsel’s failure to object to the statements of the prosecutor. Even if the Court were to assume that counsel’s failure to object to these arguments fell outside the range of competent assistance, petitioner has wholly failed to show any reasonable probability that but for the alleged errors, he would not have been convicted. During his closing argument the prosecutor argued: His whole life his personality from kindergarten every person that he has been close to, and I don’t mean — I mean, near — kids in the classroom, paint in their hair, spitting, fighting, kicking, his mother, beating her, raping his sister, blaming it on her — everything that he’s done his whole life he’s not been held accountable for. And hasn’t taken blame. Resp.Exh. B-XII, pp. 2324-25. The evidence regarding petitioner’s prior bad acts had mainly been introduced by petitioner in an effort to show that he suffered from a mental disease or defect which precluded him from forming the requisite mental state. Accordingly, this information was not new to the jury and therefore, was not so prejudicial as to affect the outcome of the trial. As previously discussed, however, references to the burglary of the car dealership and efforts to steal license plates and tags should have been excluded as unrelated to the homicide and not relevant to the issues in the instant case. Although the prosecutor referred to these issues in his closing argument, these references did not so prejudice the jury as to encourage them to find petitioner guilty if they otherwise would not have so found. In closing argument, petitioner’s counsel alluded to petitioner’s prior bad acts in support of the notion that petitioner was incapable of controlling his impulses, and thus could not have coolly reflected upon the charged crime. See e.g., Resp.Exh. B-XII, p. 2344. Moreover, the trial court instructed the jury that the arguments of counsel were not evidence. Resp.Exh. A-III, pp. 396, 405. Next, the Court addresses petitioner’s assertion that the prosecutor made improper attempts at juror personalization during his closing argument. The following comments are representative of those of which petitioner complains: You’re the last line of protection in the system. And it’s up to you whether you protect the citizens of St. Louis County or you don’t. It’s up to you. Police can’t do it. Prosecutor can’t do it. The Court can’t do it, but you can. Resp.Exh. B-XII, pp. 2314-15. The Court finds that these isolated statements attacked by petitioner do not constitute improper attempts at encouraging personalization by the jury and therefore, petitioner’s counsel was not ineffective for failing to object. Again, there was overwhelming evidence of petitioner’s guilt, including his own video-taped confession. The prosecution’s attempt to convey to the jury the need for strong law enforcement could in no way be found to have altered the outcome of the proceedings. Moreover, personalization of the victim’s suffering could not have added appreciably to the impact of the horrific facts of the crime. Therefore, petitioner has failed to demonstrate ineffective assistance of counsel, and thus has not shown cause for the procedural default. Finally, even if the instant claim was not procedurally barred, if the Court were to examine the merits of the claim, the standard is essentially the same. “Improper argument violates due process when the argument is so egregious that it renders the entire trial fundamentally unfair.” Rodden v. Delo, 143 F.3d 441, 446 (8th Cir.), cert. denied, — U.S. -, 119 S.Ct. 452, 142 L.Ed.2d 405 (1998); see also Ramsey v. Bowersox, 149 F.3d 749, 755 (8th Cir.1998), cert. denied, — U.S. -, 119 S.Ct. 1083, 143 L.Ed.2d 85 (1999), citing Newlon v. Armontrout, 885 F.2d 1328, 1336 (8th Cir.1989), cert. denied, 497 U.S. 1038, 110 S.Ct. 3301, 111 L.Ed.2d 810 (1990). To decide whether improper argument violates due process, we consider the type of prejudice that arose from the argument, what defense counsel did to minimize the prejudice, whether the jury received proper instructions, and whether there is a reasonable probability of a different sentencing decision absent the improper argument. Rodden, 143 F.3d at 446. Upon review of both parties’ closing arguments, the Court finds that petitioner has not shown that the prosecutor’s remarks “were so egregious that they fatally infected the proceedings and rendered his entire trial fundamentally unfair” or that absent the remarks, the verdict would have been different. Kellogg v. Skon, 176 F.3d 447, 452 (8th Cir.1999). As discussed above, any improprieties were not so prejudicial as to cause the Court to question the jury’s verdict, especially in light of the overwhelming evidence that petitioner killed Mary Taylor and that he deliberated upon the act. Additionally, the jury was properly instructed that the arguments of the lawyers are not evidence. Accordingly, the prosecutor’s arguments did not violate petitioner’s due process rights. In light of all the foregoing, this ground is without merit and all relief sought therein will be denied. Ground V: Respondent’s custody over the petitioner violates the Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States in that the state trial court allowed the prosecutor to make improper arguments in the penalty phase of the trial. Similar to Ground IV, in Ground V petitioner argues that the trial court erred in allowing the prosecutor to make improper arguments at the close of the penalty phase of the trial. Specifically, petitioner lists the following arguments: references to facts outside the record; improper personalization; improper vouching for the process by which the prosecutor decides to seek the death penalty; improper references to prior bad acts and uncharged crimes; urged jurors to believe their roles to be as a voice to express the community’s outrage rather than individuals weighing the aggravating and mitigating factors to dispassionately determine the appropriate sentence; prejudicial statements suggesting that the protections afforded to a criminal defendant by the Constitution were a basis for imposing the death penalty; and statements that because executing the petitioner would allow him the opportunity to “make peace with his maker” the death penalty was the appropriate punishment. Petition, p. 25 (citations to trial transcript omitted). Petitioner’s counsel failed to object to any of these remarks at trial and the Missouri Supreme Court declined to exercise its plain error discretionary review finding that petitioner failed to demonstrate that a manifest injustice would occur if the error was not corrected. Roberts, 948 S.W.2d at 591. In essence, the Missouri Supreme Court concluded that no plain error occurred. Respondent contends that the claim is procedurally defaulted, and the Court agrees for the reasons stated in Ground IV. Also similar to Ground IV, petitioner offers the ineffective assistance of his trial counsel as cause for the default. Petitioner raised the ineffectiveness of trial counsel for failure to object to these statements as a ground in his post-conviction motion. Resp.Exh. E-I, pp. 83-90. The Missouri Supreme Court addressed the issue and concluded that counsel’s performance was not constitutionally ineffective for failure to object to the allegedly improper statements. Roberts, 948 S.W.2d at 594-96. As in Ground IV, even if the Court were to assume that petitioner had demonstrated that his counsel’s performance fell below an objective standard of reasonableness, he still must show prejudice resulting therefrom to excuse the default. The showing of prejudice involves essentially the same standard as petitioner’s due process claim on the merits. In both instances, petitioner must show that the unchallenged remarks of the prosecutor were so prejudicial that they rendered the trial fundamentally unfair and that there was a reasonable probability of a different outcome absent the remarks. Kellogg, 176 F.3d at 451-52. First, petitioner complains that the prosecutor argued facts outside the record to the jury. Specifically, the prosecutor stated, “This is as brutal of a murder as has ever occurred in St. Louis County.” Resp.Exh. B-XIV, p. 2563. Even if this remark constitutes improper argument, it did not render the proceedings fundamentally unfair. There is no denying that the crime for which petitioner was convicted was especially brutal. Petitioner hit the victim in the head with a hammer numerous times, kicked her, stabbed her, slashed her, attempted to strangle her with a cord and attempted to drown her by placing her head in a pot of water. In light of the graphic descriptions of the crime throughout the trial, the prosecutor’s comment did not fatally infect the proceedings. Next, petitioner contends that the prosecutor made numerous attempts to encourage improper personalization by the jury including the following representative statement: “People have to live alone and you’re not safe in this county living alone in your home.” Resp.Exh. B-XIV, pp. 2568. The Court has reviewed the remarks at issue and concludes that they were not improper. The statements urged the imposition of the death penalty as strong law enforcement, but did not attempt to impose personal fear that, if defendant were acquitted, the jurors would be in personal danger. Additionally, petitioner had already been convicted of the crime and jurors were aware that the only two punishments were the death penalty and life imprisonment without the possibility of parole. Therefore, the remarks did not offer personal safety as an improper basis for one penalty over the other. Petitioner also maintains that the prosecutor improperly stated that he thought this was an appropriate case for the death penalty from the very beginning. Petitioner contends that this statement led the jury to believe that someone with more qualifications than they had already determined the appropriate punishment. The jury is necessarily aware that the State believes the death penalty is warranted so that the prosecutor’s actual articulation of the fact is not particularly influential. Viewed in light of the entire closing argument, the Court finds that this remark did not have a reasonable probability of affecting the sentencing outcome. Next, petitioner attacks the prosecutor’s references to prior bad acts and his remark that petitioner was a “monster” for having raped his five-year-old sister. As previously stated, the prior bad acts had been introduced by petitioner in an effort to help establish that petitioner suffered from a mental disease or defect that precluded him from formulating the requisite mental state for first degree murder. Because the jury had heard about these prior activities, the Court cannot find that the prosecutor’s remarks about them were so prejudicial as to render the sentencing phage unfair. It is proper for the jury to consider a defendant’s overall character and conduct in making the penalty decision. Additionally, petitioner’s counsel referred to some of these events in an attempt to demonstrate mitigating circumstances during his closing argument and the trial court properly instructed the jury that neither attorney’s argument constituted evidence. With respect to the prosecutor’s referral to petitioner as a “monster,” the Eighth Circuit has held that comments of that nature create inflammatory prejudice. Kellogg, 176 F.3d at 452. “However, the question is not whether the prosecutor’s remarks are ‘undesirable or even universally condemned.’ ” Id., quoting Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). Instead the question is whether the remark made the proceeding unfair. Again, the characterization adds little impact to the horrific facts themselves. Based on the totality of the circumstances, the Court finds that the prosecutor’s comments did not violate petitioner’s due process rights. Similarly, the Court concludes that the remainder of petitioner’s complaints about the prosecutor’s remarks are without merit because any error did not affect the outcome of the penalty phase and therefore, petitioner cannot demonstrate that his constitutional rights were violated. Therefore, all relief sought in Ground V will be denied. B. Pretrial Proceedings Ground VI: Respondent’s custody over the petitioner violates the Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States in that trial counsel sought to pressure the petitioner into pleading guilty until two weeks before trial; only when they had given up on pressuring him to plead guilty did they seriously begin to prepare a defense. In his sixth ground for relief, petitioner alleges that his trial counsel was ineffective for employing the majority of their pretrial efforts to induce petitioner to accept a plea offer, instead of properly preparing a defense. Respondent contends that this ineffective assistance of counsel claim is procedurally defaulted because it was not raised in petitioner’s Rule 29.15 motion for post-conviction relief or the appeal from the denial of post-conviction relief. In response to this argument, petitioner contends: Because the petitioner did not have constitutionally effective counsel to prepare and litigate his post-conviction relief motion, when this motion was his first opportunity to litigate claims of ineffective assistance of counsel of trial counsel, the failure to include claims in such a motion is not an adequate and independent state ground for denying relief in federal habeas corpus or, in the alternative, the errors and omissions of state PCR counsel are “cause” for overlooking the procedural default. Petitioner’s Traverse, p. 12. However, petitioner acknowledges that his position is inconsistent with existing Eighth Circuit law. Because there exists no constitutional right to counsel in civil post-conviction proceedings, the ineffective assistance of such counsel cannot form the basis for habeas corpus relief. See, e.g., Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Rehbein v. Clarke, 94 F.3d 478, 484 (8th Cir.1996). Neither can ineffective assistance of post-conviction counsel serve as cause to excuse a procedural default even if the post-conviction proceeding was the first time petitioner could have raised the claim. Nolan v. Armontrout, 973 F.2d 615, 617 (8th Cir.1992); see also Lamp v. Iowa, 122 F.3d 1100, 1105 (8th Cir.1997). Petitioner sets forth a lengthy argument that Nolan v. Armontrout was wrongly decided, but Nolan represents the law in this circuit and the Court is bound to follow it. Therefore, the Court concludes that the instant ground is procedurally defaulted and petitioner has failed to demonstrate cause for the default. All relief sought in Ground VI will be denied. Ground VII: Respondent’s custody over the petitioner violates the Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States in that defense counsel withdrew the petitioner’s plea of not guilty by reason of mental disease or defect without his knowledge, and against his wishes. Petitioner argues that his trial counsel was ineffective for withdrawing petitioner’s notice of intent to rely on the defense of mental disease or defect excluding responsibility without petitioner’s knowledge and against his wishes. See Resp.Exh. A-II, p. 309. Counsel later filed a notice of intent to present a defense of mental disease or defect which negated the culpable mental state. Resp.Exh. A-II, p. 329. Petitioner now argues that this decision to abandon the position that petitioner was not guilty constituted ineffective assistance of counsel, especially in light of counsel’s failure to consult with petitioner prior to making the determination. Respondent maintains that petitioner failed to raise this claim in his motion for post-conviction relief and therefore, the claim is procedurally barred from consideration. Petitioner offers only the alleged ineffective assistance of post-conviction counsel as cause for the default. For the reasons set forth in the Court’s analysis of Ground VI, the Court agrees that the instant claim is procedurally barred and that petitioner has faded to demonstrate cause sufficient to overcome the bar. See Coleman, 501 U.S. at 750, 111 S.Ct. 2546; Nolan, 973 F.2d at 617. Therefore, all relief requested in Ground VII will be denied. Ground VIII: Respondent’s custody over the petitioner violates the Sixth and Fourteenth Amendments to the Constitution of the United States in that the petitioner was denied effective assistance of counsel in the conduct of pretrial proceedings. In Ground VIII, petitioner contends that his trial counsel failed to include in the motion for new trial allegations of error concerning admission of certain portions of petitioner’s statements to law enforcement officers, and that therefore, trial counsel waived any trial court error in admitting the statements, which counsel had argued were inadmissible during the pretrial proceedings. Again, respondent claims that this claim for relief is procedurally barred because it was not raised in petitioner’s motion for post-conviction relief. For the reasons set forth above in Ground VI, the Court finds that the instant ineffective assistance of counsel ground is procedurally defaulted and that petitioner has failed to demonstrate cause for the default. See Coleman, 501 U.S. at 750, 111 S.Ct. 2546; Nolan, 973 F.2d at 617. Accordingly, Ground VIII will be denied. C. Jury Selection Ground IX: Respondent’s custody over the petitioner violates the Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States in that the state trial court denied his motion for child care for jurors with dependent children, in derogation of his right to a fair cross-section of the community. On September 15, 1994, petitioner’s trial counsel filed a motion for the court to pay for care of dependent children and family members of single parents selected as jurors. Resp.Exh. A-I, p. 94. Petitioner argued that if this expenditure was not made, the venire pool would not constitute a fair cross-section of the community because certain poor and/or female individuals would be removed due to hardship. The trial court withheld a ruling on the pretrial motion, determining that a decision would be made during the course of the voir dire. Resp.Exh. B-I, p. 173. During voir dire, several jurors indicated some difficulty with child care. See e.g., Resp.Exh. B-II, pp. 315, 361, 373, Resp. Exh. B-V, pp. 879, 883, 885-87, 909. Finding that he did not have the authority to provide supplemental day care assistance for jurors, the trial judge denied petitioner’s motion. Resp.Exh. B-V, p. 909. Petitioner asserts that § 50.640 R.S.Mo. permitted the trial court to expend public funds for this purpose. On appeal, the Missouri Supreme Court upheld the trial court’s denial of petitioner’s motion and found: It is not constitutionally required that the courts budget child care for jurors. State v. Whitfield, 837 S.W.2d 503, 510 (Mo. banc 1992). “The decision not to provide child care is a rational decision, facially neutral with regard to race and gender. As there is no intention to discriminate, the disproportionate impact on minorities and women is not sufficient to violate the equal protection clause of the Fourteenth Amendment, nor Article I, section 2 of the Missouri Constitution.” Id. Roberts, 948 S.W.2d at 603. In support of the instant claim for habeas relief, petitioner argues that denial of this motion denied him his constitutional right to a jury which reflects a fair cross-section of the community with respect to race, gender and socio-economic status. Respondent asserts that this claim is not cognizable under 28 U.S.C. § 2254 because it is a challenge to the application of state law. Moreover, respondent maintains that, to the extent petitioner attempts to assert a right to child care for jurors with dependent children, his claim is precluded as a retroactive application of a new rule of constitutional law pursuant to Teague v. Lane, 489 U.S. 288, 311, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). The Court finds that petitioner has sufficiently raised a federal constitutional issue and will address the merits of petitioner’s claim. In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepre-sentation is due to systematic exclusion of the group in the jury-selection process. Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). Petitioner summarily alleges that the refusal of the trial court to provide day care for jurors’ children discriminates with respect to race, gender and socio-economic status, but petitioner has wholly failed to make such a showing. Even assuming that persons with child care needs constitute a “distinctive” group, petitioner does not demonstrate the jury pool in St. Louis County lacks sufficient numbers of such persons to be fair and reasonable, and that they are systematically excluded by the lack of child care. In fact, the petit jury for petitioner’s trial consisted of nine women and three men. Moreover, the transcript of the voir dire process reveals that several men had problems with child care. See e.g., Resp.Exh. B-II, pp. 315, 361, Resp.Exh. B-V, p. 879. Petitioner fails to demonstrate how the trial court’s ruling discriminated against jurors with respect to race or socio-économic status. Accordingly, the Court finds Ground IX to be without merit, and will deny the relief sought therein. Ground X: Respondent’s custody over the petitioner violates the Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States in that the state trial court allowed the prosecutor to project throughout voir dire the notion that a penalty phase was inevitable, in derogation of the presumption of innocence and of the petitioner’s right to an impartial jury. Next, petitioner contends that his constitutional rights were violated when the trial court allowed the prosecutor to make statements during voir dire which would lead jurors to believe that a penalty phase was inevitable. Petitioner maintains that these statements were made in derogation of the presumption of innocence and the right to an impartial jury. The statements regarding which petitioner complains include the prosecutor’s representation that jurors should “make no mistake” that they will be asked to assess punishment in the case and to impose the death penalty. Resp.Exh. B-III, pp. 442, 480;